The government on Wednesday afternoon tabled before the National Assembly proposed amendments which, if passed, will allow the confession of an accused to be admitted in evidence at trial, against a co-accused.
The proposed amendment stipulates, however, that where it is found by the Court that that confession may have been obtained by any means of oppression or under any circumstance to render it unreliable, it is not to be admitted into evidence against the co-accused.
The only exception allowed by the amendment, however, is where it can be proved to the Court, on a balance of probabilities that the confession, notwithstanding that it may be true, was not so obtained.
Styled the Evidence (Amendment) Bill No. 3 of 2022, it was tabled through Attorney General and Minister of Legal Affairs, Anil Nandlall SC, to insert into the Evidence Act Cap. 5:03 an addendum to its Section 63.
The new Section 63A which provides for confessions to be given in evidence against co-accused persons has seven subsections accompanying it.
Subsection (1) provides, “In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused), in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.”
Subsection (2) then stipulates the circumstances under which such a confession should not be admitted into evidence.
It states, “If, in any proceedings where a co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained: (a) by oppression by the person who made it, or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the Court shall not allow the confession to be given in evidence for the co-accused except in so far as it is proved to the court on the balance of probabilities that the confession, notwithstanding that it may be true, was so obtained.”
Subsection three stipulates that a Court, before allowing into evidence the confession may, of its own motion, require testimony that it was not obtained in the matter outlined in subsection two.
Subsection (4) then provides; “The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence (a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.”
According to subsection (5) “Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
In accordance with subsection (6); it is said that subsection (5) applies “(a) To any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and (b) to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.”
Subsection (7) then stipulates that oppression is taken to include “torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.”
According to the Bill’s explanatory memorandum, the co-accused would only need to satisfy the court on a balance of probabilities that the confession was not obtained by oppression or in circumstances likely to render it unreliable.
The Bill went through its first reading at Wednesday’s sitting of the National Assembly.
