The second stage is when a confession is recorded either by a judge or a justice of the peace. PRELIMINARY WARNING AND QUESTION OF A SUSPECT BY THE MAGISTRATE OR JUSTICE OF THE PEACE BEFORE THE ADMISSION.
INTRODUCTION
Introduction
Throughout history, governments and police departments have acted to protect citizens from crime.' It is for this reason that the commission of crimes is usually reported to police departments. One of the functions of the police is to look for clues at the crime scene.
Human nature tells us that the police cannot be happy if the suspects are set free for lack of evidence. Promotion in the police force obviously depends on the detection and exposure of crime and the successful prosecution of offenders.
Definition of a confession
The content of the statement must be self-explanatory regarding the guilt of the accused. If it is possible to interpret the statement in such a way that the guilt of the accused is not recognized, then it is not a confession.
Aim of the research/thesis
This inquiry aims to examine the criteria or prerequisites for the admissibility of a confession as set out in Article 217 of the Criminal Procedure Law.~. Similarly, a suspect may admit to certain elements of a crime and the admissibility of his admission is governed by section 219A of the Criminal Procedure Act.
Pursuant to Section 113 of the Criminal Procedure Act, a plea of not guilty may be recorded and all allegations in the charge may be disputed. If the court is in doubt, I will not hesitate to plead not guilty in accordance with Section 113 of the Criminal Procedure Act.
Admissibility of confessions and admissions compared and distinguished
34; The common law permits no statement of an accused person to be given in evidence against himself, unless it is shown by the prosecution to have been made freely and voluntarily—in the sense that it was not induced by any threat or promise. from a person in authority." Ideally, justice requires that the truth be obtained." This implies that the guilty must be convicted and the innocent acquitted in a criminal case.
Rationale for exclusion of coerced/involuntary confessions
- The reliability principle
- The justice principle
Pursuant to the disciplinary principle, involuntary statements of suspects are excluded from evidence as a sign of disapproving police methods used to secure them.% In our law, the disciplinary principle is not a ground on which a confession can be excluded from evidence. It is suggested that the reason for this is the recognition of the overarching purpose of a criminal trial, namely to achieve justice.
Conclusion
Introduction
The psychology behind this view was that a man - and especially a slave - would tell all kinds of stories in order to avoid being tortured, but if he persisted in his story under torture, it must surely be true. ' The other reason for torturing slaves is to be found in the belief that slaves, being absolutely a': the mercy of their masters, would naturally testify in accordance with the masters' wishes, unless some strong inducement was brought into existence to say the truth. The law was that the evidence of an untortured slave was suspected of lying. For all practical purposes, criminal appeals in English law were not allowed until 1907 when the Court of Criminal Appeal was established.~ The practice before that was the reserving of a legal case by trial judges for later consideration by a sitting of judges.
Views of some Roman-Dutch writers on torture
Van der Keessel's views on the application of torture can be summarized as follows: As a general rule, public law must indicate the circumstances in which the application of torture was not permitted. Exposing the views of some Romano-Dutch writers on the use of torture shows that although many supported it, some opposed it.
Torture and its impact on confessions in South Africa during the period 1652-1795
There are procedures surrounding the recording of confessions that have their roots in Roman-Dutch law. What is completely unacceptable in Roman-Dutch law is that a judge can order a suspect to be tortured. The arguments of the Roman-Dutch writers who opposed torture were 50 convincing that torture was abolished.
The history of legislation governing the admissibility of confessions
The requirements were in part an implementation of the criteria set out in the Warickshall and Thompson cases. Where the admissibility of a confession had to be contested, it had to be done before the evidence of the statement in question was led. The Appellate Division enforced this procedural right of the accused.~. The 1955 Act repealed the 1917 Criminal Procedure and Evidence Act.
If he failed to confirm his voluntariness, he was taken back into the torture chamber. Some authors" did not support the use of torture and did not agree that a suspect who affirms the voluntariness of a confession under torture does so freely and voluntarily because he knew that if he did not, he would be taken back into the torture chamber This study has also led to the finding that police interrogations play an important role in the investigation of crime.
SOUTH AFRICAN LAW
Introduction
- Threat or promise of benefit
- The requirement of voluntariness under section 217 of the criminal Procedure Act 51 of 1977
In Deokinanan'l, the English court (i.e. privy council) ruled that undue influence must be exercised by a "person in authority", and that this is part of it. The main question is whether the confession is in accordance with Section 217(1) of the Criminal Procedure Act.". The meaning of the words "free and voluntary" in Section 217 of the Criminal Procedure Act, and.
Sound and sober senses
The criterion of "sound and sober senses" refers to the mental faculties of the confessor. If the confessor's mind was subjected to pain, it cannot be said that his senses were sound, that is, healthy and not sick or wounded. The magnitude or extent of the external influence on the senses is a matter of fact.
Conclusion
- Sound and sober senses
If a threat or promise is made by another person, the admissibility of a confession may be attached or challenged on the ground. The prosecution is not expected to prove the absence of all mental excitement or anxiety; it is sufficient to prove that the confessor realized what he was doing and was in full possession of his understanding. Where a confession is made while the confessor is to some extent under the influence of liquor which he had.
Introduction
One of the prerequisites for the admissibility of a confession is that it must have been made without undue influence.' In other words, it must be shown that the confession was made freely and voluntarily in all respects.
Undue influence generall~
It should be taken into account that the threat must be such that it is reasonable to assume that the suspect influenced the decision to confess. The great excitement of the suspect at the time of arrest or detention is not a reason to exclude the confession.~. iii). The hope of averting or delaying the sentence for a criminal act or the hope of stopping the criminal proceedings against the suspect or the hope of a pardon or a reduction of the sentence is. another form of undue influence that may render the confession involuntary. iv).
Undue influence in South African Law
- objective test for undue influence
- The subjective test for undue influence
- wigmore's test for undue influence and its impact on the case law
The whole inquiry is to determine whether the confession is admissible from the perspective of the criminal. The reason for this is that undue influence is one of the factors to be considered in deciding whether or not to admit a confession into evidence. A confession is likely to be excluded if there is a reasonable possibility that it was made because of undue influence on the accused.
Assaults or threats of assault
The presiding judge examines the evidence of the accused against the testimony of experienced witnesses on behalf of the police. Furthermore, judges have always found the allegation of police assault to be false, and that the accused were terrible witnesses. M The court continued to look for reasons other than the alleged assaults for excluding the confessions. But the bottom line is that any lack of attack must be verified with medical evidence.
Conclusion
This is an indication that the only concern is whether the requirements of Section 217 of the Criminal Procedure Act are met before the confession is admitted as evidence. Finally, it should be pointed out that the distinction between "voluntariness" and "undue influence" lies in the source of the undue influence exerted on the confessor. The only requirement is whether the confession is admissible within the meaning of Section 217 of the Criminal Procedure Act.
Introduction
- pre-trial detention in terms of section 29 of the Internal security Act 74 of 1982
The emphasis was on interrogating the detainees until they answered all questions satisfactorily. In that case, a practicing lawyer was detained within the meaning of Section 17 of the General Legislative Amendment Act."
Approach of the courts to statements made under statutory compulsion to speak
- Provision of the new constitution which will have an impact on the admissibility of confessions
The new constitution of the Republic of South Africa was adopted by parliament on 22 December 1993. According to the new constitution, everyone has the right to liberty and personal security, which includes the right not to be detained without trial. It is required that the suspect must be instructed about his right to remain silent and about the consequences of making a statement.
Evaluation
An individual is subject to the legal compulsion to speak, for no other purpose than to submit him or her to the will of those who question him. The absurdity of denying that a confession obtained under incommunicado interrogation was coerced is aptly captured by Sutherland. A statement made under legal compulsion to speak is involuntary and therefore inadmissible. Our courts must take this into account when exercising their normal power and function to review evidence of any statement made under legal compulsion to speak.
Introduction
Do you expect benefits from making a statement? ii) If yes, what benefits? iii). To what extent did the fact that you expect to benefit from it contribute to your decision to make a statement. iv) Should there be no benefit from the statement, would you still like to make one. i). What was the date of the commission of the alleged offense in connection with which you wish to make a statement.
Endorsement by a magistrate/justice of the peace
Have you previously made a statement to anyone in connection with this incident. ii) If yes, to whom, circumstances. iii) Why do you wish to repeat this statement. Is what you are about to say in your statement the truth according to your personal knowledge.
Duties and responsibi1ities of a magistrate when recording a confession
In order to reform this procedure, the court pointed out that the magistrate should ask certain questions in order to encourage the accused to reveal what led to his appearance before the magistrate with the aim of making his statement. In casu, the appearance of the lawyer was a good reason for the magistrate to investigate the circumstances that led to the making of a confession. It is alarming to note that an officer of the court, namely the lawyer, was not listened to.
Confessions made to a police officer ex officio justice of the peace
- Confessions recorded by police officers (ex officio justice of the peace) attached to the police unit
The list of ex officio justices of the peace also includes: IS. a) Commander General of the South African Forces and Non-Commissioned Officer of the Standing Forces of the South African Forces. In the case of Mdluli, the three appellants made their confessions to a South African Police officer, who was an ex officio justice of the peace. Holmes JA held that the confessions had been confirmed and put in writing in the presence of the Justice of the Peace. That police officer was attached to the unit investigating the crime, and he did not personally participate in the investigation and his office was located in the same building.
