The admissibility of secondary confessions

AuthorBobby Naude
DOI10.10520/EJC153196
Published date01 January 2011
Date01 January 2011
Pages464-482
The admissibility of secondary confessions
Bobby Naudé*
Sum mary
Diff icult ques tions abo ut admis sibility aris e if a sus pect ma kes an invo luntary
con fessio n to the polic e that is follo wed by a later ap parent ly volu ntary co nfes sion,
but whic h is som ehow con necte d to the firs t involu ntary co nfess ion. Th e prob lem
is th at not only co uld the reas on for the ina dmis sibility of the prima ry conf essio n
still e xist at the time the sec onda ry confe ssion is ma de, but a lso that the acc used
cou ld co nsider him self o r he rself bound by t he pr imary confe ssion . Th is w ould
eff ectivel y d eprive th e accus ed of the ch oice of wh ether or no t t o m ake th e
sec ondar y con fessio n and woul d ther efore rend er it invo luntary . Exc ept for ask ing
whe ther a seco ndary confe ssion was vo luntar ily ma de, th e next most impo rtant
que stion i s whet her an ything happe ned to caus e the accus ed to believ e that he
or she w as n ot bo und b y his or he r prim ary c onfes sion. Both ques tions can be
ans wered by con sider ing ce rtain id entifia ble ob jective facto rs.
1 Introduction1
It often happens that a suspect makes a confession to the police as a result of
undue influence, and this is later followed by a secondary confession which is
normally made to a magistrate. W hen considered in isolation, the secondary
confession is usually made without apparent undue influence, except for the fact
that it is somehow connected to the primary inadmissible confession. The
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question arises as to whether the circumstances that disqualif ied the primary
confession should have any bearing on the admissibility of the secondary
BIuris, LLB, LLD (Unisa).Professor, Dept of Criminal and Proced ural Law.
*
This article is based upon work supported financi ally by the National Research Foundation.
1
The facts in R v Gumede 1942 AD 398; R v Jacobs 1954 2 SA 320 (A); S v Jika 1991 2 SACR 489
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(E); S v Mjikwa 1993 1 SACR 507 (A); S v Colt 1992 2 SACR 120 (E). In R v Gumede 408, Tindall
JA explains the situation: ‘It is clear in my judgment that the confessions to the magistrate must be
regarded as substantive confessions, and, having regard to what happened before the magistrate,
as prima facie voluntary and made without inducement. At the same time, it is clear that the
previous experie nces of the accused while detained at the store must be consi dered in order to
ascertain whether the confessions before the magistrate, though prima facie voluntary, may in fact
have been induced by ill-treatment or undue inf luence.’
The adm issibil ity of s econ dary confe ssion s 465
confession (hereinafter also referred to as the derivative confession) . It can be
said that the secondary confession will usually be inadmissible when there is a
sufficient connection with the circumstances that caused the primary confession
to be made as a result of undue inf luence.
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The danger that undue influence could still be present at the time of making
a secondary confession is, however, not the only issue in determining the admis-
sibility of a secondary confession. T he mere fact that a primary confession was
made is of ten just as important in determining the admissibility of a secondary
confession. In most cases the accused would consider himself, or herself, bound
by the primary confession, and this would effectively deprive the accused of the
choice of whether to make a secondary confession and therefore render it
involuntary. In this way any undue influence that caused the primary confession
to be made is still indirectly responsible for the making of the secondary
confession. It often happens that because the accused is under the impr ession
that he or she had already let the cat out of the bag as a result of the first
confession, the prosecution is enabled to build upon the original wrongdoing.
Apart from ask ing whether a secondary confession was made without undue
influence, it is therefore equally important to ask whether anything happened that
caused the accused to believe that he or she was not bound by his or her primary
confession.
Secondary confessions have not been given much attention by either
commentators or the courts in South Africa. Cases that have considered the
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admissibility of secondary confessions have apparently done so by asking
whether the secondary confession was made without undue influence. Although
some cases have specifically mentioned certain f actors to consider when
determining the admissibility of a secondary confession, it can hardly be said that
these factors give a full picture of the issues involved when determining the
admissibility of secondary confessions. The purpose of this article therefore is not
only to point out and discuss the principle objective factors that would indicate
continuing undue influence as far as secondary confessions are concerned, but
also to consider the factors that would indicate whether an accused had made an
independent choice when he or she made a secondary conf ession. In other
In R v SGT [2010] 1 SCR 688 paras 63-64, Fish J explains in a dissenting judgment by the
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Supreme Court of Canada: ‘The confessions rule serves to exclude involuntary statements made
to persons in authority. The derived confessions rule is a corollary of the confessions rule. It
excludes statements that are so closely connected to inadm issible confessions as to be “tainted”
by association and, for that reason, inadmissible as well. The derived confession rule thus excludes
statements that, while not inadmissible when considered in isolation, are excluded because of their
temporal or causal connection to a nother statement found by the court to be inadmissible. This
occurs whenever “either the tainting features which disqualified the first confession continued to be
present or ... the fact that the first statement was made was a substantial factor contributing to the
making of the second statement”: R v I (LR) an d T (E) [1993] 4 SCR 504 at 526.’
The leading case in this regard dates bac k to 1942 – see R v Gumede (n 2).
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