Statements in Presence of Accused
43. (1) When a statement has been made by another person in the presence of the accused that, if true, would incriminate the accused in whole or in part respecting the offence in question, and the statement was fully understood by the accused, then if it was also clear from the contemporaneous words, conduct or demeanour of the accused that he accepted the statement as true in whole or in part, the statement to the extent that he so accepted it may be treated as an unofficial confession made by the accused.
(2) Whether a statement described in subsection (1) should be deemed to have been fully understood and accepted by the accused as true in whole or in part is, as regards admissibility, a question for the judge advocate under subsection 42(8).
Evaluation of Unofficial Confession
44. (1) The decision as to the truth or falsity in whole or in part of an unofficial confession is exclusively a matter for the court.
(2) It is the duty of the court to consider whether an unofficial confession is to be believed or disbelieved in whole or in part in the light of its nature, the circumstances in which it was made, and other relevant and admissible evidence available.
(3) The court may convict on the basis of a complete unofficial confession alone, if it is satisfied beyond a reasonable doubt of its truth.
45. Subject to section 46, where two or more persons are accused of complicity in the same offence, the confession of any one of them is admissible evidence against that one alone, and not against the others.
46. (1) When two or more persons are alleged to have been parties to a common criminal plan or design, the words of one of them, apparently spoken or written as part of or in furtherance of the formation or carrying out of that plan, are admissible as evidence against the others as well as against the speaker or writer.
(2) Subsection (1) applies whether the charge alleges the conspiracy itself, or the commission of the offence planned, or the attempt to commit it, and whether an accused is charged singly, or jointly with the alleged co-conspirator whose words purport to incriminate them.
(3) The probative value of evidence admitted under subsection (1) is a matter for the court.
Evidence Discovered from Inadmissible Confession
47. Where an official or unofficial confession is inadmissible under section 40 or 42, but has led to the discovery of other evidence of independent probative value tending to show the accused guilty as charged, that evidence may be given or produced in the usual way by prosecution witnesses, and they may also tell the court that the evidence was discovered because of information given by the accused, but there shall be no other reference to the inadmissible confession.
48. Except as provided in these Rules, an accused person, when giving evidence, has no privilege against self-incrimination by his own statements.
Statements not Treated as Confessions
49. A statement that meets the conditions for admission in section 27, 28, 29, 30 or 60 need not also meet the requirements of this Division, though the statement is classifiable as an unofficial confession.
Other Kinds of Hearsay Evidence
Statements by Persons Other than Accused made in Judicial or Other Official Proceedings
(2) When an accused person has been tried by court martial and found guilty, but a new trial on the same charge has been ordered, evidence given at the former trial by a witness other than the accused may be quoted at the new trial when proved as provided by Division XII if it appears that
(a) the former witness is not available to testify at the new trial because he refuses to be sworn or to give evidence at the new trial, or he is dead, or insane, or absent from the country where the trial is being held, or so ill as to be unable to travel; and
(b) the evidence of the former witness was given in such circumstances that the parties had full opportunity to exercise their respective rights of examination of the witness.
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