Prepared by MWAKISIKI MWAKISIKI EDWARDS ‘@ TOPIC 4: CONFESSION & ADMISSION * A) CONFESSION "The term confession has been defined by different authors, statutes and as well as derived from a number of eases. * According to Wigmord confession is an acknowledgement of guilt in express words by the aceused person. + Also the word confession has been defined in the ease of SONGWE NGEDELELE vs. REPUBLIC”, as “4 confession i a direct acknowledgement of guilty on the part of the accused ... an admission a statement by the accused, direct or implied, of frets pertinent 10 the issue of tending, in connection with proof of other facts to prove his guilty, but of itself is insutticient to authorize a conviction.” * A Confession refers to words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence.* In SHANKAR V STATE OF T.N’, it was stated that a confession means; “A form of admission consisting in express words by the accused person of the truth of the guilty fact charged or some essential part of it, A statement that contains a self exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that is fo say, not caused by inducement, threat or promise Whether a confession is voluntary or not is essentially a question of fact.” * In the case of MATHEI FIDOLINE HAULE V R’. the Court of Appeal of Tanzania stated that; “A confession within the context of criminal law is one which admits in terms the offence charged. It is one which admits all the essential elements or ingredients of the offence. An admission of one or only some of the ingredients of the offence is not sufficient” "THE Wigmore, A Treatis onthe Anglo-American System of Evidence in Trial at Common Law, 8° Ed, vol 1 (01968) HCD No 178 “{Cap 6RE 2002] 3 ‘Tsea) 4 sec 47s [1992] TLR 148 at 151Prepared by MWAKISIKI MWAKISIKI EDWARDS In R v. Bampamiyki’, A statement should be regarded as a confession only when it contains ingredients of the crime with which the accused person is charged, so that the accused person could be properly convieted on his own plea Tracing back the time, before 1980 police officers of whatever rank were not authorized to take confession. As evidenced in the case of MKAREH vs, RY, the evidence adduced by the accused’s neighbor, a police corporal who testified that, the appellant called him and said, “Lhave killed, go in and see” and he showed him the dead body of his wife. It was alleged that this evidence was inadmissible because under Section 27 of The Evidence Act (before amendment) police officers were not allowed to take any confession, However, in the current perspestive, Tanzania Evidenee Act under Section 27 (1) provides that, “4 confession voluntarily made 10 police officer by a person accused of an offence may be proved as against such perso?” So according to this Section it admits the confession made to police officer when proved that such confession was voluntarily made. Then who is a police officer? As per Section 3°, police officer “means any member of the Police Force of or above the rank of corporal” With this regards and in respect of Section 27 (1)°, confession made to police officer proved to be voluntarily is admissible, Where the relevant confession made to a police ol then the rank of the said officer must be that which is prescribed by law. In the case of GERVAS KILONGOZI vs. R"” the appellant was charged and convicted with murder. The trial court based the conviction on a confession that the appellant made to a police officer Whose rank is not shown on the evidence. On appeal the conviction on confession was challenged as being on inadmissible evidence. It as undisputed that there was nothing on record to show that the police officer to whom the appellant made the confession was of the rank required. It was held that, Contession was inadmissible in evidence and that the case was not proved beyond - ssonable doubt’, For these reasons appeal allowed. §(1957) EA 473 “Qo71) HED 74(A.C) Tanzania Evidence Ast * ibid "° [1994] TLR 39 CAPrepared by MWAKISIKI MWAKISIKI EDWARDS * REQUIREMENTS OF A CONFESSION + The first one is that, such confession must be made to an authorized person. Section 27 (J) and Section 28" include police officer. justice of peace and magistrates respectively. Hence the | which provides the list of persons who can receive confession to confession made to other person than the above, will be invalid under the law + Second ingredient confession will be the valid if made freely and voluntarily. ‘Voluntariness of a confession is a key component in the admissibility of a confession. + A confession is not voluntarily made if it was induced by threat, promise or other prejudice held by the police or any other person in authority. Voluntariness of the confession is provided under Section 27 of The Evidence Act. + The provision of Section 29 of TEA is to the effeet that “No confession which is tendered in evidence shall be rejected onthe ground that a promise or threat has been held out to, the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be made” * The above provision is reflected in the case of JOSEPHAT SOMISHA MAZIKU V R™, the High Court of Tanzania stated that: While it is trite law, that the condition precedent for the admissibility of the confession, is its voluntariness, the said confession is not automatically inadmissible, simply because it resulted from threats, or promise; it is inadmissible, only if the inducement or threat, was of such anature as was likely to cause an untrue admission of guilt, see section. * It has been considered that the statement made after arrest in answer to repeated questions by police whom the accused might feel bound to reply could hardly be considered to be voluntary = This was the position in the case of R vs. IKOJOT"™ that it is reasonable while the accused making the confession, may be asked occasional question to keep the namative clear. + The accused should not however be asked the leading questions or cross ~examined on "" The Magistrates Couxt Act, Cap 11, RE 2002 “[1992]TLR 227 at 230, (917) ULR 261Prepared by MWAKISIKI MWAKISIKI EDWARDS * fos what he says. In the case of NJUGUNA AND ANOTHER vs. R' it was stated that, “Zr was incumbent upon the prosecution (0 prove that the conlession was voluntarily made and was not obtained by improper or untawfl questioning or other methods (Onus of proving if the confession was voluntarily made lies to the prosecution side, as pet Section 27 (2) of TEA. However, it is the duty of the court to examine with close care and attention all the circumstances in which the confession was obtained. The court has to examine so as to adhere the confession that was voluntarily made, if such confession was made out of inducement as per Section 27 (3). The term inducement has two main meanings and such ar Rear of prejudic®” ox “hope of advantage Scetion 27 (3) of the Evidenee Act provides that the confession should be induced by any threat, promise or any other prejudice. However, the inducement requires actual state of the accused mind and other factors In the case of DPP vs. PING LIN", it was held that, “ Zhe ses depends on the actual effect on the accused mind. Subjective considerations are also relevant where the Inducement proceeds thom a person who ts tn authority. However, the inducement must not be too vague. Id must potat to some consequences” ction 29 of the T However, provides for the exceptions of the voluntariness. Inducement is not in itself sufficient reason to reject confession, Such confession can only be rejected if it was made in such circumstances and in such nature which likely to cause untrue admission In the case of JOSEPHAT SOMISHA MAZIKU". In this case the court stated inter alia that, While it ts mite law that the condition precedent for the admissibility of a confession is tts voluntariness, a confession is not automatically inadmissible simply because it resulted thom threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admssion of guilt. Last ingredient which makes the confession to be valid is that it must be made by an accused person himself. However, there is the situation whereby the accused make the 2EACA SII "Tanzania Evidence Act, Cap 6, RE 2002 (1976) AC S74 * [1992] TLR 227 (HC)Prepared by MWAKISIKI MWAKISIKI EDWARDS confession against his co-accused. However no person can be convicted solely on the basis of the confession of co-aceused. In onder for a confession of co-accused to be admitted there are conditions to be fulfilled. © These conditions are: they must be jointly charged from the beginning to the end, the offence which was charged is the one which the co-accused confessed and must be accompanied by collaborated evidence. This was stressed in the case of ASIA IDDI vs Ree * A confession of an offence other than the one with which the accused is charged is deemed to be a confession for the purpose of that offence. E.g. A is accused of murder but he admits to manslaughter. The confession to manslaughter will be admissible to prove manslaughter. It will however not be admissible to prove murder. * In Bampamiyki s/o Buhile v. R", the accused had been charged with murder, whereby a house had been burnt down and two people died in the fire. The accused made a confession to a police officer that he had burnt the house. The Court of Appeal held that the confession was inadmissible in the murder charge @ THE LAW GOVERNING ADMISSIBILITY OF CONFESSION BOTH IN CAUTIONED STATEMENT AND EXTRAJUDICIAL STATEMENT. + Caution is a warning to a person that his answer to the questions may be used in evidence.” Cautioned statement are statement made by a person officer to a person suspected to an offence to be cautioned before any question put to him for the purpose of obtaining evidence which may be given to a court in a prosecution, such confession is admissible whether it was made before the arrest or after arrest in ease of a juvenile, must be cautioned in the presence of his guardian and unsound mind or handicapped person must be interpreted till understood thee matter. = Cautioned statement are given in the case of BALBISAIN JOSH.”, that whether that police takes a statements of the accused person he must caution him by saying that your not obliged to say anything unless you wish to do so, but what you say may be put in writing and given in evidence. °° [1989] TLR 174 HC Q957)EA 473 OSBORNS CONCISE LAW DICTIOINARY 18" ED AT PAGE 63 * (1951) 18 EA CA 208Prepared by MWAKISIKI MWAKISIKI EDWARDS Confession is extrajudicial statement when made by the accused person else where other than before the court, such a statement made under the person with authority or to the justice e of peace. The term embraced not only express confession of a crime but also those admission and acts of the accused from which guilt may be implied. It is sufficient to warrant a conviction. By starting with cautioned statements, the law goveming in Tanzania are the Evidence Act and The Criminal Procedure Act as shown hereunder: According to section 10 (3), section 57 which read together with section 58 of The Criminal Procedure Act™ proves for admissibility of confession made by an accused person to the police officer that is when a police officer makes an investigation .or interview to person .must record the statement in full Ianguage used unless it in all circumstances impracticable to do so and emphasis to made a cautioned statement to a person before he made the confession. Also under section 27(1) of The Evidence Act™ provides for the same admissibility of confession of cautioned statement that is a confession voluntarily made to a police by a person accused of an offence may be proved against that person, police officer must. be of or above the rank of corporal, as prescribed by thee law otherwise the evidence will be inadmissible, this is supported in the ease of GERVAS KILONGOZI VS Rin this, case it was held that the confession was inadmissible in evidence and. that case was not proven beyond reasonable doubt due to the failure to show the rank of a police officer On the other hand the law governing the admissibility of confession on extrajudicial statements are based on the Magistrate's Court Act and The Evidence Act. According to section 51 and 57 and 59 of The Magistrate’s Court Act™ provides that officer of district, town, municipal or city couneil are justice of peace who has assigned the power to hear, take and record the confession of a person in custody of a police and such confession is admissible. It further stated under section 28 of The Evidence Act” that a confessions which is freely and voluntarily made by a person accused of an offence in presence of the magistrate or justice of the peace is admissible as an extra [CAP 20 RE 2002] [CAP GRE 2007] 1994} TLR 39 [CAP 11 RE 2002] [CAP GRE 2002]Prepared by MWAKISIKI MWAKISIKI EDWARDS judicial statements. THE GENERAL RULE AS TO THE ADMISSIBILITY CONFESSION (CAUTIONED STATEMENT AND EXTRA JUDICIAL STATEMENT) + Voluntaries of a confession is a key component in the admissibility of any confession, therefore as a general rule a confession must be freely and voluntarily made as it is provided under section 27 and section 28 of The Evidence Act” that a confession voluntarily made to a police or justice of peace are admissible and shall be held to be involuntary if the court believes that it was induced by any threat, promise or other prejudice held out by the police officer or any other person in authority, this was supported in the case of SHIHOBE SENI AND ANOTHER VS R™ in this case thee court held a village chairman is person with authority under section 27(3) of The Evidence Act and therefore the confession was admissible as there were not induced by threat, promise or other prejudice. EXCEPTION TO THE GENERAL RULE There are other circumstances in which not every inducement has the efffect on confession involuntary and that confession accused by induced, threat or promise ean be admissible unless such inducement was likely to cause untrue admission of guilt of a person, this is provided under section 29 read together with section 30 of The Evidence Act” which states that confession made after the removal of impression caused by inducement, threat, or promise need not be rejected .this was held in the case of JOSEPHAT SOMISHA MAZIKU VS R”. ‘© When confession leading to the discovery of a new thing relates to the fact in issue is relevant as it was held in the case of JOHN PETER SHAO VS R"ithe court held that since an accused mentioned things stolen that hidden somewhere is admissible. The confession made as a result of a promise of secreey or deception regardless he was not wamed that he was not bound to make such confession is relevant and admissible under section 32 of The Evidence Act, the court may reflect to admit such confession made voluntary or rendered unfair to a person this was stated in the ease NAYINDA VS S[CAP 6RE 2002} [1992] TLR 330 *LOC.CIT * [1992] TLR 227 ° 1.998) TLR 198Prepared by MWAKISIKI MWAKISIKI EDWARDS R? In Deokinan vy R™, The police planted a friend of the accused in the same cell with the accused, to whom the accused confessed the crime. The friend then conveyed this to the police. The court held that this confession was admissible as it was not made after an inducement by a person in authority. In Naginda s/o Batungwa v R™, the Court however held that nothing in the section above negated the discretion of the judge to refuse to admit a statement when he thought that it was not voluntary ‘Also under section 33 of The Evidence Act™ provides that confession against co-accused when one of them confess by incriminating the other such confession will be admissible with certain caution, as it was supported in thee case of ASIA IDDI VS R® the court held that the evidence of a person who has an interest to serve needs corroborated, CRITICISM The admissibility of confession both cautioned statement and extra judicial statement is not final and conclusive to convict a person due to the fact that a person accused of an offence is brought before the court of law must be asked whether he disputes the a admissibility of confession. Once he repudiated or retracted a confession the court must conduct a trial within a trial in order to determine its voluntaries or admissibility and is where the prosecution side need to prove such confession beyond reasonable doubt, and when the court satisfies that a retracted or denied confession cannot support a conviction unless corroborated, as supported in the case of JACKSON S/O MWAKATOKA AND 2 OTHERS VS R’ Which states that as a matter of prudence corroboration is important any retracted or repudiated THE ASSERTION THAT ALL CONFENSIONS ARE ADMISSION & NOT THE VICE VERSA (1959) EA 688 (1969) 1 AC20 * (1959 FA, [CAP 6RE 2002] [1989] TLR 174 [1990] TLR 17Prepared by MWAKISIKI MWAKISIKI EDWARDS According to Avatar Sigh" a confession is defined as an admission made at any time by person charged with a crime stating or suggesting the inference that he committed that crime Seaton, J in Sangwe Ngedelele v R.” defined confession as the direct acknowledgement of guilty on the part of the accused. Admission is a statement orally or documentary which suggests any inference s to a fact in issue or relevant fact and which is made by any of the persons and in any circumstance" An admission is statement which suggests some inference as to the existence of a fact in issue or a fact relevant to the issue. In Sangwe Ngedelele v R, Seaton, J again defined admission as a statement of the accused direct or implied of fact pertinent to the issue and tending in connection with proof of other facts to prove his guilt, but of itself is insufficient to authorize a conviction The assertion that all confessions are admissions but not all admissions are confessions is true due to the fact that a confession is a direct acknowledgement of all elements in reference to @ commission of the crime. In other words the accused, accepts that he’she has committed the crime. An admission however, is the acknowledgement of certain facts of the erime but not in totality Confessions are admissions since both entail acknowledgement to the facts related to the commission of the offence. However, a confession strictly stipulates total acknowledgement of the guilt of the accused where as an admission stipulates partial acknowledgement of the facts in issue or some facts In criminal law, the standard of proof requires the prosecution to prove the guilt or otherwise of the accused person beyond reasonable doubt. Any acknowledgement of the facts related to the commission of the erime which proves the guilt of the accused beyond reasonable doubt is a confession. On the other hand, any acknowledgement of the facts in issue which does not prove the guilt of the accused person beyond reasonable doubt is an admission. The law of evidence 15 Ed, p.133 * (1968) HCD 298, 4°19 Tanzania Evidence Act * OpCit Avatar p 108 * 1968) HCD 298.Prepared by MWAKISIKI MWAKISIKI EDWARDS In Mustafa s/o Msumi v. R".where the appellant was convicted of stealing a leather pouch the accused admitted that he had picked up the pouch; Biron J in his judgment an admission observed that; .... Zhar the statement is admissible, as although it constitutes in that the appellant admitted that he picked up the pouch trom the car, it is not perse a confession to any offence...” From this case it is true to note that an accused person may merely admit his involvement in the offence but that does not merely constitute a confession. As Biron, J. suggested the statement “I have picked up the pouch’ would have suggested that he intended hand it to its owner of otherwise safeguard it for her. According to Avatar Singh, “one practical difference between the definition of an admission and a confession is that a statement which may not amount to a confession ‘may still be relevant as an admission’ The above contention may be interpreted to mean that a statement supposedly made as a confession, but does not entail total admission to all facts of the offence, or which does not draw the inference that the accused is guilty, may be accepted as an admission; in no circumstance, may a statement which entails partial admission of the facts in issue be accepted as a confession, the reason being that it lacks the superlative quality of a confession, which is total admission. Confession can be made to the following persons: Police officer as per S. 27 (1)", a magistrate, S. 28“ and S.3 (1) of the Magistrate Courts Act, and Justice of peace $.28”, Confession is used in criminal cases only and must be made voluntarily and the accused can be convicted if he confesses before the magistrate, in other circumstances it can be retracted or repudiated by the accused person. Admission is applicd in both criminal and civil cases and it’s made to any person voluntarily or otherwise. The accused may not be convicted if he/she admits to the magistrate but the whole statement containing the admission must be taken together, it is not binding if made in the point of law HCD (1970) p.69 4 cpaatAvata,. p 134 * Bvidenoe Act “Ibid * Bvidence ActPrepared by MWAKISIKI MWAKISIKI EDWARDS ‘ CONFESSION OF A CO-ACCUSED & ACCOMPLICE ¢ = INTRODUCTION Also it has been defined to mean @ fink admission of guilty and in practice many confessions by suspect do consist full acknowledgement of commission of an offence” A confession of a co-accused is that em Avo or more persons are being tried jointly for the same olfence or for different offences arising out or of the same transaction and a confession of the offence or offences changed mate by one of those persons allecting himself and some other of those persons is proved, the court may take that cont into consideration against that other person” © Co-accused is accused person charged with other accused person on the same charge on indictment, + A accomplice is a person who in one way or another has participated in commission of an offence but the prosecution has not decided to charge him, and he /she has summoned in court to testify against charged person ‘+ Accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice * A confession by one defendant is not evidence against another as was held in the case of R v Rhodes “, thus a man’s own confession is receivable against him and judge should warn the jury that the statement of one defendant not made on oath in the cause of the trial is not evidence against another but if one of two or more co defendants gives evidence what he s: becomes evidence for all purposes of the case and is receivable for or against the other or others. **Denis,(2006) Law of Evidence p 209 * Opeit 33, © Thid s 142 %(1959}44 Cr AppR 23Prepared by MWAKISIKI MWAKISIKI EDWARDS According to section 33 (2), a conviction cannot solely be based on the confession of aco-acoused. There must be other evidence. In the case of Asia Iddi v. R®, the appellant was convicted on the strength of a co-aceused’s confession together with independent testimony of witnesses who were in one way or another involved in the transaction On appeal the court held that, convietion cannot be based solely on a confession of a co-accused. There must be, in addition, other independent testimony to corroborate it In the ease of Bushiri Amiri v. R™, the court said that, the evidence of a co- accused is on the same footing as that of an accomplice, that is it is admissible but must be treated with caution and as a matter of prudence, would require corroboration and that it would be unsafe to found a conviction of the appellant on the uncorroborated evidence of the co-accused. Conditions of confessions against co-accused, is that (wo must be jointly charged for the same offence or arising out of a crime, Confession must affect himself before a co- accused and lastly corroboration. REASONS FOR ACCOMPLICE EVIDENCE TO BE CONSIDERED WEAKEST EVIDENCE The accomplice evidence is considered to be weakest evidence, due to the following reasons. Hearsay rule -the rule prevents a party adducing evidence of a statement made by a person otherwise than while giving oral evidence in the proceedings as evidence of facts stated unless it follows the need of section 62 of Evidence Act™ Unsafe to convict in some cases, in some circumstances the accomplice evidence is generally unsafe for convietion as in cases where it self needs corroboration as in the ease [1989] TRL “[1992] TLR 65 “(Cap 6 RE 2002] 5.62Prepared by MWAKISIKI MWAKISIKI EDWARDS ‘a of Milinga v.R™ where it was held shat the evidence of a witess requires corroboration the evidence of another witness which itself requires corroboration cannot constitute comroboration. It is a narrow evidence of the standard of proof for conviction this can seen in the case of Ally Fundi v. R°* where it was held that he confession by the accused can only be used to lend assurance to other evidence against his co accused, evidence which falls short by 4 very narrow margin of the standard of proof necessary for conviction. A co-accused, like the prosecution will not be able to adduce evidence of an accused's confession if the confes in Was obtained by oppression or anything likely to render such confession unreliable” ‘The capacity of co accused confession, The co accused plea of guilty should be proved as under laid down under $.33 (1)*, that the plea should be Proved this is further explained in the case of Said Khatibu v.R™ where by the court held that // 12 not permissible 10 invoke the provisions of 8.33 (1) of Evidence Act against the appellant because the plea of guilty of the co accused was not proved. The court went on saying that the use of word. proved in s.33 (1) of evidence Act would tend to suggest that evidence must be adduced to establish that plea was made hence in this case it was not permissible to invoke the provisions of s.33 (1) of the Act against the appellant because the plea of guilty of co- accused was not proved ‘The motive in the co-accused’s confess , When the co accused confession is drove by improper motive it should he careful handled as it was a case in the case of Jonas Nkinze VR the court held that where by the co accused's evidence implicating the co accused 1s tainted by improper motive such evidence should be received with caution, PROCEDURES FOR PROSECUTION TO TAKE ACCOMPLICE EVIDENCE O)H CD 305 ** [198S]TLR 392 © Deniss.12006) Law of Bvidence 4 © [Cap 6 RE 2002] © [1984]TLR 280, *°[1992}TLR 213Prepared by MWAKISIKI MWAKISIKI EDWARDS Under common law the House of Lords has recognized the following as being accomplices, and that the three classes should not be extended: Person who takes part in the offence, or who aids, abets, counsels or procures its A handler at the trial of the actual thief; Parties to crimes, identical in type to the offence charged, evidence of which has been admitted as proving system and intent and negativing accident Davies v DPP “'An accomplice must be capable in law of committing the offence, e.g. a child under 10 years old can never be classed as an accomplice. There are occasions when it may be appropriate not to bring proceedings against an accomplice, even though there is sufficient evidenee, For example, the offence might be serious and the involvement of the accomplice may be minor There may also be circumstances where itis in the public interest to use an accomplice as prosecution witness rather than prosecute him or her Procedures of calling accomplices as prosecution witnesses Before an accomplice ean give evidence for the prosecution, he or she must have never been charged in the proceedings or, if charged, must have Pleaded guilty, an accomplice should normally make a witness statement before giving evidence, It should not be signed, if he or she is also being prosecuted, until a guilty plea has been entered. A draft may, however, be prepared beforehand Been acquitted, the accused should be released and set free of conviction and hence be with the funetion of assisting the prosecution for evidence. Had the case against him/her discontinued, again the trial against him should be stopped to enable him get enough time and freedom to assist the prosecution side. The evidence of an accomplice may be useful in the following situations * L19sq) ac a78)Prepared by MWAKISIKI MWAKISIKI EDWARDS + To corroborate other witnesses on minor or peripheral issues: + To provide direct evidence on a point in respect of which the other available evidence is circumstantial; * To corroborate other evidence which in law requires corroboration or where a corroboration warming would be given; + Where the absence ofa witness may cause comment. + There is no rule that an accomplice should be sentenced before he or she gives evidence. ‘That is a matter for the discretion of the trial judge. + An accomplice who is called to give evidence who has not previously been required to plead guilty to his own part in the offence(s) may incriminate himself or herself in the course of their testimony. Where this happens and cither (a) he has been treated by the prosecution as a witness and told he will not be prosecuted, or (b) he has been a party to a written this fact should be drawn to the attention of the court. The court can be told that the witness will not be prosecuted on the strength of truthful evidence that he or she gives in the trial RETRACTED AND REPUDIATED CONFESSION * INTRODUCTION + It is now general rule of evidence that, it is dangerous for the court to draw inference basing on repudiated or retracted confession. However, some jurists have been arguing that, some flexibility is required in its application especially when the court wams itself of the dangers of basing conviction on such confession. ‘Basing on this argument, it our hope that the discussion below will cover all important principles surrounding application of this rule. * MEANING OF TERMS CONFESSION, The term confession has been defined under Section 3 (1) of the Evidence Act to mean words or conduct or a combination of both words and conduct containing an admission of all the ingredients of the offence with which its maker is charged. In other words, it is a ‘ap 6, RE 2002Prepared by MWAKISIKI MWAKISIKI EDWARDS statement which admits in terms that the person making the statement has actually committed the offence. ‘The term confession had been also defined in eriminal matters in the case of MATHEL F. HAULE vs. R®. the court stated that, “4 confession within the context of criminal law is one which admits in terms of the offence charged. It 1s one that admits all the essential elements or ingredients of the offence. An admission of one or only some of the ingredients of the offence ts not sufficient.” + The rationale for this is that, confession is admissible on the basis that, what a person has said against his or her own interest may be presumed to be true. * REPUDIATED CONFESSION ‘+A repudiated confession is a kind of confession that an accused person contends that, he never made any statement. * Repndiated confession occurs where the accused maintain that he never made the confession at all, or that the record, probably through faulty translation, does not represent what he actual said. In the case of repudiated or denied confession, provided that the court was satisfied that the accused did in fact made the confession, it would be reasonable to infer that it was denied because of its truth and corroboration would not normally be necessary. «RETRACTED CONFESSION ‘* Rettacted confession arises when an accused person admits that, he made a statement recorded but declares that he was forced or induced to make that statement or that what is sought to be produced in court is not what he said, This is per TUWAMOI vs UGANDA®. Where it was stated interalia that The present rule then as applied in East Africa, in regard to a retracted confession, is that as a matter of practice or prudence the trial court should dircet itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular, but that the court might do so if it is fully satisfied inthe circumstances of the case that the confession must be true.” ‘© Generally this means that, either an accused person is totally denying to say anything and, (1992) TLR 148 (1967) BA 84Prepared by MWAKISIKI MWAKISIKI EDWARDS or seeks to recant or take back his or her own statement arguing that it is not a voluntary one, ‘ GENERAL RULE OF REPUDIATED AND RETRACTED CONFESSION AND DANGERS BEHIND IT. = Itis the general rule of evidence that it is dangerous to act upon repudiated or retracted confession. The essence of this rule being: (I) Irregularity that may prejudice the accused person (ii) That if repudiated or retracted confession is generally accepted without ascertaining their reliability, it can lead to the failure of justice, = This principle was given in the case of M’MURAIRI s/o KAREGWA (Appellant) vs. REGINAM (Respondent)®, the court said the following: “Where the trial court fails to hold a ‘trial within a trial a result of which the accused person is forced to give evidence generally and has thereby been prejudiced, the effect may be that, not only can not the disputed statement be lookedat, but that the conviction ean not stand.” * This position was also discussed in the case of MICHAEL LUHIYE vs. R®, the court said, + “Weis abvays desirable to look for corroboration in support of a confession which has been retracted before acting on such confession to the detriment of an accused person.” = This position was also discussed in the case of MICHAEL LUHIYE vs. R”, the court said, * ‘It 8 always desirable to look for corroboration in support of a confession which has been retracted before acting on such confession to the detriment of an accused person.” * It is therefore our observation on this part and with regard to our case that, where the prosecution applies to tender a confession, then the accused must first be asked whether he disputes the admissibility of confession or not. © But trial court shall accept whatever confession brought before it be it repudiated or retracted. The only qualification required here is caution of these dangers, which if not (1954) 21 BACA 262 (1994) TLR 18 (1994) TLR 181Prepared by MWAKISIKI MWAKISIKI EDWARDS touching the root of the case, the court can proceed to draw inference. WHEN AND TO WHAT EXTENT THE COURT CAN ACT UPON REPUDIATED OR RETRACTED CONFESSION? ‘The question may arise that at what point in time the court may find it safe to act upon repudiated or retracted confession without occasioning the dangers discussed above. The answer to this question had been long time settled. Therefore the following are the circumstances which the court must take into account. ° ‘THE CONFESSION IS LEADING TO DISCOVERY OF THE SUBJECT MATTER This principle was laid down in the ease of NANYALIKA vs. R®, in this case the appellant made statements to a police officer leading to a discovery of several stolen articles. On appeal, Biron, J. said, “Zhe appellant showed the police the spot where the complainant's stolen box was recovered and also his leading the police 10 the laundry man from whom the complainant stolen shirt was recovered, is admissible.” + WHERE REASONS FOR RETRACTION ARE REMOTE Section 29 of the Evidence Act® is out rightly stating that confession tendered in evidence shall only be rejected where inducement or threat made is likely to cause an untrue admission of guilty. This means when inducement or threat complained about are far remote from a confession itself, and no longer the motive force behind such confession, the court can proceed to act on it This rule was also supported by Katiti, J. in the ease of JOSEPHAT 8. MAZIKU vs. R®. among other things, the Judge said, “Where you have threat and a confession far apart without a causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement, voluntary and admis WHERE CONFESSION IS NOTHING BUT BE TRUE his position was demonstrated in the case of HEMED ABDALLAH vs. R", the court said inter alia that, “Once the trial court warns itself on the da ible” pects of basing a conviction * (971) HED 314 © Cap6,RE 2009 * (1992) TLR 227 " (1994) TLR 72Prepared by MWAKISIKI MWAKISIKI EDWARDS 00 uncorroborated retracted confession and having regard to all the circumstances of the case, it 13 satistied that the confession is true it may, conviet on such evidence without any further ads.” + Therefore, in this case the learned trial Judge found no danger in founding a conviction on the confessional statement because he was satisfied that the confession was true, The same reasoning was maintained, in the case of HAMIS ATHUMAN AND TWO OTHERS vs. R”, where the court said, Conviction of the appellants was right as it was based on the repudiated or retracted confessions of the appellants which the tial court found to be tre ©The court added that, although the appellant in their defenses at the trial repudiated or retracted their confessions, once the trial court found those confessions to be true, it is entitled to base convietion on them ‘© We should summarize this part by maintaining that, there is not rule of law or practice making corroboration of a retracted confession essential, corroboration is desirable and powerful in the rule of evidence, but if the court is fully satisfied that the confession can not but be true there is not reason in law why it should not act upon it. Furthermore, is that, if the disputed confession is giving factual situations, leading the court to the fair decision or confession itself is negligible in the face of it, corroboration and such circumstances will save no purpose. Therefore court can proceed to convict * PRINCIPLES TO FOLLOW WHERE THERE IS A DANGER TO ACT UPON REPUDIATED OR RETRACTED CONFESSION * CORROBORATION * According to Osbom’s Concise Law Dictionary”, “comvboration means an Independent evidence which implicates a person accused of a exime by connecting hina with ite that is evidence which contians in some material particulars not only that the crime has been committed, but also that the accused committed it * This means that, if there is an independent picce of evidence connecting the confessor with the offence alleged, the court can convict This principle was emphasized by the court of appeal of Tanzania in the case of TADEI MLOMO * (4993) TLR 10 ® Osbom’s Concise Law DictionaryPrepared by MWAKISIKI MWAKISIKI EDWARDS AND OTHERS vs. R™, the court said, “Zhen? was corroborative evidence 10 support the conviction of the third appellant on the basis of the repudisted confession of his co — aceus * In this case we have leamed that, in the case where more than one person are jointly charged, the corroborative evidence ineriminating one aceused can be used as against the remaining accused person. This means either Way court procedures remain the same where rights of accused persons are not prejudiced © TRIAL WITHIN TRIAL nvict on a retracted or + It is now a trite law as demonstrated above that, a court may © repudiated confession even without corroboration, though such confession must be received with great cautions + But before the inference is drawn and taking in regard all circumstances of the case, the court find it unsafe to continue with the proceedings, it ean hold trial within a tral ‘This means that, the main case will be left pending, prosecution and defendant will have to give circumstances in which the retracted or repudiated confession was obtained Subsequently the court will have to make ruling on whether or not the confession was made and if made it was voluntary or not. + This argument was discussed in the case of M’MURAIRI s/o KAREGWA vs. R (supra), where the court emphasized that, where the trial court fails to hold trial within a trial as a result of which the accused is forced to give evidence generally and has thereby been prejudiced, the effect may be that, not only can not the disputed statement not to be looked at, but that the convietion can not stand. ‘Under the circumstances of the above case. there is really no room for any doubt on the point that the proper procedure is to conduct what has been conveniently termed as trial within trial, In regard to our question it means here that, this is the point where the general rule prevails, The court can not proceed unless the dispute over repudiated or retracted confession is resolved To make more clearly however, in the case of JOHN PETER SHAYO AND OTHERS vs. R™, the Court of Appeal of Tanzania had made clarification on how trial within trial * (1995) TLR 187 (1998) TLR 198Prepared by MWAKISIKI MWAKISIKI EDWARDS should be exercised. The court said inter alia that, “4 aa/ within wial is a practice which only obtains in a enieminal trial held by the High Court where a Judge sits with assessors” it appears that, this practice is not statutorily provided but rather had been developed through case law. “Ziva/ within tial will be conducted on the grounds which would appear to the court reasonable. Ushows that the word ‘appears’ imports judicial discretion. It means that the court has to decide the preliminary question of admissibility or otherwise of the confession on a consideration of the evidence and surrounding circumstances. The court has to determine the sufficiency of the inducement, threat or promise as aftording grounds reasonable to conduct trial within a ariale”® B) ADMISSION THE LAW RELATING TO ADMISSION IN CRIMINAL & CIVIL CASES "MEANING OF ADMISSION The word Admission has been defined under Section 19 & 20 of the Evidence Act” as a statement oral or documentary which suggests any inference as to a fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned. Also admissions are statements oral, written or inferred from conduet, made by or on behalf of a part to a suit, and admissible in evidence, if relevant as against his interest According to Black’s Law Dictionary, admission is a voluntary acknowledgement jstence of certain facts which are inconsistent with his made by a party of the ex claim in an action. For instance a person is sued for the recovery of a loan and there is an entry in his account book recording the fact of the loan, that is an admission on his part of his liability or, if he makes any statement to the effect that, “he does owe the money” that will also be an admission being a direct acknowledgement of liability. * ESSENTIALS OF ADMISSION The necessary ingredients of proper admission includes the following; Rantalal & Dhiajlal, “The Law of Evidence’ 7 Cap 6, RE 2002 " PKivuyo & F.Sameja, Evidence Simplified,Prepared by MWAKISIKI MWAKISIKI EDWARDS + It must be clear and certain; voluntarily made, that is it should be specific and this not be vague. It follows therefore that ; the onus of proving an admission is upon the person who wants to rely upon it, + Admission should be taken as a whole and not in parts. For example: where one makes a statement to the effect that he owes someone money and later in his statement alleges that he had returned half of it, the whole statement must be taken into consideration. * TYPES OF ADMISSION + According to Sakar”, Admission can categorized into several classification; as Formal and Informal admission, Judicial and Extra-judicial admission, Express and Implied admission, Oral and Written admission + Extra-judicial Admissions (Informal Admissions) are informal admissions not appearing on the record of the case, Extra-judicial admissions are also binding on the parties against whom they set up. + However unlike judicial admissions they are binding only partially and not fully. except in cases where they operate or have the effet of estoppel in which case they are fully binding and may constitute the foundation of the rights of the parties + Judicial Admissions (Formal Admissions) Judicial admissions are formal admissions made by a party during the proceedings of a case Judicial admissions are conclusive and fully bind the party who makes them. Eg where accused admit certain facts in his written statement of defence or where a party toa suit admit to settle a particular issue outside a court or never to raise it in court + Implied Admissions may be implied by conduct. E.g. in a civil suit where the landlord increases the rent and the defendant is sued for increased rent, if the defendant did not object to the increased rent and he paid a few installments later on if he wishes to challenge the increased rent, he may be estopped from doing so because he admitted the fact by his conduct. See also section 70 of the Law of Contract Act Cap. 345 Express Admissions These may be oral or written made to attorney or counsels. They may be contained in documents eg. letters, depositions, affidavit, plaints, ® Sakar, The Law of Evidence, pgPrepared by MWAKISIKI MWAKISIKI EDWARDS deeds, receipt, ete THE LAW RELATING TO ADMISSION IN CIVIL AND CRIMINAL MATTERS. The issue of admission has been discussed by different laws in Tanzania, This includes The Law of Evidence Act, Cap 6, RE 2002, The Civil Procedure Code, 1966 No 49. The Criminal Procedure Act, Cap 20 R.E 2002, The Law of Contract Act, Cap 345, R.E 2002, ‘* Hereunder is the discussion on the law relating to admission in civil and criminal matters in Tanzania. = Admission in civil matters has been discussed under Section 20 (1)**. The Section states that statement made by a party to the proceeding or by an agent to any such party who the court regards in the circumstances of the case as expressly implied authorized by him to make them, are admissions © This Section deals with admission on a party to the proceeding either plaintiff’ or defendant is bound by his statements or admissions in civil proceedings. + Also parties to the record who seem to have interest in the matter their statements may be received as admission having the same weight as if they were made_ by the parties in the record, parties in the record here means those parties whose names appear in the record, Sometimes though not in record are taken as parties «For example:- Beneficiaries of an Estate are parties in the record although their names does not appear in the record. Their statements are called “Cestu” gue trust” and can be received as admission if they qualify to be admissions. Persons jointly interested in a suit a statement by one of them is an admission against himself and the other or others as the ease may be, provided the admission is in respect of the subject matter of the dispute and it is made when the person making it is interested in the suit. Under this circumstance therefore parties to the suit are the makers of statement and the burden of proof rely on their statement. It hence becomes a best evidence against the party to the maker. * Section 21 deals with statements by a person whose position or liability is necessary to prove as against a party to the suit, This Section gives a general rule that an admission must be made by the stranger to a suit is not admissible in evidence. “Cap 6, RE 2002 ' Cap 6, RE 2002Prepared by MWAKISIKI MWAKISIKI EDWARDS + The Section provides an exception to the effect that the liability of a party to a suit depends on the existence of the liability of another person who is not a party to a suit and who also is not in any way a representative of a party to the suit Though there is a general rule but exception to the general rule is that a stranger’s admission in civil suit may be admitted, This can be illustrated by the following example: Juma undertakes to collect rent for Alli; Alli sues Juma for not collecting rent due from Yusufu, Juma denies that rent was due from Yusufu to Alli, A statement by Yusufu that he owe Alli rent is an admission and is admissible as against Juma, if he denies that ‘Yusufir owed this rent. ‘Also statements by agent are admissible against their principals on ground very similar to those governing the relations between partners as discussed above. The same is provided under The Law of Contract Act’ under Section 70. = Section 22® deals with statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute. This Section provides the second exception to the general rule that an admission of a stranger ean not be given in court against the party for suit or proceeding. "The rationale is that when a party refers a matter in dispute to somebody that what the referred person will say and adopt will be said as his own statement. This is the same as a person who has referred to a document and when such document is produced turned against him, he will not be allowed to object as it was explained in the case of SOUTH. INDIA CORPERATION LTD. Vs. H.S. STANLEY & SONS LTD™, it was held that, the original certificate was however admissible as an adm: jon by plaintiff, Section 20 of the same (Indian Evidence Act) which applies to both Oral and Written statements, provides statement made by person to whom a party to suit has expressly referred for information in reference to the matter in dispute are admissions. + Then Section 23 of the same Act provides two important circumstances under which admissions can be admitted these are: Cap 343, RE 2002 Cap 345, RE 2002 (1967) HCD 168Prepared by MWAKISIKI MWAKISIKI EDWARDS (a) The first rule is that an admission is generally relevant when it is proved against the person who made it or his representative in interest. (b) The second is that an admission can be proved by or on behalf of the person who made it this Section provides three exceptions to the general rule; that an admission can be proved by the maker. The exceptions are stipulated in Section 23 (a) (b) and (¢) of the same Act. ‘+ Therefore, it specifies three instances in which exceptions are permitted to the general rule that admissions are only relevant and admissible when they are against the interests of the maker, such Section 23 (a) provides that, if a statement made and that statement is, in a nature that if the maker of that statement was dead then that statement will be qualified as evidence in an activity between third parties under Section 34 of The Evidence Act which says statement of persons who ean not be called witness ‘Also, Section 23 (b) provides that when a statement given to court as an admission is one Which relates to existence, The statement was made at the particular period when the state of mind or body was in existence. The statement must be tested whether it is true and if found true may be admitted even if it is in favor of the maker and is normally applied to common sense. Also paragraph (b) of the same Section, under this statement given in court is relevant other than as admission, it permits the court to admit a statement which is not qualified to be admitted as an admission but in some other Sections of the Evidence Act such statements may be admitted. ‘+ Therefore, Section 24 of this Act emphasizes on admissibility of admissions on civil matters. This Section says oral admission on the contents of documents are not relevant unless the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document or genuineness of the document is in question. The rule laid down by this provision is that the content of document can not be proved by oral admission unless the party proposing to give such evidence can show that he or she is entitled to give secondary evidence or the genuineness of the particular document is in question, However, the Section does not bar the reception of admissions which the parties or their agents agree to make the hearing. Section 25 of the same Act is of the position that in civil cases no admission may be proved if it is made on the express condition or in circumstances which it ean be inferredPrepared by MWAKISIKI MWAKISIKI EDWARDS that the parties agreed the evidence of it should not be given. Parties therefore in civil suit for the sake of putting an end to litigation may make admission of liability under express or implied condition that evidence should not be given. * In such cases is irrelevant and inadmissible in evidence. In our assessment this rule is strictly confined to the case where there is a dispute or negotiation and proposals are made for an amicable settlement in order that admission is lad down under this provision there must be an express condition to the effect or in the absence of it there must be circumstances that provision does not, however exempt advocate to give evidence where he is required to do so under Section 137 of the Evidence Act * The rationale of this rule is that if parties were to be after wards prejudiced by their efforts to compromise it would be difficult to convince parties to reach an amicable settlement of dispute. The essence of an offer to compromise is that the party making that offer to is willing to submit to a sacrifice and to make a confession. * Section 26 of the Evidence Act cements that admissions are not conclusive proof of the matter admitted but they may operate as estoppels. Under this Section the following has been evaluated: = That the Section admits that an admission docs not constitute a conclusive proof of the facts admitted. It is only a prima facie proof. The expression “conclusive proof” as defined under Black’s Law Dictionary means that when a fact has been conclusively proved the court shall not allow evidence to be given for the purpose of disproving it. An admission being not conclusive proof of the fact admitted evidence can be given to disprove it but until evidence to the contrary is given, an admission can safely be presumed to be true. + Also a judicial admission operates as a waiver of proof that is to say it a proof of the fact admitted and no further proof of the fact is necessary through the court in its discretion may require further proof. ‘Not only that but also it is our observation and evaluation that under civil matter on the issue of admission under this Section, Estoppel of the party can be admitted, This is where an admission operates as an estoppel. The party admitting the fact will not be allowed to go against the facts admitted, An estoppel will arise under Seotion 115 of thePrepared by MWAKISIKI MWAKISIKI EDWARDS Evidence Act™. This Section reads as, “In civil proceedings when any thet is especially within the knowledge of burden of proving that fa fs upon hin’. ‘+ Moreover, the law relating to admission in civil cases (matters) is also provided for under the provisions of Rule 1 ~7 of Order XII of civil procedure Act, cap 20 RE 2002. Under this Order, It provides for various circumstances under which parties to the suit may make admission, Among the other thing a party may give notice of admission, notice to admit documents and notice to admit facts In oriminal matters a party to a proceedings (an accused person) is bound by his statements or admission, In criminal eases admission may be made when an accused person makes a statement to which suggests that he did the act for which he is facing the charge © An admission in criminal mates is restricted to the commission of the act and does not extend to the question of criminal intent, due to fact that an admission of the commission of the act, (Aezus Reus) plus the criminal intent (Meas Rea) is called confession. Illustration: If *A° said that he killed °Y” that is an admission, but if “A” said he killed °Y" intentionally that is a confession. + Therefore when the statement of the accused person does not qualify as a confession, it may not be received in Evidence as an admission but is not sufficient to constitute convietion for the charged offence as it was pointed out in the case of MATHEI FIDOLINE HAULE vs. REPUBLIC, among other things court held that, an admission of one or only some of the ingredients of the offence is not sufficient to constitute conviction for the charged offence. ‘+ In criminal matters the accused person’s plea of guilty to the court charged with ean be used as evidence against him as an admission, This was observed in the case of SAFIEL MRISHO vs. REPUBLIC” where the court stated that, words spoken by an accused in his plea count can be used as evidence against him. + The Jaw relating to admission in civil and criminal matters are said to be the best * Cap 6, RE 2002 (1992) TLR IS (2984) TLR 151Prepared by MWAKISIKI MWAKISIKI EDWARDS evidence against the party making it and this is due to the fact that what a party himself admits to be the best evidence and the facts admitted is taken to be truc until the presumption is rebutted. * QUESTIONS FOR FURTHER REFLECTION © “Generally it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration of the ircumstances, is satisfied that the confession must be true; However once the trial court wars itself of the danger of basing a convietion on uncorroborated retracted or repudiated confession and having regard to all the circumstances of the case, it is satisfied that the confession is true, it may convict on such evidence without any further ado.” Discuss the applicability of this assertion. + Admission is said to be the best evidence against the party making it and, though not conclusive, shifts the onus to the maker on principle that what a party himself admits to be true may be reasonably presumed to be true so that until the presumption is rebutted the facts admitted must be taken to be true. In the light of this statement, evaluate the law relating to admission in civil and criminal matters in Tanzania, * (a) All confession are admissions but the reverse is not the case, Discuss + (b) Ndosi is charged with murder. In the course of investigation he says to the police officer "It is true that the knife found at the scene of crime and believed to have used in killing the decease is mine and it has been all along with my possession, Consider the admissibility of that statement during the trial