GENERAL INTRODUCTION TO THE PROBATIVE VALUE OF ADMISSIONS IN CRIMINAL CASES IN TANZANIA
TABLE OF CONTENTS
CHAPTER ONE
GENERAL INTRODUCTION
.1
BACKGROUND TO THE PROBLEM .................................
.2
STATEMENT OF THE PROBLEM. ..................................
2
.3
LITERATURE VEVIEW. ................................................
3
.4
PURPOSE OF THE STUDY .............................................
5
.5
SIGNIFICANCE OF THE STUDY.......................................
6
.6
HYPOTHESIS ............................................................
6
.7
RESEARCH METHODOLOGY ........................................
6
CHAPTER TWO
ADMISSION IN CRIMINAL CASES AND THEIR PROBATIVE VALUE
2.1
Introduction..................................................................
7
2.2
Definition of the term Admission.........................................
8
2.3
Classification of Admissions..............................................
9
2.4
Condition of Admissions. .................................................
0
2.5
Persons who can make Admission. ......................................
1
2.6
To whom Admissions can be made. ......................................
3
2.7
Admissions Amounting to Confessions ..................................
4
2.4
Conclusion ...................................................................
23
CHAPTER THREE
THE PROBTIVE VALUE OF ADMISSIONS
3.1
Introduction .................................................................
24
3.2
Probative Value defined. ............................ ...................
25
3.3
Probative Value of Admission in Criminal cases. .....................
26
3.4
Conclusion. ...............................................................
27
CHAPTER FOUR
CONCLUSION
4.1
Conclusion.....................................................................
29
BIBLIOGRAPHY
GENERAL INTRODUCTION TO THE PROBATIVE VALUE OF ADMISSIONS IN CRIMINAL CASES IN TANZANIA
.1. BACKGROUND TO THE PROBLEM
The law of admissions forms part of the Evidence Act, 19671. Under this Act, admissions are statements, oral, written, or inferred from conduct, made by or on behalf of a party to a suit, and admissible in evidence, if relevant, as against his interest2.
It is undisputed that in its fact finding mission in civil and criminal cases the court has to look into the relevancy and admissibility of numerous pieces of information. In terms of the Law of Evidence Act, 1967 only facts, which are declared by the Act to be relevant and admissible, may be used by the court in arriving at a decision. The law provides for different kinds of information admissible as evidence and the modality of bringing before the court the said pieces of evidence. The law also provides the burden of proof lying on the respective parties. However, the law does not detail let alone describe the relative strengths of the various pieces of evidence. The weight to be attached to various pieces of evidence is not documented in any single manuscript or treatise.
Indeed in the absence of a comprehensive documentation of the admissibility of admissions in Tanzania law courts; the need arises for a scholarly research and discussion of the value and weight attached to different categories of admissions as part of evidence and thus how much it can influence decisions of the courts.
This paper constitutes four chapters. Chapter one comprises the research proposal. Chapter two is the general introduction of admissions under which different classification of admissions are dealt with. It also discusses the circumstances and conditions under which each type of admissions may be admissible in criminal proceedings. Chapter three dwells on the probative value of admissions. In this chapter the study analyses different types of admissions and their effect in criminal cases. The last chapter concludes the study.
.2. STATEMENT OF THE PROBLEM
Admissions which is a subject of this paper, include confessions but there is a distinction between general admissions and confessions. Admissions form a core part of admissible facts under the law of Evidence Act, 1967 and where relevant, their probative value or weight to be attached to this specie of facts is crucial but not provided for under the Act itself. The probative value of admissions is an area, which has not been specifically addressed by scholars in the subject of evidence. There is therefore, a gap in the existing literature regarding the evidential value of admissions. This is a problem to learners of law and even practitioners. It is the intention of the author to delve into the provisions of the Act and case laws and come up with a reliable text as to the probative value or weight to be attached to admissions in the courts fact-finding mission.
.3. LITERATURE REVIEW
As shown above our main concern will be on the probative value of admissions in criminal cases. The subject under discussion is rich in literature. What is lacking is a synthesis and analysis of the available information in the light of the subject under discussion.
The literature, which has so far come to our knowledge focuses on the categories of admissions, capacity of the party to make admissions and the condition under which admissions may be received as evidence. However, none of them has concentrated on the probative value of admissions in criminal cases in Tanzania courts of law.
Morris, in his book, Evidence in East Africa3, as the title suggests, is concerned with the provisions of Evidence Statutes of East African countries4. His discussion on admissions is rather general as it largely deals, with some important rules and principles of admissions. He concentrates mainly on one category of admissions that is 'confessions'5.
According to Cross, a party's statements adverse to his case may be received as evidence of the truth of their contents in civil and criminal proceedings6. Cross also deals with general principles relating to admissions in criminal and civil cases.
Phipson, in his work, "Phipson on Evidence"7, stresses on relevance of a statement in admissions generally. He observes that any relevant statement made by a party is admissible against his interest8. He makes his reference in the case of R v Erdheim9. His discussion on admissions like Cross is of general nature.
Sarkar in his book, Sarkar on Evidence gives a detailed account of admissions in both civil and criminal cases. He says admissions are statements, oral or documentary made by a party or a person connected with him, which suggest an inference as to the fact in issue or relevant fact10. The statement may be either a denial or admission of act(s) and that it may be addressed to any one. Sarkar's discussion is not centered on Tanzania but the Indian Law.
Wigmore, a celebrated jurist has written extensively on the law of admissions. In his work11, he asserts that the statements made out of court by a party-opponent are universally deemed admissible, when offered against him. He is also of the opinion that not only are admissions not exceptions to the Hearsay rule, but they satisfy the hear say rule. He bases the reason for admissibility of admissions on the analogy of contradictory or inconsistent statements by witnesses made on a previous occasion12.
Wigmore, like the other legal scholars/jurists cited above deals with admissions in general terms and not specifically on their probative value in criminal cases. Few other jurists/legal scholars have defined admissions and elaborated on their ingredients; and in what circumstances they are admissible. Their discussion of the rules does not differ from what the author of this paper summarized above. It is, therefore, deemed unnecessary to reproduce the same. The referred jurists/legal scholars includes Cowen Zelman13, Fields14, J.B. Thayer15, Shaukut Mahmood16, Taylor17 and Munir18.
On the basis of the above brief exposition of the works of most reckoned writers of the law of evidence applicable in common law countries, an attempt to review, and analyse the probative value of admissions as proposed in this paper is timely.
.4. PURPOSE OF THE STUDY
The purpose of this research is to document the probative value of admissions in criminal cases, which will provide handy reference materials to law enforcers and other researchers on this important branch of the law of evidence.
.5. SIGNIFICANCE OF THE STUDY
The study findings will bring into light the strengths and weaknesses of statements and acts or omissions amounting to admissions and offer rational recommendations which we trust will form a basis for further research in this area.
.6. HYPOTHESIS
This paper advances from a hypothesis that: admissions have high probative value and can at times form a basis of conviction in the absence of corroborative evidence.
.7. RESEARCH METHODOLOGY
The methodology and approach to be employed in the course of this study will be documentary information. The author will rely on various textbooks, journals, articles and case laws. In the course of doing this the author will use the Faculty of Law Staff Library, the University of Dar es Salaam Main Library and the High Court Library.
CHAPTER TWO
ADMISSIONS IN CRIMINAL CASES AND THEIR PROBATIVE VALUE
2.1. INTRODUCTION
The law of evidence is a set of rules and principles for effecting judicial investigation19. It is mainly concerned with the mode of proving facts in court of law, it provides also for qualifications of witnesses and various classifications of evidentiary matters which for one reason or the other are admissible or rejected. Admissions are part of evidence law.
Under the Tanzania Evidence Act, 196720 (hereinafter referred to as TEA) admissions are statements oral or documentary which suggest an inference as to ...
This is a preview of the whole essay
CHAPTER TWO
ADMISSIONS IN CRIMINAL CASES AND THEIR PROBATIVE VALUE
2.1. INTRODUCTION
The law of evidence is a set of rules and principles for effecting judicial investigation19. It is mainly concerned with the mode of proving facts in court of law, it provides also for qualifications of witnesses and various classifications of evidentiary matters which for one reason or the other are admissible or rejected. Admissions are part of evidence law.
Under the Tanzania Evidence Act, 196720 (hereinafter referred to as TEA) admissions are statements oral or documentary which suggest an inference as to a fact in issue or relevant fact, and which is made by any of the persons, in the circumstances mentioned in sections 20 -2221.
As a general rule admissions may only be proved against the person making it or his or her representative in interest. If an admission is made in favour of the maker it is not an admission22. In criminal cases there are two kinds of admissions; that is (i) confessions and (ii) admissions, which are not confessions. Confessions are voluntary acknowledgement of guilt by an accused while admissions, which do not amount to confessions, are those statements made by an accused direct or implied of facts pertinent to the issue and tending in connection with proof of other facts to prove his guilt. However, these statements alone cannot form a basis for conviction.
2.2. THE DEFINITION OF THE TERM ADMISSION
The Tanzania Evidence Act define the term admission as a statement, oral or documentary which suggest any inference as to a fact in issue or relevant fact, and which is made by any of persons, and in the circumstances mentioned under the Act23.
According to Osborn's dictionary24, admissions are statements, oral or written or inferred from conduct, made by or on behalf of a party to a suit, and admissible in evidence, if relevant as against his or her interest. They are either formal or informal. Admissions can also be classified into implied and express admissions.
Morris25 defines admissions as a statement oral or documentary, which suggests any inference as to any fact in issue or relevant fact, made by a party to proceedings or by his agent expressly or impliedly authorized by him to make such a statement.
Going by the above definitions, it can be said that save for formal admissions, all other admissions, are subject to corroboration in order to form a basis of conviction and that the nature of admissions is that it must always be in favour of the adverse party and thus against the interest of the maker. If a statement is made in favour of the maker it is not admission.
2.3. CLASSIFICATION OF ADMISSIONS
Classification of admissions depends on the selected context. One can classify admissions as formal and informal (judicial and quasi or extra judicial) similarly as express and implied.
An admissions is said to be formal or judicial when made in the pleadings for the purpose of litigation and thus conclusive, for example where a contract and breach are admitted. This is so because judicial admissions are not a means of evidence but a waiver of all controversy and, therefore, a limitation of issue26. In the case of Tsdale v R27 Vann, J. had this to say:
"The pleadings are before the court, not as evidence but to point out the object to which evidence is to be directed".
It is informal or quasi-judicial when made before or during the proceedings in which case they are not conclusive e.g. a plea of guilty or admitting a material fact.
Other types of admissions are express and implied admissions. Express admissions may be in form of uttered words of statements or written while implied admission may be through conduct of the party such as in the circumstances where an accused is required or expected to speak something but he or she decides to keep quite; the act of keeping quite may be associated with admitting a fact in issue28.
However, conduct in itself cannot be called an admission, as admissions are statements by persons oral or written. Such conduct may only serve as circumstantial evidence affording materials for inference.
2.4. CONDITION OF ADMISSIBILITY
As stated above, admissions are oral or written statements; when the admission is by words (oral) may be made in any form and any circumstances but such admissions are not conclusive unless they are successful denied or satisfactorily explained. In the case of R v Simon29 for instance, it was proposed on a charge of arson to call a witness to prove what the prisoner said to his wife on leaving the magistrate's room after committal, and the magistrate allowed the witness to be called because what a person is overheard saying to his wife, or even saying to himself, is evidence.
The admissibility of admissions rests on the theory of the adversarial system that a party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence except when speaking under sanction of oath. In determining admissibility the general rule is that preliminary questions, which are a condition for admissibility, are for the trial judge in his or her capacity as a judge of the law rather than as the trier of fact. If actual questions must be resolved, a voir dire may be required.
2.5. PERSONS WHO CAN MAKE ADMISSIONS
Admissions of parties to a suit or proceedings are the best evidence against the party making them. This works on the assumption that what is admitted by a party to a suit or proceedings must be presumed to be true unless the contrary is proved. In the case of Safiel Mrisho v R30 the appellant admitted the offence of driving the motor vehicle on the public road with defects. On appeal the issue was whether the accused's plea of guilt to drive a motor vehicle with defects could be used as evidence to the charge of causing death through careless driving. The court held that: "words spoken by an accused in his plea count can be used as evidence against him." However, a party to a proceeding may be affected by the admission of persons who stand in the following relations.
2.5.1. Party's representative
A party to a proceeding is bound by his or her own admission. However, statements made by parties in a representative character if made while sustaining that character are admissible otherwise they are not admissions. Thus a statement by a trustee is not admissible against him or her when sued as a trustee if they were made before he became a trustee31.
2.5.2. Statements by a Party to the proceedings or an Agent
In criminal cases, statements of agents are not evidence for the purpose of attaching criminality to the principal. Thus, a party can only be affected by statements of others if they have been expressly directed or assented to be bound by those statements. In the case of R v Harper-Taylor32 it was said that an admission by a counsel of the accused under the latter's instructions, but which the accused subsequently changed his mind was held to be inadmissible on the grounds of material irregularity.
Statements made by a party to the proceedings or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.
2.5.3. Referee
Statement made by someone whom a party has referred for information may be proved against him as an admissions concerning the subject matter of the reference.
Under s. 22 of TEA it is not necessary that such statements of fact should be within the knowledge of the referee. Information may be gathered by inspection of the record or any other means.
2.5.4. Person having pecuniary or proprietary interests to the party
An admission made by one of the partners or persons joined in a subject matter in a representative suit capacity may be admitted against the other partners whereas an admission made by a member of a particular company in a representative character will bind the company. Likewise an admission of one person having pecuniary interest made in a representative character will be binding upon himself and other partners jointly interested in the subject matter33.
2.5.5. Predecessor in interest
In terms of the Tanzania Law of Evidence Act, statements by persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admissions if they are made during the continuance of interest. Such statements must have been make while the maker held the interest otherwise the admission will not be relevant under the provisions of section 20 (3) (b) of TEA.
2.6. TO WHOM ADMISSIONS CAN BE MADE
In Tanzania the law34 specifies three classes of people to whom admissions amounting to confessions can be made. These are Police Officers of the rank of corporal and above, Justices of the peace35 and Magistrates36. But according to Sarkar37, confessions may be properly be made to any person or collection of body of persons, and that it is not necessary that the statement should have been addressed to any definite individual.
2.7. ADMISSION AMOUNTING TO CONFESSION
All confessions are admissions. As Sarkar38 correctly points out that "a statement made by an accused person to a police officer, belong to a class called 'admissions' and prima facie they are evidence against the maker but not in his favour; they are thus admissible." The issue of an admission amounting to confession is found in the case of Mustafa Msumi v R39. In this case the accused was convicted by the lower court for stealing. The accused stated to a Police Officer that, "he had not stolen the pouch but picked it from the car to find its owner". The lower court found it that such a statement amounted to a confession. But on appeal, the High Court held that:
"The statement is admissible as it constitutes an admission and it is not per se a confession because of the exculpatory facts which make it an admission and it is thus admissible as evidence under s. 19 of TEA"
Confessions made to a person other than those listed in the TEA are not prima facie evidence against the maker they ought to be proved in evidence.
Confession is an admission of guilt made to another by a person charged with a crime. It is admissible only if free and voluntary; that is, if it is not forthcoming because of any incident, or threat, held out by a person in authority. It must not be made under hope of reward (other than spiritual) or fear of punishment in a relation to the proceedings. The onus of proof that a confession was voluntary is on the prosecution40. Admissions may be obtained from a person by questions fairly and properly put to him by a police officer.
Phipson41 defines confession as a type of admission in relation to crime, that is, an admission from which reference may be drawn that the accused committed the crime charged. Fields42 defines confession in reference to the Indian Evidence Act 1872, that a confession is a type of admission made by a party against his interest. According to Wigmore43 a confession is an acknowledgement of guilt in express words by the accused person.
The earliest definition of confession was tested in the case of Swami V King Emperor44 where it was said, inter alia, that:
"No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed. A confession must admit in terms all the facts which constitute the offence."
Under the Evidence Act of Tanzania45 confession is defined to mean:
"(a) words or conduct or a combination of both words and conduct form 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 or
(b) a statement which admits in terms either an offence the person making the statement has committed the offence or
(c) a statement containing an admission of all ingredients of the offence with which its make is charged.
(d) a statement containing affirmative declarations in which incriminating facts are admitted from which when taken alone or in conjunction with other facts proved, an inference may reasonable be drawn that the person making the statement has committed the offence."
According to Mtana46 the above definition is a wider interpretation of the term confession, which is very clear, and that it covers all aspects pertaining to definitional approach for better administration of justice.
2.7.1. Classification of Confessions
Like general admissions, confessions also are of two folds; Judicial and Extra Judicial confessions. Confessions are judicial when made by the party before the magistrate or in court in the due course of legal judicial proceedings; it may as well be termed as a plea of guilt. On the other hand, Extra Judicial confession is that statement made by an accused else where other than before the magistrate in court.
Whether a confession is Judicial or Extra Judicial it may still in itself be sufficient to warrant a conviction provided it is voluntarily obtained47. Furthermore, like other admissions the effect of proof or confessions is to shift the burden of proof to the accused person to disprove the confession he is alleged to have made.
2.7.2. Rules of Confession
For a confession of an accused to be admitted in a criminal proceeding, it must be voluntarily obtained48. The requirement is absolute before the courts can accept the same as evidence and the onus of proof on the voluntariness of confession made is upon the prosecution49. In the case of R v Warricks Hall50 it was stated inter alia that:
" a confession forced from the mind by the flattery of hope or by the torture of fear, comes in so questionable a stage when it is to be given to it; and therefore it is rejected."
It can, therefore, be said that if the accused is induced to so confess his confession is valueless and thus inadmissible51. But under s. 30 of TEA a statement obtained in accordance with s. 27 TEA if in the opinion of the court the inducement has been removed, the confession is admissible. This was the case in Arikanjero v R52 where the Police Officer told the accused the following statement:
"you are going to say what you told me yesterday but I am not going to force you do so."
The court was satisfied that the removal was fully removed by the phrase "... but I am not going to force you to do so." Furthermore, a confession obtained by promise of secrecy or by false representation is also admissible. The rationale being that a self-harming statement as a result of a trick is good evidence. In Karuma Kamani v R53 the court held:
"the mere fact that evidence was illegally obtained should not make it inadmissible in that a court always has a discretion to disallow that evidence."
Section 32 of TEA provides for confessions otherwise relevant not to become irrelevant. The section covers the situation not contemplated in ss 27 and 29. If a confession is inadmissible under ss 27 and 29 does not become inadmissible by any of the reasons mentioned under section 32. Where someone is severely interrogated, it may in certain circumstances affect the voluntariness of a confession. In Rochin's54 case a Police Officer forcefully put a stomach pump into the prisoners through his anus to see whether the prisoner took drugs. The prisoner confessed that he was involved in a drug racket. It was held that "though the interrogation was done in a barbaric way, yet the confession was admissible as evidence.
Statements leading to discovery need not amount to confession provided that the facts discovered and statements made must be in relation to the crime and the accused person. The section insists that the fact deposed to as discovered must be relevant to the fact in issue and it must be concealed in the knowledge of the accused55. The court in Pulukuri Kottaya v R56 stated that it is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. A statement by an accused person in custody that "I will produce a knife concealed in the roof of my house" leads to the discovery of the fact that a knife is concealed in his house to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant."
This ruling was cited in approval in East African Courts in the case of R v Mgomboi57 where the court held that an induced confession leading to discovery of a fact in issue is admissible in evidence if the circumstances show that it must have been a confession of the truth of the facts in issue.
Section 33 of TEA provides for confessions made by co-accused. For a confession of an accused to be taken into consideration as against his co-accused person, the same must have been charged together. It can be for the same offence or different offences arising out of the same transaction. Mzavas J. (as he then was) in the case of R v Faru Mabuku and Anor58 following R v Wanging'ombe and Anor59 held that "the only way in which such a confession can be taken into account against the co-accused is an evidence. But such evidence is such that of an accomplice. ... it is unsafe to convict a person on an uncorroborated accomplice evidence"60.
Another case in which the condition under which a confession implicating a co-accused person can be taken into consideration was laid in the case of Sebastian Swai v R61 in the case the court held:
"(a) For a confession by an accused person to be proved as against a co-accused, the statement should be a confession of the offence charged and not other offences, which may thereby be disclosed and admitted by the confessing accused."
"(b) The confession must implicate substantially to the same extend as to his fellow accused and must expose himself to the same risk along the fellow accused persons otherwise will not be taken into consideration"
Taylor says that admissions and confessions are usually treated as exceptions to the hearsay rule, considering them as declarations against interest, and, therefore, probably true62. The rule against hearsay evidence aims at the rejection of evidence which is not direct; but a confession is evidence which is direct and admissible, and, therefore, cannot be excluded by the hearsay rule.
2.7.3. To whom confessions can be made
According to Sarkar63, confessions may be properly be made to any person or collection of body of persons, and that it is not necessary that the statement should have been addressed to any definite individual.
2.7.4. Retracted and Repudiated Confessions
More than often during the trials the accused person retracts or repudiates the confession alleged by the prosecution to have been made. In such a situation the court cannot act on them unless the statements are corroborated. In most cases this is done by conducting a trial within a trial and decide upon the evidence on both sides whether the confession should be admitted or not. This was discussed in the case of Tuwamoi v Uganda64 in which held:
"...a retracted confession is that as a matter of practice or prudence, the trial court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration ...".
2.8. CONCLUSION
We have seen from the above discussion that any relevant statement made by a party against his interest may be proved against him. We have also seen different types and classifications of admissions and the circumstances under which they can be received and acted upon by courts of law as evidence against the maker; as well as the types of people who can make admissions. In the next chapter we discuss the probative value of admissions.
CHAPTER THREE
THE PROBATIVE VALUE OF ADMISSIONS
3.1. INTRODUCTION
The probative value of an admission is dictated by the nature of the piece of information or fact admitted when taken in relation to the offence charged or a fact in issue. For instance, where the accused is charged of the murder of "A" and the relevant fact is whether he was at the scene of murder at the material time. A statement made by him that "I had to run away immediately everybody around suspected that "A" had died" is an admission. This kind of statement does not in itself establish the fact that the accused participated in the alleged murder. However, it has high probative value in the trial as it tends to establish that the accused was at the scene of the crime at the time "A" is alleged to have died. It is as good as a confession with regard to the relevant fact.
On the other hand where the fact in issue is whether the accused is one of the alleged murderers, his statement that: "I had to defend myself against him (the deceased) otherwise he would kill me" is an admission of high probative value as it tends to establish the relevant fact in issue. Alternatively, where the fact in issue is "whether 'A' killed 'B', "A's" statement that "I stabbed him to avenge the death of my brother whom 'B' killed in cold blood two year ago" is an admission of very high probative value and unless strongly controverted by the accused, it can lead to a conviction if it is proved that the accused died of a stab wound.
Thus admission of a fact subject of criminal proceedings whether made in or out of court is the best evidence that can ever be gathered against the accused. This works on the assumption that what does a party admit to a suit or proceedings must be true unless the contrary is proved.
3.2. PROBATIVE VALUE DEFINED
"Probative value" or "worthiness" is the weight attached to a piece of evidence in determining the fact in issue or relevant fact. Considering that in criminal cases onus proband is casted on the prosecution, to win the case it must find and bring to the court such pieces of evidence that the law has rated highly in terms of providing explanation of the fact in issue hence the major elements of the crime charged. A piece of evidence is considered of high weight or low weight alternatively of high or low value depending on how much it explains the fact in issue and consequently the crime charged.
The weight attached to various pieces of evidence in Tanzanian courts is regulated by the TEA. It varies from one type of evidence to another, relative to the level of proof it offers/provides regarding the elements of the crime charged. For example, where one is charged of theft proof of the major elements of the offence involving actus reus and mens rea, that is, taking the property of another with the intention to permanently deprive the owner of his title to the property is crucial.
Any evidence tending to establish the act of taking the property or linking the accused to the actual taking of the property is of high value and if it leaves little or no doubt that the accused is the one who took the property, as the court will then be left with only one element to determine, that is whether or not the accused took the property with intention not to return it at all or to return the same in its natural form.
3.3. THE PROBATIVE VALUE OF ADMISSIONS IN CRIMINAL CASES
The weight or value of admissions relative to other pieces of evidence is evaluated on the basis of the fact in issue or relevant fact. Its weight may be relatively low when it only explains a relevant fact and not the fact in issue for example, when the relevant fact is whether the accused was at the scene of the crime on or about the time the crime was committed. A piece of evidence in which the accused admitted whether directly or by necessary implication that he was at the scene of the accident has high probative value in relation to the proof of a relevant fact but, it has very low probative value to prove murder. This position is clearly reflected in the case of R v Madirisha Kitikiti65. The fact in this case was that the deceased was beaten before maimed by the third accused while the first and second accused held him down on the ground. The third accused also admitted that he and the first and the second accused killed the deceased and that he threw the body of the deceased in the pit in belief that the deceased was dead. However, it was the court's view that the deceased died as a result of being thrown in the ravine. This view was influenced by the medical report which established that the death occurred as a result of skull fracture and not the maiming. But the deceased was also beaten. Though the beating could also have resulted to skull fracture, since the medical report did not disclose as to exactly what act led to skull facture, the judge had the discretion to allocate the injury to where they though it fitted best. Such an admission has high probative value in relation to proof of a relevant fact but very low probative value to prove murder. Similarly an admission to the effect that "I hit him only once while others hit him several times" has high probative value to prove manslaughter, and more so if it is established that the deceased died of internal bleeding due to beatings.
As we have noted above the Law of Evidence Act, 1967 sets out the types of admissions admissible in courts of law. The relative probative value of the different types of admissions is determined by judicial discretion. The trial judge or magistrate is placed in the best position to evaluate the value and hence strength of an admission in relation to the matter to be proved, guided by the rules of burden of proof.
When a statement emanates from the party himself its value can be weighed through his or her personal knowledge of the fact stated. The weight of the admission increases with the knowledge and deliberation of the speaker, or the solemnity of the occasion on which it was made.
3.4. CONCLUSION
We have seen in this chapter that an admission if clearly and unequivocally made, is the best evidence and though not conclusive it shifts the onus on the maker. By the words 'clearly and unequivocally' we mean that a party making an admission must have knowledge of the matter in issue because if a man admits something of which he knows nothing it is of no real evidential value. In the case of Ibrahim v R66 the judge held:
"...what a person having knowledge about the matter in issue say of it, is itself relevant to the issue as evidence against him."
Even if the admission relates to a matter of opinion, as long as the opinion is formed upon a sufficient basis of personal experience, the admission is admissible67 and it has high probative value.
CHAPTER FOUR
4.1. CONCLUSION
The major function of the law of Evidence is to regulate as to what facts may be proved and by whom and in what manner the evidence must proved. Going by this statement the following observations are of importance in the enhancement of the law of admissions in criminal cases.
Admissions, though sometimes strong evidence are not necessarily conclusive proof of the matters admitted but what a party himself admits to be true may reasonable be presumed to be so unless the maker of the admission provides an acceptable explanation before the court that he did not mean what is alleged to have been admitted. Admissions may not in themselves form a basis of a conviction or judgment in favour of the party the proceedings.
In this study, it has been shown that admissions play a very important role in criminal justice to establish criminal charges. In some cases they may be the only available means of proving guilt. However, we have equally shown that admissions are not without weaknesses, which may reduce the probative value of an admission in given situations.
For instance, the trial judge or magistrate has the discretion to admit any admission. It is the trial judge who has to be convinced that a confession is or was not voluntarily made. In so doing the judge has to determine whether the admission was obtained by inducement or involuntarily68 or if the accused knew the fact he is alleged to have admitted.
The discretionary powers of the judge to our opinion reduces the probative value of admissions for the judges are human beings hence not infallible in their judgment of facts. The good example is the case of Hatibu Gandhi and 18 Others v R69 Mnzavas J.K. (as he then was) ruling on a trial within trial in respect of Cap. Mbogoro he stated, inter alia, that:
"with respect I tend to agree with the learned Counsel's argument that Mr. Magesa (Justice of Peace) did not show in the statement of Mbogoro that he cautioned him and I must add that the manner in which he took Mbogoro's statement left much to be desired. But with even greater respect to Mr. Tarimo (Counsel for defence), it cannot be said as a matter of law that absence of a caution make the statement inadmissible."
The judge went further to say:
"certainly in this case we have to take into account that Mbogoro is not a humble villager who does not know his rights in law. He is educated and above all he is an army Captain who should be expected to know his rights."
This was a treason case. In this case the court used its discretion to hold that some of the confessions statements were voluntary despite the fact that there were allegations of non-adherence of rules of procedures, torture, overdue detention in police custody and inaccessibility of lawyers.
Another instance which reduces the evidentiary value of admissions is the admissibility of admissions which are relevant and true but obtained by inducement. Since the purpose of the law is to ensure justice is done, in the author's opinion, it is unjust to consider a true and relevant evidence inadmissible just because it was obtained by inducement. Indeed the decision of the court in the case or R v Bhagi70 defeats the purpose of the law. In this case Beama J. asserted that:
"If it appears to the judge that a confession has been improperly induced, no matter how true it may be, he is bound to exclude it."
This view was adopted by Tanzanian courts that what is important is not truth or relevancy but voluntariness. If these two elements truth and relevance are neglected for lack of voluntariness then 'criminal justice' is denied.
Furthermore, the courts in Tanzania have been dealing with co-accused's confession on the same footing as accomplice evidence. In other words, a co-accused's confession is used as a basis of the prosecution case and not as proof thereof. Other evidence is brought in to corroborate the confession. This practice is not healthy as it reduces the value of admissions by the co-accused. The proper procedure should be to use the co-accused's confessions as evidence corroborating the independent evidence of the prosecution case.
We conclude therefore, that, admissions are species of evidence which have high probative value as compared to other types of evidence such as circumstantial evidence, hearsay evidence and even expert opinion. They thus play an important role in the criminal justice and in some cases they may be the only available means of proving guilt. Thus it is important for the court to balance the two by protecting both the public interest as well as the interest of the accused.
BIBLIOGRAPHY
Cross on Evidence, 6th ed. London Butterworths 1985.
Cowen Zelman, Essays on the Law of Evidence
Durand, P.P., Evidence for Magistrates, Lower Kabete Kenya, Institute of Public Administration 1969 Ed.
Fields, Law of Evidence, (10th - 12th Edn) (Skar) (PUT) Ltd., Calcuta
Morris, H.F., Morris on Evidence, London Sweet and Maxwell 1968.
Munir principles and Digest of the Law of Evidence 2nd ed. Vols 1 - 2
Phipson on Evidence, 15th ed. London Sweet and Maxwell 2000
Sarkar on Evidence, 14th ed. Vol. 1, Wadhwa and Company Law Publishers, Agra Nagpur India 1993
Shaukat Mahmood, The Evidence Act of India of 1987 (1970) Vol. I - III.
Taylor, Law of Evidence, Vol. 1 - 2, Sweet and Maxwell London 1931
Thayer, J.B., A Preliminary Treatise of Evidence at The Common Law, Rotham & Kelley, Publishers, 1969
Wigmore, J.H., A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed. Vol. 4, Boston Little, Brown and Company 1940
TABLE OF CASES
Arikanjero v R (1962) EA 9.
DPP v Ping Lin [1975] 3 W.L.R. 419
Hatibu Gandhi and 18 others v R (1996) TLR 12
Ibrahim v R (1914) AC 599
Karuma Kamani v R (1955) 22 EACA 364.
Mustafa v R (1970) HCD 170
Myers v DPP (1964) 2 All E.R. 881.
Nanyalika v R (1971) HCD 314.
Pulukuri Kottaya v R (1947) PC 67.
R v Bhagi 8 Bon L.R. 697.
R v Chatwood [1980] 1 All ER 467.
R v Erdheim [1896]2 QB 260
R v Faru Mabuku and Another (1972)HCD 95
R v Harper-Taylor 1991 RTR 76 CA.
R v Madirisha Kitikiti [1969] HCD 233.
R v Mgomboi (1973) LRT 90
R v Simon (1834) 6 C & P 54
R v Wanging'ombe and Another (1941) 8 EACA 33
R v Warricks Hall 1783,I LEACH 263.
Rochin's (1952) 342 US. 165.
Safiel Mrisho v R [1984] TLR 151.
Sebastian Swai v R (1973) TLR 75
Swami V King Emperor (1930) 1 All E.R. 398
Tsdale v R Co, 116 NY 416, 419.
Tuwamoi v Uganda [1961] EA 84
R v Chatwood [1980] 1 All ER 467.
TABLE OF STATUTES
The Evidence Act, 1967, Act No. 6 of 1967
The Kenya Evidence Act Cap 80
The Uganda Evidence Act Cap 43
The Zanzibar Evidence Decree Cap 5
The Magistrates Court Act 1984
Act No. 6 of 1967 (as amended by Act No. 19 of 1980), Part II of the Act.
2 ss. 19 and 20 of the Tanzania Evidence Act, 1967.
3 Morris, H.F., Evidence in East Africa, London Sweet and Maxwell 1968, pg 61
4The Tanzania Evidence Act, 1967; the Kenya Evidence Act, Cap 80; the Uganda Evidence Act, Cap 43 and the Zanzibar Evidence Decree, Cap 5.
5 Morris, Op. cit.,.
6 Cross on Evidence, 6th ed. London Butterworths 1985 pg 517.
7 Phipson on Evidence, 15th ed. London Sweet and Maxwell 2000.
8 Phipson, Op. cit. pg 707.
9 [1896]2 QB 260.
0Sarkar on Evidence, 14th ed., Vol. 1 Wadhwa and Company Law Publishers, Agra Nagpur India 1993, pg 307.
1 Wigmore, J.H., A treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed. Vol. 4 1940, pg 2.
2 Idid, pg 3.
3 Essays on the Lasw of Evidence.
4 Law of Evidence, (10th - 12th Edn.) (Skar) (PUT) Ltd., Calcutta 1970.
5 A Preliminary Treatise of Evidence at Common Law 1969.
6 The Evidence Act, (of India) of 1872 (1970) Vols 1I - III.
7 Law of Evidence, Vols 1-2 (Sweet and Maxwell, London 1931.
8 Munir, Principles and Digest of the Law of Evidence 2nd Ed.Vol. 1-2
9 Thayer, op. cit.
20 Act No. 6 of 1967.
21 s. 19 TEA.
22 Phipson, op. cit. pg 126 - 127.
23 Note 2 Supra.
24 Burke, J., Osborns's Concise Law Dictionary, 6th edn., Sweet and Maxwell.
25 Morris, op. cit.
26 Wigmore, J.H., A Tretise on the Anglo-American System of Evidence in Trials at Common Law, 3rd edn. Vol. 4 Boston LITTLE, brown and Company 1940, s. 1064.
27 Co, 116 NY 416, 419.
28 s. 10 of TEA.
29 (1834) 6 C & P 54.
30 [1984] TLR 151.
31 s. 20 (2) of TEA.
32 1991 RTR 76 CA.
33 S. 20 (3) (a) of TEA.
34 ss. 27 (1) and 28 of TEA and ss. 56 (a) and 59 of the Magistrates Courts Act, 1984.
35 s. 28 of TEA.
36 Ibid.
37 Sarkar, Law of Evidence, 8th Edn. P 196.
38 Sarkar on Evidence, 10th edn. P. 196.
39 (1970) HCD 170.
40 DPP v Ping Lin [1975] 3 W.L.R. 419.
41 Phipson, op.cit. Pp 126 - 127.
42 Fields op.cit.
43 Wigmore, op. cit.
44 (1930) 1 All E.R. 398
45 s 3 of TEA.
46 Mtana, I.G., A Reflection on Confessions made to Police Officers and Their Effects in the Administaration of Justice, A dissertation submitted in partial fulfillment for the Degree of Master of Laws in the University of Dar es Salaam, 1990 pg 10.
47 s 27 (1) TEA.
48 ss 27 snd 28 of TEA.
49 S 27 (2) of TEA.
50 1783,I LEACH 263.
51 s 29 of TEA.
52 (1962) EA 9.
53 (1955) 22 EACA 364.
54 (1952) 342 US. 165.
55 Nanyalika v R (1971) HCD 314.
56 (1947) PC 67.
57 (1973) LRT 90.
58 (1972)HCD 95.
59 (1941) 8 EACA 33.
60 s 33 (2) of TEA.
61 (1973) TLR 75.
62 Myers v DPP (1964) 2 All E.R. 881.
63 Sarkar, fn 16 supra.
64 [1961] EA 84
65 (1969) HCD 233.
66 (1914) AC 599.
67 R v Chatwood [1980] 1 All ER 467.
68 Chan Wei Keung v R [1967] 2 AC 160.
69 (1996) TLR 12.
70 8 Bon L.R. 697.
0
