Admissions and confessions are these statements are admissible on the strength that admissible as exceptions to the rule against hearsay evidence . They are based on the principle that no person can make statement against his own interest unless it is true.
The general rule in both civil and criminal cases is that any relevant statement made by a party is evidence against him. In civil cases, for instance, statements made out of court by a party to the proceedings or by a person connected with him by any of the relationships are admissible in evidence against but not usually in favor of such a party.
In regarding to the law of Evidence Act which covers different aspects including both substantive and procedural rules, has attributed it a substantive law at the same time it's a procedural law. Therefore taking Confession, the Court of Appeal has often provided information on how our Judges (Justice of Peace) are required to take confession or confession of wrongdoing. Unfortunately, these instructions have been disregarded and thus have been the source of many dismissal appeals by this Court. Factors to consider are clearly stated in the case of Hatibu Gandhi & Others v.
Republic and Petro Teophan vs The Republic. It will be better if they were read intensively and educate judges in courts of law. Aggrieved with those Court of appeal decisions, the judges should go through the book called "A Guide for Justice of the Peace".To expedite the implementation of these resolutions herein, we have explained the whole substantive and procedure for taking a confession statement.
TABLE OF CONTENTS
1.0 INTRODUCTION
1.1 SCOPE OF THE QUESTION
1.2 LAW OF EVIDENCE
1.2.1 Substantive rules
1.2.2 Procedural rules or adjectival law
2.0 CONCEPTUALIZATION OF CONFESSION
2.1 The Types of Confession
2.1.1 Judicial confession
2.1.2 Extrajudicial confession
3.0 THE SUBSTANTIVE RULES REGARDING ADMISSIBILITY OF CONFESSION
3.1 Confession must be made to an authorized person
3.2 Confession will be the valid if made freely and voluntarily
3.3 Confession it must be made by an accused person himself.
4.0 THE PROCEDURAL RULES REGARDING THE ADMISSIBILITY OF CONFESSIONS.
4.1 Special powers of Justices assigned to District Court- houses
4.2 Cautioned Statement
4.3 Confession is Extrajudicial Statement
5.0 THE GENERAL RULE AS TO THE ADMISSIBILITY CONFESSION CAUTIONED STATEMENT AND EXTRA JUDICIAL STATEMENT
5.1 Exception to the General Ruleas to the Admissibility Confession Cautioned Statement and Extra Judicial Statement
5.2 The Criticism Regarding to Admissibility of Confessions
5.3 Repudiated and Retracted Confession
5.4 PRINCIPLES TO FOLLOW WHERE THERE IS A DANGER TO ACT UPON REPUDIATED OR RETRACTED CONFESSION
5.4.1 Corroboration
5.4.2 Trial within the Trial
6.0 SUMMARY AND CONCLUSION
BIBLIOGRAPHY
1.0 INTRODUCTION
Admissions and confessions are these statements are admissible on the strength that admissible as exceptions to the rule against hearsay evidence. They are based on the principle that no person can make statement against his own interest unless it is true.
The general rule in both civil and criminal cases is that any relevant statement made by a party is evidence against him. In civil cases, for instance, statements made out of court by a party to the proceedings or by a person connected with him by any of the relationships are admissible in evidence against but not usually in favor of such a party. In regarding to the law of Evidence Act1 which covers different aspects including both substantive and procedural rules, has attributed it a substantive law at the same time it's a procedural law. Therefore taking Confession, the Court of Appeal has often provided information on how our Judges (Justice of Peace) are required to take confession or confession of wrongdoing. Unfortunately, these instructions have been disregarded and thus have been the source of many dismissal appeals by this Court.
Factors to consider are clearly stated in the case of Hatibu Gandhi & Others v. Republic2 and Petro Teophan vs The Republic3 . It will be better if they were read intensively and educate judges in courts of law. Aggrieved with those Court of appeal decisions, the judges should go through the book called "A Guide for Justice of the Peace"4 .To expedite the implementation of these resolutions herein, we have explained the whole substantive and procedure for taking a confession statement.
1.1 SCOPE OF THE QUESTION
The question requires us to discuss about the Substantive and Procedural Rules regarding admissibility of either Confessions or Admissions. In respect the instruction of the question, herein we shall deal with the term Confession. In our discussion, we shall first begin with the meaning of Law of Evidence together with Substantive rules and Procedural rules, and the conceptualization of Confession, Thereafter, we are going to discuss the Substantive and Procedural Rules regarding admissibility of Confession, Additionally, the general rule as to the admissibility confession cautioned statement and extra judicial statement
1.2 LAW OF EVIDENCE
The law of evidence is that branch of the law that regulates production and admissibility of evidence in judicial and other proceedings.
1.2.1 Substantive rules
Stipulate rights and duties o f individuals. Also, when you talk about substantive rules you are talking about a law that has to provide things in rest or a law that has to provide things that are. For example ; if it is a civil law that provides rights and obligation, if it is a criminal law that provides of their rights and punishment, if it is a principle then the law that provides for is precedents conditional for is something to be accepted.The Tanzania Evidence Act provides for situations in which a confession can lawfully be made:
1.2.2 Procedural rules or adjectival law
Consists of rules that are used toenforce private or public duties and the public discipline, writs, process,trials, judgments, executions, and so forth.Thus, the Law of Evidence belongs to theadjective/adjectival or procedural law
2.0 CONCEPTUALIZATION OF CONFESSION
The term confession has been defined by various jurists5 and even some judicial decisions have taken their consideration in defining this term. Ratanlal vs. R 6. Defines this term to mean;
“An admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Stephen 7. Defines this term confession to mean;
“An admission made by a person charged with a crime stating or suggesting the inference that he committed that crime”
From the above two meanings of the term confession it can be drawn an observation that the term confession has its basis on criminal matters other than in civil matters and that it can be stating or even drawing an inference to the commission of a crime.
Also, the term confession has been defined under Section 3 (1) of the Evidence Act8. In DPP v ACP Abdallah Zombe & Others9 , quoted definitions from; The Oxford Advanced Learners Dictionary : “Say or admit, often formally that one has done wrong, committed a crime.” Black Law Dictionary : “Is acknowledgment in express words by the accused in criminal case of the truth of the main fact charged or of some essential part of it10.”So, in this context a confession is a voluntary admission of guilty to an offence.
In the case of Mathei Fidoline Haule v R 11 , 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.
Furthermore, the case of R v Kifungu Nsurupia12 it was stated that the term confession connotes an unequivocal admission of having committed an act which in law amounts to a crime. In the case of R v Bampamiyki13 the court stated that for the statement to amount to a confession it must contain all the ingredients of the crime with which the accused person is charged so that the accused could be properly convicted on his own plea.
Also the word confession has been defined in the case of Mwiroma v R14 , the court held that a statement admitting shortage of funds in a case of theft constitutes an admission not a confession. And in the case of Songwe Ngedeleie v R15 , judge Seat on said: "A confession is" a direct acknowledgement of guilt on the part of the accused...an admission... is a statement by theaccused, direct or implied of facts 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".
However, in the case of Michael John @Mtei v. R 16 , it was stated that in a confession the prosecution has to prove: (i) the accused by his conduct or words made a statement, and (ii) the statement or conduct amounting to a confession was freely and voluntarily made. Again, in Rhino Migere v. R17, the case envisages the statement to qualify for a confession it must contain the admission of all the ingredients of the offence charged as provided for under section 3(c) of the Evidence Act.”
Further, in Gervas Kilongozi vs. R 18 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 was 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, “ Confession was inadmissible in evidence and that the case was not proved beyond reasonable doubt ”. For these reasons appeal allowed.
As far as generally understood, a confession is an acknowledgement in express terms by a party in a criminal case of his guilt. Thus defined, a confession implies an admission of every essential element necessary to establish the crime with which the defendant is charged.
2.1 The Types of Confession
Hereunder are two types of confessions which are relevant and admissible
2.1.1 Judicial confession
In this type the accused person admits the commission of the crime. This confession is taken by the magistrate during the preliminary examination taken in writing before the trial began19. It should be noted that in the plea of guilty the accused is allowed to change his plea because once the plea is entered, the court will convict the accused person.It is judicial when made before a magistrate in the course of legalproceeding.
2.1.2 Extrajudicial confession
This refers to confessions made before the commencement of a trial either to a police officer or justice of peace, the onus of proving that it was voluntary lies to the prosecution.In addition, an extra judicial confession freely and voluntarily made may be proved as against that person20. An extra judicial confession can be accepted without corroboration if other evidence inspires confidence.An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution21.
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1 Cap 6 RE 2019
2 [1996] T.L.R.12
3 Criminal Appeal No. 58 of 2012 (unreported)
4 Judiciary of Tanzania, A Handbook For Magistrates In The Primary Courts: Published By The Judiciary of Tanzania With The Support of The World Bank, January 2019. ( Page 116-131)
5 For instance in Heydon, J.D (1991) Evidence: Cases and Materials , 3rdEdn, at p.173 says that; “Generally speaking, a confession is a statement by the accused in which he admits committed an offence, or admits some fact that goes to show he committed an offence”
6 Ratanlal, R &D.K.Thakore, (2004) The Law of Evidence, 21stEdn, p.164
7 As cited in Phipson, S.L (1982) Phipson on Evidence, p.674
8 Cap 6 R.E 2019
9 Criminal Appeal No. 358 of 2013 (Unreported) CA
10 M.N. Howard, et al (1990) Phipson on Evidence , 14th Edition p 674. The same is found in Chandra chund and Manohar op cit p 93, where the author added that the term confession is a statement which either admits in terms of the offence or at any rate substantially all the facts which constitutes theoffence.
11 [1992] TLR 148 at 151
12 [1941] 8 EACA 89
13 [1957] EA 473
14 (1968) HCD n. 181
15 (1968) HCD 178
16 Criminal Appeal No.202 of 2012, CAT (unreported)
17 Criminal Appeal No.122 of 2002, CAT (unreported)
18 [1994] TLR 39 CA
19 https://blog.ipleaders.in/important-pointers-you-must-know-about-admissibility-of-confessions/#Introduction (Accessed on 13th may, 2021)
20 Mapunda B.T., (2004). Evidence Part one, Two & Three , 1st Ed., The Open University of Tanzania, Dar es Salaam
21 Best, W.M,.(1911). The Principles of the Law of Evidence . London: Sweet & Maxwell.