Admission and confessions (law of evidence Tanzania).

 ADMISSIONS AND CONFESSIONS

Admissions are statements of fact, which waive or dispense with the production of evidence by conceding that the fact asserted by the opponent is true. S. 19 of the TEA defines an admission as “a statement, oral or documentary, which suggests any inference as to a fact in issue or a relevant fact. Admissions are therefore against the interest of the maker. They may be formal or informal. 

Formal: made in the pleading, e.g. in a breach of contracts, a party may admit having breached the contract, but maybe say it was due to fraud.

Informal: made during the proceedings, e.g. a plea of guilty.

A confession on the other hand is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime/a statement made by an accused admitting his guilt. In Swami v. King emperor (1939)ALL ER 396, the court defined a confessions as “a statement, which admits substantially all the facts constituting the offence. 

The difference between a confession and an admission therefore is that admissions cover all statements, whether in civil or criminal cases, but confessions only relate to criminal cases. 

ADMISSIONS GENERALLY

The following persons can make admissions (S. 20)

1. Parties to a suit or proceedings

2. Agents to the parties – these a re people employed to act on behalf of others

3. Persons having a pecuniary or proprietary interest in the matter

4. Persons representing the parties e.g. trustee, administrator of estate

5. Predecessor in interest e.g. where there is a land dispute between A, who bought the piece of land from C, and B, the neighbour,  a statements made by C, who was the original owner of the land, explaining the boundaries of the land he once held, disclaiming the piece of land in dispute, is an admission against A. 

 Proof of admissions.

S. 23 provides that admissions are relevant and may be proved against the person who makes them or his representative in interest, but cannot be proved on behalf of the person who makes them or his representative in interest.

E.g. A is accused of receiving goods knowing them to be stolen. A cannot prove a statement made by himself to the fact that he did not know that the goods were stolen, but B can prove a statement made by A to the effect that he suspected that the good were stolen. 

Exceptions to the general rule in S. 23:

Admissions can be proved on behalf of the maker of or his representative in interest if:

 The statement is of such a nature that it could be admissible under S. 34 if the person making it was dead. In other words, if the statements that would be admissible under S. 34 if the person was dead, then it will be admissible on behalf of the maker. E.g. A is accused of casting away a ship by taking it off course. A may produce a memorandum kept by him in the ordinary course of business, indicating that at the material time, the ship was on course. 

 Admissions may also be proved on behalf of the maker if they reflected the state of mind. E.g. A is accused of having counterfeit money. He may proof that he asked a skilled person to examine the money, and that the person told him that it was genuine. This would show that his mind was innocent. 

Other Issues on Admissions:

Oral admissions as to contents of a document are not relevant unless the one tending it shows that he is entitled to produce secondary evidence. Adverse party proves admissions. So where a party has made an admission as to the contents of a document, the adverse party must show that he is entitled to prove secondary evidence of the contents of the documents under S. 67

Admission made without prejudice: The words “without prejudice” in a letter or a document means that the admission in the letter/doc is not binding.  However, this rule only applies if the persons are in dispute or negotiating or for purposes of negotiation. 

Admission, except formal admissions, are not conclusive but may act as estoppel. The basic rule of estoppel is that if a person, by a representation or conduct, induces another to change his position on the faith of it, then he cannot afterwards deny the truth of the representation.  This is because further evidence may be adduced to contradict the admission. 

CONFESSION

Definition

Phipson: A type of admission in relation to crime

Wigmore: An acknowledgement of guilt in express words by the accused

Swami v. King emperor: No statement that contains self exculpatory (incriminating) 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. Moreover, a confession must admit in terms the offence or at any rate substantially all the facts which constitute the offence. The admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death.

R v. Bampamiyki  (1957) EA 473

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 convicted on his own plea

R v. Makrch (1971) HCD 74 (High Court of Tz)

We think that the test is whether the statement is such that in the absence of any explanation or qualification and in particular circumstances, it points clearly to the guilt of the maker. Thus, statements “I killed him” or “I took the money” unaccompanied by any exculpatory statements and uttered in relation to a person who has died of unnatural causes or missing funds as the case may be are in our view indicative of guilt and therefore a confession. 

S. 3 TEA

(a) words or conduct, or a combination of both, from which, whether taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or did the act(s) has committed an offence or

(b)) a statement which admits that the person making the statement has committed an offence

(c) A statement containing an admission of all the ingredients of the offence with which the maker is charged 

(d) A statement containing affirmative declaration in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence

RULES OF CONFESSIONS

 A confession made to a police officer is admissible, provided the prosecution proves that it was voluntarily made (S. 27). 

A police officer means any member of the police force of or above the rank of corporal (s. 3). In the 1967 case of R v. Mwanda and others, the High Court of Kenya held that the rank of the police officer is a ready measure of intelligence, and thus it was relevant where confessions are concerned. 

 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 (1957) EA 473, 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. 

 Statements caused by inducement. 

S.29 A confession shall be held to have been made involuntarily if the court believes that it was induced by threat, promise or other prejudice held out by the police officer to whom it was made, or any member of the police force, or any other person in authority. The inducement must however have been of such a nature as likely to cause an untrue admission of guilt, otherwise the confession will be admissible. 

The test here as to whether the statement was voluntary is whether the accused is placed in such a situation or position that he would rather give an untrue rather than a true statement. 

In the Case of Njuguna S/o Kimani v. R (1954) 21 EACA 3111, the EACA stated that where an accused is promised pardon as an inducement for a confession of guilt, the effect of the inducement is to make the freedom which will accompany the false confession more attractive at the moment than to remain restrained if he were to speak the truth.” The Court also emphasized that the onus is upon the prosecution to prove that a confession had been voluntarily made and not obtained by improper questioning. 

Threat, Promise or prejudice: In the Case of Commissioner of Customs and Excise v. Harz (1967) 1 ALL ER 177, In the course of investigating the failure by a company to pay taxes, customs officers subjected the co. officials to interrogation lasting 3 hours. The co. officials made incriminating statements during the interrogation. The statute empowering the interrogation provided that failure to answer questions asked could lead to prosecution. The co. officials maintained in court that they only answered the questions because of this provision. Harz was subsequently charged with conspiracy to cheat and defraud customs, and evidence of the admissions made at the interrogation was tendered. It was held that the admission was inadmissible because it was made under the threat of prosecution. 

A moral or spiritual exhortation will not vitiate a confession. In the case of R v. Wilde (1835) 1 Mead. Criminal Cases 45, the following statement was made to Wilde: “I hope you tell me the truth in the presence of the almighty”, after which he made a confession. The confession was held not to have been made under a threat. In R v Stantan, the statement made to the accused was “be a good girl and tell me the truth”. It was held that moral exaltation could not vitiate a confession. 

Where an inducement has been made to an accused person, and a confession is made after the impression caused by the inducement has in the opinion of the court been fully removed, the confession will be accepted by the court. (S. 30) (Test: Reasonable person)

 Confession made under a promise of secrecy etc

S.32 provides that a confession otherwise relevant does not become irrelevant merely because it was made under a promise of secrecy or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions he need not have answered, or because he was not warned that he was not bound to make such a confession and that the evidence of it might not be used against him.  

In Deokinan v R (1969) 1 AC 20, 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 (1959 EA, the Court however held that nothing in the section above negated thje discretion of the judge to refuse to admit a statement when he thought that it was not voluntary. 

 Confession made without a caution being administered

S.32 talks of a confession not becoming irrelevant merely because a caution was not administered “because he was not warned that he was not bound to make such a confession and that the evidence of it might not be used against him”. This section provides an exception to the rule of practice that a caution has to be administered before a police officer question the accused. A caution in effect informs the accused of the consequences of his statement. The basis of this is the Judges Rules. These rules of practice are addressed to police officers and are aimed at ensuring procedural fairness in taking statements from accused persons. They however do not have the force of law but have been declared to be a procedural requirement (See for instance, Balbi Sain Joshi v. R (1951) 18 EACA 228), Anyangu and Others v R, (1968) EA 239, and Paul Ekai v. R. 

The rules

1. when a police officer is trying to discover the author of a crime, there is no  objection to his putting questions in respect thereof to any person whether they are suspected of having committed the crime or not, if he thinks useful information can be obtained

2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution the person before asking any further questions

3. Persons in custody should not be questioned without the usual caution being administered

4. If the prisoner wishes to volunteer any statement, the usual caution has to be administered and it desirable that the last two words of the caution are omitted. The caution should end with “be given in evidence”

5. the caution to be administered is as follows:

“do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down and may be given in evidence against you” (omit against you)

6. A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely because no caution has been given. But in such a case, he should be cautioned as soon as possible. 

7. A prisoner making a voluntary statement must not be cross examined. No question should be put to such a person about the statement except for removing ambiguity in what he has said.

8. When two or more persons are charged with the same offence, and their statements are taken separately, the police should not read these statements to the other person charged, but these people should be given a copy of the statements. (intonation/emphasis). Should the other accused want to answer to another’s statement, he should do so in writing and should be cautioned in doing so.

9. Any statement made in accordance with the above rules should whenever possible be taken down in writing and signed by the person making it, after its read to him and the corrections he wishes to be made are made. The statement must be taken down in the national language, but where the accused does not understand the national language, it must be interpreted to him by a person who knows his vernacular language. 

 Repudiated Retracted confessions

An accused person may repudiate or retract a confession that he had earlier made. In Tuwamoi v Uganda (1967) EA 67, the court defined the terms repudiate and retract. A statement is repudiated where the maker avers that he never made it, while a statement is retracted where the maker admits that he made the statement, but now seeks to take it back on the ground that he was forced/induced to make it, and it was therefore not voluntary. In Tuwamoi v. Uganda, the court stated that it is dangerous to rely on a repudiated or retracted confession, unless the court after considering the facts of the case arrives at a conclusion that the confession is true.