User talk:Mushobozi, k. julius

a) All confessions are admissions but the reverse is not the case. Discuss.

b) Juma is charged with murder. During the investigations, he makes the following statement to the police officer, “it is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possessions.” Consider the admissibility or otherwise of that statement during the trial.

TABLE OF CONTENTS.

Part A of the question.

1.0. INTRODUCTION 1.1 The meaning of admission. 1.2 The meaning of confession. 2.0. MAIN BODY. 2.1. Discussion on whether all confessions are admissions and the reverse is not the case. 3.0 Conclusion.

Part B of the question. . 1.0. Summary of Facts. 2.0. Framing of Issues. •	Whether the statement is confession or otherwise. •	Whether the statement can be admissible as evidence. 3.0. REMARKS.

Part A of the question.

1.0 INTRODUCTION.

Admissions as defined under the Evidence Act  is 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 the persons, and in the circumstances here in after mentioned. The definition suggest that an admission should be a statement which is oral or documentary and that it must be made by a person who has interest in the suit but it should normally be made against the very person making it.

The term also has been defined as 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 interest.

According to H. C. Black the term admission is confessions, concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded they are, statements where a party, or some one identified with him in legal interest, of the existence of the facts which is relevant to the cause of his adversary

The same author proceeded by saying that admission is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. An admission is not limited to words, but may also include the demeanour, conduct and acts of the person charged with a crime. By this definition it therefore follows that while the Evidence Act confines its meaning on the statements oral or written this definition is in explicit as it does not confine itself on the words.

For Y V Chandrachund and V R Manohar ; the term admission is defined as a statement of facts which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is truth. Admissions are admitted because the evidence of the party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue.

It follows therefore that while the term is defined by different authors it is evident that their meanings or views are different from the meaning given in the Evidence Act but for the purpose of the understanding admission in Tanzania the meaning as enshrined in the Evidence Act is the appropriate one.

The term confession is also defined by the Evidence Act under section 3 (1) to mean:

words or conduct or combination of both words and conduct, 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 or acts constituting the conduct has committed, or a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence, or a statement containing an admission of all the ingredients of the offence with which its maker is charged, or 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 be reasonably be drawn that the person making the statement has committed an offence.

In the case of R V KIFUNGU NSURUPIA 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 BAMPAMIYKI 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.

Stephens defines the term confession, as an admission made by a person charged with a crime stating on suggesting the inference that he committed that crime. According to Phipson a confession is a type of admission in relation to crime, i.e. an admission from which inference may be drawn that the accused committed the crime charged.

In the Blacks Law Dictionary confession is a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, where he acknowledges himself to be guilty of the offence charged, and he discloses the circumstances of the act or the share and participation which he had in it.

MAIN BODY

The general rule is that both in civil and criminal cases any relevant statement made by a party is evidence against himself. Such statements are under the evidence law are termed as admissions and confessions respectively. It our concern in the given question to show as to whether it is true that the all confessions are admissions but the reverse is not true.

Every confession must be an admission, but every admission in a criminal case need not be a confession. A statement may be irrelevant as a confession but it may be relevant as an admission. A statement is not admissible as a confession, but the same statement may yet for other purposes be admissible as an admission as against the person who made it. Hence it is well known as all confessions are admissions but all admissions are not confessions. Further discussion will be observed on the differences between the two aspects (admission and confession).

The meaning of the word confession as given by Phipson clearly suggest that all confessions are admissions as he define the term confession as an admission made by a person charged with a crime.

In most cases, confession is in itself an admission because the accused person admits the case in whole. Confessions by themselves contain the admissions with which the person charged admits.

A distinction here is that; an admission of a fact from which guilty is directly deducible or which within and of itself impose guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilty and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely an admission.

In addition, a confession always goes against the person making it while an admission may be used in favour of a person making it. Thus it can be said that generally the rule governing confession is rigid and has no exceptions. When a person makes a statement which qualifies to be a confession under the Evidence Act such will be used against the maker and never in his favour and at this instance it is an admission.

However the general rule in regard to admission is that admissions are to be used against the maker. The rule though has some exception which allows admissions made in the favour of the maker admissible as admission. From this it can be deducted that all confessions are admissions in the sense that they are made against the interest of the maker but not all admissions are confessions due to the fact that there some admissions which are made in favour of the interest of the maker.

Another aspect to be reflected here is that, where a conviction can be based on statement alone, it is a confession. This was reiterated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R ; “A statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

Hence a confession if deliberately and voluntarily made may be accepted as conclusive in matters confessed; this was similarly stated in the case of QUEEN-EXPRESS V. SANGAPPA whereas in admission some supplementary evidence is needed to authorise conviction. Thus an admission is not a conclusive proof of the matters admitted, but may operate as estoppel.

Moreover no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative offence to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantial all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of it self a confession.

A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him while an admission usually relate to a civil transaction yet they may be used in criminal proceedings, this indicate that admissions covers both criminal and civil maters but confession is only to be found in criminal matters. Due to the veracity that the confessions are found only in criminal proceedings and admissions are found in both criminal and civil matters it follows as the day follows night that all confessions will fall in the category of admissions found in criminal matters.

However  confession is not taken as admission due to the fact that though confession is taken against the person making it in other instances the confession of one or two or more accused persons jointly tried for the same offence can be taken into consideration against co-accused as stipulated under section 33 of the Evidence Act. While admission by one of several defendant in a suit is no evidence against another defendant. This shows that not in all instances confessions are admissions basing on the premise that admissions can only be used against the maker which is contrary to the rules governing confessions which allows confession to be applied to the co accused.

Phipson explains that admissions by party have always constituted an exception to the hearsay rule, one kind of admission being confession by an accused person, that is, an admission by him about the facts charged against him.

The case of R.V. MKARETH illustrates the situation supporting that not all admissions are confession. It was stated: ‘A statement of a confession must be the one which in the absence of explanation or qualification and any particular circumstances, clearly points to the guilty of an accused person’.

When a person admits allegations, he is actually admitting the commission of such crime and such statements by themselves are highly considered. The contrary is in admissions where as it is provided under section 26 of The Evidence Act that admissions are not conclusive proof to a matter in controversy.

Part B of the question.

DISCUSSION OF THE ISSUES. From the question, Juma is charged with murder. During investigation, he states to the police officer that, “It is true that the knife believed to have been used in killing deceased is mine and it has all along been in my possession.” The issue to be discussed is whether the statement given by Juma is confession or otherwise.

A confession is acknowledgement of fault, wrong doing made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. For a statement to amount into a confession it should have the following qualifications:-

First, it must be freely and voluntarily made by the accused person. From the given scenario we have been told that, Juma made a statement to a police officer and there is no further information as to whether Juma was compelled in any way in making the statement. This can be taken as a presumption that the confession was voluntarily made. In this requirement it is upon the prosecution to prove affirmatively to the satisfaction of the court that it was voluntarily made and not obtained by any improper means.

Another requirement is that, for a statement to be a confession it should be made to authorised person. The Evidence Act stipulates persons who can receive confession as; a police officer as provided under section 27, a Magistrate and Justice of peace as provided under section 28 of the Evidence Act. These are the only persons who can receive confession under the Evidence Act. According to the scenario, Juma made confession to the police officer. This fact suffices the respective requirement of confession.

The other requirement is that, the statement must be made by the accused person. From the question Juma who is charged of the offence is the one who made the statement.

However it should be noted that, for a confession to be admissible a person must either admit in terms the offence or at any rate substantially all facts which constitute the offence, as it was stated in the case of R V. BAMPAMIYKI that; “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.”

An admission of a gravely incriminating fact is not itself a confession. In SWAMI V. KING EMPEROR the court held 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 facts which constitute the offence.

Further the Privy Council stated inter alia that; “An admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession. For example an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession.”

On the same footing in the case of PALVINDAR KAUR V. STATE OF PUNJAB whereby the accused was charged with murder and destruction of evidence for having committing murder of her husband by administering potassium cyanide poison and for causing destruction of her husband dead body. During investigation and trial, she stated;

“My husband fond of hunting as well as photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took the liquid which was meant for washing the photos. If fell down and died. Due to fear I put his body in a trunk and threw it into a well.”

The Supreme Court held that; the statement of the accused did not amount to confession.

Therefore it can be said that if a statement given by an accused person can lead into conviction of the person without adducing other evidence to corroborate it such is a confession. This was clearly stipulated in the case of R V.MKAREH (supra) that “We think that the test is whether statement is such that in the absence of any explanation or qualification and in particular circumstances, it points clearly to the guilty of the maker. thus statement ‘I killed him’ unaccompanied by any exculpatory statements and uttered in relation to a person who has died of a natural cause or to missing funds as the case may be are in our view indicative of guilty and therefore a confession.”

However, this distinction is not taken in some other jurisdictions. In England, all incriminating admissions by an accused person count as confession. For example, in England, there is no difference in this respect between “yes, I killed him” and “yes, I was near the scene of the crime”. In England thus, statements by Juma amounts to confession.

Distinctly, in India, only that portion of information which relates distinctly to the fact discovered can be proved. Thus a statement “I stabbed X with my knife. I threw my knife in the well of my house” in India it will be taken differently. The first part of the statement that is “I stabbed X with my knife” is inadmissible as a confession, while the second part, that “I threw my knife in the well of my house” is admissible as confession. Therefore the statement of the accused “I threw my knife in the well of my house” is only admissible because it leads to the discovery of the knife. The other part of the statement is then inadmissible.

REMARKS: From the given scenario the statement by Juma does not amount to a confession and thus not admissible as evidence due to the fact that the statement does not show that the accused is admitting to have committed the offence and thus not admissible. This is backed up by the reasons given above that for the confession to be admissible it should be an unequivocal admission. The same had been repeated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R (supra) “a statement is not a confession unless it is sufficient by it self to justify the                                                                        conviction of the person making it of the offence with which he is tried.”

This statement drives us to the conclusion that the mere fact that the accused stated to have possessed the knife which ultimately killed the deceased and was in the possession of the said knife is not the sufficient ground to incriminate the accused.

The statement in the scenario by the accused can be taken as the evidence for the case of admissibility where it is corroborated, as an admission. The statement that does not amount to a confession is only evidence against the maker of it, thus an admission.

ALTERNATIVE ANSWER

TABLE OF CONTENTS PART (a) 1.0: INTRODUCTION 1.1: Meaning of the terms Confession and Admission

2.0: MAIN BODY 2.1: Distinction between Confession and Admission 2.2: Similarities between Confession and Admission 2.3: How all Confession and Admission

3.0: CONCLUSION

PART (b)

1.0: Summary of material facts 1.1: Framing of issues 1.2: Discussion of issues 1.3: Conclusion PART (a)

1.0: INTRODUCTION The general rule in both civil and criminal cases is that any relevant statement made by a party is evidence against himself. 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 favour of such a party. It is from this remark where we draw our need for the general understanding of the concept of admissions and confessions.

1.1: Understanding of the term confession and admission. The term confession has been defined by various jurists and even some judicial decisions have taken their consideration in defining this term. Ratanlal R. 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 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.

Under The Evidence Act (hereinafter to be referred to as Cap 6), the term confession is defined under section 3(1). From the provisions of this subsection it can be seen that confession can be words or conduct, or combination of the two which when treated alone or in conjunction with other facts proved, can draw an inference that through such words or such conduct then the particular person committed an offence. It also include a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence.

As per Cap 6, confession also mean a statement containing an admission of all the ingredients of the offence with which its maker is charged or that is a statement containing affirmative declarations 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.

Judicial decisions in that respect have also tried to either adopt such position of the law or sometime giving much more explanatory meanings of the term confession. 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 to 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”

Therefore from the above definitions it can be said that there are certain ingredients which must be satisfied for words or conduct to amount to a confession. Such ingredients include that it should be freely and voluntary, made to a police officer or magistrates or justice of peace. It is also important to note that the confession also must be taken as a whole or in part.

The law provides that such statement must be free from threats, promise or other prejudice held out by a police officer to whom it was made or by any member of the police force or by any other person in authority. However the test is objective in the fact that not every inducement has the effect of making confession involuntary.

This position of the law was observed in the case of JOSEPHAT SOMISHA MAZIKU V R where 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 threats, or promise; it is inadmissible only if the inducement or threat, was of such a nature as likely an untrue admission of guilt…”

Classification of confessions can be grouped into two: that is judicial and extra-judicial confessions. It is judicial when made before a magistrate in the course of legal proceeding and it is extra judicial when the accused person makes a statement confessing the crime he is being charged of elsewhere than in a court of law.

On the other hand the term Admission is defined under section 19 of Cap 6 as to mean; “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”

Admission has to contain the following ingredients that it has to be a statement oral or written, which suggests the inference in relation to a fact in issue or relevant fact and may be made by any of the following persons; a party to a proceeding or suit, an agent authorized by an agent or a party to a suit, persons having proprietary or pecuniary interests in the subject matter at issue, persons who are predecessors on interests or title, persons whose positions must be proved as against party to suit and persons expressly referred to by a party to suit. It has also to have been made in the circumstances prescribed in Cap 6.

In the case of R V MCGREGOR it was stated that the weight of admission increases with the knowledge and deliberation of the speaker, or solemnity of the occasion on which it was made.

2.0: MAIN BODY This question requires among other things as to the discussion in relation to the fact that ‘all confessions are admissions but the reverse is not the case’. The basis of this statement draw us to the perception that the question needs the clear distinction between the two concepts and at the same time show where the two seem to merge to each other. In that sense, we are going to discuss the said statement in that basis.

2.1: Distinction between the two terms. Phipson and Elliot say that there is a distinction between an admission of a fact from which guilt is directly deducible or which within and of itself imports guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilt and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely and admission. This was a position in the case of STATE V PORTER. Other differences are the difference as to the nature of the proceedings. That is, Admissions are generally made in both criminal and civil cases while Confessions are made only with respect to the criminal cases. In criminal cases admissions are applied in those matters which have no criminal intent. Confession is part of admissions and therefore an admission of guilty. This view was made in the case of R V RILEY where the court stated that a plea of guilty amounts to an admission of the offence charged, that is, the acts charged and the application of the law thereto, but not the truth of the depositions.

Confession always goes against the person against the person making it while admission may in certain circumstances be proved on behalf of the person making it. Confession can be taken as a whole or part the offence charged while admission has to be taken as a whole not part. This, in as far as admissions are concerned, was held in the case of MOHAMMAD KOYA V MUTHUBOYA where it was stated that; “It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission of any fact.”

Confession must be in affirmative in both ingredients of the offence which is actus reus and mens rea while admission may lack one of this ingredients which may lead to different interpretation. It can be illustrated as follows; Where A upon separating B and C who were fighting in a train compartment, A pushed B who dropped in the joint which separated the compartment and died instantly. Before the, court A admits that he caused the death of B in due process of separating him from C. That admission cannot amount to a confession of an offence of murder since there is no proof as to the mens rea.

In MATHEI FIDOLINE HAULE V Rsupra the appellant assaulted his mother who he believed to be a witch. In convicting the appellant the trial Judge relied on two pieces of evidence. The first was a statement the appellant made to his village chairperson that he had assaulted his mother. The second was the cautioned statement alleged to have been made by the appellant before a police officer who at the time of the trial was reported dead. The trial Judge treated both pieces of evidence as confession.

The Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother could not really be taken to amount to a confession to the offence of murder with all its essential ingredients. This is to say that statement fell short of being admissible as a confession due to lack of fulfilling the other ingredient of an offence.

2.2: Similarities between the two concepts. Both admissions and confessions have some features which appear in the two. These include the fact that both can be made as judicial or extra judicial, can be made by words or conduct or combination of both, as a general rule the burden of proof in both lies on prosecution with respect to criminal matters and that in both there is a conditional precedent that they should be made voluntarily.

2.3: Whether all Confessions are admissions and that the reverse is not true. From the above discussion of the distinction and similarities of admissions and confessions this paper reaches a stage of showing as to how all confessions are admissions and that the reverse is not the case.

In the case of QUEEN-EMPRESS V BABU LAL it was held that the statement that a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime, is a genus. That is, admission is the species and confession is the sub-species. This implies that a confession is a statement made by an accused admitting his guilt

Sarkar says that confession might be inadmissible, which yet for other purposes would be admissible as an admission. In other words all admissions are not confessions but all confessions are admissions. And that only voluntary and direct acknowledgement of guilt is a confession. But when a confession falls short of actual admission of guilt, and is not taken down according to law, it may nevertheless be used as evidence against the person who made it, as an admission

The fact that admissions are applied in both criminal and civil proceedings justifies the truth that admissions are wider than confessions since the latter are only in criminal proceedings and therefore falling within admissions in that sense. This can be drawn from the provisions of Cap 6 which defines the two terms where admissions are not confined to criminal or civil matters only while confessions are confined in criminal matters.

Also the fact that statements which does not amount to confessions can be treated as admissions draw the observation that confessions are within admissions. This is on the reason that admissions are mainly concerned with fact in issue or any relevant fact. Hence a statement which does not amount to a confession but which is relevant to the fact in issue or any other relevant fact can be admitted as admission is the light of Section 19 of Cap 6.

3.0: CONCLUSION From the above discussion, and to that extent, we are of the views that it is true that all confessions are admissions and that the reverse is not true. This statement however has to be treated inline with such distinction that fall within the two concepts in the law of evidence

PART (b)

1.0: Summary of the material facts From the stated scenario the facts of the case can be summarized as follows that Juma is charged with murder and that during investigations he made a statement to a police officer that; “It is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possession” It is required to consider the admissibility or otherwise of that statement during the trial.

1.1: Framing of the issues Since the first part of this question has dealt to a great extent with the concept of confession and that of admission, it follows therefore that we go direct to the framing of the issues with respect to this part of the question. The issues here are whether the statement is an admission or confession and whether the said statement is admissible.

1.2: Discussion of the issue For a statement to amount to a confession it has to satisfy various tests. These include that the statement must be made by the accused person, freely and voluntarily and before a police officer, magistrate and justice of peace. And it has to be noted that a confession must relate to the offence in question. If the purported admission makes out no offence, the provision relating to confession would not come into play. This was the position in the case of GANESH TRADERS V DISTRICT COLLECTOR, KARIMNAGAR

It is important that a confession has to be addressed to some person. This is the position in Cap 6 where, as we pointed out earlier, it is provided under the provisions of Sections 27 and 28. In the case of PANDRA KHADIA V STATE OF ORISSA it was pointed out that a confessional statement must be addressed to some person and that, therefore, the accused going round the village and shouting that he had killed his wife did not amount to confession. In the question at hand Juma’s statement is said to have been made before the police officer. However the issue still remain there as to whether that is sufficient to amount to a confession.

Lord Atkin in PAKALA NARAIN SWAMI V EMPEROR stated that; “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession”.(Emphasis is ours)

The position in Tanzania is well illustrated in the case of MATHEI FIDOLINE HAULE V Rsupra where the Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother leading to her death could not really be taken to amount to a confession to the offence of murder with all its essential ingredients.

The fact that Juma is the owner of the said knife and all such facts that are connected with that knife does not by itself establish the guiltiness of Juma as to the alleged offence of murder since mens rea, and that is malice aforethought has to be proved so as to amount to a confession. Though the statement of Juma can draw a suspicion that Juma might be the killer of the deceased, yet that statement does not talk anything on the other element of the offence.

In the case of ALLY FUNDI V R the High Court of Tanzania stated that; “…a mere opportunity to commit an offence cannot be the basis for convicting an accused person. If the law were otherwise, no one in this country would have been safe…suspicion, however grave it may be, cannot be a substitute for proof in a court of justice”

Those observations draw us to a conclusion that the said statement is not a confession. The issue is whether now the statement is an admission. This seems to be undisputable in the light of section 19 of Cap 6. The said section defines the term admission and it provides that a statement whether oral or written which suggests any inference as to a fact in issue or relevant fact made by any person mentioned in the Act under the circumstances provided therein amounts to an admission. Our interest here is on the phrases fact in issue and relevant fact.

Fact in issue is defined under section 3(1) of Cap 6 to mean any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. In the question at hand the main issue is whether Juma murdered the deceased. And on the other hand a fact is said to be relevant where it shows or constitute a motive or preparation for any fact in issue. It is clear that the statement as to the effect that Juma is the owner of the knife that is believed to have been killed the deceased and that at all material time he had in possession of it is essentially a relevant fact in as far as the fact in issue is concerned. This is to say, that statement passes the test of being admission within the meaning of section 19 of Cap 6.

The next issue is whether such statement is admissible. In the case of BISHEN DAS V RAM LABHAYA, an accused, a woman, was charged with murder of a deceased man. Before the court she admitted that she killed the deceased but that was done in her attempt to rescue herself from being raped by the deceased. The court held that the statement did not amount to a confession of an offence of murder but yet it was admissible as an admission of the fact.

This is to say that Juma’s statement is admissible as admission against himself though is not a conclusive evidence  against him in the offence for which he is charged with rather it has to be corroborated with other evidence to prove the guiltiness of Juma to the charge of murder. It is a statement which draws an inference as to the commission of an act of killing but there should be other evidence to prove mental element necessary in proving the offence of murder, that is, malice aforethought.

On the other hand, if for instance, the knife which killed the deceased would have not yet been discovered by the police and that the statement uttered by Juma was one which lead to the discovery of that knife as one which killed the deceased, then the position of the law in as far as the admissibility of the said statement would have been that under section 31 of Cap 6. The purpose of the said section is to render admissions admissible material facts or material object or objects discovered due to the information provided by an accused while under police custody.

Juma’s statement, in our views, does not fall within the four corners of section 31 since the knife which Juma is making statement to it was already discovered by the police and the investigation believes that the said knife was used to kill the deceased. Hence the statement is not leading to a discovery of a knife rather it is only relevant as to the owner of it. This implies that admissibility of the said statement is basically with respect to the provisions under section 19 of Cap 6.

1.3: Conclusion It follows from the above discussion that Juma’s statement is admissible as evidence against him and that it will be treated as an admission relevant to the fact in issue which in actual fact as per question, is murder.

ALL CONFESSIONS ARE ADMISSIONS BUT THE REVERSE IS NOT THE SAME- BY Mushobozi, Julius(LL.B 2) Mzumbe University
a) All confessions are admissions but the reverse is not the case. Discuss.

b) Juma is charged with murder. During the investigations, he makes the following statement to the police officer, “it is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possessions.” Consider the admissibility or otherwise of that statement during the trial.

TABLE OF CONTENTS.

Part A of the question.

1.0. INTRODUCTION 1.1 The meaning of admission. 1.2 The meaning of confession. 2.0. MAIN BODY. 2.1. Discussion on whether all confessions are admissions and the reverse is not the case. 3.0 Conclusion.

Part B of the question. . 1.0. Summary of Facts. 2.0. Framing of Issues. •	Whether the statement is confession or otherwise. •	Whether the statement can be admissible as evidence. 3.0. REMARKS.

Part A of the question.

1.0 INTRODUCTION.

Admissions as defined under the Evidence Act  is 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 the persons, and in the circumstances here in after mentioned. The definition suggest that an admission should be a statement which is oral or documentary and that it must be made by a person who has interest in the suit but it should normally be made against the very person making it.

The term also has been defined as 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 interest.

According to H. C. Black the term admission is confessions, concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded they are, statements where a party, or some one identified with him in legal interest, of the existence of the facts which is relevant to the cause of his adversary

The same author proceeded by saying that admission is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. An admission is not limited to words, but may also include the demeanour, conduct and acts of the person charged with a crime. By this definition it therefore follows that while the Evidence Act confines its meaning on the statements oral or written this definition is in explicit as it does not confine itself on the words.

For Y V Chandrachund and V R Manohar ; the term admission is defined as a statement of facts which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is truth. Admissions are admitted because the evidence of the party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue.

It follows therefore that while the term is defined by different authors it is evident that their meanings or views are different from the meaning given in the Evidence Act but for the purpose of the understanding admission in Tanzania the meaning as enshrined in the Evidence Act is the appropriate one.

The term confession is also defined by the Evidence Act under section 3 (1) to mean:

words or conduct or combination of both words and conduct, 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 or acts constituting the conduct has committed, or a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence, or a statement containing an admission of all the ingredients of the offence with which its maker is charged, or 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 be reasonably be drawn that the person making the statement has committed an offence.

In the case of R V KIFUNGU NSURUPIA 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 BAMPAMIYKI 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.

Stephens defines the term confession, as an admission made by a person charged with a crime stating on suggesting the inference that he committed that crime. According to Phipson a confession is a type of admission in relation to crime, i.e. an admission from which inference may be drawn that the accused committed the crime charged.

In the Blacks Law Dictionary confession is a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, where he acknowledges himself to be guilty of the offence charged, and he discloses the circumstances of the act or the share and participation which he had in it.

MAIN BODY

The general rule is that both in civil and criminal cases any relevant statement made by a party is evidence against himself. Such statements are under the evidence law are termed as admissions and confessions respectively. It our concern in the given question to show as to whether it is true that the all confessions are admissions but the reverse is not true.

Every confession must be an admission, but every admission in a criminal case need not be a confession. A statement may be irrelevant as a confession but it may be relevant as an admission. A statement is not admissible as a confession, but the same statement may yet for other purposes be admissible as an admission as against the person who made it. Hence it is well known as all confessions are admissions but all admissions are not confessions. Further discussion will be observed on the differences between the two aspects (admission and confession).

The meaning of the word confession as given by Phipson clearly suggest that all confessions are admissions as he define the term confession as an admission made by a person charged with a crime.

In most cases, confession is in itself an admission because the accused person admits the case in whole. Confessions by themselves contain the admissions with which the person charged admits.

A distinction here is that; an admission of a fact from which guilty is directly deducible or which within and of itself impose guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilty and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely an admission.

In addition, a confession always goes against the person making it while an admission may be used in favour of a person making it. Thus it can be said that generally the rule governing confession is rigid and has no exceptions. When a person makes a statement which qualifies to be a confession under the Evidence Act such will be used against the maker and never in his favour and at this instance it is an admission.

However the general rule in regard to admission is that admissions are to be used against the maker. The rule though has some exception which allows admissions made in the favour of the maker admissible as admission. From this it can be deducted that all confessions are admissions in the sense that they are made against the interest of the maker but not all admissions are confessions due to the fact that there some admissions which are made in favour of the interest of the maker.

Another aspect to be reflected here is that, where a conviction can be based on statement alone, it is a confession. This was reiterated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R ; “A statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

Hence a confession if deliberately and voluntarily made may be accepted as conclusive in matters confessed; this was similarly stated in the case of QUEEN-EXPRESS V. SANGAPPA whereas in admission some supplementary evidence is needed to authorise conviction. Thus an admission is not a conclusive proof of the matters admitted, but may operate as estoppel.

Moreover no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative offence to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantial all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of it self a confession.

A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him while an admission usually relate to a civil transaction yet they may be used in criminal proceedings, this indicate that admissions covers both criminal and civil maters but confession is only to be found in criminal matters. Due to the veracity that the confessions are found only in criminal proceedings and admissions are found in both criminal and civil matters it follows as the day follows night that all confessions will fall in the category of admissions found in criminal matters.

However  confession is not taken as admission due to the fact that though confession is taken against the person making it in other instances the confession of one or two or more accused persons jointly tried for the same offence can be taken into consideration against co-accused as stipulated under section 33 of the Evidence Act. While admission by one of several defendant in a suit is no evidence against another defendant. This shows that not in all instances confessions are admissions basing on the premise that admissions can only be used against the maker which is contrary to the rules governing confessions which allows confession to be applied to the co accused.

Phipson explains that admissions by party have always constituted an exception to the hearsay rule, one kind of admission being confession by an accused person, that is, an admission by him about the facts charged against him.

The case of R.V. MKARETH illustrates the situation supporting that not all admissions are confession. It was stated: ‘A statement of a confession must be the one which in the absence of explanation or qualification and any particular circumstances, clearly points to the guilty of an accused person’.

When a person admits allegations, he is actually admitting the commission of such crime and such statements by themselves are highly considered. The contrary is in admissions where as it is provided under section 26 of The Evidence Act that admissions are not conclusive proof to a matter in controversy.

Part B of the question.

DISCUSSION OF THE ISSUES. From the question, Juma is charged with murder. During investigation, he states to the police officer that, “It is true that the knife believed to have been used in killing deceased is mine and it has all along been in my possession.” The issue to be discussed is whether the statement given by Juma is confession or otherwise.

A confession is acknowledgement of fault, wrong doing made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. For a statement to amount into a confession it should have the following qualifications:-

First, it must be freely and voluntarily made by the accused person. From the given scenario we have been told that, Juma made a statement to a police officer and there is no further information as to whether Juma was compelled in any way in making the statement. This can be taken as a presumption that the confession was voluntarily made. In this requirement it is upon the prosecution to prove affirmatively to the satisfaction of the court that it was voluntarily made and not obtained by any improper means.

Another requirement is that, for a statement to be a confession it should be made to authorised person. The Evidence Act stipulates persons who can receive confession as; a police officer as provided under section 27, a Magistrate and Justice of peace as provided under section 28 of the Evidence Act. These are the only persons who can receive confession under the Evidence Act. According to the scenario, Juma made confession to the police officer. This fact suffices the respective requirement of confession.

The other requirement is that, the statement must be made by the accused person. From the question Juma who is charged of the offence is the one who made the statement.

However it should be noted that, for a confession to be admissible a person must either admit in terms the offence or at any rate substantially all facts which constitute the offence, as it was stated in the case of R V. BAMPAMIYKI that; “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.”

An admission of a gravely incriminating fact is not itself a confession. In SWAMI V. KING EMPEROR the court held 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 facts which constitute the offence.

Further the Privy Council stated inter alia that; “An admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession. For example an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession.”

On the same footing in the case of PALVINDAR KAUR V. STATE OF PUNJAB whereby the accused was charged with murder and destruction of evidence for having committing murder of her husband by administering potassium cyanide poison and for causing destruction of her husband dead body. During investigation and trial, she stated;

“My husband fond of hunting as well as photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took the liquid which was meant for washing the photos. If fell down and died. Due to fear I put his body in a trunk and threw it into a well.”

The Supreme Court held that; the statement of the accused did not amount to confession.

Therefore it can be said that if a statement given by an accused person can lead into conviction of the person without adducing other evidence to corroborate it such is a confession. This was clearly stipulated in the case of R V.MKAREH (supra) that “We think that the test is whether statement is such that in the absence of any explanation or qualification and in particular circumstances, it points clearly to the guilty of the maker. thus statement ‘I killed him’ unaccompanied by any exculpatory statements and uttered in relation to a person who has died of a natural cause or to missing funds as the case may be are in our view indicative of guilty and therefore a confession.”

However, this distinction is not taken in some other jurisdictions. In England, all incriminating admissions by an accused person count as confession. For example, in England, there is no difference in this respect between “yes, I killed him” and “yes, I was near the scene of the crime”. In England thus, statements by Juma amounts to confession.

Distinctly, in India, only that portion of information which relates distinctly to the fact discovered can be proved. Thus a statement “I stabbed X with my knife. I threw my knife in the well of my house” in India it will be taken differently. The first part of the statement that is “I stabbed X with my knife” is inadmissible as a confession, while the second part, that “I threw my knife in the well of my house” is admissible as confession. Therefore the statement of the accused “I threw my knife in the well of my house” is only admissible because it leads to the discovery of the knife. The other part of the statement is then inadmissible.

REMARKS: From the given scenario the statement by Juma does not amount to a confession and thus not admissible as evidence due to the fact that the statement does not show that the accused is admitting to have committed the offence and thus not admissible. This is backed up by the reasons given above that for the confession to be admissible it should be an unequivocal admission. The same had been repeated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R (supra) “a statement is not a confession unless it is sufficient by it self to justify the                                                                        conviction of the person making it of the offence with which he is tried.”

This statement drives us to the conclusion that the mere fact that the accused stated to have possessed the knife which ultimately killed the deceased and was in the possession of the said knife is not the sufficient ground to incriminate the accused.

The statement in the scenario by the accused can be taken as the evidence for the case of admissibility where it is corroborated, as an admission. The statement that does not amount to a confession is only evidence against the maker of it, thus an admission.

ALTERNATIVE ANSWER

TABLE OF CONTENTS PART (a) 1.0: INTRODUCTION 1.1: Meaning of the terms Confession and Admission

2.0: MAIN BODY 2.1: Distinction between Confession and Admission 2.2: Similarities between Confession and Admission 2.3: How all Confession and Admission

3.0: CONCLUSION

PART (b)

1.0: Summary of material facts 1.1: Framing of issues 1.2: Discussion of issues 1.3: Conclusion PART (a)

1.0: INTRODUCTION The general rule in both civil and criminal cases is that any relevant statement made by a party is evidence against himself. 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 favour of such a party. It is from this remark where we draw our need for the general understanding of the concept of admissions and confessions.

1.1: Understanding of the term confession and admission. The term confession has been defined by various jurists and even some judicial decisions have taken their consideration in defining this term. Ratanlal R. 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 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.

Under The Evidence Act (hereinafter to be referred to as Cap 6), the term confession is defined under section 3(1). From the provisions of this subsection it can be seen that confession can be words or conduct, or combination of the two which when treated alone or in conjunction with other facts proved, can draw an inference that through such words or such conduct then the particular person committed an offence. It also include a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence.

As per Cap 6, confession also mean a statement containing an admission of all the ingredients of the offence with which its maker is charged or that is a statement containing affirmative declarations 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.

Judicial decisions in that respect have also tried to either adopt such position of the law or sometime giving much more explanatory meanings of the term confession. 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 to 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”

Therefore from the above definitions it can be said that there are certain ingredients which must be satisfied for words or conduct to amount to a confession. Such ingredients include that it should be freely and voluntary, made to a police officer or magistrates or justice of peace. It is also important to note that the confession also must be taken as a whole or in part.

The law provides that such statement must be free from threats, promise or other prejudice held out by a police officer to whom it was made or by any member of the police force or by any other person in authority. However the test is objective in the fact that not every inducement has the effect of making confession involuntary.

This position of the law was observed in the case of JOSEPHAT SOMISHA MAZIKU V R where 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 threats, or promise; it is inadmissible only if the inducement or threat, was of such a nature as likely an untrue admission of guilt…”

Classification of confessions can be grouped into two: that is judicial and extra-judicial confessions. It is judicial when made before a magistrate in the course of legal proceeding and it is extra judicial when the accused person makes a statement confessing the crime he is being charged of elsewhere than in a court of law.

On the other hand the term Admission is defined under section 19 of Cap 6 as to mean; “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”

Admission has to contain the following ingredients that it has to be a statement oral or written, which suggests the inference in relation to a fact in issue or relevant fact and may be made by any of the following persons; a party to a proceeding or suit, an agent authorized by an agent or a party to a suit, persons having proprietary or pecuniary interests in the subject matter at issue, persons who are predecessors on interests or title, persons whose positions must be proved as against party to suit and persons expressly referred to by a party to suit. It has also to have been made in the circumstances prescribed in Cap 6.

In the case of R V MCGREGOR it was stated that the weight of admission increases with the knowledge and deliberation of the speaker, or solemnity of the occasion on which it was made.

2.0: MAIN BODY This question requires among other things as to the discussion in relation to the fact that ‘all confessions are admissions but the reverse is not the case’. The basis of this statement draw us to the perception that the question needs the clear distinction between the two concepts and at the same time show where the two seem to merge to each other. In that sense, we are going to discuss the said statement in that basis.

2.1: Distinction between the two terms. Phipson and Elliot say that there is a distinction between an admission of a fact from which guilt is directly deducible or which within and of itself imports guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilt and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely and admission. This was a position in the case of STATE V PORTER. Other differences are the difference as to the nature of the proceedings. That is, Admissions are generally made in both criminal and civil cases while Confessions are made only with respect to the criminal cases. In criminal cases admissions are applied in those matters which have no criminal intent. Confession is part of admissions and therefore an admission of guilty. This view was made in the case of R V RILEY where the court stated that a plea of guilty amounts to an admission of the offence charged, that is, the acts charged and the application of the law thereto, but not the truth of the depositions.

Confession always goes against the person against the person making it while admission may in certain circumstances be proved on behalf of the person making it. Confession can be taken as a whole or part the offence charged while admission has to be taken as a whole not part. This, in as far as admissions are concerned, was held in the case of MOHAMMAD KOYA V MUTHUBOYA where it was stated that; “It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission of any fact.”

Confession must be in affirmative in both ingredients of the offence which is actus reus and mens rea while admission may lack one of this ingredients which may lead to different interpretation. It can be illustrated as follows; Where A upon separating B and C who were fighting in a train compartment, A pushed B who dropped in the joint which separated the compartment and died instantly. Before the, court A admits that he caused the death of B in due process of separating him from C. That admission cannot amount to a confession of an offence of murder since there is no proof as to the mens rea.

In MATHEI FIDOLINE HAULE V Rsupra the appellant assaulted his mother who he believed to be a witch. In convicting the appellant the trial Judge relied on two pieces of evidence. The first was a statement the appellant made to his village chairperson that he had assaulted his mother. The second was the cautioned statement alleged to have been made by the appellant before a police officer who at the time of the trial was reported dead. The trial Judge treated both pieces of evidence as confession.

The Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother could not really be taken to amount to a confession to the offence of murder with all its essential ingredients. This is to say that statement fell short of being admissible as a confession due to lack of fulfilling the other ingredient of an offence.

2.2: Similarities between the two concepts. Both admissions and confessions have some features which appear in the two. These include the fact that both can be made as judicial or extra judicial, can be made by words or conduct or combination of both, as a general rule the burden of proof in both lies on prosecution with respect to criminal matters and that in both there is a conditional precedent that they should be made voluntarily.

2.3: Whether all Confessions are admissions and that the reverse is not true. From the above discussion of the distinction and similarities of admissions and confessions this paper reaches a stage of showing as to how all confessions are admissions and that the reverse is not the case.

In the case of QUEEN-EMPRESS V BABU LAL it was held that the statement that a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime, is a genus. That is, admission is the species and confession is the sub-species. This implies that a confession is a statement made by an accused admitting his guilt

Sarkar says that confession might be inadmissible, which yet for other purposes would be admissible as an admission. In other words all admissions are not confessions but all confessions are admissions. And that only voluntary and direct acknowledgement of guilt is a confession. But when a confession falls short of actual admission of guilt, and is not taken down according to law, it may nevertheless be used as evidence against the person who made it, as an admission

The fact that admissions are applied in both criminal and civil proceedings justifies the truth that admissions are wider than confessions since the latter are only in criminal proceedings and therefore falling within admissions in that sense. This can be drawn from the provisions of Cap 6 which defines the two terms where admissions are not confined to criminal or civil matters only while confessions are confined in criminal matters.

Also the fact that statements which does not amount to confessions can be treated as admissions draw the observation that confessions are within admissions. This is on the reason that admissions are mainly concerned with fact in issue or any relevant fact. Hence a statement which does not amount to a confession but which is relevant to the fact in issue or any other relevant fact can be admitted as admission is the light of Section 19 of Cap 6.

3.0: CONCLUSION From the above discussion, and to that extent, we are of the views that it is true that all confessions are admissions and that the reverse is not true. This statement however has to be treated inline with such distinction that fall within the two concepts in the law of evidence

PART (b)

1.0: Summary of the material facts From the stated scenario the facts of the case can be summarized as follows that Juma is charged with murder and that during investigations he made a statement to a police officer that; “It is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possession” It is required to consider the admissibility or otherwise of that statement during the trial.

1.1: Framing of the issues Since the first part of this question has dealt to a great extent with the concept of confession and that of admission, it follows therefore that we go direct to the framing of the issues with respect to this part of the question. The issues here are whether the statement is an admission or confession and whether the said statement is admissible.

1.2: Discussion of the issue For a statement to amount to a confession it has to satisfy various tests. These include that the statement must be made by the accused person, freely and voluntarily and before a police officer, magistrate and justice of peace. And it has to be noted that a confession must relate to the offence in question. If the purported admission makes out no offence, the provision relating to confession would not come into play. This was the position in the case of GANESH TRADERS V DISTRICT COLLECTOR, KARIMNAGAR

It is important that a confession has to be addressed to some person. This is the position in Cap 6 where, as we pointed out earlier, it is provided under the provisions of Sections 27 and 28. In the case of PANDRA KHADIA V STATE OF ORISSA it was pointed out that a confessional statement must be addressed to some person and that, therefore, the accused going round the village and shouting that he had killed his wife did not amount to confession. In the question at hand Juma’s statement is said to have been made before the police officer. However the issue still remain there as to whether that is sufficient to amount to a confession.

Lord Atkin in PAKALA NARAIN SWAMI V EMPEROR stated that; “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession”.(Emphasis is ours)

The position in Tanzania is well illustrated in the case of MATHEI FIDOLINE HAULE V Rsupra where the Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother leading to her death could not really be taken to amount to a confession to the offence of murder with all its essential ingredients.

The fact that Juma is the owner of the said knife and all such facts that are connected with that knife does not by itself establish the guiltiness of Juma as to the alleged offence of murder since mens rea, and that is malice aforethought has to be proved so as to amount to a confession. Though the statement of Juma can draw a suspicion that Juma might be the killer of the deceased, yet that statement does not talk anything on the other element of the offence.

In the case of ALLY FUNDI V R the High Court of Tanzania stated that; “…a mere opportunity to commit an offence cannot be the basis for convicting an accused person. If the law were otherwise, no one in this country would have been safe…suspicion, however grave it may be, cannot be a substitute for proof in a court of justice”

Those observations draw us to a conclusion that the said statement is not a confession. The issue is whether now the statement is an admission. This seems to be undisputable in the light of section 19 of Cap 6. The said section defines the term admission and it provides that a statement whether oral or written which suggests any inference as to a fact in issue or relevant fact made by any person mentioned in the Act under the circumstances provided therein amounts to an admission. Our interest here is on the phrases fact in issue and relevant fact.

Fact in issue is defined under section 3(1) of Cap 6 to mean any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. In the question at hand the main issue is whether Juma murdered the deceased. And on the other hand a fact is said to be relevant where it shows or constitute a motive or preparation for any fact in issue. It is clear that the statement as to the effect that Juma is the owner of the knife that is believed to have been killed the deceased and that at all material time he had in possession of it is essentially a relevant fact in as far as the fact in issue is concerned. This is to say, that statement passes the test of being admission within the meaning of section 19 of Cap 6.

The next issue is whether such statement is admissible. In the case of BISHEN DAS V RAM LABHAYA, an accused, a woman, was charged with murder of a deceased man. Before the court she admitted that she killed the deceased but that was done in her attempt to rescue herself from being raped by the deceased. The court held that the statement did not amount to a confession of an offence of murder but yet it was admissible as an admission of the fact.

This is to say that Juma’s statement is admissible as admission against himself though is not a conclusive evidence  against him in the offence for which he is charged with rather it has to be corroborated with other evidence to prove the guiltiness of Juma to the charge of murder. It is a statement which draws an inference as to the commission of an act of killing but there should be other evidence to prove mental element necessary in proving the offence of murder, that is, malice aforethought.

On the other hand, if for instance, the knife which killed the deceased would have not yet been discovered by the police and that the statement uttered by Juma was one which lead to the discovery of that knife as one which killed the deceased, then the position of the law in as far as the admissibility of the said statement would have been that under section 31 of Cap 6. The purpose of the said section is to render admissions admissible material facts or material object or objects discovered due to the information provided by an accused while under police custody.

Juma’s statement, in our views, does not fall within the four corners of section 31 since the knife which Juma is making statement to it was already discovered by the police and the investigation believes that the said knife was used to kill the deceased. Hence the statement is not leading to a discovery of a knife rather it is only relevant as to the owner of it. This implies that admissibility of the said statement is basically with respect to the provisions under section 19 of Cap 6.

1.3: Conclusion It follows from the above discussion that Juma’s statement is admissible as evidence against him and that it will be treated as an admission relevant to the fact in issue which in actual fact as per question, is murder.