For a confession of an accused to be admitted in a criminal proceeding, it must be voluntarily obtained48. The requirement is absolute before the courts can accept the same as evidence and the onus of proof on the voluntariness of confession made is upon the prosecution49. In the case of R v Warricks Hall50 it was stated inter alia that: " a confession forced from the mind by the flattery of hope or by the torture of fear, comes in so questionable a stage when it is to be given to it; and therefore it is rejected. " It can, therefore, be said that if the accused is induced to so confess his confession is valueless and thus inadmissible.
But under s. 30 of TEA a statement obtained in accordance with s. 27 TEA if in the opinion of the court the inducement has been removed, the confession is admissible. This was the case in Arikanjero v R52 where the Police Officer told the accused the following statement: "you are going to say what you told me yesterday but I am not going to force you do so. " The court was satisfied that the removal was fully removed by the phrase "… but I am not going to force you to do so. " Furthermore, a confession obtained by promise of secrecy or by false representation is also admissible.
The rationale being that a self-harming statement as a result of a trick is good evidence. In Karuma Kamani v R53 the court held: "the mere fact that evidence was illegally obtained should not make it inadmissible in that a court always has a discretion to disallow that evidence. " Section 32 of TEA provides for confessions otherwise relevant not to become irrelevant. The section covers the situation not contemplated in ss 27 and 29. If a confession is inadmissible under ss 27 and 29 does not become inadmissible by any of the reasons mentioned under section.
Where someone is severely interrogated, it may in certain circumstances affect the voluntariness of a confession. In Rochin's54 case a Police Officer forcefully put a stomach pump into the prisoners through his anus to see whether the prisoner took drugs. The prisoner confessed that he was involved in a drug racket. It was held that "though the interrogation was done in a barbaric way, yet the confession was admissible as evidence. Statements leading to discovery need not amount to confession provided that the facts discovered and statements made must be in relation to the crime and the accused person.
The section insists that the fact deposed to as discovered must be relevant to the fact in issue and it must be concealed in the knowledge of the accused55. The court in Pulukuri Kottaya v R56 stated that it is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
A statement by an accused person in custody that "I will produce a knife concealed in the roof of my house" leads to the discovery of the fact that a knife is concealed in his house to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. " This ruling was cited in approval in East African Courts in the case of R v Mgomboi57 where the court held that an induced confession leading to discovery of a fact in issue is admissible in evidence if the circumstances show that it must have been a confession of the truth of the facts in issue.
Section 33 of TEA provides for confessions made by co-accused. For a confession of an accused to be taken into consideration as against his co-accused person, the same must have been charged together. It can be for the same offence or different offences arising out of the same transaction. Mzavas J. (as he then was) in the case of R v Faru Mabuku and Anor58 following R v Wanging'ombe and Anor59 held that "the only way in which such a confession can be taken into account against the co-accused is an evidence. But such evidence is such that of an accomplice. … it is unsafe to convict a person on an uncorroborated accomplice evidence"60.
Another case in which the condition under which a confession implicating a co-accused person can be taken into consideration was laid in the case of Sebastian Swai v R61 in the case the court held: "(a) For a confession by an accused person to be proved as against a co-accused, the statement should be a confession of the offence charged and not other offences, which may thereby be disclosed and admitted by the confessing accused. " "(b) The confession must implicate substantially to the same extend as to his fellow accused and must expose himself to the same risk along the fellow accused persons otherwise will not be taken into consideration"
Taylor says that admissions and confessions are usually treated as exceptions to the hearsay rule, considering them as declarations against interest, and, therefore, probably true62. The rule against hearsay evidence aims at the rejection of evidence which is not direct; but a confession is evidence which is direct and admissible, and, therefore, cannot be excluded by the hearsay rule. The weight or value of admissions relative to other pieces of evidence is evaluated on the basis of the fact in issue or relevant fact.
Its weight may be relatively low when it only explains a relevant fact and not the fact in issue for example, when the relevant fact is whether the accused was at the scene of the crime on or about the time the crime was committed. A piece of evidence in which the accused admitted whether directly or by necessary implication that he was at the scene of the accident has high probative value in relation to the proof of a relevant fact but, it has very low probative value to prove murder. This position is clearly reflected in the case of R v Madirisha Kitikiti65.
The fact in this case was that the deceased was beaten before maimed by the third accused while the first and second accused held him down on the ground. The third accused also admitted that he and the first and the second accused killed the deceased and that he threw the body of the deceased in the pit in belief that the deceased was dead. However, it was the court's view that the deceased died as a result of being thrown in the ravine. This view was influenced by the medical report which established that the death occurred as a result of skull fracture and not the maiming. But the deceased was also beaten.
Though the beating could also have resulted to skull fracture, since the medical report did not disclose as to exactly what act led to skull facture, the judge had the discretion to allocate the injury to where they though it fitted best. Such an admission has high probative value in relation to proof of a relevant fact but very low probative value to prove murder. Similarly an admission to the effect that "I hit him only once while others hit him several times" has high probative value to prove manslaughter, and more so if it is established that the deceased died of internal bleeding due to beatings.
As we have noted above the Law of Evidence Act, 1967 sets out the types of admissions admissible in courts of law. The relative probative value of the different types of admissions is determined by judicial discretion. The trial judge or magistrate is placed in the best position to evaluate the value and hence strength of an admission in relation to the matter to be proved, guided by the rules of burden of proof.
When a statement emanates from the party himself its value can be weighed through his or her personal knowledge of the fact stated. The weight of the admission increases with the knowledge and deliberation of the speaker, or the solemnity of the occasion on which it was made.
We have seen in this chapter that an admission if clearly and unequivocally made, is the best evidence and though not conclusive it shifts the onus on the maker. By the words 'clearly and unequivocally' we mean that a party making an admission must have knowledge of the matter in issue because if a man admits something of which he knows nothing it is of no real evidential value. In the case of Ibrahim v R66 the judge held: "… what a person having knowledge about the matter in issue say of it, is itself relevant to the issue as evidence against him. " Even if the admission relates to a matter of opinion, as long as the opinion is formed upon a sufficient basis of personal experience, the admission is admissible67 and it has high probative value.