Wadhwa and Company Law Publishers

The major function of the law of Evidence is to regulate as to what facts may be proved and by whom and in what manner the evidence must proved. Going by this statement the following observations are of importance in the enhancement of the law of admissions in criminal cases. Admissions, though sometimes strong evidence are not necessarily conclusive proof of the matters admitted but what a party himself admits to be true may reasonable be presumed to be so unless the maker of the admission provides an acceptable explanation before the court that he did not mean what is alleged to have been admitted.

Admissions may not in themselves form a basis of a conviction or judgment in favour of the party the proceedings. In this study, it has been shown that admissions play a very important role in criminal justice to establish criminal charges. In some cases they may be the only available means of proving guilt. However, we have equally shown that admissions are not without weaknesses, which may reduce the probative value of an admission in given situations. For instance, the trial judge or magistrate has the discretion to admit any admission.

It is the trial judge who has to be convinced that a confession is or was not voluntarily made. In so doing the judge has to determine whether the admission was obtained by inducement or involuntarily68 or if the accused knew the fact he is alleged to have admitted. The discretionary powers of the judge to our opinion reduces the probative value of admissions for the judges are human beings hence not infallible in their judgment of facts. The good example is the case of Hatibu Gandhi and 18 Others v R69 Mnzavas J. K. (as he then was) ruling on a trial within trial in respect of Cap.

Mbogoro he stated, inter alia, that: "with respect I tend to agree with the learned Counsel's argument that Mr. Magesa (Justice of Peace) did not show in the statement of Mbogoro that he cautioned him and I must add that the manner in which he took Mbogoro's statement left much to be desired. But with even greater respect to Mr. Tarimo (Counsel for defence), it cannot be said as a matter of law that absence of a caution make the statement inadmissible. " The judge went further to say: "certainly in this case we have to take into account that Mbogoro is not a humble villager who does not know his rights in law.

He is educated and above all he is an army Captain who should be expected to know his rights. " This was a treason case. In this case the court used its discretion to hold that some of the confessions statements were voluntary despite the fact that there were allegations of non-adherence of rules of procedures, torture, overdue detention in police custody and inaccessibility of lawyers. Another instance which reduces the evidentiary value of admissions is the admissibility of admissions which are relevant and true but obtained by inducement.

Since the purpose of the law is to ensure justice is done, in the author's opinion, it is unjust to consider a true and relevant evidence inadmissible just because it was obtained by inducement. Indeed the decision of the court in the case or R v Bhagi70 defeats the purpose of the law. In this case Beama J. asserted that: "If it appears to the judge that a confession has been improperly induced, no matter how true it may be, he is bound to exclude it. " This view was adopted by Tanzanian courts that what is important is not truth or relevancy but voluntariness.

If these two elements truth and relevance are neglected for lack of voluntariness then 'criminal justice' is denied. Furthermore, the courts in Tanzania have been dealing with co-accused's confession on the same footing as accomplice evidence. In other words, a co-accused's confession is used as a basis of the prosecution case and not as proof thereof. Other evidence is brought in to corroborate the confession. This practice is not healthy as it reduces the value of admissions by the co-accused. The proper procedure should be to use the co-accused's confessions as evidence corroborating the independent evidence of the prosecution case.

We conclude therefore, that, admissions are species of evidence which have high probative value as compared to other types of evidence such as circumstantial evidence, hearsay evidence and even expert opinion. They thus play an important role in the criminal justice and in some cases they may be the only available means of proving guilt. Thus it is important for the court to balance the two by protecting both the public interest as well as the interest of the accused.

BIBLIOGRAPHY

Cross on Evidence, 6th ed. London Butterworths 1985. Cowen Zelman, Essays on the Law of Evidence Durand, P. P. , Evidence for Magistrates, Lower Kabete Kenya, Institute of Public Administration 1969 Ed. Fields, Law of Evidence, (10th – 12th Edn) (Skar) (PUT) Ltd. , Calcuta Morris, H. F. , Morris on Evidence, London Sweet and Maxwell 1968. Munir principles and Digest of the Law of Evidence 2nd ed. Vols 1 – 2 Phipson on Evidence, 15th ed. London Sweet and Maxwell 2000 Sarkar on Evidence, 14th ed. Vol. 1, Wadhwa and Company Law Publishers, Agra Nagpur India 1993 Shaukat Mahmood, The Evidence Act of India of 1987 (1970) Vol. I – III.