MZUMBE UNIVERSITY

FACULTY OF LAW

PROGAMME: LLB- II

SUBJECT: LAW OF EVIDENCE II

CODE: LAW 223

LECTURER: I. PUNGE

TYPE OF TASK: GROUP ASSIGNMENT

DATE OF SUBMISSION: 25TH JULY, 2021

GROUP No. 6

STREAM: B
S/No. NAMES REGISTRATION NUMBER
01. JEMA AGREY KYANDO 11301099/T.19
02. FAUDHIA SAIDI IKONDE 11301115/T.19
03. GRACE MSELYA SOBAYI 11301119/T.19
04. IBRAHIM ABDALLAH OTHMAN 11301159/T.19
05. ESAU ADUOGO NDEGE 11301174/T.19
06. JAMES BARUTI 11301179/T.19
07. CHARLES PASCHAL 11301259/T.19

QUESTION
Mashaka and Mapesa are jointly charged of robbery. At a police station; a police officer with the
rank of inspector separately interviewed them. Mashaka wrote his own statement in which he
admitted his involvement in robbery and he stated that Mapesa was his accomplice in
committing the offence. In Court Mapesa denies the charge. The prosecution wishes to rely on
Mashaka’s confession in charging both accused persons. What is the legal implication of the
confession made by Mashaka to a police officer?

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 TABLE OF CONTENTS
1.0 Introduction................................................................................................................................1

2.0 The Legal Implication of the Confession Made By Mashaka to a Police Officer.....................1

2.1 Conditions Necessary for Confession Made by Mashaka to A Police Officer to be Considered
by the Court.....................................................................................................................................2

2.1.1 It must be proved....................................................................................................................2

2.1.2 It must be corroborated by independent evidence..................................................................2

2.1.3 There must be a Joint trial of the accused for the same offence.............................................4

2.1.4 The Joint trial must be Permissible in law..............................................................................4

2.1.5 The Confession must implicate the Maker and his co-accused..............................................5

3.0 Conclusion...............................................................................Error! Bookmark not defined.

BIBLIOGRAPHY............................................................................................................................6

i
1.0 Introduction
The Confession is a voluntary statement made by a person charged with the commission of a
crime or misdemeanor, or communicated to another person, where he acknowledges himself to
be guilt of the offence charged and disclose the circumstances of the act or the share and
participation he had in it1. While, on the other hand, a confession of co-accused occur when the
accused person confess not only for himself but also implicate the co-accused as his accomplice
in the commission of the alleged offence2.

The position of the Evidence Act3 is that when two or more persons are being tried jointly for the
same offence or for difference offence arising out of the same transaction, and a confession of
the offence or offences charged made by one of those persons affecting himself and some other
is proved, the court may take that confession into consideration against that other person4

The expression “Court may take into consideration” is of most significant it signifies that such
confession by the maker as against the co-accused himself should be treated as a piece of
corroborative evidence. In absence of any substantive evidence, no judgment of conviction can
be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or a
judicial confession and least of all on the basis of retracted or repudiated confession5.

2.0 The Legal Implication of the Confession Made By Mashaka to a Police Officer
The legal implication of the confession made by Mashaka to a police officer against his co-
accused Mapesa is that the court may take that confession into consideration against Mapesa, as
per the requirement of Section 33(1) of the Evidence 6 which provide that “when two or more
persons are being tried jointly for the same offence or for difference offence arising out of the
same transaction, and a confession of the offence or offences charged made by one of those
persons affecting himself and some other is proved, the court may take that confession into
consideration against that other person”
1
Garner, B.A., (2014), Black’s Law Dictionary, 10th ed, Texas: West Thomson Reuters, p. 369
2
Mirindo, F., (2014), Administration of Justice in Mainland Tanzania, Dar es Salaam: LawAfrica Publishing (T)
Ltd, p 261
3
[Cap 6 R:E 2019]
4
Section 33(1) of the Evidence Act[Cap 6 R:E 2019]
5
Monir.M., (2010), Text Book on the Law of Evidence, 8th ed, New Delhi: University Law Publishing House, page
136
6
[Cap 6 R:E 2019]

1
It is urged that Section 33(1) of the Evidence Act 7 is an exception to the general rule that
confession can only be admitted against the maker only. This section allows the confession by
one person to be admitted against a co-accused.

2.1 Conditions Necessary for Confession Made by Mashaka to A Police Officer to be

Considered by the Court
It is true that Section 33 (1) of the Evidence Act 8 provide that confession of the co-accused may
be taken into consideration against another co-accused, however the following conditions are
necessary to be met before the confession made by Mashaka to a police officer should be
considered by the court against his co-accused Mapesa, the conditions include:

2.1.1 It must be proved

It is true that the court may take into consideration the confession of co-accused against the other
co-accused. However, the requirement is that such confession must be proved first before taken
into consideration by the court, there is no better explanation over this necessary conditions than
the word of Samatta Judge in the case of Saidi Hatibu v. Republic9 where he stated that it is
doubtful that a plea of guilty made by the accused can be taken into consideration against his co-
accused without the same being proved during the trial by the testimony of a person who was
present in court and who heard the plea being made. The use of word “proved” under section
33(1) of the Evidence Act would tend to suggest that evidence must be adduced to establish that
the pea was made. This would appear to be so even if the magistrate who took down the pleas is
the same who later tried the co-accused.

2.1.2 It must be corroborated by independent evidence

It is true that a confession of co-accused may be taken into consideration against other co-
accused10. Meaning that, a confession made by Mashaka in our scenario may be taken into
consideration by the court against his co-accused Mapesa. However, the vital condition is that
the confession of the co-accused cannot based solely to convict the accused without
corroboration by independent evidence, as per the requirement of the Evidence Act 11 which

7
[Cap 6 R:E 2019]
8
[Cap 6 R:E 2019]
9
(1984) T.L.R 280
10
Section 33(1) of the Evidence Act [Cap 6 R:E 2019]
11
Section 33(2) of the Evidence Act [Cap 6 R:E 2019]

2
provide that a conviction of an accused person shall not be based solely on a confession by a co-
accused. What is needed is independent evidence from a trustworthy source, which when linked
and supported by the confession of the co-accused, removes beyond any reasonable doubt the
question of innocence12.
The same view was expressed in the case of Karanya s/o Njonji and Ors v. Republic 13 where the
court said: “We are quite satisfied from our study of the Indian cases, that it is incorrect to regard
a confession made by one accused in an extra-judicial statement as a basis for a case against a
co-accused, and to hold that with some corroboration it is safe to convict.

The same rule was emphasized by the High Court in the case of Ally Fundi v. Republic14 the
court said that: “.....a confession can only be used as lending assurance to the evidence against
the co-accused, evidence which only falls short by a very narrow margin of the standard of proof
necessary for conviction and it must be corroborated.

Again, the position was maintained in the case of Asia Iddi v. Republic15 where in this case the
appellant was jointly charged at Kondoa District Court, with another person, Clemence William,
with the offence of Stealing by Servant c/s 265 and Section 270 of the Penal Code Cap 16 and
she was convicted on the strength of a co-accused's confession together with independent
testimony of witnesses who were in one way or another involved in the transaction. On appeal
the High Court held that conviction cannot be based solely on a confession by a co-accused.
There must be, in addition, other independent testimony to corroborate it.

In the case of Lubeleje Mavina and another v. Republic 16 the Court of Appeal rejected the
confession of the Appellant’s co-accused because they were not corroborated the court that “so,
even if we accept that the confession of the appellant’s co-accused were voluntary made and
true, the mandatory provisions of the law enjoin us from basing a conviction solely on those
confessions. As there is no independent evidence to corroborate those retracted confessions,

12
Massawe A.A.F., (2004), The Burden of Proof; How to Defend Yourself in Criminal Cases, Morogoro:
Mzumbe University (Research and Publication Department), page 93
13
(1953) 20 E.A.C.A.324
14
[1983] TLR 210
15
[1989] T.L.R 174
16
Criminal Appeal No. 172 of 2006 Court of Appeal of Tanzania at Dodoma (unreported)

3
Section 33(2) of the Evidence Act covers squarely this case. In the event, we are left with no
evidence to sustain the conviction of the appellants they are entitled to acquittal17.

To finalize this part, the important point to note is that the confession of the co-accused differ
from the evidence of accomplice as it was stated in the case of Frank Simon v. Republic18,
where it is was held that a co-accused is not an accomplice for the Section 142 of the Evidence
Act19, where the evidence of an accomplice does not need corroboration, while the confession of
the co-accused must be corroborated with other independent evidence before it relied upon for to
warrant conviction against the co-accused.

2.1.3 There must be a Joint trial of the accused for the same offence
It is trite requirement of the law that for confession one accused to be taken into consideration
against another co-accused then there must be a joint trial for the same offence, meaning that
both accused must be present and stand charged jointly before the court as it was insisted in the
case of Saidi Hatibu v. Republic20, where in this case the appellant was charged and convicted of
cattle theft, contrary to section 268 of the Penal Code and was sentence to a term of five years
imprisonment. The conviction based on the confession made by is co-accused who was not
present before the court during trial. On appeal the Court of Appeal held that;

“It is doubtful that a plea of guilt made by the co-accused can be taken into consideration against
his co-accused without the same being proved during the trial by the testimony of a person who
was present in court and who heard the confession or plea being made, because if the accused is
not on trial, how can he possibly be said to be jointly tried with his co-accused”

2.1.4 The Joint trial must be Permissible in law

It is trite requirement of the law that for confession one accused to be taken into consideration
against another co-accused then the joint trial of both accused must be permissible (legal) in law.
If for any cause the accused who made the confession cannot be legally tried with the accused

17
Mirindo, F., (2014), Administration of Justice in Mainland Tanzania, Dar es Salaam: LawAfrica Publishing (T)
Ltd, p 260
18
Criminal Appeal No. 91 of 2007, Court of Appeal of Tanzania at Mbeya (unreported)
19
[Cap 6 R:E 2019]
20
(1984) T.L.R 280

4
against whom the confession is to be used, the court should not attach any value to the
confession21.

2.1.5 The Confession must implicate the Maker and his co-accused
The confession must appear to implicate the maker of the statement to the same extent as to the
co-accused. The object of this section is that where an accused person unreservedly confess his
own guilt and at the same time implicates another person who is jointly tried with him for the
same offence, his confession may be taken into consideration against such other person as well
as against himself. When a person admits his guilt to the fullest extent and exposes himself to the
pains and penalties provided therefore, there is a guarantee for his truth. However, this is a very
weak guarantee, for a confession may be true so far as its maker is concerned but may be false
and conducted through malice so far as it affects others22.

3.0 Conclusion
To conclude our discussion, we would like to state that the legal implication of the confession
made by Mashaka to a police officer against his co-accused Mapesa is that the court may take
that confession into consideration against Mapesa, as per the requirement of Section 33(1) of the
Evidence23. However, the confession made by Mashaka must be proved and must be
corroborated by other independent evidence before it relied upon to warrant safe conviction of
Mapesa if the court found him guilty.

21
Desnnis I., (2007), Law of Evidence, London: Sweet and Maxwell, page 248
22
Wooddroffe J., and Ali S.A., (2009), The Law of Evidence, 18th ed, New Delhi: Lexis Nexis Butterworth’s
Wadhwa, page 6007
23
[Cap 6 R:E 2019]

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 BIBLIOGRAPHY
STATUTES

The Evidence Act [Cap 6 R: E 2019]

The Penal Code [Cap 16 R: E 2019]

BOOKS

Desnnis I., (2007), Law of Evidence, London: Sweet and Maxwell, page 248
Garner, B.A., (2014), Black’s Law Dictionary, 10th ed, Texas: West Thomson Reuters, p. 369
Massawe A.A.F., (2004), The Burden of Proof; How to Defend Yourself in Criminal Cases,
Morogoro: Mzumbe University (Research and Publication Department), page 93
Mirindo, F., (2014), Administration of Justice in Mainland Tanzania, Dar es Salaam:
LawAfrica Publishing (T) Ltd.
Monir.M, (2010), Text Book on the Law of Evidence, 8th ed, New Delhi: University Law
Publishing House.
Wooddroffe J., and Ali S.A., (2009), The Law of Evidence, 18th ed, New Delhi: Lexis Nexis
Butterworth’s Wadhwa.

CASE LAWS

Ally Fundi v. Republic [1983] TLR 210

Asia Iddi v. Republic [1989] T.L.R 174
Frank Simon v. Republic, Criminal Appeal No. 91 of 2007, Court of Appeal of Tanzania at
Mbeya (unreported)
Karanya s/o Njonji and Ors v. Republic (1953) 20 E.A.C.A. 324
Lubeleje Mavina and another v. Republic Criminal Appeal No. 172 of 2006 Court of Appeal of
Tanzania at Dodoma (unreported)
Saidi Hatibu v. Republic (1984) T.L.R 280