Nwiroma Alli Hussein Nyamakaba v. R., Crim. App. 47-D-68, 15/3/68, Georges C. J.

Nwiroma Alli Hussein Nyamakaba v. R., Crim. App. 47-D-68, 15/3/68, Georges C. J.

Accused was convicted of theft by public servant. A statement written and signed by accused acknowledging a shortage of funds was admitted in evidence. Accused testified that this statement was induced by fear after an accountant had threatened to “ make things worse for him” unless he signed. Accused also claimed that a trial within a trial should have been held as to the admissibility of this statement. The prosecution also introduced the testimony of accused ’s assistant who had had access to the funds.

            Held: (1) The statement acknowledging the shortage did not constitute a confession to theft since many explanations of the shortage not involving criminal conduct are possible. Therefore, the sections of the Tanzania Evidence Act, 1967, concerning confessions are not applicable to the statement. The court stated, obiter, that even if the statement had constituted a confession, it would have been admissible. In contrast to the Indian Evidence Act, section 29 of the Tanzania Evidence Act, 1967, does not prohibit evidence of a confession merely because it resulted from a threat, inducement or promise. The confession is inadmissible only if the inducement was of such a nature as was likely to cause an untrue admission of guilt. The Court also noted that the evidence did not support accused ’s contention that the statement was induced by fear. (2) There was no objection at the time of the introduction of the statement, and so no trial within a trial was possible. In any event, the procedure of a trial within a trial is “highly artificial” where no assessors take part in the trial. It may be convenient to hear all of the evidence, including that of the accused, which concerns the admissibility of the statement at that stage of the trial, but it is not necessary to then re-record such evidence. If, as in this case, the objection comes at the end of the case, the magistrate can with equal facility rule then on the admissibility of the statement.

(3) Although the rules concerning retracted confessions do not strictly apply to mere admissions, a court should examine the circumstances of an incriminating admission with great care before relying upon it. The trial court did so in this case. (4) The testimony of the assistant could be considered that of a person with an interest of his own and as such would require corroboration. [Citing R. v. Parater, (1960) 1 All E. R. 298]. However, on the evidence in this case it can reasonably be held that the assistant was not a suspect an thus had no interest of his own.