Athumani Ally Nyabayi v. R. Crim. App. 154-M-70; 21/5/70; Seaton J.

Athumani Ally Nyabayi v. R. Crim. App. 154-M-70; 21/5/70; Seaton J.

The appellant was clerk in the office of the Regional Police Commander at Musoma, where his duties involved inter alia the processing of applications for permits to possess firearms. It was alleged by the prosecution that in July, 1969 he had corruptly obtained Shs. 30/- from one Gibago Kahumbe as an inducement to be issued with a rearm licence, and swallowed the Shs. 30/- in Tanzania Currency notes when about to be apprehended for the first mentioned offence. Accordingly he was convicted on two counts; of corrupt transaction with agent and defacing bank notes.

            Held: (1) “The main ground of appeal was that the conviction on the first count was based on the uncorroborated evidence of the complainant, Gideion a police spy ….. In support of his submission regarding the evidence of a police spy, the appellant referred to Mrs. Alexandra Parentis v. Rex, (1937), T.L.R. (Revised) 208. 

In that case, it was held by Dalton C.J. that the evidence of a police trap or decoy given in support of a charge of committing an offence is not in law the evidence of an accomplice and does not therefore in law require corroboration. In practice, however as a general rule, the evidence of such witness should not be acted upon, unless the evidence pointing to the guilt of the accused is corroborated in some material particulars. Learned State Attorney has drawn this Court’s attention to two more recent cases involving police spies or decoys. In Petro s/o Sang’undi v. R. (1968) H.C.D. n. 40, Cross J. held that the fact that complainant may have been acting as a police decoy did not require that her evidence be corroborated. The Parentis case (above-cited) was distinguished on the ground that that case involved professional decoys employed by the Police. Cross J, also distinguished Petro s/o Kasembe v. R. (1967) H.C.D. n. 338, an earlier decision by Georges, C.J., on the ground that the ruling in the last-cited case was based on its particular facts. Learned State Attorney pointed out that Georges C.J. had held in Kasembe’s case that the police decoy who took part in the trap should not be treated as an accomplice, and his testimony need not be corroborated as a matter of law. However he is not a disinterested witness and his evidence must be examined closely. Georges C.J. went on the state as follows: “Though corroboration would not be required as a matter of law, it would hardly ever be safe in practice to convict unless there was corroboration”. As there is already a wealth of judicial opinion on this subject of police spies or decoys, I am loath to add to it. In the present case, the complainant Gidion was a foreman at Buhemba mines who had sent in his application to the Regional Police Commander’s Office for a firearm permit and when it was delayed, went in person to inquire. He testified he saw the appellant at the office, who told him on each of the two occasions he went that he had too much work and was hungry. This the complainant interpreted as a solicitation for a bribe. He reported the matter to the Officer-in-Charge of Police who arranged with him a trap for the appellant. It is clear that the complainant is not professional decoy as was said to be used in the Parentis case (above-cited). Nevertheless at the very least, the learned Resident Magistrate should have directed himself that the evidence of the complainant, as he was not a disinterested witness, should be examined closely. He failed so to direct himself. In fact nowhere in his judgment does it appear that the learned Resident Magistrate was aware of the need for any particular care in regard to the evidence of police decoys, whether professional or amateur. In this respect, he was in error” (2) However, from a perusal of the record, it would appear that there was some corroboration of the evidence of the complainant that he handed the Shs. 30/- in two currency notes to the appellant who put them in his pocket. “The handing over of the notes was seen by Detective Inspector Maurice who said the appellant took hem out and chewed them in his mount when he saw the Detective Inspector following him on his bicycle”. (3) “From the evidence as a whole, I am of the view that despite the failure of the learned Resident Magistrate to direct himself on the evidence of a police spy or decoy, there was ample evidence to support the conviction. The sentence can certainly not be said to be excessive ……. The appeal is accordingly dismissed.”