The appellants were charged with treason contrary to s. 43 (1) (a) of the Penal Code, Cap. 146. They were alleged to have prepared to overthrow the Government by unlawful means; the first twelve overt acts
alleged that the various appellants, sometimes individually and sometimes with one or more of the others, recruited the persons named in the individual acts for the purpose of undergoing military training in South - West Africa. Overt act 13 alleged that all four appellants caused all the people named in the first twelve overt acts to go to South - West Africa for the purpose of undergoing military training. The full facts are set out in the judgment.
The principal grounds of appeal were (1) that the learned judge erred in failing to regard the eighteen military trainees as accomplices or as witnesses with possible purposes of their own to serve, (2) that he erred in failing to deal with the evidence against each appellant individually and in relation to each overt act individually, but simply lumped all the appellants and all the evidence together and found them all guilty, (3) that he failed to examine the conflicts and inconsistencies between the prosecution witnesses and consequently failed to consider 15 the weight and credibility of the prosecution evidence, and that he failed to examine the defence evidence as to alibis, and (4) that his refusal to grant the application for the remaining prosecution witnesses to be made available for cross - examination resulted in the appellants being denied a fair trial.
Held:
(i) Where the prosecution puts a witness forward as one who at the very least has an interest to exculpate himself the court cannot decline to treat him as such without some very positive reasons.
Muyangwa & Others v The People (1) followed.
(ii) Where because of the category into which a witness falls or because of the circumstances of the case he may be a suspect witness that possibility in itself determines how one approaches his evidence. Once a witness may be an accomplice or have an 30 interest, there must be corroboration or support for his evidence before the danger of false implication can be said to be excluded.
Musupi v The People (3) followed.
(iii) A decision as to the status of a witness based only on a belief in his honesty on the narrow issue i.e. as to the facts on which the decision as to his status turns - begs the question and is patently insufficient.
Dictum in Muyangwa & Others v The People (1) cited with approval.
(iv) The trial judge having appreciated that the witnesses in question might be accomplices or might have purposes of their own to serve, it was a misdirection to accept their evidence without looking for corroboration or support.
(v) The cases for and against the individual appellants were not the same and they each gave their own evidence in respect of allegations against them individually and called their own witnesses in support. The approach of the trial judge in treating 5 the four appellants collectively and as if the cases against them were the same was wrong and was one which is likely to lead a court into the error of glossing over evidence.
(vi) Where a witness whose name is on the list of witnesses under the summary committal procedure is capable of belief it is the prosecution's duty to call him even though the evidence that he is going to give is inconsistent with the case sought to be proved.
(vii) The prosecution having declined to call the witnesses whom the defence wished to cross - examine the refusal of the court to call those witnesses was an improper exercise of its discretion and resulted in the appellants being denied fair trial.
(viii) Trials should be kept as short as is consistent with the proper administration of justice.
Per curiam: For investigating officers to go to the lengths of repeated use of physical assaults and coercion, or for a trial court to lean heavily in favour of the prosecution, is almost certain to be counter - productive and may well result in the fatal weakening of an otherwise sound case. Such misguided enthusiasm, far from securing the conviction of the guilty, may well result in guilty men going free.
