The appellants were convicted of the murder of a farmer, who was shot and killed during an armed robbery carried out by five men. The appellants were identified by one witness as the occupants of a car which had been involved in an accident some three hours before the time of the murder; two of the appellants were identified, each by one witness, as having been among the five robbers, and a third was found some weeks later in possession of a firearm from which the fatal shots were proved to have been fired. The evidence as to who fired the shots was conflicting and the prosecution conceded that the case must proceed on the basis that it was not known who fired them.
The second, third, fourth and fifth appellants were alleged to have made confessions, to which objection was taken. The statement of the second appellant was excluded by the trial judge on the ground that it was extracted by beatings, but those of the other three, taken by substantially the same "team", were ruled to have been freely and voluntarily made and were admitted in evidence.
It was argued by the prosecution that even if the statements be excluded there was sufficient evidence to support the findings that the five robbers were the same men as the five occupants of the car involved in an accident three hours earlier; it was argued further that the trial judge was right in holding that the five robbers were shown to have a common purpose involving the carrying of a firearm, or alternatively that they were guilty of murder because they were engaged together in the commission of a felony in the course of which someone was killed.
Held:
(i) Where persons are engaged together in the commission of a felony and a death results from an act of one of those persons which goes beyond the common design to which the others were parties, those others cannot be convicted of the offence of which the one is guilty.
(ii) If a death results from the kind of act which was part of the common design then if the offence be murder in one then it is murder in all.
(iii) Where two or more persons are known to have been present at the scene of an offence and one of them must have committed it, but it is not known which one, they must all be acquitted of the offence unless it is proved that they acted with a common design.
(iv) Where a witness has been found to be untruthful on a material point the weight to be attached to the remainder of his evidence is reduced; although therefore it does not follow that a lie on a material point destroys the credibility of the witness on other points (if the evidence on the other points can stand alone) nevertheless there must be very good reason for accepting the evidence of such a witness on an issue identical to that on which he has been found to be untruthful in relation to another accused.
(v) Having just excluded a statement taken by substantially the same "team" and having held one of the principal witnesses on that team to be untruthful, and to have used force in extracting the statement in question, the trial judge had he approached the matter correctly must have excluded the other statement also.
(vi) An accused person may be convicted of a minor offence in terms of section 181 (2) of the Criminal Procedure Code provided he can reasonably be said to have had fair opportunity to meet the alternative charge; the question of cognateness or otherwise is not an aspect of the definition of the expression "minor offence" but a factor to be taken into account by the court in exercising its discretion.
(vii) The court's discretion should not be exercised lightly; in particular a person facing a charge of murder should not have his defence complicated by the possibility of a conviction for some other offence. But if the accused has quite clearly had a full opportunity to meet the other charge the court must not shirk its duty simply because the indictment is murder. Whether or not an accused has had fair opportunity to meet another charge will always depend on the facts of the particular case.
(viii) On a charge of "capital aggravated robbery", i.e. under section 294 (2) of the Penal Code the onus is on the accused to satisfy the court as to the matters therein set out, whereas on a charge of murder the onus is on the prosecution throughout, including the onus to establish common purpose where this is in issue. Hence on a charge of murder an accused has never been called upon to discharge the onus under section 294 (2) and he cannot therefore have had a fair opportunity to meet charge under that section.
