The appellants were charged with murder committed in the course of robbery involving a car. Two witnesses called for the prosecution were soldiers who admitted they had stolen guns that had passed to the appellants but there was no evidence that the guns were used in the offence. Although the guns were later retrieved by the soldiers they were not handed to the police and the matter was not reported. Another witness had been recruited to drive the vehicle after it had been stolen. There was also evidence that shortly before the robbery the three accused and the driver stayed at another witness's house which witness was called by the prosecution. Shortly after the offence the three appellants visited the two soldiers and one of the soldiers asked the appellants if they had committed the offence. The first appellant admitted doing so, the other two appellants remained silent. There was also evidence that during the course of police investigations two appellants led police officers to the scene where photographs were taken. This was disputed by the appellants who said the taking of the photographs had been forcibly stage-managed.
The trial judge found that the driver of the car and the soldiers were not accomplices, their evidence was capable of corroborating other witnesses, and convicted the appellants. The appellants appealed.
The appellants argued that the admissions by one of them in the presence of all could not be construed as an admission when they remained silent in the face of the admission. The appellants disputed the admissibility of the photographs and said they did not represent any truth or actual re-enactment of the events in which they denied any participation. Further, the appellants contended that even if the witnesses were not accomplices they were witnesses who had possible interests of their own to serve and that their evidence should have been approached on the same footing as for accomplices.
Held:
(1) Mere silence in the face of an accusation cannot amount to an acknowledgement of the truth of I someone else's admission. The evidence has to show some positive conduct, action or demeanour as to accept the truth of the admission.
(2) The leading by an accused of the police to a place they already know and where no real evidence or fresh evidence is uncovered cannot be regarded as a reliable and solid foundation on which to draw an inference of guilt.
(3) In the case where the witnesses are not necessarily accomplices, the critical consideration is not whether the witnesses did in fact have interests or purposes of their own to serve, but whether they were witnesses who, because of the category into which they fell or because of the particular circumstances of the case, may have had a motive to give false evidence. Where it is reasonable to recognize this possibility, the danger of false implication is present and it must be excluded before a conviction can be held to be safe. Once this is a reasonable possibility, the evidence falls to be approached on the same footing as for accomplices.
