SHAMWANA AND 7 OTHERS v THE PEOPLE (1985) Z.R. 41 (S.C.

EDWARD8-10,
VALENTINE
GOODWIN
ANDERSON
THOMAS
ALBERT
LAURENT
SUPREME
(S.C.Z. JACK
DEOGRATIAS SHULA
YORAM
CHILAMBE
SEPTEMBER
AUGUST SHAMWANA
KAMBWALI
MAPUNGA
SYIMBA
KANYIMBU
COURT
3-7,
13-17
17-21,MUSAKANYA
MUMBA 1st
MPOROKSO
MULEWA
6th
CHIMBALILE
248th
, 20-24, Appellant.
3rd5th
Appellant.
JUDGMENT
1984
27-31,
AND 2nd
1984
APRIL Appellant.
Appellant.
7th4th2,Appellant.
Appellant.
Appellant
1985 NO 12 OF 1985)
Flynote
Misdescription
argue
of.
laid
accused
Particulars
case
p42
ruling
prosecution
and
adjournment
convictions
Whether
Criminal
admission.
Evidence
required.
occupied
documents
over
notice
admissible.
overt --to
one -Application
on
of.
acts Whether
Allegation no
ormember Law
endeavoured
unfair
Law
-by not case
-witnesses
Accomplice
-signed -Whether
Confessions
some
admissible.
Whether and
in
set
Whether
and trial. ofto
by overt
injustice
inout
of Procedurecourt
answer
defence
Procedure
of suspect to
permissible.the--do
-relating
s.181C.P.C. trial
trial act
Whether caused
was
Bargaining -amended
something
Corroboration
Breach team
unfair.
unfair.
accused -to
- Propriety
-Whether Autrefois
that
Trial charge
of Whether
-instage
confessionthe-absence
Judges
and in-admissible
with
Unfair ruling
accused
Whether
-uncertain.
of. of
their acquit
Prosecution
Mutual rules permissible.
trial
statement
of
trial on other
confederates -charge
Treason
-no
prepared
when in case
Adverse
Prosecutor
corroboration
Effect accused
by
evidence open
ofpermissible.
of. -Whether
-without
to
co-accused -Overt
pre-trial do
to
oralso--the
Whether their
When
What acts
opportunity
something objection
potential -contents
-advocates
publicity
evidence Whether
use Applicability
possible. -witness
permissible Overt
-of for accused
-duplicity.
permissible.
Whether
admissible. Prosecutor
hearsay act
-Propriety to. at was trial
-trial.person that
Whether unfair.
obtains of.the to
Headnote
Originally,
overthrow
some
remaining
On
different
the
because
alleging
was
against
information
that
been
hearsay
interrogation
judge
relied
told
credible.
corroboration
Held:
particulars
of
p45 p46appeal,
p44 court
certain
bad
the of
excluded;
made
inevidence
count the
two
subplots
used
detailed
that
the for
evidence
evidence.
certain
certain
well
own There
preparing
because
particulars
amendment
misdescription,
injustice
an
Procedure
judgment
executive
since
granted
the
one
accused
attend
adopted
statement
trial.
participating
part
thereby
laid
evidence the
overt
of
accused
onlyall
numerous
overt
use
as
of
of
in overt
liesor
one
itself.
the
motion
none
As lawful
the
theof
uncertainty
effected
particular
notes; for
things
an acts;
that
audience
the
rendered
taken, more
ofof
respects
of
was
it but
where is
stage;them
for
word
particulars
acts
ofOther
expressed
business
represented
by
investigations
render
allowed
Procedure
where
either
defence
General
aand witness
secures
with
condemnation
decide
including
especially
admissible,
admissible
prosecution
recognised
proving
evidence
are
his
mind
the brief
to acts
the
and
evidence
only
endeavour
acts
Codeon their
Overt
advocates
wascourt
nothe
author
documents
admissible
connection
indictmentthe
withbeaat
certain
an
ina,
different
overt
could
and
did
the
thesehis Government.
itgrounds
or
prosecutor
sideor
to
of cause to
did placed
number
final
they
Director
counsel
by
private
and were
had
conspiracy
executing
were "prepared",
appellants
accused.
the on
in
transaction;
accorded because
accomplice
the
alleged
may
before
prosecution
exercise
in close
evidence
acts
omissions
defenceact
transacted
co-accused,
competent
the unfair;
to or
trial
Code,
those
as the
not
particulars
not were
prosecute;
not
the
acquittal not
of
bad
documents
misdirections
talking
tendered
ahad
factors finding
to
chambers
by
trial
give
for
serious
and
witness
was
them
reference that
on
or
public
alsoas in charged
one
were
their
arise
desire
unfair; and
to
infact the
other
or
prosecution
with, to
not
documents
were unless
distinct no
complaint;
calling
ethical
its
affecting
their and
original been
the
offor
thethe
Other
uncorroborated
of
cannot
act
that overthrow
be
altercourt
the
within
theywas
or
is of
overt
acts
for
defence
evidence the
who
accomplice
from
preparation
certain
bearing
since
withdraw,
dissipate
who
because play At
argued
coup
one
and
transported
offered
on of
either he
still
discretion
crimes,
documents.
called;
thereto;
or lead
admissible, of
to
wasit
of
enters
contentsit the
was
to
defence made
uncertainty;
illegal
in
opportunity
the
were
washim
grounds,with
the
of
ostensibly
render
each
had
aadvocateslesser
secure
shown
was
is overt
prosecution
judicialcomplaints
wereabsence
an
state
trial,
he
the
weremade anaccused
acts
the
other plot;
omissions
command
testified
made
whether
endeavouring,
of
athe
aproperly
before
court
counsel
unless
adocuments
circumstantial
complicityamounts it.
should
at on
is
because
overt close
alleging,
though
dual
the
competent nolle
in
theIfone
out;
army
wrongly
agranting
the
to
accused
substance
overt
public;
not to
prejudiced
Public
also
Publicthe
than
In
met,;
and itwere
act
alleged
notice
count that
evidence
witnesses
Government
into
adjournment
charge convictions
prosecutor
team
unnecessary
theirfavour or inin
have
to
roleis
prosecution
he
there
tracingsbe is
hearsay
form;
in
toany
not of
count
on
used
the
aafter
overthrow
appellants
or act
is awas
the
those
of
unfairness
prosequi.
brought
witness
which
the the
of
case.
were
was
complaints
exclude
legal the
support
the
they
Prosecutor
given
formal
failure of his
laid
inter
of
of
-which
person;court
does
exercised
at the
conspiracy
"the
influenced
of
omitted
witness;
unnecessary
remains
it of
actscase,
hearsay, is
on of
each
ruling
count
in
of
the the prosecution
defence
charge
first
admitted It
bargaining
concerning
another
of
andand
could
present,
an alia,
line
and
representing
cross-examining
could
practitioner,
Prosecutions
notice
prosecutor
exclusion
evidence
transactions
direct in
because
are, An
to
the word
is
the
and
evidence,
to for
either
familiar
one treason
said
directed
wasaofamended
of
count
endeavoured
the
application
no such
the
or
do
frown so
one
adjournment
arecorded
justice;
because
proof or
of because
accused
mentioned
not
by that
was
also
and
court's
co-accused.
the
noton overt
so
not
with
asuch
that
case as
there
otherwise
that
so
accomplice
for
very
maps
of
to have on
overt
illegal
the
the
member
theno
non-makers
and
offers
ofthe
interest
they
the
show
of with
question
no
mutually
double
Government.make
allegation
chance be
virtue
is
it
the
to the
"endeavoured".
could
to
details to
this
he
powerful
the
withhad
the alleging
badthe
against
is case
argued
inacts
itthe
power. make
of
was
trial the
were
prejudice
not any
admission
to act
army
case
answer
themselves
non-makers lesser
charge
the for
in
the
result
entertained;
was
would
witness,
indictment
court
were
documents.
been
which
the his no of
desirable
accomplice
of bad
to
and
to
witnesses
was who
markings
the
documents,
overt A
not
evidence
recall
sectionadverse
judge;
of
in
illegal; to the
particulars
The
the
lawful itevidence
was
annot
the
that
key
submissions
arose
corroborate
persuade
count
and
the
section
evidence
knowledge that
duplicity
made
for be
The
allege
defence
evidence
of
be there
add
inducement,
published
author's
they the trial
charge
was
stationed
prosecution
case
record. overt
particulars
was
trial
called
for
testifies
acts
appellants or It
given,
bad
amendments
thetheir
of
for
to
public
The on they
accomplice
whetherbad
duplicity.
accusedsaid court
was
The
double;
merely
witnesses;
stage,
181 pre-trial
prosecutor.
the when
of
in
that
becauseas the
was
his
possession
relate, the
evidence;
that afor
act
trial
confessions
out;
allegation
ahim
2given. of or
team
suffered
the
confession
itself,
such of
against
maps
them as of
disclosed
because
of
plea
after
handwriting
of to for
the
at
contents
trial
no
weight
the
that
requirements
things, their
or prepared
they
the
are also
learned
witness
preparation and
that
each
tobias
and
prosecutor
the beruled
misprision.
one
uncertainty
not
Chilanga",
was
should there
auncertainty;
are and
confession
witnessduplicity
overt
Although
Since
suffered
even corrected
Criminal
publicity
Because
within
was
represent
character;
irregularity
of
bargaining
made
his court
ofwerehim by
did of
argued
alleged
unfair;
to
witness
he
double
in
matters
aon
did
Criminal
Attorney
guilty
criminals,
which of
contents,
laid; state
in while
at
when
from
bythat
were
have the
two
act
trial
other.
to and
also
wasthe
notto
do
as
no
for
and
such
may are
had
real
partythe isa
or
of
Cases
(1)
(2)
(3)
(4)
(5)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(39)
(40)
(41)
(42)
p48
(44)
(45)
(46)
(47)
(48)
(49)
(50)
(51)
(52)
(53)
(54)
(55)
(56)
(57)
(58)
(59)
(60)
(61)
(62)
(63)
(64)
(65)
(66)
(67)
(68)
(70)
(71)
(72)
(73)
(74)
(75)
(76)
(77) p47 rebuttable
Rules
acceptable
warned
and
cannot
Interrogation
been
judge
overruled
acts
out;
the
corroborated
be
make
independent
exclude
cited:
Mulcahy
R.
Mattacka
Lansana
Mwandila
The
Wright
Walbwork
Mark
Harris
Hermes
Kapowezya
Sebugenyi
Phiri
Robert
R.
Haonga
Practice
Tembo
Hahuti
Muvela
Chipango
Bwalya
Myburgh
Njekwa
Sakafunya
Winsor
Subramanain
Ibrahim
Commr
Zondo
Muwowo
Zeka
Callis
Chilufya
Chulu
Njobvu
Tapisha
Kafuti
R.
Belemu
Ambrous
All
Craven
Fatyela
Baldwin
Afred
Kuruma
Shamabanse v Government
v
v vwho
reservednot
People has
made,
and
co-accused
final
Dawson
Fulunete
Malik
Savundra
Bodwin
Tembo
Van
Bryan
Owen
Tomey
Feargus
Pipe
Van
Payne
Sang
RenneGillespie
Lambert
Prayer
Fenon
E.R.
Chona
Rudd v
Houghton
Cockley
Watson and
Chinyama
v and
be
vmade
McCafferty
Smith
Kaunda
Johal
(C) v
Secundo
Justine ofR.
Ndecho
Gunn
and
Viongo
Mulengav v vv
Note,
and
The
andwas
and
v v
Thebeen
on
and
v
R. vpresumption
to
v
Rensburg
[1967)
Vreden The
Mudenda
207The
Smith
The R.
[1948] the
Nicholson
R.andvv a
assessment
(1968)
(1839)
Customs
Ors
[1963]
The
[1979] until
(1976)
Thev
R.
[1957]
James
[1982]
[1972]
and
[1962] Anor orthe
cautioned,
not
notes
judge
take
this
out
evidence
R.
(1950) Republic
Others
Kunda
R.
(1961)
(1962)
OthersThe
Justices
(1958)
[1980]
v The
[1909]
O'Connor
(1914)
Francisv the
(1960)
v
(1957)
People
Ors
[1985]
[1967](1968)
[1963]
People
(1964) v and
admitted
supported
(1868)
Ram
(1959)
Mancinelli
Queen's
[1960]1
[1967]
v and
People
(1979)
People
People
People
[1955] The Ors.
v The 51
Public court
equivalent
even
should
the
(1958)
People
and The
[1973]
Peole
[1869] R
2
32The 52
People
9
v1
R.1 may
subject;
is, (1867)
62v
R.2
People has
judicial
Anor
R. was
(1930)
Turner
All
56 v2C.
Cr.
A.C.
All
The if
final
v 1
(1980)
148R.
(1974)
The
Cr.
(1979)
252
[1947]
Cr.
Crim.
(1963-1964)
and
Ors All
[1980] and
L.R.
People
The
Ltd
A.C.
People
Cr. for
in
[1970-1971]
(1977)
(1970)
All
People
(1972)
R. Cr.
(1965)
(1969)
W.L.R. Cr.
69
(1973)
(1973)
and
(1966)
People and
shown
of
L.R.
E.A.
and
Theand
All
(1975)
E.R.All
(1971)
L.R.42
andof
at
power
relevant,
(1973)
Bench R.
[1843]
App.
App. properly
and
Prosecutor
57 or
only
the
App. such
best
by
danger
10
People
Cr.
App.
Excise
E.R.
v Cr.N.
(1968)
App.
599,
App.
People
J.P.R.
E.R.
N. involuntariness
who
and
S.R.
[1975)
1 P.
The
E.R.
People
197 of
Evidence
notice
judgment
separate
(1979)
E.R. Cr.
(1967)
(1957)
v N. L.R.
71 established,
E.R.
Z.R.
56
N.
411
R.
People
1222
Patent
[1972] 4 1
64,
3443
N.
Z.R.
App.
Q.B. Cox
424
R. 83
ZR the
something
ruling
(1982)
614
848 be
not
be
H.L.
E.A.
W.L.R.
679App.
34
Cr.
Z.R.
18
Division
R.140
All
770
Z.R.
App.
Z.R.
(1977)
Z.R.Z.R. 4R.
609
293
Exch
(1977)
R. Cr.vbreach:
332
N.
119
17 did
admissible
558
223
Z.R.
6
Z.R.
St.
Z
People
R.
663677
[1982]
(1978)
138 21828
(1978)
61
480 admitted;
confession
notes
used
of
154
9120
R.
1
289,
329
Harz
128
135 only
taken
603
A.L.R.
App.
E.A.
E.R.
148
(1956)
172
and on
138
151,160
R.
222
App.
(1981)
41,
Tribunal
Z.R. Tr.
146 not
incidents
306
495R.Z.R.
N.R.L.R.
(1976) 168Cr. their
tendered
stage,
637
Z.R.
Z.R.86
42 no
174
143
35
197153
390of
818
and Chilufya
(1977)
151 1 which
only
to
R.
(1962)
Z.R.
109
App.
(N.S.)
N.R.L.R.
Z.R. it
have
more.
App.into
186
26
1
All
R.
423
Z.R.106 is
look
348
Z.R. and
contents:
caseafter in
W.L.R.
Power
[1959] to
307. 19for
and
304
R.
E.R.
372, the
and
R.
935were
1refresh
proof
200
Z.R.
174 at unfairness.
67v
ostensibly
account
to both the
answer
Vol.
All 97
377 The
notes
424as
his
where
A.C. 965
(1967)426 E.R.prosecution
Fatyela own
sides
VIII aPeople
the as
663read
witness's
61in448records,
other
submissions;
jointly the
p.171have Where
againstCr.over
cannotin
support
v (1975)
The aid
overt
been
circumstances
App. toto
memory; but aofadvance
be
People
the him,
of breach
Z.R.
acts
heard;police
fabricatedproduced
also 138
or
allegations
which
co-accused those
(1966)
it an
areof
signed
investigations,
was explanation
the
explained. of
were
such in
Z.R.
wrongby
of Judges'
another
if him,
court.
overt
made
it135
story.
as is
to
(78)
(79)
(80)
(81)
(82)
(83)
(84)
(85)
(86)
(87)
(88)
(89)
(90)
(91)
(92)
(93)
(94)
(95)
(96)
(97)
(98)
(99)
(100)
(101)
(102)
(103)
Legslation
1.
(c)
(d)
2.
3.
4.
(a)
For
Director
Sheikh; p50 Zambia:
England:
Sierra
Uganda:
3rd 7th
4th,
6th
the R p49
Phiri
Tembo
Kape
The v
Mulwanda
Chimbo
Likando
Mwambona
Miyoba
Credland
Mulenga
Butembo
D.P.P.
Simutenda
Chimbini
Zonde
188,
Preservation
Constitution
Penal
1st Leone:
Appellant:
5th,
andof Prater
Stannard
Whitaker
Appellant
_________________________________________ (E)
People
and
appellant:
Public
Principal Kilbourne
Baskerville
Thorne
Trigg
Lewis
Griffiths
Lucas
vCode,
referred
189, and Theand
Doot
8th and
v206,[1960]
v(1981)
Ors Knowler
v[1963]
The
[1937]
vPeople
TheOrs
vand The
Cap146,
of
s.76A
appellants:
ProsecutionsState and
[19761
Ors.
Ors
andThe
and
Swillah
to: 254, [1916]
Ors
People
Public Ors
44
vAdvocate,
[1973]
People
Zambia, 47
People The
People
24Ors
Ors. R.
(1977)
(1).255, Cr.
63[1964]
(1972)
[1951]
[1978] (1975)
(1977)
[1960]
(1976)
ss (1976)
[1965]
[1973]
Security
Mr 43 App.
1Cr.
2People
E.R.(1976)
(1973)
All
K.B.
(1975)
(1973)
273
Cap Z.R.
(1)
J.A.
Mr App.
Z.R.
35
66 48
360R.
49
1008;57
(1980)
(2)
1,
Bevin
In E.R.
R.K.K. 658
Cr.
Z.R.
(a) Cr.
(1982)
Z.R.
192
ZR
Act,
R.R. Arts 83
94
and220
Cr.
person.
Person.
Simuziya; R.193
Z.R. 161
218
App.
338
and 440
193
(1981)
294
C. App.133
N.
App.
191
291
Cap.106
20 Z.R.
28
(3),
Willombe
Mushota,
Balachandran. R.the
12
(2) R.
R.
73
337
444820
6and 7981
In
C 279
600
Cr.
(b), (5)
ofPPerson
Director of App.
Lusaka62
Sakala, 57and
M.M.W. of R.Partners.
and 159
219
Assistant
Legal 58
and Services Company. Senior Corporation, Legal Aid Counsel. Mr G.M.
Judgment
SILUNGWE,
Mporokoso,
hereinafter
others
section
prepared
by
specified
appellants
the
of
between
Annfield,
1Republic
in
result
place
point,
overt
District,
conveyed
forming
command
overthrow
(b)
treason
penalty. and
p51 unlawful
appellants,
overt
Kabulonga,
of tried
July
where
in
tothe43(1)
October at
acts
April
anof
sign
an
A4 about
of referred
awere
31,
them
by
of Lusaka,
had Thomas
before
was
Zambia(a)
means
aeroplane
the
illegal
count).We
Penal was Zambia
theC.J.:
16,
with
1st
1980, all
Lusaka,
aunlawful of
reduced
President
declaration
act
sixty-five
to and
conspired
Code 1980 to
the
the
found
aservice
army
said
convicted the delivered
Mwinilunga
as the
A1,
farm as as
Mulewa,
High
Penal
byexception
October
to
carrying
means
(an for
illegal A1,
they,
Government
A2
by
shall to
from
law at
persuade
wouldthe A2,
Court
have
and
renouncing
persons
referred law
offence the
Code, together
of16th,
eleven
established.
Lusaka
the and
purpose
army judgment
Deogratias
A3of
A3,
allegedfallno on Cap146.
A4,
1980,
Christopher
President
(thirty-eight
to
established.
the A4,
other case
to
together
into in
Government
withat
later anwith
the
to
his of A5,
were
Chilangainformation
four.
the
this places
whichto
A1,
overthrow
Inofficeof
Republic Symba,
The
Pierce
of
overthrowing
in A6,
answer
the put
The
with
hands
case the
A2,
And Joseph
the
of as
he court.
A7
particulars
unknown
overt
on
second
offirst
our A3,
that,
as
Farm Annfield
Pierce of
Republic
of and
Albert
their
and
by
President
whom
the containing
A4,
of
Chilanga
the
had Zambia
overt
Kabwe
armed fourth
by
RepublicA8,
were
the in
defence
unlawfulA5,
Annfield,
which were
initially
judgment of
unlawful Chimbalile
(who
ofrespectively,
the
overt
act,
persons
of the
A6,
to
Farm,
overt as
accordingly
Zambia
the
named
was one
it
make
of
been offence
Republichad
as
acts
on A7 by
meanswas
had who
Republiccount
since
charged,
and
Lusaka,
means
act
Zambia
intended
revert law
alleged
alleged and
arrangements
endeavoured
alanding
in
charged, alleged were,
were
of
A8,
the
would the offled
the
as of Laurent
Zambia,
established,
acquitted. save together
treason,
that,
together
that,
Government
withovert
to at the
force
Zambia.
divers
Government
by in that
be that
an
the
law on
additionbetween
thiscountry),
atto
However,
which
act)
usedA6 Kanyimbu,
contrary
the
divers
withby
A1's
unauthorised
him,intention
established.with
overthrow
Theand
was at
for eleven
numberPierce
of
would four
April
house
matter.
to had
acts.
dates
gun-
thirdtheto-
all
of
in
sentence
commenced
1983,
complexity
will
abundance
January
appeal
thereto
numerous
committed
any
another
Penal
at
jointly
rightly
became
informed
and
powerful
Annfield
he
place
to
then
Following
of
Secretary
Forces,
counter-coup.
blood
(hereinafter
Zairean
Government.
1980,
had
purpose
was,
conspiracy,
Parking;
respectively,
instigation
Katangese
there
Farm
p53
confession
71,
being
misdirections
the
alleged
(6)
matters
in
1.
issues,
of
now
1(a)
two
offences
argument,
was
backed
given
case.
included
and
were
charge.
Appeal
lengthened
at
several
conspiracy
overt
count;
From
between
of
count
making
say
p55
means
offences
duplicity.
intended
ease
the
1156;
Archbold
its
examination
is
perceived
necessary
sustain
treason
paragraph
(5);
proper
p52
p54the
is was
use
the preparation
English
the
least
least
the
person
been
that
renounce
the
Preliminary to
in
Duplicity
bad A6,
they
85
alleged when
hereinafter
by
Code,
material
of
conspiracies
supported
between
December
count.
generally within
particulars
same
and
charging acts,
this
act in
the
and by20th,
by
country,
toldbeen
presented
an
two
these
and
the
laid
PW5
be
ruling
and of
and
nationals
of
turn
reasonable
common
alleged aadds
and
wrongful
first
namely,
treason be
for and
intended
April
Dawson
said
Several
proved,fifteen
Secondly,
inadmissible
it
unworkable
one
first
for conspiracies,
are
to
charged
the ofthe
section
offence,
the
who
were
hea
something
As
will
conspiring, andof
approached
of with
notthe
of
analysis,
treason,
and
charging
This
adjunct
count
211;
in
subsidiary
the
against
who
statements
the
(per
avoid
paragraph
by count,
judgment
plan
aircraft
to
allhis
made 1983,
PW5,
State
referred
In
overthrowing
A3,
soldiers
of to from
A6
wrongful
beforeA6
by
count
duplicity the
jurisdiction
time,
the
However,
conspiracies,
points
ground
1955
long 1,
the
charged
we
enough
by ofin
treason.
manifestation ofbe
anyone
lawful by
present
on
be
applications,
appellants
of
appellants.
non
unless
had
to
that,
effect
it
to
is31, is
arraigned
was
find
successful
Party reasons
trial
second
the
which
in
52
is
people
office
Angola,
assist A6
taken
A7; smallcase
by
bought
-were
misdirections
Issues
(a) (that
1980,
the
counts.
others
purview
was
Finnmore,
is
it
observed
but,
Mulcahy
every
two the
the
were
to the
on
in
Duly
endeavours
the them
assessment
considered High
referred
amenable
which
for
and
appellants;
subjecting
illustrated
reference
offence,
to count
it
provided
the
of
to
the
since
who
for
weto
orof
he
and
charged
head
suitable
carrying
-the
and
duplicity;
to in
out
1957.into
thethe
trialexile
to
commit
in
troop;
convicted
conspiracy
in
can
substantive
two it on
and
enormously
28-26
the
is
That in
according
to our
is
was
case
ones)
duty
-evidence
at
be
and
theplan was
Zambian
Television
execution
Defence
attributed
canall,
admissionPW5
as
charged;
addition
and
general
length
and,
becomes
this case,
twohave
the
overt
or
examine
placed
alone
count.
actmorenot that,
1957.
named. Court
aAugust
and and
of
the
F.L.N.C.
Fourteen
the
information of
work had
moved
Chilanga
this
misprision
two impose
itmore
in
shows
substantive
v this
Penal
byof
charge on
R. 5of
compounded
with
prosecution
one
to
United ZAF
chiefs,
the
Zairean
A7
Motors.
were, court. each
The
ofJuly
the
J.,
or
deemedby
to
recordalso
Altogether,
of thewere
with
to
for
F.L.N.C.)
in
Combi
for
turn and
recruitment
in
whereas
been
substantive
and
therefore,
the
acts
same
toMwandila
on
beingbad
charged
that
misprision
delivered
objections
some
Lusaka
handreached
was
treason
of to
on
(b)
respects:
However,
an (2);
is
conspiring
different
of
this
of
Count
at
more
Archbold
treason
to
as
is,
The
injustice
count
clearto
the
the
on
allegiance
the
Angola
Government
bought in in the
31,
and
8th,
Zambia
within
the
to
andthe
and
thereto,
one
page
counts,
undesirable
accused
the
that
do
to
so
Code.the
overt R.
two
on
President
pilots
PW5
of
conspiracy
also
conspiracy
count
November
PW1,argued.
treason,
is Zambian
Zambia,
over
National
of
including
group
prevent
instance,
In
evidence
our later
was
These
the and
Farm.Zambia,
A3,
documentary
broad
corroboration.
given.
complexity
quite
that,
substantive
conspiracy
discloses
count
English
41st first
1980.
ordinarilythe
count
so. the
had
or
that,
1984,
heads
other
not
over-throw
the firstappeal,
as
Flying
Security,
subsequently
attention
uncertainty;
of but
evidence;
treason, was
the led
secondly,
of
those
1
transactions
on separate
paragraph
is two
as
treason
is
vovert
to 563,
has
Itvtoand
whose
and
incoherent
Land- A4,to
from
(nor
and
Air
aappellants
participantsvery
power
plot,
the
charged
the which
charges
although of
by
motor
firstly, Ford
Among
the
an of
PW2
eighty-five
(see
an
that
them
overt
and
because
duplicitous.
offence
case person
edition).
41st
capable
whether
exemplified
McCafferty
That
act
conspiracy
or witha The
or
of
be
He
second by
place,
terms,
onFirst
intolerable
in contrary
a
itself,
is
of be
then
toof
A6
once
other
an
Court
more
act
more
the
(when
of
common
whether
punishable The
PW5,
became
overthrow the
facts
by that
counts
count
count.
letters
fact
section
treason
Forcethe
goes
count.
does
matter
an
any
2th,
accomplice
RadioClub
advanced
the
Independenceand
other
released.
Zambia
becameMbumba
Rover,this
Transit
Mwinilunga,
hereinbefore
he
commission
alleged
credibility;
to
in (c)
order
that
act,
of
offence
overt
distinct
terms
offences
People
edition
unnecessary
21-11
and
assignment
to
and
one
complicate
of
fact
argument
Archbold,
jurisdiction, of
the
vehicles
(3)It
that
capableit
against the
worked
the
as
indictment,
act
so to To
that
appellants
trial
were
enlisted.
driven
evidence.
failed
these
relation of is
conspiracy
which
counts.
of
intention
an E
theall
to
anthe
on
conspiracy 1981
the
formulation
hearing
(ZAF)
but
the
Republic
someoneby so
or
therein.
country
case.
amendment
charged
was
Both means
such
acts
offences
being
it which
proved
by
(3);
person
overt
different In
that
substantive
Zambia
national law
the
to
Counsel
count
Thus, for
Commander
A7; the if
strain
(7),
Appeal
ascertain
(unless
is, It
whose
recruits
misdirection
the both
alleged to
caseinto
G)
charged
A1's
conspiracy,
unfair
constitute)
overt
of
providesof a
on),
court's
hearing
not
A3,
Zambian
may
law,
to
and
grounds
first the
(5)
in
of
conspiracy
to
were
the
there
by
41st
was
stage
was
leader
membership
registration
the
registration
were
of
alleged
wording
case,
say
ground
charged
appellants
On
there
certain
an
. In
and
sentenced
andof
treason
in
witness
outside
was
be
again,
the
at
proved.
Archbold,
Mattaka
overt long
acts law
to tobe
to
is
act
where
Party
F.L.N.C.
Zairean
A6's
in
report and
being
matters
that
so
charged
the
count
in
the
jurisdiction
savehe A6
duplicity
the
have
the any
his
aelse.
The and
leaders,
evidence
All
the
logical
A4; thewas
various
to
the
both
injustice
argument,
page
effect
in
an
that
appeal
Dawson
be
trial,
in
a line
that
effect
conspiracy
were
lasted,
aswere
of
the the
rulings
arrested
stressed
object
were
involvement of
implemented
same
otherwise
count's
for R
whether
look law
act
a
of
edition,
owes
that,
later
former
-the to
of
therewas
issued appellants
that,
Kishombe
this
offence.
related
alleged
which
and
defraud
referred
arepeople,
thatevidence,
was
quashing
in charged
been
grounds
grounds
capacity
coupof
No.
this
on
wrongful
the
second
shown
the
but
indictment
number
v a
sufficient
proved
to v by
176,
so
of
treason
and
carry
Government
be
he
the
of
tried main
the
appeals
Government.
North Nos.
PWs
and (e)
charged
unveiled
subject
against
were
substantive
on
count the
one
count.
122
in
committed
Announcements
other
(UNIP) was
Greenfeld
further
When statement
requires
specific
beproof
Republic
that any
to
convicted
was
his on
his
granted
the
was
such
used
to of
second
thesein so,
that
conspiracy
fraudulent
against
(for
(1),
there
more
that
is to
adding
the
the
a
imprisonment
thereon.
appeals
paragraphs
where
terms
school-mate
d'etat
out
forms
organisation
thereafter,
AAD will
the
corroboration
to ANA and
prosecution
between
becomes
trial
sated,
charged
authorities,
manifesting ofof
conspiracy,
1 in
count
an
purpose
purpose
trial;
as
order
Deputy.
-PWs
33-37.
appropriate
wrong
unfairovertoftwo
separately.
by all
convicted
as and
which
the
of
he
overt
determined
a count.
overt of
of
allegiance
diversion
-(1)
as
Zambia
absolute
toin
by
they by
court
conspiracy
is is,
and
took
there
Western
Farm
the
was
by
troop
the
Dawson
Chief
support
aovert
the
may
importantly,
and
Thus,
law
than
sufficient to
be
political
may
overt
offence,
overt
(4);
of,
of
was
coup
5842,
appropriate
use four
convictions,
a
any
was
the
A5,
be1-6,
acts
an to
overthrow
1452
mammoth
reason
the
treason,
into
answer.
and
reference
of is
be
by
and
158
started)
The
additional
Appeal
treasonthe
outside
immunity
The
preliminary
overt was
In
specific
trial. until
section
forced,
ofPrime
the
evidence,
PW68allegedly
other
charges
charge
same
relating
the
therein,
act
In in
that
where
of
to
the
knowshow
acts
otherwise
admissible.
and
easily
reality,
Others
bad
offence
laid
act
acts
Lansanaone
including
is
acts
State
twenty-eight
21-14),
for
of
d'detat
cut-lined
the
Secretary to
forestall
at
individualNational
However,which
this
A7
with.
33-37,
and
To
the
air-borne
offences
November
accused
on it
convictions
count
an
any
our of
act
sentenced.
exhibits,
and
men
discussed
evidence;
to
act,
appear
These witnesses
period
Staff.
be
that
to
given
the not
but
bywas
(let
and
fourteen
the
of
was
count,
overt on
extent,
for
is
in in
may
the
for
January
ais
his,
organisation
Zambian
pursuance
from
Province,
Kitwe and was
Zambia
consider43
at
bethe
his
news
discloses
first
which
to no bethe
AAD
findings;
(d) and
financed
that
conspiracies).
reinforce
the
whether,
overt
of
element
of
judgment,two
exactly on in
pre-selected
Minister, Three
at
authorities
other also ten
grounds
an alone
(3)
athe
63,no PW5
and
apparently
A8
and,in
issues;
committed
was
conspiracy.
above)
a
charged
duplicitous.
hereinafter
then as
charged
aduplicity
(6),
duplicity,
itself.
merely
the
and
the read
used
gun-point,
effect -wouldto
Defence
overt
operation
operation.
and
conspiracy
count
be
species
Archbold,
intention." or atand
between
country.
against
evidence
necessary. Zambia
possible
necessity.
Chilanga
appellants
reduction
issues of
dates
1,
Court
count
inevitable.
similarity can
Thirdly,
wellnigh on
without
bad
actat
duplicity.
the
years.
replies
offence
loss
Zairean of
March
of
68,
(4)laid
treason
Others
persons
same ofto
counts also.
20th,
(who
days.
or
PW5:
media.
General group
at Way
9951,
from
stated.
alleged
above. The
had
been
were
this
ex
later.
these
least
reveal
1954
as
jury."
more
whattwo
page
If
with
in
as
an
for
histo
by
the
of
69,
(2)
and
will or
act
be
on
the
(1).
act.
itfor
will
court. in
of
as
to
an
in
isitaaa
p56
count,
plots,"
referred
plot
plot.
whether
demonstrated,
duplicitous.
in
count
government
Pierce
the
of
someone
act.
we
used
learned
or
endeavouring
does
appellants
Lansana
"prepared"
is,
not
troop;
p57
matter
examination
statement
offence
endeavoured)
satisfied
contexts.
lack
prosecution
they
that
was
what
Archbold;
as
were
first
to
conspiracy
charge
act
at
with
leaving
Treason
the
and
is
for
these p58 the
tomade
be into
President
menhave
Although
first
should
clearly in
of same
particulars
a must
overtto
the
appears
focus it
topple
first
1;
section
"roving
complied
conspiracy,
noted,
particulars", as
Annfield
andis
each
and,
else,
previously
Attorney-
itself
fact aovert
of efforts
(5),
alleged
that
particulars
defend
conspiracy
terms:determine
alone,
to
can and learned
of
embarrassed.
occasions.
be
statement
together give
and
actbe
themfeasible
the
overt
technical
of had
and
that to
overtby
serve
form, on
be
43a
count
of
theto
count
page
attention
no
order
found act
in is
the
offence
of grand
lawful
neither
(for
and
we
allege
given.
State
under of act
unlawful
the
endeavoured
land
forced
charged
"prepared
(1)
"endeavoured"
particulars
conspiracy"
themselves
the
however, with,
I a and
advantage
reads
with word
count
however
to
count
that General
persuade
not
overthrow
the
particular,
actofas
on
trialare first
is,
authority
sensesaid
specific
of
advance
1conspiracy
would
number
Offences
the or,
provisions
as
particulars
The in on ais for
at
the
that
in
was
In that
which
the that have
government
conspiracy,
a
as -
1the
would
here
of not an
treason, and
positive
of
alternatively,
conspiracy that
that well
specific
However,
such argument,
judge's
heading
substantive
information
the the earlier
means.
asat
"endeavoured" as
the
not
- of
to
specificwasbad
in
set
of a
treason
unauthorised
concerning an
submission
PW5;
orPenal
evidence,
appellantthe ofbroad
second
to
gun-point;
envisage
purpose)
A1's
that
concerned
the
appellants
against.
the
254
act
Act, the
him.a
of act
endeavoured"
clearly
would
provisions
inif
committal
particulars
nature as for
overt
distinct Lansana
of are
"rolled-up
section
basednature
Mattakaissue;
erroneous A1
aside
1963,
"Indicting Inas
nor
stated,and
Similarly,
persuade
of
itconspiracy
not does
Code.
argument
indictment
government. general
duplicity.
A1
the
conspiracy
satisfied
this conspiracy
sought
offence well
does
preparation
the
and
treason
togetherfor(see
have
essential
act.
any on has
sort a
sub-plots
that
by
with
of
what negative
not
- place
appears
Had
conspired
relies,
134of
(4),
the
conspiracies
with (5),
toPW5
status as
aacts
section
ofas the
the
Lansana
uncertainty. aconspiracy,
conspiracy",
the
period
Mattaka
drawn
event,
that
papers
may oron section
lines
summing-up
for of not
speak
related
been
as
overt
ofto
and
In
by asub-conspiracies.
specific
it
renounce
to
the
was
the to
such,
clearly
For
withand second
where
word
the
conspiracy
convictions
position
which the
Conspiracy".
offences
be is
to
in
of as
for
the
setting
charges,a
the
difficulty
without
request 43
of
overthrow
to ipso
discloses
answer
charged
the
particulars
duplicitous
acts,to
conspiracy
this that,
great
(4),
attention
or to
arrange
an
(5)
Pierce the
is
it
result,
Criminal
134
sufficiency
in appellants
necessaryof asissue
the
last he
(1
two
andthe
offence,
alleged
PW68
shows
overthrow
in case
overt
his
second
there
endeavouring
at
notmust
According
whichout
and
as
time to
would
same
)will
extent,
substantive
which
Accused
not modus
facto
a
of
pageas
other
sub-paragraph
for
withthem which
for
distinct
thewith
Annfield
and
the this
they
well
was the
to
29 distinct
presidency
that, capable
act
an
Acts
used
the
of
and,
Procedure
on
Obviously,
on
further in
which
for or the
theand
have
the but
the
overt
duplicity,
or
that be as
had There
fall
purpose
219). act
which
Penal
offence
reasons
ground
the
unlawful
were
on
turn
whether
conspiracy
only
Crown's
giving as tothe
operandi
makeit
to
those simply
to
government,
therefore,
specific
aotherwise
substantive
gathered
conspiracies.
the Lansana
names
following
the
had been of
diversion
into act, learned
cannot
denote
Indeed,
prepared
government
had
charges
conduct
and him,
not
such,
the
tended
the not
genuinelycan,
conspiracy,
of preparation
ofasalleges
and
Code
of
it
ground
the
under
better
the the
Code.
overthrow
which,
uncovers
only and,
in
herein
to of the
making
appeal
supplied,
means
followed the
convicted.
accused
reasonable been
opening itin
as
indicated
section
place,
was of
overt for
hands
to
count
offences in
the
passage
under
purpose to
of is
(5); a
of
the Attorney-General
carrying
conceivably
tried,
bad
case
from
offence the
Andquite
as
(notinstance,
count
that
hand
There
as
offence, because,
an
before
defence
(henceforth
the the
particularsnot
by
of thethe
necessary
must
alleged.
persons
proper
confuse
charged.
acts.
arise of
overt
in
we
person to
what
paragraph
137 A1,
aircraft
in
apart
attempted,
1Mulcathy
was
law
the of an
have
prepared
unlawful
were
section
of
sub-title: is
government,
alleged
charged
enough
particulars
in
For
defence
or
information 32: out
treason
overthrow
over the
act
given,
be
did
of
and
uncertainty."
The the
on A2,
force
the
treason.
as
duplicity
count
particulars
was
Lansana
in He
the be
armedfrom
havethe
duplicitous.
asadjunct
first
seen,
athe power
speaks
dismissed.
involved
this
Such
can
is not
referred
17 28-25
provided.
lawful
paragraph aalready
A3
carrying
that
case
jury
"Request
very we
for
will
both." in point.
grand
count
or/and
means;
submits
alleged
C.P.C.).
C.P.C.,
(2). of what
been
strove
terms
know
reason
usually
charged;
offence." is as has
and
band
overt
This
here.
does
arise.
itself.
Itthe
is
are
the
(5),
here.
rare to
as
in
of
by
not
beis
to
offences
high
nature
p59
alleging
answer
which
criticised.
matter
substantive
embarrassed.
the
committal
witnesses
258
support
entirely
A1
particulars
adifferent
unlawful
of
p60
framed,
overthrow
conspiracy
evidence.
"rolled-up"
know
uncertainty.
Code
paragraphs,
said
it the
matterhas
isthiscase treason,
sub-paragraph
particulars
information
of
adequateisruns
the
law,of
voiced
what for
thecharged,
principal
defence
is that
means,
where
of
act
expression
of It
were
Thein
the
byof
CPC, is
valid,
theit
ought
one;to
only
that and
the
overt
counter
conspiracythe
Even the
sufficient
but
papers
overtsupplied
cannot
evidence.
proving criticism
is the (ii)
the
sought
and
government
specifying
manslaughter)
to conspiracy
defendand
is, not
which
treason:
appellants
negative,
to conspiracy
sufficient,
paragraph
allege act
only to
then,actsovert
and
in
be
the
so,
paragraphs those
bethe
particulars
that, is
The
the stipulates,
cannot
onif
against
himself
in A1 is
toto
said
provided
offence
in for
subject
charged,
this
charged. or
the it
thein of
had
allege
all
those act
because,
is
request
conspiracy
in
alleged
or, the(orby
there the
these
kind by
that
irrelevant is
a an
accused
the
(b) be
of
overt an
anyonein inter
overt
conspired
that
satisfied
of
light
against.
inso
toA1charged,
giving
matter terms:
the
without
statements
He following
conspiracy
unlawful in for
overt
treason act
which
(f), as
established
that
theitself
difficulty
states found
in ofact.
alia,
act
accused he
of
conspiracy,
further
persons thethat,
act
What
do of
the
the to
details
and
first
his
in his
alleging
that,
means.
the Thesame
that:
is
puts
disclosed
of
overtit
ruling
alleged
not the
so
overthrow
of
will
defence
present it relevant
persons
and it,
without
of
proposition.
impossible
what
some
overt
co-appellants)
is is
offence."
expression
use charge
prosecution's
before
as act, that
any
certain
relation on and
has
only
the
always
It it
the
better
unlawful
actthe
the
other
caseis
to is
can the
conspired
is,
overt
them,
prosecution provisions
has to
genuinelyof
issue
allegea not
essential
alleged
provingto The
particulars
case
nature offence;
prepare
is
unnecessary
was,is
expression."by which
government
act,
matter the
notdefend
means,
cannot
tothat fallen to
unlawful
relevant
the
started,
of
already
by
that
therefore,
unlawful to
alleged
conduct
an
the for
the
arise
opening of
the
complied
the
of overthrow
court
evidence
their
here
be
paragraphs
It can section
embarrass
in
himself.
accused
as learned
independent
evidence
firsttosuch
heard
goes defendant
the
alleged
on by
passage
unlawful
can
usually
particulars
means" case
neithergive prosecution
means,
very
compliance
been
overt unlawful
with
to
without into
that 137,
the
order
or
This
trial
but
persons
details to unlawful
comes
rarethe
was be
prove
particulars
say a act
appears;
(b) must
judge:
the
offence, ibidem,
the
arguing
government
means,
said
and
"roving"
are
that
sayingthe means.
occasions,
found
in
with
requirements
submissionto atto
situation
conspired
is a he apply
be
details defence.
furnishing
particulars
matter
devoid
to the it
did
that ofeffect.
disuse."
evidence.
being are
supply
means.
the that,
in
section
led
above.is
nor A1's
end
both.
other his
...",
by
the
are
not
(1).as
in
anis
to
of
ifaa
person
such
any,
uncertainty
allegation
because
placed
act
army.
army
show
implicating
p61
argued
third
fourth
and
this
second
in
taken
evidence
left
"would
house,
to
submissions
court,
substitution
one
the
as
four
reference
trial
by
correction
because
acts
schedule
that,
indicate
accordingly,
relevant
offered,
Apart
meeting
cannot
manifestation
act,
A1
persuasive
information
Chisenga
course
254
counts
Court
Subsequently,
respect
committal.
accused
the
that
name
was
therefore,
of
validly
refer
Parker,
Lord
Court,
p65
where
remains
diversion
not
no
house,
necessary.
inadvisable,
altering
made
substance
fact
Harris
page
p62
inconsequential
overt
commission
second
Code,
this
they
him.
Annfield,
ground
point
an p63
p64 theis
have
it has
or
of
charge
the
no
offence
cases,
recruitment
only
ground
Kabulonga,
diversion
shortly
of
aamendment
changing
the
end in
case,
found
At
to
that
overt
681,
hesitation
ofno 31,
(see
uncertain
onthat
overt
place
terms
had was
in
from
was
of
the
and
meet
variance
result
propositions,
court
inconsequential
even
were
in was
be
was,
forof
Davison
Goddard,knows
this at
cited
for
single
one
that
was
been
its
no
perfectly
Sussex
know
order to
thereof,
accordance
case, the
township
does
itself
offence,
andefence,
and overt
that
therefore,
matters
person
suggested
obtained.
necessary
obtained
have but
and
the
information
valid
C.J.)
Wright
seems
amendment
that
C.P.C.):
time,
indictment,
the
Royle's
it
indictment."
said
of
Annfield
was
v the
moreR
in a
that
the
there
all
matters
act,
before
in and
letters
indictment
of
substituting To
of
it
for
allegedly
noand
with
its
actact.
has
at
after
attended
two
was is
of
Annfield's
said
C.P.C.,
which at
the
a
(13), the
simply
value
summary
contained
trial
it
place,
case
evidence
the
venue
cannot, to
no
was
word
A5,
that,
with
ruling,
of thereon,
the
amendment
The he
already
power
conformity
town,
however,
not
important
Annfield
hearsay.
out A3 of
an
that
we
containing
nullity;
count
page
intact,
thein
than
example,
use
not normally
by
of
allegedly
it
made
newto
preliminary
the
therefore,
information
said isto
thing, vthewas
was
C.J.,
point
or
orthe
of
.... be
that,
been
Lusaka.
Pierce
afact
the
and
act
meeting, is
The
aovert
he
between
the
the "was
before
other
men
his
independent
detail.
overt
drove not
venue
the
which
only
Chisenga
Nicholson
that
was
E
but me
provided
'Subject
time,
good
In
charge It
tonot
virtue
the
have
People
to a
second
inD.P.P.in
substance
Presidential
but
misdescription.
borrowmiddle coming
"said"
rendered
Presidential
the
some to
overt
district
with
-Kabulonga
is
shall is alter
thatIt
elsewhere'
elsewhere'
is to
description,
that
hesitation29,
"surplusage."
overt
where ofthe is
of to
A7
was
by
amended one
conspicuous
result
improperly
misdescription
second
includes
trial detail
alleged
and
that
said
defective
bad matter
this
respect
was
whereas,
particulars
matter,
is
is
therefore,
a in:
as
here,
and
which
canvassed
to had
do At
Annfield's
first
PW5,
stated,
amendment,
took
act.
is argument
entitled
amendment
the was
The
in
manifestation
never
him A3 of
(that
residence
of
ordinary
matter,
whether
committed
G:
substance,
show
the nature
Lord
the to a
charge
specimen
other
two
discontinued.
trial
accused
in the
indictment
the
lines
defective
A1,
act,
correction
ofStocker,
new at
on
the
be of
with
the unnecessary
such,
of
and
stationed
persuade
so.
the
act,
PW5
amounted
cheque, bad
remained
it
to
used
command
the
On
Sikatana,
unnecessary
court v reference
which
and
Court.
count
before
in
perfectly
second
the that
as
their
ground,
is
the
back
norof
inquiry,
filed and
the
in
27
the
meeting,
introduced
been The
the
relating
and
prosecutiontheevery
didto
know
Kunda
of
under
second
High
(9),
unless
page
any
act
case aparticulars
"unlawfully
the
that,
A1,
the
charge
not
overt
is,
fact
prosecution's
establishing
overt trial,
the
established
counts.
had
rulein
must
indictment
observed
aeroplane.
Goddard, being
Strictly
third
one, an
inof
him
and
be
he
act
-aircrew
people
second
ruledhave
was fact
correcting
the
act,
what
the
this
to
didface
is
For
J.,
by
made
to
the
province
city
and means
house
made
had
was
this
at
or ina
i.e.,
by
A2,
second
is
alleged
was
place,
charge
not
to That
charged
the
law
the
156:
language
it so
29:
indictments
was
conveyance
same
A8;
fourth
enough
at A6
PW
basis
the that
act,
act
but
what
the
to
conclusion
meeting
to
provisions
the
to
second
information
been
Courtsection
count,
offence,
9
provisions
waspage
charge
with
be
faulted.
of it
to
A1,
PW5
the
acts,
of
told
(8).
amended,
or
good is
of
of
Sussex
the
probably
case
that
which
to
and
best
The
case,
omissionof
was
the
virtue
the
delivering
paragraph:
it
in
Chilanga
substitute
as
schedule)
of
the felt
happened
say
that here
ruling ofto
at
A3
as
the
an
The
D.P.P.
and
opinion
charge
long
that
C.J.'s
speaking,
this
a involve
really
the
had
and
PW
by
ataken
correction of
made,
that
ofan it
of tounable
it
wa00sto
illegal
overt
knew
on and
A2,
commited
solely
substitution
trial was 146,
Schedule
omission
committed
one,
more
omitted,
oneit.
of
specify
that
gave
areasonable
the
that
competent
The
venue no
This,
in and
overt
appellants
one
house.
Sikatana
it
Flying PW5itmet
meeting
practice,
in wounded"
the
place
Lusaka
that
is
stand
overt
him
in
same
misdescription.
said
"before-mentioned".
there been
was
later
cause
thiswas offence
are
the
involved
which
treason,
conspiring
intention
anything
was
to is to
A3,
of
of
misdescription.
first
accused
forcount
could,
the
court,255
let
of
against
offence
We
referred
valuable was
of
reason,
from as
term
The
is such
or
which
thatin he
treasonablethe
overthrow
act
the
or the
issued
which
him
this
a
evidence
the
army
-consequence,
yielded
Annfield,
evidenceby
sets
aupon
aletter
is
discuss,do
could
being
with
the
defective
supporting for
in
was
the
a
information
alone
there
whatsoever
these
that the
In
is
was
that
Club
Surrey
than
of
where
a many
mere
no
the
to
this
ought
evidence
defence
act
place
argument
of
made
which
was
of
and
the
illegal
Chilanga
Farm. uncertain.
illegal
little
matter
it
left A5
made
attended
second
date." the
appears
would
act,
count
only
ofI an
case
case
the
from was
but defend
to
athe
from
therefore,
as
referred
a him.
with
not
toin
detail
the
amendment
judgment
simple E,
(which
incest
in
no
particulars
section
it out
mentioned
his
that,
overt and,
to
was
the
one a
amendment
securitysame,
that
since
there
the a
therefore
those
might
rules,
manner
(in
nature
second
army
common
fourth
and
on
there
with
in
residence
substitution an
There
to
concerned
then
on
occurrence
is and
with
that on army
prior
at
nothing
The
summary
and
one
or
court
law
take
other
the It
army
one
diversion
read
at
misdescription;
but aand
examination
(the
awhere
the
offence
moreadequate
submission,
not
the
effect
immediately
relevant
not
the
where of
meetthe
point,
have
A1,
of
by
one
137
evidence
decision
in
charged
murder
then
accused's is the
commission
Farm
C.P.C.,
the
charge
purported
called
to.
is
offence
the
was
misdescription,
of
naming
the
Wallwork
trialOur to the
PW5 any
said
as
aA8,
the
logical
regard
A3
said any
divulge
had
matter
of
merits
In
the
was
it
to
himself
Even
new
in meeting
two
second
that,
the
existing
substitution
matter
format
information
there
which
of
is
anbe
makes
does
matter
but as
place
that
with So
amendment he
court's
accused
of
description
naming any case
schedule
stationed
was
Annfield,
itat
that,the
committed
notfirst
shall
are
offence
which
respects,
court
decision
of ina
no so appears
reference
The
the
to
overt
court's
house
of
in
drove
because,
to with
support
been
of
the
the
which
other
action
in
of in
of
the
for
referred
known
was A1's
charged
other
to gotone)
of
for
being
preliminary
of
view.
not
causes
the
which
amend
unequivocally
attempt
the
both
without
meetings,
conclusive
the
insufficiency of
suffered
the
an
this
andafter
what
far
intent
was
of
him
trial
trial
designated
good
grave
to be
replica
far
offence in
count
be
no the
first
Queen's
of
unlawfulness
thus
only
the
sequence
leading
purpose
indicate
or asof
no
surplusage.
pretence
in
the
(10), was
specific
Annfield
no a
of
at
argument
there
prosecution,
meeting
firstly, of
the
into
some
Elizabethis
meeting,held
amended
information
in
place.
incest
amendment
new
Court asunlawful
person
house,
the
endeavour
secondly,
to
person
PW5 own
had
overt
description
treason
C.P.C.,
specimen
second
the
case;
no
of
with
difference
wayif
charge
respectbut
second
on he
may
mere
of view In
the
in
was
such
correcting
at
in
purpose
overt
act
to
what
A2
A3,
the
fact
after
demerits
have the
of
overt
was
the
not High
accused
certificate,
respect
- noby
not
for
committal,
name
injustice
sufficient
it place
another, law,
overt
of
is
whereverthe
Zambia
nothing
indictment
should
PW5
was andhis
this
couldhis
our
overt
this
of
the
Chilanga
having
in
appellants
that
the at
peoplein
motion;
not
house
to to
that
material
and
of
trial.
the
PW5,
as
Presidential
inquiry
Bench
our
for
fact
the to be
related in
necessary
with Itaof
words
was
the
without
was
held
prejudice
car
on
which
any
injustice
description
ofof
the
is
propositions
act
that
essential
to other
athe
as
objection "unlawfully
(CPC,
Pierce
alsocaseovert
acts;
implicating
which
PW5
an
amendment
been
count,
committed.act.
overt
also
the
section
everything
said argument
since
is
judge
the
allegedly
venue
detail is
ItCourt,
Kamutuka.
wounding),
first
magistrate
of
the
by the
saying
opinion,
made
which
the
substance
points
overt
that
Criminal act;
matter the
Elizabeth
act, for."
to
section
to
or
that,
of
evidence;
that He
the
for
and
was
was
concerned,
whether
not
actual
any
fourth
different
and
indictments.
read
bethis
eventsat
constitutes
effect
Annfield's
had of by
been
would
cure
ofa
He
at
murder
of
the
uncertain
alleged
and
in
attempt
respectively,
to of
been
is of
to
pursuant
the in
words
offence'in
Farm"
the
and
being
society
though
to, in
act,
the
it aisat
the
act,
forming
charged;
wasor
which
direct
that also
and
with
provided
act,
second
there
certificate,
the
both
were
Division
the
describe
reasonable
provided it is in
prosecution
to
the
argues
implicated
and
Annfield's
ofKabulonga.
was
persuade
at the
goes the
third
recourse
Sikatana
and
information
52
that
returned
concerned,
badcan
charged
to later
relation
second
trial
deletion
committed,
intended
that
to
the
made.
A1,
wasorthe
sum
Appeal,
misdescription."
page
onovert
overt
which
A1's
issue
asuggest
had
Annfield, leading
the
any
order
of
amending
misdescription.
the
of
tofourth
Government.
hadagainst
fourthly
more
information
He of
but
properly
defendant,
137 refer
the
have
meeting
overt of
to
in
killed"
weapon,
thirdly,
only
I
is
this
Duringtoan
foundation.
held
00aeroplane.told
was
involved
themselves.
the
minute
proof
of
introduced
house
was
ruling new
overt on
court
Kamutuka.
any
'County'
at he
County
parted.
not
was the
altered,
reinforced in
aPW5,
overt
A6
about
aand
the
He
says
ingredient.
purpose.
anbeen the
erroneous.
date,
count,
statement
(Per
(f) law
144).
that
theact
was
injustice.
and
also
prisoner
incest
charged."
alteration
prosecution
ofthe all
defect."
residence,
Annfield's
We by
named
that
at
been
did
accused
to
crime.
unclear
illegal
in
having
than
minute
element
said
saveto
second
of to
home.
present.
Davison
namely,
clearness
think in that
section
to
been of
money
it
charge
entirely
act,
validly
point said
overt
house
alleged
house.
be him
-point.
who
overt
states
Penal
where
on was
taken
High
count.both
place,held
and,
laid.
Lord
meetand
(in
act.
A3.
The
A1's
trial
not
that,
that
one.
act.
say
and
the
the
any
Mr
this
thing
have
wasnot
We
by
In
act
the
was he
in
&
to
In
by
of
an
in
no
or
of
at a
charge
during
insufficiency
between
which
The
caused
now
following
case,
was
prosecution's
an
own p66 onamendment
the
amendment.
motion.anthe
and
no
be the
attempt
subject
injustice
in discussion
passage
made the
injustice overt
of
accordance
court's
instance.
Attention evidence,
Heof evidence
was,
inwas from act
injustice
to order
own
argues of
made
the and
therefore,
A1
hasSmith motion. but
to (since
accused, the
to
with
maintains
that
been first
stemming
meet of
persuade
(11),is part
insufficiency
evidence
Itevidence
competent,
drawn in
the at
theis terms
that of
from
page PW5
evidence
asserted
misdirection to the
because
itof the
the of on
the
681,
provisions argument.
subject
had
section
the
case of
amendment,
that letters
in evidence
there
taken
duty
for of point
the
the only
273 The
E.
of
Hermes was
place
case
ofamendment was
of
to to
accused
the issue
has,
as
F., evidence
the
soat in
section weis
prosecution
vif to A1'sto
long
R at
fact
C.P.C.requirement
shall a
instructive:
make
(15), the as
should large
house, ample),
toIt trial
do
273(2)the is
referred
an show
in so extent,
notwas
unnecessary
have
every
amendment but
that
later.
amendment that
at
person."toplainly
of
been
case been
one
Annfield's
the
In the our
the of
made
to to not
dealt
meeting
amendment
caused variance
view,
consider
apply one
house.
C.P.C.
at with the
no
for
3:
information,
invariably,
amendment,
even
argument
prosecution
Indictments
technicalities
sub-section
prosecution,
matter.
important
the
in
to
further
advocate
flowing
is
propriety
and
amendment
appellants
that
stem
that
the
first
were
been
taken,
accused
upheld
standing.
second
to
(hereinafter
"minor
subject
following
Section
p70
our
construction
offence".
However,
p71
lesser
of
183
he
181.
to
within
preclude
section
182
The
conviction
p67
representation
after
could
And
ruling
advised
further
during
involved
prejudice p68
p69
misapplication the
the
that People
amendment
main
40th
paragraph
court
pleadthe in
grounds
plead,of though
dismissed case
legislation.
following
treason
188 may
of
only
to Dr
import at much
charge
court
of
unless,
without
seem
first
For
from
misprisionwhich
acquitted
for the and
count
and
goes
purpose
edition
judge,
parties
do in
to
particulars
submission
have circumstances
would
might
feel
general
injustice.
of
was."
Sebugenyi
amending
amended
following
creates
modes
to
therein
sub-section
appellant
enable
that
it the the the
ain
amend
cross-examination;
whichof misprision
persons
accused
these
a
ambit
have
not
the
188 a
offence"
in
misprision
treason."
181
combination
offence,
unless
the In
lesser
species,
(1)
satisfied:
necessary
offence
necessary
where
another
charged
with
of
penalty
Mustota's
reads:
eight
other
and the
prejudice be
question
the
defence
is only
C.P.C.
the
gambit
can
is -
(16),
place
exception
cross-examination;
thefrom to of this
its
the
of it
Act,
(1) as
appellants
can
resulted
really
both
plea
bearing
purpose
third,
of been
on
unless
the
is
and
that
the
of
referred
conclusion:
this was does
reads
in
the
amend, and
concerned
appellant's
he
theircould
simple no
and be
of by
representation
minor
Mancinelli
of
Phiriit
the
respect
on,
of
information
having
only
appellant.
set
his
did
period case
appeal
(third
the
(corresponding
passage,was
requirements. in
he
Until of
country,
wherein
his
prosecution
is
court
injustice.
the
ruling
it amended
to for
bemade
1915
the
of
was
section
penalty
is
Robert
offence
judgment
statutorily
than
convicted
C.P.C.
which
application
shall
eighty-two
Act is First,
at
and
conceivably
permissible,
sections a
with
invite
argument,
and exercising
ruling,
concerned
misprision
of of
that
subsection
charged.
must He
to
in
amendment.
conduct.
refused.
proposition
We that
vthose
the
committing
the out.
not
individual the
gives
redundancies
of
section learned
of as
from
(1).
advocate
matterR no
injustice
amendment
raised
terms
C.P.C.
framed
offence
proved
stand
of be treason
not
may
cognate
(C) of
all.
set to
in
is
own
necessary.
not the
paragraph
to
the on
before
one
be made
charge
they
Phiri
treason
of treason
of
Phiri
originally
requirement
disapprove
treason, on
count).
contends
section
The
the it
prosecution
of
information
awords
consideran
Mr
(17),
charge
called as
mean
is
regard
follows:
particular
it,
concerned athe
reasons
This
wish count
case
advocate
answerIn
treason,
guilty
mind
proved
(19),
(18), than
Ndecho
appearing
that
section
The
not
remains
out
construed
the 182 is
tosome
offence
be
181
inSpenser
All
consider
such
offence initiative
aware
England
section,
5namely,
did
Hordern
In
said
had by
ofmy
preliminary
objections
counts
of
namely,
comes
are
inIt the
provides:
of
other
which
will
of
as
the
in
The
application
to
and
of
to
the
With
quite
factsthat is
consists
but a
learned
generality
power
paragraph
his
submission
aforesaid,
information;
andto
that
is such
Attorney
this
Bennet,
after
rights
(C)
is of
it.
at
upon
count,
would
section
this
(1);
one
althoughbetwo is
to
that
order
to
parties,
an
At
the
convicted
(C)(18)Bell,
the
The
that
supra
proved;
Justin
but minor
181
to is
alternative
sectionthe
theBut
conduct
so to
call apply
1-63of
resulted
treason,
trial but a
other
181 minor
only
charged;
difficult
facts of
that,
itis
of
like
discretion
the
be
amendment
alleging
awasanswergiven,
ruling
consider not
of
were
R
within
that
construed
188 the
-the
and
amendment
course.
an
the
Iand
opinion,
any case,
the
as
and
agree
be
stated
stage,
there
correcting thatto
to has
any
opportunity
minor
v
differently
if
constituting
treason
does
as
provisions
Wilkinson,
have
that,
of
the
pleading
Indictments
is
the amendments
that
were defence
after
Acting
stage
implicating
implicating
a very
judge)
sentence
the
C.J.,
offence
court
at thereby
181
that
subsections
argues of
that
(21)
whether
and
hundred in
thev
although
offence
section
for
to
defective,
itcourt of
granted
criticism to
Mancinelli
page
(2)
is and
are
that
merits
to
amendment
wasclose
section.
implied
plead
the
The
of
Another
to
General
and, 50 of
the
that
fresh
recall
was
issues.
concerning
naturally offence
greatest
offence,
where a the
Attorney-General's
181,
of
he
interests
amendment
bethe
not
namely,
at
defend
an
had
not
we
and
struck
and
Secundo
offence
remaining
of
several
that,not theIt
with
that of
matter
tohad
verdicts
addition
merely
the
"applied
need
Wales),
amend
be
early
said,
disapproved,
of
of
charge
section
the
additional
any second,
proved
portion
that, to the
particular as
if
assist
an
aof
thinks
in
rule
deliveryno
the
from
offence
which
thethe
with
181
171,see
41st
whether
informed
express
made
an been
treason
second
felony,
and
of a
of
was
pinpointed
can
that
C.J.,
of
watching
to
he
pleas
any
People
his
considered
theof
originally
ambit
and
a
even
because,
purpose
court
the
in
accorded
A4
been
misprision
the
regard
an
here
wasto
sectionhas
Act)
rightly
particular,
Archbold,
to case
amendment
him
the the
Learned
from
implications
did of
"no
Originally,
be
at stage
out,
entered.
rights
CPC
respect
seem
as
person
thisfalling
minor
in
fact
provisions
restricting
to
C.J.,
of
that
see
injustice
adjournment
misdescription.
to of
all
misprision
minor
judicial
v
lines
carries and(19)
page
which
(1)
Criminal
in
particulars
ofextent
it
that
as
to,
for
amend
confers
criminal
the shallthe
edition)
express
(second
the
he
R. that
which
for
prosecution
justice
court
necessary
practice
to
thereof,
adjournment,
actually
the
at
could
had
the
213 directed
.going
reflect false
rejected.
the
to to
case,
implications
is late
.such
proceedings
the
amendedno
witnesses.
were not
accused
embarrassed
Mancinelli of
the
such
is
the
is
eighty-eight toit
constitute
particulars
(20),
in
being
Code,
specify
offence 15
it
that
and
an
.case
themselves ofsaid
5of
reads:
based
count
of
in
a
not
is
may
be
following
such
prosecution this
(18),
second
leaving
and,
23:
to
not
an
the
court
of
points
answer"
anany
treason
were 39th
direct
Later,
the
is
offence
was was
meaning
charged,
the
to
section
it
offence
us
whereunder
judgment
isthat
upon
their
his
accused
appellant
or as
injustice
Crown
words
wish
taken
the
part,
lesserisone
the
Bell,
intention
termsa
cases.
shall
the
made
thehas
to
which
appropriately
to
besetting
prosecution
on at
convicting
amendment,
amendment
awould
court
does
the
opportunity
on
made.
representation
The
ofwas
the
amendment
the
count)
onquestion
37;
Procedure
circumstances
by
charged
ofthe to
disclose
provided
not
position
it had
be
and
of of after
the
accused
cognate
way
and
treason
some,is
was
page
right
specific
late
say,
and
and
the
fully
charge.
out,
defence,
edition
an
answer"
Criminal
of charge.
the
any
In
at
persons,
in
reviewing
(19),of
a
bothare
be
contemplate
it
the none
are
been
views in
the
or
two
and
information
proceedings, 181
subsection
C.J.,
specifically
not
returned
in
section
application to
the
shallof
been
Indictments
make
required
meet
upon
Court
close
before
"at
thereon;
the
Clearly, and
treason
leading
comes
penalty not
although
that
currentas
some
appears
not
and
not
accused be
the
and
third
his in
persons
on
with the
observations
Counsel
these
implications
treason
those
complete
ofnot
accorded
proved
another
45,
Sub-section
We
which
involved
stage
at any
of
Mancinelli
authority
with
is the
derogation
not
unaware
of
explained
and
the
court
invariably
amendment
toso called
as
amendment.
caused
case
(1).
we
to
for to
of
served
such
on
its
apply
that, an
that
injustice.
page
defence An
the be
witnesses,
prejudiced.
judgment,
whether
is
person
Mancinelli
the
subsection
comes
specifically
that,
provisionsbe
charged. Code,
than
make
of
line
is
such
recall
propositions. ofno
the
are
the
when
Section
to
(reproduced
have
Crown
of the
final
desired,
stage
the so
mustbe
"watching
the
judgment
Procedure
stage
section
including
another
counts,
to
under
treason, two
Phiri
invisible
is
proved,
charged
authority
to
within We
why
provisions
one
all, for he
edition
and
accused
incorrect.
exercise
wide
amendments
person
is
(2)
an
need
Appeal
the
could
made
413,
circumstances by
count
lesser
say
legislature
but
these
two
45,
formally
Act,more
submitted
case
adjournment
witnesses
from
therefore, minor
the
offence
unable
offence.
adopt
provided
within
misprision
construed
of various
by
circumstances
intoterms
express matter
case
contained
and, to
was
to just
amended
appellants
oftoof
leading
is
three
deal
it
hundred of, the
must
also
they
of
amended
athad
case
cases.
of
generality
The
the
He
involve
so
misprision
(C)
is
and
applies
aid.
or
judgment,
prosecution an dismissing
application
(2)
order 273
powers
not
August
the is
without
heon
him.
the
clear
subsection
particulars
(19),
Phiridifferent
the
provided A4;
accused
in
(1)
the
the
must
the
to
page
have
at
letters may
After
if not
181
before
as (which
The
than
originally
(19) of
offence
to
as
The
discussed
in
held
subject
Code
trial"
the
may
not
first
particulars
subsection the to
and
the to
doing,
(18),
alternative
ambit
page
person
become
He
for
their
in
amendment
The enable
be
closed
for
relied
accurate
the
or
they
theto do
to
and
the 32:
F.
learned
When
offence,
with
this Iin
necessity
that
amendment,be,
the
three
expression
the
and the
conditions
originally
also
We
(a)
onlythe
for
objection
sections
offences ofsee
that
of
offences
of
cannot
for concludes
the
paragraph
should
before always
first
heard
final
to
that
the
resulted,
stay the
relevant
to
besetting"
which
be
25 was
fail
answer
grounds
that
chargedbe
withof
pleas
particulars
earlier
(18),
ambit
provisions
as
application and in who
objections
authoritiessame
of of
fall
cases.
of
must
disapprove
minor
treason
for
being
Kapowezya
46,
charged."
its
away
the
only
how
section
in
(2)
(1)
made
views
providedis
of
witnesses
allege
simply
permits
concerned
so
allegationtoare at
upon
him
overt
its
s.no aware
the
C.P.C.,
amendment.
court
deciding
proposition
this
adjournment
recalled
appellant.''
to to
justification.
there
arrived
country
Justine
with section he
of
convicted
charged
C.P.C.).
the
sections
one the
counts,
inthe
all
lines
power.
similar
the
invite
made
be
before
judgment.
prosecution
question
I.:description
at case
76
granted
wished, 30,
other
trial
treason has
charges
section and
it.''
which
within
every could
genus
it
would
constituting The
misprision
-
eighty-one."
section
for of
189.
charge,
with
injustice
whichand
different
conditions
occur
see
that
one
declined
must
charged;
therefore
dictum."
does
of
for
by
aon
part
or
was
on
treason,
with "minor
(21)
last
can
on
some
made
aspect
on A 1that
case,
just."
50shall
false
stage.
CPC.
judge
at
would
section
offence
sections
hundred
which of
comes
of
without
any
and
thus
court
how
were
1982,
which we
two
since
suchand
168
case "
first
also
183.
182
Thatany
181.
its
the
so."
that,
asked by
for
his
an
act.
(1)
for
thatbe
the
out
is itva
to
of
in
to
it."
or
in
of
be a
these
in
generality
abe
the
only
issue
stage.
that
original
catch
arise
convicted
proposition.
our
offence"
evidence.
lends p72 the
one
lesserambit be
proof
at
opinion,sections
of words
The
word specified
support penalty
of
alternative
taken
181
convicted
minor
offence
the can Aofbasis
of
final
is (2)
In of
the is,
sectionsome
"proof"
only
Practice
to the of
to section
than therefore,
provisions
any
offence
judgment
ourminor
term offence
of the
this 181
acommission.
view
relate the
minor
of
opinion. of
treason
Note and C.P.C.
argument
the
offence,"189,
the
of
can
"convicted" offence
that
to in
the
is of
offence,
stage,
(22 those
addition
provisions
not
felony,
only
particulars
the
It awe itsection
C.P.C.
this
reads
(a) with
an
follows
is
adding
awhich arise
take, can
possibility
), maysections
that,
appearing As
aspectone
specified
(letters
given to,
contained
which
of
only
proof
is at we
result
that, but
that hundred
subsections
common of
by "shall
said,
of
mean
G the
maynot
the
in vinthe
offencefinal
convicting
and
the in
accused
Phiri
the into
section
argument
proposition
the proof
be be
ato
Queen's
H): derogation
sections
definition
(1)
judgment
accused's
prima
both construed
eighty-one".
(C)
charged;
expression: beyond183was (18),
that is
subsections.
if facie
Bench 182
(2) of
(1)the of,
originally
stage, as
headnote
'minor
aleaving
of
conviction.
or
reinforced"heor the
person
courtthe of
reasonable
Divisionbeing
188,
Thus,
thebeyond
may provisions
notsection,
the We but
C.P.C.
werecharged,
offence'
by ata
(iv)
charged
Dr
be without
facts;
areminor
must
the
ato
(per at
doubtcannot of
page
but
respectively
Mushota ano awith
which
phrase:
reasonable
unable
convicted
to receive
Lord prejudice
section
nonetheless
offence
case
which 168:
become
aunsustainable.
to factor
saysatreason
of to
reduce
"he accept
no need
sustained.
can
doubt. 181
aprovide
answer
that
may to
further carry
within
account to
minor for,
onlythe
not
canbe
In
either
argument
by
181,
(2).There
section
C.P.C.,
treason,
charge
cited
were
where
(on
The
to
them
the
count
A4
on
indicate
erred
client
provisions
misprision
had
struck
treason
did
(ii),
plead
him
there
as
simple
maintain
amount
Chipango
hands
success
case
prosecution
the
complete,
should
accused
prosequi
was
that,
court
delay
this
matter,
trial.
itself
President
prosecutors
it
by
tried,
of
conduct
making
itself.
them
point,
argument.
any
position
conferences
reported
Secretary
Annfield,
serious
before
State
Court,
to
because
appellant
had
145
pre-trial
criminal
television.
whose
of
with
influenced
p73
p74
participation
is
offence
alternative
either
Haonga
contained
unfair
allowing
aso
believe p75
p76
p77 to
the the
isaanswer
Chief
that a a
(last
it
misprision
being been
not
at
itaboth
"water was
recovery
in
of
country.
team
reason a
by
especially
to
was
delayed
in
as
prosecution
bearing
of
tried
an
Tembo/Hahuti
was for
was
of there
examination
on
decision
wishes
case
tribunal
evidence
convict
information
upon
assault
(before
his
is
out:
page
in applies
alleges
below,
circumstances
devoid
moot
not
There
but
for fair
fair
he
original
(particulars),
have
be
cognateness,
and of
toat
holding
that
satisfy
preferredan
we
other
was
case,an
criminal
for of
aside
clear
real
struck
discretion
reasonably
the
to the
planned
terms
tight"
that
because
is
inthe
long
persons
was
August,
prosecuting
ofby
Defence
it.
no
clearly
accused
offence,
ceased on
misprision
thereby andwhat
of
it
argued
an ahas
to
should
before which,
investigations
Justice
one
of
paragraph):
publicity,
proceedings
importantly,
have
jury enormous
consider
though point
and
already
that
which
adverse
trial.
by are
example.
that,
the
at
trial
Withany
other
the
prejudiced
21,
alternative
misprision
charge
(22),
in inone
of
on
or)
the
unfairto
D.P.P.
witnesses,
of
were
local
related
thethe State
object
Salmon,
risk
(the
failure
to
tothat,
treason,
flowed
in count
fair
alternative we
the
adjournment
two
improper
this its
of in
out
others
and
itself
entered
when
ofwhich
extraneous
been
as
answer,
(if on
the
against is
is,
charge)adduced
tender
contrary
recalled
Chief
trial
four
would,
the
mass
and
Delivering
danger
no
at
implicit
stage
bringing
case that
that
is orto
of
at
delay
firearms;
1981, were
of
neutrality,
he
whether
was
once
proceedings
he the
was
that
triers
of
section
groundsthe
given
and
to
for
atype
proceedings
the
original
subjected
exist have
person at
opportunity
besaid:
right for
or
compelled
suchif
the
situation
constitute
againstwhen
of
at
from
trial.
case
was
re-trial
was
returnedtheto the
complicated,
that
detained
that
personnel the
the
is
complaints,
and,
such
aahad
A1
no
terms
said
A4 vhe
conduct
there
experience
L.J.,
is
conviction
Ithe
in
the
158
and in
the
by,
amounted
the the
substitute
is has
murder,
were
no
or
charge
to
commission
committed,
of
misprision
page
conduct state's
complicated
reduce
the
magnitude;
recalled
Justice,
contrary
the
ofin
media.
persons
of
and
in
The
brought
Defence
that
against
again
to case
evidence
Itso
that
acquitted
treason,
subordinateand
treason to
from
offence
did
treason of
itinvolved
within
appellants,
itcase
the
the in
alleges
said,
offence
Security
tried
by
evidence
to
therefore,
is
charge,
the the
to
bringing
is
there
more is
and
had
accused
athe
accused
manifestly
been
decision
assault.
casefound
does
embarrassment
and
preliminary
the
to
be no
is
recall
of
273
appellants the have
notto
People
exhibits,
delay
Chief
complaints
Lusakathe
in
publicity
the was
this
establish
delivering
matters. jury
questions
to
athe
subsequent
section
209,
appeal, case the
before
support
treason
to(2),
submitted
under
it
fountain
afor
led
similar
andof
recognised this
(which
but
Similarly
namedinter
this
judgment
the
and
trialhear
the
histo
that,
self;
do
Penias
complete
information
aby terms
against
suffered
(though any
Once
of of
to
of
meet to
placed
or
reasonable
distinguish
ahim
not
some
had
cognate
have
learned
appellants.
matter
evidence
before
proceedings
criticism
was
with and
bywhich
preceding
decision
that
an the
and
occurred
appellant
ofwas
theany
This
to
court,
mistrial. to prosecution
Iajudge
answer
judgment
raises
involving
and
case
convicted case
and
Justice
by
importantly, -
notthe prove
so)
no
(27),
"large acquittal
misprision
conviction
proceedings
emerges.
but of
the treason
or,
case of
lines
put
including
persons,
persons the
and
an in
alia,
absence
appellant
television,
his the
of of
which
sBhould
so
dismiss
provisions
shall
the
have
arise
that
he
awhere
in
Crown but,
fashion,
trial
and
of
Security
is
unreliable
Tembo
A4,
reintroduction,
answer
stage
count
the the
he
the
apolice;
trial fair
participation
failing by before
would
more,
accused
that
the
of
the
are
was
attempt
puisne
once
guilt
influenced the
were
of
in to
judgment
fact); not
far
injustice
to and
offence
We
section
forward as
where
and
Preservation
that,
justice,
against
learned it
from
was), unsafe
an
subordinate
but
evidence
minor
the
from
Dr found
no
and,
He tribunal
therefore
stage
set
where
of
in
in
alternative
declined
calling
of
it
paragraph.
prosecution
reported,
that
at
had here
or
R the
itself,
the
prosecution
40
weeks.
put
were the
manageable
is
offor
on
made
this
vofon
before
was
essential
that
is
that
more
grounds
273
stage
opportunity
to
36 are
it the
taken
books until
laid
Ifor
him
case
particulars
his
Mushota
circumstances,
subordinate
were
this is
support
on
in
the
information,
not
different
usually
as at
instituted.
thethis Court
it.
depend
at
The
the
prejudice
of
from
and
says no
probably
judge. ais
has
could
or
that
of
offence
report an
offence; If,
that
charge.
of
between
the
treason
of as
trial.
persons
state
we
complicated
persons
before
time,
the
abroad.
to
because,
again,
contempt
Savundra
the the
by
satisfied
therefore,
was to
by181(2)
desire
opinion
period
asked
the
Maputo,
soState
against
by he
which
preliminaryIt at
free,
to
incriminates
ruling did
tois
discontinued.
summarily
recruit
Attorney-General
unnecessary
the
might
said
of
thereon,
established
overwhelming
had
charges
of
jurors, had
appellant
an
been
however,
before
call
good
People the
atried
or
August
treason
A1
finally,
Attorney-General
122 virtue
charge.
lesser
do
46
searching
that was,
neither
President.
It
trial
of
theIt,
would itof
the
trial
says,
thea
element
no
stage
not
convict
section
subsection
court)
A4
importantly,
answer
accused
section
time of
at
result
Our
not
181
account
the
thewho
including
These
had the
the
cannot
is
whole
or,
contends
it rather
originally
witnesses
removed,
it to
andto of had
has
did
so);
witnesses.
the of
new
to
at
court
therefore,
However,
of
Appeal,
fair
(29),
audience
overwhelming
so whenCourt
being he
was
of
reasonable
But
uponthe
was
(2)
reinstatement,
that meet
that
to
proportions",and so
convict.
judgment (24),
as
flow
reason
the
(iv)
therefore,
court.
Public
special
judge about of
25
the
court
scheme."
it
unnecessary
at
which
decision
judge
Mozambique,
court
pre-trial was
convict
it,
but
page
follow
were
committed
longest
deliberate
Indian
prosecution
to
trial,
was
verdict
a the
the
no
but
person,Ino
subsided
Innot
offence
that
ainvolvesA4of,
subdivided
prosecution forthe
was
in
this
He
discredited
muchin
submission
of
than
him
original
here,
no struckam
219
subsections
now
181
Muvela
tothe there
he
reason
and
pertaining
complaints
seriously
deal
and
"water-tight"
allegedly
stage
-
grosshiding
where,
of
lay The
athe
but
arises
evidence.
judgethe
of
case
because
is
that,
from In
was the
prisoner
prejudice
(2)
for
authorities
C.P.C the
his
had
page for
fact
charged
30,
injustice
misdirection
evidence
312,
May
Subsequently,
Sikatana
Security
has
seven
prosecutors
orand
trial,
sothat
a
they
faced
Appeal,
If
andwas
put
facts
into
this
apprehended
not
suffices
was as
press
of Lordwas
fraud,
millions
people,
or
is
hisalleged
tribunal
on
satisfied
for
stage. centres
Hahuti
improperly
though
out,
of
further the
the
rights
alternative
principles
It
only
criminal
complains,
Prime here,
hence
as
prior
publicity.
that butevidence
ato
of
charge,
or
amendment,
this
1982;
knowledge
astate
(as
been
northe
if
only
sits
that
has
neitheracquit
his
lines
is is
him
so
vpossible
1981,
to
months,
likelyof
be
passionately
because
said,
would to
attributed
the it
whether
reasonable
referring
whether
the
fair 210
into answer
they
are
answer
The the Here,
at
will
submission,
court's
the
with
no mayfurther
the
Chief to
did
deal of
count
that,
dissipated
original
of
as
that
fair
butthe
Minister
had
conference
laterThe
said
alone toif
he
against
are
is
A4. as
the
leads
standpoint
it
were
was
to cross
tried
goes
to
had
on
on
vwe
found
the
knowledge
bank
Regulations,
D.P.P.,
this
argued
on
render
case,
proceedingsof
jury
offence;
that
adefence is
case
long
from
to
interit
could
made
common
(1)
People
opportunity
four
to2by be
soon aguidelines
but
for
argument.
TheHe
originalcase
relate
proved
or,
deliberate
for to
it
that
but
shortly
anycase
the
refer
hewith
without
thea was
at and
on
excluding
another
High was
bring
been
President
fair
test
people.
Also, to
successful to
to
and
result
section
his
putto on
stage,
3:the
there
Penal
too, to
preliminary
charge;
charge.
ensure for
the
fully
do
of
submitted
met
constitute
hadin
and
on
to
instance,
for
India
and
thatthe
alia,
appellants
Justice
commencement
skilled
page
could
susceptible
as trier is
that
submits
count
minor
the
one
examination;
occasioned
lines latter
parts, as not
make
transactions;
the
that
tocarry
Court
was
influence
verdict,
all
safely
tribunal
to
defence
People
on
hisand
contrary
only
Dr
to
combination
the "It
supportthe
interviewed
is
the 1Parker,
the
of (b)
their
given
that
643:
perhaps
and
ahave
which
misprision
is
(26)
trial
that count
accused
the
with
detained;
say
occasioned
be these
unsatisfactory. of
committed
in
either
assault,
is
his
simply
explained
In see
offence
that
possible
to
section,
orwas
that
Secretary
whether
said
hesitation
of
there
adjudicating
whether of
nor
prosecution
later,
information
PW5;
Cap.
complicated
experiencedon
conviction."
On
when
answer.''
evidence
Code."
Mushota's
asubsection
291 criticism.
charge
conviction.
adding
previously
offence
the
namely, (25),
situation
case
to
conviction,
trialheld
interviewer
conceivably
of Savundra." the
history
an
answered:
conducted defence
no
headnote
any fact
account.''
meet
to
judge
prosecute.
there given
out,
for
them
thethis
the
questions
to that
that,
whether
had
at orof
on
reduce
C.P.C.
having
that
to to
why
treason
on
thereby
one
aby
originalin
limited
C.J.)
cross-
convict is
mightside
stage,
which
factors case,
him,
court
did and
case
was
is
law.
122
and
nolle
trial.
unfair106.
any
legal
unfair.
press
Pierce
appeal
Court. was
State.
High
page
facts
most
being
no
(2).
the
are
that
his
can
the
see
20).
for
of
to
itaa
(i)
in
by
of
not
trial.
the
set
on
way
the
prosecution
were
13th
p78
to
court
defence
purpose,
Mushota
manner:
course
co-appellants
thereby.
20
can
regard
chambers
answers
"improper"
appellant
had
was
the
in
that,
alone
his
confession
of
statement's
pursuance p79
implication,
Archbold.
those
unnecessary
statements
be
submission p80
cross-examiningtheir
Attorney-General's
by
objection. points
be edition
trial
presiding
given
question
a thatrepresenting
to
heard no
lot
co-appellants
evidence
the the law
Mr
accused
1982,
was
Sheikh
fairly
and
not influenced
indictment
does
accused,
from
"20. for
proceedings
conducts
impracticable
absence."
prepared
enable
-
consider
represented
of We to
statementsand
miscarriage
room was
interview
defence moremerit
with raised
and
action and
evidence
during
of
The in
treason.
(2) and
Sheikh,
accused
look
feel in
approached
questions
for ofacame
statements
during
as that
whether
maker,
adopts
for chambers
(henceforth
himnot to with
indicated
not
resident
a
Nowhere
being 1
in
thateven
Every
thegranted.
his
applied
what
joint as
of
state
sentence
matter a
the
heard
expression
and by
removed
himself
theirs
that
concerning
that, the
were
witnesses fact
themselves.
abuse
whether
from
statements toif
represented
as
he This
defence,
him
absence
persons,
resident
absence
witness
not
role doesA1.
though
doperson
and
the member
this
forto
transpired
argument
criminal
in
the an
non-makers
trials-within-the-trial
"very the since
and
by
magistrate
advocate
thethat
to
could
which saw
In
the
allegedly
the the
referred
his
reflect
but, is
as The
and
the
an
the
court
paragraphhe
following
the
and, inwhat
hadofthere
his
courtas
Mr he
who
to
and
as the
magistrate
applicant's
cross-examination
against
statements
evidence
in in say
made during
could
presence
childish".
the
prosecution,
complained his
right.
be
extension
looking
a court first
His
proceed
court of
he
simple
during
the
not to
consents
the
render
the
saw
as
that
and
adjournment,
enterprise been
proceedings a is
there
trial
judgment,
sat
Sheikh
the
but legal
trial
adjourned
was as
represented
allowedauthority
contents
accused
made
this not
absence
by
only
trials-within-the-trial.
of has
two If
relevant
charged
prosecution
that
proceedings
quoted
theand
at
the Phipson)
and
the
unrepresented
conclusion,
their
he
co-defendant,
and
the
to
This withthese
the
after
prosecution
judge
written
one
or
of of
was
the he
ordered
representing
of
thefor
brief
of
to training
or
granted
character,
would
"possibly
and
as by of time
although
prosecution
on
absence
thereby
case
confession
is
appears judge
the
the
himself
the
consult
retirement,
orwhich though
of
the
stage
innocuous
brief
from in
the
of points
for
abuses
by
part
with
continuance
proceedings
his
some
defendant,
against
as
trial competent,
given by the
main
not
public atcase
which
trial
him
be
isthis
counsel
aofenables
prosecution,
Chamberscould
within team,
State
ofanhe
proceedings
Phipson the
page
which
advisers.
accused,
cannot
witnesses
judgethe
makes
into say
of
unless
is his that
in
his
paragraph
the
criminalis
in
to
judge
himself.
the is
had
only
Constitution,
to
with
of As bein
reads:
his
and
prosecution
they
justified", not
adjournment
which an
the
paragraph
accused.
it3,
either
statements
complain
demonstrate
prosecutor.
the to
co-defendantor
absence
Article
be
approachedright
the
. and
proceedings,
prejudiced
procedural and no him
absence,
15 do allegation
absence
not,
removed
dealt
Dr
and
complained
was
co-defendant,
madeit
makers.
the
neither
ruling,the .
them offence
appellants,
engaged
lines
sent
Lord
justice ."
in to
The
can
the
State
appellants
exclusionto arriving
quoted
so
his
justice
not
aWhen
adding
know 24 is
for
the to
subject
for
says:
prepare
Mushota
opportunity Wewith
make
nobody the
within
witnesses
a
Goddard,
is to or
"in expunge
33-06
voluntary,
application
brief
matter.
provisions
be of
one
that
advocate
not bad
the
trial-within-the-trial,
co-defendant
suggested
A1 the
his
to This
the
After
ruling be
nor the
(a)
and
he
said
25:
the
police
was
own:
relevantthethat
he
above,
of
that A1
the
alleged toa
of
proceedings
submissions
accused
said had
from
private
seen
can
made same
being
accorded
any a may
shall...;
proceedings atthe
State
Neither of
purpose
rendered
character,
officerjustices
:
what inand
one
written
to
C.J.,
non-makers
submissions
in the
the
from
or
party)
see
which of at
mattertobut
about
ofno extraneous
time
for
consult
the
have
in
shortly
either
that that
about
bias
part other
Phipson
to trial
qualification,
discharge
e.g.,
trial defence
personson
Clause
the
his make
relate
including
and
besaid whom
the
the
paragraph he
are
of of
to
the
consultation" his
in
been
case
"added
retired
done,
effect.
others
by
he appellants
judge
submissions.
allocated
extension
in
28th
12.55
objection. and
defence.
A1 are has
proceed
his
nor
absence
interviewed
inwas
be
expressly,
position,
had in
course on
the obstructing
whono
his
(2)
trial
his
evidence
confession
opportunity
co-appellants
which the of
overruled hethe
lawyers
on
Dr that
to matters.
Evidence,
absconded
following
September,
hours.
any
prejudiced
because of
respect
dealt
(other verdict.
met
Mushota
colleagues
It
were
I
unfairof
record.
recorded
occurred."
thatconsider
judgment
14-60
confession
trial
been that
jury.
reference
presencefor
should
do of
Article
and
reads itin
of who
bail."
in The
time
-
day."
thereA1.
said.''
orwith.
than
only
court.
made he
Dr
Mr
not
his
was
the
him
can in
by
of
it. I
follows:
trivial,
any
hand,
appropriate
recounted,
definition
against
on
alasted
and
as
difficult
for
of,
accused
from
far
all
cannot
that
had
unfairness
General,
of
Minister
Chancellor
wears
branches
actual
to p81
impropriety
allegations,
This
misdirected long
p82
Legislature,
the
presides
Committee
unprecedented he
Attorney-General.
unlike
A1
merit
other
termination
adviser
powers
capacity,
section
D.P.P.,
subordinate
any
already
appear
permissible
behalf
General, p83
Attorney-General we
theof
Defence
contempt
from
there
the
been
House
contends
prosecute.
way or
the
that upon
about
interested
plot
political
Who
executive,
appear
over
trifling,
the
are
the
almost
applications,
and
could.
eleven
fact,
of - puerile,
persons,
an
see it;
trial
Lord
three
because,
to
any
poweris
as
beforeof
(or
not
the
appointed
Solicitor was
practitioner
limit,
the he
raised
of
the not
thecan
inis
following
for
and,
unable
defence
intricate
all
how which
interest
isthe
Above
and of
has
himself
judge
avery
of
nowhere
the of alleged
to
trial
eleven
toan
we
Chancellor
Legal
Lords,
judge
the
that
courts, science
the
futile,
him
attached
appear
England.
separate
organs) the
Constitution
as
following
people. the
although
Article party.It
me
some
court,
by
trial.
Government."
appointment
to
a the the
matter.
silly,
regard to
Security
four;
against
unfair
impartial
this
instance, no are
that
Minister,
- under and
should
same
General
courtappoint
is
Solicitor I
government?
trial
all,
Affairs
Privy
And as the
overto
months,
can
by
in the
of
in
respectively,
operation
a may
that
words:
readand
Judiciary.A1
Thus, to
simple.
judge
saying
bearing in
57of
he
the the
moot
legislature
foolish,
touse
that
ordered
and
ground being
provisions
defined
to
legal as
Government
Upper
Lord
section what's
the has
during
trial, have
(thethis
the
any
them
defence
athe
Whereas inhave
goes
and advise
matter,
With
more
displayed
strong
become
allowing to
that
court
and
distinct
Council.
does
of
but
, public been
on
two
one
Constitution
prosecute,
the of question
puerile,
the Whether
term
and
fourth
acquitted
isengendered
on
common
provisions
the the
And
of
practitioner
- ason
in been
court
on
had
bias
arbiter are
theand
which
totally
advised
that,
House
The
is moreofto
not
the
are
D.P.P and
On
the
to the
submitted
opposition
an and
the
caps
breath
theof I
temperate
defence or toin
voluntariness
the
the prosecute
Attorney-General
highestLord
The will
aimed,
has
off,
a
severance
Chancellor,
ultra-vires
Attorney-
appear:
Director
the an
weak,
"government",
highest
ingredient
learned
say
under Attorney-
the
Minister
under
is of
specifically
Constitution
Article
Attorney-General
prosecutors
General, silentLegal but
greatest
other,
the
partiality
there
all
issue
provisions
due
may as
remarkable
four
that,
him were
Attorney-General
by
of
for that,deal
judgment
unnecessary. by
the
Parliament;
that,
he
can
and it
elementary
an judiciary.
intrial
Chancellor
position courts
ofsection
about
to
be the
his was
from
relies
58, it that
he
is
interest
feeble,
to with
language,
is (probably
thereby
unfortunate
ranking
from
accused
the
ofcircumstances
of is
in
of
Attorney-General
failure
his
law
the the
criminal
ahead be
General.
Practitioner's
Public
his withdraw
subject.
ofand
represented a
sayGeneral
as
respect,
judge
moot
judge's
the
trial an
his
the
position
English
membership
doctrinein
of
ibidem,
of
the
been Legal
Minister
Constitution.
on
provides
implied the
being
welter
degree
unfair
unfairness in
eighty-six
special
of
state a
If
it
thein
petty,
But
the
confessions,
to
and
is
that Minister
last
interested
level
there
the
intended
question.
can the
ruling.
persondeprived
prosecution;
persons
court's
Zambia
enjoys do
constitutional
By
Prosecutions,
withdrawal
section and
Attorney-General,
the analysis
in
of
thefrom
leading
head
realm:
Lord
makes
legal to
this
I
delivered
through
tryingof
trial. of
information
as
practice,
Affairs
jurisdictions,
that
advocate forI
idle,ground,
matter
so, are
feel
critical
conceivably
an
ofin
of
England:
section
Act
status,
in 2 withdraw.
Minister
separation
of should
would
This
as
patience
partiality.
Attorney
designates
and It
of
the
ofthein
trifling,
to
at
isof
to
was
alland
member
Chancellor
Legal
We the
party.
any
Although
unprecedented
the
this
the
are it
is
provision
the
appearing
profession,
criminal from
the 2this
of and
convey
point
the
some namely
all,
reduced
prosecutesay
they
Republic)
case,
our
dealt
prosecution
not
includes
it it
the
House
regard
the no Government
have
merits
the
of
criminal
withoutandfair
he As
Perhaps
other
no
That
is one
view
aAttorney-General
his
of
is
provisions,
Attorney-General
qualifications,
of
isorthe of that
therefore
ground
futile,
be is
five
misdirection,
Judiciary,
Affairs three
-General
him
State
C.P.C. the
does
not Legal
parallel
proceedingspositionread
the
issue it
unthinkable
powers:
of
on
prosecution heof
this is,
thefor I
trial?
conducted
judicial
itprosecutor
with the
case that
cannot in
whether,
said
the
as
C.P.C. are
ofhave
in
Advocate
only the
similar
months
for,
that
behalf
to
not
is
legal "is
meaning
would or
number
the as
this
thisWe
the
number
this
team
Affairs
to
traditionally
Lords
including in
therefore,
and
judicial
ground is
before
trial
cannot
he
the should
toand
is
the
Cabinet,
Attorney-General,
which
detract just
against
simple,
that Minister
it")
government
poise,
unquestionable.
trial,
in any that
which may
ground
very
have
do on
case.
and he
aspersions
uncalled
answer
justifiably
court
trials-within-a-trial.
since
after
the
concedes
appointment
the
thinkable
entitled byofis later.
himself
original
leading
Attorney-General,
"principal
in that
andof
of
alleged
in
Executive,
to been
relevant
him
not
circumstances.
convicted same not
pertaining
the
the
prosecute.
denied on
was
even
interpretation
proceedings."
trials
reference
practitioner.
the tofrom, be
A1
unique
be which
overt
was it
think
This
objections
individual
Attorney-
Zambiathe
renowned
capacity
Speakerany
people
appear but
Attorney- he
childish." atalking
as would
preside
the
facts
and
thirteen
stage.
be is
argues
to
Judicial
Zambia.
powers.
withoutin
power is
good
here:
more
biased
under
all
police
Lord
Legal
D.P.P.
norother
before
made. the
one
cast
was
best
him
acts
said
merit. an
the
that
and to
as
so,
for.in
he
has
alsoon isa
of
In
in
prosecute
police
witness,
the
Malawi),
undesirable
with
said,
Sakafunya
given
evidence,
though
objection p84
entertained.
as
appeal
legal
(d)
exercising
grounds,
and
by
agent,
have
evidence
State
witness,
should
indemnity
wrong
sought
unethical
Turner
generated p85 light
property
the at
the
or
indemnity officer.
in
often
some
page
and
notice,
on
as of
not
addition
case,
failure
witness.
be
with he
legal
(37). as
ethical
since
prosecution
of a
exception
prosecutes
arisen
prosecutor
character,
very
officer
another
doing
a groundand v
other
to
this
failure his
from the
for
PW5 only
alleged
775,
The in
sparse depends
verbal
in
PW5,
released
laid meantThe
appellate
criminal
impossible
cases
some of
so
advice
We are
to fact
of
thereby
issue
He to
thanthis
confessions;
grounds;
discretion
this
if he
to
down in
lines
Africa.
but
the
often
upon
People
do
prosecution
in hisis,
therein
bargaining
will said
there
personally
of
should
as orthat
otherhis
to
make
centre
witness
gave
give
concedes case.
conducting
prosecutor,one
population,
police
so
from formal
spite
from
by court
have
purely
public D
naturally,
he
which
written,
case,
being is
allowing
certain
revert to
In
ishe
capacity
police
is
(36),
to
the to
has
(b) not
evidenceIt on
find
no
G:
around
evidenceof
custody
his was
said,
prosecutingbeen
is
Southern
give
force
no there
forhis formal
to
capacities,
the only
followed
evidence,
hearsay
exclude
gave
on
that,
with tothe officer
involved
that
illegal. nota
take
the
conditions
his
legal a
at
the
this potential
appreciated,
a
alternative
theevidence,
and
real has fivethe
police
stolen.
proceedingshas
evidence
contract. for
would
fact
in
said he
is page
prosecuting
the
and, toin matters.
Rhodesia
into
a
prejudice
learned
complicity
this his
StateBut
evidence;conducted
prosecution.Where,
case, officer
no
that be
good he
some
and
to
Njekwa
would
it
topics,
and
theentire
representative.
case 425,
to On
but
is
In
beingwhere
have
evidence,
to he
which circumstances
officer,
cannot
found
considerationbe
after
prosecution.
before
in witness
appeal
particularly
prosecute.
if many
are lines
however,
for
desirable
irregularity
thatbe
verdict
this toofficer
must
a
Delivering
of
it
evidence
had
in
bargaining,
aall (nowis
to
(34).
Attorney-General
(c) in
the
to the
but
the
witness
called
he
wit, duties
necessary
bargaining
way,
relegated
the
end,
the theD
himself
be
bargained
turning
moment,
ground PW5 for
to
be
closely
has
evidence (a)prosecution
also
to
other
that
prosecuting
Zimbabwe)
smaller
Facts
for
(e)
the
State
coup
He the
as
heHeand
of F:
however,
found
not
the for
evidence
accused,
upset." of
redetained the
a in
such
PW5High
in
argument
him
saidgoes
was
Statehad
plot.
contends
when adefence.
than
conduct
settled
circumstances
may
for
witness his
the
played
unsafe of
outlying
or
Judgment
places
different
absolutely
exclusion
of
with
withto to
that,
In him personal
Court
in
haveI
prosecutor
distinct
on
released
to
witness,
since wehis and
officer
the
prosecution
thatthe
prosecute
the
histhe to
meet,
thatfor
legalthe The
countries.
R
do the
to each
v
continues,
before
of of
say
former was,
investigatingof
districts
interests
caseis
one
interrogation of
Van
character
come
give not
dual
and
prosecution
prosecution
submission, moreto
prosecution,
no
or,
and of
PW5's
one
there issue
capacity
the
not
that or give
the
orside
and
he
the therefore,
must
theminin
rolethen
Rensburg
this
to
think
cause
of individual
of
in
Court,
But
merely
his
counsel
independent
PW5
position, this
alternatively,
PW5
agreed
thereafter
so is of
imposed
or in
of
entire
which
that undesirability
the
country.
aboutas
Nyasaland
officer,
formal
respect bethis the
before
there
nothing is
notice
evidence
that for and
prosecutor
case,
wasinwas the country
transferred
of
Clayden
(35),
question
of
generally
other
to
unsatisfactory.
evidence,
which
practiceto doing
was the We so
prosecuting
evidence inowner
principal
anything,
upona
withdraw,
complaint.
cannot
overt
his on
considered
not
prosecuted.
turn
granted he
illegal that
to
thatthat
such
Court."
formal
have
one
nothingand
mere
a
wouldcase.
(now
turned
so, it
F.J.,
him,
give
notes.
release
ethical the
and
acts;
free
State to
of
an
or
be
on
heis
In
And,
undertaking
comments
learned
And
an
or
to
except
are
of
about
that
add
matter
powerful,
he
happen
the
that,
A1
evidence
redetained
indemnity,
intents
most
cogent
trial
evidence.
p86
proceedings
conviction
20
entered
Derik
charged
give p87
thereafter,
inside
reported
one
certain
own
robberies.
against
in
the p88
p89
indictment;
pleas
(d) p90
impeccable.
documentary
hearsay
blotting
his
to of me 21:
part
considerable
robbers
Court ruling
after
further
accomplice
in
atheminded
to
mustto
need the
pardon
it
public of
circumstances
has when
detained
or
an
on
give
understood
reject
authors
from
during
either
prosequi:
been
whom
was
contended
admit
and
Crown
Rudd
brought
prospect
century
convicting
became
desirable
described
hold
get
order
inducement
doing
in
the
now
jointly
(a)
(c)
Smalls
his
at with
all.outers
story."to
terms.
Smalls
Without
arguments
said,
should
some
Public
Crown
persuasive
had
and
grant
adjudged
claimed
earned
is
having
Courts
stage
in
enter
the
has
powerful
judge that
about
considered.
Court
evidence
circumstances
accomplice,
offence
clearly
trial
with all
the
prosecution,
Archbold
where in
of
besides
offenders.
they
recommendation
when
public.
more
evidence
to
language
modern
accomplices
p.226.
truth
approvements
discovery
grounds.
(1956),Vol.
condemnation
judge
admitted
indictment
Not
witness
factor certain
recognised
accomplice
such
of take
for
of
argued well
would
evidence
paper.
accomplice
relevancy
reviewing
to
he
As by that
ground
aathe
crimes
was
staff
judges,
In PW5 The
to
who
or
received
discretion,
the that and
that
can or
on
by
judge
so
had
indeed
it
after
was
on,
to
(iii)
of
the
(43);
the
cases
for
reward
so
of
of
are
Guilty,
nolle
Gen.
judges
the
charged
he
considered
in
thought
interest
it
offer
omit
was
that
told
twenty
Appeal, He the
aIt
have
in
by
doing
serious
is,'His
should,
condemnation
asome
PW5. Judge
into
justice
trial
that
our
of
the
to
in
the
made
is
at
who
(b)
an an
call
9th
for
about
would
has
and
D.P.P.
the
consider
as of
adetail
he
quashed.
to is
Subsequently,
atrial,and
result
it
whose
criminals
that
is,
evidence
Appeal
R
had
the
which
in to
this
rule
correct
what
submission
toan
the
is
ofhe
See ware
claimed
(at
aof
for
not the
If
page
and
it,
limited
recognised
gave
inducement,
be
Once to
account
prosecuted.
have an
itIn
his
compensation,
been
the the
charged
(36th noto
issue,
Archbold
indictment;
trial,
for been
said
him
and, it
lawyers
practice
October,
Statethe
vis
Court
Black
onaThere
order
should
prosecution
that must
arrested
robbery
the hebail
persisted the
calling
pardon
of
way.in
comments
2,
judge
of
judgment, has
of
p.
practice,so
aresult
accomplish
indictment
though
such
prosequi.
against
indemnity, to
PW5
criticisedis
PWs
Kabwe's
offer
or
and
rejecting
immunity
who which
except
armed of
is
was
accomplice
appreciated
authorities inducements is
Feargus
expectation
be
expectation
ancient
the
take
condemnation
may exclude
if
received
and
the no
topic
the
of
it
set
had
very
right
adeciding
entitled
in
condemnation
willing
aswrote
by
or
the
immunity
an 334)
stop
the
be
alleged
the
number
rights...
had
there
greater
brought,
state
evidence
same
Then
offence.
Lawton, was
as
Crown oran
full
that
79,
he
evidence,
in
bywas
to
adopted
convicting
p.53.
Professor
he
the
ato
he
interests
the
anow take
this,
Crown
to
been
before
It
relegated
in
no
in
stone
is
has
decision.
crimes
competent
evidence
jurists
ofR
change
law.aout
have
absurd.
Delivering
submitted,
ed.),
that the (b)
and grant
against
defence was
submitted
Prosecutions
that
of
false
matter
in
the trial
1980...
or
withdraws
evidence
Pipe
uncorroborated
nothing
been
secure
was
occurred
on witness
has
powerful,
public
in and
officer
Smalls'
of
robberies
the
application
which
he
circumstances.
evidence
and accomplice
his
decide
should
impressionwill
the is
all
done.
case,
was
69,70 (that
interest
not
whom
wethat
and
must
andIt which
to
As
practice
or as
the
the
This
the
forwas
in from
changing
been
and
into
is
recognised
where
in to
Smalls
acquitted. Most
L.J.,
would
procedure
case,
'that
dissipate
gave in
said:
granting
should
is,
charged,
plea
quite
remains
to
the
decide
of
It
give
being
this
not
interests
relevant
paragraph
vaccomplices
O'Connor
the Pipe
the
but
limited
anand
under
calling
Court
(above).
or
suspicion
others.
this
which
twenty-six the
paragraph
take
in
of
the
from
do to
he on
that,
of
the
membersof
be
In
judge
complicity
authorities,
evidence.
I(ii) find
alike.
him
of
been
I'll
planning goods.)
(42)
of
Commentaries
is
held
English
is
whom
that
in
followed
exercised
an Thethe
Examples
whose
that
had
that
indictment
it
made
they
takeofthe
more
accusations,
of
Sir
factors,
him not
exercise
anddeciding
to
permit
moreover, .justice
getting
consequence
fair
andshe
hers
is, indeed
right
prosecution
however,
the of end
Court
proceedings
another
dissipate
on
evidenceof
exercise
brought
view
issue,
free
was
argument
is
(42).
getting
charged,
the the
prosecution
rule
against
either
obvious
consideration
need
that
atin
who
the
is
solicitors
of
said, made his
give
At
have
that
behalf
trial if
the the
and
greater
evidence
discretion,
it. be
real
witness,
.immunity
no
had
On
the
for
Leon
brought
toaby
as
Guilty
suspecthim
to
.for
submissionaThe
take
and
there his
of
Court
crimes
out
submitted
pardons
was
confession
that he
of
act
into
the
either
prosecution.
110. of
said:
Pipe
offered
the of
conviction
same
criminals
not
in
proposed
later
at in
the
law
is
joint
agranting
ethical Those
agent
under
think
made, to
immunity
We
jury ofbasis,
4-124,
(41).
who
rule
Its his
can
claim
for
judgment
practice
circumstances.Smalls
by
public
of
Iof
(Held:
judge
1297
plea
you
his
Assistant
people
and gave
ato
accused
page
had
gave
one
does
remembered
mischief to
bailhis
permit
plea
proceedings
The
Appeal
adjudged
in ano
competence
been
strict
fairly
aformulation
competent it.
including
exercise
of
judge
regard
his
the
It of
law
had
practice
evidence
ever to
indictment to
and
pardon
approvement).
evidence
witness,
either
to
of
his
is say
on
to
the
including
(42)
are
having
return
trial Mrwill
pardon
that
the
ratio
but
result
himof
and
justice
being
of for
arrest,
went
number
execution
no
about
aconsideration
distasteful
plea
offenders.
are is
ofthe pardon,
for
Radzinowiz,
an
jointly
charge,
Appeal
is and
The
when
that,
his
it
this
against
plea
This
made
she
promised
oflimited
call
grounds.
such
the
former
of
could
(23rd
discretion
exclude
benefitof
acquittal
everything
interviews 77: was
since
for
all
law
names
were
of
she
not
against
the
have that
of
alleged
therefore,
from
on
which
ithis
significance
been
should
the
and Not
in
background
argument
law
not
powerful
as
provided
may
should
to the
Guilty
for
case that
Hutchinson
the
evidence,
and
just
arraignment,
immunity
discretion
justice;
purposes,
public
exercise
urged is (c)
potent
his
properly
must by
public.
desperate
part
concerned was
need
about
ain
critical
misconceived
An
in
discretion
almost
competency,
was
decidendi
of
could
information
concluded.
of
that to for
from
hath
of
it
those
influence he
ofthe
therefore
the
statement
that
reviewed
for
ed.)
that
being
damages
factors
to
call
been the
he
Director
Smalls
persons of
which
was
give
is
the for
R
still
of
as
the
tried, of
before
another
from
Swan
brought an
other
that.the
by
three
openly,
and
approvement
charged
or
to
aptly
been
witnessman
witness. yet
criminals
him,
discretion
all be
position,
that
be
Those
current
what orTurner
prosecution
and
arrested.
except subject
reads,
Guilty
acquittal:
Guilty:
werewholly
the
it,
decide
on
PW5
doing
the
Crown.
The
excluded
adequate, by our them this
doing
judges
be
Court,
an
said
with
written
ofnot
entitled
by
coup
entitled on
vinvolved
sometime
be
(1854),
accomplices.
to 17th
have
by
(d)
on
aimpossible
afterwards
truth,
for
Hale
indeedcome
circumstances
is over
andIt
factor
gave
indemnity
his the Hethe
all
has or
is
he
agreement
there
asettled
In woman
types
legal
observed
whom
brought
who
from
issue
in is,
effecting
exercised
had
criminals
a
of
Turner
accomplice
the
exclude
inducement
'wholly
done:
he
D.P.P.'swas
accomplice
with existence
(pp.77-78.)
giving
including
brought
On
accomplice
arraignment
partners
were
the have
appellants
shall
for
theno RUDD
proclamation
justice
prosecution,
the
villains
practice
History
to function
favour
of If,
issue
which
in
about
the
may
against
wrote
particularsso
in
or
evidence
circumstances
discretion
human was as
to
on
was
and R
toplot
(37)
accept
of
the
influenced
practice
them that
the
is so
required
on
his
continued
are
usage,
and
factors
should
been
CJ,
See
Director
decide
Smalls'
has
is
however,
R
the
the
is
is
should
leading
edition
to
those
to the
called
as the
circumstances
would
to
warning
morethe
evidence
among
part:
irregular
competence
Century
accused.
been R
appeal
awas
enter
Detective
statements
The
robbery was
Vol.
his
against
to
of
right;
during
and
against
which
because to
continuing
has not
has,
ably
the
judgment
been
made
in
practice
the
prosecution
not
of
and
.been
behalf
which
the who
as
be he
arraignment:
vconfined
vthe Tomet
Owen
Court's to
cases
discover
Hall,
thanhasin have
good
of to
whatadiscuss
past
.(the
irregular',
prosecution
evidence
be
exercisevto
in
jobs
police.
office
convicted Lord
competent
to to had
Turner
who
him,
(now
at
prosecution
in a1980
Iachieved
can
origin
4,
to
give
made
(43),
indictment
public
should
brain, his
the
to are
prosecution.
whether of only be in
of
andsaid
Gen.
over
of
helped
those and
a.practice
start,
warn
the
case
In
to...
for
still by
competent
released
consequence
lenity
distasteful
writing
which be
be
Pipe
jury
only
serious
question
only
in of as
the
public.
in
would
other
before
Although
to
justice;
to
at
nolle
Smalls'
crimes, or
was
you
andbank
guarantee,
and
of (39);
to
others
Chief
Holt.
allowed
had
use
King's
including
or
add
evidence, this
in
charged
admission the
right.
or (40);
aco-accused
p.440)
Pipe give
Pipe
give
this
the
shall
brought
Pleas
benefit
been done.
was
men,
called
that,
and
discretion
erasePW5
same (a)
have
unnecessary
exclusion; if,
this
a
favour
even of of
that
an
Public
the
about him
aain
his
has
as of
exercise
practice
become
competent
accomplice's)
evidence,
be and
the
call
observations
continuing
is
affecting
paragraph
before
Sergeant
What other
as told
between
follows
about
trial,which
the
(42),
must
an or
interest,
inducements.
be
fair of
and
further
to
English
the
against
contribution
to of
itself
of 'it
(37)
are
had
law
to
trial
the
the
it.
of
juriesInthings,
PW5:
Kabwe's
explicitly or
was
(42)
by
Wilkinson,
appeal.
operating
solicitors
Court
givenofLord
is
for
the
condemned
where
permit
It
whether
case
have
this had to
the on
to
he
years,
Winsor
orato
(37),
evidence
...
century
Pipe
whole
by
and
with
effrect
brought
thatand by
is
of
The
legal
inducement
witness
and
Course
witness,
trial,
prosequi." to
does
'wholly
conviction'
by Justice
been
not
robbery. set
solicitors
which
Smalls
charged.
to me
had appeal.
before
accomplices
aequitable
(42) to
case
he
this
where
the
those
to
Employing
is
(iv)
at
1650,
though
omit
ifat
accomplice,
not
furtherAll be
was
my
receiver
for
aconvict
the
of on
adjudging
give
witness.
(at
he
been
judge
inducement
but
crimes,
ofin
case, it
by
as
the
approved
rule
witness
is
ingratiate
Lord
conviction
discretion;
(ante),
the
be
it
calling (42)
King's
bail
weight
acting of
the
page
been
meant his
the
his
that
for
admitting
proper,
the
indicate
not
the
Marshall:
conversations
participants
offeredthe he The
the the
of
charged,
out is
about."
would is
where
who
4-124,
happened
gave
movements
Court,
Mansfield
pardons
under
thereof practice
justice;
precursorleast
prosecution,
Prosecutions.
the and Crown,
these
Criminal
whether,
warned
when
the
such
will
as,
objection
a On
... implications
King's
p.344):
him
vor
in
judges
truth,
withdraws
admitting
it
failure
tojudge,
detained
Parker,
more
said
but
called determined
discretion
evoked
stated evidence..."
inducements,
19ththe
limited
in
its R
calling
enter
thief
practice.
though
of
evidence dangers
follow
irregular.'
or
public.
pp.
Appeal,
correctly
indemnified.
He no and
admitted him
evidence
in
pending
affecting
public used but
Smalls,
trial
Director
accomplices
title
on
whether 300
of
co-accused,
prosecution,
not
prosecution
acquittal;
To21:
concluded."
prosecution can
should,
theinterests
and
including the but
granted
justice,
who
Pipe
should
which law.
facts
for
was(see
the
appeal
his
The made
hopes
at
evidence
statute
could
the
admitted
kinds
from
but
doing
evidence.
his this
but
court."
(38);
butby
it
century
practice
his to
that
himself
...
even
78-79."
serious
by many
If
supra),
Shortly
tell
set in
Bench
though
mercy."
and
Queen'sof
Vol.
ethical
by
having
brought
be
court
is in
greater
to
pardon.
is
nolle
from
not
to C.J.,
when
pages
years
either
these
judge
mind
most
,C.J.,
'There
other
to
years
strong 'The
Law
it."
is
rarely
PW5's
is give
end,
being
to
the
him
had
(42)
The
R
19th
give
own
was
that
It
later
"You
"the
with To
the
out
his
not
the
his
said
as
very
to
or
of
be
an
onin
of
to
at
he
..."
be
or
2,
an
va
it
is
is
to
so,
of
all
the
also
like
that
this
will
statutory
comprehensive
Subramanian
appears
accused
equally
but
based
principles
being
p91
PWs
itself:
witnesses.
receiving
was
well
Department,
exhibit
Department.
1972."
portions
and
appears
PW85,
before
to
Zambia
into
depicting
equally
Modest)
as
of
witness p92
International
handwriting
prosecution's
at
with
among
P139.
They
who
respectively,
afound
carefully
firearms
been
against thethe
of
PW85.
booby
p93 evidence
never
can
P143 69,
the on
to
hearsay
as time is
of
to
various
us
contain
buried
excluded at
witness
evidence
but
based
Both a
of admissible
frequently
hearsay
person.
what
discriminatory
70
an
be
p
positions
will,
documents
to
Hilalio the
-
Broadcasting
chart, a
prepared
in
witness'
andmen
trap -
Therebe
exceptions
page
the
laid
piece
no
us
of
said
concealed
hearsay the
112
is and
Indeed,
documentary soled
as
wereItwas
onknown,
proving
thatv factjudicial
970,
may
PW68
down
evidence
"amenities
testified
these in -
immediate
that
hierarchical
ink he the
reply
also a
at
described
in
set we
districts... evidence
In
of
110.
Kapenda
similarly
had
at
on what
those
is,
aborne of ever
Republic
is to
which,
restfact
maps to
that
have
properly our
paragraph
strategic
Modest's
by
familiarity
trial
abovefailure
Chilanga
numbers
military
applies
the to or
blotting
there when
relevant
other
in
and
The
towns,
under
witnessed
however,
that
there had
members
at of
Modest
theeven
apart,
but allowed
establish
they formulation,
may
it
view,
truth
Services
the
ground seen,
marked.
order
those these
was
Subramaniam
evidence
since
the
carries if
can, it
said
following
is
index".
bear unlike
relevance):
Mwansa.
the to though
Prosecutoris
not
it
paper
were is
nothing
trial made.
person
in
countries,
different
criticism
that
pouch
and
equally the
admitted,
10-18
with
Farm,
and
manner doof
ample what
is
also
points
exhibit
request. a -
and
Kankunku to
terms:
the
therefore,
thethe ofwho
they
documents.
when
that Thebe
proposed
that
types
in be
inadmissible
considering
given
was the
so be he
truth
of
because,
told
contained
present
Headquarters,
persons. one
extract
documents'
PW57,
the
the
Courtfollowing
Exhibit
later
evidence
sometoainAs
is
theyin given,
the
hearsay.
The
on
maps
arrows
was in
wrongly
taken
and declared
(44),
and
author's
meant
evidence of in
(44).
public.
latter, of
Archbold
that
shallow
one marked
there
which of
of
documents fact
to
witness
discard,
PW68
record PWcourt
George
Arms
firearms
were such
that
recognised
butdrawnother
private
were
ofthere
An on and
what
unlike
from
in It
is
of in
has
It
establish
whose
the that
He
heading
P143
arewas
failure
the what
is,
exhibits
authors
caption:
85's
the inis
admitted
theto
the
State
category
handwriting
the record
succeeded
regarding
they
hole
AK47
hearsay that,
that
criminal
mental
to
and
as
ofis
men gained
is hearsay
the
says prove,
however,
expunge
his show
Chikalamo,
further
exhibit
colour,
the
matters
is
marked
up - it
geographical
no
listed question
testimony
evidence
witness
about
Constables
went andto the
contained
rulingof
by
House,
because
byran did
statement
presence
to
City
complementary
though state
to
evidence
written
discovered
rifle by
blotting
does
P112
were
"Published in
a
prove
revealed extent
the
wide
redanother,
that
against
the
evidence.
it 50 not
or
testified
is
of not
proceedings.
and
the
p
of
ink
person
traced
of
which
away,
withisthe Privy
evidence,
and
inaccurate
at not
prove
it
the of
document
authorship
metreson
he in
the
ignore
not
112the
he
similara advance
Lusaka.
geographical
does
the
referred to
acceptance.
inadmissible
was
trial
paper,
to
that the
no
advance
was
P139
position
hearsay
leading
ink
was
authorship
names which
conduct
fact
in
called
Drawing
by Council
were
that
adjoining
the
exhibits
ado
relevant he
thereby
in
Asfrom
called
pencil
show
by
string judge
when statement.
made,
the
whatever
case
general
to
not
point
had
authenticity
from thenot
statement
that
to
in
Surveyor
to
familiar
we toexhibit
namely
from
of the
witness
to
produced
what it
Although
to
the
any
andin
liken
evidence
paragraphfeature
is
Modest
lines
of the
thereafter
absence
human
P142,
witnesses,
that
implying
P139 the influenced
in
quite
the State's
The
answer
prove
Assistant
notoriety.
barracks
individuals,
these
attached
bothChilanga
above
have Kankunku when
that
the
that,
the it
statethe
truth
way
was
general
Modest It
the
- on
p apart
statement
geographical
with
security
running
to of in
wereit
exhibits
earlier of
brain
considers
bycase
143
General case
celebrated
is the
formulation,
does
26-03
Chilanga
(previously the
the
with
P142:
to
tripped of
was
went
brain
the
their not
stage,
the
Kankunku,
exhibit it.
the
the
that
Farm. the
influenced
his
produced
and in the
from
Judicial
was
the names
The
forces rule
object
said.
is
any
ground
-the not
as any
hearsay
of trial
statement,
witness
beyond
submissions
requirements
exhibit.
Modest
including
seen, from
These made."
accused,
was
capable
speaks
authenticity.
a the
Department
central
in
trigger
over
authenticity aits
irrelevant
replica
December,
-direction
exception
chart
There made
15 farther.
lacks
case
human
further."
Survey
by
applied
arise.
Phipson.
custody
clashed
Modest.
the judge
which
ofby
that
notice
facts."
Airport.
Lusaka
whose
PW85
it, and
truth,
made, for
rest.
spell
met.
away.
wereThe
was by
that
rule or
of.is
it.
of
his it
It a
distinct
documents.
begins
material
subject
classification
of
written
some
point
appellant's
the
belonged
In
convicted
had
one
acting
Those
overt
October
an
at
in
alleged
charge
may
support
steps
there
point
were
pages
defeated.
and
the
England,
Paragraph
although
evidence
given
direct p94
photographer
to
facts,
evidence
regard
been p95 whom
when
circumstantial
the only
the
left
roll 60
of
circumstances
trial
alleged
Kitwe
evidence acts
house
support
are,
toA
declarations
proof by
there
taken toof
and category
are
kind
FROM
THE
must
thatdoes
objects
relied
however,
transaction,
in
document
in andcould
divergence
metres
judge
23,
of
to
be
affords
overt
speciesHe
4th
indictmentand
in
conspirators
acts
indictment;
laid,
proof
in of
no
evidencewhich
inference
generally
complicity
thereto."
England
indecently
of that
the of notthe
appearing
commonly
French
argue
circumstances,
to,
in and
meeting
meeting
treason
a
point
laid
21-15 a of
terms
was
1980;
of
a
that,
the
an It
it
andupon.
COURT.
be in
other
case infalls
indecently
undeveloped
where
washe all,
used
PERSONS
speak
undeveloped
the
evidence
A1,
conspiracy
taken,
concludes
ed.,Vol.
act
evidence as nofrom
may
produced
the
from
that
documents
misdirected
charged
Kalulushi
conspiracy B
direct
of
it
overt
the this
even
conspiracy
overt
of -
had
of
with
was fact
not
anof
(b)
and
amounting many
in,
permanently.
at
through
overt
may
treason
to since
such
classification
at
in were
include
alleged
in
Archbold
but
first to
into.
Unless
in
reasonably
the
issue need
may term
the
been
paragraph the
be
This
in
French.
between -the
called
a
delivery
A3's
case
this a
his
independent
conspirators
II,
act prove the
acts
that
proof
is exclude
include
called
three
be
film
in
between
by toas
Chilanga
house
execution
if acts The
overt
constitute
which
not
(that save
mind
found
men
those
assaulting
film
partner
of to usual
case,
overt
an the
absence,for
(2) its
'real
is
in
transactions
girls.
film;
show wasto
himself
office
attended
overt
because
nature, in authorities
classified
conveyance,
call
whether
principle
submitting
overt
no
upon
acts
charged,
admissible of
to
be It
at
the
and,
is
overt
laid
suchis, the the
paragraph
real
divergentfor
MATERIAL
that
The
act it
thereone
documents
documents,
genuineness
possible
21-09
belonging
proveHe Chilanga
documents
information,
in
to,act,
reads:
evidence Roma
acts
is
and
the and
attended
act.
of
couched
a the an inspection
evidence.
identification
evidence'
second
concealed
is there
falls.
is
further
Farm,
respondent's
possession
admissible
taken.
to
andthe
the two
prosecution
appealed
taking
attended
by
which
of him
therefore,
may not
many
and
the
distinct
but
overt it relating
were,
overt
shall
given
act of of
it
was,
which
overt
of
that as
law to states:
senses:
and
in
on
distribution
A3,
that
conspiracy,
conspiracy) not is
On
Phipson,
girls.
Dismissing
photographer;
that
connectionwas and to
Township
evidence
adduced
pursuance
vary
act,
is
common
anyin
act. and
therenot
Farm
by
acts real
is
in
the
which
it,
taken
when
A6,
and
reasonableness
bethe
it prooffrom
a
the
there
by
act.
admissible
acts
laid tothat
This,
is
OBJECTS
aa
and
on
A3,
were
the
similar
independent is to
a
fall
The
thein
of
itself
that
finally
and and
various
admitted
in
amounts
distinct
In in
most
distinction
document
was
wit:(a)
A3,
A7
He inthe
evidence,
(1)or
charge
facts
had
case
charge
intended
that
after
amounts
this ofwhat
the
shallowcertain
forwhen
dispute,
dispute
circumstances
and they
appellant
the
decide.
of was
words
he
A4,of,under
ibidem,
against
girls
there
within thethe
attended
PW5
adduced
consist
evidence
design
overt A4,
and
specifically
terms:
evidence a lend
conventional
court,
explanation,
both
EVIDENCE
widely
thenothing
the
was
ground
that
evidence of
a
therefore,
admitted
compartments
support
declarations;
arguesare guns
A7,
of
in
overt
case,to anis
a
actPRODUCED
of
appeal,
men risk
A6
would
conspiracy
allegations between
of
Fred
any
charge,
a is
hole
that
appellant's
this
use
relate,
werewas
the
the of
in
to
laid.
even commonly
available
of
evidence,
to the
indefinite
which
based
and a
that
alleged
it at
Annfield
and
by
that
a
direct
allact
and, or
circumstances,
the
accepted
stealing
of of,
Lambert
by
the to
many
drafting
rely
may
states:overt
the
if support
thing
thing.
the
in
as
case,
not or
evidence
Chilanga
Bwalya.
laid
be
Where
direct
the toA1,
iftwo original
the
that
committed
not the
charge. a
classification
prints the
on
faking,
the
appellant's
no
jurisdiction
at of the
Chilanga reads,
him
realhis
and
each admissibility
subsequent
is
neither
FROM
Chilanga
recountedwith
available is
Court
meeting
and
in It
A3,
State men
four
film
period
acts
overwhelming,
overt
of
must
be
although
proof
therefore, act
unlessa called
probably
speaks
and
document
a
others;
proof meaning
FOR
depends
immediate
respective document,
that
state
therefrom
risk
(47),
the
even In
that in
and
indictments
independent
given
prove
expressly
evidence the act
ofbe of
Farm
A6,
PW5;
He testimony
those
grouped
rolls
was
of part:
possession
was
Farm
properly
Lusaka
was
done, to
circumstantial
ambiguous,
THINGS
of the
to
addition,
information.
it
theof
it THE
thing."
documents
by
of
there
when as
"no "real
depending
for brief
Appeal
independent
between
and
evidence A7
submits
every
necessitates
is
overt
defendant's
itexpressly
after be of
in
by
not
ofbe
any the
used
with
(e) on
aimed
grand
such
laid
overt
complained
was of
documents.
faking,
properly Chilanga
of
mind
give which
real
and
A3,
(f) this
an
declarations
fact so
acts
acts
the at
developed
admissible
was
the
act
of public
evidence",
discussion
most
itself.Unfortunately,
INSPECTION
vicinity
positions
PWs 'real
the
for
"real
the
running
expressly
an would
overt
overt
in
properly nor
AS
as
A386
Chilanga
evidence
held
of original
with
no
film
risk
alleged
date
overt
act A1
three
allegedA6,
alleged
Flying
that at -
travelling
ofalleged
committed
an upon
having
circumstances
a
example,
all
and
depicted
particularly
led the
coup
He
one
acts
proof
overt and
refers
act
laid, ofof
and
and
proving view.
consultationor
DISTINCT
evidence'.
record
of-
is into
be
laid
actevidence.
satisfactory
inference
documents
evidence
that,
to
must of
that,
However,
evidence."
since
film 87.
reference
film
admitted.
others
indictment,meetings
says
overt
made
the as
theprivate
that
plot.of
on
faking."
distinct
A7;
relate
unless
which
admitted. A6
meeting
scheme.
of been
which
Farm. of
The
they
Club.
to
totally
in many
arrest."
may
afforded in OF
the
and
him
was
have
jury as
(d)
that,
fromacts
overt
act." is
It
is,
in
In
on
(c)
an
the
actor
to
beit
isa
of
Although
reason,
will
admitting
threats
to
respect
had p96
especially
majority
appellants
Preservation
been beconfession
been
trial given
in deserves
or
of made
administered."
custody
judge
follow A2's
inducements,
in
A3,in
concerned also
later
interest of statements.
evidence
A4,
regard
all positionto
when
freely A6
statements,
Public
expressed for the ofbe the to and
started his
and
Judges' or is
discussed
the
Security
the be
purposes
himself In
not
in
A7, alleged
individual
voluntarily
accused absence
the
to this
breachat
Rules entirely
incriminate regard,
separately,
administration
Regulations.
in of these
persons.
to covered
confession
of
end position
rule and
the akin
the of
the terms:
3. the
Judges'
which
that,
letter, In to
submissions
usual
themselves. is
As aggrieved
the the
statements
dealt
of the
although
the warn
the
course respective
Rules. in trial
with)
trial warn
Rule and on appellants
With
the
of in
court his that
cautionpositions
Judges'
3exercising
and of our
the
trials-within-the-trial behalf
ruledthe
caution
correctly the exceptionarethat
at
Rules
Judges' which
samehis of
the A3,wasthe
vfound, the
discussion
discretion A4,
of others
relate
confession
commencement
had
Rules done 5
were
been
the A6,
been says A8to
as and,
A7
confessions,
obtained
(for
conducted
contravened,
appellants
in soon
that statements
the andfor
reasons
of
:Judges'
as
matter, that
A8.
now. by
the
-had in
the
admissibility
at
Excise
Zondo
Charles,
In
We
And
do
absence
court's
All
Further,
following
favour
by
deal
was
whether
for
other
then
the
warrant
necessity
breach
p97
p98page
confessionary
stress
That
discretion
page:
Judges'
rebuttable
were
Rules,
suspect
(see
circumstances
admission
confession
not
exercise
depend
or
breach.
of p99
confessions
subject
In p100
discretion
arise
made,
confession
discretion,
should
and
challenge
hold
circumstances?
In
Headnote
holding
aof
ground p101
confession
The
there
Zeka
law,
exercise
continued
not
this
means at
this
induced
police
theis
Chinyama
the
confession,
p102 aif
with
made
question
the
learned
accused
statements.
r.3."
and609:
an
have
fear
vpage
under
they
years
to
Court Hare
evidence
In
exercise
Chinyama
trial
court
discretion
admissible,
admissibility
evidence,
practice
involve
breaches
it
in
part
the
exclude
has
or
police
accusedshould
unfairness.
application
definition.
exercised
of,
opportunity
that,
designed
established,
the
paragraph was
usually
as of
very
Rules
particularly
Muwowo so
on
judge's
haveof
confessions
Henry
principles
discretion
was
ground
the
accused."
discretion,
its
is
oris
established
them
invitations
House
rules
law,
is the
obtained
law.
indicate
because
reflected
should
unfair
ofperson,
ofbreach
or
determine
including
precedent
by
voluntariness
whether
Judges'
absence
judge
the
So
Court
Prayer
subsequentthe
(i)
the
challenge
accused
that
improper.
their
is
in
aboth
whether
to
against
of
or
trial-within-a-trial
is
of
Others
exercise
other
been
athe
that
good
presumption
as
ofbefore
the
freely
there
breach
is
of
been
court
in
431,
police
may so
to
aon at
obtained
the
satisfied
following
propositions:
breach
which
together ofprejudice
emerged
22-39
irregularities
prejudicial
to
reinforced reject
some
made as
and
someone
confession,
as
breach,
for of
a
it in
Judges'
and
in
context
acase
people
own
officer
to
or will
tendency
for
to the
Tapisha
trial-within-a-trial
admissible
authors
Judges'
hadat is
started
confessions
unless
page
indicating
alleged
be
of
confession
unfair
held
accused
evidence
officers
aor
favour take
exceptional
does
facts
(57) it
exercise is
be
the
by
that
also
is
will
proper
be
and
lines
in
inform
(51)
confessionary
the
trial is serve
reasons
the
accused
court's
Judges'
the
discretion
of the
(59), be
Appeal
Lords
Appeal
thereany at
to
and
Ithe
trial
voluntary
is
Power
vplain
and
the
of
holding
said
and
has
it
exclusion
voluntariness as or
other
admissibility
improper
becomes the
exercising
Others
to the
a athe
because
said
of
The
But
voluntary
reasonsofficer,
not
those
Lordoffor
condition
arguable
of
the whether
based
of
when
the
see
The
of
Since
right
to
depend
favour
was
of admissible
excluded,
431,
aorother
kindly thein
41
and
ante).
police
ineach
admissible.'
the
admit
that
by
ground
improper
athat
breach
inadmissible
and in
to
exercise
request
of
Rules
discretion the
confession
of in
effect
Rules,
rate
had
J.)
it
the
Others
first or
should
or
the
of
breach
Phipson, as to
no
court's
case
confession
exercised
appears
induced
induces in Queen
the
from
exclusion.
paragraph
(admitted)
this
inconfession
subsequent
else. (1)
voluntarily,
a (63)
Archbold
jury
or
automatically
on
theis
improprieties
Judges'
conduct
havethat
some
test to
might
not
that
recent
Diplock
Ruleshope
(49),
would
lines
aof
beginning
found
theR the incriminate
particular
what
in
aconduct
in that
impropriety
that,
Njobvu
the on
notwithstanding
accused
signature, in part
(52),
admissibility
means
confession
prior
confession Judges'
as
Court
on is
in
been and
that,
lawor
unfairness
appears
statement
words
proved
satisfy
the
independently
strict than
discretion
made 47,
on
ato
at
must
in
involuntariness
as
toremind
discretion
his
there practice
been
as
dicta
the
intended
what
statement
to
what
the statement
circumstances
strong
require
would
By
evidence,
could
make
prosecution
particular
confession
last
would
of
approach
vhis
will
of It Sang
breach
is
(in
of or
can
invoked.
...order
the to
discretion.
vCourt
Rules,
other the
be
any
residual
of evidence
in
the
we
to the
some
has
where
admissibility
the would
that
and
not
disputed a
of
37
rules
and
not
times,
headed
had
to
not
be
his
there
the
page
in
(50).
free
The
all
conduct
principle
the
surrounding
to are
It
absence
thehimadvantage
'made
to
referred
that beyond
itself
notwithstanding
then
voluntarily
facts
accused
excluded
we
"special
However,
part
unfair
the
and
voire refuse
was
paragraph
to
would
discretion
the said
then
only
precedent
is where
should
of if
Rules,
admissible
provide
exclude
Judges'
R the
breach that
vto of in
evidence
also
the
police
aimproper
of
person,
page
toin
reminder
discretion
be
15-25
judges (57)."
confession
accused
been in ofbeen
ofis
In
People
of46
athereby
and
voluntarily
deliberate
was
persuade
administer
whether
awhich
voluntary,
discretion,
complained
Appealgeneral
holding
effect,
or223, of
Sangheto
called
the
ofin
most
police
whether
emanating
case
Another
or
Lord
operate
the
said,
made
invalidate
suchof
confession
ease.
Judges'
operate
at
any to
Appeal
in
the
dire of themselves.
that
consider
had
disproportionate
breach promote,
dispute
because
the
apply.the
take
Frequently,
submit the
breach
was
breach
the
by
Muwowo
of
fortified
means
of
prejudice
toThe
at
voluntarily'
choice
circumstances
and
confession,
on police
of of
no
admissibility
of
Callis
discretion
notable
"Breach be 432,
where,
although
for and
giving
his
the
are
law.
submitted
of
that
so
page of
lines
the
more
Rules to the
advancethe
cases
officers
those
court.The
breach
fact
had in
at
to
Judges'
ais
at
not
in 22-31
Summer's
insense
reasonable
a(52),
'the
R
admit
aalleged
in
against
itright
page
fair
other
officer
the
which
been made
the
"exceptional
any
Wherethat
to
circumstances"
as confession
Archbold
of had
makepolice
page
still vthe
classic
exercised
vline
confession
an
evidence
order
determines,
production
evidencejudge
(57) it
issues
statement,
partplaceto the
which
436,
of
procedure
Paragraph
appeared
the in
thatwas 1
was
part
particular
departure
page to
was
unfairly
be
of,the
though
admissible
admissible
if the
about
of
they
making
valleged
breach
unfairness.
the
the
Ruleswhere
exclude
among of but
have
non-compliance
the
of present
forerunner
that we
whether
432,
officers,
in
conduct
rules,
reason
trial
usual
which
to the
discretion
voluntary.
been
to
substance
are if
not
The
law,
that
rules of
Prager
treat
(3)
(See
from
be made
been
notthat
v1to can
aGunn
absence
warning,
anything against
falls
discretion
mightbut
139,
the
such
the
alines
an The
weto
for
confessions
not
excluded
otherwise
issue
wheneither
matter
and
it,
should
if
voluntary 5,
voluntariness
theRules,
664:
invited
bothJudges'
Rules
judge
by to
protected
The
formulation
him
thedo
said,
freely
itpolicewas
unfairly
automatically
of which
impropriety aSee
had
which
of
voluntary
case,
there
instrumental
of
concerned,
the it:an
says
onthe
was
to
speech
would
of
exercise
breach
exclude orit
or
doubt
lines
police
against
this
any
Judges' the
awas
it
the
said:
provided
obtain
from
usual
court
simpliciter.
them
Judges' warncase
lines
court
that
he
aexplanation
breach
flagrant
by
exercised
to to
actually
it
confession
unfair; the
People
of Phipson:
should
1
the
adopted
22-09
judges
be he
on
an
has
People
thenot
suchat
underlying
equally
and
circumstances,to
there
of case
accused
unless
held
and
Judges'
a(59),
is
in In
voluntarily.
no
its
to
in
does
has be
(53)
of
Thus,
defendant
admit to
that
but
paragraph
obtained
unfair
confession)
determine unless
questions
in he
to
same
determine
had
onlytrial
this:
becomes
of
the
indicate the
page
speak
voluntary
that
unfair
circumstances",
done is
aissue the (or
would
are
saysof
Rules
on
to
must
the
ground
admissibility
alleged
paragraph
confession
leaning
not
lpage
strict
Rto ain
this
mean
officers
issue
has
should
operate
we
to and
the is
abearing
26
probative
defeat,
exercise
'voluntary'
law;
appellantsand
Rules
confession, law
may
2: no
(62).
and,
have the
been
it
Rules
out
rules
prima has
ensure
warn
evidence
Rules"
the
of
as had
shows
by
aof
is,
in
had
although
accused
have
issue
lead
considered
warn
with
conference
in
the
R Ibrahim
(51),
voluntarily
confession 11:
and
the
to
upheld
accused.
confirmed
not which
or (3)
part
judge the
must
when
procedure
had
430,
alleged
unfair
confession,
been
said
both
free
exercise
good to
do
alreadyof
itvwrongly.
vconfessionary
Many
Rules
that:
(2)
by
or
Houghton
disregardthe
...
should
in
whether
then
Phipson
accused
Court
pursuance
by
discretion,
is
against
has 32:
and
caution; isfreely
to
afacie
or
not
Judges'
acceptable
Sang
long
improper
is
The The
therefore,
accused;
ground
invoke
as
the
and
application
inadmissible;
theof
then,
aifbethe
the
breach
and
made
of
shown
the
that
that
in
obtained
person
'volunteered'
been or
lines
unfairly
not
the
is R come
the
improper
evidence
in
thenot or
ajudge
accused
Judges.
upon
Judges the
hevalue.
their
and
itself
the
22-40
it
trial-within-a-
trial-within-a-trial
of
necessary
are
(or that be
confession
whether
inducing
in such or
certainly
to a matter
may
order the
produced
discretion
Chilufya
choice principle
should
the
Judges'
lend
caution
reasons)
suspect wellvCourt
-(57), made
therefore
court
here;
breach are
in
exercised
caution.
Judges'
lines
they ipso
simpliciter.
the been
TheCourt
issue,
the
position
is
consider,
astatement;
circumstances
need raised
15-77 not
police
his
decided
voluntariness
the admission
the
made;
there
discretion
would
it of
by
that
of
says
went
inadmissible.
observance
its
otherwise
admissible
to English be or
The
the
R
improper
the
for
not
interests
11
court's
exclusion
either
will
Rules to police
which
Payen(48),
by
to
(60),
judge's
judge
the
course
therefore
breach
of
isconfer
and
the
question
clearlyhave
discretion, (6)
there
the
view
matter to
on
in
when
that Court
to
in
will
but
against
found of from
of
95:
by
themselves
35
exercised
But
discretion
rarely
the
conduct aeven
Rules
paragraph
of
lightly
exercise
the
be
Rules
conduct
it.
in
established
facto
tend
thereof,(55)
speak
where
made to
evidence
to
and to
has
Court
not
of
universal
accused's
beenduty
admissible
the
instance,
discretion
of is
that:
question
ahead
18:
ifthe
they
onWe
was
has
the
in
officer
decide,
by
authority."
but
the
there
to
Rules
be
have
in
for where
Appeal
him
Appeal
confession
such
obita
must is
so
to
authorities
R 38
and
aJudges'
the
had
strict
did
applicable
strictly
the
regard
discretion
for aas
of
be
associated
conduct
such
is the
(54),
question
the
Indeed
though
as
accede
upon
does,
trial-within-a
is that,
confession
law,
determine
(iii):
determine be
challenged
the
applies
been)
had
accusedthat of been
exercise
trial-within-a-trial."
as of
on
preliminary
confession.
is
which
assumed
the
prosecution
him
made
exercise
are
the are
would
inadmissible
vit disallow
exercise
adefendant
or
court
been
law, inof soon
instance,
also
of
at only
and
admissible
otherwise be
such
held
voluntariness."
is,
same
been
thoughtheathe
proper
aor
the
not
rules
completeness
discretion
Judges'
whether
is in
said
adicta
exclude
Phipson).
of whether
of
with
Appeal
complained
It
meantand,
admissible."
does
Chulu
the
to
spontaneous
breach
will
Renniemade.
following:(d) breach
he
voluntarily.
satisfied, either
said
speaking
as
in
confession
as
application
where,
to that
without
as
breach
the of
rules
principles
evidence
confession
partdanger
accused."
to
aisthe
be
favour
admitted
for
including strictly
England
found
said
discretion
rejected."
practice
the
where Rules
judge
condition
the
when
a in in
onas
of
precise
would
practice. or
aonly to
silent."
like
in
raise
always
on
strictly
that
case
in
a by
judge
however,
thatpart
issue.
followed
question
their
stated,
of
as
unfair
same
recent
of
ajustice."
to
exclude guide(per
arises
with
Rules
their
(56),
silent
or
these
court's
matter
on R
have
case,
some
stage,
mater
breach
confess.
in
by issue
law."
issue.
theof
its
in
to
of
it."
had
The
such
(58). his
thatno
he
the
trial
held.
any
.but
trial.
those one
R in
or
of
to
so
the vvaa''"
if
statement
admissible
his
already
second
admitting
breach
interrogations
discuss
within-the-trial
inducements
of
would
excluding the
circumstances
Rules.
chosen
established,
Special
the
administration
guards.
depended
and
Lilayi,
in
each
evidence
own p103
surprising
voluntarily.
such
incriminate
there
PW
was
previously.
was,
more
warn
recorded
since
advocate earlier
trial-within-the-trial
convenient,
wit, law,
the (what
A4
whether
A4,
hands
wept.
taken
119. was
being
and
andexercise
view
confessions made
both
of
in
therefore,
asIt
presence
appellant
behalf),
administered
advocate were
Branch.
at
importantly,
been
administered He in
on
before
still made
we
to
no
caution
statements
the in
ruling.
Judges'
any
an
of
would
that
On for
that
say
thethe fall
as evidence
when
the does
term)
evidence
consisting
PW119
Zambia
the
himself;
Besides,
acquitted) of
reasons
detail
that
ofand
one
had
was
credible
investigated,
cannot
is,
warn weof by
alleged,
trial
said
interrogation
picked into
Lilayi
had
him
a If
and
PW not
Rules.take,
preceded
interrogations,
appear
material
facts
at
was trial
at of
police
startedhowever,
present,
be
senior
because
and the
itwhich
the
review
judge
Police
(A3
This
from
theand - as
court's
arise.
been
the that
inspite
confessions.
up of
heard
cannot accused,
Lilayi
confessions
(which
110, the
the and a
first
Each
question
Sinyinda-then
requisite
of
judge
right
explanation.
since
administered
cautionthat matter
will
suspects
and this
was
and
PW5,
A1,
proper of
same discretion
shouldIn
trail
made
those
misdirected
personnel centre
time,
witnesses,
to of
Headquarters
theto
whenever time,
be no
detained the
of
thecase,
incriminate
A4 was
news R
confessions
category- onesoon
houses whether
any
was
warn
obviously
say
experienced
A6, in such
of
said
was
time. vof
judge,
had
making
Superintendent have
individually
relevant
In
and
number
information -
wasable
that
The
the that
at Watson
of
voluntarily
drawn now
there
MacPhersonof in
thebelaw,
voluntariness
and
that
he afurther
emerges
them
dissipated
other resolving
atDeputy
elected
the after
confessions
himself
was of
charge
is,
majority
the
it
presence aA4
warn
to oral
caused
apparent,
Police
Kamwalaand
where of
oppressive
can
himself.
caution
was
he
recordedat
very if (64),
Lilayi
would
hold
flagrant
police -further
alleges
authorities,
the
from used an
theto
impending beor
evidence
the
made
not inlater
the
Training
Commissioner
and
misunderstood of
interrogation
found no
PW119written,
the
remain
very
of
beginning
of to
other
confessions.
of
evaluation
because,
by this
confessions,
Kaulung'ombe,
the as all
As
that
was be
known,
officer
Mbulo, a the
theirbreachevidence
in
trial
court
classify
that
by
misdirections
refusing
Remand
such.
Zambia the time
issue, emerges,
type
them
were
forthcoming.
doubt
caution in
we the
beginning
statement silent
administered
statements
coup he
School
even was
judge
confessions
Three
teams,
ordeal
(he
respective
Patrickofor of oftrial,
held
entitled
to
and
Army,
sessions
relation
recorded
have that
being
confession the
of
was
the rule
that
d'etat
is
such relevant
the
regard
Prison. of
andinmade
Those
under if that
exercise to
but
so
the the
previously
nowof
Judges' the
confessions.
confessions
and a evidence
confession
on
secondly,
though there
Police
it
the 3had
wereInhave
victim
admissible
teams the the
had
was
statement.
Mkandawire to
the voluntarily
judge
of
threats
a need
nothing
made
will
Shortly to
interrogations
entire
confession to
administered each
unbearable
after
of
advocates, all A6,
prison.)
come
Zambia his
called
the
Commissioner
presence of
not had
part
overall
the
statementswho,
the
recorded
reached
unclear,
Rules, the
the of
be is
to
reconsidered
and
asby
were
suspect
atmosphere
said, A7
Judges' The
Forissue
had
into
to
ofentitled
discretion
interrogatorsreconsider
A3It
adduced
had,
breach
thereafter,
a and
prolonged
Police
took
circumstances
suspects
statements
no
suspect
the not
(bothof the and
emerged
is
made.
the and
in
participant
supervision
that
in
on witnesses
as
him but
from of
confessions
two
inducements wasA8
he
both
hadthe
Rules
to
only
instance,
an
warn ofno admissibility
unnecessary
conclusion
any
trial
firstly,
of is,
to
Force
had A4
in
in his
categories,
whenever
three
what
advocate, fall
Asthe
Lilayi
part
to
broke
prevailing andtherefore,
reconsider
his
the
threats
judge,
concerned.
cases
from
prosecution
been
suspects
Police)
whombecause
and for after
began
when ruling.
category.
into
because,
evidence.
favour
were and
it
on to
was
undergo ruling
and
inof
brutal
trials-
matter
Judges'
in is
down
them
which
offence
months
caution after
their
made A3
that
then
waswe
not
but,
have to
or
of
in
at
no
to
by
he
the
statements
administered
his
This
Rules
the-trial
be
-p104
fair
exercise
grounds
expunged
A8,
which
Hebert
People had
Inspector
recovered
taken
allegedly
guarded
English
statement
the
avoluntariness
depends
before
induced
that,
A6's
since
was person
witnesses.
experience.
evidence,
presumption
terms
is
at p106
procedure
obtained
taken
Zaire,
although
accepted
Sub an
substance.
countries.
a-trial.
breach
incriminate
Here
exercise
faced,
submission
should
interrogated
record
read
in
PW110 p107
subordinates
none
taking
trial-within-the-trial,
evidence
sufficiently
patient
Moreover,
and
matter,
with
against
of p105
overthrow
October
precautionary
complained
inclusive.
Manuele,
complaints
touching
were his catalogue
administered
the
English
in or
conclusion
regard
page
basis
court,
submission: being
-ever
to, hebut
downthey
the explained,
must
breach
this
(65),
(A6)
which
statement
preceded
allegation
which of
Mapili,
by
apprehension
taken in
upon
to
Inspector
again,
not
of of
or
were
was the
was chose
been
A6's
of
226, to
there
was
but the-of
16th,1980,
on and
of from
on
had
to
was
Theof
athe
from
Prior
the from
would
well.
and
acustody
trial
with make
signed Having
the
particularly
The in
is byat
we
Vilongo
A8'shave
discretion
appeal
whom
General
armed the
spoke
reference
of
against
theof
not
ofhe been
support
language
letter
he of
beyond,
the
lines
that
himself,
A2 its bywas
not the
the
Zairean
the to
was
security
him
was
ato to
aat
then
the
obtainedsaid
sought
requests
that
judge,
non-citizen,
prosecution issue
confession
breach
Chilufya
of
language
are
Judges'
never
interrogation.
in
at at
order
that
A6
was
warned
speaks,
Pearson
allegation events
the
ground
For
allegedthe not
statement
language the right
ensure
partially
had
security
good
addressed heon
was
recording
would
circumstances
thecircumstances
involuntariness
confession concoction
37
asked
some
background
by, discretion
confession
there
Lilayi
time of
shot
on
was
him at
recorded,
as
the
considered
indeed
inducements
(65), and
the
him,
to he reason
right
Judges'
an
otherwise
to
from
instance,
recorded,the this
Commissioner
from
page
and
legal
until
statement.
became
that
to by
the
Government;
and October
measures
recordingto
admissible
of
language
Rules, was,
time.
that
English
involuntary
from PW5,
speaks
the
effect
exclude
exposed
Police). wound. view
statement
was
andhe
46,
for,
that never
evidence.
theof
similarities
gather
for is
Kumasa,
is,
ante,
trial
whilst
as norandignore
some
concluded,
PW119he
not was
to
that
statement
There was for
administration
Rules
425,
issue
couched
to
background
was
entitled
cautioned
Dr
of It
observance
subject-matter
threats
which
personnel. the
did
representation
Judges'
this
reinforced
nor
A8
therefore
have inin they
Dr
A1
with
the
was
one
aas
-judge
in
statement
were on
A6 is
give
theit
of
A6's in
for
this
have
to
It
that,
and
23rd,
of
did
did
spoken them.
the
and
lines
must
assured
general
that
unrelated
this
Police
was the
was
which
appellant
not
was
alsoManuele
taken
done his
the
time
each
different
Manuele
orChulu)
certain who
favour
much In
of
in
question
was
same
they the
was
that
andaadministered
-serious
the
itself:
many
nature
dischargedit
stands
not
between
should
case, A8to Likewise,
improper
suspect
emphasis
Rules,
unfairness
was, no minds
confession
made.
menaces
Besides,
raise
thatatable
his
1980,
men the
voluntary
allegations
the
arise
without in
but beby As
Lilayi
Policeabsence
then
of
fully of
during
obtained
7information
part
Sikatana
statement,
Dr in as
against to
the
he
beyond,
aManuele,
the
involuntary,
come
particular
credibility.
evidence,
until
parts
part properlyhe
recorded
issue
personnel as
tothe
been
warn
shown made
from
who
had
of of
therefore,contradiction
PW119
from
with the
Hankambe,
are
12,
did
ahave
of
who
to
breaks,
his
circumstances concerned
of
would
he
seems
was
of
his
on the
the Accordingly,
rushed
triable
was
result
escaped
through
wrongful
antwo
whichthethe
from
to in
ahim
unfair
not in
it
material
in the
A8's
andtothat
by when
Judges'
approach
being
A3
not
of
him
presence of
statements
upheld
experience.
his in
is
treated
communicate
able
either A6,
having
until
apprehension,
in
the
that
started
those
own
unsupported
understand. two
Lunda
Justification. atwas
charge
that
he and
statement.
statement.
exercised.
occasioned
would the
Lilayi
exercised as
generalan
case.
The to period
of
permission aan
general
the
not
in
facts.
countries
interrogation
secretly
him. been
caution
as or
confession
ex the
their
placed
to
breach
alleged us he
understand
issue
the
to for
conclusion
his he
to
the
remained
between
during Rules,
aware
one
A4"would
and
body
asecurity
objection
histime,
from
of A6
November
Annex
atmosphere
beIn
trial
apossible
of
not of
improper
voluntary
evidence
languages.
doesstatement,
admission
before
The The
spoken right
that
was
Itof
not
warned
experience to
itinterrogated
this
request
matter
issues
curia advocates,
to of
failure
of
These
military
of
issues.
understand
the
perfectly
his
events
discharge
the aon
Whether
prosecuted,
this
incriminate
A3,
that
our permit
by
his From
is
In
endeavoured so
appear
that
at
was be
The
is
judge
the after
he
A3
special
did
A6
in
A4
the
but,of
that,
the
induce
addresses,
remand
November
was
witnesses. stage.
right not
their
hospitalisation
chained the
or
dealt
been
unchanged;
period
Hospital,
allegation
administered
notes said
evoke and
any
notes, not
particular
onthat
case,
one should
of
to
for
which
The
onhad
the
and
discretion the
and
will
that
at
forces' on
mere
of of
conduct
trial
his
consideredaand
such
which,
statement
of
were
he
police
in
In
Annexuse
14th
sought
can
breach
onthat
-the reveal
oppressive
Annex
Judges'
the
event, through
or
A6
was
A2's
aide-memoire utter
the
and
evidence
same
the And
had
fullest
the
them
A4
astatement
the
understood well
Chilanga
from
inany
with
spoken no
own
were
law,
himself.
cautioned
exhibit
the is
coup
A2,
confession
be
duties
by to the
fact
condition
not
other
court's
patients
the now
theto
bewitnesses
does
was
not
he
North
recorded,
warn
production
language
prison, in
dragnet;
when
Although 6th was
asuch
questions,
vcase,
part
presence
circumstances
in
procedure trial
was
toon
theof
discussed
not yet,
himself
warn
what
to
Hospital
Rules;
event,
hospital
what
the
from,
freedom;
of
authority
interrogation
to aThe
Lunda
since
maintain
A2.
in
theat
hospital
that
be
any import
gave
thatmake
language
under
connection
good
and on
andput
Farm
the
not the
and
aHowever,
of
thatwas
the
Annex
statement
neither
denied
exclude
cannot
P100.
attempt and
judge's
victims
discretion
theto
properly
entirely
which
-against
language
that
The
when
first
was and
was
atmosphere
misdirection.
State the
there
that
that
andA6 the
14th,
security
faulted
opinion presence
issued
in
alack
and the
statements
bed
recording
precedent
ipso
part
be
case,
his
until
trial
not of
Western
PW121, of
Judges'
in on
of
language
of the
Mr in
if
byto
cautionof
where
recorded
of
testified
sufficiently
August onspoke
recording
there said trial
aHouse
statement
in
threatened
be
notes
ahave
and
fortheofthe
his
statement
Mwatiyavo
he he
caution
wanted."break
awas
with
circumstances.
from
athe
grantedHospital,
vmade facto
this is the
trials-within-
confessions
the
thatthroughout
understand.
procedurewas
prosecution
decision
and
ill-treated,
Tapisha
notesalawyer
for
to the
admitted
trial
Gatehouse's
hand-written
recorded
orders
confession
which
to
12th,1980,
both in
were at
judge
evidence.
statement
measures
voluntary
were were
order
he
PW119.
he
English
that
evidence
disturbed.
the from
admit
Rules
rebutted.
expletive.
trial
trial-within-
issue Province,
Detective
started
statement. him
another
English.
night
the of
of
by
several
of
lead
to
havingthem.
justice.
Lilayi
in
ample
breach
police,
without
defence.
criticised.
production
for were in Lilayi
judge
is,
court's
which
use
We
Their
stand
above.
(Now
later
was
well.
date
dates
none
was
bothhis
Dr
the
so,
nor
and
that
any
(63),notin
of
toa.
(in
in
on
by
evidence
misdirection.
matter
would
police
the
reasons,
to
they
been
relation,
turn
and
as
argument
had
an
there
notice
effect.
in
subordinate
admitted
Court
submitted
come
dishonesty.
through
trial
took
of
the
The
them p110
example
the
contemporaneous
discussing
out;
documents
exhibiting)
Others
facts
refusal
misled
Ambrous
prejudicial
dependent
Lilayi
these,p108
consideration
PW5
there
judicial
representing
of
complained
that:
hearsay,
was
evidence
to
fact p109
admissible the
to
an
magistrate's
case p111
trial
status
in preferred
of
State
acquittal
trialwhat
been
been
judge
action is
police
made
would
had
was
elicited
establish
admissibility. that State.
from
judicial
has this
the
not
in
turn
was
was
of
effort
against
takethe
paragraph
by
tothis
thought
and not
the
fact
sources,
Lord
Shipping
be
inquiries
for
Smith
part.
as
court
whichprinciple,
investigations,
fall against
and,
it been
the
told
PW5's
having
was
convicted
further
common
judge
knowledge.
p.211:
every
as
may Conroy,
followed
notice
extent
what
clerk
whether a
of
no
notice
raised away
about
hold of
learned
Mulenda to
State
an
when
was
witness.
had used
oppressive
of
considered
by
called
previously
Commissioner to
aby they
police
case,
have
A2,
police
to
noIt
court,
Before
daily
confirmed
that the the
that
judicial
man
He Summer
other
court,
was 'My
of
(71).
the
on
extraneous
such
whole
therefore
during
the hence,
On athe
been
impugn
both
witness
notice
heavily
ona
as
Interrogation
interrogation
subsequent
asto
acquitted
are
offer,
of
made.
had on
him
on
truth
it
court
been were
fall
record
appellants
namely,
v
to
upon
continued:
of press,
of
knowledge
C.J.,
is
their
reduced To
evidence
acquittal of
record
if
would
an
"contemporaneous
15-56
by
have
preferred
concerning
arises
was the evidence
of
these:
officer the
is
truth
there
a
Peninsular
said
judgeRamsay,
of be
Lords,
man
be
interrogation
the
said their
trial-within-a-trial,
is counsel
appellantvof thing
me
conviction
Again
clearly
Ithe
not
The
when
ruling
this
happened.
notice
easily
been
have
they
back
the used
other
also
thinking
this
by
receiving
his aoffer
been
common
PW5's
according
to
inadmissible.
convicted
who
receiving
to PW5's
criticised
trial
stated
made
said in
world,
contents,
heard
during
is
to
aid-memoire,
of
toof
(ix)
on
was
that
case
to
by own
usually
matters
came
was
cross-examination
proposed
And
factsof an
ground what
the
law."
receive
the by
that
to
at get
so, athe
contemporaneous
notes
of
extent,
asthe
PW5
honesty,
was
court
were
notes
the
on an
out
that
of
as
be
information
officers
for
People
atmosphereofthat,
(66),
and
PW5's
to
couldno
on charge
was
calling
that
judicially
at
in
referred
J.,
the by
require
the it of
police
the
page
my
sentence
accused's
the
liberty he
record
Branch
in
Lord
the
inadmissible
this assistance
ainanition.
later
evidencemay
be
notes
acquittal,
acquittal.
me of
and
negligible
is
statement,
This
and
acquittal
the
he
said by
the
PW5's
not
July
by
goods
It his
even
to
made abe
substitute
interrogations,
ordinarily,
defence
(68)
evidence,
acquittal
to
of
to
is turning
not
into to
the
out
Apart
therefore,
sufficient
High
goods is
said,
his
himself
isand he
the
fact
fully
knows
350,
mind.
appeal at
hearingto PW119.
him
substitute
notes
concerned.
indemnity
out-of-court
the he
hearsay.
contained
establish
case, to
argument
sentence.
for on
acquittal
to
at
transformed
tempted
the
interrogation was,
although
given
involving
effect
was
sentenced
credible
29th,
made
definition
Summer
that
become
considered
though
to
page
other the
look,
and
the
trial
said
because
evidence
purpose of
total
'In
HPA/70/1982.
services be
Court best
supplied
we
believed
PW5's
and the
was
appellants
believed
record
that
act for
aware
letters
A
five
a awhen
In
itor
and of
The
status
from
ofmade
from
but
already
of
init,
is
the
upon
judge
court
record
fine
136
for
in
who
to
was
1982,
on
so
his
not
PW
record
in
As
by be
to
not
such
proceedings
said that
regard
in
court's
offering
in
what
In PW5,
negligible.
evidence
cross-examined
evidence
since
Gen. tobut
the
evidence
clear
that
is
(in
At
was
said
not
weeks Ga inrather
which
me
therefore,
they
the
for
his
case
held
thatto
meantime
(69):
of,
recollection
the ofown
an
for
In
of
and
only
110....
used
significance
or confession.
into
prefer
notes
by
by
was
so
that
appellants,
evidence,
PW5
dishonesty
the
they
we
the the
PW5's
well
to
judge
to
hasis
the
submissions quasi
because
PW5
PW5
at for
that
which to aof
documents
did
fact
judgment,
negligible
another
a he
reported
Kabwe
either
should
and
better
formerly
which
15
case
court in H:
:
A2
the
circumstances
our only
doing
which not
against
PW5
Ifine
record
havethat
Gen.
judicial the
did
police
decided
by
have (iii),
had
judgment.
me
had,
statement
evidence,
thatstatement.
founded.
close
should
the
Judicial had
am
information
the
pedantic
decided
after
atpower
pounds
and
the
evidence.
the for
from
should
his
In
properly
which,
athe
to
police
absence
he
anot
the
that
whatto
mental
narratedstatus
judgment,
"technically
not
State
Accordingly,
hadthe
affect
than but
close
beenI
confirms
the
those
as information
former.
it
PW110,
other
explicitas
namely,
been
had
my
member and
the
already
the would
case),
by
been
same
and
non-holding
mistrial
than have
have
in
entitled
was had
be
only
the
him
of
been
of
No.HPA/70/1982.
Kabwe witness
notice
brought
that
own to his
If
an
was
purpose
is
theare
give
to
said
any
in
orbe
produce
in
a
part
notthe
insist
and
a
evidence
PW119A2
was,
We
the
the
no
of
a
is,
the
of
accordingIt
offered
The It
state
stolen
the
look
conviction, four
circumstances
admitted
this
aide-memoire,
purpose
of
such
objectioninof
proposal
State
thing
judge
and
indid would
In
apparently
no
reasons,
Belemu
in
evidence
offer
portion
theof
appealed
acquitted,
general
from any
in the
not
unless
(i)
noticed
is,
agree
defence
that
rejected
convicted
acquitted
case
their
press.
to
witness
records, to
Commonwealth
cloistered
my
impropriety
were
this
on this
court
have
thehad
refers
on in
confession
themore
making
therefore,
two the
the
made
truth
and
positive.
before
correctat this
that
or
agree
refer
months'
was
thatof
evidence
such
to
witness
they
me of
learnedgiven
signed
mistakenly
he absence
own
thetofor
sources
having
and
its a
In of
be
case,
to
case,
admission
connection
evidence is
witness."
however,
said
tendered
recollection
but him
brief
and
whole
of
defence
his
was
that
on"he
to
knowledge
can
and
therefore, had
I
confession.
not
but
aspect
unlawfully than
including
the aanswer,
the
PW5
to
(see
of that
could
preferred
about
clean
said:
unlawfullyto of
by
in
order
case
records
the the
the
did
so,
production
his as
evidence;
evidence be
thean
byby
they
PW5
subsequent
the
In
cases.
facts
aloofness
procedure In
also not
would the
interrogations
undesirable
PW110's
of A2 but
no
authors
by the
portions
the and
thing
of
appealed
an
the
appropriate
tell to
proof
allowedR
court.
imprisonment. to
at
the
since,
memory
in
People
said
of A2
made
objections.
trial-within-a-trial
prosecution
not honest
to
PW119,
proposal
get
a
team,
Subramanian
not
that in heR
hearsay
trial
his
High
consult
ofwhichsaid
prosecution,
premises
his
evidence offence
record. High
the
In should
interest
the
confession.
trial
thought
statement, State
ruling,
Shipping
him,
v and the
evidence
equip
of was
hearsay
was
is me to
Judges'
evidence,
judge
obtained.
convictionan
his
obtained.
Commonwealth
on
futile."
Chona
that
those See
is
of
accused
(including
with
there
and
him;
that
said
complained
the
them
from
record." is no of
This
for
of
that
judge
take
the
to
Fenlon
trial
(67)
spared.
man,
to PW
in
judge
out
conduct
This
that
Court.'
oath it
the a onaevidence
key
admissible. not,
is
Archbold,
refreshing
incorrect."
case
was
this
negligible
the
relevant
appellants'
that
Court. the
myself
appropriate
a source
judge
inaccurate."
to of is
caution
promote
statement
to And
was
(iii)
(ii)
my
witness."
objection but
PW5:
involving
the
judgment,
acts
rule
was
obvious to
was
and
upheld.
preferred
acquittal.
erred
orheto
(69),
of
(70),
Craven
appeal
have it 110
Rules
them,
PW5.
when
it
proper
judicial
District
To
another to
PW5as
court.
point
court's
it High
learnt,
coursefrom
refer."
what
and
took
effect:
behalf was
in
was
had
The
judge
It
..."
aid
had
the
that
part
(44)),can
that in
no
theof
isva
its
in
to
..."
as
at
for
this
thein
judge,
application
(i)
inquiry;
exemplified,
Branch
or
Patent
after
those
Republic.
for
especially
committed
whether
The
court's
any
source
take
properly
confession.
having
to, p112
statement,
the
statement
Republic),
act.
be,
overt
of
provided
Kuruma,
edition,
evidence
therefore,
position
against
cheque
was
trial
first.
(76),
with p113
purpose
relationship
judge
such
alternative facts
from
the
sufficiently
unsuccessfully
On
upheld,
unnecessary subject.
him
case
shadow
theno an
People
judge
appealas of
judicial
evidence
inter
theare acts
This of
was
where
theft or
the
No.
samewhich
planned
saving
been
overt In
laid
overt and
Services
inquiries
Tribunal
all to
enquiry
another
all
records,
Son
admissible
art.
common
Scott,is
would
these.that,
evidence
specifiedTo
records
formation,
alia,
it
circumstances
that
the
refers
also
offence.
were
offence it
or in
the
renders
ais of of
A
by
is
Iand
refer.
such
of
The
in
let
him by
this
offences
(74),
notice
is
acts
674277,
pointed
fully
charge
to the
there
plea of
),
accused,
judge
between the
judge
taken
he
acquitted
five
counts
acts,
relevant (iii)
are
connection
the
relevant
inthe
in,
Autrefois
illustrated,
speaksoffence
to money.
J.,
the Ltd
doubt,
quite
court
A1's
an to Lord
(69),
has
Kaniu
be
first
pleaded
a toAs
judge,
course
has
In had
have
being
of doctrine
extent,
of
is will
offending
not hadits
exhibit
entitledin
of
High
person
to term judicially
things
of
probable
cannot
the
out be
(may
in
of been
lower
appellant
aand
which
overthrow
co-accused
information,
for could
have
made
to
both
lead
the
A1
been to
facts
Lord
73),
should
the
statement,
clear is Summer's
supra,
case
relevancy
even
or
obtaining
this of
which made
PW5's
just
on
one
in
v
At
been
a and
an
of
same
that
instant
tried and thus
Fatyela
depend
The
and
acquit
to
though
for
second
autrefois
Court
thisto made,
with
trial
submission, that
not the of
not
out
respect
"relevant"
again
person turn
if
the
or
enter which
Denning
as
courts
was
sentence
issue
relevant
P106-A1's
sixthofto his
do
say by
page
to
be
recited.
piecewas take
Queen
whether
events the
such
the
A6.
any
previous judicial
noticed
which
receive
while
point.
judge
acquittal.
the
sixth
been
where,
which
case,
again, can the
use
overt
they (like
noso. himself
it
issues
the
(for
but is
money
on
casebeinginthe
automatically
of691:
aconclusion
take(72)
regarded
uponthis
made
before
referenceof
Asone
past,
blind
other
accused
at
not be theare
observations
judge
to case
Zambian
reference
means
not
evidence
The
a
case
acquit
page
the on
It
overt
have
because
but we
ought(as
was
thesuch
(75)
act,weon and
judicial
appears
evidence
personal
autrefois
there notice
without
stands
examine
Whether For
cannot
same
court
either
different
and
raised.
tried
being
could
upon in
of
by
were it
present,
confined
eye judicial
affecting
bailjudicially
think
he
a
see
defence
ground to
and
153, has
record
...
were act
as
entitled
fact
alleged
the act,
out, the
situations.
been
to that:
to
joint
which
false
earlier
was for at then
to
it,
answer
both
liable by
at
court
is
taken
was
wereit,
said
that
exhibit are
upon
power, in
overruled.
notice
pending
constituting
Government.
thereto thus,
which
evidence
finds,
all
fallsmay
relation
cheque
convict),
lines
Section
an
purportedly
be them
circumstances
apage on
reasons
the
or
to
endorsed
and
context,
originally
that
onlyany reference
inquiry;
know
of to
justCommonwealth
an
was)
sentence(s),
court
purpose
defence
the
charge,
overt
the
the
pretences 19 appeal,
of
away,
is
by
proceedings
on offence
to was
made
at
be
203:noticed
facts
of
relevant
future
one
ostensibly
in not
make
end had
P106
autrefois
convicted one Thenotice
accurate
and
evidence to
the their
trial
is
admissible.
itself
because
money
accused
stage,
subsequently
the be to20 overt
act
is (ii)
lay either
pointed
in
Thisonly
at
given,
containing
strictly of
a
relied as
one
book-counterfoils
"cash",
pleas
30:
authorities
tried(5)
set
being to
to
onean
in
mere
charged
of for
corroborate
no
general
existence
to
light
was
merely
charged
but
and
further had
they or
thefacts
liberty
acquittal
the
His
being act
given
of three
under
order
to
contents.
court,take
acquit and
such
of
order
inquiry
in
one
accused
had for
might
of
followed
nows.128
again from
course
judicial
speaking, to out
been
of
case
acquitted look
earlier
following
overthrowing
of
case
adduced
upon warn
surplusage
but
the
bore
were of
Asof
which
the
to
rule main
Shipping
from explicit
for
to
receipt
to
connection
pela
before
convicted overt
been
what
autrefois
proceedings,
called
though in
the
and
Articletoin
judicial
as orhis
to
may
does
of
on various
the
have
of at
of
take
by This
equip
autrefois
no and
either
answer
Lord
A6's
made
uponis
putis
in
by sources
whereon
under
the the
discussion his
instance,
offences,
a categories
are
general
Baldwin do
conduct.
particular
notice
the
by was
be
establishreference
and
application
that,
non-existence
respect act extend
remaining
given
purpose
we acquitted
of bar
Shamabanse
not name
been exposition
senior
of
later on
the own
applies
notice
judicial
passage
the himself
caution
as said
use
the
the
Goddard,
out.
have
acquit
20(5)
Criminal
same
for judicially
Representative
of
matters
cheque its
further
reliance
with
hasto all
of
to
arise
our
one of
theirIn
atheir
statutory
knowledge
and
does
but
original in
PW5's
distribution
stage, first
prosecutionto
not
A6
said which
work
records,
of
to
that
Government to
Alfredof
evidence
thatother
but
his
showing
second
convicted
proceedings
of
charged
their in
resident order
notice
acquit
different case
properly
in
truth." others
No.
alternative
should
law
facts
trial: the Francis
sometimes
before
or
that the
statement
been
that
for
defencev all
their
was
the
C.J.,
above,of
overt facts,
of
offencesnoticed
acquittal
the
second
in some
facts
accused.
the
judgment,
circumstances
it
Procedure charge.
for is provisions.
The
the the
but
before
appropriate
judgment:
the
674276
since
the of
in
made
indictment
have
Constitution contents.
vact.
of
properly."
courts
Mulengato he
placed
excluded
remainder
situations,
stated
also;
underwhich namely
contents,
evidence
a
magistrate
envisaged
at
the
therewith." law
of P
also
decide
money
applies.
respect
issue."
proves
other."
alleged
the
special
People
on
offence.
accused
...
thereon. after
them,
Ltd.
could
was
of &O
were
used.
was
overt
and,
They
been
which
Code
same
to The
there on
call
out
and
trial at
it.
of.
this
the isa
in
an
(d)
other
one
he
for
This p114
absence
witness
However,
whether
giving
accomplices,
was
Court's
present
supported
"something
as
implicated
defendant
appellant,
the
could p115
Chilanga
adequately
documents
were
their
trial
(f
former
that
firstly,
reason
meeting
might
boss
In a
)his
appellants'
example,
curia,
credibility
for
when
material
matter.
p116
Commander
And Use
expressly
all
danger
considered
Use
histhe was the
matter
properly
judge. of
association
a were
he that
for
react of
box
of who
evidence,
a
judgment,
say
read
what,
appropriate
does
procedure
undoubted
case.
unless
as
ruling
his the
properly
in
purpose
unlawful
the
that
he
little A7's
in
by
any
documents.
statements."
statement
aspect,
found
testimony,
untruthfulness, the
ofthe
purposes and
covered.
were a
co-defendant,
not or
whether
deliberately
it,it
approach
more",
has
of
implicating
manner A7's
what
confession
his
reporting
in
chain
never heto
credit.
face atof
the
later Unsupported
defendant
succinct
acting
usedby
it
is
strict
piece
co-accused's
properly
two he
July, by
judgment
that
the
such
the
feared made
of ofgives
it
think
been of
have
found
with
of co-appellants
elected
said
really is
the
expressly
of
PW5
In
means,
reported
he notheto
evidence
we
that
by
thisimplication
of
PW5
1980',
that
chain
a be
It
thedesirable
on
trial;
fact
of
about
Combined
news,
my
command the
It
case
very
for
continued: evidence
the
the
it headnote
Court
this'if
hoped,
that
termed
excluded
law, is,
suffices
in the
case,I his
seems
can
material
used
is
bearing
statements
the
admitted
case
gavekey by
or
opinion
Ihisman
was
he
the case,
witness
at
it
learned
still that
was a evidence
one
as
evidence
yet
accused.
indicated
unnecessary
trial
it,
to
have confessions
or
that trial
absence
was
of
serious
cannot life less
by
prosecution
has to
prosecution
uncorroborated
of
bepages inin
at Appeal
to
will
truthful
three
secondly,
answer
matter that a
satisfy
only and of
adopts
including
in
said
adopted
against
judge
Defence
he is, practice
say
their can
rule'
amount
judge,
no does
Phiri
evidence
Chilanga
said his
the
91
against
implication
will
been
assured
these
to
no ifhis
command R
more
that
reasons
night
thing
believe
required
such ofhere
When
those
that
of
stage,
because give
v the
names
as
even co-defendants
course
itthe
Prater
properly
to
in
because,
such
his
(E)by
failure
only
hesitation he tobe
against
this:
thegiven
turn
an 92:
R
A5 the
witness
to
usually
seem
circumstances
it that
given
evidence
be
by
Forces
such
that the
and
court
is we v
discuss
Farm.
non
witnesses.
feared
the
gowhen
to
him A3
extentand
statement
adopted.
co-appellants
above
partssafe
and
defendant
he of
purpose
evidence,
no a
Stannard
adopts there
considered
to
tables
he the
to
as evidence
(78)be
that
warning
Court
come a
warning
reading
more
Others
by
makers.
account
that
he
required
trial -
to than
that
A8to
There
non-makers
report
for
hisof joint
may
the
military
name
the
strengthen
did
Joined
to thego
as it
classed
any
A7 was
namely,
theIt
of
rely cannot
is
to
were
odd
the
his
against
judgenot
hold byas
notof
similar
and
than trail,
stated
have
the
certainly
which,
theA7's v injustice
Appeal
which
subject
witness
superior
not unlawful
through
the was
There
for
plan
life
want aofhis
being
should
any
The
on
consider
statementin
was
needed
"Bread",
to as
danger
will Others
an
arrested
coincidences
flanks.
co-defendant,
him
said: and
allegedPW5,
him,
the
conspiracy.
that report be
passage
thus
his
as on
had his
own,
then,
some
anto
cases,
the to -
histhat,
departure'
though
People
will
evidence in
had in
is
he
reported evidence
evidence
be
expression
isaccomplice
that
can
given
to
that
fact
taking
PW5 R
evidence
that
the
any
no
only
silence
been
andto
report We
on
had what
if
not
seem
at at
substance
as
General
coup
been
Commander.
to where
given
(79),purpose
vbeof
ofbe
he oath
nota
which
any
possibly
(81) a
Whitaker
the
alleged
Chilanga
the detail co-defendant
which
consider
misdirection
his
grounds
that
I in he
where
the
against
as
plot
abandoned
been
go
him
wasover
to was
find is
found
in against
rule
in to
corroborated
to own.
the it
of
rate
he
authorities. this
constituting
at
of
accused
us
not
Kabwe,
the says
appears
the
of
is
judgmentor
as
in what
of
have
the
page
the
against
and
told
beinganot
thought
of
no couldalleged
at
his
jury
given
Winn,
where
Farm
A5 not.
it
that
this
evidence
ofOnly
matter.
the
authorities the
becomes
his
law,
respect
(80). his
by on
sure
Neither
other
truthfulan 107,
has
his
and
aboutown
is
flowed
accomplice
participation
to were be
disregarded. present
andours
A3
not former,
with
This
and
or, in
J.,
it
where
the as
unsupported
allegation.
the
government his
goes
co-defendants.
that desirable
already
the
own
untruthful
accomplice.
The so
hour
reason A8
These
at
can to
the
seems
from at
corroboration
being a
reading
I this
evidence
corroborated.
documents
the part
against
PW68, evidence
regard
have