1. Appeal against murder convictions based on accomplice testimony under Section 231 of the Basutoland Criminal Procedure and Evidence Proclamation, 1938. (Para 1 , 2 , 3 , 4 )
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1949 Supreme(SC) 4
Privy Council At Basutoland
Sir John Beaumont, Sir Madhavan Nair, Reid, Justice Lords Macdermott, JJ.
Tumahole Bereng and others -Appellant
Versus
The King. -Resopndent
Privy Council Appeal No. 32 of 1948
Decided On : 13-01-1949
Advocates Appeared:
Burchells and Co., Jaques and Co., frank Gahan, Melford Stevenson and Co., J.T. Monlony, J.D. Casswell
Burchells and Co., Jaques and Co., frank Gahan, Melford Stevenson and Co., J.T. Monlony, J.D. Casswell
Conviction on accomplice evidence requires independent proof that the crime was committed; such proof cannot be provided by another accomplice. Additionally, an accused's silence or false testimony does not constitute corroboration for the cautionary rule against uncorroborated accomplice evidence.
Headnote:(A) Criminal Procedure and Evidence Proclamation, 1938 - Section 231 - Conviction on accomplice evidence - Interpretation of "single evidence of any accomplice" - The term "single" is used in the sense of "standing alone" or "unsupported" and the singular "accomplice" includes the plural - Where the prosecution relies on multiple accomplices, they are treated as an indivisible group for the purpose of the proviso requiring proof that the offence was actually committed by competent evidence other than the single and unconfirmed evidence of the accomplice - Evidence of a second accomplice, covering the same ground as the first, is insufficient to satisfy the proviso that the crime has been proved to have been committed. (Paras 7, 10, 11, 13)
(B) Criminal Law - Rule of Practice - Corroboration of accomplice evidence - Silence of an accused person in exercising the right not to give evidence on oath, or the giving of evidence that is subsequently not accepted as true, does not constitute corroboration to satisfy the cautionary rule against acting on uncorroborated accomplice evidence - Such factors may assist in a conviction if other sufficient material exists, but cannot serve as a make-weight where the primary evidence is insufficient. (Para 15)
(C) Procedural Fairness - Role of Administrative Officers - Proclamation No. 57 of 1938, Section 7 - An officer appointed to assist the Judge who, prior to the trial and without the presence of the accused or their representatives, visits the crime scene and interrogates witnesses, creates a reasonable apprehension of bias and undermines the impartiality of the proceedings, potentially vitiating the trial. (Paras 18, 20, 21)
Facts of the case:
Seven individuals were convicted of ritual murder based primarily on the testimony of two accomplices. The medical evidence regarding a superficial wound was found to be consistent with an accidental fall rather than the stabbing described by the accomplices. The trial judge relied on the attendance of the accused at a feast and their failure to testify as corroboration. Additionally, an administrative officer assisting the judge had visited the crime scene and questioned a witness before the trial.
Findings of Court:
The court found that the medical evidence did not support the accomplices' version of the killing. It held that the statutory requirement for independent proof that a crime was committed cannot be satisfied by the testimony of another accomplice. It further ruled that the trial judge misdirected himself regarding the nature of corroboration and that the administrative officer's pre-trial conduct was highly irregular.
Issues: Whether the conviction based on the evidence of two accomplices satisfied the statutory proviso of Section 231; whether the silence or false evidence of an accused constitutes corroboration; and whether the pre-trial activities of an assisting administrative officer vitiated the trial.
Ratio Decidendi: The court reasoned that "single evidence" refers to unsupported evidence, regardless of the number of accomplices. To satisfy the proviso that a crime was committed, evidence must be adduced that is not subject to the taint of accomplice testimony. Furthermore, the right to remain silent cannot be used as corroboration of guilt, and judicial assistants must maintain manifest impartiality to ensure justice is seen to be done.
Result: Appeal allowed and the convictions set aside.
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2. Whether evidence of multiple accomplices satisfies the statutory requirement for independent proof of the crime and whether an accused's silence constitutes corroboration. (Para 9 )
3. Medical evidence was consistent with accident; multiple accomplices are treated as a single group; silence and mere attendance at a feast are not corroboration. (Para 5 )
4. Does the phrase single evidence of any accomplice in Section 231 apply only to a single witness?
No, the phrase means unsupported evidence and includes the plural, meaning the section applies whether the prosecution relies on one accomplice or multiple accomplices. (Para 9 )
Lord MacDermott.-
This was an appeal from a judgment of the High Court of Basutoland of 25th October 1947, whereby the seven appellants were convicted of the murder of one Katse Phatela on 25th December 1945, at Phatela's in the District of Qacha's Nek, and sentenced to death.
[2] The case for the crown was that the killing of Katse was a ritual murder committed by ten persons for the purpose of obtaining human blood to be used by a witch-doctor named Molume Kaphe in connection with a dispute about land. Of these ten, the witch doctor died in gaol while awaiting trial and two others, Jan Gat and Maama Molahlehi, gave evidence for the prosecution. The remaining seven are the appellants. It is unnecessary to recite the evidence adduced at the trial in detail. At this stage, it will suffice to say that the Crown testimony in support of the, charge was to the effect that Katse was chosen by appellant 1 as the victim whose blood was required; that a feast previously arranged by appellant 1 was held in the hut of appellant 2 on Christmas Day 1945; that Katse was there plied with drink until be was insensible; that he was taken out of the hut after dark and carried by some of the ten persons already mentioned, the others accompanying them, to a spot about 500 yards away where he was hit on the head with a pick-handle and throttled; that the witch-doctor next pierced or stabbed Katse's head behind the right ear with a sharp pin and caught the blood from the wound in a tin; that Katse was then carried to the edge of a krantz or cliff some 31 feet high and thrown over into a stream; and that several of the appellants followed him down and confirmed he was dead.
[3] Such, in broad outline, was the story sworn to by each of the accomplices, Jan Gat and Maama Molahlehi. Their versions differed in certain points, but in substance they told the same tale. It may be stated now, though the matter will be referred to hereinafter, that apart from their testimony there was no evidence sufficient to implicate the appellants in the offence alleged. Whether, there was any other evidence showing that Katse had been murdered by someone was a disputed question which will be examined later. His dead body was found on 26th December and buried on the 28th. On 10th January 1916, it was exhumed and examined by Dr. R. C. Ogg who proved the cause of death to be "injury to the brain from a fractured skull and a fractured femur."
[4] The case made by the appellants at the trial challenged the contention that Katse had been murdered and suggested that he had met death by falling over the krantz while on his way home drunk. Appellant 2 elected to give evidence on oath denying the charge but his testimony was not accepted. The other appellants did not give evidence but contented themselves with statements from the dock, after verdict given, protesting their innocence. In addition to appellant 2 several witnesses were called for the defence, the gist of their evidence being that the deceased left the feast before it ended and while the appellants or some of them were still there, and that Jan Gat and Maama Molahlehi spent the hours of darkness, during which the. murder was alleged to have occurred, asleep in the hut of the witness Dora Mafatela.
[5] The first question arising for determination is whether it was competent for the High Court to convict the appellants having regard to the state of the evidence and the terms of S. 231 of the Basutoland Criminal Procedure and Evidence Proclamation, 1938, as amended. It has already been observed that the only evidence implicating the appellants in the crime charged was that of the two accomplices. It will be convenient to consider now, before referring to the relevant provisions of the Proclamation, whether there was any evidence, in addition to that of the accomplices, to show that Katse had been murdered by someone. At the trial corroboration of the accomplices' story of an intentional killing appears to have been sought in
