R. v. KUSASI & ORS.

(His lordship stated the facts, and continued:)

We do not think that there was a concerted intention to kill and we are satisfied that the killing was an action of the first two appellants only, committed in circumstances when each had lost the power of self-control. There is no evidence that the third appellant participated in the assault after the deceased first fell to the ground. His statement, which stands uncontradicted, is that when the first two appellants started to beat the deceased while he struggled on the ground, he (third appellant) ran away from the scene. We think that by so doing he showed that was not prepared to be associated with what might—and did—occur.

What is clear on the evidence is that the deceased was a person who was believed by the appellants to have been accused by the villagers of felony, and who was endeavouring to avoid arrest by the [p.335] appellants. The law applicable to these fact is contained in section 61 (1) of the Criminal Code:—

“Any person may, with or without warrant or other legal process, arrest and detain another person who has committed a felony, may, if the other person, having notice or believing that he is accused of felony, avoids arrest by resistance or flight or escapes or endeavours to escape from custody, use any force which is necessary for his arrest, detention, or recapture, and may kill him, if he cannot by any means otherwise be arrested, detained, or retaken.”

The learned trial-Judge did not direct the assessors, or himself, as to this provision of the law. In his opinion there was no justification for the accusation of theft. He appears to have given undue weight to the deposition of a witness who (for no assignable reason) could not be got to attend the trial, and whose reliability, therefore, could not be tested by his demeanour in the witness-box. His evidence at the Preliminary Inquiry was that he was that companion of the deceased whom the villagers had accused of felony on the fatal night, and who had escaped arrest by the appellants.

The appellants at their trial offered no evidence; each relied on the statement made to the police; and the prosecution had no evidence other than the statements of the appellants concerning the killing and the circumstances as shown above. As in his own judgment the prosecution case rested on the statements made by the appellants to the police when charged with murder, the learned trial-Judge had no alternative but to have regard to the account of