REMY AND ANOTHER v. THE REPUBLIC

JUDGMENT OF HAYFRON-BENJAMIN J.A.

The facts in this case are particularly gruesome, and I shall adopt the practice of some of the earlier judges of not setting out in their judgments in similar cases, all the gory and morbid details. It is sufficient to say that the victim of this murder was deliberately hacked to pieces, and her several parts buried in different places on a farm, and her jawbones tied up in the blouse she was wearing just before she met her untimely death. The evidence is also clear that the appellants in this appeal, Konutse Remy, a professional driver and Bikama Konkomba, a medicine man, took part in this juju murder in the misguided belief that they would thereby advance themselves in life.

[p.448]

The summing-up of the trial judge was fair and adequate, and I can see nothing wrong with it. The only serious issues that have been raised result from the prosecution's decision to adopt the unusual course of charging the accused persons with the offence of conspiracy to murder and with the substantive crime of murder. This practice has been the subject of constant criticism even in relation to non-capital offences: see R. v. Cooper and Compton [1947] 2 All E.R. 701, C.C.A. Its extension to capital offences cannot be too strongly deprecated.

The advantages gained by the prosecution in adopting this procedure may be so great as to be prejudicial to the interests of the defendant. It enables the prosecution to introduce what would otherwise be hearsay evidence in proof of the conspiracy charge because of the rule that the act of one conspirator in furtherance of the conspiracy is evidence against the other co-conspirators. The jury having heard this hearsay evidence are not likely to forget it in considering the substantive charges. In answer to the contention that possible prejudice can be countered by proper instructions to the jury, Jackson J. of the U.S. Supreme Court said that: "The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practising lawyers know to be unmitigated fiction." See Krulewitch v. U.S. 336 U.S. 440 at p. 453 (1949). The tendency in England and in other Commonwealth countries has sometimes been to strike out the conspiracy charge and leave the conviction on the substantive charges. I am however of the view that the evidence of a co-conspirator being properly admissible to establish the charge of conspiracy, it is rather the conviction on the substantive charges that