ABSTRACT
In substance the evidence of the appellant was that he did not conspire to aid or procure the commission of arson or malicious injury to property but that on the contrary he declined to participate in illegal action. The appellant was then crossexamined and he was asked questions as to his political opinions. In reference to the meeting on the Saturday night (May 12) he said that it dispersed because he disagreed with and disapproved of the wish and desire of others to take part in violent action which was to consist of burnings. Counsel for the prosecution then intimated to the learned judge that he wished to cross-examine the appellant in regard to certain passages in exhibit 8. These were some passages there contained other than those which had been given in evidence (and as to which no question arises) as part of the prosecution case ... Counsel ... then proceeded to cross-examine the appellant about a passage in an essay in exhibit 8. It had been written on February 8 1961. The passage was one in which the use of violence was commended and was asserted to be necessary ... ... The witness was then asked various questions about another note-book in
which he had written and which had not been produced by any prosecution witness (exhibit 10) in which there was a reference to a stand against colonialists and settler regimes and the total evacuation of all foreign peoples in Africa and the entire abolition of capitalism. That was probably written in 1960. He was further asked about another note-book (exhibit 11, which had not been produced
as part of the evidence for the prosecution) in which he had written of the time when there would be an end of the oppression of the African by the settlers ... The appellant appealed to the Federal Supreme Court both against his conviction and against his sentence. The grounds of appeal were framed as follows: ‘(1) That the court was influenced by essays written by me and produced as evidence against me. (2) That the court was misled by the evidence given by the witnesses which were untruthful. (3) I did not commit the crime.’ The appeal was argued on June 10 and 12 1963 and was dismissed on August 12 1963. The Chief Justice was of opinion that the appeal should be allowed. He considered that the questions which related to the appellant’s views on violence were questions tending to show that the appellant was of bad character, that the appellant had not put his character in issue ... and that the questions put in crossexamination were not justifiable; he held also that it could not be said that without the inadmissible evidence the court must have convicted. Quenet FJ referred to the judgment of the learned judge and said that references in it to the writings of the appellant could not be construed as indicating that because the appellant had a bad character he was likely to commit the crimes with which he was charged. He considered that the legitimate probative force of the essays was considerable, and though the cross-examination was allowed on a different basis it was legitimate for the reason that the appellant in his evidence had given evidence of his own good character. Forbes FJ was also of opinion that the appeal should be dismissed. He considered that the appellant had in his evidence put his character in issue with the result that the questions in cross-examination were not excluded ... The first issue which arises is whether the appellant was asked any question tending to show that he was of ‘bad character’ and whether he had given evidence of his own ‘good character’ as those phrases are used in section 303 [of the Criminal Procedure and Evidence Act, Laws of Rhodesia and Nyasaland]. The language of that section is clearly derived from the language of the English Act of 1898 ... ... It was submitted that the cross-examination was in any event legitimate
because the appellant had himself given evidence of his own good character. It is said that by his evidence the appellant had put himself forward as a person who was and was regarded by others as being a moderate and a man of peace, and that he had accordingly proclaimed himself as a man of good character. Their Lordships cannot accept this. The matter depends upon an examination of the evidence which the appellant gave in chief ... All that the appellant did was to give a narrative of what he says took place at the meetings in question. He records what he asserted was said at the meetings. He gave his version of events and conversations. He did no more. He did not, independently of his giving his account of what had actually happened and of what had actually been said, assert that he was a man of good character. In their Lordships’ view the proposed questions could not be introduced on the basis that he had himself given evidence of his own good character.13
