The Judge Advocate in mutiny trial which connects 37 members of the army with mutiny, who has started advising the court, as a prelude to the judgement of the 37 solders, this week told the court that a soldier charged with a criminal offence could not use a justification of obedience to superior orders as his sole defence against the charge even though soldiers are obliged to obey all lawful orders from their superiors.

         This comes after some of them had said when giving evidence that they  participated in the alleged mutiny because they were obeying orders from superiors.

          Justice Peter Cullinan has told the court, which has began attracting a lot of people from all corners of the country, to see the end of the mutiny trial, that a soldier cannot come up with a numb excuse of innocence when he heartlessly killed defenceless women and children in an enemy village, while acting on the orders of his superior and in fear that when he disobeys such an order, he would be axed or be confined for some days.

            The Judge Advocate said a soldier is not like a automaton, which gives out programmed results; hence, there is more room for his common sense, adding that he will be held liable for a certain offence if such an offence is obvious to an average man that it is against the law even if he had not read books of law.

            “Consequently, it is important for a soldier not to get in the way of his superior’s instructions as it is provided by the Military Code, but to use his common sense to assess the legitimacy of such instructions,” Justice Cullinan added.

            He explained that although it is an everyday catchphrase that a soldier should not do anything which demonstrates insubordination to superior orders, obedience to such orders should always be in within the precincts of the military duties.

            Justice Cullinan said if then a soldier accepts to execute a cold-blooded criminal act, he cannot come up in defence to say that because he acted ignorantly to comply with superior orders descending from his superiors.

            On the other hand, The Judge Advocate has warned members of the court to be cautious of the unfounded information based on hearsay evidence, which came up in some of the evidence adduced before the court in the early days of the trial.

            Mr Peter Cullinan said according to principles of law, hearsay evidence is inadmissible on the grounds that a person who initially made the unconfirmed report was not under oath.

            He stated that there were many statements made by the witnesses, which do not form part of substantive evidence, which they made to corroborate their evidence.

            He said the statements were brought up and accepted for cross-examination purposes, adding that where the witness, in evidence, confirmed or admitted a portion of such statements, such portion becomes evidence.

            Meanwhile, The Judge Advocate has warned the court to cautiously weigh up  testimony of a single witness against a particular accused before making a conclusion to convict or acquit because such testimony could not be parallel to testimonies of more than one witness.

            Justice Peter Cullinan however said it may happen that evidence tendered by one single witness against a particular accused be more convincing than evidence from a number of witnesses, which might gainsay each other.

            “It is important for the court to consider that if the evidence of a single witness is to be believed, the court should guardedly evaluate such evidence against probability or the certainty in life,” he underscored.

            He added that the presiding Judge will weigh up the merits and demerits of the witness’s version against the accused, and come to a decision that even though the testimony has some shortcomings and limitations, the truth has been told in that story.

            Similarly, Justice Cullinan cautioned the court to pay attention to the evidence tendered by accomplice witnesses, which he said might be from persons who have  insight knowledge of the events and who would like to come out clean of the blame charged.

            “The court should seek corroboration from an independent source laying the same blame on  the accused as an accomplice, and the court may convict an accused

person even if this independent source does not necessarily implicate an accused person”, he added.

       Further advising the court, the Judge Advocate has said under section 48, I (a) and (b) of the Defence Force Act of 1996, the accused are charged with jointly taking part in a mutiny with persons subject to the Act, through force of arms, inciting others to mutiny, and mutiny or incitement to mutiny, though not necessary using force of arms. 

            He said in law, it is not adequate to establish that an accused person is guilty of a wrongful act as the charge alleges, but also important to bear out that a particular accused had malice aforethought to take part in the act.

            “An onus of prove lies with the prosecution to show that the accused acted wrongfully, unlawfully and with evil intend in mind to participate in mutiny, through the use of violence in overthrowing the lawful authorities of the army or suppressing any moves by the authorities to resist such subversion,” the Judge Advocate underscored.

            He added that use of force in mutiny, include pointing with loaded firearm within a shooting range, which the charge alleges happened at Ha Ratjomose Barracks on September 11, 1998 when the accused arrested senior officers.

            He added that firing shots in the air or on the ground at the parade ground to threaten officers into the trucks, putting them under armed guard at the maximum prison via Makoanyane Barracks and locking them in the top-security prison and putting them under armed guard also constitute to use of force.

            He said surrounding, disarming and taking the commander and the brigade commander to the King and the Prime Minister against their will, constitutes the use of force of arms to subvert legitimate command of the army.

            He further pointed out that in their determination as to whether a particular accused is innocent or guilty, the court should only base its conclusion on the evidence rendered before the court from both the crown and the defence.

            The 37 members of the Defence Force are charged with mutiny following a commotion in the army, which culminated in the arrest of 28 commissioned officers and subsequent retirement of the Commander of the LDF.