It follows that different judges in the appellate

but that because he has pronounced a different judgment they will adhere to his decision."
It follows that different judges in the appellate court may arrive at different conclusions on
fact, and that the decision must then lee by a majority. But situations such as the foregoing do
not involve the application of the special test that the conclusion is one to which any court
behaving reasonably would certainly have come. I have been unable to find any case either in
England or in any other Commonwealth country where the proviso has been applied by a
majority, and I should be very surprised to learn that such a case exists since it necessarily
involves the statement by the majority of the court that the judges holding the minority view
are not behaving reasonably - in other words, that in expressing the views in question they
are behaving perversely, capriciously or arbitrarily. It cannot be said that a judge is behaving
unreasonably simply because one disagrees with his logic or the weight he attaches to certain
items of evidence. It seems to me self-evident that if I were of the viewing a particular case
that any judge behaving reasonably would on the evidence before the court certainly have
convicted, but I discover that one of my brethren holds a different opinion, it then follows
that I must of necessity revise my original view. It is not a question of the view of the minority
prevailing over that of the majority; it is the law that prevails, as it must always do. The law
lays down a test, designed for the protection of the innocent, which must be met before the
proviso can be applied, and this court has unanimously settled the terms of that test as it
applies In Zambia, where a trial judge sits alone or with assessors. If the members of the
appellate court diner in their view of the evidence at the end of the day the question is simply
this: can it possibly be asserted that any judge behaving reasonably would certainly have
convicted when one judge, for stated reasons, has said in terms that he would not?
I am therefore satisfied that in a case such as this, where the matter turns on the weight to be
attached to, and the inferences to be drawn from, a number of items of evidence, the proviso
can never be applied by a majority. For this reason also these appeals should in my judgment
be allowed.
Judgment
GARDNER, J.S.: I respectfully concur with the judgment of the learned Deputy Chief Justice. I
agree that for the reasons given therein the evidence in this case does not successfully dispel the
danger of false implication. Were I trying this case as a judge of first instance I too would acquit
the appellants.
On the question as to whether or not the proviso can be applied by majority decision I should
like to add force to the argument that it cannot be so applied by referring to the case of R. v
Haddy (30. That case discussed the question of the application of the proviso by approaching
it by the use of a slightly different phrase from that used in the case of Lewis (23) cited by
both the learned Chief Justice and Deputy Chief Justice.