COURT OF APPEAL, ACCRA
Date: 27 MAY 1975
APALOO JIAGGE AND SOWAH JJA
TAYLOR J
CASES REFERRED TO
(1) R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A.
(2) R. v. Golder [1960] 1 W.L.R. 1169; 124 J.P. 505; 104 S.J. 893; [1960] 3 All E.R. 457; 45 Cr.App.R. 5, C.C.A.
(3) R. v. Birch (1924) 93 L.J.K.B. 385; 88 J.P. 59; 40 T.L.R. 365; 68 S.J. 540; 18 Cr.App.R. 26, C.C.A.
(4) R. v. White (1922) 17 Cr.App.R. 60, C.C.A.
(5) Bonaparte v. Walakataka [1972] 2 G.L.R. 83, C.A.
(6) R. v. Cohen and Bateman (1909) 73 J.P. 352; 2 Cr.App.R.197, C.C.A.
(7) Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13; 113 L.J.K.B. 394; 171 L.T. 78; 109 J.P. 1; 60 T.L.R. 461; 88 S.J. 255; 42 L.G.R. 263; sub nom. R. v. Stirland 30 Cr.App.R. 40, H.L.
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(8) R. v. Dyson [1908] 2 K.B. 454; 77 L.J.K.B. 813; 99 L.T. 201; 72 J.P.303; 24 T.L.R. 653; 52 S.J. 535; 21 Cox C.C. 669; 1 Cr.App.R. 13, C.C.A.
(9) R. v. Sard (1935) 2 W.A.C.A. 240.
(10) R. v. Weyeku (1943) 9 W.A.C.A. 195.
(11) Danso v. R. (1950) 13 W.A.C.A. 16.
(12) R. v. Osabu and Maseyo (1957) 3 W.A.L.R. 180, C.A.
(13) R. v. Abbot [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; 39 Cr.App.R. 141; [1955] 2 All E.R . 899; 119 J.P. 526; 99 S.J. 544, C.C.A.
NATURE OF PROCEEDINGS
APPEAL from a conviction for murder entered by Andoh J. sitting with a jury. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Dr. Date-Baah for the first appellant.
Osew for the second appellant.
Mensah for the third appellant.
Mrs. Bamford-Addo, Principal State Attorney, for the respondent.
JUDGMENT OF APALOO J A
Apaloo J.A. delivered the judgment of the court. The late Augustine Dei was the head of the Kpandu community of Kadjebi in the Volta Region. He was, at the date of his death on 14 May 1972, aged 75 and the evidence shows him to be a man of respectability in the town. In his capacity as head of the Kpandu community, he entertained complaints and settled disputes informally between such of his “subjects” and other inhabitants of Kadjebi as sought his assistance.
One of the persons who sought his aid to right a grievance was one Elizabeth Agya, a yam seller of Kadjebi (hereinafter called Elizabeth). Her complaint was that the first appellant raised a loan of 060.00 from her and refused to pay this back. The first appellant himself hails from a town called Alavanyo which is a few miles from Kpandu. The deceased invited the first appellant and sought to determine and settle the difference between them. The first appellant declined to submit to an arbitration and left the meeting. Elizabeth turned to the linguist of Kadjebi by name Asiedu and later to the chief of Kadjebi for assistance. The first appellant declined to submit to the jurisdiction of either. But he made it known that he would submit to the arbitrament of the fetish of Asato. Thither Elizabeth went.
The complaint was investigated by the fetish priestess of Asato, a village three miles from Kadjebi in the late afternoon on Sunday, 14 May 1972. Both parties submitted to her jurisdiction. Indeed that was the forum selected by the first appellant. The evidence shows that it was an entirely friendly proceeding and both sides presented their “cases” to the fetish. In the result, the first appellant was adjudged liable to pay the 060.00 to Elizabeth and was also to provide some drinks. The first appellant asked for time to pay the debt. He was given six weeks. The deceased was present at this arbitration at the behest of Elizabeth and sided with her. The fetish priestess swore that not only were the proceedings conducted without rancour but it concluded in similar manner and the parties agreed
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to abide by her decision. Thereafter, according to her evidence “every participant of the arbitration left in peace and harmony.”
This fact is itself colourless but the Republic suggested that the result of the arbitration provided the motive for what befell Augustine Dei shortly afterwards. The evidence shows that the investigation before the fetish priestess came to an end about 6 p.m. Thereafter Dei and Adzraku, one of Elizabeth’s witnesses, returned to Kadjebi. They reached there around 7 p.m. or a short while before. The deceased did not appear to have gone to his house. He was never seen alive again. His body was discovered at the refuse dump in the morning of the next day, that is 15 May 1972.
Dr. Agyekum who performed an autopsy on the deceased in the afternoon of that day, found a deep lacerated wound on his forehead. This exposed the skull though it did not fracture it. The doctor considered that such an injury must have been caused by a heavy object with a sharp edge. The doctor also said the deceased could not have inflicted that injury on himself but that the injury was so severe that the deceased must have succumbed to it instantly, or at any rate, could not have survived it for more than an hour. It is plain from the medical evidence that the deceased met his end by the hand of some one. The question was who killed him?
The Republic charged that all the appellants together with two others who were discharged at the end of the prosecution’s case intentionally caused the death of Augustine Dei by “unlawful harm.” Within a day or two of the discovery of the body, all the appellants were taken into custody by the police and confronted with the death of the deceased. Each made a cautioned statement denying knowledge of the death and disclaiming any involvement in the killing.
The summary of evidence which was prepared pursuant to section 182 of the Criminal Procedure Code, 1960 (Act 30), showed that the Republic purposed to bring home the charge of murder to the appellants by both (a) direct and (b) circumstantial evidence. The direct evidence was going to be an eye-witness account of the killing by the first appellant’s six-year old son called Simon. Had this witness not contradicted his proof, a very serious part of the complaint made to us about the judge’s summing up would not have been made. When Simon turned “adverse,” the Republic sought leave of the court to treat him as a hostile witness. Such leave was granted. He was accordingly cross-examined and the statement which he admitted making to the police, was tendered in evidence.
Apparently because Simon was very young, the police took the precaution of ensuring that an independent witness was present when his statement was reduced into writing. When Simon disputed the truth of what was contained in the statement, the prosecution called that person as a witness. He is a man called Ntumie and was by profession, a licensed letter writer. He deposed to his recollection of what Simon told the police. His testimony tallied substantially with the recorded statement of Simon. On the same day, Simon also took three police officers and two civilians to a bridge on the Asato road. He there showed them the spot where the
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murder was committed and again mentioned the part played by the appellants. On their way back to the police station, Simon and the witnesses of the locus branched to the house of the first appellant and Simon showed them a pestle which he alleged was used in committing the offence.
During the trial, and in an apparent attempt to discredit Simon’s sworn testimony, the prosecution called the civilian witness, an auto electrician called Akyea and he related what happened at the locus and in the first appellant’s house and what Simon then said. The three police officers who also visited the locus confirmed this and provided further details. That this evidence should have been relied on and the way in which the learned judge dealt with it in the summing-up was the subject of serious complaint made on behalf of the appellants. To this, we will return.
As we said, the Republic also sought to clinch its case against the appellants by circumstantial evidence. We have already related the evidence of the arbitration at the fetish priestess’s shrine at Asato and expressed the view that it was colourless. The one cogent piece of circumstantial evidence which the Republic produced on this score, was given by a woman called Yaa Donkor. She said she lived in a house which was only nine yards from that of the first appellant and was on very cordial terms with the latter’s family. She said on the night in question, she heard cries of agony from the direction of the first appellant’s house. Some time after this, she got out of bed to empty her bladder. While she was doing this, the appellants passed her by carrying a human body in the direction of the refuse dump. The moon was bright and she saw the appellants, whom she knew well before, very clearly. Her evidence suggests that she was speaking of something that took place in the dead of night. It is common ground that the deceased’s body was discovered in the refuse dump at daybreak.
It was suggested to her that there was a building between her house and that of the first appellants She denied that this was the case. When the first appellant himself gave evidence, he said in cross-examination that there was a building between his house and that of Yaa and so the latter cannot see his house from her’s. But the first appellant admitted that a person standing in Yaa’s house can see “the identity of any person on the path leading to the dumphill. “ When the case on both sides was closed, counsel for the first appellant requested the court to visit the locus “to see whether there are houses surrounding that of Yaa and himself.” The judge, in the exercise of his discretion, declined this. All the appellants made common cause of this refusal and united in the complaint that the judge was wrong in refusing to visit the locus.
The appellants for their part, narrated their version of the incidents and elaborated the denials they made in their police statements. They all protest innocence. After the closing speeches of counsel, the learned trial judge Andoh J. summed up the evidence and directed the jury on the law for 45 minutes. After a deliberation lasting 40 minutes, the jury returned a verdict of guilty of murder against all the appellants. It is this verdict and consequential conviction that they seek by this appeal to reverse.
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As we said, the first appellant’s six-year son Simon was a vital witness for the prosecution. As he was treated as a hostile witness and cross-examined by the Republic, his police statement was tendered to discredit him. As the statement was admitted in evidence, it became available to the jury and was highly damning to the appellants. What Simon was recorded to have said in that statement was that in the evening of that day, he went with his father to a bridge on Asato road. His father then carried a pestle while the rest of the appellants held sticks. When they reached the bridge, they sighted a man whom his father called Dei. His father then hit the man’s neck with the pestle while the rest of the appellants struck him with their sticks. The man shouted for help without result. Simon then implied that the man then died because he said upon their return home, his father told his mother in his presence that he had killed somebody. In the witness-box, Simon retracted all these and swore that his father as well as the rest of the appellants were innocent. He said they had not killed anybody and that he was coached by the police to make the highly incriminating allegations which he made in the statement against them.
It is clear that Simon was an untrustworthy witness and no reliance can be placed on his testimony. The judge was anxious that the incriminatory matter in his police statement should not be used as evidence against the appellants and he warned the jury repeatedly of the value of that witness’s testimony. In particular he told the jury:
“Let me tell you from the onset that what appears to have been direct evidence from the seventh prosecution witness [meaning Simon] must be completely ignored from your consideration in this case. You will recall that at the request of the prosecuting counsel, the witness, the seventh prosecution witness was treated as a hostile witness. In law, the evidence of such a witness is rendered nugatory. In other words, it is worthless and therefore you have to discard that evidence from your consideration as if it had not been given at all.”
This direction which, at any rate at first blush, appears favourable to the appellants, nevertheless provided them with their first joint complaint against the summing-up. It was said the judge was wrong in directing the jury that Simon’s evidence was nugatory. That evidence may be negligible but it was not nugatory. It was said it was nevertheless evidence fit for consideration by the jury. Had the jury been directed to consider it, so that argument ran, they may well have construed it as disclosing serious conflicts in the prosecution’s case.
We think this an insubstantial argument on words. A person who says two contradictory things about the same matter, must at least be suspect as a witness. In R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A. it was said the effect of having made a previous contradictory statement together with the sworn evidence is to render the evidence of the witness negligible. But this word has not acquired any special sanctity. In R. v. Golder (1960)
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45 Cr.App.R. 5, C.C.A. it was said that a witness who is shown to have made a previous statement inconsistent with his evidence at the trial, should be regarded as unreliable. In R. v. Birch (1924) 18 Cr.App.R. 26, C.C.A. Avory J. thought the witness in such a case was a liar. In R. v. White (1922) 17 Cr.App.R. 60, C.C.A. Lord Hewart C.J. considered that such a witness cannot be trusted. It is clear that it cannot be said that any particular word has been hallowed by consistent judicial usage.
In any case, the distinction between the word “negligible” which counsel advocates and “nugatory” which the judge used, is a trifle fine. According to the Shorter Oxford Dictionary, nugatory means trifling, worthless, futile while negligible means “that need not be regarded.” The testimony of a witness who is characterised as a liar cannot but be worthless. The appellants were in no way prejudiced by the word used and we cannot accept that this nice philological point can in any way impinge on the result of this case. Without disrespect to counsel, we think this contention a quibble. We find no real fault with the direction. It was, on the whole, fair to the appellants.
As we said, counsel for the appellants united in submitting that the judge was wrong in refusing to order an inspection of the locus and that this refusal prejudiced the defence of the appellants. It was said there were matters of conflict which a visual inspection would have settled. For authority, the case of Bonaparte v. Walakataka [1972] 2 G.L.R. 83, C.A. was relied on.
That case is clearly distinguishable from the present case. The dispute there was whether the defendant trespassed into the plaintiff s land by planting a hedge and coconut trees on the trespassed area. The plaintiff asserted that such planting was done. This was stoutly denied by the defendant. The land in dispute was in Christiansborg and was a stone-throw from where the court was sitting. No plan of the land in dispute was available and the judge declined an invitation to visit the locus. He decided in favour of the plaintiff by accepting the oral testimony of the plaintiff s witnesses. On appeal, this court held that the judge ought to have visited the locus and remarked at p. 83 that: “In the conflict of evidence which ensued between the rival parties, the only neutral evidence and the safest indicator of the truth is the real and colourless evidence produced at the inspection.” The court said this after it had itself visited the locus and came to the conclusion that the impressions gathered at the locus bore out the defendant’s case and contradicted the oral evidence which the judge, bereft of a plan or a visual inspection of the locus, accepted.
In this case, a plan was prepared by a Mr. Laryea of the Crime Laboratory and was produced in evidence. It showed all the spots which had any bearing on the case. Although Yaa said the cries of agony which she heard came from the direction of the first appellant’s house, she did not recognise it as the voice of any particular person she knew. In fact, she did not know the deceased prior to his death. As the first appellant himself
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claimed that there were many houses surrounding his house and that of Yaa, such cries could have come from any of those houses. Nobody could pin it only to the first appellant’s house. The more important aspect of Yaa’s evidence however, was, that she stood in her house and saw the appellants carry a dead body towards the dumphill. Had there been any question that Yaa could not have seen what she claimed to have seen from her house, there might be some point in visiting the locus to see whether that claim could be confirmed or disproved. But the first appellant himself said in answer to the court that a person standing in Yaa’s house can see “the identity of any person on the path leading to the dumphill.” So there was no conflict which a visual inspection could have settled. Whether Yaa in fact saw what she claimed she saw was a simple issue of credibility. It could not be decided by a visit to the locus.
In any event, the reason given by counsel for requesting the inspection of the locus, itself justified the judge’s refusal—namely “to see whether there are houses surrounding that of the first appellant and the witness Yaa.” That there were houses in the area is clear from the plan as well as the evidence of Laryea the police draughtsman. Where a court is asked to visit a locus, it must at least be satisfied that there is a material issue which could not be resolved otherwise than by such inspection. The danger that impressions gained at the locus may be substituted for the conclusions properly drawable from the evidence and demeanour of witnesses, ought to inhibit a judge from making such orders lightly. We think that on the facts of this case, a visit to the locus would be pointless. We are entirely satisfied that the appellants were in no way prejudiced by the absence of such visit. It follows that this ground of appeal fails.
That brings us to the only serious complaint urged on behalf of the appellants. It was formulated in the first appellant’s third ground of appeal as follows: “That the learned judge erred in allowing inadmissible prejudicial evidence to be led by the prosecution.” The evidence on which this objection was grounded, is the evidence of the civilian witness who was present when Simon made his statement to the police, the auto electrician who accompanied the police to the alleged scene of the murder and the three police officers who were in the inspection party.
As Simon proved adverse and as the court granted permission for him to be treated as a hostile witness, the Republic was entitled to impeach his credit by cross-examination and to contradict his sworn evidence by his recorded statement. As Simon also claimed that he was induced by the police to make the incriminating statement he made against the appellants, the prosecution were entitled to contradict this claim by the evidence of the independent witness, and to show that the statement was made of his own free will. The Republic did more than this and in the process, transgressed the hearsay rule. It led the witness Ntumie not only to depose about the voluntariness or otherwise of the statement made by Simon but also to testify as to its contents.
The witness related his recollection of what Simon told the police about the persons who killed the deceased and the instruments with which they did it. The appellants were not present when Simon made his police
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statement and in so far as that evidence tended to show that deceased’s death was caused by the appellants, the evidence was inadmissible as hearsay and was highly damning to the appellants. That the jury must have been impressed by it, is shown by the very detailed questions they put to this witness about what Simon said to the police. The auto-electrician also related, what Simon told him and the other witnesses at the alleged scene of murder. Two police sergeants and an inspector also, in their turn, related to the court what Simon told them at the inspection and about the pestle which the police took possession of in the first appellant’s house and in his absence. We think the learned judge should, ex proprio motu, have excluded all the hearsay evidence. Inasmuch as he allowed that prejudicial inadmissible evidence to be communicated to the jury, we think, with respect, he slipped.
Having failed to exclude the hearsay evidence to which we have referred, we think the least the judge should have done, was to have warned the jury that it was not evidence on which they could act to the prejudice of the appellants. It was not, we think, sufficient to warn them against Simon’s statement but also the evidence of the witnesses who testified to the contents of that statement as well as Simon’s incriminating references to the appellants both at the alleged locus and in the first appellant’s house.
The judge’s direction on this aspect of the case was this: “So therefore with the elimination of the seventh prosecution witness (i.e. Simon’s) evidence, the evidence from which you could infer that the death of the deceased was caused by the accused persons is that of the fourth prosecution witness (i.e. Yaa Donkor) mainly and other evidence from which you may infer intention.”
We think this direction wholly inadequate and is, in one respect factually inaccurate. There was a positive duty on the judge to erase from the jury’s mind the hearsay evidence led by Ntumie, the auto-electrician Akyea and the police witnesses. The Republic suggested as a possible motive for the murder, the first appellant’s dissatisfaction with the result of the fetish priestess’s arbitration but there is no admissible evidence from which an intention to cause the death of the deceased can be inferred against any of the appellants. In his closing speech, counsel for the Republic is recorded to have told the jury that:
“On intention, counsel submits that it is not capable of proof by direct evidence. Intention can be gathered from surrounding cases. Refers also to section 11 (1) of the Criminal Code, 1960 (Act 29). Submits if the jury believed that first accused hit deceased with exhibit F (that is the pestle) and the others hit him with sticks resulting in Dei’s death, then all are guilty of murder. Counsel submits motive is immaterial in a charge of murder.”
Thus, the only evidence from which intent to cause death can be inferred, was Simon’s repudiated police statement which the judge himself
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said was no evidence. Although the judge did not seem to have adopted this submission, he did not himself pinpoint to the jury what legal evidence there was from which intention to cause death could be inferred. The truth is that there was no admissible evidence that any of the appellants did an act from which an intention to cause death within the meaning of section 11 of the Criminal Code, 1960 (Act 29) could be inferred.
We think the appellants have made good the complaint on this ground of appeal. Counsel for the Republic conceded to it with understandable reluctance. But she sought to get round it by a not unfamiliar contention. She argued that even if the inadmissible prejudicial evidence was excluded, there was sufficient circumstantial evidence from which the jury would have reached the same conclusion. Accordingly, she invited us to say that no substantial miscarriage of justice had occurred and that we should leave the convictions undisturbed.
This is no more than an invitation to us to apply, what in effect, is the proviso to section 4 (1) of the English Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), which has been reproduced in our local legislation ever since: see section 10 (1) of the West African Court of Appeal Ordinance, Cap.5 (1951 Rev.), the Courts Decree, 1966 (N.L.C.D. 84), para. 13 (1) and section 406 (1) of the Criminal Procedure Code, 1960 (Act 30). The principles on which the English courts act when invited to apply the proviso, have been set out in a number of English decisions: see R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, C.C.A.; Stirland v. D.P.P. [1944] A.C. 315, H.L., and R. v. Dyson [1908] 2 K.B. 454 at p. 457, C.C.A.
A number of local decisions reflect the attitude of our courts on this subject. In R. v. Sard (1935) 2 W.A.C.A. 240 the evidence was, as here, wrongly admitted and the court was invited to apply the “proviso” on the ground that no substantial miscarriage of justice had actually occurred. The West African Court of Appeal conceived the applicable principle as follows at p. 246:
“The rule which has been established is that, if the conviction is to be quashed on the ground of misreception of evidence, the proviso cannot operate unless the evidence objected to is of such a nature and the circumstances of the case are such that the Court must be satisfied that the jury must have returned the same verdict even if the evidence had not been given.”
In that case the court could not be so satisfied and the conviction for murder was accordingly quashed.
In R. v. Weyeku (1943) 9 W.A.C.A. 195 on a charge of murder, the principal evidence against the accused was hearsay evidence wrongly admitted as a dying declaration. The trial was conducted in the British Cameroons and was by a judge sitting without a jury. In quashing the conviction, the court said at p. 196:
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“We find it impossible to say that, apart from this admissible evidence, the learned Trial Judge must inevitably have come to the same conclusion as he did, for although there is other evidence to connect the appellant with the crime, it is by no means conclusive.”
In Danso v. R. (1950) 13 W.A.C.A. 16, where two accused were charged and jointly tried for murder, the judge directed the jury that an incriminating statement made by one of the accused against the other and retracted in court, was evidence against the accused against whom it was made. This was conceded on appeal to be a misdirection but as there was a lot of other evidence, which, if the jury believed it, would have justified a verdict against that accused, the State invited the court to apply the proviso to section 10 (1) of the West African Court of Appeal Ordinance, Cap. 5 (1951 Rev.), and sustain the conviction. The court declined to do this and said at p. 19:
“There is no doubt in our minds that there was plenty of evidence, if the jury accepted the testimony of the witnesses for the prosecution, to justify a verdict of guilty against Danso, and if they had been properly directed, such a verdict would not be open to criticism. But in view of the seriousness of the misdirection and its possible effect on the minds of the jury, the majority of the Court do not feel, on the whole, quite satisfied that the case is one in which the proviso should be applied.”
The conviction for murder was therefore quashed.
In R. v. Osabu and Maseyo (1957) 3 W.A.L.R. 180, C.A. a man and a woman were convicted of murder. There was in fact “no case” made at the conclusion of the prosecution’s case against the female accused and a submission on this basis on her behalf was overruled. On appeal, it was held that there was in truth no case made against the female appellant and as counsel’s submission on her behalf was wrongly rejected, there was a wrong decision on a question of law and the conviction for murder was set aside. There was, however, ample evidence against the male appellant at the conclusion of the prosecution’s case which the jury, on a proper direction, could have convicted him. But as the submission of “no case” against the female appellant was wrongly overruled, she went into the witness-box and testified in a manner incriminatory of the male appellant. It was held on the authority of R. v. Abbot [1955] 2 Q.B. 497, C.C.A. that all the evidence given by the female appellant in the witness box should be disregarded as she was not properly in the case. Even if this was done, there would still have been sufficient evidence against the male appellant including his own statements to the police. But as the judge did not direct the jury to exclude the female appellant’s evidence against the male appellant but directed that it was evidence albeit of an accomplice, there was a misdirection in law. When the court was invited to apply the proviso, it declined to do so in the following words at p. 189:
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“We consider this a serious misdirection and cannot speculate the effect this misdirection would have had on the minds of the jury so as to be able to say that a substantial miscarriage of justice in the circumstances had not actually occurred within the proviso to section 10 (1) of the Court of Appeal Ordinance, 1957.”
The court proceeded to quash the conviction of the male appellant as well.
There is no need to multiply case law. These cases fairly typify the attitude of our courts when asked to apply the proviso. It harmonises with English judicial approach. Whether the invitation to apply the proviso was occasioned by misreception of evidence or serious misdirection, the attitude is the same, namely, the court must be satisfied that if the offending evidence is excluded or on a proper direction, it must be possible to say the jury must inevitably, or as the other phrase is, would certainly have returned the same verdict. If it is not possible to say this, cadit quaestio, the conviction goes.
The final question is: if the inadmissible evidence led in this case had been excluded, would the jury have inevitably found the appellants guilty of murder? In so far as this question admits an answer, we think if the damning hearsay evidence had not been led, the jury may well have acquitted the appellants, or at best for the Republic, it is not possible to say, they certainly would have convicted. Either answer entitled us to decline the Republic’s invitation to apply the proviso and sustain the convictions.
True, the circumstantial evidence led by Yaa Donkor was inherently credible and was of high probative value. But it was not entirely free from difficulties. Although Yaa was certain that what she saw the appellants carry in the direction of the refuse dump was a human body and although she related what part of the body each appellant held, two police officers were certain that what Yaa told them was that she saw the appellants carry “something” towards the dumphill. And this was after Yaa herself visited the refuse dump and saw Dei’s body. But Yaa insisted that she told the police she saw the appellants carry a human body. Which of these contradictory stories, the jury believed, is a matter for conjecture. By the time Yaa visited the refuse dump and saw the body, the police were already there and it cannot have escaped her that the police would be interested in her story. But she chose then to travel out of Kadjebi and did not return till about five or six days afterwards. She gave as an explanation of her conduct, the fact that she had to travel because of a chronic stomach ache. What the jury made of this explanation, there is no means of knowing.
It was suggested by counsel for the appellants that the jury may well have disbelieved her or at least, would have felt disinclined to convict on her lone circumstantial evidence. This is not improbable. We cannot go along with the contention of counsel for the Republic that aside of the seemingly direct hearsay evidence, there was ample circumstantial evidence from which, on a proper direction, the jury could not but convict. On the
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contrary, we think that evidence, far from being ample, was exiguous. In those circumstances we must conclude that the damning hearsay evidence deprived the appellants of a fair chance of acquittal or at least, it is not possible to say whether without it, the jury would inevitably have found the appellants guilty.
We fully appreciate that in view of the result we have reached, guilty persons may well be escaping justice. If this be so, we cannot but regret it. But our duty is to do justice not according to our own lights but in accordance with the law as we conceive it.
The appeals are allowed and the convictions of all the appellants are quashed. In lieu thereof, we direct that a judgment and verdict of acquittal be entered in each case.
All the appellants are discharged.
DECISION
Appeal allowed.
Conviction quashed and appellants acquitted and discharged.
