COURT OF APPEAL
DATE: 12 MAY 1967
BEFORE: OLLENNU, AZU CRABBE AND LASSEY JJ.A.
CASES REFERRED TO
(1) State v. Lawmann [1961] G.L.R. (Pt. II) 698, S.C.
(2) R. v. Gyamfi [1960] G.L.R. 45, C.A.
(3) R. v. Clayton-Wright [1948] W.N. 392; [1948] 2 All E.R. 763; [1949] L.J.R. 380; 112 J.P. 428; 64
T.L.R. 543; 92 S.J. 648; 47 L.G.R. 48; 33 Cr.App.R. 22; 82 L1.L. Rep. 7, C.C.A.
(4) R. v. Golder; R. v. Jones; R. v. Porritt [1960] 1 W.L.R. 1169; 45 Cr.App.R. 5; 124 J.P. 505; 104
S.J. 893; [1960] 3 All E.R. 457, C.C.A.
NATURE OF PROCEEDINGS
APPEAL from a conviction for murder in a trial before Sowah J. sitting with a jury in the High Court, Ho, on 18 October 1965. The facts are sufficiently set out in the judgment.
COUNSEL
B. J. da Rocha for the appellant.
K. Gyeke-Dako, Principal State Attorney, for the respondent.
JUDGMENT OF AZU CRABBE J. A.
Azu Crabbe J.A. delivered the judgment of the court. The appellant was convicted in the High Court, Ho, on 18 October 1965, before Sowah J. sitting with a jury, for the murder of one Emmanuel Kodjoe Agbobli at Ativi Cottage in the Volta Region on 31 October 1963. That the deceased died from gun shot wounds was not disputed, and according to the doctor who performed the post-mortem examination, the shots must have been fired from the right side of the deceased and were at close range. The events out of which the charge arose relate to land litigation between the Chief of Dapaa, Nana Kwaku Gyampoh III and the appellant, the Omanhene of Dodo Amanfro. On 17 July 1962, Nana Gyampoh III obtained judgment in a case, and the appellant, having appealed from that judgment to the Supreme Court, applied to that court on 3 March 1963, for an interim injunction, and for the appointment of a receiver and manager. The appellant’s application was granted, and Mr. E. S. Jeffrey, then the High Court registrar at Ho, was appointed receiver and manager of the proceeds accruing from the disputed area. Mr. Jeffrey in turn appointed as his agent one Kwadade the first prosecution witness, and instructed both contending parties to
[p.312] of [1967] GLR 310
appoint three persons each to assist his agent in the performance of his duties. The appellant at first expressed dissatisfaction with the appointment of Kwadade, but later he made his nominations. Nana Gyampoh III also nominated three persons, including the deceased. On 8 October 1963, Kwadade and the deceased were summoned to the house of the appellant, and after the appellant had remonstrated with Kwadade for operating outside the area prescribed in the order of the Supreme Court, the appellant further told him in a fit of anger that if he did not restrict himself to the court’s order he would be opposed by his (appellant’s) group. The Mankrado of the appellant was alleged to have threatened to shoot Kwadade and Nana Gyampoh’s men down “like monkeys.” On 31 October 1963, Kwadade, accompanied by the deceased, one Achiampong the second prosecution witness and also Onima the eleventh prosecution witness as well as other prosecution witnesses, went to Ativi Cottage where they met the appellant and other persons. Kwadade informed the people in the cottage that they had come there in pursuance of the court’s order. The appellant told Kwadade and his men that the area in which they were was not included in the order of the court and that he was willing to show them the proper boundaries. But Kwadade would not agree to this suggestion. The appellant then left the cottage. Realising the hostile attitude of the appellant, Kwadade sent for police protection and also for one Ackumey, the sixteenth prosecution witness, to take photographs. The appellant soon returned to the cottage accompanied by his driver, one George Mensah, and there was a heated altercation between the appellant and Kwadade and his men. The appellant then left the cottage again in an angry mood. Some time later the appellant returned to the cottage for the third time holding a cutlass and saw Kwadade, the deceased and other labourers collecting cocoa. The appellant asked them to stop the collection, but Kwadade gave no heed, and told the labourers to go ahead with their work. Then the appellant raised his cutlass over his head and as soon as he brought it down there was the report of a gun. Kwadade who was sitting on a wall was hit by pellets from the gun, and was grievously injured. The rest of the people present ran helter-skelter, and according to the evidence of Achiampong and Onima they both ran in the same direction, with the deceased running at a certain distance to the right of Achiampong, and Onima on his left side. Achiampong testified that as they were running he turned back and saw the appellant running after them, but that he (appellant) was nearer to the deceased. He shouted and informed the deceased of the nearness of the appellant, and as the deceased turned to see he was shot by the appellant. Onima also gave similar evidence, describing
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their running formation, and how the shot was fired by the appellant. Both Achiampong and Onima said that they ran to Dapaa and informed the Dapaahene, Nana Kwaku Gyampoh III, who took them to the police station. The evidence of the prosecution that the appellant was the killer of the deceased was based substantially on the evidence of Achiampong and Onima. There was also the evidence of Kwadade who said that after the first shooting he saw the labourers running and the appellant chasing the deceased.
The appellant denied that he ever fired a gun on that day, and said that the evidence of Achiampong and Onima was a fabrication by these two witnesses to get him into trouble. He said that after the shooting at Ativi Cottage he ran away to his house, changed himself, and went to the police station, where he made a report. The police inspector in charge of Dodi Papase, the fifth prosecution witness, said that on the day of the incident at about 2.30 p.m. the appellant came to the police station and made a report. He said that the appellant reported that whilst Kwadade and his men were trying to collect his cocoa and he in turn was trying to stop them, somebody from the outskirts of the cottage shot at them, and that those in the cottage ran away, and he also ran away. The inspector said he thereupon detained the appellant, and then went to the scene of the crime. An escort police sergeant who gave evidence for the prosecution said that at about 2 p.m. on that day, whilst he was on patrol duty some distance from Ativi Cottage, one Jatto Zabrama made a report to him, and as a result he proceeded to Ativi Cottage. He was there when the inspector from Dodi Papase arrived and they found the dead body of the deceased. Jatto Zabrama did notgive evidence.
There is no evidence by any of the police witnesses that either Achiampong or Onima made a report on the day of the incident. The evidence of the appellant was supported by his only witness, Vincent Ocloo Kofi of Dode Fie. Both Achiampong and Onima were cross-examined closely by counsel for the defence at the trial on statements which they had made to the police. It would appear that Achiampong made two statements to the police, one on 7 November 1963 and another on 12 November 1963. In his evidence Achiampong said: “When we were running, I looked behind so and saw that the accused was chasing us on our right side, Agbobli was nearest the accused, I was next and Onima was on the other side of me. I shouted to Agbobli that the accused was chasing us with a gun. The accused crossed Teacher Agbobli who was then a bit ahead of me, aimed at Agbobli and shot him, Agbobli shouted that, ‘I am dead’”.[p.314] of [1967] GLR 310
In his statement of 7 November 1963, Achiampong is recorded as saying, “Whilst we were running away, Nana Bissah suddenly came out from a part of the farm with a gun in his hands. He raised up the gun, aimed and shot at Agbobli.” In the statement of 12 November 1963, Achiampong said: “Further to my statement dated 7 November 1963, I have to state that Nana Kwaku Bissah came out of the farm on our right hand side when he shot at Agbobli who was then on my right hand side. . .” On careful examination of the evidence on oath and the extra judicial statements we have discovered some discrepancy. In his sworn testimony Achiampong spoke of the appellant chasing them with a gun and getting ahead of them before shooting the deceased. In his two statements, to the police he said that the appellant suddenly emerged from the farm and fired. The difference between the sworn testimony and the extra judicial statements is that whilst in the former he said the appellant chased and overtook them, in the latter he said he did not see the appellant chasing them but that he suddenly appeared from a part of the farm.
It does not appear that the statements of 7 and 12 November were tendered in evidence, and this accounts for the fact that they have not been marked as exhibits. We therefore are unable to understand how they were included in the record. The object of cross-examining Achiampong on his previous statements was to show that his testimony was in conflict with those statements, and that he was not a truthful witness. We are of the opinion that in these circumstances counsel for the defence was not obliged to put the statements in evidence, even if he showed them to the witnesses, but he should have done so if he wished to use the statements to contradict the witness with them, so that the witness could have the opportunity to explain the contradiction.
Describing the circumstances leading to the shooting Onima also deposed as follows: “We took to our heels, Agbobli, Kwasi Achiampong and myself took to the same direction. We were running between cocoa trees, we could not therefore run very fast and the cocoa was thick. When we were running, Kwasi Achiampong shouted ‘Teacher’ meaning Agbobli, the accused was coming. I looked round and saw the accused. I saw that Agbobli also looked round; as soon as Agbobli looked round I saw the accused shoot at him, Agbobli shouted, ‘I am dead’ and fell.”The first statement which the witness made to the police was on 6 November 1963, and it was produced in evidence during his cross-examination and marked exhibit 3. The second statement he made
[p.315] of [1967] GLR 310
to the police is dated 12 November 1963, but it was not marked as an exhibit, though it appears in the record. What Onima said in exhibit 3 is not quite what he testified to in court, for in this statement he said: “We were running away. Nana Bissah suddenly came out of a part of the farm on our right hand side with a gun in his hand. I saw him raise up the gun, aim and shoot at Agbobli.” Like Achiampong, Onima says in effect in his testimony that he saw the appellant chasing them, whereas in his statement of 6 November 1963, he stated that the appellant emerged from the side. It does not seem, however, that the statement, exhibit 3, was tendered primarily to contradict the evidence of Onima in its details. The witness had said that he made only one statement when he in fact made two; but more important, he said that he made that only statement on the day after the shooting, that is, on 1 November 1963. The date on exhibit 3 clearly shows that Onima’s evidence that he was at the police station the day after the shooting was false. Indeed, the inspector of Dodi Papase Police Station did not say that Achiampong or Onima went to the station shortly after the incident. We think that the unsatisfactory nature of the evidence of Achiampong and Onima may be due either to a conscious effort to frame the appellant, or to the excessive delay in bringing the appellant to trial. Whether or not the evidence against the appellant is a fabrication was, we think, a question of fact for thenjury, and this court will not disturb the verdict of a jury if there was evidence to justify it. In State v. Lawmann [1961] G.L.R. (Pt. II) 698, S.C. it was said at p. 708: “Where (i) there was evidence to go to the jury, (ii) there has been no serious misdirection or irregularity such as ‘deprives the accused of the substance of fair trial and protection of the law’ and (iii) the verdict isnone which a reasonable jury could arrive at, it is not for us to interfere, even though we may feel, and we do not in this case, that we might have come to an entirely different conclusion ourselves . . .”In this case counsel for the appellant has contended that the learned trial judge misdirected the jury by failing to give them adequate directions on the evidence, particularly that of Achiampong and Onima. He submitted that it was not enough merely to state to the jury the discrepancies which counsel for the defence pointed out in his address. It was the duty of the judge to assist the jury to assess the evidence, and not merely to state the case for the prosecution and that for the defence and then to ask the jury which case they believed. Mr. da Rocha further submitted that it was the
[p.316] of [1967] GLR 310
function of the judge to point out to the jury circumstances which should make them believe or not believe the prosecution or the defence, and also circumstances which in law reduce the weight of the evidence.
On a consideration of the summing-up as a whole we are satisfied that Mr. da Rocha’s criticisms are well founded. All that the learned trial judge did in his direction to the jury on the evidence was to narrate to them the facts and to tell them that the main issue in the case was the identity of the appellant as the killer of the deceased. He then told the jury: “Counsel for the defence has gone over the evidence with you, he has told you not to accept the evidence of the prosecution for the following reasons…” The trial judge then tabulated the six main reasons, and the three other grounds on which counsel for the defence submitted the jury ought to reject the evidence of Achiampong and Onima. The learned trial judge then told the jury: “The crucial issue before you centres upon whether or not you accept the evidence given by the second prosecution witness Achiampong and the eleventh prosecution witness Onima. You will have to ask yourselves whether they are lying or not and it is upon the answer that you will give yourselves that you can come to a decision. The prosecution has put them forward as witnesses of truth, the defence has shown you reasons why they cannot be witnesses of truth, if you consider that these two witnesses are not witnesses of truth then the prosecution has not proved its case. If you are doubtful as to whether they are speaking thetruth or not then the prosecution have not proved its case. Counsel for the defence has endeavoured to show you the inconsistencies in their story and reasons why you should not accept their story. It is entirely up to you to decide on this issue, but in deciding you must take into consideration the totality of the evidence.” With all due respect to the learned trial judge, we do not think that a direction to a jury is adequate if it merely tells them what the main issue is and then asks them to decide for themselves which witnesses have told the truth about it. The duty imposed upon the judge by section 277 of the Criminal Procedure Code, 1960 (Act 30), is to sum up the law and the evidence. It is the duty of the judge to expound the law to the jury, and to explain the charge to them and tell them what matters should be proved to their satisfaction to constitute the offence. The direction on the law must have regard to any presumptions in law, and must explain such matters as accomplices and corroboration. The judge should deal with the law only in so
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far as it bears on the evidence led in the case. It is essential that the judge should not mislead the jury on the facts. His duty is to state carefully the evidence to the jury and point out the salient points in the evidence, and how they bear for or against the accused. As the judge proceeds with the statement of the evidence he should call the jury’s attention to discrepancies and inconsistencies, pointing out generally how far these are favourable or unfavourable to the accused. The jury are not necessarily men of any intellectual powers, and it is the duty of the judge to dissect the evidence for them, sift and marshal the facts, so as to assist them in their task of evaluating the evidence. He must give a fair picture of the defence, however weak or improbable it may be; he is also bound to put before the jury a case for the accused arising fairly on the evidence, whether or not such case is raised by or on behalf of the accused. In fairness to the learned trial judge we think that his direction on the law is unexceptionable, but with regard to the evidence, we think, with great respect, that his direction did not make the grade, for he failed to sift and marshal the evidence in a way as would assist the jury in their appraisal of the evidence: see R.v. Gyamfi [1960] G.L.R. 45 at p. 52, C.A. As Lord Goddard C.J. pointed out in R. v. Clayton-Wright (1948) 33 Cr.App.R. 22 at p. 29, C.C.A.: “Misdirection is said to exist not only in an active misstatement of evidence or of law but in failure to direct a jury on a point on which they ought to receive direction.” In our view the learned judge’s failure to direct the jury on the discrepancies between the evidence of the principal prosecution witnesses and their statements to the police amounted to a misdirection. Had he considered it his duty to direct the jury on the discrepancies, he would have been obliged to direct them not only to disregard the evidence of Achiampong and Onima as unreliable, but that the previous statements did not constitute evidence upon which they could act: see R. v. Golder [1960] 1 W.L.R. 1169, C.C.A. We are unable to say that the verdict of the jury would, without doubt, have been the same had they been properly directed on the conflicts between the sworn evidence and the police statements.
There is also another important aspect of the evidence which does not appear to have received any attention by the learned trial judge. As we have said earlier in this judgment, the real object of tendering exhibit 3 in evidence was to contradict Onima that he reported to the police or even went to the police station on the day following the shooting incident as he alleged. The only evidence on record showing the date on which he went to the police station was provided by exhibit 3, his statement dated 6 November 1963
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There is also no evidence that Achiampong went to the police earlier than 7 November 1963, when he made his first statement. Where the prosecution put forward as witnesses those who saw the commission of the offence charged, their evidence must be regarded with some suspicion if it is shown that they hadbeen tardy in making a complaint to the police, unless the delay is satisfactorily explained. In this case no explanation was offered why Achiampong and Onima did not report the murder to the police promptly but waited until about a week later before they did so. Delay in making a complaint affords opportunity for witnesses with their own purpose to serve to concoct evidence, and we think that it was incumbent upon the trial judge to direct the attention of the jury to this delay and the absence of evidence explaining it. We note that the appellant rather went to the police station on the same day and made a report about the shooting incident that preceded the killing of the deceased. The appellant was arrested on 31 October 1963, but it was not until 30 August 1965, that he was committed by the district magistrate. We think that it is scandalous that a person arrested on suspicion of having committed murder should be kept in custody without trial for nearly two years after the commission of the offence alleged. The danger in this delay by the prosecution is that the witnesses are apt to forget the details of the facts, and there will be a tendency to exaggerate. Delay of trial is denial of justice. We have ourselves carefully considered the whole of the evidence, as well as the circumstances and delay by the prosecution witnesses in making complaint to the police, and in starting prosecution, and we do not think that it is safe to allow the conviction for murder to stand. We therefore allow the appeal and set aside the conviction and the sentence of death passed upon the appellant at the trial. The appellant is accordingly acquitted and discharged.
DECISION
Appeal allowed.
T. G. K.
