COURT OF APPEAL, ACCRA
Date: 3 APRIL 1974
ARCHER JA
CASES REFERRED TO
(1) Idrisu Gonja v. The State [1964] G.L.R. 573, S.C.
(2) R. v. Baskerville [1916] 2 K.B. 658; 86 L.J.K.B. 28; 115 L.T. 453; 80 J.P. 446; 60 S.J. 696; 25 Cox C.C. 524; 12 Cr.App.R. 81, C.C.A.
(3) R. v. Bryant (1917) 13 Cr.App.R. 49, C.C.A.
(4) R. v. Ahenkora and Badu [1960] G.L.R. 160, C.A.
(5) R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, C.C.A.
(6) R. v. O’Donnell (1917) 12 Cr.App.R. 219, C.C.A.
(7) R. v. Mason (1924) 18 Cr.App.R. 131, C.C.A.
(8) Obeng v. The Republic [1971] 2 G.L.R. 107, C.A.
NATURE OF PROCEEDINGS
APPEALS against convictions for murder entered by the High Court sitting with a jury. The facts are sufficiently stated in the judgment of Archer J.A.
COUNSEL
Amarfio for the first appellant.
Offeh for the second appellant.
Asiamah for the third appellant.
Okyere-Boateng for the fourth appellant.
Asamoah, Senior State Attorney, for the respondent.
JUDGMENT OF ARCHER JA
On 17 April 1969, Saviour Gawuga, a typist employed at the Anlo Secondary School at Anloga, in the Volta Region, attended a wake-keeping with some friends living in the same house at Anloga Kportorgbe. They returned home at about 11 p.m. the same day and each went to his bedroom to sleep. The next morning, Saviour Gawuga could not be found in his bedroom but there were traces of blood on the verandah leading to the bedroom.
Three days later, in the afternoon of 20 April 1969, a school teacher at Dzelukope, found a dead body at the beach. This body was later identified to be that of Saviour Gawuga. The medical evidence indicated that death had occurred within 72 hours and the body was in an advanced stage of decomposition. The medical evidence ruled out the possibility
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of drowning because there was no water in the lungs. There were extensive injuries on the body which in the opinion of the doctor, who performed the autopsy, must have been caused by a sharp instrument. When the body was found on the beach, the eyes were missing, the tongue had been cut out, parts of the upper and lower lips had been severed and the flesh around both cheeks had been cut away and the intestines were protruding from a wound in the abdomen.
After police investigations, five persons including the four appellants were charged with the murder of the deceased. At the close of the case for the prosecution, the fifth accused was acquitted and discharged for lack of evidence. The four appellants opened their defence and denied the charge. The third and fourth appellants relied on an alibi. Nevertheless, after a careful summing-up the jury returned a verdict of guilty of murder against all of the four appellants. Each of them appealed to this court and was represented by separate counsel.
The common ground of appeal was that the verdict of the jury was unreasonable having regard to the evidence led in court. What was the evidence led by the prosecution? The first appellant (Prosper) and the second appellant (Wisdom) are brothers and they lived in the same house as the deceased. The third appellant (Alfred) and the fourth appellant (Clemence) are cousins but they lived elsewhere in the same town. The distance between the fourth appellant’s house and that of the first appellant is about 130 yards.
During the night of 17 April and in the early hours of 18 April 1969 the second appellant’s wife called Ehie Vudo was sleeping with her children in the house where the deceased (also known and called teacher) lived. This woman testified that while she was asleep she heard noises as if a door was being knocked and banged. When she got up and opened her door, she heard the deceased shouting “Clemence, Clemence, witchcraft. Dzogbede, Dzogbede, wizard, you are a fool.” She was emphatic that the exclamation came from the deceased’s room and that the voice was that, of the deceased. Later it was all silent and quiet. She therefore opened her door again to see what was happening. She then saw the four appellants—two of them by the head and two by the feet—of the deceased who was lying on the verandah in front of his bedroom. There was a torchlight on the floor by him. She approached the scene and asked “Oh, teacher what has happened?” Thereupon, the first appellant, her brother-in-law, ordered her to vanish. She left the scene and went to the entrance of her room but the first appellant pursued her and ordered her to go to bed. She did not but rather sat down and saw the four appellants carry away the body of the deceased. Afterwards, the first appellant came to her and issued the following commandment to her, “If you see, you don’t see. If you hear you don’t hear.” She then went to bed but later heard the movement of a vehicle after the deceased had been carried away from his apartment. From her evidence, what she saw happened before the cock crowed in the morning of 18 April. Later in the day, her husband, the second appellant, after his return from his farm, also warned her to deny seeing or hearing anything that transpired that night. She therefore
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kept quiet and refused to break her silence to the police even after she had been arrested and kept in the cells. However, she broke her silence to the police when she got to know that the body of the deceased had been found.
The second prosecution witness was one Hassan Yaro who worked in the kitchens at the Anlo Secondary School and lived in the same house as the deceased. He was one of the friends who together with the deceased attended the wake-keeping that night in the town and returned home with the deceased at 11 p.m. on 17 April. His evidence was to the effect that while he was sleeping he heard footsteps and a voice, which sounded like that of the first appellant, saying “Open the gate quickly.” The room of Hassan Yaro is about eight yards from this gate. He woke up and opened his door out of curiosity. He then saw the first appellant, the second appellant and the third appellant carrying something that looked like a human being. The gate was opened but this witness did not see who opened it. There must have been therefore a fourth person whom this witness did not see. When he woke up in the morning, he went to the deceased’s room and found blood at the entrance and other drops in the compound.
Another prosecution witness, Emmanuel Doe Attipoe, then a student at the Anlo Secondary School and who lived in the same house, testified that in the morning of 18 April 1969, Ehie Vudo, the wife of the second appellant, asked him whether he heard what happened during the night. Attipoe replied that he heard nothing. He therefore called Hassan Yaro to come and listen to Ehie Vudo. At this juncture, it appears this woman transgressed the edict issued by both the first and second appellants to keep her mouth shut. Instead she let the cat out of the bag. As a result of her revelations, Attipoe and Yaro reported the matter to one Lawuluvi, a teacher at the Anlo Secondary School, who decided to report the matter to the police. On the way, they met the first appellant who, on being confronted with the disappearance of the deceased, said that during the previous night at 9.30 p.m. he heard the deceased say as follows, “Tailor Dzogbede, Clemence Adzraku, Godfrey Adzraku, we are all friends why are you taking my intestines.” The first appellant said further that at 2.45 a.m., he heard the deceased open his door and the main gate. When he chased him the deceased was nowhere to be found. The first appellant was sent to the police station where he repeated the same narrative to the hearing of the police officers on duty at the station. In effect the first appellant was exonerating himself and his brother, the second appellant, but he was incriminating the third and fourth appellants and the fifth accused.
Each of the four appellants gave evidence and explained their activities and movements during the evening of the 17 April and the morning of 18 April. The third and fourth appellants brought their wives to give evidence to establish their plea of alibi raised during their evidence. The jury rejected these pleas. It seems to me that the jury must have found these women to be liars. Take for instance, the evidence of the wife of the fourth appellant. While the husband testified that she sold crabs and that
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she had never travelled to Accra before his arrest and that she had been with him every night, yet the wife stated on oath that she sold onions and worked on onion farms and that before her husband’s arrest she used to travel to Accra and stayed away on one occasion continuously for a period up to four months. This conflict must have created a very bad impression and the jury must have given them nil marks for their credibility.
Although the alibi failed, yet the prosecution had to prove its case beyond reasonable doubt: see Idrisu Gonja v. The State [1964] G.LR. 573, S.C. The star prosecution witness was the second appellant’s wife who gave evidence incriminating all the four appellants because she actually saw them by the body of the deceased on the verandah and later saw them carrying it away from the house. The other witness was Hassan Yaro who gave evidence incriminating the first, second and third appellants.
It has been strongly urged before this court that the second appellant’s wife was an accomplice and her evidence should have been corroborated. This argument no doubt stems from the fact that in the summing-up the learned trial judge did, in express words, direct the jury to treat Ehie Vudo as an accomplice and therefore her evidence must be corroborated. Even if the jury did find that she was an accomplice, was there corroboration? There was Hassan Yaro’s evidence corroborated her evidence as regards the first, second and third appellants’ involvement in the crime. So far as the fourth appellant’s case is concerned, Hassan Yaro did not say that he saw him but he testified to the effect that when the first appellant shouted “Open the gate quickly,” the gate was opened while the first, second and third appellants carried the object like a human being through the gate. In other words, there must have been a fourth person who might have opened the gate—a factor which tends to confirm Ehie Vudo’s evidence that she saw four persons by the body on the verandah. Moreover there was the evidence of Gbekle Sovi, the driver who lived behind the deceased’s house. During the night in question, he heard someone shouting “Kwakuga, Clemence, what have I done?” This witness did not see who shouted but his evidence tends to confirm the evidence of Ehie Vudo that during the night the deceased shouted the names of those who had attacked him. The second appellant’s wife’s version was that she heard the deceased shout, “Clemence, Clemence, witchcraft, Dzogbede, Dzogbede, wizard, you are a fool.” In effect, two persons heard the name of “Clemence” being shouted; one of them actually did see “Clemence” at the scene. There was no evidence before the court that there was another “Clemence” in the town. Moreover the wife of “Clemence” had through inconsistencies in her evidence with that of her husband’s damaged her husband’s plea of alibi. In such a case, what does one expect a jury of seven sane and reasonable persons to decide — whether the evidence of Ehie Vudo has been corroborated or not?
The practice of an appellate criminal court has been clearly stated in the cases of R. v. Baskerville [1916] 2 K.B. 658, C.C.A. and R. v. Bryant (1917) 13 Cr.App.R. 49, C.C.A. on the question of the corroboration of an accomplice’s evidence; that is, where there is a proper caution, in considering whether the conviction should be allowed to stand, the court
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on appeal will review all the facts of the case, bearing in mind that the jury had the opportunity of seeing and hearing the witnesses, and will quash the conviction if it thinks tie verdict is unreasonable or one that cannot be supported by the evidence. The question before this court is whether in view of the whole evidence, it is open to the court to disturb the verdict. That question can best be answered after considering one aspect of the summing-up which was rather unusually favourable to the appellants. In his summing-up, the learned judge stated as follows:
“As a rule of practice it is held to be unsafe for a jury to act on the uncorroborated or unconfirmed evidence of an accomplice. In the instant case we find that the witness, Ehie Vudo, is the wife of the second accused living in the same house where the crime was allegedly committed. A police officer, Blewoda, told you Ehie was detained as a suspect in police hands. Again when one considers the events of the night, whereas there is evidence that the name of the first accused had been uttered in the night, she didn’t hear it. Again she did not tell of what transpired till later. In those circumstances, innocently or otherwise, she is so closely connected with the events of the night that for the fair administration of justice she must be regarded as an accomplice, and I do so direct you. Consequently you must look for other evidence to confirm her story.”
I must confess, with great respect to the learned trial judge, that in directing the jury to regard Ehie Vudo as an accomplice, he did usurp the function of the jury as judges of the facts. The law on the point in this country is clearly stated in R. v. Ahenkora and Badu [1960] G.L.R. 160 at p. 165, by the then Court of Appeal constituted by Korsah C.J., van Lare and Granville Sharpe JJ.A.:
“ [W]hether a witness is an accomplice or not is a question of fact for the jury, and not a matter of law for the judge to determine, for it is an inference to be drawn from the facts established by the evidence. In drawing the inference, the jury (or a trial court without a jury) will undoubtedly—and quite properly—be guided by the impression which it receives from the demeanour of the witnesses; indeed, where there may be room for either one conclusion or the other, this may well be the deciding factor: C.O.P. v. Sampson and others (unreported, W.A.C.A., 4 June 1947).”
The same principle is stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), p. 480, para. 1294:
“In a case where it is not clearly established that the witness was a participant in the particular crime, but there is evidence on which a jury could find that he was, the issue of ‘accomplice vel non’ is for the jury.”
On the other hand, where a number of accused persons have been charged jointly for committing an offence and one of them pleads guilty and he is later used as a prosecution witness against the rest, he is admittedly an accomplice because there is no issue about that and the judge must in
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emphatic words direct the jury to treat him as such and furthermore to find corroboration or confirmation of his evidence. See R. v. Bryant (1917) 13 Cr.App.R. 49 at p. 51, C.C.A. where Lord Reading C.J. said, “Although a judge may express his view on the demeanour of a witness, when he is dealing with an accomplice he must point out that the jury should deal with his evidence with caution and weigh it carefully.”
But it seems to me that in the present appeal, it was not clear that Ehie Vudo was an accomplice and I think the learned trial judge should have left it to the jury. It may be argued that a judge is at liberty to express his opinion on the evidence but there is a well-established limitation to this liberty. In R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197 at p. 208, C.C.A. the following passage by Channell J. is relevant: “In our view, a judge is not only entitled, but ought, to give the jury some assistance on questions of fact as well as on questions of law. Of course, questions of fact are for the jury and not for the judge, yet the judge has experience on the hearing of evidence, and in dealing with the relevancy of questions of fact, and it is therefore right that the jury should have the assistance of the judge. It is not wrong for the judge to give confident opinions upon questions of fact. It is impossible for him to deal with doubtful points of fact unless he can state some of the facts confidently to the jury. It is necessary for him sometimes to express extremely confident opinions. The mere finding therefore of very confident expressions in the summing-up does not shew that it is an improper one. When one is considering the effect of a summing-up, one must give credit to the jury for intelligence, and for the knowledge that they are not bound by the expressions of the judge upon questions of fact.”
Again in R. v. O’Donnell (1917) 12 Cr. App. R. 219 at p. 221, C. C. A. Lord Reading C.J. put the limitation in this manner:
“[I]t is sufficient to say, as this Court has said on many occasions, that a judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. A judge obviously is not justified in directing a jury, or using in the course of his summing-up such language as leads them to think that he is directing them, that they must find the facts in the way which he indicates.”
Lord Hewart C.J. in R. v. Mason (1924) 18 Cr.App.R. 131 at p. 132, C.C.A. put a seal on this principle when he said:
“No doubt, it is proper for a judge, in dealing with evidence, to express, sometimes strongly, the view that the facts ought to be dealt with in a particular way, or that certain evidence ought not to be accepted, but when the judge does so express his own personal views, that expression should be accompanied by a clear and unequivocal warning that it is the function and the responsibility of the jury to decide whether the evidence is to be accepted or not. Cases have been cited, which make it quite plain that in so doing the judge would
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not exceed his powers, but that is a different thing from saying, on a crucial part of the case: ‘I invite you to take such and such a course.’ The idea of ‘inviting’ a jury is suited rather to an advocate than to a judge.”
I have gone to great length in citing these passages from three great learned judges, not because I wish to be unduly censorious of an undoubtedly fair summing-up, but because of the absence of any direction to the jury that the judge’s own opinion, that Ehie Vudo was an accomplice, was not binding on the jury and that they should make up their own minds on that issue, having regard to the evidence before them.
But was Ehie Vudo an accomplice? She could not have been because of the complete lack of evidence that she was a particeps criminis. The circumstances relied on by the trial judge do not in any way suggest that she was. The mere fact that the police suspected her and kept her in the cells was not relevant. She was a curious spectator who was warned off the scene and ordered to seal her mouth. She did not take part in attacking the deceased. She did not assist in removing the body from the house. The mere fact that she broke her silence later in the police cells cannot incriminate her. In fact, she broke her silence that very morning of the incident when she asked Attipoe whether he heard what happened in the night. It was her conversation with Attipoe and Hassan Yaro that led to the confrontation between the police and the first appellant. Even if she did not say that she heard the name of the first appellant, that should not give rise to suspicion. If there was anybody she had wanted to save, it would have been her own husband, the second appellant, and she would have testified that her husband was not at the scene at all. Why should she exculpate the first appellant and incriminate her own husband the second appellant? For instance the other witness, the driver Sovi heard the names “Kwakuga” and “Clemence” and incidentally Kwakuga is the first appellant. Therefore, the fact that she did not say that she heard the name of the first appellant did not matter. What she saw was more important.
The suggestion that she was an accomplice emanated from counsel for the appellants but counsel for the prosecution in his address stressed that there was no evidence to connect her. Mere suspicion was not enough to make her an accomplice. Since whether she was an accomplice or not became an issue because of the submissions of both learned counsel the learned trial judge should have left it to the jury. Indeed, in the summing-up, the learned trial judge qualified his opinion by saying “in those circumstances, innocently or otherwise, she is closely connected with the events. The question I wish to pose is whether one can “innocently” be an accomplice when one has not participated in the commission of a crime. This meant that it was not clear that she was an accomplice even in the judge’s own opinion and he should not have categorically directed the jury to regard her as an accomplice. In any case as there was no evidence to connect her with the crime, it would have been in order if the learned trial judge had refused to direct the jury that she was an
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accomplice: see Obeng v. The Republic [1971] 2 G.L.R. 107,C.A. Looking at the evidence critically, it seems to me that the second appellant’s wife was not an accomplice in the legal sense and her evidence required no corroboration.
Nevertheless, it is not possible to discern how the jury treated her. If they refused, notwithstanding the direction in the summing-up, to treat her as an accomplice, then they were correct in taking that course. On the other hand, if they followed the trial judge’s opinion, then looking at the evidence as a whole, her evidence was sufficiently corroborated to secure, justly and fairly, the conviction of the four appellants.
For the reasons I have given, I would dismiss the appeal of each of all the appellants.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.
I also agree.
DECISION
Appeal dismissed.
K.T.
