COURT OF APPEAL, ACCRA
Date: 17 DECEMBER 1973
AZU CRABBE CJ
CASES REFERRED TO
(1) Dombo v. Narh, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 68.
(2) R. v. Beresford (1971) 56 Cr. App. R. 143, C.A.
(3) R. v. Stafford and Luvaglio [1968] 3 All E.R. 752n; 53 Cr. App.R. 1, C.A.
(4) R. v. Coney (1882) 8 Q.B.D. 534; 51 L.J.M.C. 66; 46 L.T.307; 46 J.P. 404; 30 W.R. 678; 15 Cox C.C. 46, C.C.R.
(5) R v. Thomas [1959] 1 W.L.R. 1086; 123 J.P. 533; 103 S.J.813; [1959] 2 All E.R. 522n; 43 Cr. App. R. 210, C.C.A.
(6) James v. R. (1970) 55 Cr. App. R. 299, C.A.
(7) Boateng II v. The Republic [1974] 1 G.L.R. 214, C.A.
(8) R. v. Gyamfi [1960] G.L.R. 45, C.A.
(9) Sparks v. R. [1964] A C. 964; [1964] 2 W.L.R. 566; 108 S.J. 154; [1964] 1 All E.R. 727, P C.
(10) Chan Wei Keung v. R. [1967] 2 AC. 160; [1967] 2 W.L.R. 552; 111 S.J. 73; [1967] 1 All E.R. 948; 51 Cr. App. R.257, PC.
(11) R. v. Sartori [1961] Crim. L.R. 397.
(12) R. v. McLintock 112 L.J. 11; [1962] Crim. L.R. 549, C.C.A.
(13) R. v. Cave 107 S.J. 177; [1963] Crim. L.R. 371, C.C.A.
(14) Wendo v. R. (1964) 109 C.L.R. 559.
(15) Commissioner of Police v. Asamoah (1958) 3 W.A.L.R. 458,C.A.
NATURE OF PROCEEDINGS
APPEAL from conviction for murder entered by Charles Crabbe J. sitting with a jury in the High Court, Accra. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Kwaku Bonsu (Degbe with him) for the first appellant.
Agbesi (led by Dei-Anang) for the second, third, fourth, fifth and sixth appellants.
S.E. Asamoah, Senior State Attorney, for the Republic.
JUDGMENT OF AZU CRABBE CJ
Azu Crabbe C.J. delivered the judgment of the court. The appellants were convicted at the criminal session held at the High Court, Accra, on 29 May 1968, for murder and were sentenced to death by Charles Crabbe J.
The indictment upon which the appellants were charged contained the following:
“First Count
Statement of Offence
Conspiracy to murder: contrary to sections 23 (1) and 46 of the Criminal Code, 1960 (Act 29).
Particulars of offence
Amuzu Azametsi alias Kporku, Ayi Matsiado, Mensah Hukpe, Kwami Hine alias Hateka, Kwami Eyoeze alias Tordzro, Tosine Eyoeze on or about the 29th day of September, 1967 at Kedzi in the Volta Region agreed in committing a crime, namely murder.
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Second Count Statement of Offence
Abetment of a crime, namely murder: contrary to sections 20(1) and 46 of the Criminal Code, 1960 (Act 29). Particulars of Offence
Amuzu Azametsi alias Kporku on or about the 29th day of September, 1967, at Kedzi in the Volta Region procured Ayi Matsiador, Mensah Hukpe, Kwami Hine alias Hateka, Kwami Eyoeze alias Tordzro, Tosine Eyoeze agreed to commit a crime, namely murder.
Third Count
Particulars of Offence
Murder: Contrary to section 46 of the Criminal Code, 1960(Act 29).
Particulars of offence
Ayi Matsiador , Mensah Hukpe, Kwami Hine alias Hateka, Kwami Eyoeze alias Tordzro, Tsoine Eyoeze on or about the 29th day of September, 1967 at Kedzi in the Volta Region murdered Kumade Mensah Zormelo.”
It was a gruesome and wicked murder, and the facts upon which the prosecution relied can be stated as follows: All the appellants and the deceased, Kumade Mensah Zormelo, lived at Kedzi, a fishing village in the Volta Region. They all belonged to one fishing group of which the first appellant was the head. The first appellant was the owner of the fishing nets and he employed the members of the group. In accordance with their usual practice, the group met at the house of the first appellant on 29 September 1967 to examine their accounts for the day, and it came out at this meeting that the time for their yearly sacrifice was at hand. This sacrifice was one of offering to their fetish or god a human-being, so that the fetish might usher them into a bumper fishing season. The deceased, Kumade Mensah Zormelo, was present at the meeting. It would appear that at this meeting a decision was secretly reached by some of the members of the group that the deceased was the one who ought to be offered for the sacrifice. The meeting ended at about 10 p.m., and as the deceased was walking home in the company of the prosecution’s first witness, Michael Kwasi Agbelinawo, and of the fifth and sixth appellants, he was suddenly gripped by the fifth appellant. Michael Kwasi Agbelinawo ran away in fright. The fifth and sixth appellants took the deceased to the house of the first appellant, and there he was killed and buried in a bathroom in that house. The killing was witnessed by the second witness for the prosecution, Sotorwoxoe Nyanya, the wife of the first appellant, and at the trial she gave a lurid account of this gruesome murder. The relevant portion of her evidence is as follows:
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“I knew one Mensah Zormelo. He is now dead. I know how he died. I remember one night when I was in bed, I cannot tell the time, I was lying down in the compound of our house. I saw Ayi,the second accused. I also saw Kwame Hine, the fourth accused, Mensah Hukpe, the third accused and Tosine, the sixth accused and also Amuzu Kporku the first accused. They came into the house and sat down in the bathroom in the house.
Ayi, the second accused, got hold of Zormelo. He was killing him and he asked me to come and act as a fetish priestess in shouting Hoo woo.’ It is a fetish cry. I did as I was told. By then I was standing at the entrance of the bathroom when the incident was taking place. He said I should cry like a fetish to enable him to kill Zormelo with a knife. When Ayi was cutting the throat of Zormelo, my husband, the first accused, was sitting down in the bathroom near them. The third accused dissected the stomach of the deceased. After Ayi had killed him the third accused took the knife from the second accused and took out the intestines of Zormelo. The fourth accused was the one who dug the grave into which the deceased was buried in the bathroom. It was the fourth accused who got hold of the deceased before the second accused killed him. He got hold of the deceased by the waist. When the fourth accused held Zormelo by the waist the second accused was holding the head of the deceased. The deceased was lying down at that time.
The fifth accused was holding the arms of the deceased at the back of the deceased. The sixth accused was holding the feet of the deceased Zormelo. After the killing and removal of the intestines, Ayi the second accused took the enamel pan containing the intestines to make sacrifice. He Ayi, the second accused, said that to me. After Ayi had left, they dug the grave and buried the body. The fourth accused dug the grave and the third accused and the sixth accused and the fifth accused buried the deceased.
Ayi, the second accused, was having the enamel pan by the time they came into the house and into the bathroom. At the time Ayi was killing Zormelo, the enamel pan was under Zormelo to receive the blood of the deceased. After the body had been buried Ayi, the second accused ordered me not to tell anybody of what had happened. I obeyed what he had said and I did not tell anybody. I could not tell all that was in the enamel pan at the time Ayi took it away.
Three days later, they came and took the body away. All the accused persons came and exhumed the body. They put the deceased’s body on a board and covered it with calico and took the body away. The body was exhumed in the night. I was in the house when the body was exhumed and taken away. Later the police approached me and I took them to my house and I showed them where the body of Zormelo was buried. I also took the
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magistrate to the bathroom with the police and they dug the bathroom with the sanitary people. When they dug the bathroom they took a sample of the soil. They also took out a plastic bag with something in it; and also a bottle [plastic bag and a bottle identified]. The plastic bag contained black soil [identified, one plastic bag, two bottles of black soil].”
The story of the prosecution was taken over by the third witness for the prosecution, Kojo Adidivi. He was a member of the fishing group, and he also attended the meeting at the house of the first appellant on 29 September 1967. He said in his evidence as follows:
“On the third day, I was lying down when the first accused came and called me. I was lying down in the company’s yard. It will be about 12.00 O,clock midnight.
He came to call me to go fishing. We do not usually go to fishing at midnight. We normally go at dawn. I pointed that out to him and he became annoyed. He asked me why whenever I am called to work I always challenged him. I did not say anything. I followed him to the beach.
At the beach I saw three persons, the first accused, our leader and head, the second accused and the third accused. They were standing at the beach near a canoe. I saw other people near the canoe itself standing by the canoe. These people were the fourth and fifth accused persons. Kobla Agbenato [identified] and Kwame Hine, Etsey Atakpa, Nani Kumedzro, Kofi Agbedsika and myself [all identified]. They took the boat to the sea. I went with them to the sea. The first, second and third accused did not go with us to sea.
When we were at sea, I told Kwami Hine, the fourth accused that if he were to cast the nets at midnight, it would get missing. He said I should shut up as we were not going fishing to cast the nets. It was at that instant that he told me that they had come to dump into the sea, the body of one member of the group who had died. When he said this I left the paddle and refused to go any further. As a result, he gave me a drink in a glass to take and I refused it. He came from the back of the boat and handed me the drink. He said I should pour libation with the drink. I asked him, pour libation for what? He said I should pour libation and say ‘Mensah Zormelo this is the place for you to rest. If a human being is born and buried, he should not return to life or re-incarnate again.’ As he had threatened me I thereby got the drink and poured the libation. I used the words he had asked me to say. After the libation the fourth and fifth accused persons dropped the deceased into the sea.
We then returned back to shore, parked the canoe, and we went to the second accused’s house and had more drinks. The fourth
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accused then warned us not to reveal anything to anybody. After the warning we dispersed. I saw the sixth accused when we were going to sea. He was behind in the canoe. He went with us to sea.”
The evidence of this witness was substantially confirmed by another witness, Etsey Atakpa the fourth prosecution witness.
The family of the deceased became agitated by the disappearance of the deceased and had in the meantime started making inquiries about him. One Adugba Kofi Fiave, a first cousin of the deceased, went to the beach to look for the deceased. She saw the first and fifth appellants there, and asked them if they knew where the deceased was. The first appellant told her that the deceased had obtained permission to attend a funeral.
On 4 October 1967, the Chief of the Criminal Brigade of the Criminal Investigation of Lome (Arnold Ataklo) received information that a dead body had been found on the seashore, and consequently he invited Dr. Robert Edmond Fiadjoe the seventeenth prosecution witness as well as a photographer, one De Souza Gabriel the sixteenth prosecution witness to accompany him to the beach. There they saw the dead body, and the doctor performed a post-mortem examination. It is important to note at this juncture that Dr. Fiadjoe described himself as a specialist in pathology, and his evidence shows that he had won several academic distinctions. In his evidence the doctor said:
“I performed post-mortem examination on the body. One part was facing down and the other was facing up. There were some cuts on one of the hands. The joints were dislocated at the shoulder. The lower part of the body was also dissected. The limbs were also not in good order. They were swollen. The stomach was opened. There was nothing in it. The cavity between the chest and the abdomen was also empty. The genital organs had been removed. There were cuts on his neck. The head had been cut and broken.
The body was in a state of decomposition. The tips of the fingers had gone white but the nails were there. In my opinion the body may have been in the water for about six days. If this body had been drowned all these things that I have enumerated as not being there would have been there. In my view there must have been foul play so I asked the police to go into the matter. In my opinion the deceased must have been murdered. In my opinion the deceased died before he was put in the sea. I say this because regardless of the number of days the body must have been in the sea and regardless of froth in the sea, in my experience the parts of the body which were missing could not have been missing from the body if the deceased had drowned.
In my report I stated that a little of the lung was to be seen. I examined the small part of the lung which was still there and from this examination came to the conclusion that the deceased
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did not die by drowning. If he had died by drowning, by pressing the bit of the lungs a white substance would have come out in foam. The fingers were white because the body had stayed for so long in the sea. The deceased would be about 40 to 45 years. The body was that of a male person.”
After the post-mortem examination, the Chief of the Criminal Investigation Department caused the body to be buried on the spot, because the relatives of the dead man could not be found.
On 5 October 1967, Adugba Kofi Fiave, accompanied by Paul Adzika Vorwortor, a brother of the deceased, and other relatives of the deceased, went to the office of the Chief of the Criminal Investigation Department at Lome and reported that his cousin, one Kumade Mensah Zormelo, had been missing since 29 September 1967. Consequently, the Chief of the Criminal Investigation Department took the relatives of the missing man to the spot at the beach, where the dead body, which had been buried the previous day, was exhumed. After the body had been identified by Adugba Kofi Fiave in the presence of the other relatives as that of Kumade Mensah Zormelo, it was handed over to them for burial. Giving his evidence at the trial, Adugba Kofi Fiave said:
“When I observed the body certain parts of the body were not there. The flesh on the left arm was gone and the bone was appearing. The flesh had gone on the left leg leaving the bone. The stomach was slit into two in the manner in which a goat is cut. His testicles and his penis were also removed. His left shoulder was severely cut as with a cutlass.”
Adugba Kofi Fiave and his relatives carried the dead body to the Keta Police Station, and then later it was taken to the mortuary. But before it was eventually released to the family for burial, Dr. Francis Victor Akoto Appiah performed another post-mortem examination at the Keta Hospital. Dr. Appiah gave evidence on behalf of the defence but, with all due respect to Dr. Appiah, his evidence has not been of any assistance to this court. Soon police investigation into the murder of the deceased was launched under the direction of Detective Inspector Albert Ableboo Akoetey the fourteenth prosecution witness. Caution statements were collected by Detective Inspector Akoetey from the appellants, and these were recorded in the presence of independent witnesses on various dates. All these statements except exhibit C and D, made by the first appellant, were admitted in evidence after “a trial within a trial” and were marked exhibits E-H and exhibits J-O. In these statements each of the second, third, fourth, fifth and sixth appellants made a clean breast of his complicity in the murder of the deceased.
On 20 January 1968, Detective Inspector Akoetey took Sotorwoxoe Nyanya the second prosecution witness to the house of the first appellant, and there she pointed out the place where the deceased was
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killed. She also showed the place where the body was buried and later exhumed. The spot was dug, and at a certain depth Detective Inspector Akoetey said he saw a bottle filled with some brownish substance, and also a transparent paper wrapped around a brownish substance. These were collected and sent to the Korle Bu Hospital for laboratory examination, and were eventually found to contain human blood.
The first appellant said in his defence that he had no hand at all in the killing of the deceased, and, indeed, he knew nothing about the death. The second, third, fourth, fifth and sixth appellants each repudiated his confessional statement and denied the charges. On 31 January 1973, counsel for the second, third, fourth, fifth and sixth appellants filed a notice of motion praying for leave to call fresh evidence not available to the appellants at the trial. The main ground stated in the accompanying affidavit was that since the conviction of the appellants the record of the evidence had been presented to Dr. W.N. Laing, Professor of Pathology and Head of the Department of Pathology, Ghana Medical School, for his study, and that Dr. Laing had expressed the considered opinion that the medical experts who gave evidence for the prosecution had no professional reasons for making the categorical statements they made in their evidence on the basis of the material presented to them by the police for their examination and opinion. It was further alleged that the trial court was seriously misled in several material particulars in relation to the issues of fact before the jury, namely, (a) the identity of the body examined by the said prosecution expert witnesses; and (b) the time of the death of the body alleged to have been found by the Lome police in relation to which the medical evidence was led by the prosecution. Consequently, as alleged in the affidavit, had the jury had the benefit of Dr. Laing’s opinion they might well have come to the conclusion that the prosecution’s case had not been proved beyond reasonable doubt. In paragraph (16) of the affidavit it was stated: “That the opinion evidence of the medical expert (Dr. Laing), the proof of which is attached hereto as exhibit I, was not available to us at the time of the trial and could not have been available to us after diligent effort.” The affidavit did not, however, state the effort that was made.
The principles upon which this court acts when considering an application for leave to adduce fresh evidence are well settled. In Dombo v. Narh, Court of Appeal, 23 March 1970, unreported; digested in (1970) C.C. 68, I said:
“Now, it is only in exceptional circumstances that this court allows fresh evidence to be adduced on appeal, and the principles upon which the court exercises its discretion to allow fresh or further evidence to be called may be summarised as follows: (i) the evidence must be evidence which was not available at the trial, (ii) it must be evidence relevant to the issues; (iii) it must be credible evidence, i.e. well capable of belief; and (iv) if the evidence is admitted, the court will, after considering it, go on to consider
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whether there might have been a reasonable doubt as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial: R. v. Parks [1961] 1 W.L.R. 1484, C.C.A. See also Ladd v. Marshall [1954] 1 W.L.R. 1489, C.C.A. per Denning L.J. (as he then was) at p. 1491.”
The first question which this court had to consider was whether there was any reasonable explanation for the failure to adduce Dr. Laing’s evidence. To accede to this application, this court has in general to be satisfied that this evidence could not with reasonable diligence have been obtained for use at the trial: see R. v. Beresford (1971) 56 Cr.App.R. 143 at p. 149, C.A. The trial in this case took place in Accra, and the Ghana Medical School is also in Accra. No explanation whatsoever was given why Dr. Laing was not subpoenaed to give evidence for the appellants on such a crucial issue of fact. This court is, therefore, satisfied that the first requirement for the admission of fresh evidence has not been met. Besides, it is not possible in the present case to say that, if the jury had heard Dr. Laing’s evidence, the result might have been different. As Edmund Davies L.J. said in R. v. Stafford and Luvaglio (1968) 53 Cr.App.R. 1 at p.3, C.A., “public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time will generally be admitted by the court when verdicts are being reviewed.” It was for the foregoing reasons that this court refused the application to adduce fresh evidence.
This appeal had been argued by Mr. Kwaku Bonsu and Mr. Dei-Anang for six days, and we had listened to their arguments with the closest attention and carefully considered every point they had raised. The duty of this court is laid down in section 26 (12) of the Courts Act, 1971 (Act 372). We must allow the appeal if we consider “that the verdict or conviction … ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence” or “that on any ground there was miscarriage ofjustice, and in any other case” we must dismiss the appeal.
The first appellant was charged with conspiracy to commit murder and abetment of the crime of murder. It was submitted on his behalf by counsel that (i) there was no evidence of conspiracy, (ii) that his case was not adequately put to the jury, (iii) that the summing-up was defective in that the jury were not sufficiently instructed on the danger of convicting on the evidence of the first appellant’s wife, unless that evidence was corroborated, (iv) that the statements made by the second, third, fourth, fifth and sixth appellants did not amount to corroboration of the evidence of the first appellant’s wife and (v) that there was no corroboration and that the medical evidence did not corroborate the evidence of Sotorwoxoe Nyanya. We do not think it is necessary for us to consider in detail each of the points raised since in the opinion of this court the arguments in support of these points do not justify any interference with the verdict of the jury. The crime of conspiracy
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consists in an agreement or acting together by two or more persons with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation. It is not always easy to prove agreement by positive evidence, but this can be inferred from the conduct and statements made by the accused. What the jury had to decide was: was there such a common purpose? and was each of the appellants a party to it, whether they corresponded with one another or not and whether one knew the other was in it or not? The evidence of Sotorwoxoe Nyanya (wife of the first appellant) was that the first appellant was present during the killing of the deceased, and if her evidence was accepted then his presence in the house or in the bathroom would not be accidental, but in furtherance of the common purpose. In R. v. Coney (1882) 8 Q.B.D. 534, C.C.R., it was decided that non-accidental presence at the scene of the crime is not conclusive of aiding and abetting the commission of the crime. It must be proved (i) that he intended to give encouragement, and (ii) that he wilfully encouraged the commission of the crime charged. In Coney, Hawkins J. said at pp. 557-558:
“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.”
In a case such as the present, if the jury were satisfied that the first appellant was present at the scene of the crime and that he subsequently procured other persons to dump the dead body into the sea then it would be a matter of inference for them whether the first appellant by his presence wilfully aided and abetted the killing of the deceased. The jury would therefore be entitled also to infer that he was in conspiracy with the other appellants.
In the opinion of this court, there was enough evidence from which conspiracy among the appellants could be inferred, and the argument that the first appellant’s case was not adequately put before the jury
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is not in the least tenable. Mr. Kwaku Bonsu’s other argument on corroboration of the evidence of Sotorwoxoe Nyanya on the abetment charge, however, deserves serious consideration. The strongest evidence against the first appellant was that given by his wife, Sotorwoxoe Nyanya, whom the learned trial judge instructed the jury to regard as an accomplice. The learned trial judge told the jury:
“Nyanya was another eye-witness to the killing of Zormelo for so the prosecution say. Her evidence is a continuation of the evidence of Abelinawo. But, by yelling, as she demonstrated to us, as the fetish priestesses do, she can be taken to have assisted the accused persons in the commission of the offence before us. As an accessory to the fact of murder, therefore, she is an accomplice, however unwilling in her case she might have been. Like the cat she may have been curious but then it was curiosity which killed the cat.”
The learned trial judge then proceeded to instruct them on the abetment charge in the following passage of his summing-up:
“If you believe her evidence there is also sufficient evidence on the second charge against the first accused charged alone on the count of abetment. For as this witness said whilst Mensah Zormelo was being killed the first accused Amuzu Azametsi was present. There is no evidence against him the first accused that he did anything other than that he was present. If that is so it is for you, gentlemen of the jury, to ask and answer the question why Amuzu Azametsi alias Kporku was present and what was he doing in the bathroom that fateful night? Equally there is no evidence before us that he persuaded or in any other manner he tried to dissuade the other accused persons from doing what they were doing. Was he not directly or indirectly, in the words of section 20 of our Criminal Code instigating, commanding, counselling, aiding, encouraging by his very presence, the dastardly act of killing a man in cold blood? And it is a fact, proposed by the prosecution and asserted by the defence that Amuzu Azametsi, the first accused, is the leader of the company or group of fishermen.”
In a subsequent passage the learned trial judge warned the jury of the danger of acting on the evidence of Sotorwoxoe Nyanya, unless it was corroborated. Up to this stage the summing-up was unexceptionable. Having given this warning the learned trial judge told the jury that the evidence of the doctors and the investigating statements made by the second, third, fourth, fifth and sixth appellants amounted to corroboration. With all due respect to the learned trial judge, this court is of the opinion that he erred when he referred to these items of evidence as corroborative of the evidence of Sotorwoxoe Nyanya on the charge of abetment against the first appellant. Where there is corroboration so far as some counts are concerned, but not with regard to others, this fact should be made plain to the jury. Because where matters which cannot be corroboration are treated as being so, the court may quash
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the conviction: see R. v. Thomas (1959) 43 Cr.App.R. 210, C.C.A. In the opinion of this court there is no independent evidence capable of amounting to corroboration of Sotorwoxoe Nyanya’s evidence that the first appellant was present at the killing of the deceased, and the learned trial judge should have told the jury that. In James v. R. (1970) 55 Cr.App.R. 299, C.A. it was held that the judge’s failure to do so was a misdirection, so serious as to make it inevitable that the conviction should be quashed. Mr. Kwaku Bonsu referred the court to the James case with some flourish, and submitted that it was decisive of the first appellant’s appeal.
In the opinion of this court, every case must be considered in the light of its peculiar facts. The principle upon which this court acts is that if the jury convict the accused, the conviction will not be quashed merely upon the ground that the accomplice’s evidence was uncorroborated. The court will review the whole of the facts and circumstances of the case and will apply the proviso to section 26 (12) of the Courts Act, 1971 (Act 372), if satisfied that (1) the evidence against the appellant is clear and overwhelming, and (2) on a proper direction the only proper verdict would have been one of guilty: see Boateng II v. The Republic [1974] 1 G.L.R. 214, C.A. Having considered the whole evidence, this court came to the conclusion that the evidence against the first appellant was clear and overwhelming, and that properly directed the jury would inevitably have arrived at the same verdict. In the opinion of the court the case was one in which the proviso could be applied because despite the misdirection as to corroboration, no substantial miscarriage of justice had occurred.
Mr. Dei-Anang stated right from the beginning of his argument on behalf of the second, third, fourth, fifth and sixth appellants that he did not wish to address us on the count of conspiracy. He confined his argument to two main issues: (1) the admissibility of the confession statements, and (2) corroboration. On the first issue therefore Mr. Dei-Anang submitted that on the voir dire the judge sits as a tribunal of fact before he applies the facts as found to the law, and in discharging his duty as a tribunal of fact two principles apply: (a) that the onus is on the prosecution to prove all the facts in issue beyond all reasonable doubt, and (b) that if the accused makes positive allegations in conflict with the evidence for the prosecution the judge should, in giving his ruling, indicate sufficiently his reason for preferring one version to the other. By “sufficiently” Mr. Dei-Anang said he meant that it ought to be possible for any person legally examining the ruling to be able to come to the conclusion that the decision of the judge was right, and he relied on the decision in R. v. Gyamfi [1960] G.L.R. 45, C.A.
The case against the second, third, fourth, fifth and sixth appellants rested essentially on the alleged confessions which they made to the police, and objections were taken to the admissibility of the statements on the ground that they were not made voluntarily. The question as to
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the admissibility of a confessional statement is determined on the voir dire, and the established procedure has been stated by Lord Morris of Borth-y-Gest, when delivering the opinion of the Privy Council in Sparks v. R. [1964] A.C. 964 at p. 982, P.C.:
“If objection is made to admissibility it is for the judge to hear evidence in the absence of the jury and then to rule whether an alleged confession should or should not be admitted. He ought not to admit it if on the view which he forms of the circumstances of the making of a confession he does not consider that it was a voluntary one.”
Voluntariness, therefore, is a test of admissibility and is a question for the trial judge alone: see Chan Wei Keung v. R. (1967) 51 Cr.App.R. 257, P.C.
With regard to the burden and standard of proof, Lord Morris said at P. 983 of the Sparks case (supra):
“When at the preliminary stage evidence is heard by a judge in the absence of the jury the prosecutor must show affirmatively to the satisfaction of the judge that a proffered statement was not made under the influence of an improper inducement. (See Reg. v. Thompson [1893] 2 Q.B. 12 the authority of that decision was recognised by their Lordships’ Board in Kuruma v. The Queen [1955] A.C. 197. P.C.).”
It has become established by recent English authorities that a confession is admissible in evidence only if the prosecution proves its voluntariness beyond reasonable doubt: R. v. Sartori [1961] Crim.L.R. 397; R. v. McLintock [1962] Crim.L.R. 549, C.C.A. and R. v. Cave [1963] Crim.L.R. 371, C.C.A. But this proposition has been rejected by the High Court of Australia in Wendo v. R. (1964) 109 C.L.R. 559, where Sir Owen Dixon C.J. said at p. 562:
“The second matter I wish to refer to is the view that in order to render a confessional statement admissible in evidence it must be established beyond reasonable doubt that it was made voluntarily. I am not prepared to say what are the limits of the application of general proposition laid down in Woolmington v. Director of Public Prosecutions [1935] A.C. 462 but I think that it is a mistake to transfer the principle from its application to the issue before the jury to incidental matters of fact which the judge must decide.”
Taylor and Owen JJ. in their joint judgment referred to the English cases of R. v. Sartori (supra) and R. v. McLintock (supra), cited in the argument, and observed as follows at p. 572:
“With great respect we are unable to agree that this is the law. In criminal trials, as in civil cases, questions of fact frequently arise which must be determined by the trial judge before he decides whether to admit evidence for the consideration of the
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jury. Confessional statements are but one illustration of the type of evidence the tender of which may give rise to preliminary questions of fact which the judge must decide for himself.”
The learned judges continued at pp. 572-573:
“Other illustrations were given by Lord Denman C.J. in Doe v. Davies (1847) 10 Q.B. 314 where his Lordship said: There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus an oath, or its equivalent, and competency, are conditions precedent to admitting viva voce evidence; and the apprehension of immediate death to admitting evidence of dying declarations; and search to secondary evidence of lost writings; and stamp to certain written instruments: and so is consanguinity or affinity in the declarant to declarations of deceased relatives.’ But proof of the fulfillment of these or any other conditions precedent to the admission of evidence is not required to be given beyond reasonable doubt. As Starke J. said in Cornelius v. The King (1936) 55 C.L.R. 235 “The judge merely decides whether there is prima facie any reason for presenting the evidence at all to the jury; . . . If the judge decides that there is a prima facie reason for admitting the evidence, it is for the jury or, in a case such as this, the judge sitting as a jury to determine what weight is to be given to it. It is then that the standard of proof beyond reasonable doubt has to be applied and it will often happen that, in applying that standard, the tribunal of fact will properly be asked to take into account evidentiary material placed before it which has earlier been elicited on the voir dire.”
In the voir dire the function of the trial judge is only to determine whether (a) the statement alleged to have been made by the accused is in itself a confession, either in whole or in part, and (b) if so, whether it is voluntary. The question of the admissibility of a confession, as we have already stated, is for the trial judge, and in determining that question the judge should hear all witnesses, both for and against the admission of the confession, including, if it is desired, the accused himself. The burden is on the prosecution to prove affirmatively that the confession was voluntary, and in this connection all persons who had been present at the making of the confession should be produced by the prosecution, at least for the purpose of cross-examination by the defence. It is only when the prosecution have done this that the judge can on the totality of the evidence adduced, feel satisfied that the confession is voluntary. The burden of showing that the confession was voluntary is not discharged by a mere statement by a police officer that the statement was preceded by the customary warning; there must be a full explanation of the circumstances in which the statement was taken. It is often said that much more evidence is required on the one side to justify a trial judge in admitting a confession than is necessary on the other side to secure its rejection. Any doubt as to whether or
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not the confession is voluntary must result in its exclusion. We think that the proposition that a confession only gets before a jury if the trial judge is satisfied beyond reasonable doubt that it was voluntary provides a better safeguard for the accused, and that this is the principle which ought to be followed in this country.
The principal and common ground of objection to the statements made by the appellants was that each appellant was severely beaten and subjected to all forms of inhuman treatment by the police before he either made a statement or affixed his thumb-print to a statement already prepared by the police. These allegations were denied by the prosecution witnesses. The second appellant admitted that he made a statement (exhibit E) dated 12 December 1967, though he said he was beaten before he made it and that he made a report to the Assistant Commissioner of Police, Alexander Christopher Kwaku Nartey the first witness for the defence, when the latter visited the appellants whilst they were in custody. On 20 January 1968, however, when the second appellant was charged with murder, he made a statement (exhibit F) in which he said that he relied on his previous statement (exhibit E). The learned trial judge ruled that he was satisfied that there was no beating of the second appellant and that his statement “was not obtained by force, duress, or other means not acceptable to the court of law.”
With regard to the third appellant the learned trial judge found as a fact that he made exhibit G to the police, and that “he was not in any way coerced or forced or beaten by the police into making the statement.”
In his evidence at the voir dire the fourth appellant said that he was severely beaten by five policemen and that he bled profusely from his nose. The learned trial judge rejected this evidence and ruled as follows: “The witness says that he was severely beaten by five people. He says that he bled profusely from the nose. If that is so these little spots shown me on the cloth do not represent the profuse bleeding he has spoken about. The cloth has been in his possession all this time. There is no evidence before me that there was any bleeding in the cloth before he was taken to the police station. I find as a fact that he was not beaten into making the statement.”
If the learned trial judge’s ruling had ended here there would have been nothing to cavil at but unfortunately the learned trial judge continued his ruling as follows:
“If that were so this one point would have been specifically included in the correspondence to the police. Indeed in that letter reference is made to the fact that one of the people in custody had lost some teeth as a result of being beaten by the police. This woman has already given evidence. She was asked whether she was not beaten before she made a statement to the police. She emphatically denied that she had been beaten. I find this story of being
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beaten in this particular case, especially with the cloth, as an attempt to pull wool over the eyes of the court. I will allow the statement in evidence.”
The letter referred to in the ruling is exhibit 3, which was tendered in evidence by the defence through the Assistant Commissioner of Police, Alexander Christopher Kwaku Nartey the first witness for the defence. On this aspect of the case Mr. Dei-Anang observed that the learned trial judge knew of the letter before it was tendered, and that his foreknowledge had disabled him from considering the issue before him at that stage with an open mind. We find great difficulty in appreciating how a letter which had not been tendered in evidence could be referred to by the learned trial judge in his ruling. Nevertheless, this court is of the opinion that before the learned trial judge made the reference to exhibit 3 he had already made inferences from the evidence which led him to the conclusion that the fourth appellant was not beaten up. We think that these inferences were sufficient to justify the ruling, and that having regard to the whole evidence on the voir dire the fourth appellant was in no way prejudiced by the improper reference to exhibit 3.
In his evidence in support of the objection the fifth appellant said that he was beaten by three policemen in boots, but the learned trial judge had no difficulty in rejecting this evidence and he ruled as follows:
“I did not believe the witness when he says he was beaten by the police before he made the statement. Three people he says beat him with boots yet according to him even though his head was exposed there was not a single drop of blood on any part of his body.”
In the case of the sixth appellant, the objection to the statement was that the sixth appellant never made it, and that it was during the beating that the police produced a statement (exhibit M) and forced him to affix his thumb-print in the absence of the so-called independent witness. This evidence, however, was rejected by the learned trial judge.
All the appellants are of the Ewe tribe, and for the prosecution it was proved that the statements alleged to have been made by the appellants were made to Albert Ableboo Akoetey the fourteenth witness for the prosecution who understood the Ewe language; that the statements were taken in the presence of independent witnesses who themselves understood the Ewe language; that the contents of the statements were read over to the appellants before they affixed their thumb-prints to them to signify their agreement with them; that the independent witnesses signed certificates under the statements to attest that the statements were made voluntarily. The independent witnesses all gave evidence for the prosecution.
Besides, the Assistant Commissioner of Police, Alexander Christopher Kwaku Nartey, who was called to give evidence in support of the defence, denied that the appellants complained to him that they were assaulted.
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The issue of the admissibility of confessional statements was one of law for the trial judge, and if there was sufficient proof to satisfy his mind that the statements were not in fact made under the influence of either hope or fear, this court will not interfere. In this case there can be no doubt that there was overwhelming evidence to justify the learned trial judge’s ruling on the statements made by the second, third, fourth, fifth and sixth appellants.
An admission by an accused person is capable of amounting to corroboration in law; but like any form of corroboration, it is essential that it must implicate the accused in a material particular. In his able argument before this court, Mr. Dei-Anang had criticised the learned trial judge’s directions on corroboration, but whatever the merit of the argument, we are of the opinion that the statements made by the second, third, fourth, fifth and sixth appellants amply corroborated the evidence of Sotorwoxoe Nyanya the second prosecution witness.
Dealing next with the submission that the judge must give reasons for his ruling, this court wishes to make it plain that in the absence of any requirement by law that reasons should be given for judicial decisions the mere failure to give reasons cannot invalidate a decision. Though, in the opinion of this court, it is desirable that reasons be given for a ruling at the voir dire, the ruling need not be as exhaustive as a final determination or judgment. And where the reason is obvious and beyond doubt and can be easily inferred from the facts and circumstances there is no duty on the trial judge to give reasons for his ruling: see Commissioner of Police v. Asamoah (1958) 3 W.A.L.R. 458, C.A. If there is sufficient evidence at the voir dire to satisfy the mind of the learned judge, it is immaterial that he did not give reasons for preferring one version of a story to another. In the opinion of the court the reasons for the learned trial judge’s ruling are easily discernible from the facts and circumstances of the case.
Mr. Dei-Anang next raised and argued other points relating to various aspects of the summing-up, and in particular to the failure of the learned trial judge to put the defence adequately to the jury. Beside mentioning these points, we do not wish to examine any of them beyond stating that we do not accede to Mr. Dei-Anang’s argument.
The evidence against the appellants was overwhelming and in the opinion of this court, no jury, properly directed could have failed to convict the appellants of the crime of murder. There being ample evidence in support of the jury’s verdict, this court will not interfere with the convictions of the appellants.
It was for the above reasons that this court dismissed the appeal by the appellants.
DECISION
Appeal dismissed.
SO
