COURT OF APPEAL, ACCRA
Date: 20 DECEMBER 1974
SOWAH JA
CASES REFERRED TO
(1) R. v. Akatia (1946) 12 W.A.C.A. 98.
(2) Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 2 W.L.R. 343; [1954] 1 All E.R. 507; 118 J.P. 222; 98 S.J. 161; 38 Cr.App.R. 11, H.L.
[p.439] of [1974] 2 GLR 438
(3) R. v. Andorson [1966] 2 Q.B. 110; [1966] 2 W.L.R. 1195; [1966] 2 All E.R. 644; 50 Cr.App.R. 216, C.C.A.
(4) R. v. Leckey [1944] K.B. 80; [1943] 2 All E.R. 665; 113 L.J.K.B. 98; 170 L.T. 198; 60 T.L.R. 50; 87 S.J. 447, C.C.A.
(5) R. v. Littleboy [1934] 2 K.B. 408; 103 L.J.K.B. 657; 151 L.T. 570; 98 J.P. 355; 32 L.G.R. 345; 30 Cox C.C. 179; 24 Cr.App.R. 192, C.C.A.
(6) Commissioner of Police v. Donkor [1961] G.L.R. (Pt. II) 694, S.C.
NATURE OF PROCEEDINGS
APPEAL against conviction of the appellants for murder in a trial by jury. The facts are sufficiently stated in the judgment.
COUNSEL
R. K. Tay for the first appellant.
V. L. Buckle for the second appellant.
Asante Tannor for the third appellant.
S. E. Asamoah, Senior State Attorney, for the Republic.
JUDGMENT OF SOWAH JA
Sowah J.A. delivered the judgment of the court. The appellants together with two other accused persons were indicted before the criminal session held at Koforidua on 16 May 1973, with the offences of conspiracy to commit murder and murder. In the result all the five accused persons were acquitted of the conspiracy charge, and the two others, of the offence of murder. The three appellants were convicted and accordingly sentenced to capital punishment. It is from their convictions and sentences that the appellants have appealed to this court.
The case of the prosecution in effect was that while Teye Kwadjo alias Bardjo (the first appellant) Samuel Abadjie alias Red (the third appellant) and the first prosecution witness Kwasi Madjitey alias Aku Sika were serving various sentences in the Nsawam Medium Security Prisons, upon a suggestion by the first appellant, a plan was hatched whereby on their discharge they would burgle the house of the first appellant’s grandmother Koryo Wornu, the victim of this cruel murder. The first appellant informed his partners in crime that his grandmother was a wealthy woman and lived all by herself in a compound house at a village known as Timesu in the Manya Krobo area. In passing it ought to be mentioned that the first prosecution witness denies ever being a party to the criminal conspiracy and alleges that he only overheard the discussion between Teye Kwadjo and Samuel Abadjie alias Red. The denial is not of much consequence since there appears to be overwhelming evidence that he took part in the preliminary conversations and arrangements.
It appears that the first appellant Teye Kwadjo was discharged on 20 May 1971; the first prosecution witness on 11 August 1971 and the third appellant came out soon thereafter. After his discharge, the third appellant began pressing the first appellant for the execution of the plans laid out in the prisons.
Eventually the third appellant got together three other persons to join the group. Initially there were in the group, the first prosecution witness and the five others who were charged, but on the tragic evening the first prosecution witness had a change of heart and declined to
[p.440] of [1974] 2 GLR 438
go along with them, complaining that the village of Timesu was too far from Assessewa where they were, as they had to walk a distance of nearly five miles to the old lady’s village. The plan agreed upon was to enter the old lady’s premises and to steal therefrom. The party got to the village about midnight on 4 September 1971 and the third appellant was alleged to have produced a bunch of keys and opened the lock of the main gate. Two Members of the party were left to keep watch at the gate while the main body entered the house.
At this point it seems necessary to set out in full the version of the first appellant as to the sequence of events of event of the night, for the prosecution’s case hinged on the evidence of the first prosecution witness and the confessions of the first appellant in his statement and the evidence in court which in substance was not unlike the confession. The second appellant also made a confession statement but resiled from and repudiated it on giving evidence on oath. The first appellant stated as follows:
“So I and the second, third, fourth and fifth accused set out on foot at 7.00 p.m. for Timesu to my grandmother’s house. When we got there it was late when the people had gone asleep. My grandmother was asleep. The door or main gate to enter the house was locked. The fifth accused opened it with a key. Four of us entered the house, leaving the third accused to keep watch at the gate. In the house I saw my grandmother lying on the verandah. I told the second, fourth and fifth accused that from where she was lying we could not operate. We all returned to the third accused. When I told them that the plan could not be effected so we should go the fifth accused said he would not have money to pay his transport to Odumase, so he would go back to the house and find a way to operate the plan. He went into the house with the second and fourth accused leaving me and the third accused at the entrance of the house. For a short time I heard the voice of my grandmother saying ‘Leave me, leave me’.”
Subsequently the third appellant told the first appellant that the old lady had recognised him and mentioned his name and so he had killed her. It ought to be recalled that almost all the accused persons appear to be of Krobo extraction from the same area, i.e. Odumase and Manyakpongnor, a small community and the likelihood of recognition in such circumstances by the victim of the accused persons was great. Thus the whole of the evidence on which the prosecution relied for murder hinged upon the evidence of the grandson of the deceased, the first appellant.
The defences set up by the appellants were as follows: as far as the first appellant was concerned he denied any plan to murder the old lady though he confessed to a plan of stealing. The second appellant after a confession admitting the part he played denied the charge of murder, gave evidence repudiating the confession and stated that he did not even know the persons with whom he was alleged to have conspired and to have done the deed. He said he was arrested at Odumase, Manya Krobo, by the first prosecution witness who posed as a policeman and was handcuffed by
[p.441] of [1974] 2 GLR 438
him and taken to the police at Assessewa. It is of some interest to note that his version was correct for the first prosecution witness did indeed pose as a police officer and deceived the policemen in charge of Odumase Police Station to supply him with handcuffs. The third appellant put up a plea of alibi and called his uncle to support it.
As stated above, all the five were discharged on the conspiracy charge, two of the five of the murder charge and the three appellants were convicted and sentenced. The main theme of counsel’s argument for the first appellant was based on the first ground of appeal, namely, the learned trial judge misdirected the jury as to the application of the provision relating to “causing an event” as contained in section 13 (2) of the Criminal Code, 1960 (Act 29). On this issue the learned High Court judge gave the following direction:
“You must ask why all the accused persons are charged because from the evidence which you heard it was in fact only one of these five accused persons whose act actually resulted in the death of this woman. The answer is to be found in section 13 (2) of the Criminal Code which provides that if an event is caused by the acts of several persons acting, either jointly or individually each of these persons who has intentionally or negligently contributed to cause the event shall be deemed to have caused the event. So that if you find that the five accused persons acted jointly or individually and intentionally or negligently contributed to the death of the woman the law says all the five accused persons must be deemed to have caused the death.’,
Counsel’s complaint was that having explained the provisions of section 13 (2) of the Criminal Code, 1960 (Act 29), the learned judge ought to have proceeded with a further direction on the meaning and import of the provisions of subsection (3) which were germane to the issue before the court. Section 13 (2) and (3) read as follows:
“(2) If an event is caused by acts of several persons acting either jointly or independently, each of those persons who has intentionally or negligently contributed to cause the event shall, subject to the provisions of the next subsection, and to the provisions of this Part with respect to abetment, be deemed to have caused the event; but any matter of exemption, justification, extenuation, or aggravation which exists in the case of any one of those persons shall have effect in his case, whether it exists or not in the case of any of the other persons.
(3) A person shall not be convicted of having intentionally or negligently caused an event if, notwithstanding his act and the acts of any person acting jointly with him, the event would not have happened but for the existence of some state of facts or the intervention of some other event or of some other person, the probability of the existence or intervention of which other event or person the accused person did not take into consideration, and had no reason to take into consideration. This provision shall not apply where a person is charged with having caused an event by an omission to perform a duty for averting the event.”
[p.442] of [1974] 2 GLR 438
The position is that where two or more person embark upon a joint criminal exercise, each of the participants will be answerable for the acts done in pursuance of the joint exercise including such acts as are incidental to and necessary for the achievement of the joint enterprise and which acts were in the contemplation or ought to be in the contemplation of the parties at the time the exercise was embarked upon: see R. v. Akatia (1946) 12 W.A.C A. 98. But subsection (3) of section 13 contemplates a position where one of the criminal participants goes beyond what has been agreed upon or was in the contemplation of the parties as part of the exercise or takes a course quite different from what the parties have agreed upon; he alone will be liable; his co-adventurer will not be liable for the consequences of his unauthorised act.
We are of the view that the learned judge in this regard ought to have drawn the attention of the jury to section 21 (1) (a) of Act 29 and to have explained the provisions of that section to the jury. It reads:
“. . . if it appears that the crime actually committed was not a probable consequence of the endeavour to commit, nor was substantially the same as the crime which the abettor intended to abet, nor was within the scope of the abetment, the abettor shall be punishable for his abetment of the crime which he intended to abet in the manner provided by this Chapter with respect to the abetment of crimes which are not actually committed.”
It was for the learned judge to have directed the jury to find out whether the killing was in pursuance of the joint exercise agreed upon or whether it went beyond and was in fact unauthorised by the parties.
Applying these principles the overwhelming evidence was that the joint enterprise was to break and enter the old lady’s house and to steal therefrom. When the parties got there the old lady was asleep on the verandah and a meeting was quickly held as to what the next course of action should be. The first appellant advised that the enterprise be called off as they might wake her up and she would recognise them. The third appellant insisted that he had no money to go back to his hometown Odumase and therefore the exercise must proceed. At this point this piece of evidence by the first appellant became crucial. He stated as follows:
“For a short time I heard the voice of my grandmother saying ‘Leave me, leave me.’ Shortly the fourth accused returned to me and said that the fifth accused had got hold of my grandmother so I should come and show where the properties were. [At this stage counsel for the second, fourth and fifth accused objects to the piece of evidence in that content ‘the fifth accused had got hold of my grandmother’ on grounds of hearsay because the fifth accused was not present at the time it was said. By Court: Objection overruled.] I went into the house. I saw the fifth accused holding my grandmother and hitting her head on the ground. I called him and said he should be careful not to kill my grandmother. The fifth accused said he would not kill
[p.443] of [1974] 2 GLR 438
her. I became afraid and I returned to the third accused at the gate and informed him that the way the fifth accused was hitting my grandmother’s head on the ground I was afraid she might die. The third accused said we should go in to find out what was happening. He and I did go into the house. The third accused then said to the fifth accused, ‘Be careful not to kill her.’ The fifth accused said to the third accused ‘Go back to the gate; you dare not be here; you have no business here’.”
Then amongst other matters the first appellant gave this piece of damaging evidence:
“On our way, the fifth accused said as it was every one should take his own way as there was trouble. I asked the fifth accused what the trouble was and he said that as he held my grandmother she recognised him and mentioned his name. So he killed her.”
The first appellant’s evidence, if accepted, need no corroboration, for he was not an accomplice to the offence of murder: see Davies v. Director of Public Prosecutions (1954) 38 Cr.App.R. 11, H.L. and R. v. Akatia (supra).
It is quite obvious that it was not within the contemplation of the parties that the old lady should be murdered, the sole object being to ransack the house. It was therefore incumbent upon the learned judge to have reviewed the evidence carefully against each one of the co-adventurers with a view of finding out who in fact killed the old lady. In this connection the evidence pointed to only one direction, namely, to the third appellant. The first and second appellants were only implicated in the joint enterprise of stealing. We will adopt the words of Parker C.J. in R. v. Anderson (1965) 50 Cr.App.R. 216 at p. 223, C.C.A., namely:
“It seems to this Court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.”
Counsel for the third appellant had commented on certain adverse remarks made by the learned judge on the refusal of the third appellant to give a statement when charged and submitted that those comments must have operated to the prejudice of the third appellant. The learned judge had stated in his address to the jury, “It is part of the prosecution’s case that when the fifth accused was charged with conspiracy to murder he made a statement, exhibit L, in which he said he had nothing to say.” The learned judge went on: “You are reminded that exhibit L was never challenged on any ground when it was tendered and no suggestion was put to the sixth prosecution witness on the lines now alleged by the fifth accused.” Still dealing with the conspiracy charge, the learned judge stated:
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“Now if you believe the self-confessed statement of the first accused, exhibit C, which is evidence against himself and if you believe that the third accused made exhibit A which is a confession statement against himself and thus corroborating the first accused, and if you believe that exhibit L was made voluntarily by the fifth accused, bearing in mind that it went into evidence without any objection of any kind, and if you believe the story of the first prosecution witness as to what took place at Nsawam Prisons and the events that followed on 3 September 1971 just a day before the old lady met her death, then in terms of section 25 (1) of Act 29 conspiracy is proved against all the five accused persons, even if the plan was first hatched in Nsawam Prisons by only the first and fifth accused persons, and you must convict all of them.”
The learned judge again tried to impress upon the jury that by the accused stating, “I have nothing to say” he imports that “he has a guilty mind.”
We think that while a judge is entitled to comment upon the refusal of an accused person to make a statement, great care must be taken not to invite the jury to regard the silence of the accused “as a fact inconsistent with his innocence”: see Cross on Evidence (2nd ed.) at p. 183. In this connection reference ought also to be made to R. v. Leckey [1944] K.B. 80 per Viscount Caidecote C.J. at p. 86, C.C.A., namely:
“[A] caution might obviously be a trap instead of the means. for finding out the truth in the interests of justice. An innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and, if that could be held out to a jury as a ground on which they might find him guilty, he might obviously be in great peril.”
See also R. v. Littleboy [1934] 2 K.B. 408, C.C.A. and Commissioner of Police v. Donkor [1961] G.L.R. (Pt. II) 694, S.C.
While we deprecate the judge’s invitation to the jury to regard silence as consistent with guilt, the very fact that the jury refused to convict on the first charge indicates that they did not attach great weight to it. In any case if that had been the only evidence of guilt on the part of the third appellant, it might well have constituted a reason of allowing his appeal on the ground of miscarriage of justice. But that apart, there was abundant evidence that he killed the old lady in the manner described by the first appellant. The doctor’s evidence indicated inter alia “cause of death was brain injury. This means brain injury could have been caused by a struggle or a fight in which one holds the other’s head and hitting it against a wall or hitting the head on the ground, or by using a blunt object on the skull.” We may here recall the evidence of the first appellant: “I became afraid and returned to the third accused and informed him that the way the fifth accused, [i.e. third appellant] was hitting my grandmother’s head on the ground I was afraid she might die.”
We have arrived at the conclusion that there was no evidence in respect of the murder charge against the first and second appellants whose appeals are accordingly allowed and their convictions and sentences set aside.
[p.445] of [1974] 2 GLR 438
We think this dastardly act was committed by the third appellant when he was recognised by the old lady. We accordingly affirm his conviction and sentence and dismiss his appeal.
DECISION
Conviction of first and second appellants for murder quashed. That of third appellant affirmed.
S.Y.B.-B.
