Division: IN THE HIGH COURT, ACCRA
Date: 29 OCTOBER 1964
Before: HAYFRON-BENJAMIN J.
NATURE OF PROCEEDINGS
APPEAL against conviction of stealing contrary to the Criminal Code, 1960, s.124. The facts are fully set out in the judgment of Hayfron-Benjamin J.
JUDGMENT OF HAYFRON-BENJAMIN J.
The appellant was charged with stealing contrary to section 124 of the Criminal Code, 19601, and was convicted by the District Magistrate, Accra on 21 August 1964 and sentenced to six months’ imprisonment with hard labour. Against this conviction he has appealed to this court. The facts leading up to his prosecution are briefly as follows: About 6 a.m. on 3 August 1964, the appellant visited his friend, the complainant, on his way to buy some trade spirit. While they were in the complainant’s room, the appellant asked for sixpence to enable him to effect his purchase, as he had no small coins. The complainant gave it to him, and both of them left the room, the complainant to have his bath and the appellant presumably to buy his trade spirit. When the complainant came back to his room after his bath, his purse containing £G15 15s. was missing. According to the prosecution, the appellant was found coming out of the complainant’s room alone while the complainant was having his bath. This was deposed to by one of the prosecution witnesses. On these facts the accused was charged, prosecuted and convicted for stealing.
Before dealing with the merits of the case, I think it is necessary to advert to one procedural matter of great importance in criminal trials. When the appellant was called upon to enter his defence at the close of the case for the prosecution, he stated his name, his job, where he lived, and then said, “For my defence I rely on exhibits B and Bl.” These were the statements he made to the police at the time of his arrest and the time he was charged respectively. He denied having stolen the complainant’s money. He was then subjected to cross-examination by the prosecution. This practice has long been frowned upon in criminal trials. In R. v. Alli Verity C.J. (Nigeria) said:
“Although we are not unaware that this procedure is at times followed, for the purpose, we presume, of saving time, we do not think that it can be too strongly deprecated. It not only deprives the trial Judge of hearing the witness tell his story, either by way of narration or in answer to questions put by counsel, and of observing his demeanour and the manner in which he gives his evidence, but it also puts the witness at a considerable disadvantage in that the only time at which the Court has the opportunity of observing him is that at which he is under cross-examination. It is, in our view, impossible for the trial Judge to form a just opinion of the merits of a witness in circumstances in which the examination-in-chief amounts to no more than the reading of a statement . . . .”
The evidence against the appellant in this case is completely circumstantial. I think it is settled that where circumstantial evidence has to be considered the law requires a particularly high standard of proof. The main basis of the prosecution’s case is that the appellant had the opportunity to steal, and that he was the only person seen coming out of the complainant’s room on the day in question. This evidence is given by only one prosecution witness, and is denied by the appellant. There is nothing else on the record to indicate which version is the true one; yet the learned trial magistrate, had no hesitation in his mind that the guilt of the appellant had been proved beyond every reasonable doubt. I think that this is a rash and erroneous inference. Ollennu J.S.C. has drawn attention to the way evidence of this nature should be treated. In Amartey v. The State the learned judge said:
“Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider first, the version of the prosecution applying to it all the tests and principles governing the credibility and veracity of a witness, and it is only when it is satisfied that the particular prosecution witness; is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.”
I am satisfied that none of these tests was applied in this case. I am satisfied that the trial magistrate did not give proper or adequate judicial consideration to the case of the defence. The conviction therefore cannot stand, and is hereby set aside. The appellant is acquitted and discharged.
DECISION
Appeal allowed.
Conviction set aside and appellant discharged.
T. G. K.
