IN THE COURT OF APPEAL
Date: 16 JULY 1971
BEFORE: AZU CRABBE J.S.C., LASSEY AND JIAGGE JJ.A.
CASES REFERRED TO
(1) State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.
(2) R. v. Christie [1914] A.C. 545; 83 L.J.K.B. 1097; 111 L.T. 220; 78 J.P. 321; 30 T.L.R. 471; 24 Cox
C.C. 249; 10 Cr.App.R. 141, H.L.
(3) R. v. Pett and Bird [1968] Crim.L.R. 388, C.A.
(4) R. v. Laycock (1911) 6 Cr.App.R. 209, C.C.A.
(5) Kwashie v. The Republic [1971] 1 G.L.R. 488, C.A.
NATURE OF PROCEEDINGS
APPEAL against a conviction and a fifteen-year jail sentence imposed by Koi Larbi J.S.C. (sitting as an additional judge of the High Court). The facts sufficiently appear in the judgment of Azu Crabbe J.S.C. COUNSEL
Odoi Annan for the appellant.
Mrs. J. Amankwah, Senior State Attorney, for the Republic.
JUDGMENT OF AZU CRABBE, J.S.C.
Azu Crabbe J.S.C. delivered the judgment of the court. The appellant was convicted on 6 November
1970 at the Eastern Region Criminal Sessions held at Accra upon an indictment containing two counts: one for conspiracy, and another for robbery, and was sentenced by Koi Larbi J.S.C. (sitting as an additional judge of the High Court) to five years’ imprisonment with hard labour on the first count, and fifteen years’ imprisonment with hard labour on the second count, the sentences to run concurrently. The facts, so far as they are relevant, can be shortly stated. The victim of the robbery, William Kyei Appiah, was a petrol dealer of the Agip (Ghana) Ltd., and his petrol station was on the Cantonments Road, Osu, Accra. On 7 November 1969 at about 9 p.m. he left the petrol station for his house, and carried in his hand a bag containing money and some documents. On the way he met two young men coming from the opposite direction, and after he had passed them, he looked behind and noticed that the two young men were following him. When they came close to him they seized his bag, and he exclaimed: “What is the matter!” Suddenly, he saw another person, whom he recognised as the appellant, arrive at the [p.72] of [1972] 1 GLR 70 spot from another direction and joined the two young men to attack him. There ensued a struggle between him and the three young men in the course of which he heard one of his assailants say “Shoot.” He said he then felt that a hard object had hit his head, and he began to bleed profusely. He was blinded by the blood oozing from the wound on his head, and his assailants snatched his handbag from him and ran away with it. He had known the appellant for about two-and-a-half years before that day, and had seen the appellant at the petrol station less than an hour before the attack. The appellant said in evidence that he frequently visited the petrol station managed by the complainant, and was a friend of all the employees there. One witness, Clement Osae Asiedu, who gave evidence for the prosecution, said that he had known the appellant for two years and had seen him often at the petrol station of the complainant, and that, on
the night in question, when he heard shouts of “Thief! thief!” he came out of his house and saw some
people running after a caravan car. The witness said that he saw the appellant as he boarded the caravan car and disappeared. A report of the robbery was made by the complainant to the Cantonments Police, and, subsequently, the complainant and Clement Osae Asiedu led a police officer to the appellant’s house at about midnight, and the complainant pointed out the room in which the appellant lived. The appellant had gone to bed, and when the police officer knocked his door he came out and was immediately identified by the complainant and Clement Osae Asiedu. The appellant was told by the police officer that he was wanted at the Cantonments Police Station. The appellant then said to the police officer: “What is the matter? Search me, search me.” The appellant was searched, but nothing incriminating was found in his room. His clothes were also examined by the police officer, but there was no evidence of bloodstains on them. The appellant denied the allegation against him, and said that the two witnesses who identified him were mistaken and
that he was not at the scene of the crime that night, for he went to bed between 7.30 p.m. and 8 p.m.
In this case there is no dispute that on the night of 17 November 1969 the complainant was violently
robbed by three young men, as he was on his way to his house, and the only issue at the trial was whether the appellant was one of the criminals. In a summing-up, which we think was thorough, fair, and unimpeachable, the learned trial judge told the jury as follows: “The prisoner in his evidence emphatically denied that he was the person seen by both the first prosecution witness and the fifth prosecution witness. He has put a defence of ‘mistaken identity’: in effect he is saying that the prosecution witnesses are mistaking him for the real perpetrator of the crime—so that the identification of the prisoner is the crucial issue in this case; his defence is entitled to your serious
consideration and even if you reject it you must consider the facts of the case on their merits; but if you accept the defence as being reasonably probable then you must acquit the prisoner, that is to say, he is not guilty of the offence charged.” [p.73] of [1972] 1 GLR 70
This was followed by the following directions: “Gentlemen of the jury, I remind you again that before you convict the prisoner you must be satisfied by the evidence that the prosecution has established the guilt of the prisoner. It is a cardinal principle of our criminal law that the onus of proof is always on the prosecution, and it is not for the prisoner to prove his innocence. You must acquit the prisoner if you are not satisfied by the evidence that the prisoner was the person seen by the first prosecution witness that fateful night shortly after 9.10 p.m., and also, seen by the fifth prosecution witness boarding the Caravan car registration number WR 5520 which registration number turned out to be a fraud.” And in a passage following the above directions, the learned trial judge further instructed the jury as follows: “Before you convict the prisoner on each of the counts you must not only be satisfied by the evidence that certain persons with a common purpose did in fact attack and rob the first prosecution witness but also that the prisoner was one of those persons. If on the other hand you are not satisfied by the evidence, or that you have your doubts as to whether or not there was any such attack on the first prosecution witness, then you must acquit the prisoner without even considering his defence.”In his final charge to the jury the learned trial judge said: “Finally, are you satisfied by the evidence that the prisoner was one of the three men who attacked the first
prosecution witness and robbed him? Because the crux of the matter hinges on identification of the prisoner that you must return a verdict of ‘not guilty’ on each count: for each count is a separate indictment and requires a separate verdict: remembering always that the burden of proof is always on the prosecution.”In this appeal counsel for the appellant, Mr. Annan, has conceded that there had been no positive misdirection in the summing-up, but after citing to us the case of State v. Ali Kassena [1962] 1 G.L.R. 144, S.C., he argued that there was insufficient evidence of the identity of the appellant, and that the learned trial judge should have withdrawn the case from the jury. He founded his argument on two grounds: (1) there was no identification parade, and (2) no evidence of the personal characteristics of the appellant. Counsel then referred to an old edition of Phipson on Evidence (8th ed.), p. 126. In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person who committed it. The identification may take various forms. In the latest edition of Phipson on Evidence (10th ed.), p. 170, para. 1381 it is stated: [p.74] of [1972] 1 GLR 70 “When a party’s identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics: e.g., age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship,
education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history. In this connection, too, identity of mental qualities, habits and disposition may become relevant, though it would be excluded in more specific inquiries.” Then in para. 383, p. 171 of the same edition, it is further stated: “The presence or absence of motive, of means, opportunity, preparation or previous attempts on the part of the accused to do the act; the knowledge of circumstances enabling it to be done; his declarations of intention, or threats to do it, or his enmity towards the injured party, are admissible to prove identity. So, where the doing of the act reveals any special knowledge, skill, or capacity, his possession or non-possession thereof is also relevant.”
It seems clear from the passages we have quoted from Phipson on Evidence that the holding of an
identification parade, and proof of the personal characteristics of the accused, are not the only modes by which the identity of a person accused of a crime can be established. Where the identifying witness had known the accused for some time prior to the commission of the crime and had led the police to the house of the accused, as it is in this case, we think that the holding of an identification parade in these circumstances would have been pointless. Similarly, we think that failure to prove the personal characteristics of the accused is not fatal to conviction. But where the identifying witness saw the accused only for the first time for a brief period at the commission of the offence, we think that failure to hold an identification parade, or to prove his personal characteristics, would detract from the weight which the jury may attach to the evidence of identification.
Evidence of identity of an accused person may broadly be classified under two heads:
(a) Where the person accused of the crime was seen, however briefly or casually, by another person.
(b) Where the act in question was unobserved by anyone.
Under the first head, there may be direct proof of identity by the oral evidence of another who recognised the accused as the perpetrator of the crime or noted his appearance, or who can say that the person who committed the offence and the accused share some common characteristics. And under the second head all relevant evidence is admissible in order to establish the identity of the criminal. The relevant evidence under the second head may include evidence of finger-prints or foot-marks, similar [p.75] of [1972] 1 GLR 70 facts and generally the previous and subsequent conduct of the accused: see Phipson on Evidence (10th ed.), paras. 382, 384, 385, pp. 171-172. Evidence under the second head is based on deductions and inferences, and as stated in Wills, Principles of Circumstantial Evidence (7th ed.), p. 200: “The liability to mistake must necessarily be greater where the question of identity is a matter of deduction and inference, than where it is the subject of direct evidence. The circumstances from which identity may be thus inferred are innumerable, and admit of only a very general classification. ”In our view, the present case can be put under the first head of identification evidence. Where the identity of an accused person is in issue, there can be no better proof of his identity than the evidence of a witness who mounts the witness-box and swears that the man in the dock is the one he saw committing the offence, which is the subject-matter of the charge before the court. In R.v. Christie [1914] A.C. 545, H.L., Christie was convicted of indecent assault on a small boy, who gave his evidence without being sworn, describing the assault and identifying the prisoner, but he was not questioned as to previous identification, nor was he cross-examined. The boy’s mother then gave evidence that, shortly after the act alleged, she and the boy went towards the prisoner, and the boy said, “That is the man” and described the assault; and that Christie said, “I am innocent.” She was not cross-examined. The constable was then called and confirmed the mother’s story, saying that the boy went up to Christie, touched him, and said, “That is the man,” describing the assault, and that Christie said “I am innocent.” He was cross-examined, but his evidence on this point was not affected. The House of Lords held that the first part of the boy’s statement, but not the second describing the assault, was admissible as part of the act of identification. In his brief
speech on the issue of identification Viscount Haldane L.C. said at pp. 550-551: The only point on which I desire to guard myself is the admissibility of the statement in question as evidence of identification. For the boy gave evidence at the trial, and if his evidence was required for the
identification of the prisoner that evidence ought, in my opinion, to have been his direct evidence in the witness-box and not evidence of what he said elsewhere€.Had the boy, after he had identified the accused in the dock, been asked if he had identified the accused in the field as the man who assaulted him, and answered affirmatively, then that fact might also have been proved by the policeman and the mother who saw the identification. Its relevancy is to show that the boy was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake. But beyond the mere fact of such identification the examination ought not to have proceeded. ”Lord Atkinson also said at pp. 553-554: “As to the first point, it cannot, I think, be open to doubt that if the boy had said nothing more, as he touched the sleeve of the [p.76] of [1972] 1 GLR 70 coat of the accused, than ‘That is the man,’ the statement was so closely connected with the act which it accompanied, expressing, indeed, as it did, in words little if anything more than would have been implied by the gesture simpliciter, that it should have been admitted as part of the very act of identification itself. It is on the admissibility of the further statement made in answer to the question of the constable that the controversy arises. On the whole, I am of opinion, though not without some doubt, that this statement only amplifies what is implied by the words ‘That is the man,’ plus the act of touching him … I think, therefore, that the entire statement was admissible on these grounds, even although the boy was not asked at the trial anything about the former identification. The boy had in his evidence at the trial distinctly identified the accused. If on another occasion he had in the presence of others identified him, then the evidence of these eye-witnesses is quite as truly primary evidence of what acts took place in their presence as would be the boy’s evidence of what he did, and what expressions accompanied his . . .”Lord Moulton, on the other hand, was critical of the procedure adopted at the trial, and said that asking the mother and the policeman, but not the boy, about the latter’s identification of Christie immediately after the event amounted to using secondary evidence where primary evidence was available. He said at p. 558: “. . . I have great difficulty in seeing how this evidence is admissible on the ground that it is part of the evidence of identification. To prove identification of the prisoner by a person, who is, I shall assume, an adult, it is necessary to call that person as a witness. Identification is an act of the mind, and the primary evidence of what was passing in the mind of a man in his own testimony, where it can be obtained. It would be very dangerous to allow evidence to be given of a man’s words and actions, in order to show by this
extrinsic evidence that he identified the prisoner, if he was capable of being called as a witness and was not called to prove by direct evidence that he had thus identified him. Such a mode of proving identification would, in my opinion, be to use secondary evidence where primary evidence was obtainable, and this is contrary to the spirit of the English rules of evidence. ”In this case there was the oral evidence of the complainant who identified the appellant at the scene of the crime and also at the appellant’s house in the presence of the police officer. There was also the evidence of Clement Osae Asiedu who saw the appellant running from the scene of crime, and who later identified the appellant in his (the appellant’s) room in the presence of the police officer. The evidence of the complainant, and of Clement Osae Asiedu, was corroborated by the police officer. According
[p.77] of [1972] 1 GLR 70 to the evidence of the appellant, he and the complainant had known each other very well, and there was further evidence that the appellant had been at the petrol station that evening, but he had been called away by a friend shortly before the robbery took place. The defence was mistaken identity.
The sole issue at the trial was the question of identification. Was the appellant identified as participating in the robbery? This was a question of fact for the jury, and the weight of the evidence was also a question for them. It has been said that identifications can be mistaken, and when the only evidence consists of identification, however positive, it is right to look at the matter with great care. If the jury accepted the impeccable direction of the trial judge, as indeed they appear to have done in this case, they would, before convicting, have to come to the conclusion that the evidence of the defence witness was wholly untrue, because if the evidence of the appellant might be true they were bound to acquit: see R. v. Pett and Bird [1968] Crim.L.R. 388, C.A.
Counsel for the appellant was not able to point to any positive misdirection in the summing-up, and we think there was sufficient evidence of identification which justified the learned trial judge in leaving the issue to the jury. In R. v. Laycock (1911) 6 Cr.App.R. 209, where the jury convicted on the evidence of identification by one witness, the English Court of Criminal Appeal made observation at p. 212 which we respectfully quote and adopt: “Without saying what we should have done had we been sitting as a jury, we are bound to recognise the findings of the jury on fact. A question of identification is essentially one for a jury to decide. They saw the prisoner and the witnesses, and were satisfied that he was identified … A conviction in circumstances such as these cannot be set aside unless we are convinced that there was no evidence upon which the jury could have properly acted. It is not seriously contended that there was any misdirection.” In this case we think that there is ample evidence to justify the verdict of the jury, and we accordingly dismiss the appeal against conviction. The appellant has also appealed against the sentence of fifteen years’ imprisonment with hard labour, and it has been argued by counsel on his behalf that the sentence is excessive, having regard to the previous clean record of the appellant. In Kwashie v. The Republic [1971] 1 G. L. R. 488, C.A. it was held by this court that where an offence is of a very grave nature, the sentence must not only be punitive, but it must also be deterrent or exemplary in order to mark the disapproval of society of the particular offence. When the court decides to impose a deterrent sentence the good record of the accused is irrelevant. There can be no doubt that the crime of robbery is prevalent in this country, and that recently there has been a sudden increase in its incidence. We are satisfied that the learned trial judge must have taken into consideration the prevailing wave of robbery in the country when he imposed what is obviously a deterrent sentence. The sentence may appear severe, but we find nothing wrong in principle [p.78] of [1972] 1 GLR 70 with the sentence of fifteen years’ imprisonment with hard labour for robbery in the present circumstances. We therefore dismiss the appeal against sentence.
DECISION
Appeal dismissed.
S. A. B.
