ANTOH v. THE STATE [1965] GLR 676

DIVISON: SUPREME COURT

DATE: 23 NOVEMBER 1965

BEFORE: OLLENNU, BRUCE-LYLE AND SIRIBOE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction for the offence of possessing forged Ghana currency notes contrary to section 18 of Act 17. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Appellant in person. S. M. Boison, Principal State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was convicted by the High Court, Sunyani, of the offence of

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possessing forged Ghana currency notes contrary to section 18 of the Currency Act, 1960.1 The following facts found by the trial judge axe not in dispute. Acting upon information received, five policemen, including a sergeant, armed with a search warrant, went to search the premises of the appellant; the premises consisted of a shop and an adjoining living room. The appellant was not in when the party arrived at his premises so they remained outside the shop until he returned; three of the policemen then entered the building with the appellant, while the other two remained outside. A thorough search was conducted of the person of the appellant, his shop and his living room, but nothing incriminating was found. Just before the search party left the room of the appellant one of the two constables outside the building called upon the constables in the building to bring the appellant outside; they did so and went to the constable at a spot where he stood, about a yard away from the entrance of the store. There the constable pointed to the ground at a plastic bag protruding from the mud and ordered the appellant to pull it out, and the appellant did so. The bag was then opened and was found to contain 31 forged Ghana one pound notes. When questioned, the appellant denied all knowledge of these notes; he was arrested and taken to the Duayaw-Nkwanta Police Station and subsequently to Tepa Police Station. Later, the appellant was charged with the offence and cautioned; he denied the charge and said he would make his statement in court. The prosecution alleged that while in custody, the appellant made a statement in Twi to the detective sergeant in charge of the case, in the presence of an independent witness, and that the sergeant reduced the same into writing and had it thumb-printed by the appellant. This statement was admitted in evidence as exhibit A. In that statement the appellant is alleged to have said that the bag containing the notes was brought to him by one Kofi Mensah, and that when he the appellant discovered that it contained forged notes, he did not want to keep it so he buried it away in the mud. The appellant on the other hand denied making any such statement to the sergeant. He said that what really happened was that while he was in custody at the Duayaw-Nkwanta Police Station, the sergeant came to him and asked him whether he knew a man called Kofi Mensah, and upon his replying that he knew him, the sergeant further asked him whether it was not true that the said Kofi Mensah had brought the bag of forged notes to him, and he had then buried it in the mud; the appellant said that to that question he replied “No.”

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The learned judge of the High Court, Lassey J. (as he then was), properly directed himself that no conviction can be founded upon the facts which are not in dispute. He however convicted the appellant because, said he, “Satisfactory evidence is supplied in the accused’s own statement to the police, exhibit A.” He continued, “I must also observe that in accepting the statement exhibit A I am fully satisfied that the accused made that statement freely and voluntarily in the presence of an independent person who also witnessed the making of the statement.” In so directing himself, the learned judge showed a grave misconception of the issue raised in the case with respect to the statement, exhibit A. He confused the issue as to the admissibility of a statement with the issue as to weight to be attached to the statement. The test which the learned judge applied is a test as to admissibility of the statement. A statement is admissible if proved to be voluntary. But a statement though admitted as having been voluntarily made, may nevertheless he worthless in evidential value. It is therefore incumbent on a court, after admitting a statement in evidence, as made voluntarily, to direct itself on the issue as to the weight to be attached to the admitted statement. This is particularly so in a case like this where a defendant disputes the contents of the admitted statement. The admissibility of the statement exhibit A, was no problem in this case, in fact the appellant withdrew his objection to its admission; that perhaps misled the learned judge. The issue which the appellant raised with respect to the statement, both in his cross-examination of the detective sergeant, the second prosecution witness and in his own evidence in the witness-box is that the sergeant had recorded his, the appellant’s reply to the sergeant’s question to him with respect to the Kofi Mensah, as an admission of receipt of the bag containing the notes from Kofi Mensah, when his reply was in fact a denial that he so received the bag. The trial judge showed in his judgment that he completely missed that point. It is important to note that the second prosecution witness the sergeant in charge of the investigations, impliedly admitted that the said Kofi Mensah bad given him some information. He also admitted that he put to the appellant some of the questions which the appellant alleged he put to him. In those circumstances, the main issue which called for determination upon the statement, exhibit A, is whether in answer to the second prosecution witness the appellant had said that “Kofi Mensah did give the bag to him” or whether he had said that “Kofi Mensah did not give the bag to him.” The position then is that the court had on the one hand, the contents of exhibit A recorded by the literate investigating officer the second prosecution

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witness who was seeking confirmation of information given to him by the said Kofi Mensah against the appellant, and on the other, the oath of the illiterate appellant that what is recorded in exhibit A is the exact opposite of what he had said to the second prosecution witness. In such case the trial court upon the principle that the benefit of the doubt should be given to the appellant, should have rejected the version of the prosecution as to the contents of the statement made by the appellant to the second prosecution witness, unless the version of the second prosecution witness was corroborated by the independent witness present at the making of the statement, or unless there happens to be some other independent piece of evidence direct or circumstantial which makes the version of the prosecution the more probable of the two. To support their case about the statement, the prosecution called as a witness the sixth prosecution witness an independent literate person whom they had invited to be present at the time the appellant made the statement. The evidence-in-chief given by this witness is very brief but most important. It is as follows: “Clerk at the district commissioner’s office at Tepa. I know the second prosecution witness. I also know the accused person. On 2 May 1963 I was present at the Tepa Police Station when the accused person made a statement to Kufour the second prosecution witness.” When cross-examined, he said: “I was present at the police station when you made a statement. The statement was taken between 9 a.m.-10 a.m. on 2 May 1963. The accused was then at the charge office before I arrived at the station. The statement was read over to you.” One most peculiar thing about the evidence of this witness is, that the witness never identified exhibit A as the statement made in his presence by the appellant, and the evidence does not give any indication either as to the contents or substance of what the appellant said to the second prosecution witness on the occasion that he the witness was present. The evidence of that witness is therefore clearly against the finding of the learned judge of the High Court that the sixth prosecution witness identified exhibit A as the voluntary statement made in his presence by the appellant. It follows that while the learned judge was right in admitting the statement in evidence as a statement voluntarily made by the appellant he erred, in view of the issues raised, by assuming that the decision on the issue of the admissibility decided all issues raised in connection with the statement; and he further misdirected himself

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by failing to direct himself as to the identity of the statement voluntarily made by the appellant, and the weight to be attached to that statement. Those misdirections have occasioned a miscarriage of justice. We feel that if the learned judge had properly directed himself on this issue and on the evidence before him, he could not have come to the decision he arrived at. It is for the reasons stated herein that we, on 7 October 1965, allowed the appeal of the appellant, quashed his conviction and the sentence passed upon him, entered a verdict and judgment of acquittal, and thereupon acquitted and discharged the appellant.

DECISION

Appeal allowed.

S.Y.B.-B.