HIGH COURT, TAMALE
DATE: 12 FEBRUARY 1971
TAYLOR J
CASES REFERRED TO
(1) Browne v. Dunn (1894) 6 R. 67, H.L.
(2) R v. Hart (1932) 23 cr.App.R. 202, C.C.A
(3) Ibrahim v. The King [1914] A.C. 599; 83 L.J.P.C. 185; 111 L.T. 20; 30 T.L.R. 383; 24 Cox C.C. 174, P.C.
(4) R.v. Dwyer (1932) 23 Cr.App.R. 156, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against conviction for stealing entered by the District Court Grade I, Wa. The facts are set out in the judgement of Taylor J.
COUNSEL
Allassan for Dy-Yakah for the appellant.
Creppy, Senior State Attorney, for the Republic.
JUDGMENT OF TAYLOR J.
The appellant in this case was arraigned before the District Court Grade I, Wa, charged with stealing N¢33.00, the property of one Teiku Dagarti. The facts which the prosecution led and which were apparently not challenged are that one Teiku Dagarti was arrested on suspicion by the Nandom police and when he was searched on or about 11 April 1969, N¢36.00 and other articles not relevant to the present charge were found on him. It was not shown why he was arrested. The appellant was the Inspector of Police at the Nandom Police Station. The suspect Teiku Dagarti asked for N¢3.00 which was given to him and the police kept the balance of N¢33.00. Teiku Dagarti later absconded. There was no evidence as to the date when he ran away. On 12 August 1970 the appellant was requested to hand over his duties to another inspector, the second prosecution witness. On that day the appellant gave the second prosecution witness a post-dated cheque for the N¢33.00 with the explanation that he had used the money. This was reported to the first prosecution witness, the Assistant Superintendent of Police in charge of the district. The second prosecution witness made it clear to the appellant that he would not accept the post-dated cheque in payment of the money although he took possession of it. The appellant on the following day 13 August 1970 refunded the money, N¢33.00 in cash, and the second prosecution witness accepted that. On 16 August 1970 the prosecution alleged that the appellant volunteered a statement on caution. This statement was admitted as exhibit B after the appellant had objected to it.
There can be no doubt that if the prosecution’s case is accepted in toto a clear case of stealing has been made against the appellant and a conviction is in order. It is however necessary to consider the case which the appellant put forward at the trial in answer to the charge.
The appellant gave evidence that he was the inspector at the Nandom Police Station as from 12 May 1969 to the date of the alleged offence. He said he took over the station on 12 May 1969 and took possession of the N¢33.00 and other exhibits. On 12 August 1970 he was asked to hand over the station to the second prosecution witness which he did. On 8 August 1970 he told the second prosecution witness that he was travelling to Bolgatanga and he needed the N¢33.00 in this case and that he would
[p.19] of [1971] 2 GLR 17
issue a cheque to be cashed at Wa and the second prosecution witness agreed. On 12 August 1970 he gave the said cheque to the second prosecution witness in the presence of the first prosecution witness, but the second prosecution witness then said he would not accept the cheque without the consent of the first prosecution witness. When the cheque was shown to the first prosecution witness he said he would not accept it in payment but would keep it until the physical cash was paid. As this would delay the handing over the appellant deposed that he paid the physical cash the next day, 13 August 1970.
In this court the following grounds of appeal were filed:
“(1) The conviction is bad and cannot be supported having regard to the evidence. (2) The learned magistrate erred in holding that there was dishonest appropriation of the sum in question. (3) That the sentence was excessive having regard to all the circumstances.”
At the full hearing counsel for the appellant sought leave which was duly granted to add and argue a further ground of appeal as follows:
“That the conviction was bad in that the appellant was not given adequate time and facilities for the preparation of his defence and was not permitted to defend himself by counsel of his own choice contrary to article 20 (2) (d) and (e) of the Constitution.”
Counsel argued the last ground relating to article 20 (2) (d) and (e) of the Constitution, 1969.
Now article 20 (2) (e), which will be discussed presently, enjoins an accused to be permitted to defend himself in person or by counsel of his choice. Learned counsel for the Republic has submitted that inasmuch as the appellant was permitted to defend himself in person, the refusal to permit him to defend himself by counsel is not a breach of the constitutional provision since that provision is worded in the alternative. He submitted therefore that the refusal was not serious although he conceded that the reasons given by the magistrate were wrong.
I must confess that I find it extremely difficult to subscribe to this narrow interpretation of article 20(2) (e). The article gives the appellant no choice of defending himself in person or by counsel. The choice is his not the tribunal’s; if therefore the tribunal narrows the choice and confines it to one, it is my considered opinion that the tribunal has deprived him of his constitutional rights. It is conceded on all sides that the district magistrate did precisely this. In the circumstances it is relevant to find out whether this has occasioned a miscarriage of justice. To do this it is necessary to look at the defence of the appellant very closely, and by examining it, to see how he put it to the witnesses and whether he did it effectively or not, and whether his defence, which in this case was considered by the tribunal and rejected can be taken as a proper defence if counsel could have convinced the district magistrate that it should be accepted.
[p.20] of [1971] 2 GLR 17
The important question to ask is this. Assuming that the version of the facts as is given by the appellant is correct, would it amount to such an explanation as would entitle him to an acquittal? In my opinion if the appellant’s version is accepted then there would be no dishonest appropriation and a conviction cannot be sustained. If his version is rejected then a conviction is inevitable. In rejecting his evidence this is what the learned district magistrate said:
“On the evaluation of the evidence as a whole, it stands to reason to find as a fact that the accused did not tell the second prosecution witness that he was travelling to Bolgatanga and therefore needed the said amount and that he would issue a cheque because if that was true, I feel that the accused would have produced the cheque on the very day which was 8 August 1970.”
It is noteworthy that the appellant did not put this version of the facts relating to his travelling to Bolgatanga to the second prosecution witness, but it is equally noteworthy that when he gave this version in evidence he was not challenged in cross-examination. What therefore is the resultant legal position? Two English cases are authorities for the proposition that when a person is not cross-examined on any material issue, it is improper to disbelieve his evidence on that particular material issue. The first is Browne v. Dunn (1894) 6 R. 67 a decision of the House of Lords which is set out at pp. 257-259 of Cockle’s Cases and Statutes on Evidence (9th ed.) In that case the Lord Chancellor Lord Herschell said at pp. 257-258:
“. . . It seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him,…”
In the same case Lord Halsbury observed at p. 258:
“To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, … and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they said, although not one question has been directed … to the accuracy of the facts they have deposed to.”
[p.21] of [1971] 2 GLR 17
Lord Morris at p. 258 was more emphatic:
“In this case, I am clearly of opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, it was impossible for the plaintiff to ask the jury at the trial and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited”.
This was in an action for libel, a civil case, but the principle is of general application and in R.v. Hart (1932) 23 Cr.App.R. 202 at p. 207, C.C.A. Lord Hewart C.J. in delivering the judgment of the Court of Criminal Appeal echoed the views of the House of Lords in Browne v. Dunn (supra). He said:
“In our opinion, if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that the witness should be challenged in the witness-box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted. Here no questions were asked in cross-examination.”
It is significant that the appellant did not adequately put his defence to the witnesses. Now on 16 September 1970 when the case was called for the first time before the district court, the appellant applied for an adjournment to secure the presence of his counsel. The court made the following ruling:
“Mr. Dy-Yakah the alleged counsel for the accused was present in court on 10 September 1970 when the circuit court judge ordered this case to be tried by this court on this day, 16 September 1970, but although he heard this, he has not sent a word to this court. In the circumstances I refuse the accused’s application.”
It is difficult to appreciate how the district court obtained the facts upon which he made this ruling. No submissions were made and I can only conclude that the court made the ruling relying on material that it must have gathered outside the court. This is most improper, but what is equally improper is the approach
to criminal justice which penalizes an accused person because of the failing of his counsel. I would have thought that if counsel was not alive to his duties, the court would have bent over backwards to accommodate the accused by giving him an opportunity to secure the services of counsel more alive to his responsibilities. As it is by its ruling the district court denied the appellant the protection given to him by article 20 (2) (e) of the Constitution. The article reads, “Every person who is charged with a criminal offence . . . (e) shall be permitted to defend himself before the Court in person or by counsel of his own choice . . . “ This provision is mandatory but the court did not seem to be inclined to give effect to it. This failure has quite clearly occasioned a miscarriage of justice because, as it turned out, the appellant was not able to put his
[p.22] of [1971] 2 GLR 17
defence adequately before the court as a trained lawyer would have done. In the result the conviction cannot be allowed to stand.
There is another matter: When exhibit B was about to be tendered, the appellant objected to it on the ground inter alia that the statement was not made on caution. A witness for the prosecution had given evidence that the statement was on caution but after the objection of the appellant the court ruled as follows:
“I hereby overrule the objection of the accused as it is in evidence that certain words were administered to him, but he refused to use the very paper on which the caution words were written and wrote his own statement. Further on the authority of Ibrahim v. The King [1914] A.C. at p. 610 statements made by an accused may be objectionable only on grounds of duress or threats or promise but here it is not the case that he was coerced or threatened to make the statement. In the circumstances I rule that the statement be admitted.”
Now the rule which was stated by Lord Summer in Ibrahim v. The King [1914] A.C. 599 at p. 609, P.C. is this:
“[N]o statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”
It seems therefore that Ibrahim v. The King [1914] A.C.599, P.C. decided no more than that a confession of crime is only admissible if it is made voluntarily by the accused. It did not decide and the rule is not that objection to admissibility of a statement can only be on the ground that the said statement was not voluntary. Indeed in R. V. Dwyer (1932) 23 Cr.App.R. 156, C.C.A., the Court of Criminal Appeal quashed a conviction of the appellant because the recorder at Abingdom Sessions had permitted evidence of a conversation between the appellant and a police officer to be admitted in evidence when the appellant made the said statement without being cautioned. Lord Hewart C.J. remarked at p. 158:
“The result of this conversation between the officer and a prisoner who was in custody and to whom no caution had been given was that very important evidence was obtained”.
“In the particular circumstances of this case it seems to us that the questioning was improper, and that the Recorder ought to have excluded the evidence. We think that the evidence was wrongly admitted, and that in the circumstances the conviction was unsatisfactory and ought to be quashed.”
It is clear in this case that there was no question of the statement not being a voluntary one, nevertheless because the appellant was not cautioned, the statement was excluded and the conviction quashed. In my opinion the view of the law taken by the district magistrate was wrong. Involuntariness is not the only ground on which a confession statement may
[p.23] of [1971] 2 GLR 17
be excluded. If the district magistrate had appreciated the legal position it is impossible to say whether he would have admitted or rejected the statement. Since the matter is doubtful the benefit should be given to the appellant and the statement rejected.
In considering the defence of the appellant the most relevant matter to consider is what the counsel for the appellant argued in regard to ground two. He argued that under section 120 (1) of the Criminal Code, 1960 (Act 29), dishonest appropriation in stealing is covered by two situations. The first is an intent to defraud and the second is when an appropriation is made by a person without a claim of right and with a knowledge or belief that the appropriation is without consent of some person for whom he is a trustee or who is the owner of the thing or that the appropriation would if known to any such person be without his consent.
On the first situation it was submitted that there was to be no loss to Teiku Dagarti and consequently by virtue of section 16 of Act 29, the first situation covering intent to defraud is absent. This is conceded by counsel for the Republic. On the second situation it was argue by counsel for the appellant but resisted by counsel for Republic that it was reasonable for the appellant to assume that Teiku Dagarti, a suspect who is the owner of the money, would not object to the temporary appropriation. He was in custody and counsel submits that the chances are that he would be quite glad to oblige the inspector. I am not quite happy about this submission as there is some faint and indefinable element of duress in such a request, innocuous though it may be, but the submission may very well be true.
Now no reasons are shown for the arrest of Teiku Dagarti and the circumstances of his case are not available before this appellate court. The matter is one of extreme difficulty and doubt and I apprehend that the law is that on any matter on which the tribunal is in doubt the doubt should be resolved in favour of the accused. Quite clearly this aspect of the matter did not seem to have engaged the attention of the district court. If it had it is difficult to hazard an opinion as to what the court’s decision would have been. In the result the point should be resolved in favour of the appellant.
I must say though that the conduct of the appellant is highly reprehensible. It is one of those cases on the border line between crime and general misconduct. As the district court denied him opportunity to prepare his case and secure the services of counsel I am not sure whether there has not been a miscarriage of justice.
The overall result is that since the appellant was denied his constitutional rights upon improper grounds thus depriving him of the advantage of an adequate defence guaranteed under article 20 (2) (d) and 20 (2) (e) of the Constitution and since his defence was rejected upon legally indefensible grounds, his conviction ought not to be allowed to stand.
The conviction is quashed; the sentence accordingly set aside. The fine if paid should be refunded to the appellant. The appellant is acquitted and discharged.
DECISION
Appeal allowed.
Appellant acquitted and discharged.
J.D.
