Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant was convicted by the High Court, Sekondi, of the murder of his wife, one Afua Ampomah. The crime was committed in the village of Kramokrom on the night of 15 September 1962.
According to the case for the prosecution, the appellant who had, within the three weeks immediately preceding the crime, begun to suspect his wife of flirting with one Sulemanu Moshie, took leave of his wife at about 8 p.m. on the said 15 September 1962, allegedly to go out hunting, taking with him his single barrelled shot gun, some cartridges, a cutlass and his animal skin hunting bag, but leaving behind his hunting lamp. He had earlier that evening sent his step-daughter, the eldest child of the deceased, and his own first child by the deceased, to spend the night with their neighbour and friend, a woman popularly known as Mami Fanti; this was nothing unusual. The appellant returned to the house a short time after he had left, apparently to collect the hunting lamp, but as he arrived, he entered into the room where his wife and their two young children were, and began to quarrel with the wife alleging that he had seen Sulemanu Moshie come out of the room. In the course of the quarrel the appellant threatened the deceased with a knife; thereupon the deceased ran out of the room, the appellant took the gun and chased her with it. In the course of the chase the deceased turned round, just then the appellant fired at her at very close range and killed her instantly.
The defence put up at the trial is that the death was caused accidentally. The appellant alleged that he had returned to the house to collect his lighter, that when he was entering the house he saw Sulemanu Moshie going out, that he questioned the wife about it but she denied that anyone had been in the house; he said that an altercation ensued, during which he left the house going to report the incident to their neighbour and friend the said Mami Fanti. The appellant said he carried the loaded gun on his shoulder all that time, and that on his way to Mami Fanti’s house, the deceased followed him, caught hold of the muzzle of the gun from behind him, he and the deceased then struggled over the gun, during which the gun accidentally went off and killed the wife there and then.
The case for the prosecution depended upon (1) evidence of an eyewitness, a child of tender years, the tenth prosecution witness given not on oath; (2) evidence of some of the villagers who heard the report of the gun followed immediately thereafter by the alarm raised by the child of tender years, and rushed to the spot immediately; these include the eldest child of the deceased, step-daughter to the appellant, the said Mami Fanti, the third prosecution witness, and the Odikro of the village the fifth prosecution witness, who caused the appellant to be placed under custody, and had him handed to the police; and (3) a caution statement made by the appellant to the police the day after the incident, when he was charged with the offence.
Before dealing with the grounds of appeal and the submissions made by both counsel in respect thereof, we wish to draw attention to two matters. The first is with respect to a statement the appellant was alleged to have made to the police when he was taken to the police station upon directions of the Odikro, with a report that he had killed his wife. According to a police sergeant, the appellant was cautioned, and thereupon he made a statement saying inter alia that he had killed his wife because he suspected she was flirting with someone. Although this statement was alleged to have been made at the police station and after due caution, the same was not recorded, and no notes of it appeared to have been made anywhere. The explanation the sergeant gave for this extraordinary action is that, “police do not record preliminary investigation statements of accused persons.” In respect of this matter the learned judge directed the jury as follows:
“It is only when the police have decided to charge an accused person and that an accused has been duly charged and cautioned that anything he says is then put down in writing. That is the regular practice and procedure used by the police and I charge you to take cognisance of and to accept it as the prevailing practice.”
This statement made by the learned judge is most unfortunate. If through whatever extra-judicial connections the learned judge might have, he has got to know of such a practice, it is certainly not one of which the learned judge should have taken judicial notice, much less have given it judicial blessing. On the contrary, the court can, from the large number of cases which come before the court, take judicial notice of the fact that when a police officer, while investigating a case particularly at the police station where he has all the facilities of writing,
cautions a suspected person in the usual way, he makes a written record of the statement which the suspected person makes to him. The encouragement of such a practice as alleged by the learned judge, will lead to many abuses, and will result in grave miscarriages of justice. If the practice exists, the court should frown at it. It is a different thing for a police officer out on investigations, cautioning a suspect in the course of his duties and hearing what the suspect says without taking it down in writing and afterwards relating what the suspect had told him as part of his evidence in court. But it is certainly not proper for police investigating a case at the police station or at any place where he has facilities of recording what a suspect tells him during the course of investigations into a case, to refrain from recording what the suspect says, upon the sham excuse that he had not formally charged the suspect with an offence.
The second matter is the directions which the learned trial judge gave to the jury on the defence of accident put up by the appellant. He said, “If you accept the defence of accident after being satisfied that it is amply supported by the evidence before you⎯then your verdict should be not guilty of murder, but guilty of manslaughter.” This amounts to a direction that death caused by accident is culpable homicide. With due deference to the learned trial judge we feel compelled to say that this is a strange proposition of law. If death is caused by accident, it means that it was not caused intentionally, and the harm which resulted from it is not unlawful, and not negligently caused either. In such a case, no offence is committed, and the proper direction to a jury is that they should return a verdict of not guilty. Had the jury, upon this misdirection in law, returned a verdict of guilty of manslaughter, we would have felt compelled to quash the conviction, because that conviction would mean that the jury were satisfied upon the evidence that the death was accidentally and not intentionally caused. We shall now deal with the grounds of appeal argued. The first is:
“That the learned trial judge wrongly admitted in evidence exhibit G, that is, the alleged statement of the appellant to the police. The learned trial judge ought to have heard evidence in view of the objection of defence counsel to the admissibility of the statement, before deciding that the statement was admissible.”
It was submitted on behalf of the appellant that as objection was raised at the trial to the admission of the statement exhibit G at the stage where the prosecution sought to tender it, the said statement should not have been admitted until the court had heard evidence on the issue and become satisfied that the statement was admissible.
It is correct that where objection is raised to the admission of a statement made by a defendant in a criminal case on the grounds that the defendant did not make the alleged statement, or that the said statement was not a voluntary statement, or that it was made under duress, or procured by threats or promise, the said issues should be tried, and a court should not admit the statement until it is satisfied that it is a voluntary statement made by the defendant: see R. v. Onabanjo1 and R. v. Kassi2 But this rule only applies where, as earlier pointed out, the allegation is either that no statement at all was made by the defendant, or that the statement was made by him in consequence of duress, threat, or promise, and not that the statement is not an accurate record of what the defendant had said. The admissibility of the statement is one thing, the weight to be attached to its contents is quite a different thing. The admissibility is a question of law for the judge; the weight to be attached to it, or the questions whether the contents are true or accurate are questions of fact for the jury. Therefore the statement must first be admitted before its contents can be evaluated.
Now the objections raised at the trial by counsel against the admissibility of the statement are as follows:
“(i) It is in a large measure not what the defendant told the policeman who took it down.
(ii) The statement as given by Asante the fourteenth prosecution witness as being the statement made by the defendant conflicts in certain respects with the statement supposed to have been made by the defendant.”
These are objections with respect to the contents of the document. At that stage the court must admit the statement to enable the jury to make findings upon the contents, and at the proper time, the judge did direct the jury to determine whether or not the contents of the document, exhibit G, were a correct record of the statement the appellant made to the police. We are of opinion, therefore, that the document, exhibit G, the statement made by the appellant was properly admitted.
At a very late stage in the case, during the course of his evidence, the appellant for the first time alleged that the thumb-print on exhibit G was not his. The prosecution, having been taken by surprise, was allowed, quite properly in our view, to adduce rebutting evidence; they called a thumb-print expert who proved that the thumb-print on exhibit G was indentical with other thumb-prints which the appellant admitted to have been made by him. That rebutting evidence together with evidence earlier given by an independent witness to the making of the statement by the appellant and the affixing of his thumb-print thereto, conclusively proved exhibit G as a voluntary statement made by the appellant.
With respect to the second and third grounds, it was submitted for the appellant that the learned judge misdirected the jury (i) by directing them that they could accept and believe Amma Donkor’s (the tenth prosecution witness’s) statement to police, exhibit X, and (ii) by not directing the jury that they should view the inconsistency in the statement of the tenth prosecution witness to the police with the evidence she gave on oath as affecting her credibility. The document exhibit X mentioned in the grounds of appeal, is a statement which the child eye-witness, the tenth prosecution witness made to the police, and which was admitted as part of the proceedings in pursuance of section 268 (2) of the Criminal Procedure Code, 1960.3
This submission is based upon good ground. The learned judge did direct the jury to choose between the contents of exhibit X and the evidence which the witness, the tenth prosecution witness, gave at the trial; he directed them to make up their minds about the contents of exhibit X whether they are true or not, and if they should decide that its contents are true, to reject the evidence given by the witness. As we shall see presently, the effect of admission of a statement a witness had given to the police is as to credibility of the witness, whether or not the court should rely upon the evidence he gives in court, not whether or not the statement he gave to the police is correct. But this misdirection, which is one as to law, cannot avail the appellant much, because it erred very much in favour of the appellant and not vice versa.
Now section 268 (2) of the Criminal Procedure Code, 1960,4 provides that:
“If a witness is cross-examined at the trial on behalf of the accused on any part of the witness’s statement to the police the prosecution may furnish the Court with a copy of the statement which shall become part of the record of the trial.”
The admission of such a statement does not make the contents thereof part of the evidence in the case, it only forms part of the material and circumstances in the case which should be used by the jury, or a judge sitting as judge and jury, in forming their opinion of the credibility of the witness who made the said statement. Thus section 268 (3) of the Criminal Procedure Code, 1960, provides that: “The statement shall not thereby become evidence of any facts alleged therein but the judge and jury may take it into account in judging the credibility of the witness on his evidence as a whole and the prosecution and defence shall be entitled to refer to it in examining or cross-examining any witness and in addressing the Court.”
But although the learned judge misdirected the jury on one aspect of the document, exhibit X, he did at a later stage correctly direct the jury as to the legal effect of the admission of the said statement, and directed the jury that they may consider it as a ground of discrediting the tenth prosecution witness; and that is all the law permits him to do. He did not direct the jury to accept the contents of that statement, exhibit X, as is alleged by counsel for the appellant.
As a matter of interest, everything which the tenth prosecution witness said in her evidence at the trial appears in the said statement, exhibit X, with one significant exception; that one exception is that in her evidence, the witness said that she saw the appellant fire at and kill her mother and she immediately therefore raised alarm, while in the statement, exhibit X, she is recorded as having said that she was in the room when she heard report of a gun, that the appellant came to the room some time after that, and later on some people also came to the room including Mami Fanti, and it was there that she, the witness, learnt that the appellant had killed her mother. It must, however, be remembered, that all the witnesses who were the first to go to the scene, including the said Mami Fanti are emphatic that it was the alarm raised by the said tenth prosecution witness, following immediately upon the gun report, saying that the appellant had killed her mother, which attracted them to the scene. The logical inference from that evidence given by the adult witnesses is that the tenth prosecution witness was the first person in the village to know of the shooting by the appellant and the death of the deceased, and that it was from her and through her that others got to know of the incident and not vice versa.
Since, as it appears, the jury accepted the tenth prosecution witness as a witness of truth in spite of the improper direction given to them by the learned judge, and since there is ample evidence which warrants the credibility of the said tenth prosecution witness being accepted as beyond reproach, the court cannot interfere with a verdict of the jury based partly on the evidence of the said tenth prosecution witness, and partly upon cogent and convincing material evidence.
With respect to the fourth and fifth grounds of appeal which were argued together, counsel for the appellant submitted that the learned judge (i) misdirected the jury by not directing them on the particular point in the evidence of the tenth prosecution witness which needed corroboration, and (ii) misdirected the jury by mentioning four instances of evidence of the tenth prosecution witness, where in law those four instances do not afford such corroboration. Learned senior state attorney argued that even if the four matters mentioned by the learned trial judge do not afford corroboration to the particular piece of the evidence of the tenth prosecution witness which required corroboration, there is sufficient evidence on the
record which provides corroboration for the material part of the evidence of the tenth prosecution witness which required corroboration.
The only point in the evidence of the tenth prosecution witness which required corroboration is her evidence that the appellant chased the deceased with the gun and shot her as she turned to look back. The law is, that although matters mentioned in a judgment as affording corroboration are not in law corroboration, yet if there is evidence which affords corroboration, the misdirection by the judge is not fatal, and the appeal court will take cognisance of the evidence which provides the corroboration.
We agree with the submissions of counsel for the appellant that none of the four matters mentioned by the learned judge can afford corroboration for that part of the evidence of the tenth prosecution witness requiring corroboration. But we are of opinion, agreeing with senior state attorney, that there is overwhelming evidence, direct and circumstantial, which corroborates the evidence of the tenth prosecution witness in this regard.
As to direct evidence, there is the statement, exhibit G, made by the appellant on caution when he was charged with the offence. He said:
“Yesterday at about 8 p.m. I told my wife that I was going to the bush on hunting expedition. I took a single barrelled shot gun, twelve cartridges, a hunting lamp and a cutlass and pretended as if I was going to the bush. I left the house when my wife was in. I lay ambush at the back of Sulemanu Moshie’s house and whilst there I saw my wife come to the house. I heard Moshie man tell my wife that I had come to the area and so she should go. My wife left the place and went home. I followed her to the house and enquired from her as to what she went to do in Sulemanu Moshie’s house. She told me she would not reply to my question. This happened in my room. My wife got out from the room. I chased her with a gun. She was on the run when she
turned herself to look behind and I fired the gun at her. She fell down and after some few minutes she died.”
Of the circumstantial evidence we would mention just one matter, namely, the fact that even though the deceased bled profusely, no blood stain of any sort was found on the appellant, which shows that his body was not in touch with the deceased; this is particularly important when it is taken in conjunction with the evidence by which the appellant sought to refute the tenth prosecution witness, the evidence given by the appellant that he and the deceased were struggling over the gun, and that as soon as the gun went off he bent over the deceased and shook her up.
No doubt there are misdirections here and there in the lengthy summing-up covering 66 pages of foolscap paper, and that some of them are quite serious. But none of these misdirections affect the real issues in the case; those therefore cannot found grounds for interfering with the verdict of the jury; and in any event there has been no miscarriage of justice.
For the reasons stated above, we dismiss the appeal.
DECISION
Appeal dismissed.
N. A. Y.
