COURT OF APPEAL
DATE: 26 MARCH 1971
SIRIBOE JSC SOWAH AND ANIN JJA
CASES REFERRED TO
(1) R. v. Clark [1955] 2 Q.B. 469; [1955] 3 W.L.R. 313; 119 J.P. 531; 99 S.J. 527; [1955] 3 All E.R. 29; 39 Cr.App.R. 120, C.C.A.
(2) R. v. Rowton (1865) Le. & Ca. 520; 169 E.R. 1497.
(3) R. v. Hudson [1912] 2 K.B. 464; 81 L.J. K.B. 861; 107 L.T. 31; 76 J.P. 421; 28 T.L.R. 459; 56 S.J. 574; 23 Cox C.C. 61; 7 Cr.App.R. 256, C.C.A.
(4) R. v. Jenkins (1945) 114 L.J.K.B. 425; 173 L.T. 311; 110 J.P. 86; 89 S.J. 458; 44 L.G.R. 42; 31 Cr.App.R. 1, C.C.A.
(5) R. v. Cook [1959] 2 Q.B. 340; [1959] 2 W.L.R. 616; 123 J.P. 271; 103 S.J. 353; [1959] 2 All E.R. 97; 43 Cr.App.R. 138, C.C.A.
(6) Selvey v. Director of Public Prosecutions [1968] 2 W.L.R. 1494; 132 J.P. 430; 112 S.J. 461; [1968] 2 All E.R. 497; 52 Cr. App.R. 443, H.L.
(7) R. v. Rouse [1904] 1 K.B. 184; 73 L.J.K.B. 60; 89 L.T. 677; 68 J.P. 14; 52 W.R. 236; 20 T.L.R. 68; 48 S.J. 85; 20 Cox C.C. 592, C.C.R.
(8) R. v. Offei alias Kwame (1948) 12 W.A.C.A. 329.
(9) R. v. Jones (1909) 74 J.P. 30; 26 T.L.R. 59; 3 Cr.App.R. 64, C.C.A.
(10) R. v. Baldwin (1925) 133 L.T. 191; 89 J.P. 116; 69 S.J. 429; 28 Cox C.C. 17; 18 Cr.App.R. 175, C.C.A.
(11) R. v. Eidinow (1932) 23 Cr.App,.R. 145, C.C.A.
NATURE OF PROCEEDINGS
APPEALS by three appellants who were each convicted for robbery by Kingsley-Nyinah J. sitting with the aid of a jury in the High Court, Ho, on 16 January 1968. The facts are fully set out in the judgment of the court.
COUNSEL
Appellants in person.
P. Sarkodee, Senior State Attorney, for the respondent.
JUDGMENT OF ANIN J.A.
Anin J.A. delivered the judgment of the Court: On 19 February 1971, the appeal of each appellant was allowed and we now give our reasons.
[p.431] of [1971] 1 GLR 428
The appellants were convicted by Kingsley-Nyinah J. sitting with a jury at the Criminal Session of the High Court, Ho on 16 January 1968, of two counts each of the offence of robbery, contrary to section 149 of the Criminal Code, 1960 (Act 29), as amended by the Criminal Code (Amendment) (No. 3) Act, 1963 (Act 157), section 3. The first and second appellants were each sentenced to fifteen years’ imprisonment with hard labour on each count, the sentences to run concurrently; and the third appellant was sentenced to eighteen years’ imprisonment with hard labour on each count, the sentences to run concurrently.
The gist of the prosecution case was that on the day in question the appellants waylaid one Gabriel Kwaovi Torsavi, a bread seller, as he plied along the Ziome-Akpokploe road on his bicycle; threatened him with violence; stole from his person his Ghana and French money totalling £G17 or N¢40.80; and robbed him at the same time of his said bicycle. The prosecution called six witnesses to testify in support of their case and to show that the appellants confessed to the crime alleged against them, both before the said witnesses and in their cautioned statements to the police.
At the close of the prosecution case, the learned judge ruled that there was a prima facie case for each accused person to answer. The accused persons, who were unrepresented at the trial, elected to give evidence on their own behalf. Each accused person vehemently denied the charges preferred against him and denied having made the confession attributed to him. After the learned judge’s summing-up, the jury returned unanimous verdicts of guilty against each accused person on both counts and the court imposed the said sentences on the accused persons. From their convictions and sentences, they have now appealed to this court. They were unrepresented by counsel.
From our own perusal of the record of proceedings, we noticed a fatal procedural flaw which occurred in the course of the cross-examination of the third accused (Nicholas Kofi) on 20 December 1967 and which warranted the appeal of each appellant being allowed. The procedural irregularity in question went to the root of our whole concept of a fair trial. During the cross-examination of the third accused, counsel for the prosecution applied for leave to cross-examine him as to his previous convictions, because, as he claimed, the third accused has attacked the character of Sergeant Hanu, a prosecution witness. Leave was granted forthwith by the learned judge to counsel to prove the previous convictions, not only of the third accused person, but somewhat inexplicably, those of the first accused as well. All of this took place in the presence of the jury.
In our considered view, there was no justification, either in law or on the facts, for the court to have permitted the cross-examination of the third accused person on his previous convictions and for the first accused’s previous convictions also to be revealed. Before stating our reasons, it would be convenient to set out in full the relevant portions of the record, and we do so accordingly:
[p.432] of [1971] 1 GLR 428
“Cross-examined by Mr. Boakye Mensah (continued):
I deny also that I admitted that first and second defendants and I robbed someone. I never even knew either first or second defendant.
I do not know if Sgt. Hanu concocted the statement [which he] says I made.
I never begged Sgt. Hanu or anyone saying I had done wrong. I say Sgt. Hanu has lied to the court in what he has said about me….
By court:
Learned counsel now applies, in view of this attack on Sgt. Hanu’s character, to cross-examine third defendant as to his previous convictions. Cites R. v. Clark (1955) 35 Cr.App.R. 120. Explained to third defendant. Leave granted….
Cross-examination (continued):
I have never been imprisoned or convicted. I deny having been convicted at Denu, in 1956 for unlawful possession.
I also deny having been convicted on three counts of stealing at Denu, in 1965….
By court:
Mr. Boakye now asks for adjournment to call evidence to prove the previous convictions of first defendant and third defendant on the ground that he was taken completely by surprise on the issue of the previous convictions of the first and third defendants. Asks for 9th January.
Per Curiam: The adjournment is granted as prayed. The interests of justice clearly require that this matter be properly cleared up one way or the other so that the defendants are not unduly prejudiced by what has now been disclosed. Let this matter now stand over until Tuesday 9 January 1968.
(Sgd.) J. Kingsley-Nyinah J.
- 12. 67.”
On the adjourned day, the prosecution duly proved the previous convictions of the first and third accused for stealing and the jurors, who had been asked to retire during the trial within the trial, were recalled “and informed of the reason for their retirement.” The third accused was then recalled for further cross-examination, and testified as follows:
“Cross-examined by Mr. Boakye Mensah (continued):
I now agree that I have previous convictions. I admit that I have three previous convictions for stealing. But I do not know anything about a conviction for unlawful possession….
I have been to prison before for stealing, but I never did what is now being suggested to me.”
In Ghana, as in England, the rule is that the prosecution are generally not allowed to give evidence of the accused’s bad character or previous convictions in order to help establish that he committed the crime in question. Such evidence can, in general, be given only after the conviction
[p.433] of [1971] 1 GLR 428
in order to determine punishment. The main reason for this rule is obvious; for if it were otherwise, an accused person in a jury trial would, more likely than not, be condemned, not on evidence adduced at his trial, but on prejudice stemming from his previous convictions and general bad character. Another reason is that evidence of general evil propensity widens the issues for the trial so immensely as to be unfair to the accused. As was observed by Willes J. in R. v. Rowton (1865) 169 E.R. 1497 at p. 1506:
“Such evidence [on the question of character] is admissible, because it renders it less probable that what the prosecution has averred is true. It is strictly relevant to the issue; but it is not admissible on the part of the prosecution, because, as my Brother Martin says, if the prosecution were allowed to go into such evidence, we should have the whole life of the prisoner ripped up, and, as has been witnessed elsewhere, upon the trial for murder you might begin by shewing that when a boy at school the prisoner had robbed an orchard, and so on through the whole of his life; and the result would be that the man on his trial might be overwhelmed by prejudice, instead of being convicted by that affirmative evidence which the law of this country requires. The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine.”
The exceptions to the general rule of exclusion of evidence of an accused’s previous convictions are contained in section 129 (5) of the Criminal Procedure Code, 1960 (Act 30), and they are as follows: “129. (5) A person charged and called as a witness in pursuance of this Code shall not be asked, and if
asked shall not be required to answer, any question tending to show that he has committed, or been convicted or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless —
(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(b) he has personally or by his counsel asked questions of the witnesses for the prosecution with a view to establish his own good character or has given or called evidence of his
own good character; or
(c) the nature or conduct of the defence is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct or the defence; or
(d) he has given evidence against any other person charged with the same offence.”
[p.434] of [1971] 1 GLR 428
For the purpose of this appeal, it is the third exception contained in section 129 (5) (c) of Act 30 which is relevant. Under our law, cross-examination as to the previous convictions and bad character of the accused is permissible only when the nature or conduct of the defence is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct of the defence. In other words, an accused person under our law cannot be cross-examined as to his previous convictions and bad character if and when the conduct of his defence reasonably requires the making of injurious reflections or imputations on the prosecutor or the witnesses for the prosecution.
It is a question of fact and degree whether or not the nature or conduct of the defence in a particular case is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct of the defence. The answer will depend very much on the charge, the plea, the nature and line of defence adopted, the questions put to the prosecution witnesses, whether the questions asked or the evidence adduced by the defence are reasonably necessary for the conduct of the defence, or whether they merely attack the character of the prosecution witnesses and are not reasonably required for the conduct of the defence. Applying these tests to the answer given by the third accused under cross-examination, it is quite clear that the learned judge erred in law by holding that the third accused had lost his statutory protection on account of the answers given by him. In the first place, we are satisfied that his answers constituted an emphatic denial of the charges preferred against him and were consistent with the plea of not guilty.
By contrast, in England, the analogous statutory provision in the Criminal Evidence Act, 1898 (61 & 62 Vict., c. 36), s. 1(f) (ii) does not contain the words “which are not reasonably necessary for the conduct of defence.” That subsection rather states:
“(f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless —
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; . . .”
The English case law has, therefore, put a strict interpretation on the enactment and held that it is not legitimate to qualify the words of the Act by adding or inserting such words as “unnecessarily” or “unjustifiably”
[p.435] of [1971] 1 GLR 428
or “for purposes other than that of developing the defence” or other similar words: see R. v. Hudson (1912) 7 Cr.App.R. 256, C.C.A.; R. v. Jenkins (1945) 31 Cr.App.R. 1, C.C.A.;R. v. Cook (1959) 4 Cr.App.R. 138, C.C.A.; R. v. Clark (1960) 39 Cr.App.R. 120 and the recent House of Lords decision in
Selvey v. Director of Public Prosecutions (1968) 25 Cr.App.R. 443, H.L.
Notwithstanding the disadvantageous position of the prisoner in England with respect to the admissibility of questions about his previous convictions where the conduct of his defence involves imputations against the character of the prosecution witnesses, yet it was held in R. v. Rouse [1904] 1 K.B. 184, by the Court of Crown Cases Reserved, and more recently, by the House of Lords in Selvey v. Director of Public Prosecutions (supra), that if what is said amounts in reality to no more than a denial of the charge, expressed as it may be in emphatic language, it should not be regarded as coming within the above-stated section.
In this connection, it is unfortunate that the learned judge overlooked the following important dictum of Lord Goddard C.J. in R. v. Clark [1955] 3 All E. R. 29, a case which was cited to him and upon which he relied. At p.34, Lord Goddard C.J. stated:
“I do not want to make any joke about the matter or to put it otherwise than perfectly seriously, but one knows well that police officers are regarded as fair game for cross-examination and to make charges against, and I do not believe that any judge would allow a roving cross-examination into the prisoner’s past merely because he said: ‘The police constable is a liar’, or ‘The police constable is not telling the truth’; for all he is doing is pleading not guilty with emphasis, . . .”
In the second place the learned judge erred in law by relying on the English decision in R. v. Clark (supra) since the point in issue was fully covered by a local statute, i.e. section 129 (5) (c) of Act 30; and since the Ghanaian law differs in a material particular from the analogous English law: see the English Criminal Evidence Act, 1898, s. 1 (f) (ii), as interpreted in R. v. Clark (supra); R. v. Hudson (supra) and Selvey v. Director of public Prosecutions (supra), to mention but a few of a host of authorities on the point. The English Act does not contain the following words of our local enactment: “which are not reasonably necessary for the conduct of the defence.” Consequently, the English Act, as judicially interpreted, permits cross-examination of the accused as to his character both when imputations on the character of the prosecutor and his witnesses are cast to show their unreliability as witnesses independently of the evidence given by them; and also when the casting of such imputation is necessary to enable the accused to establish his defence: see Selvey v. Director of Public Prosecutions (1968) 52 Cr.App.R. 443 at pp. 464-465, per Viscount Dilhorne.
In the present case, the above-quoted answers given by the third accused during his cross-examination were reasonably necessary for the line of defence adopted, namely, a total denial of both the offences
[p.436] of [1971] 1 GLR 428
charged and his alleged verbal and written confessions. Clearly, under section 129 (5) (c) of Act 30, these answers did not deprive him of his statutory protection from disclosure of his bad antecedents.
It should, however, be remembered that quite apart from the issue of the admissibility of cross-examination about previous convictions or bad character in cases falling within the statutory exceptions, the trial judge has always an unfettered discretion to exclude such a cross-examination. How the discretion should be exercised must depend on the circumstances of the particular case and the overriding duty of the judge is to ensure that the trial is fair. Viscount Dilhorne in the case of Selvey v. Director of Public Prosecutions [1968] 2 All E. R. 497 at pp. 509-510 described as the proper approach to the exercise of the discretion, the following principle that was enunciated in R. v. Jenkins (1945) 31 Cr.App.R. 1 at p. 15:
‘If and when such a situation arises [the question whether the accused should be cross-examined as to character] it is open to counsel to apply to the presiding judge that he may be allowed to take the course indicated … Such an application will not always be granted, for the judge has a discretion in the matter.
He may feel that even though the position is established in law, still the putting of such questions as to the character of the accused person may be fraught with results which immeasurably outweigh the result of questions put by the defence and which make a fair trial of the accused person almost impossible. On the other hand, in the ordinary and normal case he may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person’s character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section. The essential thing is a fair trial and that the legislature sought to ensure by s. 1(f)’.”
In the third place, it was wrong and indefensible for the court to grant learned counsel for the prosecution’s strange application for adjournment in order to prove the previous convictions of the first accused, who had not attacked the character of any prosecution witnesses and who had completed his evidence two days earlier. According to section 129 (1) of Act 30, each accused person “shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.” (The emphasis is mine.) Section 129 (2) of Act 30 states that such an accused person “shall not be called as a witness in pursuance of this Code except upon his own application.” It is clear from subsection (5) of section 129 of Act 30 that the protection
[p.437] of [1971] 1 GLR 428
from cross-examination as to previous convictions or bad character, save in the four exceptional cases contained in paragraphs (a), (b), (c) and (d) of the subsection, enures to the benefit of such a person who is “charged and called as a witness in pursuance of this Code.” It is a vested right which is not taken away from him as and when a co-accused person loses his own shield by any act or step taken by him or on his behalf and falling within any of the four exceptional cases. In the circumstances, the first appellant was greatly prejudiced and embarrassed by the jury being made aware of his previous convictions without any legal justification whatsoever and before the consideration of their verdict.
In the fourth place, the court adopted the wrong procedure in hearing learned counsel’s application and argument in support of his plea to cross-examine the third accused on his previous convictions in the presence of the jury. The correct procedure is for the court to hear argument on such an application in the absence of the jury or assessors: see R. v. Offei alias Kwame (1948) 12 W.A.C.A. 329 where at p. 330 Smith Ag.C.J. (as he then was) stated:
“[T]he proper course for prosecuting Counsel to follow is for him to indicate to the trial Judge that he wishes to take a certain course and ask for his ruling, and if there is to be an argument on the point it is desirable that the Jury or Assessors should retire while the argument is carried on and the ruling made.”
We should add further, that it is necessary in practice for the trial judge to warn an accused, especially where he is unrepresented, that he is going too far in his cross-examination of the prosecution witnesses and thereby exposing himself to cross-examination as to his own credit and antecedents: see R. v. Cook (1959) 43 Cr.App.R. 138 at p. 147, C.C.A.; and Selvey v. Director of Public Prosecutions (1968) 52 Cr.App.R. 443 at p. 468, H.L.
In the instant case the third accused did not impugn the character of a single prosecution witness during his cross-examination of them, neither did he in his evidence-in-chief attack the prosecution. It was rather the prosecuting counsel who trapped the unsuspecting and unrepresented accused person into confirming that Sgt. Hanu (a prosecution witness) had lied to the court in his evidence about him. His answer was surely no more than an emphatic mode of denial.
In R. v. Jones (1909) 3 Cr.App.R. 64, C.C.A., it was held that prima facie, answers given by a prisoner to questions put in cross-examination are not a part of the “nature or conduct of the defence,” but are part of the case for the prosecution and that if such questions are in the nature of a trap, an involuntary imputation on the character of a prosecution witness made in the answer will not justify putting in evidence of the bad character of the prisoner. See also R. v. Baldwin (1925) 18 Cr.App.R. 175, C.C.A., and R. v. Eidinow (1932) 32 Cr.App.R. 145, C.C.A. In this case, what was labelled “an attack” on a prosecution witness (Sgt. Hanu) was but answers by the third accused to questions put in cross-examination. Prima facie, these answers do not form part of the “nature or conduct
[p.438] of [1971] 1 GLR 428
of the defence” within the meaning and scope of section 129 (5) (c) of Act 30. The learned judge, therefore, further erred in regarding the third accused’s answers to prosecution counsel’s questions as forming part of “the nature or conduct of the defence” for the purpose of the said enactment.
It was for the above reasons that we ruled that the learned judge erred in allowing questions to be put to the third accused on his previous convictions. Since, in the circumstances, the jury were erroneously apprised of the previous convictions of the first and third accused persons for stealing prior to the summing-up and the consideration of their verdict, it is indisputable that there was a substantial miscarriage of justice and a denial of a fair trial for all the accused persons who faced a joint trial on two counts of robbery. Since we, sitting in this appeal court, cannot determine without doubt whether a reasonable jury would, after being directed on properly admissible evidence have convicted these appellants of the offences charged, we had no option but to allow their appeals, acquit and discharge them. In any event, justice must be dispensed according to the law; and in a case where statutory safe-guards for the benefit of the accused persons have been violated and the jury have been erroneously informed of the bad character of two out of three accused persons in a joint trial before retiring to consider their verdicts, the ends of justice and fairplay would best be served by allowing these appeals and quashing the convictions, which we accordingly did.
It is only fair and proper to add that the learned senior state attorney conceded that there was no basis in law for the learned judge allowing the prosecutor to prove the previous convictions of the first and third accused persons in the course of the trial and before the verdict, since no occasion had arisen under section 129 (5) of Act 30 for the departure from the normal rule. He further submitted honourably that the irregularity thus caused went to the root of the trial and justice was not done to the accused persons. We entirely agree with him.
DECISION
Appeals allowed.
Convictions quashed.
