HIGH COURT, ACCRA
Date: 19 NOVEMBER 1974
ABBAN J
CASES REFERRED TO
(1) Burton v. Board [1929] 1 K.B. 301; 98 L.J.K.B. 165; 140 L.T.289, C.A.
(2) Ellis v. Home Office [1953] 2 Q.B. 135; [1953] 3 W.L.R. 105; 97 S.J. 436; [1953] 2 All E.R. 149, C.A.
(3) R. v. Pratt [1971] Crim.L.R. 234, C.A.
(4) R. v. Bathurst [1968] 2 Q.B. 99; [1968] 2 W.L.R. 1092; 112 S.J. 272; [1968] 1 All E.R. 1175; 52 Cr.App.R. 251, C.A.
(5) Togbe Fiti IV v. The State [1965] G.L.R. 33.
(6) R. v. Thames Magistrates’ Court; Ex parte Polemis [1974] 2 All E.R. 1219, D.C.
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(7) R. v. Barnes (1970) 55 Cr.App.R. 100, C.A.
(8) Republic v. Maikankan [1971] 2 G.L.R. 473, S.C.
(9) Republic v. Military Tribunal; Ex Parte Ofosu-Amaah [1973] 2 G.L.R. 227.
(10) Hennessy v. Wright (1888) 21 Q.B.D. 509; 57 L.J.Q.B. 530; 59 L.T. 323; 53 J.P. 52; 4 T.L.R. 597.
(11) Chatterton v. Secretary of State for India in Council [1895] 2 Q.B. 189; 64 L.J.Q.B. 676; 72 L.T. 858; 59 J.P. 596; 11 T.L.R. 462; 14 R. 504, C.A.
(12) Duncan V. Cammell, Laird & Co., Ltd. [1942] A C. 624; [1942] 1 All E.R. 587; 111 L.J.K.B. 406; 166 L.T. 366; 58 T.L.R. 242; 86 S.J. 287, H.L.
(13) R. v. Clewer (1953) 37 Cr.App.R. 37, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against a judgment of a circuit court, convicting the appellant of the offence of intentional libel contrary to section 112 (2) of the Criminal Code, 1960 (Act 29). The facts are fully stated in the judgment.
COUNSEL
P. A. Adjetey, for the appellant.
S. E. Asamoah, Senior State Attorney, for the respondent.
JUDGMENT OF ABBAN J.
The appellant was convicted of the offence of intentional libel by the Circuit Court, Accra, on 12 February 1971, and was sentenced to a day’s imprisonment and a fine of 0500.00 or a term of six months’ imprisonment. He appealed to this court against his conviction on three grounds, namely:
(1) The judgment is unreasonable and cannot be supported;
(2) The appellant was denied a fair trial inasmuch as he was prevented from leading evidence on matters on which the Republic were permitted to lead evidence; and
(3) The learned trial judge erred in refusing to refer questions on the interpretation of the Constitution, 1969, and matters falling within article 124 thereof to the Supreme Court.
I will briefly state the facts of the case. The appellant was at the material time the editor of a newspaper called The Spokesman. On 11 August 1970, The Spokesman carried a front page editorial comment on the appointment ofjudges to the Supreme Court, as established under the suspended Constitution of 1969. The editorial in question was captioned as follows: “C.J. SPEAK NOW.” Under this caption, the appellant made certain comments which, on the whole, indicated that the appointment of the persons mentioned in the said editorial, including the first prosecution witness, was not proper. The first prosecution witness, at the time of his appointment to the Supreme Court, was a High Court judge and, at the same time, the Interim Electoral Commissioner; and it was stated in the editorial that the appointment of the first prosecution witness was a reward for the assistance that he gave to the winning party in the 1969 general elections. On reading a copy of this particular issue of The Spokesman the first prosecution witness felt that he had been intentionally
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defamed and he reported the matter to the Attorney-General. The appellant was then charged with intentional libel, contrary to section 112 (2) of the Criminal Code, 1960 (Act 29).
The newspaper, The Spokesman, was owned by a company called Spokesman Publications Ltd. It appears this company had no printing facilities and the printing of the newspaper was done by another company known as Floent Press Limited. Thus, the managing director of that press was also charged with aiding and abetting the appellant to commit the crime of intentional libel. But at the close of the case for the prosecution, the learned circuit judge held that no prima facie case had been made out against the director of the Floent Press Limited. The said director was therefore acquitted and discharged. The appellant, however, was called upon to make his defence and eventually he was convicted of the crime charged.
Learned counsel for the appellant first argued ground (2) as stated above. On that ground, he submitted that there was undue interference by the learned circuit judge when the appellant was trying to put forward his defence. Counsel contended that the learned circuit judge unreasonably prevented Lieutenant-General Ocran, the first defence witness, and Mr. J. W. K. Harlley, the second defence witness, from answering every question put to them by defence counsel during the examination-in-chief, even though the prosecution did not object to those questions. Counsel argued that after the submission of no case made on behalf of the appellant had been overruled, the appellant was required to produce evidence which would establish facts upon which the appellant commented; and also to show that they were facts from which it could be deduced whether the comments in the offending editorial were, under the circumstances, fair or not and upon which one could also deduce good faith. But the appellant was vehemently prevented from eliciting such facts or evidence from the appellant’s own witnesses.
It was the contention of learned counsel that the prosecution was trying to show the regularity of the appointment of those persons, including the first prosecution witness, to the Supreme Court by calling the Secretary to the Judicial Council, and the Secretary to the Presidential Commission, Mr. Quao, to testify. But the defence, counsel submitted, had information about the irregularities involved in the said appointment at the Presidential Commission level; for example, apart from the chairman, the other two members of the commission, the first and second defence witnesses, never knew of the said appointments. Thus the defence called the first and second prosecution witnesses to establish the irregularities and the facts upon which the appellant commented and from which good faith could be deduced; and it was therefore unfair to prevent the first and second defence witnesses from answering questions when the learned circuit judge had already allowed the secretary to the Presidential Commission to give exhaustive evidence about the proceedings of the Presidential Commission. That was tantamount to allowing the prosecution to show only,
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one side of the picture and preventing the defence from showing the other side. Counsel submitted that the effect of that unreasonable interference was that the appellant was prevented from putting forward, through his own witnesses, his defence and establishing it.
Learned counsel for the respondent did not see anything wrong with the conduct of the learned circuit judge. Counsel first submitted that the defence counsel, knowing that he wanted to build a case from the evidence of the first and second defence witnesses, ought to have gone on and on, at the trial, to put questions to those witnesses even if the trial circuit judge stopped those witnesses from answering them. If that had been done, this appellate court, submitted counsel, would have had on record something which could be said to be the nature of the appellant’s defence. But since that was not done, there was nothing on record to show what exactly the defence was; and that the argument of the appellant’s counsel that the defence was trying to establish irregularities in the appointment of those persons to the Supreme Court was not supported by the record. Learned counsel for the respondent further contended that there were certain relevant matters or facts which should not be produced in evidence on grounds of public policy; and in the present case, the learned circuit judge disallowed those questions because if they had been allowed to be answered, the answers would have definitely divulged “certain important and secret matters of affairs of the state.” Counsel therefore submitted that those questions were properly disallowed on grounds of privilege.
In order to appreciate the points so far raised herein, I will go back to the stage where the submission of no case, made on behalf of the appellant, was overruled. In his lengthy ruling on the submission of no case, the learned circuit judge stated, inter alia, that on his reading of the whole of the editorial comment, he was of the view that the said editorial imputed that the complainant, the first prosecution witness, was not fit to hold the post of a Supreme Court judge and that the first prosecution witness, as Interim Electoral Commissioner, misconducted himself by showing bias in favour of one particular party in his conduct of the 1969 general elections. The learned circuit judge continued:
“I think I have said enough to show that a prima facie case has been made out against the first accused. That means that if the first accused decides not to enter upon his defence, the evidence on record would support a conviction. It is now left to him to avail himself of the defences open to him under section 118 of Act 29. The defence may be good faith which under section 118 covers fair comment and justification.”
The learned circuit judge then quoted with approval the dictum of Sankey L.J. in Burton v. Board [1929] 1 K.B. 301 at p. 306, C.A. which laid down what an accused person, in the position of the appellant, must establish before he can succeed in his defence. He then concluded his ruling in the following manner:
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“This is the job for the defendant or an accused person. It is not the job of a plaintiff or a prosecutor. If the first accused’s [appellant’s] explanation is reasonably probable, then the prosecution have failed to prove their case beyond reasonable doubt and I would be bound in law to acquit the first accused … I accordingly call the first accused [appellant] to enter upon his defence.”
It was on 8 February 1971 when the appellant opened his defence by calling Mr. J. W. K. Harlley and Lieutenant-General Ocran, who were both members of the Presidential Commission at the time when the appointment of judges to the Supreme Court was made. The prosecution raised objections against their being sworn as witnesses for the defence. The objections were, quite properly, overruled. But the learned circuit judge indicated to the defence in clear terms, at that stage, that he was going to take up himself the question of state privilege in due course, and would not allow those defence witnesses to give evidence on certain matters even if the prosecution did not raise objection. I must quote exactly what the learned circuit judge said:
“Since the judge is entitled to take questions of privilege himself I shall take it in the present case, even if no one else takes it, and shall be disposed to disallow any evidence that would tend to refer to the manner in which the appointment of the Supreme Court judges was made by the Presidential Commission. At this stage, however, the law requires that the witness be sworn. He can give his name, address, and occupation and confirm that at a certain time he was a member of the Presidential Commission. He will thereafter be protected by the court from answering any question relating to the performance or non-performance of his functions as a member of the commission.”
(The emphasis is mine.)
It can be seen from the above statement that before the defence witnesses started to give their evidence, it had become crystal clear to everybody that the learned circuit judge had determined not to allow the defence witnesses to give any evidence which might tend to show the consideration on which the selection of judges to the Supreme Court was based; and had also determined to prevent those witnesses from answering any question which might touch on the performance of their duties as members of the Presidential Commission. In other words, once the questions put to the witnesses related to the appointment of judges to the Supreme Court, or concerned the performance of their functions as members of the Presidential Commission, the witnesses would be prevented from answering them, irrespective of whether or not the said questions if answered would disclose information injurious or prejudicial to the interest of the public.
I find this rather strange. Because if the particular evidence which the questions might seek to elicit, concerning the performance of their duties as members of the Presidential Commission and concerning the manner in which those witnesses selected the four persons out of the seven recommended for the Supreme Court, would not be evidence which would be detrimental to the security of the state or against the public interest, I do
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not see why those witnesses should be prevented from answering them on grounds of state privilege. However, true to the stand which the learned circuit judge had taken, he disallowed almost every question put to the defence witnesses during the examination-in-chief, even though the prosecution did not see anything wrong with those questions, and therefore did not object to them. I will set down some of the questions disallowed. After the first defence witness, Lieutenant-General Ocran, had been sworn he stated as follows:
“My full name is Lieutenant-General Albert Kwesi Ocran. I am a retired army officer. I live in Accra. I was a member of the Presidential Commission. The commission was dissolved on 7 August 1970. My colleagues on the commission were Lieutenant-General Afrifa and Mr. J. W. K. Harlley.
Q. You have seen that document; i.e. exhibit N now?
A. Yes.
Q. Have you ever seen that document before?
By Court: I am afraid I cannot allow this question in the light of my ruling made yesterday from which I have no reason to depart.”
It appears the defence counsel was taken aback by that statement, for he enquired from the learned circuit judge whether he was disallowing the question on grounds of privilege since the prosecution never objected to the question. The defence counsel then pointed out that the prosecution which tendered the very exhibit N had already been allowed by the learned trial judge to lead evidence about the said exhibit; and that it would be fair if the defence witness was allowed to say what he also knew about that exhibit. The learned circuit judge brushed the defence counsel aside in the following words:
“By Court: The question raised by learned counsel has been discussed in extenso in my ruling given yesterday and I am not disposed to reconsider my ruling made earlier this morning.”
With this reply, the defence counsel continued his examination-in-chief as follows:
“Q. Whilst you were a member of the Presidential Commission did you at any time discuss with your colleagues on the commission the appointment of judges to the Supreme Court?
By Court: Question disallowed.
Q. At the time the commission was dissolved were you in Ghana?
By Court: Question disallowed.
Q. Did you at any time get to know that judges had been appointed to the Supreme Court?
By Court: Question disallowed.”
Having become obvious that the trial circuit judge was not prepared to allow the first defence witness to answer questions, and since there was no use going on with the said examination-in-chief, counsel gave up, and because there was no evidence on which the first defence witness could be cross-examined, the prosecution never cross-examined; and the first
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defence witness was discharged from the witness-box. The defence counsel then called the second defence witness, Mr. J. W. K. Harlley, into the witness-box, and again, the trial circuit judge would not allow the second defence witness to answer any questions. As hitherto, I will set out what took place. After the second defence witness had been sworn and had given his name and address, he was asked:
“Q. Did you at any time during the month of August 1970, travel outside Ghana?
By Court: Question disallowed.
Q. Were you in Ghana when the Presidential Commission was dissolved?
By Court: Question disallowed.
Q. Did you together with your colleagues discuss questions on which from time to time a decision was required from the Presidential Commission?
By Court: Question disallowed.
Q. I will show you exhibit N. Before seeing it in court have you ever seen it?
By Court: Question disallowed.
Q. Do you possess a passport?
By Court: Question disallowed.
Q. Do you frequently travel outside Ghana?
By Court: Question disallowed.”
At this juncture, the defence counsel, quite properly in my view, discontinued his examination-in-chief; because, as it was in the case of the first defence witness, it had become apparent that the trial judge had also determined not to allow the second defence witness to give evidence on any matter whatsoever for the appellant.
If one examines carefully the questions which the learned circuit judge prevented the defence witnesses from answering, and if those questions are compared with or weighed against the evidence which Mr. Quao, gave on behalf of the prosecution, then one begins to raise one’s eyebrows and then to wonder why the trial circuit judge should have found it necessary to disallow those questions in the name of state privilege. Mr. Quao was the Secretary to the Presidential Commission of which the first and second defence witnesses were members. Mr. Quao was indeed a top civil servant and was holding a very sensitive post. One would therefore have thought that he was in the same position as the first and second defence witnesses and should not give evidence which might disclose what the members of the Presidential Commission did or did not do about the appointment of the said judges, and about how he and the members of that commission performed their respective duties. But, surprisingly, the learned circuit judge allowed Mr. Quao to give evidence which, to quote the learned circuit judge, “referred to the manner in which the appointment of the Supreme Court judges was made by the Presidential Commission.” He allowed Mr. Quao to answer questions “relating to the performance and non-performance” of his functions, and also about “the performance and
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non-performance of the functions of the members of the Presidential Commission.”
In short, the learned circuit judge permitted Mr. Quao to give evidence and to answer questions which revealed confidential matters supposed to have been discussed by members of the Presidential Commission; but when it came to the turn of the appellant to adduce evidence, through the first and second defence witnesses to rebut the evidence or most of the things said by Mr. Quao, the appellant was met with a claim of state privilege, raised not by the prosecution or by the witnesses (the first and second defence witnesses) but by the learned circuit judge.
I concede that a trial judge has a discretion to raise the point of privilege even if the parties to the proceedings do not raise it. But that discretion, like any other judicial discretion, must be “sound discretion guided by law” and must be “governed by rule.” It must not be arbitrary and vague. Unfortunately, in the instant case, the discretion which the trial circuit judge exercised in raising the privilege against the defence witnesses was arbitrary and vague. This is more so when it is remembered that he, as I have already pointed out, permitted the prosecution witnesses, especially Mr. Quao, to give copious evidence freely and without interference and to disclose confidential communications between himself and the chairman of the Presidential Commission and on the very matters on which no evidence was permitted to be given by the first and second defence witnesses. If those matters were considered not to be privileged at the time the prosecution witnesses were giving their evidence, why then should they suddenly come under privilege when it came to the turn of the defence to give evidence. The privilege seemed to have been raised in a “blanket form” to prevent the defence witnesses from answering any question, no matter whether the question when answered would or would not disclose information detrimental to the interest of the public.
I appreciate that the scope of this type of privilege is wide, and the law in regard to the privilege is not always easy to follow. Nevertheless, I am of the view that where a trial judge had exercised his discretion and allowed a prosecution witness to divulge information concerning matters which could be the subject of a proper claim to protection from disclosure, then there should be no reason why the defence should not also be permitted to elicit evidence from its own witnesses on the same issues. One thing the courts have, from time immemorial, sought to make clear is that there ought to be fair play, and parties to proceedings always desire that. But the danger is that if a claim of state privilege is made in the wide terms in which the learned circuit judge did make it in the present case, it prevents anything being shown or said; and consequently, one side has all the advantages and the other side is deprived of material evidence which he might have put before the court “without any danger whatsoever to the public weal.” There was absolutely no justification for preventing the defence witnesses from answering those questions. The privilege was unfairly raised against those defence witnesses and that placed the appellant at a serious disadvantage.
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In my considered opinion, this is a case where it is totally unarguable to say that justice was not seen to be done. It is a settled principle of law that justice must not only be done but it must manifestly and undoubtedly be seen to be done. In Ellis v. Home Office [1953] 2 Q.B. 135, C.A., Lord Morris emphasized the importance of observing this principle whenever any person or authority is minded to raise the claim of state privilege in any proceedings. At P. 147 of the report the learned Lord said:
“When considering the public interest, and when considering what might be ‘injurious to the public interest,’ it seems to me that it is to be remembered that one feature and one facet of the public interest is that justice should always be done and should be seen to be done. It is, indeed, unfortunate in any case-unless considerations of public interest when weighed in the balance demand it-if it should appear that any document which might conceivably have assisted a party to the litigation should not be available. A Minister has the anxious and arduous and responsible task of deciding whether disclosure would be against the public interest. When he decides, his decision is final. But it is, I think, one element of the public interest that regard should be had to the due administration of justice in such manner that it should always be done, and should be seen to be done.”
(The emphasis is mine.)
In the course of his judgment the learned circuit judge made the following statement:
“The ruling of this court that a prima facie case has been made out meant that exhibit A bristles with malice and bad faith, and it is difficult to appreciate how the said malice and bad faith can be displaced by the accused without the accused giving evidence himself or getting a witness to discharge that onus on his behalf. Neither the first defence witness, Lieutenant-General Ocran nor the second defence witness, Mr. J. W. K. Harlley was able to displace the said bad faith and malice in his evidence.”
(The emphasis is mine.)
That statement is correct. But who brought about the inability of those witnesses to “displace the said bad faith and malice” ? It was the trial court itself. How could those witnesses, the first and second witnesses, “displace bad faith and malice” on behalf of the appellant when they had been prevented unreasonably and unfairly from telling the court what the facts were and from which the court could have decided whether or not the comments, as contained in the offending editorial, exhibit A, were fair and justifiable.
The learned circuit judge again stated in his judgment that the accused, “himself elected not to go into the witness box to give evidence on oath, or to give unsworn evidence from the dock.” That is also true; but the guilt of an accused person cannot be assumed simply because he has not given evidence. He is under no obligation to give evidence; and even though his failure to give evidence may be commented upon unfavourably,
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nevertheless it establishes nothing. So that the absence of the appellant from the witness-box added nothing affirmative to the prosecution’s case: see R. v. Pratt [1971] Crim.L.R. 234, C.A. and R. v. Bathurst (1968) 52 Cr.App.R. 251, C.A.
It was, however, not at all surprising that the appellant did not enter the witness-box to give evidence. Because the manner in which the learned trial judge prevented the defence witnesses from answering questions relating to the very issues on which the prosecution had been permitted to lead evidence was bound to make the appellant feel that the trial judge had already come to a conclusion with regard to the case that was adverse to the appellant, and that he, the trial judge, regarded the defence as devoid of any foundation. It was therefore no wonder that the defence counsel did not think it necessary to put the appellant in the box. To present an improbable defence, as the learned trial judge seemed to have thought it, was difficult enough. But if counsel had to do so in the circumstances outlined above, then his task was made almost impossible.
I will now turn to the questions which were disallowed. Considering the case as a whole, I think none of the questions disallowed was likely to reveal information that was injurious to the public interest or detrimental to the security of the state. Some of the questions disallowed were quite innocuous. For example, have you seen that document (exhibit N) before? Were you in Ghana at the time the Presidential Commission was dissolved? Did you during the month of August 1970, travel outside Ghana? Do you possess a passport and do you fairly frequently travel outside Ghana? Answers to those questions could not in any way have harmed the interest of the public or the state. I therefore hold that the questions were improperly disallowed.
Learned counsel for the respondent submitted that there was no miscarriage of justice, and the verdict should not therefore be disturbed. He contended that the disallowance of those questions did not prejudice the case for the appellant because if those questions had been allowed to be answered, the answers would not have advanced the case for the appellant one way or the other. I am not so sure of that, because even though it is plain that some of the questions disallowed contained nothing of importance and nothing which could be said, by any stretch of imagination, to affect the public interest, yet others were definitely material to the appellant’s case; and who can now say with certainty that the answers to those material ones would not have made any difference to the result of the case?
Be that as it may, the argument of learned counsel for the respondent in my opinion, takes a very narrow view of the situation created by the claim of state privilege improperly and unfairly raised against the appellant’s witnesses by the learned circuit judge. There are cases, of which the instant case is one, in which the principles involved are more important than the case itself. Here, as I have found, there was a serious breach or disregard of the principles of fair play so far as the appellant was concerned. It is absolutely essential that an accused person should be able to feel that he has had a fair and reasonable chance to present his case. In Togbe
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Fiti IV v. The State [1965] G.L.R. 33 at p. 36, Sowah J. (as he then was), admirably stated the principle in the following words:
“The law is not loaded against an accused person, it is the duty of the court to give him an opportunity so to conduct his defence that not only will it appear to all others, if not to the accused, that justice is being done but it is fairly and properly being done.”
So that whatever the defence of an accused person may be, however weak or improbable the defence may be, he is entitled to be given a chance to put it before the court. The law requires that it should appear that the accused has had a fair trial and he should not be left with any sense of injustice on the ground that he was not allowed to present his case. Justice, as I have already held, was not seen to be done. If justice was not so clearly seen to be done, it is no answer to the appellant to say that if those questions had been allowed by the learned circuit judge the result would have been the same. That will amount to “mixing up doing justice with seeing that justice is done.”
The point was well taken in the recent case of R. v. Thames Magistrates’ Court; Ex parte Polemis [1974]
2 All E.R. 1219, D.C. In that case, the applicant was the master of a vessel which berthed in the London docks on 1 July 1973. The berth was clear and no oil was seen in the neighbourhood of the vessel over the next seven or eight days. But on 9 July a large patch of oil appeared close to the vessel; and on 11 July at 10.30 a.m., a summons was served on the applicant, charging that he was the master of a vessel from which oil or a mixture containing oil had been discharged into navigable waters, contrary to section 2 (1) of the United Kingdom Prevention of Oil Pollution Act, 1971. The applicant was to appear before lay justices at the Thames Magistrates’ Court on the same 11 July at 2.00 p.m. Incidentally, the applicant’s vessel was due to sail at 9.00 p.m. on the same, 11 July.
The owners of the vessel engaged the services of solicitors who immediately took steps to obtain samples of the oil because at that stage they had had no information about the prosecution samples. The solicitors also needed eyewitnesses to testify as to when the oil first appeared in the water, the state of the wind and the weather, which might affect the accumulation of oil in the vicinity of the vessel, and also witnesses who might speak to an oil situation different from that spoken to by the witnesses for the prosecution. The time between 10.30 a.m. and 2.00 p.m. was too short for all that to be done by the solicitors. So the solicitors applied for adjournment when the case was called. The adjournment was refused but the case was stood down for just about one and half hours. When the case was recalled at 4.00 p.m. the solicitors for the applicant had still not obtained all the evidence they needed.
The lay justices then transferred the case to a stipendiary magistrate in the same building who in spite of the fact that the applicant’s solicitors had not had sufficient time to prepare the defence of the applicant, dealt with the case. He found the charge proved, and convicted the applicant. He then sentenced the applicant to a fine of £5,000.
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The applicant brought an application for an order of certiorari to bring up into the High Court, with a view to its being quashed, the order of the conviction made by the magistrates’ court, on the ground that there was a breach of the rules of natural justice inasmuch as the magistrates’ court did not give him a reasonable opportunity to prepare his case before being called on to present it. The applicant’s contention was upheld and the conviction was quashed.
It is significant to note that in the magistrates’ court, the prosecution produced overwhelming evidence, including the analyst’s reports. Those reports were obtained on the samples of the oil found in the water near the vessel and of the oil in the vessel’s bunker; and the reports left no doubt whatsoever that the oil discovered in the water was discharged from the applicant’s vessel. Thus, there was more than sufficient evidence on which to convict the applicant, and the applicant’s defence at the criminal trial was obviously not reasonably probable. All the same, the Queen’s Beach Division of the High Court (coram Lord Widgery C.J., Ashworth and Bristow JJ.), held that an order of certiorari should go to quash the conviction. Lord Widgery C.J. who read the unanimous judgment of the court said at p. 1223 as follows: “Counsel for the respondents says that in this case, when one looks at the whole history of the matter right up to today, it becomes only too obvious that the applicant has no merit in his case. Counsel relies on the fact that the analyst’s report supplied to the applicant was unfavourable, and that there has been no sort of suggestion over the period which has elapsed since the hearing that the applicant could call any evidence in regard to the state of the weather, which would support his own theory which was that the oil had been there when he came in to berth. So, says counsel for the respondents, looking back now with hindsight on all these events, it is apparent that there is no merit in the applicant’s case, and therefore the court in its discretion should refuse him an order of certiorari.
I reject that submission. It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say, ‘Well, even if the case had been properly conducted, the result would have been the same’. That is mixing up doing justice with seeing that justice is done, so I reject that argument.”
It will therefore be seen that any conduct on the part of a trial court which makes it impossible for the defending counsel to do justice to the defence or for the accused to have a fair and reasonable chance to put forward his defence, no matter how hopeless that defence may be, can result in a conviction being quashed: see also R. v. Barnes (1970) 55 Cr.App.R. 100 per Lord Parker C.J. at p. 107, C.A. In the circumstances I do not accept the submission of learned counsel for the respondent that in the instant case there was no miscarriage of justice.
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The matter, however, does not end here. It was contended by counsel for the appellant, in respect of ground three, that the learned circuit judge wrongly refused to refer certain questions to the Supreme Court. Here two main points were made by learned counsel. He first submitted that the appointment of the first prosecution witness to the Supreme Court was unconstitutional and the basis for it could only be for favour; and whether that was so or not it was for the Supreme Court to interpret article 115 of the suspended Constitution and make a declaration one way or the other. In the trial court, the defence counsel applied under article 106 (2) of the said Constitution to have the matter referred to the Supreme Court. But the application was refused by the trial judge holding, among other things, that since the evidence showed that the first prosecution witness had been enrolled as a barrister for over fifteen years, he qualified in terms of article 115 (3) (a) of the Constitution, 1969, to be considered for appointment to the Supreme Court; and in his view there was nothing in article 115 (3) (a) which required interpretation.
I think there was no merit in that submission, and the learned circuit judge rightly rejected it. The language of the provisions of the article in question is plain and unambiguous and is capable of only one meaning. So the question of interpretation could hardly arise, and the request for reference to the Supreme Court was therefore unreasonable: see Republic v. Maikankan [1971] 2 G.L.R. 473 at p. 478, S.C. and also the views I expressed in Republic v. Military Tribunal; Ex parte Ofosu-Amaah [1973] 2,G.L.R. 227 at p. 239.
The second submission of the appellant’s counsel on this question of reference to the Supreme Court was based on article 124 of the suspended Constitution. When the secretary to the Judicial Council, the fifth prosecution witness, was giving evidence an attempt was made to tender through him, the minutes of the Judicial Council dated 13 June 1970, which dealt with the appointment of the first prosecution witness and all the other persons mentioned by the appellant in the offending editorial, exhibit A. The prosecution objected on the ground that the minutes were privileged from production, because they belonged to a class of documents the disclosure of whose contents would be prejudicial to the security of the State or injurious to the interests of the public. The learned circuit judge upheld the objection and refused to allow the said minutes to be tendered.
In this appeal, learned counsel for the appellant submitted that whether the minutes belonged to a class of privileged documents and should not therefore be tendered was a question to be determined by the Supreme Court; and that the learned circuit judge had no jurisdiction to take a decision on it by himself. Counsel contended that the defence was seeking to show that from those minutes the appointment of all those mentioned in exhibit A was irregularly made, and that the minutes contained matters which lent support to the comments made by the appellant in the said exhibit A; and since the prosecution claimed privilege to their production and which claim the defence disputed, the trial circuit judge ought to have referred the question on this particular privilege to the Supreme Court by virtue of article 124 of the suspended Constitution.
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I will state, in extenso the relevant provisions of the said article 124:
“124. ( 1) Whenever in any proceedings in a Court, other than the Supreme Court, any question arises as to the discovery of an official document and any person or authority having custody legal or otherwise of any such document refuses, upon request, to produce that document, on the ground
(a) that the document belongs to a class of documents which it is prejudicial to the security of the State or injurious to the public interest to produce, or
(b) that disclosure of the contents thereof will be prejudicial to the security of the State or injurious to the public interest, the Court shall stay the proceedings and refer the question to the Supreme Court for determination.
(2) The Supreme Court shall have power, pursuant to the provisions of the preceding clause,
(a) to order any person or authority having custody legal or otherwise of the document to produce it; and any person so ordered shall produce the document for the purpose of inspection by the Supreme Court; and
(b) to determine whether or not any such document shall be produced in the Court from which the reference was made after hearing the parties thereto or their legal representatives or after having given them the opportunity of being heard.
(3) Where the Supreme Court is of the opinion that the document shall be produced it shall make an order upon the person or authority having custody of the document to produce the same or so much of the contents thereof as is essential for the proceedings in accordance with the terms of the order.”
(The emphasis is mine.)
It is plain from the above provisions that it was the Supreme Court alone which was vested with power to decide whether or not the contents of an official document ought to be disclosed at the trial. In the Supreme Court, the official document in question could be called for and its contents could be scrutinised privately. The Supreme Court, after scrutiny and after arguments addressed to it, would endeavour to ascertain whether the fear of injury to the public interest or state security was the real motive in objecting. Here the question of interpreting any of the provisions of the Constitution does not arise. The question to be decided is one of pure fact which the Constitution left to the Supreme Court alone to decide.
The minutes of the Judicial Council, it appears to me, come within the class of official documents for which the provisions in article 124 of the suspended Constitution were made; and the learned circuit judge ought to have referred the question of privilege raised in respect of those minutes to the Supreme Court for determination. The language used by article 124 of the Constitution had a compulsory force. It did not invest the trial
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court with a discretion in the matter; it gave exclusive jurisdiction to the Supreme Court to decide whether the contents of such a document, or any portion thereof, should be ordered to be disclosed or tendered at the trial. I therefore hold that the learned circuit judge was clearly in error when he refused to refer that aspect of the matter to the Supreme Court; and his said error has occasioned a failure of justice. In fact, his ruling that the minutes were privileged and should not be tendered was ultra vires. No one can say what would have been the decision of the Supreme Court if the question of the state privilege had been referred to that court, and it is useless now to conjecture.
There are other disturbing aspects of state privilege on which I have to make some observations, even though counsel for the appellant did not direct his attention to them in the course of his argument. The minutes of the Judicial Council, for which the prosecution successfully claimed state privilege, were with the Judicial Secretary, the fifth prosecution witness, at the time the latter was giving his evidence; and the evidence of the fifth prosecution witness clearly disclosed some of the things which took place at the meeting and were dealt with by the Judicial Council at the said meeting. For example, when the fifth prosecution witness was recalled for further cross-examination, on the application of the defence counsel, the fifth prosecution witness told the court that at the said meeting of 13 June 1970 there were about seven or eight members present; and one member left before the end of the meeting and that member did not leave under protest as suggested by the defence counsel. The fifth prosecution witness further stated that at the meeting it was decided that he, the fifth prosecution witness, should prepare and dispatch exhibits 2 and 2A. Earlier on, in his evidence-in-chief, the fifth prosecution witness had said:
“I was present at a meeting of the Judicial Council at which it was decided to tender advice to the Presidential Commission in respect of the appointment of certain nominees to the Supreme Court. I cannot say what exactly was the procedure adopted by the council before arriving at its decision without reference to the minutes of that meeting. Several people were mentioned as possible appointees. The members voted by secret ballot on the persons to be advised upon. As a result of the vote seven persons were advised upon.”
(The emphasis is mine.) All those matters were supposed to have been recorded simultaneously at the meeting of 13 June 1970, and were embodied in the said minutes; and it is clear that the oral evidence of the fifth prosecution witness which disclosed what was said and what was decided upon at that meeting was in the nature of secondary evidence of the contents of those minutes. The point I am making here is that it was not right for the trial court to allow the fifth prosecution witness to give secondary evidence of the contents of the said minutes of the Judicial Council when those minutes being the best evidence, were available; and when the fifth prosecution witness, the person in possession and in charge thereof, was ready and prepared to tender them, and had even on one or two occasions
[p.377] of [1974] 2 GLR 361
informed the trial court, in the course of his evidence, that he could not be sure of some of the answers to the questions being asked unless he was permitted to refresh his memory from those minutes.
Again, it was unfair to the appellant that the trial court should uphold the prosecution’s claim that the minutes were privileged when, as I have pointed out above, the court had already permitted the fifth prosecution witness to lead secondary evidence as to some of the contents of those minutes. It may be recalled that counsel for the defence tried to adduce secondary evidence in respect of those minutes, and he was effectively prevented by the trial court. But the fifth prosecution witness was not stopped when he was giving secondary evidence of the contents of the same minutes during his examination-in-chief. That is, the fifth prosecution witness was allowed to reveal to the court those portions of the minutes which the prosecution considered favourable to their case, but was prevented from tendering the whole minutes to disclose the other portions which might have assisted the case for the defence.
Furthermore, since the trial court was of the opinion that the said minutes came under a class of official documents privileged from production, the fifth prosecution witness should not have been permitted to give secondary evidence to disclose any portion of their contents. It is beside the point to argue that the said secondary evidence given by the fifth prosecution witness did not reveal the most important portions of the minutes. For, the fact still remained that that secondary evidence clearly disclosed some of the contents of the so-called privileged minutes. The principle is that secondary evidence should not be given of the contents of documents protected from disclosure by public policy. Once an official document has been held privileged neither the parties to the proceedings nor their witnesses should be permitted to circumvent or evade the privilege by leading secondary evidence or by producing a copy in respect thereof. The rules about the originals of such documents are the same as regards their copies.
In Hennessy v. Wright (1888) 21 Q.B.D. 509, the plaintiff, Governor of Mauritius, brought an action for libel against the publisher of The Times newspaper. The defendant applied for discovery and the plaintiff in his affidavit specified certain documents to the production of which he, the plaintiff, objected on the ground of the interest of the State and of the public service. The point arose as to whether copies of those communications should be subject to production. Both Field and Wills JJ. to whom the defendant’s application was referred, disallowed the production of the copies. At p. 514 Field J. said:
“Now the copies in question are described as copies of communications which have passed between the Colonial Secretary and the governor of a colony, or between one or other of these high officials and a Royal Commissioner appointed to investigate the affairs of the colony. These communications are state documents of the same class as those in the cases cited, and therefore the copies are also state documents and are prima facie as such privileged from production.”
[p.378] of [1974] 2 GLR 361
In the case of Chatterton v. Secretary of State for India in Council [1895] 2 Q.B. 189, C.A. the plaintiff claimed damages from the defendant for libel in that the defendant had conveyed, or caused to be conveyed, in writing to the Under-Secretary of State, untrue statements affecting the professional reputation of the plaintiff, a captain in Her Majesty’s India Staff Corps. It was held, inter alia, that the libel complained of was a document of state, it having been brought into existence by the defendant in the course of his duty as a state official for a state purpose; and therefore could not be produced in evidence, it being contrary to the public interest that it should be so produced. In his judgment, A. L. Smith L.J. said at p. 195 that:
“The cases have gone the length of holding that, even if no objection were taken to the production of such a document by the person in whose custody it was, it would be the duty of the judge at the trial to intervene, and to refuse to allow it to be produced: and it has further been held that, if an attempt were made to get round that difficulty by giving secondary evidence of its contents, the judge ought also to prevent that from being done.”
(The emphasis is mine.) The views of A. L. Smith L.J. were approved by Viscount Simon L.C. in Duncan v. Cammell, Laird & Co., Ltd. [1942] A.C. 624 at p. 642, H.L.
The defence counsel, in his final address in the trial court, attempted to point out, in a rather subtle manner, the unfair treatment which the trial court had meted out to the defence in the conduct of the whole trial, and especially for preventing the defence witnesses from giving evidence and from tendering the minutes of the Judicial Council. The following is what the learned circuit judge said about that portion of counsel’s address:
“Mr. Joe Reindorf argues that the accused tried to put forward his defence but was prevented from so doing. He is referring to the refusal of the court to allow the first defence witness and the second defence witness to give evidence on what transpired before exhibit 3, the letter appointing the first prosecution witness and three others, was written and to allow the fifth prosecution witness to tender minutes of the meeting of the Judicial Council dated 13 June 1970. I see a few flaws in that argument.”
After pointing out what he thought were the “few flaws,” the learned circuit judge concluded as follows: “A journalist who ventures to write on some aspect of the national interest does so at his risk. If he gets himself enmeshed in the law in the process, he cannot call for state or other confidential documents in support of his case nor can he call for the evidence of witnesses whose evidence on that matter cannot be entertained on grounds of public policy. The journalist is, I appreciate, thereby cramped, for without the document or that type of evidence he cannot organise his defence.
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But the question is, how did he in the first instance, get the information at all, seeing that documents or even evidence by witnesses in confirmation of that information cannot be tendered or adduced at a trial ? … If then a journalist who is on trial for libel, such as in the present case, asks for certain evidence and documents and does not get them, he cannot in law turn round and say he had a good defence but had been prevented from setting up the defence.”
(The emphasis is mine.)
From the passages quoted above there is no doubt that the learned circuit judge was fully aware that without those minutes and without the evidence of the first and second defence witnesses it was impossible for the appellant to “organise his defence.” He also knew and he in fact appreciated that without that evidence the appellant would be “cramped” and indeed the learned circuit judge unfairly and unduly “cramped” the appellant. The appellant can therefore legitimately complain that “he had a good defence but had been prevented from setting up the defence.”
To sum up, the learned circuit judge having usurped and exercised a power exercisable exclusively by the Supreme Court and by so doing prevented the minutes material to the appellant’s defence from being tendered, having erroneously allowed the prosecution to lead secondary evidence in respect of those portions of the said minutes that were favourable to the prosecution’s case and which secondary evidence was, under the circumstances, inadmissible in law, and above all, having unduly, improperly and unfairly prevented the witnesses for the defence from answering questions, it can hardly be disputed that the manner in which he conducted the whole trial was not only irregular, but it also worked to the prejudice of the appellant. In the circumstances, the conviction cannot stand.
In R. v. Clewer (1953) 37 Cr.App.R. 37, C.C.A. the appellant was charged with and convicted of forgery and uttering forged cheques and was sentenced to three years’ imprisonment. On appeal, it was conceded that there was evidence on which the jury could convict, but the ground of appeal was that the trial was conducted in an irregular manner by reason of frequent interruptions of the trial judge which rendered it impossible for the defence to be fairly represented. It was argued, however that in view of the strength of the evidence against the appellant, whose defence was apparently a very hopeless one, the court could apply the proviso to section 4 (1) of the United Kingdom Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), and uphold the conviction. But the court refused to accede to the latter request. Lord Goddard C.J. delivering the judgment of the court at p. 42 said:
“The court feels obliged to yield to the appellant’s contention that the trial was irregular, and that the conviction ought not to stand.
No one would for one moment impute to the judge any desire other than that a righteous verdict should be returned, but if on a full consideration of the case this court comes to the conclusion, as we have, that the defence had not had a fair opportunity, it seems to us that our duty is to quash the conviction, and that in such cir- cumstances it is impossible to apply the proviso.”
[p.380] of [1974] 2 GLR 361
Since grounds two and three are sufficient to dispose of this appeal it is not necessary to discuss the arguments in support of ground one. I will, for the above reasons, allow the appeal. The conviction of the appellant and the sentence passed on him are quashed; and a judgment and verdict of acquittal entered in respect of the charge. The fine, if paid, must be refunded, The appellant is acquitted and discharged.
DECISION
Appeal allowed.
Conviction quashed
S.Y.B.-B.
