BARKAH v. THE STATE [1966] GLR 590

Division: SUPREME COURT

Date: 27 JUNE 1966

Before: MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Cowell [1940] 2 K.B. 49; 163 L.T. 158; 104 J.P. 237; 84 S.J. 334; 56 T.L.R. 629; 109 L.J.K.B. 667; [1940] 2 All E.R. 599; 27 Cr. App. R. 19, C.C.A.

(2) Agyeman v. The State [1964] G.L.R. 681, S.C.

(3) R. v. Baldwin (1931) 23 Cr.App.R. 62, C.C.A.

(4) R. v Omokaro (1941) 7 W.A.C.A. 146.

(5) State v. Aholo (Practice Note) [1961] G.L.R. (Pt. II) 626, S.C.

(6) R. v. Stoddart (1909) 2 Cr.App.R. 217; 73 J.P. 348; 25 T.L.R. 612; 53 S.J. 578, C.C.A.

(7) Abrath v. North Eastern Railway Co. (1883) 11 Q.B.D. 440; 52 L.J.Q.B. 620; 49 L.T. 618; 47 J.P. 692; 32 W.R. 50; 15 Cox C.C. 354, C.A.

(8) R. v. Bradshaw (1910) 4 Cr.App.R. 280, C.C.A.

(9) Opuni v. The State [1965] G.L.R. 82, S.C.

NATURE OF PROCEEDINGS

APPEAL from a conviction of murder. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Aidoo for the appellant.

K.A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the judgment of the court. We dismissed this appeal and indicated that we would give our reasons later and, accordingly, we now give our reasons. The charge against the appellant in this case was that he, on 21 April 1964 at Bebome village, [p.592] of [1966] GLR 590 near Asamama in the Eastern Circuit, murdered one Idrisu Basare. The points which it is necessary for the prosecution to prove in order to make out their case are not in doubt. The question as to this has often been decided, and the rule is well established. It is not enough to know that the appellant did the act which caused the death of the deceased. The prosecution must show that the prisoner intended that his act would likely cause or contribute to cause the death of the deceased. No one, therefore, would be convicted of murder without proof of that intent. It has been decided that the burden of proving these facts is on the prosecution. The difficulty is to be clear in explaining a case of this kind to a jury and, in order to succeed, the prosecution must make out these propositions.

Before dealing with the points of law raised by learned counsel for the appellant it is necessary to relate the facts surrounding the death of the deceased. The case for the prosecution depended largely on the eye-witness account of Amadu Wangara, the prosecution’s first witness, the appellant’s half-brother, and on the confession statement which the appellant made to the police.

About 7 p.m. on that fateful day, there was a quarrel between the appellant and his half-brother over a loan in respect of which Kofi Laba the tenth prosecution witness had stood surety. The lender demanded repayment of the loan from the surety but the appellant advised him not to pay it as he was not directly liable for repayment. Thereupon, the prosecution’s first witness told the appellant that he had ill-advised the surety. He then accused the appellant of being insolvent and added that it was because of his impecuniosity that he had given such advice to the surety. The appellant was enraged by these remarks and said his half-brother had disgraced him in the presence of his friends.

When the prosecution’s first witness realised that the appellant had taken offence at his remarks and that he was very angry he parted company with him and his friends, lit a lantern he was carrying and started to walk to his village. Not very long after he heard an unusual noise from behind and as he turned round he saw the appellant who struck him on the forehead to the root of the nose with a cutlass which he was holding. The prosecution’s first witness fell to the ground but before the appellant could gain time to use the cutlass on him again, the deceased appeared on the spot. In order to get him out of his way, the appellant struck the deceased with the same cutlass and he also fell down. The deceased was taken to hospital and died the next day.

When the appellant was taken into custody in connection with the murder of the deceased and cautioned he made a statement to the police which contained the following passage:

[p.593] of [1966] GLR 590

“There is no trouble at all between the deceased, Idrisu Basare and myself. He was my friend. It was all due to the fact that when my brother Amadu Wangara alias Mensah Wangara came to demand my debt in the night, hence I became annoyed an used the cutlass on the deceased Idrisu Basare, who came to separate us. One Kwasi Mensah was present and he helped me to convey the deceased who was then not dead to the police station and make a report.”

At the trial the inspector of police who conducted the investigation of the case testified on oath that when the appellant was in police custody he identified as his property the cutlass which the prosecution’s first witness alleged was used by him (the appellant) on the night in question and that the appellant stated that “it was the very cutlass he had used in wounding Idrisu Basare,” that is, the deceased. The cutlass was marked exhibit B. It is not without significance to note that this evidence was not challenged by the appellant’s counsel. The appellant admitted the incidents which led to the quarrel between himself and his half-brother but he denied that he struck that fatal blow with the cutlass. According to the appellant, when his brother left them after the quarrel he remained with his friends for about 30 minutes. Thereafter, he also left for his village and as he walked to a distance of about thirteen to fourteen yards away from his friends, his brother attacked him with a cutlass. He then raised an alarm and started to struggle with him over the cutlass and they fell to the ground. While they were still struggling on the ground, I got hold of the cutlass and swung it at his brother. At that stage I saw a crowd of people had gathered around, among them was Kwasi Mensah the prosecution’s second witness. The crowd separated them and he left for his village. Shortly afterwards, Kwasi Mensah made a report to him and, in consequence of that he went to the police station at Abomosu and reported to one Constable Boku, “that after I had quarrelled with my brother Amadu Wangara (the prosecution’s first witness) and I had left my mother’s cottage where the quarrel took place, I had been informed that my brother Amadu Wangara had injured a friend of mine called Idrisu Basare, that because I did not understand why my brother should have injured my friend, I was lodging a complaint against Amadu Wangara.”

The appellant denied that he owned the cutlass, exhibit B; that he told the general police inspector that he used exhibit B in wounding the deceased; and that he made the confession statement.

All these matters, material to the case, were pointed out by learned trial judge to the jury who were the sole judges of fact and

[p.594] of [1966] GLR 590 also had the advantage of hearing both sides of the case and observing the demeanour of the witnesses; and they returned a unanimous verdict of guilty of murder, after a deliberation which lasted for only fifteen minutes.

Against this verdict the appellant appealed to this court and his counsel attacked the summing-up of the learned trial judge on the following grounds:

(1) The procedure followed by the trial judge in trying the issue as to the admissibility of the confession statement was unjust in so far as it denied the appellant a fair hearing.

(2) The learned judge misdirected the jury on the burden and standard of proof.

(3) The learned judge failed to put the case of the appellant properly to the jury.

In developing his arguments in support of ground (1) above, learned counsel submitted that the learned trial judge followed an unjust procedure in trying the issue as to admissibility of the confession statement. He cited the case of R. v. Cowell,1 and stated that no opportunity was given to the appellant, in this case, to give evidence when the question as to the admissibility of the statement was being considered. He contended therefore that the verdict was bad.

It must have become quite obvious at a very early stage of this case that the appellant was convicted because his confession was so clear and, as one may add, corroborated the evidence of his half-brother that he, and no one else, murdered the deceased. His counsel took objection to the admissibility of this statement and thereupon the learned trial judge asked the jury to retire while he heard evidence whether the statement could be admitted or not. The power exercisable by a judge in ordering a jury to retire when evidence or arguments as to admissibility of a statement are being considered has been discussed in many decided cases. Where the arguments will involve the mention of matters which cannot be given in evidence or that the evidence may contain matters which may certainly prejudice the case for the person who is being tried, the judge may ask the jury to retire: see Agyeman v. The State.2 When the jury retired, counsel for the appellant cross-examined the police inspector who took the statement from the appellant; but he did not consider it desirable to call the appellant as a witness before the trial judge to enable him to decide the preliminary issue of the admissibility of the statement. The matter therefore rested solely on the evidence of the police inspector; and the learned trial [p.595] of [1966] GLR 590 judge, after hearing the evidence, was satisfied that the appellant was properly cautioned before he made the statement and that it was made voluntarily. He then admitted it in evidence. We can find nothing wrong with this.

In our view, the learned trial judge inquired most carefully into the circumstances in which the alleged confession was made and he was satisfied of its genuineness; therefore the appellant is not entitled at this stage to say that it was improperly obtained: see R. v. Baldwin.3 A conviction can quite properly be based on the confession by a prisoner, and such evidence is sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness: see R. v. Omokaro,4 which was followed by this court in State v. Aholo.5 In our judgment the case of R. v. Cowell6 cited by counsel does not help the appellant. That case laid down the principle that on the hearing at a trial of an objection to the admissibility in evidence of a statement by the prisoner on the ground that it was not a voluntary statement, the prisoner himself is entitled to give evidence, if the justice of the case makes it desirable. In such circumstances, it is proper to allow the prisoner himself to be called as a witness and, indeed, the trial judge should do nothing to encourage him to give evidence. The question is entirely a matter for the prisoner’s counsel to decide. In the instant case counsel for the appellant declined to call the appellant to give evidence. His submission that no opportunity was given to the appellant to give evidence when the question as to admissibility of the statement was being considered is, therefore, wholly unacceptable. This ground of appeal therefore fails.

In dealing with ground two of the grounds of appeal as set out in the early part of this judgment, learned counsel submitted that in his summing-up the learned trial judge shifted the burden of proof on to the defence. Counsel further submitted that the use of the phrase “some sure and reasonable doubts” by the trial judge in the summing-up confused the minds of the jury. Every summing-up must be regarded in the light of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. The trial judge must deal with the question of burden of proof and make it quite clear to the jury that it is for the prosecution to establish the guilt of the prisoner, and if such guilt is not established the prisoner must, as of right, be found not guilty. There [p.596] of [1966] GLR 590 is no set formula for explaining to the jury that the burden of proof lies on the prosecution. In the early stages of the summing-up the trial judge directed the jury as follows:

“If your verdict is to be one of guilty you must feel sure and certain and satisfied that the State has proved the guilt of the defendant. If, however, you are not so satisfied, but feel that because of some sure and reasonable doubts, the guilt of the defendant cannot be said to have been proved with certainty, then you must find the defendant not guilty.”

(The emphasis is mine.)

In our view, the phrase “some sure and reasonable doubts” used by the trial judge was an unfortunate expression, but in this particular context, it did not give a wrong impression to the jury; because, at a later stage when the trial judge was instructing them on the essential aspects of the burden of proof, he directed them as follows:

“(a) The burden of proof never shifts on to the defence. It is always upon the prosecution to establish by clear, convincing and satisfactory evidence, the guilt of the defendant. This is subject to certain exceptions that do not affect us in this present matter.

(b) It is never enough for the prosecution to prove merely a prima facie case against the defendant. Jurors must never feel satisfied with a prima facie case. Even if they are satisfied with a prima facie case, jurors will be bound to go further to consider the defence and thus take and examine and consider the case as a whole.

(c) However stupid or improbable the defence may seem, or its explanations, jurymen must give due and careful attention and consideration to that defence and the explanations canvassed by the defendant.

(d) There is no duty upon the defendant to prove his innocence, or to disprove his guilt. Whether or not there be explanations, or whether or not a defence is put up by the defendant, the burden of proving the defendant’s guilt is always upon the prosecution.”

A summing-up should always be looked at as a whole. In the instant case, the trial judge’s charge to the jury on the question of burden of proof, when critically examined as a whole, conveyed the one and only meaning that where a prima facie case is made out by the prosecution and the appellant, by his defence, offers an explanation, the burden of proof that the offence charged has been committed is still on the prosecution and, if upon a review of the evidence

[p.597] of [1966] GLR 590 on both sides, they are in doubt they ought to acquit. In our view the learned judge did not shift the burden of proof on to the defence.

This court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed. This court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice and a substantial one. Learned counsel failed to show that the summing-up or any portion thereof had occasioned a miscarriage of justice; therefore this ground also fails. Turning to the last ground of appeal, counsel submitted that the trial judge failed to mention to the jury that there was a fight between Amadu Wangara (the prosecution’s first witness) and the appellant, and that it was the prosecution’s first witness who laid in wait for the appellant. Counsel contended that the failure by the trial judge to give a direction on those matters had confused the jury. The evidence, in the instant case, that a fight ensued between Amadu Wangara and the appellant was given by the prosecution’s fifth witness and by the appellant himself. The appellant was the only person who gave evidence that the prosecution’s first witness laid in wait and intercepted him when he was on the way to his village. The jury who were the judges of fact heard the evidence which was given in simple and plain language – not fraught with any ambiguities or technicalities. They heard the whole evidence of this prosecution witness and of the appellant, and the issues in the case were in substance put to them. Failure on the part of the trial judge to direct them on something which is already on record is, in our view, not fatal to conviction.

In the case of R. v. Stoddart,7 an attack was made by counsel for the prisoner against the summing-up of the trial judge that “broadly speaking the defence was never put at all” and the Lord Chief Justice who read the judgment of the Court of Criminal Appeal re-echoed these words of Brett M.R. in Abrath v. North Eastern Railway Co.8:

“It is no mis-direction not to tell the jury everything which might have been told them; there is no mis-direction, unless the judge has told them something wrong, or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not mis-direction, and those who allege mis-direction must show that something wrong was said or that something was said which would make wrong that which was left to be understood.”

[p.598] of [1966] GLR 590

The dictum of Brett M.R. was followed by the Court of Appeal in R. v. Bradshaw9 and adopted by this court in the case of Opuni v. The State.10 In our opinion omission in a summing-up to tell the jury in terms what the defence is does not amount to mis-direction if the issues in the case are in substance put to them. Sometimes, no doubt, non-direction may amount to mis-direction; but in our judgment the omission by the trial judge, in the instant case, to call the attention of the jury to particular matters which are already given in evidence did not amount to mis-direction.

In all the circumstances, we were satisfied that the jury were properly directed by the learned trial judge and there was evidence on which they could act. The court cannot therefore substitute itself for a jury to re-try the case.

The appeal was accordingly dismissed.

DECISION

Appeal dismissed.

S. K. T.