DOCHIE v. THE STATE [1965] GLR 208

DIVISION: HIGH COURT, ACCRA

DATE: 29 MARCH 1965

BEFORE: ARCHER J.

CASES REFERRED TO

(1) R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A. (2) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A. (3) The People v. Riordan [1948] Ir. R. 416. (4) R. v. Jackson [1953] 1 W.L.R. 591; 117 J.P. 219; 97 S.J. 265; [1953] 1 All E.R. 872; 37 Cr.App.R. 43, C.C.A. (5) Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39. (6) Tumahole Bereng v. R. [1949] A.C. 253; sub nom. Bereng v. R. [1949] L.J.R. 1603, P.C. (7) State v. Adabo [1961] G.L.R. 321, S.C. NATURE OF PROCEEDINGS

APPEAL against conviction and sentence by a circuit court judge sitting at Accra. The facts are fully set out in the judgment.

COUNSEL

J. Arthur for the appellant. S. S. Okunor, State Attorney, for the respondent. JUDGMENT OF ARCHER J.

This is an appeal against conviction and sentence by a circuit court judge sitting at Accra. The appellant was convicted of (1) being in possession of instruments intended for unlawful entry contrary to section 154 of the Criminal Code, 1960,1 and (2) attempted unlawful entry contrary to sections 18 (1) and 152 of Act 29 and he was sentenced to two years’ imprisonment with hard labour on each count concurrently. The learned circuit court judge also recommended his deportation from Ghana. The additional grounds argued with the leave of the court were as follows: (1) the learned trial circuit court judge did not adequately consider the case of the appellant; (2) even though the learned trial circuit court judge stated in his judgment that he did not believe the case of the defence, [p.210] of [1965] GLR 208 he totally failed to consider the alternative that short of believing the case for the defence, whether the same may reasonably be true; (3) the learned trial circuit court judge misdirected himself in holding that “I do not believe the story of the accused.” I must say right now that grounds (1) to (3) mean the same thing and in fact learned counsel for the appellant dealt with the three grounds in one mental exercise. The fourth ground is that the judgment was wrong in law and it is otherwise unsupportable; the fifth that the conviction or sentence or both and the consequent deportation order are not supported by the evidence, and the sixth that the sentence is excessive. In support of grounds (1) to (3) the appellant’s counsel cited the cases of R. v. Abisa Grunshie2 and R. v. Ansere3 and submitted that the trial judge did not believe the statement of the appellant but he failed to consider the other alternative whether the appellant’s statement could be reasonably true and as a result the trial judge misdirected himself by non-direction. The judgment of the trial judge is very short and is subject to a multiplicity of judicial observations. No reasons are given for the findings. Yet we read, “The prosecution’s case has been proved without any reasonable doubt. The defence is a denial made from the dock. I do not believe the story of the accused. If he was returning from the pictures at 10.30p.m. and had a stomach upset he would have taken a taxi home. The appellant had himself stated from the dock that because of stomach pains, he could not continue to walk home and he had no money to take a taxi home. The learned judge appears to have overlooked the reason given for not taking a taxi home. Another unfortunate impression which the judgment gives is that the defence was unbelievable presumably because it was a denial made from the dock. Section 174 of the Criminal Procedure Code, 1960,4 clearly affords an accused person the option of either giving evidence on oath or making a statement. It is a statutory right conferred on accused persons and the mere fact that an accused elects to make an unsworn statement does not in my opinion amount to proof of guilt. It is a statement which must be considered by the court; although it is not evidence on oath yet it is evidence of less weight than sworn testimony. The probative value of the statement is of course weakened by the right to give sworn evidence accorded to [p.211] of [1965] GLR 208 the accused under statute. The other infirmities attached to a statement from the dock are that the maker is not subject to the sanction of possible proceedings for perjury and he is not liable to cross-examination. Yet it is a statement which must be considered by the court. Failure by a judge to put an accused’s unsworn statement to the jury has resulted in the conviction being quashed: see The People v. Riordan.5 Lord Goddard C.J. in R. v. Jackson6 said, “Everybody now knows that absence from the witness-box requires a very considerable amount of explanation.” In the words of the Australian judge, Rich J. in Insurance Commissioner v. Joyce7: “But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness-box a court is entitled to be bold.” However, in my view the authorities seem to establish that the court, although entitled to be bold, need not necessarily be as bold as the learned circuit court judge appeared to be in the court below. Lord MacDermott in Timahole Bereng v. R.8 stated the following principle, “an accused admits nothing by exercising at his trial the right which the law gives him of electing not to deny the charge on oath.” It has even been stated in R. v. Jackson9 that the failure of an accused person to go into the witness-box and contradict the adverse testimony does not corroborate it in law. However all the authorities seem to me to the opinion that the omission to go into the witness-box must generally affect the credit which the judge or jury are disposed to give to the opponent’s evidence. It seems to me therefore that the learned circuit court judge either ignored the statement of the appellant or did not believe it merely because it was made from the dock. If he had considered the statement, he would not have said in his judgment that if the appellant “had a stomach upset he would have taken a taxi home.” After these preliminary observations, I shall revert to the principles laid down in R. v. Abisa Grunshie10 and R. v. Ansere.11 Those cases seem to establish that it is not safe to dismiss the defence of an accused person simply by finding that his case is not true if, on the whole of the evidence, his case might be reasonably true. Furthermore, where facts are capable of both an innocent and a criminal interpretation of the conduct of an accused person, a court

[p.212] of [1965] GLR 208 is bound to take the innocent interpretation unless there is some definite evidence or circumstances which completely exclude that interpretation. I have had the opportunity of reading the record of proceedings very carefully and I have come to the conclusion that the conviction is supported not only by the evidence for the prosecution but also by the statements by the appellant himself and his conduct that night which incriminated him. First of all in his statement to the police, exhibit D, the appellant has this fantastic story to tell: “After the show I was going home when I was suddenly seized by an acute stomach ache. I branched to the Beach Avenue where I saw some night watchmen guarding some stores. They were asleep so I went and joined them. As soon as I lay down, some plain clothes men were seen coming towards me. I became afraid and so I got up to run away. I know they would challenge me for being outside late in the night. The policemen ran after me and when I was arrested they took me back to the place where the night watchmen were sleeping.” I must confess no reasonably fair minded person would place any credence on such an explanation from a person lying down in agony and all of a sudden forgetting his discomfiture at the sight of plain clothes men. How did he know that these men were policemen? How did he know that they would challenge him for being outside late in the night when he could have remained on the ground and given his explanation to these plain clothes men? Then in his statement from the well of the court, the appellant told a different story: “I was returning to home from pictures at 10.30 p.m. when I felt pains in the stomach. I could not continue to walk home and I had no money to take taxi. I met two persons who asked me where I was coming from and I told them of my stomach trouble. These two men asked me why I was out at 11.30 p.m. and I replied that I had been delayed on the way from the pictures by stomach ache. One of the men said I was lying and was a thief. The two men held me. I struggled with them. A crowd gathered and I was overpowered and taken to the police station.” There is a clear remarkable inconsistency in the two statements and any court of law is bound to treat the testimony of the appellant with grave reservation, and to award very low marks for the appellant’s credibility. I am therefore satisfied on the whole evidence for the prosecution that the learned circuit court judge had every reason for disbelieving the appellant as his conduct and his statements

[p.213] of [1965] GLR 208 were not capable of an innocent interpretation notwithstanding the fact that the trial judge, who perhaps worshipped brevity and conciseness, did not think it necessary to write a discourse or a reasoned judgment. It was further argued that the two instruments, exhibits Al and A2 that is the clipper and rod, were not found in the possession of the appellant. However there was evidence that the first prosecution witness saw the appellant holding a long instrument by the door to the shop of the fourth prosecution witness. The second prosecution witness also saw the appellant holding something. The instruments were found near the place where the appellant had thrown himself near the night watchman who denied ownership of these instruments. It was not necessary for the prosecution to prove that the instruments were in the hands of the appellant when he was caught. The first prosecution witness said that he saw the appellant hide the instruments near the sleeping watchman. The sleeping watchman’s statement throughout strikes one as odd but the possibility that he was a “god of sleep on earth” cannot be ruled out. When the appellant was caught after his escape, he was brought to the spot and the instruments were recovered. In my view the inference drawn that they were in the possession of the appellant was reasonable in the circumstances. It was further argued that section 18 (1) of the Criminal Code, 1960, did not create an offence and as the appellant was not charged under section 18 (2) of Act 29, section 152 of the same Act did not apply and the appellant could not be charged with attempted unlawful entry. I heard lengthy arguments on this defect in the charge. Nobody is in a position to explain why section 18 (1) and not section 18 (2) appears in the charge sheet. I do not consider the defect very serious because the particulars of offence clearly indicate that section 18 (2) was meant. Section 112 (2) of Act 30 provides that if the offence is one created by an enactment, the statement of offence shall contain a reference to the section of the enactment. However the learned state attorney pointed out that by virtue of section 1 of the Criminal Procedure Code (Amendment) Act, 1965,12 a reference to the section is not necessary in any statement of offence although a reference simpliciter to the enactment was sufficient. The appellant’s counsel counter-argued that Act 261 was not retroactive as it came into force on 9 February 1965 whereas the appellant was convicted on 7 November 1964 and there was no express provision in Act 261 which indicated that the Act should be deemed to have come into effect from a retrospective date. The appellant’s counsel further

[p.214] of [1965] GLR 208 submitted that section 9 (c) of the Interpretation Act, 1960,13 relied on by the state attorney was inapplicable. Section 9 (c) of C.A. 4 reads: “9. Where an enactment is repealed or revoked and another enactment is substituted, by way of amendment, revision or consolidation- . . . (c) all proceedings taken under the repealed or revoked enactment shall be prosecuted and continued under and in conformity with the substituted enactment, so far as consistently may be.” I do not think section 9 of the Interpretation Act, 1960, helps very much. My own view is that the Criminal Procedure Code (Amendment) Act, 1965, does not contain any express provision which makes the Act retroactive from an antecedent date. However, it is existing law and any criminal proceedings now pending before any court of law are subject to the provisions of Act 261. The present appeal is a proceeding pending before this court and it is therefore subject to Act 261. As I have already said the particulars of the offence of attempt to enter unlawfully are clearly stated and if per misadventure or typographical mistake or inadvertence, section 18 (1) has been inserted in the statement of offence instead of 18 (2) I think the defect in the charge can be ignored as the particulars are clear. In this respect I have authority in the case of State v. Adabo14 in which the court held that although reference was made to the wrong section and enactment, yet the particulars in the information related to the offence with which the appellant was charged and no miscarriage of justice had been occasioned on account of the error. The appellant was represented by another counsel when the case came before the court below for the first time, yet no objection was taken in the court below on the ground of this defect in the charge. For my purposes it is not necessary for me to rely on Act 261, that is the Criminal Procedure Code (Amendment) Act, 1965. I propose to rely on section 406 (1) (a) and (2) of the Criminal Procedure Code, 1960. Subsection (2) reads: “In determining whether any error, omission, or irregularity has occasioned a substantial miscarriage of justice the Court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

[p.215] of [1965] GLR 208

My view is that the objection relating to the reference to section 18 (1) instead of 18 (2) of the Criminal Code could have been raised by the appellant in the court below as he was represented by counsel when he appeared in the court below for the first time. In any case, there is evidence to support the conviction and I do not therefore think that there has been any miscarriage of justice. For the above reasons grounds (4) and (5) are dismissed except the recommendation for the deportation of the appellant. There is no doubt that the circuit court judge had power and a discretion in the matter. However it seems to me that he acted on certain data which were not deducible from the evidence. There was no evidence on record that, since the detention of the appellant, shop and house breaking in Accra had ceased. It is not known where the learned circuit court judge got his information from. The appellant is a first offender with two wives and five children and has made his home in Ghana for 34 years. The mere fact that he has abused the hospitality of this country and has been punished under the criminal law should not make his deportation absolutely necessary. I am therefore unable to uphold the recommendation for his deportation. I have considered the nature of the offences very carefully and the sixth ground of appeal and I do not consider the sentences severe in view of the maximum punishment now prescribed for such offences, that is, 25 years’ imprisonment with hard labour. The appeal against conviction and sentence is therefore dismissed but the appeal against the recommendation for the appellant’s deportation is allowed and the recommendation set aside and expunged. DECISION

Appeal against conviction and sentence dismissed. Recommendation for deportation set aside.

E. A.-A.

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