HIGH COURT, CAPE COAST
Date: 23 AUGUST 1974
EDWARD WIREDU J
CASES REFERRED TO
(1) R. v. Morris (1848) 12 J.P. 251; 2 Cox C.C. 489.
(2) R. v. Sleep (1864) 9 Cox C.C. 559.
(3) R. v. Waterage (1846) 6 L.T. (o.s.) 523; 1 Cox C.C. 338.
(4) Woolmington v. Director of Public Prosecutions [1935] A.C. 462; 104 L.J.K.B. 433; 153 L.T. 232; 51 T.L.R. 446; 79 S.J. 401; 25 Cr.App.R. 72, H.L.
(5) R. v. Abraham [1973] 1 W.L.R. 1270; [1973] 3 All E.R. 694; 117 S.J. 663, C.A.
NATURE OF PROCEEDINGS
APPEAL from the judgment of the District Court Grade I, Cape Coast, wherein the appellant was convicted of the offence of concealment of the body of a child under section 62 of Act 29 and sentenced to a term of imprisonment. The facts are sufficiently set out in the judgment.
COUNSEL
Ampiah for the appellant.
Dawson, Assistant State Attorney, for the respondent.
JUDGMENT OF EDWARD WIREDU J
The appellant aged about eighteen years became pregnant by one Gariba Sadick who according to her had been her boy friend for two years prior to the date of her arrest. The evidence is not clear as to the date of her conception but the undisputed facts however show that there was some interference with the pregnancy on the instructions of the said Gariba as a result of which on 16 November 1973, the appellant
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aborted and the baby was found in a public latrine. Following a report made to the police not long after the appellant had left the public latrine, she was traced to a friend’s house where she was arrested and taken first to the Cape Coast District Police Station in a semi-conscious state and later to the Cape Coast General Hospital where the placenta was removed. Police investigations show that they were contemplating preferring charges against Gariba for being responsible for the abortion but events turned against the appellant who on 4 February 1974, was arraigned before the Cape Coast District Court Grade I charged with the offence of concealment of the body of a child under section 62 of the Criminal Code, 1960 (Act 29).
The particulars of offence brought against the appellant read as follows:
“Salamatu Donkor: unemployed. For that you on 16 November 1973, at Ashanti Road, Cape Coast in the central magisterial district and within the jurisdiction of this court, did conceal the body of a still-born baby which you delivered by throwing it into a pit latrine with the intent to conceal the fact of its birth.”
In the court below the prosecution presented no evidence beyond the following: (a) that the appellant was pregnant, (b) that she was delivered of a baby, (c) that the baby was later found abandoned in a public latrine and (d) that the appellant was later traced to the house of a friend in a semi-conscious state where she was arrested. The appellant in the court below did not deny any of the facts testified by the prosecution as stated above but explained that on the day of the incident she went to the latrine when something dropped from her after which she started bleeding. She became frightened so she decided to walk to a friend’s house with a view to informing her of what had happened and that she was waiting for the friend who was then in the house when she started feeling pains and was dizzy. She did not see anything again until she later found herself in the hospital.
The trial learned magistrate on these facts, found her guilty of the offence, convicted her and sentenced her to a term of six months’ imprisonment with hard labour. It is from this decision that the present appeal has been brought to this court on three main grounds, namely: (1) that the judgment cannot be supported by the evidence adduced in court; (2) that the learned magistrate failed to consider the defence adequately; and (3) that the sentence is harsh and inconceivable having regard to the circumstances of the case. Even though Mr. Ampiah, counsel for the appellant, had a great deal to complain about the facts as found by the trial learned magistrate, his main complaint as was submitted on the first two grounds which were argued together was that the trial magistrate had erred in calling on the appellant to put up her defence after the close of the prosecution’s case when the evidence at that stage fell short of a prima facie case.
In developing his arguments on this point learned counsel submitted that some of the ingredients which the prosecution had to prove were absent from the evidence adduced by the prosecution. Learned counsel
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referred to section 63 (3) of Act 29 and submitted that the prosecution failed to prove that the foetus was aged six months or above as required. This in his view was fatal to conviction for an offence under section 62 of Act 29. He next referred to the case of R. v. Morris (1848) 2 Cox C. C. 489 and submitted that the offence contemplated under section 62 is analogous to the one contemplated under the Offences against the Person Act, 1828 (9 Geo. 4, c. 31), s. 14 [later substituted by the Offences against the Person Act, 1861 (24 & 25 Vict., c. 100), s. 60] and that it was essential for the prosecution in order to succeed to have proved that there was an endeavour on the part of the appellant to conceal the birth of the child. He argued that the element of intent was not proved. He argued that no evidence was produced by the prosecution to show that the appellant went and deposited the baby in the latrine with a view to concealing its birth as was particularised in the particulars of the offence which was found by the trial learned magistrate as having been proved. Counsel submitted that on the contrary, the explanation by the appellant showed that there was no intention to conceal the birth within the language of the Act. He therefore contended that there was a misappreciation of the facts by the trial learned magistrate which led him to the wrong conclusion that a case was made out against her which justified her being called upon to put up her defence. He therefore submitted that the conviction of the appellant was wrong and that the facts as presented by the prosecution fall short of the requirement of the law.
Counsel for the Republic, Mr. Dawson, assistant state attorney, submitted with his usual characteristic force that section 62 of Act 29 created an offence of strict or absolute liability. According to him, the prosecution’s case was made out once it was established that: (a) the appellant was delivered of a baby, (b) the baby was later found abandoned in a public latrine, and (c) the baby was abandoned with the view to concealing its birth. Learned state attorney submitted that it was no part of the duty of the prosecution to prove any of the factors or matters contained in section 63 (3) and (4) of Act 29. According to him, subsections (3) and (4) provide matters in which the appellant could take refuge such as by proving that the foetus was under six months old, etc. According to learned state attorney the facts as presented by the prosecution were all that was required to secure conviction under section 62 of Act 29.
The appeal brings into consideration sections 62 and 63 of Act 29 which read as follows:
“62. Whoever conceals the body of a child, whether such child was born alive or not, with intent to conceal the fact of its birth, existence, or death, or the manner or cause of its death, shall be guilty of a misdemeanour.
63. (1) Any secret disposition of the body of a child, whether it be intended to be permanent or not, may be a concealment.
(2) The abandonment of the body of a child in any public place may be a concealment, if the body is abandoned for the purpose of concealing the fact of its birth or existence.
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(3) Section 62 shall not apply to the case of a child of less than six months’ growth before its birth.
(4) Section 62 shall not apply to the case of intent to conceal the birth, existence, or death of a child, or the manner or cause of its death, from any particular person or persons only, but it is requisite that there should be an intent to conceal the same from all persons, except such persons as abet or consent to the concealment.
(5) Section 62 applies to the mother of the child as to any other person.”
The corresponding offence under English statute is section 60 of the Offences against the Person Act, 1861 (24 & 25 Vict., c. 100). The contents of the two are not in identical language but the spirit and the language are almost in pari materia.
A careful and critical examination of both sections 62 and 63 of Act 29 and some decided cases and review of the English Act in Russell on Crime (12th ed.), Vol. 1, pp. 607-611 reveal that in order to succeed under section 62 the whole of section 63 must be considered. Section 62 itself creates the offence of concealment of the body of a child. Section 63 (1) and (2) explain what may constitute concealment within the language of section 62. Whilst subsections (3) and (4) identify the kind of child in respect of which prosecution under section 62 is contemplated and the nature of concealment envisaged under section 62 respectively.
In order to succeed under section 62 of Act 29 therefore, the prosecution must choose particulars which fall within either subsection (1) or (2) of section 63. In addition the prosecution must establish by evidence that the child was of six months’ growth or above and that the intention was to conceal the child’s birth, death or existence from the whole world save persons who are accomplices: see section 63 (4) of Act 29 and R. v. Morris (supra).
For the prosecution to have succeeded on the particulars as brought against the appellant, the evidence should have shown that: (a) the appellant was delivered of a baby, (b) that she either secretly deposited it or abandoned it in the public latrine, (c) that the foetus was aged six months or above, and that (d) she deposited or abandoned the same with the view to concealing its birth, death or existence from the whole world other than those who were accomplices to the crime: see section 63 (4) of Act 29 and the Morris case (supra).
What constitutes secret disposition and abandonment within the language of the Act is a question of fact depending upon the circumstances of each particular case: see R. v. Sleep (1864) 9 Cox C.C. 559. R. v. Waterage (1846) 1 Cox C.C. 338 seems to suggest that in order to succeed under the English Act the disposition of the child or the baby must have been complete.
From the above analytical review of the essential requirements of the offence contemplated under section 62 of Act 29 it is difficult to conceive how the offence is one of strict or absolute liability. I therefore reject, in my judgment, the contention by Mr. Dawson that section 62 of Act 29
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enjoins an accused person to prove anything beyond the evidential burden as established by law. For where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is a sine qua non to securing conviction. Unless the same statute places a particular burden on the accused, the fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly: see Woolmington v. Director of Public Prosecutions [1935] A.C. 462 per Viscount Sankey L.C. at pp. 481-482, H.L. and R. v. Abraham [1973] 3 All E.R. 694, C.A.
It is clear from the facts of the instant case that no prima facie case was made out against the appellant at the close of the prosecution’s case upon which she could be called to answer. In this regard the learned trial magistrate with respect erred by calling on her. I will therefore uphold the submission by learned counsel for the appellant that the conviction was wrong. The appeal therefore succeeds and it is accordingly allowed. The conviction of the appellant is hereby quashed and her sentence set aside. She is accordingly acquitted and discharged.
DECISION
Appeal allowed.
Conviction quashed and sentence set aside.
S. Y. B.-B.
