NYARKO AND OTHERS v. THE STATE [1963] 2 GLR 59

DIVISION: IN THE SUPREME COURT

DATE: 21ST JUNE, 1963

BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.

 

CASES REFERRED TO

(1) R. v. John Joseph Hemmings (1939) 27 Cr.App.R. 46; [1939] 1 All E.R. 417, C.C.A.

(2) R. v. Joiner (1910) 4 Cr.App.R. 64, C.C.A.

(3) R. v. Fraser (1911) 7 Cr.App.R. 99, C.C.A.

(4) R. v. Pearson (1908) 1 Cr.App.R. 77, C.C.A.

(5) R. v. Power [1919] 1 K.B. 572; 14 Cr.App.R. 17, C.C.A.

(6) R. v. Jellyman (1921) 16 Cr.App.R. 43, C.C.A.

(7) R. v. Abbott [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; [1955] 2 All E.R. 899; 39 Cr.App.R. 141, C.C.A.

(8) R. v. Osabu and Maaseyo (1957) 3 W.A.L.R. 180, C.A

NATURE OF PROCEEDINGS

APPEALS against the conviction of the three appellants for possession of Indian hemp.

COUNSEL

Appellants in person.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the judgment of the court. On the 31st May, 1963, this court dismissed the appeal of Kwadjo Nyarko, the first appellant but it allowed the appeals of Kwabena Okyere alias Branu and Michael Koku alias Koku French, second and third appellants respectively. We now give our reasons for so doing. The three appellants were tried at the Circuit Court, Ho, and convicted by the circuit judge sitting with assessors upon an indictment which charged them with having in their possession 46.6 grams of Indian hemp which had been prepared for smoking. The case for the prosecution was that on the 26th March, 1962, detective constable Victor Adufo (the first witness for the prosecution) who was on patrol duty at Jasikan saw the three appellants walking together in the street at about 8 a.m., Kwadjo Nyarko, the first appellant, was holding a handbag; the other two had nothing on them. The first witness for the prosecution went to the appellants and when he asked the first appellant of the contents of the handbag, the second and third appellants ran away. He therefore took the first appellant to the workshop of a tailor, Samuel Nyagbode (the second witness for the prosecution). In the presence of the second witness for the prosecution, Victor Adufo (the first witness for the prosecution) requested the first appellant to bring out the contents of the handbag; whereupon the first appellant brought out 37 wrappers which he said contained Indian hemp. At that juncture the first witness for the prosecution told the first appellant that he was under arrest and placed him in the custody of the second witness for the prosecution. The first witness for the prosecution then left the store of the second witness for the prosecution and gave chase to the second and third appellants. He succeeded in catching up with the second appellant whom he arrested about 200 yards from the spot where he had previously apprehended the first appellant. He told the second appellant the reason for

[p.61] of [1963] 2 GLR 59. his arrest; but the second appellant denied possessing the handbag or knowledge of its contents. The second appellant was escorted by the first witness for the prosecution to the second witness for the prosecution’s shop and subsequently taken to Jasikan Police Station in the company of the first appellant. The handbag and the 37 wrappers with their contents were also taken to the police station. The third appellant was at large.

On the 23rd April, 1962, the third appellant was arrested at Kadjebi. He was handed over to the first witness for the prosecution who identified him as the person he saw in the company of the first and second appellants at Jasikan on the 26 March, 1962.

On the 2nd April, 1962, the Senior Government Chemist who analysed the contents of the 37 wrappers certified that they contained 46.6 grams of Indian hemp “cut into a form as could be used for consumption.” In the statements made by each appellant to the police which the prosecution adopted at the trial as part of their case, the second appellant said: “I have no knowledge whatsoever about the Indian hemp.” The third appellant also denied the charge and said, inter alia:

“In the course of the journey I never held any handbag at all. Kwaku Nyarko was the only fellow holding a handbag which contents I never knew or learnt of until his arrest.”

The first appellant in whose possession the handbag containing the Indian hemp was found also stated, inter alia, as follows: “On the way between Okadjakrom and Jasikan, Kweku French gave a bag he was holding for [to] me that he was attending nature’s call. When he returned he did not take it back from me and I did not bother to give it back to him until we got to Jasikan town where I was challenged by a C.I.D. man as to the contents of the bag and when I was requested to put down the contents I discovered that it contained Indian hemp. I had no knowledge of the contents else I would not have carried it at all.”

It is plainly manifest, at this stage, that the prosecution failed to establish the essential elements of the crime against the second and third appellants, viz., that both or either appellant was in possession of the handbag and had knowledge of its contents. The statement of each appellant cannot be admitted as evidence against the other. However, the learned circuit judge called upon all the appellants to make their defence. In other words, in his opinion a prima facie case had been made out by the prosecution against all of them. Thereupon each appellant went into the witness-box and gave evidence on oath reiterating the facts in the statement to the police which the prosecution had adopted as forming part of their case. The learned circuit judge then summed up to the three assessors who gave their opinions in the following manner:

“1st Assessor – 1st Accused: Guilty.

2nd Assessor – 1st Accused: Guilty.

3rd Assessor – 1st Accused: Guilty.

[p. 62] of [1963] 2 GLR 59.

1st Assessor – 2nd Accused: Not Guilty.

2nd Assessor – 2nd Accused: Guilty.

3rd Assessor – 2nd Accused: Not Guilty.

1st Assessor – 3 rd Accused: Guilty.

2nd Assessor – 3 rd Accused: Guilty.

3rd Assessor – 3 rd Accused: Guilty.”

The appellants were however found guilty by the learned circuit judge and each was sentenced to a term of five years’ imprisonment with hard labour. It is against such convictions that each appellant appealed to this court.

Turning now to deal with each appellant’s appeal, it will be more convenient to deal with the appeals of the second and third appellants together. Learned counsel for the respondent expressed himself unable to support the convictions of the second and third appellants and we are in entire agreement with him. It is abundantly clear that at the close of the case for the prosecution there was no evidence that the second and third appellants had committed any offence of which they could be lawfully convicted on the indictment upon which they were tried. The prosecution failed to prove that these two appellants ever had possession of the Indian hemp, the essential element of the crime charge. It is worthy to note that the statement made by the first appellant to the police which was admitted in evidence at the trial as forming part of the prosecutions’ case and in which reference was made to the third appellant as the person who handed the handbag containing the 46.6 grams of Indian hemp was inadmissible evidence against the third appellant.

As there was not a tittle of evidence against the second and third appellants at the close of the case for the prosecution it follows that there was no case for submission to the assessors. The learned circuit judge therefore erred in law in calling upon both appellants to make their defence. He should have stopped the case at the close of the prosecution’s case and acquitted them. Thus in R. v. John Joseph Hemmings,1 the appellant was convicted of incest of a girl alleged to be his daughter. The only evidence of paternity adduced for the prosecution was that the appellant had on several occasions spoken of the girl a s his daughter, but the prosecution had to prove that the girl was in fact the daughter of the appellant. There was no such evidence. “We are of opinion,” said Atkinson J. in his judgment, “that the case should have been stopped at the close of the case for the prosecution and that the Judge ought to have told the jury that there was no case for them to consider.”

Whether or not a submission of “no case” is made, “The Judge may consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the Judge is of the opinion that there is no evidence that the accused has committed any offence

[p.63] of [1963] 2 GLR 59. of which he could be lawfully convicted on the indictment upon which he is being tried, the Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused.” See section 271 of the Criminal Procedure Code, 1960.2 In a case where a submission of no case is made as in R. v. Joiner,3 Darling J. expressly said that the court in quashing a conviction, on the ground that a submission of no case had been wrongly rejected, took no notice of what happened after the rejection of the submission.

The view of Darling J. in Joiner’s case did not pass unchallenged for in R. v. Fraser4 Lord Alverstone C.J. said that after a submission of no case has been rejected the whole of the evidence was to be considered. In arriving at that conclusion he relied upon an early dictum of Darling J. in R. v. Pearson5 in which case although the conviction was quashed the judgment clearly indicated that this would not have been done if the defence had supplied the evidence wanting at the time the submission was made. This divergence of view was followed by a recognition, in a judgment delivered by Darling J. himself in R. v. Power6 that the view expressed in Joiner’s case (supra) was not to be followed. The headnote in Power’s case read as follows:

“If at a trial of an indictment a submission is made at the close of the case for the prosecution that there is no evidence that the prisoner committed the offence, and the submission is overruled, and witnesses are called for the defence by whom evidence is given incriminating the prisoner, the Court of Appeal is entitled on an appeal by the prisoner against conviction to take into consideration the adverse evidence given by the witnesses for the defence.”

The view expressed by Lord Trevethin C.J. in R. v. Jellyman7 is most helpful in this chain of cases. The appellant in that case was convicted at the Swanzea Assizes before Roche J. of conspiracy. Other defendants were joined in the indictment, which was for obtaining money by false pretences and conspiracy to defraud. At the close of the case for the prosecution, counsel for the appellant submitted that there was no evidence to go to the jury against Jellyman. Roche J. ruled that there was no evidence against Jellyman of obtaining by false pretences, but that there was evidence of conspiracy. The jury convicted him of conspiracy. He then appealed against the conviction, his main ground being that no fraud was brought home to his knowledge and there was no evidence that he must have known of it. The learned judge ought therefore to have withdrawn the case of conspiracy against him from the jury. Lord Trevethin C.J. in

[p.64] of [1963] 2 GLR 59. delivering the judgment of the Court of Criminal Appeal stated, inter alia, as follows: “Roche J., in dealing with the submission that there was no case to go to the jury, thought that it was a weak case, but that, as it concerned a humble portion of the community, it should be investigated to the dregs. No definite incriminating fact has been proved against the appellant which would leave a reasonable man with no possible conclusion but that he knew what was going on. This Court thinks upon the whole that it cannot be said with certainty that Jellyman was a guilty man at any time. The case was full of suspicion; but suspicion should not have prevailed with the jury.”

This passage appears to reject mere suspicion as a basis for continuing a trial.

The latest in the chain of criminal cases R. v. Abbott8 is one in which the evidence was evenly balanced at the end of the prosecution’s case. Like Power’s case there were two accused at the trial and the evidence after the submission of no case which incriminated the appellant (Abbott) was that of the co-accused. Delvin J. (as he then was) reviewed and explained the ratio decidendi in Power’s case (supra) and followed the principle expressed in Joiner’s case. This is made abundantly clear in his argument with counsel for the prosecution when he said9

“If the court is against you on your submission that the judge was right not to stop the case then the appellant was convicted on an error of law. If it had not been for that error of law he would have been entitled to leave the dock.”

There can be no doubt since the decision of the Court of Appeal in Regina v. Osabu and Maaseyo,10 which followed the principle enunciated by Delvin J. in Abbott’s case, that where the prosecution fail to establish the essential elements of the crime charged a submission of no case must succeed. It can then be said with a degree of certainty that the prosecution have failed to make out a prima facie case; in other words they have failed to prove the guilt of the accused beyond reasonable doubt.

Since the decision in Osabu and Maaseyo’s case (supra) it can be said with some firmness that where the essential elements of a crime have not been established and a submission of no case has been erroneously rejected, and the defendant appeals, the appellate court is restricted to consider the evidence before the trial at the time the submission was made. In that case Bossman J. (as he then was) who delivered the judgment of the court stated, inter alia, as follows:11 “There being ‘no case’ against the female appellant at the close of the case for the prosecution, and learned counsel’s submission to that effect having been wrongly overruled, there has been a wrong decision on a question of law as enunciated in Abbott’s case, and we would therefore . . . allow the appeal of the female appellant.”

[p.65] of [1963] 2 GLR 59.

We have already indicated, in the instant case, that the prosecution failed to establish against the second and third appellants an essential element in the charge, viz., that both or either of them ever had possession of the 46.6 grams of the Indian hemp-exhibit B. The fact that both were called upon to make their defence presupposes that the learned circuit judge was of the opinion that a prima facie case had been made against them. This in effect amounts to an error in law. “If it had not been for that error in law,” said Delvin J. in Abbott’s case, the second and the third appellants “would have been entitled to leave the dock.”

For these reasons we allowed the appeals of the second and third appellants, set aside their convictions and sentences and entered a verdict of acquittal in their favour and ordered them to be discharged. Turning now to deal with the appeal of the first appellant against whom the evidence was overwhelming, the prosecution established the essential elements of the crime with which he was charged, viz., that he was in possession of the handbag – exhibit A and that he knew that it contained the 46.6 grams of Indian hemp, the subject-matter of the charge. He was unable to satisfy the trial court that he had lawful authority to possess the Indian hemp. In the result his appeal which was devoid of substance was dismissed.

DECISION

Appeal of first appellant dismissed. Appeals of second and third appellants allowed.

K. T.