HIGH COURT, HO
Date: 20 NOVEMBER 1973
ANDOH J
CASES REFERRED TO
(1) R. v. Adjei (1958) 3 W.A.L.R. 544, C.A.
(2) Asare alias Fanti v. The State [1964] G.L.R. 70, S.C.
(3) R. v. Onabanjo (1936) 3 W.A.C.A. 43.
(4) R. v. Kassi (1939) 5 W.A.C.A. 154.
(5) R. v. Neal [1949] 2 K.B. 590; [1949] 2 All E.R. 438; 113 J.P. 468; 65 T.L.R. 557; 93 S.J. 589; 48 L.G.R. 93; 33 Cr.App.R. 189, C.C.A.
(6) Commissioner of Police v. Blankson [1960] G.L.R. 1.
(7) R. v. Murray [1951] 1 K.B. 391; [1950] 2 All E.R. 925; 210 L.T.J. 243; 114 J.P. 609; 66 T.L.R. (Pt. 2) 1007; 94 S.J. 726; 49 L.G.R. 90; 34 Cr.App.R. 203, C.C.A.
(8) R. v. Francis (1959) 43 Cr.App.R. 174, C.C.A.
(9) R. v. Cleary (1963) 107 S.J. 77; 48 Cr.App.R. 116, C.C.A.
(10) R. v. Chapman (1838) 8 C. & P. 558; 173 E.R. 617.
(11) R. v. Holden (1838) 8 C. & P. 606; 173 E.R. 638.
(12) Coulson v. Disborough [1894] 2 Q.B. 316; 70 L.T. 617; 58 J.P. 784; 42 W.R. 449; 10 T.L.R. 429; 38 S.J. 416; 9 R. 390, C.A.
(13) R. v. Tait (1966) 50 Cr.App.R. 198, C.C.A.
NATURE OF PROCEEDINGS
APPEAL by the appellant against his conviction by the Circuit Court, Ho, on the grounds that the trial judge had erred in (1) ruling upon a police statement without evidence and (2) in allowing the prosecution to call further evidence at the close of the case for the Conference. The facts are fully stated in the judgment.
COUNSEL
Agbettoh for the appellant.
E. Akwei-Addo, State Attorney, for the Republic.
JUDGMENT OF ANDOH J
This is a criminal appeal from the judgment of his honour Judge E. T. A . Torto sitting at Ho Circuit Court wherein upon trial and conviction of the appellant herein on 15 August 1973 for the crime of smuggling, the learned judge sentenced the appellant to five years’ imprisonment with hard labour. It is against this conviction that the
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appellant appeals to this court and even though four grounds of appeal were filed, Mr. Agbettoh counsel for the appellant in arguing this appeal has confined himself to only two grounds, namely: (1) that the learned trial judge erred in law when he admitted the appellant’s statement without first investigating whether he made it or not and (2) that the learned trial judge erred in law when he allowed further evidence to be led by the prosecution at the close of the case for the defence. Before considering the merits in this appeal, I would state concisely the facts leading to the arrest, prosecution and subsequent conviction of the appellant in the court below. The facts are quoted verbatim from the judgment of the learned circuit judge at page 11 from lines 18—33 of the record of the proceedings. They are as follows: “On 25 June 1973 a Bedford pick-up with registration No. GS 3459 was intercepted at a barrier mounted by a team of Border Guardsmen at Asikuma, and on its interception, 322 cartons of Rothmans Kingsize cigarettes were found concealed in the body of the vehicle under a tarpaulin. These were suspected to be contraband goods. The driver was interrogated as to the ownership of those goods and he was alleged to have pointed out the accused who readily admitted the fact adding he had only been given a lift from Anyirawase. The accused was unable to produce the relevant document to show that customs duty had been defrayed and so he was arrested. “
On these facts, on 27 June he was charged with the following offence:
“Statement of Offence:
Smuggling contrary to section 49 (1) (a) and (e) of the Customs and Excise Decree, 1972 (N.R.C.D. 114). Particulars of Offence:
For that you on the 25th day of June, 1973 at Asikuma Junction border guard check point in the Volta circuit and within the jurisdiction of this court with intent to defraud the Republic of duty, did unlawfully import 322 cartons Rothmans Kingsize-cigarettes from the Republic of Togo to Ghana.”
I have already mentioned the two grounds of appeal before this court but in order to appreciate these, I think it would be fair to state other facts or occurrences which took place either before or in the course of the trial to necessitate these grounds relied on in this appeal.
Before the accused was arraigned before the learned circuit judge, as is the normal practice, he had been interrogated and cautioned for a statement by the police. The accused was reported to have made a statement which in effect was a simple confession. Again just before the first defence witness had concluded with his evidence which was to the
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effect that it was he who had sold the said cigarettes allegedly manufactured by Pioneer Tobacco Company, Accra, to the accused and had given the accused a receipt to cover the transaction, the prosecution applied to call a further witness. The application was vehemently opposed and at p. 8 of the record of proceedings appears counsel’s objection which is as follows:
“Mr. Nutsugah objects on the ground that the prosecution had ample opportunity to call all witnesses in support of their case and that since their case has been closed they are precluded from so doing. If they are allowed to call a fresh witness, it would mean that they are re-opening their case. This should not be allowed. It would be different if they had previously intimated that they intended calling a witness.”
The learned circuit judge ruled on the objection as follows:
“Section 119 of the Criminal Procedure Code, 1960 (Act 30), appears to govern the instant situation. It reads thus: ‘Any Court may at any stage of any enquiry, trial, or other proceeding under this Code call any person as a witness or recall and re-examine any person already examined. ’ It would seem from the tenor of the section cited that the power to call any witness is reserved only to the court hearing the case. In this particular case the application to call further evidence was made by the prosecution. It follows therefore that it would be within the discretion of the court to allow or disallow, that application. But it should be borne in mind that this is a court of justice where the truth of any enquiry should be gone into. Accordingly since justice would seem to be done I would allow the application.”
In conformity with this ruling after the defence had closed its case on 25 July 1973, the prosecution ushered into the witness-box the fifth prosecution witness. His evidence in effect was that the Pioneer Tobacco Company, Accra, does not manufacture the brand of cigarettes the subject-matter of this prosecution. On 15 August 1973, the learned circuit judge in a reserved judgment found the accused guilty, convicted him and sentenced him to five years’ imprisonment with hard labour.
It is against this conviction that this appeal is brought. Now in arguing ground 1 of this appeal, Mr. Agbettoh referred the court to the proceedings of 4 July 1973 and in particular to the evidence of the third prosecution witness Moses Kwesi Adraku a police sergeant. It appears from the evidence of this gentleman that he was instructed to charge the accused upon cautioning him. According to the witness the accused made a statement and just when he was about to tender the alleged statement in evidence, learned counsel for the accused is reported to have objected to the admissibility of the alleged statement as follows:
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“Counsel objects to the statement being tendered on the following grounds:
(i) The statement sought to be tendered was not that of the accused.
(ii) The accused has looked at that statement and disagrees with the statement.”
Now upon the objection taken by counsel as disclosed above, the learned circuit judge peremptorily ruled as follows: “By Court: Inasmuch as the accused signed that statement the objection is overruled.”
Learned counsel for the appellant has submitted vigorously that upon the objection taken, the learned circuit judge erred in ruling upon it peremptorily without evidence. In other words, learned counsel contends that since the accused was repudiating the alleged statement, it was incumbent on the trial judge to have determined by evidence whether the alleged statement was in fact made by the accused and if so whether it was voluntarily made.
It is true that the grounds relied upon in objecting to the admissibility of the statement did not expressly allege that the statement was made under duress, threat or upon promise but where as in the instant case, the accused objected to the authorship of the whole statement, it was incumbent on the trial judge to hold a “mini trial” for the determination of the issue whether the statement was made by the accused and if so whether it was voluntary. The burden lies on the prosecution to satisfy the court on these issues prior to the admissibility of the statement. The question as to admissibility of a document is a matter for the judge, but the weight to be attached to it is a matter for the jury: see R. v. Adjei (1958) 3 W.A.L.R. 544, C.A. That this is the procedure and the law is made manifest in the case of Asare alias Fanti v. The State [1964] G.L.R. 70, S.C. In that case, the Supreme Court stated at p. 74 as follows:
“It is correct that where objection is raised to the admission of a statement made by a defendant in a criminal case on the grounds that the defendant did not make the alleged statement, [and this is the ground of objection stated by counsel in the court below] or that the said statement was not a voluntary statement, or that it was made under duress, or procured by threats or promise, the said issues should be tried, and a court should not admit the statement until it is satisfied that it is a voluntary statement made by the defendant.”
See also R. v. Onabanio (1936) 3 W.A.C.A. 43 and R. v. Kassi (1939) 5 W.A.C.A. 154. In this case, the alleged statement was about to be tendered and therefore the learned trial judge was not supposed to have seen it before he had decided the issue by taking evidence. Before he had done so he had in contravention of law asked for and seen the statement together with the signature of the accused on it. His ruling on the
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objection raised, shows that he admitted the statement solely upon the premises that the accused had allegedly signed the statement. Now this is clearly wrong and most unsatisfactory. The mere fact that an accused person signs a statement does not mean that it must be admitted in evidence without investigation when the accused denies authorship of the statement. Again the mere fact that the accused has signed a statement does not mean that the statement was made by him and that it was voluntary.
In a criminal trial, nothing is taken for granted and in my view the omission of the learned circuit judge to investigate the issues by evidence, deprived the accused of the protection given him by essential steps in criminal proceedings. In fact the omission of the judge amounts to a miscarriage of justice and leaves the court no option other than to quash the conviction. Thus in R. v. Neal (1949) 33 Cr.App.R. 189, C.C.A. what constitutes a miscarriage ofjustice appears at p. 192 of the report as follows: “Now there is no doubt that to deprive an accused person of the projection given by essential steps in criminal procedure amounts to a miscarriage of justice and leaves the court no, option but to quash the conviction.” In fact the proper procedure where an objection is taken to the admissibility of a statement on such grounds as above or at any rate the first ground, is stated in the case entitled, Commissioner of Police v. Blankson [1960] G.L.R. 1. In that case, an objection by defence counsel as to the admissibility of statements on grounds of assault was dealt with summarily in the court below as follows: “Objection overruled. No evidence to substantiate any of the grounds of objection.” It was held on appeal to the High Court presided over by Smith J. as appears in the headnote as follows:
“Where an objection to admissibility is made on such grounds, a magistrate should invite defending counsel to cross-examine the police officer tendering the statement before the latter leaves the witness-box, and to call any evidence at his disposal in support of the allegations, including (if he so desires) the accused persons on this particular point. Similarly the prosecution should call their witness or witnesses present at the taking of the statements. In the light of the evidence so given it would be for the magistrate to decide at that stage of the trial whether or not the statements had been made voluntarily, and were admissible.”
The procedure as given by Smith J. in the case cited is correct except that since the prosecution assumes the duty of proving the voluntariness of the statement, I would rather have preferred to invite the prosecution to call evidence if any, followed by the accused and his witnesses before, a finding is reached in the light of the evidence so adduced before the court: see also R. v. Murray [1951] 1 K.B. 391, C.C.A., R. v. Francis(1959) 43 Cr.App.R. 174, C.C.A. and R. v. Cleary (1963) 48 Cr.App.R. 116, C.C.A. Mr. Akwei-Addo the learned state attorney who appeared for the Republic in this appeal concedes that the learned circuit judge
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was in error by not deciding the issue on evidence but argues that the proper course to take in the circumstances of the case is to order a trial de novo by this court.
In the case of Commissioner of Police v. Blankson (supra) Smith J. concluded at P. 3 as follows:
“It is an unfortunate matter, because, had the evidence been heard by the magistrate at the time of the objection to the admissibility of the confessions, he would very probably have found that there was no substance in the objection which defending counsel raised, and in that event, of course, there could have been no grounds for an appeal. As it is, the appeals (which were well argued by Mr. Baidoo for the appellants) must be allowed, and the convictions of, and sentence upon, each appellant must be quashed.”
Save for the substitution of the name Mr. Baidoo for Mr. Agbettoh, and the magistrate for the learned circuit judge, I adopt the observations and conclusions of the learned judge in this appeal.
Now the success of this first ground alone is sufficient to dispose of this appeal but I think that the other ground must be considered as well, namely, “That the learned trial judge erred in law when he allowed further evidence to be led by the prosecution at the close of the case for the defence.” Here again the learned state attorney has boldly, admirably and honourably conceded that there was no justification for the trial judge to allow the prosecution to call further evidence after the case for the defence had closed. He, however, submits that the court should order a de novo trial. But the law on the point is quite clear. In a criminal trial the presiding judge has the right to call a witness ,not called by either the prosecution or the defence and without the consent of either, if in his opinion, this course is necessary in the interest of justice: see R. v. Chapman (1838) 8 C. & P. 558 and R. v. Holden (1838) 8 C. & P. 606. But in order that injustice is not done to the prisoner, the calling of such a witness after the close of the case for the defence should be limited to cases where something has arisen on the part of the prisoner ex improviso which no human ingenuity could foresee. Where a witness is called by a presiding judge neither the prosecution nor the defence is entitled to examine or cross-examine him without leave of the judge: see Coulson v. Disborough [1894] 2 Q.B. 316, C.A.
In this case the learned circuit judge, after construing section 119 of Act 30 correctly that the power to call or recall a witness is solely reserved to the court, purported in the exercise of his direction to allow the prosecution to call a witness after the case for the defence had closed and the only reason given is that “justice would be seen to be done” in such circumstances. I think the only ground permitting a judge to sanction the prosecution to call further evidence must be
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limited to cases where the prosecution has been taken by surprise and the evidence is allowed to rebut a defence belately raised. In this case the second prosecution witness who was recalled at the instance of the defence counsel stated that he understood the accused to be saying that he had bought the cigarettes in Accra. That brand of cigarette is not manufactured in Ghana and I think a Court is entitled to take judicial notice of this notorious fact and to treat the evidence of the first defence witness to the effect that Rothmans Kingsize cigarettes are manufactured by the Pioneer Tobacco Company, Accra, as perjury or as palpably false. The discretion exercised by the learned judge in allowing the prosecution to rebut that evidence by calling further evidence was therefore not properly exercised. In R. v. Tait (1966) 50 Cr.App.R. 198 the Court of Criminal Appeal held as summarised in the headnote at P. 198 that:
“The judge has a discretion with regard to the admission of evidence in rebuttal, but the field in which that discretion can be exercised is limited by the principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be adduced by the Crown as part of their case and such evidence cannot properly be admitted after the evidence for the defence by way of rebuttal. The principle does not extend to evidence which is only marginally, minimally or doubtfully relevant.
Wherever the accused purchased the goods was something which was within his own peculiar knowledge. As I have pointed out a judae is entitled to take judicial notice of the fact that Rothmans Kingsize cigarettes arc not manufactured in Ghana; there was therefore no need for the trial circuit judge to allow the prosecution to call further evidence which to my mind was doubtfully relevant having regard to the unwholesome nature of the evidence of the first defence witness.
This is an appeal in which the accused must have his conviction quashed not because of his innocence but because the trial of the case was fraught with glaring irregularities which have occasioned a substantial miscarriage of justice. These irregularities were omitted or committed by the learned trial circuit judge and I am unable in the exercise of my discretion to order a trial de novo as the trial was not a nullity. The accused is therefore acquitted and discharged. The order as to the confiscation of the cigarettes stands. He should count himself exceptionally lucky.
DECISION
Appeal allowed.
Accused acquitted and discharged.
Confiscation order to stand.
S. E. K.
