POKU v. THE STATE [1966] GLR 262

Division: SUPREME COURT

Date: 28 MARCH 1966

Before: MILLS-ODOI, AKAINYAH AND LASSEY JJ.S.C.

CASES REFERRED TO

(1) United Africa Co., Ltd. v. Apaw (1936) 3 W.A.C.A. 114. United Africa Co., Ltd. v. Apaw (1936) 3 W.A.C.A. 114.

(2) Bassayin v. Bendentu II (1937) 5 W.A.C.A. 1, P.C.

(3) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.

(4) R. v. Kuree (1941) 7 W.A.C.A. 175.

(5) Yeboah v. R. (1954) 14 W.A.C.A. 484.

(6) Twumasi-Ankrah v. R. (1955) 14 W.A.C.A. 673.

(7) R. v. Treacy [1944] 2 All E.R. 229; 30 Cr.App.R. 93, C.C.A.

(8) R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A.

(9) R. v. Golder [1960] 1 W.L.R. 1169; 124 J.P. 505; 104 S.J. 893; [1960] 3 All E.R. 457; 45 Cr.App.R. 5, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction by the Kumasi High Court for the offence of robbery contrary to the Criminal Code, 1960 (Act 29), s. 149. The facts are sufficiently set out in the judgment of the Supreme Court delivered by Akainyah J.S.C.

COUNSEL

G. D. Ampaw (with him Afreh) for the appellant.

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

[p.264] of [1966] GLR 262

JUDGMENT OF AKAINYA J.S.C.

Akainyah J.S.C. delivered the judgment of the court. The appellant was convicted by Baidoo J., sitting with assessors at the Criminal Session of the High Court, Kumasi, on 23 August 1965, on a charge of robbery contrary to section 149 of the Criminal Code, 1960,1 and sentenced to a term of seven years’ imprisonment with hard labour.

The facts relied upon by the prosecution are that on 8 November 1964, one Musa Gao, a salt dealer of Tepa, arrived in Kumasi with cash the sum of £G190 and alighted from the lorry at the Agip petrol filling station near Kejetia at about 8.15 p.m. He inquired of his countryman, one Abudulai Gao, who is the watchman at the station. On being told that he had not yet reported for duty, Musa Gao told the attendants at the station to tell Abudulai whenever he reported for duty that he should meet him (Musa Gao) at Nkrumah Market next morning with the money he realised from the sale of salt left with him. There were two taxicabs at the station at the time. One left with some passengers and the other which was empty also moved. Musa Gao, therefore, shouted “service” and the driver reversed the taxi towards him. Meanwhile, Musa Gao wrote the number of the said taxi, AT 4931, on a piece of paper and kept it. He then told the driver that he wanted to go to Aboabo No.1, Kumasi, and the driver told him that the fare was three shillings. He agreed and boarded the taxi. Although it was past 8 o’clock in the evening, Musa Gao clearly saw the face of the driver, because the filling station was brightly lit. That driver is the appellant.

The appellant then moved the taxi. Just about ten yards away from the filling station, he suddenly stopped near a certain man who was standing by the side of the road, and without a word from the said man, the appellant told Musa Gao that the man too wanted to go to Aboabo No.1 but had only one shilling and six pence, so he should agree to let him board the taxi and bear the fare with him in equal shares. Musa Gao agreed and the man came on board and sat with him on the back seat. As the place was dark, Musa requested the appellant to put on the inside light to enable him to see the face of the new passenger but the appellant said that the light was out of order. When the taxi moved again. Musa requested the appellant to pass through the Aboabo lorry station and Asawasi but the appellant said he preferred the Manhyia route, so he drove towards that direction.

After passing the ahenboboanu (palace gates) and a water stand pipe and as the taxi was nearing the roundabout on the airport and Aboabo road junction, the appellant stopped again on his own and tooted his horn. A certain man then came from the bush on the left hand-side of the road and boarded the taxi and the appellant moved

[p.265] of [1966] GLR 262 on in the direction of Brahabebome. Almost immediately, the new comer attacked Musa Gao with a knife. He struck him on the forehead and cut him on his left arm. The other man sitting on the back seat also took a knife and held it against Musa’s right ribs and with the other hand pulled up his (Musa’s) Hausa gown and covered his head with it. The new comer then searched the pockets of Musa’s shorts and on discovering that there was money in one of them, he cut open the said pocket and took out the money. Although Musa kept shouting all the time, the appellant neither stopped nor did he make any attempt to prevent the two men from attacking him. After the money had been taken away, the appellant stopped the taxi on the Brahabebome road (which is off the Aboabo road) and Musa was thrown out into the bush and the appellant drove away with the two men and the money. Musa remained in that strange and dark place for some time. Eventually when Musa got up he did not know exactly where he was. He however wandered about till he got to Kejetia and someone led him to the central police station where he made a report at 12.56 a.m. and handed the small piece of paper on which he had written the number of the taxi to the police. At day break, he was taken to the hospital and was treated .

In consequence of the report, Dectective Inspector Martin Augustus Asare went out on inquiries and saw the appellant driving the said taxicab. Upon interrogation the appellant told the inspector that although he was the owner of the said taxi, he gave it to one Kofi Agyeman for some time and took over from the said Agyeman between 8 p.m. and 9 p.m. on 8 November 1964. The inspector therefore arrested the appellant and took him to the police station. He then contacted the said Kofi Agyeman and he admitted that the appellant gave his taxi to him on the date in question but he returned it to him at about 8 p.m. At the police station, Constable Felix Kweku Mensah examined the interior of the said taxicab and saw blood stains on the back seat.

On 10 November 1964, at an identification parade held at the police station in which the appellant and the said Kofi Agyeman and some other suspects were mixed up with other men, Musa Gao identified the appellant only as the person who drove the said taxi No. AT 4931 on the night of 8 November 1964. The appellant again admitted that he was the driver of the said taxi; but this time his story was that he gave it to his friend Kofi Agyeman at 1.30 p.m. on the date in question, and it was not returned to him until 11 p. m. Inspector Asare, therefore, instructed that both the appellant and Agyeman should be charged. [p.266] of [1966] GLR 262

When he was charged with robbery and cautioned, the said Kofi Agyeman is alleged to have made the following written statement on which a mark and thumbprint purporting to be his appear: “On Sunday, 8 November 1964, at about 1.30 p.m. Kwasi Poku gave me his taxi car No. AT 4931 to drive for him. He told me to bring the taxi car to him at 8 p.m. At 8 p.m. I met Kwasi Poku who stopped me at Ashanti New Town. He boarded the vehicle and I drove to New Tafo, Kumasi. Kwasi Poku then alighted from the vehicle and told me that I should continue working with the car as he did not want to go to bed as yet. I continued driving the taxi car No. AT 4931. I visited Kejetia roundabout only once in the night but I did not collect any passenger. When it was about 11.30 p.m. I drove the taxi car No. AT 4931 to New Tafo, Kumasi, where I met the said Kwasi Poku in front of Atomic Paradise Bar. I therefore handed over the taxi car No. AT 4931 to Kwasi Poku and he drove it away. During the course of my duty with taxi car No. AT 4931 I did not collect any Gao man in my car. I did not know anything about the money.” The above statement, if it was made voluntarily by Agyeman, is obviously in conflict with the two oral statements which, Inspector Asare testified, Agyeman had made to him in Twi at different times. But as Agyeman appears to be illiterate and the written statement is alleged to have been made by him in the Twi language but was written in English and marked and thumbprinted by him, there is no presumption that he understood its contents. That, being so, the said statement is inadmissible until it has been proved by the writer that Agyeman did make it. In United Africa Co., Ltd. v. Apaw2 the court said: “Apaw is a native of Ashanti and as it would appear that at all events when he signed the agreement he could not understand English and was illiterate, it is clear that there is no presumption that he has appreciated the meaning and effect of the agreement.

This is one of the matters which has to be proved by the appellants.” Also in Bassayin v. Bendentu II3 the Privy Council said: “There is no doubt that, as the document was in the English language and the Omanhene knew no English, the onus lay upon Upper Wassaw to establish that the document had in [p.267] of [1966] GLR 262 fact been properly explained and interpreted so as to make the Omanhene of Aowin understand its real import.”

On the instructions of the senior state attorney, the charge preferred against the said Agyeman was withdrawn and he was discharged.

The case for the defence is in effect, an alibi, in that, the appellant alleged that on the date in question he gave his said taxi to his friend Kofi Agyeman at 1.30 p.m. and it was not returned to him till 11.30 p.m. and that shortly after 1.30 p.m. on that day, he and his cousin, one Kwabena Brobbey, left Kumasi for Aboaso village to take part in a funeral custom. They returned at 7.45 p. m. He then gave an account of his movements and contended that the said Agyeman brought the said taxi to him at a night club or bar called Atomic Paradise at 11.30 p.m.

It is manifestly clear that at the close of the case for the prosecution, a strong prima facie case had been made out against the appellant. Although he gave a comprehensive account of his movements covering the period 1.30 to 11.30 p.m. and mentioned names of persons and places visited by him, the appellant called only one man, his cousin Kwabena Brobbey whose evidence, in so far as it was relevant, was that he and the appellant returned from Aboaso village to Kumasi at 7.45 p.m. on the date in question. As to the material period, the appellants’ alibi was wholly unsupported.

After a careful hearing, two of the assessors and the learned trial judge rejected the appellant’s alibi and accepted the case for the prosecution and convicted him. Against his conviction, the appellant filed five grounds of appeal as follows:

“(1) The learned trial judge erred in law when in the course of the address of the counsel for the accused after the close of the case for the defence the learned judge stopped the address and directed counsel for the defence and the prosecution to address him on the admissibility of a document (i.e. exhibit 5 being the statement of one Agyeman) which said document had already been tendered in evidence by counsel for the defence through the prosecution’s third witness and without any objection being raised either by the state attorney or the learned trial judge.

(2) The learned judge erred in law when in the course of the address of the defence counsel after the close of the case of the defence he (the learned trial judge) ruled that a document which was already in evidence and formed part of the evidence was inadmissible and should be disregarded by the assessors.

[p.268] of [1966] GLR 262

(3) The learned trial judge’s failure to consider the defence of the accused particularly in the light of the defence put up by the accused and exhibit 5 (the statement of Agyeman) amounted to a miscarriage of justice.

(4) The case of the prosecution was based on a chain of suspicion and did not reach the standard to warrant conviction in the case of robbery as before the trial court.

(5) The learned judge misdirected himself on the quantum of proof required to prove the guilt of the accused in a criminal case.”

Arguing grounds (1) and (2) together, Mr. Afreh, counsel for the appellant, submitted that the written statement alleged to have been made by the said Kofi Agyeman was admissible and that, when it tendered it was not objected to, and was properly admitted in evidence; therefore, the learned trial judge erred in rejecting it subsequently as being inadmissible. He cited the case of R. v. Ansere4 and submitted that in that case which, in his view, is by no means dissimilar to the instant case, one Sasu’s statement was admitted in evidence in exactly the same circumstances; therefore, the principle enunciated therein is applicable to this case because Agyeman’s statement (exhibit 5) was put in to contradict the earlier statements said to have been made by the said Agyeman to Detective Inspector Asare (the prosecution’s second witness). Counsel submitted seriously that if the learned trial judge had not erroneously rejected exhibit 5 but had considered it as he should have done, he might have come to the conclusion that the testimony of Detective Inspector Asare touching the said oral statements alleged to have been made by Kofi Agyeman that he returned the said taxi to the appellant at about 8 p.m. on the night of the crime was not worthy of belief.

In our view, the case of R. v. Ansere is totally different from this case and it is clearly distinguishable but as learned counsel maintained that we cannot reject his submission without overruling that case, we have thought it proper to reproduce the facts of the case in extenso and then proceed to discuss it in detail. The facts as stated in the report were as follows5:

“The appellant was treasurer of the Kibi Local Council. His duties were to receive revenue collected by revenue collectors of the council, enter them in a cash book and issue receipts for them; prepare vouchers for payments to be made on behalf of the council and when the vouchers were passed by the chairman make the payments and record them in the cash book. He had

[p.269] of [1966] GLR 262 been treasurer for a long time. On July 13, 1956, the accounts covering the period May 5 to June 30, 1956, were checked by a Government Senior Executive Officer, and the cash books, both as to receipts and payments, were found to have been correctly entered up; but the cash on hand in the safe showed a shortage of £G656 2s. 10d. The appellant was not able to show how that shortage occurred. The matter was reported to the police and the appellant was arrested and subsequently charged.

Had those been the only facts in the case, the principle laid down in the case of Aboah v. The Queen ((1953) 14 W.A.C.A. 252) would apply, and the conviction of the appellant would be good. The defence is that the collection of revenue was made not by the appellant but by his assistant one E. Sasu Twum, popularly called ‘Sasu,’ who also kept and entered up the cash book. Sasu periodically handed over the moneys he collected to the appellant who gave him an unofficial receipt for them and afterwards reconciled the accounts with Sasu to find out whether he had paid in all he had collected. Further, that the appellant had not had time to reconcile the accounts with Sasu before the checking by the Senior Executive Officer took place, to know how much money he, Sasu, had with him.

This defence put up by the appellant was in substance the same as a statement he made to the police on August 3, 1956, when he was cautioned and questioned about the shortage.

It appears that before the appellant gave the written statement he had told the police about the reconciliation with Sasu, and of the fact that Sasu had some moneys with him which he had not handed over to him at the time of checking. This was borne out by the fact that before asking the appellant to make a statement the police sergeant detailed to investigate the case had asked Sasu to submit his own statement and in consequence Sasu wrote and sent to the police a statement which was undated. That statement was brought to light through cross-examination of the police sergeant; it was then admitted in evidence at the instance of the defence.

The defence that the collection of revenue and keeping of books, including the cash book, was carried out by Sasu was corroborated by witnesses for the prosecution, and was fully borne out by Sasu’s statement to the police. More important still, Sasu in his statement admitted that, at the date of the checking of the account by the Senior Executive Officer, he had some money which he should have handed to the appellant. But he said that the amount was only £69 14s. 8d. and that after [p.270] of [1966] GLR 262 the checking the appellant called upon him to produce whatever moneys he then had and thereupon he produced and handed the £69 14s. 8d. to the appellant in the presence of the Senior Executive Officer. This allegation by Sasu that he handed over the money to the appellant was denied by the Senior Executive Officer, the clerk and the chairman of the council, each of whom deposed that Sasu was not in the office at any time on the occasion of the checking.

Sasu was not called as a witness by the prosecution. Thus at the close of the case for the prosecution it had been conclusively established that Sasu was the officer who received revenue from the collectors even though the appellant was the treasurer, that it was he who kept the cash book, that at the date of the checking the accounts he still had some moneys of the council in his possession, and that he did not hand over such moneys as were then in his possession to the appellant.

Upon those facts each of the assessors expressed the opinion that the appellant was not guilty. The learned judge, however, as he was entitled under the Criminal Procedure Code, s. 300 (2), found the appellant guilty and convicted him.

After stating the facts which he accepted, the learned judge in his judgment said, ‘That leaves two alternatives—negligence or theft by the accused’: and after some observations on the defence he concluded: ‘I do not believe the evidence of the accused. Despite absence of any evidence from his assistant treasurer the only inference I am able to draw from the facts is that the accused converted the sum of £656 2s. 10d. to his own use’.”

Upon the facts quoted above, the court held, inter alia, the following6:

“No doubt the learned judge came to that erroneous conclusion either because he overlooked the statement Sasu had given to the police and which was in evidence, or if he did not overlook it, he failed to appreciate its significance. Had he properly directed himself on the admissions by witnesses for the prosecution that the collection of revenue and the keeping of the cash book were done by Sasu, and particularly Sasu’s own admission in his statement to the police that at the date of the checking of the accounts he was in possession of moneys belonging to the council which he had not paid over to the appellant, the learned judge could not possibly have disbelieved the defence; in any event he would have found that it might reasonably be true . . . [p.271] of [1966] GLR 262

The principle of law is that if there is one witness whose evidence would settle the case one way or another and the prosecution fails to call that witness their case must fail since in that event they have not proved their case beyond reasonable doubt: R. v. Kuree ((1941) 7 W.A.C.A. 175). But the failure to call a witness whose evidence would be only of a negative character is not fatal to conviction: R. v. Abubu Adenjima and Another ((1942) 8 W.A.C.A 193).

In this case it appears that the prosecution tried to suppress material evidence, namely, the fact that the assistant treasurer, Mr. Sasu, had possession of some money which he should have handed over to the appellant to enable him properly to account for it. And there being evidence led by the prosecution themselves that Sasu received money from the revenue collectors, entered it in the cash book, and afterwards paid it over to the appellant, the prosecution’s case would be incomplete without further evidence that all the moneys so collected by him evere paid over to the appellant before or at the checking. Sasu was therefore the one person whose evidence would have settled the case one way or the other, namely, whether or not he had paid over to the appellant all the moneys he had entered up in the case book as collected on behalf of the council. But the prosecution did not call him. Consequently this court would have been bound to quash the conviction even on that ground alone.” It is obvious from the facts that in the Ansere case, not only was the fact admitted by the prosecution as true that Sasu was the assistant treasurer of the Kibi Local Council but it was also admitted that he was in juxtaposition with the appellant Ansere, the treasurer, in respect of the duties of their offices and that the completeness or accuracy or both of the accounts of one, depended upon the faithful discharge by the other of his duty. In other words, the accounts of both must agree or tally. It was also admitted by the prosecution that prior to the institution of the criminal proceedings against the appellant, the police took a statement from the said Sasu in which he admitted that the sum of £69 14s. 8d. being part of the sum of £656 2s. 10d. alleged to have been stolen and which sum was the subject-matter of the charge against the appellant, was lawfully in his (Sasu’s) possession. He agreed that he should have paid that sum to the appellant at the time when the latter’s accounts were checked but added that after the checking, the appellant called upon him and he handed the said sum of £69 14s. 8d. to him in the presence of the [p.272] of [1966] GLR 262 checking senior executive officer, the clerk and chairman of the council, each of whom denied that he handed any sum to the appellant.

Upon these facts which the prosecution admitted to be true, Sasu was evidently a very important and material witness for the prosecution. They could not succeed without calling him, yet they appeared to have decided to take the risk by not calling him. In such circumstances, we are of the opinion that the appellant, too, could not, without jeopardising his chances of success, call the said Sasu to testify on his behalf because he would have taken the opportunity to swear—contrary to the truth—that he handed the said sum of £69 14s. 8d. to the appellant. In other words, the appellant’s own witness would have supplied the missing link in the case for the prosecution and cleared the doubt which would have enured for his benefit. The appellant would have been rash and foolish indeed, if he had done so. Happily, he took a course which was wise and commendable. By his cross-examination, he got the witness for the prosecution to admit the fact that the said Sasu had made a statement in writing in which he admitted that he was in possession of some of the money for which, he (the appellant) was standing trial on charge of stealing. That admission weakened the case for the prosecution and as they were unwilling to call the said Sasu, the appellant called for his statement and tendered it in evidence and it was accepted. Sasu’s statement was, on the principle of R. v. Kuree7 clearly admissible. In those circumstances, the prosecution were precluded or estopped from the fact that Sasu was partly responsible for the moneys of the council; and was in possession of the sum of £69 14s. 8d. which was part of the money for which the appellant stood charged with stealing. That seems to us to be the ratio decidendi of the Ansere case. In the instant case, the appellant’s bare assertion that he was not in charge of the said taxi at the material time and that Kofi Agyeman was temporarily in charge, was not admitted by the prosecution to be true. In fact Musa Gao (the prosecution’s first witness) swore positively that it was the appellant himself who drove the said taxi at all the times material to the case and identified him later at the identification parade. Detective Constable Mensah also saw blood stains in the back seat of the said taxicab. In view of the defence of alibi counsel for the appellant at the trial did not dispute, nor suggest, that the facts were untrue.

It would seem, therefore, that the said Agyeman was a very important witness for the defence and should have been called by the appellant to testify on oath that he was in charge of the said taxi at [p.273] of [1966] GLR 262 the material time. His alleged statement, not having been proved to have been read over and explained to him, was completely useless and not binding on him. The record of proceedings contains the following notes under the cross-examination of the prosecution’s third witness Constable F. K. Mensah: “What I have in my hand is the statement of Kofi Agyeman which was taken after the identification parade. By Court—Mr. A. Menka asks leave to tender the statement of Kofi Agyeman through this witness, the state attorney does not object, statement accepted and marked exhibit 5.”

As we have pointed out earlier in this judgment, there is no evidence that the said statement was read over and explained to Agyeman, therefore, in the absence of the said Agyeman, it would be dangerous and improper to hold that the said statement was made by him. If he had been called he might have admitted making it and explained the inconsistency satisfactorily. Even if the said statement was in fact made by Kofi Agyeman it would still be inadmissible because its contents are in the nature of a confession by the said Kofi Agyeman that he was in charge of the taxi at the crucial time. That being so, Kofi Agyeman himself should have appeared before the court and said so on oath and have been cross-examined by counsel for the prosecution, because he might have denied making it at all. Not having been called, the oral statement made by Agyeman to the police in Twi, presumably in the absence of the appellant but which was given in evidence through the cross-examination of the inspector by counsel for the appellant, stood uncontradicted and was, in our view, worthy of belief and the judge was right in considering it. The prosecution were not obliged to call a man who was not their witness and whose evidence they had reason to believe to be untrue and which even if true at all, would negative their case and support the case for the appellant. To them Agyeman appeared to be untruthful. They were aware of the contents of exhibit 5 alleged to have been made by him which are inconsistent with earlier statements he had made in Twi to Detective Inspector Asare. In Yeboah v. R.8 it was held that, “But a prosecutor is relieved from calling such witness if he has a reasonable belief that the witness would not speak the truth and that his statement is untrue.” That principle was followed in Twumasi-Ankrah v. R.9 It would seem that the appellant’s failure to call his friend Agyeman was deliberate, because he knew at the onset that for his

[p.274] of [1966] GLR 262 alibi to succeed, the said Agyeman must, or ought to be called by him therefore he listed him as his third witness at the committal proceedings. Having failed to call him, the appellant attempted improperly to achieve his purpose by putting in a statement alleged to have been made by the said Agyeman. Learned state attorney conceded that Agyeman’s statement was admissible and that the learned judge was wrong in rejecting it, but submitted that the wrongful rejection did not occasion any substantial miscarriage of justice.

With respect, we do not agree that the statement is admissible. A statement which is inadmissible cannot be made admissible by putting it in evidence in cross-examination: see R. v. Treacy.10 A previous statement made by a witness to the police which is in distinct conflict with his evidence on oath is admissible to discredit or contradict him. But such a statement is not admissible to contradict the testimony of another witness of whom the maker of the said statement had said something to the contrary. Where an issue has been joined as to the truth or otherwise of a statement, it is not right for the party on whom the burden of proof lay to put the said statement without calling the maker as a witness and deprive his opponent or his right to cross-examine him.

The principle in the much-cited case of R. v. Harris11 is strict but not absolute. It enables the maker of statements which are inconsistent to offer a satisfactory explanation. We do not think that if a witness says that he was held at gun point to make an untrue statement against his will, his subsequent testimony on oath of the truth can be disregarded. If the principle in the Harris case excludes any reasonable explanation, then it must be applied here with great caution; because it might lead to a miscarriage of justice. There are so many factors which must be taken into account when considering an explanation, e.g. the strong and wide family ties, illiteracy, fear, custom and superstition. In R. v. Golder12 the Court of Criminal Appeal said inter alia:

“ ‘It has undoubtedly sometimes been thought that where a witness is cross-examined upon a previous unsworn statement and admits that the statement was made, but says that the statement was untrue, that unsworn statement may sometimes be treated as if it could be accepted by the jury in preference to the sworn statement in the witness box . . . That, of course, is all wrong, as has been pointed out on various occasions by this Court, and not least in the case of White (1922) 17 Cr.App.R. 59’.”

[p.275] of [1966] GLR 262

We agree with the above statement. What we are saying is that in this country it would expose the administration of criminal justice to ridicule if the testimony of a witness on oath were rejected outright because he is alleged to have made a previous unsworn statement which is in conflict with his evidence without carefully considering his account of the circumstances under which any such statement was made.

In our view the proper thing to do is to call the maker of the two inconsistent statements and give him the opportunity to explain or reconcile the said statements. He may have a host of explanations to give, e.g. he may say that he made one of the said statements under duress and that it was not made by him voluntarily therefore it was not his statement in fact; or he may deny making one of the said statements; or he may say that he made one of the said statements in order to help a friend or relation in trouble or he may say that he made one of the said statements to protect himself from prosecution. If the witness is unable to explain satisfactorily the inconsistency then the weight of his testimony is negligible and the verdict is to be founded on the rest of the evidence. It follows, therefore, that any witness who is proved to have made two statements on a given subject which cannot be reconciled must be called to give evidence and be cross-examined. Neither of the said statements is admissible per se. If the inconsistency is not satisfactorily explained, the court will direct the jury to accept neither the unsworn statement nor the evidence on oath.

We hold therefore that exhibit 5 is inadmissible and the learned judge was right in rejecting it. We are of the opinion that R. v. Ansere was properly decided. In the result, we reject counsel’s submissions on grounds (1) and (2) as untenable.

On the grounds (3) and (4), counsel submitted:

(a) that the learned trial judge failed to consider the defence fully and that if he had done so he would have rejected the evidence of identification because it was admitted by the prosecution that the prosecution’s first witness was kept in an office with glass windows prior to the identification and that he might have seen the appellant through the said window;

(b) that there is no evidence that the chain of circumstances on which the case for the prosecution is based leads to the one and only conclusion that the appellant was the driver and that he took part in the commission of the robbery.

On the issue of identification, we are unable to appreciate the force of counsel’s submission. At the trial, although counsel for the appellant suggested that the prosecution’s first witness might have [p.276] of [1966] GLR 262 seen the appellant on his way to the identification parade, he also put it to the prosecution’s first, second and third witnesses that at the parade, the prosecution’s first witness (Musa Gao) was unable to identify the the appellant and that it was Kofi Agyeman who was pointed out by him. The suggestion was denied by all three prosecution witnesses. It seems to us that if counsel honestly believed that the prosecution’s first witness saw, or might have seen, the appellant through the glass window, and that the identification was farcical, he would not have suggested that the same prosecution’s first witness was unable to point out the appellant a few minutes later. Upon the evidence, we are satisfied that the identification parade was properly and fairly conducted, and that the learned trial judge’s finding on that issue is right. Learned state attorney submitted that the evidence shows that the appellant aided and abetted the two other persons who robbed the prosecution’s first witness. Section 20 (1) and (2) of the Criminal Code, 1960, provides that:

“(1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging, or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime.

(2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime.”

We are of the opinion that the evidence established that the appellant aided and abetted the persons who committed the robbery and he was therefore properly convicted.

In the result we do not see any ground for disturbing the judgment.

The appeal is therefore dismissed.

DECISION

Appeal dismissed.

S.K.T.