REGINA v. DJOMOH [1960] GLR 193

DIVISION: IN THE COURT OF APPEAL

DATE: 22ND JUNE, 1960

BEFORE: KORSAH C.J., VAN LARE J.A. AND GRANVILLE SHARP, J.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction for child stealing by Scott J. sitting with assessors on June 25, 1959 at Assizes held at Sunyani.

[p.194] of [1960] GLR 193

COUNSEL

Appellant in person.

Glasgow for respondent (Crown).

JUDGMENT OF GRANVILLE SHARP, J.A.

Granville Sharp, J.A. delivered the judgment of the court. (His lordship referred to the evidence and continued).

The finding that in the appellant’s evidence he no doubt lied does not conclude the matter against him.

The evidence of the prosecution has to be considered first, for the burden rests upon the prosecution to prove guilt beyond any reasonable doubt.

The learned judge reviewed the evidence, but it does not appear from the record that he made any comment upon it, or gave any directions to the assessors (or to himself) as to its possible effect in law. His recorded note is as follows:—

“Assessors told if evidence of accused accepted, opinion should be stated as not guilty. If after consideration of all evidence they find Prosecution’s case proved, opinion should be stated as guilty. If they entertain any reasonable doubt, accused entitled to benefit of that doubt, and opinion should be stated as not guilty.”

We much regret that we have to repeat that in our considered opinion this procedure is not satisfactory, and if followed can often lead to an injustice. If the appellant had been represented by counsel he might well have never been called into the witness-box, because the evidence of the prosecution itself contained certain elements of doubt that would then have come under consideration. In the first place, it must be said that a confession of having “ done wrong “, accompanied by an apology, does not (especially in this country) necessarily amount to a confession that a crime has been committed. It often means no more than this, “ If what I have done has given you offence, I beg you to forgive me.” Apart from these alleged admissions on the part of the appellant, the case against him rested upon circumstantial evidence. The question which ought to have been (but was not) considered by the learned judge, and upon which he ought to have directed both the assessors and himself, was: “Do the circumstances in which the accused was found with the child point necessarily to his guilt, and to no other logical conclusion.” The explanation which had repeatedly been given by the appellant should have been pointed out as being one of the matters that had to be considered in arriving at an answer to this question. This was not done. For ourselves, we cannot find on the recorded evidence that the prosecution evidence necessarily justified a conclusion that, in terms of section 209 of Criminal Code, the appellant took the child, or detained him, “with intent to deprive of the possession or control of him” some person entitled thereto. A probability that the appellant’s explanation may have been true cannot be excluded. It does not appear that this received any consideration, either in the minds of the assessors, or in the mind of the learned judge himself.

For these reasons, on the 10th June, 1960 we allowed the appeal, quashed the conviction and sentence and ordered that the appellant should be discharged.

DECISION

Appeal allowed.