HIGH COURT, SUNYANI
Date: 18 FEBRUARY 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Practice Direction (Submission of no case) [1962] 1 W.L.R. 227; [1962] 1 All E.R. 448.
(2) Miller v. Minister of Pensions [1947] W.N. 241; [1948] L.J.R. 203; 177 L.T. 536; 63 T.L.R. 474; 91 S.J. 484; [1947] 2 All E.R. 372.
(3) R. v. Abbott [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; 119 J.P. 526; 99 S.J. 544; [1955] 2 All E.R. 899; 39 Cr.App.R. 141, C.C.A.
(4) State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.
NUTURE OF PROCEEDINGS
RULING on a submission of no case to answer on a murder charge against the accused. The facts are set out fully in the ruling.
COUNSEL
Adjei-Mensah for the accused.
Robert Kyei, Assistant State Attorney, for the Republic.
JUDGMENT OF OSEI-HWERE J
In his practice direction on a submission of no case reported in [1962] 1 All E.R. 448 Lord Parker C.J. said:
[p.269] of [1974] 1 GLR 268-271
“A submission that is here is no case to answer may property be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”
Although the above practice direction was meant as a guide to justices the two-fold principles laid down in upholding a submission of no case have always been a useful guide to judges in carrying out their statutory duty under section 271 of the Criminal Procedure Code, 1960 (Act 30). That section provides as follows:
“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 opinion that there is no evidence that the accused has committed any offence 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.”
The essential ingredients of the offence of murder which the prosecution must establish beyond reasonable doubt against the accused are the following:
(a) that the unknown man is dead;
(b) that his death was caused by the accused;
(c) that the accused caused his death intentionally; and
(d) that the accused caused his death by unlawful harm.
The prosecution’s evidence against the accused, at best, is that between 6.30 p.m. and 7 p.m., on 21 May 1973 the accused was seen leading a crowd of people who were chasing after an unknown man and shouting, “Thief, thief.” The only person who was a witness to this scene was the fourth prosecution witness who himself did not wait to join the chase but he rather retired to sleep on his work-bench before the pursuers and the pursued got to the road behind the back of his house. Thereafter he did not know where they led the pursuit. The following morning an unknown man was found lying unconscious at the Roman Catholic
[p.270] of [1974] 1 GLR 268-271
School compound, a distance of about 270 yards from the fourth prosecution witness’s house. The man had a swollen face, cut-wound on the left scalp, a broken mandible and blood oozing from the ear. There were about four broken bricks lying around him. The man was taken to the hospital and he never regained consciousness up to his death on 23 May 1973. The doctor gave the cause of his death as brain concussion. He also gave it as his opinion from the nature of the injuries he sustained that two objects were used in causing him the external violence, namely, a blunt object and a sharp object.
There is no direct evidence to connect the accused with the death of this unknown man. Indeed there is no evidence whatsoever to establish the identity of the person whom the accused chased from the house of the second prosecution witness up to the road behind the fourth prosecution witness’s house as the man found lying unconscious at the Roman Catholic School compound. What the prosecution obviously wish the court to infer is that once the accused was chasing after an unknown man who had allegedly duped him and an unknown man was subsequently found unconscious a short distance away from the direction towards which he gave chase, then it follows that the accused was responsible for the condition in which the unknown man was found. It is, indeed, pertinent to remind ourselves of the dictum of Denning J. (as he then was) on the standard of proof in criminal cases. In Miller v. Minister of Pensions [1947] 2 All E.R. 372 at p. 373 he said:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
So that if by this standard it can be conceded to the prosecution that the man whom the accused led the crowd after in hot pursuit was the same man who was found lying unconscious then the prosecution must still lead evidence to connect the accused with his death.
It is here that the prosecution’s case against the accused completely breaks down. For if a crowd of people chase after a man in the belief that he is a thief and he is battered to death at the end and the evidence does not point to which person or persons from the crowd inflicted the blows and there is no evidence that they were acting in concert then the charge of murder cannot hold against any one of them. Indeed, in R. v. Abbott [1955] 2 All E.R. 899 at p. 901, C.C.A. Lord Goddard C.J. laid down the following proposition:
[p.271] of [1974] 1 GLR 268-271
“If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of not guilty against both because the prosecution have not proved the case.”
In R. v. Abbott (supra) reference was made to a case in which two sisters were indicted for murder, and there was evidence that they had both been in the room at the time the murder of the boy was committed; but the prosecution could not show that sister A. had committed the offence or that sister B. had committed the offence. It was very likely one or the other must have committed it, but there was no evidence which of them did commit the offence. The court pointed out that although it was unfortunate that a guilty party could not be brought to justice, it was far more important that there should not be a miscarriage of justice and that the law should be maintained that the prosecution should prove the case.
The above principle presupposes that the accused was at the scene of the crime. Unfortunately there is no evidence that he saw the end of the chase. The prosecution’s case against the accused amounts to no more than mere suspicion and, as it was held in State v. Ali Kassena [1962] 1 G.L.R. 144, S.C. as appears in the headnote at p. 145:
“(3) it is dangerous in jury cases to leave to the jury evidence which amounts to suspicion only as there is the fear that they may ‘put a multitude of suspicions together and make proof out of it.’ Dicta of Delvin J., as he then was, R. v. Atter, The Times, March 22, 1956 approved and applied.”
For all the above reasons I uphold the submission of no case and the the accused must be entitled to his right that his case should not be left to the jury. I, therefore, direct you, gentlemen of the jury, to return a verdict of not guilty.
DECISION
Submission of no case upheld.
S.E.K.
