SEY v. COMMISSIONER OF POLICE [1963] 1 GLR 19

 

DIVISION: IN THE HIGH COURT, CAPE COAST

DATE: 11TH JANUARY, 1963

BEFORE: SOWAH J.

 

CASE REFERRED TO

Sarpong v. Commissioner of Police (1946) 12 W.A.C.A. 26

NATURE OF PROCEEDINGS

APPEAL against a conviction for stealing entered by the District Magistrate, Cape Coast, on the 26th October, 1962.

COUNSEL

T. D. Brodie-Mends for the appellant.

J. N. K. Taylor, State Attorney, for the respondent.

JUDGMENT OF SOWAH J.

The appellant was on the 26th October, 1962, convicted by the district magistrate, Cape Coast, on a charge of stealing and was sentenced to six months imprisonment. In the said judgment the district magistrate stated that, “The story of these two witnesses has been fully and intelligently corroborated by P.W.3 who in spite of his tender age, has convinced the court of the truth of his evidence and which stands unshaken.” P.W.3 was one Efua Mensimah, a maidservant of P.W.1, the complainant. Upon her own confession she was one of the two persons who stole the moneys and handed them over to the accused. She was clearly an accomplice. Learned state attorney has, however, ably argued that upon a cursory reading of the record, the learned magistrate would appear to be wrong, but upon a more detailed study of the judgment there can be no doubt that there was a clerical error and that the learned magistrate meant to write P.W.4 and not P.W.3. Learned state attorney stated that the magistrate in his judgment first reviewed the evidence of P.W.2 and P.W.3 and in the paragraph which followed stated that the evidence of the two witnesses had been corroborated, but instead of writing P.W.4, he wrote down P.W.3. Counsel further argued that the whole of the context leaves no room for doubt that the learned magistrate meant P.W.4. For the description he gives of P.W.3 shows that he meant P.W.4. For instance, he speaks of “his tender age.” P.W.3 is a female so the word “his” cannot refer to P.W.3. P.W.4 is a boy of tender age. P.W.3 is not of a tender age. Mr Mends, counsel for the accused, has stated that the court is bound by the record of appeal and that there has been no allegation that the record is wrong in any material particular, nor has there been any application to have the record corrected if wrong. Mr. Mends cites the case of Sarpong v. Commissioner of Police1 in which it was held that whatever may have been the intention of the judge, an appellate court is bound by the record. I accept this principle as entirely corrdct but in my view this case is distinguishable from the case cited by learned counsel for the accused. It is not a question of finding what the intention of the magistrate was. The context in which P.W.3 appears shows that the magistrate meant to write P.W.4 and by mistake put down P.W.3. I understand, therefore, the magistrate to mean that the evidence of P.Ws.

[p.21] of [1963] 1 GLR 19

2 and 3 had been corroborated by P.W.4 a boy of tender age—whose evidence was accepted by the court. The state attorney, however, invited the court’s attention to the provisions of section 10 of the Oaths Act, 19602 which are as follows:

“No person shall be convicted or judgment given upon the uncorroborated evidence of a person who shall have given his evidence without oath or affirmation.”

Under the common law if the only evidence implicating the prisoner is the unsworn evidence of a child, it is the duty of the judge to stop the case. This principle of law has in this country been codified and extended to include persons other than children as shown on the section quoted above. The issue here is that if we accept that the magistrate meant P.W.4 instead of P.W.3 and substitute P.W.4 in the context, is the magistrate right in treating this evidence as corroborative of the evidence of P.Ws.2 and 3? In my view, the unsworn evidence of P.W.4 needed to be corroborated, and there is no corroboration of this evidence. I consider the learned magistrate wrong in accepting evidence which itself needed corroboration as corroborating the evidence of the P.W.2 and P.W.3 who are clearly accomplices. The judgment quite clearly shows that the main reason for the conviction of the accused is because he accepted the evidence of P.W.4. P.W.4’s evidence is not in law sufficient to warrant conviction of the accused. In the circumstances, I will allow the appeal, set aside the conviction and sentence and discharge and acquit the prisoner.

DECISION

Appeal allowed.

Appellant acquitted and discharged.

J. D.