TANOH ALIAS OBENG v. THE REPUBLIC [1971] 2 GLR 482

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 30 AUGUST 1971

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) Atiemo v. Commissioner of Police [1963] 1 G.L.R. 117, S.C.

(2) R. v. Stepto [1955] Crim.L.R. 796, C.C.A.

[p.484] of [1971] 2 GLR 482

(3) Makin v. Attorney-General for New South Wales [1894] A.C. 57; 63 L.J.P.C. 41; 69 L.T. 778; 10 T.L.R. 155; 17 Cox C.C. 704, P.C.

(4) R. v. Ball [1911] A.C. 47; 75 J.P. 180; sub nom. Public Prosecutions Director v. Ball (No. 2) 80 L.J.K.B. 691; 103 L.T. 738; 22 Cox C.C. 366; 6 Cr.App.R. 31, H.L.

(5) Thompson v. The King [1918] A.C. 221; 87 L.J. Q.B. 478; 118 L.T. 418; 34 T.L.R. 204; 26 Cox C.C. 189; 13 Cr.App.R. 61, H.L.

(6) Harris v. Director of Public Prosecutions [1952] A.C. 694; [1952] 1 All E.R. 1044; [1952] 1 T.L.R. 1075; 36 Cr.App.R. 39, H.L.

(7) The People v. Shea 147 N.Y. 78; 41 N.E. 508 (1895).

(8) R. v. Rowton (1865) Le. & Ca. 520; 34 L.J.M.C. 57; 11 L.T. 745; 13 W.R. 436; 10 Cox C.C. 25, C.C.R.

(9) Noor Mohamed v. The King [1949] A.C. 182; [1949] 1 All E.R. 365; 65 T.L.R. 134; 93 S.J. 180, P.C.

(10) R. v. Bond [1906] 2 K.B. 389; 75 L.J.K.B. 693; 95 L.T. 296; 70 J.P. 424; 54 W.R. 586; 22 T.L.R. 633; 50 S.J. 542; 21 Cox C.C. 252, C.C.R.

(11) Maxwell v. Director of Public Prosecutions [1935] A.C. 309; 103 L.J.K.B. 501; 151 L.T. 477; 98 J.P. 387; 50 T.L.R. 499; 24 Cr.App.R. 152; 30 Cox C.C. 160, H.L.

(12) Akowuah v. Commissioner of Police [1964] G.L.R. 475, S.C.

(13) Donkor v. The State [1964] G.L.R. 598, S.C.

(14) Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13; 113 L.J.K.B.

394; 171 L.T. 78; 109 J.P. 1; 60 T.L.R. 461; sub nom. R. v. Stirland 30 Cr.App.R. 40, H.L.

NATURE OF PROCEEDINGS

APPEAL from convictions in the Circuit Court, Kumasi, for stealing and causing unlawful damage. The facts are sufficiently set out in the judgment.

COUNSEL

Owusu Edusei for Mmieh for Adusei for the appellant.

Sampong for the Republic.

JUDGMENT OF TAYLOR J.

The appellant herein was convicted by the Circuit Court, Kumasi, on two counts of stealing N¢800.00 contrary to section 124 of the Criminal Code, 1960 (Act 29), and causing unlawful damage to a police docket contrary to section 172 (1) (a) of Act 29. He was sentenced to three years’ imprisonment with hard labour on the stealing count and two years’ imprisonment with hard labour on the unlawful damage count. The sentences were to run concurrently but to commence at the expiration of a term of ten years’ imprisonment with hard labour which the appellant was serving in respect of another offence. It is against these convictions and sentences that the appellant has lodged his appeal.

The facts of the case founding the stealing charge are that the appellant is said to be in the habit of assisting the complainant who though an illiterate is said to be able to sign his name. The appellant it is alleged

[p.485] of [1971] 2 GLR 482 normally fills in the complainant’s cheques for him before he signs them for presentation to his bankers, the Ghana Commercial Bank at Kejetia, Kumasi. On a Saturday in August 1965 the complainant went to his bankers with a cheque duly filled in by the appellant and signed by the complainant and at the bank the complainant learnt that on the previous Monday someone had cashed N¢800.00 on his account. He denied having signed any cheque for any such sum. The matter was referred to the police after the complainant with the appellant and others had seen a Mallam before whom it was said that the appellant confessed that he stole the money when the Mallam, by a so-called supernatural power exercised through his fetish, pointed out the appellant as the thief.

The appellant, according to the evidence, absconded and went and hid in a friend’s house and to a friend of this friend he confessed the crime. The friend to whom he confessed reported to the police and the appellant was arrested. It was also given in evidence that the appellant made a statement to the police admitting the offence and the mother and sister of the appellant refunded to the police N¢600.00 and promised to pay the remaining N¢200.00 but this promise was not kept.

With regard to the count of causing damage to the police docket, the evidence led by the prosecution supporting this charge is that the appellant became friendly with a police officer who gave evidence as the third prosecution witness. This officer conspired with the appellant to steal the police docket in the case and the said docket containing inter alia the confession statement of the appellant, the forged cheque and a report of a hand writing expert was purloined by the said third prosecution witness and it was destroyed. The relevant portion of the third prosecution witness’s evidence on this matter is inter alia as follows: “We decided to steal the docket so that there would be no evidence available to prosecute the accused and an order for restitution of the money would be made in favour of the accused and we could trade with the money … Constable Ahiakpo had the key to the office where the docket was being kept and brought the docket and called us to the R.C.I.D. office where he gave the docket to us in the presence of the accused … Myself and the accused burnt the docket. It was the accused who lighted a match on the docket and it was burnt to ashes . . .”

The third prosecution witness was convicted of causing damage to the docket and sentenced to three years’ imprisonment with hard labour.

In substance this is the evidence led against the appellant. The appellant pleaded not guilty and led evidence denying the offences and denying the alleged confessions.

There can be no doubt that if the evidence of the prosecution were accepted then a conviction was inevitable, and there is equally no doubt that if the version of the facts given by the appellant was accepted he would be entitled to an acquittal. In her six-page judgment, however, the judge [p.486] of [1971] 2 GLR 482 of the circuit court discussed in considerable detail the case of the prosecution and the only reference to the case of the appellant is in one short paragraph as follows:

“The accused in his defence denied ever making oral confessions of these offences to any of the prosecution witnesses or to any person for that matter. He said on several occasions he was brought to court in connection with the offences of forging and stealing but he was finally discharged upon the withdrawal of the charge by the prosecution.”

Having regard to this treatment of the evidence of the appellant, one of the grounds of appeal which was argued and on the strength of which leave to appeal was granted is that, “The trial judge did not adequately consider the case for the defence.”

Impressive as this ground of appeal appears to be, in my opinion it cannot succeed. This would seem to be the precise ground which was unsuccessfully urged upon the erstwhile Supreme Court in Atiemo v. Commissioner of police [1963] 1 G.L.R. 117, S.C. That was a case in which the trial judge had treated the case for the defence in a way similar to the treatment given to the appellant’s defence and counsel for the appellant in that case citing the case of R. v. Stepto (1955) Crim.L.R. 796, C.C.A. had argued that the defence was not adequately considered. Adumua-Bossman J.S.C. delivering the judgment of the court remarked at pp. 128-129:

“[H]aving regard to the principle so often repeated by the former West African Court of Appeal and the Ghana Court of Appeal that if there be evidence before the court constituted by a magistrate or judge sitting alone which he has accepted to found a conviction, it is not the place of the appeal court to interfere with that conviction, we are unable to see how the case R. v. Stepto cited and relied on by counsel for appellant assists him….

That being the principle applicable, we are satisfied there was evidence which the trial judge was entitled to accept and we would therefore not interfere with his conviction but dismiss the appeal.” It would seem, of course, that the principle has been stated rather too widely by the court. In the Atiemo case the only ground which seemed to have had any merit was the said ground that the defence was not adequately considered. I apprehend that if there had been another legal ground with merit which could have been decided in favour of the appellant, then the fact that there was evidence founding the conviction would not mean that the appeal must be dismissed. Assuming for the purpose of argument that in the Atiemo case the witnesses for the prosecution were all accomplices and there was no corroboration and no warning of the danger of convicting in the absence of corroboration, I doubt whether overwhelming evidence as to guilt could sustain the conviction before the appellate court. Where of course the ground is the omnibus ground or the ground in the Atiemo case or any such similar ground based on the facts, then the principle as enunciated by Adumua-Bossman J.S.C. would seem to be unexceptionable.

[p.487] of [1971] 2 GLR 482

Be that as it may, in this case another ground was argued and although I held that the argument based on the so-called inadequate consideration of the defence must fail having regard to the decision in the Atiemo case (supra) I think the other ground deserves and I propose to give it very serious consideration. The matter does not seem to end with the Atiemo case. The said other ground is as follows: “The finding that the accused was serving a ten year sentence for counterfeiting is unsupported by evidence and the trial judge’s reliance upon such unsworn information was wrong.”

The necessity for this ground of appeal arose because although not a single witness either for the prosecution or the defence gave any evidence touching the previous conviction of the appellant, nevertheless in delivering judgment the circuit judge remarked that, “The court must bear in mind that the accused is at the moment serving a ten year term of imprisonment for counterfeiting.” I have had considerable doubts as to the legal effect of this on the conviction of the appellant. Unfortunately I have not succeeded in finding any authority, local or foreign, covering the point and it seems to me that I must resolve the matter as best I can by having resort to general principles. I begin by asking myself this question. What is the general principle governing the admission of evidence of a previous conviction of an accused person standing trial on a charge? In that little but useful book, The Proof of Guilt, Dr. Glanville Williams at p. 213 (3rd ed.), stated the general principle thus: “The feature of the English system that most puzzles and intrigues foreign lawyers is that the prosecution are generally not allowed to give evidence of the accused’s bad character or previous conviction in order to help establish that he committed the crime in question. Such evidence can in general be given only after conviction in order to determine punishment.”

The law enshrined in the first sentence above is contained in the celebrated dictum of Lord Herschell in Makin v. Attorney-General for New South Wales [1894] A.C. 57 at p. 65, P.C. as follows: “It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

[p.488] of [1971] 2 GLR 482

This principle is now almost hackneyed but as thus formulated in this dictum it has been approved by the House of Lords in R. v. Ball [1911] A.C. 47 at p. 71, H.L. by Lord Loreburn L.C.; in Thompson v. The King [1918] A.C. 221 at p. 227, H.L. by Lord Atkinson; and in Harris v. Director of Public Prosecutions [1952] A.C. 694 at p. 704, H.L. by Lord Simon. In Thompson v. The King (supra) Lord Sumner said at p. 232:

“No one doubts that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man who would commit a crime, or that he is generally disposed to crime and even to a particular crime.” This principle is a feature of the common law concept of criminal justice and although as stated by Lord Sumner it would seem to be of universal application in R. v. Ball [1911] A.C. 47, H.L. Lord Loreburn recognised its English character when he said at p. 71:

“I agree that the Courts of law ought to be very careful to preserve the time-honoured law of England, that you cannot convict a man of one crime by proving that he has committed some other crime; that and all other safeguards of our criminal law, will be jealously guarded.”

The emphasis is mine. And in the American case of The People v. Shea 147 N.Y. 78; 41 N.E. 508, (1895) (set out in Wigmore on Evidence (3rd ed.) Vol. I at p. 455), Peckam J. drew vivid and comparative attention to the common law origin of the rule:

“Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favours this kind of evidence, in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of the whole past life of the accused, his tendencies, his nature, his associates, his practices, and, in fine, all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such course is pursued than where it is omitted. The common law of England, however has adopted another, and, so far as the party accused is concerned, a much more merciful doctrine . . . In order to prove his guilt, it is not permitted to show his former character, or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question.”

It is worthwhile in my opinion to find out the reasons for the rule. In the form in which the rule has been formulated above it would seem that it is directed at discouraging the prosecution from introducing evidence as to previous conviction. But what if the evidence, as in the case before me, has not been introduced by the prosecution? In my view if the reasons for the rule are grasped then the relevance of the effect on the evidence in the case of an appellant’s previous conviction can be appreciated, whatever the source of the previous conviction.

[p.489] of [1971] 2 GLR 482

In Harris v. Director of Public Prosecutions (supra) at p. 710, H.L. Lord Simon attempted to give the reasons for the rule. He said:

“A criminal trial in this country is conducted for the purpose of deciding whether the prosecution has proved that the accused is guilty of the particular crime charged, and evidence of ‘similar facts’ should be excluded unless such evidence has a really material bearing on the issues to be decided.”

Willes J. in R. v. Rowton (1865) 10 Cox C.C. 25 at p. 38, C.C.R. also gave some reasons based on notions of justice why the previous conviction of an accused person is generally inadmissible. He said: “The prosecution is prevented from giving such evidence for reasons rather of policy and humanity than because proof that the prisoner was a bad character was not relevant to the issue, – it is relevant to the issue, but it is expedient for the sake of letting in all the evidence which might possibly throw light on the subject; you might arrive at justice in one case and you might do injustice in ninety nine.”

The emphasis is mine. Wigmore would seem to agree with this for at p. 454 of Wigmore on Evidence, Vol. I (3rd ed.) the following appears:

“There is just as much probative value in the argument ‘A is quarrelsome, therefore he probably committed this assault’, as in the argument ‘A is peaceable, therefore he probably did not commit the assault’; and this is acknowledged in judicial opinion. Here, however, a doctrine of Auxiliary Policy operates to exclude what is relevant, – the policy of avoiding the uncontrollable and undue prejudice, and possibly unjust condemnation, which such evidence might induce.”

The emphasis is mine. And at p. 456 he gave consideration to a wider reason. The reasons for exclusion are based not merely on a desire for justice but a desire to be fair:

“This policy of the Anglo-American law is more or less due to the inborn sporting instinct of

Anglo-Normandon – the instinct of giving the game fair play even at the expense of efficiency of procedure . . . But, as a pure question of policy, the doctrine is and can be supported as one better calculated than the opposite to lead to just verdicts. The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in or out of Court.”

This concept of fairness was adverted to by Glanville Williams at p. 214 of The Proof of Guilt (3rd ed.). He said, “One reason for the English rule is that evidence of general evil propensity is thought to widen the issues of the trial so immensely as to be unfair to the accused.” Sir James Stephen in his Commentaries (21st ed.), Vol. 3, p. 153 comments and would seem to agree with Lord Sumner’s description in Thompson v. The King [1918] A.C. 221 at p. 232, P.C. that previous convictions are a “damming piece of prejudice,” Sir James Stephen wrote:

[p.490] of [1971] 2 GLR 482

“It might be thought evidence of similar acts on other occasions and evidence as to character ought always to be admissible for what they are worth. It can hardly be said that they have no value in deciding whether an allegation is true or false. But it is felt that any claim they have to consideration on that account, and it would in any case be small, is far outweighed by the atmosphere of prejudice which would be introduced into a Court of law were they once admitted.”

The emphasis is mine.

It would seem from these authorities and works that the rule excluding previous convictions is based on a desire to secure just verdicts, to have a fair trial and to avoid undue prejudice and unjust condemnation. In this country under the provisions of article 20 (1) of the Constitution, 1969, it is provided that: “20. (1) Whenever any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by a Court.”

Again, the emphasis is mine.

It seems therefore, that the reasons for the exclusion of the evidence of previous conviction, discussed above, are in keeping with the provisions of our Constitution. Of course as was pointed out by Lord Herschell in Makin’s case (supra) and as was conceded by the Privy Council in Noor Mohamed v. The King [1949] A.C. 182, P.C. the rule is subject to well known exceptions although the attempt by Lord Herschell to exhaust the exceptions in his formulation and the subsequent effort of Bray J. in R. v. Bond [1906] 2 K.B. 389 at p. 414, C.C.R., to lay down in a mechanical form the exceptions do not seem to accord properly with the reason for the rule. Be that as it may, the case before me exhibits certain features which deserve careful attention. It is noteworthy that neither the prosecution nor the defence offered the evidence of previous conviction referred to by the learned circuit judge and secondly there does not seem to have been any reason for the admission of the evidence to bring it within the so-called exceptions recognised by the rule, and the question this poses is: What is the effect of these features ? I think it is generally agreed, and there is no need for any decided authority for it, that where inadmissible evidence has been admitted then an appellate court must set aside the conviction unless there has been no substantial miscarriage of justice. Indeed the proviso to section 330 (1) of the Criminal Procedure Code, 1960 (Act 30), as well as section 406 (1) of the said Act are statutory authority for this proposition. In my view in so far as the admission of the said evidence of previous convictions can be said to be unconstitutional because it militates against a fair trial it must necessarily cause a substantial miscarriage of justice. An accused person is entitled to defend himself. If the prosecution leads overwhelming evidence tending to establish his guilt he is equally entitled if he so chooses to lead evidence tending to establish his innocence or

[p.491] of [1971] 2 GLR 482 cast doubts on the prosecution’s case. And in a case like this where the appellant has in fact led some evidence which if believed establishes his innocence, I think prejudicial evidence not warranted by the character of the defence and not necessary for the purpose of the prosecution cannot but tip the scale in favour of accepting the prosecution’s case and rejecting his case. This is particularly so when it is not known by what process of inquiry and for what reason the court thought it meet to secure this piece of evidence, apparently without the knowledge of the prosecution and the defence.

In considering this appeal, I do not propose to lose sight of the fact that our legislature would seem to be bent on creating for us an indigenous concept of criminal justice not necessarily tied to the jurisprudence of England. There is no doubt that having regard to its history and experience, English criminal jurisprudence favours an accused person to the extent of permitting a guilty person to escape the sanction of criminal justice if the rules fashioned for his protection are ignored by the administrators and interpreters of the criminal law. In Maxwell v. Director of Public Prosecutions [1935] A.C. 309 at pp. 323-324, H.L. Viscount Sankey in his usually vivid style stated this English position: “If in any case the evidence against a prisoner (other than that which is inadmissible) is very strong and is abundant to justify a jury in convicting, it may well seem unfortunate that a guilty man should go free because some rule of evidence has been infringed by the prosecutor. But it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the chance of the jury fairly trying the true issues. The sanction for the observance of the rules of evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed … It is often better that one guilty man should escape than that the general rules evolved by the dictates of justice for the conduct of criminal prosecutions should be disregarded and discredited.”

In this country, salutary though this English rule is, it seems to me that our legislature has been engaged for some time now in the rather difficult and unenviable task of breaking with this English tradition. Our legislature, while conceding that the innocent ought not to be punished, would seem to demand that the guilty should not be permitted to hide behind any facade of technicality and legal formalism to escape his just punishment. The concept of a person clearly guilty escaping punishment seems odious to our traditions and it seems to me that our legislature does not seem to be happy about the concept inherent in the last observation of Viscount Sankey above. When on 30 June 1964 in Akowuah v. Commissioner of Police [1964] G.L.R. 475, S.C. the erstwhile Supreme Court used a highly artificial notion of justice to acquit an appellant whose appeal otherwise would seem to have no merit and repeated the process again [p.492] of [1971] 2 GLR 482 on 20 November 1964 in the case of Donkor v. The State [1964] G.L.R. 598, S.C. the legislature peremptorily endeavoured to reverse the process and on 9 January 1965 passed into law the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), which would seem to state in unambiguous language that notwithstanding any rule of law a clearly guilty person should not be acquitted upon such artificial notions of justice as were canvassed by the erstwhile Supreme Court in the two cases above. It seems to me that it is the duty of the court, having regard of course to the provisions of the Constitution, to assist in moulding rules to give effect to this indigneous philosophy behind Act 261 instead of thwarting the legislative intention by recourse to English notions which ought gradually to disappear to give way to new standards.

As I have already pointed out the constitutional provision enjoining fair trial contained in article 20 (1) would seem to indicate that whatever rules are formulated now or hereafter, they must be subject to an overriding requirement, and designed to secure a fair trial. Is it fair to an accused person that the tribunal should obtain without his knowledge and that of the prosecutor a record of his past crime? This, as the record of proceedings shows, is what happened in this case. The circuit court in considering the case for the prosecution and the defence said, as I have already quoted, that it would keep the previous conviction in mind. Is it not probable that in evaluating the evidence, the fact that the appellant had a previous conviction, tipped the scale against him and led the judge to believe the prosecution and disbelieve him? If so the trial and verdict can hardly be described as fair.

Counsel for the Republic has argued that there is overwhelming evidence as to guilt and so I should apply the proviso to section 330 (1) of Act 30 and dismiss the appeal on the ground that there has not been any substantial miscarriage of justice. I am not sure I can accede to this request, attractive though it be. In the English case of Stirland v. Director of Public Prosecutions [1944] A.C. 315, H.L. Viscount Sankey adverted to this problem of applying the proviso in a somewhat similar circumstance. The headnote at p. 316 states the principle to be applied very clearly.

“The provision . . . that the Court of Criminal Appeal may dismiss an appeal if they consider that no substantial miscarriage of justice has actually occurred assumes a situation when a reasonable jury after being properly directed, would on the evidence properly admissible, without doubt convict.” The emphasis is mine. I am not sure, having regard to the evidence led by the appellant, that a reasonable jury would without doubt convict, although I think the evidence as to guilt is overwhelming. In such a situation it would seem that a conviction cannot be sustained. It is for these reasons that I find myself with considerable regret allowing the appeal in this case in which, but for the passage referred to, the judgment is in all respects admirable and unexceptionable.

[p.493] of [1971] 2 GLR 482

The appeal, I am afraid, is allowed. The conviction, I am sorry, is hereby quashed and the sentences, I regret, are set aside. The appellant is hereby acquitted but in the circumstance he is dishonourably discharged.

DECISION

Appeal allowed.

Appellant dishonourably discharged.

J. D.