SUPREME COURT, ACCRA
DATE: 12TH OCTOBER, 1962
BEFORE: VAN LARE, OLLENNU AND AKUFO-ADDO, JJ.S.C.
NATURE OF PROCEEDINGS
APPEALS against convictions for murder entered by Apaloo, J., sitting with a jury in the High Court, Kumasi. The facts are sufficiently set out in the judgment of the Supreme Court.
COUNSEL
K. Narayan for they appellants.
A. N. E. Amissah, D.P.P. for the respondent (the State)
JUDGMENT OF VAN LARE J.S.C.
Van Lare J.S.C. delivered the judgment of the court. The appellants were jointly charged with two other persons with the offence of the murder of one Kwame Nsonamoah at Sekodumasi village in the Ashanti Region on the 22nd July, 1961. The trial came before Apaloo, J., sitting with a jury in the High Court, Kumasi, when the appellants were convicted on the charge preferred and the two others acquitted. The deceased was found bleeding from punctured wounds in the neck and on the head, lying on the ground in front of his store late in the evening of the day alleged in the charge. He was then alive but could answer no questions, and was conveyed the same night by lorry to the hospital at Kumasi where he died three days later without regaining consciousness. According to the medical evidence, the cause of death was fracture of the skull and laceration of the brain due to gun shot wounds. The police saw pellet holes on the wall of the verandah where the deceased was discovered in a pool of blood; there were also seen at the spot, some round iron balls resembling pellets, and about 65 feet away were found two small pieces of cardboard believed to be cartridge covers. The inference was that the deceased while on the verandah in front of his store on the evening in question was fired at from a distance. The prosecution was unable to produce an eye witness as to how the deceased sustained the injuries from which he died but put forward the following case.
The first appellant, a relative of the deceased, had a protracted illness which he suspected had been caused by juju or poison believed to have been procured by the deceased and given to his, first appellant’s, wife to put into his food; the first appellant on one occasion sent a letter to his said wife telling her that he would deal drastically with the deceased. Some few days before the event leading to the charge, the first appellant casually borrowed a double-barrelled gun from a man in a village where he went to demand a debt, and took the gun back with him to Kumasi where he lived. On the evening prior to the eventful night, both appellants in company of one of the two others who have been acquitted, visited the village of Sekodumasi, where the deceased was shot; and again the appellants, now with the two others, travelled to the said village and were in that village on the eventful night.
The driver of the taxi cab in which the men travelled, by name Kwasi Kankam, testified that when they reached the village on the fatal night he was instructed by the men to park somewhere while they left him alone and went into the village; that they were away for a long time but returned running back to the taxi after he had heard the report of a gun followed by another such report, and he was ordered by the men to drive back to Kumasi with the appellants and the two others in the taxi. He said that the first appellant struck and broke the globe of the inside light in the taxi and that he had noticed something wrapped in cloth which he later discovered to be a dismantled gun; he also said that he noticed on the return journey that the first appellant threw away some empty cartridges into the bush, and that he was requested by the men to cover up the rear registration number of his taxi. Owing to a burst tyre, they did not arrive in Kumasi until the
[p.103] of [1962] 2 GLR 101
early hours of the next day, but the first appellant continued to a nearby village where he deposited his wrapped-up parcel containing the gun. There is evidence that a day or two later the first appellant went back to the village where he had borrowed the gun and caused it to be returned to the owner.
It is difficult for us to appreciate how these facts can rightly be held to constitute circumstantial evidence in support of the charge against any of the prisoners at the trial except that it might be sufficient to raise suspicion against them. In a case where the evidence is purely circumstantial and establishes nothing more than suspicion, the judge must draw attention to the necessity of some piece of evidence that is more than mere suspicion and which would lead to one conclusion and one conclusion only, that is, to the guilt of the prisoner. One cannot put a multiple of suspicions together and make proof of it. For circumstantial evidence to support a conviction it must be inconsistent with the innocence of the accused, and must lead to the irresistible conclusion not only that the crime charged has been committed, but that it was in fact committed by the person or persons charged and by no other person; in other words the evidence on the whole must exclude the probability that the alleged crime could have been committed by some person or persons other than the person or persons before the court.
We also have in this case a piece of evidence of a circumstantial nature, that is evidence of cumulative surroundings wholly unconnected with the prisoners charged, with circumstances pointing to a probability that the deceased met his death at the hand of some other, one Yaw Buakyi, the thirteenth prosecution witness. So strong was the nature of such evidence, suspicion it might well be called, that the said Yaw Buakyi was arrested, charged with this same offence and put before the court; it was after several weeks that the prosecution discontinued against him. It is beyond question that the said Yaw Buakyi is not an accomplice of the prisoners in the commission of the offence preferred. This shows that the evidence tendered against the prisoners does not exclude the probability that the alleged crime could have been committed by some person other than the persons charged.
There is, however, exhibit M, a statement made to the police by one of the prisoners acquitted. In it he confessed that he and the others, including the appellants, went to the village on the night in question and that while they were passing through a lane, the first appellant pointed to a certain man sitting outside a store along the street and ordered the second appellant to kill that person, adding that the man was his uncle who had poisoned him by juju and made him spend a lot of money in curing himself; and that thereupon the second appellant fired upon the said person, and then all of them rushed back to the car. This corroborates the evidence given by Kwasi Kankam, the driver of the taxi, as to the presence of the appellants and the two others at the village on the night in question but no more. This statement exhibit M is most damaging to the appellants but it is quite clear in law that it is not evidence against them as it is a statement made by an accused person in the absence of the other accused and not repeated at the trial where it was rather flatly denied.- We observe, however, that although the learned trial judge recorded that such statement was received in evidence only as against the prisoner who made it, that is the first accused at the trial, it nevertheless operated upon his mind as if it were evidence against the appellants as shown
[p.104] of [1962] 2 GLR 101
by his ruling in answer to a submission of no case made at the close of the case for the prosecution
when he said as follows:
“There is evidence that the second accused [the first appellant in this case procured a gun at Boni village and on the next day the deceased was shot. Kankam said he was hired by the second accused to go to Sekodumasi on the day the deceased was shot and gave other evidence which entitles the jury, if they believe him, to infer that one of the accused fired the gun which resulted in the harm to him. The evidence prima facie suggests that all the accused were acting in concert and therefore the absence of direct evidence as to who actually pulled the trigger is in my view unnecessary.”
Excluding exhibit M and acting only on evidence admissible against the appellants, the learned trial judge was obviously in error when he ruled that there was evidence that all the accused acted in concert and that one of them fired a gun resulting in the death of the deceased. It is also observed that in his summing-up to the jury the learned trial judge unhappily found it impossible to disabuse his mind of the contents of exhibit M which is not evidence against the prisoners. Exhibit M on its face does not even incriminate the prisoner who made it and who had been acquitted but it is the only place where there is the evidence, inadmissible against them, that the second appellant fired a gun at the deceased on the orders of the first appellant.
In this appeal, the summing-up of the learned trial judge has been attacked mainly on the ground of misdirection by direction on inadmissible evidence whereby confusion has been caused in the mind of the jury. In dealing with exhibit M, the learned judge directed the jury that one of the prisoners “had made a clean breast” of what happened at the village on the night in question. Although he warned them that such a statement was not evidence against the rest of the prisoners, he did not specifically direct them to ignore that part which alleges that it was the second appellant who fired at the deceased at the instance of the first appellant. This he should have done because the jury might well accept the contents of exhibit M as true against the appellants if they believed that one of the prisoners in fact made the statement attributed to him, and which the judge referred to as a “clean breast” confession.
We are of opinion that the learned trial judge himself appears to have accepted the contents of exhibit M as evidence against all the prisoners, including the appellants. This appears from a consideration of the whole of the summing-up, particularly in stating the case against the second appellant when he directed as follows: “Direct the jury that if they believe the evidence of the prosecution witnesses, especially Kankam, they are entitled to infer that all the accused on the 22nd July, acted together in concert with one common purpose. Tell jury that common object, again which they are entitled to infer from the evidence, is the killing of Nsonamoah. Direct the jury that if they believe that all accused went together to a place near Nsonamoah’s store and one of them pulled the trigger and shot him with the result that Nsonamoah sustained the injuries from which he died, then they ought to hold that all the accused caused the death.
There is no admissible evidence as to who actually fired the fatal shot. This is, however, immaterial if you are satisfied one of the four did it, although you are not able to determine whose hand pulled the trigger. But if you think that some of the accused merely went on a joy-ride with the second accused and did not know the object of the journey and although present were suddenly surprised by the shooting of Nsonamoah, then that or those accused did not take part in causing the death. This aspect of the matter is important because that seems to be the first accused’s case in his statement of the 10th August.”
[p.105] of [1962] 2 GLR 101
In this part of the summing-up the learned judge erroneously directed that there was evidence that all the four persons standing trial went together to a place near Nsonamoah’s store, that there one of them fired a gun killing Nsonamoah, and further that if they believed this evidence they were entitled to infer that all the four persons acted in concert with a common purpose and that the common purpose was none other than to kill. Furthermore, the latter part of the summing-up quoted above is a definite direction to the jury that there is further evidence, namely the statement exhibit M, which if believed shows that the prisoner who made that statement and another person, though present with the appellants in the village that night, were there on a joy-ride and not engaged in the said common purpose to kill with the appellants.
A careful scrutiny of the proceedings on the whole shows that not one of the material facts referred to by the trial judge is evidence against the appellant as the only source from which such facts come is the statement exhibit M. In fact the prisoner who made it denied ever making such a statement but even if the jury had believed that he in fact made such a statement, it could only be used against the prisoner concerned and not against any of the others. Thus in one breath the learned trial judge told the jury “this statement (exhibit M) is not, repeat, not evidence against the rest of the accused,” yet he, in the same breath, particularised the material parts of the very same statement and emphasised them as evidence which the jury were entitled to act upon. The only effect such a direction could have is to cause confusion in the mind of the jury and we are convinced that the summing-up did produce such effect. The fact that the jury convicted the appellants and acquitted the two other prisoners shows that they acted upon exhibit M and following the summing-up must have believed that it was the second appellant who fired the gun that killed Nsonamoah and that he did so at the instance of the first appellant, and also that the two others, although present at the scene of the crime were there on a joy-ride only, and not concerned with the commission of the crime. If exhibit M had been excluded from consideration by the jury it would have been impossible for them to have returned the verdict which they did return. The learned Director of Public Prosecutions has conceded this aspect of the matter, and we are satisfied that there has been a fatal misdirection by direction on inadmissible evidence and in the circumstances it is impossible in law to permit the convictions to stand.
For these reasons we allow the appeal, quash the convictions and direct that a judgment and verdict of acquittal be entered in respect of each appellant.
DECISION
Appeals allowed.
Appellants acquitted.
J. D.
