COMMISSIONER OF POLICE v. BLANKSON AND OTHERS [1960] GLR 1

DIVISION: IN THE HIGH COURT, SEKONDI

DATE: 13TH JANUARY, 1960

BEFORE: SMITH J.

CASES REFERRED TO

(1) R. v. Murray [1951] 1 K.B. 391.

(2) R.v. Francis and Another (1959) 43 Cr. App. R. 174. NATURE OF PROCEEDINGS

APPEAL against convictions for conspiracy to steal, stealing and dishonestly receiving stolen property by the Senior Magistrate, Takoradi.

[p.2] of [1960] GLR 1

COUNSEL

Baidoo for appellants.

Akiwumi for respondent.

JUDGMENT OF SMITH J.

(His lordship referred to the facts, and continued):

The learned magistrate was wrong in the way he dealt with the matter. I refer to the cases of R.v. Murray ([1951] 1 K.B. 391) and R.v. Francis and Another (43 Cr. App. R. 174).

In the former case Lord Goddard, C.J. said:

“The Recorder was wrong in the course which he took. It was quite right for him to hear evidence in the absence of the jury and to decide on the admissibility of the confession; and, since he could find nothing in the evidence to cause him to think that the confession had been improperly obtained, to admit it. But its weight and value were matters for the jury, and in considering such matters they were entitled to take into account the opinion which they had formed on the way in which it had been obtained. Mr. Hooper was perfectly entitled to cross-examine the police again in the presence of the jury as to the circumstances in which the confession was obtained, and to try again to show that it had been obtained by means of a promise or favour. If he could have persuaded the jury of that, he was entitled to say to them: ‘You ought to disregard the confession, because its weight is a matter for you’.” In the Magistrate’s Court, of course, the only procedure required would be to hear evidence at the time of the objection, and on that to decide on the admissibility of the confession.

In face of an objection of the kind that was made the admissibility of the statements in question depended on a finding of fact by the magistrate whether or not there were any grounds for counsel’s objection. Defending counsel should have been invited, when the police officer was in the box, to cross-examine that witness there and then, and to call any evidence at his disposal, including (if he so desired) the accused persons on this particular point. The prosecution likewise at that juncture would have called their witness who was present at the taking of the statement. It would only be in the light of evidence given that the trial magistrate could decide at that stage whether the statements were made voluntarily, and were therefore admissible. And in the circumstances of this case it would have been proper for the learned magistrate to rule that a prima facie case had been made out, and to put the prisoners on their defence, only if he had recorded first a finding on the facts (after taking evidence in the way I have outlined) whether or not the statements were properly obtained, and therefore to be admitted. The other main grounds of this appeal arise out of this fundamental issue, and are covered by this judgment. It is not necessary in the circumstances to consider the question whether the magistrate was right in holding that P.W.19 (Joseph Andrews Cobbina) was not an accomplice. I should be reluctant to differ from the magistrate on this matter of fact. As regards the 8th accused, I should perhaps say one word. He was convicted of the offence of dishonestly receiving cocoa. The same objection [p.3] of [1960] GLR 1 as in the case of the others was made as regards his statement to the police. He also called evidence to prove the source of the cocoa supplied to him. The stolen cocoa was never identified, and as Crown counsel observed, when the accused put the identity of the cocoa which he had in issue it was incumbent on the prosecution to prove that the cocoa which he had and which he disposed of was, in fact, the cocoa which had been stolen. It is an unfortunate matter, because, had the evidence been heard by the magistrate at the time of the objection to the admissibility of the confessions, he would very probably have found that there was no substance in the objection which defending counsel raised, and in that event, of course, there could have been no grounds for an appeal. As it is, the appeals (which were well argued by Mr. Baidoo for the appellants) must be allowed, and the convictions of, and sentence upon, each appellant must be quashed.

DECISION

Convictions quashed.