YIRENKYI v. THE STATE [1963] 1 GLR 66

DIVISION: IN THE SUPREME COURT

DATE: 8TH FEBRUARY, 1963

BEFORE: VAN LARE, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) R. v. Whybrow (1951) 35 Cr.App.R. 141; 95 S.J. 745

(2) R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, C.C.A.

(3) Woolmington v. Director of Public Prosecutions (1935) 25 Cr.App.R. 72; 153 L.T. 232, H.L.

(4) R. v. Haddy (1944) 29 Cr.App.R. 182, C.C.A.

(5) Stirland v. Director of Public Prosecutions [1944] 2 All E.R. 13; 30 Cr.App.R. 40, H.L.

(6) R. v. Oster-Ritter (1948) 32 Cr.App.R. 191, C.C.A.

(7) Lawrence v. The King [1933] A.C. 699, H.L.

(8) R. v. Mensah (1952) 14 W.A.C.A. 174

(9) R. v. Kotoro (1942) 8 W.A.C.A. 88

(10) Mensah v. The King (1945) 11 W.A.C.A. 2, P.C.

(11) R. v. Alo (1942) 8 W.A.C.A. 13

(12) R. v. Stoddart (1909) 2 Cr.App.R. 217, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered by Acolatse J. sitting with a jury in the High Court, Accra, on the 13th March, 1962. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

K. Narayan for the appellant.

D. F. Annan, Senior State Attorney, for the respondent (the State).

JUDGMENT OF AKUFO-ADDO J.S.C.

Akufo-Addo J.S.C. delivered the judgment of the court. The appellant was convicted before Acolatse J. in the High Court, Accra, on the 13th March, 1962, of the murder of a woman—named Afua Ayeley. The case for the prosecution was that the appellant was married, apparently [p.68] of [1963] 1 GLR 66 under customary law, to the said Afua Ayeley, that differences arose between the appellant and Ayeley, differences attended by the usual quarrels between man and wife, and which ultimately culminated in the marriage being dissolved in accordance with customary law in the presence of the Chief of Nsawam, where the couple lived. The dissolution of the marriage took place on Saturday, the 10th February, 1962. On the morning of Monday, the 12th February, 1962, at about 7 o’clock, the deceased Ayeley and her sister Korkor were on their way from Djankrom, a district of Nsawam, to the Nsawam market in the centre of Nsawam, when they met the appellant. According to the prosecution, as per the evidence of Korkor, the appellant, on meeting the two sisters on the road, told the deceased that he had removed all his belongings from their matrimonial home but that he had left the deceased’s pillow in that house and requested the deceased to go and collect it. The appellant then added that he was going away from Nsawam and on his return back to Nsawam he (the appellant) would seek “a settlement between them.” The deceased replied that there was nothing between them that called for a settlement. Thereupon the appellant pulled out a cutlass from under his cloth and with it struck the deceased at the back of her neck. The deceased fell down unconscious, whereupon the appellant threw down the cutlass and ran away dropping his sandals in the process. Korkor raised an alarm and a man, Kwabena Budu, who said he saw the attack on the deceased by the appellant, gave chase but was unable to catch up with the appellant who disappeared. The deceased was later removed to the hospital where she regained consciousness for a brief period, and died a few hours later. During the short period of her consciousness, and about ten minutes before she died, she made a statement to the police which was essentially the same version of the incident as given by her sister Korkor, the important point being her certainty as to the identity of her assailant. At the trial, the appellant denied the charge and set up a defence of alibi, notice whereof he duly gave in accordance with the requirements of section 131 of the Criminal Procedure Code. In that notice the appellant stated that he was not at Nsawam on the 12th February, 1962, that he travelled to Osiem in Akyem Abuakwa on the 11th February, 1962, to see his sister and left Osiem on the 15th February, 1962, for Tweapease, and he gave the names of two persons whom he was going to call to prove his alibi. These persons were his sister and one Quansah described by him as his landlord at Nsawam. In his unsworn statement which he made in his defence at the trial he stated further that it was at Tweapease, whither he had gone on the 15th February, 1962, from Osiem, where he had been since the 11th February, 1962, that he was told by his brother and one Ofori, a friend, that his divorced wife, Ayeley, had been killed, and that the rumour was going round that he, the appellant, had killed her, and further that the police were looking for him. He, in the company of some relatives and Ofori, went to the police at Oda on the 16th February, 1962.

[p.69] of [1963] 1 GLR 66

The main point that fell for determination in the trial was the identity of the person who, on the morning of the 12th February, 1962, met the deceased Ayeley and her sister Korkor on the road from Djankrom to the Nsawam market, and attacked the deceased with a cutlass with which he inflicted on her a fatal wound from which she died a few hours later. The cause of the deceased’s death was not denied, and indeed it was not open to denial by the appellant.

The evidence for the prosecution falls conveniently into four categories: evidence of the matrimonial differences between the appellant and the deceased which culminated in the divorce on the 10th February, 1962; evidence of eye witnesses who saw the attack on the deceased and who said the attacker was the appellant; thirdly, evidence of witnesses who said that they saw the accused on the 10th, 11th and 12th February, 1962, at Nsawam, this third category of evidence having been adduced to rebut the defence of alibi put up by the appellant; and finally the dying declaration of the deceased Ayeley. The appellant, as already stated, did not give evidence on oath, but contented himself with making an unsworn statement from the dock in which he stated the facts of his alleged alibi in the terms in which we have summarised them above. He did not call the witnesses whom he had named in his notice of alibi. He stated in his unsworn statement the reasons why he did not call these witnesses. He said his sister could not be found at Osiem, and that when his lawyer went to see Quansah, his landlord, he (Quansah) was in such a state of drunkenness that he could hardly say anything about the subject of the testimony required of him. Apparently the appellant’s lawyer decided not to call him.

Such then were the salient features of a trial in which the evidence was simple, straight-forward and overwhelmingly against the appellant, and in which no complicated or difficult issues of law or of fact were involved, and if it were not for some unfortunate statements made by the learned trial judge in his charge to the jury and which have formed the basis of appellant’s appeal against the verdict, this appeal would have been dismissed summarily.

It therefore becomes necessary to consider in some detail the grounds on which the appeal has been brought and learned counsel’s arguments thereon, and to determine their effect on the appeal. The grounds argued by learned counsel for the appellant are contained in the additional grounds of appeal filed on the 7th January, 1963, and are as follows:

“(1) The learned trial judge misdirected the jury by saying in his summing-up that the defendant had abandoned his defence of alibi and that the jury had only the case set up for the prosecution before them. In the result the learned trial judge misdirected the jury by not directing the jury to give such weight as they chose to the evidence of the defendant setting up the alibi defence even though not supported by any witness.

(2) By misdirecting the jury in the manner set out in ground one the defendant was denied of the doubt that would have enured to his favour in the minds of the jury if they had been properly directed and this has occasioned a miscarriage of justice.”

[p.70] of [1963] 1 GLR 66

“(5) The learned trial judge misdirected the jury by not directing them on the following points:

(a) that if they were in doubt as to whether the story of the accused was or was not true they had to acquit him;

(b) that even if they positively disbelieved the accused’s story they had to satisfy themselves that the story of the prosecution proved the case beyond reasonable doubt and that then and then only could they convict the accused;

(c) that if they believed accused’s unsworn evidence they must acquit him.

Indeed the learned trial judge failed to put the case of the defendant to the jury and practically withdrew it from them by telling them they had only the case of the prosecution before them.” And to turn to the summing-up: After the learned trial judge had stated to the jury what their duty was and had recounted the history of the case and the evidence adduced by the prosecution, he went on to state what the defence of the appellant was and to refer to the appellant’s notice of alibi. He then proceeded at various stages of the summing-up as follows:

“The prosecution called additional evidence. All of whom testified that the accused was at Nsawam and that they saw him on the material date in question. This evidence also is a matter of fact to be believed or not to be believed. You see then that in this trial the accused is setting up a defence that he was not at Nsawam or at the scene at the time when the act was committed upon the deceased. That is what we call alibi. . . . Upon the evidence led by the prosecution there emerged certain questions of fact for your consideration whether the accused was the person who inflicted the injuries upon the deceased which caused her death; whether the accused was in fact not at Nsawam or present at the scene at the material date; whether the dying declaration was in fact made by the woman at the time; whether she believed she was in danger of approaching death at the time it was made, if believed to have been made by her?

It is the duty of the prosecution to prove the case beyond all reasonable doubt. . . . The evidence must be sufficiently convincing as to make it quite positive that the accused has committed the offence. If you accept the case for the State it is only then that the question of his guilt can possibly arise. Then it will be for the accused to give an explanation of his case to off-set the facts alleged against him. On the other hand if you are doubtful about the proof of any material facts which go to constitute the offence then it is your duty to return a verdict of not guilty as the law enjoins. . . .

If you really find without a doubt that the accused was the person who committed the act it is for you to say whether he did it, intentionally. . . .

This case is based mainly on credibility of witnesses as to the identity of the person concerned in the commission of the offence preferred. The issue being purely one of fact for you to decide. . . . [p.71] of [1963] 1 GLR 66

The accused in this case did not give evidence on oath relating to the charge against him but elected to give an unsworn statement from the dock which amounted to a plea of alibi, that he was not at the spot at all on the material date and that he was with his sister from the 10th to the 14th February, 1962, and, therefore, he was not the man who intentionally and unlawfully caused death to the deceased. It is unfortunate that the accused abandoned his defence of alibi by not calling his sister or his landlord. He told you in his unsworn statement, however, that his sister could not be traced and his landlord, Quansah, he was informed, was so drunk that he could not know what to say as his witness. He denied knowing the witnesses who testified that they saw him at Nsawam on the morning of the 12th February, 1962, the material date. The accused is entitled to elect to give evidence on oath or an unsworn statement under the law.

This is the case for both sides. You have only the case set up for the prosecution before you. The accused does not have to prove his innocence. You must be satisfied from the case set up by the prosecution that the guilt of the accused has been proved before you can convict him. It did not matter whether the accused gave evidence or not. The duty or the onus of proof which rests on the prosecution must be discharged by them and not until then can you arrive at a verdict against the accused.

If you have any reasonable doubt about any aspect of the prosecution’s case and you are not completely convinced of the whole case then your verdict should be not guilty. Failure of a defence of alibi is not to be taken as evidence of guilt.”

These excerpts from the summing-up cover the material portions of it that are relevant for the consideration of this appeal.

Learned counsel for the appellant pointed to three statements in the summing-up which he submitted constituted misdirection and amounted to withdrawing from the consideration of the jury the appellant’s defence of alibi. These statements are as follows:

(a) “It is unfortunate that the accused abandoned his defence of alibi by not calling his sister or his landlord.”

(b) “. . .you have only the case set up for the prosecution before you.”

(c) “Failure of a defence of alibi is not to be taken as evidence of guilt.”

Up to the end of the first six portions quoted above, the summing-up, although incoherent in parts, and somewhat padded and verbose, could hardly be impeached. From that point, however, some slight confusion of thought and presentation appears to have set in.

Mr. Narayan’s submission on behalf of the appellant was that the direction to the jury that the appellant had abandoned his defence of alibi by not calling his witnesses was a misdirection in law in that the only meaning that could attach to that direction was that if an accused person gave notice of alibi in which he named witnesses whom he did not call at the trial, he was deemed in law to have abandoned his defence, which was not the law, and that the jury might well have thought that, as the learned trial judge later on added the further direction that they had only the case for the prosecution to consider, they were excluded by law from giving any consideration to the appellant’s unsworn statement which the jury [p.72] of [1963] 1 GLR 66 might well have accepted as true, notwithstanding that it was unsworn and not subjected to the test of cross-examination. Learned counsel submitted, further, that the direction that, “Failure of a defence of alibi is not to be taken as evidence of guilt,” amounted to a direction that the alibi had failed. On this latter submission we are unable to accept the meaning placed on the statement regarding the failure of the defence of alibi, for the learned trial judge in the immediately preceding sentence in his charge had directed the jury to consider not only the case for the prosecution, but “the whole case,” meaning, in our view, both the case for the prosecution and that for the defence. The sentence complained of can only mean that should the jury after considering the whole case come to the conclusion that the defence of alibi had failed, that would not imply that the appellant was guilty.

The more serious complaint, however, was that based on the other two statements. Mr. Annan, learned counsel for the State, submitted that when the learned trial judge used the word “abandoned” in the expression complained of, he did not mean that the appellant had withdrawn or given up his defence of alibi, and that he meant that the appellant, by not calling the witnesses named in his notice for his defence of alibi, had not in effect substantiated his defence. While there appears to be some merit in this submission, we are unable to accept it as we do not think that the ordinary man would understand the word “abandon” to mean anything other than its ordinary dictionary meaning of “withdraw” or “give up.” Although it appears that the two offending statements complained of by the appellant were made in the course of an endeavour by the trial judge to comment on the failure of the appellant to give evidence on oath and to call the witnesses named in his notice of alibi, we feel constrained to accept the submission of learned counsel for the appellant that these two unfortunate statements taken together amount to a misdirection, and Mr. Narayan’s invitation to us is to quash the conviction on that ground. On the other hand, Mr. Annan invited us, should we find that there was misdirection by the learned trial judge to apply the proviso to section 15 (1) of the Courts Act, 1960,1 and to dismiss the appeal on the ground that no substantial miscarriage of justice had actually occurred by the misdirection, for if the proper direction had been given, no reasonable jury would have returned any other verdict than that of guilty. A proper direction in the particular circumstances of this case would amount to the summing-up as it stands without the two statements complained of, for if those two statements were to be deleted, there could be no legitimate complaint against the summing-up, at any rate in its essential features.

This appeal, therefore, turns on whether or not we should apply the provisions of the proviso to section 15

(1) of the Courts Act, and we now turn our attention to that consideration.

[p.73] of [1963] 1 GLR 66

Section 15 (1) and the proviso thereto reads as follows:

“The Supreme Court on any appeal [under section 14] against conviction shall allow the appeal if such Court thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that the Court is of opinion that the point raised in the appeal might be decided in favour of the applicant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

This section and its proviso are in precisely the same terms as section 4 (1) and the proviso thereto of the English Criminal Appeal Act, 1907,2 and have been the subject of numerous judicial decisions in England, to some of the most important of which we wish to refer.

The earliest authoritative decision, and what Lord Goddard C.J. in the case of R. v. Whybrow3 described as the “classic judgment” on the subject, is the judgment of Channell J. in R. v. Cohen and Bateman4 In the judgment of the Court of Criminal Appeal read by Channell J. the learned judge stated the views of the court on the application of the proviso in terms that have been accepted as a correct statement of the law: “This section [meaning section 4 (1) of the English Criminal Appeal Act which is section 15 (1) of our Courts Act] has been considered in almost all the cases which have come before this Court, but these precedents are of little use in subsequent cases because of the varying circumstances of each particular case. Although, therefore, the principle is quite clear, we desire to express it again. Taking sect. 4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case the Crown have to shew that, on a right direction, the jury must have come to the same conclusion. A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words ‘any other ground,’ so that the appeal should be allowed according as there is or is not a ‘miscarriage of justice.’ There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted and therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only [p.74] of [1963] 1 GLR 66 reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso, notwithstanding that the verdict actually given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision of a point of law.”

In the case of Woolmington v. The Director of Public Prosecutions5 in which the House of Lords declined to apply the proviso, Lord Sankey L.C., reading the judgment of their Lordships’ House, stated the reasons for refusing to apply the proviso as follows: “We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion.” The word “inevitably” appearing in the passage just quoted would seem to suggest that an appeal court could not apply the proviso unless the court was prepared to hold that no jury properly directed could have acquitted the appellant, and indeed this argument was put forward on behalf of the appellant in the Court of Criminal Appeal in the case of R. v. Haddy,6 and rejected by Humphreys J. in the following words7 “In our opinion, it would be wrong to give effect to that argument. To accept it would be to render the proviso practically otiose, for it can never be said with certainty in any criminal case, however strong the evidence for the prosecution, that no jury could be found to acquit. The Lord Chancellor, we are satisfied, was not referring to a jury who might return a perverse verdict but to a jury of sensible persons anxious to do their duty which is, in the language of the juror’s oath, to return a true verdict according to the evidence. Now, if that be the correct view, the word ‘inevitably’ becomes merely an adverb of emphasis designed to express the necessity for the absence of any doubt on the part of the Court that a reasonable jury properly directed would have returned the same verdict.”

This interpretation placed on the use of the word “inevitably” in the dictum of Lord Sankey, aforesaid, was affirmed and applied by the House of Lords in the case of Stirland v. Director of Public Prosecutions.8 Viscount Simon L.C. in the judgment of their Lordships’ House, read by him, referring to the word “inevitably” aforesaid, said:

“A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence; but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.” It was at one time thought that Channell J.’s statement of the law in R. v. Cohen and Bateman was applicable to cases of misdirection other than a misdirection on a point of law, but the case of R. v. Oster-Ritter9 does not seem to bear this view out. This was a case (indeed a clearer case than the one before us now) of misdirection in law, but the Court of [p.75] of [1963] 1 GLR 66

Criminal Appeal nevertheless held that, since on the evidence, no jury with a proper direction could have failed to convict, the appeal failed. Whatever doubt existed, however, about the extent of the field in which the judgment of Channell J. operated was finally laid to rest by Lord Goddard C.J. in the case of R. v. Whybrow.10 When considering the passage in Channell J.’s judgment referred to herein, the learned Chief Justice said:

“In that case [i.e. R. v. Cohen and Bateman] the learned Judge did not say, as it is some- times thought that he said, that wherever there was misdirection on a point of law the appeal must succeed. He pointed out that it must succeed unless the proviso could be applied, and that one reason why it must succeed was because it would take away from the prisoner a chance of acquittal, but he did not in any way limit his judgment by saying that the proviso could not be applied in the case of misdirection. In fact he said it could be.” The learned Chief Justice then quoted the passage from Channell J.’s judgment which we have already set out above, and went on11

“He [i.e. Channell J.] in no way suggested that the proviso should not be applied in a case where there had been a misdirection on a point of law. . . .”

The learned Chief Justice then referred to the Stirland and the Woolmington cases.

Mr. Narayan’s submission was that once it was established that the effect of the misdirection complained of was to prevent the jury from considering the case for the defence, the proviso could not in any circumstances be applied. Learned counsel did not refer us to any authorities for such a sweeping generalisation. The law, as we understand it, is that whatever the nature of the misdirection complained of

(whether it be an omission by the judge to put the defence adequately to the jury or a misdirection on a point of law) if it can be predicted that properly directed the jury must have returned the same verdict, then, there being in that case no substantial miscarriage of justice, the appeal fails. See per Lord Atkin in Lawrence v. The King.12

There are a number of cases reported in the West African Court of Appeal Reports to which we would refer in illustration. These are: R. v. Mensah,13 (murder); R. v. Kotoro,14 (murder); Mensah v. The King,15 (murder), determined by the Privy Council; R. v. Alo,16 (murder).

These cases were heard on appeal by the West African Court of Appeal (except Mensah v. The King which was heard by the Privy Council) and the appeals were brought on the ground of misdirection in that the trial judge either did not put the case of the defence adequately to the jury, [p.76] of [1963] 1 GLR 66 or omitted to direct properly on the essentials of the appropriate verdict to be returned by the jury. These appeals were all allowed, but only on the ground in each case that the Court of Appeal could not on the evidence say that the jury would, upon a proper direction, have returned the same verdict as they did. Applying the principles so far discussed to this appeal, we have here, as already stated, a case in which the facts were simple and straightforward. There were no difficult points of law or of fact involved. The evidence of the prosecution was overwhelming as regards the identity of the appellant. The appellant, for reasons that no reasonable person would give much weight to, did not call his proposed witnesses to prove his alibi. What is more, instead of braving the hazards of the witness-box and having his story subjected to the test of cross-examination in the hope that he might impress the jury by his demeanour, he preferred to take shelter behind a rather dull-painted facade of an unsworn statement in the relatively, albeit dubiously, sedate atmosphere of the dock. While we accept the view that an unsworn statement made by an accused person in his defence is entitled to consideration by a jury, and that a jury should be so directed, we are firmly of the view that no reasonable jury, mindful of the solemnity of their oath, upon a proper direction, would give credence to an unsworn statement made in the circumstances of this case. None of the witnesses for the prosecution was shaken in cross-examination and their evidence pointed overwhelmingly to the guilt of the accused.

Apart from all that, and except for the two unfortunate statements, there are expressions to be found here and there in the summing-up by which the trial judge put the case of the appellant to the jury and directed the jury that the issue whether or not the appellant was the person who killed the deceased was a question of fact for them to determine; there are expressions which directed the jury to consider not only the case for the prosecution but also the whole of the case and to resolve any doubt they might have in favour of the appellant. Although we have accepted the view that on the face of them, the two statements complained of amounted to a misdirection, they (i.e. the two statements) are so much out of tune with the general trend and spirit of the summing-up that it becomes our duty in determining its effect on the jury, and therefore on the verdict, to consider them not in isolation, but with reference to the whole of the summing-up, together with the evidence and within the context of all the circumstances of the trial, which culminated in the jury’s verdict of guilty. In so doing we are greatly influenced by the words of the Lord Chief Justice of England in the judgment of the Court of Criminal Appeal in the case of R. v. Stoddart.17 “Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to [p.77] of [1963] 1 GLR 66 consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice.” To borrow the words of Lord Goddard C.J. in R. v. Whybrow, we do not for a moment seek to put ourselves into the position of a jury. We take the verdict of the jury, which is one of guilty, and which means that the jury were satisfied that the appellant did do a criminal act. We then have to see how far the case is affected by the wrong direction given by the trial judge, and in doing so we take the whole of the facts into account and regard the whole of the circumstances.

Having carefully considered the summing-up as a whole in the light of the evidence and all the relevant circumstances, we have, after some anxious deliberation, come to the conclusion that, although the two statements complained of amount to a misdirection, the jury would upon a proper direction without doubt have returned the same verdict as they did. For that reason no substantial miscarriage of justice has actually occurred, and we are therefore satisfied that this is a case in which we should apply the proviso. We therefore refuse to interfere with the verdict and we dismiss the appeal.

DECISION

Appeal dismissed.

J. D.