MENSAH v. THE STATE [1963] 1 GLR 26

DIVISION: IN THE SUPREME COURT

DATE: 18TH JANUARY, 1963

BEFORE: KORSAH C.J., ADUMUA-BOSSMAN AND MILLS-ODOI JJ.S.C.

CASES REFERRED TO

(1) Abrath v. North Eastern Rly. Co. (1883) 52 L.J.Q.B. 620; 11 Q.B.D. 440, C.A.

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

(3) R. v. Bradshaw (1910) 3 Cr.App.R. 280, C.C.A.

(4) R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36

(5) R. v. Williamson (1908) 24 T.L.R. 619, C.C.A.

NATURE OF PROCEEDINGS

APPLICATION for leave to appeal against conviction and sentence on two charges of unlawful entry and stealing, and two charges of using an offensive weapon, entered by the High Court, Accra, at its October 1961 Criminal Session. The facts are set out in the judgment of the Supreme Court.

COUNSEL

H..P. Swaniker for the appellant.

C. E. L. Hewllett, Senior State Attorney, for the respondent.

JUDGMENT OT ADUMUA-BOSSMAN J.S.C.

Adumua-Bossman J.S.C. delivered the judgment of’ the court. The appellant was convicted by the High Court at its October 1961 Criminal Session in Accra on four charges, namely: (1) unlawful entry into the [p.27] of [1963] 1 GLR 26 dwelling-house of Lawrence Yaw Oweredu at Teshie with the intention of committing a crime, namely, stealing therein, contrary to section 152 of the Criminal Code, 1960; (2) stealing from the said dwelling-house £G5 10s. cash the property of the said Lawrence Yaw Oweredu, contrary to section 124 of the said code; (3) use of an offensive weapon, namely, a knife, at the said dwelling-house whereby he intentionally and unlawfully caused harm to Lawrence Yaw Oweredu, contrary to section 70 of the said code; and (4) use of an offensive weapon, namely, a knife, at the said dwelling-house whereby he intentionally and unlawfully caused harm to Lawrence Kofi Damoah, contrary to section 70 of the said code. He was sentenced to two years imprisonment with hard labour on each of the charges of unlawful entry and stealing, and seven years I.H.L. on each of the charges of using an offensive weapon, the sentences to run concurrently.

The prosecution’s case against him, in a nutshell, was that during the night of the 14th October, 1960, he was recognised when he made entry into the room of one Lawrence Yaw Oweredu and committed the offences charged. The man in question, a soldier attached to the Field Squadron at Teshie Camp but occupying civilian quarters, i.e. a rented room in house No. G.73/23 Teshie, (who will hereafter be referred to simply as Oweredu) gave evidence as the first prosecution witness, and testified that he retired to bed at about 9 p.m. that night leaving unextinguished and burning a hurricane lamp which he was using that evening; that sharing the room with him at the same time was a civilian friend Lawrence Kofi Damoah, a fitter by occupation, from Wassaw-Akropong (Western Region) who arrived the previous day to spend a few days with him; that sometime shortly after midnight (about 12.30 a.m.) he was awakened by the noise of movement in the room, and as he looked round the room he saw a man wearing a mask on his face and dressed in a shirt and a pair of long trousers who was carrying his wireless-set across the room; he thereupon raised an alarm by shouting, “Thief, thief, thief,” and almost immediately after saw his friend Damoah get up and rush at the intruder. The latter, however, stabbed Damoah who was obliged to leave him. Oweredu then closed in and grappled with the intruder and was struggling with him when he also (i.e. Oweredu) was stabbed in his back by the intruder who managed thereby to free himself and make good his escape. In the course of the struggle, however, the mask fell-off from the intruder’s face and dropped to the ground, and Oweredu was able to recognise him as a familiar person who lived not far from the house, the scene of the incident. A torch-light which the intruder carried also dropped in the course of the struggle, and both mask and torch-light were subsequently found by a police officer who came to inspect the room following a report to him. Meanwhile the alarm raised had aroused the landlord who hurried to the room to enquire what was happening. On a report being made to him, and seeing both Oweredu and Damoah bleeding from their wounds, he got a lorry and conveyed them to Labadi Police Station where they made a report, and

[p.28] of [1963] 1 GLR 26 were then furnished with police medical forms and sent to the Military Hospital, Accra, for treatment. The landlord gave evidence as the fifth prosecution witness and the portions of his evidence material to our decision will be referred to in due course.

The police officer Detective-Sergeant Adjartey who received the report at the Labadi Police Station, early the next morning proceeded to the Military Hospital and took the two injured men (Oweredu and Damoah) to the premises where the incident was reported to have occurred, and in their presence and that of the landlord inspected the room, the scene of the incident. He gave evidence as the third prosecution witness at the trial, and as some portions of his evidence have formed the basis of the applicant’s counsel’s attack on the summing-up of the learned trial judge and the jury’s verdict, I set out the relevant portion of his evidence, as hereunder:

“I took P.Ws.1 and 2 to the house for investigation after I left the hospital on the very morning. I found one black velvet mask and a torch-light in the room. I took possession of them. (Tendered and marked A and B). I saw blood stains in the floor; . . . the room was in a disturbed condition. P.W.1 told me that he could identify the man who entered the room and stabbed him. He described the man but said he did not know his name. . . . He gave me a full description of the man, but P.W.1 did not give me the name. I was transferred to Takoradi on the 12th November, 1960, from Labadi, and I handed over further investigation to Cpl. Sam. . . . P.W.1 took me to a house to look for the man who entered into his room and stabbed him. We were told the man had removed. I could not get his name. I could not trace the man before I left for Takoradi.” After Detective-Sergeant Adjartey, who first took up investigation of the case had left the Labadi Station on the 12th November, 1960, on the 30th November, 1960, Oweredu saw the applicant walking in Teshie town and pointed him out to a constable who arrested him. On the 12th December, 1960, he was identified by Damoah, who had not seen him since the night of the occurrence as the person who entered Oweredu’s room and stabbed both Oweredu and himself, and the applicant was therefore charged. When he was taken into custody on the 30th November, 1960, the applicant made a statement as follows: “I do not know anything about this allegation. Secondly, complainant, the alleged soldier is not known to me. He is not my friend. I know the house but I have not entered it before. He is just putting me into trouble. Klutsuru is the one I have been sleeping with since the 5th October, 1960, till now. I believe I was with him all through the night of the 14th October 1960.”

When formally charged he expressed reliance on the same statement; and when he gave evidence in his defence at the trial he gave substantially the same explanations.

Ultimately the case resolved itself into one of pure fact, in which the jury were called upon to decide whether they believed, on the one hand,

[p.29] of [1963] 1 GLR 26 the evidence of the first and second prosecution witnesses that the applicant was the person whom they saw in the room that night who stabbed each of them in turn; or on he other hand, the evidence of the applicant that he did not make entry into the room in question and was not the person seen in it who stabbed the first and second prosecution witnesses as alleged by them. The jury accepted the evidence of the prosecution witnesses, thereby rejecting the appellant’s evidence, and unanimously found him guilty on all four charges. Their decision is challenged on the grounds that the learned presiding judge misdirected them in certain respects, and that in any event, their verdict is unreasonable and cannot be supported having regard to the evidence.

Dealing firstly with the alleged misdirections by the learned judge, the first misdirected suggested was that: “The evidence of complainants is in direct conflict with the evidence of the police officers, and the learned judge misdirected himself by not directing the jury on this important conflict of evidence.” Counsel went on to point to the fact that in the evidence of the first prosecution witness he stated that, “I knew the accused previously by name. Sgt. Adjartey was in charge of the investigation before his transfer. I mentioned accused’s name to the sergeant”; but when the sergeant gave evidence as the third prosecution witness he denied that the first prosecution witness had mentioned the appellant’s name to him, his evidence being that, “P.W.1 told me that he could identify the man who entered the room and stabbed him; he described the but said he did not know his name…. He gave me a full description of the man, but P.W.1 did not give me the name.” Undoubtedly there is a conflict in the evidence of the two witnesses, but in our opinion it is not a crucial or decisive contradiction. The main point in the evidence of first prosecution witness is that he knew the appellant before the night of the incident and that the appellant lived in a house not far from the house in which he (P.W.1) was living. That portion of his evidence was confirmed by the third prosecution witness who went on to explain that. “P.W.1 took me to a house to look for the man who entered into his room and stabbed him. We were told the man had removed.” They were not told, it should be noted, that no such person P.W.1 described, ever lived in the house in question. Moreover, circumstantial evidence tending to confirm P.W.1’s evidence that he knew the appellant before the date of the incident was given by P.W.1’s landlord who, in the course of his evidence stated that, “I know the accused person and where he lives. He lives in my neighbourhood…. I am related to the accused. The accused is my nephew; his mother is my sister; he lives in the mother’s house; he visits my house, he used to come to buy cigarettes from my wife.” This evidence from a person in the position of appellants’s uncle that the appellant visits his house where P.W.1 lives affords such cogent confirmation of P.W.1’s allegation that he knew the appellant before the incident, as to make the question of the conflict of evidence between P.W.1 and P.W.3, the police officer, concerning the alleged mention of the appellant’s name by P.W.1 to P.W.3, a relatively [p.30] of [1963] 1 GLR 26 unimportant contradiction. It is contended, however, that the learned judge should have drawn the jury’s attention to this conflict of evidence and that by failing to do so, he misdirected himself. Even if it had been an important contradiction, the legal position in so far as direct reference to it in a summing-up is concerned, seems to be covered by the dictum of Brett M.R. in Abrath v. The North Eastern Rly. Co.,1 that: “It is no misdirection not to have told the jury something which it is afterwards suggested might have been told them. There is no misdirection unless the Judge has told the jury something wrong, or unless what he has told them would make that wrong which he has not told them but left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must shew that which I have just pointed out.” This dictum was quoted and approved by the Court of Criminal Appeal in R. v. Stoddart2 and in R. v. Bradshaw.3 It follows, therefore, that a fortiori there was no misdirection by the learned judge in omitting to make reference to that which, in our view, was a relatively minor contradiction.

A second complaint of misdirection made against the learned judge was that: “this case being mainly one of fact, it is not enough for the trial judge to tell the jury: ‘In this case you heard all the evidence,’ and then proceed to tell them what they had already heard. There should have been a direction on the pattern of R. v. Abisa Grunshie.4 Here again the trial judge misdirected himself by non-direction.” As to this second alleged misdirection, it is enough to say that the learned judge did not in fact direct the jury only in the manner which counsel complains of, but rather in much greater detail. It has to be pointed out that before telling the jury that they had heard all the evidence, the learned judge had reviewed the evidence of all the prosecution witnesses, except that of P.W.6 who, although called by the prosecution, testified in favour of the appellant; he then passed on to review the evidence of the appellant and that of P.W.6 in his favour. Furthermore, he had directed them as to the relevant law by referring them to the sections of the Criminal Code, 1960, creating the offences with which the appellant was charged, and to the definition and essentials of each charge. After reminding them that they had heard all the evidence he proceeded to stress the main issue in these words:

“The prosecution said the accused was the person involved in the offences laid (or charged) before you. The accused, on the other hand, denied knowing the complainants and said he had never been in the dwelling-house of his uncle, nor in the room of P.W.l.”

From that point the rest of the summing-up to the end was most favourable to the appellant. [p.31] of [1963] 1 GLR 26

In the circumstances, therefore, of this most favourable direction to the jury for the appellant, we do not consider that there is any substance in, or any jurisdiction for, the complaints as to misdirection in the summing-up made against the learned judge.

Finally it was argued that the verdict was unreasonable and cannot supported having regard to the evidence, learned counsel contending that the evidence on the crucial issue as to the identification of the appellant by P.W.s.1 and 2 was most inconsistent, unsatisfactory and incredible.

It is enough to say that the evidence was capable of acceptance or rejection by the jury and they have accepted it, wherefore it is not our province to interfere. As stated in a case dealt with at the first session of the Court of Criminal Appeal in England, R. v. Williamson,5 per Alverstone C.J.:

“It must be understood that we are not here to retry the case where there was evidence proper to be left to the jury upon which they could come to the at which they have arrived . . . . Here there was evidence on both sides, and it is impossible to say that the verdict is one at which the jury might not properly have arrived. For the foregoing reasons we dismiss the application.

DECISION

Application dismissed.

J. D.