BEDIAKO AND OTHERS v. THE STATE [1963] 1 GLR 48

DIVISION: IN THE SUPREME COURT

DATE: 1ST FEBRUARY, 1963

BEFORE: CRABBE, OLLENNU AND BLAY JJ.S.C.

 

CASES REFERRED TO

(1) R. v. Hart (1932) 23 Cr.App.R. 202, C.C.A.

(2) R. v. Chadwick (1917) 12 Cr.App.R. 247, C.C.A.

(3) R. v. Ruffino (1911) 7 Cr.App.R. 47, C.C.A.

(4) R. v. Johnson [1961] 3 All E.R. 969, C.C.A.

NATURE OF PROCEEDINGS

APPEALS against convictions. The three appellants were each convicted on the 6th August, 1962, by the Circuit Court, Kumasi, on two counts of unlawful entry contrary to the Criminal Code, 1960, s. 152, and five counts of stealing contrary to the Criminal Code, 1960, s. 124. Each of the appellants had put forward an alibi but this defence was rejected by the trial judge. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

First appellant in person.

Puplampu for the second and third appellants.

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

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. The circumstances out of which the case arose and the facts on which the prosecution relied are set out in detail in the following passage from the judgment of the circuit judge:

“On the 3rd October, 1961, P.W.1, who lives in the same room with P.W.2 went to bed at about 9 p.m. While the inhabitants were asleep they heard reports from guns in the streets. P.W.1 came out of his room into his yard and attempted to open the gate when he realised it had been locked from outside. While in the yard P.W.1 asked P.W.2 to come out. P.W.1 later heard a bang on the door of the empty store leading into the yard. Many people came into the yard and one flashed a torchlight on P.W.1’s face. P.W.1 later realised it was No.1 accused and asked why he was doing that. No.1 accused hit P.W.1 with the butt of a gun and P.W.1 fell down. While on the ground P.W.1 saw No.2 accused and No. 3 accused pass him towards his room. At this time the moon was up. The first and second accused pushed P.W.2 into the room and in her presence removed her boxes and pan. The first accused also went into the room and came out with a bundle of cloths. The defendants then left the house . . .

P.W.8 saw three people enter his store and remove the articles mentioned in count 7.

P.W.4, who was inside P.W.3’s room, heard people talking behind the window. Later the window was forced open and people entered the room through the window. P.W.4 raised an alarm but was hushed up. The people removed the articles enumerated in count 4. They asked P.W.4 to show them where P.W.3 had kept his money in the course of which P.W.4 recognised the voice of No.1 accused who was with the people. The latter entered another room in the house and collected some money (£G400) belonging to P.W.3. P.W.6, who was in charge of P.W.5’s room, was in the room when some people forced the door open and entered. They put off the light in the room and removed the articles enumerated in count 5. Before leaving they poured a barrel full of water into the room. P.W.7’s door was also forced open and he saw some people enter. P.W.7 recognised

[p.50] of [1963] 1 GLR 48

No. 1 and No. 3 accused among eight people who entered the room. P.W.7 asked why they entered the room and one of them fired a gun which went past P.W.7’s buttock. P.W.7 fell to the ground. P.W.7 was sent to hospital at that very time but no serious injury was found on him.

When the thieves left P.W.1 raised an alarm and the inhabitants came out. Some entered P.W.1’s house including No. 3 accused. P.W.1 never asked No. 3 accused anything but rather sent No. 3 accused to go and report the incident to his (P.W.1’s) mother. That same morning P.W.1 made a report to the police. P.W.10 went and inspected the rooms broken into by thieves. That same day he arrested the defendants and obtained statements on caution from them.”

In their cautioned statements the first and second appellants each said that at the material time he was at another village called Abofuor where he spent the night. Each gave particulars of the places where he was, and of person or persons with whom he slept at that village. Each of the two appellants filed a notice of alibi in accordance with section 131 of the Criminal Procedure Code, 1960,1 and evidence was called in support of the alibi in each case. The third appellant also made a statement on caution as follows: “On the 4th October, 1961, at about 3 a.m. I heard firing of the guns and shouting. I did not step out, but later I heard the complainant crying. I was then in my room. I do not know anything about the theft.” At the trial, this appellant called his uncle, Kofi Kuma, who testified that the third appellant slept in his house at the material time; that as he was going to the house of P.W.1 after the alarm, he stopped and called the third appellant who was then asleep in a locked room; that he went with third appellant to the house of the two complainants (P.W.1 and P.W.2); that P.W.1 sent the third appellant to report the theft to his (P.W.1’s) mother. This last piece of evidence about the sending of the third appellant to the house of P.W.1’s mother was admitted by P.W.1 and P.W.2.

In his judgment the learned circuit judge made this rather unfortunate pronouncement: “This is a case where there is no question of mistaken identity.” In the view of this court this was a very serious misdirection which went to the root of the whole case. If an accused puts forward an alibi as an answer to a criminal charge, the accused is simply saying that whoever might have committed the offence, if it was committed at all, it was not he; and to support this he leads evidence that he was elsewhere at the material time. In effect, the accused is saying that the prosecution witnesses are mistaking him for the real perpetrator of the crime. It was therefore wrong for the learned circuit judge to exclude from his consideration the question of mistaken identity which was the crux of the case put up by all the three appellants. The defence of alibi is entitled to consideration, however weak, and nowhere in his judgment did the learned circuit judge direct himself that if the defence of alibi failed he must still consider the facts of the case on their merit. This, we thought,

[p.51] of [1963] 1 GLR 48 was a misdirection by non-direction, for had the learned circuit judge directed himself aright he would have discovered how unsatisfactory the case for the prosecution was.

In the opinion of this court, the alibi of the appellants, particularly that of first and second appellants, covered and accounted for the whole of the time of the criminal transaction at Nkwankwaa village. None of the witnesses whom the appellants called in support of the defence of alibi was shaken under cross-examination. Indeed, it does not appear from the trend of the cross-examination that it was suggested to any of the witnesses that he was lying, and that he ought not to be believed by the court. In R. v. Hart2 Lord Hewart C.J. said:

“In our opinion, if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness-box, or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted.” In this case, the appellants indicated right from the very moment of their arrest that their defence would be alibi, and whilst in custody they gave the police particulars of the defence which they could investigate. At the close of the whole case, therefore, the defence of alibi stood unshaken and uncontradicted.

But the learned circuit judge, however, rejected the defence of alibi upon the four following grounds: (1) that “oven if No. 1 accused and No. 2 accused went to Abofuor they could have returned to Nkwankwaa, a distance of only seven miles”; (2) that the evidence on behalf of the appellants was not reasonably probable; (3) that “anything could have happened from the time they went to Abofuor, even if they did go there, up till the following morning without the knowledge of their witnesses”; and (4) that the complainant P.W.1 explained why he did not challenge the third appellant at the first opportunity. With regard to the first ground there was evidence on record that the distance between Nkwankwaa village and Abofuor village was eight and not seven miles. In any case, there was no onus on the first and second appellants to establish conclusively that they did not return to Nkwankwaa village; on the contrary the burden was on the prosecution to prove conclusively that the two appellants in fact returned and committed the offences with which they were charged.

On the second ground it was sufficient to say that this court did not find anything improbable about the first and second appellants leaving Nkwankwaa village in order to spend the night at Abofuor village. Their evidence was fully supported by a number of independent and unimpeachable witnesses, and the trial court was not, in our view, entitled to disregard such strong evidence of an alibi except on strong evidence: see R. v. Chadwick.3

[p.52] of [1963] 1 GLR 48

As to the third ground, it was not open to the trial judge to speculate on what could have happened from the time the first and second appellants went to Abofuor up till the following morning. Indeed, the fifth defence witness testified that the second appellant never got up during the night.

On the fourth ground, the learned trial judge clearly misdirected himself on the evidence. This court examined the evidence in this case very carefully but it did not find the explanation which the learned circuit judge put into the mouths of P.W.1 and P.W.2. “The prosecution,” said Banks J. in R. v. Ruffino,4 “must always prove its case by admissible evidence. It cannot bridge a gap in the evidence by the explanation of counsel or judge as to what a witness might have said.” Even if this explanation was given but was inadvertently not recorded, it seemed to this court that it was so unreasonable that it could hardly form a ground for rejecting the defence of the third appellant.

If an accused puts forward an alibi as an answer to an accusation against him, he does not thereby assume the burden of proving the defence, but the burden of proving his guilt rests throughout on the prosecution: R. v. Johnson.5 In convicting the three appellants the learned circuit judge expressed himself as being “satisfied beyond every reasonable doubt and [found] as a fact that the prosecution [had] proved by acceptable evidence that the three defendants and others at large broke into the rooms of the witnesses and stole therefrom the articles enumerated in counts 2 and 4 to 7.”

The “acceptable evidence” for the prosecution about which the learned circuit judge was so satisfied was that of P.W.1, P.W.2 and P.W.7 on the vital issue of identification.

The incident in the house of P.W.1 took place at about 2 a.m. on the 4th October, 1961, when according to P.W.1, the moon was up. If that was true, then he had a good, or some, opportunity of identifying the three appellants. Besides, he said that he recognised the appellants by the aid of light from a torch which was flashed on him by the first appellant. The evidence of P.W.2 was not so consistent. She recognised the appellants (a) by the light from the torch; (b) by the light of the moon and (c) by the voices of the appellants.

The learned circuit judge was so impressed by the evidence of these two witnesses that he said in his judgment as follows: “The defendants and witnesses for the prosecution are known to each other having lived in the same village for years. Moreover, there is sufficient evidence on record that the moon was up at the material time.” There was not a shred of evidence that the appellants and the prosecution witnesses had lived at Nkwankwaa village for many years, as the learned circuit judge seemed to think. [p.53] of [1963] 1 GLR 48

There were, however, two matters which in the opinion of the court threw grave doubt on the credibility of the two witnesses, P.W.1 and P.W.2. In the first place, this court has itself referred to the calendar and was satisfied that the statements of the P.W.1 and P.W.2 with regard to the moon were clearly false because the calendar showed that the last quarter of the moon started on the 1st October and a new moon was to appear on the 9th October, 1961. Therefore, there could be no moon at the material time, that is on the 4th October, 1961. In the second place it is inconceivable that if P.W.1 and P.W.2 had really seen the third appellant among the raiders, P.W.1 would have sent him to inform his mother about the incident instead of having him arrested on the spot. The conduct of P.W.1 and P.W.2 would certainly make one doubt whether their evidence could be relied upon in regard to the identification of the other two appellants. It seems to this court that the learned circuit judge completely misdirected himself on these matters.

The evidence of P.W.7 could not bear examination, and the learned circuit judge was charitable towards him by describing his evidence as “a bit exaggerated.” When making his complaint to the police soon after the incident, P.W.7 said that he was fired at by an unknown thief. Yet in his evidence in court he said that he recognised the three appellants among the raiders. Again, though this witness told the police and also the court on oath that one of the raiders had fired a gun at his buttock, yet the medical report showed only a small healed circular wound on his buttock. P.W.7 was indeed such a discredited witness that in the opinion of this court it would be unsafe to convict on his evidence.

In view of all the facts, this court comes to the conclusion that the judgment of the learned circuit judge should be set aside on the ground that it can not be supported by the evidence, and that the convictions are unsatisfactory and must be quashed.

DECISION

Appeal allowed.

Convictions quashed.

J. D.