STATE v. BANFUL [1965] GLR 433

DIVISION: SUPREME COURT

DATE: 4 JUNE 1965

BEFORE: OLLENNU, ACOLATSE AND APALOO JJ.S.C.

CASES REFERRED TO

(1) R. v. Bate (1871) 11 Cox C.C. 686.

(2) R. v. Bond (1850) 3 Car. & Kir. 337, n; 19 L.J.M.C. 138; 13 J.P. 796; 14 Jur. 399; 4 Cox C.C. 231,

C.C.R.

(3) R. v. Howes (1834) 6 C. & P. 404; 172 E.R. 296.

(4) R. v. Smith [1959] 2 Q.B. 35; [1959] 2 W.L.R. 623; 123 J.P. 295; 103 S.J. 353; [1959] 2 All E.R.

193; 43 Cr.App.R. 121.

(5) R. v. Rue (1876) 34 L.T. 400; 13 Cox C.C. 209.

(6) Sparks v. R. [1964] A.C. 964; [1964] 2 W.L.R. 566; 108 S.J. 154; [1964] 1 All E.R. 727, P.C.

(7) Ibrahim v. R. [1914] A.C. 599; 83 L.J.P.C. 185; 111 L.T. 20; 30 T.L.R. 383; 24 Cox C.C. 174, P.C.

(8) R. v. Thompson [1893] 2 Q.B. 12; 62 L.J.M.C. 93; 69 L.T. 22; 57 J.P. 312; 41 W.R. 525; 9 T.L.R.

435; 37 S.J. 457; 17 Cox C.C. 641; 5 R. 392, C.C.R.

[p.435] of [1965] GLR 433

(9) R. v. Chadwick (1934) 78 S.J. 279; 24 Cr.App.R. 138, C.C.A.

(10) R. v. Voisin [1918] 1 K.B. 531; 87 L.J.K.B. 574; 118 L.T. 654; 82 J.P. 96; 34 T.L.R. 263; 62 S.J.

423; 26 Cox C.C. 224; 13 Cr.App.R. 89, C.C.A.

(11) R. v. Collier (1848) 3 Cox C.C. 57.

(12) R. v. Meynell (1834) 2 Lew. C.C. 122; 168 E.R. 1100.

(13) R. v. Sherrington (1838) 2 Lew. C.C. 123; 168 E.R. 1101.

NATURE OF PROCEEDINGS

APPEAL by the State against three rulings by the High Court in a murder trial. The facts are fully set out in the judgment of Ollennu J.S.C.

COUNSEL

Gyeke-Dako, Senior State Attorney, for the appellant.

Afreh for the respondent

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This appeal is brought by the prosecution under section 337 of the Criminal Procedure Code 19601 as amended by section 10 of the Criminal Procedure

Code (Amendment) (No. 2) 1962,2 and it is against three rulings made by Siriboe J., as he then was, one on 12 May 1964, one on 13 May 1964 and another on 19 May 1964. By the first ruling the learned judge rejected as inadmissible a statutory statement which the defendant, the respondent herein, had made before the committing magistrate; by the second he refused to state a case for the consideration of the

Supreme Court on his first ruling; and by the third he ruled that there was no case to go to the jury.

The defendant, a school boy aged about nineteen, was alleged to have murdered the bursar of his school by gun shot wound. As many as 24 witnesses were called for the prosecution, but none of them gave any material evidence direct or circumstantial which connected the defendant with the cause of the bursar’s death. The prosecution sought to tender a statement which the defendant had made to a police officer who investigated the case; it was alleged that in that statement the defendant confessed his guilt of the crime; the defence objected to the admission of that statement and so the court had to try that issue. The evidence led in that regard, which will be referred to presently, made it quite conclusive that the alleged confession was not voluntary, and that it was one induced by promise of favour or advantage and pressure held out and brought to bear upon the mind of the defendant by a very senior police officer who employed the aid of the father of the defendant jointly with the headmaster of his school. During the trial of this issue, the

[p.436] of [1965] GLR 433 prosecution put in issue the admissibility of a statutory statement which the defendant had made, and thereby elicited evidence which proved that the defendant made the statutory statement while the promise held out to him to induce the extra-judicial statement was still operating upon his mind, and nothing had happened, or had been done to remove it. The learned judge ruled that the caution statement made by the defendant to the police was inadmissible, and the trial proceeded.

Just before closing their case the prosecution sought to tender in evidence the statutory statement which the defendant made to the magistrate at his committal. Counsel for the defence objected to its admissibility on the ground that it had been proved not to be a voluntary statement, but rather one made upon the influence of the earlier promise and pressure. Having heard arguments on this point based upon the evidence already adduced, the learned judge upheld the objection in the following words, “I feel bound to reject this statutory statement sought to be tendered on the ground that it was made by the accused in consequence of the previous inducement or promise which was still operating on his mind, hoping as he put it, that he would be freed if he made that statement.” That ruling is the first ruling against which the appeal is brought.

After this ruling the prosecution requested the learned judge to state a case for the consideration of this court, but the judge refused to do so. The prosecution then had their twentieth witness, the father of the defendant, recalled for further examination, and with that, they closed their case. A submission of no case was then made on behalf of the defence, and having heard arguments on both sides, the learned judge ruled that there was no case to go to the jury. He then directed the jury to return a verdict of not guilty; which the jury did; the learned judge then recorded the verdict and acquitted and discharged the defendant.

The prosecution appealed against these three rulings on the following grounds:

“(1) That the learned trial judge was wrong in rejecting the statutory statement made in accordance with section 187 of the Criminal Procedure Code, 1960 (Act 30), by the accused before the district magistrate at the preliminary hearing of the case.

(2) That the learned trial judge was wrong in holding that the prosecution had made no case to answer.

(3) That, having regard to the circumstances of the case, the learned trial judge was wrong in refusing the invitation of the prosecution to state a case, based on the first ground

[p.437] of [1965] GLR 433 of appeal above, under sections 338 and 339 of the Criminal Procedure Code, 1960 (Act 30), for the consideration of the Supreme Court.”

Arguing ground (1), learned senior state attorney submitted that the learned judge of the High Court misdirected himself on the principles governing admissibility of a statutory statement, and that the passages he relied upon in Archbold’s Pleading, Evidence & Practice in Criminal Cases (35th ed.), pp.

462-463, paras. 1112-1113, have reference to extra-judicial confessions or statements made by a defendant, and not to a statutory statement which a defendant makes in pursuance of section 187 of the

Criminal Procedure Code, 1960. He conceded however that a statutory statement whether it amounts to a confession or not, is not admissible automatically, and that save as to proof, its admissibility is regulated by the same principles of law as an extra-judicial confession. He referred to Archbold (supra) at pp.

451-452, paras. 1093 and 1096 and cited R. v. Bate3, R. v. Bond,4 and R. v. Howes,5 and submitted that upon the authority of the decisions in those cases, once it is shown that caution was administered to a defendant in a form which should dispel from his mind any hope or fear excited by promise or threat, a statement which a defendant makes upon the caution is admissible. The senior state attorney submitted that the very purpose of the statutory words of caution laid down in section 187 of Act 30, which were administered to the defendant before he made the statutory statement, is to dispel from his mind any hope or fear excited by threat or promise which might have been held out to him earlier, therefore the statement which the defendant made after the administration of that caution is admissible.

He further submitted upon that principle that a statement made by a defendant subsequent to an earlier statement he makes induced by threat or promise, is not ipso facto inadmissible, simply because the earlier one happens to be inadmissible in law; he contended that in the present case the time which elapsed between the inducement and the making of the statutory statement is so long, about one month, that the inducement must be deemed to have disappeared and become ineffective.

As regards ground (2), that the trial judge erred in ruling that there is no case to answer, the senior state attorney submitted that consideration of that ground depends entirely upon the decision on the first ground of appeal, because, he concedes that there is not a tittle in the large mass of evidence led, upon which in law, any court of

[p.438] of [1965] GLR 433 justice can justifiably convict the defendant of the offence of murder with which he was charged or of any lesser offence known to our law.

The senior state attorney did not press ground (3), because there was nothing on the face of the order of the learned judge refusing to state a case upon which it can be urged that he did not exercise his discretion judicially. Learned counsel for the defendant agreed with the submissions of the senior state attorney that (1) admissibility of a statutory statement is governed by the same principles of law as admissibility of an extra-judicial statement, and (2) that the rejection of an earlier statement made by a defendant is not ipso facto a ground for rejecting a subsequent statement. He submitted however that in law, if the threat or promise which induced an earlier statement is shown to be still operating on the mind of the defendant when he made the subsequent statement, then the subsequent statement also would be inadmissible as a statement procured by means of threat or promise. In support of this proposition of law he cited R. v.

Smith,6 where the principle is laid down.

On the issue as to when an inducement comes to an end, counsel submitted that that is a question of fact for the trial judge; he supported this submission with the view expressed in Wigmore on Evidence (3rd ed.), Vol. 3, p. 335 and the case of R. v. Rue.7 Counsel submitted that far from removing from the mind of the defendant, any hope or fear earlier held out to him, the statutory caution administered to the defendant is, under the circumstances of this case, such as rather confirmed than removed the impression created in the mind of the defendant by the promise earlier held out to him; in this connection he cited

Sparks v. R.8

We agree with the opinion expressed by both the senior state attorney and counsel for the defendant that a statutory statement made by a defendant in the course of his committal is not admissible automatically, and that its admissibility is governed by the same principles as those which govern admissibility of any other statement, judicial or extra-judicial. The only difference between the two is that by virtue of section

269 (1) of the Criminal Procedure Code, 1960, a statutory statement whether signed by the defendant or not, may be admitted in evidence without further proof by the prosecution, unless it is proved that the committing magistrate purporting to sign it did not in fact sign it; while any other statement, judicial or extra-judicial may only become admissible upon proof.

[p.439] of [1965] GLR 433

The general principle governing the matter is that a confession or statement made by a defendant before his trial, i.e. other than the evidence he gives at his trial, can only be admitted against him if it is proved to have been made freely and voluntarily in the sense that it was not obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority. Therefore the onus lies upon the prosecution where they intend to use such a confession as part of their case, “to prove affirmatively to the satisfaction of the judge who tries the case that the admissions were not induced by any promise of favour or advantage or by the use of fear or threats or pressure by a person in authority.”

See Halsbury’s Laws of England (3rd ed.), Vol. 10, p. 469. para. 860: see also Ibrahim v. R.9, and R. v.

Thompson10.

The question whether a statement is voluntary or not, is a question of fact and the duty of determining that question is vested in the trial judge, not in a jury; the judge can only perform the duty judicially after hearing evidence and arguments on the issue: see R. v. Chadwick.11 If the trial judge is satisfied upon the facts that the statement is voluntary, he should admit it notwithstanding the fact that no caution was administered to the defendant before he made the statement: see R. v. Voisin.12 But if the trial judge is satisfied upon the facts that the statement is not a voluntary statement he should reject it even though the defendant was cautioned before he made it.

This principle of whether a statement made by a defendant is voluntary or not, and therefore admissible or inadmissible, and the duty of the trial judge to determine that issue applies to each statement made by a defendant which the prosecution desires to use in proof of their case. Thus where an earlier statement has been proved to have been induced by threat or promise, the onus upon the prosecution to prove that a subsequent statement is voluntary, is a very heavy one, since the earlier threat could most probably have induced the subsequent statement. The principle is stated with clarity in the headnote to R. v. Smith13 as follows:

“Where a statement has been induced by a threat or promise and thereby has been rendered inadmissible, and a second statement is made, if the threat or promise under which the first statement was made still persists when the second statement is made, then the second statement also is inadmissible. It is only if the time limit between the two statements, the circumstances existing at the time of the second statement and the

[p.440] of [1965] GLR 433 caution then administered are such that it can be said that the original threat or inducement has been dissipated that the second statement can be admissible as a voluntary statement.”

This principle implies that as part of the onus to prove that a subsequent statement was made voluntarily, the prosecution must prove that the inducement earlier held out had dissipated, and did not operate upon the mind of the defendant at the time he made the subsequent statement. Thus in R. v. Smith (supra), the trial judge rejected an earlier confession made by a defendant on the ground that it was induced by threats, but admitted a subsequent confession, because he was satisfied upon the circumstances that it was voluntary and that at the time it was made, all the threats had dissipated. So too in R. v. Rue,14 the trial judge rejected a confession as induced by promise, but admitted a statutory statement made before a committing magistrate because he was satisfied from all the facts and circumstances, the nature of the caution and everything about the case, that the statutory statement was voluntary. But in R. v. Collier15, where the court had rejected a confession as having been obtained by improper inducement, it also rejected a second confession and a third confession as well because the learned judge was not satisfied upon the evidence that the influence produced by the inducement upon the mind of the defendant which caused him to make the first statement was removed before he made the second and the third statements: see also R. v. Meynell16 and R. v. Sherrington17 in each of which a second caution statement was rejected. In the latter of those two cases Patterson J. said18

“There ought to be strong evidence to show that the impression under which the first confession was made, was afterwards removed, before the second confession can be received. I am of opinion, in this case, that the prisoner must be considered to have made the second confession under the same influence as he made the first . . .

We endorse that principle as a correct statement of the law.

There is some force in the submission made by the senior state attorney that since on the face of the statutory statement it is shown that the defendant made the statement after the statutory caution prescribed in section 187 of Act 30 had been administered to him, an inducement which might earlier have been held out to him must be

[p.441] of [1965] GLR 433 deemed to have been removed, and therefore the statutory statement must be deemed to be voluntary. The argument however begs the question. It is true that the purpose of a caution, statutory or non-statutory, is to impress upon a defendant that he was not induced either by threat or promise of any sort to make a statement, and where such inducement has earlier been effected, to dispel from his mind such hope or fear excited by the promise or fear. But it is a question of fact in each case whether the caution did in fact have the effect of dispelling or confirming the impression already created. In this connection we would refer to

Sparks v. R.19; there after an inducement had been held out to a defendant, and while it continued to operate upon his mind, he was cautioned in the usual way, and he thereupon made a statement confessing his guilt; the Privy Council held that in those circumstances the trial judge should have rejected the alleged confession. In the course of the opinion in that case their lordships said:

“Their lordships cannot however agree that, in the circumstances of the present case, an acknowledgement

(in the recognised wording of a caution) by the appellant that he was not obliged to say anything unless he wished to do so was any indication that inducements no longer continued to operate. In fact the caution marked the moment when the persuasions, the promises and the inducements, became effective. Though the appellant understood that he could if he wished remain silent, he was (on this evidence) made to believe that for the price of his confession he could purchase advantage. When he was cautioned the inducements were not withdrawn. Rather had the time arrived for decision whether he would avail himself of the benefits promised. The prospects before him as they were made to appear to him were alternative: on one basis, while he himself would suffer punishment, the troubles of his family and his friends would be diminished; on another basis not only would he himself suffer punishment but also he would face all possible charges and his family and friends would be confronted with the utmost embarrassment. For the reasons which they have set out their lordships conclude that the written statement signed by the appellant and recorded between 5.0 and 5.20 p.m. was not shown to have been a voluntary statement, and accordingly was not admissible.”

We adopt those words where they are relevant to this case.

The facts and circumstances of this case particularly the nature of the inducement are in some respects similar to those in Sparks v. R.

[p.442] of [1965] GLR 433

The defendant had made more than one statement to the police, one of them is exhibit M in the case. In each of those statements he had consistently denied committing the offence but had stated facts which, if believed, tend to show that the murder must have been committed by a master or two masters of his school; in consequence of those statements one of the teachers in question, the fifth prosecution witness in the case, was taken into custody by the police. A superior police officer later had the defendant brought to him in his office, told him the statement he had made was not good and that he should change it; when the defendant persisted that his statement was true and he could not change it, the officer gave him some slaps, told him that the allegation that a teacher had fired the gun and killed the bursar of the school would bring a bad name to the school and the teacher would be hanged, but that he, being a young person, should say that he the defendant was the one who fired the gun, and that if he said so, he (the police officer) would see to it that wherever the defendant was taken to he would be released. The officer also called in the father of the defendant and at a later stage called in the headmaster of the school also. The account of that interview is given by the father as follows:

“On 22 February 1964 I saw Mr. Adamson at the Kibi Police Station at the entrance to the Inspector’s office downstairs. At that time the accused was in that office. Mr. Adamson told me something following which he took me to the Inspector’s office. When he and I entered we met the accused there so we were the only three in the office.

In the accused’s presence Mr. Adamson told me that the accused was mentioning many people’s names from the Abuakwa State College in connection with this case, and was trying to spoil the name of the college. So I must advise him to discontinue mentioning the names. He further told me to insist upon the accused to admit having killed the deceased with my gun and that being young he the accused, would be considered. He thereafter handed the accused to me and the principal of the college the first prosecution witness who had then come to the office, to advise the accused to admit having killed the deceased with my gun. I took the accused to the police cells after inviting the accused’s mother, my former wife, who was standing outside the police station to join us.

So I, my ex-wife, the first prosecution witness and the accused went to the police cells. Later the thirteenth prosecution witness came in. I then told the accused that I did not want any trouble so I had been asked by the deputy superintendent of police Mr. Adamson to come and advise him to stop mentioning names [p.443] of [1965] GLR 433 of people as those who had murdered the deceased and to admit that it was he who murdered the deceased.

That because he is so young he would be considered.”

To the question by the court, “How did you understand would be considered?” He replied, “The deputy superintendent of police said that the accused would be set free and that was how I explained it to the accused.” He then continued:

“The accused who was then weeping told me and the others that, ‘I have told the police the truth that it was one Nyame who asked me to bring the gun’ (referring to my gun). The accused swore by the Almighty that that was the truth and he had told the police already, so he saw no reason why he should be worried. I then told him that I had been advised to insist on him to admit killing the deceased and he would be set free so I did not want to hear anything else. After saying this he agreed to say so. All this time the thirteenth prosecution witness was going out and coming in to the cells, he was not stationary. After the accused had agreed to say so, I went and reported to the deputy superintendent Mr. Adamson that the accused had agreed to do as requested. The accused was therefore sent upstairs. I did not accompany him there. That’s all I know.”

The headmaster’s account is similar in some respects to this account given by the father.

There is no question on these facts that very strong influence and pressure was employed which could induce an adult, not to talk of a pupil at school like the defendant. In those circumstances the onus which fell upon the prosecution to prove that the effect of this strong inducement had waived at the time when the statutory statement was made is very heavy. They attempted to short-circuit that onus by putting the admissibility of the statutory statement in issue together with the admissibility of the first statement. The evidence they elicited in respect of that issue left no room for doubt that the inducement was still operating strongly on the mind of the prisoner when he made the statutory statement upon the statutory caution administered by the committing magistrate, while the superior police officer in question was present. The evidence given by the appellant under cross-examination that he made the statement in pursuance of the promise earlier held out to him is, in our opinion, most reasonable. The words of caution administered to the defendant by the committing magistrate as laid down in section 187 of Act 30 is as follows:

“Before deciding whether to commit you for trial I wish to know if you have anything to say in answer to the charge.

[p.444] of [1965] GLR 433

You are not obliged to say anything but if you have any explanation it may be in your interest to give it now.

Whatever you wish to say will be taken down in writing and if you are committed for trial it may be given in evidence. If you do not give an explanation, your failure to do so may be the subject of comment by the prosecution and be taken into account at the trial.”

There is nothing in these words to indicate that the inducement no longer continued to operate. We are of opinion that having regard to this particular case, the presence of the police officer in the court at the time, and the language of the caution, borrowing the language of the Privy Council in Sparks v. R.20:

“In fact . . . marked the moment when the persuasions, the promises and the inducements, became effective.

Though the appellant understood that he could if he wished remain silent, he was (on his evidence) made to believe that for the price of his confession he could purchase advantage. When he was cautioned the inducements were not withdrawn. Rather had the time arrived for decision whether he would avail himself of the benefits promised.”

That caution would most likely produce the effect that it was in the interest of the defendant that he should take advantage of the promise made to him, and to do so then, or ever afterwards regret. In those circumstances the caution cannot be deemed to have withdrawn the inducement earlier held out, and quite apart from the fact that the caution cannot be deemed to have had that effect, the positive and most reasonable evidence which the prosecution elicited that the statutory statement was made in pursuance of the inducement stands unchallenged. The learned judge therefore correctly applied the law and was right in rejecting the statutory statement. For these reasons the appeal must be dismissed, and it is accordingly dismissed.

DECISION

Appeal dismissed.

A. K. F.