STATE v. TABBEY [1966] GLR 621

Division: SUPREME COURT

Date: 30 JUNE 1966

Before: MILLS-ODOI, AKAINYAH AND LASSEY JJ.S.C.

CASES REFERRED TO

(1) R. v. Best [1909] 1 K.B. 692; 78 L.J.K.B. 658; 100 L.T. 622; 73 J.P.J. 77; 25 T.L.R. 280; 22 Cox C.C. 97; 2 Cr.App.R. 30, C.C.A. (2) R. v. May (1952) 36 Cr.App.R. 91, C.C.A.

(3) 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.

(4) 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.

NATURE OF PROCEEDINGS

CASE STATED from the Circuit Court, Cape Coast, to the Supreme Court. The facts are sufficiently set out in the opinion of the Supreme Court.

COUNSEL

J. N. K. Taylor, Senior State Attorney, for the appellant.

A.W. Acquaah for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the reasons for the judgment of the court. The court has already given its opinion on the matters raised in the case stated by the circuit court judge at Cape Coast, and we now give our reasons. This case concerns the fourth accused, A. B. Tabbey, who will hereafter be referred to as the respondent.

The respondent and the other four accused were arraigned before the Circuit Court, Cape Coast, on charges of conspiracy to steal and stealing the sum of £G2,326 or ¢5,582.40, the property of one Alhaji Jaji. During the course of the trial a fierce controversy arose over the question of admissibility of a statement which the respondent made to the police on 15 October 1965 when the case was under investigation and when he had not been suspected of any complicity in the crime. It was an ordinary statement made by him, not on caution, as the police intended at that time to treat him as a witness for the prosecution.

The circumstances which led to the dispute over the issue of admissibility of the statement, as set out by the court below, are as follows:

“Originally the police contemplated charging the first three of the accused persons with the two counts and treating the

[p.623] of [1966] GLR 621 fourth and fifth accused persons as prosecution witnesses. On 15 October 1965 witness statements were obtained from these two persons. On 16 November 1965 the police obtained investigation statements on caution from each of the last two accused persons. Each of the cautioned statements relied on the witness statement (not on caution) made on 15 October 1965. At the trial the prosecution attempted to tender the statements made on 1 5 October 1965 but counsel for the defence objected on the ground that the statements were originally taken as ordinary witness statements and not investigation statements against the accused persons. The prosecution on the other hand contended that any statement at all made by a person was admissible against him under the general rule of admission and referred to the Judge’s Rule 1 at para. 1118 of Archbold Criminal Law and Practice.”

After arguments of counsel on both sides on the question of admissibility of the statements had been heard the circuit court judge held that the statements were inadmissible and caused them to be marked as rejected, his reasons for so doing are contained in the following passages:

“If at the time the statement was made the fourth accused had been informed that he was suspected of an offence, the law would require that he be cautioned. Although this statement strictly speaking is admissible, I do not consider in a criminal trial like this a statement obtained from a person as a witness, should be accepted as a statement during his trial.

In Cross on Evidence (3rd ed.), p. 445, Lord Sumner’s observation in Ibrahim v. R. [1914] A.C. 599 at p. 610 supports this view: ‘In an action of tort evidence of this kind could not be excluded when tendered against a tortfeasor, though a jury might well be told as prudent men to think little of it’.” The circuit court judge concluded his ruling in the following words, “In the interest of justice I do not consider it proper to have the statement admitted, it is therefore rejected, and should be so marked.” Upon an application by the senior state attorney who, no doubt, was dissatisfied with the ruling of the court below, the circuit court judge, acting under and by virtue of the power vested in the court by section 338 of the Criminal Procedure Code, 1960,1 reserved for the consideration of this court, on a case stated, the following questions of law:

[p.624] of [1966] GLR 621

“(1) Whether a statement taken from a person as a witness at the relevant time when there was no decision to charge him at all is admissible at all if the person is subsequently charged?

(2) Whether the admission into evidence of the investigation statement [suspect-cautioned statement] which did refer to the witness statement does automatically make the witness statement admissible?

(3) Whether the police officer taking the statement made on 16 November 1965 which statements referred to the witness statement of 15 October 1965, was not in duty bound to inform the suspects that they could not legally refer to the earlier statement?”

In arguing the case for the state, Mr Taylor, senior state attorney, who was also the counsel for the state at the court below, submitted that the statement dated 15 October 1965 was made by the respondent voluntarily and was therefore admissible because it was not made in breach of the Judges’ Rules. He contended that even if there was a breach of the Judges’ Rules, that, per se, would not render it inadmissible, since the judge had a discretion either to admit or reject it, in order to do justice to the case. For these reasons, counsel further submitted, the answer to question (1) must be in the affirmative. Mr. Taylor then contended that if an affirmative answer is given to question (1), it follows clearly that the answer to question (2) should also be in the affirmative.

In the case of the third question, the, senior state attorney stated the answer must be in the negative. If not so held, then, in his view, the police must be acting in contravention of rule 7 of the Judges’ Rules. Mr. Acquaah, counsel for the respondent, stated that the grounds for the objection to the statement were unwarranted. He contended that the statement ought to have not been admitted in evidence and that in the peculiar circumstances of the case the third question ought not to have been raised at all. The facts and circumstances of this case clearly show that at the request of the police the respondent called at the C.I.D. Headquarters Station, Accra, on 15 October 1965 and made a statement which was taken down in English by Detective Inspector Kuaday. The respondent signed the statement after it had been read and explained to him by the inspector. His freedom of movement was not restricted at the by the time he was making the statement. Indeed, he was aware that at that time he was being treated by the police as a witness for the prosecution for the trial of the first three accused who had been charged with [p.625] of [1966] GLR 621 conspiracy to steal and stealing. No one doubts, therefore, that the respondent made the statement voluntarily. That this is in fact the truth is borne out by the fact that the respondent’s counsel in the court below did not object to the admissibility of the statement on the ground that it was not made voluntarily. The duty of a judge to exclude statements is one that must depend on the particular circumstances of each case. The test of the admissibility of a statement is whether the statement was made voluntarily: see R. v. Best2 and R. v. May3. The principle to be applied was laid down in R. v. Thompson4 and was admirably set out by Lord Sumner in Ibrahim v. R.5 as follows:

“It has long been established as a positive rule of English criminal law, that no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

The principle was repeated by the Lord Chief Justice in his revised edition of the Judges’ Rules, which deal with the admissibility in evidence, at the trial of any person of answers and statements made by him to police officers, as follows:

“(e) It was a fundamental condition of the admissibility in evidence against any person, equally of any oral answers given by that person to a question put by a police officer and of any statement made by that person, that it should have been voluntary, in the sense that it had not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority, or by oppression.” It would seem that the principle is not restricted to statements made by accused persons. It applies also to statements made by non-suspects and, as in the instant case, to the statement made by the respondent. There was, in the present case, no evidence that the respondent was subjected to the pressure of either fear or hope in the sense mentioned supra. We are clearly of the opinion, therefore, that there was no breach of the long established rule; therefore the answer to question one is yes.

[p.626] of [1966] GLR 621

The answer to question one makes our task very easy in finding an answer to question two. On 16 November 1965 the police invited the respondent to the police station and obtained from him an investigation statement in which he said, “I rely on the statement I made to the police at Asikuma on 15 October 1965.” It was the case for the respondent that the above statement was voluntarily made by him; and the fact that it was so made is supported by a certificate which he wrote at the foot of the statement in the following words, “This statement is true. I have made it of my own free will.” It is beyond doubt, therefore, that the investigation statement of the respondent dated 16 November 1965 is admissible in evidence. This statement which relied on the previous ordinary statement, made on 15 October 1965 did automatically make the latter admissible in evidence. Even if the respondent did not make any reference to the ordinary statement in the investigation statement, the former would, in any event be admissible in evidence.

In the case of the third question we are in entire agreement with the senior state attorney that the answer should be in the negative, that is to say, that the police officer was not in duty bound to inform the respondent that he could not legally make reference to the ordinary statement in the investigation statement. When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody, so long as he has not been charged with the offence or informed that he may be prosecuted for it. But where, as in this case, the police officer had reason to suspect that the respondent was involved in the commission of the offence and had given him the caution that he was not obliged to say anything unless he wished to do so, the respondent should not be cross-examined or questioned on matters relating to the offence. However, in exceptional cases, and this case does not fall within the class of cases, questions may be put for the purpose of clearing up an ambiguity in a previous answer or statement. There is no doubt that we are bound to confine ourselves strictly to the case stated—outside the bounds of the case we may not travel.

DECISION

Non-cautioned statement relied upon in a subsequent cautioned statement is admissible in evidence.

S. K. T.