OBENG v. THE REPUBLIC [1971] 2 GLR 107

DIVISION: IN THE COURT OF APPEAL

DATE: 22 MARCH 1971

BEFORE: AZU CRABBE, LASSEY AND SOWAH JJ.A.

CASES REFERRED TO

(1) Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 2 W.L.R. 343; 118 J.P. 222; 98 S.J. 161; [1954] 1 All E.R. 507; 38 Cr.App.R. 11, H.L.

(2) R. v. Coney (1882) 8 Q.B.D. 534; 51 L.J.M.C. 66; 46 L.T. 307; 46 J.P. 404; 15 Cox C.C. 46; 30 W.R. 678, C.C.R.

(3) Wilcox v. Jeffrey [1951] W.N. 77; [1951] 1 T.L.R. 706; 115 J.P. 151; 95 S.J. 157; [1951] 1 All E.R. 464; 49 L.G.R. 363, D.C.

(4) R. v. Charavanmuttu (1930) 22 Cr.App.R. 1, C.C.A.

(5) R. v. Linder [1938] S.A.S.R. 412.

(6) R. v. Spicer (1955) 39 Cr.App.R. 189.

(7) R. v. Cook (1963) 48 Cr.App.R. 98, C.C.A.

(8) R. v. Baskerville [1916] 2 K.B. 658; 12 Cr.App.R. 81, C.C.A.

(9) R. v. Goddard [1962] 1 W.L.R. 1282; 127 J.P. 11; 106 S.J. 737; [1962] 3 All E.R. 582; 46 Cr.App.R. 456, C.C.A.

(10) R. v. Manning (1968) 53 Cr.App.R. 150; [1969] Crim.L.R. 142,C.A.

(11) R. v. Richards [1967] 1 W.L.R. 653; 131 J.P. 283; 111 S.J. 254; [1967] 1 All E.R. 829; 51 Cr.App.R. 266, C.A.

[p.109] of [1971] 2 GLR 107

NATURE OF PROCEEDINGS

APPEAL against a conviction for an attempt to cause an abortion entered by Archer J. (as he then was) sitting with the aid of a jury. The facts are fully set out in the majority judgment.

COUNSEL

K. Boateng for the appellant.

E. v. A. Kisseih, Senior State Attorney, for the respondent.

JUDGMENT OF SOWAH J.A.

Sowah J.A. delivered the ‘majority judgment of the court. The appellant in this case was charged with unlawfully causing abortion on one Christiana Mensa. The jury found him guilty of an attempt to cause abortion and he was then given the mandatory penalty of ten years’ imprisonment with hard labour. The facts of this case are as follows: The victim, Christiana Mensa, the first prosecution witness, found herself expecting a baby by her boy friend whom she described as a schoolboy and who was incapable of sustaining and maintaining a child if delivered. She therefore conceived of the idea of terminating the pregnancy. The name of the appellant was mentioned to her and she sought him out. Before then, she had discussed her intentions with a friend, Miss Georgina Owusu Afriyie, an office assistant at the Ministry of Agriculture, Koforidua, the sixth prosecution witness, who expressed her fears about the course of conduct proposed and endeavoured unsuccessfully, to dissuade her from embarking upon it. Upon her persuasion, however, Miss Owusu Afriyie accompanied her to the appellant’s house.

Both girls agreed that the appellant demanded the sum of £G10 for his services. In view of counsel’s argument before us, it is necessary to refer to some pieces of evidence on this issue. Miss Mensa stated: “He agreed and said he would charge £G12, we begged him and he reduced his charge to £G10.” Miss Owusu Afriyie put it this way: “Mr. Obeng said he would charge £G12. After discussion, it was reduced to £G10.” Miss Mensa then was given four injections by the appellant. After the last injection, she attempted to stay the night with her friend Miss Owusu Afriyie, but the latter refused and took her back to the appellant, informing the appellant of her reasons for so doing. The evidence shows that the appellant received Miss Mensa and arranged with a former girl friend, a Miss Ama Owusuah, the second prosecution witness, to put her up for the night and told her the reasons for his request, namely, that he had given injections to Miss Mensa which he expected would end her pregnancy. It was during the night that Miss Mensa started bleeding profusely. Her hostess took fright and consulted with her grandmother who lived with her, and, upon her advice, the police were contacted to convey Miss Mensa to hospital. It appears that the doctor who attended upon her was not informed about the injections. He stated: “When I examined Christiana Mensa I found that in her particular case the foetus was out but some product of conception, that is, bits of placenta were still inside the uterus. It was therefore a case of incomplete abortion. Incomplete abortion can be caused by:

[p.110] of [1971] 2 GLR 107

(1) natural cause of event,

(2) instrumentation which may be legal or illegal,

(3) drugs which are known as abortifacient,

(4) external violence which may be accidental or intentional.

As no history of injection was given to me by Christiana Mensa or her attendants I did not look for the marks of injection.

[Cross-examination by defence counsel:]

The cause of the abortion is unknown to me. I agree that the incomplete abortion in the case of Christiana Mensa might have been caused by natural cause of events.”

The appellant at the trial, denied administering any injections to the complainant or even knowing her; denied the admissions he was alleged to have made to Miss Owusu Afriyie or Miss Ama Owusuah; and denied making a request that Miss Owusuah accommodate Miss Mensa for the night. In short, the story of the prosecution was false. The jury did not accept his denial and returned a verdict of guilty of attempting to cause abortion and he was accordingly convicted. It was from this conviction and sentence that the appeal was lodged.

Counsel for the appellant argued two main grounds of appeal the first being that Miss Owusu Afriyie was an accomplice but that the judge, in his direction to the jury, failed to advert to her in that role and to give the necessary caution requisite in the evaluation of her evidence. ‘It is admitted that the judge had directed that Miss Mensa, the complainant, was an accomplice and must be treated as such. The basis for this submission was the evidence given by Miss Mensa that when she discussed the fee chargeable for the abortion, Miss Owusu Afriyie was present and that when the prisoner had mentioned the sum of £G12, she stated: “We begged him and he reduced his charge to £G10.” When Miss Owusu Afriyie gave evidence, she admitted she was present and explained her presence. She stated that a day after a discussion of the matter, Miss Mensa came to her house and informed her that she had found where Mr. Obeng, the appellant, lived. Her evidence continued:

“She insisted I should accompany her and so I went with her. When we went she told Mr. Obeng that she had come. Mr. Obeng then asked the first prosecution witness whether the money was ready. If the money was not ready, then she should go back. Mr. Obeng said he would charge £G12. After discussion, it was reduced to £G10. We returned to my house. Mr. Obeng is the accused. Mr. Obeng said that if the first prosecution witness paid the £G10, he would cause the abortion. The next morning the first prosecution witness came to my house and told me something. I told the first prosecution witness I was afraid and so I could not sleep with her. The first prosecution witness lives at Koforidua. The first prosecution witness could not pay the £G10 and so Mr. Obeng asked the first prosecution witness to deposit her cloth as security. I was not present when the accused demanded the security but when the first prosecution witness [p.111] of [1971] 2 GLR 107 was going to deposit her cloth I accompanied her. We went to the accused’s house. In the evening, the first prosecution witness came and asked for accommodation and said she had caused abortion.” It seems to us that whether Miss Owusu Afriyie was an accomplice in the strict sense or generally, would depend upon the part she played. Admittedly, she had foreknowledge of the intentions of Miss Mensa; but her own evidence was absolutely clear and uncontradicted and her subsequent conduct confirmed it, namely, that she tried to dissuade the complainant from embarking upon the venture, and in the nature of things, that was all she could do and when she failed she accompanied her. It was obvious from the evidence that Miss Mensa had previously arranged to meet the appellant with a view to carrying out the abortion.

The question of who is an accomplice was clearly answered by Lord Simonds L.C. in the case of Davies v. Director of Public Prosecutions [1954] 1 All E.R. 507 at p. 513, H.L. Three categories of accomplices were given: first, persons who are participes criminis in respect of the actual offence charged; secondly, receivers; and thirdly, in explaining that where evidence has been adduced to prove system and intent and to negative accident Lord Simonds L.C. said at p. 513:

“[W]hen [an accused] has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident: in such cases the court has held that, in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration. R. v. Mohamed Farid, (1945), 173 L.T. 68; sub nom. R. v. Farid, 30 Cr.App.Rep. 168.”

The evidence on record ought to be examined to find out if Miss Owusu Afriyie falls into any of the three categories. Quite clearly, she was not a participant to the crime, she was not even present when any of the injections were given and her reaction was decisive when she heard of what had happened. Miss Owusu Afriyie does not fall into the second or third categories of accomplices. The issue of accomplice vel non arises if, on the evidence, a jury could find that a witness was a participant. Since there was no such evidence, the judge was right in not leaving it to the jury. This disposes of the main ground of appeal. It has also been said that the evidence of Ama Owusuah did not carry the case of the prosecution any further because if the test of “sufficiency and clarity” was applied to that evidence, it would be found wanting. We are of a different opinion. We consider it wrong to cull pieces of evidence out of their context. It is necessary to read the evidence as a whole; when Ama Owusuah was invited to accept the first prosecution witness as her guest for the night, there was nothing wrong with her. [p.112] of [1971] 2 GLR 107

The evidence reads as follows:

“He was my former boy friend for about two months. He did not look after me. In January 1967, the accused sent for me. I went to the house of the accused. On reaching there I met two girls in the room of the accused. One of the girls was the first prosecution witness [identified]. The other girl is not in court. I have forgotten her name but I can identify her. The accused then told me that he had caused an abortion on the first prosecution witness and so I should provide accommodation for her. I asked the accused what was meant by abortion. Accused said he had injected the first prosecution witness. I took the first prosecution witness to my house and reported to my grandmother that I had brought a guest to the house. My grandmother had no objection. We slept from about 9 p.m. to midnight when the first prosecution witness woke me up and complained that she was bleeding. When I saw the blood I was afraid and so I rushed to my grandmother. The blood was flowing down all over her legs.” Under cross-examination, she was quite emphatic:

“A. I did not. The first prosecution witness would be telling a lie if she said I went out and came back to see her in that condition. I stayed throughout with her.

Q. I suggest to you that the accused never invited you to his house and suggested that you should put up with the first prosecution witness.

A. He did and that is why the first prosecution witness slept with me.

Q. You have come to court to give this evidence because your friendship with the accused collapsed. A. I have no regrets about the accused of the friendship. I have no grudge against him. Q. The accused never told you that he had caused abortion.

A. He told me that.”

There could not have been clearer evidence on this issue.

The evidence of Ama Owusuah that she was accompanied to her house by the accused and the first prosecution witness was amply corroborated by her grandmother. That evidence is short and reads as follows:

“Examined by counsel. States: ‘My full name is Akua Owusuah. I live at Koforidua, Effiduase. I am a farmer. I know the accused at Effiduase. It was on a Friday in January 1967 about 8 p.m. and Ama Owusuah [identified] came to me and told me she had a stranger to sleep with her for the night. I saw the stranger and the accused with her. The stranger was the first prosecution witness [identified]. I gave the key to the second prosecution witness. About 9 p.m. the second prosecution witness came to the house with the first prosecution witness and the accused. The accused stood at the entrance. I slept until about 1.30 a.m. I heard second prosecution witness calling me. I asked what was the matter and she said the stranger was bleeding. I got up and went to see her. I saw blood in a chamber

[p.113] of [1971] 2 GLR 107 pot and I became afraid and so I reported to the police. I went to the police with the second prosecution witness. We gave statements to the police and they asked us to come to court later on.” Cross-examined by Mr. Lamptey: ‘When second prosecution witness came for the key, she came alone. She told me that the stranger will go to Kumasi the next day. The accused came with the first prosecution witness and the second prosecution witness at 9 p.m. I saw him at the entrance. It was the first prosecution witness and the second prosecution witness who went into the room.”

Thus the material parts of Ama Owusuah’s evidence as to the first prosecution witness’ presence in her house, were amply supported.

It does not seem to us incredible that the doctor was not informed of the injection. The first prosecution witness was not out to ruin the accused; it is common knowledge that often girls try to shield those who had helped them in cases of abortion. It is only in the last extremity that they would divulge the truth. Indeed, if the second prosecution witness had not taken fright and reported the matter to the police, nothing would have been heard of this case.

The next ground of appeal relates to the following passage from the judge’s summing-up which counsel contends was a misdirection in law:

“B. The medical evidence is that the cause of the abortion is unknown, but the law does not require that the prosecution must prove that the abortion was caused by the means used. However, if the jury is satisfied that injections were given with the intent to cause the abortion, then alternatively, the jury can find the accused guilty of attempt to cause abortion under section 18 of the Criminal Code. This they can bring if they have doubts whether the injections could have caused the abortion but such doubts should not be entertained by them provided they are satisfied that the accused did give the injections with intent to cause abortion.”

It seems there is considerable confusion in the direction; quite clearly, the judge was in error when he directed that our “law does not require that the prosecution must prove that the abortion was caused by the means used.” We think it the duty of the prosecution to establish, first, the intent to cause miscarriage and secondly, the act or means used in furtherance of that intent. If the act or means employed does result in the termination of pregnancy, then the prisoner is guilty of causing abortion. If it is incapable of causing abortion or did not in fact result in miscarriage, then the prisoner will only be guilty of an attempt.

Had this passage stood unexplained, we would have held that this was a clear misdirection of law. But the learned judge went further to explain the means used in this case, namely, the administering of injections to Miss Mensa and directed that if they accepted the prosecution’s case but if on account of the doctor’s evidence, they were in doubt as to the

[p.114] of [1971] 2 GLR 107 cause of miscarriage, then they should bring a verdict of attempt at causing abortion.

Though the substance injected into Miss Mensa was unknown, there was clear evidence from Ama Owusuah that shortly after the appellant had admitted administering the injections, Miss Mensa became ill, started bleeding profusely and was rushed to hospital. The doctor’s evidence shows a case of an incomplete abortion when she was admitted. In these circumstances, the verdict open to the jury, if the case of the prosecution was accepted, was that the appellant was guilty of the substantive offence. It is perhaps due to the confusion in the direction that a lesser verdict was pronounced by the jury. The confusion had inured to the benefit of the appellant.

We could only surmise that the judge must have had at the back of his mind English law, where the prosecution is obliged to establish the particular means used, namely, miscarriage procured from the administration of a noxious drug or thing or through the use of an instrument. Our law makes no such distinction; it is irrelevant what means were used provided whatever means used was intended to cause the abortion. If the abortion in fact ensues, the prisoner is guilty of the offence. We think there was material which would justify the conviction. In our view, the appeal fails and should be dismissed. We are aware that the mandatory punishment was perhaps vicious but this has now been amended. We can only recommend, as we have done in other cases, that the prisoner’s punishment be reviewed in the light of the new amendment.

JUDGMENT OF AZU CRABBE J.A.

The appellant was convicted upon an indictment which charged that he unlawfully caused abortion on one Christiana Mensa, contrary to section 58 of the Criminal Code, 1960 (Act 29). The offence of abortion is explained in section 59 as follows:

“59. (1) The offence of causing abortion or miscarriage of a woman can be committed either by that woman or by any other person; and that woman or any other person can be guilty of using means with intent to commit that offence, although the woman is not in fact pregnant.

(2) The offence of causing abortion can be committed by causing a woman to be prematurely delivered of a child with intent unlawfully to cause or hasten the death of the child.” The defence of the appellant was a complete denial of the charge, and the prosecution were therefore put under the obligation to prove his guilt beyond all reasonable doubt. The trial was by a jury and after a summing-up by Archer J. (as he then was) the appellant was convicted of an attempt to cause abortion, and he was sentenced to the minimum statutory sentence of ten years’ imprisonment with hard labour. The facts of this case are simple, and the evidence of the principal prosecution witness, Christiana Mensa, in examination-in-chief is as follows:

[p.115] of [1971] 2 GLR 107

“In July 1966 I was pregnant for about three and half months. One Bediako, a student was responsible. As he was a student, he could not look after me. And so I decided to cause abortion. I therefore went to a certain man called Obeng living at Effiduase. Obeng is the accused. I went with Georgina Afriyie. We sat and waited for Mr. Obeng. When he arrived I reported my condition to him. I told him that my boy friend was a student and could not look after me and so Obeng should help me to cause the abortion. He agreed and said he would charge me £G12. We begged him and he reduced his charge to £G10. I did not pay him at once. I gave him five old cedis. He told me it was not sufficient and so I should come and add something to it. I was not having money with me and so I went back to my house. I therefore took seven yards of my cloth (valued £G7) and gave it to the accused as security for the payment. He accepted the cloth and at the same time he gave me injection on my right buttock. I went back home. The following day about 5.30 a.m. he gave me another injection on my left buttock. The first injection was on a Wednesday, the second on Thursday. On Friday at 5.30 a.m. he gave me another injection. He gave me a fourth injection between 7.30 and 8 p.m. on the same Friday. I started having pains in my stomach and I was lying down in Georgina’s house. Georgina said she was afraid of my condition and so I left the room. I went out and Georgina followed me to the house of the accused. We waited but Mr. Obeng did not come in time. Georgina therefore left before Mr. Obeng arrived. I then told Mr. Obeng that Georgina said she was afraid and therefore would not have me in her room. Mr. Obeng therefore suggested that as I could not walk to my house he would give me a girl to sleep with. The name of the girl is Ama Owusuah [identified]. I saw Ama Owusuah in Mr. Obeng’s room. The three of us went to Ama Owusuah’s house. Ama Owusuah directed us to her room and told me I was to sleep there. It was about 8.30 p.m. Ama Owusuah then said she was going to buy porridge while I sat down. While sitting down I felt like urinating and I took a chamber pot. Blood came out. Ama Owusuah returned and I felt dizzy. Ama became afraid of my condition and reported to her grandmother. The police later came and took me to hospital. I did not see what happened at the hospital. About 6.30 a.m. the next day I was going to have my bath, and blood came down from me. In Ama Owusuah’s room. I saw a certain piece of clotted blood in the chamber pot. At the hospital when I was going to have my bath I saw blood coming down from me which normally flows after child delivery. I have since delivered a child and I am speaking from my subsequent experience. I saw the doctor at the hospital. I was operated upon. I was in the hospital for about two days. I was discharged afterwards.”

Answering a question under cross-examination, Christiana Mensa said that her friend Georgina Owusu Afriyie the sixth prosecution witness accompanied her to the appellant when she (Christiana Mensa) delivered

[p.116] of [1971] 2 GLR 107 her cloth to the appellant as security for the balance of the appellant’s charges. Georgina Owusu Afriyie confirmed this in her evidence. It would appear, therefore, that having accompanied Christiana Mensa to bargain for the appellant’s charges, Georgina Owusu Afriyie again, on another occasion, accompanied her to see the appellant to complete the bargain. And if the evidence of Christiana Mensa that she was given the first injection on the occasion when she deposited her cloth with the appellant as security is to be believed, then the probabilities are that Georgina Owusu Afriyie must have been present at the first injection. Nevertheless, the learned trial judge directed the jury that Georgina Owusu Afriyie was not present when the alleged injections were given. But be that as it may, Christiana Mensa said that on the day she was given the fourth and last injection she thereafter went to the house of Georgina Owusu Afriyie and was accommodated. It was when she started to complain of stomach pains during the night that Georgina Owusu Afriyie became frightened, and said she would no longer keep Christiana Mensa in her room. She then accompanied Christiana Mensa to the house of the appellant.

Another significant piece of evidence which Christiana Mensah gave is that she did not tell the doctor, who attended her at the hospital, that someone had given her four injections for the purpose of aborting her pregnancy. Her explanation was that she was not asked about this by the doctor.

The next important witness for the prosecution was one Ama Owusuah, the second prosecution witness who said that she was a girl friend of the appellant for two years. She said that she left the appellant because he was not maintaining her. She said that the appellant one day sent for her, and when she got to the room of the appellant she met two girls, Christiana Mensa and another girl. The other girl was, no doubt, Georgina Owusu Afriyie. She said that the appellant informed her that he had caused an abortion on Christiana Mensa and requested her to provide accommodation for her. When she demanded an explanation for this, the appellant told her that he had caused an abortion by giving Christiana Mensa some injection. Ama Owusuah continued her evidence as follows:

“I took the first prosecution witness to my house and reported to my grandmother that I had brought a guest to the house. My grandmother had no objection. We slept from about 9 p.m. to midnight when the first prosecution witness woke me up and complained that she was bleeding. When I saw the blood I was afraid and so I rushed to my grandmother. The blood was flowing down all over her legs. I later reported the matter to the police. I told the police that my guest was bleeding and I was afraid and so the police should help. I expected the police to provide transport to convey her to hospital.”

When answering a question under cross-examination she said: “When I agreed to accommodate the first prosecution witness that night, I did not know what was wrong with her.” This evidence is very difficult to reconcile with her earlier evidence that the appellant had told her that [p.117] of [1971] 2 GLR 107 he had caused abortion on Christiana Mensa by giving her injections. Then again she admitted that she failed to tell the police that the appellant had asked her to accommodate Christiana Mensa because the latter had wanted to terminate her pregnancy. It is not clear what exactly Ama Owusuah told the police, but the detective corporal who investigated this case said in his evidence that the word “abortion” was not mentioned in her statement to the police.

The doctor who examined and treated Christiana Mensa on her admission into hospital appears to have left the country at the time of the trial, and the proceedings before the district court when the doctor gave evidence were tendered in evidence and marked exhibit C. These proceedings read:

“My name is Jati Banjan Danik. I am a senior medical officer attached to the Koforidua Hospital. On the 21st January, 1967 I conducted a medical examination on one Christiana Mensa at the Koforidua Hospital. I made a report on my examination on the 21st January, 1967, and signed it. I am tendering the report in evidence. No objection. Admitted and marked exhibit A. According to exhibit A. Christiana Mensa was suffering from the effect of incomplete abortion. Incomplete abortion means the process of abortion is not complete. Some product of conception is still inside the uterus of the patient. When I examined Christiana Mensa I found that in her particular case the foetus was out but some product of conception, that is, bits of placenta were still inside the uterus. It was therefore a case of incomplete abortion. Incomplete abortion can be caused by:

(1) natural cause of events,

(2) instrumentation which may be legal or illegal,

(3) drugs which are known as abortifacient,

(4) external violence which may be accidental or intentional.

As no history of injection was given to me by Christiana Mensa or her attendants I did not look for the marks of injection.’

Cross-examination by defence counsel:

‘The cause of the abortion is unknown to me. I agree that the incomplete abortion in the case of Christiana Mensa might have been caused by natural causes of events.’

Re-examination-Nil.

(Sgd.) K. Azina-Nartey

District Magistrate Grade I

(Sgd.) J. R. Banik.”

The crucial question in this case, as the learned trial judge rightly told the jury, was whether the appellant did inject Christiana Mensa with intent to cause abortion. The burden then was on the prosecution to establish this beyond all reasonable doubt. The learned trial judge, in summing up, first reviewed the evidence for the prosecution and told the jury:

[p.118] of [1971] 2 GLR 107

“As the first prosecution witness herself decided to terminate the pregnancy she may be an accomplice. In law, it is unsafe to convict on the uncorroborated evidence of an accomplice. To provide that type of corroboration required in law, the prosecution rely on the admissions made by the accused himself to the second prosecution witness and the sixth prosecution witness that he caused the abortion.” The learned trial judge next dealt with the evidence for the defence and after calling the jury’s attention to certain matters affecting the credibility of the prosecution witnesses, he proceeded to give the following directions:

“A. If jury is satisfied that the prosecution has proved its case beyond reasonable doubt, then the jury must find the accused guilty of the offence. Jury can bring this verdict only if the jury is satisfied on the evidence that the accused gave first prosecution witness injections with the intent to cause abortion. The jurors having seen first prosecution witness, second prosecution witness and sixth prosecution witness in the witness-box can decide for themselves whether these three prosecution witnesses have told lies or whether their evidence is credible.

B. The medical evidence is that the cause of the abortion is unknown but the law does not require that the prosecution must prove that the abortion was caused by the means used. However, if the jury is satisfied that injections were given with the intent to cause the abortion, then alternatively, the jury can find the accused guilty of attempt to cause abortion under section 18 of the Criminal Code. This they can bring if they have doubts whether the injections could have caused the abortion but such doubts should not be entertained by them provided they are satisfied that the accused did give the injections with intent to cause abortion.

C. It is not the duty of the accused to prove his non-guilt or innocence; accordingly if the jury is satisfied that the accused did not administer any injections to the complainant, then the jury must bring a verdict of not guilty. The jury should acquit if they disbelieve the evidence of first prosecution witness, second witness and sixth prosecution witness.

The jury should also consider whether the accused’s story may be true. If his story may be true or reasonably probable then there is a doubt and the jury should acquit the accused.

Finally, if after considering the whole evidence and the accused’s explanation, whether the jury believe the accused or not, there is still a doubt as to his guilt the jury should bring a verdict of not guilty.” In this appeal the following grounds were filed and argued:

“(1) The judgment is unreasonable having regard to the evidence.

[p.119] of [1971] 2 GLR 107

(2) Considering the charge (causing abortion) against the appellant before the High Court, the trial judge misdirected the jury when he stated that the law does not require that the prosecution must prove that the abortion was caused by the means used.

(3) The trial judge did not adequately direct the jury or at all on the issues of causing abortion or attempting to cause abortion and thereby deprived the appellant of a doubt which might have been accorded him under the latter issue, namely, attempting to cause abortion.”

Arguing the first ground, counsel for the appellant, Mr. Kwaku Boateng, contended first that Georgina Owusu Afriyie was an accomplice and that her evidence could not corroborate the evidence of Christiana Mensa. Who is an accomplice? In the well-known case of Davies v. Director of Public Prosecutions [1954] 1 All E.R. 507, H.L., Lord Simonds L.C. said at p. 513 that the term “accomplice” includes: “(i) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice’. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz., (ii) receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny … and (iii) when [an accused] has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident: in such cases the court has held that, in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration. R. v. Mohamed Farid, (1945), 173 L.T. 68; sub nom. R. v. Farid, 30 Cr.App.R. 168.”

The Lord Chancellor observed that where the witness confesses to participation in the crime charged by pleading guilty to it, or by being convicted of it, it is not difficult to decide whether any particular witness is an accomplice. He then said at p. 514:

“But it is indisputable that there are witnesses outside these straightforward categories, in respect of whom the answer has to be sought elsewhere. The witness concerned may never have confessed, or may never have been arraigned or put on trial, in respect of the crime involved. Such cases fall into two classes. In the first, the judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case, in my view, happens to fall within this class, and can be decided on that narrow [p.120] of [1971] 2 GLR 107 ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a ‘participant’. In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that, if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.”

In this case the learned trial judge did not direct the jury to consider whether Georgina Owusu Afriyie was an accomplice vel non. This young woman accompanied Christiana Mensa to the appellant, and although she naively said that Christiana Mensa did not tell her the purpose of the mission to the appellant, yet when on their arrival in the appellant’s house they discovered that he was out, she sat patiently with Christiana Mensa until the appellant returned. And she sat by Christiana Mensa as the latter told the appellant that she was pregnant and had come to the appellant to cause abortion. Christiana Mensa further gave evidence, that Georgina Owusu Afriyie participated in bargaining with the appellant about his charges. Then again, there is the undisputed evidence that Georgina Owusu Afriyie accompanied Christiana Mensa on a subsequent date to the house of the appellant to give a cloth to him as security for the balance of the fees which had been demanded for the abortion. The first injection is alleged to have been given immediately the security was given. Cannot it be said upon this evidence that Georgina Owusu Afriyie was a “participant” in the crime of causing abortion? Even if her evidence that she did not at first know the purpose of their visit is believed, there is no doubt that she voluntarily accompanied Christiana Mensa to the appellant’s room. She heard all the criminal conversation between Christiana Mensa and the appellant, but neither did she protect nor dissociate herself from what was said. Indeed, she took part in the illegal bargaining for the fees charged, and she was anxious that the fees be fully paid or secured so that the abortion could take place. From all the circumstances, Georgina Owusu Afriyie must have known the nature of the offence that was about to be committed. Mere presence at the scene of crime without doing anything to prevent it is not by itself an offence. But voluntary presence at the scene of crime is some evidence upon which a jury might find that the accused was there with the intention to encourage the commission of the crime. In R. v. Coney (1882) 8 Q.B.D. 534 at p. 540, C.C.R. Cave J. said: “Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.” Hawkins J. also said at pp. 557-558:

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence,

[p.121] of [1971] 2 GLR 107 by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence, to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding, that he wilfully encouraged and so aided and abetted. But it would, be purely a question for the jury whether he did so or not.”

See also Wilcox v. Jeffrey [1951] 1 All E.R. 464, D.C.

Having regard to the part played by Georgina Owusu Afriyie, I think that the learned trial judge should have directed the jury that if after considering the evidence they thought that Georgina Owusu Afriyie was an accomplice, then they would not be entitled to rely upon her evidence as corroboration, because the evidence of one accomplice cannot corroborate the evidence of another accomplice. I have myself considered the evidence and I have come to the conclusion that Georgina Owusu Afriyie was so implicated in the criminal transaction that had the learned trial judge left to the jury to decide whether or not Georgina Owusu Afriyie was an accomplice, they would have had no difficulty in finding that she was an accomplice. The learned trial judge appears to have given the jury the impression that Georgina Owusu Afriyie was not an accomplice, and that they were entitled to rely upon her evidence if they thought that she was a truthful witness. I think, with respect, that the learned trial judge erred in failing to direct the jury to consider whether Georgina Owusu Afriyie was on the evidence an accomplice. Where in the summing-up matters are suggested as being corroborative which in fact are not, and there is in fact no corroboration at all, the conviction may be quashed on Appeal: In R. v. Charavanmuttu (1930) 22 Cr.App.R. 1, C.C.A. a case of indecent conduct, Lord Hewart C.J. said at p. 4:

“It was essential, therefore, that a proper warning should be given in regard to the necessity of corroboration of their testimony, if it was to be acted upon … It was necessary also that the jury should be warned of the danger of acting on their evidence in the absence of corroboration. A warning may be somewhat misleading and worse than useless if, afterwards, matters which are not really corroborative are treated as if they were corroborative in a case of this kind, where there was and is ground for suspicion that an untrue charge had been trumped up against the accused from interested motives. It was more than ever necessary that the law relating to corroboration and the exposition of the evidence said to be corroborative should be clear and sufficient.”

[p.122] of [1971] 2 GLR 107

Ama Owusuah could not be an accomplice by any circumstances, and counsel for the appellant has not suggested that she was. But to accept her evidence as corroborative of the evidence of Christiana Mensa, her evidence must be “clear and sufficient.”

The part of the evidence of Ama Owusuah on which the prosecution relied is where she alleged that the appellant told her, no doubt in the presence of Christiana Mensa and Georgina Owusu Afriyie, that he had caused abortion on Christiana Mensa by giving her injection. The appellant denied this, and neither Christiana Mensa nor Georgina Owusu Afriyie supported Owusuah’s evidence. Again, Ama Owusuah said under cross-examination that at the time she offered Christiana Mensa accommodation in her house she did not know that Christiana Mensa had caused abortion. This statement contradicted her evidence that the appellant had confessed to her that he had caused abortion on Christiana Mensa by giving her injections. Further, in her statement to the police during the investigation into this case she did not tell the police that Christiana Mensa had caused abortion. At the time of the trial the offence of abortion in this country was a very serious crime, and it carried the irreducible minimum sentence of ten years’ imprisonment with hard labour. In the light of my analysis of the evidence of Ama Owusuah, can it be said that “the exposition of the evidence said to be corroborative” is “clear and sufficient?” I think not. Moreover, it appears from the evidence that Ama Owusuah had her own purpose to serve by giving evidence against the appellant, and it is, therefore, essential that her evidence must be considered with some caution.

There is one other matter which weakens the case for the prosecution. The doctor could not find the cause of the abortion, and he thought it might have been due to natural causes. Nobody told him that Christiana Mensa had been given injections, not even Christiana Mensa herself, though she said the doctor specifically asked her what was wrong with her before she was treated. It seems incredible that if, indeed, the appellant had given Christiana Mensa injections which must have terminated her pregnancy, she would forget to tell the doctor about this fact.

On the second ground of appeal, counsel for the appellant referred us first to the passage in the summing-up in which the learned trial judge had told the jury:

“In the present case, the prosecution must prove that:

(1) certain means was used on the complainant, first prosecution witness,

(2) it was the accused who used the means,

(3) the accused used the means with the intention of causing abortion,

(4) the act of the accused was unlawful.”

But later in his direction, the learned trial judge further told the jury as follows: [p.123] of [1971] 2 GLR 107

“It is also not necessary to prove that the means used in fact caused the abortion. All that the prosecution need prove is that the person who used the means had the intent to cause the abortion. Proof of intent is therefore of the gravest importance in this trial.

It is the duty of the prosecution to prove its case beyond reasonable doubt. In doing so, the prosecution must adduce evidence to prove that the accused used means on the complainant with intent to cause abortion.” Counsel for the appellant, therefore, submitted that the learned trial judge misdirected himself when subsequently in his summing-up he told the jury that: “the law does not require that the prosecution must prove that the abortion was caused by the means used.” I do not think, with respect, that this criticism is well-founded, when the summing-up is considered as a whole. In my view, the “means used must be proved by the prosecution as laid down in section 59 of Act 29 where the woman or any person is charged with the substantive offence of causing abortion. “Means” in this section is the actus reus without which no offence can be committed, and may include the administration of some poison or other noxious or abortifacient substance, the use of instruments, manual interference and something, that is, in the common experience of mankind and in some reasonable degree, capable of producing the result: R. v. Linder [1938] S.A.S.R. 412 cited in Howard, Australian Criminal Law, p. 133. The “means” used may sometimes afford cogent evidence from which the criminal intention of the accused can be inferred. The intention of the accused to terminate a pregnancy is really the essence of the offence, and it is therefore not a complete defence that the means used could not in fact have terminated a pregnancy: see R. v. Spicer (1955) 39 Cr.App.R. 189. I think that it was this principle which the learned trial judge appears to have had in mind, when he directed the jury that the prosecution need not prove that the means used caused the abortion. An accused cannot escape punishment under section 58 of the Criminal Code once it is established that he had used means with intent to cause abortion, and it is irrelevant that the woman was not pregnant or that the foetus was dead at the time the act was committed.

The third ground of appeal combines the misdirection alleged in ground two, and a further misdirection by non-direction on attempt to cause abortion. The basis of this ground, as I understand it, is that failure by the learned trial judge to direct the jury fully on this second issue had occasioned a miscarriage of justice. In this case all that the learned trial judge told the jury was that if they were satisfied that the intent to cause abortion had been proved they would be justified under section 18 of the Criminal Code in convicting the appellant of attempt to commit the offence charged. With very great respect to the learned trial judge, I think that the relevant provisions are contained in section 153 of the Criminal Procedure Code, 1960 (Act 30). Section 153 reads:

“153. (1) When a person is charged with an offence, he may be convicted of having attempted to commit that offence although the attempt is not separately charged.

[p.124] of [1971] 2 GLR 107

(2) When a person is charged with an attempt to commit an offence and the evidence establishes the commission of the full offence, the accused may not be convicted of the full offence but may nevertheless be convicted of the attempt.”

In this case the crime charged was consummated, but the medical evidence left it uncertain whether it was the act attributed to the appellant that resulted in the consummation. The case for the prosecution was that the appellant gave Christiana Mensa four injections, and the direction given by the learned trial judge was that if the jury accepted that evidence then they could, having regard to the doctor’s evidence, convict the appellant of attempt to cause abortion. The learned trial judge did not however, explain to the jury what in law amounts to an attempt. In R. v. Cook (1963) 48 Cr.App.R. 98, C.C.A. Lord Parker C.J. said at p. 102 that:

“[W]hile in every case it is for the judge to rule whether there is any evidence capable of constituting an attempt, it is always for the jury to say whether they accept it as amounting to an attempt. That involves, of course, a careful direction in every case on the general principle with regard to what acts constitute attempts.”

The question now is: Had the appellant been deprived of a chance of acquittal which was fairly open to him? It is clear in section 59 (1) of the Criminal Code that what the law forbids is the “using of means with intent” to cause abortion. If it is proved that the accused used means with a purpose to cause abortion, and abortion is thereby caused, as explained in section 59 (2), then the accused will be guilty under section 58. Where on a charge under section 58 it is proved that the accused used means with a purpose to cause abortion, but that abortion did not take place, or that an abortion did take place, but there was no link between the means used and the resulting abortion, the accused will be guilty of attempted abortion within the provisions of section 153 of the Criminal Procedure Code. The present case falls within the latter class of cases, and this, in my view, is illustrated by the case of R. v. Spicer (1955) 39 Cr.App.R. 189. There, the accused was indicted for using means, namely, manual manipulation, with intent to procure miscarriage, contrary to section 58 of the Offences Against the Person Act, 1861 (24 & 25 Vict., c.100). The prisoner was asked by a woman who was two or three months advanced in pregnancy to help her, and inserted two fingers in her vagina, touching the womb and then told her that he thought he had “turned it.” Ten days later the woman suffered a miscarriage. Expert evidence was given to the effect that the acts of the prisoner had not caused the miscarriage and that such acts could not cause a miscarriage at that stage of pregnancy. The prisoner gave evidence admitting the acts which, he said, were not intended to procure a miscarriage, but had been done to give the woman confidence and satisfy his own curiosity. Finnemore J., in the course of his summing-up, said at p. 190:

“Whether this act does or does not produce a miscarriage does not matter. Whether it was a method which could or could not produce

[p.125] of [1971] 2 GLR 107 a miscarriage does not matter. The question is, what did he intend to do when he did the acts which were admitted by him in the witness box?”

The prisoner was convicted and sentenced to six months’ imprisonment for attempted abortion. In my opinion, there would, on the whole, be no miscarriage of justice in this case, if there was clear and unequivocal evidence that the appellant injected Christiana Mensa with the intention to cause abortion on her. As I have endeavoured to demonstrate earlier in this judgment, of the two witnesses, whose evidence the prosecution relied upon as corroborating the evidence of Christiana Mensa, one of them, Georgina Owusu Afriyie was an accomplice, and her evidence was, therefore, valueless in that respect. The portion of the evidence of Christiana Mensa that in fact required corroboration was that which alleged that the appellant gave her injections to cause abortion: and as was said in R. v. Baskerville (1916) 12 Cr.App.R. 81 at p. 91, C.C.A.:

“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it . . . It would be in a high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shews or tends to shew that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.”

Even if Georgina Owusu Afriyie was not an accomplice, her evidence could not corroborate the evidence relating to the injections, which is the crucial issue in this case, since, as the learned trial judge told the jury, she was not present at the time the injections were given. Further, there is no evidence that at the first meeting of the two young women with the appellant it was suggested that the abortion should be caused by means of an injection. Though the learned trial judge in his summing-up directed the jury’s attention to matters which appeared most favourable to the prosecution yet it does not, with respect, appear that he gave them any assistance towards making a critical assessment of the evidence on the material issue. In my view, it was the duty of the learned trial judge to point out to the jury the evidence capable in law of being corroboration, and it is for the jury to decide whether or not the evidence does amount to corroboration. The learned trial judge failed in this duty with respect to the evidence of Georgina Owusu Afriyie. It was also necessary for the learned trial judge to tell the jury what was meant by corroboration, though he was not required to refer to every piece of evidence capable of amounting to corroboration. He should in general have given a broad [p.126] of [1971] 2 GLR 107 indication of the evidence which the jury, if they accepted it, might treat as corroboration: see R. v. Goddard (1962) 46 Cr.App.R. 456, C.C.A. Again, the learned trial judge failed to do this. Had he performed this duty and left these matters to the jury to determine, they might well have come to the conclusion that the evidence of Georgina Owusu Afriyie who was an accomplice could not corroborate the evidence of Christiana Mensa. And if he had instructed the jury to apply their critical minds to the evidence of Ama Owusuah they might well have concluded that that evidence was not sufficient to corroborate the evidence of Christiana Mensa.

In view of the absence of any satisfactory evidence to corroborate the evidence of Christiana Mensa, I think it was incumbent upon the learned trial judge to direct the jury in such clear and simple language as would without any doubt impress upon them that in cases of this type it was really dangerous to convict on the evidence of the woman or girl alone. The judge should then go on to tell the jury that, bearing that warning well in mind, they had to look at the particular facts of the case and if, having given full weight to the warning they came to the conclusion that in this particular case the woman or girl without any real doubt was speaking the truth, then the fact that there was no corroboration matters not at all; they were entitled to convict the accused: see R. v. Manning (1968) 53 Cr.App.R. 150, C.A. It is not sufficient merely to tell the jury, as the learned trial judge appears to have done, that: “In law, it is unsafe to convict on the uncorroborated evidence of an accomplice.”

I think that the evidence relating to the injection, the crucial issue in this case, was so unsatisfactory that it is impossible for this court to say that the jury could, with proper directions, come to no other conclusion than that the appellant was guilty. As Winn L.J. said, when reading the judgment of the Court of Criminal Appeal in R. v. Richards [1967] 1 All E.R. 829 at pp. 831-832, where consideration was given to the applicability of the proviso to section 4 (1) of the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), which is similar to the proviso to paragraph 13 of the Courts Decree, 1966 (N.L.C.D. 84):

“[T]he test of whether the court should or should not apply the proviso . . . is the test laid down in Stirland v. Director of Public Prosecutions ([1944] 2 All E.R. 13; [1944] A.C. 315), that this court must make up its own mind whether, if the inadmissible evidence had not been before the jury and if a proper direction had been given to a jury whose mind had not been affected by any such inadmissible evidence, such a jury would without doubt have convicted. It is for this court to speculate what would have happened in the trial itself, what the jury which was charged with the decision in that case would or would not have done. It is not sufficient that this court itself should be clear that the appellant is guilty. The court has to apply the test which I have just enunciated and ask itself whether, on the two hypotheses stated and assuming an intelligent [p.127] of [1971] 2 GLR 107 and reasonable jury, this court can itself be sure that the appellant would have been convicted. The fact that the chances are very greatly in favour of that having happened in the present trial is in law beside the point.” After a very careful and anxious consideration of the whole evidence on the critical issue whether or not the appellant gave injections, I have come to the conclusion that this is not a proper case in which to apply the proviso to paragraph 13 of N.L.C.D. 84. I would, therefore, allow the appeal, and quash the conviction of the appellant, and set aside the sentence of ten years’ imprisonment with hard labour imposed by the learned trial judge.

DECISION

Appeal dismissed.

T. G. K.