ADDAI vs. THE REPUBLIC [1973] 1 GLR 312

CASES REFERRED TO

(1) Nyame v. The Republic [1971] 2 G.L.R. 140, C.A.

(2) R. v. Reynolds [1950] 1 K.B. 606; 66 T.L.R. (Pt. 1) 333; 114 J.P. 155; 94 S.J. 165; [1950] 1 All E.R. 335; (1951) 34 Cr.App.R. 60; 48 L.G.R. 239, C.C.A.

(3) Bediako v. The State [1963] 1 G.L.R. 48, S.C.

(4) Atiemo v. Commissioner of Police [1963] 1 G.L.R. 117, S.C.

(5) Yirenkyi v. The State [1963] 1 G.L.R. 66, S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered by Edward Wiredu J. sitting with a jury in the High Court, Cape Coast. The facts are fully set out in the judgment of Azu Crabbe Ag. C.J.

COUNSEL

Antwi Nimoh for the appellant.

Asamoah, Senior State Attorney, for the respondent.

JUDGMENT OF AZU CRABBE AG.C.J.

He delivered the judgment of the court. The appellant was convicted before Edward Wiredu J. in the High Court of Justice, Central Region, Cape Coast, on 9 July 1971, of the murder of a woman, Ama Jasiwah, and was sentenced to death.

The case for the prosecution can be briefly stated. On 20 December 1970 at about 3 o’clock in the afternoon, the dead body of the deceased was found by one John Kwame Boahin alias Kwaku Badu in the middle of a footpath in a bush at a village called Bethlehem, near Dunkwa, in the Central Region. The distance from this spot to the village was about one-and-a-half miles. Without closely examining the dead body, John Kwame Boahin immediately ran back to the village and made a report to the odikro of the village. He was accompanied to the scene in the bush by messengers of the odikro, and at this time he saw some wounds at the back of the neck of the deceased. One of these messengers, Augustin Kofi Edunyah, identified the body as that of Ama Jasiwah. The last person to see the deceased shortly before her dead body was discovered in the bush was one Abena Nina, a younger sister of the deceased. Abena Nina testified as follows:

“I know the accused. I remember the Sunday when I heard of the death of my sister. On that day I went to the scene of the incident. On the morning of that day I saw her before she left for the farm. That day too I saw the accused following my sister to the farm. The accused was carrying a cutlass and my sister too had her

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cutlass in her basket. I later saw the accused in the village. I saw the accused when I was sewing in the street coming from the farm carrying plantain in the basket. The accused then passed and went to his house. I later heard the accused telling his mother that he was leaving for Kumasi. The time was then about 2 p.m. I did not see the accused again that day. I later heard that my sister had been murdered. In the night of that same day round about 11.30 p.m. I went to the odikro to inform him that I suspect the accused to be responsible for the murder of my sister and so he should assist in tracing the accused. I suspected the accused because I saw him going to the farm with my sister.”

A report was subsequently made at the Diaso Police Station to Sergeant Emmanuel Omari Adofo. The sergeant was led to the scene of the crime, where he saw the deceased dead and lying across a footpath in a pool of blood. He examined the body and found one deep cut at the back of the neck. Together with Augustine Kofi Edunyah and Abena Nina, he attempted to trace the accused at the village of Dunkwa, but without any success. Detective Inspector Robert Annoh Ashong of the Dunkwa Police also inspected the scene with the sergeant, and at this time the dead body was conveyed to the Dunkwa hospital where a post-mortem examination was performed. Photographs were taken of the dead body, and these were tendered in evidence as exhibits Al and A2. The dead body was identified by Abena Nina as that of Ama Jasiwah, and, after the examination, the body was handed over to the relatives for burial. In the meantime Augustin Kofi Edunyah and one Boateng had gone to Kumasi to search for the appellant, who had been described to them by Abena Nina. They found the appellant in a cell at the Kumasi Zongo Police Station, and, with the assistance of one police officer, the appellant was escorted to Dunkwa. At the Dunkwa Police Station the appellant is alleged to have confessed that he was hired for a fee of N¢40.00 by Abena Nina to kill the deceased. The appellant was later on 27 December 1970, taken to the village of Bethlehem for investigation, and this is the evidence of Detective Inspector Robert Annoh Ashong, who led the investigating party:

“When we got to the house of the odikro, I asked him to get some men to assist in going to search for the cutlass the accused is alleged to have used and thrown into the bush. He granted my request and among the party was the third prosecution witness. There were two other constables in my company. The sixth prosecution witness was one of them. The accused led us to a spot in a bush about one and a half miles from the village and pointed out a spot where he alleged he threw the cutlass. We cleared the whole area but nothing was found there. The accused again led us to another place about 20 yards from where he pointed at first. At this place the accused pointed out two pieces of cloth which he alleged

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was the waist band he cut from the waist of the deceased. [Identifications la and lb identified by witness.

Witness tenders identification la and lb …. Admitted as exhibits B1 and B2.] I took possession of exhibits B1 and B2. At the start the accused told me he found ¢51.00 in exhibits BI and B2 and added this to ¢40.00 given to him by the third prosecution witness the previous day. Accused finally took us to the scene where the deceased was lying. We then returned to the village where the accused pointed out the fifth prosecution witness as Kojo Fordjour. I arrested the fifth prosecution witness. This visit was on 30 December 1970 and on 2 January the accused told me something as a result of which I released the fifth prosecution witness. On 8 January 1971 I took the accused to Kumasi. The accused took me to a certain tailor from whom we collected a pair of trousers which he bought with part of the money. I took possession of the trousers which I wish to tender in evidence. No objection [exhibit C.]. The accused told me that he bought a pair of shoes and socks. He was having these on so I impounded them. I wish to tender them in evidence. [No objection.

Shoes⎯exhibits Dl and D2. Socks—exhibits El and E2.] We later returned to Dunkwa. The accused further told me he gave ¢10.00 to one Adjua Bon. I contacted Adjua Bon and I collected same from her. I wish to tender the money in evidence. [No objection. ¢10.00 as exhibit F.] I also took an amount of ¢8.50 as a part of the money he took from the waist band which I wish to tender in evidence. [No objection. ¢8.50 exhibit G.] On 24 March, I charged both the third prosecution witness and the accused but in the district court, the third prosecution witness was discharged on grounds of insufficient evidence.”

The defence was an alibi. The appellant gave evidence and said that on the day in question he travelled to Kumasi between 7 a.m. and 8 a.m. for the purpose of doing his Christmas shopping. On the next day, i.e. 21 December 1970, he was at the market buying some yams, when he was identified by one Nimo to two policemen and was arrested and taken to the Zongo Police Station. From there he was taken to Dunkwa Police Station, and when asked whether it was he who had killed the deceased, he denied the accusation. The appellant gave evidence of how he was beaten by the police, and when one of the policemen told him that Abena Nina had given them information that he had killed the deceased he replied and said, “She told you I killed Gyasiwah, was she the one who engaged me to kill her?” After he had been threatened, he made a statement, later to be rejected at the trial, and he was taken to the scene of the crime. There the appellant said he was asked to show the spot where he had hidden the cutlass, but he denied having committed the murder. No cutlass was found, but the police, however, discovered exhibits B1 and B2 and accused him of having collected money from them.

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The case for the defence was rested upon two main grounds:

(1) Alibi.

(2) Denial of the statements alleged to have been made by the appellant at the scene of the crime.

“The appellant has now appealed to this court against his conviction for murder, and the sole ground of appeal is stated in these terms: “The verdict is against the weight of evidence or the findings of the court are not reasonable inferences from the facts established by evidence.”

This court had recently held in Nyame v. The Republic [1971] 2 G.L.R. 140, C.A. that it is not a sufficient ground of appeal merely to allege in the notice of appeal that the verdict is against the weight of evidence, and, accordingly, the court will disregard the first limb of the ground of appeal. In the opinion of the court, however, the second limb amounts to an allegation that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence, and it is to this part of the ground of appeal that the court asked counsel for the appellant to address himself.

We wish to say at once that we find no merit in the argument in support of this ground of appeal. We have examined with anxious care the whole evidence, and we are satisfied that the prosecution led sufficient evidence which, if believed, would justify the verdict of guilty by the jury.

But during the hearing of this appeal, we were attracted by two matters of importance to which we would like to advert. The first point we noticed was that on 31 May 1971, the first witness for the prosecution, the medical officer, who performed the post-mortem examination on the deceased, gave his evidence before the trial judge sitting alone. With respect to the learned trial judge, we consider this a very irregular and defective procedure. The proper procedure to be followed in a trial upon an indictment is as laid down in Part V (Trial on Indictment) of the Criminal Procedure Code, 1960 (Act 30), ss. 203-293. The appellant in this case was indicted upon a charge of murder, which, in this country, is punishable by death and is tried only by jury. The court before which an accused stands his trial cannot accept a plea of guilty in the case of an offence punishable by death: see section 119 (5) of the Criminal Procedure Code, 1960 (Act 30). And section 240 (1) of the Criminal Procedure Code states as follows: “If the accused pleads ‘not guilty’ or if a plea of ‘not guilty’ is entered, the Court shall proceed to choose jurors or assessors, as hereinafter directed, and to try the case.” The jurors, having been chosen, elect their foreman and are sworn to give a true verdict according to the evidence upon the issues to be tried by them. The accused is then given in charge of the jury, and the trial begins with the prosecutor opening the case against the accused and calling his first witness to give evidence in support of the charge. No witness can give evidence in a trial upon an indictment in a case triable by jury, unless the accused had earlier

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been put in charge of a jury empanelled in accordance with the provisions of Part V (Trial on Indictment) of the Criminal Procedure Code. In permitting the medical witness in this case to give his evidence before the jurors were chosen and sworn, the learned judge stated:

“Prosecution counsel informs court that Dr. Bentsi-Enchill who performed the post-mortem examination in this case is in court today and asks if his evidence could be taken in view of the fact that he had travelled all the way from Dunkwa and is likely to leave the country.

Kontoh for the accused has no objection.”

We appreciate the learned trial judge’s anxiety to avoid any inconvenience to the doctor, but this cannot, in our view, justify a departure from the statutory procedure, and we do not think that learned counsel for the appellant could waive compliance with the mandatory provisions under Part V of the Criminal Procedure Code. Apart from evidence on the question whether an alleged confession is admissible or not, the giving of evidence in a criminal trial in the absence of the jury should be regarded as most exceptional: see R. v. Reynolds (1951) 34 Cr.App.R. 60, C.C.A. Accordingly, we hold that the proceedings of 31 May 1971 were a nullity. The question that then arises is whether these void proceedings vitiate the conviction of the appellant. We do not think that they do. It has often been held by our courts that failure to prove the cause of death is not necessarily fatal to conviction, where there is sufficient evidence aliunde. In this case there is no doubt that the deceased, Ama Jasiwah, is dead, and that her dead body was discovered along a bush path with deep cut wounds at the back of the neck and lying in a pool of blood. The evidence that Ama Jasiwah died of cut wounds is so ample that an exclusion of the doctor’s evidence cannot, in our opinion, affect the strength of the prosecution’s case, neither do we think that references to his evidence in the summing-up had in the least occasioned a substantial miscarriage of justice.

The second point is that the learned trial judge altogether failed to put the case for the defence adequately and fairly before the jury, though he put the prosecution’s case fully and strongly. It has been held ad nauseam by the courts of this country that a judge in summing-up is bound to put to the jury the defence, however weak or stupid, and in some of the cases it had been held that failure to do so will lead to a conviction being quashed.

The main defence at the trial of this case was that the appellant was never at the scene of the murder and did not kill the deceased. The case for the prosecution was that the appellant had confessed to the killing to two of the prosecution witnesses. In his summing-up notes, the learned trial judge examined in great deal the evidence for the prosecution, but the notes show that with regard to the defence he, with all due respect, did no more than read the evidence of the appellant, which the jury had already heard. In Bediako v. The State [1963] 1 G.L.R. 48, S.C. the court said at pp. 50-51:

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“If an accused puts forward an alibi as an answer to a criminal charge, the accused is simply saying that whoever might have committed the offence, if it was committed at all, it was not he; and to support this he leads evidence that he was elsewhere at the material time. In effect, the accused is saying that the prosecution witnesses are mistaking him for the real perpetrator of the crime. It was therefore wrong for the learned circuit judge to exclude from his consideration the question of mistaken identity which was the crux of the case put up by all the three appellants. The defence of alibi is entitled to consideration, however weak, and nowhere in his judgment did the learned circuit judge direct himself that if the defence of alibi failed he must still consider the facts of the case on their merit. This, we thought, was a misdirection by non-direction, for had the learned circuit judge directed himself aright he would have discovered how unsatisfactory the case for the prosecution was.”

The case of Bediako v. The State (supra) was a summary trial, and in the opinion of this court it is not strictly relevant here where the trial was by jury: see Atiemo v. Commissioner of Police [1963] 1 G.L.R. 117, S.C.

In Yirenkyi v. The State [1963] 1 G.L.R. 66. S.C. a jury case, it was submitted on behalf of the appellant that once it was established that the effect of misdirection complained of was to prevent the jury from considering the case for the defence, the proviso could not in any circumstances be applied. After an exhaustive review of the authorities, the court brushed aside this submission, and stated at p. 75:

“The law, as we understand it, is that whatever the nature of the misdirection complained of (whether it be an omission by the judge to put the defence adequately to the jury or a misdirection on a point of law) if it can be predicted that properly directed the jury must have returned the same verdict, then, there being in that case no substantial miscarriage of justice, the appeal fails. See per Lord Atkin in Lawrence v. The King [1933] A.C. 699 at p. 707, H.L.”

The test, therefore, is whether this court is satisfied that, on the whole of the evidence, and with the correct direction, the only proper verdict would have been one of guilty. In this case, notwithstanding the appellant’s evidence that he was in Kumasi at the time of the killing, the prosecution first led circumstantial evidence to show that some few hours before the dead body of the deceased was discovered in the bush the appellant had been seen by a prosecution witness taking the same direction as the deceased into the bush. This witness was so placed that she could say that between the time that the appellant passed to the bush and the dead body of the deceased was discovered, she saw no other person pass in that direction. Secondly, there is evidence that upon being apprehended at Kumasi the appellant confessed that he had been hired by Abena Nina to kill the deceased; thirdly, there is evidence of the appellant’s confession to Detective Inspector Robert Annoh

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Ashong; and fourthly, the appellant’s conduct at the locus in quo. This court is satisfied that in view of the overwhelming nature of the evidence against the appellant, no substantial miscarriage of justice had been occasioned by the learned trial judge’s failure to direct the jury adequately on the appellant’s defence of alibi.

In the result, the conviction of the appellant must stand, and the appeal is accordingly dismissed.

DECISION

Appeal dismissed.

S.O.