AGYEMANG II vs. THE REPUBLIC [1993-94] 1 GLR 555

CASE REFERRED TO

(1) Kwesi v The Republic [1977] 1 GLR 448, CA.

(2) R v Storey [1968] Crim LR 387; 112 SJ 417; sub nom R v Storey (Stephanie); R v Anwar (Rashid)

(1968) 52 Cr App R 334, CA.

(3) R v Barbery (1976) 62 Cr App R 248, CA.

(4) R v Pearce [1979] Crim LR 658; 69 Cr App R 365, CA.

(5) R v Donaldson (1976) 64 Cr App R 59, CA.

(6) Fodwoo v Law Chambers & Co [1965] GLR 363, SC.

(7) State v Kassena (Ali) [1962] 1 GLR 144, SC.

(8) Kugblenu v The Republic, Court of Appeal, 5 September 1969, unreported; digested in (1969) CC 160.

NATURE OF PROCEEDINGS

APPEAL by the appellant against the judgment of the High Court, Kumasi dismissing his appeal from the decision of the trial circuit court overruling his submission of no case at the close of the case of the prosecution at his trial on a charge of stealing. The facts are sufficiently stated in the judgment of Forster JA.

COUNSEL

Paapa Dadson for the appellant.

Asare Bediako for the Republic.

JUDGMENT OF FORSTER JA.

The appellant, Nana Oppong Sarfo Agyemang II, is the chief of Bawere in the Ashanti Region. On 5 August 1991 he was arraigned before the Circuit Court, Kumasi on a charge of stealing “three wooden electric poles valued at ¢75,000, the property of Bawere citizens.” At the close of the case for the prosecution, learned counsel for the defence submitted that the accused person had no case to answer. In a very brief ruling, warranted of course by the simple nature of the case, the learned circuit judge held that the prosecution had made out a prima facie case against the accused. The appellant’s subsequent appeal to the High Court, Kumasi was dismissed. It is from the judgment of the appellate High Court that the appellant appealed to this court. On 4 March 1993 we dismissed this appeal and reserved our reasons and accordingly, we now give our reasons.

This being a second appeal, we are guided by Azu Crabbe CJ’s dictum in Kwesi v The Republic [1977] 1 GLR 448 at 452, CA. He said:

“On [a] second appeal, however, it becomes a question of law as to whether the first appellate court on approaching its task, applied or [p.557] of [1993-94] 1 GLR 555 failed to apply such principles. Of course, as second appellate court does not have to write a judgment in form appropriate to a court of first instance. It is enough, on questions of fact, if, after having itself considered and evaluated the evidence and having tested the conclusions of the trial court drawn from the demeanour of witnesses against the whole of their evidence, it is satisfied that there was evidence upon which the trial court could properly and reasonably find as it did.”

(The emphasis is mine.)

The single ground of appeal required us to determine whether as a result of cross-examination, the evidence of the prosecution witnesses could be said to be so manifestly unreliable that no reasonable tribunal could have found that a prima facie case had been established by the prosecution. In his submission, learned counsel for the appellant made reference to the applicant’s caution statement, exhibit B, in which he denied the charge of stealing. In view of the temptation to the defence in a criminal case to treat such ex curia self-serving statements as substantive evidence and, as worthy of consideration upon a submission of “no case”, we think it desirable that the evidential value of such a statement must be discussed here so that, hopefully, the misconception that it constitutes substantive evidence may be appreciated and avoided.

In considering the issue whether at the close of the case for the prosecution a prima facie case has been made against an accused, his extra-judicial self-serving statement which has been tendered by the prosecution is no evidence of the truth of the contents. Such a statement becomes relevant as substantive evidence, where the accused elects to give evidence and is cross-examined, as the case may be, by the prosecution: see R v Storey (1968) 52 Cr App R 334, CA; R v Barbery (1976) 62 Cr App R 248, CA and R v Pearce (1979) 69 Cr App R 365, CA.

The prosecution is not even bound to tender the self-serving statement of an accused person. Justice however requires that the prosecution should bring the statement to the notice of the defence, and, may, upon request, make it available to the defence. Even where the accused elects to give evidence the statement does not thereby become evidence of the truth of the facts; it goes only to the credibility of the accused, as showing consistency with the defence which he may raise. The statement, as was said by Widgery LJ in R v Storey (supra) at 337-338, is admissible,”… because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts.” And as equally stated in R v Donaldson (1976) 64 Cr App R 59, CA such a statement is:

[p.558] of [1993-94] 1 GLR 555

“… evidence in the trial in that it is evidence that the defendant made the statement and of his reaction which is part of the general picture which the jury have to consider but it is not evidence of the facts stated.”

If before 1 January 1976, we could have justified the application of the rule in our jurisdiction because: “…we cannot shut our eyes to the desirability of a homogeneous development and application of the law in two Commonwealth countries having cognate jurisprudence”, as was said by Apaloo CJ in Fodwoo v Law Chambers & Co [1965] GLR 363 at 374, SC we can now confidently apply the principle, since the enactment of the Evidence Decree, 1975 (NRCD 323). Section 118(4) of NRCD 323 which provides for the exclusion of such statement reads:

“(4) In a criminal action evidence of a hearsay statement made by an accused shall not be admissible under subsection (1) of this section when offered by the accused unless the accused is or will be a witness subject to cross-examination concerning the hearsay statement.”

Such self-serving statement therefore, whether tendered by or through the prosecution, is admitted conditionally. If the accused does not give evidence and thus deny the prosecution the opportunity of testing it for reliability, then the statement ceases to be admissible; even not for the limited purpose of credibility. Our law of evidence thus retains the common law position that in a criminal trial, a self-serving extra-judicial statement of the accused is irrelevant when the court is determining whether a prima facie case has been established by the prosecution, for at that stage the statement has not been tested by cross-examination of the author.

In determining this appeal therefore, the only relevant material is the evidence of the prosecution witnesses, excluding the accused’s statement—exhibit E. The material prosecution witnesses were the first, second and third prosecution witnesses. The first prosecution witness was the chairman of the town development committee of Bawere. He told the court that in 1987 the people made financial contributions towards an electrification project and he, as the chairman of the town development committee, kept the amount. He subsequently bought ten wooden electric poles at the Ejisu Junction at ¢25,000 each. He said: “…the day I bought the poles was Tuesday. They were at the roadside intended to be conveyed to Accra but the vehicle had developed a fault. I do not know the name of the driver who sold the

[p.559] of [1993-94] 1 GLR 555 poles to me. There was no vehicle around. The driver gave me exhibit A, waybill. The waybill was given to me the very day I paid him on the spot. I was on my way to Accra.”

It was the second prosecution witness, the chairman of the CDR, who was given the waybill to collect the poles. He said in his evidence that he was told by the first prosecution witness that somebody was guarding the poles at the junction and that if he produced the waybill the person would release the poles to him. He signed the customer’s portion on the waybill and collected the poles in Baware. In cross-examination, he said the first prosecution witness told him that he used the Oman money to buy the poles. The third prosecution witness was the driver who was hired by the appellant to convey three poles to the Ejisu Junction, came to report to the appellant. The three poles had not been recovered as at the time of trial.

The question that falls for determination in this appeal is whether at the close of the prosecution’s case the trial judge erred when he ruled that a prima facie case had been proved by the prosecution. In terms of section 173 of the Criminal Procedure Code, 1960 (Act 30), in summary trials:

“173. If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.”

(The emphasis is mine.)

The function of a trial judge in this regard was succinctly stated by the Supreme Court in the case of State v Ali Kassena [1962] 1 GLR 144 at 149, SC. The court said:

“It is for the judge in a summary trial to weigh the evidence and then decide whether from the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if uncontradicted will justify a conviction.”

The duty of the trial judge in considering a submission of “no case”, is first to satisfy himself whether or not the evidence led by the prosecution could be said to have proved all the essential elements of the offence charge. If he so finds for the prosecution, he must next decide whether the evidence is not inherently weak, and therefore unreliable. The consideration of the quality of the evidence necessarily involves the view the judge takes of the demeanour of the witnesses; how well they stood up in cross-examination. If the strength of their evidence was so sapped,

[p.560] of [1993-94] 1 GLR 555 as a result of cross-examination, as to render the evidence weak and unreliable, then the judge has to conclude that the evidence of the prosecution lacked probative force as to convince. If however, the evidence is left unshaken by cross-examination, then the judge would be justified in calling upon the accused. At that stage of the trial the evidence would be “uncontradicted” because no such evidence would have been forthcoming from the defence, and even where there is a self-serving denial, as has been discussed supra, that is not evidence for consideration in determining whether a prima facie case has been made by the prosecution.

Counsel for the appellant contends in this appeal that the evidence of the first and second prosecution witnesses, as regards the purchase of the ten electric wooden poles, was inconceivable. He thinks it a strange coincidence that the driver of the broken down vehicle on which the poles had been loaded would readily have had on him a waybill and stamp by which he could have issued the waybill covering the purchase of the poles. There was however no evidence contradicting the testimony of the first and second prosecution witnesses, nor were these witnesses in any way shaken is cross-examination. Their demeanour must have impressed the trial judge and we are in no position to determine otherwise.

The strictures made by counsel as regards the genuineness of exhibit A cannot reasonably arouse the least suspicion that it was fictitious, and, the more so, in the teeth of overwhelming evidence that the poles were actually purchased by the first prosecution witness and carted away later to the town by the second prosecution witness.

Counsel submitted finally that it was not possible for the accused to have loaded away three of the poles belonging to the people of Bawere, and with the assistance of some of the very inhabitants who were asked by the accused to load them unto the vehicle. The force of this submission cannot stand critical examination. There was no evidence that these loaders knew of the ownership of the poles. In any event, the accused was their traditional overlord and I cannot conceive any protestation from these subjects who helped with the loading, for they could not have had any cause to impute any impropriety or fictitious intention to their chief, the appellant.

The accused’s defence may be deduced from the following extract of the cross-examination of the first prosecution witness: “I insist that I bought ten poles. I deny that the accused bought the ten poles in my presence. I do not know the accused bought the poles for ¢130,000.”

The extract seems to suggest that the appellant bought the poles in the presence of the first prosecution witness. This indeed was a very

[p.561] of [1993-94] 1 GLR 555 significant issue, but in the absence of evidence form the defence in proof of this proposition, the denials of the first prosecution witness were the only evidence in proof of those matters: see Kugblenu v The Republic, Court of Appeal, 5 September 1969, unreported; digested in (1969) CC 160. These crucial matters must be proved by the appellant.

It is for these reasons that we dismissed the appeal.

JUDGMENT OF AMUAH JA.

I agree .

JUDGMENT OF BROBBEY JA.

I also agree.

DECISION Appeal dismissed.

D R K S