AGOGROBISAH vs. THE REPUBLIC [1995-96] 1 GLR 557

CASES REFERRED TO

(1) State v Yao Boahene [1963] 2 GLR 554.

(2) Atiemo v Commissioner of Police [1963] 1 GLR 117, SC.

(3) R v Barnes [1940] 2 All ER 229; 27 Cr App R 154, CCA.

(4) Badmos v Commissioner of Police (1948) 12 WACA 361.

(5) R v Grunshie (Abisa) (1955) 1 WALR 36.

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

(7) Commissioner of Police v Afari [1962] 1 GLR 483, SC.

(8) Donkor v The State [1964] GLR 598, SC.

(9) Biney v The Republic [1972] 2 GLR 229.

(10) Yeboah v The Republic (Consolidated) [1972] 2 GLR 281.

(11) State v Otchere [1963] 2 GLR 463.

(12) R v White (1823) R & R 508 CCR.

(13) Kanu v R (1952) 14 WACA 30.

(14) Koranteng v The Republic, Court of Appeal, 19 July 1968, unreported; digested in (1968) CC 151.

(15) People v Kojo Chuchulugah, Central Regional Public Tribunal, Cra 79/91, unreported.

(16) Attorney General v Birmingham Tame and Rea District Drainage Board [1912] AC 788; 82 LJCh 45, HL.

(17) Boahene v The State [1965] GLR 279, SC.

(18) Republic v Dapaah [1968] GLR 513.

[p.561] of [1995-96] 1 GLR 557

NATURE OF PROCEEDINGS

APPEAL against the decision of the National Public Tribunal convicting and sentencing the appellant and another to death by firing squad for conspiracy to rob and robbery. The facts are sufficiently stated in the judgments of Baddoo and Acquah JJA.

COUNSEL

I B Benson for N Y Agbesi for the appellant.

Stephen Teye, State Attorney, for the Republic.

JUDGMENT OF BADDOO JA.

This is an appeal against the judgment of the National Public Tribunal sitting at the old State House, Accra on 9 January 1991. In that judgment, the appellant and another accused person were convicted of conspiracy to rob and robbery and sentenced to death by firing squad.

The facts of the case as set out by the prosecution witnesses were that the first accused person, Clement Yaw Akonor, and the appellant herein, Evans Agogrobisah, were friends. On 6 August 1990 the two in the company of a lady who has remained a mystery up till now, stopped a taxi cab No ACB 8643 at a Madina bus stop and requested to be conveyed to Adukrom-Akwapim in the Eastern Region on “a dropping” basis, which to the Ghanaian travelling public means a contract to convey the passengers to a specific destination without picking other passengers.

The agreed fare for the journey was ¢4,000. The first accused person who has not appealed in this case, sat in the front seat with the driver of the vehicle who was the first prosecution witness at the trial. The appellant and the mystery lady shared the back seat. When they got to Adukrom, the first accused person left the vehicle to consult his supplier, whom he was informed had gone to a nearby village. He pleaded with the driver, the first prosecution witness to take them to the nearby village, but the driver was reluctant, because the contract was for “dropping” at Adukrom.

After much persuasion, the driver agreed to take them to the village, being assured of his own safety by the presence of the mystery lady in the vehicle. After they had travelled on a dusty road towards the village for a while, the first accused requested the driver to stop to enable him urinate. He boarded the vehicle after having done so and the vehicle moved on. But shortly after the vehicle had moved, he ordered the driver to stop. Before the driver could obey, he pulled a [p.562] of [1995-96] 1 GLR 557 pistol from his pocket and pointed it at him. The driver, the first prosecution witness, stopped the vehicle, removed the ignition key and attempted to throw it away to prevent the first accused from taking possession of the vehicle. The first accused hit his arm and the ignition key fell on to the floor of the vehicle in front of the driver. A struggle thereafter ensued between the first accused and the driver over the possession of the ignition key. In the course of this struggle, the first accused spat pepper into the eyes of the driver, thereby blinding and disabling him completely. He was dragged out of the vehicle and thrown into a gutter. All this while the appellant and the mystery lady sat at the back of the vehicle impassively watching the proceedings, without intervening.

The vehicle was then driven off by the first accused person, while the driver remained in the gutter crying till he was rescued by some passengers who arrived on the scene in a Bedford truck. He was conveyed to the Adukrom office of the drivers’ union, where he reported the incident to the officials of the union, who subsequently accompanied him to the police station at Adukrom to lodge a complaint and later at the Mampong Akwapim Police Station. The matter was later reported to the National Police Headquarters in Accra and a search was mounted to recover the stolen vehicle and bring the accused persons to book.

On 10 August 1990 the police at Saltpond received information that the taxi cab with registration No ACB 8643 was parked in a house near the Government Hospital at Saltpond. Three policemen including the fourth prosecution witness went to the said house to impound the vehicle. They saw the first accused standing by the vehicle in the house. As soon as the police got within talking distance, the first accused shouted that the police vehicle was on fire. When the police turned to look at the “flaming vehicle” the first accused jumped into the stolen taxi and sped away, damaging the police vehicle and immobilising it in the process. The fourth prosecution witness who was armed with a rifle, fired at the escaping taxi, and managed to hit one of its tyres causing it to burst. The first accused nevertheless drove away with the burst tyre, until he abandoned it at a place in Saltpond. The police conveyed the stolen vehicle to Saltpond and continued to search for the first accused person.

In the course of the investigation the third prosecution witness, the

[p.563] of [1995-96] 1 GLR 557 tufuhene of Saltpond, in whose house the stolen vehicle was parked, was interrogated and he identified the first accused person to the police as Clement Yaw Akonor. The police intensified their search for the first accused person around Saltpond, but to no avail. Finally, the third prosecution witness who had been contracted by the first accused for assistance to escape from Saltpond, alerted the police of the presence of the first accused person in the area. With his assistance and collaboration, the first accused person was arrested, when he was being driven to Mankesim from Saltpond by the third prosecution witness.

Upon interrogation the first accused person confessed that he and the appellant robbed the first prosecution witness of his vehicle at Adukrom and that the pepper which was spat into the eyes of the first prosecution witness was provided by the appellant. The first accused person led the police to arrest the appellant at his residence at Alajo, Accra. The two were then charged with conspiracy to rob and robbery and put before the National Public Tribunal. They were tried and convicted of conspiracy to rob and robbery. The first accused person has not appealed against his conviction and sentence. But the appellant filed an appeal against his sentence only on 26 January 1991. When counsel for the appellant came to argue his appeal on 24 January 1995, the case was adjourned to 25 January 1995. Counsel filed additional grounds of appeal in which he now appealed against the judgment and the conviction as well.

Leave was granted counsel to argue the appeal as amended by him in the interest of justice. Mr Nelson Agbesi, counsel for the appellant, argued that there was no evidence to show that the appellant took part in the act of robbery. He submitted that the evidence of the first prosecution witness was that it was the first accused person who pulled the gun, spat into his eyes and pushed him from the vehicle. The appellant did not have anything to do with the robbery. He submitted further that the appellant did not commit any offence when he failed to report the incident to the police after he had got back from Adukrom. He submitted that the statements obtained from the appellant was contrary to the Evidence Decree, 1975 (NRCD 323) and should not have been admitted in evidence. He submitted that the tribunal was inpatient with the appellant and therefore failed to consider the defence being put up by him.

On these grounds counsel submitted that the conviction of the

[p.564] of [1995-96] 1 GLR 557 appellant should be set aside. But if the court should hold that the conviction was valid, he would submit that the sentence was harsh and unreasonable and should be set aside. He urged the court to impose a term of imprisonment, instead of death by firing squad.

Counsel for the Republic, Mr Charles Quist, State Attorney, submitted that there was evidence to sustain the charges against the appellant. He submitted that the statement of the appellant, exhibit C, showed that the two accused persons set out from Madina with the sole aim of committing robbery to improve their finances. The evidence showed that the two were acting together in all the circumstances. He submitted that the presence of the appellant while the robbery took place, showed that he was a participant. He cited the case of State v Yao Boahene [1963] 2 GLR 554 to support his submission. On the sentence, counsel for the Republic submitted that the sentence was imposed in accordance with section 16 of the Public Tribunals Law, 1984 (PNDCL 78) and therefore was proper.

An appeal is not a retrial. Therefore where the trial court had made findings of facts, based on the evidence and the credibility of the witnesses, an appellate court will not disturb such findings. So in Atiemo v Commissioner of Police [1963] 1 GLR 117, SC the Supreme Court, with Adumua-Bossman JSC presiding, held, among other things, that, “If there is evidence before the trial judge which he accepts to found a conviction, an appeal court will not interfere with that conviction.” Here in this case, was there any evidence upon which the trial tribunal could found a conviction? Let us examine the evidence.

The evidence of the first prosecution witness, the driver who was directly affected by the robbery, is a direct evidence of what took place. He said that the first accused person and the appellant, in the company of a lady chartered his taxi cab No ACB 8643 from Madina to Adukrom on 6 August 1990. He charged them ¢4,000. The first accused sat with him in the front of the taxi cab, while the appellant and the lady shared the back seat. When they got to Adukrom, the first accused pleaded with him to take them further to a nearby village. The first prosecution witness reluctantly agreed and they set off to the village. On the way the first accused requested the driver to stop to enable him urinate. The driver did and the first accused got down and urinated. He boarded the vehicle again and they proceeded on the journey.

[p.565] of [1995-96] 1 GLR 557

Shortly after the vehicle had moved, the first accused ordered the driver to stop. Before the driver could do so the first accused pulled a pistol from his pocket and pointed it at the driver. The driver stopped the vehicle, removed the ignition key and attempted to throw it away to prevent the first accused from taking possession of the vehicle. The first accused hit his arm and the key fell on the floor of the vehicle in front of the driver. There ensued a struggle between the first accused and the driver over the possession of the key. In the course of the struggle, pepper was spat into the eyes of the driver by the first accused person, and he was blinded and disabled. He was dragged out of the vehicle and thrown into a gutter. The vehicle was then driven off by the first accused, with the appellant and the lady still sitting at the back of the taxi cab having watched the proceedings without the slightest intervention. The first prosecution witness was rescued by some passengers who arrived on the scene in a Bedford truck. Later, a report was made to the police at Adukrom, then Mampong-Akwapim and subsequently at the National Police Headquarters in Accra.

So far, this is the evidence which the driver gave which affects the appellant. The sum total of his evidence was that the appellant was present when the robbery was committed but did nothing to prevent it, nor did he make a report to the police after the robbery. Counsel for the appellant had submitted that this piece of evidence standing alone, could not sustain a charge of conspiracy against the appellant, because he did not do anything.

But the evidence of the first accused person was that the appellant provided him with the pepper which he spat into the eyes of the driver. This piece of evidence, if admissible, will connect the appellant to the charge of conspiracy. However, counsel for the appellant had submitted that since the first accused person and the appellant were participes criminis, the evidence of the first accused that the pepper he spat into the eyes of the driver was supplied by the appellant, must be corroborated. That since there was no corroboration, the court should reject that evidence.

I do not think we need corroboration of this evidence. In the case of R v Barnes and Richards (1940) 27 Cr App R 154, CCA, the court held as follows:

“Where prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the

[p.566] of [1995-96] 1 GLR 557 prisoner who has given the incriminating evidence is not placed in the position of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case. The rule applies only to witnesses called for the prosecution.”

Again in the case of Badmos v Commissioner of Police (1948) 12 WACA 361, the West African Court of Appeal held as follows:

“An accused person who gives evidence which incriminates a co-accused is not an accomplice of the co-accused, and though such evidence should be suspiciously regarded and cautiously accepted, it does not require corroboration.”

The first accused person did not give evidence for the prosecution. He went into the witness-box and testified on his own behalf. If his evidence incriminated the appellant, it will be treated like any other evidence, and not as the evidence of an accomplice which must be corroborated. Thus the testimony of the first accused that the appellant provided him with the pepper which he spat into the eyes of the driver, is evidence which connects the appellant with the crime of conspiracy to commit robbery. The failure or refusal of the appellant to report the robbery to the police after he had left the first accused person, at Mamfe, can also constitute corroboration, if indeed corroboration was needed in this case.

On the question of the tribunal failing to consider the defence of the appellant, I will refer to the passage in the record of proceedings where the tribunal said:

“Without doubt the admissions of accused persons have reduced the issues in controversy in the case to a broad one of determining whether or not the second accused was involved in the conspiracy that terminated in the seizure of the vehicle. This is so because the incident described by the first prosecution witness and materially corroborated by the second accused and subsequently by the first accused constitutes in law, nothing but conspiracy to rob and robbery and as the first accused admits participation in their commission, his fate is settled, at least, in so far as the substantive offence of robbery is concerned. That is why it is only left to be decided whether the conduct of the second accused in its totality

[p.567] of [1995-96] 1 GLR 557 falls within or outside the confines of the law on conspiracy and robbery as defined in the Criminal Code, 1960 (Act 29).”

The tribunal then went on to consider the defence of the second accused now the appellant, and came to the conclusion that he was not speaking the truth when he denied his involvement in the crime. I find that the defence of the appellant was adequately considered by the trial tribunal.

The next matter to be considered is the statements made by the first accused person and the appellant. These two statements form part of the case for the prosecution and the trial court was entitled to look at the statements in order to arrive at a decision whether the charge of conspiracy has been proved. With regards to the first accused person, his first statement was taken on 16 August 1990. This was his investigating cautioned statement. He never objected to it. In that statement, he explains how the whole operation was conceived and carried out by the two. When he was charged on 27 August 1990 he made another statement in which he said he relied on the statement he made on 16 August 1990. However, he objected to this statement on the ground that he was promised that nothing consequential would come out of the matter. But this statement which was objected to did not contain anything which incriminated the second accused person. The trial tribunal overruled the objection and rightly so, I think.

With regards to the appellant, he also made an investigating cautioned statement on 16 August 1990. He never objected to it when it was being tendered. The statement is marked C. When the prosecution sought to tender the charge statement the appellant objected to it on the grounds that he did not speak Twi fluently and that he was beaten. Then he went on to say that the only portion of the statement he objected to was the portion which said that he passed on the pepper to the first accused. The tribunal therefore found as a fact that the appellant did not object to the whole statement, but the portion which said that the appellant passed the pepper to the first accused which was spat into the eyes of the driver.

It must be noted however that the second statement which was objected to did not contain any material which affected the appellant. The statement merely said that he relied on his former statement of 16 August 1990. But even if the portion objected to by the appellant is removed from the statement, the rest of the statement showed that the appellant did agree with the first accused person to go on that journey

[p.568] of [1995-96] 1 GLR 557 to commit an offence.

It was also argued that since the statement of the appellant dated 16 August 1990 amounted to a confession, it should not have been admitted because it did not comply with the provisions of section 120 of NRCD 323. Now section 120(2) and (3) of NRCD 323 provides as follows:

“(2) Evidence of a hearsay statement shall not be admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness (other than a police officer or member of the Armed Forces) approved by the accused.

(3) The independent witness must be a person who— (a) can understand the language spoken by the accused;

(b) can read and understand the language in which the statement is made; and where the statement is in writing the independent witness must certify in writing that the statement was made voluntarily in his presence and that the contents were fully understood by the accused.”

Subsection 2 has been amended by the Evidence and Criminal Procedure (Amendment) Decree, 1979 (SMCD 237) so that members of the armed forces can now act as independent witnesses. The cautioned and charge statements made by the first accused person and the appellant were witnessed by an independent witness by name Owusu Boateng. He made a certificate as follows:

“I Owusu Boateng of house No C536/7 Kpehe, Accra hereby certify that I was present when correct statement was made by suspect Evans Agogrobisah. He made it of his own will.”

Admittedly, this certificate does not fully comply with what NRCD 323 requires. It omitted the magic words—”and that the contents were fully understood by the accused.”

But the test of admissibility of a statement is the voluntariness. So in R v Abisa Grunshie (1955) 1 WALR 36, the third headnote reads:

“Where police take a voluntary statement from a prisoner it is desirable for them, particularly for a confession statement in a

[p.569] of [1995-96] 1 GLR 557 murder case, to require the presence of an independent civilian witness who understands what is being said and who is present throughout the time the statement is being taken. The civilian witness should sign the statement, as a witness, on its completion.”

So once the independent witness had certified that he was present when the statement was made, and that it was voluntary, I do not think the statement should be rejected because the certificate omitted to say that “the contents were fully understood by the accused.” Particularly when the person making the statement did not object to the statement. In my view, the trial tribunal was justified in admitting the statements in evidence and acting upon them in addition to the evidence of other prosecution witnesses.

But putting aside the two statements of the appellant, I shall still hold that there is sufficient evidence on the record to sustain a charge of conspiracy to rob against the appellant. I agree with the trial tribunal when it said:

“For if he (the appellant) were innocent as he claims, he could not have remained comfortably glued to his seat on the vehicle while a struggle ensued between his friend and the first prosecution witness when from all intents and purposes, the conduct of the first accused was completely outside the terms upon which he allegedly abandoned his work for the day and accepted to accompany his friend on the trip.”

For these reasons, I find that there was evidence before the tribunal to support the conviction of conspiracy to rob against the appellant. I will dismiss the appeal against the conviction filed by the appellant.

On the question of sentence, I agree with learned State Attorney that robbery is a serious offence which must be dealt with severely. However, in this case, no one received any serious physical injuries and the taxi cab had also been recovered. I consider the sentence of death by firing squad to be harsh in the circumstances. I shall therefore substitute a sentence of imprisonment for life. The appeal against the conviction is accordingly dismissed, while the sentence is reduced to life imprisonment.

JUDGMENT OF AMUAH JA.

The whole statement, exhibit C, made by the

[p.570] of [1995-96] 1 GLR 557 appellant was admitted in evidence without objection and by this, the voluntariness of the statement and its contents were established beyond doubt. In exhibit D, the charge cautioned statement, the appellant however retracted that portion of exhibit C relating to his participation in throwing pepper into the eyes of the complainant.

In any case, the portion of exhibit C which stands unrestricted reads as follows:

“He suggested that the quickest way to solve the financial position was to enter into robbery business. He persistently convinced me that we should both together operate and I agreed. He told me that the simplest way is car snatching and as he is a driver himself he would find no difficulties to operate. . .”

The appellant is giving evidence about himself and the principal offender, the first accused, and this is the best evidence that the prosecution can tender in situations of this sort where agreements are made in secret. The principal offender committed the offence of robbery contemplated, upon a person chosen by them. The principal offender did not go beyond the terms of the common purpose agreed upon and the appellant as an accessory is liable.

As they sat in the vehicle to travel to Akwapim area the jury must be directed to take into account what should have been forseen by an ordinary person as a highly probable consequence of what he (the appellant) advised and agreed upon. He wanted to see up to the end the action taken and took the necessary steps to see that it was carried out under his auspices. He pursued the commission of the crime and gave support. He provided a reservoir into which the principal offender could dip his bucket for assistance when all failed. We must not forget that the principal offender was tried and convicted.

I now come to the nature of the agreement, which I consider essential. This sort of meeting must be distinguished from one where there was a discussion or negotiation; there was an agreement to achieve an unlawful act. The offence is complete as soon as the agreement is made and as the statutory definition of the offence of conspiracy stands once the agreement is proved, later repentance, stopping, being prevented or failure is irrelevant. I am of the same opinion that the appellant is guilty on both counts as he actively participated in the commission of the offence, under his auspices.

[p.571] of [1995-96] 1 GLR 557

JUDGMENT OF ACQUAH JA.

It is unfortunate that I have not been able to come to the same conclusion with my noble lords in this appeal. But I take consolation in the fact that it is through such disagreements that the law develops.

The brief facts of the case are that on 5 August 1990 one Clement Yaw Akonor accompanied by the appellant hired a taxi cab No ACB 8643 from Accra to Adukrom to collect goods from a friend. At Adukrom Akonor got down to go for his friend. He returned about thirty minutes time to inform the driver that his friend had gone to a nearby village and therefore would like the driver to take them to that village. The driver obliged and moved on. He was directed by Akonor to turn into the Koforidua road. After driving for about a mile, Akonor asked the driver to stop for him to urinate. He stopped and Akonor got down to urinate. He came back. The driver took off and not long thereafter Akonor ordered him once more to stop. He did and attempted to remove the ignition key but Akonor pulled out a pistol and a struggle ensued between the driver and Akonor in which the latter spat pepper into the driver’s eyes. The driver was pulled out and the taxi driven away. A report was made to the police and in a week’s time the vehicle and Akonor were arrested in Saltpond and brought to Accra. Akonor mentioned the appellant as his accomplice, and the latter was arrested the following day.

They were then charged before the National Public Tribunal with the following offences: “COUNT ONE Conspiracy to commit crime, contrary to section 23(1) of the Criminal Code, 1960 (Act 29) and section 16 of the Public Tribunals Law, 1984 (PNDCL 78).

PARTICULARS OF OFFENCE Clement Yaw Akonor, a trader, Evans Agogrobisah, an electrician. On or about 6 August 1990 at Accra agreed together with a common purpose to commit a crime, namely robbery.

COUNT TWO Robbery, contrary to section 149 of the Criminal Code, 1960 (Act 29) and section 16 of the Public Tribunals Law, 1984 (PNDCL 78).

[p.572] of [1995-96] 1 GLR 557

PARTICULARS OF OFFENCE Clement Yaw Akonor, a trader and Evans Agogrobisah, an electrician. On or about 6 August 1990 at Adukrom, Akwapim in the Eastern Region robbed one Samuel Ago Sowah of a Madza Taxi Cab with registration No ACB 8643.”

At the trial, the prosecution called four witnesses including the driver of the taxi, Ago Sowah. He testified as the first prosecution witness and narrated the events as I have set out and added that there was a lady with the two accused persons. He also explained that Akonor sat in front of the taxi while the lady and the appellant sat at the back. He said it was because of the presence of the lady that he entertained no fears when he was asked at Adukrom to take them to the village. He went on that the lady and the appellant sat at the back seat throughout the whole episode and merely watched the proceedings. And even when pepper was spat into his eyes and he could therefore not see, he was sure that it was one person who pulled him out of the vehicle.

The second prosecution witness was Detective Corporal Gyasi who investigated the case and took statements from both accused. He made it clear that he arrested the appellant when he was mentioned by Akonor as his accomplice. He tendered the cautioned and charge statements of both accused in evidence. The third prosecution witness was Nana Kwaa Paako III in whose house in Saltpond the vehicle was hidden by Akonor. He also assisted the Saltpond police in arresting Akonor with the taxi. Not a word of his evidence related to the appellant. The fourth prosecution witness is Detective Constable Prince Adu Fokuo of the Saltpond police. He narrated how the Saltpond police tracked down Akonor and arrested him together with the taxi. Like the third prosecution witness, the fourth prosecution witness’s evidence did not affect the appellant.

In his defence, Akonor, the first accused, said that the vehicle came into his possession through a genuine transaction with the taxi driver, the first prosecution witness. He said he agreed with the first prosecution witness to let him Akonor have control and drive the taxi for his business for four days at a fee of ¢100,000. And that following this agreement, the first prosecution witness even gave him ¢3,000 to buy fuel. Thus quite contrary to the contents of his cautioned statement, exhibit A, that the whole robbery was a planned one between

[p.573] of [1995-96] 1 GLR 557 him and the appellant, he now alleges it was a genuine transaction between the first prosecution witness and himself.

The appellant in his defence virtually confirmed the first prosecution witness’s evidence about how the first accused robbed the first prosecution witness of the taxi. He concluded his evidence by saying that because he was not happy with what the first accused did, he alighted at Mamfe and found a vehicle to Accra. He said he could not report to the police because he did not know the number of the taxi. He denied any involvement in the offence.

In their judgment, the trial tribunal found that the charge against both accused had been proved, and therefore convicted and sentenced them to death by firing squad. In respect of the appellant, the tribunal held that his alighting at Mamfe in protest against what the first accused did was not enough to establish his innocence. They took the view that he should have gone further to report to the police or any relevant body.

It is against this conviction and sentence that the appellant has appealed on the grounds that: “(1) Under all the circumstances of the case the verdict is unsafe and unsatisfactory; and (2) the trial tribunal failed to consider the defence of the appellant fairly and adequately.” Now the gravamen of the appellant’s submissions ably presented by Mr Nelson Agbesi, are that the judgment of the trial tribunal is unsafe and unreliable because exhibit C is inadmissible for its non-compliance with section 120 of the Evidence Decree, 1975 (NRCD 323). Furthermore, the finding of the tribunal on the appellant’s guilty knowledge is not only erroneous but unsupported by the record. For the tribunal failed to consider the appellant’s defence and that if this had been done, they would have come to no other conclusion but that the appellant did not conspire with the first accused. Accordingly, relying on State v Ali Kassena [1962] 1 GLR 144, SC he prayed that his client be acquitted and discharged.

The learned State Attorney, Mr Charles Quist, in his submission did not reply to Mr Agbesi’s attack on the inadmissibility of exhibit C. Rather he assumed the validity of exhibit C and submitted that having regard to section 23(1) of the Criminal Code, 1960 (Act 29) exhibit C clearly shows that the appellant is a willing participant and therefore a conspirator. On the appellant’s innocence, he argued that in the offence of conspiracy it is immaterial that after the act, one of the parties countermanded. And therefore the appellant’s coming down from the

[p.574] of [1995-96] 1 GLR 557 vehicle at Mamfe does not absolve him. He argued that exhibit C clearly shows the extent of the appellant’s involvement in the whole incident. He buttressed his submissions with Commissioner of Police v Afari [1962] 1 GLR 483, SC.

Now, since the promulgation of the Courts Act, 1971 (Act 372) wherein section 26 thereof set out the principles governing the determination of criminal appeals, the overriding consideration in allowing appeals is whether or not from the totality of the evidence of the prosecution and the defence, the point raised on appeal, granting it is valid, has occasioned a substantial miscarriage of justice. If not, then notwithstanding the validity of that point, the appeal ought to be dismissed. This same consideration has been re-enacted in section 31 of the Courts Act, 1993 (Act 459), section 5 of the NRCD 323 and sections 13(17), 20(1) and 21(3) of the Public Tribunals Law, 1984 (PNDCL 78). It follows then that the principles enunciated in Donkor v The State [1964] GLR 598, SC referred to in Biney v The Republic [1972] 2 GLR 229 and cited in Yeboah v The Republic (Consolidated) [1972] 2 GLR 281, have outlived their usefulness and are no longer the law. Their souls are forever buried in the annals of the outdated authorities.

Now under our law, conspiracy is constituted if two or more persons agree or act together with a common purpose for or in committing or abetting a crime whether with or without any previous consent or deliberation. Thus in the instant case, the prosecution ought to establish either that the appellant and the first accused agreed together to commit robbery or that they acted together in the robbery. The evidence on record undoubtedly show that the appellant did not act together with the accused in the robbery. The appellant sat quietly at the back seat and watched the first accused struggling with the first prosecution witness and robbing him of the vehicle. But if before this incident the appellant and the first accused had agreed to commit robbery then what the first accused did in single handedly robbing the first prosecution witness of the vehicle was in furtherance of that agreement, and the appellant could not escape liability. The issue therefore is whether there is evidence on record from which it can be inferred that the appellant did agree with the first accused to commit robbery. And indeed the particulars of the conspiracy in the charge sheet state that they agreed together and not that they acted together. In

[p.575] of [1995-96] 1 GLR 557 this connection the positive evidence of such agreement is contained in the confession statements of the first accused and that of the appellant, that is exhibits A and O respectively. In these confession statements, each of them alleges that in order to solve their financial problems they decided to embark upon robbery of vehicles as the quickest way to get rich. And, accordingly, they undertook the robbery of the first prosecution witness’s vehicle. It is this exhibit C, the confession statement of the appellant, that Mr Agbesi challenges in this appeal. But the submissions he makes against exhibit C are equally applicable to exhibit A, so that if his objections are upheld, exhibit A would for the same reason be inadmissible.

I concede that a free and voluntary confession of guilt by an accused, whether in court or outside the courtroom, if it is direct and positive and is duly made and satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence: see State v Otchere [1963] 2 GLR 463 and R v White (1823) R & R 508, CCR. Nevertheless, it is desirable to have an independent evidence establishing that a crime has been committed where the evidence before the court is made up entirely of the accused’s own confession. Thus Coussey JA in Kanu v R (1952) 14 WACA 30 at 32-33 said:

“A voluntary confession of guilt, if it be fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone.”

This statement in Kanu v R (supra) was adopted and applied by this court in Koranteng v The Republic, Court of Appeal, 19 July 1968, unreported; digested in (1968) CC 151.

Now one cannot feign ignorance of police brutality and other atrocious methods of extracting confession statements from suspects. And the drafters of NRCD 323 were not unmindful of this fact. Thus it is stated in the Commentary on the Evidence Decree at pages 100-101:

“Even if the confession is presented in a writing signed by the accused so that there are no problems concerning the observation, recollection or narration of the statement, problems of reliability remain. History shows many examples of persons who confessed to crimes they never committed. Sometimes

[p.576] of [1995-96] 1 GLR 557 these people were suffering from mental or emotional disabilities which gave rise to delusions of guilt or masochistic needs to confess or to other compulsions . . . More often the false confession came from persons of weak mind or body who were intimidated by . . . the mystery and vigour of the criminal process, or more frequently by the harsh and coercive treatment of the officers administering the law.”

Fully mindful of the above situation, and to ensure that safe and reliable confession statements are admitted to sustain conviction, the drafters of NRCD 323 made compliance with section 120 of the Decree mandatory. Thus at page 98 of the Commentary on the Evidence Decree, it is stated: “ . . . a confession shall not be admissible, even if it is within another hearsay exception, unless it complies with the requirements of the section [ie 120]. (The emphasis is mine.) A court of law cannot therefore waive compliance with section 120 of NRCD 323 and proceed to admit inadmissible confession statement even if its admission is not objected to by the accused.

In the instant case, Mr Agbesi’s attack is on the alleged certificate of an independent witness. He argues in effect that the alleged certificate is no certificate within the provisions of section 120(3) of NRCD 323. Consequently, there is in law no certificate or an independent witness to that confession statement as required by the section. The statement was therefore inadmissible and ought to have been rejected.

Now, the importance of an independent witness and his certificate to vouch for his presence during the making of confession statement is stated at page 99 of the Commentary on the Evidence Decree as follows: “This requirement is felt to be essential in the interests of fairness and justice, and will go far to eliminate the possibility of improperly obtained confessions.” (The emphasis is mine.) The alleged independent witness certificate in exhibit C reads:

“I Owusu Boateng of House No C536/7 Kpehe, Accra hereby certify that I was present when correct statement was made by suspect Clement Yaw Akonor. He made it of his own free will.”

It is important to point out that the same certificate by the same person in the same words appeared under all the four statements tendered at the trial. And even in the charge statements where the accused stated that they were relying on their former statements, the

[p.577] of [1995-96] 1 GLR 557 same certificate was appended under it. Now from the above certificate one would like obviously to know what is meant by “correct statement.” And how did the independent witness know that the statement is correct? Was he aware of the facts of the case before the statement was made? Was the statement read over and interpreted to the maker, once the statement shows that it was made in Twi and recorded down in English? And if it was read over and interpreted, did the accused fully understand and appreciate what was read to him? Lack of answers to these questions punctuate the authenticity of the alleged certificate.

Accordingly, if the certificate cannot answer these questions then it would be perverse to hold the appellant as bound by it having regard to the mandatory provisions of section 120(3) of NRCD 323.

Section 120(3) of NRCD 323 does not render every person competent to act as an independent witness. The subsection provides:

“(3) The independent witness must be a person who— (a) can understand the language spoken by the accused;

(b) can read and understand the language in which the statement is made, and where the statement is in writing the independent witness must certify in writing that the statement was made voluntarily in his presence and that the contents were fully understood by the accused.”

(The emphasis is mine.) From the provisions of section 120(3) of NRCD 323 above any person who claims to have witnessed the making of a confession statement and desires to certify to that effect must in his certificate state that the statement was voluntarily made, and further that the accused fully understood the contents of the alleged statement. These two requirements are indispensable. For the latter requirement would ensure that what the accused voluntarily said in whatever language he spoke, is what had indeed been put down in the English language. Where a certificate fails to state either of them, that certificate would be incompetent to authenticate the alleged confession statement. With the result that the said confession statement would be inadmissible in evidence.

In the instant case, I concede that exhibit C was tendered without objection and one may therefore say that Mr Agbesi is forbidden by

[p.578] of [1995-96] 1 GLR 557 section 6 of NRCD 323 from raising this point. But one must not lose sight of the fact that the appellant was not represented by a lawyer at the trial. And further, that if indeed exhibit C is inadmissible per se, then his failure to object is no bar since section 8 of NRCD 323 provides: “8. Evidence that would be inadmissible if objected to by a party may be excluded by the court on its own motion.”

In construing this section 8 of NRCD 323, especially when the case comes on appeal, the court is enjoined by NRCD 323 to have due regard to parties who were unrepresented by lawyers and therefore would be unable to appreciate the intricacies of the law of evidence. Thus section 178(2) of NRCD 323 provides:

“(2) In applying this Decree, and in particular in determining whether and to what extent to exercise its power under section 8, the court shall have special regard to the fair application of this Decree in respect of a party not represented by a lawyer.”

The unrepresented appellant’s failure to object to exhibit C is therefore of no consequence. Indeed, after exhibit C had been admitted without objection, and the charge statement was about to be tendered, the appellant objected stating: “I don’t speak Twi fluently and I was beaten. I offered to write my statement but it was rejected.” The appellant is then recorded to have gone on to say: “In fact in respect of exhibit K the only portion I reject is the portion that says I passed on the pepper to the first accused.” I have gone through the record of proceedings, and I have found no exhibit K. Nevertheless the tribunal ruled as follows:

“There is no real objection to the admission of the statement since the second accused is not against the entire statement nor does he say he did not give a statement at all. The statement of the second accused dated 27 August 1990 is accepted in evidence and marked exhibit D. At the appropriate time the objection shall be evaluated in the context of the statement.”

Now this exhibit D only states that “I rely on my former statement.” Therefore the tribunal’s ruling that the appellant is not objecting to the entire statement is not valid. But assuming one says that exhibit K is rather exhibit C, then we have a funny situation where the ruling is in respect of exhibit C which had already been admitted.

[p.579] of [1995-96] 1 GLR 557

Now the appellant’s objection that he does not speak Twi fluently, that he was beaten and that he offered to write his own statement but was refused together with the rather legally improper certificate of the alleged independent witness, should have raised the suspicion of the tribunal to reject the statement or at least, to call the independent witness to testify. Indeed, the appellant’s first question in cross-examining the second prosecution witness is:

“Q I put it to you that I did not give my statement in Twi because I do not understand the Twi language.

A You spoke in Twi.”

And when the appellant testified in his defence, he spoke in English, and not in the Twi language.

I recall the commendable approach the Central Regional Public Tribunal adopted in People v Kojo Chuchulugah, Central Regional Public Tribunal, CRA 79/91, discontinued in this court on 7 February 1995. In that case, there was an alleged confession statement in which an independent witness certified, inter alia, that he had read and explained the contents to the accused. Having regard to the evidence of the accused, the tribunal suo motu, called the independent witness. And behold he could not read the statement. The tribunal in its sound judgment rejected that statement.

Now the certificate of the independent witness in exhibit C does not state that the appellant fully understood and appreciated the contents of the statement which was alleged to have been made in Twi and recorded in the English language. The certificate therefore does not conform to the provisions of section 120(3) of NRCD 323.

The fears expressed in the commentary (quoted supra) about the high probability of obtaining manufactured and unreliable confessions, exemplified in English cases like that of Timothy John Evans, granted posthumuous pardon in 1966, and the Birmingham Six, clearly justify strict compliance with section 120 of NRCD 323. Accordingly, where a confession statement is tendered without objection it is still the duty of the trial court in its judgment, to examine the statement and reject same if it falls short of the statutory requirements. For as Lord Loreburn LC said in Attorney-General v Birmingham, Tame and Rea District Drainage Board [1912] AC 788 at 795, HL: “A Court of law has no power to grant a dispensation from obedience to an Act of

[p.580] of [1995-96] 1 GLR 557

Parliament.” Exhibit C is therefore inadmissible and ought to have been rejected. And since the same certificate appears under exhibit A, same is also inadmissible, except that in respect of the first accused there is enough evidence apart from exhibit A to sustain his conviction.

With exhibit A and C out, the evidence touching and concerning the appellant are that of the first prosecution witness and the appellant himself. The evidence of the first prosecution witness portrays the appellant as a silent spectator to what went on. Undoubtedly the appellant’s silence maybe construed either as giving support to the first accused or that he was dumb-founded at what was going on. Mr Agbesi submits that the appellant’s silence was an index of his utter surprise at what was going on. And he supports his submission with the evidence of the appellant. The appellant testified that he was surprised at what went on and so when they got to Mamfe he got down to find his own vehicle to Accra. This piece of evidence from the appellant was admitted by the first accused when the appellant cross-examined him as follows:

“Q You remember at Mamfe I asked to be let down the car because I was not satisfied with what happened?

A Yes.

Q Did you drop me at Mamfe or not?

A You got down at Mamfe.”

This happened after the robbery. The question is if he had agreed with the first accused, why should the appellant feel dissatisfied about the successful operation and get down? Mr Quist for the Republic had submitted that in a conspiracy it is immaterial that after the act one of the parties countermanded. This is true where there is evidence of conspiracy against the one who countermanded. And in Boahene v The State [1965] GLR 279, SC the facts on which the Supreme Court came out with its holding on countermanding are totally different from the instant one. If there is evidence that the appellant either agreed with the first accused or acted together with him to commit the robbery then his countermanding after the robbery would be no defence. Because conspiracy, as the Supreme Court explained in the Boahene case (supra) is committed the moment two or more people agree together or act together to commit an offence. I am of the firm view therefore that having regard to the admissible evidence or record, the admission by

[p.581] of [1995-96] 1 GLR 557 the first accused that the appellant got down at Mamfe in dissatisfaction at what went on, emphatically negatives any conspiracy between the two of them.

The appellant also explained that because he did not take down the taxi number, he did not report what transpired to the police. And the tribunal dwelt on this to hold that his failure to make a report is an index of his involvement in the robbery. I agree that his failure to report may be unreasonable, but this does not necessarily make him a criminal. It must be realised that all men are not the same as the imaginary reasonable person whose conduct is used in determining the standard of reasonableness. Different people react differently to the same situation depending upon the individual’s level of intelligence and his psychological make up. Thus the fact that one person did not react, in a given situation, in a way expected of that imaginary reasonable man, does not make him a criminal or liar. On this point I wholeheartedly agree with Campbell J in Republic v Dapaah [1968] GLR 513 at 518 wherein he said: “I do not myself contribute to the view that because a person does not measure up to the standard of conduct of others similarly circumstanced, that such person becomes necessarily a liar. The response of different individuals to an identical situation varies, because their psychological make up and presence of thought are different.”

Accordingly, the tribunal’s finding that the appellant is not innocent because he failed to make a report to the police is erroneous and speculative. And an appellate court is entitled to set aside a finding which is based upon an erroneous reasoning.

In conclusion, it is clear that with the exclusion of exhibit C, and for that matter exhibit A, the remaining evidence on record is incapable of sustaining the conviction. It follows that the erroneous admission of those two exhibits has occasioned a substantial miscarriage of justice. And the appeal ought to be allowed. The appeal therefore succeeds. I set aside the conviction and sentence and in their place acquit and discharge the appellant.

DECISION Appeal against conviction dismissed.

Sentence varied.

JNNO