BENIAKO AND ANOTHER vs. THE REPUBLIC [1995-96] 1 GLR 32

CASES REFERRED TO:

(1) R v Okai [1960] GLR 191, CA.

(2) Tanko v Karami [1989-90] 2 GLR 189, CA.

NATURE OF PROCEEDINGS

APPEAL by the appellant-policemen from their conviction and sentence by the High Court, Accra for the manslaughter of a suspect on remand at the cells of the police station. The facts are sufficiently set out in the judgment of Forster JA.

COUNSEL

Owusu Fordjour for the appellants.

Mrs Ama Banful, Principal State Attorney, for the Republic.

JUDGMENT OF FORSTER JA.

On 29 August 1994 the appellants were indicted at the criminal section of the High Court, Accra of the offences of conspiracy to commit murder and murder. On 29 August 1994 they were convicted of manslaughter upon the verdict of the jury and sentenced to eighteen months’ imprisonment with hard labour. It is against these conviction and sentence that they appealed to this court.

The first appellant was at the material time the station officer of the Elmina Police Station. The second appellant was a constable at the same station. In June 1993 among prisoners then being detained in the temporary police cells was the deceased, Ato Kwami Awotwi. It would seem that the cells were then being repaired by a contractor. On the morning of 6 June 1993 it was discovered that the prisoners had broken out of the cells and escaped. On 7 June 1993 the deceased was recaptured by some fishermen from the lagoon at Brenaakyin village into which he had jumped on seeing the search party made up of the two appellants, other policemen and some civilians. He was handed over to the policemen.

While the other men waited to continue the search for the other, the appellants took away the deceased in a taxi to the Elmina Police Station, and returned him into cells. The appellants then left to rejoin the other policemen who had been left in the village to continue the search. Upon the instructions of the first appellant, the party left the village and returned to the station. On 8 June 1994 the deceased complained that he was sick and he was therefore sent to the Cape Coast Hospital where he died on admission the same day. The issue that was in contention at the trial was the cause of death and whether

[p.35] of [1995-96] 1 GLR 32 the appellants were responsible for the death of the deceased.

In this appeal, Mr Owusu Fordjour, counsel for the appellants, argued:

“(1) That the judge erred in not discharging the jury when they were not unanimous.

(2) That the verdict of the jury was against the weight of evidence on the record.

(3) That the verdict of the jury was unreasonable and unsupported by the evidence, in view of the serious conflicts and discrepancies in the case for the prosecution Coupled with other circumstances which ought to put the jury on their guard as to the credibility and accuracy of the prosecution witnesses.”

Mr Owusu Fordjour submitted that when the jury announced that they were not unanimous, the judge should have discharged them and not sent them back to reconsider their verdict. The following excerpts from the record show the procedure adopted by the judge, after the jury had returned from some 30 minutes deliberations :

“Q Foreman of the jury have you reached a verdict?

A Yes.

Q Was your verdict unanimous?

A The foreman informs the court that their verdict is not unanimous. They said they did not need further description (sic). Their verdict is a majority one. At this stage the court asks them to go back in order to reconsider their verdict. The court further reminds them that there are three possible verdicts. They can return guilty of murder or guilty of manslaughter or not guilty of any offence. Jury returned again to reconsider their verdict and came back at 12.35 pm.

Q Foreman of the jury have you reached a unanimous verdict?

A Yes.

Q What say you?

A We find the accused persons guilty of manslaughter.”

The submission of counsel raised two issues. First, whether the trial judge erred in not discharging the jury when they informed the judge that their verdict was a majority one. The submission of counsel has

[p.36] of [1995-96] 1 GLR 32 only a transient appeal, for it seems to find support in the case of R v Okai [1960] GLR 19l, CA which has ceased to be an authority for that proposition. In that murder trial, one of the errors committed by the trial judge was that he accepted a majority verdict for manslaughter. The Court of Appeal, quashing the conviction, referred to section 298 (2) of the Criminal Procedure Code, Cap 10, and said at 192: “A further error followed when the prisoner, having been arraigned on a charge punishable with death, the learned trial judge (ignoring the proviso to section 298(2) of the Criminal Procedure Code) proceeded to accept a majority verdict of five jurors who agree that the accused is not guilty of murder but guilty of manslaughter, and two jurors disagree’ . . . Where, upon a charge of murder, the jury cannot agree on their verdict, the judge has no alternative but to discharge the jury and leave the matter to be dealt with by a fresh jury. It is only where the offence charged is not punishable by death that a majority verdict may be accepted.”

That case depended on the text of the proviso to section 298(2) of Cap 10. The subsection stated:

“(2) If the jury are not unanimous in their opinion, the Judge shall, after the lapse of such time as he thinks reasonable, discharge the jury;

Provided that a verdict of a majority of not less than five to two shall, in any case where the accused is not charged with an offence which is punishable by death, be held, taken to be, and received by the Court as the verdict of the whole jury.”

(The emphasis is mine.) Thus, in terms of that proviso, on a trial for murder a majority verdict was not acceptable. Such verdict was only valid and acceptable if the offence charged against the accused was an offence not punishable by death.

Cap 10 was repealed and substituted for by the Criminal Procedure Code, 1960 (Act 30). The main provision of section 298(2) of Cap 10 was reenacted in section 285(4) of Act 30, except that the proviso was differently worded. The new proviso is:

“Provided that a verdict of a majority of not less than five to two shall, in respect of an offence which is not punishable by [p.37] of [1995-96] 1 GLR 32 death, be held, taken to be, and received by the Court as the verdict of the whole jury.”

Thus, in place of the phrase “in any case where the accused is not charged with an offence which is punishable by death”, in the proviso to section 285(4) of Act 30, the new phrase is “in respect of an offence which is not punishable by death.”

On the premise that Parliament does nothing in vain, I am of the view that Parliament intended not to make a majority verdict dependent only upon the accused having been charged with a non-capital offence. Consequently, under the proviso to section 285(4) of Act 30, on a trial for murder, where the jury are not unanimous, they may, by the required majority, find the accused guilty of a lesser offence, such as manslaughter, use of offensive weapon or even assault. And that no longer depends on the condition that the accused should have been charged, in the first place, with an offence not punishable with death.

The other limb of Mr Owusu Fordjour’s submission attacking the verdict of the jury was that the course adopted by the trial judge in asking the jury to return to reconsider their verdict was wrong. The procedure adopted by the judge reflected the application of the provisions of section 282(1) and (2) of Act 30, side-noted: “Procedure where jury differ.” It is provided:

“282. (1) If the jury are not unanimous, the Judge may require them to retire for further consideration.

(2) After such period as the Judge considers reasonable, the jury may deliver their verdict, or state that they are not unanimous.”

In this case, the jury having informed the judge that they did not need further direction added that the verdict was a majority one. This of course implied that the majority either found the accused not guilty of any offence whatever or that the majority, while not satisfied of the guilt of the accused for murder, yet could find him guilty of a lesser offence. The declaration of the foreman being in the context ambiguous, further direction to enable them to resolve the ambiguity was proper and necessary. The trial judge’s further direction to the jury was therefore right in the circumstances and their verdict finding the appellants guilty of manslaughter was valid.

The main thrust of counsel’s argument in this appeal was that the

[p.38] of [1995-96] 1 GLR 32 evidence did not support the verdict of the jury. The main issue for the determination of the jury was whether or not the injuries which caused the death of the deceased were inflicted by the appellants. On this issue of the case, several witnesses were called. The first, fourth and sixth prosecution witnesses were police officers who were serving under the first appellant at the Elmina Police Station. The fourth prosecution witness, General Constable Class One Joseph Manu, testified in examination in-chief that he was among the search party organised by the first appellant to rearrest the deceased and the other two prisoners who had broken out of the police cells on 6 June 1993. He said that on 7 June 1993 the deceased was captured and brought back to the station and lodged in cells. As regards the condition of the recaptured prisoner, it was in cross-examination that the witness stated that when the fishermen who had captured the deceased prisoner brought him to the police, he observed that blood was oozing from the mouth and nostrils. He also heard one of the captors say that if the police had not arrived they would have beaten the deceased to death. He asserted that no policeman beat the deceased. The sixth prosecution witness, Andrew Kobla Avorgbedor was a detective sergeant at the station. He was also one of the policemen who accompanied the first appellant to search for the deceased, Awotwi. He also said that the deceased had been beaten by the captors and he was bleeding from the nose and was weak. Thus the fourth and sixth prosecution witnesses agreed that the deceased had been beaten by the fishermen before they handed him over to the police. As regards any subsequent physical assault on the deceased after having been captured, the sixth prosecution witness testified that some time after the deceased had been lodged in cells, the first appellant called the deceased outside for interrogation. The sixth prosecution witness said he was naked and that the first appellant picked a stick and whipped the deceased on the legs. He saw the second appellant also slap the deceased twice. He intervened and asked them to stop and they heeded him.

The most telling evidence of the physical assaults on the deceased was given by the third prosecution witness, a civilian and the first prosecution witness, a general police constable then stationed at the Elmina Police Station. The third prosecution witness, Kwasi Bekoe, was a driver. On the afternoon of 7 June 1993 he happened to be passing in front of the station when a prisoner called him from the

[p.39] of [1995-96] 1 GLR 32 improvised police cells; the main cells were then being renovated. When he drew near, he recognised the prisoner as one Owusu Appiah. He asked the prisoner what had brought him there and just as he was about to answer, the witness saw a taxi cab entering the station, followed by another car. The crucial part of his evidence was as follows:

“I saw three policemen, one of them armed with a gun in the taxi. There were two civilians in the other car. All the inmates of the taxi cab and the private car entered the police station. They subsequently followed the leader of the police team outside. The leader of the team who called the rest was the first accused. The first accused led them to a drinking bar called `Next Door’ . . . The first accused and his men later came back from the bar. The first accused then kicked the door of the improvised cell and all his men followed him inside. When they entered the first accused slapped a certain young man called Awotwi and he fell down. Awotwi is now dead. Until that day I had not seen Awotwi before. As soon as the first accused had slapped him, the rest of the policemen started beating and kicking the accused. The policemen who beat and kicked Awotwi were three, including the first accused. Two policemen including a female police also subsequently entered the cell and joined the accused and his men. I did not however see the two police personnel including the female one beating Awotwi. If I see the two other policemen who together beat up Awotwi I would not recognise all. I could recognise the first accused and one of the other two if I saw him. The second accused was one of the other two who beat Awotwi when the two other police personnel including the female entered the cells. The accused, the second accused and the other policemen continued to beat and kick Awotwi. The two civilians who also entered the cells with the policemen beat and kicked Awotwi.”

The witness continued that whilst the beating and kicking were going on, he saw a police inspector in front of the station sitting on the veranda. He therefore complained to the inspector about the treatment the policemen were giving to Awotwi. The officer then went to the cells and stopped the men from further mistreatment of Awotwi and

[p.40] of [1995-96] 1 GLR 32 thereafter the officer left the station. The witness further testified that Awotwi was brought from the cells wearing only pants. A policeman removed the pants and asked the people around to look at his genital organs. He saw again the first appellant stamp the deceased in the lower part of his abdomen with his boots. The first appellant was however in civilian clothes. He heard Awotwi then scream in pain; “you should kill me.” At one stage the first appellant further kicked the deceased in the jaw and invited others to do likewise, but nobody did so. The witness, overwhelmed with emotion, left the station as the deceased was lying down weak.

In cross-examination the witness stuck to his story. Questioned that the police would not permit a civilian to go to the police cells, the witness explained that it was “an improvised cells. The police cells itself had been demolished.” He further denied counsel’s suggestion that he never on 7 June 1993 went to the station.

The first prosecution witness, Patrick Hohn Armah, was a constable at the station. He testified that the cells in which the deceased and the other prisoners were kept were under repairs. He was one of the policemen who accompanied the first appellant to search for the escaped prisoners. He did not see any sign of assault when the deceased was handed over by the civilians to the police, except that the police had to restrain the villagers when they attempted to beat the deceased. When he was closing for the day as a non-commissioned officer at 6 pm, he saw the deceased in cells and recorded that fact in the cells book. The witness further testified that at about 4 pm on 8 June 1993 the deceased complained that he was unwell and that the first and second appellants “had beaten him mercilessly and he could not walk.” A Sergeant Duah who also heard the complaint of the deceased instructed the first prosecution witness and Constable Manu to take the deceased to the Cape Coast Hospital, and this was done. (On the evidence, that was the second time that day the deceased was taken to hospital). At the hospital, the deceased repeated his accusation against the appellants in the presence of the first prosecution witness and Georgina Wireko, a female nurse, and said he wanted to write it down. The nurse provided him with a prescription form and a pen and the deceased duly wrote down the details of the assaults and signed it. The nurse also subscribed her signature as a witness. The nurse’s statement, confirming the evidence of the first prosecution witness, was

[p.41] of [1995-96] 1 GLR 32 tendered as the declaration of an unavailable witness. The first prosecution witness to whom the document was given tendered it in evidence as exhibit A, and without objection.

The death of Awotwi was reported at the station at about 2 am. The first appellant called the first prosecution witness to the charge office in the morning. He had by then read the entries made by the first prosecution witness on the previous day relating to what the deceased wrote in exhibit A. The first prosecution witness said the first appellant upbraided him, calling him a foolish and dangerous man, for having made the entries. He further threatened the first prosecution witness that he would never assign him to duties at the charge office again. On the following day, he posted the first prosecution witness to guard duties at the Kakum Rural Bank, even though a constable was already on duty there. The first prosecution witness further testified that on 11 June 1993, he discovered on going through the station diary that page 61 where he had on 8 June 1993 made the entries relating to exhibit A had been torn away.

The fifth prosecution witness, Dr Edwin Quaynor, gave evidence that death was due to: “Severe head injuries, pulmonary oedema, infected ruptured bladder with pus and haemorrhage in the abdominal cavity.” In his opinion, the injuries could have been caused by a fall or an impact of a blow or head hitting an object. The blow, he said, could be the use of one’s feet or hitting the head with an object. He concluded that the rupture of the bladder could be caused by an impact from outside the body. He agreed in cross-examination that a fall from a height could cause injuries to the lower part of the body, such as testicles, penis and the abdominal cavity.

In their defence, the appellants denied the offence and disclaimed the prosecution witness’ evidence that they assaulted the deceased. They asserted in concert that when the deceased was brought to the policemen by the civilian captors, he had already been beaten and he was bleeding from the mouth and nostrils.

Counsel for the appellants did not in this appeal attack the summing-up of the trial judge. Indeed, he could not have challenged it. It was manifestly overly most favourable to the case of the appellants. He however submitted that in view of the evidence of the fourth and sixth prosecution witnesses and the appellants that the civilian captors had assaulted the deceased, as shown by the bleeding

[p.42] of [1995-96] 1 GLR 32 from the mouth and nostrils, and their denial that the deceased was ever assaulted by the appellants or by any policeman at all, the verdict of the jury could not be supported by the evidence.

The evidence of the fourth and sixth prosecution witnesses was available to the jury as triers of fact. Their verdict showed that they could not have believed the evidence of the fourth and sixth prosecution witnesses. As was said by the Court of Appeal in Tanko v Karami [1989-90] 2 GLR 189, CA, as stated in the headnote holding (1):

“Among those matters which might be relevant to the determination of the credibility of a witness were the substance of the testimony, existence or non-existence of any fact testified to by the witness; the existence or non-existence of bias, interest or other motive. A court would therefore be entitled to place no weight on the evidence of a witness who gave evidence with a motive to help his friend as was in the instant case even where the party calling him had not treated him as hostile.”

In that case a friend of the defendant who testified as the plaintiff’s witness had given evidence adverse to the plaintiff and favourable to the case of the defendant, his friend. In the instant case, the fact that the fourth and sixth prosecution witnesses were subordinate or junior officers serving under the first appellant was in evidence. Their evidence was in contrast with the evidence of the first and third prosecution witnesses and the contents of exhibit A.

By their verdict, the jury did demonstrate that they believed the inculpatory evidence against the appellants and preferred that evidence to that of the fourth and sixth prosecution witnesses and the testimony of the appellants. Scrutinising the record, it is quite manifest that the jury were right in relying on the evidence of the first, and third prosecution witnesses, exhibit A and the statement of the unavailable declarant, Miss Georgina Wireko, the nurse who witnessed exhibit A.

At the trial and in this court, the appellants contended that the third prosecution witness was not or could not have been present at the police station on 7 June 1993 to have seen or heard what he testified to in court. I find, however, that the jury were right in accepting the third prosecution witness as a credible witness. First, his evidence that he saw the deceased being beaten and stamped upon in the lower part of

[p.43] of [1995-96] 1 GLR 32 his body was confirmed by exhibit A in which the deceased stated that the appellants stepped on his stomach and penis. This physical assault was also confirmed by the fifth prosecution witness in his post-mortem report on the deceased body. He found, among other injuries, “pulmonary oedema, infected ruptured bladder with haemorrhage in the abdominal cavity.” The location of these injuries were consistent with that given in evidence by the third prosecution witness. Again, the third prosecution witness’ evidence with respect to the presence of an inspector at the station to whom he complained of the physical assaults by the appellants and others on the deceased was similarly corroborated by the sixth prosecution witness and the first appellant. They testified that on the day the deceased was rearrested and placed in custody, the inspector in charge of Agona Akim Police Station had come to the Elmina Police Station. Yet again, the evidence of the third prosecution witness was that he saw three policemen alighting from a taxi at the station and one of them had a gun. The first appellant in cross-examination, testified that “it was only the second accused who had a gun with him” when they went in search of the deceased. His evidence about the existence and proximity of the “Next Door” drinking bar to the police station was similarly confirmed by the first appellant, though he denied having visited the bar on the day in question. It is therefore incontrovertible that the third prosecution witness, Kwesi Bekoe, was at the station on that day and his evidence as to what he saw must therefore have impressed the jury as true.

Counsel contended that Sergeant Duah should have been called by the prosecution. The prosecution was not bound to even call all witnesses listed on the summary of evidence. In any case, the prosecution did not need the evidence of Sergeant Duah. If the appellants believed that the evidence of Sergeant Duah would be helpful to their case, they could have called him.

A relevant inculpatory evidence from which any reasonable jury could properly infer a consciousness of guilt was the conduct of the first appellant upon discovering that the first prosecution witness had made entries concerning what the deceased had said and subsequently reduced into writing in exhibit A at the Cape Coast Hospital. The first appellant, obviously outraged by his discovery did not only condemn and insult the first prosecution witness but also threatened him that he would have him Posted away from his duties at the station, and indeed

[p.44] of [1995-96] 1 GLR 32 did post him away on bank guard duties the next day. As if that was not enough, he tore out of the station diary the offending entries made at page 61 by the first prosecution witness. And to cap it all, he ordered the fourth prosecution witness, General Constable Class One, Joseph Manu, who was recording the entries on the torn page back into the station diary, to leave out the entries that had been made by the first prosecution witness, least, he, the first appellant, would have the fourth prosecution witness charged. Thus threatened, the fourth prosecution witness omitted those entries. As he explains in his evidence; “so I was forced to write in the station diary against my will.” These instances of the conduct of the first appellant were clearly circumstantial evidence capable of corroborating the substantive evidence of the prosecution witnesses that he and the second appellant did assault the deceased. A jury would be perfectly justified in drawing inference of guilt from such evidence.

The jury, as triers of fact, determine the credibility of witnesses. They evaluate all evidence adduced in the court and ultimately decide the guilt or innocence of the accused. Unless there has been some serious misdirection by the trial judge or the evidence was incapable of sustaining the verdict of the jury, an appellate tribunal is bound to recognise and defer to the verdict. In the case at bar, there was overwhelming evidence in support of the verdict of the jury. No misdirection has been raised and urged in this appeal, nor have we found any. And it is quite impossible to say that on the evidence before them, the verdict is one at which the jury might not properly have arrived.

For the reasons given, I would dismiss the appeals of both appellants and affirm the conviction and sentence of the High Court.

And one other matter. In this court, scrutinising the entries in exhibit L—the station diary, we found that from 8 am on 7 June 1993 to 8 June 1993, one Owusu Appiah was in police cells. Significantly, after the deceased had been returned into police cells at 2 pm on 7 June 1993, there was an entry at 5.45 pm that the deceased Awotwi and Owusu Appiah and others were in cells. Thus, the evidence of the third prosecution witness that Owusu Appiah called him from the cells must be true and confirmed his evidence that he was present at the station.

However, in view of the fact that by the default of both counsel and the trial judge, that evidence was not made available to the jury, I [p.45] of [1995-96] 1 GLR 32 declined to be influenced in my opinion by that evidence.

JUDGMENT OF AMUAH JA.

I agree.

JUDGMENT OF BENIN JA.

I also agree.

DECISION Appeal dismissed.

DRKS