BEGAH AND ANOTHER vs. THE REPUBLIC [1997-1998] 2 GLR 573

CASES REFERRED TO

(1) Ryder v Wombwell (1868) LR 4 Exch 32; 38 LJU Ex 8; 19 LT 491.

[p.578] of [1997-1998] 2 GLR 573 (2) R v Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1068, [1981] 73 Cr App R 124, CA. (3) Kofi alias Buffalo v The Republic [1987-88] 1 GLR 520, CA.

(4) State v Alil Kassena [1962] 1 GLR 144, SC.

(5) Moshie v The Republic [1977] 1 GLR 287, CA.

(6) Gyabaah v The Republic [1984-86] 2 GLR 461, CA.

(7) State v Anani Fiadzo [1961] GLR 416, SC.

(8) R v Golder; R v Jones; R v Porrit [1960] 1 WLR 1169; [1960] 3 All ER 457; 45 Cr App R 5, CCA. (9) R v Mann (1972) 56 Cr App R 750; [1972] Crim L Rev 704, CA.

(10) Egbetorworklcpor v The Republic [1975] 1 GLR 485, CA.

(11) R v Maw [1994] Crim LR 841.

(12) Commissioner of Police v Wood (1956) 1 WALR 71.

(13) Gesellschaft v Attorney-General for Nigeria (1911) 1 NLR 123.

(14) R v Otubu (1943) 9 WACA 20.

(15) Chang Hang Kiu v Piggot [1909] AC 312; 78 LJPC 89; 100 LT 310, PC.

(16) R v Nweze (1940) 6 WACA 190.

(17) Nankani v The Republic (Practice Note) [1974] 2 GLR 445, CA.

APPEAL by the appellants from the judgment of the High Court, Accra convicting them of conspiracy to murder and murder. The facts are sufficiently set out in the judgment of Afreh JA.

Adumua-Bossman (with him K F Manso) for the first appellant.

A Gyambiby, Senior State Attorney, for the Republic.

Afreh JA. On 30 June 1998 we allowed the appeals of the appellants herein and acquitted and discharged them, but did not give the reasons for our decision. We now proceed to do that. The appellants were convicted before Richard Apaloo J, sitting with a jury, at the criminal session of the High Court, Accra on 27 November 1997 for the offences of conspiracy to murder and the murder at Obuasi of one Lena Abla Hohoabu, a student nurse of the Komfo Anokye Teaching Hospital, Kumasi on or about 23 July 1990. Against this conviction they have appealed to this court. The first appellant was a maintenance engineer at the [p.579] of [1997-1998] 2 GLR 573 Ashanti Goldfields Corporation (now AGC Ltd) at Obuasi and a friend of Martin Awuku Ahome who also was an accountant at AGC stationed at Obuasi. Although Ahome, (who gave evidence as the fourth prosectution witness) was married, his wife was not staying with him at the time Lena died. It seems the first appellant was not married. Because of their close friendship the fourth prosection witness gave a duplicate key to the front door of his house to the first appellant. The second appellant was a teacher who at the time Lena died was teaching at Dunkwa-on-Off-in. She was a girlfriend of the fourth prosecution witness and spent most weekends with him at his house in Obuasi. They moved together at Obuasi, to the knowledge of the people who knew them.

On 22 July 1990, which was a Sunday, at about 6 00 am, the fourth prosecution witness (Ahome) brought Lena from Kumasi to spend the weekend or the day with him at Obuasi. They met the first appellant in the house. He had slept there overnight. Accordin mg to the fourth prosecution witness, Lena was to return to Kumasi on the same day. The arrangement was for him to drop her at the lorry park in Obuasi at 2 00OOpm but she told him to take her back to Kumasi. He told her that he would attend a meeting and after that he would take her to Kumasi.

The first appellant left for work not long after the fourth prosection witness and Lena arrived from Kumasi. He returned at about 1100am; and he, Lena and the fourth prosection witness went to the Obuasi market to buy foodstuffs which Lena cooked for them. After eating, the fourth prosecution witness left for the meeting and returned to his house at about 7 00 pm. All this time the second appellant was in her house. She was expected to come to the fourth prosecution witness’ house in the evening. So the fourth prosecution witness asked the first appellant to go and tell her that he, the fourth prosecution witness, would be going to Kumasi and on his return he would pick her up. The second appellant was living about two kilometres from the fourth prosecution witness’ house. The first appellant went on the errand for the fourth prosecution witness and after that went to the fourth prosecution witness’ house so that they would go together with Lena to Kumasi in the evening.

They did not go to Kumasi as planned because Lena said she would rather spend the night in Obuasi and go to Kumasi the following morning. The fourth prosecution witness said he explained the nature of his work to her and told her that the best he

[p.580] of [1997-1998] 2 GLR 573 could do for her was to drop her at the Obuasi lorry park in the morning. She agreed to that. She accordingly slept in his guest -room and he in his own bedroom. When Lena said she would not go to Kumasi that evening, the first appellant went back to his house.

The fourth prosecution witness said in evidence that, having set his alarm at 4 30 am, he called Lena the next morning at that time on 23 July 1990 to prepare for the trip to Kumasi. After half an hour, she told him to drive her to Kumasi. He explained to her that he could not leave his work for a trip to Kumasi but she was adamant. So he told her that he would go to work, ask for permission and drive her to Kumasi about 10 00 am. He obtained permission to travel to Kumasi. When he returned to the house to pick up Lena he did not see her in the living room, so he called out her name. She did not respond. As he was going to the guest-room to see if she was there, he found some pieces of broken bottles in the kitchen; and when he entered the guest-room he found her hanging by the neck from a bolt used in reinforcing the window frame. A drying line had been used in suspending her from the bolt. He also saw that her hands had been tied round her by means of the drying line. Her mouth was tied with a muffler. After seeing her hanging, he rushed out to the police station and lodged a complaint.

After investigations, the first appellant was charged with the offences of conspiracy to murder and murder on 9 September 1991. The second appellant was charged on 2 October 1991. It is not clear why they were not tried until 1997 or why they were trined in Accra and not in Kumasi—–which would have been a more convenient forum.

Several grounds of appeal were filed on behalf of the appellants. The following grounds apply to both appellants:

“(1) That the learned trial judge erred in law when he ruled that there was a case for the appellants to answer.

(2) That the learned trial judge misdirected the jury on proof by circumstantial evidence when he said circumstantial evidence must lead in one direction only and to the doorstep of the accused persons. He should have gone further to analyse that rule in terms of the available evidence.

[p.581] of [1997-1998] 2 GLR 573

(3) That since two prosecution witnesses were discredited by being treated as hostile witnesses, the judge should have warned the jury to disregard their evidence altogether but he erroneously failed to do so.

(4) That when the jury first returned and informed the court that the they were undecided as to who caused the harm to the deceased (from which she died) the learned judge trial judge should immediately have directed the jury to return a verdict of acquittal of the accused persons.”

On behalf of the second appellant there was another ground:

“(5) That the trial judge erred in law and fact, when he convicted the first defence witness of perjury. This error undermined the credibility of the second appellant’s case and moreover created an unfair prejudice in the mind of the jury. These occasioned the second appellant substan tial miscarriage of justice.”

The submission of no case to answer

On behalf of the appellants it was argued that at the end of the prosecution’s case no casual link had been established between the appellants and the death of Lena. In their exhaustive and compre hendsivecomprehensive arguments, counsel for the appellants submitted that there was no evidence that the appellants went to the bungalow of the fourth prosecution witness between 6 00 am and 10.00 am on 23 July 1990 when the fourth prosecution witness said he returned home to fetch Lena to Kumasi only to find her hanging. There was no evidence that they were even seen near fourth prosecution witness’ house. The fact that first appellant had a duplicate key to the fourth prosecution witness’ house by which he could have entered the house did not of itself establish that the first appellant went to the house at the time Lena is presumed to have died or that he used his duplicate key to open the door.

The third prosecution witness had testified that the first appellant left the Pompolla Treatment Plant of AGC where he worked between 8 00 and 9 00 am and was not seen again by witness. This evidence was strenuously challenged. Counsel fori the first appellant submitted that even if the third prosecution witness’ evidence is accepted that does not prove that the first appellant went to the fourth prosecution witness’ house when he left the plant.

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Counsel for the first appellant also submitted that there was no evidence as to the time Lena died: the pathologist did not say when she might have died. If Lena had been killed during or as a result of a struggle between her and her killer or killers in the kitchen, where pieces of broken glass were found, there should have been evidence of a struggle in the kitchen or on the body of Lena. But there was no such evidence. If the injury on the big toe of the second appellant had been sustained by her being cut by a broken bottle during the struggle there should have been blood or stains therofthereof in the kitchen. But again there was no such evidence. No fingerprints were found in the kitchen or in the room where Lena’s body was found or anywhere else in the house. And Lena’s hair was neatly combed, which should not have been the case if she had been involved in a mortal struggle just before she died. Counsel submitted that on the evidence before the court at the close of prosecution case, there was not a tittletattle of evidence to lirnk the appellants with the harm that had caused Lena’s death.

In reply to the submissions of counsel for the appellants on this ground, Mr Gyambiby, Senior State Attorney, for the Republic, argued that at the end of prosecution’s case there was some evidence based on which the trial judge could call upon the appellants to answer; in other words, there was evidence which supported or constituted prima facie evidence. He also submitted that on the wording of section 271 of the Criminal Procedure Code, 1960, (Act 30), at the end of the prosecution’s case, the standard of proof does not have to reach proof beyond reasonable doubt for a prima facie case to be established. This provision only requires that at the close of the prosecution’s case some evidence has been produced or adduced by prosecution which links the accused person to the crime. On such evidence the trial judge can call upon the accused person to open his defence. Mr Gyambiby further argued that where there is evidence, albeit tenuous, the judge has a discretion to call upon the accused person to open his defence. He agreed that the prosecution’s evidence was purely circumstantial. Nonetheless it was evidence which led irresistibly led to the guilt of the accused because it linked them to the crime The judge like the jury scuttled to make inferences from circum stantial evidence. If the judge after such inference is convinced that the accused person is linked to the crime he can call upon him to answer.

[p.583] of [1997-1998] 2 GLR 573

Counsel then went over the evidence against the appellants. Against the first appellant, there was evidence that he had a duplicate key to the fourth prosecution witness’ house. He had told the police in his statement that he did not leave the plant on 23 July 1990 until 12 noon when he met one Abrempah who told him of the death of Lena. This evidence or alibi had been negatived by the evidence of the third prosecution witness showing that he had lied about when he left the plant. These circumstances or pieces of evidence led irresistibly to the finding of a prima facie case against the first appellant.

Against the second appellant, there was the evidence of pieces of broken bottle on the floor of the kitchen from which she must have sustained the injury to her big right toe. From the evidence of the fifth prosecution witness who testified that the second appellant did not sustain any injury at her building site in his presence on the day in question, as she claimed, it could be inferred that the second appellant had lied to the police about when, where and how she sustained the injury to her big right toe. Also, the evidence of a doctor who examined her exposed the lie. There was also evidence of her jealousy when she saw some ladies (including Lena) in the fourth prosecution witness’ car one Sunday afternoon a few weeks before Lena’s death. Out of this jealousy she had followed the fourth prosecution witness to Kumasi when she was not invited or expected and on the way back had queried him about the ladies in his car.

Mr Gyambiby submitted that all these pieces of evidence supported a prima facie case against the appellant so the trial judge was right in leaving the case to the jury.

Mr Gyambiby’s view that under section 271 of Act 30 the standard of proof required before a case can be left to the jury does not have to reach proof beyond reasonable doubt and that where there is evidence, albeit tenuous, the judge has a discretion to call upon the accused to open his defence has no basis in law. It was in fact a view of the law which had been discarded by the courts of England by the middle of the nineteenth century, as can be seen from for example the case of Ryder v Wombwell (1868) LR 4 Exch 32 at 39 where Willies J said:

“It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case, but it is now settled that the question

[p.584] of [1997-1998] 2 GLR 573 for the judge (subject of course to review) is . . . not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”

Mr Gyambiby seems to have based his proposition on a passage in the judgment of Lord Lane LCJ in R v Galibraith [19811] 1 WLR 1039, CA where the Lord Chief Justice proposed the approach the court should adopt where at the end of the prosecution’s case “there is some evidence but it is of a tenuous character.” Because of the importance attached to Lord Lane’s statement in arguments before us in this case, should quote it in full. At 1042B–D he said:

“How then should the judge approach a submission ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however, the prose cution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury . . .”

There is nothing in this passage that supports Mr Gyambiby ’s assertion.

The criteria laid down in the Galibraith case were cited by this court in Kofi alias Buffalo v The Republic [1987-88] 1 GLR 520, CA, per Osei Hwere JA (as he then was) as criteria which “must . . . … commend themselves to trial judges when they come to discharge their duty under section 271 of Act 30 because they do not give free rein to the judge to encroach on the province of the jury.” They have not replaced the crintenria laid down by this court

[p.585] of [1997-1998] 2 GLR 573 since State v Alli Kassena [1962]1 GLR 144, Sc for determining whether a case should be allowed to go the jury.

Since the Galbraith case is likely to feature in any discussion ori proposition for determining submissions on no case to answer, it may perhaps be useful to state the position now reached in England on this matter. With some hesitancy, Blackstone’ ‘s Criminal Practice (1992) makes the following proposition on determining submissions of no case to answer at p 279:

“(a) If there is no evidence to prove an essential element of the offence a submission must obviously succeed.

(b) If there is some evidence which–—taken at face value—– establishes each essential element, then the case should normally be left to the jury. The judge does, however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable jury properly directed could convict on it, then a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value (especially in identification evidence cases . . .)

(c) The question of whether a witness is lying is nearly always one for the jury, but there may be exceptional cases where the inconsistencies (whether in the witness’s evidence viewed by itself or between him and other prosecution witnesses) are so great that any reasonable tribunal would be forced to the conclusion that the witness is untruthful. In such a case (and in the absence of other evidence capable of founding a case) the judge should withdraw the case from the jury.”

These propositions and the general approach commended by the Galbiraith case are not, in my view, inconsistent with the approach adopted by the courts of this country since State v Aliu Kassena (supra). In that case the Supreme Court adopted the Practice Note at [1962] 1 All ER 488. In the course of his judgment the court, per Azu Crabbe JSC (as he then was), laid down (at p 149) the approach which the judge must follow at the close of the oprosecution case:

[p.586] of [1997-1998] 2 GLR 573

“The question which the judge has to consider at the close of the prosecution case in a trial on indictment is ‘whether the prosecution has given reasonable evidence of the matters in respect of which it has the burden of proof.’ It is for him as a matter of law to determine whether the evidence adduced has reached that standard of proof prescribed by law; and for the jury to determine whether that standard has in fact been satisfied. In a criminal trial the burden of proof on the prosecution is very heavy . . ….”

The standard of proof required at the close of the prosecution case that would justify a judge to allow a case to go to jury is prescribed by sections 22 and 23 of the Evidence Decree, 1975 (NRCD 323) which must be read with section 11 (2). Section 22 provides:

“22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to existence of the presumed fact.”

The effect of this section is that for the prosecution to establish a prima facide case or a rebuttable presumption of guilt, it must prove beyond a reasonable doubt the existence of the basic facts of the case against the accused. In other words, it must prove every essential element of the crime beyond reasonable doubt. It is only when this has been done that the accused person should be called upon to answer the case against him. In answering the case all that the accused person need to do is to raise a reasonable doubt as to the existence of the facts establishing the presumption of guilt.

Where the case is tried with a jury, section 23 (b) prescribes the standard of proof or in the words of the Commentary on the Evidence Decree, 1975 at p 28 “the quantity” of evidence required of the prosecution to get the case to the jury. It provides:

“23. In a criminal action tried by jury–— (b) when the presumed fact is essential to guilt the court may submit the question of the existence of the presumed fact to the jury, if, but only if, on all the evidence a reasonable mind cou1d find both the

[p.587] of [1997-1998] 2 GLR 573 existence of the basic facts that give rise to the presumption and the existence of the presumed fact beyond a reasonable doubt.”

The commentary’s explanation of this provision makes its meaning clear: “Only if a reasonable juror could find both basic and presumed facts beyond a reasonable doubt can the issue of the presumed fact go to the jury.” In my view, since the NRCD 323 contains explicit provisions on the burden and standard of proof both at the close of the prosecution case and at the end of the case, any discussion or direction on them should begin with the provisions in the Decree instead of counsel and judge roaming over a mass of cases to determine what is the correct law or approach. I think much time can be saved by applying the provisions of the Decree.

However this does not mean that cases should be ignored Where a case, whether English or Ghanaian, decided before the Evidence Decree came into force or thereafter is not inconsistent with the provisions of the Decree it can of course be cited and applied. But I found it remarkable that in the course of their able submissions counsel on both sides never referred to sections 11 (2), 22 or 23 of NRCD 323.

The courts of this country, without express reference to these sections, have nevertheless laid down criteria which give flesh to them. I think it can now be taken as established that in considering his duty under section 271 of Act 30, the judge should not leave a case to the jury if he was of the opinion that (a) there had been no evidence to prove an essential element in the crime, or (b) the evidence adduced by the prosecution had been so discredited as a result of cross-examination, or (c) the evidence is so manifestly unreliable that no reasonable tribunal could safely convict upon it, or (d) the evidence was evenly balanced, that is to say, the evidence was susceptible to two likely explanations, one consistent with guilt or one with innocence: see Moshie v The Republic [1977] 1 GLR 287, CA and Gyabaah v The Republic [1984-86] 2 GLR 461, CA. Where any of these elements is missing in the case of the prosecution after the close of its case, it is the duty of the judge to direct the jury to acquit the accused and should not leave the case to the jury.

Applying these principles and criteria to the case before the court, the jiudge should not have left the case to the jiurvy. There

[p.588] of [1997-1998] 2 GLR 573 was no evidence connecting the appellants to the crime with which they were charged. At the end of its case all that the prosecution had succeeded in doing was to arouse some suspicion, but it is now a cliché in our courts that: “You cannot put a multitude of suspicions together and make proof of it.” There were no objective facts from which a reasonable tribunal could infer guilt.

Although counsel for the defence did not make a submission of no case to answer, section 271 of Act 30 casts a positive duty on the trial judge to ensure that the accused was not deprived of the protection of the law through either mistake or ignorance.

Misdirection on circumstantial evidence

In the course of his summing-up to the jury the learned trial judge said:

“I direct you that in the absence of direct evidence, circumstantial evidence is admissible to establish guilt. Such circumstantial evidence must lead to the doorsteps of the accused persons. Where the inferences from the evidence are mixed and point to other directions then the accused persons ought to be given the benefit of the doubt.”

He then enumerated eleven points he found had been established. These were mostly the evidence I have already summarised in the earlier part of this judgment. But he failed to analyse them in relation to the rule he had stated.

Counsel for the first appellant did not find anything seriously wrong with the direction on circumstantial evidence. But he submitted that the established facts did not individually or cumulatively lead to the irresistible inference of guilt. Apart from the eleven points, other pieces of evidence referred to in the summing up did not conclusively point to the appellants. Counsel submitted that failure to analyse the eleven points and other pieces of evidence amounted to a misdirection in the sense that it created a grave prejudice against the appellants.

In reply, Mr Gyambiby submitted that far from the direction on the eleven points being prejudicial to the appellants, it favoured them, ie because it did not mention certain facts like the injury on the second appellant’s toe or the evidence that first appellant did not go back to the plant after he left sometime between 8 00 am and 10 00 am, which were unfavourable to the appellants. Mr (ivamhihv Gyambiby also submitted that the fLuh tailure of the U(1!Ze judge to warn the

[p.589] of [1997-1998] 2 GLR 573 jury not to treat mere suspicion as equivalent to circumstantial evidence was a misdirection.

I think counsel for appellant’s criticisms on this matter are valid. It is established “A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion.” in The State v Anani Fiadzo [1961] GLR 416 at 418, SC. that:

None of the eleven points the judge found established could lead to an irresistible inference of guilt. Neither could their cumulative effect justify such inference. There was not a scintilla or tittle of evidence of opportunity to justify connecting the appellants to the crime: There was no evidence of their agreeing or acting together to commit any crime; nobody saw them together or separately at or near the house where Lena was found dead, nobody saw them going in the direction of the house; their fingerprints were not found in the house; no blood stain or traces of blood were found there or anywhere else in the house or outside.

In fact, apart from the fact that Lena was found hanging, the cause of death is not clear. Was she killed before she was hung up or did she die in a mortal struggle and then hung up? The prosecution itself was not sure because they put up the two hypotheses. Did she die from drugs because there were traces of hypnotic or analgesic drug in her body? If she died in a violent struggle or fight, why were there no marks of violence on her? Why and how was her hair neatly combed after such a struggle? It was assumed that Lena could not have committed suicide because her hands were tied behind her and there was a gag in her mouth. But it was not really established that it was physically impossible for her to have committed suicide in the position she was found dead.

There were so many doubts and question marks that if the judge had analysed them or drawn the attention of the jury to them, they might not have arrived at a verdict of not guilty. Instead of doing that, the judge dwelt on some pieces of evidence from which no inference of guilt could conclusively be drawn. He was convinced

[p.590] of [1997-1998] 2 GLR 573 that the second appellant was a jealous woman. This was because on 24 July 1990 on seeing the fourth prosecution witness in a fnriend’s car with some ladies moving towards Kumasi, she abandoned everything and followed them to Kumasi. She explained that she went there to watch a world cup match. The judge did not find this reasonable since she could have done so in Obuasi. He also told the jury that she confronted the fourth prosecution witness in Kumasi in the house of the fourth prosecution witness’ friend, one Dr Apaloo. There was no evidence of such confrontation. The only evidence of a confrontation was on the journey back to Obuasi when, according to the fourth prosecution witness, she asked him about the ladies in the car. The other evidence of jealousy was that she had left another man because he had another woman.

I do not find anything extraordinary in this. But even if she was a jealous woman, that in itself could not lead to an irresistible inference she murdered Lena. There was no evidence that she had ever acted violently on her jealousy.

The judge could also not believe the second appellant when she said she did not know Lena. Maybe she was lying, but it was also reasonably probable she did not know her because it would not be surprising that the fourth prosecution witness (and second appellant and Dr Apaloo) succeeded in concealing the relationship between the fourth prosecution witness and Lena from the second appellant or in keeping them from meeting. The judge should have told the jury this, instead of pouring scorn on her evidence on this matter. In any case, assuming the second appellant knew Lena, that was no ground for concluding she must have killed Lena out of jealousy, and the judge should have warned the jury not to reach that conclusion without more evidence.

The judge also spent a lot of time in summing up on the injury to the big right toe of the second appellant. He firmly rejected hexr evidence that she was injured on 21 July 1990, two days before Lena was killed. His reason was that the fifth prosecution witness had denied seeing her injured at her work site and a doctor who treated the second appellant on 27 July 1990 had estimated thati the injury was four to five days old and could not have been caused by a nail prick. But there was evidence in hospital cards tendered in evidence that the second appellant was treated for the injury before 23 July 1990. There was a statement of one Veronica Turkson, which supported her claim that she was injured before 23

[p.591] of [1997-1998] 2 GLR 573

July 1990. But the judge failed to deal with these pieces of evidence favourable to the second appellant at all or adequately.

The learned judge treated evidence against the first appellant in similar fashion. The only evidence against him was that he had a duplicate key to the front door of the fourth prosecution witness’ house and left work soon after 8 00 am on 23 July 1990 and did not return. The judge failed to tell the jury that whoever entered the house did not go through the front door, which the fourth prosecution witness found locked, but through the back door, which was open. Regarding the first appellant leaving work, the judge told the jury: “Al was not able to name any single person who was with him or working with him on 23 July 1990 between 8– 10am at Obuasi.” This seems to put the burden of proof on the first appellant. Apart from this, it was not fair because first appellant had said in a statement to the police on 23 July 1990 that after a chat with the fourth prosecution witness at the cafeteria he had “left the OSC straight to my work site (PTP) just to hear the story at 12 00 noon when coming out on break.” He repeated this in another statement made on 12 September 1990 and even mentioned the name of the person who told him of the death of Lena as one Mr Mensah-Abrampah. The judge ignored this and all evidence favourable to the first appellant.

I think the judge should have told the jury not to make a finding of guilt unless the evidence before them showed opportunity to kill: that is that there was evidence of their presence in or near the house of fourth prosecution witness at the time Lena was killed Yet in the absence of any such evidence, the judge directed the jury as follows:

“If you come to the conclusion on the evidence that both accused persons were present and by prior arrangement they agreed together to cause harm to Lena they must be guilty of conspiracy; if they did not have a prior agreement but acted together and the result was what happened on 23 July 1990 then they are equally guilty of conspiracy since they acted together to achieve a criminal purpose.”

Directions to a jury should only contain a summing up of evidence adduced before the court and not suspicions or conjectures. Any comments of the judge must be based on the evidence before him. There was absolutely no evidence on which the judge could legitimately have based the statement just quoted.

[p.592] of [1997-1998] 2 GLR 573

Warning on the evidence of a hostile witness

In the course of the trial the prosecution, with leave of court, treated two prosecution witnesses, the fourth and fifth prosecution witnesses as hosilehostile witnesses. In the course of his summing-up the trial judge told the jury:

“Evidence of a hostile witness need not necessarily be disbelieved. It is the duty of the jury to assess his evidence in its entirety, and come to conclusion whether in the circumstances the witness must be believed.”

Counsel for the appellants submitted that this was a misdirection. They argued strongly that he should have told the jury to disregard their evidence. In support of their contention they cited several cases including R v Golder [1960] 1 WLR 1169, CCA; R v Mann (1972) 56 Cr App R 750, CA; Egbetorwork/cpor v The Republic [1975] 1 GLR 485, CA and Gyabaah v The Republic [1984-86] 2 GLR 461, CA.

In reply, Mr Gyambiby submitted that the rule that a party cannot impeach the credibility of his own witness has been abolished by section 81 of NRCD 323, so the judge was right in the direction he gave. Section 81 (1) provides: “(1) The credibility of a witness or any part of his testimony may be attacked ort supported by any party, including the party calling the witness.” I agree with Mr Gyambiby that the effect of section 81 (1) is to abolish the common rule that a party cannot impeach the creditability of his own witness and the dichotomy between unfavourable and hostile witnesses. So a party is free to attack the credibility of his own witness. But if he does so, he must realise he may thereby destroy or undermine the credibility or weight of the evidence of the witness.

I do not think the cases, English and Ghanaian, go to the extent of saying the evidence of a hostile witness should be disregarded. For instance in Egbetorworkpor v The Republic (supra) where thec judge had directed the jury that the evidence of a hostile witness was nugatory and should be discarded from their consideration a if it had not been given at all, Apaloo JA (as he then was) said “this direction appeared favourable to the appellant.”

In my view it will be wrong for a judge to tell a jury toc disregard the evidence of a hostile witness or rather a witness whose creditability has been attacked by the party calling him. Butl the judge should tell the jury to consider whether the hostile

[p.593] of [1997-1998] 2 GLR 573 witness should be treated as creditworthy at all. He should warn the jury about the dangers of a witness who has contradicted himself. It is not sufficient for the judge to tell the jury to approach the evidence with great caution and reservation. He should tell them that it is only if they could give any credence to that witness that they may go on to consider which parts of his evidence, if any, they can accept: see R v Maw [1994] Crim LR 841.

The question of credibility and weight of evidence are matters for the jury to decide. So the judge was not totally wrong when he told the jury that the evidence of a hostile witness need not necessarily be disbelieved. He should, however, have warned them about the dangers of a witness who had contradicted himself.

Conviction of the first defence witness for perjury

Immediately after the prosecution had finished cross-examining the first defence witness, the second appellant’s only witness on the injury to the right big toe, the judge proceeded to convict her for perjury. He said:

“I find the evidence of . . . to be contradictory to the statement she gave to the police when the events were fresh in her mind. The two statements she gave to the police have been admitted as exhibit 1 and 2. They do not contain the detailed description of the injury to A2. They do not disclose that the witness was the one who used a pair of scissors to cut off the loose flesh on the toe of A2. Nevertheless this witness upon oath gave details of the treatment she gave to A2. She described in this court the condition of A2 and the fact that she went to the extent of applying iodine on the toe. In a serious case such as the one before this court, I cannot comprehend why the witness having seen all these details would refuse to narrate them to the police. The conduct of the witness is not consistent with a person speaking the truth. I accordingly find her guilty of perjury and convict her accordingly but before I pass sentence I will hear counsel.”

After hearing second appellant’s counsel, the judge cautioned and discharged her.

A court undoubtedly has power to try and punish a party or witness giving evidence before it for perjury by the summary procedure provided by section 152 (1) (b) of Act 30. But it is a power that must be exercised sparingly and with great care and in

[p.594] of [1997-1998] 2 GLR 573 accordance with the fundamental principle of criminal justice: See Commissioner of Police v Wood (1956)1 WALR 71 at 74. The court or judge must be sure that the guilt of the party charged with the perjury has been proved beyond reasonable doubt before it convicts and imposes sentence on him. In this case the procedure adopted by the judge was wrong and the trial and conviction of her only witness on a crucial matter was highly prejudicial to the second appellant.

The procedure in a summary trial under section 152 of Act 30 has long been established by the courts of this country. It was first laid down in the Nigerian case of Gesellschaft v Attorney-General for Nigeria (1911)1 NLR 123 where the full court of Nigeria held that before taking action under the summary procedure the court should call up the witness, explain to him the substance of the allegations of perjury, and ask him to show cause why he should not be dealt with. The judge’s notes should record the adoption of this procedure. Osborne CJ, delivering the decision of the court, laid down at 125 the following procedure, which was later approved and adopted by the West African Court of Appeal: “The proper procedure in such cases is for the Court to call up the witness and address him to the following effect: It appears to this Court that you have been guilty of perjury in that you have falsely sworn so and so (giving the substance of the allegation of perjury). What have you got to say why you should not be fined or committed to prison as fora contempt of Court? If he does not answer or succeed in showing cause why he should not be dealt with summarily, the court can then proceed to pass sentence . . . … The fact that the witness has been so addressed, and his answer, if any, should be recorded in the notes of the presiding Judge.”

West African Court of Appeal expressly indorsed this procedure in R v Otubu (1943) 9 WACA 20 and subsequent cases have not done anything to affect its validity or correctness.

Even where this procedure is not rigidly followed, the fundamental principles of criminal justice must be observed and seen from the record of proceedings to have been observed:

(a) Although it is not necessary on summary proceedings for perjury to formulate charges as in the case of an ordinary trinal, the gist or pith of the accusation, sufficiently clear to

[p.595] of [1997-1998] 2 GLR 573 enable the accused person to know what the charge against him is, must be given; and

(b) the opportunity of being heard against being tried summarily, that is being dealt with summarily, should be given the accused person: see Commissioner of Police v Wood (supra).

If either or both requirements are not complied with, a conviction should be quashed. Thus in the leading case of Chang Hang Kiu v Piggot [1909] AC 312, PC, the conviction was quashed because the accused persons were not given the opportunity of showing cause why they should not be dealt with summarily, whereas in the Otubu case (supra) the conviction was quashed because the accused was not informed of the gist or pith of the charge against him.

Whatever the procedure or whereeverwherever the trial, the fundamental guarantees of fair trial in article 19 of the Constitution, 1992 must be complied with. Clause 2 (c) to (f) of the article provide that a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty; to be informed immediately in a language that he understands, and in detail, of the nature of the offence charged; be given adequate opportunity and facilities for the preparation of his defence; and be permitted to defend himself before the court in person or by lawyer of his choice. In this case the first defence witness was told, in the course of being convicted, of the gist or pith of the allegations against her, but she was never given an opportunity to show cause why she should not convicted. This violated her constitutional right to a fair hearing and was contrary to the laid down procedure for summary trial of perjury.

It seems the reason why the judge convicted the first defence witness was that in his opinion her evidence on oath was contradictory to the statements she gave to the police because the evidence contained details not in the statement. If that was the reason, then the judge erred. A person can be guilty of prejuryperjury only if he makes or verifies a statement before a court, a public officer or Parliament or a committee thereof’ which he knows to be false in a material particular, or which he has no reason to believe to be true–—See section 211 of Act 29.

Perjury is a statutory offence with a precise definition. Before a person can be convicted of it, every essential element of the offence must be proved beyond reasonable doubt. Before

[p.596] of [1997-1998] 2 GLR 573 convicting the first defence witness of perjury, the court should have been sure beyond reasonable doubt that the first defence witness knew that the evidence the court found offensive was false or she had no reason to believe it to be true. The mere fact that the witness gave evidence which appeared contradictory to statements she had given to the police or that the judge did not believe her was not enough proof of her guilt.

The first defence witness’ wrong conviction for perjury unfortunately took place in the course of the trial in the presence of the jury. Although a judge or court can act immediately to deal summarily with perjury in the course of a trial, it is a wise precaution to postpone taking action under section 1 52 (1) (b) until after the close of the case under trial. Where action is taken before the close, this court will examine the case closely to ascertain if prejudice to the accused resulted therefrom: see R v Nweze (1940) 6 WACA 190. After examining the conviction of the first defence witness, the only conclusion this court can come to is that it caused grave prejudice to the the second appellant.

Further directions to the jury

Another ground of appeal is that when the jury first returned and informed the court that they were undecided as to who caused the harm to the deceased (from which she died), the learned trial judge should have immediately directed the jury to return a verdict of acquittal and reconsider their position since there was no evidence leading irresistibly to the guilt of the appellants. They also complained that the recording in the court’s notes on that occasion that the jury wanted further directions was inaccurate. The jury never did, and consequently the learned judge erred by giving or purporting to give further directions, which in the circumstances were improperly volunteered on his part.

The judge’s notes show that the summing up commenced at 1 55 pm and ended at 3 00 pm when the jury retired to consider the verdict. They returned at 3 40 pm. Then this is what happened. “By court: Foreman of the jury have you reached a verdict?

A No.

Q Why?

A We are undecided as to who caused the harm. The jury wants further directions.

By court: Further directions given in respect of the perpetrators of the harm. Jury is directed that any doubt

[p.597] of [1997-1998] 2 GLR 573 to be resolved in favour of the accused. Jury returns to courtroom again at 3 50 pm. Jury returns to court at 3 55pm.

Q Foreman of the jury have you reached a verdict?

A Yes.”

Then they proceeded to pronounce of verdicts of guilty on both counts. It is clear from these notes that the jury had not reached a verdict when they returned to court at 3 40 pm. It would therefore havye been premature and wrong if the judge had directed them to return verdicts of acquittal.

It is also clear from the record that they wanted further directions. There is therefore no basis in the allegation that the judge improperly volunteered to give further directions. However, the judge should have indicated in his notes the further directions he gave. His failure to do so was wrong. See Nankani v The Republic [1974] 2 G LR 445, CA. In the absence of any notes on the further directions, it is difficult to say whether or not they caused a miscarriage of justice. I can only assume they were on the same lines as the directions he had already given. If that is so, then they were likely to carry similar misdirections. I would resolve the doubt about whether or not they caused a miscarriage in favour of the appellants. I do not think in these circumstances this ground of appeal should be dismissed on the ground that no miscarriage of justice had been caused thereby.

It was for the foregoing reasons that we allowed the appeal.

Forster JA. I agree that the appeals should be allowed and the appellants acquitted and discharged as previously determined by the court.

Baddoo JA. I agree with the judgment read by my brother Afreh JA. I also agree that the appeal be allowed, the conviction and sentence be set aside and that the appellants be acquitted and discharged.

I have examined the record closely and found no evidence which connected the appellants to the death of the young woman. Circumstantial evidence must lead irresistibly to one conclusion and one conclusion only that it was none other than the appellants who killed Lena.

Appeal allowed.

LSNA