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Criminal law and procedure –
Evidence – Unsworn statement –
Evidentiary value of statement
of accused to police - Evidence
Decree 1975 (NRCD 323) s 118.
Criminal law and procedure – No
case to answer – Duty of trial
judge – Whether judge may
consider unsworn statement to
police – Criminal Procedure Code
1960 (Act 30) s 73 – Evidence
Decree 1975 (NRCD 323) s 118.
The appellant, the chief of
Bawore was arraigned before the
Circuit Court, Kumasi, on a
charge of stealing three wooden
electric poles. At the close of
the case for the prosecution,
counsel for the accused made a
submission of no case. The trial
circuit judge ruled that the
prosecution had made out a
prima facie case against the
accused. The accused appealed
unsuccessfully to the High Court
and then to the Court of Appeal.
Relying upon a statement made by
the accused to the police
denying the offence, his counsel
contended that the trial judge
erred when he ruled that a
prima facie case had been
proved by the prosecution.
Held:
(1) In considering the issue
whether at the close of the case
of the prosecution, a prima
facie case was made against
an accused person, his
extra-judicial statement
tendered by the prosecution was
no evidence of the truth of its
contents. Such a statement
became relevant where the
accused elected to give evidence
and was cross-examined by the
prosecution.
(2) The duty of a trial judge in
considering a submission of no
case was first, to satisfy
himself whether or not the
evidence led by the prosecution
could be said to have proved all
the essential elements of the
offence charged. If the evidence
was shaken under
cross-examination, then the
judge had to conclude that it
lacked probative force. If
however the evidence was
unshaken by cross-examination
the judge would be justified in
calling upon the accused. In the
instant case there was no
evidence contradicting the
prosecution witnesses, neither
was their evidence shaken in
cross-examination. The ruling of
the trial judge on the issue was
therefore proper.
(3) The temptation to the
defence in a criminal case to
treat ex curia,
self-serving statements of
accused persons as substantive
evidence worthy of consideration
upon submissions of no case must
be resisted. The prosecution was
not bound to tender such
self-serving statements of an
accused person but justice
required that the prosecution
should bring the statement to
the notice of the defence and,
upon request, make it available
to the defence. Even where the
accused elected to give evidence
the statement did not thereby
become evidence of the truth of
the facts; it went only to the
credibility of the accused, as
showing consistency with the
defence raised. Such
self-serving statements, whether
tendered by or through the
prosecution, were admissible
conditionally. If the accused
did not give evidence and thus
denied the prosecution the
opportunity of testing the
reliability of the statement,
then the statement ceased to be
admissible, even for the limited
purpose of credibility. Our law
of evidence thus retained the
common law position.
Cases referred to :
Fodwoo v Law Chambers
[1965] GLR 363, CA.
Kugblenu v Republic
(1969) CC 160, CA.
Kwesi v Republic
[1977] 1 GLR 448, CA.
R v Barbery
(1975) 62 Cr App Rep 248.
R v Donaldson
(1976) 64 Cr App Rep 59.
R v Pearce
(1979) 69 Cr App Rep 365, [1979]
Crim LR 658, CA.
R v Storey
(1968) 52 Cr App Rep 334, 112
Sol Jo 417, CA.
State v Ali Kassena
[1962] 1 GLR 144, SC.
APPEAL from the judgement of the
High Court, Kumasi.
Paapa Dadson
for the appellant.
Asare Bediako
for the respondent.
FORSTER JA.
The appellant, Nana Oppong Sarfo
Agyeman II, is the Chief of
Bawore, in Ashanti. In August
1991 he was arraigned before the
Circuit Court, Kumasi, on a
charge of stealing three wooden
electric poles valued ¢75, 000,
the property of Bawore citizens.
At the close of the case for the
prosecution, learned counsel for
the defence submitted that the
accused person had no case to
answer.
In a very brief ruling,
warranted of course by the
simple nature of the case, the
learned circuit judge held that
the prosecution had made out a
prima facie case against
the accused. The appellant's
subsequent appeal to the High
Court, Kumasi, was dismissed. It
is from the judgment of the
appellate High Court that the
appellant appealed to this
court.
On 4 March 1993, we dismissed
this appeal and reserved our
reasons and accordingly, we now
give our reasons.
This being a second appeal, we
are guided by Azu Crabbe JA’s
dictum in Kwesi v Republic
[1977] 1 GLR 448 at page 452. He
said:
“On a second appeal, however, it
becomes a question of law as to
whether the first appellate
court on approaching its task,
applied or failed to apply such
principles. Of course, a second
appellate court does not have to
write a judgment in form
appropriate to a court of first
instance. It is enough, on a
question of fact, if, after
having itself considered and
evaluated the evidence and
having tested the conclusions
of the trial court drawn from
the demeanour of witnesses
against the whole of their
evidence, it is satisfied that
there was evidence upon which
the trial court could properly
and reasonably find as it did.”
(Emphasis mine.)
The single ground of appeal
required us to determine whether
as a result of
cross-examination, the evidence
of the prosecution witnesses
could be said to be so
manifestly unreliable that no
reasonable tribunal could have
found that a prima facie case
had been established by the
prosecution. In his submission,
learned counsel for the
appellant made reference to the
applicant's caution statement,
exhibit B, in which he denied
the charge of stealing.
In view of the temptation to the
defence in a criminal case to
treat such ex curia,
self-serving statements as
substantive evidence worthy of
consideration upon a submission
of no case, we think it
desirable that the evidential
value of such a statement must
be discussed here so that,
hopefully, the misconception
that it constitutes substantive
evidence may be appreciated and
avoided.
In considering the issue whether
at the close of the case of the
prosecution, a prima facie
case has been made against an
accused his extra-judicial,
self-serving statement which has
been tendered by the prosecution
is no evidence of the truth of
the contents. Such a statement
becomes relevant as substantive
evidence, where the accused
elects to give evidence and is
cross-examined, as the case may
be, by the prosecution. See R
v Storey (1968) 52 Cr App
Rep 334; R v Barbery
(1975) 62 Cr App Rep 248, R v
Pearce (1979) 69 Cr App Rep
305.
The prosecution is not even
bound to tender the self-serving
statement of an accused person;
justice however requires that
the prosecution should bring the
statement to the notice of the
defence and, may, upon request,
make it available to the
defence. Even where the accused
elects to give evidence the
statement does not thereby
become evidence of the truth of
the facts; it goes only to the
credibility of the accused, as
showing consistency with the
defence which he may raise.
The statement, as was said by
Widgery LJ in R v Storey
(1968) 52 Cr App Rep 334 at p
337 is admissible “because of
its vital relevance as showing
the reaction of the accused when
taxed with the incriminating
facts”. And as equally stated in
R v Donaldson (1976) 64
Cr App Rep 59 such a statement
is:
“evidence in a trial in that it
is evidence that the defendant
made the statement and of his
reaction which is part of the
general picture which the jury
have to consider but it is not
evidence of the facts stated.”
If before 1 January 1976 we
could have justified the
application of the rule in our
jurisdiction because “we cannot
shut our eyes to the
desirability of a homogeneous
development and application of
law in two Commonwealth
countries having cognate
jurisprudence”, as was said by
Apaloo JSC in Fodwoo v Law
Chambers [1965] GLR 363 at
374, we can now confidently
apply the principle, since the
enactment of the Evidence Decree
1975 (NRCD 323). Section 118 (4)
of the Decree, which provides
for the exclusion of such
statement reads:
“In a criminal action evidence
of a hearsay statement made by
an accused shall not be
admissible under subsection (1)
of this section when offered by
the accused, unless the accused
is or will be a witness subject
to cross-examination concerning
the hearsay statement.”
Such a self-serving statement
therefore, whether tendered by
or through the prosecution, is
admitted conditionally. If the
accused does not give evidence,
and thus denies the prosecution
the opportunity of testing it
for reliability, then the
statement ceases to be
admissible; even not for the
limited purpose of credibility.
Our law of evidence thus retains
the common law position, that in
a criminal trial a self-serving
extra-judicial statement of the
accused is irrelevant when the
court is determining whether a
prima facie case has been
established by the prosecution,
for at that stage the statement
has not been tested by
cross-examination of the author.
In determining this appeal
therefore, the only relevant
material is the evidence of the
prosecution witnesses, excluding
the accused's statement, exhibit
B.
The material prosecution
witnesses were PW1, PW2 and PW3.
PW1 was the chairman of the Town
Development Committee of Bawore.
He told the court that in 1987
the people made financial
contributions toward an
electrification project and he,
as the chairman of the
committee, kept the amount. He
subsequently bought 10 wooden
electric poles at the Ejisu
junction at ¢25,000 each. He
said:
“The day I bought the poles was
Tuesday. They were at the
roadside intended to be conveyed
to Accra but the vehicle had
developed a fault. I do not know
the name of the driver who sold
the poles to me. There was no
vehicle around. The driver gave
me exhibit A, a waybill. The
waybill was given to me the very
day I paid him on the spot. I
was on my way to Accra.”
It was PW2, the chairman of the
Committee for the Defence of the
Revolution, who was given the
waybill to collect the poles. He
said in his evidence that he was
told by PW1 that somebody was
guarding the poles at the
junction and that if he produced
the waybill the person would
release the poles to him. He
signed the customer's portion on
the waybill and collected the
poles in Bawore.
In cross-examination, he said
PW1 told him that he used the
Oman money to buy the poles.
PW3 was the driver who was hired
by the appellant to convey three
poles to the Ejisu junction. The
three poles had not been
recovered as at the time of
trial.
The question that falls for
determination in this appeal is
whether, at the close of the
prosecution's case, the trial
judge erred when he ruled that a
prima facie case had been
proved by the prosecution. In
terms of section 173 of the
Criminal Procedure Code 1960
(Act 30), in summary trials it
is provided:
“If at the close of the evidence
in support of the charge, it
appears to the Court that a case
is not made out against the
accused sufficiently to require
him to make a defence, the Court
shall, as to that particular
charge, acquit him.”
The function of a trial judge in
this regard was succinctly
stated by the Supreme Court in
the case of State v Ali
Kassena [1962] 1 GLR 144 at
page 149. The court said:
“It is for the judge in a
Summary Trial to weigh the
evidence and decide whether from
the facts proved, the guilt of
the accused can be inferred.
Evidence is said to be
sufficient when it is of such
probative force as to convince
and which if uncontradicted will
justify conviction.”
The duty of a trial judge in
considering a submission of no
case is first to satisfy himself
whether or not the evidence led
by the prosecution could be said
to have proved all the essential
elements of the offence charged.
If he so finds for the
prosecution, he must next decide
whether the evidence is too
inherently weak, and therefore
unreliable. The consideration of
the quality of the evidence
necessarily involves the view
the judge takes of the demeanour
of the witnesses; how well they
stood up in cross-examination.
If the strength of their
evidence was so sapped, as a
result of cross-examination, as
to render the evidence weak and
unreliable, then the judge has
to conclude that the evidence of
the prosecution lacked probative
force as to convince. If
however, the evidence is left
unshaken by cross-examination,
then the judge would be
justified in calling upon the
accused. At that stage of the
trial the evidence would be
“uncontradicted” because no such
evidence would have been
forthcoming from the defence,
and even where there is a
self-serving denial, as has been
discussed supra, that is
not evidence for consideration
in determining whether a
prima facie case has been
made by the prosecution.
Counsel for the appellant
contends in this appeal that the
evidence of PW1 and PW2, as
regards the purchase of the ten
electric wooden poles, was
inconceivable. He thinks it a
strange coincidence that the
driver of the broken down
vehicle on which the poles had
been loaded would readily have
had on him a waybill and a stamp
by which he could have issued
the waybill covering the
purchase of the poles.
There was however no evidence
contradicting the testimony of
PW1 and PW2, nor were these
witnesses in any way shaken in
cross-examination. Their
demeanour must have impressed
the trial judge and we are in no
position to determine otherwise.
The strictures made by counsel
as regards the genuineness of
exhibit A cannot reasonably
arouse the least suspicion that
it was fictitious, and, the more
so, in the teeth of overwhelming
evidence that the poles were
actually purchased by PW1 and
carted away later to the town by
PW2.
Counsel submitted finally that
it was not possible for the
accused to have loaded away
three of the poles belonging to
the people of Bawore, with the
assistance of some of the very
inhabitants who were asked by
the accused to load them unto
the vehicle.
The force of this submission
cannot stand critical
examination. There was no
evidence that these loaders knew
of the ownership of the poles.
In any event, the accused was
their traditional overlord and I
cannot conceive any protestation
from these subjects who helped
with the loading for they could
not have had any cause to impute
any impropriety of the
fictitious intention to their
chief, the appellant.
The defence may be deduced from
the following extract of the
cross-examination of PW1:
“I insist that I bought 10
poles. I deny that the accused
bought the 10 poles in my
presence. I do not know the
accused bought the poles for
¢130,000.”
The extract seems to suggest
that the appellant bought the
poles in the presence of PW1.
This indeed was a very
significant issue, but in the
absence of evidence from the
defence in proof of this
pro-position, the denials of PW1
were the only evidence in proof
of these matters: See
Kugblenu v Republic (1969)
CC 160.
These crucial matters must be
proved by the appellant. It is
for these reasons that we
dismissed the appeal.
AMUAH JA.
I agree.
BROBBEY JA.
I also agree.
Appeal dismissed.
Justin Amenuvor, Legal
Practitioner. |
