Appeal Court. 14 February, 1936.

 Coining-Statement by one co-accused incriminating another made when latter is not present inadmissible-Trial Court should record  note of such inadmissibility-Putting of accused on his defence  when no admissible evidence adduced against him by prosecution~

The law relating thereto discussed-Misdirection or non-direction

of himself by trial Judge-Evidence of accomplices requires corroboration-Constituents of attempt discussed-Appeal allowed.

The facts of this case are sufficiently set out in the judgment.

C. H. Obafemi for first and third Appellants.

R. Doherty for fourth Appellant.

Second Appellant in person.

A. R. W. Sayle for Crown.

First, second, third appellants' appeals dismissed. That of fourth appellant allowed.

The following judgment was delivered :­KINGDON, C.J., NIGERIA.

 

In this case the man Tiamiyu, with whom this judgment deals, was the seventh accused in the Court below and the fourth appellant before this Court. He is hereinafter referred to merely as the appel­lant. He was convicted in the High Court of the Ibadan Division on two counts (the first and third at the trial) and sentenced to ten years' imprisonment (presumably without hard labour) on the first count and seven years' imprisonment with hard labour on the third count, the sentences to run concurrently.

On the first count the charge was :-

" Preparation for coining: contra section 148 (3) (c) of Criminal Code."

And the particulars :-

" Akinpelu Ajani, Abolude Alamu, Adewale and Tiamiyu were, on 17th September, 1935, at sundry places in the Oyo Province, in possession of sundry moulds, tools, bellows, etc., adapted to make current Nigerian silver coins."

The prosecution led no evidence whatever, admissible against the appellant, to prove that he was in possession, actual or constructive, of any mould, tool or bellows. The nearest approach to any such  evidence comes from the second witness, a native administration police constable, who says, "we searched seventh accused's house and found nothing. Before we asked (? arrested) him he admitted that Exhibit' B ' (a mould), which we had found in second accused's house, belonged to him." This alleged admission is no evidence of possession, but, even if it were, the Court made no investigation (as it should have done) into how this alleged confession came to be made, and on such a bare record it would be quite unsafe to act upon such evidence.

So far as the admissibility of evidence is concerned, throughout the trial statements made by one accused implicating others were admitted without any record being made, either at the time of ad­mission that such 'statements were not admissible as evidence against accused who were not present, or in a summing up or judg­ment that the trial Judge had warned himself to disregard such statements in considering the evidence in the cases of the accused against whom they were inadmissible. This Court is of opinion that for the sake of safety and clarity it is desirable that such a note should be made in both places, though it is sufficient if the record makes it appear in one or the other that such statements were not wrongly considered. But when, as in this case, there is nothing in the record to make it so appear, this Court might well feel compelled to quash a conviction, even though there were sufficient admissible evidence to support it.

Since, at the close of the case for the prosecution, there was no admissible evidence against the appellant on this first count, it follows that, at that stage, he should have been discharged as to count one and not called upon to make any answer to it. However, this course was not taken by the Court, but instead all the accused, including the appellant, were called upon for their defences. The second accused appears to have been called upon first; he elected to make a statement not on oath; what he said is, therefore, not evidence and must be disregarded in so far as it implicates the appellant. It may, however, be pointed out in passing, that it was an error in procedure to allow this accused to be cross-examined by his co­accused, since he had elected not to be sworn.

   All the other accused, including the appellant, gave sworn evidence in their own defence, and some of them, including the appellant, called witnesses. The appellant cross-examined some of his co­accused. The evidence of the first and third accused definitely implicates the appellant in the offence charged. The first accused says, " Seventh accused and Rabiu brought all the things for making money to my farm" and" Exhibit· C' (bellows) was left with me by seventh accused." The third accused says, " On the day I was to hand over money seventh accused and Rabiu came to our farms bringing the materials to make money .... They hid the materials in the bush and asked us to keep the bellows in case they should spoil. "

    The learned Acting Solicitor-General, on behalf of the Crown, has submitted that, since at the close of the case for the prosecution no submission was made by the appellant that he had no case to answer and he was in fact called upon to answer, and since in his defence he gave evidence himself, called witnesses and cross-examined his co-accused, this Court must look at the case as a whole and not quash the conviction if there was evidence, whether for prosecution or defence, which, if believed, would support the conviction.

He relies upon the cases of Rex v. Abraham George (1 Cr. App.

Rep., p. 168) and Rex v. JosePh Power (14 Cr. App. Rep., p. 17; (1919) 1 K.B. 572).

The law in England on this point has been open to some doubt and still appears to be in a curious state. The first case to be con­sidered by the Court of Criminal Appeal is that of Rex v. Benjamin Pearson (1 Cr. App. Rep., p. 77). In that the Lord Chief Justice said :-

•• This conviction cannot stand. There was not sufficient evidence, when the case for the prosecution closed, to be left to the jury, either on the point whether the goods formed part of the stolen property, or whether they were ever in appellant's possession. Of course. if the evidence for the defence supported what was wanting the Court would not interfere."

This case is hardly in point because in it there was some, though not sufficient, evidence to go to the jury. This case was followed by Rex v. Abraham George (supra). There the Court upheld the con­viction with the words :-

•• We have considered the point argued before us that there was no evi­dence for the prosecution, and that accordingly the Chairman ought to have stopped the case. We do not think that he was bound to do so if no sub­mission to that effect was made to him, although he might have done so on his own initiative, and probably many judges would have done so. And as the case went on, this Court is bound to look at it as it turned out as a whole."

The appellant had not been represented by Counsel in the lower Court.

This was followed by Rex v. Frederick Joiner (4 Cr. App. Rep .• p. 64). In that Darling, J., in quashing the conviction, said:-

•• We are of opinion that it was the duty of the Chairman to withdraw the case from the jury, and we have no right to say otherwise, even if anything adverse to the appellant was elicited afterwards. Therefore we take no notice as to what happened afterwards."

Then came the case of Rex v. Frederick Jackson (5 Cr. App. Rep .• p. 22). In that case Counsel for the appellant submitted that there was absolutely no case for the prisoner to answer at the close of the case for the prosecution, and when the Court put to him It on the point of miscarriage of justice, we are entitled to look at the facts as a whole," he argued :-

"The Court refused to do so in Joiner on the ground that it was the duty of the judge to withdraw the case. As it is his duty, I submit that the failure of the prisoner to call upon him to do it can make no difference any more than the failure of the prisoner to object to inadmissible evidence entitled the judge to admit it. It is a startling proposition that the prosecution may, when two undefended prisoners are jointly indicted, rely on the probability that neither will understand anything about' submissions' and need, therefore, offer no evidence against one of them. To say that a prisoner elects to go on is to ignore the fact that most prisoners know nothing about criminal procedure."

In spite of this the Court dismissed the appeal with the words :-

" We are of opinion that this case is governed by the case of George.

The point was never submitted to the Judge at the close of the case for the prosecution, and therefore as the prisoner elected to go on, we may look at the case as a whole."

This was followed by the case of Rex v. Alexander F.raser (7 Cr. App. Rep., p. 99) in which the Lord Chief Justice, in giving the judgment of the Court, said:-

" The point that there was no evidence to go to the jury does not really arise in this case. Where an objection is taken by counsel unsuccessfully, and he then calls evidence, this Court is not bound to disregard the effect of that evidence. In Pearson (above), where the conviction was quashed, I said, • Of course, if admissions by the defendant had supplied the evidence that was wanting, we should not have interfered with the jury's verdict: and in George (above) Phillimore, J., said, • As the case proceeded to the end the Court of Criminal Appeal are of opinion that they ought to look at the whole of the evidence' ; it is true that in Joiner (above), Darling, J., said: • If there was no evidence that he stole them, then it was the duty of the Court to withdraw the case from the jury. We have no right to look and see whether any evidence of larceny was elicited after the close of the case for the prosecu­tion, when counsel for the prisoner submitted that there was no evidence to go to the jury.' At present the Court is not prepared to follow Joiner, but prefers the reasoning in the other two cases."

Then came the case of Rex v. Joseph Power (supra), in which Darling, J. (the same Judge as had delivered the judgment of the Court in Joiner's case), gave the judgment of the Court in the following terms :-

" The appellant in this case was tried at the Central Criminal Court on an indictment which charged him jointly with a man named Lewis with having received certain goods knowing them to have been stolen. At the close of the case for the prosecution it was submitted by counsel for the appellant that there was no evidence that any part of the stolen property had ever been in the possession of the appellant. The learned Commissioner, His Honour Judge Rentoul, overruled this submission, being of opinion that there was some evidence for the jury. The man Lewis was then called as a witness for the defence, and was cross-examined by the appellant's counsel. In the course of his evidence he made statements which incriminated the appellant. It is now contended in support of the appeal that the prosecution failed to make any case against the appellant, and that the incriminating evidence which was given for the defence cannot be taken into consideration in this Court.

 

           And that is how the law stands to-day, and it appears to amount to this that in case  where the prosecution has made out no case against an accused, but in spite of that he is called upon by the. Court to enter upon his defence instead of being discharged :-

(a) If at the close of the case for the prosecution his Counsel, if he was represented, made no sub­mission, he can be properly convicted upon evi­dence subsequently given.

and (b) If at the close of the case for the prosecution, he, being unrepresented and probably completely ignorant of procedure, made no submission, he can be properly convicted upon evidence subse­quently given.

and (c) If at the close of the case for the prosecution he or his Counsel made a submission which was wrongly overruled then, if either he or his Counsel took any part in the subsequent proceedings, an appeal against a conviction resulting from those proceed­ings will fail.

But (d) If at the close of the case for the prosecution he or his Counsel made a submission, which was wrongly' overruled, and then refused to take any part in the subsequent proceedings, he will be" quite safe," i.e. apparently certain to get a possible conviction quashed on appeal.

On to the horns of what a dilemma does this cast an accused or a defending Counsel Should he stay quiet he may meet with unjust conviction on the uncontradicted evidence of a co-accused when one question by way of cross-examination would have demon­strated the falseness of the evidence. Should he put that question he is throwing away certain safety, if his view as to the submission is right.

If this state of the law appears to make it difficult for an accused in England, it seems to amount to a positive hardship in this country where so many of the accused are illiterate, where trials of several accused together are frequent and where Judges owe a special duty to protect their interests. But it is for the legislature and not for this Court to effect an alteration of the law, and we feel bound to give effect to the law as we find it.

We have consequently considered the whole case against the appellant as it comes before us.

The evidence given which implicated the appellant has already been set out. It is the evidence of two accomplices, there is no corroboration, and the evidence of one accomplice is no corroboration of that of the other.