Criminal Law and
Procedure-Evidence-
-Corroboration of Accomplice
-Written Statement in mutilated
document-Misperception of
evidence--Incorrect procedure in
regard to admission of exhibits.
Held: 1. Witness was rightly
treated as accomplice but trial
Judge misdirected
himself on question of
corroboration: appeal allowed.
2. Statement made by accused
person and reduced in writing
must be put in evidence
complete. Where the document is
mutilated before being put in
evidence, a conviction on the
evidence of such document alone
cannot be sustained.
3. Where a statement by an
accused person is tendered in
evidence and objection made that
it has been obtained by duress
this question of fact must be
determined before the document
is admitted.
There is no need to set out the
facts.
E. S. Beokn-Betts
for Crown.
N.
J
P. M. Boston for
Appellants.
The following joint Judgment was
delivered ;-
KINGDON, C.J., NIGERIA, PETRIDES,
c.]., GOLD COAST, AND GRAHAM
PAUL, J.
The five appellants were charged
in the Circuit Court of the
Protectorate of Sierra Leone
with the murder of one Sitta on
or about 7th June, 1929, at or
near Konia. All the appellants
were on the 24th June, 1939,
convicted of murder and
sentenced to death and they all
appealed ,to this Court against
their convictions.
Grounds of Appeal were filed and
Counsel for the Appellants
argued at length on these
grounds which involved questions
of fact and law.
In our opinion there is no
substance in the appeals of the
1st, 3rd, 4th and 5th accused
and their appeals were dismissed
accordingly.
As regards the second accused
the learned trial Judge rightly
found that the main evidence
against him was that of
accomplices and that
corroboration of that evidence
was required. Such corroboration
the learned Judge expressly
found ouly in the evidence of
the witness Bokari Kamasso and
convicted the second accused
accordingly. In our view it is
impossible to find in the
evidence of Bokari Kamasso or in
any other evidence corroboration
of the evidence of the
accomplices as, regards the
second accused's complicity in
this crime. Accordingly we find
that the learned Judge
misdirected himself on this
question of corroboration and
for that reason we allowed the
appeal of the second accused,
quashed his conviction and
sentence and directed that a
judgment and verdict of
acquittal be entered.
It was argued before us that the
witness Jabatti was not an
accomplice and that his evidence
against the second accused was
sufficient corroboration. The
learned Judge described Jabatti
as an "innocent accomplice" but
thought that "out of an
abundance of caution" Jabatti "
should be treated as an
accomplice although he was
probably in fact innocent of
having anything to do with the
crime."
Upon the whole evidence it is in
our view impossible to say
without considerable doubt that
Jabatti was not an accomplice.
The second accused is entitled
to the benefit of any such doubt
and in our opinion the learned
Judge was right h treat
jabatti's evidence as that of an
accomplice and therefore not
corroboration of other
accomplices.
The third ground of Appeal
referred to the misreception in
evidence of a document namely
Exhibit II, a statement made and
attested by the first accused in
the course of the investigations
in this case. That document was
apparently put in evidence at
the preliminary investigation.
It was then complete.
Subsequently the Court Clerk of
the District Commissioner's
Office, Kenema, one Joseph
Walwyn Findlay, cut off a part
of the document so that when it
was produced at the trial it was
incomplete. In his evidence the
Court Clerk says that he did
this on the instructions of the
officer who held the preliminary
investigation. The portion cut
off \vas not produced at the
trial and it " •. as not proved
what were the contents of that
missing portion. In spite of
this the mutilated document was
received in evidence by the
trial Judge. In our opinion this
mutilated document was wrongly
received in evidence.
If the conviction of the first
accused had depended upon this
mutilated exhibit it could not
in our opinion have been
supported. But the .conviction
of the first was not dependent
on this exhibit. There was more
than ample other evidence of the
guilt of the first accused,
evidence given by the witnesses
for the prosecution and another
unexceptionable record of a
confession by the first accused.
The appeal of the first accused
was accordingly dismissed.
Although the matter was not
raised by Counsel for the
appellants, before leaving this
case we desire to comment on
what appears to us to be an
incorrect and unusual procedure
adopted by the Court below in
regard to the admissions of
certain exhibits, written
records of statements alleged to
have been made by the accused.
These statements were tendered
in the course of the Crown Case
and Counsel for the accused
objected to their being received
in evidence on the grounds that
they had been made under duress
or induced by promises. Upon
that objection being taken the
Court below made the following
note :-
Order-I will
admit the exhibits temporarily
pending evidence as to the facts
alleged; if these are proved the
exhibits will be refused."