Appeal Court. 17th July, 1939. Appeal from conviction by High Court.

Murder contrary to section 3] 9 of the Criminal Code-Statements made by deceased-Statements (other than dying declarations) must come within exceptions to heresay rule to be admissible-Statements made in the presence of a party only admissible to the extent that he admits their truth. Misdirection of evidence.

Held: Statements made by deceased in the presence of the accused were inadmissible as they were not part of the res ge.stae and the accused did not admit their truth.

Convictions quashed. Cases cited.

Rex versus Curnock. Rex versus Christie.

D. Hagley for Crown. Appellants in person.

The following joint judgment was delivered :-

BUTLER LLOYD, AG. C.J., BROOKE AND MARTINDALE JJ.

The three accused were convicted of a murder committed during an armed raid. It was alleged that they were members of a party which made an attack by night on the house of the deceased during which the latter received a wound which resulted in his death.

They have all appealed and the grounds were shown in their applications for leave to appeal as false accusation and wrongful conviction: the argument of each before this Court limited the issue to one of mistaken identity.

The learned trial Judge opens his judgment with the words " this case hinges on the question of the identity of three persons" and sets out lower down the evidence on which he relied as establishing the identity of the three appellants. During the argument of the latter a question arose as to the reception of certain evidence viz., the statements of the deceased. There are alleged to have been two statements made by him identifying the three appellants as his assailants, the first at Apena before he was taken to hospital and the second in hospital at Abeokuta. As to the latter the Court ruled that the statement was not admissible unless it was proved affirmatively in accordance with section 51 of the Criminal Procedure Ordinance: the Court gave permission for a hospital nurse to be called but this witness failed to supply the necessary foundation for the reception of this evidence.

It would appear therefore that when the learned trial Judge says "before he died, the deceased identified the three accused from amongst nine Ibaribas " he was directing himself to the first statements ,

This was hearsay and any such statement (other than a dying  declaration) must come within the exceptions to the hearsay rule to be admissible. It was, clearly not part of the res gestae and could only be defended on the ground that it was a statement made in the presence of the prisoners coupled with evidence of their behaviour on hearing the statement. When statements made in a party's presence have been replied to they will be evidence against him of the facts stated to the extent that his answer directly or indirectly admits their truth while where his reply is a denial the statements though admissible as introductory to the reply will in general afford no evidence against him of the facts stated (R. v. Curnock: R. v. Christie).

In this case the first witness states that" none of the accused said anything" whereas the sixth witness at page 7 of the record says in his evidence as to the identification by the deceased at Apena .. the second accused said that the deceased had known him before and that he (second accused) did not go to the village that night. The other two denied." Whilst this evidence is strictly speaking admissible its value is negligible and it is the practice to exclude it. We consider that there has been to this extent a misreception of evidence.

The learned Crown Counsel, whilst agreeing with this conclusion, argued that there was apart from this identification ample and reliable evidence to justify the finding of the Court below. He referred to a passage in Halsbury Vol. IX but that related only to sufficiency of evidence in general and the proper test to be applied is that given by Archbold at page 330 of 1938 edition.

The nature of the evidence so admitted and the direction with regard to it in the summing up are the most material matters. We are unable to hold that the evidence so received cannot reasonably be said to have affected the mind of the Judge in arriving at his verdict and that he would or must inevitably have arrived at the same verdict if the evidence had not been received. Indeed the remaining evidence does not even approach the standard necessary to make it safe to convict on a capital charge.

These appeals are accordingly allowed, the convictions quashed and verdicts of acquittal substituted.