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Criminal Law - Robbery -
Evidence - Whether
the convictions of accused
persons by identification by
the victims of the robberies and
that the identifications could
not be controverted - Whethe
caution statement of the accused
tendered by the prosecution
considered must be considered by
court
HEADNOTES
The conviction complained about
in this appeal was in respect of
two robberies at Pokuase and
Ayawaso, a suburb of Pokuase.
After a lengthy trial at the
trial High Court, Accra on 5th December,
2013 wrote a one and half-paged
judgment convicting the
appellant, A2 and A4 and
sentencing them to 15 years with
Hard Labour . The ground for the
convictions was that the accused
persons were identified by the
victims of the robberies and
that the identifications could
not be controverted. In his
brief judgment the trial judge
did not review the evidence led
at the trial but only narrated
the facts as presented by the
prosecution when the accused
persons were arraigned before
him. Upon an appeal the Court of
Appeal in its judgment dated 18th June,
2015 stated, and rightly so in
our view, that though the trial
court’s judgement was terse it
would review the evidence on
record to determine if there was
evidence which if believed could
justify the findings. The Court
of Appeal held that upon a
review of the evidence led by
the prosecution the findings of
the trial judge on the
identification of appellant were
justified -
HELD :-
A caution statement of an
accused person may go to his
defence or incriminate him. In
this case what was tendered by
the prosecution as the caution
statement of the accused person
supported his defence of ablibi
and the learned Judge in a
summary trial was enjoined by
law to have considered it as
part of his defence. It is trite
learning that a defence however
weak ought to be considered by
the court. If a caution
statement is admitted in
evidence and raises any defence
known to the law, the trial
court is enjoined by law to
consider it. All
these serious steps were
blatantly ignored by the learned
trial Judge. I hope that trial
courts and appellate courts will
in future perform this simple
duty as criminal trials affect
the fundamental human rights of
accused persons who appear in
our courts for Justice.
STATUTES REFERRED TO IN
JUDGMENT
CASES REFERRED TO IN JUDGMENT
Achoro v Akanfella [1996-97]
SCGLR 209.
Kamil V Republic [2011] 1 SCGLR
300.
Gregory V Tandoh [2010] SCGLR
971
Hanson V Republic [1978] GLR 477
R. v. Turnbull [1976] 3 W.L.R.
445
Lutterodt v Commissioner of
Police [1963] 2 GLR 429
Darko v Republic [1968] 203.
Forkuo and Others v Republic
[1997-98]1 GLR 1
R v Wunuah [1957] 3 WALR 303
Bediako V The State [1963] 1 GLR
48
R V Chadwick (1917) 12 Cr App R.
247.
Quaye v Mariamu [1961] 1 GLR 93
SC.
Nagode v The Republic [2011] 2
SCGLR 975
Annoh v Commissioner of Police
[1963] 2GLR 306 SC
Kumah v The Republic [1970] CC
113 CA.
John Bounah @ Eric Annor V
Republic, Criminal Appeal No.
J3/1/2015, 9th July,
2015 unreported
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL.
ALBERT ADAARE FOR THE
APPELLANT/APPELLANT
ASIAMA SAMPONG (CHIEF STATE
ATTORNEY) FOR THE RESPONDENT/
RESPONDENT
JUDGMENT
______________________________________________________________________________________
PWAMANG, JSC:-
The conviction complained about
in this appeal was in respect of
two robberies at Pokuase and
Ayawaso, a suburb of Pokuase, at
dawn of 6th March,
2009. After a lengthy trial in
which the prosecution called
five witnesses and all four
accused persons testified and
appellant herein called five
witnesses, the trial High Court,
Accra on 5th
December, 2013 wrote a one and
half-paged judgment convicting
the appellant, A2 and A4 and
sentencing them to 15 years with
Hard Labour. A3 was acquitted
and discharged for lack of
evidence. The ground for the
convictions was that the accused
persons were identified by the
victims of the robberies and
that the identifications could
not be controverted. In his
brief judgment the trial judge
did not review the evidence led
at the trial but only narrated
the facts as presented by the
prosecution when the accused
persons were arraigned before
him. Upon an appeal the Court of
Appeal in its judgment dated 18th
June, 2015 stated, and rightly
so in our view, that though the
trial court’s judgement was
terse it would review the
evidence on record to determine
if there was evidence which if
believed could justify the
findings. The Court of Appeal
held that upon a review of the
evidence led by the prosecution
the findings of the trial judge
on the identification of
appellant were justified. In
respect of the defence of alibi
put up by the appellant, the
court held that on the evidence
on record the trial court was
right in preferring the evidence
of the prosecution’s witnesses
to that of the appellant’s and
dismissed the appeal in its
entirety. The appellant is
aggrieved by the decision of the
Court of Appeal and has appelled
to us as the final court mainly
on the ground that the evidence
led does not support his
conviction. Learned Chief State
Attorney, K. Asiama-Sampong, on
behalf of the Respondent urged
the court in his statement of
case to uphold the concurrent
findings of the two lower courts
and dismiss the appeal unless
there is evidence to establish
that a blunder or error had been
caused resulting in a
miscarriage of justice. He cited
the case of Achoro v
Akanfella [1996-97] SCGLR 209.
As the Respondent has rightly
argued, we are here dealing with
an appeal against concurrent
findings though the court of
first instance did not
articulate any reasons to
justify its findings. In an
appeal against concurrent
findings the second appellate
court ought to be slow in
reversing the findings unless it
can be shown that they are not
supported by the evidence on
record. See Kamil V Republic
[2011] 1 SCGLR 300. In
Gregory V Tandoh [2010] SCGLR
971 this court stated other
grounds on which a second
appellate court would be
justified in reversing
conclusions by two lower courts
as including; where the
findings of fact by the trial
court can be seen from the
record to be either perverse or
inconsistent with the totality
of evidence led by the witnesses
and the surrounding
circumstances of the case, and
where the first appellate court
had wrongly applied a principle
of law. In those instances the
second appellate court must feel
free to interfere with the said
findings of fact, in order to
ensure that absolute justice is
done in the case.
As an appeal is by way of
rehearing and in order that the
appellant would be given a fair
trial and adequate consideration
of his defence in this final
appeal, we deem it helpful to
set out in chronological order
and side by side, the respective
cases of the prosecution and the
defence as proved by the
evidence. This will facilitate a
determination as to whether the
findings and conclusions of the
courts below were well founded.
But that is where there is a
serious problem with the manner
of compilation of the Record of
Appeal. The transcript of the
testimonies of the witnesses is
not in the usual order in which
witnesses testify and that makes
the whole record incoherent. A
witness’s testimony cannot be
found at one particular part of
the record but you have to jump
over several pages forward and
backwards in search of it. There
was no PW5 but the record makes
reference to PW6 and the
transcription of the evidence is
in bad English. The lawyer for
the appellant too has been
unhelpful in this regard since
some of the confusion in the
record could have been rectified
by correction and
re-arrangement. Furthermore, in
his statement of case
appellant’s lawyer did not give
sufficient guidance to the court
as to where to find what
testimony that may support the
case he was making. The record
itself is incomplete but that is
a matter that will be addressed
later in the judgment. Parties
who impeach judgments either
through appeals or other means
have a duty to ensure that the
record is orderly and easy to
read since a confused record may
adversely affect their chances
of success. Nonetheless, in
order to discharge our duty to
do substantial justice in all
cases, the court had to
undertake a winding journey
through the record in order to
discover the true facts in the
case.
PW1 and her husband PW2
testified in respect of the
Pokuase robbery and stated that
they were robbed roughly
between 3.00am and 3.30am on
6/3/2009. Their account of the
incident was that they were
asleep when around that time the
main door to their
self-contained apartment house
was broken open by use of
concrete blocks and the noise
woke them up. When they moved
from their bedroom into the hall
they saw appellant who fired a
shot from a gun he was holding
and the husband fell down out of
shock. He got up and they ran to
their kitchen in order to escape
through a door there that lead
outside the house but the
husband who was ahead on
reaching that door saw A2
holding a knife standing there.
He ran back into the house and
entered a bath room, closed it
and requested his wife who was
following him to keep watch in
front of its door. The appellant
got to her, pointed the gun at
her and held her hostage while
one of the robbers searched
their bedroom and took some
mobile telephones and money
belonging to the husband. PW1
and PW2 described the manner of
dressing of appellant at the
time of the attack as wearing
long boots with a black trousers
stuck into the boots and a black
T-shirt which was also stuck in.
PW2 who said he saw all three
assailants through the window of
his bathhouse when they were
leaving after the robbery
described the second robber as
also dressed in black trousers
and black top and the third was
in blue jeans and a checked
shirt. Under cross examination
PW1 said the robbers were three
in number but apart from
appellant she would not be able
to identify the other two. In
the morning after the robbery
the husband who is a news vendor
went to work and the wife went
to make a report at Pokuase
police station about 6. 30am.
Whilst there appellant and A2
were brought in by a mob that
had arrested and assaulted them
alleging they carried out the
robberies that dawn. She
identified the two as among the
robbers that attacked them at
their house.
It was the robbery at Ayawaso
that resulted in the arrest of
appellant and the other accused
persons. Despite the fact that
the record indicates the
presence of a crowd at Ayawaso
when appellant drove his car
there, only one person
testified. The key person in the
events at Ayawaso was Justice
Acquah and he gave evidence as
PW3. Unfortunately, his
evidence-in-chief is absent from
the record. This situation
pertained in the first appeal
and lawyer for the appellant
argued in the court below that
the judgment of the High Court
ought to be set aside since
there was no complete record
upon which appellant was
convicted. The court rejected
that contention and held that
the record before it contained
the cross examination of PW3
during which lawyer for the
appellant led the witness to
recount the matters he testified
to in his evidence-in-chief. As
the Court of Appeal rightly
found, the record before us
contains that cross examination
of PW3 with copious references
to his evidence-in-chief and
further details of what happened
at Ayawaso that dawn. In
addition to that, the police
investigator gave evidence
covering the facts of the case
he obtained upon interviewing
PW3 and through his
investigations and together
they provide a clear picture of
the version of the prosecution
as to what transpired at Ayawaso
concerning the robbery there.
The Respondent in his statement
of case urged us to proceed as
the court below did and
determine the appeal on the
record as it stands. Because it
was appellant who complained
about the state of the record in
his statement of case, when the
appeal came on for hearing
before us we put him to his
election whether he wanted the
court to determine the appeal on
the record as it stood or he
wanted it remitted to the trial
court for rectification. He
opted for the determination of
the appeal on the record as its
stands. Besides, the appellant
was convicted on three counts
with only one count based on the
Ayawaso robbery such that even
if his conviction were to be set
aside on the basis of the
absence of PW3’s
evidence-in-chief, it would be
in respect of only that one
count leaving the convictions on
the two other counts standing
against him. In any event, the
view of the court is that in the
circumstances of this appeal,
the absence of that part of
PW3’s testimony from the record
does not obfuscate the evidence
as a whole such as would cause a
miscarriage of justice if the
appeal is determined on it. This
case is different from the
Supreme Court case of John
Bounah @ Eric Annor V Republic,
Criminal Appeal No. J3/1/2015, 9th
July, 2015 unreported, in
which the court conditionally
discharged an appellant against
conviction on the ground that
the entire testimonial evidence
of the nine prosecution
witnesses as well as that of the
accused person was missing from
the record. In that case the
court had no record properly so
called that could be relied upon
in determining the appeal and
miscarriage of justice would
have been occasioned if the
court proceeded but not in this
case. In the circumstances we
shall determine the appeal on
the record as it stands.
From the evidence given by the
prosecution’s witnesses, the
events at Ayawaso that
culminated in the arrest and
beating up of the appellant and
other accused persons are as
follows; According to PW3,
between 1.30am and 2.00am on
6/3/2009 he was attacked by a
gang of armed robbers at his
home. He said they broke down
the door to his house with
concrete blocks and entered.
They demanded for money and when
he did not give it they shot at
him, overpowered him and stole
his money, Motorola mobile phone
and DVD player. He shouted for
help but out of fear none of his
neighbours came to his rescue.
He said he did not know their
exact number but some wore
masks. However, he saw appellant
and A4 among them. Before
leaving his house, the robbers
tried to lock him up in one of
his rooms but he resisted
resulting in them beating him up
severely whereby he collapsed.
He was resuscitated by some
neighbours a few minutes after
the robbers left his house and
together they went to look for
his attackers at a refuse dump
near his house known to harbour
criminals. When they got there,
he saw a black VW saloon car
with tinted glass windows and it
sped off on seeing them. Whereas
in the course of his testimony
in court PW3 mentioned VW Gulf
car, PW6 said during the
investigation there was only
mention of a black VW saloon
car. PW3 said when the car sped
off he immediately called his
mother and narrated the incident
to her and requested that a road
block be mounted to trap the
getaway car. Ayawaso lies
opposite Pokuase junction and
adjoins the Nsawam-Accra side of
the dual carriage road. From the
record PW3 mother’s house is at
the village centre while PW3’s
house is closer to the main
Nsawam-Accra road. PW3’s mother
got a barrier mounted but after
sometime no car passed so she
called PW3 for them to mount
another barrier near his house
apparently in case the getaway
car went in the direction of the
main road. So PW3 and some
neighbours mounted a barrier
near his house and were guarding
it. Under cross examination PW3
admitted that while guarding the
barrier with his neighbours
appellant drove his black VW
Gulf car up to them in the
direction of the village centre
with two taxis following him and
he came down from the car and
requested them to open the
barrier for them to pass. PW3
duly opened the barrier and they
drove through. Appellant led the
taxis to the village and then
returned through the barrier
near PW3’s house and alighted A2
and A4 at A2’s house just after
the barrier and drove towards
the main road. According to PW6
it appeared that it was after
appellant passed through the
barrier mounted by PW3 and his
neighbours the second time on
his way out of Ayawaso that they
noted that the car was a black
VW car and that the getaway car
they were looking for was also
said to be a black VW saloon
car. According to PW3 when it
was learnt that A2 was in the
black VW Gulf car the crowd
rushed to attack A2 and A4,
suspecting that they had
something to do with the
robbery. It was while the
neighbours were holding A2 and
A4 that the appellant appeared
again in the same black VW Golf
car and was arrested.
From the evidence of the
investigator, when the police
went to investigate the Ayawaso
robbery PW3 initially refused to
cooperate with them and would
not tell them what really
transpired. However, PW3 was
clear in his evidence that A2,
whom he knows very well as
living in the same vicinity as
himself, was not among the
robbers who attacked him in his
house. PW6 stated the basis for
the mob arrest of the appellant
in the following question and
answer in cross-examination at p
78 of the record;
‘Q. The onlookers identified
him as the one who committed the
robbery somewhere? Is that what
you are telling this court? The
onlookers saw the 1st
accused and identified him as
the one who committed the
robbery at 1am?
A. All of them mentioned about
the use of VW Saloon car.
Eventually the VW Saloon car was
returning from Pokuase
driven(sic) by the 1st
Accused person. And when they
saw the first accused in the car
he was driving into Pokuase,
they remembered that this same
man driving VW Saloon had
earlier been (sic) spotted
immediately after the robbery
and as such he is one of those
who robbed them.’
The impression one gets from the
prosecution’s own evidence is
that A2 and A4 were attacked by
the onlookers, not on account of
on the spot identification by
PW3, the victim of the robbery
but on the basis of the type of
car that dropped them off and it
was on the same basis of the
type of car being driven by
appellant that the mob arrested
him.
On the other hand, the case of
the appellant was that he is a
policeman living in a compound
house at Abelenkpe in Accra and
has a piece of land at Pokuase
given to him by his father which
he was developing. On the
fateful, 6/3/2009 he woke up by
3.30am in order to pick up his
worker, A3, at Pokuase to his
building site to indicate some
work to be done there and to
return to his duty point at
Flagstaff House before 6am. He
did some press-ups in his room
for exercise, came out and sat
on the compound and polished his
police boots. He placed a bucket
of water by his side to bath in
the common bath room of the
house. While on the compound a
kenkey seller and her workers
who also live in the house came
out of their room, greeted him
and set about preparing their
kenkey. After his bath he
dressed up in his police
uniform, drove his black VW Gulf
car to Pokuase, picked up A3 and
drove with him to his building
site which is towards Accra. At
the junction to Ayawaso
appellant had noticed a motor
accident and when he was
returning to Pokuase to drop off
A3, A3 expressed interest in
viewing the accident scene.
Appellant thus turned to the
accident scene which was on the
side of the dual carriage
towards Accra. He got down there
and even helped the police who
were attending to the accident.
It was then around 4. 40am and
as he was about to depart to
Accra the station master at the
taxi rank at the junction
pleaded with him as a policeman
to help clear a road block the
community at Ayawaso mounted
because of a robbery that dawn
and prevented the taxis from
operating there. A3 told
appellant that A2 who at times
worked for him lives in that
area so they should assist the
taxi drivers. A3 sat in
appellant’s car and they led two
taxis loaded with passengers and
drove towards Ayawaso. On their
way they stopped and picked up
A2 and A4 to assist them. After
picking them up they got to the
road block around 5.00am and saw
many people there so he got down
and enquired the reason for the
barrier from PW3 who appeared to
be the main person. He explained
that he had been robbed that
dawn hence the blockage. PW3
then looked inside appellant’s
car and the taxis after which he
opened the barrier for them to
pass through but warned them
that there was another barrier
ahead. At the barrier ahead at
the village appellant and A2
talked to the leaders of the
crowd and they allowed the taxis
free passage. They then returned
through the first barrier,
dropped off A2 and A4. He
alighted A3 at his home at
Pokuase and drove off towards
Accra around 5.30 am. On his way
he received a telephone called
from A2 and A4 who were talking
amidst cries of ‘ajei, ajei’
that the people in the area had
jumped on them accusing them of
being those who carried out the
robbery that dawn since they
came down from the black VW car
he was driving. They said they
needed him back if not they
would be lynched so he drove
back and met A2 at the junction.
He picked him up and decided to
drive with him back to the crowd
to explain to them that A2 was
with him. His explanation was
accepted by some in the crowd
but others rejected it and
started shouting in Ga language;
‘julou! Julou!’ (thief! Thief!).
Thereupon he was arrested and
together with A2 and A4 and they
were assaulted terribly with all
manner of implements. A4 was
nearly killed but was saved by a
good Samaritan and sent to
Nsawam hospital where he was
hospitalised. Appellant and A2
were sent to Pokuase police
station.
The above stated account of
appellant from the time he led
the taxis from the taxi rank at
Ayawaso junction up to his
arrest is not much different
from what PWs 3 and 6 said in
their evidence at the trial. It
is the same story that the other
accused persons, including A3
who was acquitted and discharged
for want of evidence, stated in
their statements to the police
and in their testimonies in
court. The appellant’s defence
was simply that he was not at
Ayawaso between 1.30am and
2.00am when PW3 was robbed nor
at Pokuase at 3.30am when PW1
and PW2 were robbed so it was a
case of mistaken identification.
He indeed filed his alibi which
the police were required to
investigate. He was also
required to lead evidence to
prove the elements of his alibi.
According to PW6, the police
investigator, he was taken to
appellant’s building site at
Pokuase and he saw that it lies
in the direction of Accra as
appellant said. PW6 under cross
examination confirmed that
records at Amasaman Police
indicated that there was an
accident at Ayawaso junction
around 2.30am on 6/3/09. PW6
also confirmed that appellant
drove to Ayawaso that morning,
drove out and was re-entering
when he was arrested.
Furthermore, there was evidence
of the road blocks at the time
police visited the scene.
Appellant on his part called the
kenkey seller and her workers in
his house as DWs1,2 and 3 who
confirmed seeing him on the
compound of their house around
4.00am that morning of 6/3/09.
His wife testified that he slept
by her from about 8.30pm the
previous night till he woke up
around 3.30am on 6/3/09. The
court takes note that the
evidence of appellant’s wife was
not controverted in the brief
cross examination that was
conducted by the prosecution.
The bookman at the taxi rank at
Ayawaso junction testified as
DW5. He stated that he met
appellant on Friday 6/3/09 at
about 5.00am at the accident
scene at the Ayawaso junction
and sought his assistance to get
the members of the Ayawaso
community to open a road block
for their taxis.
Since the conviction was based
substantially on identification
but the appellant contends that
it was a case of mistaken
identification, in the
evaluation of the evidence to
determine if the conviction was
proper the court is required to
note the caution about
convicting on evidence of
identification stated by the
Court of Appeal in the case of
Hanson V Republic [1978] GLR
477. In that case the Court
of Appeal set aside a conviction
based on identification of the
appellant who pleaded alibi and
in its judgment delivered by
Archer JA ( as he then was ) at
pages 486 to 487 he said as
follows;
‘In R. v. Turnbull [1976] 3
W.L.R. 445 Lord Widgery C.J.
delivering the judgment of the
Court of Appeal (composed of
five judges) laid down these
rules of guidance which I have
no hesitation in adopting. At
p. 447 he stated as follows:
"First, whenever the case
against an accused depends
wholly or substantially on the
correctness of one or more
identifications of the accused
which the defence alleges to be
mistaken, the judge should warn
the jury of the special need for
caution before convicting the
accused in reliance on the
correctness of the
identification or
identifications. In addition he
should instruct them as to the
reason for the need for such a
warning and should make some
reference to the possibility
that a mistaken witness can be a
convincing one and that a number
of such witnesses can all be
mistaken.”’
The evidence led by the
prosecution in respect of the
Ayawaso robbery leaves a
reasonable doubt as to the
involvement of the appellant.
PW3 admitted that the appellant
drove his car in front of two
taxis into Ayawaso the morning
of the robbery and came out of
it and spoke to him at the
barrier that was mounted to
arrest the robbers and he
allowed him free passage without
causing his arrest. If he
actually saw appellant among the
robbers that dawn he would have
immediately identified him and
caused his arrest at the
barrier. The facts presented by
the prosecution talked of PW3’s
wife who was said to have
escaped from the robbery but no
such wife testified in court.
There was also mention of arrest
of one of the accused persons
while he was running away from
the scene of the crime holding a
cutlass but no such evidence was
proferred. PW3 said he was
robbed around 2.00am but the
evidence shows that the accused
persons were arrested between
5.30am and 6.00am and none was
arrested while running away from
the scene of the robbery.
Furthermore, the prosecution’s
case on the Ayawaso robbery
appears to conflict with the
evidence that the appellant and
the other accused persons
voluntarily offered to clear the
road blocks mounted at Ayawaso
to arrest the robbers. In our
opinion, the finding that PW3
sufficiently identified the
appellant as among the robbers
who attacked him is inconsistent
with the totality of the
evidence on record in respect of
the Ayawaso robbery and it ought
to be set aside.
However, the identification of
the appellant by PWs1 and 2
certainly amounted to a prima
facie case of his involvement in
the robbery at Pokuase but in
such a situation the law demands
that before deciding to convict
the accused person the court is
required to consider his defence
with care to see if it creates a
reasonable doubt as to his
guilt. In Lutterodt v
Commissioner of Police [1963] 2
GLR 429 the Supreme Court
through Ollennu JSC stated at
page 440 as follows;
Where the determination of a
case depends upon facts and the
court forms the opinion that a
prima facie case has been made,
the court should proceed to
examine the case for the defence
in three stages:
(1) Firstly it should consider
whether the explanation of the
defence is acceptable, if it is,
that provides complete answer,
and the court should acquit the
defendant;
(2) If the court should find
itself unable to accept, or if
it should consider the
explanation to be not true, it
should then proceed to consider
whether the explanation is
nevertheless reasonably
probable, if it should find it
to be, the court should acquit
the defendant; and
(3) Finally quite apart from the
defendant's explanation or the
defence taken by itself, the
court should consider the
defence such as it is together
with the whole case, i.e.,
prosecution and defence
together, and be satisfied of
the guilt of the defendant
beyond reasonable doubt before
it should convict, if not, it
should acquit.’
See also Darko v Republic [1968]
203.
The Court of Appeal at page 366
of the ROA stated as follows
with regard to the defence of
the appellant;
“DW2 said she saw the 1st
appellant around 4.00am. She
said she did not see him between
1.00 am and 3.30 am. DW3 said
she saw the appellant at 4.00am
on 6/3/2009. She too said she
did not see him between 1.00 am
and 2.30am. DW5 said he saw the
appellant around 5.00am on the
6/3/2009 at the accident scene.
It was only DW4 (the wife of 1st
appellant) who said that she saw
him at the material time, i.e
between 1.00am and 3.30am. She
said in her examination in chief
that she went to bed with her
husband around 8.00pm the
previous night and that he was
still in bed at 3.30am the
following morning. It was
therefore the word of DW4 (sic)
against the word of PWs 1,2 and
3. Having regard to the totality
of the evidence, the trial judge
by inference, rejected the
defence of alibi put up by the 1st
appellant by preferring the
evidence of the prosecution
witnesses. I hold that he was
right to have done so.”
In our respectful view, the
Court of Appeal erred in
upholding and approving by
inference the approach the trial
court adopted in rejecting the
defence of the appellant without
more. The law as explained above
required the court if it
preferred the case of the
prosecution witnesses against
those of the appellant to go a
step further and consider if the
defence of the appellant was
nevertheless reasonably
probable. A reading of its
judgment shows that the Court of
Appeal itself did not take this
second step in the consideration
of the defence of the appellant.
It therefore erred by failing to
consider the defence of the
appellant in accordance with the
dictates of the law. If the
court had undertaken that
exercise it would have had to
consider whether, taking the
evidence of appellant and the
corroborations by his witnesses
whose evidence was not
successfully impeached and his
wife whose evidence was not
controverted, and the
consistency of the statements of
all the accused persons right
from the start in their caution
statements and then in their
testimonies, it is reasonably
probable that appellant was not
one of the perpetrators of the
robbery at the house of PWs1 and
2 at 3.30am on 6/3/09 and that
this probably is a case of
mistaken identity. In the case
of Forkuo and Others v
Republic [1997-98]1 GLR 1 at
page 12 of the Report, Forster,
JA noted as follows;
“The credibility of an alibi is
greatly enhanced or strengthened
if it is set up at the moment
the accusation is first made and
if it is consistently maintained
throughout the subsequent
proceedings. But if it is not
resorted to at the very first
opportunity and it is raised
rather belatedly during the
trial, then this is a potential
circumstance to lessen the
weight and force of the
defence.”
In this case the appellant set
up his defence of alibi right
from his arrest and maintained
it through out so it ought to
have been given more weight than
the courts below accorded it. It
may well be that having regard
to the circumstances of the
robbery as narrated by PWs1 and
2 they could have been mistaken
in their identification as for
instance PW1 purported to
identify A2 at the police
station when he was brought in
as one of the robbers though she
said she saw only appellant
during the robbery.
In R v Wunuah [1957] 3 WALR
303, van Lare Ag. CJ
cautioned trial judges in the
following words at page 305 of
the Report;
“ On this issue the judge simply
rejected the appellant’s defence
that he acted at a time when he
was deprived of the power of
self-control and did not
appreciate, until after the
event, what he had done. In this
the judge again erred by failure
to consider the alternative
arising, following upon the
appellant's explanation not
being accepted, whether such
explanation might reasonably be
true. It would appear to this
court that there is a tendency
growing on the part of trial
courts in this country to
confine considerations in cases
where the explanation of an
accused person is in issue, to
whether or not the explanation
is true and not to consider the
alternative narrower issue
whether the explanation of the
prisoner might reasonably be
true. This tendency in our view
is dangerous and we must
seriously deprecate it.”
(He further said at page 306
that;)
“The position of the law in our
opinon on the authorities is
that if the explanation given by
the prisoner is not accepted by
the court, nevertheless if it
might reasonably be true a
doubts as to guilt arises, and
in that event the prosecution
has failed to discharge the onus
on it, and the prisoner is
entitled to the benefit of such
doubt.”
We associate ourselves with
these remarks of van Lare Ag. C
J. It appears to us that if the
courts below had carefully
considered the facts of the case
as established by the evidence
and applied the test of
reasonable probability of the
defence of the appellant, they
would have come to a conclusion
different from the one they
arrived at. In the considered
opinion of the court, the
circumstances of this case and
the evidence led makes the
appellant’s defence of alibi
reasonably probable and ought to
have entitled him to an
acquittal. The error committed
by the lower court has
occasioned a miscarriage of
justice so the concurrent
findings ought to be reversed.
The lower courts appear to have
allowed themselves to be swayed
by the tendentious presentation
of the facts of the case by the
prosecution upon the arraignment
of the accused persons which
was not evidence but in this
case gave a picture totally at
variance with the proven facts.
Trial courts must avoid falling
for the version of the
prosecution in criminal trials
without subjecting its case
strictly to the constitutional
standard of proof beyond
reasonable doubt. The proven
facts and circumstances of this
case leave a reasonable doubt as
to the involvement of appellant
in the robberies in question. A
strong defence of alibi, it is
said, weakens the prosecution’s
case and creates a reasonable
doubt as to whether the accused
is the perpetrator of the crime
he is charged with. See
Bediako V The State [1963] 1 GLR
48 and R V Chadwick (1917) 12 Cr
App R. 247.
In conclusion, our opinion is
that upon the application of the
correct legal principles to the
totality of the evidence led in
this case the appellant’s
conviction cannot be supported
and it ought to be set aside.
The appeal is allowed and
appellant is acquitted and
discharged.
SGD G. PWAMANG
(JUSTICE OF THE
SUPREME COURT)
YEBOAH, JSC:-
I had the opportunity of reading
the draft opinion of my brother
Pwamang JSC which I entirely
agree. However, I wish to
express my opinion in support of
this judgment on a serious
matter which is gradually
creeping into our criminal
jurisprudence.
In this appeal, it appears the
case was hotly contested as the
prosecution called five
witnesses to prove the case of
robbery against the appellant.
The appellant also gave evidence
and in his defence of alibi
called witnesses in support.
Earlier on the appellant had
given a cautioned statement to
the Police in line with his
defence of alibi, in which he
stoutly denied that he was no
where near the scene of the
crime and had nothing to do with
the robbery.
In such a case, a trial court’s
basic duty is to make primary
findings of facts through an
evaluation of the evidence but
surprising by this case, it
abandoned its mandatory duties.
The learned trial Judge after
requesting the facts of the case
presented by the prosecution on
the first arraignment, proceeded
to convict the appellant without
any reference to the evidence
led by the prosecution and the
defence.
As a trial Judge he was enjoined
to critically evaluate the
evidence before him and offer
reasons why the case of one of
the parties ought to be
believed. See Quaye v Mariamu
[1961] 1 GLR 93 SC.
In the recent case of Nagode
v The Republic [2011] 2 SCGLR
975 this court condemned
such practice whereby in
contentious criminal trials
reasoned judgments are not
written even by the appellate
courts.
Another serious error which the
learned Judge committed was that
he never considered the caution
statement of the accused
tendered by the prosecution. A
caution statement of an accused
person may go to his defence or
incriminate him. In this case
what was tendered by the
prosecution as the caution
statement of the accused person
supported his defence of ablibi
and the learned Judge in a
summary trial was enjoined by
law to have considered it as
part of his defence. It is trite
learning that a defence however
weak ought to be considered by
the court. If a caution
statement is admitted in
evidence and raises any defence
known to the law, the trial
court is enjoined by law to
consider it. See Annoh v
Commissioner of Police [1963]
2GLR 306 SC and Kumah v
The Republic [1970] CC 113 CA.
All these serious steps were
blatantly ignored by the learned
trial Judge. I hope that trial
courts and appellate courts will
in future perform this simple
duty as criminal trials affect
the fundamental human rights of
accused persons who appear in
our courts for Justice.
SGD ANIN YEBOAH
(JUSTICE OF THE
SUPREME COURT)
GBADEGBE, JSC:-
My lords, permit me to detain
the precious time of the court
to comment by way of future
guidance only on the length of
time that the matter herein took
to be disposed of from the date
that the accused persons were
arraigned before the trial court
to the conclusion of the case.
In my view, the obligation
placed on trial judges by virtue
of article 19 of the 1992
Constitution appears to have
been glossed over. Article
19(1) provides as follows:
“A person charged with a
criminal offence shall be given
a fair hearing within a
reasonable time by the court.”
The language by which the above
fundamental human right and
freedom is expressed is free
from any conflict as to its
meaning and places an obligation
on judges to ensure that cases
involving accused persons that
are brought before them are
dealt with reasonable
expedition. It is to be noted
that failure to comply with
article 19(1) may be a good
ground for intervention by the
High Court under article 33 of
the Constitution if the breach
were to have occurred in
proceedings before a court other
than the High Court for among
others, a remedy that the court
‘may consider appropriate for
the purpose of enforcing or
securing the enforcement’ of the
infringed provision. The
authority conferred on the court
under article 33 is quite
extensive and enables it in
appropriate instances to grant
remedies other than those
specifically mentioned in
article 33(2) such as habeas
corpus, mandamus, prohibition
and quo warranto. The fact that
the Constitution confers
exclusive jurisdiction on the
High Court in the enforcement of
the fundamental rights and
freedoms guaranteed under the
Constitution is an
acknowledgement of the court’s
power as guardians of the
constitution and guarantor of
the rights of citizens. The
authority conferred on the High
Court under article 33in
relation to the fundamental
human rights and in particular
article 19(1) places an onerous
responsibility on judges who
preside over the trial of
criminal matters to so manage
the proceedings such that the
right of accused persons to have
trials held within a reasonable
time may be given teeth and
meaning in order that our
citizens can reciprocally
respect provisions of the
Constitution. When courts of
law violate rights and freedoms
whose enforcement and or
enjoyment they are
constitutionally mandated to
superintend trials conducted in
breach of the constitution lose
the force of law rendering the
judges acting not in accordance
with their judicial oath. Such
conduct also undermines
confidence in the criminal
justice system of which judges
are active participants who are
required to ensure that rights
of citizens are respected and
not violated with impunity.
Indeed, if provisos of the
Constitution should be violated
at all, it is difficult to
comprehend that acts of
infringement would occur in our
courts without any remedy to
those affected thereby. Such
acts are blots on the capacity
of our courts to protect the
rights guaranteed to us by the
Constitution. Judges must bear
in mind that it is not for
nothing that the framers of the
Constitution made provision in
article 2(1) as follows
“A person who alleges that any
act or mission of any person is
inconsistent with, or in
contravention of a provision of
this Constitution, may bring an
action to the Supreme Court for
a declaration to that effect.”
It is important to observe that
ensuring compliance with
constitutional provisions
engenders in the citizenry, a
reciprocal respect for the
constitution. On the other
hand, when courts do not
exercise the authority conferred
on them to ensure observance
with constitutional provisions,
respect for the law, which is a
pre-requisite for the rule of
law and good governance is
eroded.
Although the constitution has
not provided what a reasonable
time is, it seems to me that
pending a clear pronouncement of
time frames for criminal trials
by the Supreme Court, this can
for the time being be determined
on a case to case basis having
regard to the nature of the
offence, the evidence and
availability of witnesses. In
my view, as many criminal trials
have tended to be unduly long
with accused persons being
prejudiced by the violation of
article 19(1), the time has come
for us to confront these delays
by placing presumptive ceilings
on types of cases to be followed
by the prosecution and serve as
a basis for trial judges to
adopt more effective case
management techniques that are
designed to ensure compliance
with the article under
reference.
Reference in this regard is made
to the Canadian case of R v
Jordan [2016] 1 SCR 637 in
which the Supreme Court came to
the view that section 11(b) of
the Canadian Charter of Rights
and Freedoms which is expressed
in words that are substantially
the same as article 19(1) of the
1992 Constitution provides for
criminal cases to be tried
within a reasonable time had
been infringed by a trial held
more than the period provided
in the framework earlier set out
by the court in R v Morin
[1992] 1 SCR 771. Based on the
infringement of the
constitutional provision set out
by the court in R v Morin
(supra), the Supreme Court set
aside the conviction and ordered
stay of proceedings. Speaking
for myself, the recent decision
of the Supreme Court in
Martin Kpebu v The Republic,
an unreported judgment dated May
05, 2016 by which the court
declared unconstitutional
certain provisions of the
Criminal (Procedure and Offences
Act), which denied bail in
respect of specified crimes was
to a large extent in my
respectful opinion affected by
the absence of any clear
guidelines in regard to the
requirement contained in article
19(1). In the R v Morin case
(supra), the Supreme Court in
amajority decision by La Forest,
Sopinka, and Gronthier. Mc
Lachlin, Stevenson and Lacobucci
JJ (Lamer CJ dissenting) held:
“The primary purpose of section
11.b is the protection of the
individual rights of accused
persons :(1) the right to
security of the person, (2) the
right to liberty, and (3) the
right to a fair trial. The right
to security of the person is
protected by seeking to minimize
the anxiety, concern and stigma
of exposure to criminal
proceedings. The right to
liberty is protected by seeking
to minimize exposure to the
restrictions on liberty which
result from pre-trial
incarceration and restrictive
bail conditions. The right to a
fair trial is protected by
attempting to ensure that
proceedings take place while
evidence is available and
fresh.”
In declaring the trial which had
infringed section 11(b) of the
Canadian Charter on Rights and
Freedoms, the Supreme Court
derived its authority from
section 24(1) of the Canadian
Charter of Rights and Freedoms
which is expressed similarly
like article 33 (2) of the 1992
constitution by which novel
remedies that are responsive to
the needs of particular cases
may not only be warranted but
also required to effectuate
compliance with article 19(1) of
the Constitution. I do not think
for a moment that the purposes
acknowledged by the Supreme
Court in the R v Morin case
(supra), is any different from
that for which article 19(1) of
the 1992 Constitution was
intended to achieve and hope
that in future we shall seeking
guidance from countries such as
Canada to lay down guidelines
for compliance in terms of what
is meant by “a fair hearing
within a reasonable time” in
criminal cases.
From the record of appeal before
us, the parties were first
arraigned before the trial judge
on August 11, 2009. The trial of
the case was commenced on the
same date but unfortunately
pended before the court until
December 05, 2013 when judgment
was delivered in the matter. The
evidence contained in the record
of appeal is not bulky and had
the learned trial judge adverted
his mind to the obligation
imposed on him by article 19
(1), he would have directed a
more expeditious course of trial
in order to achieve the
constitutional purpose intended
to be given effect to in the
trial of criminal cases.
In the course of the trial had
in the trial High Court, there
were adjournments granted in
between the reception of
evidence that endured in some
cases beyond six months. It is
to be observed that trial judges
in criminal cases should
endeavour to have some
indication from prosecuting
attorneys and or prosecutors and
counsel for the accused in terms
of the probable length of the
trial and where possible get
their collaboration and
assistance in making the
witnesses available for the
matter to be dealt with
expeditiously. There can be no
justification for the reception
of evidence in a criminal matter
in which witnesses are all
within the jurisdiction to span
the period August 11, 2009, to
January 24, 2012. Then there is
the period between the
submissions of addresses which
ended on April 24, 2013 and the
delivery of judgment almost
eight months thereafter
notwithstanding the statutory
period of six months allowed for
High Courts. These defaults have
been pointed out of several
others to demonstrate that the
learned trial judge lost control
of the proceedings contrary to
the obligation which he assumed
by virtue of article 19 (1).
Although no issue has been
raised in the matter herein
concerning these defaults,
attention is drawn to them for
the purpose of future guidance
in order to ensure that as the
guardians of the constitution,
our courts will rise up to the
expectation of society by
ensuring their observance of the
provisions whose enjoyment they
are required to superintend.
SGD N. S. GBADEGBE
(JUSTICE OF THE
SUPREME COURT)
SGD V. J. M. DOTSE
(JUSTICE OF THE
SUPREME COURT)
SGD A. A. BENIN
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
ALBERT ADAARE FOR THE
APPELLANT/APPELLANT
ASIAMA SAMPONG (CHIEF STATE
ATTORNEY) FOR THE
RESPONDENT/RESPONDENT |
