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JUDGMENT

MRS. J. BAMFORD-ADDO, J.S.C.:

This is an appeal from the Judgment of the Court of Appeal which up held the judgment of the Regional Public Tribunal convicting Appellant on a change of Murder, contrary to section 46 of the criminal code 1960 Act 29. The facts according to the Prosecution are that the Appellant and the deceased engaged in a fight but were separated. The Appellant was alleged to have gone to his house nearly to pick a knife with which he chased deceased and stabbed him resulting in his death. The defence case however was that a quarrel ensued between the Accused and some boys including deceased near Appellant's house. He alleged that he was pushed down, stamped upon and beaten with sticks by the boys and as a result sustained injuries. He said while he was being beaten he fell on an object which he picked up and in self defence stabbed the deceased resulting in his death. He said the fight was never separated before he injured the deceased and denied going home after the alleged separation to pick a knife with which he stabbed deceased.

After hearing evidence the Regional Public Tribunal on August 9th 1991 convicted Appellant for murder and sentenced him to death by firing squad. Dissatisfied by his conviction Appellant appealed to the Court of Appeal which dismissed the appeal in February 1995.

The Accused has now appealed to this court on the ground that:

"The judgment cannot be supported having regard to the evidence on record."

For Appellant it was submitted that since an accused is presumed innocent until his guilt is proved the prosecution had a duty to prove his guilt beyond reasonable doubt. That in this case prosecution failed to satisfy the stated burden of proof and further that sufficient doubt was created in the facts, the benefit of which should have been given to the accused.

The defence of Accused was one of self defence and having regard to the evidence, provocation. It is not doubted that it was the accused who caused the injury to deceased leading to his death with a sharp instrument. In support of the prosecution case three witnesses were called, all friends of deceased who were with him at the time of the fight. According to their evidence the accused fought with the deceased and the two were separated. After the separation Appellant went home to pick a knife and while the deceased and his friends were going away from the scene of the fight they heard shouts warning them to run because accused was chasing them with a knife. Appellant caught up with deceased who was running but had bent down to pick something and stabbed him in the chest with a knife. The harm caused to deceased was unlawful and Deceased died while being conveyed to Komfo Anokye Hospital in Kumasi.

The Regional Tribunal when considering the evidence of the three prosecution witness i.e. No. 1, 2 and 3 rightly warned itself thus:

"The first three witnesses were all in the Group of the deceased that night. They were part of the events culminating in the death of deceased. It is incumbent upon the tribunal therefore to put their evidence under the closest scrutiny and the minutest examination.

This is so because they clearly have a stake in the matter and human nature being what it is there is no gain saying the fact that the possibility of their engaging in falsehood or twisting the evidence by embellishment of their story is real. A friend of theirs, the  deceased had died, naturally they would bear whoever caused the death of that friend a grudge and would obviously want to see such person punished. Again they were present when this occurred. The death was a result of a fight in which they could not be total spectators."

With this caution the Tribunal set out to examine the evidence before it and concluded as follows:

"When we take all the evidence adduced together and apply the test in the case of Amartey v. The State reported in (1964) GLR. 256 we come to a clear conviction that, the story of the accused is not true and that the version offered by the prosecution witnesses is in accord with what actually happened. We find the accused guilty of the charge of murder and conclude that the high standard of proof that the law required has been met by the prosecution."

The way and manner that the Tribunal considered the evidence before it having regard to the said caution, discredits the charge made by Appellants Counsel that the Tribunal failed to abide by its own caution and wrongly believed the prosecution's case. This submission is not well founded indeed the tribunal even considered the burden of proof in the case of murder which it stated was of "high standard". Further the Tribunal was never in any doubt about the facts as presented by the prosecution which it believed in preference to defence case and therefore the submission that the benefit of a doubt should have been given to the Appellant as well as the submission that the conviction was not supported by evidence is misconceived.

This same ground which is being canvassed before us was raised by the Appellant in his grounds of appeal to the Court of Appeal and that Court also rightly dismissed the appeal based on that ground. I agree with the decision of the Court of Appeal. If a trial Court which saw and heard witnesses decide on questions of fact raised by the evidence or credibility of witnesses, an appellate Court ought not to interfere with that finding or decision unless there is good reason for doing so. See Thomas Vrs. Thomas (1947) AC. 484 at 487 H/L per Lord Thanker

"Where a question of fact has been tried by a Judge without a jury and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses Could not be sufficient to justify the Trial Courts conclusion..."

See also Nkaeguo Vrs. Kunadu (1974) 2 GLR 151 held in (1) dismissing an appeal

"The two rival stories put up by the parties as to what features divided their lands were primary findings of fact based on the credibility of the witnesses and principally a matter for the trial Court. It is not open to an Appellate Court to differ from the trial court as to the credibility of witnesses safe for good reasons to be recorded by the Appellate Court. The argument that the evidence of defendant's sister should not have been admitted in view of her relationship with the defendant was untenable because that would have made it impossible for the defendant to make out her case and in fact would have denied her justice."

See also Atadi vs. Ladzekpo (1981) GLR 218 citing Nkaeguo vs. Kunadu (supra) which held that

(1) It is well settled that an Appellate Court would not interfere with findings of fact supported by evidence on record made by trial courts……"

(2) There was no well-defined guidelines on the issue of credibility of witnesses. The whole matter was left to the judicial discretion of the trial judge who had the advantage of seeing the witness and hearing them….." see also Praka vs. Ketewa (1964) GLR 423

Having examined the evidence myself I see no reason to disagree with the two lower courts that the prosecution evidence is preferable to the Appellants story and that PW1, 2 and 3 are credible witnesses. The evidence supporting the defences of self defence and provocation raised by the Appellant was also rejected by the trial Tribunal as well as the Court of Appeal. The Court of Appeal affirmed the trial courts decision when it concluded as follows:

"The evidence does not disclose any justification for the stabbing."

While the trial court in considering self-defence and Provocation stated as follows:

"the question to be answered is therefore thus: Has (sic) the accused act in aid of self defence?..... when we look at the stories offered, we are persuaded to accept the version of the witnesses as the truthful one. Their story is consistent.  Even assuming that all of them took part in the fight, we still believe that the fight took place once before and was separated.  The accused clearly went to the house to bring something.  Sufficient time had elapsed between the first blow and the subsequent stabbing of the deceased.  At the time the accused stabbed the deceased he was neither under such extreme provocation to be incapable of controlling himself and his action or such extreme danger as to render his action a self defence."

On the facts it is my view that both defences of provocation and self defence were rightly rejected by the trial Tribunal as well as the Court of Appeal.  At the time Appellant struck the deceased with the knife which he had gone home to fetch his life was not in extreme danger necessitating killing Deceased. The prosecution evidence was the evidence which was believed by the court.  The deceased was not armed and was rather running away when he was attacked and stabbed which goes to show that accused intended to cause death or to cause grievious bodily harm to Deceased.

The law on defences to murder are as provided in Section 31 and 52 of the Criminal Code 1960 Act 29 include self defence and Provocation.

S.37 thereof provides that:

"For the prevention of, or for the defence of himself or any other person against crime or for the suppression or dispersion of a riotous or unlawful assembly, a person S. may justify any force or harm is reasonably necessary extending in case of extreme necessity, even to killing."

And according to

"53 The following matters may amount to extreme provocation to a person to cause the death of another person namely—

a) an unlawful assault and battery committed upon the accused person by the other person either in an unlawful fight or otherwise, which is of such a kind, either in respect of violence or by reason of accompanying words or gestures or other circumstances of insult or aggravation as to be likely to deprive a person being of ordinary character and being in the circumstances in which the accused person was of the power of self control."

But the benefit of provocation would be excluded as stated in S.54 thus

"S.54 Notwithstanding proof on behalf of the accused person

of any matter of extreme provocation the crime shall not be

hereby reduced to manslaughter if it appears:

(a) that he was not in fact deprived of the power of self control by the provocation, or

(b)     .............................................. or

(c) that after the provocation was given and before he did the act which caused the harm, such a time elapsed or such circumstances occurred that an ordinary person might have recovered his self-control  ........"or

(d) that he acted in a manner in respect either of the instrument or means used or of the cruel or other manner in which it was used in which no ordinary person would under the circumstances have been likely to act."

Applying the facts given by the prosecution witnesses and accepted and believed by the trial court to the law as set out above the defences of self defence and provocation would not avail the Appellant. This is because at the time he struck the deceased with the knife Appellant was not in any mortal danger of losing his life, as a result of the fight which had already ended and the deceased was said to be even running away from Appellant at the time. Further he had had enough reasonable time in which to cool down. He even went to his house to pick a knife, with which he chased deceased caught up with him and stabbed him. Mens rea for murder is clearly established by the evidence, see Section 11 and Section 47 of Act 29 i.e. Criminal Code 1960.  The stabbing was clearly unlawful and this unlawful harm meted out to the deceased caused his death. Considering the evidence before the Tribunal the rejection of the two said defences was proper and based on credible evidence which was believed by the said Tribunal and was enough to support a conviction for the offence charged.

Two other submissions were made by Appellant as to why the courts below should not have believed the prosecution witnesses, namely, that

(1) "The doubtful and uncertain evidence adduced by the prosecution required the corroborative evidence of an independent witness"

The evidence of PW 1, PW 2 and PW 3 for the prosecution as to the facts of this case did not require corroboration in the case of murder. Nor did the trial Tribunal find any doubts in the prosecution's case. The tribunal was perfectly entitled to believe the version of the facts given by the prosecution witnesses if it was convinced of their veracity. Even the evidence of one credible witness if believed is enough to support a criminal conviction including murder unless that witnesses was an accomplice.

See Cop vs. Kwashie (1953) 14 WACA 319. In this case the magistrate relied on the evidence of a single witness to convict defendant because he believed him. The Defendant appealed to the Supreme Court which held:

"There was evidence before the Magistrate on which he could properly convict, he believed the witness and there was no suggestion that the witness was an accomplice therefore it was a mistake to reverse the Magistrate's decision to convict."

Per Forster Sutton J.A. presiding

"The Magistrate had the advantage, denied the Appellate Judge, of seeing and hearing the witnesses and there is no rule of law or practice which should make a court hesitate in convicting upon the evidence of one witness in a case where there is no suggestion that the witness is an accomplice, if the court is satisfied with the evidence given."

See also Ackom vs. The Rep. (1974) 2 GLR 419.

The second submission by Appellant was that DW1 was an available material witness but prosecution failed to call him. But then this witness was called by the Defence which required his evidence.  The law is that the prosecution has discretion as to what witness to be called and the Court would not interfere with this discretion of the prosecution. The prosecution is not bound to call a witness which it has reason to believe to be an untruthful witness, and being within their rights not to call DW.1 failure to call him in the circumstances of this case does not affect the out come.

In R,V, Kofi Mensah (1947)12 WACA 113 at 114 counsel for Appellant argued that the absence of relevant witness whose evidence on behalf of the crown might have entitled that appellant to an acquittal. Harragin CJ had this to say on the point:

"The essential difference between that case and the case now under review is that there is ample evidence to support a conviction on the law, even though a relevant witness way have been omitted from the crown case. In any event the law on the subject i.e. clearly set out in the case of Adel Muhammed EI Dabbah v. The Attorney-General for Palestine (1944) AC 156 where it was held by the Judicial Committee of the Privy Council that a prosecutor had a discretion as to what witnesses should be called, and the court would not interfere with that discretion……"

The Appellants argument on this issue is irrelevant and unmeritorious especially when the Appellant himself called DW1 as his witness who supported his case by his evidence.

The main ground of appeal to the effect that the conviction should be set aside as there was no evidence to support it has been clearly demonstrated above as untenable and without any merit.  Appellants other submissions are also irrelevant and his attempt to persuade this court to substitute its findings of fact for that of the trial tribunal, cannot and should not succeed, because as discussed above an appellant court cannot substitute its own finding of fact for that of a trial court which heard and observed the witnesses, unless there is no basis for the finding or unless wrong deductions and implications have been made on the evidence, which is not so in this case.

The Appellant has not in my opinion succeeded in persuading me that his conviction for murder is wrong as not supported by the evidence. This appeal which is without merit, fails and is dismissed.  I would accordingly affirm the decision of the Court of Appeal.

KPEGAH, J.S.C.:

 I also agree.

ADJABENG, J.S.C.:

In this appeal against the decision of the Court of Appeal confirming the decision of the trial Ashanti Regional Public Tribunal which had convicted the appellant of the charge of murder, the only ground of appeal filed and argued is that

"the judgment cannot be supported having regard to the evidence on record".

It is clear from the evidence on the record that there was a fight between the appellant and the deceased. That the two parties were separated and the appellant left for his house while the deceased and his other colleagues continued their journey towards Kwadaso. While going, they heard some people warning them to run away as the appellant was chasing them with a knife. They started running but the appellant caught up with the deceased and stabbed him in the chest as a result of which he died. The post-mortem report issued by the Pathologist on the deceased states in part as follows:-

"TRAUMA:

There is a deep punctured wound over the upper part of the left side of the chest in the fourth interspace.

INTERNAL APPEARANCE:

Thorax — The left plaural cavity contains large amount of blood. The pericardium is filled with large amount of blood. There is a deep penetrating punctured wound over the anterior aspect of the heart in the midline……

CAUSE OF DEATH:

1. Haemorrhagic shock.

2. Massive Haemorrhage.

3. Penetrating lacerated wound of Heart.

4. Punctured wound of chest.

5. By sharp pointed instrument".

It is clear that the description of the injuries or wound given above supports the prosecution's case that the deceased was stabbed. It was not only a wound on the chest of the deceased. It was a deep, punctured, penetrating, lacerated wound going straight to the heart. Who inflicted this wound, and what was its purpose?

The appellant did not deny that he caused this wound. In his statement to the Police, he stated as follows:

"I returned to meet the deceased, Yaw Boateng and four others waiting to fight me at the beer bar area. On reaching there the deceased and the other friends started to insult me where it resulted [in] a fight between us. The deceased Yaw Boateng and his friends began to beat me with sticks. I also laid hands on an iron rod and used same on the deceased".

In his evidence on oath, the appellant said:—

"All of them pounced on me. We struggled for a distance. Then three of them went for sticks. They beat me with the sticks. Then the remaining two also went for sticks and all 5 beat me with the sticks and I became weak. I was injured. There were lacerations at the back as well as a wound at the back of my head. I fell and my head hit the ground and fell on an object. Out of anguish I picked it up and threw it. I was still being beaten. I heard one of them say I had stabbed him. All the rest left me and picked him up. I turned and saw my brothers who advised me to leave the area or I would be killed. I ran away from the place".

It must be noted that even though in his statement to the Police the appellant stated that while he was being beaten with sticks he "laid hands on an iron rod and used same on the deceased", in his evidence on oath at the Court, he only said that while being beaten he fell and his head hit an object which out of anguish he picked and threw. Thus, on oath, the appellant did not mention an iron rod as he had done in his Police statement. Nor did he say that he used the object or iron rod on the deceased as he said in his statement to the Police. He merely and vaguely said on oath at the Court that he picked up an object on the ground and threw it, obviously not aiming at anything. Yet this is the object which caused the punctured, penetrating and deep wound on the deceased's chest and heart resulting in his death.

Indeed, under cross-examination, the appellant was compelled to reluctantly admit that the deceased was stabbed with a knife. I quote the relevant evidence under cross-examination:—

"Q. And that when you were separated you went into the house took a knife and chased him.

A.  That is false.

Q.  In the course of chasing him, you caught up with Him and stabbed him in the chest.

A.  That is false. It was at Komfo Anokye Teaching Hospital that I saw where the knife stabbed him.

Q.  So now you agree that you used a knife.

A.  It was not a knife, I took a metal".

The evidence adduced by the prosecution witness that after the appellant and the deceased had been separated, the appellant went to his house which, according to the evidence, was just around the area of the incident, and took a knife with which he stabbed the deceased, and the appellant's own answer, as quoted above, show beyond reasonable doubt, in my view, that the appellant indeed did as the prosecution witnesses said.

It cannot be doubted then that it was a knife which caused the deep and penetrating wound that was caused to the deceased.  The stabbing was aimed at the heart of the deceased.  And it cannot be doubted that the appellant who caused the fatal wound intended to kill the deceased.  For, what else would such a stab do?

It is not surprising, therefore, that the Ashanti Regional Public Tribunal, constituted by a lawyer, who was the Chairman, and two lay persons, who were entitled to make the  necessary findings of fact after watching and hearing the witnesses made findings which are supported by the evidence adduced at the trial.  Both the evidence of the prosecution and the defence supported, in my view, the conclusion reached by the trial Tribunal.  I have no doubt that they were satisfied beyond reasonable doubt that the stabbing was done by the appellant with the clear intention to kill the deceased, and that the story of the appellant that he acted in self-defence is not reasonably probable having regard to the evidence of the prosecution witnesses, the post-mortem report, and the appellant's own evidence.

In the circumstances, it is my view that the Court of Appeal was right in affirming the trial Tribunal's conviction of the appellant.  The appeal must, therefore, be dismissed.

SOPHIA A.B. AKUFFO, J.S.C.:

On August 09, 1991, the Ashanti Regional Public Tribunal found the Appellant guilty of murder under Section 46 of the Criminal Code, 1960 (Act 29) and sentenced him to death by firing squad. The Appellant's appeal to the Court of Appeal was dismissed and he has appealed to this Court upon the sole ground that the judgment cannot be supported by the evidence on record. In other words, it is the case of the Appellant that the prosecution failed to achieve the standard of proof required of it in a criminal matter.

Briefly, the prosecution's case against the Appellant was that, at about 7.30 p.m., on the night of January 17th, 1991, the deceased and four other persons were on their way to Kwadaso when they met the Appellant in the company of a girl. One of the people accompanying the deceased mispronounced a word and the rest of them laughed at him. The appellant assumed they were laughing at him and, after seeing off the girl, the appellant accosted them and a quarrel ensued which degenerated into a fight between the deceased and the appellant. The fighters were separated and the group continued on their way. However, the appellant went to his house, took a knife and chased the group. He caught up with the deceased and stabbed him in the chest, as a result of which stab-wound the deceased died on the way to the hospital.

The only salient difference between the prosecution's version of the events leading to the stabbing and that of the Appellant was that, according to the Appellant, the fight was never separated. Rather there was only one fight during the course of which, according to the testimony of the Appellant:—

"All of them pounced on me. We struggled for a distance.  Then three of them went for sticks. They beat me with the sticks. Then the remaining two also went for sticks and all 5 beat me with the sticks and I became weak. I was injured. There were lacerations at the back as well as a wound at the back of my head. I fell and my head hit the ground and fell on an object. Out of anguish, I picked it up and threw it. I was still being beaten. I heard one of them say I had stabbed him. All the rest left me and picked him up."

The Appellant, thereafter, went to the hospital because of the injuries he had sustained and it was whilst he was at the hospital that he was arrested. He, therefore, pleaded self-defence.

The law governing the plea of self defence is set out in Section 37 of the Criminal Code, where it is provided that:—

"For the prevention of, or for the defence of himself or any other person against any crime ... a person may justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing."

In arriving at its verdict that the Appellant was guilty as charged, the trial tribunal accepted the version given by PW 1, PW 2, and PW 3, that the fight had been separated, as the more truthful. The Tribunal, therefore, made a finding that sufficient time had elapsed between the first blow and the stabbing of the deceased and that:—

"At the time the accused stabbed the deceased, he was neither under extreme provocation to render him incapable of controlling himself and his action or such extreme danger as to render his action a self defence."

Likewise, the Court of Appeal, in a rather terse judgment, held that:—

"The facts in this case do not show that the appellant had any lawful excuse for stabbing the deceased. The deceased died from the stabbing which cannot be justified under law."

In a trial for murder, the three elements, each of which must be established by the prosecution, are that:—

a.   the accused caused an unlawful harm to the deceased

b.   the death of the accused was caused by the unlawful harm

C.  the accused had the intention to cause the death of the deceased by the unlawful harm.

There was never any real doubt that the deceased died as a result of the injuries inflicted upon him by the Appellant. In this case, the matter, therefore, hinged on whether or not the Appellant intended to cause the death of the Appellant by that harm. In criminal law, intention is a question of fact to be determined by the jury or the tribunal or judge, as the case may be, on the totality of the evidence adduced at the trial. However, it is a well-established principle of criminal law that intent is generally incapable of direct proof. Rather it is inferred from proven facts. (See Bruce V. Commissioner of Police [1963] 1 GLR 36; Gariba V. the State [1963] 2 GLR 54 and Duah V. the State [1963] 2 GLR 385).

In this case, the determination of the issue of intent was dependent on whether or not the fight was separated before the stabbing occurred. Since the Appellant disputed the prosecution's case that the fight had been separated, the burden of producing sufficient evidence to establish this critical fact was that of the Prosecution. The duty of the Tribunal was to satisfy itself that the Prosecution had carried this burden to the statutory standard of proof.

Section 11 (2) of the Evidence Decree, 1975 (NRCD 323) stipulates that:—

"In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt."

The Tribunal accepted the Prosecution's version of the facts and chose to ignore that of the accused. Upon an analysis of the judgment, it seems clear that the Tribunal misdirected itself when weighing the evidence. The Tribunal felt itself persuaded to accept the story according to the three companions of the deceased because it was consistent. As the Tribunal expressed it:—

"Even assuming that all of them took part in the fight, we still believe that the fight took place once before and was separated. The accused clearly went to the house to bring something."

It is not enough, particularly in a murder case where there is a dispute between the prosecution and the defence on a material fact, to accept the Prosecution's version simply on the basis that it is the more believable or truthful one. The evidence produced by the Prosecution in support of its case must be critically examined, as well as that of the accused. Cogent reasons must be given for preferring one to the other. If the defence story, when tested against all the evidence, is reasonably probable, even if not believed, then the Prosecution must be found to have failed in carrying its burden. Thus in the case of Amartey V. The State, [1964] GLR 256, it was held that:—

"Where a question boils down to oath against oath, especially in a criminal case, the trial judge should first consider the version of the prosecution, applying to it all the tests and principles governing credibility of witnesses; when satisfied that the prosecution's witnesses are worthy of belief, consideration should then be given to the credibility of the accused's story, and if the accused's case is disbelieved, the judge should consider whether short of believing it, the accused's story is reasonably probable."

In the case of Regina V. Abisa Grunshie (1955) WALR 36, the duty of the trial court, at the close of the case, was clearly laid down by van Lare CJ as follows:—

"It is the duty of the judge in directing the jury, or himself as the case may be, particularly where the account advanced by the prosecution differs from that of the defence by only a narrow issue of fact, to make clear to the jury the effect of the three views which may be induced on weighing the evidence:—

a.   if the explanation of the accused is accepted they must acquit;

b.    if the explanation of the accused falls short of acceptance but nevertheless creates a doubt they must acquit;

C.  quite apart from the explanation of the accused, they must on a consideration of the whole evidence, be satisfied of the guilt of the accused before they may convict.

Likewise, in Regina V. Wunuah (1957) 3 WALR 303, the Court held that:—

"Generally, it is improper to approach a defence on the basis of requiring it to be shown to be true. Regardless of whether a defence is proved to be true, an accused is entitled to

acquittal if his defence ... might reasonably be true."

In Lutterodt V. Commissioner of Police, [1963] 2 GLR, 429, Ollennu JSC stated the matter as follows:—

"Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case had 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 provided 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 the defence together and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict."

Rather than subjecting the prosecution's story to critical examination and testing the same against the totality of the evidence, it was on the defence story that the tribunal focused, as though the burden laid on the Appellant. No cogent reasons were given for preferring the prosecution story, other than that it was consistent. On the other hand, in dismissing the veracity of the defence story, the tribunal reasoned as follows:—

"In the accused (sic) statement to the police, he stated as follows:

'At about 9 p.m. when I saw a certain girl whom in fact I don't know her name I led her half way'.

Even though this piece of information from the accused may seem irrelevant to the issue at stake, we consider it was very important. It is not normal for one to just decide to see a girl one does not know off at 9 p.m. Why did the accused say he did not know the girl? This in our view is because the girl may offer some vital evidence, which may perhaps not be beneficial to the accused. The accused therefore intentionally keeps the girl out. This lie told by the accused shows that he is able to suppress information. If he can suppress one piece of information, can't he suppress another?"

Thus in one simple stroke, the tribunal cast aside the credibility of the Appellant, merely on the basis of its own suppositions and conjecture, not in any way supported by any proof. In normal life, is it not probable that a young man could seek to strike up acquaintance with a girl he does not know, and whom he meets at night, by seeing her off?

The Tribunal, in a similar vein continued:—

"It is pertinent that the accused did not state that the deceased and his friends laughed at him. He only stated that they insulted him. We find it more believable that the deceased and his friends laughed   ... was that a sufficient reason for the accused to have done what he did?"

There was no basis for choosing laughter over insult. Furthermore, it was not the story of the accused that he stabbed the deceased because he had insulted (or laughed at) him. It was that the stabbing was in self-defence during the fight that ensued. Thus it was immaterial whether it was laughter or insults that provoked the fight in the first place.

Again the Tribunal continued that:—

"In his statement to the police ... the accused stated as follows:—

'I also laid hands on an iron rod and used same on the deceased'

Then on 1/6/91 when he swore an affidavit in support of his motion for bail, he stated in paragraph 4 'That in the extreme danger in which I was exposed, I lay hands on an object and threw at the assailants to ward them off'

In paragraph 5 of the same affidavit, he states:

'That one of them was severely injured, I was told later'.

These statements are obviously inconsistent with each other.

Using the iron rod is clearly different from throwing an object to ward off the assailants."

Yet, earlier on in the judgment, the tribunal had made the observation that "the autopsy report mentions 'a sharp pointed instrument' as the weapon. This could have been a knife, a metal or even a sharpened stick.'

With further regards to the autopsy report, it is worth mentioning that the trauma suffered by the deceased was described as:—

"A deep punctured wound over the upper part of the left side of the chest in the forth interspace."

In the light of this, it was incumbent on the tribunal to have tested the testimonies of both the prosecution witnesses and the defence against this important piece of evidence.  Would the position of the wound be more probable if it was inflicted whilst the deceased was running away and had bent down to pick up a stick, or if it had been inflicted whilst he was in a face to face tussle with his assailant?  Since the cause of death was consistent with the defence, it was the duty of the tribunal to direct itself to take a view more favourable to the appellant.  (see Regina v. Abisa Grunshie (supra))  The tribunal did not even attempt to apply the probability test to the defence case on this respect.

The Prosecution, other than tendering the autopsy report through the investigating officer, failed to call the pathologist who had performed the autopsy and prepared the report.  As a result, there was no opportunity to establish the exact forensic nature of the wound that caused the death of the deceased. Since the case of the prosecution was that the deceased and his friends were running away from the Appellant at the time the wound was inflicted, the nature of the wound would have been affected by the position in which the deceased was at the moment the same was inflicted.  Therefore, a more detailed evidence from the pathologist was necessary. Consequently, the pathologist was a material witness.  There is no evidence that he was not available to testify.  The failure to call him means that the Prosecution's case was incomplete and not proven beyond reasonable doubt. (see Regina V. Ansere (1958) 3 WALR, 185).

Had the tribunal applied to the Prosecution's case the same stringent test for consistency as it had to the defence case, it would have had to resolve the discrepancies in the evidence of the three prosecution witnesses as to who did the separation of the fight. PW 1 testified in his evidence-in-chief that it was the onlookers.  However, on cross-examination he said it was separated by him, the three other companions and a boy who was holding him.  Later still, he said they, one boy and a girl who were with the accused did it.  PW 2 merely stated that the fight was separated.  PW 3 said "We separated them'.  The Tribunal made a finding that "the fight was separated by the members of the group and the brother of the accused — DW1".  Nowhere in the written statement of DW1 or his oral testimony, or in the testimony of any of the prosecution witnesses, was any mention made to DW1 in this connection.  The Tribunal would also have had to satisfy itself that on a dark night on a road without street lights, it was possible for casual bystanders to see a knife in the hand of the Appellant.

In concluding its judgment, the Tribunal stated that:—

"When we take all the evidence adduced together, and apply the test in Amartey v. the State, we come to a clear conviction that the story of the accused is not true and that the version offered by the prosecution witnesses is in accord with what actually happened."

It is quite clear however that the tribunal failed to apply the test enunciated in the Amartey case, or indeed any test at all.  It simply proceeded on the basis that the Appellant was lying and the prosecution case was more believable.

For the foregoing reasons the conviction of the Accused cannot be allowed to stand.

EDWARD WIREDU, J.S.C.:

I have carefully read all the opinions in this matter and I fully agree with the opinion of my sister Sophia Akuffo which I think is consistent with the evidence on record.

COUNSEL

David Kuduadzie for the Appellant.

Owusu Chief State Attorney for the Respondent.

I.W.