Rex V. Francis Buae Akatia & Ors (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Evidence of accused implicating co-accused—Gold CoastCriminal Code, sections 15 (2) and 48 (1).

A prisoner who goes into the witness box to give evidence may exculpate or inculpate a co-prisoner, and is in the same position as an ordinary witness and may be cross-examined by the co-prisoner.

Cases referred to:

1. R. v. Hadwen, 20 Cox C.C. 206. (1902), 1 K.B. 882. 71 L.J.K.B. 581. 86 L.T. 601. 66 J.P. 456. 18 T.L.R. 555. 46 Sol. Jo. 464.
2. R. v. Macdonnell, 2 Cr. App. R. 322. 73 J.P. 490. 25 T.L.R. 808. 53 Sol. Jo. 745.
3. R. v. Paul, 14 Cr. App. R. 155. (1920), 2 K.B. 183. 89 L.J.K.B. 801. 123 L.T. 336. 84 J.P. 144. 36 T.L.R. 418. 64 Sol. Jo. 447. 26 Cox C.C. 619.
4. R. v. Haslam, 1 Leach 418, C.C.R.

Appeals from the Supreme Court of the Gold Coast.

Crowther–Nicol for Appellants.

Bossman for Crown.

The following judgment was delivered:

Harragin, C.J. In this case nineteen persons were charged with the murder of one man before the Judge of the Western Division sitting with a jury at Axim.

The case was a very lengthy one and the voluminous summing-up covered every point of importance.

The relevant facts are shortly as follows :

The deceased was the Registrar of the Native Court in his district. A tax had been imposed in the area for which the Chief and the deceased were supposed to be responsible, and one portion of the inhabitants, the Agendas, objected to the payment of the tax as a result of which a woman by the name of Somah was summoned for failing to pay her levy. She failed to attend the Court, judgment was given against her and she was arrested and placed in the Ahenfie. Upon the Agendas hearing of this they broke open the gate and released the woman as a

result of which certain of them wtea charged before the District Comtnissioner at Axim. The deceased was to havebeea me of thewitnesses against the accused persons.

The evidence for the Crown was to the effect that the Agendas, including all the appellants in this case, held a meeting on the Monday before the killing to consider what action should be taken and at the meeting it was agreed that if the deceased or his friend Morkeh attempted to proceed to Axim (for the purpose of giving evidence) they would be prevented from so doing and if necessary killed. In due course on the day in question, the Tuesday, the deceased attempted to proceed to Axim in a lorry, and in accordance with their plan the appellants and others stopped the lorry, pulled the deceased out of it and proceeded to kill him and hide the body.

Certain facts are beyond dispute, namely that certain members of the Agenda Party held a protest meeting with regard to the deceased and Morkeh giving evidence before the District Commissioner, and it is beyond dispute that when the deceased attempted to proceed to Axim his lorry was stopped and he was killed. So determined were the Agendas that they stopped a lorry before the one an which the deceased was travelling and satisfied themselves that he was not on board before allowing it to proceed. The defence allege that the killing was not “art of the preconceived plan arranged at the meeting which was merely to stop the deceased from giving evidence and that he was killed by the third appellant (who admitted it in evidence) on account of an old private grudge which had nothing to do with the other appellants. They further state that the only witness for the Crown who spoke as to the intention to kill was a man by the name of Ndarku who was an accomplice whose evidence was not corroborated, the story for the appellants being that the question of killing never arose, but that it was in fact their intention to kidnap the deceased in order to prevent him from giving evidence and that no one was more surprised than themselves when the third appellant took up an iron her and killed the deceased after he had descended from the lorry and obviously abandoned his intention to proceed to Axim to give evidence.

The first matter for consideration is whether Ndarku was in fact an accomplice or not. He undoubtedly attended the meeting of the Agenda Party when he says they contemplated this murder, but immediately after the meeting he went off and warned Morkeh of the intentions of the Agendas and Morkeh in turn warned the deceased.

In our view the action of Ndarku in giving this warning shows beyond dispute that he dissociated himself with the contemplated murder by the Agenda Party, and we are not of the opinion that he was an accomplice from which it follows that it was unnecessary that his evidence should be corroborated. Even assuming, however, that Ndarku should be considered as an accomplice there was ample corroboration. In fact, corroboration was to be found not only in the actions of the witness Ndarku himself but by some of the appellants when they went into the box to give evidence. It should here be noted that when the twelfth appellant Aborten Acker (eighteenth accused person) gave evidence the Court explained to the jury that evidence led by an 4ccused person to incriminate another accused, is not admissible against the other accused which direction though most favourable to the appellants is not correct in law. A prisoner who goes into the box to give evidence may exculpate or inculpate a co-prisoner (R. v. Hadwes & Attar. (1)) and R. v. Macdonnell (2). He is in the same position as an ordinary witness and may be cross-examined by the co-prisoner (R. v. James Paul & Amor. (3) ).

It should further be noted that the rule requiring corroboration of accomplices does not apply where the witness is not an accomplice in the particular crime with which the prisoner is charged (R. v. Hastam (4) ).

However, in spite of this direction the Jury were satisfied that the evidence for the Crown, under all the circumstances, was overwhelming, for it was proved beyond doubt that the appellants were present at the meeting which Ndarku stated had agreed to kill the deceased, could he not be prevented from proceeding to Axim to give evidence. The deceased did attempt to go to Axim. He was stopped by a crowd of the Agendas and there has been identification of all the appellants in that crowd. The crowd were obviously determined and armed. The deceased vas dragged from the lorry along the mad and killed with a piece of iron and the bony hidden.

Sections 15 (2) and 47 (1) of the Criminal Code (Cap. 9) on these facts place the law beyond dispute. Section 15 (2) reads as follows :-

” If an event is caused by acts of several persons acting either jointly or independently, each of those persons who has intentionally or negligently contributed to cause the event shall, subject to the provisions of the next sub-section of this section, and to the provisions of Title 5 with respect to abetment, be deemed to have caused the event; but any matter of exemption, justification, extenuation, or aggravation which exists in the case of any one of those persons shall have effect in his case, whether it exists or not in the case of any of the other persons.”

Section 47 (1) also reads as follows :—

⁴¹ We & perm abets a particular crime, or abets a crime against or in. respect of a particular person or thing, and the person abetted actually commits a different crime, or commits the crime against or in respect of a different person or thing or in a manner different from that which was intended by the abettor, the following provisions shall have effect, that is to say:—

1. If it appears that the crime actually committed was not a probable consequence of the endeavour to commit, nor was substantially the same as the crime which the abettor intended to abet, nor was within the scope of the abetment, the abettor shall be punishable for his abetment of the crime which he intended to abet in the manner provided by this Title with respect to the abetment of crimes which are not actually committed; and
2. In any other case, the abettor shall be deemed to have abetted the crime which was actually committed and shall be liable to punishment accordingly.”

Illustration sub-section (2):

” Persons assemble together for the purpose of breaking open a prison and releasing a prisoner by force.. Some of them are armed. If murder is committed by one of these in breaking open the prison, all persons, whether armed or, not, who took part in or otherwise abetted the breaking open the prison, are guilty of abetting murder, if they knew that arms were carried and were intended or likely to be used.”

There is not the slightest doubt but that each and all of the appellants intentionally contributed to this murder and even if some of them may not have originally contemplated murder they certainly contemplated kidnapping the deceased, and the murder in the circumstances was a probable consequence of the endeavour to kidnap.

The jury were properly directed with regard to the law in this case save in the one particular matter to which we have called attention and even there, if the learned Judge erred, it was in favour of the appellants and not against them.

Counsel for the appellants has stressed that some of them are young boys and were acting under the influence of their elders though he does not suggest that

any of them were under eighteen. This is a matter for the consideration of the Executive and it will no doubt receive the consideration that it deserves when the matter is before the Governor in Council.

The appeals are dismissed.

Appeals dismissed.