Rex V. Yaw Barimah (1945)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder—No direction as to reasonable doubt—Case of defence not specifically put to Assessors—Defence however “stupid” must be considered for what it is worth—Confession by accused to a convict—No warning to Assessors—Confession to Prison warder—Judges’ Rules apply to gaolers as to policemen.

Held: Appeal allowed and conviction quashed.

J. B. Dainquah for Appellant. Akufo Addo for Crown.

The following judgment of the Court was delivered by

HARRAGIN, C.J., GOLD COAST :-

In this appeal the irregularities at the trial and summing-up are so numerous that we are of the opinion that the appeal must be allowed.

In the first place nowhere in the summing-up were the assessors directed that “if there was any reasonable doubt the benefit of it should be given to the accused “. It is true that they were directed that it was for the Crown to prove their case, but this is not a sufficient direction—R. v. Sawyer, 3 W.A.C.A., p. 155.

In this case it was of more than usual importance as there were two reasonable doubts that the assessors might have had, the first being as to whether the Appellant committed the crime at all and secondly a doubt as to whether the circumstances were not such as would reduce the orime to one of manslaughter. We are aware that there is a difference between the type of summing-up required when it is a case which is being tried by a jury and a case which is being heard by a Judge sitting with assessors.

In the first case the verdict is that of the jury alone and in the second that of the Judge assisted by the assessors, and it may be presumed that a Judge is aware of legal principles such as those governing the “benefit of the doubt”, but in this case from the Judge’s summing up it is doubtful whether he gave the point the consideration it deserved.

The next point taken by the Appellant is that his ease was never clearly put to the assessors, and with this criticism we must agree. The defence was that the accused was never at the scene of the murder and did not kill the deceased. The case for the Crown was that the Appellant had confessed to the killing to two different people. The learned Judge carefully pointed out how stupid the accused had been in not adopting one of the alleged confessions as he believed it would have reduced the crime to one of manslaughter ; but nowhere does he specifically deal with the accused’s defence ; in fact by his reference to the accused’s stupidity he was in fact dismissing the real defence without examination. In one sentence of the learned Judge’s summing up he goes so far as to indicate what the Appellant’s defence was : and he then sets out the story as to a fight told by the Appellant to his fellow-prisoner, whereas the Appellant had repudiated the confession and was setting up an entirely different story.

It cannot be reiterated to often by this Court that a defence however stupid must be considered for what is is worth.

Again, one of the confessions waa alleged to have been made to a convict whom the Appellant met in a cell, but the assessors were not warned with regard to the weight to be attached to this evidence, while the second confession was made to a prison warder in answer to a question and under circumstances which do not comply with the Judge’s rules relating to confessions. In. Archbold’s Criminal Pleading Evidence & Practice, 31st Ed., at p. 373, it is stated that rule 3 of the Judges’ Rules applies equally to gaolers as to policemen, with which dictum we concur.

There is another misdirection with regard to the doctor’s evidence, where the learned Judge states that the doctor’s evidence is consistent “with the evidence of the constable, who says he saw two wounds on the neck of the deceased”. Nowhere in the doctor’s evidence can we find any reference to two wounds on the neck. In fact his evidence indicates that the neck was so badly eaten away by maggots that it was impossible to form any opinion.

For the above reasons we allowed the appeal and quashed the conviction.

Appeal allowed.