George Kwaku Danso & Anor V. The King (1950)
LawGlobal Hub Judgment Report – West African Court of Appeal
Joint Trial—Discretion of the Judge to be exercised judicially—Appellable court will not interfere unless st appears that a miscarriage of justice has resulted from joint trial—Misdirection—Cautioned statement by second Appellant implicating first Appellant admitted against the first Appellant where second Appellant has given evidence and denied making the statement—Application of proviso to section 10 (1) of the West African Court of Appeal Ordinance relating to power of Court to uphold conviction notwithstanding misdirection considered—Absence of power to order new trial commented on.
Facts
The two appellants were convicted of murder. Objection was raised to a joint trial. The Crown case was based on the assumption that the appellants had acted in concert. The first appellant also complained of misdirection on the grounds that the Judge held that a cautioned statement made by the second appellant to the police was admissible evidence against the first appellant, notwithstanding that the second appellant denied on oath ever having made the statement.
The Crown conceded misdirection but submitted that there had been no miscarriage of justice and that the conviction of the second appellant could be upheld by applying the proviso to section 10 (1) of the West African Court of Appeal Ordinance (Cap. 5) which is in precisely the same terms as the proviso to section 4 (1) of the Criminal Appeal Act, 1907. The Court commented on its inability to order a new trial—a power which exists in other Colonies.
Held
The joint trial had occasioned no miscarriage of justice and the Judge had properly exercised his discretion. There was misdirection in taking into account against the first appellant the statement of the second appellant, and that in the circumstances of this case the proviso to section 10 (1) of the West African Court of Appeal should not be applied. The Court commented on the absence of any power to order a ‘Yew trial and endorsed the views expressed by the Court of Appeal in England in Rex v. Stoddart (3) that such a power was an absolute necessity.
Appeal of the first Appellant allowed.
Appeal of the second Appellant dismissed.
