Rex V. Philip Jonah & Ors (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Joint commission of felony resulting inofProof required—Identification by one Accused_ of, another—Question of admissibility of evidence of

The facts of the case are sufficiently set out in the judgment

D. Alakija for Appellant. Ivor Brace for Crown.

The following judgment was delivered:— DEANE, C.J., GOLD COAST.

On 21st December, 1933, a gang of men, who had whitened their faces so as to conceal their identity as far as possible, executed a night raid at the house of one, Adebiyi Omot)e,, at Alight Village, and carried away his property—they also in the course of the raid inflicted injuries upon Adebiyi Omoba as the result of which he died a day or two after. Later, on information obtained by the police, eight men were arrested, and in ilut course brought to trial on 1st October, charged with the murder of Adebiyi Omoba, and of them appellant and three others were convicted on the charge, the other four being acquitted. Against his conviction and sentence of death the appellant has appealed.

Four elements must necessarily be proved to sustain a conviction in a case of this kind—it must be proved

1. That a common design was formed to break in and rob.
2. That in the execution of that design violence was used.
3. That as the result of that violence death ensued,
4. That the person charged was one of the: person who took part in the raid.

As to the first three elements being present in the occurrences which took place that night there is no dispute; the controversy in this case centres around the proof that appellant was present taking part in the raid, and it will be necessary therefor to examine in what way the Crown has discharged the onus upon it to prove that requisite of the conviction. For a short statement of the facts that were placed before the jury in order to establish that allegation against the appellant I cannot do better than refer to the statement of how he summed up to the jury, forwarded to this Court by the learned trial Judge. ” As regards the first

accused ” (the appellant) he states ” I pointed out that there was -Rex no direct evidence that he was a party to the common design orv.
that he took any active part in carrying it out—except the ^rhiliP statement of the witness Agbabiaka that the second accused Jonah Lasisi Makinde had at an identification parade on 17th April, . ors.

1934, identified the first accused as a member of the gang who

Deane, C.J.

conceived and carried out the common design “” As

regards other evidence against the accused I pointed out that there was nothing whatever except the evidence about the two plates and the cup.”

Now in the last part of this statement the learned Judge is referring to the fact that, about four months after thb night of the raid, two plates and a cup were found by the police at the house of the accused which were claimed by the wife of the deceased, one Adeoti, as part of the property stolen and as strenuously claimed as their property by the accused and his wife. They were common crockery such as might be in the possession of any one, and although the prosecution laid stress upon certain characteristics which were pointed out as identification marks, by which they were known to Adeoti as confirming her ownership those characteristics were not in our opinion of such a convincing nature that the presence of them can be relied on as satisfactory evidence of identification. As the learned Judge, moreover, reminded the jury ” even if Adeoti’s evidence were true as to the ownership of the plates and cup, the fact of the plates and cup being in the possession of the accused might be accounted for by the accused or his wife having purchased, or otherwise acquired, stolen property without the first accused being a party to the common design or present at the carrying out of it.” The evidence, therefore, afforded by the plates and cup was, we may take, it held by the learned Judge, even if the jury believed that they belonged to Adeoti, to be of small value to prove that accused had been present at the raid, although no doubt it was put forward as a circumstance to be taken into consideration along with the other evidence. The other evidence which is referred to as ” direct evidence that accused was a party to the common design ” and ” took an active part in carrying it out ” was the statement made by the witness Agbabiaka that the second accused, Lasisi Makinde, had at an identification parade on 17th April, 1934, identified the first accused as a member of the gang who conceived and carried out the common design.

Now as to this statement it would appear that the second accused had made a statement to a police Superintendent by the name of Agbabiaka in which he had given the names of a number of men who with himself he alleged had constituted the gang which raided the house of the deceased on the 21st December, 1933; and at an identification parade held on 17th April, 1934, had identified the appellant as one of the men; whereupon the appellant had at once denied the truth of the statement implicating him. At the trial of the case, moreover, in October Lasisi in the

witness box had denied that he had ever idea member of any raiding gang, *ad had gone that he had never seen him before his erred,. of R. v. Norton 1910 X.B.D. 496 it was laid statement is made in the presence of a prisoner

Deane, C.J. and the truth of that statement is at once unequivocally -denied by the prisoner, it is not evidence against the pthoner and  not be allowed to go to the jury: if the statement is admitted wholly or in part, by words or by conduct, it is eidmissade -not because of the statement itself but because of the prieoner’s admission, and upon this authority it is clear that the statement of Lasisi implicating the prisoner ought not to have been given in evidence against the appellant.

For the Crown, however, it is argued that R. v. Norton is no longer law and that it was laid dowu in the case of R. v. Christie (1914) 10 C.A.R. 141 that evidence could be given by anyone present of a statement identifying a prisoner—it will be necessary therefore to examine that case to see how far it bears out this contention. Christie’s case was a case of a man being charged with an assault upon a very young boy : from the report of the case it appears that at the trial the mother of the boy stated in evidence that about 10 a.m. he left her and that ehe next saw him about 10,30 a.m.—after describing his then condition she stated that she took him across the field”, and there saw a ^–man with whom she had a conversation and Chrietiewoe then fetched—she was asked whether the boy said anything in the presence and hearing of Christie: she answered in the affirmative and objection was raised to the admission in evidence of the conversation—her evidence was then interrupted and the boy was called. He related the story of the assault, and when asked by evangel if he cou1.1 see the man in Court who committed it, he pointed to Christie—counsel for the defence did not cross eVidenee of the mother was then resumed, and she was again linked whether the boy said anything in Christie’s presence—counsel for the defence again objected, and argued upon the authority of the Court of Criminal Appeal in the King v. Norton that the evidence was not admissible, inasmuch as Christie had denied the statement made in his presence—thee evidence was admitted. The mother then stated that as she and the boy were going towards Christie the boy said : ” That is the man, Mum. Crooks, a police constable, was standing close to Christie and asked ” What man?” The boy went up close to Christie and said: ” That is the old man, Mum “, and proceeded to give a- description of the acts done by Christie, who replied : ” I am innocent.” Police constable Crooks, when called, said that the boy in answer to the question ” which is the man?” Went up to Christie, touched him on the sleeve and said : ” That is the mum.” The police constable asked: ” What did he do to you?” and tho = boy then gave an account of the various acts done by Chriatio, wh_o answered

evidence of the- mother end.the – police constable lad been

admitted contra)^, to t-_-aid down in R. v. Norton and

quashed the- couvietion.-matter then came before Ale House

of Lords at the -ico of the Attorney-General, who argued -that

the evidence woe admissible.- At the urgument before that House counsel for the raPondent :tooh no obiection to the admission of the statement ” that is t = ‘-¹– but objected to the admission-of the -additional words:describing vitriol’s acts done by Christie. Lord Reading in his judgment stated “= In my judgment it -would be a dangerous extension of the law regulating the edmissilaility of evidence. if Tour Lordships- were to allow proof of statements made narrating, or describing the events constituting the offence on the ground that they form part _:of, or explain, the act of identification . . . have found no case in which such statement has been admitted.,”

Lord Moulton said—”- Speaking -.for myself =I haveat

difficulty in seeing how this evidence is admissible on the ground that it is part of the evidence of identification—to prove identification of the prisoner by ^a= person who is, I shall assume, an adult, it is necessary -to call that person as a witness—identification is an act of the mind and the primary evidence -of what was passing in the mind of a man is his own testimony, where it can be:-obtained. It would ^–be very dangerous to allow evidence to be given of: ^–a man’s words and actions, in order to show that by this extrinsic -evidence that he identified the.iprisoner if he was capable^–of being called as a witness and was not veiled. to prove by direct evidence, that= he had -thus identified him,. Such a mode of proving: identification would in my opinion be to use secondary evidence where -primary evidence was obtainable, and this is contrary to the spirit-of the English rules of evidence.” While the. Lord Chancellor expressed his = agreement with Lord Moulton as =showing his doubt whether in the circumstances even the act of identification could be proved. After expressing^– his concurrence generally with the judgments of the other Lord:s he stated : ” The only point on which I desire to guard myself is the admissibility of the statement in question as evidence of identification–for the boy gave evidence at the trial and if his evidence =was required for identification of the prisoner that evidence ought in my opinion to have been his direct evidence in the witness box, and not evidence of what he said elsewhere.” In the result the Rouse of Lords affirmed the decision of the Court of Criminal Appeal that the conviction of Christie should be quashed. They laid it down as a rule-of law that an incriminating statement made in the hearing of the defendant, even on an occasion which should reasonably be expected to call for some explanation from hink is not evidence against him on his trial of the facts therein stated save in so far as he has accepted the state

ment, and although they also held that the rules of civil and criminal evidence are theoretically the same so that a mere denial by him of the truth of such a statement does not in law render that statement inadmissible against him, to that extent overruling R. v. Norton, they went on to point out that in practice there is a rule of prudence and discretion that such a statement should not be tendered until in the opinion of the Judge there is a foundation for a reasonable inference by the jury that the defendant accepted it or part of it—it notwithstanding this rule such a. statement has been given in evidence, the Judge, if he thinks it should have been withheld, should caution the jury concerning its true effect—in this respect the judgment in R. v. Norton represents the correct practice.Now it is to be noted that in Christie’s case, the boy gave evidence at the trial detailing the acts complained of against the accused. He was not asked, and said nothing about, what he said when he identified the accused although it corresponds with what he had just said—the evidence of his mother and of the police constable stating how he identified the accused and detailing what he said about him was held to have been wrongly treated by the trial Judge as evidence against the accused and his conviction was quashed. This is a much stronger case than Christie’s case; here we have it that Lasisi in the witness box absolutely denied the truth of the very statement he was said to have made. But in the case of Target Tillson. Birch 18 C.A.R. 26 it was held that when a witness has made a sworn statement in his depositions against a prisoner, and at the subsequent trial of the case gives evidence on oath that his deposition is untrue, even the deposition cannot be evidence against the prisoner. By no possibility, then, can it be held in the circumstances that the unsworn statement made by Lasisi is evidence at all. Yet the learned Judge treated it as such. In his summing up to the jury we find him directing them that the identification of the first accused, if in fact, made was an identification by an accomplice. By this he means : “If you believe the evidence of Agbabiaka that Lasisi identified the accused as a member of the gang that raided the deceased’s house that night, you have him identifying the accused as a member of the gang, but of course you must remember that his evidence is the evidence of an accomplice and therefore needs corroboration.” That is a misdirection. Lasisi in his evidence stated that he did not know the accused before his arrest. He gave no evidenc? of any kind to the effect spoken of by the learned Judge, and the evidence of Agbabiaka cannot possibly make evidence of a statement by him which was denied at the time by the accused, and which was subsequently contradicted on oath in the witness box by Lasisi himself. That is apparent on the face of it.