Rex V. Wungari Lobi (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Murder—Unworn evidence of child of tender years—GoldCoast Oaths Ordinance, section 17 (3)—Nece.ssity for corroboration—” Corro-boration “—Necessity for directi4n as to corroboration.

The appellant was convicted of murder largely upon the unworn evidence of a child of about six years of age, whose evidence was admitted under section 17 (3) of the Gold Coast Oaths Ordinance. There was corroboration of the evidence of the child that the appellant struck the deceased a fatal blow but not of the circumstances spoken to by the child which indicated that the offence was murder and ndthing else. The accused gave evidence_.(not inconsistent with the Police and other evidence) tending to show that the killing of the deceased had been preceded by some sort of fight which would afford legal protection to the accused. The trial Judge neither invited the assessors to consider, nor himself considered, whether the evidence of the child as to the circumstances of the assault was corroborated in a material particular by any other piece of evidence inconsistent with the view that the assault on the deceased was committed under provocation or in self-defence.

There being no corroboration of the evidence of the child on the only question in dispute, namely, whether the circumstances of the killing were such as to reduce the crime to something less than murder, the conviction for murder was quashed and a conviction for manslaughter substituted.

Corroboration must be such as, in a material particular, implicates the accused in the crime of which he is to be convicted.

Case referred to :-

(1) R. v. Norris, 12 Cr. App. R. 1⁶.56; 86 L.J.K.B. 810; 116 L.T. 160; 25 Cox C.C. 60.

Appeal from the Supreme Court of the Gold Coast.

011ennu for Appellant.

Rodwell, Crown Counsel, for Crown.

The following judgment was delivered:

Blackall, P. This is an appeal from a conviction for murder before Korsah, J., at Kumasi.

The case for the Crown depended largely upon the unswOm evidence of a child about six years of age who stated that she and her grandfather (the deceased) were going one morning to tap palm wine when they met the appellant who asked the deceased for water. The deceased replied that he had none, whereupon, the appellant, she alleged, struck the deceased with a stick on the back of his head. She then ran away. She admitted that her grandfather bad with him a small knife, but denied that he had brandished this knife or that he had cut the appellant with a cutlass. She further stated that the appellant struck the deceased twice before she ran away and that the deceased fell down after the first blow. A witness, Kwame Akah, gave evidence to the effect that he heard some shouts, ran out to the road and saw the appellant striking with a stick the deceased who was lying on the ground. There was medical evidence that the death was due to injuries received from violent blows with a blunt instrument.

The appellant in his evidence at the trial stated that he asked the deceased to sell him some palm wine, whereupon the deceased immediately cut him with a

knife and threatened to cut him with a cutlass and that as he (the appellant) turned to go the deceased cut him with a cutlass three times and it was only then that he struck the deceased with a cudgel.

There was evidence that the appellant received one wound during a struggle in the course of his apprehension, but there is also evidence that when first seen by the Police he was suffering from more than one wound. Moreover, although the child denied that the deceased used a cutlass, one was found by the Police about two feet from the body.

The unsworn evidence of the child was admitted under section 17 (3) of the Oaths Ordinance (Cap. 206) the effect of which is that no conviction can be based upon the uncorroborated evidence of a child of tender years whose evidence is taken not upon oath. The corroboration, in our view, must be in a material particular implicating the accused in the crime of which he is to be convicted.

In the present case Kwame Akah’s evidence corroborated the fact stated by the girl that the accused had struck the deceased a fatal blow on the head without there being present any apparent circumstances which• would make the offence anything less than murder. Had this evidence stood alone and unchallenged it would have been sufficient to justify a conviction for murder, because there was evidence to corroborate the child’s story in a material particular implicating the accused in the crime of murder, that is in the killing of the old man Yaw Boa with malice aforethought and without apparent provocation in the legal sense or any circumstances suggesting justifiable self defence.

But the application of the rule laid down in section 17 (3) did not end there. On the accused giving evidence (which was not inconsistent with the Police and other evidence) tending to show that the killing of the old man had beeu preceded by some sort of fight which would afford legal provocation to the accused, the Court should have invited the assessors to consider, and should itself have considered whether the evidence given by the child as to the circumstances of the assault (which, if accepted, would have rebutted the accused’s version of the affair and supported a conviction for murder) was corroborated in a material particular by any other piece of evidence inconsistent with the view that the assault on the deceased was committed under provocation or in self-defence. Unless there was such corroboration of the child’s evidence the Court should have directed the assessors and itself that there could not be a conviction for murder, and the Court should have proceeded to consider whether the killing was manslaughter or whether it was done in self-defence.

There is, however, no indication either in his notes of the summing-up or in his report that the learned Judge considered the need for corroboration on the only question in dispute, that is, whether the circumstances of the killing were such as to reduce the crime to something less than murder. The case nearest in point to the instant one that we have been able to find is Rex v. Norris (1). In that case, like the present, the question of corroboration was all-important and as Counsel for the Crown were unable to show corroboration of the only question in dispute, viz., guilty knowledge by appellant, the conviction was quashed. In the present case there was likewise no corroboration on the only question in dispute, so the conviction for murder cannot stand. There was, however, corroboration sufficient to support a conviction for manslaughter, for even if the appellant’s evidence that the deceased first attacked him were accepted it is clear from the evidence of Kwame Akah that the appellant continued to strike the deceased when the latter was lying defenceless on the ground. The conviction for murder is therefore quashed and a conviction for manslaughter substituted and a sentence of ten years’ imprisonment with hard labour imposed.

Appeal allowed and conviction for manslaughter substituted.