Blackall, P. Leave to appeal to this Court was granted to the appellants, who were convicted of having murdered James Kobina Forson on the 10th February, 1949. The appellants were tried and convicted at the Accra Assizes of last July, before Hooper, J., and a jury. The trial was a protracted one, extending over many days, but the jury returned their verdict of “guilty against both men, after retiring for a period of only fifteen minutes.
Applications that the cases against the two appellants should be tried separately were made by their Counsel at the outset of the trial, and it was argued before us that Hooper, J., was wrong in refusing the applications, inasmuch as there was in the case a statement (Exhibit “J”) made by the appellant, Whenton, which implicated the appellant Danso. A similar argument was put forward in the well-known case of R. v. Byown and Kennedy (1), but was rejected by the Court of Criminal Appeal, who referred in their judgment to Rex v. Gibbins (2), I where the Court had said:-
“The rule is that it is a matter for the discretion of the Judge at the trial whether two people jointly indicted should be tried together or separately. But the Judge must exercise his discretion judicially. If he has done so, this Court will not interfere, but that is subject to this qualification. If it appeared to this Court that a miscarriage of justice had resulted from the prisoners being tried together, it would quash the conviction.”
In the present case the trial Judge exercised his discretion judicially. As the case for the Crown was that the accused acted in concert, and as the defences put forward by the appellants did not involve accusations by one prisoner against the other, it cannot be said that any miscarriage of justice resulted from I the Judge's decision on the point.
It was further submitted to this Court that the learned Judge should have acceded to Counsel's application to have the argument on this point heard in the absence of the jury, as counsel did not wish them to hear the grounds for the application. That, again, was a matter for the trial Judge's discretion, and we cannot think that his refusal resulted in a miscarriage of justice; for since the Judge decided that the appellants should be tried together, the contents of Exhibit “J” were bound in any event to become known to the jury as that exhibit was admissible evidence against Whenton, although not against Danso.
Of the other grounds put forward, the first applies to both appellants, the second to Danso only. The first of these was a submission that the trial Judge had failed adequately, or at all, to put the defence of the appellants to the jury or to direct them that the defence of each should be considered separately. It is to be observed, in this connexion, that the summing-up, as it appears on the record, does not purport to be a full or verbatim report of all that was said by the learned Judge, and that there occurs, at page 69 of the record, the following note: “Here Judge reads over the evidence of the principal witnesses both for the prosecution and defence to jury.” Moreover, the Judge, in a written report to this Court, called attention to the fact that his lengthy summing-up had, unfortunately, not been typed out in full. We have, however, given careful consideration to these submissions on behalf of the appellants, but have come to the conclusion that, taking the case and the summing-up as a whole, there is no real justification for criticism on this score. The defences of both appellants consisted very largely of complete denials of all the allegations made by the witness Barnor and the other Crown witnesses, and-save as regards the events subsequent to the disappearance of the deceased man, Forson-they followed on similar lines. We are of opinion that the case on behalf of each appellant was fairly and adequately presented to the jury by the learned judge, both as to that part of the case which amounted to denials, and as to the defences of each appellant, in so far as they were separate defences, in relation to the events which followed the disappearance of Forson.
The last and, in our opinion, by far the most serious allegation of misdirection affects the case of Danso only. It relates to the Judge's direction on the legal effect of Exhibit “J”, which was a cautioned statement alleged to have been given to the police by the appellant Whenton on the 8th or 9th of April, 1949.
The general effect of that statement was to incriminate Danso, and to exculpate Whenton. At the trial, Whenton denied having made the statement at all, and as he did not repeat his allegations against Danso when he went into the box and gave evidence on oath, it is clear that the statement was evidence against Whenton only, and not in any sense against Danso.
The summing-up of the trial Judge, however, contains two passages which, in relation to Exhibit “J” have been strenuously attacked by Counsel for the appellant, Danso. The first of these occurs at page 65 of the record, where the learned Judge says:-
“The statement of Whenton, the second accused, made after being cautioned, as to the hitting on the head or the 'cracking' of Forson by the first accused would, as I explained to you during the course of the trial, never have been evidence against the first accused on account of the rule where there are two or more accused persons and one gives evidence in- criminating another, that person's evidence binds himself only, and not the person he seeks to incriminate; but that rule disappears where the person concerned goes into the witness box and subjects himself to cross examination; and that is what has happened in this case.”
It is true that this passage is directly concerned with the medical evidence as to the nature of the injuries to the skull of the deceased. But the impression upon the jury-assuming that they were disposed to attach any weight to Exhibit “J”, despite Whenton's retraction-would be that the statement was evidence against Danso, which, in law, it clearly was not.
The learned Judge again referred to this matter in a portion of the summing-up which is to be found at page 69 of the record, and which reads as follows:- “You have got the statement of the second accused-evidence with regard to the hitting of the head-that is an important piece of evidence which you have to bear in mind.”
It is true that the Judge at once proceeded to direct the jury to consider the evidence as a whole. But there is nothing on record to show that he said anything calculated to remove the impression that a very damning part of Exhibit “J” could be evidence against Danso.
There can be no question that these two passages amount to a substantial misdirection on an important point of law in regard to an alleged confession by Danso. It was properly conceded by Crown Counsel that they amounted to such a serious misdirection as to part of the evidence in relation to the case against Danso that the conviction could not stand unless the proviso to section 10 (1) of the West African Court of Appeal Ordinance (Cap. 5) were to be applied. Mr. Rodwell, however, submitted that this was a case in which this should be done.
The proviso in question reads as follows:-
Provided that the Court may notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.”
The proviso is in precisely the same terms as the proviso to section 4 (1) of the English Criminal Appeal Act, 1907, and we have examined a large number of decisions illustrating the principles on which the Court of Criminal Appeal acts in deciding whether or not to apply the proviso. We have been unable to discover any case in which the proviso was invoked where an alleged confession of murder had been wrongly admitted in evidence, but this would not, of course, preclude this Court from applying it if we thought proper to do so, and we have considered very carefully and anxiously whether the Court should exercise its powers under the proviso with regard to Danso. There is no doubt in our minds that there was plenty of evidence, if the jury accepted the testimony of the witnesses for the prosecution, to justify a verdict of guilty against Danso, and if they had been properly directed, such a verdict would not be open to criticism. But in view of the seriousness of misdirection and its possible effect on the minds of the jury the majority of the Court do not feel, on the whole, quite satisfied that the case is one in which the proviso should be applied. As the opinion of the majority is the judgment of the Court, the appeal of the first appellant, Danso, must therefore be allowed and his conviction quashed.
In the case of the second appellant, Whenton, as already indicated, we find no substance in the complaint as to his not having had a separate trial, nor can any valid criticism, in our view, be levelled against the summing-up, and as there was ample evidence to support the verdict of the jury, this appeal is dismissed .
We would add that we have had the greatest difficulty over this case and the Court realises that in quashing Danso's conviction a guilty person may well be escaping justice. We desire to repeat and endorse the words of the Court of Criminal Appeal in Rex v. Stoddart (3), which aptly apply to the present case:-
“This appeal has brought out in strong relief the absolute necessity in the interests of justice of this Court having the power in exceptional cases to order a new trial. Such a power would be rarely exercised: but if there be in any case strong evidence upon which the jury, if properly directed, might have found a verdict of guilty, in the interests of justice the Court should have the power to direct a new trial.”
This power exists in the legislation of other Colonies, e.g. Trinidad and in Australia, and it is only because we were unable to order a new trial in the case of Danso that the Court felt constrained to quash his conviction.
Appeal of the first Appellant allowed. Appeal Of the second Appellant dismissed.