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JELR 81072 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



 Blackall, P. The appellant in this case was convicted of the Murder of one Kwabene Agyekum.

The confession by the accused in the form of a statement made to the Police, was tendered in evidence by the prosecution at the trial. Counsel for the defence objected and asked leave to cross-examine the Police witness to whom it was made. This was granted, and the Court after hearing the cross-examination of this witness and of the eighth witness for the prosecution, and Counsel’s objection, admitted the evidence.

It was argued before this Court that the trial Judge should have called upon the accused to give evidence of the circumstances under which the statement was made, but as no application to call him was made by the defence there is no substance in this point.

It was further submitted that the learned Judge should have ordered the jury to retire during the argument as to the admissibility of the confession. The case of R. v. Chadwick (1) was cited in support. The headnote to that report is couched in somewhat wider terms than the judgment itself, which does not appear to have gone any further than to comment adversely on the fact that certain evidence in the particular case, which would properly have been heard in the absence of the jury, was heard in their presence. This accords with the usual practice at criminal trials, where the jury is not required to retire during the hearing of argument on the admissibility of evidence unless the argument would involve the mention of matters which could not be given in evidence, and which might affect the minds of the jury in a manner adverse to the accused. No authority was cited in support of the proposition that the Judge should order the jury to retire where, as in the present case, no request for this to be done was made by the defence. On the contrary, Hewart, L.C.J., observed in the case of R. v. Anderson (2):-

“It is difficult to imagine any circumstances in which, except at the request or with the consent of the defence, a jury can possibly be asked to leave the box in order that statements may be made during their absence.” This ground of appeal ,in our view, also fails.

The case for the prosecution rested upon the testimony of the fourth. fifth. and sixth witnesses, and the appellant’s confession. This was corroborated by the discovery in consequence of information given by the appellant of a cloth worn by the deceased on the day of the murder.

The appellant in his confession implicated his fellow workmen the fourth and fifth witnesses for the prosecution. But there was no confirmation of this. On the contrary, there was evidence that there were foot-prints of only two persons at the place where there were signs of a struggle. and foot-prints of only one person from the point where the body of the deceased had been dragged into the bush from the farm.

At the trial the appellant went back upon his confession and denied having had any part in the murder. He did not. however seek to implicate either the fourth or fifth witness for the prosecution on this occasion. and his evidence corroborated theirs in certain respects. e.g.. that he left them on the morning of the murder on the plea of going to the latrine. that on his return they asked him what had happened to his hand and that he replied he had been cut by his own cutlass.

The evidence apart from the confession was circumstantial as so often happens in murder trials, but it is no derogation of evidence to say it is circumstantial; and as there was evidence to support the conviction the appeal must be dismissed.

Appeal dismissed.

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