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  • appeal
  • 1960-04-14
  • GLR 91-96
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Criminal law?-Inadequacy of judgment given without reasons?-Statement by accused person to police?-Desirability of independent witness to statement not limited to murder cases.


The appellant was convicted of attempted abortion. It was ground common to the prosecution and defence that Yaa Adomah was pregnant by appellant, that she had complained of stomach pains and that appellant gave her some medicine which she drank and that the same evening she became ill and was taken to hospital. There was no medical evidence as to her state of health on admission to hospital, or throughout her stay there, beyond the fact that she was pregnant, and that a pregnancy could cause stomach pains. After her discharge from hospital she was still pregnant.On the day following the administration of the medicine, the appellant made a statement to a detective constable. The appellant spoke in Brong, a language which the constable later said he understood but could not speak. In consequence, the statement was not recorded, but only what purported to be the constable's English translation of it. The purported translation, which included a confession that appellant had administered the medicine in an attempt to cause an abortion was admitted in evidence at the trial. [p.92]The trial took place before Scott J., sitting with assessors. There was a material conflict of evidence between the prosecution witnesses. The appellant, who admitted in evidence that he had made a statement to the police, denied that the statement had included the inculpatory words appearing in the constable?'s translation.He appealed against the conviction to the Court of Appeal.


APPEAL against a conviction for attempted abortion by Scott J. at Sunyani on June 29, 1959. The facts are fully dealt with in the judgment.


Van Lare, J.A. delivered the judgment of the court: This is another case in which we have, with regret, to review and comment upon the summing-up and judgment of a judge of Assize sitting with assessors.

The appellant was charged with attempted abortion, and on this charge he was convicted before Scott J., and sentenced to three years I.H.L. It was said that he had intentionally and unlawfully administered a certain liquid to a woman one Cecilia Yaa Adomah, with intent to commit the said offence. This woman was the first witness for the Crown. She said, inter alia, that she was called by the appellant to a room where Kwabena Owusu was also present. She told the appellant (who knew that she was pregnant) that she was having pains in her stomach. The appellant told her that he would give her medicine to stop the pains. He then gave her some medicine, which he said was for her stomach pains. She took the medicine. Later, she was seized with vomiting, and was removed to hospital. She did not abort, and was still pregnant when giving her evidence. In cross-examination by the appellant she said that in Owusu's room he had told her that he had medicine for stomach trouble, and that he told her to drink the medicine and her pains would cease. She was not, on any supposition that she was hostile, cross-examined by counsel for the prosecution, but in answer to an assessor she repeated that the appellant had told her the medicine was for stomach pains. [p.93]

The whole of this evidence not only raised a doubt as to any guilty intent of the part of the appellant, but it strongly supported his own evidence that it was not true that he had given the complainant medicine in order to cause abortion, or for any reason other than to relieve her stomach pains. P.W.1 was in fact sent to the hospital by her father when she was found to be vomiting. She told her father something, and it must not be presumed against the appellant that she told her father any more than she told the court at the trial. With this evidence of the woman the evidence of other prosecution witnesses was in conflict.

The prosecution tendered?-and it was admitted in evidence?-a voluntary statement made to the police by the appellant after caution, in which he is alleged to have said, inter alia, that P.W.1 had asked him to give her medicine to cause abortion, and that he had then mixed camphor with a small quantity of Schnapps in an Independence Cup and put it on the table. He is said to have added, " The mixture could easily cause a abortion", and further, that later in the night he heard that she had been taken to Berekum Hospital with a strong stomach ache. The police officer who took the appellant's statement deposed to its having been made in Brong, which the witness understood, though he did not speak it.

He translated the Brong statement into English, recorded it in the latter language, and then re-translated it to the accused from English (possibly into Twi, which the constable said he understood and " was almost the same " as Brong).

The appellant appeared to understand it, and signed it. The witness then charged the appellant who said, " I rely on my former statement." The appellant then cross-examined the constable, who denied that the appellant had said that P.W.1 complained to him of stomach pains.

Kwabena Owusu (P.W.2) said that when P.W.1 came to his room, appellant told her to drink some medicine. He told her further that she should drink it to cause an abortion, as her family were troubling him about her pregnancy. He (the witness) did not see P.W.1 drink the medicine, but he heard what was said.

The medical officer (P.W.5) said that P.W.1 was aged about 15 years, and was 12 weeks pregnant. He continued, "Pregnancy at that stage may sometimes cause stomach pains. I would say that camphor mixed with Schnapps is a vicious substance to give to any woman who is pregnant. In my view camphor and Schnapps given in a sufficiently large amount to a pregnant woman could cause abortion." In cross-examination he said that he could not tell when he examined P.W. 1 whether she had been given camphor and Schnapps, but that she had told him that she had been given medicine to cause her to abort. There was, in fact, no evidence as to the dosage said to have been given to the woman, whether small or sufficiently large to cause abortion, apart from the proven fact that she did not abort.

The appellant gave evidence in his own defence. In chief he said,

?"I am a mason. I live at Biadan. I know P.W.1 and P.W.2, P.W.1 was a friend of mine, and later her father P.W.3 gave her to me to marry. I married P.W. 1. I mean she conceived for me, and her father gave her to me P.W.1 complained to me she was suffering from her [p.94] stomach, and went back to her house. I consulted P.W.2. I told him what P.W.1 told me. P.W.2 asked me to come to his house. I went there. P.W.2 prepared medicine in a cup, and said I should give P.W.1 and her stomach-trouble would stop. I sent one Kwaku to call P.W.1. P.W.1. came later. I gave her medicine. P.W.1 drank medicine, and left. After P.W.1 left I also left, and that evening I heard P.W.1 had been taken to hospital. Following morning I visited her at the hospital at Berekum. I later returned to my village. I heard police were after me, I went to police, and at police station I gave my statement to police. I was then placed in cells. I was next day granted bail,?"

and in cross-examination,

?"I did not suggest to P.W.2 when he was in witness box that it was he who prepared medicine. I thought I would explain when I gave my evidence. It is not true that I told P.W.1 I was giving her medicine to cause abortion. P.W.2 did not speak truth. I did not question P.W.3 (the girl's father), as I thought I could explain when I gave my evidence. I knew P.W.2 was not a doctor, but he is educated. P.W.1 never complained of stomach pains before she had conceived. I did not give her medicine to cause abortion. I gave statement Exhibit "A" to police. I did not say in statement that I mixed camphor with Schnapps in Independence Cup, and gave it to P. W. I to cause an abortion. I gave police statement, and I signed statement."

To an assessor he said,

I have been a friend of P.W.2 for about four years. It was first time I had known P.W.2 to treat anybody for stomach trouble, but P.W.2 told me he had drunk medicine himself before."

We have thought it desirable to refer to the evidence in detail for the reason that there is much in it that calls for comment. The learned judge, however, made no comment. His summing-up, and his judgment when dealing with the evidence, consisted merely in a bald recounting of the evidence, without either comment or criticism, and without suggesting any reasons why any particular witness should be believed or disbelieved. He directed the assessors that if they accepted and believed the accused's evidence they should state their opinion as Not Guilty, and if they believed the evidence of the prosecution then their opinion should be stated as Guilty. In his judgment he dealt with the matter thus, in what seems to have become a set formula:

"After I had summed up, the assessors unanimously stated that the accused was guilty of the offence. With this opinion I am in entire agreement, as I believe and accept the evidence of the prosecution. I find the accused guilty as charged, and convict him accordingly."

We do not desire to repeat ad nauseam what we have on several occasions emphasised, that the procedure adopted on this as on other occasions is not in compliance with section 300 (2) of the Criminal Procedure Code, Cap. 10. The danger of injustice with which such irregularity is fraught is pointedly illustrated by the present case, and we refer again to the decision of this court in the case of R. v. Sarpong [1959] G.L.R. 383. [p.95]

To begin with, the invitation to find (and eventually to find) the appellant guilty on the simple basis of "accepting and believing the evidence of the prosecution?", involves finding him guilty upon the evidence of P.W.1, who deposed only to facts which were from beginning to end consistent only with his innocence, and which could not on the face of them be supposed to incriminate him. Even if they were not positively exculpatory, they at least introduced a doubt. We find it impossible to understand how it can be thought right to say in effect to a jury, or to one's self: " If you accept the evidence of the prosecution (which contains the seeds of its own destruction in the doubt introduced by a part of it) then you should find the accused guilty."

In the case of R. v. Grunshie (1 W.A.L.R. at p. 39), to which we refer in another context later, the court, commenting on the decision in R. v. Murtagh and Another (39 Cr.App. R. 72), said,

?"We are of the opinion that, having regard to the evidence, it was pre-eminently essential for the judge to make clear in directing the assessors and himself, bearing in mind throughout that it was not for the accused to establish his innocence, not only whether the explanation of the appellant was true before they must acquit, but also, short of the explanation being true, if it left them in doubt they must acquit; and also, thirdly, on consideration of the whole of the evidence they must be satisfied of the guilt of the appellant of the crime alleged against him before they could convict. We are unable to say that if these directions had been given the verdict would have been the same; we are therefore of the opinion that there had been a misdirection on the burden of proof in this case."

Further than this, the evidence of P.W.1 supported the appellant?'s denial that he had made a voluntary confession of his guilt in the statement which he made to the police officer. That statement itself calls for comment, upon grounds to which no consideration was given by the learned judge of assize. To those experienced in the criminal law a suggestion that a police officer in his zeal for the success of a prosecution may introduce into a voluntary statement incriminatory matter which he omits later when reading the statement to the accused, comes as no matter for surprise. There is no doctrine of police infallibility.

We draw attention to the views expressed by the West African Court of Appeal in the case of R.v. Grunshie (1 W.A.L.R. 36), where it was held that:

"(ii) Where police take a voluntary statement from a prisoner it is desirable for them, particularly for a confession statement in a murder case, to require the presence of an independent civilian witness who understands what is being said, and who is present throughout the time the statement is being taken. The civilian witness should sign the statement, as a witness, on its completion."

In the present case no independent witness was present when the statement was taken. We do not regard the reference to "confession in a murder case" as constituting any limitation on this wise and necessary precaution, and even if it be not a rule of procedure it is certainly, in our opinion, a matter to which attention should have been given in the trial [p.96] of this case. In fact, It received no consideration; nor did further fact that the appellant, who was supposed to have made a full and frank confession of guilt said, when formally charged, ?"I rely on my former statement.?" There is, as we have earlier indicated, the further consideration that the evidence of P.W.1 supports the appellant?'s denial that he made any confession to the police officer, who alone was present when the statement was made and read over.

On a full and careful consideration of the whole of the proceedings in the court below we are forced to the decision that the procedure was so irregular and unsatisfactory (by reason of misdirection and non-direction) as to make it impossible for this court to allow the conviction to stand. The appeal is therefore allowed. The conviction and sentence are set aside and quashed, a finding of Not Guilty is entered. The appellant is acquitted, and it is ordered that he be discharged.


Appeal allowed

Plaintiff / Appellant

In person.

Defendant / Respondent

Boison for respondent (Crown).


(1)  R. v. Sarpong [1959] G.L.R. 383.

(2)  R. v. Grunshie 1 W.A.L.R. 36.

(3)  R. v. Murtagh and Another 39 Cr. App. R. 72.

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