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  • appeal
  • 1960-06-22
  • GLR 193-194
  • Print



Criminal Law?-Child-stealingEvidence?-"Admission of having done wrong?" not necessarily a confession that a crime has been committed?-Lies told by a prisoner in his own defence not necessarily conclusive of the case against him?-Proper direction where evidence is circumstantial?-Inadequacy of uncritical judicial direction.


The appellant was charged before Scott J. sitting with assessors for child stealing.At the trial one witness said that she saw appellant at night with the child (aged 5) going in the direction of a fetish. The appellant explained to her that the child was showing him to a certain house. On further questioning, the appellant ran to the bush, leaving the child behind. Three other prosecution witnesses said that later that night they saw appellant and in answer to their questions, he admitted he ?"had done it?" and apologised. He also gave the explanation that he took the child only for the purpose of having a certain house pointed out to him, and that he ran into the bush for fear of being harmed by the other villagers. The Odikro of the village said that when he asked the appellant if the allegation of stealing the child was true, the appellant replied it ?"was true, he had done wrong."In his defence, appellant said he had never seen the child and the evidence of the prosecution witnesses was fabricated to punish him for having insulted a fetish. The appellant was convicted and sentenced to 3 years I.H.L. On appeal the conviction and sentence were quashed.


APPEAL against a conviction for child stealing by Scott J. sitting with assessors on June 25, 1959 at Assizes held at Sunyani. [p.194]


Granville Sharp, J.A. delivered the judgment of the court. (His lordship referred to the evidence and continued).

The finding that in the appellant?'s evidence he no doubt lied does not conclude the matter against him. The evidence of the prosecution has to be considered first, for the burden rests upon the prosecution to prove guilt beyond any reasonable doubt.

The learned judge reviewed the evidence, but it does not appear from the record that he made any comment upon it, or gave any directions to the assessors (or to himself) as to its possible effect in law. His recorded note is as follows:?-

"Assessors told if evidence of accused accepted, opinion should be stated as not guilty. If after consideration of all evidence they find Prosecution's case proved, opinion should be stated as guilty. If they entertain any reasonable doubt, accused entitled to benefit of that doubt, and opinion should be stated as not guilty."

We much regret that we have to repeat that in our considered opinion this procedure is not satisfactory, and if followed can often lead to an injustice. If the appellant had been represented by counsel he might well have never been called into the witness-box, because the evidence of the prosecution itself contained certain elements of doubt that would then have come under consideration.

In the first place, it must be said that a confession of having " done wrong ", accompanied by an apology, does not (especially in this country) necessarily amount to a confession that a crime has been committed. It often means no more than this, " If what I have done has given you offence, I beg you to forgive me." Apart from these alleged admissions on the part of the appellant, the case against him rested upon circumstantial evidence. The question which ought to have been (but was not) considered by the learned judge, and upon which he ought to have directed both the assessors and himself, was: "Do the circumstances in which the accused was found with the child point necessarily to his guilt, and to no other logical conclusion." The explanation which had repeatedly been given by the appellant should have been pointed out as being one of the matters that had to be considered in arriving at an answer to this question. This was not done.

For ourselves, we cannot find on the recorded evidence that the prosecution evidence necessarily justified a conclusion that, in terms of section 209 of Criminal Code, the appellant took the child, or detained him, ?"with intent to deprive of the possession or control of him" some person entitled thereto. A probability that the appellant's explanation may have been true cannot be excluded. It does not appear that this received any consideration, either in the minds of the assessors, or in the mind of the learned judge himself.

For these reasons, on the 10th June, 1960 we allowed the appeal, quashed the conviction and sentence and ordered that the appellant should be discharged.


<P>Appeal allowed.</P>&nbsp;

Plaintiff / Appellant

In person.

Defendant / Respondent

Glasgow for respondent (Crown).


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