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THE STATE v. SOWAH AND ESSEL


  • appeal
  • 1961-12-01
  • SUPREME COURT
  • GLR 743-747
  • Print

VAN LARE, SARKODEE-ADOO AND CRABBE, JJ.S.C.


Summary

Criminal law and procedure?-Burden of proof?-Whether guilt can be presumed merely from facts proved by prosecution.

Headnotes

At the trial of the accused who both pleaded not guilty the learned trial judge said:"I am satisfied beyond reasonable doubt that the accused entered the room of P.W. 1 by breaking open the lock and stole the items specified in the second count despite the fact that none of these articles were found.I was so satisfied before the accused gave evidence." Both accused were convicted and subsequently appealed.

Judgement

APPEALS against convictions for unlawful entry and stealing by Simpson J. sitting with the aid of assessors at the Kumasi Criminal Sessions on the 5th May, 1961.

JUDGMENT OF CRABBE J.S.C.

Crabbe, J.S.C. delivered the judgment of the court. The appellants were jointly charged on two counts, one of unlawful entry and the second of stealing, and were convicted by Simpson, J. The simple facts which were proved in support of the charges were that the second appellant and the complainant (P.W.2) lived in one room in the house of one Osei Kwabena at Asafo in Kumasi. On the day of the alleged unlawful entry and stealing the complainant said that he left home for business at about 7 a.m. after having locked his door and taken his key with him. Later the same day the two appellants were seen in the room of the complainant by the house-owner, Osei Kwabena, who thinking that the second appellant had obtained the key from the complainant at the latter's place of business asked no questions and went and sat by a friend outside the house. Soon the two appellants came out of the house and the first appellant was seen carrying two handbags on his head. The behaviour of the appellants aroused the suspicion of the house-owner who then went into the house and found that the latch on the complainant's door had been broken. He sent to the market for the complainant who came to the house, and it was thereupon discovered that the articles enumerated in count two had been stolen.

It must be said at the outset in fairness to the learned trial judge that there is some evidence, which, if believed, would justify the convictions of the appellants, but we may say in the words of Cassels, J. in R. v. McKenna1 that, "Plain though many juries may have thought this case, the principle at stake is more important than the case itself". [p.745]

The judgment in this case was brief and after a similarly brief review of the evidence for the prosecution the learned trial judge said as follows:

"I am satisfied beyond reasonable doubt that the accused entered the room of P.W. 1 by breaking open the lock and stole the items specified in the second count despite the fact that none of these articles were found".

The passage is immediately followed by the following sentence: "I was so satisfied before the accused gave evidence".

In our view the above passage and the sentence when considered in their contexts mean no more than that the learned trial judge became fully convinced of the guilt of the appellants solely on the evidence for the prosecution and before each appellant opened his defence to the charges. This we think put the onus on the appellants to prove their innocence.

With very great respect to the learned trial judge we think that these expressions in his judgment constitute such a serious misdirection as completely destroys the golden thread which according to Viscount Sankey, L.C., in the Woolmington v. D.P.P.2, runs through the web of the English criminal law. The burden of proof in a criminal trial is not fully discharged until the guilt of the accused is made to appear from the evidence in the case.

At the trial each appellant pleaded not guilty to both counts in the indictment. Such a plea normally puts in issue every fact essential to constitute the crime charged and, "Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from the evidence" per Harlan J. in Davis v. U.S.3

In a criminal case, except in the instance of sanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence. It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed, and which, therefore, calls for explanation by the accused.

"'Presumptions of guilt' and 'prima facie' cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offence with which he is charged".

See Woolmington v. D.P.P.4 [p.746]

In the recent case of R v. Ojojo5 it was said:

?"It is a well established principle that before a jury can consider the case for the defence, whether they believe it or not, they must be satisfied that the prosecution has affirmatively proved its case. In our view it is only when the jury is satisfied that the prosecution has proved its case that it can turn to the defence, and consider whether the defence answers the case proved by the prosecution?".

We think that this passage taken out of its context might well have led the learned trial judge into thinking that at the close of the case for the prosecution the accused is to be called upon if it appears from the evidence at that stage that the prosecution has established the guilt of the accused.

The above quotation is, however, followed by the following passage:

?"The proper direction is that if the defence answers the case for the prosecution, then the jury should find the prisoner not guilty; or if the defence raises a reasonable doubt in the mind of the jury on the case for the prosecution, the prisoner is entitled to acquittal, because there is a doubt. The jury must be told that they can return a verdict of guilty only when they are so satisfied on the consideration of the case as a whole?".

R. v. Ojojo (supra) is a case in which the trial judge had allowed the case to go to the jury even though he himself had entertained a doubt on the case for the prosecution, and the Court of Appeal before laying down the principle contained in the foregoing passage had asked the following question: "If at the close of the case for the prosecution there was a doubt as to whether or not the appellant had committed any offence of which he could lawfully be convicted on the information upon which he was being tried, why was he called upon to enter a defence?". In our view when the court in that case said that the jury "must be satisfied that the prosecution has affirmatively proved its case" it meant no more than to emphasise the general rule adumbrated in the maxim ei qui affirmat non ei qui negat incumbit probatio and that the words "satisfied" and "affirmatively" have no reference to proof beyond reasonable doubt which stage can only be reached after considering the case for the defence.

Each appellant in this case gave evidence. The defence of the first appellant was an alibi, and the second appellant whilst admitting that he went to the house in question denied categorically that he entered the room of the complainant and committed the two offences with which he was charged. In the circumstances it was essential for the learned trial judge in weighing the evidence to direct his mind to the three possible positions in which he might find himself, bearing in mind throughout that it was for the prosecution to displace the presumption of innocence in favour of the appellants, that is to say: (1) if he accepted the explanations of the appellants he must acquit them; (2) short of accepting that explanation, if it left him in doubt, he must acquit them; (3) he must be satisfied of the guilt of the appellants of the crimes alleged against them only on consideration of the whole evidence adduced in the case. (See R. v. Murtagh and Kennedy6). [p.747]

It does not appear from the judgment that the learned trial judge considered these points, and the expression "I was so satisfied before the accused gave evidence" in the judgment leaves us with the impression that the learned trial judge prejudged the guilt of the appellants before he heard them. We think that the learned trial judge erred because evidence for the prosecution merely displaces the presumption of innocence but the guilt of the accused is not put beyond reasonable doubt until the accused himself has given evidence. In Woolmington v. D.P.P. (supra) Viscount Sankey, L.C. said:

"If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence".7

For the above reasons we allow the appeal of each appellant, quash the convictions, set aside the sentences and order an acquittal and discharge of each appellant.

Decision

<P>Appeals allowed. </P> <P>Appellants acquitted and discharged.</P>

Plaintiff / Appellant

Appellants in person.

Defendant / Respondent

K. Dua Sakyi

Referals

(1) R. v. McKenna [1960] 1 Q.B. 411

(2) Woolmington v. D.P.P. [1935] A.G. 462, H.L.

(3) Davis v. U.S. 160 U.S. 469

(4) R. v. Ojojo [1959] G.L.R. 207

(5) R. v. Murtagh and Kennedy (1955) 39 Cr.  App.  R. 72.

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