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HYCIENTH EGBE
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
3RD DAY OF NOVEMBER, 1950
2PLR/1950/29 (WACA)
OTHER CITATION(S)
2PLR/1950/29 (WACA)
(1950) XIII WACA PP. 105 – 107
LEX (1950) – XIII WACA 105 – 107
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
VERITY, C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
HYCIENTH EGBE – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP.3297 /50
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REPRESENTATION
F. R. A. Williams — for Appellant
Egbuna, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Standard of Proof required in a criminal trial – Where evidence shows inconsistencies and contradictions – Duty of the Judge to express clearly and in detail conclusions reached – Mere statement that Judge had no reasonable doubt – Sufficiency of
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CASE SUMMARY
The appellant was convicted of murder. The evidence revealed contradictions and inconsistencies and there was only one eye-witness of the crime. Although the Judge observed that he had no reasonable doubt whatever as to the guilt of the appellant, he had also remarked that all the criminal law of evidence is only the evidence of probabilities.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
The record of the Supreme Court left this Court in a state of uncertainty as to a matter of outstanding importance, namely the considerations which affected the mind of the Judge when he came to weigh the effect of the evidence. The conviction was quashed.
Case referred to:
(1) Rex v. White, 4, F. &, F 383 at 384.
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MAIN JUDGMENT
The following Judgement was delivered:
VERITY, C.J., NIGERIA
In this appeal against a conviction for murder, we have already announced our decision to quash the conviction. We will now give our reasons for that decision.
The evidence at the trial before Protheroe, J., as a Judge sitting alone, was such as to call for a particularly careful and exact examination and analysis, having regard to certain inconsistencies and matters of conflict, more particularly in relation to time, distances and the degree of light or darkness which prevailed when certain alleged incidents were taking place: there was, furthermore, only one professed eye-witness of the crime, and the police evidence, in the opinion of the Judge, was by no means satisfactory.
In such circumstances, it was imperative, in our view, that the learned Judge should have given great attention to these matters, and to the credibility of the witnesses; and that having done so, he should have made it plain that he had arrived at detailed and very definite conclusions, and should have set them down – conclusions based, not, of course, on possibilities or probabilities, but on that degree of certainty which is a sine qua non in criminal trials. But after perusing the record, and considering certain expressions used, and comments made, as to the evidence by the learned Judge in the course of his judgment, we entertained grave doubts as to whether those responsibilities had been adequately discharged by him.
It is true that the Judge eventually found the appellant guilty upon the evidence, and that he placed it on record that he had ”no reasonable doubt whatever” as to his guilt. But that statement is not of itself sufficient to dispel the doubts which must arise from a critical examination of the judgment. It is of the first importance, when this Court is considering a case of this kind on appeal, that we should be able to assure ourselves that the reasoning and mental processes by which the Judge reached his conclusions were such as to conform with the requirements of the law. It is not possible for us to disregard, therefore, an observation by the Judge which is recorded at the foot of page 14 of the record and at the top of page 15. For the learned Judge, when weighing the evidence of the appellant appears to have expressed himself in the following terms:-
“Of course, he cannot be judged by my judgment of a section of the community, but all the Criminal Law of Evidence is only the evidence of ‘probabilities’”
What meaning is to be attached to that observation? It must be assumed that when dealing with a question of law – particularly in a murder trial – the Judge has weighed his words, and we have felt bound to give them their plain, ordinary meaning, namely, that the true test of evidence in criminal trials is the balance of probability. It would be difficult to conceive of a statement more calculated to mislead. In a trial with a jury, such an observation by the Judge would constitute so grave a misdirection as to the law that it would be almost impossible to sustain a conviction in the face of it. In the case now before us there was no jury; but in the light of that portion of his judgment, we have not been able to exclude the possibility that the learned Judge may have misdirected himself on this most important point.
Had our doubts arisen by reason of this particular passage in the judgment and nothing else, the matter might have worn a somewhat less serious aspect. But, in our view, the passage cannot be divorced from the expressions of doubt and the observations as to probability and improbability which – as we have already indicated – are unfortunately to be found elsewhere in the judgment in relation to the evidence. The result was to leave us in a state of uncertainty as to a matter of outstanding importance, namely, the considerations which affected the mind of the Judge when he came to weigh the effect of the evidence – evidence which, moreover was unhappily, far from straightforward by reason of the contradictions and uncertainties by which it was attended.
In these circumstances – and remembering that we were dealing with a conviction for murder – we came to the conclusion that the proper, and the only safe, course was to allow the appeal.
As an illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White (1), where the learned Baron said:-
“In order to enable you to return a verdict against the prisoner, you must be satisfied, beyond any reasonable doubt, of his guilt: and this as a conviction created in your minds, not merely as a matter of probability: and if it is only an impression of probability, your duty is to acquit.”
We desire also to cite a passage which is to be found at page 81 of Best on Evidence (10th Edition), which very clearly sets out the distinction between the degree of proof necessary in civil and criminal trials respectively:-
“There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, ‘such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.’”
Before concluding this judgment, we desire to endorse the criticism by the trial Judge of the omission of the police to have the accused’s matchet sent to the Government Pathologist for an examination of the stains upon it. This was a case where proof of the presence of human blood on the matchet would have been of vital importance. But although the police sergeant who gave evidence stated that he suspected that the stains were blood stains, it apparently never occurred to him to have the matchet sent for analysis. That may have been due to ignorance or to carelessness; but, whatever the explanation, it was an unfortunate and very reprehensible omission on his part, if-as we assume- he was in charge of the case. We fully appreciate the difficulties under which police work has to be carried out in some parts of the country, and it may be that, in the district in question, much of the investigation of criminal cases has, of necessity, to be entrusted to the non-commissioned officers of the Force. But murder cases fall into a special category, and we are emphatically of opinion that they are matters which should never be left in the hands of subordinates if such a course can be avoided by any possible means. The investigation and preparation of such cases constitutes an outstanding important part of a police officer’s work and carries with it grave responsibilities.
The appeal is allowed, the conviction and sentence of the appellant are quashed, and it is directed that a verdict and judgment of acquittal be entered.
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ARTHUR LEWEY, J .A.
I agree.
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SIR HENRY BLACKALL, P.
I agree.
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Appeal allowed.
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