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YAW AZUMAH AND KWAME KEHODO
V.
THE KING
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
10TH DAY OF JUNE, 1950
2PLR/1950/9 (WACA)
OTHER CITATION(S)
2PLR/1950/9 (WACA)
(1950) XII WACA PP. 87 – 89
LEX (1950) – XIII WACA 87 – 89
BEFORE THEIR LORDSHIPS
BLACKALL, P.
SMITH, Ag. C.J., GOLD COAST
LEWEY, J.A.
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BETWEEN:
YAW AZUMAH
KWAME KEHODO – Appellants
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from Supreme Court, Accra. W.A.C.A. CR.APP.21/50
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REPRESENTATION
Opohu Acheampong — for the Appellants
A. N. Budmastar, Crown Counsel — for the Respondent
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Meaning of an accomplice – Mere fact of standing by when crime committed – Sufficiency of – Summing-up of defence – Duty of Judge considered – Principles on which court will interfere with Jury’s verdict explained
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CASE SUMMARY
The appellants appealed against their convictions for murder. The main ground of appeal was that the Court had misdirected the jury in not holding that the principal witness for the Crown was an accomplice, because he was present when crime was committed, did not run away, and failed to report to the police. It was also argued that the Judge in his summing-up of the defence failed to direct the jury in detail as to the defences of the appellants whose Counsel relied on the case of Rex v. Kamara (2) The Court also considered the principles upon which the verdict of a jury could be reversed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeals) that:
1. The evidence only established that the alleged accomplice was merely present when crime committed, was not a confederate, and had not participated in the crime, and was not, therefore, an accomplice.
2. The case of Rex v. Kamara & Others (2) lays down as a general rule, that the Judge must direct the jury in detail as to the defence. The principle is simply that the defence must be adequately placed before the jury and Court will not interfere merely because particular points have not received the emphasis or attention the defence would like.
3. The Court will not reverse verdicts of juries where there is evidence on which a jury can act and there has been a proper direction. The court cannot substitute itself for a jury and re-try the case.
Cases referred to:
(1) Rex v. Gray, 12 Cr. App Rep. 244 at 246
(2) Rex v. Kamara & Others, 8 W.A.C.A. 95
(3) Rex v. McGrath, 1949, 2 All E.R. 495 at 497
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
The main ground of appeal in this case is that the principal witness for the prosecution, Kofi Mensah, was an accomplice, that the jury were not properly directed about the danger of convicting on the uncorroborated evidence of an accomplice, and that there was no corroboration.
The defence was an alibi, so the answer to the question whether Kofi Mensah – an accomplice has to be gathered from his own evidence. Mr. Opoku Acheampong submits he was, because he was present at the scene of the crime. But mere presence is not enough. A person must be purposely facilitating or aiding the commission of a crime by his presence before he can be regarded as an accomplice. But there was no evidence to that effect.
Counsel further argued that because Kofi Mensah did not run away he should be regarded as an accomplice. But the first appellant, according to his evidence, they threatened Kofi’s companion that if he tried to run away they would kill him and both appellants had guns. He said he took that threat to apply to himself as well as to Akakpo, and it appears to me, therefore, that he had quite a good reason for not trying to run away.
It was further contended that the fact that he did not report the matter to the police until they interviewed him, indicates complicity. But it is common knowledge that in this country witnesses often refrain from coming forward in case they might get into some sort of trouble. In the present case this apprehension was much more definite, because if Kofi’s evidence is accepted he was dealing with two desperados who would stick at nothing. He had witnessed the murder of his companion and it was not unreasonable for him to be afraid that they would kill him also if he went to the police.
On the question of mere presence, which that is all that has been proved, I would refer to the case of Rex v. Gray (1) in which the Lord Chief Justice said:-
“It is not necessary that a man, to be guilty of murder, should actually have taken part in a physical act in connection with the crime. If he has participated in the crime – that is to say, if he is a confederate he is guilty, although he has no hand in striking the fatal blow. Equally, it must be borne in mind that the mere fact of standing by when the act is committed is not sufficient. A man, to become amenable to the law, must take such a part in the commission of the crime as must be the result of a concerted design to commit the offence.”
In the opinion of this Court, there was no evidence that Kofi Mensah was an accomplice, and that being so, there was no need for corroboration if the jury believed his evidence. There was, however, in fact, evidence corroborating his story. There was the evidence about cocoa being found on the scene and in possession of the accused. And as regards the first appellant, there is the fact that on the night in question he was seen out that night with his gun and bunting lamp asking Nwani to carry cocoa for him, although according to his own story he was at home.
Another ground of appeal was that the learned trial Judge did not go into sufficient detail about the appellants’ defence of alibi and in particular the second appellant’s defence, and in support of this, the case of Rex v. Kamara &, Others (2) was cited. In that case the Court of Appeal criticised the trial Judge for failing to direct the jury in detail as to the defence of one of the accused. Presumably the evidence in that case was of such a nature that the Court considered it was necessary to examine the defence in detail but that passage should not be taken as laying down a general rule that in every case the defence must be examined in detail. The well-established principle is simply this: that the prisoner’s defence must be adequately placed before the jury, that is to say, the jury must have been reminded of the general nature of the defence and so long as the real nature of the defence has been explained, a Court of Appeal will not interfere merely because particular points have not received the emphasis or attention that the defence would like.
In the present case we are satisfied that the defence of alibi was adequately put before the jury. The learned Judge reminded the jury that two wives of each appellant had given evidence that the appellants were at home at the material time and it was left to the jury to say whether they believed them. If they did, they would obviously have acquitted the prisoners. The fact that they were convicted shows that the jury did not accept that defence.
Lastly, I would refer to a passage in Rex v. McGrath (3):-
” … This Court is frequently asked to reverse verdicts in cases in which a jury have rejected an alibi, but this Court cannot interfere in those cases in the ordinary way, because to do so would be to usurp the function of the jury. Where there is evidence on which a jury can act and there has been a proper direction to the jury this Court cannot substitute itself for the jury and re-try the case. That is not our function. If we took any other attitude, it would strike at the very root of trial by jury”
In the present case there was evidence upon which the jury could act, and the summing-up was adequate and fair to the defence: indeed, in one respect it was unduly favourable to the appellants, for the learned Judge indicated that the evidence of an unwilling witness to a crime required corroboration, which it does not.
In our opinion there is no sufficient reason for interfering with the verdict of the jury and both appeals are dismissed.
Appeals dismissed.
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