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ISSA FULANI
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
19TH DAY OF JUNE, 1950
2PLR/1950/24 (WACA)
OTHER CITATION(S)
2PLR/1950/24 (WACA)
(1950) XIII WACA PP. 92 – 93
LEX (1950) – XIII WACA 92 – 93
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
SMITH, AG. C.J., GOLD COAST
LEWEY, J.A.
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BETWEEN:
ISSA FULANI – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S):
Appeal from the Supreme Court (W.A.C.A. CR. APP. 18/50)
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REPRESENTATION:
A. G. Hewart-Mills — for the Appellant
P. N. Dalton, Crown Counsel — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION:
CRIMINAL LAW AND PROCEDURE – RAPE:- Appeal against conviction for rape – Misdirection – Identification parade improperly conducted – Complaint by complainant not admitted in evidence – Power of Judge to reject admissible evidence
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CASE SUMMARY
This was an appeal against a conviction for rape. Counsel for appellant argued that there was misdirection concerning an informal· identification parade. At the identification parade the complainant was asked: “Is that the man?” and Counsel argued that this was objectionable. The complainant had, however, indicated that she identified the appellant before she was asked this question.
Immediately after the event the complainant made a complaint, which, although admissible in evidence in law, the trial Judge rejected on the grounds that, in fairness to the appellant, he did not consider it wise to receive evidence of the report that the woman made. The circumstances in which a Judge can reject admissible evidence were considered.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. There had been no misdirection, and that the case of Rex v. Chapman (1) on which Counsel for the appellant relied, was distinguishable.
2. A Judge should assume that where the law on the question of evidence is clear, it is also fair, and if a long line of authorities have held that certain evidence is properly admissible a Judge ought to admit it.
Case referred to:
(1) Rex v. Chapman, 7 Cr. App. Rep. 53.
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
This is an appeal against a conviction for rape. Leave was granted to the appellant to argue on the ground of misdirection.
It was submitted in the first place that the Court had failed to direct the jury on the evidence of identification. Reliance was placed on the case of Rex v, Chapman (1), in which it was held that at an informal identification parade it was wrong to point out a person and ask: “Is that the man?” That case in our opinion is quite different to the present one, because the passage to which Mr. Hewart-Mills objected to must be read in conjunction with that part of the witness Markham’s evidence at page 12, lines 20-23, from which it appears that the complainant had indicated that she identified the appellant before Markham asked her about him. In any event, the answer to which objection is taken was given in cross-examination. In our view that ground fails.
For the rest, Mr. Justice Coussey, who tried the case with meticulous care, in an able and fair summing-up, put the evidence as clearly as he could to the jury. On one point in the conduct of the case the learned Judge’s action was indeed unduly favourable to the appellant. Evidence was sought to be given of what the complainant said immediately after the incident and it is well established law that a complaint made by the prosecutrix under such circumstances is admissible. The learned Judge, however, would not allow this evidence, because, he said, “in fairness to the accused I consider it wise not to receive evidence of the report that the woman made.” With deference to the learned Judge he should assume that where the law on a question of evidence is clear it is also fair and if a long line of authorities have held that certain evidence is properly admissible, a Judge ought to admit it.
In the present case there was, in our opinion, ample evidence to support the conviction. The appeal must be dismissed.
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LEWEY, J. A.
We wish to make mention of one of the grounds of appeal which complains that Counsel for the prosecution referred, in his opening speech at the trial, to the fact that the accused had made a confession. It is true that the approved practice is that no such reference should be made. But the reason for this is that the jury should not be allowed to be aware of such a confession when the case is opened, as it may be that Counsel for the defence may object to it and may succeed in getting it excluded as inadmissible. In the present case, however, no harm can possibly have resulted: there was no jury, and the confession-although objection was taken to it-was, in fact, admitted in evidence. We would observe that the proper procedure is for the defending Counsel to warn Crown Counsel beforehand that he intends to object to the admission of the confession: if that is done, it ensures that no reference to the matter will be made in the opening speech for the prosecution.
Appeal dismissed.