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COMMISSIONER OF POLICE
V.
DANIEL NUNOO KWASHIE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
4TH DAY JUNE, 1953
APPEAL NO. 47/53
2PLR/1953/92 (WACA)
OTHER CITATION(S)
2PLR/1953/92 (WACA)
(1953) XIV WACA PP. 319 – 320
LEX (1953) – XIV WACA 319-320
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
COMMISSIONER OF POLICE – Appellant
AND
DANIEL NUNOO KWASHIE – Respondent
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ORIGINATING COURT(S)
Appeal by the prosecutor from Supreme Court’s decision setting aside the conviction and sentence passed by the Magistrate on the defendant in a criminal case
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REPRESENTATION
G. V. C. Young, Crown Counsel — for Appellant
Respondent in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction on evidence of single witness — Sentence — Where criminal record not proved or admitted — Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL;- Appeals in Criminal cases — Magistrates’ cases — Prosecutor’s right to appeal from Supreme Court — Criminal Procedure Code, section 324
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CASE SUMMARY
The evidence before the Magistrate was that of a single witness: the Magistrate believed him and convicted the defendant, on whom he passed a sentence relying on the criminal record produced without its being proved or admitted. The defendant appealed to the Supreme Court.
The Judge commented on the sentence being illegal, and on the fact that a material witness had not been called — why it was not explained — and said that though corroboration was not necessary as matter of law, a Court was generally reluctant to convict on the evidence of a single witness; and the Judge allowed the appeal. The Commissioner of Police, in whose name the prosecution had been brought, appealed by virtue of section 324 of the Criminal Procedure Code (text in the judgment infra).
In the Court of Appeal counsel for the appellant assured the Court that the officer prosecuting before the Magistrate explained why the other material witness was not called. (There was no record of the explanation.)
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DECISION(S) OF THE WEST AFRICA COURT OF APPEAL
Held (allowing the Appeal and restoring the conviction but reducing the sentence) that:
(1) There was evidence before the Magistrate on which he could properly convict: he believed the witness and there was no suggestion that the witness was an accomplice; therefore it was a mistake to reverse the Magistrate’s decision to convict.
(2) The sentence was illegal: it relied on a criminal record which was neither proved nor admitted.
Per curiam: Section 324 of the Criminal Procedure Code enables the prosecutor, if aggrieved by a decision of the Supreme Court in its appellate jurisdiction, to appeal on a question of law or to apply for leave to appeal on questions of fact.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the accused was convicted by the District Magistrate, Accra, on two charges under paragraph (1) of section 271 of the Criminal Code and on one charge under section 298 of the same Ordinance, and he was sentenced to 2 years’ I.H.L. on each count, such sentences to run concurrently.
On an appeal by the accused to the Supreme Court, which was heard by Benson, J., the convictions and sentences were set aside and a verdict of acquittal entered.
In allowing the appeal the learned appellate Judge said, inter alia, “corroboration is not necessary as a matter of law, but a Court is reluctant to convict generally on the sole evidence of a witness” and he went on to point out that the sentences were illegal because the Magistrate relied upon the criminal record of the accused which was neither proved nor admitted. He further commented on the fact that a material witness had not been called by the prosecution and that there was nothing on the record to explain the omission.
The Commissioner of Police, in whose name the prosecution had been brought, then appealed to this Court against the decision of Benson, J. counsel who appeared on the Commissioner’s behalf submitting that a right of appeal lies in a case such as this, under the provisions of section 324 of the Criminal Procedure Code, Chapter 10, which provides that,
“Any person aggrieved by a decision of the Supreme Court in its appellate jurisdiction under this Part may appeal to the West African Court of Appeal on a matter of law (not including severity of sentence) but not on a matter of fact except with the permission of the West African Court of Appeal”.
In our view there can be no doubt that the section in question does enable the Commissioner of Police, if aggrieved by a decision of the Supreme Court in its appellate jurisdiction, to appeal on a question of law or to apply for leave to appeal on questions of fact. In this connection it is of interest to observe that the right of appeal from the Court of first instance is expressly limited to the person convicted, section 313(1) of Chapter 10, and the right is similarly restricted in England by section 3 of the Criminal Appeal Act, 1907.
It is true that the prosecution’s case depended upon the evidence of one police constable, but in announcing his decision the learned District Magistrate said, “I believe the evidence of the prosecution. I have no doubt at all in finding the accused guilty of the offences before the Court”, and it being clear that there was evidence before the Magistrate upon which he could properly reach the conclusion he did we are of the opinion that Benson, J., erred in reversing the decision.
The Magistrate had the advantage, denied to the appellate Judge, of seeing and hearing the witnesses, and there is no rule of law or practice which should make a Court hesitate in convicting upon the evidence of one witness, in a case where there is no suggestion that the witness is an accomplice, if the Court is satisfied with the evidence given.
Learned counsel who appeared on behalf of the Commissioner of Police assured us that the prosecuting officer did inform the Magistrate of the reason why the other material witness was not called and we think it is to be regretted that the information was not recorded.
In the circumstances we allowed this appeal, set aside the order of Benson, J., and restored the convictions of the Magistrate, but we agreed with the former that the sentences imposed were illegal for the reasons stated by him, and we therefore altered each sentence to one of 1 year’s I.H.L., to run concurrently.
Appeal allowed: conviction restored but sentence reduced.