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REX
V.
ABDUL HASSAN SARD
WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
16TH DAY OF APRIL, 1935
2PLR/1935/45 (WACA)
OTHER CITATION(S)
2PLR/1935/45 (WACA)
(1935) II WACA PP. 240-247
LEX (1935) – II WACA PP. 240-247
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BEFORE THEIR LORDSHIPS:
WEBBER, C.J., SIERRA LEONE
STROTHER STEWART, J.
BROOKE, J.
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BETWEEN:
REX — Respondent
AND
ABDUL HASSAN SARD — Appellant
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REPRESENTATION
E. S. B. Betts with C. J. Kempson — for the Appellant
L. E. C. Evans — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Conviction for murder — When would be quashed and conviction for manslaughter substituted thereto
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Jurisdiction of Circuit Court on trial of a non-native for an offence against a native — Misreception of evidence — Inadmissible hear-say evidence showing motive for established acts of homicide — Proper treatment of by court
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PRACTICE AND PROCEDURE ISSUE(S):-
EVIDENCE:- Hear-say evidence — Admissibility of — Where misreceived in a murder trial and furnished the corroborative evidence for the presence of motive behind a killing — Legal effect
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CASE SUMMARY
The appellant was convicted by a jury at Circuit Court on information charging him with the murder of Adiatu, a female. Against this conviction he appealed on the grounds set out in the judgment.
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DECISION OF WEST AFRICAN COURT OF APPEAL
Held:
1. There was no evidence to show that the accused thought he was in imminent danger of his life or committed an act that he thought was the only means to protect himself.
2. Hearsay is inadmissible; it was only discovered to be such after the testimony was given by the question addressed to the witness by the Court, and it was then too late to exclude it. It cannot be said that it could have had no effect on the minds of the jury and that the latter could have come to no other conclusion than the one they did arrive at had it been excluded ; or that the direction in the summing up must have cured the harm done. It was clearly evidence for the prosecution brought to corroborate other evidence, and though parts of the statement were admissible as evidence, it makes no difference. It is impossible to say what the effect of this corroborative evidence was on the minds of the jury and to conclude in this case that the reception of this evidence was not the deciding factor which made the jury give the verdict they did. The conviction for murder must therefore be quashed.
3. The objectionable evidence could only affect the jury so far as motive was concerned. The jury by their verdict showed that they had no doubt about the homicide. With the other facts before them, but without the corroboration of motive, the jury must have been satisfied of facts which proved him guilty of the less serious crime of manslaughter. The Court, therefore, quashes the conviction for murder, and by virtue of section 5 (2) of the West African Court of Appeal Webber, (Criminal Offences) Ordinance, No. 10 of 1929, substitutes a conviction of manslaughter and sentences the appellant to 7 (seven) Fears’ imprisonment with hard labour to date from the 16th January, 1935, the day on which the trial concluded.
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MAIN JUDGMENT
The following judgment was delivered:
WEBBER, C.J., SIERRA LEONE, STROTHER STEWART, AND BROOKE, JJ.
The appellant Abdul Hassan Sard was convicted on information charging him with the murder of Adiatu, a female. Against his conviction he has appealed on the following grounds:
1. The Court had no jurisdiction to try the case.
2. The learned trial Judge failed to direct the jury as to the distinction between murder, manslaughter and justifiable or excusable homicide.
3. The learned trial Judge misdirected the jury as to the law in regard to manslaughter and justifiable or excusable homicide.
4. The learned trial Judge misdirected the jury by stating that if they believed the evidence of the prosecution in its entirety the only verdict that could be returned was that of murder.
5. Material hearsay evidence was wrongly admitted.
6. The learned trial Judge failed to direct the jury properly as to inadmissibility of such hearsay evidence.
7. The prisoner was cross-examined as to his having been charged before the District Commissioner at Makeni and convicted and fined for an offence against the deceased.
8. The learned trial Judge directed the jury in such a way as to preclude them from considering whether they should give a verdict of manslaughter or justifiable or excusable homicide.
9. The learned trial Judge directed the jury in such a way as to amount to a withdrawal of certain facts from them.
10. The learned trial Judge otherwise misdirected the jury.
By leave of this Court another ground was added, namely:–
11. The evidence of Paramount Chief Alimamy Suri as to the alleged confession by the appellant was improperly received.
From these grounds it will be seen that the appeal is brought on three main points—
(a) Want of jurisdiction (Ground 1)
(b) Misreception of evidence (Grounds 5, 6, 7, 11)
(c) Misdirection (Grounds 2, 3, 4, 8, 9, 10).
The question of jurisdiction must first be considered. Defendant moved in arrest of judgment after conviction, and was referred to his right of appeal.
The plea to the jurisdiction was based on the contention that the Circuit Court had no jurisdiction owing to the proviso in paragraph 39(1) of Ordinance 40 of 1932 and that the Supreme Court could only be given jurisdiction by virtue of the Governor’s Fiat obtained under paragraph 50 of the Protectorate Courts Jurisdiction Ordinance, and that action under this section is a condition precedent to the bestowal of jurisdiction. It was also contended that paragraph 50 falls within Part V of the Ordinance to which the heading is “Jurisdiction of the Courts of the Colony” and that the proviso to paragraph 36 of the same Ordinance which enacts that in all cases in which, inter alia, a non-native is charged with a capital offence against a native the accused, unless discharged, shall be committed for trial upon information before the Supreme Court of the Colony, is directory and cannot confer jurisdiction.
It is clear that if this contention were correct, no consent or waiver can give jurisdiction. If the act or thing was required by the Ordinance as a condition precedent to the jurisdiction of the Court compliance cannot, as Maxwell says, be dispensed with, and the jurisdiction fails if it has not been complied with. The jurisdiction of the Supreme Court is set out in paragraph 3 of Ordinance No. 39 of 1932 which enacts that it shall be “in addition to the jurisdiction conferred by this or any other Ordinance.” It will be seen that a power of transfer is given to a Judge of the Supreme or Circuit Courts in cases in which it appears expedient by paragraph 10 of the Criminal Procedure Ordinance No. 38 of 1932 and that the Judge may order that an accused person be committed to the Supreme Court for trial. Except in this case and that of ex-officio informations, no information may be filed without a previous committal. Such committal shall in the case of a non native charged with a capital offence be to the Supreme Court. The proviso in paragraph 36 of Ordinance No. 40/1932 reads “shall be committed for trial.”
It is imperative and not in any way qualified. Paragraph 50 is permissive and merely gives a general power to transfer to the Governor similar to that in the legislation of neighbouring colonies which cannot be read as being a condition precedent to the assumption outside the colony of jurisdiction by the Supreme Court. The effect would be to give no Court jurisdiction in cases in which a non-native is charged with a capital offence in the Protectorate except upon a fiat of the Governor under a general clause which is permissive.
The argument based on the Protectorate Order-in-Council and Foreign Jurisdiction Act, and purporting to exclude the jurisdiction of the Supreme Court was also unconvincing.
We are of opinion therefore that the first ground as to lack of jurisdiction fails.
The next heading under which grounds 2, 3, 4, 8, 9, 10 fall is that of misdirection. In this is alleged (1) a failure on the part of the learned Judge in his direction to the jury to distinguish clearly between the three possible verdicts of guilty of murder, guilty of manslaughter, and an acquittal, (2) a misdirection as to the law in regard to manslaughter and justifiable or excusable homicide, (3) a misdirection to the effect that the only possible verdict, if the evidence for the prosecution was believed, could be that of murder, and a further direction to the jury which precluded a verdict of manslaughter or an acquittal, (4) a withdrawal of certain facts from the jury, (5) a failure to draw attention to the conflict of evidence, and an absence in the note as to what the learned Judge directed the jury as to facts.
The first paragraph of the learned Judge’s statement of the substance of his summing up to the jury is clearly a general one which was amplified in the body of the summing up.
The portion of the learned Judge’s summing up objected to in ground 4 is merely a statement that there was evidence on which the jury could come to a conclusion, and not a direction to convict of murder.
The fact that a reference was made to the accused being so injured that he became physically unable to control his acts did not exclude other grounds of self-defence, as the subsequent reference to Archbold in the said judgment shows.
There was no evidence to show that the accused thought he was in imminent danger of his life or committed an act that he thought was the only means to protect himself. In Rex v. Stedman (Fost. 292) there would appear to have been no doubt whatever about the facts, whereas in this case there is some doubt as to what actually happened. To that extent the Judge was entitled to allude to the inapplicability of those facts for comparison; it is for him to say whether the facts can be held the same, for the jury to say if they are the same. The whole section in Archbold on provocation was explained to the jury. The trial Judge dealt at length with the defence and the effect of the medical evidence must clearly have been taken into consideration here, as well as accused’s own statement.
It is not for a moment suggested that had there been a wrong direction or a possibility of the jury being misled by the direction of the Judge, or that they would not have returned the same verdict owing to the omission of a proper direction, the conviction would not have been invalidated. But it must be shown that the direction was rendered necessary by the facts or that there was a definite misdirection which upon the record is not apparent.
Rex v. Deana (25 T.L.R. p. 399) was a case in which the blow missed, and is a strong case, but the facts on the record cannot be said to show that a similarity to this case has been established. It is true that if in the absence of other evidence the jury accepted accused’s evidence they could have found a verdict of self-defence. It is also true that where there is evidence of provocation as would, if the jury believed it, justify a verdict of manslaughter, the Judge must leave the question of manslaughter to the jury, even though counsel for accused has not relied on that defence.
What was the evidence on which the jury could determine whether the action of accused was necessary for his protection, or the force employed was proportionate thereto, or the question of the weapon used, the degree of provocation, or whether there had been time for his passion to cool, or whether he was deprived as a reasonable man of his self-control? Medical evidence as to appellant’s injury was consistent with a fall, no bottle was within reach, and accused did not mention his injury in his first account of what happened.
The Court clearly envisaged these possibilities by the question put to the medical witness and did not omit other explanations. Rex v. Betsy Taylor (11 Cr. App. R. p. 41) quoted was in a different category. In it, the misdirection was in telling the jury that unless they believe that the witnesses for the prosecution had committed perjury they must convict, when the defence alleged a possible explanation as to a mistake of identity of the prisoner.
It cannot be said that there was any direction to convict for murder and that a verdict of murder was the only one possible. It was only stated that there was no evidence to establish a plea of self-defence.
There was no positive direction to convict as in Rex v. West (4 Cr. App. 479). There was no real conflict in the evidence to which attention should have been drawn. There were no diametrically opposite stories and no single issue on which there should have been a full direction.
We have the Judge’s statement that he dealt at length with the defence, and, in the absence of shorthand notes, the Judge’s recollection can scarcely be considered as inadequate. A fuller note could have been called for under paragraph 42 of the West African Appeal Court Rules of Court.
It cannot therefore be found that there has in this case been any definite misdirection by the Judge or any omission in his direction to the jury which would justify the Court in coming to the conclusion that there had been an erroneous summing up. The record of the Judge’s summing up is a summary and his direction as to law was adequate to the facts before the Court.
We come last to the third division in which grounds 5, 6, 7 and the additional ground 11 may be included.
In ground 7 counsel for the appellant maintained that the prisoner was cross-examined as to his having been charged before the District Commissioner at Makeni and convicted and fined for an offence against the deceased. This did not appear on the Judge’s notes. A question as to the procedure in introducing this ground arose which it is unnecessary to pursue. The Solicitor General states that he had no knowledge as to the nature of the case before the District Commissioner until after the trial was over, and there is nothing to show that any question, whatever it may have been and if put in cross-examination, could have had any effect on the minds of the jury.
In ground 11, the evidence of the witness Chief Alimamy Suri as to the alleged confession by the appellant is objected to; the Crown should, it is urged, have excluded this evidence, as the fact that accused was in the stocks clearly showed that there was an intention to arrest and no question should have been addressed thereafter; and if so addressed, the replies were inadmissible in evidence.
Actually the only question put to accused after arrest was with regard to the knife. The question did not elicit any evidence which was not already available. The appellant had already mentioned the knife. The fact that a prisoner’s statement is made by him in reply to a question put to him after he has been taken into custody does not of itself render the statement inadmissible in evidence.
We come to the last and most substantial objection in grounds 5 and 6 that material hearsay evidence was wrongly admitted, and that the learned trial Judge failed to direct the jury properly as to the inadmissibility of such hearsay evidence. The evidence referred to is that of the witness Santigi Loya.
As regards the direction of the Judge it will be seen that he says in his statement of the summing up.
“I told them to ignore entirely Santigi Loya’s evidence so far as he purported to have heard accused’s confession to the Chief.”
The evidence objected to was that –
“accused spoke and said he had killed someone and Chief should handcuff him. Chief asked him why? Accused said he was living together and she had no money and I assisted her so she got money. We had palaver and she reported me to D.C, who fined me £5 and I killed her so she shouldn’t eat the money alone.”
And –
“Later I saw accused and he was talking with Chief, who asked him if he was owner of the knife. Accused said yes.”
It is indisputable that this evidence was hearsay and as such was inadmissible; it was only discovered to be such after the testimony was given by the question addressed to the witness by the Court, and it was then too late to exclude it.
We have therefore to consider the weight of this objectionable evidence, and the effect it may have had on the verdict of the jury.
The only evidence of motive is that of the admission of the accused to the witness Chief Alimamy Suri. This testimony becomes infinitely stronger if the corroboration supplied by the evidence objected to is taken into account; it further, by the suggestion of interpretation, may have introduced into the minds of the jury an idea of the confession being listened to by a number of persons. It cannot be said that it could have had no effect on the minds of the jury and that the latter could have come to no other conclusion than the one they did arrive at had it been excluded ; or that the direction in the summing up must have cured the harm done.
It was clearly evidence for the prosecution brought to corroborate other evidence, and though parts of the statement were admissible as evidence, it makes no difference. The nature of the evidence should have been discoverable beforehand as it must have appeared on the depositions. It was called and the witness’s statement could have been restricted to the admissible portion.
In this connection we must consider Maxwell v. the Director of Public Prosecution 50 T.L.R. p. 499. In this case a prisoner had given evidence of his good character but it was held that he could not be cross-examined as to a previous charge of which he had been acquitted. It was submitted that as the cross-examination ought not to have been administered it was not possible to tell the jury in summing up to treat the case as though that cross examination had not taken place. The direction of the Judge was a strong one to ignore the evidence and contained these words –
“my advice to you is, and I am sure you will act on it; put that out of your minds altogether.”
The question was whether, if the evidence had been excluded, the jury must have convicted. It was held that the conviction could not properly stand after the admission of the objectionable evidence.
It was contended by the prosecution in the case quoted that even if the evidence was wrongly admitted the accused was not entitled to have the verdict set aside by reason of paragraph 4 of the Criminal Appeal Act 1907 on the ground that no substantial miscarriage of justice had actually occurred. This paragraph is identical with paragraph 4 of the West African Court of Appeal (Criminal Cases) Ordinance, No. 10 of 1929.
The following passage occurs in the judgment of the L.C. –
“The rule which has been established is that, if the conviction is to be quashed on the ground of misreception of evidence, the proviso cannot operate unless the evidence objected to is of such a nature and the circumstances of the case are such that the Court must be satisfied that the jury must have returned the same verdict even if the evidence had not been given.”
It is impossible to say what the effect of this corroborative evidence was on the minds of the jury and to conclude in this case that the reception of this evidence was not the deciding factor which made the jury give the verdict they did.
It has been pointed out that every rule in favour of the accused must be observed and no rule broken so as to prejudice the chance of the jury fairly trying the true issues.
The conviction for murder must therefore be quashed.
We have then to consider whether the power of the Court under paragraph 5(2) of Ordinance No. 10 of 1929 in substituting another verdict should be exercised.
There has been no misdirection or omission in the direction to the jury; the misreception of evidence only goes to the verdict of murder.
Counsel for the appellant in referring to the question of substitution of verdict quoted Knowles v. The King (1930 A.C. p. 366, 376) and referred to Lawrence v. The King (1933 A.C. 699). These cases are however not in pari materia. They relate to an erroneous summing up, active misdirection on the elements of the offence and a disregard of the forms of legal justice. In the former case, the question of manslaughter was not before their Lordships. It was pointed out that the Board do not sit as a Court of Criminal Appeal, in which case they would have been entitled to consider what would have been their own verdict, but had to be satisfied that the accused was deprived of the substance of a fair trial. They held that unless it could be predicated that properly directed the jury must have returned the same verdict, a substantial miscarriage of justice appeared to be established.
This Court, however, considers that the objectionable evidence of Santigi Loya could only affect the jury so far as motive was concerned. The jury by their verdict showed that they had no doubt about the homicide. With the other facts before them, but without the corroboration of motive, the jury must have been … satisfied of facts which proved him guilty of the less serious crime of manslaughter.
The Court, therefore, quashes the conviction for murder, and by virtue of section 5(2) of the West African Court of Appeal Webber, (Criminal Offences) Ordinance, No. 10 of 1929, substitutes a conviction of manslaughter and sentences the appellant to 7 (seven) years’ imprisonment with hard labour to date from the 16th January, 1935, the day on which the trial concluded.
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