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REX
V.
ALBERT FUMEH
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
1ST DAY OF APRIL, 1944
2PLR/1944/62 (WACA)
OTHER CITATION(S)
2PLR/1944/62 (WACA)
(1944) X WACA PP. 148 – 153
LEX (1944) – X WACA PP. 148 – 153
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J.
DOORLY, J.
BRACE, J.
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BETWEEN:
REX – Respondent
AND
ALBERT FUMEH – Appellant
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ORIGINATING COURT(S)
Appeal by Defendant from the decision in his trial before the Supreme Court.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder – Trial with Jury – Judge’s summing-up – Manslaughter – Evidence –Prosecution not calling certain witnesses
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE – HEAR-SAY:- Evidence of eye-witness of conversation made in a language unknown to him – Where rendered in translation or relay given by another witness – Duty of court to warn jury thereof – Effect of failure thereto
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CASE SUMMARY
Defendant was charged with the murder of one Moiwu, but the jury’s verdict was manslaughter, though the Judge suggested to them he was either guilty or not guilty of murder.
Defendant is an Army sergeant, deceased was a labourer; they, with others, were travelling on a train. The labourers were asked to show their tickets; and the prosecution’s case was that Defendant, as the train ran rapidly along, pushed deceased out of the front door, which gave directly on to the permanent way, and caused his death; the defence being that deceased was not pushed but jumped out with others because threatened by Defendant with arrest on arrival at Gerihun for travelling without tickets.
On appeal the main points taken were (1) that the verdict could not be supported by the evidence; (2) that the Judge misdirected the jury in suggesting they might find Defendant guilty of manslaughter in purely hypothetical circumstances; (3) that hearsay evidence had been admitted; and (4) that only two labourers were called by the Crown out of 21 labourers and several soldiers who witnessed the alleged murder.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) that the inconsistencies in the witnesses’ statements had been drawn to the attention of the jury, therefore their verdict on those questions of fact should not be upset;
(2) that manslaughter was a reasonable verdict on three possible alternative views of the circumstances of the case, and the summing-up erred, if anything, in putting only one: but in view of the verdict, there had been no substantial misdirection;
(3) that the hearsay evidence was adopted or brought out by the defence in cross-examination, and could not be objected to;
(4) that there being no suggestion that the Crown failed to call any persons whose whereabouts were known and who could speak to the circumstances of the offence, there was no ground to upset the verdict, for which there was ample evidence.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Appellant was charged upon information in the Supreme Court of the Colony of Sierra Leone with the murder of one Moiwu in the Bo District of the Protectorate. The trial was had at Freetown before the Chief Justice and a jury and resulted in the Appellant being convicted of Manslaughter and sentenced to five years imprisonment with hard labour.
Shortly the facts alleged by the prosecution were that the Appellant, a Sergeant in the Royal Artillery, was travelling with C.J. other soldiers in a train from Bo. On the same train there was also travelling a number of labourers working under the Produce Inspector at Bo, one Wilberforce, amongst them the deceased Moiwu. The Produce Inspector, travelling in the guard’s van, had their tickets. The Appellant accompanied by other soldiers demanded of the labourers travelling in one of the coaches that they should show their tickets, and when they were unable to do so proceeded to throw or force some of the labourers out of the coach. It is alleged that the Appellant actually pushed the deceased Moiwu out of the front door of the coach when the train was travelling at a high speed and that in consequence Moiwu was killed. A point which does not appear to have been brought out very clearly in the Court below, but which was accepted as common ground in this Court, is that the door in question was at the front end of the coach and not at the side and gave directly on to the permanent way without any platform outside the door. The defence was that the Appellant did not push the deceased off the train, that neither he nor any of the other soldiers attempted to put any of the labourers out of the coach, but that some of the labourers themselves, including the deceased, jumped from the coach whilst the train was in motion because the Appellant threatened to have them arrested when the train arrived at Gerihun for travelling without tickets.
The first two grounds of appeal are:-
“(1) That the verdict was against the weight of the evidence.
“(2) That such verdict was unreason able and could not be supported having regard to the evidence.”
The main point made by the Appellant’s Counsel in support of these grounds was that the witnesses Abdulai and Negbema, two of the deceased’s fellow labourers on whose evidence rested the case for the prosecution as to the Appellant pushing the deceased off the train, contradicted themselves and each other so frequently and were so inaccurate and untruthful that their evidence ought not to have been accepted by the jury. Counsel pointed out in great detail many contradictions and discrepancies in the evidence of these two witnesses.
It is clear, however, from the learned Chief Justice’s notes of the addresses of Counsel in the Court below that the inconsistencies were pointed out in detail to the jury by Counsel for the accused and in his summing-up the learned Chief Justice said:-
“Counsel for the defence has quite rightly drawn attention to inconsistencies in statements of the witnesses as to the circumstances under which permission was obtained, as to the time at which it was got, as to the conversation at Gerihun and of course as to what happened in the coach. You gentlemen will have to judge whether such inconsistencies as there are in the statements of the witnesses for the prosecution are the inconsistencies which show that their story is a false one made up and concocted together or whether they are inconsistencies of people not very well trained to observe and remember and doing their best to give account of their recollection of what happened on a rather disturbed occasion – that will be a matter which you gentlemen will consider.”
Since the jury had the points put to them as plainly as this, it is not for this Court to upset their verdict on those questions of fact.
A more difficult point, however, arises upon ground 2, with which ground 4 is also concerned, and that ground will now be considered in conjunction with ground 2. It reads:
“That the learned trial Judge misdirected the jury to the effect that in certain circumstances they might find your applicant guilty of Manslaughter, when in fact those circumstances had never arisen, nor had they been suggested or implied as having arisen, by either the prosecution or the defence.”
The questions arise: Was the prosecution evidence such as to support a verdict of guilty of manslaughter, and were the jury misdirected as to the possibility of returning a verdict of manslaughter?
It is clear that the learned Chief Justice himself thought that the verdict should be either “guilty of murder” or “not guilty” and that a verdict of manslaughter ought not to be returned. In his summing-up he said:
“If you accept the evidence of the accused, then you must return a verdict of not guilty. If on the other hand you accept the evidence of the prosecution and if you come to the conclusion beyond any reasonable doubt that the accused did in fact intentionally push Moiwu off that train at a time when the train was going fast and if you are satisfied that as a result of being pushed off that train Moiwu met his death, you will consider whether that is the natural and reasonably probable consequence of what the accused must be implied by law as having intended. That is the position. This is not one of those cases where it is a question whether it was murder or manslaughter. There is no real suggestion made by Counsel for the defence that this might be manslaughter. The whole case of the accused is that he never touched Moiwu and that the whole case of the prosecution is a tissue of lies and that he must be acquitted. The only way in which, on this evidence, a verdict of manslaughter might be conceivable would be if you came to the conclusion on the evidence for the prosecution that the accused did in fact push this man but that he did not intend to push him off the train but his pushing him in such circumstances amounted to such gross and criminal recklessness that it would justify you in finding him guilty of manslaughter. It is for you to say. There is no suggestion by any witness or by Counsel that the accused in fact pushed Moiwu without intending to push him off the train. Still you gentlemen have heard all the evidence and that seems to me to be the only conceivable view of the evidence which would justify a verdict of manslaughter.”
and later
“There can be little doubt if you accept take evidence of take prosecution that Moiwu was pushed out by the accused-pushed off the train by the accused and that he met his death in consequence of that push and that meeting his death was a reasonable and probable result of pushing a man off a train going at a high speed.”
In so far as the words “‘this is not one of those cases where it is a question whether it was murder or manslaughter” may appear to withdraw from the jury the question of manslaughter, we are of opinion that they amount to a misdirection and if a verdict of “guilty of murder” had been returned we should have had to consider very seriously whether it was not our duty to reduce it to “guilty of manslaughter”, following the precedent in the case of Howard Ball (18 Cr. Appeal Report Sec. 149). But since the jury in spite of those words returned a verdict of” guilty of manslaughter”, that question does not arise.
Further, in spite of those words, we think it clear from the rest of the above quotations from the summing-up that the learned Chief Justice did in fact leave to the jury the question of manslaughter, at the same time making it clear to them, as he was entitled to do, that in his own view the verdict should be either “guilty of murder” or “not guilty.”
As we understand the position there were three sets of circumstances in which the jury could return a verdict of guilty of manslaughter. They were:-
(1) If the jury accepted the case for the prosecution including the allegation that the appellant deliberately pushed the deceased off the train when it was travelling at speed, but did not consider that the death of Moiwu was the natural and probable consequence of such pushing off, but considered the pushing off a criminally reckless act; in that event the verdict could be guilty of manslaughter.
(2) The case put by the learned Chief Justice, namely, that Appellant pushed deceased in a criminally reckless manner without the intention of pushing him off the train.
(3) If the jury found that the Appellant pushed the deceased in such a manner that such pushing must at least have been criminally reckless, but, being in doubt as to whether the intention was to push the deceased off the train, gave the Appellant the benefit of that doubt; in that event, also, the verdict could be guilty of manslaughter.
We think that (1) and (3) above might with advantage have been more plainly put to the jury. We do not know upon which of the possible alternatives the jury acted, but we are satisfied that there was ample evidence upon which a verdict of guilty of manslaughter could properly be returned and that there was not such misdirection as to justify any interference with such verdict.
Ground 3 of the grounds of appeal reads:-
That the learned trial Judge wrongly admitted-
“(a) All the evidence of Abdulai and Joe Negbema to the alleged granting of permission by your applicant to Mr. Wilberforce at Bo. Both of these witnesses in cross-examination said in effect that the alleged conversation was carried on in broken English which they did not understand and that Mr. Wilberforce afterwards told them what had been said;
“(b) All the evidence of Abdulai of the alleged admission by your applicant to Mr. Wilberforce at Gerihun.
In cross-examination Abdulai said ‘I did not hear what the accused or the Europeans said because they spoke in English. My master told me all that had been said afterwards.’”
As to (a), it is true that this evidence of Abdulai turned out to be hearsay. So far as he is concerned it was elicited in examination-in-chief. It was not known to be hearsay until the end of the examination-in-chief when he, referring to a later occasion, states that Wilberforce and Appellant at Gerihun spoke in English and he (the witness) did not understand what was said.
In spite of this knowledge, Counsel for the defence made no objection and actually cross-examined on the very same matter and got the reply “my master Wilberforce asked Sergeant (Appellant) to allow his people to go in train.”
As to Negbema, he made it quite clear that the conversation between Wilberforce and the Appellant was translated to him by Wilberforce. Nowhere in his evidence did he repeat the conversation as interpreted to him by Wilberforce. There was no hearsay by Negbema on the matter.
Wilberforce subsequently gave direct evidence on this subject to the same effect as Abdulai. Abdulai’s evidence of the conversation was hearsay, and the jury were not warned of it; but the hearsay complained of was not on a matter vital to the decision of the trial and objection to it is not justified at this stage seeing that it was adopted by Counsel for the defence. It might well have been used by the defence (though there is no record that it was so used) to suggest that it was unreasonable that the Appellant, after granting permission for the labourers to board the train (if indeed he did grant the permission) should turn round shortly afterwards and have them put off the train for lack of tickets. The admission of this piece of hearsay provides no justification for upsetting the verdict of the jury.
As to (b), it is true that this was hearsay and the learned Chief Justice did not draw the attention of the jury to the fact. This hearsay was, however, brought out by Counsel for the defence in cross-examination. The record on the matter reads as follows:
“When we got to Gerihun I saw many Europeans speaking in English. My master asked accused if he had put his labourers out of train and accused said “yes because they had no tickets I put them out.”… At Gerihun Wilberforce spoke English. My master told me he had asked Sergeant if he had put us out and that accused had said he had done so as we had no tickets.”
NOTE. This last evidence in answer to a specific question by Counsel as to what his master told them. (Ltd.) G.GP.
Counsel had early notice that the conversation was in English and by this time he knew that the witness did not understand English, yet instead of having the witness stopped as soon as he heard Abdulai’s statement that the conversation was in English he allowed him to go on and even asked the witness specifically what his master had told him, as is shown by the Chief Justice’s note.
Hearsay is admissible in cross-examination and the Appellant’s Counsel is not entitled to rely on the admission of this piece of hearsay as an objection seeing that it was deliberately brought out by his colleague at the trial. Apart from this, Abdulai’s hearsay on the matter was subsequently corroborated by Wilberforce in his statement that Appellant at Gerihun admitted that he had driven labourers out of the train.
It is remarkable that the evidence of the admission came from Wilberforce only in cross-examination. Counsel for the Crown informed this Court that it was only at that stage of the proceedings that he had knowledge of the alleged admission and he gave that as the reason why the Station Master at Gerihun was not called as a witness although he was said to have been present when the admission was made.
The witnesses for the defence contradicted each other on this matter. The Appellant stated in evidence that all that happened at Gerihun on that day was that the Station Master asked him his name and would give no reason why he wanted it.
Appellant’s witness Byon states that on that day Abdulai told Wilberforce in Appellant’s presence that Appellant had driven them out and accused said “No.” This is a most serious divergence between Appellant and his witness on a very vital matter. Abdulai’s hearsay having been brought out by Counsel for the defence its admission cannot be accepted as supplying a ground for upsetting the verdict of the jury.
Ground 5 of the grounds of appeal deals with a variety of matters of which any that are of any importance have already been covered, except ground 5 (e) which reads:-
“That the learned trial Judge failed in his summing-up to the Jury:
“To comment that it was a well-established principle in law that ‘in criminal cases the prosecution is bound to call all the material witnesses before the Court, even though they gave inconsistent accounts in order that the whole of the facts may be before the jury; and that the prosecution had failed to call sixteen (or according to the Defence, eighteen) eyewitnesses of the alleged murder.”
As to this it is true that of some 21 labourers and several soldiers in the coach the prosecution have called only two of the labourers and none of the soldiers.
It is not known how many of these labourers were in a position to see what happened and there is no suggestion that the Crown has deliberately failed to call them. They seem to have disappeared. It is common ground that the soldiers have been posted to other stations and their whereabouts was more easily discoverable by the defence than by the prosecution.
The failure to call other witnesses does not appear to be a sufficient ground for upsetting the verdict of the jury for which there was ample evidence. All the grounds of appeal fail and the appeal is dismissed.
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