–
REX
V.
EMMANUEL JOSEPH COBOLAH
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
27TH DAY OF NOVEMBER, 1944
2PLR/1944/75 (WACA)
OTHER CITATION(S)
2PLR/1944/75 (WACA)
(1944) X WACA PP. 283 – 285
LEX (1944) – X WACA PP. 283 – 285
–
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
–
BETWEEN:
REX – Respondent
AND
EMMANUEL JOSEPH COBOLAH – Appellants
–
ORIGINATING COURT(S)
Appeal by Defendant from the Accra Assizes
–
REPRESENTATION
F. Dove — for Appellant
K. A. Bossman — for Crown
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Falsifying accounts and stealing – Expert evidence on handwriting – Privilege not to produce proceedings-Discretion as to the calling of a witness – Judgment immediately after hearing-Cap. 4, s. 77.
–
CASE SUMMARY
Defendant was convicted at Assizes of falsifying accounts and of stealing on ample evidence. On appeal it was argued that a policeman could not give expert evidence on handwriting; that the proceedings in the Government Inquiry relative to the falsification of accounts should not have been withheld on the plea of privilege; and that the Court should have called a witness whom the Crown did not; and he took exception to the Judge’s reading out his judgment immediately after the close of the hearing.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) that a policeman who had made a study of handwriting could give expert evidence in the Gold Coast;
(2) that evidence taken at an inquiry could not be admitted as evidence in the trial if in the opinion of the Colonial Secretary it was in the public interest not to produce it;
(3) that the trial Judge had rightly used his discretion in refusing to call a witness whom either party could have called;
(4) that there is nothing to prevent a Judge from writing his judgment after the close of all the evidence subject to any amendment he may wish to make on the Bench due to the submissions of Counsel.
–
–
MAIN JUDGMENT
The judgment of the Court was delivered by Harragin, C.J., Gold Coast.
The Appellant in this case was convicted by Coussey, J. at the Accra Assizes on the 9th of August, 1944, on twelve counts, six having relation to falsification of accounts whilst the remainder were for stealing under section 271 of the Criminal Code. Against these convictions he has appealed to this Court.
On the facts there is no substance in the appeal. There was ample evidence upon which the trial Judge could find the accused guilty, and indeed it is difficult to see how he could have come to any other conclusion.
Counsel for the Appellant has, however, argued the several points of law set out in his Grounds of Appeal. In Ground I the submission is made that a policeman is unable to give expert evidence as to handwriting. This is based on the old case of Rex v. Crouch (4 Cox, page 163) and certain other cases which follow that ruling, but the facts in the case of Rex v. Crouch are different from those that appear in this case. In Rex v. Crouch a policeman with no particular training in handwriting happened to see the accused sign his name once, and on the strength of that signature sought to give expert evidence as to the accused’s handwriting on certain documents. The policeman had no special training in comparing handwritings and the Court rejected this expert evidence. In this case the expert evidence submitted on behalf of the Crown was that of a policeman who had made a study of handwriting whilst attached to the Metropolitan Police, and we are of the opinion that his evidence as an expert was rightly admitted by the trial Judge for the reasons given in his finding. In any event it is clear under Cap. 4, section 77, that his evidence was admissible in this Colony whatever may be the position in England.
In Ground 2 the Appellant takes exception to the Court below having permitted the Colonial Secretary or his representative to plead “Privilege” when asked to produce the proceedings in an Inquiry which had been instituted by Government in relation to these falsifications of accounts. There is no substance in this argument as, quite apart from the law which permits the plea of “Privilege”, if in the opinion of the Colonial Secretary it is in the public interest, the evidence taken at that Inquiry could under no circumstances be admitted as evidence in this case. It is possible that, had a request been made for a copy of the evidence given by one particular witness at the Inquiry, the request might have been acceded to, but as the whole proceedings not unnaturally would include the findings of the Inquiry, it was certainly not in the public interest that it should be produced.
Exception was also taken to the fact that the trial Judge did not exercise his discretion to call a certain witness by the name of Akuetteh. This is entirely a matter for the discretion of the trial Judge, and it cannot be suggested that his decision was unreasonable. The general rule is that the calling of a witness by the Judge after the close of the case for the defence should be limited to cases where something has arisen on the part of the prisoner ex improviso, which no human ingenuity could foresee (Archbold’s Criminal Pleading Evidence and Practice, 31st Ed. p. 481).
Counsel for the Appellant made capital out of the fact that the Crown had failed to call a witness who might have been able to throw some light on the matters at issue but he certainly cannot take any legal objection to the fact that the trial Judge did not use his discretion to assist either the prosecution or the defence by calling a witness which one of them might well have called.
Ground 9 of the Grounds of Appeal is unique. In that ground exception is taken to the fact that the trial Judge read his judgment immediately after Counsel for the Crown had replied. No comment could have been made upon this if the trial Judge had delivered a verbal judgment which was taken down by a shorthand writer, and we are therefore unable to understand why the trial Judge should not himself, in a commendable attempt to expedite the trial, write down the judgment he intends to give after the close of all the evidence, subject to any amendment that he might like to make on the Bench due to the submissions of Counsel. It may be a disappointment to Counsel for the defence that his address is unable to sway the mind of the Judge but it is certainly not unusual and it cannot be a legitimate ground of appeal.
The appeal is dismissed.
–