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REX
V.
KOFI MARFU
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
26TH DAY OF SEPTEMBER, 1936
2PLR/1936/48 (WACA)
OTHER CITATION(S)
2PLR/1936/48 (WACA)
(1936) III WACA PP. 77 – 78
LEX (1936) – III WACA PP. 77 – 78
BEFORE THEIR LORDSHIPS:
PETRIDES, C.J., GOLD COAST
YATES, J.
BARTON, J.
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BETWEEN:
REX — Respondent
AND
KOFI MARFU — Appellant
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REPRESENTATION
J. L. Minnow — for Appellant
T. A. Brown — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder — Trial with assessors — Assessors differ — Judge convicts under Appeal section 260 of Criminal Procedure Code — Weight of evidence — Delay of eye-witness in reporting — Element of doubt — Standard of proof Separate trials when defences inimical
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Appeal allowed. Conviction quashed.
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MAIN JUDGMENT
The following joint judgment was delivered: for PETRIDES, C.J., GOLD COAST, YATES AND BARTON, JJ.
This is an appeal from a conviction of murder in Ashanti.
The accused was tried together with one Yaw Frimpong, who also appealed, but owing to illness was unable to attend and instruct his Counsel, by Strother-Stewart, J., sitting with assessors in Kumasi on August 12th, 1936, and subsequent days. At the conclusion of the case the assessors gave their opinion as follows: one expressed his view that the prisoners were guilty, one that the case was not proved, and the third that they were not guilty. The learned Judge as he is entitled to do by virtue of section 260 of the Criminal Procedure Code gave his decision that the prisoners were guilty.
The accused appealed. For the reasons given above the second accused could not attend, and this appeal only refers to the first accused, and the principal ground of appeal is that the decision was contrary to the weight of evidence.
By section 10(1) of the West African Court of Appeal Ordinance, 1935, this Court shall allow an appeal if in its opinion the conviction cannot be supported having regard to the evidence. In view of the fact that the alleged eye-witnesses did not come forward until the 14th April, and the deceased was killed on March 7th, although they had every facility for so doing, raises in the minds of this Court a distinct element of doubt such as was obviously in the minds of two of the assessors. In the case of Knowles v. The King (1930) A.C., P. 366, on page 372 Lord Dunedin says a Court of Criminal Appeal is entitled to consider what would have been their own verdict. After fully considering the evidence as a whole we are of opinion the evidence in this case has not reached the standard of proof necessary to involve a conviction for murder vide Knowles v. The King quoted before on page 377 and there is in our minds such a doubt as would entitle the prisoner to acquittal.
The appeal is therefore allowed and the conviction quashed.
We wish to add that in our view as the defences of the prisoners were inimical they should have been separately represented at the trial.
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