–
KWABENA AMPOFO TWUMASI-ANKRA
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
24TH DAY OF FEBRUARY, 1955
2PLR/1955/64 (WACA)
OTHER CITATION(S)
2PLR/1955/64 (WACA)
(1955) XIV WACA PP. 673 – 675
LEX (1955) – XIV WACA 673 – 675
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
–
BETWEEN:
KWABENA AMPOFO TWUMASI-ANKRAH – Appellant
AND
THE QUEEN – Respondent
–
ORIGINATING COURT(S)
Appeal against decision of the Supreme Court of the Gold Coast at the Kumasi Assizes
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder – Prosecution not calling eye-witnesses – Appeals in Criminal Cases — Points not affecting soundness of conviction — When verdict not unreasonable
ELECTION MATTERS – THUGGERY:- Vandalisation of rival party’s paraphernalia – Killing occasioned by confrontation arising therefrom – How prosecuted
–
CASE SUMMARY
Appellant was convicted of murder. When he tore off the party flag of a rival political party, the deceased with some followers went to a house, in which were members of the appellant’s party, to demand an explanation. Appellant promptly stabbed the deceased more than once and the deceased died of his wounds. The case for appellant was that the deceased and his followers came as a hostile party, and that there was a general fight in the room in which he was held by the deceased and others; that he managed to seize a knife from someone and waved it right and left in self-preservation, and that he heard the deceased cry out that he had been wounded, whereupon people dispersed and he, the appellant, went to the police – a story which the trial Judge did not believe.
On appeal it was submitted –
(1) that the trial Judge erred in not directing the prosecution to call two eye-witnesses of the events: (these were adherents of the appellant and were called by the defence; the Judge found they were untruthful);
(2) that the Judge tried to restrain defending counsel in the cross-examination of a certain witness:
(3) that the Judge did not direct himself properly on the appellant having a reasonable belief that he was in danger of being attacked and dragged out to the mercy of a hostile crowd; and
(4) that the verdict was unreasonable.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) A prosecutor is relieved from calling a witness present at the commission of a crime, be it murder, if he has a reasonable belief that the witness will not speak the truth.
(2) As in fact the cross-examination proceeded and no evidence material for the defence was excluded, there was no substance in the second submission.
(3) As the trial Judge rejected the evidence for the defence and accepted that of the prosecution, self-defence was ruled out.
(4) The evidence supported the finding that there had been an unprovoked attack with a deadly weapon on a defenceless man.
Cases cited:-
(1) Kwabena Yeboah v. The Queen, W.A.C.A., 2nd April, 1954 in this volume, ante.
(2) Regina v. Edwards and Others, 3 Cox C.C. 82, at p. 83.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
The applicant in this case was convicted in the Supreme Court of the Gold Coast at the Kumasi Assizes of the murder of Emmanuel Yaw Baffoe. He has applied for leave to appeal against his conviction and, following the practice of this Court, the application comes before us as if it were an appeal.
At the material time the appellant was Regional Propaganda Secretary of the Convention People’s Party in Kumasi; the deceased had been a member of that organisation but he had left it to join a new and rival political party, the National Liberation Movement.
It appears that earlier on the 9th October, 1954, the day of the incident, the appellant had been particularly demonstrative against members of the new party. According to witnesses for the prosecution, the appellant, supported by some followers, had tom off the rival party flag on the bonnet of a car belonging to a minor Chief, a member of the National Liberation Movement, and had issued a challenge to the Chief. He also went to the headquarters of the Movement, pulled down the party flag, tore it, flung it on the ground and uttered threats against its leaders.
The deceased and four or five of his party, later went to the house of one Asamoah to which the appellant had gone after the activities above mentioned, to demand an explanation of these affronts. They were admitted by the house-holder, Asamoah, who then shut the door. In the sitting room were gathered about ten followers of the appellant. The deceased enquired for the appellant. He emerged from an inner room or bedroom to the sitting room. Making for the deceased he held him by his shirt, pulled out and raised a clasp knife and struck at the deceased. A witness for the prosecution warded off the first blow and himself sustained a wound in the shoulder. The appellant then stabbed the deceased three times with the knife and inflicted upon him another cut on the front of the left arm just below the elbow. Another prosecution witness attempted to intervene but he drew back when the knife cut his right hand.
According to the medical evidence, the deceased’s death was due to a stab wound on the left side of the chest which went through the chest wall below the pectoral muscle between the seventh and eighth ribs, causing death from internal haemorrhage. There was another stab wound in the chest an inch below the one just described. The other two wounds indicate that the deceased attempted to ward off an attack with his left arm.
The case for the defence was that after the appellant had been for about thirty minutes in Asamoah’s house, he and those gathered with him in the sitting room were informed that the deceased and a gang of people showing fight and crying for him were approaching. He hid in the bedroom but, suddenly, he was seized and drawn into the sitting room. He says there was a struggle. A hostile group started beating him. His friends in the room were thrown about. In the course of a violent struggle while he was held by the deceased and some others he managed to seize a knife that some one was wielding and he “flashed” it sideways to right and left in self-preservation. He then heard the deceased cry out that he had been wounded. At this juncture the other people in the room ran away, some jumping out of the window. The appellant says he was left alone with the deceased who, while struggling for possession of the knife, was dragging the appellant towards the door of the apartment. Then the deceased’s grip loosened and the appellant closed a door, got back to the sitting room and later went out and gave himself up to the police.
The trial was by a Judge and three assessors.
Contrary to the opinions of all the assessors which, for good reasons appearing in the judgment, were rejected, the learned Judge convicted the appellant of murder. He believed the evidence of the prosecution witnesses Awuah, Dapaah and Prempeh who were in the room at the crucial time. He was satisfied that there was no armed mob of National Liberation Movement adherents going to Asamoah’s house as was suggested to support the story of self-defence. He found that the appellant came out of the bedroom and made an unprovoked attack on the deceased and that there was no suggestion of self-defence or provocation. He believed the police witnesses that the only disorder in the sitting room was one overturned chair and blood, discrediting the idea of a free fight in the room. He further believed that, immediately after the incident, the appellant made no complaint to the police of nor did they see any injuries on the appellant. The prison doctor testified for the defence that he found a superficial cut in the palm of appellant’s hand, a loose tooth and swelling and bruises on his forearm, but this was three days afterwards and since the evidence given by the police was believed the implication is obvious.
The first submission on behalf of the appellant was that the trial Judge erred in not directing the prosecution to call two eye-witnesses in the room who were thereupon called by the defence. These men were both adherents of the appellant. It was proved that one of them, Asamoah, shouted out “Kill him” to encourage the appellant as he was about to attack the deceased. This Court held in Regina v. Kwabena Yeboah (1) that a prosecutor is relieved from calling a witness present at the commission of a crime if he has a reasonable belief that the witness will not speak the truth.
In the event both Asamoah and the other man, Adubufuor Poku, gave evidence for the defence and they were found to be untruthful witnesses. As was stated by Eric, J., in Regina v. Edwards and Others (2), “Counsel for the prosecution is a minister of public justice and is called upon to lay such facts before the jury as he thinks the interests of justice demand”. In this there is not a standard for a charge of murder and a different standard for any other charge as learned counsel for the appellant has submitted.
As to ground 2, it is true that the learned trial Judge, in a passage during cross-examination of the fourteenth prosecution witness Elizabeth Osei, endeavoured to restrain defending counsel from eliciting statements made in the absence of the accused.
Such evidence was admissible in cross-examination. However, counsel explained that he wished to establish that this witness was not in a position to testify as to the whereabouts of the appellant and his friends at a particular time and the cross-examination proceeded. It is sufficient to say that the conduct of the defence was not affected and it has not been shown that any evidence material for the defence was, in fact, excluded.
The next point that was submitted for the appellant is that the Court did not properly direct itself as to self-defence in the light of the situation the appellant believed himself to be in at the time he struck the deceased; in other words, that he had a reasonable belief that he was being attacked to be dragged outside to the mercy of a hostile crowd was not adequately dealt with. But, having regard to the learned Judge’s rejection of the evidence for the defence and his acceptance of the evidence for the prosecution, this defence was ruled out.
As to the general ground that the verdict is unreasonable, on the facts found there was no provocation offered to the appellant and self-defence is negatived. An unprovoked attack was proved upon a defenceless man. The appellant struck with a deadly weapon (it has been seen in this Court) a fatal blow in a mortal part. We are unable to say that the findings of fact made by the learned trial Judge cannot be supported by the evidence.
It was also submitted-that the conviction cannot stand because the learned Judge in his judgment did not comply with the provisions of section 286, now section 300(2) of the Criminal Procedure Ordinance (Cap. 10), in that the points for determination are not set out in the judgment. In our opinion the judgment deals with all the material points and there is no merit in this ground.
The appeal is dismissed.
Appeal dismissed.
–