LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Murder by one of two thieves—Murder probable.
Evidence Ordinance, section 177 (2)—Evidence of accused incriminating co-accused—One counsel for both undesirable.
Section 177 (2) of the Evidence Ordinance provides that:—
“Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.”
The two accused went out together to steal from a compound; the deceased surprised No. 1 as he was digging a hole in the wall with a piece of iron and held him down; he called for help, and No. 2 came and stabbed the deceased mortally with a knife, and they both ran away.
In his statement to the police No. 1 gave those facts and said that when they set out No. 2 had a knife, and he repeated them in evidence at the trial, saying that No. 2 was carrying a knife at his waist.
No. 2 denied knowledge of the crime in his statement to the police. The admissible evidence against him, up to the close of the case for the Crown, was that No. l’s wife heard No. 1 and No. 2 talk together that night outside No. 1’s house, to which she said No. 2 was a frequent visitor, and then they seemed to go off together; that the cloth he was wearing next morning had blood-stains; and that in his statement to the police he denied knowing where No. l’s house was.
It was submitted for him that there was no case for him to answer, but the trial Judge ruled against him; then counsel closed his defence.
The same counsel represented both accused; he called No. 1, who gave evidence
(as above stated) implicating No. 2.
On appeal it was argued for No. 2 that there was no case for him to answer at the close of the case for the Crown and, as his case was then closed, the evidence given by No. 1 could not be used against No. 2; also that No. 2 had been prejudiced by having the same counsel and there had been a miscarriage of justice.
Held
As regards accused No. 1: he admitted going to commit a felony with No. 2 who had a knife and used it to aid No. 1 to escape; on his own showing No. 1 was rightly convicted of murder.
Held also: As regards accused No. 2: (1) the evidence of No. l’s wife and the blood-stained cloth did raise a prima facie case against him; it was followed by the evidence of No. 1, which clearly implicated him and did not, in view of section 177 (2) of the Evidence Ordinance, require corroboration, but there was corroboration in the evidence of No. l’s wife and the blood-stained cloth.
(2) No substantial miscarriage of justice occurred by reason of No. 2 being
represented by the same counsel.
Per curiam: Where it is apparent that the defences conflict steps ought to
be taken to have separate counsel.
Application of accused No. 1 for leave to appeal refused.
Appeal of accused No. 2 dismissed.
