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Bandailey V. Commissioner Of Police (1946) LJR-WACA

Bandailey V. Commissioner Of Police (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Admissibility of evidence of co-accused as a -witness for theprosecution.

A person charged jointly with the accused is a competent witness for the prosecution if he is not tried together with the accused.

Winsor v. The Queen (2) followed.

Kemavor v. Commissioner of Police (1) distinguished.

Cases referred to:

  1. Kemavor v. Commissioner of Police, 7 W.A.C.A . 198.
  2. Winsor v. The Queen (1866), 1 Q.B. 390. 14 L.T. 567. 30 J.P. 374. Appeal from the Divisional Court, Cape Coast.

Djan for Appellant.

Larbie for Respondent.

The following joint judgment was delivered:

This is an appeal from the judgment of the Divisional Court, Cape Coast, affirming the conviction by the District Magistrate, Swedru, • of the appellant on a charge of selling a motor vehicle for a sum in excess of the price specified in the permit issued by the Competent Authority, contrary to Regulation 66 of the Defence Regulations, and Orders made thereunder.

The only ground of any substance for quashing the conviction raised on the appeal was as follows: that the conviction cannot be maintained because the most important witness for the prosecution, Maimuna Kamerun, was a co-prisoner with the accused at the trial, both being charged in connection with the same transaction though on separate charges in the same charge sheet, and because the said Maimuna Kamerun was not a competent witness for the prosecution.

Counsel for the appellant referred to C.O.P. v. Kemavor (1). In that case one of several persons charged jointly with stealing was called as a witness by, and gave material evidence for, the prosecution. He had first pleaded guilty, but was allowed to substitute a plea of Not Guilty. He and the other appellants were tried together and convicted. This Court held:

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” The incompetence of the witness is statutory and moreover it is a fundamental principle that an accused person undergoing trial can only be called as a witness upon his own application. He is not eligible as a witness for the Crown. Disregard of that principle strikes at the whole root of the administration of the criminal law. It is the duty of the Courts to be guided by that principle and regard to it cannot be waived by an accused person’s counsel. We hold that the point is one which we must allow to be raised and considered on its merits. We are of opinion that the procedure adopted constitutes a grave and substantial disregard of the form of legal process; and further that the failure of the learned Magistrate to direct himself that the evidence in chief of the witness Tubugtey must be disregarded amounts to a misdirection in law. The conviction as a result cannot be allowed to stand.”

An application to apply section 10 of Cap. 5 on the ground that no substantial miscarriage of justice had actually occurred was refused.

In the present case although Maimuna Kamerunes name appeared on the charge sheet, she was evidently not charged, as no plea appears on the records, and though she was called as the first witness for the prosecution, she was not put on trial.

It may be that the police bad originally intended to charge both persons before the District Magistrate, and then decided otherwise, but inadvertently left the charge against the woman in the charge sheet. On the other hand, it may be that the Magistrate decided to try these persons separately. Unfortunately, owing to an oversight the position is not indicated in the record. One thing is certain, Maimuna Kamerun was not tried together with the appellant.

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Charlotte Winsor v. The Queen (2) is cited in Archbold, 31st Edition 441, as authority for the proposition that one prisoner may give evidence for the Crown against a co-prisoner when, though jointly indicted, he is not being tried with the prisoner against whom he gives evidence.

This case is of great authority, the judgment being delivered by seven Judges of the Queen’s Bench. The relevant passages in the head-note of the report are as follows:-

” The record of a conviction for felony showed that, on trial of the indictment, the jury being unable to agree, the Judge discharged them; that the prisoner was given in charge of another jury at the next Assizes, and a verdict of guilty returned, and judgment and sentence passed. On writ of error—Held . . . Where two prisoners are jointly indicted for a felony and plead not guilty, but one only is given in charge to the jury, the other is an admissible witness, although his plea of not guilty remains on the record undisposed of.”

It is, therefore, evident that it is necessary to distinguish cases where a witness though charged jointly with a co-accused is not tried with him from such a case as C.O.P. v. Kemavor (1), where the witness was tried with one or more co-accused.

Assuming, as we ought to, that the record is correct and that both Maimuna Kamerun and the appellant were brought before the District Magistrate on one charge sheet yet inasmuch as they were not tried together we hold that the woman was a competent witness.

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This ground therefore fails, and the appeal is dismissed.

Appeal dismissed.

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