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Rex V. Bana Kassi (1939) LJR-WACA

Rex V. Bana Kassi (1939)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Evidence—Corrohoration of Accomplice —Written Statement in mutilated document—Misreception of evidence—Incorrect procedure in regard to admission of exhibits.

Held : 1. Witness was rightly treated as accomplice but trial Judge misdirected himself on question of corroboration : appeal allowed.

  1. Statement made by accused person and reduced in writing must be put in evidence complete. Where the document is mutilated before being put in evidence, a conviction on the evidence of such document alone cannot be sustained.
  2. Where a statement by an accused person is tendered in evidence and objection made that it has been obtained by duress this question of fact must be determined before the document is admitted.

There is no need to set out the facts.

E. S. Beoku-Betts for Crown.

N. j. P. M. Boston for Appellants.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST,
AND GRAHAM PAUL, J.

The five appellants were charged in the Circuit Court of the Protectorate of Sierra Leone with the murder of one Sitta on or about 7th June, 1929, at or near Konia. All the appellants were on the 24th June, 1939, convicted of murder and sentenced to death and they all appealed to this Court against their convictions.

Grounds of Appeal were filed and Counsel for the Appellants argued at length on these grounds which involved questions of fact and law.

In our opinion there is no substance in the appeals of the 1st, 3rd, 4th and 5th accused and their appeals were dismissed accordingly.

As regards the second accused the learned trial Judge rightly found that the main evidence against him was that of accomplices and that corroboration of that evidence was required. Such corroboration the learned Judge expressly found only in the evidence of the witness Bokari Kamasso and convicted the second accused accordingly. In our view it is impossible to find in the evidence of Bokari Kamasso or in any other evidence corroboration of the evidence of the accomplices as regards the second accused’s complicity in this crime. Accordingly we find that the learned Judge misdirected himself on this question of corroboration and for

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that reason we allowed the appeal of the second accused, quashed his conviction and sentence and directed that a judgment and verdict of acquittal be entered.

It was argued before us that the witness Jabatti was not an accomplice and that his evidence against the second accused was sufficient corroboration. The learned Judge described Jabatti as an ” innocent accomplice ” but thought that ” out of an abundance of caution ” Jabatti ” should be treated as an accomplice although he was probably in fact innocent of having anything to do with the crime.”

Upon the whole evidence it is in our view impossible to say without considerable doubt that Jabatti was not an accomplice. The second accused is entitled to the benefit of any such doubt and in our opinion the learned Judge was right to treat Jabatti’s evidence as that of an accomplice and therefore not corroboration of other accomplices.

The third ground of Appeal referred to the misreception in evidence of a document namely Exhibit 11, a statement made and attested by the first accused in the course of the investigations in this case. That document was apparently put in evidence at the preliminary investigation. It was then complete. Subsequently the Court Clerk of the District Commissioner’s Office, Kenema, one Joseph Walwyn Findlay, cut off a part of the document so that when it was produced at the trial it was incomplete. In his evidence the Court Clerk says that he did this on the instructions of the officer who held the preliminary investigation. The portion cut off was not produced at the trial and it was not proved what were the contents of that missing portion. In spite of this the mutilated document was received in evidence by the trial Judge. In our opinion this mutilated document was wrongly received in evidence.

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If the conviction of the first accused had depended upon this mutilated exhibit it could not in our opinion have been supported. But the conviction of the first was not dependent on this exhibit. There was more than ample other evidence of the guilt of the first accused, evidence given by the witnesses for the prosecution and another unexceptionable record of a confession by the first accused. The appeal of the first accused was accordingly dismissed.

Although the matter was not raised by Counsel for the appeallants, before leaving this case we desire to comment on what appears to us to be an incorrect and unusual procedure adopted by the Court below in regard to the admissions of certain exhibits, written records of statements alleged to have been made by the accused. These statements were tendered in the course of the Crown Case and Counsel for the accused objected to their being received in evidence on the grounds that they had been made umer duress or induced by promises. Upon that objection being taken the Court below made the following note :—

Order—I will admit the exhibits temporarily pending evidence as to the facts alleged ; if these are proved the exhibits will be refused.

In the course of his summing up the learned Judge said :—

” Now I have admitted the confession and I said originally that I admitted them temporarily and I should disallow them if it was proved as the case went on that they were made as a result of threats or inducements. I tell you now that they should be admitted and I admit them finally. I say that Momo Jawa was not a person in authority.”

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In our opinion this was incorrect procedure. If on the tendering of any evidence an objection is taken which raises an issue of fact the correct procedure is for the Court to resolve that issue of fact before deciding whether the evidence should be admitted or not. Where the evidence is tendered by the prosecution the issue of fact should be resolved and a final ruling given as to the admissibility of the evidence before the close of the Crown Case. (See R. v. Onabanjo 3 W.A.C.A. p. 43).

This was a trial with assessors and they and the defence should have had a final ruling on the question of the admissibility of this evidence before the defence was opened. In the circumstances of this case we are of the opinion that the appellants were not as it happened prejudiced by the procedure followed and it is not therefore in this case b. ground for quashing the conviction.

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