Rex V. Enoch Falayi & Ors (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Murder—Evidence of accomplices—Corroboration by conduct
of accused on statement of co-accused implicating him being read to him.
The following judgment was delivered:
Verity, C.J. These are appeals by three persons convicted by Pollard, Ag. J., of the murder of a child.
In regard to the first appellant it was submitted that the only evidence against him was that of three accomplices, Aina Ala, Owombi and Ojo Olofa, of which testimony there was no corroboration in any material particular implicating the first appellant. We are of the opinion that there are no grounds for treating Aina Ala as an accomplice and that her evidence as to the taking away of the child by the first appellant, concealed under his gown, which was believed by the learned trial Judge, is sufficient corroboration of the subsequent concealment of the child in his house and later removal therefrom as testified by Owomobi and the eventual killing of the child by him as testified by Ojo Olofa. The learned Judge believed the evidence of these witnesses and there can be no doubt that upon the testimony the first appellant was rightly convicted. His appeal is therefore dismissed.
In regard to the second appellant, who was convicted upon his own confession and upon the evidence of Ojo Olofa as corroborated thereby, the learned Judge was satisfied after the most careful investigation, that the appellant’s statement to the Police was made freely and voluntarily. It was a full confession of his own complicity in the murder and afforded complete corroboration of the evidence of Ojo Olofa implicating him in the murder. His appeal is also dismissed.
The case of the third appellant, who was the fourth accused person, the third
having been acquitted, requires closer consideration, depending as it does in the first place upon purely circumstantial evidence, which, taken by itself, would be in our opinion, insufficient to establish his guilt beyond reasonable doubt; in the second place upon the evidence of Owomobi and Ojo Olofa, which ought not to be accepted without corroboration; and in the third place upon the conduct of the appellant when certain statements, including that of the second accused, who gravely implicated the appellant, were read over to him by the Police Sergeant who was conducting the investigations.
In regard to the first phase of the evidence the learned trial Judge accepted as established by testimony which he believed the following facts: that the child disappeared from her home early in the afternoon; teat although this was reported to the appellant during the afternoon he, as Head of the village, did nothing positive until about twilight or early moonlight, when he sent a man who was not the town crier to ring the bell through the town and order a search for the child; that upon the return of the bell-ringer to the Palace he saw the appellant outside the Palace (a fact which would be of little significance had it not been denied by the appellant); that five days after the child’s disappearance the appellant sent for a Police Constable and told him that he had received information that the child would be found in the bush by the C.M.S. (a fact which again was denied by the appellant); that upon a search being made the body of the child was found at the place indicated by the appellant; that upon the arrest on the same day of the first accused whom the appellant admitted to be his ” private doctor ” who had ” made medicine ” for finding the child, he ordered his release, although it appears that on the following day, having told the Police that he had received information that the first accused was the culprit he issued a warrant for his house to be searched. To the evidence in support of these findings of fact no exception can be taken, but the findings while consistent with guilt are, it was submitted an behalf of the appellant, not inconsistent with innocence, and as we have said, in our view, by themselves would not bring home to the appellant, beyond reasonable doubt, complicity in the murder.
The second phase of the evidence comprises the testimony of Owomobi and Ojo Olofa, the former to the effect that having taken part in the removal of the child from the house of the first accused where it had been concealed, she was on the following day taken to the appellant’s Palace and there in his presence required to take an oath of secrecy, and the latter to the effect that the child was murdered in the appellant’s Palace and that the eyes and tongue of the child were taken by the first and second accused from the room in which the child was murdered through a door which led to that part of the Palace which was occupied by the appellant himself and that the second accused returned with a kola nut for the witness to eat in order to secure his secrecy, a similar form of oath to that alleged to have been taken by Owomobi in the presence of the appellant the following day. If this evidence may be believed and taken in conjunction with the circumstantial evidence to which we have referred, we are of opinion that the learned Judge would be justified in coming to the conclusion that the appellant was so closely involved in the murder of the child that he may rightly be found to have counselled and procured the murder anctso be convicted as a principal by virtue of section 7 of the Criminal Code. The testimony of these two witnesses, however, was rightly treated by the learned Judge as that of accomplices whose evidence he was not prepared to accept unless corroborated.
It is necessary, therefore, to examine the evidence upon which the trial Judge found corroboration, that is to say, the words and conduct of the appellant when certain statements were read to him by the Police Sergeant.
The evidence of the Sergeant in this regard is as follows:—
” The fourth accused came to the dispensary and asked about the progress of our investigation. I cautioned him and I read him all the statements of
the witnesses and that of the second accused to him. Then he said ‘ the truth is now coming out as the murderers are now proving themselves ‘. He then left and went to his house.”
The Sergeant was not cross-examined in regard to this part of his evidence. It was not contradicted by the appellant nor did he in the course of his evidence tender any explanation of the words he is alleged to have used. The trial Judge was therefore entitled to conclude that the Sergeant’s evidence accurately described the appellant’s words and conduct on this occasion.
It was not until some hours later that the appellant, according to the Sergeant, returned and asked to be confronted with those who had made the statements read to him, and at the same time produced a letter, which the learned Judge, on what we deem to be reasonable grounds, found to be a fabrication, but which purported to be a letter of warning that the appellant’s enemies would ” bring illegal things ” into his place. Later still the appellant accompanied the Sergeant to the place where the murder was alleged to have been committed. He was again cautioned; the spot he himself was alleged to have occupied both before and after the murder was shown to him. On this occasion he said nothing.
In these circumstances the learned Judge found that:—
” the conduct of the accused, especially his statement to Sergeant Agbabiaka when told of the allegations made against him on 29th January, provide corroboration of Ojo Olofa’s evidence.”
There was no evidence as to the number or contents of any statements read to the appellant except that of the second accused, but it is significant that at the time when the statements were read to him the only person charged with the murder who had made a statement was the second accused, while the accomplice Ojo Olofa did not make his statement to the Police until three days later. In these circumstances it would be a legitimate inference, in our opinion, that when the appellant said ” the murderers are now proving themselves ” he was making direct reference to the second accused who by his statement had implicated himself beyond all doubt.
Now the contents of that statement, in so far as it implicated the appellant, included the following words:-
” I was in the Palace of Alaye of Efon ” (the appellant) ” at night .. . I saw Enoch carried one girl under his gown into the Palace … he placed this girl under the upstairs in the Palace . . . Enoch left to call Alaye .. . Alaye came and saw the girl. He said Enoch should do her as he said he would do her.”
The statement then continues with a detailed description of the mutilation and death of the child and the placing of the eyes and tongue in a cigarette tin, and continues:-
” He carried the cigarette tin . . . to Oba Laye . . . The following night Oba. Alaye asked whether the corpse of the girl had been cleared. When Enoch put this girl down and went to call Oba Alaye, Oba Alaye came and saw the girl and said to Enoch ‘ thank you ‘. After Enoch pulled the eyes and cut off the tongue of this girl . . . Oba Alaye returned and saw the corpse of this girl . . . Myself, Alaye, Ojo Olofa, Dani Ojo and Enoch put kola nuts on the ground and swore not to disclose the secrecy of this matter. We took this oath in the Palace of Oba Alaye after Enbch murdered the girl. The following day Owomobi, Enoch’s wife, took oath before Alaye with kola nuts that she would not disclose this matter.”
These were the allegations implicating the appellant which were communicated to him and to which we consider it is reasonable to draw the inference that he was referring when he used the words ” the truth is now coming out as the
murderers are now proving themselves “. They were certainly statements in regard to which it might reasonably be expected he would make some observation, explanation or denial. They do, indeed, so clearly implicate him in the commission of such a revolting crime, that it is conceivable that an innocent man would not immediately they were read to him, and whether with other statements or alone, have made ” indignant denial” to use the words of Lord Alverstone in R. v. Tate (1). Even though the words he used were not perhaps an explicit admission of the truth of the allegations, for the words ” the truth is now coming out ” were qualified to a certain extent by the words which followed, they certainly do not amount to an explicit denial and we have to consider whether, in the circumstances, it could reasonably be held that by his words and conduct the appellant adopted the statement of the second accused so as to render it admissible against him. The principle is to be found in a number of cases, but is more exhaustively dealt with by the House of Lords in the leading case of R. v. Christie (2), in which it is stated by Lord Atkinson as follows:-
” . the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement so as to make it, in effect, his own. . . . He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part.”
His Lordship added :-
” It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him and constitute evidence from which an acknowledgment may be inferred by them.”
In that case their Lordships approved as a rule of practice that suggested by Pickford, J., in R. v. Norton (3) where he said:-
” We think that the contents of such statements should not be given in evidence unless the Judge is satisfied that there is evidence fit to be submitted to the jury that the prisoner by his answer to them, whether given by word or conduct, acknowledged the truth of the whole or part of them. If there be no such evidence then the contents of the statement should be excluded; if there be such evidence then they should be admitted and the question whether the prisoner’s answer, by words or conduct, did or did not in fact amount to an acknowledgment of them left to the jury.”
In R. v. Fiegenbaum (4) the Court of Criminal Appeal held that failure to reply
to an officer who communicated to a person whom he was about to arrest but
before he had in fact been arrested or formally charged, statements made by
accomplices implicating him, might be considered by a jury as corroboration
of the evidence of the accomplices.
There followed the case of R. v. Whitehead (5) in which it was held that the mere omission to deny a formal charge made by the Police is not evidence from which an inference can be drawn unfavourable to the accused, and that case was followed in a number of other cases relating to the conduct or words of the accused person after he had been formally charged and arrested.
It was not until 1942 that in R. v. Keeling (6) the Court of Criminal Appeal expressed some doubt as to the authority of R. v. Feigenbaum (4), although they refrained from deciding that it has been overruled by R. v. Whitehead (5) and the other subsequent cases, from which, indeed, it can be distinguished.
The present case is not, however, strictly in the same category as either Fiegembaum’s case (4) or the subsequent cases to which we have referred. It differs from the latter in that the appellant had not been formally charged or arrested, and from the former in two respects. Firstly, the appellant did not merely fail to reply when the statements were communicated to him by the Police, and secondly, before they were read to him, he had been cautioned by the Sergeant. There is no evidence as to the words of caution used, but even if we are to assume that they took the form usually employed in cautioning a person who has been formally charged and arrested, an assumption most favourable to the appellant, he did not avail himself of the protection the caution would in such circumstances have afforded him by remaining silent. He elected to speak and having done so he made no such denial as it would have been reasonable to expect from an innocent man. We are, indeed, unable to conceive that it would have been possible for him, if innocent, to have resisted the impulse indignantly to deny the atrocious allegations made against him but, on the other hand, to have formulated the cynical observation ” The truth is now coming out as the murderers are now proving themselves ” when the truth and the proof alike, in the terms of the second accused’s statement, involved his own guilt.
It is not necessary for us to be satisfied, however, that each one of us had he been in the place of the trial Judge would necessarily have come to the same conclusion as the learned Judge as to the meaning and effect of the words and conduct of the appellant. It is sufficient if we are of the opinion that there was evidence such as would properly have satisfied him that it was fit to be left to a jury to determine whether by his words or conduct the appellant did in fact adopt the statement as, in effect, his own. We are of that opinion and, in our view, therefore the trial Judge, in exercise of the f unction of a jury, was entitled to draw the conclusion he in fact drew therefrom.
There are, however, a number of grounds of appeal in which either mis-direction or non-direction is alleged. We have examined them with care and have come to the conclusion that in two instances only have these grounds any substance. We are of the opinion that the learned trial Judge misdirected himself when he drew a conclusion from the evidence that the appellant was in some way responsible for the absence of any bloodstains upon the floor of the room in which the murder had been committed. We do not think that the evidence justifies any such inference. We think that the learned Judge erred also in accepting as proof of the contents of a certain statement made by Owomobi a mere statement from the Bar. These matters are not of grave significance unless we should be of the opinion that, but for these misdirections, the learned Judge would have come to a different conclusion as to the admissibility of the statement of the second accused in evidence as against this appellant. We are not of that opinion. In our view, the learned Judge would inevitably have reached the same conclusion in that regard and no miscarriage of justice has been occasioned thereby.
With the acceptance of that statement as evidence of the tacit admission of the facts stated therein there is not only ample corroboration of the evidence of Owomobi and Ojo Olof a implicating the appellant. It goes further and is evidence of the tacit admission of facts from which no other conclusion is possible than that the appellant counselled and procured the murder of this child and was rightly found guilty thereof.
His appeal must also, therefore, be dismissed.