Rex V. Rufai Alli & Anor (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Murder—Evidence—Evidence Ordinance, section 177—Necessity for close scrutiny of evidence of an accused- implicating a co-accused.
The only evidence against the first appellant was that of the second appellant and while this could not be ignored, it should, as therein the second appellant sought to exculpate himself and incriminate the first appellant, receive the most careful scrutiny and only be accepted as conclusive as to the guilt of the first appellant where the Court after such scrutiny is satisfied that he is a witness of truth.
The practice of permitting an accused person when giving his evidence-in-chief, merely to say ” I confirm the statement I made to the police ” and then to subject himself to cross-examination cannot be too strongly deprecated.
Cases referred to:
- R. v. Meredith 6- Others, 29 Cr. App. R. 40.
- R. v. Garland, 29 Cr. App. R. 46.
Appeal from the Supreme Court of Nigeria.
A wolowo and A kerek for first Appellant.
Williams for second Appellant.
Manyo-Plange, Crown Counsel, for Crown.
The following judgment was delivered:
Verity, C.J. These are appeals from convictions for Murder in the Ibadan Division of the Supreme Court.
The facts are briefly that on the 22nd May, 1948, a storeroom at Shagamu was broken open and nineteen bags of cement were stolen therefrom. The following day the body of the night-watchman in charge of the storeroom was found some fifty yards away. The stolen cement was also found in the bush some five or six days later at a spot about one hundred yards from the house of the first appellant, who, with three others including the second appellant, was charged with the murder of the night-watchman. Two of the accused persons were discharged at the close of the case for the Crown there being not sufficient evidence upon which to call upon them for a defence. The appellants were put upon their defence, each gave evidence on his own behalf and both were convicted of murder.
In regard to the first appellant the evidence tendered by the Crown amounted to no more than that he was at the time building a house not far from the storeroom, for which purpose he required cement, that in a statement to the police he admitted having bought the cement in question from the other three accused persons and alleged that when he learned of the theft and of the murder he told these accused to remove the cement from his house to which it had been delivered by them. There was also the evidence of one witness that this appellant showed the Police where the cement was hidden in the bush although this piece of evidence is not substantiated by the Police Inspector. The first appellant made no report to the police in the first instance, though he appears to have made a statement to one of his relations, who was a member of the Shagamu Town Council and who assisted in the investigation of the matter. At the close of the case for the Crown no submission was made on behalf of this appellant, although
it is difficult to say how an application for his, discharge at that stage could have been resisted. He was called upon for a defence, however, and repeated on oath the story he had told to the Police. The second appellant then gave evidence on his own behalf and confirmed a statement he had previously made to the police and at the Preliminary Inquiry before the Magistrate, a statement which implicated the first appellant not only in the stealing of the cement but also in the actual murder of the night-watchman The learned trial Judge while not accepting in detail the story told by the second appellant to the police and at the Preliminary Inquiry found that, taken together with the other circumstances as proved by the Crown, the statement of the second appellant established that the first appellant was present and aided in the murder.
In regard to the second appellant it can be said that the only evidence tendered by the prosecution against him was that of his own statement to the Police and at the Preliminary Inquiry to the effect that, under pressure from the first appellant, he had accompanied him to the storeroom for the purpose of stealing the cement, but that he had had no part in the attack upon the night-watchman and had indeed run away when this attack was made, only returning when told that the night-watchman was tied up in the bush. He then helped in carrying the cement to the new building of the first appellant. Upon this evidence he was called upon for a defence. In the witness-box he confirmed on oath his previous statements, and the learned trial Judge while not accepting his evidence in detail found that he was party to a common design to do grievous harm to the night-watchman for the purpose of facilitating the commission of the offence of stealing the cement, that he was present at the murder and helped to carry away the cement. The learned Judge did not believe that he ran away while the night-watchman was killed nor does he appear to have believed the truth of his story that the first appellant and another actually killed the night-watchman.
It is patent that the most substantial part of the case for the Crown tests upon the evidence of the second appellant without which it is obvious that both he and the first appellant must have been acquitted.
There is no evidence upon which he himself could have been convicted apart from his own statement, and without his evidence the Crown could have established against the first appellant no more than the receiving, on his own admissions, of the cement knowing that it had been stolen. There are, moreover, certain inherent improbabilities in the story of the second appellant, to which the learned trial Judge does not appear to have given consideration. It does seem to us, however, improbable that the first appellant, if he had been a party to the theft and to the murder, would have caused the cement to be brought to his own premises, a very short distance from the scene of the crime, upon which was an unfinished building wherein search would almost certainly be made for the missing cement. That such a consideration would have entered the mind of the first appellant is clear from the fact that he did cause the cement subsequently to be removed, and his explanation that he did so after learning of the theft and of the murder appears to us not only to be reasonable but to accord with the very few facts which are satisfactorily proved. There is, nevertheless, the evidence of the second appellant which cannot be ignored. We would not go so far as the Recorder of London in R. v. Meredith & Others (1) and so hold that the evidence of the second appellant should not be considered in arriving at a decision as to the guilt or innocence of his co-accused, even though a direction to jury to this effect appears to have been approved by the Court of Criminal Appeal, nor, in view of section 177 of the Evidence Ordinance do we feel constrained to follow the view expressed by the Court of Criminal Appeal in R. v. Garland (2). We awe of the opinion, however, that the evidence of a co-accused who seeks to exculpate himself and incriminate another, should receive the most careful scrutiny and
should only be accepted as conclusive as to the guilt of his co-accused where the Court after such scrutiny is satisfied that he is a witness of truth.
In the present case we do not feel assured that the learned trial Judge adopted this attitude towards the evidence of the second appellant, indeed by the manner in which this evidence was taken by the learned Judge, he was unable to give it that careful scrutiny, which we consider essential in such cases.
The second appellant made a. statement to the police and a further statement before the Magistrate at the Preliminary Inquiry in each of which he set out in some detail his version of what transpired on the night of the 22nd May. When it came to the trial, however, instead of making a detailed statement on oath, he made a few preliminary statements of relatively little importance and then was allowed to say ” I confirm the statement which I made to P.C. Oni “. He then formally denied assaulting the night-watchman and thereupon was subjected to cross-examination by Counsel for the first appellant and by Crown Counsel and replied to certain questions put to him by the Court. Although we are not unaware that this procedure is at times followed, for the purpose, we presume, of saving time, we do not think that it can be too strongly deprecated. It not only deprives the trial Judge of hearing the witness tell his story, either by way of narration or in answer to questions put by counsel, and of observing his demeanour and the manner in which he gives his evidence, but it also puts the witness at a considerable disadvantage in that the only time at which the Court has the opportunity of observing him is that at which he is under cross-examination. It is, in our view, impossible for the trial Judge to form a just opinion of the merits of a witness in circumstances in which the examination-inchief amounts to no more than the reading of a statement, and yet in the present case it is in these circumstances that the learned trial Judge attempted to assess the value of the testimony of the second appellant upon which rested in the main the determination not only of his own innocence but also the guilt of the first appellant. In this case had the evidence of the second appellant been adduced by the more usual procedure of examination we should still have hesitated before coming”to a conclusion that the Crown had satisfactorily discharged the burden of proving the guilt of the appellants, but in these special circumstances we are of the opinion that it would be quite unsafe to do so. We are unable to say to what extent the learned trial Judge might have been affected in weighing the merits of testimony upon which alone he could properly determine the guilt or innocence of either of the appellants if he had heard and seen the second appellant while he related in full the story he had to tell. In the circumstances we can say no more than that we think the trial was unsatisfactory and that the convictions should be quashed. The appeals are therefore allowed, the judgments and sentences are set aside and the appellants are acquitted.