THE STATE vs. J. A. BOATENG [1961]DLSC1297

Date	1961-10-30
Suit No.
Citation No.	[1961]DLSC1297

VAN LARE JSC

SARKODEE-ADOO JSC

CRABBE JSC

KOI LARBI FOR THE APPELLANT

K. DUA-SAKYI WITH HIM SARKODEE FOR THE RESPONDENT (THE STATE).

[1961]DLSC1297
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<a name="_gjdgxs"></a>&nbsp;vs.

&nbsp;J. A. BOATENG

&nbsp;[SUPREME COURT]

[1961] GLR 619

DATE: 30TH OCTOBER, 1961.

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COUNSEL:&nbsp;&nbsp;

KOI
LARBI FOR THE APPELLANT.

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VAN LARE, SARKODEE-ADOO AND
CRABBE JJ.S.C.

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&nbsp;

Crabble, J.S.C. delivered the judgment of the court [He stated the
facts as set out in the headnote and continued:] In our view the learned trial
judge clearly usurped the functions of the assessors when he directed them to
hold that P.W.2 and P.W.4 were not accomplices. The question whether a witness
for the prosecution is an accomplice or ought to be regarded as such, is a
question of fact for the assessors or jury to determine.

The first ground of appeal argued by Mr. Larbi, counsel for the
appellant, reads as follows:

The main question to determine therefore is whether on the
evidence and in the circumstances of the case P.W.2 and P.W.4 were accomplices.
In the case of R. v. Davies1(1), Lord Simonds, L.C. defined an accomplice as
follows:

“On the cases it would appear that the following persons, if
called as witnesses for the prosecution, have been treated as falling within
the category: (i) On any view, persons who are participes criminis in respect
of the actual crime charged, whether as principals or accessories before or
after the fact (in felonies) or persons committing, procuring or aiding and
abetting (in the case of misdemeanours). This is surely the natural and primary
meaning of the term ‘accomplice’ “.

No other categories referred to by Lord Simonds appear to be
relevant to this case.

The evidence of constable Robert Asunade shows quite clearly that
P.W. 2 was found in the room with the appellant, P.W.4 and second accused.
Although P.W.2 said in his evidence on oath that the appellant slept in his
boys-room yet in the statement he gave to the police he said that he slept in
his own room with the appellant. P.W.2 did not explain why the police uniform
was found under his bed if it is true that the appellant slept in the boys
apartment in his house. He also appeared frightened at the sight of the
policeman. There can be no doubt that before the arrival of Constable Robert
Asunade P.W.2 knew of the existence of the photographic plate under his bed.
After very careful consideration of the evidence and the conduct of P.W.2 we
are compelled to hold that he was an accomplice. We are therefore not surprised
that he was committed for trial at the conclusion of the preliminary
investigation.

The position of P.W.4 is not so easy to determine because he does
not readily fall within Lord Simond’s first category. But it was contended by
counsel for the appellant that the evidence of P.W.4 was so tainted that the
learned trial judge should have received it with caution even though he was
strictly not an accomplice. This witness was found with the others in the room
of Ocloo Torso by Constable Asunade, and when they were asked what they were
doing in the room he said nothing and looked frightened. His evidence that the
appellant threw the uniform under the bed was not supported by Ocloo Torso, and
also his evidence that the appellant begged Constable Asunade was in conflict
with the evidence of Constable Asunade himself and Ocloo Torso, both of whom
said that it was the second accused alone who begged.

We thought that although P.W. 4 could not stricto sensu be called
an accomplice yet he was so thickly involved in the criminal transaction that
his evidence should have been received with considerable caution. As Lord
Simonds said in R. v. Davies:

“In such a case the issue of ‘accomplice vel non’ is for the
jury’s decision: and a judge should direct them that if they consider on the
evidence, that the witness was an accomplice, it is dangerous for them to act
on his evidence unless corroborated: though it is competent for them to do so
if, after the warning they still think fit to do so.”2(2)