THE STATE vs. SOWAH AND ESSEL [1961]DLSC1379

Date	1961-12-01
Suit No.
Citation No.	[1961]DLSC1379

VAN LARE JSC

SARKODEE-ADOO JSC

CRABBE JSC

APPELLANTS IN PERSON

K. DUA SAKYI FOR THE RESPONDENT (THE STATE).

[1961]DLSC1379
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&nbsp;vs.

&nbsp;[SUPREME COURT]

[1961] GLR 743

DATE: 1ST DECEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

APPELLANTS
IN PERSON.

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

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&nbsp;

Crabbe, J.S.C. delivered the judgment of the court. The appellants
were jointly charged on two counts, one of unlawful entry and the second of
stealing, and were convicted by Simpson, J. The simple facts which were proved
in support of the charges were that the second appellant and the complainant
(P.W.2) lived in one room in the house of one Osei Kwabena at Asafo in Kumasi.
On the day of the alleged unlawful entry and stealing the complainant said that
he left home for business at about 7 a.m. after having locked his door and
taken his key with him. Later the same day the two appellants were seen in the
room of the complainant by the house-owner, Osei Kwabena, who thinking that the
second appellant had obtained the key from the complainant at the latter’s
place of business asked no questions and went and sat by a friend outside the
house. Soon the two appellants came out of the house and the first appellant
was seen carrying two handbags on his head. The behaviour of the appellants
aroused the suspicion of the house-owner who then went into the house and found
that the latch on the complainant’s door had been broken. He sent to the market
for the complainant who came to the house, and it was thereupon discovered that
the articles enumerated in count two had been stolen.

It must be said at the outset in fairness to the learned trial
judge that there is some evidence, which, if believed, would justify the
convictions of the appellants, but we may say in the words of Cassels, J. in R.
v. McKenna1(9) that, “Plain though many juries may have thought this case, the
principle at stake is more important than the case itself”.

The judgment in this case was brief and after a similarly brief
review of the evidence for the prosecution the learned trial judge said as
follows:

“I am satisfied beyond reasonable doubt that the accused entered
the room of P.W. 1 by breaking open the lock and stole the items specified in
the second count despite the fact that none of these articles were found”.

The passage is immediately followed by the following sentence: “I
was so satisfied before the accused gave evidence”.

In our view the above passage and the sentence when considered in
their contexts mean no more than that the learned trial judge became fully
convinced of the guilt of the appellants solely on the evidence for the
prosecution and before each appellant opened his defence to the charges. This
we think put the onus on the appellants to prove their innocence.

With very great respect to the learned trial judge we think that
these expressions in his judgment constitute such a serious misdirection as
completely destroys the golden thread which according to Viscount Sankey, L.C.,
in the Woolmington v. D.P.P.2(10), runs through the web of the English criminal
law. The burden of proof in a criminal trial is not fully discharged until the
guilt of the accused is made to appear from the evidence in the case.

At the trial each appellant pleaded not guilty to both counts in
the indictment. Such a plea normally puts in issue every fact essential to
constitute the crime charged and, “Upon that plea the accused may stand,
shielded by the presumption of his innocence, until it appears that he is
guilty; and his guilt cannot in the very nature of things be regarded as
proved, if the jury entertain a reasonable doubt from the evidence” per Harlan
J. in Davis v. U.S.3(11)

In a criminal case, except in the instance of sanity, and matters
expressly thrown on the accused by statute, there is in general no presumption
against an accused person, and an accused person is not bound to give evidence.
It is wrong therefore to presume the guilt of an accused merely from the facts
proved by the prosecution. The case for the prosecution only provides prima
facie evidence from which the guilt of the accused may be presumed, and which,
therefore, calls for explanation by the accused.</span</main>