DOCHIE vs. THE STATE [1965]DLSC1796

Date	1965-03-29
Suit No.
Citation No.	[1965]DLSC1796

ARCHER J.

J. ARTHUR FOR THE APPELLANT.

S. S. OKUNOR STATE ATTORNEY FOR THE RESPONDENT.

[1965]DLSC1796
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													<main id="main" class="content" style="min-height: 60rem" >DOCHIE<o:p></o:p>&nbsp;vs. <o:p></o:p>THE STATE <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1965] GLR 208<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 MARCH 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. ARTHUR FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>This is
an appeal against conviction and sentence by a circuit court judge sitting at
Accra. The appellant was convicted of (1) being in possession of instruments
intended for unlawful entry contrary to section 154 of the Criminal Code,
1960,1 and (2) attempted unlawful entry contrary to sections 18 (1) and 152 of
Act 29 and he was sentenced to two years’ imprisonment with hard labour on each
count concurrently. The learned circuit court judge also recommended his
deportation from Ghana. The additional grounds argued with the leave of the
court were as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) The
learned trial circuit court judge did not adequately consider the case of the
appellant;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) Even
though the learned trial circuit court judge stated in his judgment that he did
not believe the case of the defence, he totally failed to consider the
alternative that short of believing the case for the defence, whether the same
may reasonably be true;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) The
learned trial circuit court judge misdirected himself in holding that “I do not
believe the story of the accused.”<o:p></o:p><o:p>&nbsp;</o:p>I must
say right now that grounds (1) to (3) mean the same thing and in fact learned
counsel for the appellant dealt with the three grounds in one mental exercise.<o:p></o:p><o:p>&nbsp;</o:p>The
fourth ground is that the judgment was wrong in law and it is otherwise
unsupportable; the fifth that the conviction or sentence or both and the
consequent deportation order are not supported by the evidence, and the sixth
that the sentence is excessive.<o:p></o:p>In
support of grounds (1) to (3) the appellant’s counsel cited the cases of R. v.
Abisa Grunshie2 and R. v. Ansere3 and submitted that the trial judge did not
believe the statement of the appellant but he failed to consider the other
alternative whether the appellant’s statement could be reasonably true and as a
result the trial judge misdirected himself by non-direction.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment of the trial judge is very short and is subject to a multiplicity of
judicial observations. No reasons are given for the findings. Yet we read, “The
prosecution’s case has been proved without any reasonable doubt. The defence is
a denial made from the dock. I do not believe the story of the accused. If he
was returning from the pictures at 10.30p.m. and had a stomach upset he would
have taken a taxi home.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant had himself stated from the dock that because of stomach pains, he
could not continue to walk home and he had no money to take a taxi home. The
learned judge appears to have overlooked the reason given for not taking a taxi
home. Another unfortunate impression which the judgment gives is that the
defence was unbelievable presumably because it was a denial made from the dock.
Section 174 of the Criminal Procedure Code, 1960,4 clearly affords an accused
person the option of either giving evidence on oath or making a statement. It
is a statutory right conferred on accused persons and the mere fact that an
accused elects to make an unsworn statement does not in my opinion amount to
proof of guilt. It is a statement which must be considered by the court;
although it is not evidence on oath yet it is evidence of less weight than
sworn testimony. The probative value of the statement is of course weakened by
the right to give swo</main>