STATE vs. ATIA TONGO [1966]DLSC1753

Date	1966-12-02
Suit No.
Citation No.	[1966]DLSC1753

OLLENNU JA

AZU CRABBE JA

LASSEY J.A.

S. M. BOISON PRINCIPAL STATE ATTORNEY (AIKINS STATE ATTORNEY WITH HIM) FOR THE APPELLANT.

ASARE FOR THE RESPONDENT.

[1966]DLSC1753
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													<main id="main" class="content" style="min-height: 60rem" >STATE <o:p></o:p>vs. <o:p></o:p>ATIA TONGO <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 765<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:
2 DECEMBER
1966.<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">

S. M. BOISON, PRINCIPAL STATE ATTORNEY (AIKINS,
STATE ATTORNEY, WITH HIM), 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">

OLLENNU, AZU CRABBE AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.A.<o:p></o:p>Azu
Crabbe J.A. delivered the reasons for the opinion of the court. On 31 October
1966, this court gave a negative answer to the question of law reserved for the
opinion of this court by the learned judge of the High Court, Accra, and we now
give our reasons.<o:p></o:p><o:p>&nbsp;</o:p>The case
stated by the learned judge under section 338 of the Criminal Procedure Code,
1960,1 is 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">“The
facts are briefly that on 7 June 1964 at about 7 p.m. one Dolakwei Losso now
deceased was in the palm-wine bar of one Afua Mansah drinking when he went out
to urinate. While he was urinating he was slashed from behind on the neck by an
unknown person. He was rushed to the police station and later to hospital. That
same evening one Badu and his wife Antwiwaa alleged that the accused came to
their house and slashed both of them. After Losso had been taken to hospital
the accused went to the police station and asked to be handcuffed. He was
handcuffed and he then confessed that it was he who slashed Losso with a cutlass
and later he went and showed the police where the cutlass was. He was
originally charged with the use of an offensive weapon on Losso, Badu and
Antwiwaa on 10 June 1964. Losso died on 16 June 1964 and the charge was changed
to one of the murder of Losso. The accused was cautioned and he offered no
statement, when charged with murder. At the hearing the prosecution sought to
tender the statement which was objected to on the ground that his failure to
give any statement when charged with murder amounted to his not having given
any caution statement at all on that charge. State replied that once the
statement was voluntary it is admissible.<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">I upheld
it on the grounds that: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:1.0in;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 charge of the use of offensive
weapon is a different and lesser offence and therefore a statement given on
caution for that offence cannot be tendered when charged with a more serious
crime like murder;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:1.0in;text-align:justify;mso-pagination:none;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) the failure of the accused to give
any statement to the police when charged with murder meant he did not want to
give any and the caution words indicate that he was not forced to give any; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:1.0in;text-align:justify;mso-pagination:none;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) He is deemed not to have made a
statement at all for if he had previously been charged with murder he would not
have, by inference, made any statement. For these reasons I rejected the
statement.”<o:p></o:p><o:p>&nbsp;</o:p>The
question of law on which the learned judge sought our opinion was expressed in
these terms:<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">“Did I,
in ruling that the caution statement made by the accused for the charge of the
use of an offensive weapon was not admissible in evidence against the accused
on a subsequent charge of murder based on the same facts on which the accused
made no statement on caution, give a correct decision on a point of law?”<o:p></o:p><o:p>&nbsp;</o:p>In
arguing against the ground on which the learned judge’s ruling was based, Mr.
Boison, principal state attorney, submitted that the ingredients of murder are
unlawful harm caused with intent that it should cause death, and the
ingredients of the use of an offensive weapon is harm intentionally caused with
a weapon. It is good law, he contended, th</main>