STATE vs. TABBEY [1966]DLSC1761

Date	1966-06-30
Suit No.
Citation No.	[1966]DLSC1761

MILLS-ODOI JSC

AKAINYAH JSC

LASSEY J.S.C.

J. N. K. TAYLOR SENIOR STATE ATTORNEY FOR THE APPELLANT.

A.W. ACQUAAH FOR THE RESPONDENT.

[1966]DLSC1761
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													<main id="main" class="content" style="min-height: 60rem" >STATE <o:p></o:p>vs. <o:p></o:p>TABBEY <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 621<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:
30 JUNE 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">

J. N. K. TAYLOR, SENIOR STATE ATTORNEY, FOR THE
APPELLANT.<o:p></o:p>

A.W. ACQUAAH FOR THE RESPONDENT.<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">

MILLS-ODOI, AKAINYAH AND LASSEY JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MILLS-ODOI J.S.C.<o:p></o:p>Mills-Odoi
J.S.C. delivered the reasons for the judgment of the court. The court has
already given its opinion on the matters raised in the case stated by the
circuit court judge at Cape Coast, and we now give our reasons. This case
concerns the fourth accused, A. B. Tabbey, who will hereafter be referred to as
the respondent.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent and the other four accused were arraigned before the Circuit Court,
Cape Coast, on charges of conspiracy to steal and stealing the sum of £G2,326
or ¢5,582.40, the property of one Alhaji Jaji. During the course of the trial a
fierce controversy arose over the question of admissibility of a statement
which the respondent made to the police on 15 October 1965 when the case was
under investigation and when he had not been suspected of any complicity in the
crime. It was an ordinary statement made by him, not on caution, as the police
intended at that time to treat him as a witness for the prosecution.<o:p></o:p><o:p>&nbsp;</o:p>The
circumstances which led to the dispute over the issue of admissibility of the
statement, as set out by the court below, are as follows:<o:p></o:p>“Originally
the police contemplated charging the first three of the accused persons with
the two counts and treating the fourth and fifth accused persons as prosecution
witnesses. On 15 October 1965 witness statements were obtained from these two
persons. On 16 November 1965 the police obtained investigation statements on
caution from each of the last two accused persons. Each of the cautioned
statements relied on the witness statement (not on caution) made on 15 October
1965. At the trial the prosecution attempted to tender the statements made on 1
5 October 1965 but counsel for the defence objected on the ground that the
statements were originally taken as ordinary witness statements and not
investigation statements against the accused persons. The prosecution on the
other hand contended that any statement at all made by a person was admissible
against him under the general rule of admission and referred to the Judge’s
Rule 1 at para. 1118 of Archbold Criminal Law and Practice.”<o:p></o:p><o:p>&nbsp;</o:p>After
arguments of counsel on both sides on the question of admissibility of the
statements had been heard the circuit court judge held that the statements were
inadmissible and caused them to be marked as rejected, his reasons for so doing
are contained in the following passages:<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">“If at
the time the statement was made the fourth accused had been informed that he
was suspected of an offence, the law would require that he be cautioned.
Although this statement strictly speaking is admissible, I do not consider in a
criminal trial like this a statement obtained from a person as a witness,
should be accepted as a statement during his trial. In Cross on Evidence (3rd
ed.), p. 445, Lord Sumner’s observation in Ibrahim v. R. [1914] A.C. 599 at p.
610 supports this view: ‘In an action of tort evidence of this kind could not
be excluded when tendered against a tortfeasor, though a jury might well be
told as prudent men to think little of it’.”<o:p></o:p><o:p>&nbsp;</o:p>The
circuit court judge concluded his ruling in the following words, “In the
interest of justice I do not consider it proper to have the statement admitted,
it is therefore rejected, and should be so marked.”<o:p></o:p><o:p>&nbsp;</o:p>Upon an
application by the senior state attorney who, no doubt, was dissatisfied with
the </main>