REMY AND ANOTHER vs. THE REPUBLIC [1976]DLHC424

Date	1976-03-12
Suit No.
Citation No.	[1976]DLHC424

ARCHER J.A

KINGSLEY-NYINAH J.A

HAYFRON-BENJAMIN J.A.

E. F. DANKWA FOR THE FIRST APPELLANT.

S. H. ANNANCY FOR THE SECOND APPELLANT.

MRS. BAMFORD-ADDO PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC.

[1976]DLHC424
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													<main id="main" class="content" style="min-height: 60rem" >REMY AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 2 GLR 393<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
12 MARCH 1976.<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">

E. F. DANKWA FOR THE FIRST APPELLANT.<o:p></o:p>

S. H. ANNANCY FOR THE SECOND APPELLANT.<o:p></o:p>

MRS. BAMFORD-ADDO, PRINCIPAL STATE ATTORNEY, FOR
THE REPUBLIC.<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, KINGSLEY-NYINAH AND HAYFRON-BENJAMIN
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.A.<o:p></o:p>The facts
in this case are particularly gruesome, and I shall adopt the practice of some
of the earlier judges of not setting out in their judgments in similar cases,
all the gory and morbid details. It is sufficient to say that the victim of
this murder was deliberately hacked to pieces, and her several parts buried in
different places on a farm, and her jawbones tied up in the blouse she was
wearing just before she met her untimely death. The evidence is also clear that
the appellants in this appeal, Konutse Remy, a professional driver and Bikama
Konkomba, a medicine man, took part in this juju murder in the misguided belief
that they would thereby advance themselves in life.<o:p></o:p><o:p>&nbsp;</o:p>The
summing-up of the trial judge was fair and adequate, and I can see nothing
wrong with it. The only serious issues that have been raised result from the
prosecution’s decision to adopt the unusual course of charging the accused
persons with the offence of conspiracy to murder and with the substantive crime
of murder. This practice has been the subject of constant criticism even in
relation to non-capital offences: see R. v. Cooper and Compton [1947] 2 All
E.R. 701, C.C.A. Its extension to capital offences cannot be too strongly
deprecated.<o:p></o:p><o:p>&nbsp;</o:p>The
advantages gained by the prosecution in adopting this procedure may be so great
as to be prejudicial to the interests of the defendant. It enables the
prosecution to introduce what would otherwise be hearsay evidence in proof of
the conspiracy charge because of the rule that the act of one conspirator in
furtherance of the conspiracy is evidence against the other co-conspirators.
The jury having heard this hearsay evidence are not likely to forget it in considering
the substantive charges. In answer to the contention that possible prejudice
can be countered by proper instructions to the jury, Jackson J. of the U.S.
Supreme Court said that: “The naive assumption that prejudicial effects can be
overcome by instructions to the jury . . . all practising lawyers know to be
unmitigated fiction.” See Krulewitch v. U.S. 336 U.S. 440 at p. 453 (1949). The
tendency in England and in other Commonwealth countries has sometimes been to
strike out the conspiracy charge and leave the conviction on the substantive
charges. I am however of the view that the evidence of a co-conspirator being
properly admissible to establish the charge of conspiracy, it is rather the
conviction on the substantive charges that can be said to have been obtained by
the use of improper evidence. I would rather in suitable cases strike out the
substantive charges. In this case however only one sentence of death was
passed, and no useful purpose would be served in striking out any of the
charges. The evidence of a conspiracy to murder is adequate and the evidence
that the murder was carried out is overwhelming.<o:p></o:p>In the
circumstances the appeal of each appellant is dismissed.<o:p></o:p><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>I agree.<o:p></o:p>JUDGMENT OF NYINAH J.A.<o:p></o:p>I also
agree.<o:p></o:p>

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