REPUBLIC vs. ANIMAH [1988]DLSC660

Date	1988-07-20
Suit No.
Citation No.	[1988]DLSC660

ABAKAH J.

S.Y. ANIM SENIOR STATE ATTORNEY FOR THE REPUBLIC.

J.O. ADU AMANKWAH FOR THE ACCUSED.

[1988]DLSC660
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>ANIMAH<o:p></o:p>[HIGH COURT, KOFORIDUA] <o:p></o:p>[1989-90] 2 GLR 440<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
20
JULY 1988<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.Y. ANIM, SENIOR STATE ATTORNEY, FOR THE
REPUBLIC.<o:p></o:p>

J.O. ADU AMANKWAH FOR THE ACCUSED.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABAKAH J.<o:p></o:p>This is a
ruling on an objection raised by Mr. J. O. Adu Amankwah, learned defence
counsel in this case, on behalf of the accused. The objection is to the
tendering of a statement said to have been made by the accused to the first
prosecution witness, the police investigator in this case. Mr. J. O. Adu
Amankwah’s objection was founded on the premise that the statement does not
contain what the accused said. Mr. J. O. Adu Amankwah, however, varied this
basis a little by stating that what he was saying was in effect a denial by the
accused of the authorship of the statement. This was when Mr. Adu Amankwah was
faced with the authority of Asare alias Fanti v. The State [1964] G.L.R. 70,
S.C. cited by Mr. S.Y. Anim, Senior State Attorney, who resisted the objection
on behalf of the Republic.<o:p></o:p><o:p>&nbsp;</o:p>From the
mini trial which has occasioned this ruling the statement said to have been
made by the accused is not exactly the same as what the accused herself
contends she said. There are both similarities and dissimilarities in the two
statements and it would seem that on the authority of Asare alias Fanti v. The
State (supra), Mr. Adu Amankwah’s objection should be overruled upon the ground
stated by him and that the statement could be admitted and the weight to be
attached to it left to the jury since the accused admits having voluntarily
made a statement but it is the accuracy of the statement that she complains
about.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In the
course of his address, however, Mr. Adu Amankwah turned his attention to the
provisions of section 120 of the Evidence Decree, 1975 (N.R.C.D. 323) and
argued that the procedure laid down by virtue of those provisions for the
taking of confession statements made by accused persons was not complied with
when the accused’s statement was taken. The question I have had to ask myself
is whether I can have recourse to the alleged default in this regard in dealing
with the objection. I think I should. Basing my opinion on the undisputed
facts, I think the rule that a court should not only consider the defence
actually raised by the accused but any defence that emerges from the evidence
must apply here. As to whether there was an independent witness or not this is
in dispute. Let me assume for a moment that there was an independent witness at
the taking of the statement of the accused. It is provided by section 120 of
N.R.C.D. 323 that a statement such as the one sought to be tendered which
constitutes or forms an essential part of or taken together with other
information already disclosed by the accused is a basis for an inference of the
commission of a crime for which the accused is being tried in the action is not
admissible against him unless, inter alia, the independent witness, where the
accused is blind or illiterate, carefully reads over and explains to him the contents
of the statement before it is signed or marked by the accused and does certify
in writing on that statement that he has so read over and explained its
contents to the accused and that the accused appeared perfectly to understand
it before it was signed or marked.<o:p></o:p><o:p>&nbsp;</o:p>

The
following facts are beyond dispute: The accused is illiterate. The independent
witness in this case did not read carefully and explain the contents of the
statement sought to be tendered to the accused. He did not read it at all.
According to him it was the investigator who read it aloud to him and the
accused. The independent witness did not certify in writing that he did so
carefully read and explain the contents to the accused. In fact the independent
witness did no writing at all apart from signing his name against what the
investigator had written. These facts about the independent witness were given
not by the accused but by a prosecution witness, the second prosecution
witness. Had they been given by the accused and even challenged, however feebly
by the prosecution, I would have found it appropriate to hold Mr. Adu Amankwah
on to his original ground of objection but in the face of this glaring
disregard of the clear and mandatory provisions of an enactment, it would be a
travesty of justice for this court to shut its eyes to this contempt of the law
and make decisions which are at large. I am bound to apply the provisions of
section 120 of N.R.C.D. 323, in particular, subsection 4 to this case. Applying
them therefore I rule that the statement sought to be tendered is inadmissible
and it must be rejected and marked rejected 1. I do so accordingly order.<o:p></o:p></main>