AGYEMAN II vs. REPUBLIC [1993]DLCA4317

Date	1993-06-22
Suit No.
Citation No.	[1993]DLCA4317

AMUAH JA

BROBBEY JA

FORSTER JA

PAAPA DADSON FOR THE APPELLANT.

ASARE BEDIAKO FOR THE RESPONDENT.

[1993]DLCA4317
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >AGYEMAN II<o:p></o:p>vs.<o:p></o:p>REPUBLIC<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

[1992-93] 2 G B R&nbsp; 844 – 849&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 22 JUNE 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PAAPA
DADSON FOR THE APPELLANT.<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">

ASARE
BEDIAKO 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 1.0pt 0in">

AMUAH
JA, BROBBEY JA, FORSTER JA<o:p></o:p>

</div>FORSTER
JA. The appellant, Nana Oppong Sarfo Agyeman II, is the Chief of Bawore, in
Ashanti. In August 1991 he was arraigned before the Circuit Court, Kumasi, on a
charge of stealing three wooden electric poles valued ¢75, 000, the property of
Bawore citizens. At the close of the case for the prosecution, learned counsel
for the defence submitted that the accused person had no case to answer.<o:p></o:p>In
a very brief ruling, warranted of course by the simple nature of the case, the
learned circuit judge held that the prosecution had made out a prima facie case
against the accused. The appellant's subsequent appeal to the High Court,
Kumasi, was dismissed. It is from the judgment of the appellate High Court that
the appellant appealed to this court.<o:p></o:p>On
4 March 1993, we dismissed this appeal and reserved our reasons and
accordingly, we now give our reasons.<o:p></o:p>This
being a second appeal, we are guided by Azu Crabbe JA’s dictum in Kwesi v
Republic [1977] 1 GLR 448 at page 452. He said:<o:p></o:p>“On a second appeal, however, it
becomes a question of law as to whether the first appellate court on
approaching its task, applied or failed to apply such principles. Of course, a
second appellate court does not have to write a judgment in form appropriate to
a court of first instance. It is enough, on a question of fact, if, after
having itself considered and evaluated the evidence and having tested the
conclusions of the trial court drawn from the demeanour of witnesses against
the whole of their evidence, it is satisfied that there was evidence upon which
the trial court could properly and reasonably find as it did.”
(Emphasis mine.)<o:p></o:p>The
single ground of appeal required us to determine whether as a result of
cross-examination, the evidence of the prosecution witnesses could be said to
be so manifestly unreliable that no reasonable tribunal could have found that a
prima facie case had been established by the prosecution. In his submission,
learned counsel for the appellant made reference to the applicant's caution
statement, exhibit B, in which he denied the charge of stealing.<o:p></o:p>In
view of the temptation to the defence in a criminal case to treat such ex
curia, self-serving statements as substantive evidence worthy of consideration
upon a submission of no case, we think it desirable that the evidential value
of such a statement must be discussed here so that, hopefully, the
misconception that it constitutes substantive evidence may be appreciated and
avoided.<o:p></o:p>In
considering the issue whether at the close of the case of the prosecution, a
prima facie case has been made against an accused his extra-judicial,
self-serving statement which has been tendered by the prosecution is no
evidence of the truth of the contents. Such a statement becomes relevant as
substantive evidence, where the accused elects to give evidence and is
cross-examined, as the case may be, by the prosecution. See R v Storey (1968)
52 Cr App Rep 334; R v Barbery (1975) 62 Cr App Rep 248, R v Pearce (1979) 69
Cr App Rep 305.<o:p></o:p>The
prosecution is not even bound to tender the self-serving statement of an
accused person; justice however requires that the prosecution should bring the
statement to the notice of the defence and, may, upon request, make it
available to the defence. Even where the accused elects to give evidence the
statement does not thereby become evidence of the truth of the facts; it goes
only to the credibility of the accused, as showing consistency with the defence
which he may raise.<o:p></o:p>The
statement, as was said by Widgery LJ in R v Storey (1968) 52 Cr App Rep 334 at
p 337 is admissible “because of its vital relevance as showing the reaction of
the accused when taxed with the incriminating facts”. And as equally stated in
R v Donaldson (1976) 64 Cr App Rep 59 such a statement is:<o:p></o:p>“evidence in a trial in that it is
evidence that the defendant made the statement and of his reaction which is
part of the general picture which the jury have to consider but it is not
evidence of the facts stated.”<o:p></o:p>If
before 1 January 1976 we could have justified the application of the rule in
our jurisdiction because “we cannot shut our eyes to the desirability of a
homogeneous development and application of law in two Commonwealth countries
having cognate jurisprudence”, as was said by Apaloo JSC in Fodwoo v Law
Chambers [1965] GLR 363 at 374, we can now confidently apply the principle,
since the enactment of the Evidence Decree 1975 (NRCD 323). Section 118 (4) of
the Decree, which provides for the exclusion of such statement reads:<o:p></o:p>“In a criminal action evidence of a
hearsay statement made by an accused shall not be admissible under subsection
(1) of this section when offered by the accused, unless the accused is or will
be a witness subject to cross-examination concerning the hearsay statement.”<o:p></o:p>Such
a self-serving statement therefore, whether tendered by or through the
prosecution, is admitted conditionally. If the accused does not give evidence,
and thus denies the prosecution the opportunity of testing it for reliability,
then the statement ceases to be admissible; even not for the limited purpose of
credibility. Our law of evidence thus retains the common law position, that in
a criminal trial a self-serving extra-judicial statement of the accused is
irrelevant when the court is determining whether a prima facie case has been
established by the prosecution, for at that stage the statement has not been
tested by cross-examination of the author.<o:p></o:p>