AGYEMANG II vs. THE REPUBLIC [1993]DLCA700

Date	1993-06-22
Suit No.
Citation No.	[1993]DLCA700

AMUAH JA

BROBBEY JA

FORSTER JA

PAAPA DADSON FOR THE APPELLANT.

ASARE BEDIAKO FOR THE REPUBLIC.

[1993]DLCA700
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AGYEMANG II<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1993-94] 1 GLR 555<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">

</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 REPUBLIC. <o:p></o:p>

AMUAH, BROBBEY AND FORSTER JJA<o:p></o:p>

</div>JUDGMENT OF FORSTER JA.<o:p></o:p>The appellant, Nana Oppong Sarfo Agyemang II, is the chief of
Bawere in the Ashanti Region. On 5 August 1991 he was arraigned before the
Circuit Court, Kumasi on a charge of stealing “three wooden electric poles
valued at ¢75,000, the property of Bawere 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. 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. 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 CJ’s
dictum in Kwesi v The Republic [1977] 1 GLR 448 at 452, CA. He said:<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">“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, as second appellate court does not have to
write a judgment in form appropriate to a court of first instance. It is
enough, on questions 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.”<o:p></o:p>(The emphasis is 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. In
view of the temptation to the defence in a criminal case to treat such ex curia
self-serving statements as substantive evidence and, as 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 for 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 R 334, CA; R v Barbery (1976) 62 Cr App R 248, CA and R
v Pearce (1979) 69 Cr App R 365, CA.<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. The statement, as was said by
Widgery LJ in R v Storey (supra) at 337-338, is admissible,”... because of its
vital relevance as showing the reaction of the accused when first taxed with
the incriminating facts.” And as equally stated in R v Donaldson (1976) 64 Cr
App R 59, CA such a statement is:<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">&nbsp;“... evidence in the 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 eye</main>