The State v. Brobbey And Nipah [1962] 2 GLR 101

Material Facts:

The first and second appellants and two other persons, were charged with the murder of one Nsonamoah at Sekodumasi. The two others were acquitted. The case of the prosecution against the appellants was based on circumstantial evidence and the alleged confession of one of the two acquitted persons. In this confession, which was tendered as exhibit M, the acquitted person said he and the appellants went to Sekodumasi on the night of the murder, and the first appellant pointed to the deceased and instructed the second appellant to kill him because the deceased had poisoned him through juju. That the second appellant, in response, shot at the deceased.

Procedural History:

At the trial court, the appellants were convicted, and they appealed against their conviction to the Supreme Court.

Issue:

1. Whether or not circumstantial evidence could be used to establish the guilt of the appellants in the present case.

2. Whether or not exhibit M should have been excluded from consideration by the jury.

Holdings:

1. The circumstantial evidence against the appellants could not be used to establish their guilt.

2. Exhibit M should have been excluded from consideration.

Ratio Decidendi:

In using circumstantial evidence to prove the guilt of an accused, their lordships are of the opinion that the evidence, among others, must exclude the probability that the crime was committed by some other person other than the accused. In the words of the court:

In a case where the evidence is purely circumstantial and establishes nothing more than suspicion, the judge must draw attention to the necessity of some piece of evidence that is more than mere suspicion and which would lead to one conclusion and one conclusion only, that is, to the guilt of the prisoner. One cannot put a multiple of suspicions together and make proof of it. For circumstantial evidence to support a conviction it must be inconsistent with the innocence of the accused, and must lead to the irresistible conclusion not only that the crime charged has been committed, but that it was in fact committed by the person or persons charged and by no other person; in other words the evidence on the whole must exclude the probability that the alleged crime could have been committed by some person or persons other than the person or persons before the court.

In the present case, however, the circumstantial evidence was not of such nature to exclude the fact that the crime was committed by some other person. The facts show that one Yaw Buakyi could have caused the death of the deceased and he was even charged with the offence of murder, but was subsequently discharged. In light of this, their lordships concluded that the circumstantial evidence could not be used to conclude that the accused were guilty because it “does not exclude the probability that the alleged crime could have been committed by some person other than the persons charged.”

On the second issue, their lordships noted that the confession was made in the absence of the appellants and were not repeated at trial. Consequently, it was not evidence against the other accused persons (including the appellant) but only evidence against the person who made it. This fact was recognised by the trial judge. However, the summing up by the trial judge did not properly instruct the jury to exclude the entirety of exhibit M because “if exhibit M had been excluded from consideration by the jury it would have been impossible for them to have returned the verdict which they did return.” In light of this, their lordships believe the summing up amounted to a misdirection by direction on inadmissible evidence, and consequently set aside the conviction.