1 IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA- GHANA CORAM: KANYOKE (Presiding) YAW APPAU ACQUAYE, JJ.A. CRIM. APPEAL No. H2/2/2007 6TH NOVEMBER 2008 NANA YAW NIMO KWAKORAKWA & ANOR VERSUS THE REPUBLIC ----------------------------------------------------JUDGMENT YAW APPAU, JA This is an appeal against the decision of the High Court, Kumasi. The appellants are Nana Yaw Nimo Kwakorakwa (1st appellant) and Yaw Gyamfi (2nd appellant). The record indicates that 1st appellant is an ex-chief of his town called Aburaso in the Ashanti Region and also the head of the Royal (Stool) Family of Aburaso at the time. The 2nd appellant is his nephew. The two of them were charged before the trial High Court Kumasi as A1 ad A2 respectively, on charges of conspiracy to commit crime, murder and attempted murder. Both were together charged under Count One (1) on conspiracy to commit crime to wit; Murder, contrary to section 23 (1) and 47 of Act 29/60. The 1st appellant alone was charged under Count Two (2) on the offence of Murder, contrary to section 47 of Act 29/60 while the 2nd appellant also faced two counts of Attempted Murder, contrary to section 48 of Act 29/60 under Counts Three (3) and Four (4). The particulars of the various charges read as follows: COUNT ONE – 1. Nana Yaw Nimo Kwakorakwa, Farmer 2. Yaw Gyamfi, Mechanic: For that you on or about the 27th of April 2003 at Aburaso in the Ashanti Region did agree together with a common purpose to commit a crime to wit Murder. COUNT TWO – Nana Yaw Nimo Kwakorakwa, Farmer: For that you on the 27th of April 2003 at Aburaso in the Ashanti Region did murder one Kwaku Poku Appiah. COUNT THREE – Yaw Gyamfi, Mechanic: For that you on the 27th of April 2003 at Aburaso in the Ashanti Region did attempt to murder one Kwabena Owusu Mensah by shooting at him with a gun. COUNT FOUR – Yaw Gyamfi, Mechanic: For that you on the 27th April 2003 at Aburaso in the Ashanti Region did attempt to murder one Adwoa Boatemaa by shooting at her with a gun. The two appellants pleaded not guilty to the various charges; however, when the trial judge summed up the evidence to the jurors after both prosecution and defence had closed their cases, the jurors 2 returned a verdict of guilty on all the counts against the appellants. The trial judge convicted them accordingly and sentenced them to various terms to run concurrently. Both of them were each sentenced to 20 years I.H.L. on Count 1; 1st appellant was further sentenced to death under Count 2, while the 2nd appellant was again sentenced to 25 years I.H.L. on each of Counts 3 and 4. It is these convictions and sentences that the appellants have appealed against before us. They filed separate notices or petitions of appeal on the same date; i.e. on 22/5/2006 and through the same solicitor/counsel. The grounds of appeal in both notices of appeal, which the appellants categorized into grounds on points of law and grounds on facts, were virtually the same. No additional grounds were filed as indicated in the notices of appeal. I shall deal with the appellants separately as counsel for the appellants rightly did in his statement of case filed on 1/2/2008, beginning with the 1st, but before I do so, I wish to recall the facts of the case as gathered from the evidence on record. On the 27th day of April 2003, one Kwaku Poku Appiah and two others; namely Kwabena Owusu Mensah and Adwoa Boatemaa sustained gun shot wounds at Aburaso, a town near Kumasi in the Ashanti Region. Kwaku Poku Appiah died in the process. This prompted the arrest and prosecution and the subsequent conviction and sentence of the two appellants. What gave rise to the disturbances that culminated in the death of Kwaku Poku Appiah and the injuries suffered by the two others seemed to have arisen from a protracted family feud between two (2) factional members of the Royal Family of Aburaso led by the 1st appellant on one side and the queen mother who was the complainant and (P.W.1) in the Court below, on the other side. The 1st appellant was said to be celebrating “Akwasidae” in his house on the day in question; i.e. 27th April 2003 when supporters of the queen mother started throwing stones into the house. This was at a time the queen mother had left for the Police Station in Kumasi to secure the release of some of her supporters who had been arrested and detained as a result of a complaint lodged against them by the 1st appellant. This resulted into a quarrel between some members of both factions. In the course of the impasse, the deceased Kwaku Poku Appiah who is said to be the son of the queen mother arrived at the scene. When he attempted to join in the fray, he received a gun-shot and later died at the Komfo Anokye Teaching Hospital where he was rushed to. Two others, namely; Kwabena Owusu Mensah also said to be a son of the queen mother and one Adwoa Boatemaa who appeared to be an unfortunate victim as the evidence disclosed that she was then passing by, also received gun-shot wounds. They however, survived their wounds. It was alleged that it was the 1st appellant who shot at and killed the deceased Kwaku Poku Appiah, while the 2nd appellant shot at the two others who sustained injuries. The two were therefore arrested and charged with the various offences after investigations had indicted them. Their contention before this Court in this appeal was that their convictions were wrong so the said convictions must be quashed or set aside together with the sentences. What did they say in their written submissions vis-à-vis their grounds of appeal? I begin with the 1st appellant. The Murder Charge The 1st appellant relied mainly on the three grounds he described as grounds on facts as contained in his notice of appeal referred to supra. These were: 3 1. The judgment was unreasonable, unwarranted and cannot be supported by the evidence on record. 2. The Honourable Court was wrong in deciding by itself the distance from the point of shot of gun to the deceased target to be seven (7) metres, which is not borne out by the evidence. 3. The Honourable Court failed to properly consider the case of the accused. I will deal mainly with the 1st and 3rd grounds, which to me are not different in character. In his statement of case, the 1st appellant referred to the testimonies of P.W.2, P.W.3, P.W.4 and C.W.1 who said they were eye witnesses to the happenings that fateful day and submitted that the testimonies of these eyewitness were full of inconsistencies and contradictions, nevertheless the trial judge failed to address the jurors on the inconsistencies and their effect in law, which failure made the jurors to draw wrong conclusions leading to the conviction of the 1st appellant on the offence of murder. It is imperative to mention here that the trial court suo motu, subpoenaed C.W.1 to testify after the prosecution had announced the closure of its case before calling on the appellants to open their defence. The question is; why should the Court below, suo motu, decide to call a witness the prosecution had refused to call after the prosecution had announced the closure of its case? According to the 1st appellant, apart from the conflicts in the testimonies of the so-called eye witnesses, including C.W.1, the first or previous statements they volunteered to the Police during investigations were inconsistent with their later statements and testimonies in the Court below, however the trial judge failed to address the jurors on the contradictions and inconsistencies. After perusing the summing-up of the trial judge to the jurors, I did not have cause to disbelieve the contention of the 1st appellant that the trial judge failed to mention the inconsistencies in the previous statements of P.W. 2, 3, 4 and then C.W.1, vis-a-vis their later statements and testimonies in the Court below, as the record of proceedings clearly shows. This means that the jurors were not addressed on the said inconsistencies and contradictions and what they meant in law. The undeniable fact is that the respondent did not deny that the most vital witnesses for the prosecution in the case, namely; P.W. 2, 3 and 4 and even C.W.1 whom the Court below suo motu called after the close of the prosecution’s case, had earlier on given statements to the Police exonerating the 1st appellant completely from the crime for which he was charged. In those earlier or previous statements, P.W.2, 3, 4 and C.W.1 had indicated positively that it was the 2nd appellant Yaw Gyamfi who fired the shots that killed Kwaku Poku Appiah and injured the others. They changed these statements some couple of months later and this time said it was the 1st appellant Nana Yaw Nimo Kwakorakwa who shot and killed the deceased Kwaku Poku Appiah while the 2nd appellant shot and injured the two others. They repeated their later statements on oath in the Court below contradicting the first statements they voluntarily made immediately after the incident. When questioned on their earlier statements during cross-examination, they admitted volunteering those statements. They did not challenge the contents of the said statements, save explaining that it was the 1st appellant whose name they mentioned to the investigators as the one who fired the killing shot but not the 2nd appellant Yaw Gyamfi. The trial judge in his summing up did not address the jury on these previous inconsistent statements. The 1st appellant submitted that this occasioned a miscarriage of justice since the jurors did not have an informed opinion before arriving 4 at their decision to find him guilty of the offence in the face of the serious conflicts and contradictions in the prosecution’s case. What the respondent stated in its written submissions on these contradictions or inconsistencies was that the evidence on oath of the said witnesses weighed much more than what was contained in their previous statements to the Police, which they volunteered immediately after the incident. I do not share this view. Though there seems to be some differences in opinion as to the premium to be attached to the testimony of such a witness who had volunteered a previous inconsistent statement, the most considered view is that a witness whose evidence on oath is contradictory of a previous statement by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement unless he is able to give reasonable explanation for the conflict. See the case of GYABAAH v. THE REPUBLIC [1984-86] 2 GLR 461, decided by this Court on 13th January 1985 and then R. v. GOLDER  45 Cr App, R5, where it was held that a witness whose statement to the police differs materially from his evidence in court should be regarded as unreliable. Korsah C.J., Van Lare and Akufo-Addo JJ.S.C. in the case of STATE v. OTCHERE and Others  2 GLR 463, shared this same view some twenty or more years previous to the decision of this Court in the Gyabaah case cited supra. Two years later in 1965, the highest court of the land again re-echoed their decision in the Otchere case when in the case of BOUR v. THE STATE  GLR 1, it held that if a witness has previously said or written something contrary to what he testifies at the trial his evidence should not be given much weight. In order to determine whether the explanations all the four eye witnesses gave to explain away the serious conflicts in their evidence on oath and their previous inconsistent statements to the police were reasonable, there is the need to re-visit those earlier statements and juxtapose them with their later statements and testimonies in Court. They all gave the same explanation when confronted with the contradiction. That explanation was that they did not tell the police investigators that it was the 2nd appellant who fired the shot that killed the deceased. According to them, though those statements were their statements, which some signed and others thumb-printed, they never mentioned the 2nd appellant as the one who fired the first shot that killed the deceased but the 1st appellant. They again said the statements were not read out and explained to them before they appended their signatures. Meanwhile, the prosecution/respondent did not object to the tendering in evidence of the said contradictory statements. By this explanation, what the witnesses were trying to suggest was that it were the police investigators who wrote the name of the 2nd appellant instead of the 1st appellant in their statements as the one who fired the ‘killing’ shot. Incidentally, one of the Police Officers who the witnesses seemed to be accusing testified for the prosecution in the Court below as P.W.11. He was Detective Chief Inspector Alhassan Wilson. He denied any wrong-doing in the course of his investigations and insisted that the previous inconsistent statements were volunteered by the witnesses themselves. The prosecution/respondent did not question the substance of the testimony of this witness whom the prosecution called voluntarily. I wish to quote some of the questions and answers during cross-examination of this Police Officer by counsel for the appellants. “Q. Did you do any fishy thing in this case? A. No, my Lord, whatever I did was genuine… 5 Q. Do you as an investigator know as a fact that some of the witnesses in this case wrote as many as three witness statements? A. Yes, my Lord. Two witnesses gave three statements and one gave two. Q. Name those who gave three statements. A. Adwoa Ataa gave three statements; Alex Karikari also gave three statements and Kwabena Agyemang gave two statements that is all. Q. Now officer, can you give the date on which Adwoa Ataa gave her statements in serial order; the 1st, the 2nd and the 3rd? A. Adwoa Ataa gave her 1st statement on the 28th of April 2003. Q. And then the 2nd statement. A. That was also on the 28th day of May 2003. Q. And then the 3rd statement. A. That was written on the 26th day of October 2004… Q. Now, you have called a few witnesses and there are some of these statements in which Yaw Gyamfi is mentioned by some of these witnesses as the person who fired the crucial shot; are you aware of statements you collected where they mentioned Yaw Gyamfi as the person who fired the gun? A. Yes, it is the same two people; Adwoa Ataa and Alex Karikari, who mentioned Yaw Gyamfi as the person who fired the gun; that was their 1st statements. Q. And their 1st statements were collected, I think on the 27th or the 28th? A. It was on the 28th. Q. When the case was very fresh? A. Yes, my Lord.” Here was a prosecution witness (a Detective Chief Inspector) saying that he took the first investigation witness statements of P.W.3 and 4 in which statements they mentioned the 2nd appellant Yaw Gyamfi as the one who fired at and killed the deceased. These witnesses only changed their statements and mentioned the 1st appellant Nana Yaw Nimo Kwakorakwa when they were invited to the office of the Chief State Attorney in Kumasi and directed to give further statements several months after the incident. The Police Investigator was not challenged on his testimony that he wrote down exactly what the two witnesses said when the case was fresh in their minds. In effect, the prosecution/respondent did not challenge the authenticity of those previous statements by objecting to the tendering in evidence of the statements. The only reason or explanation the respondent gave for this contradiction in its written submissions was that the testimonies of the said witnesses on oath outweighed their previous investigation witness statements to the Police. 6 The question is; what prompted these witnesses to change their positions some several months later? The truth is that their explanation that they never said it was the 2nd appellant who fired the killer shot but 1st appellant is not satisfying. The sequence of their narrations in their previous statements does not suggest in any way that the investigator (P.W.11), imported his own words into those statements. The puzzle did not end with these witnesses. Two other witnesses, namely P.W. 2 and C.W.1 also gave earlier statements in which they mentioned the 2nd appellant Yaw Gyamfi as the one who shot and killed the deceased. These earlier statements were not written down by P.W.11 Detective Chief Inspector Alhassan but by another investigator who had proceeded on transfer at the time of the hearing. Some several months later, these two also changed their positions just like P.W.3 and 4 after being invited to the Attorney General’s office in Kumasi, by saying that they did not tell the policeman who wrote down their earlier statements that it was the 2nd appellant who fired the shot that killed the deceased. So in effect, two different police officers who took statements from P.W. 2, 3, 4 and C.W.1 during investigations are being accused of inserting into the statements of the witnesses what the witnesses did not say. Is this accusation not incredible? Why did the trial judge fail to mention this in his summing-up and to draw the jurors’ attention to its implications in law for the jurors to form their own opinion on the inconsistencies? The function of the trial judge after the conclusion of the whole evidence in criminal trials with a jury is set out in section 277 of the Criminal Procedure Act (1960) Act 30. The section reads: - “When in a trial before a jury, the case on both sides is closed, the judge shall, if necessary, sum up the law and evidence in the case.”The Supreme Court in the case of THE STATE v. KWAME AMOH  GLR, Part 11, p.637, opined that notwithstanding the use of the expression ‘if necessary’ in section 277 quoted above, which appears to give the judge a discretion as to whether or not he has to sum up the law and evidence, the expression has a compelling effect with the operative word ‘shall’ preceding ‘if necessary’, so the judge has no discretion to do otherwise but to sum up the law and evidence to the jury. The Court per Crabbe, J.S.C. stated: “The duty of the trial judge to sum up the law and the evidence is not less imperative by reference to the exercise of a discretion and we think that the duty to sum up, especially in a trial for a capital crime, is as obligatory as it would have been if the words ‘if necessary’ had been omitted from the section”. The trial judge, in the instant appeal, though gave an elaborate summing-up covering not less than twenty-five (25) pages in which he explained the ingredients of the offence of murder to the jury, he nevertheless failed to adequately advance the case put up by the 1st appellant in defence, particularly with regard to the previous inconsistent statements made by all the most vital prosecution witnesses, including the witness the trial judge suo motu called, in which statements they clearly indicated that it was the 2nd appellant Yaw Gyamfi but not the 1st appellant Nana Yaw Nimo who shot at and killed the deceased Opoku Appiah. Under section 277 of Act 30, the trial judge is under a duty to sum up the evidence in the case, that is to say; the evidence adduced both by the prosecution and the defence. After directing the jury on that part of the evidence for the prosecution that incriminated the 1st appellant, the learned trial judge failed to fully digest the case for the defence. 7 As Crabbe, J.S.C. rightly stated in the joint judgment of the Supreme Court in the Amoh case cited supra, per the dictum of Lord Goddard C.J. in R v. CLEWER  37 Cr. App. R. 37; “the first and most important thing for the administration of the criminal law is that it should appear that the prisoner is having a fair trial and that he should not be left with any sense of injustice on the ground that his case has not been fairly put before the jury”. It is also essential that in analyzing the case for the prosecution, the judge should point out evidence the prosecution has led, which favours the defence. It is not a proper direction in the case for the prosecution when the judge deliberately leaves out or ignores its weaknesses as it did in this case. Where even the judge has the tendency to lean or show some inclinations, the law says it is better to lean on the accused or the defence than on the prosecution. For instance, in his testimony for and on behalf of the prosecution, Detective Chief Inspector Alhassan Wilson who testified as P.W.11 stated positively that it were the prosecution witnesses themselves (i.e. P.W. 3 and 4) who stated in their first investigation witness statements to the police when the incident was fresh in their minds that it was the 2nd appellant Yaw Gyamfi who shot and killed the deceased Kwaku Poku Appiah but not the 1st appellant. He denied having doctored those statements as alleged by the said witnesses. The prosecution did not challenge him, neither was he treated as a hostile witness. Despite this glaring and grave disparity, which supported the defence of the 1st appellant, the trial judge chose to ignore this aspect of the prosecution’s case and failed to address the jury on it. This omission by the trial judge to address the jury on these serious lapses in the prosecution’s case amounts to a misdirection in law, which led the jury to the wrong conclusion that it came to in convicting the 1st appellant on the charge of murder. I deem that as a grave miscarriage of justice for which the decision of the court below must not be made to stand. Apart from these inconsistencies, which throws the case of the prosecution into serious doubts as regards the role of the 1st appellant in the shooting, there were a lot of serious conflicts and contradictions in the testimonies of these so-called eye witnesses; i.e. P.W.2, 3, 4 and C.W.1, which the trial judge in his summing-up, should have addressed and invited the jurors as judges of fact to consider but which he again failed to do. The said contradictions and conflicts could not be described as cosmetic but very material to the issues at stake. In the Gyabaah case cited supra, this Court held at holding (1) that “in order to lead the jury to a critical approach on relevant issues, a judge’s summing-up must not only direct the jury to disregard immaterial conflicts or discrepancies in the evidence but must also invite them to pay due regard to material conflicts and discrepancies in their assessment of the evidence”. In the instant case, which is now on appeal before us, the learned trial judge did not even mention the serious material conflicts and contradictions in the eye witness accounts of the prosecution witnesses in his summing-up, not to mention an invitation to the jury to address its mind on those conflicts and contradictions as judges of facts. Rather, the trial judge assumed the role of the judge of facts and chose that part of the prosecution’s evidence that he believed and addressed the jury on that only while ignoring the most vital weaknesses in the prosecution’s case. The minds of the jurors were therefore shut from the previous inconsistent statements of the eye witnesses and the serious 8 material conflicts and contradictions in the various accounts of particularly P.W.2, 3, 4, 6 and then CW.1 that they gave in the court below. The question that keeps on agitating my mind is; why did the court below, on its own, decide to call C.W.1 who was mentioned as an eye witness and who had also volunteered a statement to the police but who the prosecution did not call to testify? What informed the mind of the trial judge to suo motu subpoena such a witness to testify after the prosecution had announced the closure of its case before inviting the appellants to open their defence, if the trial court was convinced that the prosecution had made a case that necessitated the invitation of the appellants, particularly the 1 st appellant, into the witness box? Was it not because of the doubts that the trial court harboured in the prosecution’s case as presented, particularly with regard to the eye witness accounts of P.W.2, 3, 4 and 6? Whilst I do not deem it necessary to refer to the individual conflicting accounts of P.W.2, 3, 4 and C.W.1 on the alleged role played by the 1st appellant in the shooting as contained in their testimonies in the court below, which I have already commented on, I consider it very essential to bring into focus the testimony of P.W.6 Kwabena Owusu Mensah ‘alias’ Kwabena Mensah vis-à-vis his previous inconsistent statements to expose the treachery of the said prosecution witnesses in their ‘plot’ to rope in the 1st appellant as the killer of Kwaku Poku Appiah. P.W.6 is the son of the queen mother (P.W.1) just like the late Kwaku Poku Appiah and one of the two victims who were allegedly shot at by the 2nd appellant Yaw Gyamfi. He volunteered two separate statements to the police on 27th April 2003, the very day the shooting occurred. One was to the Buffalo Unit of the Police Service in Kumasi and the other was to the Regional C.I.D. also in Kumasi. He wrote down the two statements himself and he did not deny this fact. He said he was the one who was walking with the deceased at the time he was shot and killed. In one of the statements which appear at pages 249 to 251 of the record, he indicated that after the 1st appellant had shot at his brother Kwaku Poku Appiah from the upstairs of his house, the 2nd appellant also shot at him (i.e. Kwaku Poku Appiah) the second time on the chest before the two of them started to run away from the scene. It was when they were escaping from the scene that he heard the third shot and felt a sharp pain at the back of his head. It was on that occasion that his late brother fell on the ground. As for the one who fired the third shot that hit his head, he could not tell. So from this witness, the 2nd appellant Yaw Gyamfi also shot at the deceased Kwaku Poku Appiah on his chest. Meanwhile, when he testified in Court, he severed that part of his earlier statement that indicated that the 2nd appellant Yaw Gyamfi also shot at the deceased on his chest from his evidence and mentioned only the 1st appellant as the one who shot at and killed the deceased Kwaku Poku Appiah as the other witness already referred to above also did. Unfortunately for this witness, he wrote down his own statements and signed them. He could not therefore deny this earlier inconsistent statement as the others did by blaming the poor policemen for allegedly inserting something they did not say. In the second statement, which he also wrote down himself that same day, he said something quite different. What he said was that when he and the deceased Kwaku Poku Appiah decided to go to the rescue of their uncle Kwame Boakye alias Paa Bobo who was then being beaten by the nephews of the 1st appellant, he saw the two appellants all holding guns and walking towards them. The 1 st 9 appellant then aimed at his brother Appiah and fired at him. When he realized that the appellants wanted to kill them, they took to their heels. From this second statement, the impression gathered is that 1st appellant was not standing upstairs on his storey building as the other witnesses indicated since according to P.W.6, the 1st appellant and the 2nd appellant were walking or advancing towards them holding their guns before the 1st appellant aimed at and shot the deceased. So the question is; if the 2nd appellant Yaw Gyamfi also shot at the deceased on his chest after the first shot by the 1st appellant before the deceased started running, as was alleged by P.W. 6 who is also the victim in Count 3 in one of his previous statements, which he wrote and signed himself, then who killed the deceased? The trial Court did not address this issue at all. In fact, the trial judge completely failed to draw the jury’s attention to it as he did in the case of the inconsistent and conflicting accounts of P.W.2, 3, 4 and that of C.W.1. Again, apart from this contradiction, while from the accounts of the other witnesses, it was the 1st appellant who was wielding a pump action gun; P.W.6 said in his evidence in-chief that it was the 2nd appellant who had the pump-action gun. After the prosecution had closed its case without calling Kwame Boakye alias Paa Bobo who had also volunteered a statement to the police, which he signed himself, indicating that it was the 2nd appellant Yaw Gyamfi who fired at and killed the deceased Appiah as all the others had previously done, the trial court, suo motu, subpoenaed this Paa Bobo man to testify as C.W.1. He also came to the Court below, and just like the others before him, changed his previous stand and this time contended that it was the 1ST appellant Nana Yaw Nimo Kwakorakwa who fired and killed the deceased. This witness, like the others, could not challenge the contents of his previous statement which he signed but not thumb printed. This was the crucial part of his statement volunteered on the day of the incident; i.e. 27th April 2003, which he could not seriously deny: “I saw about seven supporters of Kwabena Nimo attacking my younger brother Akwasi Okyere and some boys who were playing football were trying to rescue him. I ran to the scene to rescue my brother but the assailants left my brother and immediately attacked me. They put me on the ground and were beating me. In the course, I saw Opoku Appiah in his car with Kwabena Mensah arrived at the scene. The two are on the queen mother’s side. They came there to rescue me. The two were about to push my assailants away but one of them by name Yaw Gyamfi ran into Kwabena Nimoh’s house and came out with a pump-action gun and immediately started firing. He shot at Opoku Appiah at close range and he fell. He continued the firing and some of the pellets hit the back of Madam Amoatemaa.” Like P.W.6 Kwabena Owusu Mensah, C.W.1 said in his statement to the police that it was the 2nd appellant Yaw Gyamfi who was wielding the pump-action gun from which the killer shot that hit the deceased K. Poku Appiah was fired. However, when he appeared before the trial court on the promptings of the Court below, he changed positions and this time mentioned the 1st appellant Nana Yaw Nimo Kwakorakwa as the one who fired at Poku Appiah with a pump-action gun. This did not stir the trial judge in the least to warn the jurors of the credibility of all the witnesses with regard to the allegations made against the 1st appellant. 10 The question is; if the prosecution had succeeded in establishing a prima facie case against the 1st appellant at the time it announced the closure of its case, then why did the trial court, as a neutral referee, suo motu invite yet another eye witness to testify on the events of the day, without any promptings from any quarter, before calling on the appellants to open their defence? That act by itself, was an indication that the trial judge was not convinced by the prosecution’s case at the time it announced the closure of its case. And if the judge was not convinced as at the close of the prosecution’s case, it was not for him to add up to it before calling on the defence to open its case. In my view, there was a clear miscarriage of justice culminating in the conviction of the 1 st appellant on the charges of conspiracy and murder, which this Court is obliged under the law to over-turn. I do not therefore hesitate in so doing. Conspiracy On the conspiracy charge, since it takes two or more people to commit the offence of conspiracy, and this Court has concluded that the evidence on record did not support the charge of conspiracy and murder against the 1st appellant, it follows logically that the conspiracy charge as leveled against the 2nd appellant also fails since there was no evidence that the two appellants either agreed or acted together to commit the crime of murder as the particulars on the Bill of Indictment indicated. The charge of conspiracy to commit crime to wit; murder levelled against the two appellants under count one (1) cannot therefore hold likewise the substantive charge of murder against the 1st appellant under count two (2). The convictions of the 1st and 2nd appellants under count 1 and then the 1st appellant alone under count 2 are hereby quashed. The sentences are accordingly reversed. Attempted Murder With regard to the charges of attempted murder under counts 3 and 4 against the 2 nd appellant, the submission of counsel was that though the 2nd appellant put up a defence of ‘self defence’, the trial court failed to address the jurors on that leading to the conviction of the 2 nd appellant on the said counts. According to defence counsel, the 2nd appellant went in for a gun to dispel a mob that was then throwing stones into the house of his uncle the 1st appellant at a time they were celebrating Akwasidae and in so doing, the gun went off and killed the deceased. Counsel again contended that the sentence passed on the 2nd appellant was too harsh as the trial court failed to take into consideration the fact that the 2nd appellant had been in custody for three (3) years prior to his conviction and sentence. With regard to the first submission, I do not think that counsel for the 2nd appellant was fair to the trial court. The fact is that in his entire defence, the 2nd appellant never raised the question of ‘selfdefence’ since he was not charged with the substantive offence of murder; nevertheless, the trial court embarked on a brief exercise in explaining to the jury what ‘self-defence’ meant at pages 210 and 211 of the record. I do not think that was even necessary because the 2nd appellant completely denied the charges under counts 3 and 4 for which he was charged. In his testimony in the court below, the 2nd appellant denied shooting at anybody on the day of the incident. He relied on his two previous contradictory statements that he had volunteered to the police on 27th April 2003 and 3rd May 2003 respectively, which appear at pages 228 and 232 of the record. In the first statement, he completely denied firing or handling any gun on the day in question while in his second statement that he volunteered on 3rd May 2003, he admitted picking a gun to 11 frighten a mob which was attacking the 1st appellant’s house but which gun accidentally went off and killed the deceased Kwaku Poku Appiah when the deceased struggled with him over the gun. That defence was one of ‘accident’ but not ‘self-defence’ and even it did not relate to the victims mentioned under counts 3 and 4 for which he was charged but to the deceased Kwaku Poku Appiah. As for the charges of attempting to murder the victims under counts 3 and 4, his testimony was a complete denial. The question however is, why did the 2nd appellant rush into his house for a gun when the only objects the alleged attackers were using were stones, which they were said to be throwing into the house? The fact that the 2nd appellant gave two contradictory statements to the police on the events that occurred on the day of the incident is a clear manifestation that he was being economical with the truth. From the testimonies of the prosecution witnesses, together with the previous statements they volunteered to the police immediately after the incident, there is overwhelming evidence that it was the 2nd appellant who fired the shot that injured Kwabena Owusu Mensah the victim mentioned under Count 3. While the 2nd appellant stated emphatically in his first statement that he had never handled a gun before and denied wielding any gun on the day in question, he admitted in his second statement that he indeed went for a gun from the room of one Kennedy with the sole aim of scaring away the deceased and the others who had besieged their house. He did not deny being the author of those two statements. In fact, he relied on the said statements in his defence. As the trial judge rightly indicated in his summing-up to the jury, quoting section 11 (1) of the Criminal Offences Act (1960) Act 29 on Intent; “if a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event within the meaning of the Act, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event”. So even if the intention of the 2nd appellant was to shoot to dispel the alleged mob but never aimed at any particular person or did not intend to kill any particular person as he seemed to be alleging and in the circumstances someone was hit by the bullets, he is deemed to have intended the consequences of his act, knowing very well that a gun is a lethal weapon that could cause the death of anyone who falls victim to its bullets. I do not think the jurors faulted in finding the 2nd appellant guilty on the 3rd Count of attempted murder. The 2nd appellant’s appeal in respect of Count 3 must therefore fail. However, on Count 4, I admit that there was scanty evidence or to be precise, no evidence of substance to connect the 2nd appellant to the bullet that hit Adwoa Boatemaa who was the victim in respect of that count. The evidence led by the prosecution was not clear that it was the shot from the 2nd appellant’s gun that hit her. In his summing-up, the trial judge said the testimonies of P.W.3, 4 and 6 indicated that it was the 2nd appellant who shot at Adwoa Boatemaa. Meanwhile the testimonies of these witnesses at pages 85, 90 and 103 respectively of the record were not emphatic about that. According to P.W.4, the 2nd appellant fired the second shot while a third shot was fired by a friend of the 2nd appellant whose name he did not mention. As to whether or not the second shot that hit Kwabena Owusu Mensah was the same shot that hit Adwoa Boatemaa or that it was the third shot that hit Adwoa Boatemaa, was not clear from the evidence on record. P.W.6 himself never said it was the 2nd appellant who either shot at him or shot at Adwoa Boatemaa. From his testimony, he did not even know the person who fired the shot that hit the back of his head. It was P.W.3 who was said to be a juvenile of about fourteen (14) years old who said it was the second shot fired by the 2nd appellant that injured both P.W.6 and Adwoa Boatemaa. The testimony of this 12 witness was however, so full of contradictions to the extend that it could not be married to or reconciled with the testimonies of the other so-called eye witnesses. Again, Adwoa Boatemaa herself did not testify in the court below to tell the circumstances under which she received her injuries. No explanation was given for her failure to testify. From these accounts therefore, it would be unjust to attribute the injuries sustained by Adwoa Boatemaa who was an innocent by-passer to the gun that was fired by the 2nd appellant. In my candid opinion therefore, the charge of attempted murder of Adwoa Boatemaa leveled against the 2nd appellant under count 4 must fail since the prosecution did not lead satisfactory evidence to support it. I will therefore allow the appeal by the 2nd appellant in respect of his conviction under that Count. On the question of the sentence imposed on the 2nd appellant, the fact that the trial court did not mention that it took into consideration the three years that the 2nd appellant had been in custody before passing the sentence of 25 years I.H.L does not mean that the judge was oblivious of that provision of the law. Section 48 of the Criminal Offences Act, (1960) Act 29 makes the offence of attempted murder a first degree felony, the maximum sentence of which is Life Imprisonment as provided under section 296 (1) of Act 30 as amended by section 5 of Act 261. However, since the appeal of the 2nd appellant under the 4th Count has been allowed just like the 1st Count leaving only the 3rd Count, I think the sentence imposed by the court below on the 2nd appellant, though appropriate under the law, appears harsh taking into consideration the circumstances leading to the unfortunate incident on the day in question and something has to be done about it. YAW APPAU (JUSTICE OF APPEAL) S. E.