4TH AUGUST, 1959.

F.S.C. 69/1959

3PLR/1959/76 (SC)





MYLES JOHN ABBOTT, AG. F.C.J. (Presided and Read the Judgment of the Court)





Applicant absent and unrepresented.

  1. M. BELLO, Crown Counsel -for the Respondent.



CRIMINAL LAW AND PROCEDURE:- Murder- Capital offences – Duty of prosecution to prove same – Medical evidence – Fai­lure of prosecution to call medical officers at trial – whether fatal – Relevant considerations

CRIMINAL LAW AND PROCEDURE: – Calling witnesses – Discretion of prosecution counsel thereto

CHILDREN AND WOMEN’S LAW: –  Security of childrenBrutal murder of young girl accused of witchcraft by allegedly causing her mother’s death via snake bite

ETHICS – PROSECUTION/COURT: – Refusal to call medical examiner to testify – Pronouncement of court relating to the probative value of medical evidence not properly before it – Attitude of appellate court thereto

HEALTH LAW: Access to primary healthcare – Snake-bite leading to death of mother of little girl

RELIGION AND LAW: – African traditional religion – Belief in witchcraft – That child can orchestrate a snake bite on mother causing death – Extra-judicial lynching of child as punishment thereof – Implication for law enforcement

PRACTICE AND PROCEDURE – COURT: – Evidence – Depositions at preliminary inves­tigation not in evidence – Trial Judge relying on evidence in deposition not before him – Propriety thereof




ABBOTT, AG. F.C.J. (Delivering the Judgment of the Court):

We now give our reasons for having on the 27th July, 1959, refused leave to appeal to this applicant and there is very little which we need say about it. It was a particu­larly brutal murder of a young girl who was supposed to have been a witch and to have been responsible for a snake biting her mother, as a result of which the mother died.

The accused’s statement to the Police is a clear confession of his com­plicity in the murder of the girl and indeed, in his notice of application for leave to appeal he repeats his confession, his complaint now being that whereas he and two others took part in the killing only he was convicted at the trial. There is no doubt that the learned Judge was fully justified in con­victing the applicant of murder and we therefore refused leave to appeal. The applicant gave no evidence and made no statement at his trial.

We cannot, however, leave this case without drawing attention to some aspects of the trial which in our view were unsatisfactory. At the close of the evidence of the first witness for the prosecution Crown Counsel announced that he did not wish to call the Medical Officer who performed the post mor­tem examination on the body of the deceased because, according to Coun­sel, the evidence would be of no assistance to the Court. The Doctor was, however, made available for cross-examination, which was declined on be­half of each of the accused persons then before the Court. The learned trial Judge accepted Crown Counsel’s statement-which we appreciate was made entirely bona fide – but we think that the statement should not have been ac­cepted like that. When the learned trial Judge gave judgment he said “A post mortem examination was carried out by a Doctor but the results of this examination could not assist the Court.” We are at a loss to know how the learned trial Judge arrived at this conclusion. If he merely relied upon Crown Counsel’s statement that was, in our view and in respect to the learned trial Judge, insufficient to entitle him to come to that conclusion in his judgment. If, on the other hand, as seems more likely, the learned trial Judge looked at the Doctor’s deposition for the purpose of coming to that conclusion, he was not entitled to do so because the depositions in the case were not in evidence before him. While not wishing in any way to fetter the discretion of prosecution counsel in his decision whether or not to call any particular witness, we consider that in a capital case it is highly desirable that if medical evidence is available it should in every case be called, (or the med­ical deposition put in and admitted as part of the evidence pursuant to sec­tion 34 of the Evidence Ordinance or section 329 of the Criminal Procedure Ordinance) because although the doctor may not have been able to deter­mine the cause of death (owing to decomposition of the body or some such factor) it is nevertheless important that such evidence should be given.

A more serious matter is the quotation by the learned trial Judge, in the course of dealing with the case of the applicant, of what the applicant said at the preliminary investigation before the Magistrate. These words of the applicant were not in evidence before Reed, J. because the depositions were not in evidence and he was not entitled to quote in his judgment what the applicant had said to the learned Magistrate. It so happened that what he ap­parently did say to the Magistrate amounted to a confession but had it not been for the other confessions to which we have already referred, we should feel constrained to hold that the learned trial Judge’s quotation must have been taken into account by him in coming to his conclusion that the applicant was guilty and it would then have been necessarily obvious to allow the ap­peal. It cannot be too clearly emphasized that depositions taken at a prelimi­nary investigation are not evidence before the trial Judge at Assizes unless they are specifically put in the proper way.


Leave to appeal refused.

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