MOSHIE v. THE REPUBLIC

JUDGMENT OF AZU CRABBE C.J.

Azu Crabbe C. J. delivered the judgment of the court. The appellant was convicted on 24 June 1969, at the High Court (Brong-Ahafo Criminal Session held at Sunyani) before Baidoo J. and a jury for the murder of one Abenaa Konadu on 3 November 1967, at Bowohomoden farm cottage, near Senya village, in the Brong-Ahafo Region, and was sentenced to death. The appellant's appeal against his conviction has now, after the lapse of almost seven years, come before this court. In view of the conclusion it has come to in this appeal, this court cannot but deplore the excessive delay in listing this appeal for hearing. It is a classic illustration of the oft-quoted aphorism: "justice delayed is justice denied."

In this appeal, counsel for the appellant addressed the court on two grounds of appeal, namely:

(a) the conviction was unreasonable having regard to the evidence.

(b) the judge erred in law by failing in his statutory duty under section 271 of Act 30 to consider whether there was any evidence to be left with the jury and if not to withdraw the case from the jury and direct them to enter a verdict of acquittal.

[p.290]

Before dealing with the merit of the arguments of counsel in this appeal, it would be convenient to deal with two important points of procedure which attracted the attention of the court. First, it appears on the record that at the close of the case for the prosecution the learned trial judge made the following notes:

"By court: Mr. Takyi states he has no submission to make at this stage and that he wants the accused to give evidence on oath.

Ruling: In the absence of any submission of no case, I call on the accused to enter into his defence."

With very great respect, this court is of the opinion that the reason given by the learned judge for calling upon the appellant to give evidence in his defence was untenable, and it amounted to an abdication of his function under section 271 of the Criminal Procedure Code, 1960 (Act 30).

The functions of a trial judge at the conclusion of the prosecution's case are stated in section 271 of the Criminal Procedure Code, 1960 (Act 30), as follows:

"The Judge may consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the Judge is of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted on the indictment upon which he is being tried, the Judge shall