STATE v. ATIA TONGO

JUDGMENT OF AZU CRABBE J.A.

Azu Crabbe J.A. delivered the reasons for the opinion of the court. On 31 October 1966, this court gave a negative answer to the question of law reserved for the opinion of this court by the learned judge of the High Court, Accra, and we now give our reasons.

The case stated by the learned judge under section 338 of the Criminal Procedure Code, 1960,1 is as follows:

"The facts are briefly that on 7 June 1964 at about 7 p.m. one Dolakwei Losso now deceased was in the palm-wine bar of one Afua Mansah drinking when he went out to urinate. While he was urinating he was slashed from behind on the neck by an unknown person. He was rushed to the police station and later to hospital. That same evening one Badu and his wife Antwiwaa alleged that the accused came to their house and slashed both of them.

After Losso had been taken to hospital the accused went to the police station and asked to be handcuffed. He was handcuffed and he then confessed that it was he who slashed Losso with a cutlass and later he went and showed the police where the cutlass was.

He was originally charged with the use of an offensive weapon on Losso, Badu and Antwiwaa on 10 June 1964.

Losso died on 16 June 1964 and the charge was changed to one of the murder of Losso.

The accused was cautioned and he offered no statement, when charged with murder.

At the hearing the prosecution sought to tender the statement which was objected to on the ground that his failure to give any statement when charged with murder amounted to his not having given any caution statement at all on that charge.

State replied that once the statement was voluntary it is admissible.

[p.767]

I upheld it on the grounds that:

(1) The charge of the use of offensive weapon is a different and lesser offence and therefore a statement given on caution for that offence cannot be tendered when charged with a more serious crime like murder;

(2) the failure of the accused to give any statement to the police when charged with murder meant he did not want to give any and the caution words indicate that he was not forced to give any;

(3) he is deemed not to have made a statement at all for if he had previously been charged with murder he would not have, by inference, made any statement.

For these reasons I rejected the statement."

The question of law on which the learned judge sought our opinion was expressed in these terms:

"Did I, in ruling that the caution statement made by the accused f