ANNIN v.

THE REPUBLIC
[1972] 1 GLR 354

Division: IN THE COURT OF APPEAL

Date: 21 DECEMBER 1971
Before: AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.

Criminal law and procedure—Witness—Failure to call—Failure by prosecution to call a witness who

facilitated commission of crime—Whether conviction vitiated—Whether prosecution has general
discretion in the calling of witnesses or discretion limited to not calling untruthful witnesses.

HEADNOTES
At the trial of the appellant for rape, the prosecution failed to call as a witness a woman who had
facilitated the commission of the crime and whose name was endorsed on the information. The appellant
appealed on the main ground that failure to call a material witness vitiated his conviction.
Held, dismissing the appeal, per Sowah and Lassey JJ.A.: a prosecutor is relieved from calling a material
witness if he has a reasonable belief that the witness will not speak the truth. Yeboah v. R. (1954) 14
W.A.C.A. 484 and Twumasi-Ankrah v. R. (1955) 14 W.A.C.A. 673 followed.
Per Azu Crabbe J.S. C. The prosecution has a general discretion in the calling of witnesses. If the
prosecution appear to be exercising that discretion improperly the trial judge can invite the prosecution to
call a particular witness and if they refuse, the trial judge has a complete discretion to call him himself. R.
v. Chigeri (1937) 3 W.A.C.A. 201; R. v. Kelfalla (1939) 5 W.A.C.A. 157; R. v. Harris [1927] 2 K.B. 587,
C.A. and Yeboah v. R. (supra) criticised. Seneviratne v. R. [1936] 3 All E.R. 36, P.C.; Adel Muhammed
El Dabbah v. Attorney-General for Palestine [1944] A.C. 156, P.C. and R. v. Oliva (1965) 49 Cr.App.R.
298, C.C.A. followed.

[p.355] of [1972] 1 GLR 354

CASES REFERRED TO
(1) Yeboah v. R . (1954) 14 W.A.C.A. 484.
(2) Twumasi-Ankrah v. R. (1955) 14 W.A.C.A. 673.
(3) R. v. McGrath [1949] 2 All E.R. 495, C.C.A.
(4) State v. Lawman [1961] G.L.R. (Pt. II) 698, S.C.
(5) R. v. Chigeri (1937) 3 W. A.C.A. 201.
(6) R. v. Kelfalla (1939) 5 W.A. C.A. 157.
(7) R. v. Harris (Dora) [1927] 2 K.B. 587, C.C.A.
(8) R. v. Woodhead (1847) 2 Car. & Kir. 520.
(9) R. v. Edwards (1848) 3 Cox C.C. 82.
(10) R. v. Cassidy (1858) 1 F. & F. 79.
(11) Seneviratne v. R. [1936] 3 All E.R. 36, P.C.
(12) R. v. Adebanjo (1935) 2 W.A.C.A. 315.
(13) Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156; [1944] 2 All E.R.
139; 113 L.J.P.C. 65; 171 L.T. 266; 60 T.L.R. 456, P.C.
(14) R. v. Mansu (1947) 12 W.A.C.A. 113.
(15) R. v. Oliva [1965] 1 W.L.R. 1028; 129 J.P. 500; 109 S.J. 453; [1965] 3 All E.R.116; 49 Cr.App.R.
298, C.C.A.
(16) R. v. Collier [1958] Crim. L.R. 544, C.C.A.
(17) R. v. Simmonds (1823) 1 C. & P. 84, N.P.

NATURE OF PROCEEDINGS
APPEAL against a conviction for rape before Koi Larbi J.S.C. sitting as an additional justice of the High
Court. The facts are sufficiently set out in the judgments of Sowah J.A. and Azu Crabbe J.S.C.

COUNSEL
Cudjoe for the appellant.
V. E. A. Kisseih, Principal State Attorney, for the respondent.

JUDGMENT OF SOWAH J.A.

After hearing counsel for the appellant, a policeman, the appeal was dismissed without calling for the
Republic as there was not much merit in the appeal; further the only ground of law argued has been the
subject-matter of constant pronouncements in these courts and, but for respect to counsel no useful
purpose would be served by reiterating those principles.
Shortly, the facts are that the appellant had been convicted of the carnal knowledge without her consent of
a young school girl, Miss Mary Acquah. The rape was committed in the room of the appellant in the
Police Depot, Accra. There was overwhelming evidence that Mary Acquah was on her way home from
school with her friends when she was invited by Miss Elizabeth Quaye, a police woman. The children
described her as a very stout police woman. She then took the complainant to her room; subsequently she
asked the complainant to accompany her to a room which turned out to be the appellant’s; after discussion
between the two police officers, that is the appellant and Miss Quaye, the latter left, leaving the
complainant and the appellant. There followed a short struggle in the room, but the appellant
overpowered and debauched the complainant.

[p.356] of [1972] 1 GLR 354

Thereafter she left the room, but it appears in her desperation she left behind her school books. She joined
her friend who were at the time waiting for her; while narrating her ordeal to them, the police woman,
Miss Quaye brought her books to her; she must have collected the books from the appellant’s room.
Quite apart of the school children’s evidence on this aspect of the matter, a police sergeant (Albert
Agyemang Ayerter the fourth prosecution witness) observed the movements of Miss Quaye after the girl
had left the room. This sergeant saw the girl crying and questioned her.
It was contended as a matter of law that the police woman was a material witness who ought to have been
called by the prosecution and failure to do so vitiated the conviction. The point is too well settled to admit
of any argument. The evidence manifested that Police Constable Elizabeth Quaye facilitated the
commission of a crime to wit, rape; it was in response to her invitation that the young girl entered the
room of the appellant for sexual intercourse to proceed. Later she collected the school books of the girl
and handed them over to her.
On these facts she was guilty of an offence and were the prosecution disposed to indict her, she would
have been properly convicted of it. Such a person if placed in the witness-box might either incriminate
herself or commit deliberate prejury. In either case she would be a wholly unreliable witness. The
prosecution was therefore right in exercising its discretion in not calling upon her to give evidence.
In Yeboah v. R. (1954) 14 W.A.C.A. 484 at p. 486 Coussey J.A. pronounced the law thus:
“It is also said that some witnesses at the preliminary investigation, whose names appear as witnesses for the
prosecution endorsed on the information and whose evidence conflicted with other prosecution witnesses,
were not called by the prosecution at the trial or offered for cross-examination by the defence.
As to the first point, it is undoubtedly the duty of a prosecutor, as far as is reasonable and possible, to call all
witnesses who are present at the commission of a crime and who can give material information, the only
legitimate object being not to secure a conviction, but to see to it that justice be done. But a prosecutor is
relieved from calling such witness if he has a reasonable belief that the witness would not speak the truth and
that his statement is untrue.”

Yeboah’s case was followed by Twumasi-Ankrah v. R. (1955) 14 W.A.C.A. 673 where at p. 675 Coussey
J.A. again stated:
“The first submission on behalf of the appellant was that the trial Judge erred in not directing the prosecution
to call two eye-witnesses in the room who were thereupon called by the defence. These men were both
adherents of the appellant. It was proved that one of them, Asamoah, shouted out ‘kill him’ to encourage the
appellant as he was about to attack the deceased. This Court held in Regina v. Kwabena

[p.357] of [1972] 1 GLR 354

Yeboah [supra] that a prosecutor is relieved from calling a witness at the commission of a crime if he has a
reasonable belief that the witness will not speak the truth.
... As was stated by Eric, J. in Regina v. Edwards and Others (3 Cox C.C. 82 at p. 83), ‘Counsel for the
prosecution is a minister of public justice and is called upon to lay such facts before the jury as he thinks the
interests of justice demand’.”

I do not think these pronouncements fetter the discretion of any prosecutor in the manner in which he
shall conduct his case and as to the persons he shall call to give evidence.
Speaking for myself I think, with the greatest respect, these pronouncements are correct statements of the
law and should be followed.

JUDGMENT OF LASSEY J.A.

I am also of the view that this appeal must be dismissed for the reason given.
I only wish to make a short observation on the question whether the prosecution was bound in this case to
have called the prosecution witness Grace Wiredu whose name was mentioned in the proceedings but
who was not available when the trial began. As my brother Sowah has pointed out, the legal position in
this country has been made clear by our own case law, and I do not think any useful purpose is served
further by an exhaustive review of the English decisions on the same point.

JUDGMENT OF AZU CRABBE J.S.C.

The appellant was convicted at the Criminal Session of the High Court, Accra, before Koi Larbi J.S.C.
(sitting as an additional judge of the High Court) for rape, contrary to section 97 of the Criminal Code,
1960 (Act 29). He was sentenced to nine months’ imprisonment with hard labour and now applies for
leave to appeal against the conviction. The court, having treated the application as the appeal and heard
counsel for the appellant, dismissed the appeal, without calling upon counsel for the Republic, and
decided to give reasons for their decision later.
I am giving separate reasons, not because I disagree with my two brethren on the result of the appeal, but
because unlike them, I do not think that the two previous cases on the calling of witnesses by the
prosecution cited to the court contain an accurate statement of the practice. Again, unlike my two
brethren, I do not think that cases decided subsequent to the two cases cited adequately recognise the
discretion which the prosecutor has in the calling of witnesses. In my view, this appeal provides the
opportunity for the court to restate the correct practice as clearly as it can be so as to reflect the modern
trend in this aspect of the criminal law. And though I am unable to carry the other members of the court
with me, I am undaunted in the task I am about to undertake.
The facts upon which the prosecution relied are quite simple and may be shortly stated, On 18 March
1969 the prosecutrix, Mary Acquah, who was a pupil at the Police Depot Middle School, was walking
home from school when she was called by a certain female police officer, referred to

[p.358] of [1972] 1 GLR 354

in the evidence as Miss Elizabeth Quaye. The prosecutrix did not respond. On 21 March 1969 as the
prosecutrix was walking from school with three friends, she again saw Miss Elizabeth Quaye who called
the prosecutrix into her room. It was alleged that the appellant also entered the room, and, after
whispering to Miss Elizabeth Quaye, he left. Miss Elizabeth Quaye then took the prosecutrix into the
appellant’s room and left the appellant and the prosecutrix alone in that room. The appellant shut his door
and had sexual intercourse with the prosecutrix against her will. The prosecutrix struggled with the
appellant, and in the course of this struggle, she sustained scratches on her thighs and neck. After the
intercourse, she left the room and immediately complained to her friends, who were waiting for her
outside. Just at this time, a police sergeant came to the spot and the prosecutrix told him what the
appellant had done to her. The prosecutrix subsequently reported the matter to her father, who took her to
the Korle Bu Hospital; but the medical officer at the hospital said she was too busy to attend to the
prosecutrix. As a result, the prosecutrix was sent to the Tesano Clinic, which was a private clinic run by
Dr. E. R. Asiedu. At the trial Dr. Asiedu testified as follows:
“On the 21st day of March, 1969, I examined a girl by name Mary Acquah, it was about 8.45 p.m. My
findings — she was a well developed girl between 15 and 18 years of age. She looked intelligent — when I
examined her I found a few scratches on the left arm and both thighs — these were consistent with fingernail
injuries. I further examined the genital area — that is, the area of the vagina-the hymen was absent — there
was no sign of recent tear or haemorrhage. There was some milk-like fluid in the vagina — this could have
been produced by the girl or from outside — conducted microscopic examination of the fluid and I found
dead sperms — that is male germ — which could only be produced by males. The time was 8.45 p.m. when I
examined the girl and it could have been produced that day.”

All the prosecution witnesses who saw the prosecutrix soon after her ravishment gave evidence of her
distressed state. The police sergeant to whom the prosecutrix made the complaint, told the court that,
standing on the verandah in front of his room, he could clearly see the course of events from the moment
the prosecutrix left the appellant’s room. He substantially confirmed the prosecutrix’s story relating to
incidents after the alleged intercourse.
The defence was a complete denial. The appellant said that the prosecutrix was never in his room and
denied having had any sexual intercourse with her. He, however, admitted that the prosecutrix borrowed a
hymn book from him, and that when she brought it back to him she did not enter his room. He met her on
the verandah where she handed the hymn book to him. He called a witness, his friend, Constable Timothy
Kingsley Manford, who testified that he was with the appellant practising music at the material time, and
that during that period the prosecutrix never entered the room of the accused. After a thorough and careful
summing-up by the

[p.359] of [1972] 1 GLR 354

learned trial judge the jury retired, and within ten minutes, they returned a unanimous verdict of guilty of
rape.
In the appellant’s notice of application for leave to appeal against conviction the following grounds are
alleged:
“(i) The verdict was unreasonable and cannot be supported having regard to the conflicting evidence and
statements on the record.
(ii) The judge misdirected the jury in point of law since he did not put the conflicts in the prosecution’s
case to the jury.
(iii) The judge did not put or adequately put the defence of the accused person to the jury during his
summing-up.
(iv) The prosecution did not call all the witnesses whose names appeared on the indictment, thus
preventing the accused person from having the benefit of cross-examining them to establish his
innocence and thus leading to a miscarriage of justice.”

I can deal briefly with grounds (i), (ii) and (iii). It has often been held in several cases that where (1) there
was evidence to go to the jury, (2) there had been no serious misdirection or irregularity such as “deprives
the accused of the substance of fair trial and protection of the law” and (3) the verdict is one which a
reasonable jury could arrive at, it is not for this court to interfere, even though we may feel that we might
have come to entirely different conclusion ourselves: See R. v. McGrath [1949] 2 All E.R. 495, C.C.A.
and State v. Lawman [1961] G.L.R. (Pt. II) 698 at p. 708, S.C. In this case, the summing-up was
unimpeachable, and there was ample evidence upon which a reasonable jury could have convicted.
Consequently, I do not feel we ought to interfere with the verdict on these three grounds.
The fourth and last ground raises a more serious and interesting problem. This ground is based upon the
evidence of the seventh witness for the prosecution, Detective Sergeant E. K. Helegbe, who said that one
of the prosecution witnesses, Grace Wiredu had failed to attend court, though she had been served with a
subpoena nearly twelve months before the trial began. The record of proceedings does not disclose that
there were, besides Grace Wiredu, other witnesses at the preliminary investigation whose names appear as
witnesses for the prosecution endorsed on the information, who were not called by the prosecution at the
trial or offered ‘ for cross-examination by the defence.
In his argument before us counsel for the appellant submitted that there were authorities in support of the
proposition that all witnesses whose names appear on the bill of indictment should be called by the
prosecution. Counsel cited two cases for this submission: (1) R. v. Chigeri (1937) 3 W.A.C.A. 201, and
(2) R. v. Kelfalla (1939) 5 W.A.C.A. 157. In R. v. Chigeri (supra) counsel for the Crown had expressed
himself unable to support the conviction on three grounds, the first of which was that although some four
witnesses, besides those called at the trial, had given evidence at the preliminary inquiry, the trial judge
had given permission

[p.360] of [1972] 1 GLR 354

to the prosecution not to call these four witnesses but to offer them to the accused should he wish to have
their evidence. In its judgment quashing the conviction the court, though it did not find it necessary to
decide whether the conviction should be quashed on this specific ground, dealt fully with it and referred
to the following dictum of Lord Hewart C.J. delivered during counsel’s argument in R. v. Dora Harris
[1927] 2 K.B. 587 at p. 590, C.C.A.:
“In civil cases the dispute is between the parties and the judge merely keeps the ring, and the parties need not
call hostile witnesses, but in criminal cases the prosecution is bound to call all the material witnesses before
the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the
jury ...”

The court further referred to two conflicting passages in Archbold, Criminal Pleading, Evidence and
Practice, (29th ed.) at pp. 494-495 and then quoted the following passage from Volume 9 of Halsbury’s
Laws of England, (2nd ed.), para. 232:
“All the witnesses whose names are on the back of the indictment should be called by the prosecution. Even
if it is not proposed to call a witness whose name is at the back of the indictment, counsel for the prosecution
should, unless there are reasons to the contrary, place him in the witness-box so that the defendant may have
an opportunity of cross-examining him.”

The court approved this passage with the following observation at p. 202, “In our opinion this paragraph
contains a correct statement of the usual and proper practice on the point we are now considering.”
In R. v. Kelfalla (1939) 5 W.A.C.A. 157 the court confirmed its previous decision in R. v. Chigeri
(supra), and stated categorically that the practice as laid down in the earlier case should as a general rule
be followed in British West Africa, unless there was an express enactment to the contrary. These are the
actual words of the court at pp. 158-159:
“We now endorse the opinion then expressed and state that it is intended as a guide to all Courts to which an
appeal lies to this Court in order to resolve a doubt which is apparent on the face of the English decisions and
text books. For instance in 1847 in the case of the Queen v. Barley (2 Cox Cr.Cas. 191) Chief Baron Pollock,
after consulting Coleridge J. decided in favour of the view taken in the above quotation from Halsbury. On
the other hand in a number of other cases a contrary decision was given. The last of them which we have
been able to find reported is Reg. v. Thompson in 1876 (13 Cox Cr.Cas. 181).
We opine that the reason there are no recent decisions on the point is that for many years now the practice as
laid down in Halsbury has been followed in England, and we think it should be generally followed in British
West Africa, subject to possible legislation to the contrary.”

[p.361] of [1972] 1 GLR 354

Two questions which arise from a consideration of R.v. Chigeri and R.v. Kelfalla are: (1) whether the
practice approved in these two cases is the correct procedure, and (2) if it is, whether it ought still to be
followed in this country. The first question arose in a neat form in Yeboah v. R. (1954) 14 W.A.C.A.
484, where the appellant complained that some witnesses at the preliminary investigation, whose names
appeared as witnesses for the prosecution endorsed on the information and whose evidence conflicted
with other prosecution witnesses, were not called by the prosecution at the trial or offered for
cross-examination by the defence. Dealing specifically with this point, Coussey J.A. who delivered the
judgment of the court said at pp. 486-487:
“As to the second point, evidence at the preliminary investigation related to the killing of three persons.
Twenty-two witnesses gave evidence before the committing Magistrate, some testifying to one incident and
 some to another, each incident being isolated from the others in the general fracas.
The names of all twenty-two witnesses appeared at the back of each of the three informations. In the case of
the appellant only those witnesses who could give evidence relevant to the charge against him were called by
the prosecution. From the standpoint of the prosecution no purpose would have been served by offering the
evidence of the remaining witnesses on the back of the information and who would testify in one or other of
the other charges of murder to be separately tried against persons other than the appellant.
In these circumstances it does not appear to us that in strictness it was necessary to call those witnesses
although the prosecution might have offered them for the appellant to cross-examination but omitted to do
so.”

Thus, in Yeboah v. R. the court does not appear to have accepted as altogether correct the procedure that
was laid down in the two earlier cases of R. v. Chigeri and R. v. Kelfalla.
It seems to have been the recognised practice for some years both in this country and in England, that the
prosecution are bound either to call or tender for cross-examination all witnesses who give evidence at the
committal proceedings and whose names appear on the indictment. I do not mean any disrespect to the
distinguished judges of the West African Court of Appeal who decided the cases already referred to if I
say that in none of them were the relevant authorities considered, particularly decisions of the Privy
Council which were binding upon them.
Before 1847 the position was somewhat unclear, and the practice varied with individual judges. In that
year in R. v. Woodhead (1847) 2 Car. & Kir. 520, Alderson B. (as quoted by Lord Thankerton in Adel
Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156 at p. 168, P.C.) said:

[p.362] of [1972] 1 GLR 354

“You are aware, I presume, of the rule which the judges have lately laid down, that a prosecutor is not bound
to call witnesses merely because their names are on the back of the indictment. The witnesses, however,
should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill,
have relied on your bringing them here, and have neglected to bring them himself. You ought, therefore, to
have them in court, but they are to be called by the party who wants their evidence. This is the only sensible
rule.”

When counsel for the prisoner asked him if he was to understand that if he called them he would make
them his own witnesses, Alderson B. replied: “Yes certainly. That is the proper course, and one which is
consistent with other rules of practice. For instance, if they were called by the prosecutor, it might be
contended that he ought not to give evidence to show them unworthy of credit, however falsely the
witnesses might have deposed.”
In R.v. Edwards (1848) 3 Cox C.C. 82, Erle J. said at p. 83:
“My own impression is clear, and I believe a majority of the judges have distinctly decided that the counsel
for the prosecution is not bound to call all the witnesses at the back of the bill. He is a minister of public
justice, and is called upon to lay such facts before the jury as he thinks the interests of justice demand.”

Later he again said at the same page, “There are, no doubt, cases in which a judge might think it a matter
of justice so to interfere; but, generally speaking, we ought to be careful not to overrule the discretion of
counsel, who are, of course, more fully aware of the facts of the case than we can be.”
“In 1858, Parke B. stated in R. v. Cassidy (1858) 1 F. & F. 79, what he considered to be the correct principle:
“that the counsel for the prosecution should call what witnesses he thought proper, and that, by having
had certain witnesses examined before the grand jury whose names were on the back of the
indictment, he only impliedly undertook to have them in court for the prisoner to examine them as his
witnesses. He would, therefore, follow the course said to have been pursued by Campbell C.J., . . .
who had ruled that the prosecutor was not bound to call such a witnesses, and that if the prisoner did
 so, the witness should be considered as his own.”

Cresswell J. expressed his agreement with this view, when he was consulted by Parke B. (See the opinion
of Lord Thankerton in Adel Muhammed El Dabbah v. Attorney-General for Palestine, (supra), at pp.
168-169, P.C.)
A case which is of special significance in the development of the law on the point is Seneviratne v. R.
[1936] 3 All E.R. 36, P.C. because it was decided a year before R.v. Chigeri, and a full three years before
R.v. Kelfalla. Besides, it was a Privy Council decision which was binding on the West African Court of
Appeal. In that case Lord Roche, in delivering the opinion of the Board, made this pertinent observation
at pp. 48-49:

[p.363] of [1972] 1 GLR 354

“Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so
dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost
candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking
generally, approve of an idea that a prosecution; but at the same time they cannot, speaking generally,
approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of
reliability, or that a prosecution ought to discharge the functions both of prosecution and defence.”

This case, which emphasizes the discretion of the prosecutor to call witnesses was not referred to by the
West African Court of Appeal in its two decisions in R. v. Chigeri and R. v. Kelfalla. In R. v. Chigeri the
court was only content to quote with approval the dictum of Lord Hewart C.J. in R. v. Dora Harris (supra)
which it had itself said in 1935 in R. v. Adebanjo (1935) 2 W.A.C.A. 315 at p. 320, should be confined to
the particular facts of that case.
The second Privy Council case is that of Adel Muhammed El Dabbah v. Attorney-General for Palestine
[1944] A.C. 156, P.C. which was not referred to in Yeboah v. R. (supra). At the trial in Adel Muhammed
El Dabbah v. Attorney-General for Palestine, the prosecution refused to call, or to tender for
cross-examination, two witnesses whom they described in their own case as having been called before the
examining magistrate. The trial judge ruled that there was no obligation on the prosecution to call those
witnesses. On appeal, the Supreme Court of Palestine, sitting as the Court of Criminal Appeal, held that
though the strict position in law was that it was not necessary legally for the prosecution to put forward
these witnesses, yet the better practice was that the witnesses should be tendered at the close of the case
for the prosecution so that the defence could cross-examine them if they wished. They laid down as a rule
of practice that in future the practice of tendering witnesses should be generally followed in all courts.
Before the Privy Council, counsel for the appellant relied on the observations of Lord Hewart C.J. in R. v.
Dora Harris (supra) and on the law as stated in Halsbury’s Laws of England (2nd ed.), Vol. 9, para. 232,
p. 164, and submitted that all the witnesses on the back of the information should have been called by the
prosecution so that the appellant could have the opportunity of examining them. Dealing first with the
practice which the Supreme Court of Palestine purported to lay down to be followed in the future, Lord
Thankerton, who delivered the opinion of the Board said at p. 168:
“While their Lordships agree that there was no obligation on the prosecution to tender these witnesses, and,
therefore, this contention of the present appellant fails, their Lordships doubt whether the rule of practice as
expressed by the Court of Criminal Appeal sufficiently recognises that the prosecutor has a discretion, as to
what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that
discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive.”

[p.364] of [1972] 1 GLR 354

Later Lord Thankerton referred to R. v. Woodhead (supra) and R.v. Cassidy (supra) and said at p. 169:
 “It is consistent with the discretion of counsel for the prosecutor, which is thus recognised, that it should be a
general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender such
witnesses for cross-examination by the defence, and this practice has probably become even more general in
recent years, and rightly so, but it remains a matter for the discretion of the prosecutor.”

Finally, his Lordship referred to the observations of Lord Hewart C.J. in R. v. Dora Harris (supra) and
said at p. 169, “In their Lordships’ view, the learned chief justice could not have intended to negative the
long-established right of the prosecutor to exercise his discretion to determine who the material witnesses
are.”
It seems clear that the practice of calling witnesses by the prosecution as laid down in R. v. Chigeri
(supra) and R. v. Kelfalla (supra), is at variance with the practice which the Privy Council has laid down
in Seneviratne v. R. (supra) and in Adel Muhammed El Dabbah v. Attorney-General for Palestine (supra).
There can be no doubt that the decisions of the West African Court of Appeal in R. v. Chigeri and R. v.
Kelfalla concerning the duty of the prosecution to call witnesses, were given per incuriam, and ought not
to be followed. And Yeboah v. R. is the only authority for the proposition that the prosecution are not
bound to call a witness whose evidence in their opinion is not relevant to the charge, though that
witness’s name is on the back of the indictment. But that case does not, in my view, sufficiently recognise
the general discretion of the prosecution in the calling of witnesses. In R. v. Mansu (1947) 12 W.A.C.A.
113, where counsel for the appellant half-heartedly attempted to argue that the absence of a relevant
witness, who might have given evidence on behalf of the Crown, entitled the appellant to acquittal,
Harragin C.J. who delivered the judgment of the court observed at p. 114,
“the law on the subject is clearly set out in the case of Adel Muhammed El Dabbah v. The Attorney-General
for Palestine ... This would appear to settle the matter finally, and the only reason why attention is called to it
in this case is the fact that Counsel so frequently take this point on appeal.”

The authorities on the question were recently reviewed exhaustively by the English Court of Criminal
Appeal in R. v. Oliva (1965) 49 Cr.App .R. 298, C.C.A. and after the court had concluded its examination
of the crucial pronouncements in R. v. Woodhead (supra); R. v. Edwards (supra) and R. v. Cassidy
(supra) it observed at p. 307, “It seems to this court that once this rule of practice was laid down in 1847,
it has continued in full force and remains in full force to this day.” The court then proceeded to state the
rule at pp. 309-310:
“Accordingly as it seems to this court, the principles are plain. The prosecution must of course have in court
the witnesses whose

[p.365] of [1972] 1 GLR 354

names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should
call them and examining them, or calling and tendering them for cross-examination.
The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s
evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the
evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be
exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the
defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial
to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they
refuse, there is the ultimate sanction in the judge himself calling that witness.”

In my opinion this passage contains a correct statement of the proper practice on the point at issue, and I
think that, subject to any enactment to the contrary, it is the practice which ought to be followed in this
country.
The prosecution are not obliged to call witnesses whom they do not believe to be witnesses of truth: R. v.
Twumasi-Ankrah (1955) 14 W.A.C.A. 673 and R. v. Collier [1958] Crim. L. R. 544, C.C.A. Neither are
they bound to call a witness who is outside Ghana, or who is critically ill, or who cannot be traced. If
counsel for the prosecution will not call a witness whose name is on the back of the indictment the trial
judge has a complete discretion to do so: See R. v. Simmonds (1823) 1 C. & P. 84; the Courts Decree,
1966 (N.L.C.D. 84), paras. 67 (1) and 72 (now the Courts Act, 1971 (Act 372), ss. 53, 54 and 58).
In this case I do not think that the prosecution were bound to call Grace Wiredu as a witness or tender her
for cross-examination by the defence. Accordingly ground (iv) must also fail.
In the result, I would also dismiss the appeal.

DECISION
Appeal dismissed.
J.D.