There are, however, one or two comments we feel called upon to make about the conduct of the defence and the grounds of appeal filed by Mr. Cawston. The first is this: The police, as is usual in cases of murder, took a photograph of the body, and it is stated in the grounds of appeal that the body was propped up for this purpose. In our view it was perfectly proper to do this, but Mr. Cawston thought fit to impute sadistic tendencies to the Inspector of Police and implied that his object in having the photograph taken in that position was to induce the appellant to incriminate himself by admitting that he had mutilated the body.
Now, it is improper for Counsel to make a charge against the police or against f any other witness by way of defence, except by cross-examination as to credit, if he does not intend to call evidence in support of the charge. In the present case the accused did give evidence, but it entirely negatived the accusation of improper conduct or pressure by the police for the accused said that the police did not ask him any question whilst he was making his statement. Lord Goddard, L.C.J., in the recent case of O'Neill v. Ackers (1), in dealing with somewhat similar conduct, expressed the hope that Counsel would refrain from making charges which, if true, form a defence but which, if there is nothing to support them, ought not to be pursued. A fortiori grounds of appeal should not contain charges which are unsupported by the evidence.
The other matter which we have to comment on is this: Counsel for the defence put forward an argument about the effect of sections 233 (1) and 234 (3) of the Criminal Code. Those provisions deal with provocation arising from a husband finding his wife actually committing adultery. Mr. Cawston's argument was that section 234 (3) was merely an illustration of one of the kinds of provocation that would suffice. That was a legitimate argument, but the point is that this was not the first time that this Counsel made this submission. He made it in the case of Yaya Grunshie (2), and this Court decided against it. He also raised it in the case of Kwaku Boateng (3), which this Court decided at the present sitting.
Now, if Counsel intends to argue a point of law which is covered by adverse authority he may do either of two things. If the previous decision is by a lower Court then he may invite the higher Court to overrule it. If, on the other hand the previous decision was by a Court of co-ordinate authority, it is open to him to endeavour to distinguish the previous case from that which he is arguing. But what he must not do is to withhold from the Court the fact that there is an adverse decision on the same point.
In the present case it is clear from the summing-up and judgment of the learned trial Judge that he was not made aware of the previous decisions: other- wise he would not have given the direction he gave, viz. that a sudden confession of adultery is a sufficient provocation. To put the matter quite shortly, Counsel are expected to assist the Court and not to lead the Judge to give a wrong decision per incuriam.
In the present case the misdirection was in favour of the prisoner, so it is not a ground for interfering with the verdict. Application for leave to appeal refused.