Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 COMMISSIONER OF POLICE v. AFARI AND ADDO | GhanaLegal - Resources for the legal brains

COMMISSIONER OF POLICE v. AFARI AND ADDO


  • appeal
  • 1962-06-22
  • SUPREME COURT
  • 1 GLR 483-488
  • Print

VAN LARE, ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.


Summary

Criminal law?-Conspiracy?-Scope and content of conspiracy wider in Ghana than in England?-Evidence of agreement?-Criminal code, 1960 (Act 29), s. 23 (1).Evidence?-Statement of second accused tendered ?"to challenge his credibility?" Admissibility of rebutting evidence under cross-examination.

Headnotes

The appellants were charged with conspiracy to defraud by false pretences contrary to the Criminal Code, 1960 (Act 29) ss. 23 (1) and 131 and duly convicted. The first appellant was also convicted on a second count of defrauding by false pretences, and the second appellant was convicted on a third count of aiding and abetting the first appellant. Both appealed against their convictions.In the Supreme Court it was argued (1) that there was no evidence of an agreement between the appellants and that since the only evidence adduced was in respect of the substantive charge of fraud by false pretences, it was irregular to include in the charge a count of conspiracy; and (2) that a statement, exhibit G, made by the second appellant, and tendered by the State during cross-examination "to challenge his credibility", was wrongly admitted and the defence was denied the opportunity of cross-examining on it.

Judgement

APPEALS by the first and second appellants against convictions for conspiracy to defraud by false pretences, and by the first appellant against a conviction on a second count of defrauding by false pretences, and by the second appellant against conviction on a third count of aiding and abetting the first appellant. The facts are fully set out in the judgment of the Supreme Court.

JUDGMENT OF CRABBE J.S.C.

Crable J.S.C. delivered the judgment of the court. The appellants in this case were convicted on 14th March, 1962, at the Accra Circuit Court. Both appellants were charged with conspiracy to defraud by false pretences contrary to section 23 (1) and section 131 of the Criminal Code, 1960.1 The first appellant alone was charged on the second count with defrauding by false pretences contrary to section 131 of the Criminal Code, 1960, and the second appellant on a third count with aiding and abetting the first appellant in committing the offence stated in count 2 contrary to section 20 (1) and (2) and section 131 of the Criminal Code, 1960.

The first appellant who lived at Accra, was until his conviction a Member of Parliament for Sunyani East Constituency. He was on the 1st July, 1960, appointed Chairman of the Food and Nutrition Board, but his appointment was revoked by a letter written to him and signed by the President on the 17th September, 1960, the effective date of the termination of the appointment.

The second appellant who lived at Takyimantia was also at the material time a member of the Brong-Ahafo Central Local Council. He was at one time the personal secretary of the first appellant, and there is no doubt about the friendly relationship existing between both appellants.

The circumstances leading to their prosecution were that some time in February, 1961, the second appellant met the complainant, one Samuel Henry Owusu, at Takyimantia and told him that the first appellant was in a position to offer employment to people and that if the complainant got G250 he would take him to the first appellant in Accra and he would be given a job as a marketing officer under the Food and Nutrition Board. At that time the complainant was thinking of giving up his own job and naturally he became interested in the information he got from the second appellant. With the assistance of the second appellant the complainant tried to raise a loan, and in March 1961 one Yaw Fosu lent the complainant the sum of G300. The complainant hired a taxi one Sunday morning in the same month and together with the second appellant left Takyimantia for Accra to see the first appellant. They were accompanied by one Daniel Christian Boateng. In the house of the first appellant at Ringway Estate, Accra, after an introduction of the complainant by the second appellant, the first appellant told the complainant that he was the Chairman of the Food and Nutrition Board and that if the complainant had brought the sum of G250 "the job is there I will give you." The [p.485] complainant therefore paid to the first appellant the sum of G250, and then left the house after he had been assured by the first appellant that he was in a position to offer him the job as a marketing officer within a month from the date of the payment of the money. After waiting for a month without realising his hopes the complainant made several approaches to both appellants but without any results. Eventually the first appellant confessed that he could not offer the complainant the job and therefore promised to refund the amount of G250 to the complainant. The first appellant then wrote a promissory note, exhibit A, which was dated 14th July, 1961. This amount was payable at the end of July, 1961, but when the first appellant defaulted on the date of payment the complainant wrote to the President of the Brong-Ahafo House of Chiefs, Nana Fosu Gyeabour II (P.W. 4), to complain to him about first appellant's conduct. The first appellant was invited by P.W. 4 to Bechem and there he admitted that he received the sum of G250 from the complainant in order to give him a job as a marketing officer, and he promised to refund the sum of G200 which he took for himself to the chief, and requested him to get the G50 which he said he had paid to the second appellant. Nana Fosu Gyeabour II also sent for the second appellant who came and admitted that he received G50 from the amount paid by the complainant to the first appellant and also promised to refund it. Notwithstanding the promises by the two appellants neither refunded the money and eventually the complainant made a report to the police and the two appellants were arrested and charged with the offences of which they were convicted.

Against this conviction they have now appealed to this court, and the first ground of appeal is "That there was no evidence of conspiracy." In arguing this ground counsel for appellants submitted that there was no evidence of an agreement between the appellants and that since the only evidence adduced was in respect of the substantive charge of fraud by false pretences it was irregular to include in the charge a count of conspiracy. The argument is sound and it is reinforced by the case of R. v. Cooper and Compton2 where it was emphasised that where the proof which it is intended to submit to the jury is proof of the commission of the actual crime it is not the proper course to "clog a perfectly simple case of stealing in one or more instances with a count for conspiracy." The judgment of the English Court of Criminal Appeal in R. v. West3 also concluded with the following words: "There is a growing tendency to charge persons with criminal conspiracy rather than with the specific offences which the evidence shows them to have committed. It is not to be encouraged."

The submission of counsel though valid overlooks the fact that the law of conspiracy in this country is much wider than the English law of conspiracy. The law of conspiracy in this country is contained in section 23 (1) of the Criminal Code, 19604 and reads:

?"If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be."

In the opinion of this court, the Ghana law of conspiracy is wider in scope and in content than the English law on the subject. It consists not only in the criminal agreement between two minds, but also in the acting together in furtherance of a common criminal objective. [p.486]

The court therefore drew the attention of counsel to the width of our law of conspiracy since his submission appeared to be based on certain dicta in the English authorities. The court further drew the attention of counsel for the appellants to evidence on record disproving his assertion that there was no evidence of conspiracy, meaning that agreement, and counsel thereupon desisted from further argument on ground of appeal.

In this case, however, the two appellants were not charged together with committing the substantive offence of fraud by false pretences. The evidence discloses that the complainant paid the sum of G250 to the first appellant alone after the latter had made the false representations to him. Therefore, since the second appellant alone was also charged with aiding and abetting the two appellants could not under the circumstances be acting "together with a common purpose to commit the crime of fraud by false pretences or to abet the commission of that crime."

Be that as it may this court is of the opinion that there is clear, ample and affirmative evidence of the conspiracy in addition to the evidence of the completed offence. According to the complainant, the second appellant had told him in February, 1961, at Takyimantia that if he could get G250 and offer it to the first appellant who was described to him as Chairman of the Food and Nutrition Board, the first appellant would offer him a job as a marketing officer. The second appellant led the complainant all the way from Takyimantia in the Brong-Ahafo Region to Accra. The events in the house of the first appellant were described by the complainant as follows:

"When we got to the house the second accused led us to a room and gave us chairs to sit. The house is a storey building. We sat in a room on the ground floor. Second accused went upstairs. When the second accused came downstairs, the first accused accompanied him. The first accused greeted us. Second accused then told him that the work he asked him to find someone to come and do, he had got the man. He mentioned my name to the first accused by way of introduction. The first accused said my face was familiar to him. First accused further said he was the Chairman (Head) of the Food and Nutrition Board and if I had brought the money G250, 'the job is there I will give you'. I replied that the second accused has shown me the job and I have raised a loan, I have got the money now. The G250 was in my right shorts pocket. I produced it and handed it to the second accused. Second accused counted the money and handed it to the first accused who also checked. Both of them went upstairs with the money. Boateng was present all the time. First accused and second accused remained upstairs for some time and later they both came downstairs. First accused told me he would give me one month and I would get the job as a marketing officer."

His evidence of the events in the first appellant's house was substantially corroborated by Daniel Christian Boateng.

It is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert and so indicating a previous agreement. In the view of this court the conduct of appellants on that Sunday in March, 1961, in the house of first appellant shows some collaboration between them which is evidence of a previous agreement to carry a criminal design into effect. There was in this case sufficient evidence directed and confined to the facts which constitute the anterior conspiracy, and therefore in the opinion of this court the inclusion of a count of conspiracy in the instant charge was perfectly justified. This ground of appeal therefore fails. [p.487]

It was next argued by counsel that the statement of the second appellant (exhibit G) was wrongly admitted in evidence and that the defence was denied the opportunity of cross-examining on it. We were ourselves puzzled why this statement was somehow introduced into this case at all at that state of the proceedings by prosecuting counsel in view of the wealth of evidence in support of the prosecution's case. The learned Director of Public Prosecutions was unable to offer any convincing reasons for initiating such an irregular procedure. In the words of the learned Director of Public Prosecutions: "Exhibit G was not tendered as a statement of the second accused but to challenge his credibility." If, indeed, that was the only reason for introducing exhibit G into the evidence then there is hardly any legal justification for it. As a general rule where a witness is cross-examined as to credit and he denies any matter put to him his answers are conclusive and the cross-examining party is precluded from leading evidence to rebut this denial. In R. v. Holmes5 a case of indecent assault, it was held that the prosecutrix, having denied that she had had sexual connection with another, could not be contradicted by rebutting evidence. The position is, however, different where the question put in cross-examination is relevant and is directed not merely to credit, but to a matter actually in issue: R. v. Riley.6

The learned circuit judge accepted the statement without first directing his mind to the principles concerning the admissibility of rebutting evidence under cross-examination. The second appellant was not charged with forgery and the question whether he had signed his name under a previous statement was wholly immaterial to the issue which the court had to try, which was the guilt or innocence of the second appellant on a charge of abetting fraud by false pretences. There can be no doubt that as a result of admitting exhibit G there was introduced into the evidence at the trial a statement purporting to have been made by the second appellant and substantially different from the statement he had made on oath. "Quite obviously it is one thing to say that, in view of an earlier statement, the witness is not to be trusted: it is another to say that his present testimony is to be disbelieved and his earlier statement, which he now repudiates, is to be substituted for it" ?-per Lord Hewart, C.J. in R. v. White.7

But to that general rule that rebutting evidence in cross-examination should be confined to relevant matters in issue an exception is now recognised where the purpose of the evidence in rebuttal is to show that the witness is biased. This exception was lucidly stated by Greene, B., in R.v. Burke.8 He said:

"No doubt the authorities show that if a witness deposes that he stands in a particular relation with respect to the cause or the parties in it, he may be contradicted with regard to that evidence, not for the purpose of impeaching his credit, but of showing that he had given his evidence under such an undue and improper bias as to affect the whole of it. I apprehend that none of the authorities in the book go beyond that."

We deplore this novel procedure which has given cause for this criticism by counsel for the appellants. It is quite elementary that the statement of an accused person is not tendered in evidence unless the [p.488] prosecution have first established that that statement was made voluntarily. This principle was not observed in this case and we think that exhibit G was wrongly admitted.

But notwithstanding the irregularity that occurred this court will not as a general rule quash a conviction purely on the ground that some evidence has been wrongly admitted against an accused person, provided that there is credible evidence aliunde which is sufficient to support the conviction. In the opinion of the court other such evidence in this case is amply sufficient to justify the conviction of the second appellant: see R.v. Ede Okpalu,9 also Wallace-Johnson v. The King,10 and R. v. Cook.11

At the trial the defence of each appellant was substantially that the complainant paid the sum of G230 to the first appellant as a loan on 14th July, 1961, for which sum he (first appellant) gave a receipt (exhibit A).

The issues for determination therefore fell within a very narrow compass, and the learned trial circuit judge posed the following pertinent questions:

(1) How much money was paid to the first accused by P.W. 1?

(2) When was the money paid?

(3) For what purpose was the money paid to the first accused?

As to the second question which he first answered, he said: "I am satisfied that P.W.1 paid the money to the first accused in March, 1961, and not on the 14th July, 1961."

The learned trial circuit judge then found that the second appellant knew that the first appellant had been dismissed from his post as Chairman of the Food and Nutrition Board and that the first appellant was also aware that he had been removed from his post, he having been informed of his dismissal on 17th September, 1960. He continued:

"I believe the evidence of P.W.1. P.W.2 has corroborated the evidence of P.W.1 as to the payment of the money. I have no reason to disbelieve the evidence of P.W.4. I do not believe the story of the accused persons that the transaction was a loan of G230. I believe the first and second accused conspired to defraud. I believe the first accused defrauded P.W.1 in the sum of G250 and second accused aided and abetted first accused to defraud P.W.l."

It cannot be doubted that there is ample evidence on record to justify the conclusions of the learned circuit judge. Where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are reliable and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed. The appellate tribunal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way.

We are not pursuaded that any ground for interference with the trial judge's conclusions has been established and accordingly we dismiss the appeal of each appellant.

Decision

<P>Appeals dismissed.</P>

Plaintiff / Appellant

K. Narayan (with him Ampaw)

Defendant / Respondent

K. Dua Sakyi, D.P.P. (with him Miss E. Aryee)

Referals

(1)  R. v. Cooper and Compton (1947) 32 Cr. App .R. 102

(2)  R. v. West [1948] 1 K.B. 709, C.C.A.

(3)  R. v. Holmes (1871) L.R. 1 C.C.R. 334

(4)  R. v. Riley (1887) 18 Q.B.D. 481

(5)  R. v. White (1922) 17 Cr.App. R. 60

[p.484]

(6)  R. v. Burke (1858) 8 Cox C.C. 44

(7)  R. v. Okpalu (1935) 2 W.A.C.A. 345

(8)  Wallace-Johnson v. The King (1936) 3 W.A.C.A. 104

(9)  R. v. Cook [1955] Crim. L.R. 772

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/71853a3e7e1806faa355851fd4ea7a46): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48