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. BONNEY & OTHERS | GhanaLegal - Resources for the legal brains

COMMISSIONER OF POLICE v. BONNEY & OTHERS


  • appeal
  • 1959-05-29
  • COURT OF APPEAL
  • GLR 237-240
  • Print

VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND ACOLATSE J.


Summary

Obtaining money?-Deceit voids consent?-Stealing?-False pretences.

Headnotes

Grace Bonney and Kofi Aboagye (with others) had been charged before W. B. Scott, Esquire, a District Magistrate, on the 28th April, 1958 with conspiracy to steal, and with stealing, from one Bray.The facts, briefly stated, which were proved in support of the charges were that these two persons went to Bray in his office at about mid-day on the 23rd December, 1957. There Bonney introduced her companion, Aboagye, as her husband. She said that she had bargained in a store for the purchase of bales of cloth at a price in all of 600, and wished to pay this sum so that her husband could travel by the Blue Train to Kumasi. She said that she had 600 at her own house, but that if she went to collect it the train would depart in the meantime, and her husband would miss the market in Kumasi. She therefore asked Bray to advance to her temporarily this sum of 600, and later come to her house and receive from her a similar sum in repayment. Bray advanced the money, and Aboagye departed with it. It was lost to Bray, because when later he sent his assistant (one Sampene) with Bonney to collect the money at her house, Sampene returned without any money, there being no such money in Bonney's house.The Magistrate found Bonney and Aboagye not guilty of stealing, but guilty of fraud by false pretences. He said in his judgment,"These were at least two material false statements, (1) that there had been a bargain or contract arranged with the textile Department, and (2) that she had 600 in the house for immediate replacement of the 600 asked from P.W.1 as a favour to enable Accused 2 to catch the Blue Train. Counsel has urged that the intention to repay is irrelevant: with that I agree, but I do not agree that the false statement that there was 600 immediately available in the house is irrelevant. The falsity of both statements is inferentially proved to my satisfaction by the subsequent behaviour of the Accuseds 1, 2 and 3. There clearly was no 600 in the house. The main reason that P.W.1 parted with money was because he believed the false statement about the 600 being available.?"Holding that there was no power to convict of conspiracy to commit fraud by false pretences when the charge was conspiracy to steal, he acquitted them of the charge of conspiracy to steal.On appeal to the High Court, Murphy J. dismissed the appeals, observing as follows:"The District Magistrate rightly found that the evidence did not disclose a case of stealing, but he convicted the first three appellants of fraud by false pretences on the second count, as he had power to do under S.154 of the Criminal Procedure Code."I would say in passing that, although in a few cases the distinction between stealing and fraud by false pretences may be a fine one, this is not so in the majority of cases, and was certainly not so in this case. I think it is time that police prosecuting officers learnt to distinguish between the two offences, and to prefer the correct charge when they intend to prove that a fraud by false pretences has been committed.?"Bonney and Aboagye appealed to the Court of Appeal (Criminal Appeal 134/58).The following provisions of the law fell for consideration:Section 39 of the Criminal Code: "A person is guilty of defrauding by false pretences if, by means of any false pretence, he obtains the consent of another person to part with or transfer the ownership of anything of which the crime of stealing can be committed."Section 154 of the Criminal Procedure Code: "When a person is charged with stealing anything and it is proved that he obtained the thing in any such manner as would amount under the provisions of the Criminal Code to obtaining it by false pretences with intent to defraud he may be convicted of obtaining it by false pretences although he was not charged with that offence."Section 155 of the Criminal Procedure Code: "When a person is charged with obtaining anything capable of being stolen, by false pretences with intent to defraud, and it is proved that he stole the thing he may be convicted of stealing it although he was not charged with that offence."

Judgement

Granville Sharp J.A., delivered the judgment of the Court:

(His lordship stated the facts, and proceeded:?-)

Whatever may be the fact as to the purchase of cloth, it is perfectly clear that the story told by the first appellant in the presence of the second appellant as to the availability of money in her house was false. It was this falsehood that induced the victim of the appellants to consent to hand over to the first appellant the sum of 600 Bray's consent was therefore void, for Section 16 (2) of the Criminal Code expressly provides: "A consent shall be void if it is obtained by means of deceit or duress." Clearly therefore, in our opinion, at the moment when the woman took the money, she took it without the consent of the owner, and dishonestly appropriated it. The offence was one of stealing.

The District Magistrate, however, is recorded as finding that these two appellants were "not guilty of stealing, but guilty of fraud by false pretences". In this the learned Judge of the Divisional Court supported him.

(His lordship read Section 39 of the Criminal Code and Section 154 of the Criminal Procedure Code, as reproduced in the headnote, and continued:?-)

In our opinion, the combined effect of these two provisions is

(1) that if upon a charge of stealing it be found that the facts do not support such a charge, but do support a charge of fraud by false pretences, an accused person may be found guilty of such a charge by substitution although it formed no part of the indictment; but

(2) that if the facts do support a charge of stealing, it is upon that count, and that count alone, that an accused person must be dealt with and convicted, and if wrongly acquitted upon such a charge the same facts cannot be used in order to convict him on a substituted charge, particularly where it appears (as it does in the instant case) that the ownership of the money was not severed from the person who handed it to the accused by way only of a temporary loan.

The same reasoning would apply to Section 155 of the Criminal Procedure Code. A person wrongly acquitted on a charge of false pretences cannot on the same facts be convicted of stealing unless the facts support a charge.

The appellants ought in our opinion to have been convicted of stealing, as in R. v. Aickles (2 East P.C.675, C.C.R.). They were wrongly acquitted, and we cannot review this finding. We were of opinion that the facts did not support a charge of fraud by false pretences.

Decision

<P>We therefore felt impelled to allow the appeal, and the appellant befo

Plaintiff / Appellant

Apaloo for 1st appellant (Bonney)

Defendant / Respondent

Glasgow for respondent (Crown)

Referals

R v. Aickle (2 East P.C. 675, C.C.R.)

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/c0d4904c72382204baa279202f9e35ba): 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