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COMMISSIONER OF POLICE v. ISAAC ANTWI


  • appeal
  • 1961-06-26
  • SUPREME COURT
  • GLR 408-412
  • Print

KORSAH, C. J., SARKODEE-ADOO AND AKIWUMI, J.J.S.C.


Summary

Criminal law?-Practice and procedure?-Misdirection by trial judge on facts proved in evidence?-Burden of proof of guilt.

Headnotes

The appellant was convicted of stealing by means of his employment. He appealed to the Supreme Court and argued ten grounds of appeal which raised two main issues, namely that the trial judge had misdirected himself on the nature of the burden of proof of guilt and on the facts proved in evidence.

Judgement

APPEAL against conviction for stealing by Judge Bruce-Lyle in the Circuit Court, Kumasi, on the 14th February, 1961. The facts are sufficiently set out in the judgment of the Supreme Court.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court. The appellant was convicted by the circuit judge at Kumasi on the 14th February, 1961, of stealing by means of his employment, for that he during the months of May and June, 1958, stole cash the sum of G92, the property of the Ashanti Turf Club, Limited, to which sum he had the means of access by reason of his office as a managing director of the Ashanti Turf Club, and was sentenced to five months' imprisonment with hard labour. At the trial the defence to the charge was that from time to time monies were received from the cashier and the amounts jotted down on paper and finally a voucher covering G132 was prepared and signed by the appellant; the amount so received was used in the Turf Club business in which no receipts were taken and no receipts were in the circumstances necessary. By the appellant's service agreement he was authorised, inter alia, to:

"exercise and carry out all such powers and duties and shall observe all such directions and restrictions as the Board of Directors may from time to time confer or impose upon him but in default thereof the Managing Director shall control the general management of the business of the Company and do all other acts and things which he may consider necessary or conducive to the interests of the Company."

Learned counsel for the appellant argued ten grounds of appeal in two groups, viz: grounds one and two together, and also grounds three to ten together, and it will assist in understanding the case if we set these out in extenso. They are as follows:

"1. The trial circuit judge misdirected himself seriously as to the burden of proof and thus shifted the burden onto the defendant occasioning a miscarriage of justice.

[p.410]

Particulars of misdirection

Page 46, lines 1-6.

`Apart from these witnesses no evidence was led by the prosecution to disprove other payments and rightly in law shifted the burden of proof onto the defence to prove payments or to give an explanation as to payments reasonably probable of the truth.'

Page 51, lines 5-9.

`I have considered the case for the prosecution and also all aspects of the defence put forward by the accused as not reasonably probable.'

"2. That the misdirection was all the more grievous considering that the appellant was not charged with unlawful possession or receiving but stealing where the onus is on the prosecution throughout to establish that the accused stole, the burden of proof never shifting.

"3. Apart from Duah, Gyimah and Oppong who denied receiving money from accused (which denial is not supported by the prosecution's own evidence) the prosecution failed to establish that the accused did not in fact use the money for the purposes he alleged he used them.

"4. The evidence even from the prosecution witnesses was overwhelming regarding payments of money without obtaining receipts and the trial circuit judge erred in holding this against the appellant to support his conclusion that the appellant stole the money.

"5. The charge being originally in respect of G132 and the prosecution having agreed that G40 was accounted for even though not supported by receipts the probability was that the rest of the amount had been so expended without supporting receipts. This probability the trial circuit judge failed completely to consider in favour of appellant.

"6. The trial circuit judge misdirected himself in many parts of his judgment by posing questions such as this: `Defence counsel has not shown any reason why I should not believe this witness' (a prosecution witness). Surely it is for the prosecution to bring such evidence as the court will believe and accept and to show why they should be believed.

"7. Even if Attiya was not Justman and the evidence was overwhelming that he was, the trial circuit judge failed to consider whether in fact there was a Justman who was in fact paid money by accused seeing that in all of Justman's letters he was in fact asking for sums of money to effect all sorts of contacts. If in fact such a man existed then it was immaterial whether Attiya was in fact this Justman or not.

"8. Gyimah was paid according to prosecution witnesses as publicity officer, Duah as security officer and Oppong for propaganda work. No receipts or voucher were tendered by the prosecution to support these payments and in the circumstance the only inference reasonably probable of the truth is that they were paid these sums out of the G132; which inference makes the falsity of their denial that accused paid them quite glaring.

"9. Oppong in view of the conflicting statements he made both in court and to the police should have been disbelieved and the trial circuit judge's attempt to reconcile these statements was to say the least extremely naive.

"10. The prosecution failed to prove its case with that degree of certainty required in such cases to support a conviction."

For the purposes of this judgment it is unnecessary to state the facts of the case nor is it necessary to set out all the passages in the learned circuit judge's judgment which have been criticised by counsel for the appellant in view of the detailed nature of the grounds of appeal.

Dealing with grounds one and two no useful purpose will be served by setting out all the passages in the learned circuit judge's judgment which have been criticised by counsel for the appellant because it is [p.411] apparent, and the Senior State Attorney has not contended otherwise, that the burden of proof was clearly put on the appellant. Referring in his judgment to the defence of the appellant as to the disbursement of the sum of G92 with which he was charged, the learned circuit judge stated, inter alia:

"Of this G92 accused in his statement told the police officer, P. W. 1, that he paid G10 to Kweku Duah for services as a security officer, G15 to Kofi Oppong for propaganda services, G20 to Gyimah for advertisement and propaganda services and G10 to an Hausa boy, G15 to three Hausa boys and the balance of G7 to men employed on security work but whose names he did not know. The prosecution called Kweku Duah, Gyimah and Kofi Oppong who have denied receiving the monies against their names."

After analysing the evidence of these three witnesses, come the passage complained of in ground one.

Further, in the learned circuit judge's judgment appear the following passages:

"Defence counsel has not shown any reason why I should not believe this witness [meaning Gyimah]. I believe this witness and find as a fact that accused never paid G25 to him."

"Kweku Duah was asked by defence counsel whether he knew J.Y. Mensah and Duah said he knew many Mensahs and that if he saw the particular Mensah he would be able to say whether or not he knew him."

In fact no such evidence was given by Kweku Duah and all that need be said is that such imputation is imaginary. Discussing the matter as to whether or not in Kofi Oppong's statement to the police he mentioned G5 or G25 the learned circuit judge proceeded thus:

"There are two different explanations and I am sure witness [meaning Kofi Oppong] received different amounts from accused for each service. I find there was a genuine mistake in writing in the writing of G5 instead of G25 in the statement. The defence has not shown any other reasons upon which the witness should be discredited. I am satisfied that this witness never received the amount of G5 for the purpose alleged by accused."

This statement was made to the police in connection with this case and was produced at the trial and read over and interpreted to the witness Kofi Oppong to refresh his memory. The figure G5 appears in the statement which was not tendered in evidence nor was the police officer who took it called to give evidence on the matter. It is therefore difficult to understand upon what grounds or reasons the learned circuit judge arrived at the said conclusions.

Misdirection in law covers, inter alia, a wrong positive direction as to the law applicable to the case, the facts of the particular case itself or the facts proved in evidence; and is by far the most frequent cause of convictions being quashed; and where the evidence leaves it in doubt as to whether or not the same verdict would have been arrived at, the conviction must be quashed since the Court of Appeal cannot substitute themselves for the jury or the trial court and find the facts which are necessary to support the conviction. See Ross on Criminal Appeal (1911 ed.) at p.110:

[p.412]

"The Court of Appeal does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should have been introduced. The Court sits to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice."

The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.

In Archbold's Criminal Pleading, (34th ed.) at p. 371, para. 1001, these principles are stated thus:

"Where the prosecution gives prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them."

In the leading case of Woolmington v. The Director of Public Prosecutions1 Lord Sankey said:

"No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything, but to raise a reasonable doubt. If the accused can raise only such a reasonable doubt he must be acquitted: vide Chan Kau alias Chan Kai v. The Queen2; John Brown Akosa v. The Commissioner of Police3; R. v. Ojojo4; George Kwaku Danso and Theodore Phillip Whenton v. The King5; R. v. Hepworth and Fearnley6.

Although no particular formula of words is required when directing a jury in a criminal case, the Court of Appeal is bound by the record of appeal and cannot conjecture as to what was meant or intended to mean [p.413] by the use of any particular words or terms; the words used must be given their ordinary and grammatical meaning.

The effect of the argument on the remaining grounds of appeal is that the evidence has not reached the standard of proof required in law to involve a conviction and that there is such a doubt as would entitle the accused to acquittal.

We have carefully perused the record of the proceedings and are satisfied that there is abundant evidence to show that it was a common practice, well known generally, to employ temporarily at each race meeting for security purposes such as detection of horse doping, stable boys and others who were paid on the spot without obtaining receipts for such payments: this we regard as payments for which a managing director is entitled to have an imprest account and may reasonably make and account for under the heading of petty cash payments for which generally receipts are deemed unnecessary.

Upon due consideration of the circumstances of the case and the whole of the evidence we feel that there has been a miscarriage of justice.

For these reasons the appeal is allowed.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

Victor Owusu, with him Heward-Mills

Defendant / Respondent

K. Dua-Sakyi

Referals

(1) Woolmington v. Director of Public Prosecutions [1935] A. C. 462; 25 Cr. App. R. 72

(2) Chan Kau alias Chan Kai v. The Queen [1955] A.C. 206; [1955] 2 W.L.R. 192; [1955] 1 All E.R. 266, P.C.

(3) Akosa v. Commissioner of Police (1950) 13 W.A.C.A. 43

(4) R. v. Ojojo [1959] G.L.R. 207

(5) Danso and Whenton v. The King (1950) 13 W.A.C.A. 16

(6) R. v. Hepworth and Fearnley [1955] 2 Q.B. 600.

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