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COMMISSIONER OF POLICE v. SARPEY AND NYAMEKYE


  • appeal
  • 1961-12-08
  • SUPREME COURT
  • GLR 756-760
  • Print

SARKODEE-ADOO, ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.


Summary

Criminal law and procedure?-Aiding and abetting?-Criminal Code, 1960 (Act 29) s. 20.Criminal law and procedure?-No record of conviction of accused of offence charged?-Whether omission fatal?-Whether sentence lawful.

Headnotes

Sarpey, a police constable, allowed a vehicle carrying stolen goods to pass him without checking the contents. He was charged with three others with conspiracy to steal; this charge was then withdrawn as against him and he was charged instead with aiding and abetting the other three. He was duly convicted.Nyamekye was charged with dishonestly receiving the stolen property. The charge was laid in count 6 and she pleaded not guilty. The trial judge however convicted her on the wrong count as follows:"I find the charge proved against 5th accused on 5th count and I convict her accordingly. 5th accused 6th count 12 months I.H.L."Sarpey appealed on the ground that the verdict was unreasonable and could not be supported by the evidence. For Nyamekye it was argued that the failure to convict on count 6 rendered the sentence unlawful.

Judgement

APPEAL by first appellant, Kofi Sarpey, against conviction for aiding and abetting three persons in the commission of the offence of stealing, [p.757] and by the second appellant against conviction for receiving stolen property, both entered in the circuit court by Judge Jiagge on the 18th April, 1961.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo, J.S.C. delivered the judgment of the court. The appellant Kofi Sarpey who is a general police constable was charged in count 3 with aiding and abetting Kodjo Koranteng, a delivery clerk, Felix Lamptei, a delivery clerk, and James Amoo Nelson, a lorry driver in the commission of the offence of stealing. The three named persons were charged with conspiracy to steal in count 1, and in count 2 with stealing two cases of blouses valued at G222 15s, the property of the Palm Line Agencies Ltd.; in count 4 Felix Lamptei was charged with the forgery of waybill No. 5646; and Felix Lamptei and James Amoo Nelson were charged with uttering the said waybill in count 5. The part taken by the appellant is not in dispute and as such for the purposes of this judgment it is unnecessary to recapitulate in detail the facts thereof save to state that a charge of conspiracy had earlier been withdrawn against the appellant and the evidence clearly shows that at the time he became involved or identified with the transaction, the alleged stealing had already occurred. His participation, if any, was allowing the vehicle carrying the stolen goods unchecked passage: whether or not by his conduct he committed an offence under the Criminal Code is not a matter for conjecture by this court; we are only concerned with the appeal before us.

Section 20 of the Criminal Code, 19601 under which the charge against him was preferred provides as follows:

"(1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act of the purpose of aiding, facilitating, encouraging, or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime.

(2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime.

(3) Every person who abets a crime shall, if the crime is not actually committed, be punishable as follows, that is to say?-

(a) where the crime abetted was punishable by death the abetter shall be liable to imprisonment for life; and

(b) in any other case the abetter shall be punishable in the same manner as if the crime had been actually committed in pursuance of the abetment.

(4) An abetter may be tried before, with, or after a person abetted, and although the person abetted is dead or is otherwise not amenable to justice.

(5) An abetter may be tried before, with, or after any other abetter, whether he and such other abetter abetted each other in respect of the crime or not, and whether they abetted the same or different parts of the crime.

(6) An abetter shall have the benefit of any matter of exemption, justification, or extenuation to which he is entitled under this Code, notwithstanding that the person abetted or any other abetter is not entitled to the like benefit. [p.758]

(7) Every person who, within the jurisdiction of the Courts, abets the doing beyond the jurisdiction of an act which, if done within the jurisdiction, would be a crime, shall be punishable as if he had abetted that crime?".

In order to convict a person of aiding and abetting it is incumbent on the prosecution to prove that the accused did any one of the acts mentioned in subsection (1) of section 20. Under subsection (2) a person who abets a crime shall be guilty if the crime is actually committed (a) in pursuance of abetment, that is to say, before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and circumstance with the commission of the offence. In our view, an act constituting an abetment in law must precede or it must be done at the very time when the offence is committed.

On the evidence as a whole we are of opinion that although the conduct and acts of the appellant were suspicious, the charge was not proved and in the result we hold that the learned trial judge erred in law by convicting the appellant of the offence charged, and the ground of appeal that the verdict is unreasonable and cannot be supported having regard to the evidence must be maintained and upheld. The appeal is allowed and the conviction and sentence quashed. The appellant is accordingly acquitted and discharged.

Turning to appeal No. 86/61 by Afua Nyamekye (the fifth accused a petty trader, the offence charged was dishonestly receiving the stolen property as clearly laid in count 6 on the new charge sheet, and to which she pleaded not guilty and stood her trial throughout: the original charge sheet having been withdrawn and the new charge sheet substituted therefor and on which the trial proceeded. The learned trial judge even though upon conclusion of the case, in the course of her exhaustive and well-reasoned judgment reviewed in respect of the fifth accused the evidence as a whole on the offence charged in count 6, she however convicted the appellant on count 5 in the terms following: ?"I find the charge proved against 5th accused on 5th count and I convict her accordingly?". The 5th count referred to relates to the charge of uttering the said waybill laid against Felix Lamptei and James Amoo Nelson in the charge sheet as aforementioned. The learned trial judge thereafter proceeded to pass sentence thus: ?"5th accused 6th count 12 months I.H.L.?".

It is patently clear from the proceedings that the resultant error in law was that there was no record of conviction against the appellant for the offence with which she was charged and to which she had pleaded not guilty and stood her trial throughout; and in consequence she could not be sentenced for an offence in respect of which there was no conviction.

The law is well-settled, and the reported cases themselves numerous, in which it has been held that upon such an eventuality as has occurred in the instant case, a conviction and sentence cannot be allowed to stand and must be quashed.

On the face of the proceedings there appears to be no conviction for the offence charged, and this could not in our considered opinion be held [p.759] to be merely an omission which is cured by section 406 (1) (a) of the Criminal Procedure Code, 1960.2 That section reads:

"406 (1) Subject to the provisions hereinafter contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account?-

(a) of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during the trial or in any enquiry or other proceedings under this Code; . . . ?"

The omission in this instant case is, in law, in limine and renders the proceedings null and void; it is patently not within the provision of section 406(1) (a) of the Criminal Procedure Code, 1960. It was necessary for the learned trial judge to record a conviction on the offence charged before proceeding to pass sentence.

It is well-established that this court is bound by the record of the proceedings and in this appeal we have a record of the learned trial judge, which does not impose a finding on the offence charged but imposes a sentence.

In Commissioner of Police v. Marteifio and 51 others,3 it was held that where there has been a failure to convict or a finding of guilty is not recorded, a sentence passed is unlawful. The court said:

"A conviction at common law has been said in strictness to consist of verdict, judgment and sentence. In certain English Statutes it means verdict or confession of guilt.

In a summary trial in this Colony what is called in the side-note to section 163 of the Criminal Procedure Code [now section 177 of Act 30] 'the decision' takes the place of the verdict of a jury. The decision is an ingredient of a conviction and we would say it is the main ingredient, for without a decision (except in the special case referred to in section 79 of the Criminal Code) we do not see how there can be either a judgment or a sentence.

We hold therefore that a failure to convict is not a mere irregularity but the omission of a vital part of a trial and that in its absence a sentence cannot lawfully be recorded or carried out.?"4

In Seedi v. Commissioner of Police there was only one charge before the trial magistrate and sentence was passed quite consistent with a finding of guilt under the said charge but a sentence was passed on the appellant without entering on the record a finding of guilty against him. The appellant appealed to the Divisional Court on the ground that "there was a material irregularity in the proceedings". The appellate judge held that: "The omission to write the words 'Found Guilty' or 'Guilty' can be nothing else than a mere clerical error apparent on the face of the record. I therefore order that the words 'Found Guilty' be entered on the record".

Upon further appeal on the same ground to the West African Court of Appeal5 that court held: "That the omission was a mere technicality [p.760] and the Court [meaning the Divisional Court] could remedy it so that substantial justice might be done".

In our view these two cases are distinguishable upon the facts as well as upon principle. The instant appeal is fully covered by and falls within the ratio decidendi in, Commissioner of Police v. Marteifio and 51 others with which we are respectfully in agreement and do follow. For these reasons the appeal is allowed, the conviction and sentence quashed and the appellant acquitted and discharged.

Decision

<P>Appeals allowed.</P> <P>Appellants acquitted and discha

Plaintiff / Appellant

K. A. Sekyi for the first appellant. B. J. da Rocha with him E. N. Moore for the second appellant.

Defendant / Respondent

K. Dua Sakyi with him Adjetey for the respondent (the State).

Referals

1) C.O.P. v. Marteifio (1943) 9 W.A.C.A. 40

(2) Seedi v. C.O.P. (1946) 12 W.A.C.A. 29

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