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REGINA v. ZONYRA & ORS


  • appeal
  • 1959-01-23
  • COURT OF APPEAL
  • GLR 26-34
  • Print

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


Summary

Arson of "dwelling house"?-Arson of "building"?-Substitution of minor for major conviction?-Pre-requisites of charge of conspiracy?-Mere presence not necessarily inculpatory-insufficiently analytical direction to jury.

Headnotes

The four accused persons were charged on seven counts, but at the trial the Crown proceeded on the first two counts only, counts 3 to 7 being left on the file. [p.27]He first count charged conspiracy, contra sec. 49(1), as read with sec. 271, of the Criminal Code. The particulars alleged that the accused persons on the 21st May, 1958, at Torglo near Ho "acted together with other persons unknown with a common purpose in committing a crime to wit arson."The second count charged arson, contra sec. 271 of the Criminal Code. The particulars alleged that the accused persons, on that date and in that place, "intentionally and unlawfully caused the dwelling house of Gregor Amoaku to be set on fire with intent to destroy or materially damage the said dwelling house."At the opening of the trial before Scott J., this count was amended by leave of the Court, on the Crown's application, by the deletion of the words "with intent" and all words following.All four accused persons were convicted on the first count ("conspiracy"), and each was sentenced to 7 years I.H.L. On the second count ("arson"), the first accused was acquitted; the other three prisoners were convicted, and each was sentenced to 7 years I.H.L., to be served concurrently with the respective sentences on the first count.The four convicted persons appealed to the Court of Appeal (Criminal Appeal No. 154/58).The English translation (Exhibit G) of a letter (Exhibit B), written by the 1st accused and referred to at the hearing of the appeal, is as follows:"To Nutsudza Amoaku, I want you to know that your subjects trespassed into my land at TORGLO and worst of all they engaged certain surveyors to work on the land.2. Yesterday, I sent a bearer to them through the Regent, but they refused to come. They did not respect either myself or the delegates.3. I am therefore warning you that as from the date of this letter, I do not want any of you to step in the land.4. If they disobey, and go into the land and disorder or disturbance occurs I am not responsible.5. Keep all of them informed of this warning.I remain,Yours,Vincent Zonyra-Regent."The trial-Judge's summing-up in respect of the 4th accused, also referred to at the hearing of the appeal, was reproduced as follows in the Record of Appeal:"Jury sole judges of fact-Not bound by any opinion on the facts as expressed by the Court ... Jury told in respect of count 2 for arson the evidence for the prosecution was that accused Nos. 2 and 3 were actually seen setting fire to dwelling house of P.W.1. In the case of No. 4 accused, evidence for the prosecution is that he was present together with Nos. 2 and 3 accused prepared to pursue a common unlawful object and in the furtherance of that common object the arson was committed, he No. 4 accused would be as responsible as Nos. 2 and 3 accused. Prosecution inviting jury to find Nos. 2, 3, 4 accused guilty of arson. Evidence of No. 4 accused read. Exhibit "F" statement of No. 4 accused read. Pointed out: In respect of count for conspiracy his evidence was that he did not conspire with any person. In respect of count 2: Defence of alibi. Name of witness Simon Assem given to Police at first opportunity. Evidence of witnesses D.W.4 [p.28] and D.W.5 for No. 4 accused read. Jury told if they believed the evidence of No. 4 accused and his witnesses their duty is to return a verdict of not guilty as against him on each count. Jury told in respect of the defence of alibi set up Nos. 2, 3, 4 accused in the second count for arson, if they feel that they cannot accept the alibi in the case of any of the accused it is their duty to decide whether on the whole of the evidence the guilt of that accused person has been established to their satisfaction."The following provisions of the law fell for consideration at the hearing of the appeal:?-Criminal Code, sec. 49(1): "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." Criminal Code, sec. 271: "Whoever intentionally and unlawfully causes any dwelling-house or vessel to be set on fire shall be liable to imprisonment for life."Criminal Code, sec. 272: "Whoever intentionally and unlawfully causes any building, whether the same be completed or in an unfinished state, or any mine, or vessel, or anything in or near to any such building, mine or vessel to be set on fire, with intend to destroy or materially damage such or any other building, mine or vessel, shall be liable to imprisonment for twenty years. "Criminal Code, sec. 286: "'Building' means any structure ... which is constructed, used, or adapted for the . . . keeping or shelter of any cattle or goods . . .?"Dwelling-house' means any building or vessel which, or any part of which, is ordinarily or at the time of the alleged crime occupied by any person, whether as an owner or as a tenant, servant, trespasser, or otherwise, as a sleeping-place during the night or any part of the night . . . "Criminal Procedure Code, sec. 151(1): "When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it."

Judgement

The four appellants in this matter complained that they had been wrongly convicted before Scott J of conspiracy to commit arson, and (so far as concerned all the appellants except the first) of arson contrary to section 271 of the Criminal Code, in that they intentionally and unlawfully caused the dwelling house of Gregor Amoaku to be set on fire.

At the outset of the hearing, Mr. Crabbe, Senior Crown Counsel, acknowledged that he was unable to support the conviction in the case of the first appellant because of lack of evidence. With this view we entirely agreed, and we accordingly allowed the appeal of this appellant, quashed the conviction, substituted a verdict of acquittal and ordered him to be discharged forthwith.

The evidence against the remaining three appellants was that they were seen together both before and after the burning of the house. At the time the house took fire the second appellant was seen to light the thatch with a match. The third appellant was seen using burning thatch for the same purpose. The fourth appellant was seen standing by; how near, the evidence does not disclose. He was seen to be doing nothing.

The first ground of appeal argued on behalf of these appellants by Mr. Apaloo was that "there being no proof that the house alleged to be set on fire was a dwelling house in law the learned Judge was wrong in not directing the jury to return a formal verdict of not guilty in respect of Count 2 (i.e. arson). Counsel drew attention to the fact that Count 2 as originally framed contained words appropriate to a charge contrary to section 272 of the Criminal Code, which is intended for an offence of arson in respect of a building other than a dwelling house. The words in question "with intent to destroy or materially damage" were expunged from the count at the instance of prosecuting counsel (by amendment on the order of the Court) before the trial began. Mr. Apaloo therefore contended that as the charge was exclusively under section 271 of the Criminal Code, proof that the building in question was a dwelling house within the meaning of the definition contained in section 286 of the Code was essential to establish guilt on such a charge. [p.32]

(His lordship read the definition of "dwelling house," and proceeded):

It must be said that there was no direct evidence that the building in question was ordinarily used as a sleeping place, although the evidence was clear that it was a building containing all the possessions of the owner, which were destroyed in the fire. A building, in the sense in which that word is used in section 272 of the Code, means, according to the definition in section 286, "any structure .... or other covered place used .... for the habitation or meeting or shelter of human beings, or for the keeping or shelter of any cattle or goods." The building in question, according to the evidence, was undoubtedly used for the storage of the owner's goods, and was therefore a "building" within the meaning of section 272.

In these circumstances it is important to bear in mind the provisions of section 151 of the Criminal Procedure Code. (His lordship read the section, and proceeded):-

It follows, as a result of those provisions, that although the evidence may have fallen short of establishing the guilt of the appellants on a count framed under section 271, it was ample and sufficient to prove their guilt of the minor offence against 272.

The only way in which the evidence fell short of establishing that a crime under section 271 had been committed was lack of evidence that the building was used as a sleeping place. In all other respects the several particulars which comprise an offence under section 271 were proved, and those which were proved are a combination which constitute a complete minor offence under section 272. In our view, sections 271 and 272 (each of which deals with the offence of arson of a building) comprise two offences, one major with a penalty of life imprisonment, and the other minor with a penalty of imprisonment for 20 years. The reason for this is obvious because, in the case of arson of the one, life may be endangered; in arson of the other, goods only may be involved. We shall deal further with this in our conclusions.

So far as the offence of conspiracy is concerned, it is not clear from the evidence that any such separate offence had been committed, or that the appellants had concerted together for the purpose of committing arson. In our opinion it is wrong to ground a charge of conspiracy only upon the fact that two or more persons were engaged together in committing an offence. That appears to be the case here, and we will allow the appeal on the first count in all cases.

With regard to the fourth appellant, the ground of appeal submitted to us was that the learned Judge misdirected the jury by non-direction in his case that mere presence at the scene of the crime [p.33] is not proof of participation, because there was no evidence that the fourth appellant did any act in furtherance of the crime. There was evidence which, in our opinion, might entitle a jury upon a proper direction to convict this appellant upon the charge of arson, but we are not satisfied that a proper direction was given by the learned Judge upon this aspect of the matter. He directed as follows:

"In the case of No. 4 accused, evidence for the prosecution is that he was present, together with Nos. 2 and 3 accused, prepared to pursue a common unlawful object, and in the furtherance of that common object the arson was committed, he No. 4 accused would be as responsible as Nos. 2 and 3 accused. Prosecution inviting jury to find Nos. 2, 3, 4 accused guilty of arson.

This direction in our view was, too, general in its terms, in that it did not put the matter in such detailed or analytical form as to enable the jury to bring to consideration of the matter a critical mind whether or not the fourth appellant was a confederate in the commission of the offence. It was necessary, in our opinion, in the circumstances of this case that the jury should be informed that mere presence was not necessarily evidence of complicity. They should have been told that it was for them to say whether upon the evidence of his association with the other appellants, before and after the burning, he was "prepared to pursue a common and unlawful object," and that "in the furtherance of that common object" he was present to assist in the commission of the crime. We think that the direction which we have cited above was an instance of a judge's usurpation of the function of a jury in regard to the fourth appellant. As we cannot speculate whether the decision of the jury in regard to this appellant would have been the same if they had been properly directed, we cannot feel it safe to allow the conviction in his case to stand.

The result is that in the case of the second and third appellants, applying the provisions of section 151(2) of the Criminal Procedure Code, we substitute for their convictions under section 271 of the Criminal Code convictions of the minor offence of arson under section 272, and we allow their appeals on the charge of conspiracy.

In the case of the fourth appellant we allow his appeal on both counts, quash his convictions, substitute a verdict of acquittal and order that he be discharged.

There is also an appeal against sentence of seven years imprisonment with hard labour on each count, to run concurrently. It is necessary to consider this aspect of the matter only in respect of the 2nd and 3rd appellants. We think that the sentences imposed by the trial-judge are manifestly excessive. He was no doubt influenced by the [p.34] fact that they had been convicted of a very serious offence which they had conspired to commit, and in these respects found him to have erred. The house destroyed was a mud farm-cottage worth 25, according to the evidence. The goods within it were neither described nor valued. There was no evidence as to any bad antecedents.

Decision

<P>We will therefore substantially reduce the sentence, and substitute for seven years I.H.L. on the 2nd count a sentence in each case of 3 years I.H.L.</P>

Plaintiff / Appellant

Apaloo

Defendant / Respondent

Crabbe for respondent (Crown)

Referals

(1) Azumah & anor. v. The King, (13 W.A.C.A. 87);

(2) Rex v. Kamara & ors. (8 W.A.C.A. 95);

(3) Rex v. Ayanful & ors. (11 W.A.C.A. 20);

(4) R. v. Coney ((1882) 8 Q.B.D. 534)

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