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THE STATE v. HAGAN


  • appeal
  • 1961-11-13
  • SUPREME COURT
  • GLR 652-654
  • Print

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


Summary

Criminal law?-Stealing?-Whether general deficiency in account or specific act of stealing?-Criminal Code, Cap. 9 (1951 Rev.) s. 288 (1).

Headnotes

When an auditor of the Government Audit Department made a surprise audit of the books of the appellant, who was a local council treasurer, he discovered a shortage of G750 in cash. The appellant, who was present throughout, agreed advance that he was G750 short and said that it represented a repayment of an advance deducted from contract payments made to one Mr. Bicknel on the 24th April, 1960, "knowing that this amount . . . would be returned to me". Mr. Bicknel however denied that he had at any time either on the 22nd April, 1960, or thereafter received this amount from the appellant in cash. Mr. Bicknel said he had rather on the 22nd April received by cheques an amount of G3,785 4s. from the appellant at the house of the chairman of the local council for which he had signed three vouchers for a total sum of G4,659 4s. The difference of G750 was deducted towards an advance and the appellant gave him a temporary receipt. Under cross-examination the appellant's answers were at variance with his earlier statement and tended to support the evidence of Mr. Bicknel. The appellant was convicted, inter alia, of stealing. He appealed.

Judgement

APPEAL against conviction by Scott, J. sitting with the aid of assessors at the Cape Coast Criminal Sessions held on the 24th February, 1961, upon an indictment containing seven counts. This report is solely concerned with the first count of stealing. The facts are fully set out in the judgment of the Supreme Court.

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. The appellant was treasurer of Breman-Ajumako-Enyan Local Council and as such was charged with the responsibility of keeping the cash book, preparation of payment vouchers, receiving all revenue collected by the council, issuing of receipts and payment of monies in cash as well as by cheque.

The evidence for the prosecution with respect to count one was that on 10th May, 1960, an auditor of the Government Audit Department made a surprise audit of the Breman-Ajumako-Enyan Local Council, and after checking the cash book and physical cash he discovered a shortage of G750 in cash. This took place in the presence of the appellant who agreed that he was G750 short and when asked by P.W.1 to explain this shortage, the appellant said that this amount represented a repayment of an advance deducted from the contract payments made to P.W.2, Mr. Bicknel of the Swiss African Construction Company, Ltd. He said further that he had entered this repayment on the receipt side of the cash book but had later paid the same amount of G750 to P.W.2 without making a corresponding entry on the payment side of the cash book.

Mr. Bicknel was the manager of the Swiss African Company, Ltd., and he testified that his company had a contract with the Breman Ajumako-Enyan Local Council for the sum of G32,000, which was subsequently increased to G39,000. He received advance payments from the company periodically, and on each payment the sum of G250 was deducted towards that advance. He never made payments in actual cash and cheques in respect of monies due to him were never prepared for the full amount but for the full amount less the actual amount deducted towards the advance.

On the 22nd April, 1960, he went accompanied by the appellant to Swedru and at the house of the chairman of the Local Council, P.W.3, the appellant presented to him for his signature three vouchers, exhibits B1, B2 and B3 for the total sum of G4,659 4s. Of this amount he said that he received only G3,785 4s. by cheques since he had during the previous week received cash the sum of G124; there was also deducted in accordance with the usual practice the sum of G250 in respect of each voucher towards the advance given him by the council. The result being that a total sum of G750 was deducted towards advance and the appellant gave him a temporary receipt, exhibit D.

When on the 19th May, 1960, the appellant was charged he said inter alia:

?"On the 24th April, 1960 I entered the amount of G750 in the cash book as having received same from the Manager Swiss African Construction Company and issued a receipt No. 405176 knowing that this amount which is a refund of an advance would be returned to me by Mr. Bickley (sic.) but who failed to pay.?"

In his evidence P.W.2 denied that he had at any time on the 22nd April, 1960 or thereafter received from the appellant the sum of G750. He was fully supported in this by some of the answers given by [p.654] the appellant himself when he was under cross-examination. The appellant said:

?"I never told P.W.1 that shortage of G750 came about because I had subsequently paid P.W.2 the G750 because he requested and I had failed to prepare voucher to cover it. I told P.W.1 that difference of G750 represented difference on accounts between Council and P.W.2."

And again he said: "When I said in my statement I paid P.W.2 another amount of G750 on the 22nd April, 1960, that was not true?".

In view of these answers by the appellant it was not clear what the defence of appellant was, if any, on the first count of stealing, and the learned trial judge after a detailed and meticulous analysis of the evidence found the appellant guilty of stealing the sum of G750.

At the hearing of this appeal the appellant, who appeared in person, informed the court that he relied on the submissions made by his counsel at the close of the trial. The submissions are as follows:

?"In respect of count 1, no evidence that G750 came from transactions on the 22nd April, 1960. Audit inspection for 10 months no shortage may have taken place before?-Shortage of sums might total G750?-No evidence of specific sum stolen at particular dates?-R. v. Okorodudu, 12 W.A.C.A. In this case general deficiency and criminal charge cannot be supported. R. v. Nwagbani 8 W.A.C.A. 19.?"

These submissions were considered by the learned trial judge and were, rightly in our view, rejected by him. It was clearly established by the prosecution that on the 22nd April, 1960, the appellant deducted from advances due to P.W.2 a total of G750. The appellant admitted, that when his safe and books were checked on the 10th May, 1960, he was short of G750 in cash and he could not account for this shortage.

In R. v. Okorodudu1 it was said:

?"It is in these days generally conceded that great difficulty is imposed upon the prosecution in proving actual conversion in such cases as this, and the tendency is to restrict rather than to extend the application of the general rule from which such difficulty arises. It is clear that the mere omission to pay over moneys received by a clerk or servant does not suffice to show a conversion, nor does the mere fact of there being a deficiency as shown by the accounts, for he may have done no more than fail properly to enter items of disbursement in his books, or may have lost the money by negligence, or have spent it on his master's account. There must, therefore, be some evidence that the particular amount specified was misappropriated at a particular date and place.?"

(See also Kwame Aboah v. The Queen2 ; R. v. Ofoni3 ).

We think that the evidence at the trial did not prove a general deficiency in the account but rather the misappropriation of a specific amount at a particular date and place and that the charge of stealing on count one was satisfactorily proved.

[His lordship then proceeded to consider the appeal against conviction on the other counts which was held to be of no merit.]

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Appellant in person.

Defendant / Respondent

K. Dua Sakyi with him Sarkodee

Referals

(1) R. v. Okorodudu (1947) 12 W.A.C.A. 129

(2) Kwame Aboah v. The Queen (1953) 14 W.A.C.A. 253

(3) R. v. Ofoni (1940) 6 W.A.C.A. 1

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