Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ on line 101 THE STATE v. J. A. BOATENG | GhanaLegal - Resources for the legal brains


  • appeal
  • 1961-10-30
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Criminal law?-Practice and procedure?-Whether question of accomplice vel non is a matter for the judge or the jury.Criminal law?-Accomplices?-Definition of.Criminal law?-?"Being in possession of means of coining?"?-Whether trial judge must direct jury on meaning of possession?-Criminal Code, Cap. 9 (1951 Rev.) s. 323.


The prosecution alleged that in the early hours of the morning of the 7th August, 1960, a police constable, Robert Asunade popularly known as "Tiger" was on observation duty. About ten yards from the house of one Ocloo Torso (P.W.2) he saw the second accused standing on a verandah in front of his room. On seeing the constable, the second accused shouted "Tiger is coming!", and he ran quickly into the room. Asunade followed the second accused into the room, and there he saw the second accused, Ocloo Torso, Kwashie Torso (P.W.4), and the appellant who was sitting in an armchair. Since none of these persons was able to give an explanation of his presence in the room and all seemed to be frightened, Asunade became suspicious and started to look around. Under a bed in the room he saw a Ghana police uniform together with a belt, a pair of boots, a cap and a truncheon. He also saw in the trousers of the police uniform a photographic negative plate (exhibit C). The owner of the room, Ocloo Torso, pointed to the appellant as the owner of all the exhibits found in his room, but [p.620] the appellant claimed only the police accoutrements and said that the photographic negative plate belonged to the second accused. The second accused did not challenge this statement but he began to beg the constable and offered him a bribe of G20 to drop the case. This offer was, however, refused.At this juncture two other policemen arrived at the scene and on seeing them the second accused ran away towards the bush. The police then arrested the appellant, P.W.2 and P.W.4 and after further investigation they were all charged.At the preliminary enquiry before the district court Kwashie Torso was discharged but the appellant, together with Ocloo Torso and the second accused, were committed for trial. The appellant and the second accused were jointly charged on the first count of being in possession of means of coining contrary to the Criminal Code, Cap. 9 (1951 Rev.) and the second accused alone on a second count of attempted corruption of a public officer.Upon a notice of additional evidence being filed the learned trial judge allowed Ocloo Torso to be called as a witness for the prosecution. The material part of his evidence was that on the morning of the 7th August, 1960, he asked the appellant what he had come to do at Asamankese, and the appellant produced from his uniform a negative photographic plate of a Ghana one pound currency note and said the second accused had gone out to find someone to buy it.The next important witness called by the prosecution was Kwashie Torso who was also found in the room and charged by the police but discharged by the district court. According to this witness the appellant upon hearing that a policeman was coming into the room hurriedly removed his police uniform from a chair and put it under the bed. The appellant denied that he was in possession of the photographic negative plate and said that the plate could not go into his tunic pocket. He said further that he was so drunk when he boarded the taxi in Accra that he slept or "passed away" in the taxi after Nsawam until he found himself in a strange room on the following morning, undressed and in a bed. He did not know who took off his uniform but he found himself in cover-cloth.In the penultimate paragraph of the summing-up the learned trial judge directed the assessors in these words: "I have to tell you that in my opinion I do not regard P.Ws.2 and 4 as accomplices of the accused persons herein". This view of the trial judge was again expressed in his judgment when he said: "The case for the prosecution, I hold, is abundantly corroborated by the witnesses for the prosecution and partly by the first accused himself. P.W.2 and P.W.4 are not accomplices".The appellant appealed against his conviction and sentence.


APPEAL against conviction and sentence to three years I.H.L. for being in possession of means of means of coining contrary to section 323 of the Criminal Code, Cap.9 (1951 Rev.) entered by Acolatse, J. sitting with the aid of assessors at the Criminal Sessions held in Accra on the Accra on the 12 th January, 1961.


Crabble, J.S.C. delivered the judgment of the court [He stated the facts as set out in the headnote and continued:] In our view the learned trial judge clearly usurped the functions of the assessors when he directed them to hold that P.W.2 and P.W.4 were not accomplices. The question whether a witness for the prosecution is an accomplice or ought to be regarded as such, is a question of fact for the assessors or jury to determine.

The first ground of appeal argued by Mr. Larbi, counsel for the appellant, reads as follows:

?"That the learned trial judge misdirected the court by holding that P.Ws.2 and 4 were not accomplices and thereby erred in law by failing to warn the court on the danger of convicting on the uncorroborated evidence of an accomplice."

The main question to determine therefore is whether on the evidence and in the circumstances of the case P.W.2 and P.W.4 were accomplices. In the case of R. v. Davies1, Lord Simonds, L.C. defined an accomplice as follows:

?"On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category: (i) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term 'accomplice' ".

No other categories referred to by Lord Simonds appear to be relevant to this case. [p.622]

The evidence of constable Robert Asunade shows quite clearly that P.W. 2 was found in the room with the appellant, P.W.4 and second accused. Although P.W.2 said in his evidence on oath that the appellant slept in his boys-room yet in the statement he gave to the police he said that he slept in his own room with the appellant. P.W.2 did not explain why the police uniform was found under his bed if it is true that the appellant slept in the boys apartment in his house. He also appeared frightened at the sight of the policeman. There can be no doubt that before the arrival of Constable Robert Asunade P.W.2 knew of the existence of the photographic plate under his bed. After very careful consideration of the evidence and the conduct of P.W.2 we are compelled to hold that he was an accomplice. We are therefore not surprised that he was committed for trial at the conclusion of the preliminary investigation.

The position of P.W.4 is not so easy to determine because he does not readily fall within Lord Simond's first category. But it was contended by counsel for the appellant that the evidence of P.W.4 was so tainted that the learned trial judge should have received it with caution even though he was strictly not an accomplice. This witness was found with the others in the room of Ocloo Torso by Constable Asunade, and when they were asked what they were doing in the room he said nothing and looked frightened. His evidence that the appellant threw the uniform under the bed was not supported by Ocloo Torso, and also his evidence that the appellant begged Constable Asunade was in conflict with the evidence of Constable Asunade himself and Ocloo Torso, both of whom said that it was the second accused alone who begged.

We thought that although P.W. 4 could not stricto sensu be called an accomplice yet he was so thickly involved in the criminal transaction that his evidence should have been received with considerable caution. As Lord Simonds said in R. v. Davies:

?"In such a case the issue of 'accomplice vel non' is for the jury's decision: and a judge should direct them that if they consider on the evidence, that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after the warning they still think fit to do so.?"2

In our opinion the circumstances in which P.W.2 and P.W.4 were found in the room detracted from their credit to such an extent as to render unsafe a conviction based upon their evidence unless it was corroborated. We ourselves are unable to find on the record "some corroboration from the corners of the evidence" (as the trial judge put it), and we are therefore satisfied that the learned trial judge erred in failing to warn himself and the assessors of the danger of convicting on the evidence of P.W.2 and P.W.4. In the words of Denning, L.J., in Bharat v. The King "He has, in truth, by his misdirection, disabled the assessors from giving him the aid which they should have given; and thus in turn disabled himself from taking their opinions into account as he should have done. This is a fatal flaw."3 [p.623]

It was further contended on behalf of the appellant that the learned trial judge misdirected the court on the vital issue of possession. Counsel for the appellant argued that he did not explain to the assessors what constituted "possession". In the summing-up the issue of possession was dealt with in this way:

?"The first charge is being in possession of means of coinage. You must be satisfied that the accused persons were indeed found in possession of exhibit C. If you are so satisfied, then the burden of proof will be on each of the accused that he had lawful excuse to have it in his possession, if you are satisfied by the case for the prosecution that exhibit C is an instrument specially adapted or contrived for purposes of forgery or committing any crime relating to coin.?"

In his judgment the learned trial judge held that the photographic negative plate was found in the joint control of the appellant and the second accused and convicted them both on the first count but the second accused has not appealed.

It was clear on the evidence that the appellant was not in actual manual possession of the photographic negative plate when it was discovered by the police constable. The appellant also denied that he had knowledge of the existence of this exhibit and in view of the conduct of the second accused when he was confronted with the negative plate it was essential that there should be in the summing-up a careful direction as to possession.

Possession may be either exclusive or joint, and before a person can be convicted of being in possession it must be established that he is either physically in possession or that the thing is in the possession of a person over whom he has control. The onus of proof that lies on the prosecution in proceedings under section 232 of Cap. 9 (now section 165 of Act 29) appears to us to be settled by the judgment of the West African Court of Appeal in the case of R. v. Obiase.4 It was said:

?"In the present case, under the new section 150A, although once possession is proved the onus is cast upon the accused to prove lawful authority or excuse, the onus still remains upon the prosecution to give conclusive evidence of possession. That is to say the prosecution must prove facts which are not capable of any other reasonable explanation than that the coins were in accused's possession, that is to say in the present case that the coins found in accused's house were there with his guilty knowledge?".

In this case the evidence to establish possession in law was very unsatisfactory and depended partly upon the evidence of an accomplice and partly upon the tainted evidence of a person involved in the criminal transaction.

The case of R. v. Uko5 is not completely on all fours with this case but it seems to elucidate, however, the problem that arises here. There the appellant and a friend, conspired to "plant" a counterfeit coin on an innocent person. The friend of the appellant was in actual possession of the coins before he ?"planted?" them, but there was no evidence that the [p.624] appellant was in actual possession of the coins at any time. In their judgment the court said:

?"The question then arises can he be properly held to have been in constructive possession through the actual possession of his fellow conspirator, the first appellant? The point seems to be on all fours with that which arose in the case of R. v. Rogers (2 Mood 85-referred to at Archbold 30th Edition p. 1122). There it was held that when pieces of counterfeit coins are found on one of two persons acting in guilty concert, and both knowing of the possession, both are guilty of possession.?"6

In this case the learned trial judge found as a fact that the photographic negative plate was found in the control of both appellant and the second accused. But we think that his omission to direct the assessors and himself upon possession is fatal to the conviction of the appellant since it made it impossible for the court to consider whether the appellant was acting in guilty concert with the second accused or whether he knew of the possession of the photographic negative plate: see R. v. Shaw, R. v. Agard7 and R. v. Crane.8

We are unable in the absence of any clear direction or any express finding upon the matters to which we have referred to conclude that if they had formed part of the summing-up and of the judgment, so as to indicate that they had been fully considered, the decision in the case of the appellant at the trial would have been the same. We think that these omissions were fatal to the conviction and we therefore have no alternative but to allow the appeal, set aside the conviction on the first count, direct acquittal, quash the sentence of three years I.H.L. and order that the appellant be discharged.


<P>Appeal allowed.</P> <P>Appellant acquitted and discharged.</P>

Plaintiff / Appellant

Koi Larbi

Defendant / Respondent

K. Dua-Sakyi with him Sarkodee


(1)  R. v. Davies (1954) 38 Cr.  App. R.11, H.L.

(2)  Bharat v. The King [1959] A.C. 533; [1959] 3 W.L.R. 406; [1959] 3 All E.R. 292, P.C.

(3)  R. v. Obiase (1938) 5 W.A.C.A. 16

(4)  R. v. Uko (1939) 5 W.A.C.A. 63

(5)  R. v. Shaw; R. v. Agard [1942] 2 All E.R. 342

(6)  R. v. Crane (1912) 7 Cr. App. R. 113

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