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THE STATE v. OSEI AND ANOTHER


  • appeal
  • 1960-11-11
  • SUPREME COURT
  • GLR 218-222
  • Print

VAN LARE, SARKODFE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Criminal law?-Evidence relating to similar transactions not charged?-Admissibility?-Conviction for aiding and abetting where stealing charge proved?-Criminal Code Cap. 9 s. 46 (2)?-Application of proviso to s. 15 (1) of Courts Act, 1960.

Headnotes

The appellants who were a cashier and an assistant accountant in the Ministry of Food and Agriculture at Kumasi were jointly charged and convicted at Kumasi Assizes on six counts of conspiracy to steal and six counts of stealing monies, belonging to the Ghana Government (Criminal Code ss. 49 (1) and 288 (1)).The trial judge found that there was a conspiracy to steal monies of the Ghana Government by means of fictitious vouchers for labourers' wages prepared by one E. A. Daniels (also an employee of the Ministry) and that the first accused who was a party to this conspiracy cashed all the cheques relating to these vouchers. As regards the second accused he said " on the evidence I am fully satisfied that the second accused was a party to the conspiracy to steal the monies belonging to the Ghana Government as charged. In my view the conduct of the second accused was not consistent with innocence, and I have no doubt that he 'deliberately refrained from making inquiries the result of which he might not care to have' because he was a partner in the deal. There is no evidence that any of the cheques which forms the subject matter of counts 2, 4, 6, 8, 10 and 12 was cashed by the second accused. But section 46 (2) of Cap 9. reads as follows:(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.'I have no doubt on the evidence that the second accused aided, facilitated and encouraged the stealing by the first accused of the various sums of money mentioned in counts 2, 4, 6, 8, 10 and 12." [p.219]At the trial, the prosecution led evidence relating to other transactions of the same nature by the two accused, which did not form the subject matter of any of the counts in the information. The appeals were dismissed by the Supreme Court.

Judgement

APPEAL against conviction for conspiracy to steal and stealing by Crabbe J. sitting with assessors at the Kumasi Assizes on March 31, 1960.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo J.S.C. read the judgment of the court. The appellants were jointly charged on twelve counts, six of conspiracy to steal and six of stealing moneys totalling in all a sum of G2,911 10s. belonging to the Ghana Government. On the counts of conspiracy the appellants were jointly charged with one E. A. Daniels and other persons unknown to steal moneys belonging to the Ghana Government by means of employment.

The first appellant, Kwame Fosu Osei was a cashier in the Ministry of Food and Agriculture at Kumasi on the material dates of the offences charged; the second appellant, Emmanuel Daniel Annan was the assistant accountant in the said Ministry and E. A. Daniels, who was a clerical officer attached to the Konongo/North District of the said Ministry, did not stand trial with the appellants.

The trial was at the Kumasi Assizes before Crabbe, J., with the aid of assessors who expressed various opinions as to the guilt of the appellants. The learned trial judge found each appellant guilty on all the twelve counts and convicted each of them accordingly.

Mr. Kom for the first appellant was granted leave to argue the additional grounds filed, namely ?-

"1. The learned trial judge was wrong in overruling the preliminary objection that the accused person can be charged with conspiracy and stealing together. [p.220]

?"2. The trial judge was wrong in admitting similar facts evidence to the prejudice of the accused without first ascertaining from the prosecution what the evidence of system is to prove or establish.

"3. In view of the following conclusion of the learned judge the conviction for conspiracy cannot stand: ?-

?'I accept the evidence of P.W.3 and P.W.5 and I have not the slightest doubt that Exhibits "A" "Al-A5" were cashed by the first accused, who stole the amount represented by these cheques.'

"4. If the learned judge had as a matter of fact found 'Exhibit "N" (i.e. the Cash Book) shows that first accused had no intention of stealing any money as reflected by the entries' he should in law have withdrawn the charge from the assessors or directed the assessors to return a verdict of not guilty of stealing.

"5. The finding of the learned judge in paragraphs 3 and 4 are contradictory and therefore conviction cannot stand.

"6. On the whole the prosecution failed to prove the charge of conspiracy and stealing."

In arguing ground 1, learned counsel himself cited Archbold, (34th ed. at p. 1525 para. 4070 ) which deals with the inclusion of a count for conspiracy in an indictment charging specific offences. Learned counsel then argued ground 2 and, in support of that contention cited Makin and Another v. The Attorney-General for New South Wales [1894] A.C. 57 and R. v. Bond [1906] 2 K. B. 389.

A careful reading of these cases shows that they are clearly against counsel's submissions. It is for the court to decide on the question of admissibility of evidence of similar facts after such evidence had been led and not to ascertain what the nature of evidence of system is before it could be adduced by the prosecution. The Lord Chancellor in the course of the judgment of the court in the first cited case said inter alia:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused" ([1894] A.C. at p. 65).

A principle enunciated in the course of the majority decision by Lawrence, J., in the second cited case ([1906] 2 K.B, at p. 424) worthy of note in this connection is as follows: [p.221]

"In all cases in order to make evidence of this class admissible there must be some connection between the facts of the crime charged in the indictment and the facts proved in evidence. In proximity of time, in method, or in circumstance there must be a nexus between the two sets of facts, otherwise no inference can be safely deduced therefrom."

The passage complained of is not a finding of fact as alleged but it appears in the learned trial judge's summing-up of the defence of the first appellant to the assessors as part of the case put forward by him (first appellant). Learned counsel abandoned grounds 5 and 6.

Mr. Koi Larbi for the second appellant argued the following grounds of appeal: ?-

"1. That the learned trial judge wrongfully admitted in evidence Exhibits X, X1-4.

"2. That the learned trial judge misdirected himself by directing that Exhibits X, X1-4 constituted evidence of guilty knowledge on the part of the appellant.

"3. That there was substantial miscarriage of justice in that by the cross-examination of the appellant by the counsel for prosecution in respect of the previous trial coupled with the admission in evidence of X, X1-4 it became known to the court that the appellant had been previously convicted.

"4. That the insertion of the conspiracy count in addition to stealing count highly prejudiced the defence of the appellant.

"5. That the learned trial judge misdirected himself by holding that by reason of section 46 (2) of the Criminal Code, Cap. 9, the appellant was guilty on counts 2, 4, 6, 8, 10 and 12 although the appellant was not charged under section 46 (2) aforesaid.

6. That on the whole the trial was unfairly conducted."

In arguing grounds 1, 2 and 3 together, the submission of learned counsel was that the evidence of similar facts received in this case was wrong because the accused persons had already been convicted on the matters which were similar to the facts in the present case and that there is an appeal pending in respect of that conviction. Learned counsel however declined to entertain a suggestion by the court for an adjournment in this case pending the hearing and determination of that appeal as alleged. He was therefore unable to pursue this ground. Learned counsel abandoned ground 4 which he conceded was covered by the arguments advanced by counsel for the first appellant. With respect to grounds 5 and 6, in support of his submission learned counsel referred to that part of the learned trial judge's judgment which reads as follows:

"There is no evidence that any of the cheques which forms the subject matter of counts 2, 4, 6, 8 10 and 12 was cashed by the second accused. But section 46 (2) of Cap. 9 reads as follows:

(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.' [p.222]

"I have no doubt on the evidence that the second accused aided, facilitated and encouraged the stealing by the first accused of the various sums of money mentioned in counts 2, 4, 6, 8, 10 and 12."

Ex facie the accused not having been charged with aiding and abetting could not be convicted of that offence but we are of opinion that what the learned trial judge had in mind was that if two or more conspire to act together to do a certain act, and if such act be done in pursuance of such conspiracy all the conspirators are responsible in law for the act so done; in other words, once conspiracy is established the act of one is the act of all the others and all are liable to the same punishment.

Notwithstanding this legal point in favour of the second appellant, in the exercise of our powers by the proviso to section 15 (1) of the Courts Act, 1960, we dismissed the appeal as we considered that no substantial miscarriage of justice had actually occurred.

In the result as there was no substance in any of grounds argued each appeal was dismissed.

Decision

Appeal dismissed.

Plaintiff / Appellant

Kom for 1st appellant. Koi Larbi for 2nd appellant

Defendant / Respondent

Amissah

Referals

(1) Makin and Another v. A.G. for New South Wales [1894] A.C. 57;

(2) R. v. Bond [1906] 2 K.B. 389.

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