Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: MILLS-ODOI, ACOLATSE AND BRUCE-LYLE JJ.S.C.
JUDGMENT OF BRUCE-LYLE J.S.C.
Bruce-Lyle J.S.C. delivered the judgment of the court. This is an appeal from the judgment of Djabanor J. sitting with assessors at the Criminal Session of the High Court, Kumasi, delivered on 28 June 1963.
The appellant was charged with three others with conspiracy to steal and he alone with 44 counts of stealing 108 logs of various species, the property of his employers Messrs. F.E. Ghassoub (Ghana) Ltd. (hereinafter referred to as complainants).
The case for the prosecution was briefly that the appellant was employed as the timber truck driver of the complainants on the various dates mentioned in the 44 counts and that on these dates his truck was loaded with logs in the bush in the Hwidiem area. There was a loading
[p.560] of [1964] GLR 558
clerk at Hwidiem whose duties included preparation of waybills, in original and duplicate, covering the logs entrusted to the appellant. The original waybill was handed to the appellant and the duplicate was kept by the clerk. It is significant that these waybills were not signed or thumb-printed by the appellant. One hundred and five logs, covered by counts 2 to 43 alleged to have been delivered to the appellant, never got to the intended destination, to wit, the yard of the complainants in Kumasi and they were never traced. Three other logs, covered by counts 44 and 45, which were delivered to the appellant were conveyed not to the complainants’ yard in Kumasi but to the yard of Messrs. West African Hardwoods Ltd., a sawmill firm in Kumasi. Upon investigations it was discovered that the three logs were sent there by the appellant and sold for cash paid to him through one Kweku Addo, the eleventh prosecution witness.
The appellant in his defence denied any knowledge of the 105 logs covered by counts 2 to 43; but he admitted conveying to the yard of Messrs. West African Hardwoods Ltd. the three logs covered by counts 44 to 45, saying that he did it on the instructions of one John Amponsah, the eighth prosecution witness, the receiving clerk for the complainants; that he, the appellant, received the moneys in respect of the three logs and paid them over to the said Amponsah; and that he thought the sale of the logs was genuine.
The trial judge at the close of the prosecution’s case acquitted and discharged all the accused persons including the appellant on the count of conspiracy to steal and convicted him on all the stealing counts (counts 2 to 45) and sentenced him to three years’ imprisonment with hard labour. The appellant has appealed to this court against the conviction on the following grounds:
“(1) The prosecution failed to discharge the burden of proving that the accused committed the offence of stealing in counts 2 to 45.
(2) The trial learned judge erred in admitting a statement by a co-accused implicating the accused made at a time the accused was not present, which statement the accused had no opportunity during the trial to admit, deny, explain, or otherwise comment upon.
(3) The trial learned judge erred in failing to warn the assessors and himself in the summing up and in the judgment to disregard or not give much weight to the said statement, especially when the accused had no opportunity to admit, deny, explain, or otherwise comment upon same.
(4) The trial learned judge erred in not accepting the submission of accused’s counsel that no prima facie case of stealing had been made against the accused in respect of counts 2 to 43 for the accused to be called upon to answer.”
The appellant, although represented by counsel during the trial, and there is no doubt whatsoever that the grounds referred to above were prepared by counsel, found himself alone in this court.
As stated early in the judgment, the waybills covering the loading of the 105 logs referred to in counts 2 to 43 were not signed or thumbprinted by the appellant. Furthermore, the circumstances surrounding
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the transaction did not point to one irresistible conclusion that the appellant was the only driver of the complainants who conveyed logs in the complainants’ trucks from Hwidiem to Kumasi. This court therefore called upon the learned senior state attorney to support the convictions of the appellant in respect of counts 2 to 43.
The learned senior state attorney informed the court that he was unable to support the convictions on counts 2 to 43 on the ground that “the circumstantial evidence is not such as would point irresistibly to one and only conclusion that it was the appellant who carted the logs referred to in counts 2 to 43 because the procedure followed by the company [complainants] opened room for any dishonest bush manager to conspire with other persons to defraud the company [complainants].”
In this case, as it relates to counts 2 to 43, the learned trial judge in his judgment based his convictions on the fact that the sixth prosecution witness, Simon Nartey Kartey, in his evidence said that he despatched the 105 logs on the appellant’s timber truck and produced the relevant waybills prepared by him which showed the particulars of the logs, the dates on which they were despatched and the name of the driver and the number of the truck on which they were despatched. This witness further said in his evidence that those relevant waybills were never signed by the appellant and this was corroborated by the second prosecution witness, the managing director of the complainants. The learned trial judge, although he directed his mind to this most important piece of evidence, which is clearly in favour of the appellant, nevertheless decided inter alia as follows:
“Now, the practice was that these waybills were never signed by the drivers. In fact in the case of the first accused (and indeed of any illiterate driver) he would not know what in fact has been written on the waybill. I have considered the probative value of the lack of acknowledgement by the first accused in that regard. I have considered also the fact that Amponsah has made some mistakes in the stock book. I do not think that the mistakes are serious ones. I was impressed by Kartey that he was speaking the truth that he loaded all these 108 logs on to the vehicle. In fact the first accused admitted carting three logs.”
The learned trial judge then proceeded to convict the appellant on all the counts of stealing. We are of the opinion that the mere admission by the appellant that he carted the three logs in counts 44 and 45 could and should not have been considered by the trial judge as being an admission by the appellant that he carted the remaining 105 logs covered by counts 2 to 43. This admission by the appellant could not be considered as corroboration of the evidence of the sixth prosecution witness that the 105 logs, covered by separate counts 2 to 43, were also carted by the appellant. It is trite law that the prosecution is bound to prove each count separately and beyond all reasonable doubt, and that proof in support of one count cannot be deemed to be proof of other counts where the evidence in support of the other counts leaves room for doubt. In R. v. Ross,1 the principle laid down is that when an indictment alleges specific offences
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on distinct dates, the jury should be warned to deal with each occasion separately and not to permit inadequate evidence in the one to supplement inadequate evidence in the other.
“Where an indictment for indecent assault contains a number of counts, each count charging a separate assault on a different person, the jury should be directed not to return a general verdict but to return a verdict on each count, and they should also be warned to draw a careful distinction between the evidence on each count and the evidence on every other count and not to supplement the evidence on any particular count by looking at the evidence as a whole.”
See the headnote to R. v. Bailey.2
In an early paragraph of his judgment the learned trial judge no doubt showed his awareness of the law relating to proof of each count separately when he stated, inter alia, as follows: “I further reminded myself that each accused person’s case must be treated separately, and also that each count must be dealt with separately.” However, he allowed his mind to be carried away from this principle of law. There is, however, no doubt whatsoever that the trial judge supplemented the evidence of the sixth prosecution witness that he loaded the 105 logs (counts 2 to 43) on to the vehicle of appellant, with the admission by appellant that he carted the three logs in counts 44 and 45, and this is just what the law deprecates.
The learned trial judge concluded that part of his judgment relating to the counts of stealing the 105 logs with which the appellant was charged in the following pertinent words:
“I am satisfied beyond all reasonable doubt that the first accused was loaded with all the 105 logs, subject of the 42 counts from the bush, and I am satisfied that he did not deliver any of them in his master’s yard.”
The only piece of evidence that the appellant’s truck was loaded with these 105 logs is that of sixth prosecution witness. There is no corroboration of this evidence. In cases of this nature an acknowledgement of some sort by the driver carting the logs would have been sufficient corroboration; but this is not so. It is therefore surprising that the learned trial judge did not scrutinize the evidence of the sixth prosecution witness on this score carefully to find out whether there was reasonable doubt or that the explanation of the appellant was reasonably probable. “It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence” said Lord Normand in Lejzor Tepper v. The Queen3 “to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” We are therefore of the opinion that it is not sufficient for a trial judge simply to state in the course of his judgment that “he is satisfied beyond all reasonable doubt,” as appears in this case, where the facts and circumstances showed that there were co-existing circumstances which could weaken or destroy the inference that because the sixth prosecution witness said he loaded the appellant’s truck with the logs and produced waybills not signed by the
[p.563] of [1964] GLR 558
appellant there was no doubt that the appellant carted the 105 logs, subject-matter of counts 2 to 43. A trial judge would be justified in the use of the expression “satisfied beyond reasonable doubt” if there was sufficient evidence on record in support of the charge; but where the evidence appears slight and flimsy and uncorroborated, as in this case, the trial judge is bound to look for other co-existing circumstances which would weaken or destroy it and if there are none then he would be justified in convicting the appellant. Nowhere in the summing-up and in the judgment is there any indication that the learned trial judge indulged himself in the exercise of finding out any co-existing circumstances which could weaken or destroy the inference put forward by the evidence of the sixth prosecution witness. We are therefore in entire agreement with the learned senior state attorney that the evidence of the sixth prosecution witness was purely circumstantial and did not point conclusively and irresistibly to the guilt of the appellant.
The appellant who was called upon to argue his appeal in respect only of counts 44 and 45 indicated to the court that he had abandoned the appeal in respect of those counts.
For these reasons the appeal is allowed in respect of counts 2 to 43 and the convictions and sentences in respect of those counts are quashed. The appellant is acquitted and discharged on those counts.
The convictions and sentences of three years’ imprisonment with hard labour on counts 44 and 45 which are not affected by the result of this appeal therefore stand.
DECISION Appeal allowed in part.
N. A. Y.
