Division: IN THE SUPREME COURT
Date: 30 JUNE 1964
Before: MILLS-ODOI, OLLENNU AND AKAINYAH JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant was charred before the District Court, Kumasi, jointly with one Kwame Dapaa, with two counts of stealing contrary to section 124 of the Criminal Code, 1960.1 Before the trial commenced, the said Kwame Dapaa was certified insane and admitted as a patient of the Mental Hospital; the prosecution therefore withdrew the charge against him and proceeded against the appellant alone. The trial court found the appellant not guilty of stealing but convicted him of receiving by virtue of the provisions of section 156 of the Criminal Procedure Code, 1960.2 The reasons given by the learned district magistrate for so convicting him are as follows:
“From the nature of the goods, the manner they were conveyed to the accused, his conduct before the police at Kwadaso on the date in question, his conduct in connection with this case coupled with the falsehood he tells the court, there is not the iota of doubt in my mind that the accused knew the articles conveyed to him by Kwame Dapaa were stolen.”
The appellant appealed from his said conviction to the High Court, Kumasi. After hearing preliminary submissions on behalf of the appellant as required by section 328 of the Criminal Procedure Code, 1960, the learned judge of the High Court said:
52“I am not quite clear in my mind whether there was sufficient positive evidence led before the trial court to prove the accused’s guilty knowledge in respect of a charge of receiving stolen properties upon which the accused has been convicted. In the circumstances, I propose to hear the views of the state attorney as to whether there was sufficient evidence to support the conviction on a charge of receiving.”
He therefore caused notice to be served on the Attorney-General in pursuance of section 329 of the Criminal Procedure Code, 1960. However, after he had heard full arguments on both sides, the learned judge dismissed the appellant’s appeal, holding that “on the whole of the evidence in this case the court could properly have come to the conclusion on the facts found that the case of dishonest receiving had been proved against the appellant.” The directions the learned judge gave himself upon which he came to his said conclusion are as follows:
“The accused’s room was inspected and identification (5) which he claimed was found. The evidence of the sixth prosecution witness the general police constable is very noteworthy on this point. According to him, the accused made no statement concerning the claim made by the second prosecution witness to the men’s cover cloth including exhibits B1, B2 and B4; furthermore, it must be noted that although it is a well established principle of the law that a statement made by a co-defendant not on oath in court is not evidence against the other defendant on trial the court properly accepted the evidence having regard to the evidence of the
prosecution witnesses as to what was said when Kwame Dapaa was confronted with accused in the presence of the police. There was certainly some evidence of guilty knowledge which made it more probable than not that some of the goods were delivered at the accused’s house by an arrangement with Kwame Dapaa.”
This is clear misdirection on the law. The law is that a statement made in the presence of an accused person, accusing him, albeit made by an accomplice in crime, is not evidence against the accused person except in so far as the accused by word or conduct admitted the truth of the accusation: see R. v. Christie,3 where the leading English authorities on the subject are discussed. R. v. Norton4 laid down the principle as follows:
“Where they [the statements] are admitted we think the following is the proper direction to be given to the jury: — [the jury should be directed] That if they come to the conclusion that the prisoner had acknowledged the truth of the whole or any part of the facts stated they might take the statement, or so much of it as was acknowledged to be true (but no more), into consideration as evidence in the case generally, not because the statement standing alone afforded any evidence of the matter contained in it, but solely because of the prisoner’s acknowledgement of its truth; but unless they found as a fact that there was such an acknowledgement they ought to disregard the statement altogether.”
This passage was approved in R. v. Christie (supra) as affording valuable and practical guidance.
Now, the third prosecution witness Kwasi Denteh and the fourth prosecution witness Kwabena Konadu, who gave evidence as to the accusation made by Kwame Dapaa against the appellant, said that the appellant denied all that Kwame Dapaa alleged. In those circumstances the learned judge erred in relying upon the alleged accusation made by Dapaa as evidence which proved that Kwame Dapaa took the goods to the appellant in pursuance of a prior agreement to deliver the stolen goods to him.
The sole ground upon which the appellant appealed to this court is, that there was no proof that he received the goods knowing them to have been stolen, and that the district magistrate misdirected himself in convicting him, and the judge of the High Court also misdirected himself in upholding the said conviction.
We have already shown that the learned judge misdirected himself. It only now remains to consider the decision of the trial magistrate. Learned senior state attorney supporting the conviction submitted that the doctrine of recent possession applies to this case, that the goods were found in the possession of the appellant a few hours after they had been stolen, that the appellant was not able to give a satisfactory explanation as to how they got into his possession, that when the appellant was contacted in the afternoon and asked about Kwame Dapaa who had come to him at about 8 a.m. that day, he first denied that any one had come to him, and that the trial district magistrate was satisfied that the appellant told some lies in respect of the goods. Those, he submitted, are circumstances which in law warrant the presumption that the appellant received the goods knowing them to have been stolen or appropriated by crime.
There are two distinct instances in which a charge for the offence of receiving may be made, one is where goods recently stolen are found in the possession of a person, and there is no evidence except what the person in possession himself says, as to how he came into such possession. Another instance is where the prosecution produces evidence as to the delivery of the goods to and their receipt by the person in possession. The doctrine of recent possession applies to the first instance only; it does not apply to the second instance. The essence of the offence of receiving is knowledge existing at the time goods are received that the said goods were stolen or unlawfully obtained; knowledge acquired subsequent to the time the goods got into the possession of an accused person is not enough to sustain the charge. Therefore where there is direct evidence proving the delivery to and receipt of the goods by the accused person, it is that evidence which should be examined in order to determine whether or not the circumstances of such delivery and receipt are such as to show that the accused person knew or ought, as a reasonable person, to have known that the goods were stolen or unlawfully obtained. Thus, where, for example, goods were brought in a vehicle to the door of a person in the night, and before they were unloaded and taken to his house he put out the lights at the entrance of the house so that the public might not see the delivery of the goods to the house, or where a valuable gold watch or diamond ring was sold to the accused for a few shillings, the court can conclude from that direct evidence that he had guilty knowledge otherwise he would not take steps to conceal the delivery or buy the goods at such a ridiculously low price. The principle governing proof of guilty knowledge in such a case is set out in Archbold, Criminal Pleading Evidence & Practice (35th ed.), page 836, para. 2097, and the cases therein cited, as follows:
“This is proved, either directly, by the evidence of the principal felon, which should be corroborated, or circumstantially, by proving that the prisoner bought them very much under their value (1 Hale 619) or denied their being in his possession or the like. A suspicion on the part of the prisoner that goods have been supplied to him in breach of a rationing order is not necessarily equivalent to a suspicion that the goods were stolen… Where knowledge at the time of receipt that the thing received was stolen is negatived, and the evidence is that such knowledge was obtained some days after the thing had come into the possession of the prisoner, the offence is not made out, though he still continues the possession, unless there is evidence of a fresh receipt. . .”
But where there is no evidence as to how the goods got into the possession of an accused person, and the goods are proved to have been recently stolen, the doctrine of recent possession will apply. The law dealing with the principle of recent possession is discussed in paras. 2102 and 2103 of Archbold, Criminal Pleading Evidence & Practice (35th ed.), pages 838-839. Paragraph 2103 says:
“Where the only evidence against the prisoner is that he was in possession of recently stolen property, the jury should be directed that they may infer guilty knowledge, (i) if the prisoner has offered no explanation to account for his possession of the property, or (ii) if they are satisfied that the explanation, if any has been given, is untrue. They should also be told that if an explanation has been offered which leaves them in doubt as to the knowledge of the prisoner that the property had been stolen, the offence has not been proved, and the verdict should be Not Guilty. If there is evidence that the prisoner was in possession of property recently stolen, and there is also other evidence tending to show guilty knowledge, the judge should direct the jury, so far as they are dealing with recent possession, in the same terms; and he should then go on to review the other evidence which may or may not be consistent with the explanation given by the prisoner . . .”
The English cases on the point are cited in the paragraph.
In this case there is evidence that Kwame Dapaa was the person who stole the goods and conveyed them to the appellant. The evidence as to how he conveyed them to the appellant was given by two witnesses for the prosecution, namely, the third and fourth prosecution witnesses. The third prosecution witness gave evidence that on the morning after the theft, he conveyed the said Kwame Dapaa with several parcels in his vehicle from Nkenkasu to a part of Kumasi called Suame. There Kwame Dapaa left him for a short time and later returned with a taxi driven by the fourth prosecution witness, he then collected his parcels and put them on the taxi of the fourth prosecution witness but left one big bundle tied in a bedsheet. The taxi driver also gave evidence that he was engaged by the said Kwame Dapaa at about 8.30 a.m. and he conveyed him together with some luggage from Suame to Kwadaso, another suburb of Kumasi, that Kwame Dapaa directed him to the house of the appellant, and he left Dapaa there with the luggage which consisted of two trunks, one basin and a parcel tied in a pink bedsheet. He said he left Kwame Dapaa together with the luggage in the house of the appellant. Both the third and fourth prosecution witnesses further said that on the afternoon of the same day they accompanied the police to the appellant at his workshop, they approached the appellant and the fourth prosecution witness asked about the passenger he brought to his house earlier that day, that at first the appellant denied that the taxi driver, the fourth prosecution witness, had brought anyone to his house, but later he admitted that fact, and said that he was afraid at first and that was why he denied that Kwame Dapaa had come to his house; but he added that the man had come and collected his goods, he then opened his door for them to inspect the room, and there, a parcel tied in a pink bedsheet was found on the bed, which the fourth prosecution witness identified as part of the luggage Kwame Dapaa had taken to the house that morning. He then led the police to where Kwame Dapaa was, and Kwame Dapaa was arrested.
There is nothing whatever in this evidence from which it will be reasonable to infer that the appellant knew at the time Kwame Dapaa delivered the goods to him that the said goods were stolen. If the nature of the goods — trunks and parcel tied in a bedsheet — is such as not to put the third prosecution witness and fourth prosecution witnesses who conveyed them on their guard, why should they make the appellant think that they were stolen? Again what is there about the manner in which the goods were conveyed to the appellant, conveyance by taxi, to make the appellant know that they were stolen? Again it is not an unknown occurrence in the country for a person when asked by a stranger for some one to deny knowing that person.
Now, as was earlier pointed out, the trial district magistrate based his conviction of the appellant upon the nature of the goods, the manner in which they were conveyed, the conduct of the appellant when he was first asked by police for Kwame Dapaa, and the falsehood he told in court during the trial of the case. None of these grounds support the conviction, because, as shown earlier, there is nothing in the nature of the goods, or about their conveyance by taxi or the appellant’s denial that Kwame Dapaa had come to his house, which denial he later explained, which can amount to guilty knowledge, and the fact that he told what the district magistrate considered to be lies about the goods during the trial, long after the goods had been found with him, is not guilty knowledge, see Cohen v. March.5 The appellant was therefore wrongly convicted. It is for the reasons stated above that on 12 June 1964, we quashed the conviction of and sentence passed upon the appellant and acquitted and discharged him.
DECISION
Appeal allowed.
T.G. K.
