HIGH COURT, SUNYANI
DATE: 7 MARCH 1967
BEFORE: BAIDOO J.
CASES REFERRED TO
(1) R. v. Ajani (1936) 3 W.A.C.A. 3.
(2) R. v. Howe (1836) 7 C. & P. 268; 173 E.R. 11 8.
(3) R. v. Edgar (1831) 2 Russell on Crimes (8th ed.), 1996, n.
(4) R. v. Sullvian (1887) 16 Cox C.C. 347.
(5) R. v. Sykes (1913) 8 Cr.App.R. 233.
(6) Kanu v. R. (1952) 14 W.A.C.A. 30.
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(7) R. v. Burton (1854) Dears. C.C. 282; 23 L.J.M.C. 52; 22 L.T. (o.s.) 336 18 J.P. 103; 18 Jur. 157; 2
W.R. 230; 6 Cox C.C. 293.
NATURE OF PROCEEDINGS
TRIAL of two accused on charges of stealing ¢5,208.00, the property of the Ghana Farmers Co-operative
Council at Kukuom, in which the defence submitted that the prosecution by relying on merely the
extra-judicial confessions of the accused had failed to discharge its duty. The facts are fully stated in the
judgment.
COUNSEL
A. A. Forster, Assistant State Attorney, for the State.
Berkoe for the accused.
JUDGMENT OF BAIDOO J.
This is a summary trial involving the two above-named accused persons who have been charged with stealing cash the sum of ¢ 5,208.00 the property of the Ghana Farmers Co-operative ¢5,208-00, the Property Council at Kukuom, in or about December 1965, contrary to section 124 of the Criminal Code, 1960 (Act 29). The first accused Joseph Kwame Owusu was the secretary receiver, while the second accused, William Anto, was the treasurer of the said Ghana Farmers Co-operative Council in charge of the Kukuom district. The prosecution rested its case almost, entirely on a number of voluntary statements given by the accused persons to the police. The first prosecution witness, General Police Constable, Peter Ahenkora, who conducted the investigation tendered various statements in evidence and not a single one was objected to by counsel for the accused when the statements were being tendered one after the other.
From the evidence of the-first prosecution witness, I was satisfied that each of the accused wrote down in his own hand the various statements given by him to the police voluntarily and without any form of inducement whatsoever and as each of the statements was tendered without any objection by learned counsel for the two accused persons I had no difficulty whatsoever in finding as a fact that each statement was made voluntarily and therefore was admissible. The number of statements made by the first accused alone and tendered in evidence was four, viz. exhibits A, C, D, and G, each given on a different date. As against the second accused, the prosecution tendered four statements given by him on different dates and they were exhibits B, E, F and H. The case against each accused must be considered separately, especially as each accused failed or refused to give evidence at all when called upon at the close of the case for the prosecution, and the prosecution is therefore relying on the various statements given by the accused to the police. Since the first accused did not go into
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the witness-box to repeat those statements he gave in exhibits A, C, D and G, those statements bind the first accused only and cannot be evidence against his co-accused: see R. v. Ajani (1936) 3 W.A.C.A. 3. The same consideration applies to the statements in exhibits B, E, F and H made by the second accused which bind only the second accused.
To deal first with the case as against the first accused, the first prosecution witness gave evidence that
(1) as a result of a complaint lodged to the police against the first accused by George King, the district cocoa marketing officer, and Wilson Yeboah, the senior internal auditor in charge of the Kukuom district, he proceeded to Kumasi with the said two officers to trace and arrest the first accused who had gone there;
(2) it was near the gate of the Kumasi Zongo Police Station that the first accused was seen and arrested;
(3) he, the first prosecution witness, was told that the first accused had also lodged a complaint against King and Wilson Yeboah who were therefore made to give written statements to the police at Kumasi Zongo after which he was permitted to take the first accused away to Goaso; and
(4) exhibit A was the statement the first accused wrote in his own hand to the police at Kumasi Zongo on 30 May 1966 while exhibits C, D and, G were statements the first accused gave to the police voluntarily at Goaso on 5 June 1966, 6 June 1966 and 1 February 1967 respectively.
In each of those statements the first accused admitted taking from his safe some time in December 1965, the sum of £G2,170 representing the value of 465 bags of cocoa and sharing the amount together with three other persons viz. George King, Wilson Yeboah and the second accused. According to the first accused he was persuaded by George King and Wilson Yeboah to bring the money out from the safe to be shared out because they had checked up his books and stocks of cocoa and realised a surplus of 465 bags of cocoa Which King and Yeboah insisted was profit, he, the first accused, had made in the course of the cocoa purchases from the farmers. According to the first accused, King and Yeboah threatened to report the second accused and himself (the first accused) to the farmers for stealing their cocoa and thereby realizing that enormous profit of £G2,170 if they (i.e. the first and the second accused) refused to bring out the money to be shared among the four of them; so both the second accused and himself brought the money out from the safe and the same was shared out. King, Yeboah and the second accused received £G500 each, while he (the first accused) himself received £G670 as his share. The first accused admitted that there was really never any surplus of 465 bags of cocoa as King and Yeboah made him believe because some two to three months after sharing
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the amount he remembered that he had forgotten to enter up in the Kukuom account books 214 bags of cocoa that he had bought at his sub-station at Tweneto village. When he entered the 214 bags of cocoa in the Kukuom main cocoa stock book and made a thorough check of his account books and stocks he found that there was really never any surplus at all so he informed his three confederates about the shortage in his accounts. In order that the loss might not be detected he (the first accused), acting on the instructions of King and Yeboah, issued three fictitious waybills all dated 21 April 1966 stating falsely that a total of 465 bags of cocoa had been dispatched from Kukuom, so as to cover up the loss from detection by auditors from the Government Auditor-General’s Department and thereby give themselves time to look for loans to refund the amount shared out. The first accused gave the full particulars of the said three fictitious waybills he issued in his statement, exhibit C, and also in exhibit D. They are waybills Nos. 305085, 305086 and 305087 for 190, 176 and 100 bags of cocoa respectively each dated 21 April 1966. He admitted quoting lorry Nos. AN 6394 and AG 6786 and falsely affixing his own thumbprint on them as having been thumbprinted by Kwame Buadu and Kwame Duku, the drivers in charge of the mentioned vehicles.
Despite all these admissions, learned counsel for the accused has submitted that the accused must be discharged or acquitted because the prosecution has, in his opinion, failed to prove that an amount of £G2,170 belonging to the Farmers Council was actually lost or stolen in December 1965 because the evidence of the second prosecution witness, J., W. K. Kusi, the auditor, was that on 21 April 1966, when he and two other auditors jointly chocked the accounts and stocks of the first accused they issued and signed exhibit M, their audit report, which showed no cash shortage but rather a balance of ¢50. 10 in the safe, and no stock of cocoa on hand. This was a checking in April 1966 and the evidence was of no assistance to the court since the offence is stated to have been committed in December 1965, and there was no evidence that any money was lost in December 1965.
Before answering the submission of counsel for the accused I desire to pause for a short while to consider first the evidence as against the second accused. Here also the prosecution is relying almost entirely on the second accused’s own admissions in his four statements given to the police and tendered as exhibits B, E, F and H. Exhibit B was a statement the second accused gave to the police at Kumasi Zongo on 1 June 1966 in support of the complaint the first accused made to the Kumasi Zongo police against King and Yeboah. It was written by the second accused in his own hand and from the
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first prosecution witness’s evidence and all the surrounding circumstances I find as a fact that this statement was voluntarily given to the police without any inducement of any sort. Exhibit E is another statement the second accused gave to the police, this time at Kukuom on 9 June 1966. 1 find on the evidence that exhibit E and the two other statements, exhibits F and H, were all voluntarily made by the second accused without any sort of inducement whatsoever.
The second accused’s statements also contain admissions that the amount of £G2,170 was taken out from the safe in the first accused’s office and shared out among the first accused, G. King and Yeboah who persuaded him to believe that it represented 465 surplus bags of cocoa, being illegal profit the first accused had realised from the purchases of cocoa from the farmers. According to the second accused, he had £G500 as his share but when he was informed by the first accused some three months later that there was really never any surplus because he had discovered that 465 bags of cocoa conveyed from Tweneto had not been entered up in the Kukuom books of account he agreed to refund his share and he subsequently refunded his share to the first accused. Here also, in spite of the second accused’s own admission that in December 1965, he brought out from the safe £G2,170 wrongly thinking it was profit the first accused had realised from the cocoa purchased from the farmers of the society, and got the amount shared out among his three confederates and himself, yet counsel for the accused has submitted that there is no independent proof that in December 1965, the Farmers Council at Kukuom lost £G2,170 or any amount so the accused must be discharged and acquitted.
There is some substance in the contention of the accused’s counsel that an extra-judicial confession by an accused that a crime has been committed by him does not necessarily absolve the prosecution of its duty to establish that a crime has actually been committed, and committed by the accused. There are cases where the prosecution’s case has been dismissed as it rested solely on the mere confession of the suspect that a crime has been committed by him. Thus in the case of R. v. Howe (1836) 7 C.& P. 268 the prisoner was indicted for sending a threatening letter and the only evidence against him was his own statement that he should never have written it. It was held that this was not sufficient. There is the case of R. v. Edgar (1831) 2 Russell on Crimes (8th ed.), 1996, n. where the court remarked that it is doubtful whether a crime can be established without other evidence than that of the prisoner’s confession. The Edgar case was referred to in the case of R. v. Sullivan (1887) 16 Cox C.C. 347, where the court in effect held that an extra-judicial confession, if duly made and satisfactorily proved, is sufficient alone to warrant a
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conviction without any corroboration aliunde. R. v. Sykes (1913) 8 Cr.App.R. 233 is another case which is on all fours with the Sullivan case. There are other cases falling on either side of the line and the conflict in the judicial decisions was well discussed by Coussey J.A. in his judgment given in Kanu v. R. (1952) 14 W.A.C.A. 30 at p. 32 where he stated:
“It was submitted by learned Counsel for the Crown on the authority of Rex v. Ajayi Omokaro, that a confession alone, properly proved is a sufficient ground in law for a conviction without further corroboration. According, however, to Willson Circumstantial Evidence, 7th Edition, page 120, the cases in support of this doctrine are not decisive, as in all of them there appears to have been, outside the confession, some evidence, though slight, of confirmatory circumstances and the contrary view may now be accepted as settled law. Thus in Rex v. Sykes, a case cited in the course of the argument, Ridley, J., observed, ‘The case is undoubtedly peculiar, and requires consideration because it consists of two halves, neither of which would be sufficient alone to justify a conviction. It would have been unsatisfactory to convict on the evidence had it not been assisted by the confession, and probably it would have been unsatisfactory if the conviction rested on the confessions only, without the circumstances which make it probable that the confessions were true,’ and further on the learned Judge suggests the tests to be applied to a man’s confession — Is there anything outside it to show it is true? Is it corroborated? Are the statements made in it of fact, true as far as they can be tested? Was the prisoner one who had the opportunity of committing the murder? Is his confession possible?
Is it consistent with other facts which have been ascertained and which have been, as in this case, proved?”
In the Kanu case the two appellants had given cautioned statements to the police each admitting the murder of the deceased. At the trial, however, each appellant denied making the statement but the trial court found as a fact that each appellant voluntarily made his cautioned statement admitting the offence.
The West African Court of Appeal held as appears in the headnote at p. 30 that:
“The confession of murder in each case was free and voluntary and in itself fully consistent and probable,
and the inculpating statements were corroborated by several facts testified to by witnesses for the Crown—which showed that the confessions were true. Per curiam: It is desirable to have, outside the confession, some evidence, be it slight, of circumstances which make it probable that the confession was true.”
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Another case worthy of reference is the case of R. v. Burton (1854) 6 Cox C.C. 293. The brief facts of the case as stated in the headnote were as follows: On the first floor of a warehouse a large quantity of pepper was kept in bulk. The prisoner was met coming out of the lower room of the warehouse, where he had no business to be, having on him a quantity of pepper of the same description with that in the room above.
On being stopped, he threw down the pepper and said, “I hope you will not be hard with me.” From the large quantity in the warehouse, it could not be proved that any pepper had been taken from the bulk. It was objected that as there was no direct proof that any pepper had been stolen, the judge was bound to direct an acquittal. It was held that without such direct proof of a loss, there was abundant evidence to warrant the conviction of the prisoner. From the evidence adduced before me in this case I find sufficient corroboration which confirms that the confession of each accused is true. The three waybills Nos. 305085, 305086, and 305087 dated 21 April 1966 were proved to have been actually issued. The waybills book containing a copy of each of the three waybills was tendered in evidence as exhibit L and I am satisfied on the evidence of the second prosecution witness the auditor J. W. K. Kusi, that out of the numerous waybills he discovered (during his check or stock-taking) to be unreceipted, all the others have been duly traced except those three particular waybills covering altogether 465 bags of cocoa. The accused persons had every opportunity of stealing
the amount and from the evidence of the first prosecution witness, General Police Constable Ahenkora that the first accused voluntarily paid to the Goaso police £G300 and the second accused £G400 as refund of part of their respective shares of the amount they stole, which sums were tendered in evidence as exhibits J and K respectively, I have not the least doubt that the two accused did jointly steal the amount and that their confessions are true.
Neither of the accused persons during the trial gave any evidence at all, and in the absence of any contradictory evidence, the prosecution’s case stands unchallenged. It must at this stage be pointed out that even though each accused person, when formally charged with this offence, stated in his voluntary statement to the police, tendered as exhibits G and H respectively, that he had already given to the court his statement, I have ruled out that evidence, as the statement or evidence given by each accused in the
other separate trial against the two suspects, Yeboah and King, alleged to be their confederates in the crime are so damaging and prejudicial. Although both cases were tried before me I cannot use evidence adduced in a different case to convict the accused in this case and I have therefore addressed
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my mind only to such evidence as has been duly established in this case. On the totality of the evidence adduced in this case I find all the ingredients of the crime of stealing established beyond reasonable doubt and up to the hilt against each accused. I therefore find each accused guilty and convict each accused of the offence of stealing ¢5,208.00, the property of the Ghana Farmers
Co-operative Council. The first accused is sentenced to four years’ imprisonment with hard labour and the second accused is sentenced to three years’ imprisonment with hard labour. I order under section 147 (b) of Act 254 that the two accused should refund jointly and severally £G1,470 to the State Cocoa Marketing Board, the successor of the former Ghana Farmers Co-operative Council. Exhibits J and K totalling £G700 to be paid to the State Cocoa Marketing Board.
DECISION
Order accordingly.
S. E. K.
