COURT OF APPEAL
DATE: 14 APRIL 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO(1) R. v. Thompson [1893] 2 Q.B. 12; 62 L.J.M.C. 93; 69 L.T. 22; 57 J.P. 312; 41 W.R. 525; 9 T.L.R. 435; 37 S.J. 457; 17 Cox C.C. 641, 5 R. 392, C.C.R. [p.220] of [1967] GLR 219
(2) Hill v. Baxter [1958] 1 Q.B. 277; [1958] 1 All E.R. 193; 122 J.P. 134; 102 S.J. 53; 56 L.G.R. 117; 42 Cr.App.R. 51, D.C.
(3) R. v. Goldsmith (1873) 12 Cox C.C. 594.
(4) R. v. Smith (1873) 12 Cox C.C. 597.
NATURE OF PROCEEDINGS
APPEAL against conviction on a charge of stealing. The facts are fully set out in the judgment of the court.
COUNSEL
I. K. Abban (Brodie-Mends with him) for the appellants.
K. A. Sekyi, Senior State Attorney, for the respondent.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J. A. delivered the judgment of the court. In this case the appellants, together with three others, were charged with conspiracy to steal and with stealing the sum of £G2,325 (¢5,580.00), the property of the complainant, one Alhaji Wajeb Salmanu Olaiya Jaji. The trial was in the Central Circuit Court, Cape Coast, and on 20 May 1966 the two appellants were convicted on both charges and sentenced accordingly, whilst the other three accused persons were acquitted and discharged. The learned judge of the circuit court made an order that the amount of £G908 6s. 8d. paid by the father of the first appellant, and the sum of ¢130 found on the driver of the first appellant, should be regarded as money paid in respect of the first appellant and be returned to the complainant. Against their convictions the appellants have now appealed to this court on a number of grounds. In one of these grounds it is alleged that the restitution order made by the learned circuit court judge, that the sum of £G908 6s. 8d. paid by the first appellant’s father should be paid to the complainant, is erroneous. The facts, so far as they are relevant to the only question of substance in this appeal, are that on Monday, 4 October 1965, the complainant, who was driving his Volkswagon car from Cape Coast to Accra, was involved in an accident at mile 49 between the Mankesim and Winneba junction. He was seriously injured and became unconscious. Amongst those who arrived at the scene were the first and second appellants. The first appellant was the District Commissioner of Breman Asikuma, and the second appellant was the district chairman of the Breman Asikuma branch of the proscribed Convention Peoples’ Party. They arrived in the same car, and riding with them were the fourth accused, district secretary of the party, and the fifth accused, driver for the first appellant. Later, the third accused, who was travelling from Cape Coast, also arrived at the spot. Before the arrival of these persons at the scene of the accident, the complainant had been conveyed by another vehicle to
[p.221] of [1967] GLR 219
the Saltpond hospital. In the wreckage of the complainants’ car was found a Bank of West Africa (B.W.A.) money-bag containing coins and also a scarf which was tied around several currency notes.When the scarf was untied, it was discovered by all the witnesses present that it contained several currency notes of £G1, £G5 and cedi denominations. The scarf was retied, and the money given to the first appellant to take to the Apam Police Station. The appellants, together with the other accused persons, sat in the first appellant’s car and drove towards Apam. On their arrival at the Apam Police Station the currency notes were no longer tied in the scarf, but were loose in the hands of the first appellant, and the old notes (£G1 and £G5 denominations) had disappeared. The cedi notes were counted at the police station and found to total ¢1,200. Since the total amount discovered in the wrecked car of the complainant was not checked at the scene of the accident the exact amount was not known until the complainant was contacted at the Saltpond hospital where he said that the total amount of money he was carrying at the time of the accident was £G3,000. Consequently, the police started investigations, and in a statement obtained from the first appellant he said that the total amount that was handed over to him at the scene of accident was £G759 3s. 2d., made up of £G73 3s, 2d. in coins and ¢1,200.00 (£G500) in notes. Later when he was arrested at Koforidua and brought to the Asikuma Police Station he was seen chewing two currency wrappers marked “¢250.00. “ When his house was searched similar wrappers were found both in his own room and that of his wife, and documents belonging to the complainant were also found in his drawer. During the search, rubber strings similar to those binding the currency notes at the scene of the accident were found in the back of the first appellant’s car. When the second appellant was arrested he confessed in an oral statement he made to both Constable Anderson and Superintendent Amewode that the stolen money was shared with them by the third accused, his share being £G320. He said that he had used £G200 out of it to arrange a loan of £G5,000 from the Central Region Timber Producers Co-operative Society. The second appellant further admitted that he had given the sum of £G103 6s. 8d. out of the remaining amount of his share as a loan to the father of the first appellant. After his confession the second appellant begged that he be allowed to go to Winneba with the first appellant and the first appellant’s father to collect the third accused’s share of the stolen money. At Winneba it was agreed that they should all meet at Nyarkrom the same evening between 10. p.m. and 11 p.m. when the third accused would refund his share. Contrary to their expectation the third accused did not turn up as arranged. Both the first and second appellants later
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made cautioned statements admitting their visits to Winneba and Nyarkrom. Whilst police investigations were proceeding the father of the first appellant paid to Superintendent Amewode the sum of £G805 with the explanation that he was paying the amount in order to save any damage to the reputation of his son. The second accused also paid the sum of £248.00 or; £G103 6s. 8d. to the superintendent at the same time and said that it was a loan to the father of the first appellant. The father of the first appellant was not prosecuted for attempting to corrupt the police, and there can be no doubt, therefore, that these payments were regarded more than anything else as reparations for the damage suffered by the complainant resulting from the alleged crime committed by the first appellant. In this appeal the only argument of merit which Mr. Abban, counsel for the appellants, advanced was in support of the allegation made in ground (1) of the additional grounds of appeal that the learned circuit court judge misdirected himself on the burden of proof that rested on the prosecution to establish that the statement made by the second appellant was voluntary. Mr. Abban cited the case of R. v. Thompson (1893) 17 Cox C.C. 641, C.C.R. and submitted that it was not proved affirmatively that the statement was voluntary, and that the learned circuit court judge appeared by his ruling on the admissibility of the statement to have shifted the burden on the defence. Whilst we agree with Mr. Abban that it is the duty of the prosecution to lead evidence which should satisfy the trial court beyond reasonable doubt that a statement taken from an accused person was made voluntarily, we are unable to accede to his further submission that the learned circuit court judge misdirected himself either on the law to be applied or onthe proper procedure. In this case the police witness when tendering the statement of the second accused said:
“On that same date 18 October 1965, I obtained a voluntary statement on caution from the second accused M. K. Quansah. I did not use any inducement, nor threats; it was a voluntary statement made in Fante, and I took it down in English. I do understand Fante. I read it over to him in Fanti and he signed all the pages. This is the statement . . .” At this stage counsel for the second appellant objected to the tendering of the statement in evidence on two grounds, one being that the signatures on the pages were obtained by threats and inducements. The learned circuit court judge thereupon asked the assessors to withdraw and he held a trial within a trial, and ruled on the objection in these words:
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“The allegation that the second accused’s statement was taken by duress or threats and by inducement must be established by the party alleging it. The threat was alleged to be a threat of a detention order but with all due respect to counsel making the allegation his client deliberately or otherwise evaded to establish the allegation. From the second accused’s evidence it does not appear that any statement at all was obtained from him; which statement therefore was he threatened to make? It is strange that a person of his standing and/or position must be made to sign a statement or documents of which he had not known the contents. The second accused on this issue, and I must emphasise, that so far on this issue only, does not make the mark at all; from the way he was shivering in the witness box and his numerous conflicts and contradictions in his evidence, he portrays himself in so far as this issue is concerned as nothing but a calculated liar. There is not an atom of truth in his allegation which has not created the slightest reasonable doubt in my mind.” In our opinion there is nothing in this passage to suggest that the learned circuit court judge had shifted the onus of proving the voluntariness of the second appellant’s statement on the defence. It is clear that where in a criminal trial the accused wishes to show that the facts on an issue deposed to by witnesses for the prosecution ought not to be accepted because they are untrue, the accused can demonstrate the falsity of the evidence either through cross-examination, or by himself producing evidence to contradict the evidence for the prosecution. If he is put in the position where he adopts the second alternative then he assumes the burden, the evidential burden, to introduce some evidence in order to raise a doubt in the mind of the court about his guilt. As Devlin J. (as he then was) said in Hill v. Baxter [1958] 1 All E.R. 193 at p. 196: “it is well established that the burden of proof would start with and remain throughout on the defence. But there is also recognised in the criminal law a lighter burden which the accused discharges by producing some evidence, but which does not relieve the prosecution from having to prove in the end all the facts necessary to establish guilt.” We are satisfied that in his ruling contained in the passage quoted from the judgment, the learned circuit court judge was merely examining the evidence of the second appellant directed towards the discharge of the evidential burden that rested on him. The
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learned circuit court judge came to the conclusion, as expressed in the last sentence in the passage quoted above, that he had failed to discharge that burden and we think he was right. We find no substance in any of the other grounds of appeal filed and argued, and in our opinion the appeals against convictions must fail. As to the appeal against the order for the payment of the money to the complainant, Mr. Abban submitted that section 146 of the Criminal Procedure Code, 1960 (Act 30), must be interpreted strictly, and heargued that if that was done it would be found that the order was erroneous. Mr. Sekyi, counsel for the State, thought that the matter was not free from doubt, but he submitted, after referring to sections 144, 145, 146 and 147B of the Criminal Procedure Code, 1960 (Act 30), that the payments having been made on behalf of the first appellant, they should be regarded as moneys recovered from the first appellant himself. The power of the court to make an order for restitution is conferred by statute, and, this is adumbrated in the following provisions of our Criminal Procedure Code, 1960 (Act 30): “145. Where, upon the apprehension of a person charged with an offence, any property is taken from him, the Court before which he is charged may order that the property or a part thereof be restored to the person who appears to the Court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as the Court may direct, or that it be applied to the payment of any costs or compensation directed to be paid by the person charged. 146. Where any person is convicted of having stolen or having obtained any property fraudulently or by false pretences, the Court convicting him may order that the property or a part thereof be restored to the person who appears to it to be entitled thereto … 147. (1) Where sentence is imposed for an offence involving dishonesty and any property including money is not recovered, the court on sentencing the offender, on its own motion or on the application of the prosecutor or the victim of the offence, may make an order for the return by the offender to the victim of the offence of the property not recovered and for payment, in default, of the value of any property not returned. (2) An order under this section shall be deemed to be an exercise of the civil jurisdiction of the court in an action between the victim of the offence as plaintiff and the offender as defendant and shall be enforceable in the same manner and be subject to the like appeal as are orders for the return of chattels or of money.
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(3) In case of dispute as to the value of the property the issue shall be tried by the court in the same manner as in a civil action. (4) The court shall have jurisdiction under this section notwithstanding that the value of the property involved exceeds the limits of the civil jurisdiction of the court. (5) An order under this section may be enforced either during the term of the sentence imposed, or at any time within ten years after the expiry thereof.” It will be seen at once that the power to order restitution under our law is discretionary, and as in all cases where such power is conferred, the discretion must be exercised in accordance with reason, justice, and basic legal principles. In our view the section which appears to be relevant in this case is section 146, and construing this section “amply and beneficially “we think that an order of restitution can only be made in respect of property which is the subject-matter of the criminal charge upon which an accused person has been convicted. The subject-matter must have been obtained either by stealing or by false pretences or by some other fraudulent means. The power to make an order of restitution can only be made by the court convicting the accused person. It seems to follow therefore that only property which is specified in a charge or an indictment and clearly identified at the trial can be made the subject of a restitution order: see R. v. Goldsmith (1873) 12 Cox C.C. 594; and R. v. Smith (1873) 12 Cox C.C. 597. It may well be, we think, that if the accused has disposed of stolen property, the court may make a restitution order in respect of the proceeds which can be identified in his possession. Difficulties may arise, however, where the charge upon which the accused is convicted is defrauding by false pretence, in which the subject-matter of the charge has been acquired by a third party in good faith and for value. In such a case the order of restitution can still be made if there is evidence that the victim or former owner has disaffirmed thetransaction which led to the transfer of the property. But the court ought not to exercise its discretion to order restitution where there are competing claims to ownership by third parties since the civil courts are better suited to deal with questions of disputed ownership. In this case there is no evidence that the amounts paid by the father of the first appellant formed part of the money stolen by the appellants in respect of which they were convicted; indeed, the evidence rather shows that the contrary is the case, for they were loans obtained from other sources. For this reason we think that the order of restitution of the amounts paid to the police by the father of the first appellant was made without jurisdiction.
[p.226] of [1967] GLR 219
For the above reasons we would dismiss the appeals against convictions and amend the circuit court judge’s order by setting aside his order whereby restitution of the sum of £G908 6s. 8d. paid by the father of the first appellant was to be made to the complainant.
DECISION
Appeals against convictions dismissed.
Restitution order set aside.
T. G. K.
