HIGH COURT, HO
DATE: 29 JANUARY 1971
FRANCOIS J.
CASES REFERRED TO
(1) R. v. Woods [1968] 3 W.L.R. 1192; 112 S.J. 839; 133 J.P. 51; [1968] 3 All E.R.709, C.A. (2) Dadzie v. Commissioner of Police [1963] 1 G.L.R. 244, S.C.
(3) R. v. Aylett (1785) 1 T.R. 66; 99 E.R. 973.
(4) Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459, C.A.
(5) Aboah v. The Queen (1953) 12 W.A.C.A. 252.
(6) Vyras v. Commissioner of Police, Court of Appeal Cyclostyled Judgments, January-December 1958, p. 1, unreported.
(7) Awuah v. Commissioner of Police [1963] 1 G.L.R. 64, S.C.
(8) R. v. Okorodudu (1947) 12 W.A.C.A. 129.
(9) State v. Hagan [1961] 1 G.L.R. (Pt. II) 652, S.C.
(10) Hassan v. The State [1962] 2 G.L.R. 150, S.C.
NATURE OF PROCEEDINGS
APPEAL from a conviction for stealing entered by a district court. The facts are sufficiently set out in the judgment of Francois J.
COUNSEL
N. K. Wuaku for the appellant.
L. Djabatey, Senior State Attorney (with him E. Akwei-Addo, Assistant State Attorney), for the respondent.
JUDGMENT OF FRANCOIS J.
The appellant was charged as follows: [his lordship here read the statement of offence as set out in the headnote and continued:] It will be observed that what passed for the statement of offence was in fact the particulars of the offence. The offending section of the Criminal Code, 1960 (Act 29), was not stated. Learned counsel for the Republic while admitting this irregularity urged that it was not fatal since it could be cured by the general proviso contained in section 330 of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s. 7. I do not accept this argument. The law enjoins on the prosecutor to be precise as to the charge so that an accused person is aware of what he or she is to answer. The particulars as they stood despite the use of the word “steal” could apply to a host of other crimes.
In R. v. Woods [1968] 3 W.L.R. 1192 at p. 1195, C.A., Phillimore L.J. reading the judgment of the English Court of Appeal which I cite with respectful approval, said:
“It is of the first importance that a man charged with an offence should know with certainty what it is he may be convicted of. No court should be encouraged to cast around to see whether somehow or other the words of the indictment can be found to contain by some arguable implication the seeds of some other offence.”
Thus in the long and informative judgment of Adumua-Bossman J.S.C. in Dadzie v. Commissioner of Police [1963] 1 G.L.R. 244 at p. 263, S.C.
[p.420] of [1971] 1 GLR 418
there is this passage, “the essential elements of the offence,… should be communicated to an accused person in order that he might know of what he is accused.” Lord Mansfield C.J. in R. v. Aylett (1785) 1 T.R. 63 at p. 69 stated that “It is necessary in every crime that the indictment charge it with certainty and precision to be understood by everybody: alleging all the requisites which constitute the offence.”
In my view no specific offence was charged in this case and therefore this court has no jurisdiction to convict of any offence. See Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459, C.A.
Learned counsel for the appellant urged that the facts did not support a case of stealing even if it were held a proper charge had been laid. He urged that since the prosecution conceded that the appellant’s accounts had been checked at the close of the working day on Saturday, 7 June 1969, and no loss had been detected, without proof that she physically removed the money on the following Monday, 9 June, when her accounts were audited, no criminal liability should attach to her. To this learned counsel for the Republic retorted with the case of Aboah v. The Queen (1953) 14 W.A.C.A. 252.
I think however the application of this case is misconceived. The principle in the Aboah case presupposes an acceptance by the accused of the money, subject-matter of the charge, being originally in his possession and a subsequent failure to account for its disappearance. This can hardly apply where dominion is in the master’s hands as well as the accused’s. In the instant case when the post office authorities shut their offices on Saturday 7 June, the accused no longer had dominion over the money. The accused resumed dominion on 9 June when her accounts were audited. Unless she could be shown to have stolen the money within an hour of the opening on Monday she could not be held liable. This is the ratio decidendi in Vyras v. Commissioner of Police, Court of Appeal Cyclostyled Judgments, January-December, 1958, p. 1, unreported, which I shall refer to in due course. The principle in Aboah v. The Queen (supra), in my view is that mere denial by the accused is not enough if he has admitted custody of specific sums and his explanation for their disappearance could not reasonably be true. See van Lare J.S.C.’s judgment in Awuah v. Commissioner of Police [1963] 1 G.L.R. 64, S.C. The rule is precisely stated in Vyras v. Commissioner of Police (supra), at p. 2 that:
“If it is not possible, as a result of an enquiry resulting therefrom, to trace or establish how the shortage occurred then that would be a general deficiency and the storekeeper is not liable to a criminal conviction; but once there is shortage and evidence of the means whereby it was effected is established, or if there be evidence of misappropriation relating to specific transaction which contributed to the shortage the case assumes a different character and the storekeeper is liable to a criminal prosecution in respect of the specific transactions.”
[p.421] of [1971] 1 GLR 418
There is no question of a specific cash transaction in this matter; there is no evidence whatsoever to disclose how the shortage occurred, and by the rule in the Vyras case, no criminal liability should attach.
In R. v. Okorodudu (1947) 12 W.A.C.A. 129 (which was cited with approval in State v. Hagan [1961] G.L.R. (Pt. II) 652) it was said at p. 130 that:
“It is in these days generally conceded that great difficulty is imposed upon the prosecution in proving actual conversion in such cases as this, and the tendency is to restrict rather than to extend the application of the general rule from which such difficulty arises. It is clear that the mere omission to pay over moneys received by a clerk or servant does not suffice to show a conversion, nor does the mere fact of there being a deficiency as shown by the accounts, for he may have done no more than fail properly to enter items of disbursement in his books, or may have lost the money by negligence, or have spent it on his master’s account. There must, therefore, be some evidence that the particular amount specified was misappropriated at a particular date and place.”
(The emphasis is mine). In my view having regard to the fact that the appellant’s accounts were not found wanting at the close of the days’ business on Saturday, unless it is shown that prior to the auditing of her accounts on the following Monday morning, she had somehow misappropriated the sum, or the means for doing so is clearly established, no criminal liability will lie. It is curious therefore for the trial magistrate to hold that the prosecution had shown how the shortage had occurred.
The magistrate said:
“Both the auditor, the third prosecution witness and the first prosecution witness Mr. Allotey Akwei testified to the court that they checked the stock on hand against the cash on hand and found that there was a shortage. It is as simple as that. With this evidence it is my view that the prosecution have successfully discharged the burden of proving the means whereby the specific shortage arose.”
With very great respect to the learned trial magistrate, this view demonstrates a misconception of the law on the point. This misconception is further shown by the following passage from the said judgment (the emphasis is mine):
“Mr. Demanya complained of certain irregularities in the entries, but I have not been able to relate his evidence to how the shortage occurred. In any case I do not intend to consider this aspect of Mr. Demanya’s evidence, lest it might give the impression that the court is likely to be prejudiced by it. The fact of the matter is that whether or not there were irregularities (and the defendant denies this) the fact remained that on 7 June 1969 the accused balanced her account correctly and it was duly countersigned by the postmaster. Perhaps what the defence lost sight of was the fact that once the accounts were correctly balanced it was the more reason why there
[p.422] of [1971] 1 GLR 418
should not have been any shortage in cash on 9 June 1969, when the stock was checked.”
In my view the error the learned magistrate fell into was to equate the existence of a shortage with criminal culpability. His inability (to use his own words) “to relate [the] evidence to how the shortage occurred,” is precisely the finding which should have enured to the accused’s benefit.
I am of the opinion therefore that the magistrate failed to distinguish civil from criminal liability and thus erred in placing the burden of proof on the accused. On the evidence as a whole therefore I am led to hold that since no charge was disclosed and since further the evidence did not prove that the appellant had committed a criminal offence the conviction should be quashed. I shall accordingly follow the ratio in Hassan v. The State [1962] 2 G.L.R. 150, S.C. and acquit the accused.
DECISION
Appeal allowed.
Appellant acquitted and discharged.
J. D.
