DIVISION: IN THE SUPREME COURT
DATE: 1ST NOVEMBER, 1963
BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.
CASES REFERRED TO
(1) R. v. Dwyer [1925] 2 K.B. 799; 132 L.T. 351; 18 Cr.App.R. 145, C.C.A.
(2) R. v. Williams (1912) 8 Cr.App.R. 84, C.C.A.
(3) R. v. Cartwright (1914) 10 Cr.App.R. 219, C.C.A.
(4) R. v. Chapman (1911) 7 Cr.App.R. 53; 28 T.L.R. 81, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against a conviction for fraud by false pretences entered by the Circuit Court, Takoradi. The
facts are fully set out in the judgment of the Supreme Court.
COUNSEL
Appellant in person.
D. F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF MILLS-ODOI J.S.C.
Mills-Odoi J.S.C. delivered the judgment of the court. We allowed this appeal at the last sitting, and now
give our reasons for so doing. The appellant was, until the 18th October, 1961, an employee of the Ghana National Construction
Corporation (hereinafter referred to as the corporation) and stationed at Takoradi. His duties included the
preparation of orders for the supply of goods. According to the practice of the corporation, the orders
were signed by the manager and sent to the suppliers whereupon the goods were supplied and delivered to
the store-keeper of the corporation who signed a receipt for them. At the end of the month the suppliers
sent a debit note to the corporation whose accountant authorised payment after satisfying himself that all
was well. On a particular date not specified on the record, the manager of Allied Business Company sent to the corporation a bill for the sum of £G15 16s., being the cost of three cases of nails which his company had supplied to the corporation on the 27th October, 1961, on the strength of an order from the said corporation dated the 25th October, 1961, and numbered 6354. The accountant of the corporation whose duty it was to authorise payment called for the storekeeper’s books in order to satisfy himself that the
nails had in fact been delivered to the corporation. He did
[p.382] of [1963] 2 GLR 380
not find any record indicating that they had been received. He therefore called for the order book from
which order form number 6354 was prepared; but he could not find it either. He became suspicious and
reported the matter to the manager of the Takoradi branch of the corporation, because to the best of his
knowledge the corporation did not transact any business with the Allied Business Company.
The evidence on record did not show that the matter was reported to the police. Nevertheless, the
appellant was arrested and prosecuted at the Circuit Court, Takoradi, on charges of forgery of the order
No. 6354 dated the 25th October, 1961 and stealing the three cases of nails valued at £G15 16s. He was
acquitted and discharged on the charge of forgery, but was convicted of fraud by false pretences in
respect of the other charge and sentenced to two years imprisonment with hard labour. He then appealed
to this court.
The prosecution’s case against the appellant depended solely on the evidence of the manager of the Allied
Business Company who deposed at the trial, inter alia, as follows:
“On the 27th October, 1961, the accused came to our store and asked the price of nails and I told him and he
said he would return in the afternoon with order to collect the goods. It was the first time I had seen him. He
said he was from Ghana National Construction Corporation. In the afternoon he came and gave an order for
Ghana National Construction Corporation for the supply of nails. I gave him the nails, three cases of them.
Identification one is the order he brought. I believed the accused was from Ghana National Construction
Corporation and had a genuine order. The accused came alone, the cost of the nails was £G15 16s. I prepared
a debit note in duplicate which the accused signed and I gave him the original. This is the copy and is dated
the 27th October, 1961, numbered 2351 for three cases of nails, identification 2. The accused brought a
mammy truck which took the nails away. At the end of the month I sent my bill to Ghana National
Construction Corporation and then the case arose.”
The appellant’s defence was a complete denial of the fact that he visited the store of the Allied Business
Company on the 27th October, 1961, and presented the order form No. 6354 for the supply of three cases
of nails on the representation that he was, at the material date, an employee of the corporation. He denied
further that he signed the debit note (identification 2) and took delivery of the three cases of nails. He said
when he was dismissed, and before he left the premises of the corporation, he handed over all the books
in his possession to the corporation.
The crucial matter that fell for the determination of the trial court was whether the appellant was the
person who visited the store of Allied Business Company and transacted business with the manager on the
27th October, 1961. According to the manager of the Allied Business Company, he saw the appellant for
the first time on the 27th October, 1961, when he (appellant) asked him for the price of nails and when he
returned again the same afternoon and gave him the order form (identification 1) for the
[p.383] of [1963] 2 GLR 380
supply of nails. Relying on identification 1 as genuine, he prepared a debit note in duplicate which the
appellant signed. The latter was given the original and he left with the three cases of nails.
It is obvious that the prosecution was relying not only on the personal impression which the manager formed of the appellant, as the person with whom he had had business transaction, but also on the alleged signature of the appellant on the debit note (identification 2) showing specifically the person to whom the nails were actually delivered for the corporation.
In an attempt to prove the signature on the debit note (identification 2), the prosecution called, as a
witness, the manager of the corporation, Takoradi Branch, under whom the appellant had worked for a
period of eight months and who was familiar with his handwriting. But this witness was unable to connect
the appellant with the order form (identification 1) or with the debit note (identification 2). At the trial he
stated, inter alia, as follows:
“I cannot tell whose writing is on the order…There are two signatures on identification 2, but I cannot tell
whose signature that is…I know the writing of the accused fairly well his signature I do not know.”
The accountant of the corporation under whom the appellant had worked at Takoradi for a period of six
weeks was also familiar with the appellant’s handwriting. Nevertheless, his evidence was limited to the
order form (identification 1) and did not go far enough to connect the appellant with the signature on the
debit note (identification 2).
In the circumstances the prosecution did not tender in evidence the debit note which had already been
identified at the trial and on which they intended to rely to support the oral evidence of the manager of the
Allied Business Company in proving the stealing charge against the appellant. It is not unlikely that if the
document had been tendered in evidence it would have supported the case for the defence.
It is desirable that when documents which the prosecution intend to rely on in support of their case are
identified at the trial they should be tendered in evidence, even though they tend to support the case for
the defence. For it is not the duty of the prosecution to secure conviction of innocent persons, but it is
their duty to behave, as Lord Hewart C.J. stated in R. v. Dwyer,1 “with exemplary fairness, remembering
always that the Crown has no interest in securing a conviction, but has an interest only in securing the
conviction of the right person.”
At that stage therefore the prosecution was left only with the viva voce evidence of the manager of the
allied Business Company to substantiate the charge of stealing, namely, the personal impressions which
the said manager formed of the appellant on the 27th October, 1961, as being the person who visited his
store and received the nails for the corporation. But the manager stated that that occasion was the first
time he ever saw the appellant. Indeed, the record does not show that he had identified
[p.384] of [1963] 2 GLR 380
the appellant shortly after the events of the 27th October, 1961. It was during the trial on the 4th
February, 1962, when the manager was giving evidence that he, for the first time since the transaction
which took place in his store on the 27th October, 1961, saw the appellant in the dock and said he was the
person who signed identification 2 and collected the nails for the corporation. For what else was the
manager expected to say, but to refer to the appellant who was alone in the dock and whose identity was
the subject-matter of the trial as the person he saw on the date in question. It is undesirable for the police
to do nothing about the question of identification until an accused is brought before the trial court and
then for a witness for the prosecution to be called upon to identify him. We vehemently deplore this
method of identification not only as unsatisfactory but also as being prejudicial to the case of the
appellant.
In R. v. Williams2 where the case for the prosecution at the trial evidently rested on the identification by a
prosecution witness the Court of Criminal Appeal held that the identification was not properly carried out,
because the witness saw the appellant alone in a police station and did not pick him out from among other
men. Lord Alverstone C.J., who delivered the judgment allowing the appeal and quashing the conviction of the appellant said3: “In the opinion of the court, the mode adopted was not a proper one, and therefore
the identification cannot be said to have been satisfactory.” See also R. v. Cartwright4 and R. v.
Chapman5 In the light of the facts stated above we are of the opinion that the identification of the appellant at the
trial was most unsatisfactory , and that the evidence upon which the appellant was convicted did not reach
the standard of proof required in criminal law which is a sine qua non in criminal trials.
We are also of the opinion that the trial was not properly conducted, in view of the fact that the record
does not show that the appellant was charged. The police officer who conducted the enquiries and whose
evidence would have thrown more light on the case for the prosecution was not called to give evidence at
the trial.
It was for these reasons that we allowed the appeal, quashed the conviction and directed that a judgment
and verdict of acquittal be entered.
DECISION
Appeal allowed.
K.T.
