APALOO AND OTHERS v. THE REPUBLIC [1975] 1 GLR 156

COURT OF APPEAL, ACCRA
Date: 27 JANUARY 1975
AZU CRABBE C.J SOWAH AND ARCHER JJ A

CASES REFERRED TO
(1) R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A.
(2) Rice v. Howard (1886) 16 Q.B.D. 681; 55 L.J.Q.B. 311; 34 W.R. 532; 2 T.L.R. 457, D.C.
(3) R. v. Fraser and Warren (1956) 40 Cr.App.R. 160, C.C.A.
(4) R. v. Golder; R. v. Jones; R. v. Porritt [1960] 1 W.L.R. 1169; [1960] 3 All E.R. 457; 124 J.P. 505; 104 S.J. 893; 45 Cr.App.R. 5, C.C.A.
(5) Wallace-Johnson v. R. (1939) 5 W.A.C.A. 56; [1940] A.C. 231; 109 L.J.P.C. 33; 56 T.L.R. 215; 84 S.J. 149; [1940] 1 All E.R. 241, P.C.
(6) Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156; [1944] 2 All E.R. 139; 113 L.J.P.C. 65; 171 L.T. 266; 60 T.L.R. 456, P.C.
(7) R. v. Adebanjo (1935) 2 W.A.C.A. 315.
(8) Attah v. The Republic, Court of Appeal, 1 May 1970, unreported.
(9) Kpekata v. Commissioner of Police [1963] 1 G.L.R. 398, S.C.
(10) Phelan v. Back [1972] 1 W.L.R. 273; [1972] 1 All E.R. 901; 56 Cr.App.R. 257, D.C.
(11) State v. Ali Kassena [1962] 1 G.L.R. 144. S.C. [p.160] of [1975] 1 GLR 156
(12) R. v. Patterson [1962] 2 Q.B. 429; [1962] 2 W.L.R. 496; [1962] 1 All E.R. 340; 126 J.P. 126; 106 S.J. 156; 46 Cr.App.R. 106, C.C.A.
(13) Asamoah v. The State [1962] 2 G.L.R. 207, S.C.
(14) Sokoto v. The Republic [1972] 2 G.L.R. 372, C.A.
(15) Republic v. Jantuah, High Court, 16 February 1968, unreported; digested in (1968) C.C. 87.
(16) R. v. Chapman [1973] Q.B. 774; [1973] 2 W.L.R. 876; [1973] 2 All E.R. 624; 57 Cr.App.R. 511, C.A.
(17) Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965; 100 S.J. 566, P.C.
(18) R. v. Christie [1914] A.C. 545; sub nom. Director of Public Prosecutions v. Christie, 83 L.J.K.B.
1097; 111 L.T. 220; 78 J.P. 321; 30 T.L.R. 471; 58 S.J. 515; 24 Cox C.C. 249; 10 Cr.App.R. 141, H.L.
(19) Bessala v. Stern (1877) 2 C.P.D. 265; 46 L.J.C.P. 467; 37 L.T. 88; 42 J.P. 197; 25 W.R. 561, C.A.
(20) Nyame v. The Republic [1971] 2 G.L.R. 140, C.A.
(21) Director of Public Prosecutions v. Kilbourne [1973] A.C. 729; [1973] 2 W.L.R. 254; [1973] 1 All E.R. 440; 57 Cr.App.R. 381, H.L.
(22) Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 2 W.L.R. 343; [1954] 1 All E.R. 507; 118 J.P. 222; 98 S.J. 161; 38 Cr.App.R. 11, H.L.
(23) R. v. Hunt (1965) 109 S.J. 738; [1965] Crim. L. R. 607, C.C.A.
(24) R. v. Baskerville [1916] 2 K.B. 658; 86 L.J.K.B. 28; 115 L.T. 453; 80 J.P. 446; 60 S.J. 696; 25 Cox C.C. 524; 12 Cr.App.R. 81, C.C.A.
(25) Kweku Mensah v. R. (1951) 13 W.A.C.A. 140.
(26) R. v. Stoddart (1909) 73 J.P. 348; 25 T.L.R. 612; 53 S.J. 578; 2 Cr.App.R. 217, C.C.A.
(27) Yirenkyi v. The State [1963] 1 G.L.R. 66, S.C.
(28) Addai v. The Republic [1973] 1 G.L.R. 312, C.A.
(29) Boateng II v. The Republic [1974] 1 G.L.R. 214, C.A.
(30) Azametsi v. The Republic [1974] 1 G.L.R. 228, C.A.
(31) R. v. Lewis (1973) 57 Cr.App.R. 860, C.A.
(32) Customs and Excise Commissioners v. Harz [1967] 1 A.C. 760; [1967) 2 W.L.R. 297; [1967] 1 All E.R. 177; 131 J.P. 146; 111 S.J. 15; 51 Cr.App.R. 123, H.L.
(33) Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13; 113 L.J.K.B. 394; 171 L.T. 78; 109 J.P. 1; 60 T.L.R. 461; 88 S.J. 255; 42 L.G.R. 263; sub nom. R. v. Stirland 30 Cr.App.R. 40, H.L.
(34) R. v. Richards [1967] 1 W.L.R. 653; [1967] 1 All E.R. 829; 131 J.P. 283; 111 S.J. 254; 51 Cr.App.R. 266, C.A [p.161] of [1975] 1 GLR 156
(35) McGreevy v. Director of Public Prosecutions (1973) 57 Cr.App.R. 424, H.L.
(36) R. v. Sims [1946] K.B. 531; [1946] 1 All E.R. 697; [1947] L.J.R. 160; 175 L.T. 72; 62 T.L.R. 431; 90 S.J. 381; 31 Cr.App.R. 158, C.C.A.
(37) Kwashie v. The Republic [1971] 1 G.L.R. 488, C.A.

NATURE OF PROCEEDINGS
APPEAL by the first appellant against conviction and sentence and by the other appellants against sentence only for offences under the Currency Act, 1964 (Act 242). The facts are fully stated in the judgment.

COUNSEL
U. V. Campbell (with him Dankwa) for the first appellant.
Second, third, fourth, fifth and sixth appellants in person.
Hayfron-Benjamin, Senior State Attorney, for the respondent.

JUDGMENT OF AZU CRABBE C.J.
Azu Crabbe C.J. delivered the judgment of the court. On 3 May 1973, the six appellants in this case were convicted before Sarkodee J. and a jury at the criminal session held at Accra, on separate counts in an indictment charging them with offences under the Currency Act, 1964 (Act 242), and were sentenced to various terms of imprisonment. The first appellant, Modesto Kwasi Apaloo, was charged on five counts, namely:
(1) Possession of implements for making notes, contrary to section 19 (a) (ii) of the Currency Act, 1964 (Act 242).
(2) Abetment of forgery, contrary to section 32 of the Currency Act, 1964 (Act 242).
(3) Possessing forged notes, contrary to section 18 (2) of the Currency Act, 1964 (Act 242).
(4) Possessing implements forging notes, contrary to section 19 (c) of the Currency Act, 1964 (Act 242).
(5) Possessing implements for forging notes, contrary to section 19 (c) of the Currency Act, 1964 (Act 242).
The appellants, Edward Kwame Danquah, Adzo Adonu and Paul Komla Gbede, were each charged on a separate count with possessing forged notes contrary to section 18 (2) of Act 242, whilst the fourth appellant, Peter Kwashie Gaewonoo, was also charged on two counts under section 18 (2). The fifth appellant, Kofi Gbede, was alone charged with possessing paper intended to resemble a note, contrary to section 19 (a) (i) of Act 242.
When the trial began on 6 February 1973, there were seven accused persons before the court, but the second accused, Edmund Ampadu, absconded when the fifth prosecution witness had not concluded his evidence, and consequently on 27 February 1973, his name was deleted from the bill of indictment upon an application by the prosecution. In the opinion of this court, however, the background of Ampadu is an important and relevant factor to consider in appraising the evidence in relation to counts (1), (2), (3), (4) and (5). Ampadu was introduced to the first appellant as one who wanted a job. He was at that time on probation as
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a result of his conviction at the circuit court in a counterfeit currency case and was reporting to the police. The first appellant employed him as a salesman for his cement business, but Ampadu did not in fact do anything in connection with that business. On or about 15 June 1972, the first appellant informed the Department of Social Welfare about this fact, and the department expressed its gratitude to him in a letter (exhibit 7) dated 22 June 1972. Shortly afterwards, Ampadu was arrested at Jasikan and was charged with uttering forged currency notes. When the first appellant heard about this, he sent George Bakuyeya (the fifth prosecution witness) to Jasikan to find out what was happening to Ampadu. George Bakuyeya returned and gave a certain document relating to a criminal case to the first appellant, who engaged the services of a lawyer in Ho to assist Ampadu in his defence. Ampadu’s case was committed to the High Court, Ho, but he was released from custody in July. In spite of Ampadu’s proclivity for currency offences which it appears, was now well-known to the first appellant, the first appellant retained him in his employment after his release from custody. In view of the difficulties in which Ampadu was, the first appellant asked one Charles Kwashie to find another printer for him. Kwashie and one Acquah introduced a young man called Jonathan When to the first appellant. The different roles played by Kwashie, Acquah and Jonathan When in the criminal venture which led to this prosecution will be referred to later in this judgment.
The relevant circumstances connected with the charges for which the appellants were convicted can be briefly stated. During August 1971, one Jory Adu (the sixth prosecution witness) advertised for sale in the Daily Graphic a Multilith printing machine model 1250. The first appellant noticed this advertisement and he sent George Bakuyeya (the fifth prosecution witness) to see Jory Adu about the machine. Negotiation ensued, and eventually it was sold to the first appellant for the sum of ¢3,000.00. Some time in April 1972, the machine was removed from the premises of Jory Adu by George Bakuyeya upon the instructions of the first appellant, and taken to 32 Farrar Avenue, Accra, where the first appellant had his office. According to the first appellant, he had then fully paid for it. Three days after the delivery of the machine, the first appellant found it unserviceable, and so he called in one Kwashie to arrange to have it repaired. After the repairs had been completed, the machine was loaded on a truck and driven to the first appellant’s sugar factory at Awudome in Accra. The first appellant shortly afterwards arrived at the sugar factory and instructed that the machine should be taken to Kwashie’s house. This was done, and for the meantime nothing more was heard about the machine. George Bakuyeya was on the lorry that carried the machine. About a month later one Jonathan When was introduced to the first appellant by Kwashie. Jonathan When is a printer. According to George Bakuyeya, the first appellant instructed him, Kwashie and Jonathan When to go to Swedru to see one John Kofi Acquah (the fourteenth prosecution witness). On seeing Acquah at Swedru, they
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were led by him to a village, called Manso, which is three miles from Swedru. It was here that George Bakuyeya saw the real destination of the printing machine, which the first appellant had bought from Jory Adu in April. Acquah gave to Jonathan When a packet containing a paper and aluminium plates. Nothing more happened at the village that day and the party returned to Accra. Some time later Kwashie took Edmund Ampadu to Swedru, and they were away for three days. On their return to Accra, the first appellant sent them back to Swedru, and this time they were accompanied by George Bakuyeya, who was specifically instructed by the first appellant to bring back “something.” At Manso village Ampadu was given the plates which were collected during the previous visit, and he printed on the machine a number of American dollars. The forged dollars were put in a suitcase, but Acquah refused to hand over the case to George Bakuyeya, saying that he would like to carry it himself to the first appellant. Acquah accompanied the others to Accra, and in the absence of the first appellant at his office, he handed over the suitcase to one Kwardey, the assistant manager of the first appellant. The next day the suitcase, together with its contents, was handed over to the first appellant by Kwardey. Subsequently, the first appellant sent Kwashie and George Bakuyeya to Swedru again, but, because the machine was not working properly, no money could be printed and the two returned to Accra. On 19 July 1972, the first appellant, on hearing of the arrest of Acquah’s younger brother (the thirteenth prosecution witness) instructed his own driver, Rufus Vuvor Kwami Agbeshie (the eleventh prosecution witness) to drive George Bakuyeya to Swedru for the purpose of removing the printing machine to Accra. The machine was accordingly brought to Accra and delivered to the first appellant at 32 Farrar Avenue. It was deposited near another unserviceable printing machine belonging to the first appellant. The first appellant employed a carpenter, who specially prepared one of the rooms at the boys’ quarters at 32 Farrar Avenue, and the machine from Swedru was installed in it. At an unspecified date in April 1972, the first appellant allowed one of his employees at his sugar factory, Paul Anyarko, to live in the ante-room to the room where the machine was. From that time onwards Ampadu and Jonathan When were often engaged in that room printing currency notes. On 16 August 1972, a team of military police led by Major John Nkrumah (the first prosecution witness) arrested the second appellant and one Bismark Awuah Kusi at Accra New Town, upon information received the previous day that the two men were trafficking in counterfeit currencies. When they were searched on the spot two fake $1,000 notes were found on Kusi. The military police also found in the second appellant’s pocket Ghana cedis, the serial numbers of which they had taken down that morning before they gave the money to their informant. As a result of what Kusi and the second appellant told the police, the third appellant’s house at Labadi Aborme was searched and two counterfeit Nigerian five pound notes were found. She admitted that she gave some fake United States dollars to Kusi and
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the second appellant early that morning. The search-party also discovered in the house of the third appellant 100 cedi notes the serial numbers of which had been taken down by the military police the previous day before they were passed on to their informant. The third appellant admitted that the second appellant and Kusi had brought this money to her as the proceeds of some United States dollars. Later in the afternoon of 16 August the military police searched the house of one William Amamoo at Nima, and during the course of the search Amamoo admitted that he had given some 36 fake United States dollars to the third appellant, but that he had himself received these dollars from George Bakuyeya. When Amamoo’s person was searched, a wallet in the hip-pocket of his trousers was found to contain one 5,000 (cinq milles) franc note, and he was immediately arrested and detained. During the same afternoon George Bakuyeya was contacted, and he confessed his participation in the currency racket and said that the United States dollars which he passed to Amamoo were given to him by Ampadu. George Bakuyeya was accordingly taken into custody. That afternoon Paul Anyarko rushed into the office of the first appellant and informed him of the arrest of George Bakuyeya. Subsequent events led to the search of the rooms of the fifth and sixth appellants on 17 August. In the fifth appellant’s room two bundles of papers dyed and cut to the size of cedi notes were found, and one fake United States dollar was found in the room of the sixth appellant. The fifth and sixth appellants were then arrested and taken to Burma Camp and detained. On 18 August, Warrant Officer Class II, Isaac Donkor, searched the house of the fourth appellant at Accra New Town and found three ten cedi notes wrapped in a paper hidden in the ceiling of his room. The fourth appellant was arrested, and at the trial evidence was led to show that these notes were forged.
Upon information given to Major John Nkrumah of the military police (the first prosecution witness) by George Bakuyeya on 19 August 1972, the second accused, Edmund Ampadu, was arrested and was confronted with the allegation that he had been printing forged currency notes for the first appellant. The second accused admitted this and confessed that the first appellant employed him, Kwashie and Acquah (the fourteenth prosecution witness) to print Nigerian currency notes at Manso village near Swedru. The house of the second accused was immediately searched and a 1,000 C.F.A. franc currency note was found, and from here the second accused led the military investigating team to the office of the first appellant at 32 Farrar Avenue. The first appellant was found in his office, and Major Nkrumah (the first prosecution witness) thereupon introduced himself as a military police officer. In the opinion of this court, subsequent events at 32 Farrar Avenue are so vital to the case for the prosecution that it is necessary that the evidence of Major Nkrumah be now reproduced as follows:
“I told him that I had received information that he was printing counterfeit notes. I asked Donkor to give him a search warrant to
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read. He read it. I then told him I wanted to search his premises. Just before the search I asked him whether he had any printing machine and he replied in the affirmative. Donkor, Staff Sergeant Anane, Adarkwah, an elderly man in the first accused’s office were all present. Bakuyeya and the second accused were present. The first accused replied that he had only one printing machine. He took me to his clerk’s office and pointed at a machine and said that was all that he had. The machine looked very dirty and looked as if it had not been used for many years. We continued the search to other apartments. I entered a room with my search party, the first accused, the second accused and Bakuyeya. We went to what looked like the boys’ quarters. The machine we saw was in the building. We entered a room at the boys’ quarters which was occupied by a certain man called Paul Anyarko. I noticed a door leading into Paul’s room. The door was locked with key. I mean on entering Paul’s room on the right is another door. That door was locked. Paul was in his room. After I had searched Paul I asked him if he knew who lived in that room. The first accused was present at that time. The second accused and Bakuyeya were also present. Paul replied he did not know the owner of that room. I then asked the first accused whether he knew who owned that room. He turned and said to me: `Ask Paul.’ Paul denied any knowledge of whoever lived in that room. I said to the accused that I would like to know who was in that room. He then asked me to break the door but I refused. The first accused called his carpenter and the carpenter opened the door. I entered the door with the first accused, the second accused, Bakuyeya and my N.C.O.s. When I entered the room I saw a printing machine installed in the centre of the room. I saw ink and paint of various colours together with cotton wool on a table. The room is padded with cardboard. There is an air-conditioner not fixed to the wall. There was no window to the room. I asked the first accused the owner of the machine. The machine had been recently used. I will be able to identify the machine if it is shown to me. I asked the first accused the owner of that machine and he replied: ‘It used to be my machine but I sold it to Bakuyeya.’ I asked the first accused how much he sold it for and he replied ¢3,000. This was in the presence of Bakuyeya. Bakuyeya then said to the first accused: ‘Who side [sic.]? Do you think I will buy a machine and leave it in your premises?’ There was an argument between Bakuyeya and the first accused. I collected the ink and the paints together with the cotton wool, secured the premises and left with the first accused and Paul for Burma Camp. I posted a guard on the building. I also took the second accused with me. The second accused identified the machine as that which he had used at Manso, a village three miles from Swedru in printing Nigerian currency notes.”
After the search at 32 Farrar Avenue had concluded, Major Nkrumah and another member of the investigating team took George Bakuyeya to
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Swedru for further investigation. When the premises of Acquah (the fourteenth prosecution witness) were searched one wooden barrel containing ink and paints were discovered. Acquah then volunteered to take the investigating team to the room at Manso village where the currency notes were printed. They were accompanied by the brother of Acquah, John Kofi Arthur (the fifteenth prosecution witness). A search was conducted and the evidence of Major Nkrumah (the first prosecution witness) was as follows:
“I inspected the room and found it filthy. I found dirty ink and paint on the wall. Acquah said he witnessed the printing of currency notes in the room. We then left the house. Kofi Arthur took the search party to a family house. He climbed to the ceiling of the house and brought down an old briefcase. I asked him to open it. It contained sensitized aluminium plates. There were some negatives of some ten cedi notes. I asked Arthur what they were for. This is the briefcase. [Identification 11]. These are the same plates. [Identification 12]. I have in my hand negatives of ten cedi notes. [Identification 13]. I noticed on the sensitized plates that various currency notes had been engraved on them. Some were Nigerian, U.S. dollars and Togolese currency. I asked Kofi Arthur how he came by them and he replied they were for his brother Acquah. Acquah was present. I impounded the plates and the negatives and brought Acquah and Arthur to Accra.”
On 20 August 1972, Major Nkrumah interrogated Paul Anyarko after his arrest, and, as a result of the information Paul Anyarko gave, he took him (Paul Anyarko) to Fadama in Accra. Here Paul Anyarko identified one Manu to whom he had recently delivered some parcels. Major Nkrumah took Paul Anyarko and Manu into Manu’s room and these parcels were recovered. There were five packets, and these were taken to Burma Camp and when opened by Major Nkrumah in the presence of Paul Anyarko they were found to contain 21 sensitized aluminium plates for printing counterfeit currency, ten negatives of 5,000 franc notes and four cartons full of cinq milles francs (5,000 f.). These packets were tendered in evidence and marked as exhibits EE1-EE5. Adamu Zabrama (the twelfth prosecution witness) who was the watchman at the first appellant’s office, said that one evening at about 6.00 p.m. he saw Paul Anyarko leave the office of the first appellant and go into his room. He returned from his room with exhibits EE1-EE5, and he helped him to put them in a taxi. The contents of these exhibits formed the subject-matter of the charges against the first appellant on counts (3), (4) and (5) of the indictment.
On 21 August, whilst still in custody, the fourth appellant led the military police to his house, where, after a search in his room, there was discovered a wrapper containing forged 338 United States dollars in one dollar denomination.
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On 26 August 1972, Major Nkrumah confronted the first appellant with the second accused, George Bakuyeya, Kwashie, Acquah, and Paul Anyarko. They all told the first appellant of his complicity in the criminal currency deal. Paul Anyarko in particular asked the first appellant whether he was not the one who asked him to take some cartons away from 32 Farrar Avenue on 16 August. The first appellant is alleged to have simply nodded his head on hearing the accusation, but he subsequently denied each and every allegation made against him in a statement which he immediately made to the police.
The court has stated the case against the first appellant in some great detail because he is the only appellant who has appealed against both conviction and sentence. The other appellants have appealed only against their sentences, and the court does not think it is necessary to elaborate the facts upon which they were convicted.
The defence of the first appellant to the charges was in essence that after he had bought the Multilith machine in April 1972, he realised that he could not run his sugar business and printing at the same time, and therefore, he rented the machine to Kwashie at an agreed rent of ¢450.00 from April to the end of August. Kwashie made a part payment of ¢250.00 and the first appellant’s assistant manager, Kwardey, issued a receipt to him. According to the first appellant Kwashie was introduced to him by George Bakuyeya as a printer. Since Kwashie escaped during the investigations the original receipt could not be produced, and a search in Kwashie’s house yielded no result. An attempt by the first appellant to tender duplicates of the receipts given to Kwashie in evidence failed, as the learned trial judge rejected them.
The first appellant provided transport and the machine was delivered at Swedru on the instructions of Kwashie to Acquah at his house. According to the first appellant, this arrangement was known to him, but he did not know that there was printing going on at Manso village. It was in the middle of July that he received information from Jonathan When that the machine was being used for some “contraband business.” The first appellant denied that he ever sent Ampadu and George Bakuyeya to Swedru, and that they brought to him a suitcase containing American dollars. He said it never occurred to him that his machine could be used for printing currency notes and when he learnt that it was being used for unlawful printing, he caused it to be removed from the village. He rejected the suggestion that he caused the removal of the machine when he heard that Acquah was in military custody at Takoradi. He denied that he knew Ampadu and Jonathan When went into the room, where the machine was installed at 32 Farrar Avenue, to print counterfeit notes. Finally, he denied that he knew Ampadu evacuated the cartons containing exhibits EE1-EE5 from 32 Farrar Avenue.
Now, who were Christian Kwashie and Jonathan When, and how did they get involved in the criminal transaction which gave rise to the prosecution in this case? Both were safely outside this country at the time the prosecution was launched in this case. Firstly, as regards Christian Kwashie, the prosecution and the defence were not agreed as to how he
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came into the drama. According to the prosecution, Kwashie is a citizen of the Republic of Togo, and he once lived at Kpalime, where he and the first appellant attended school. The first appellant, however, denied that he attended school at Kpalime, and nothing much turned upon that issue. It was alleged by the fifth prosecution witness, George Bakuyeya, that when the first appellant found Jory Adu’s printing machine unserviceable, when it was first delivered to him, he (the first appellant) sent for Kwashie who brought in men from S.A.T. to repair it. George Bakuyeya further said that the first appellant requested Kwashie to find a place where the printing machine was to be installed. The printing machine, as we have already stated, was eventually taken to the first appellants’ sugar factory. According to George Bakuyeya, the driver who drove the printing machine to the sugar factory, Kwashie, Ampadu and Acquah (the fourteenth prosecution witness) came to the factory the next day. But the first appellant’s version of how he came into contact with Kwashie was that it was George Bakuyeya who first introduced Kwashie to him as a printer, who was his own master, and who was interested in hiring his printing machine. He (the first appellant) agreed to rent the printing machine to Kwashie until August 1972. The first appellant admitted that he provided transport to take the printing machine to Swedru, and though the printing machine was hired to Kwashie exclusively, the waybill was prepared in the name of Acquah, who was a partner of Kwashie. The first appellant however explained that the waybill was prepared that way because he knew Acquah more intimately than Kwashie, and he thought his machine could be better secured if business was done that way. But Acquah refused to sign the waybill, and the next day he came to Accra and protested to the first appellant against using his name for the waybill. The case for the prosecution was that Kwashie, Ampadu and Jonathan When all printed currency notes for the first appellant at Manso village, but the case for the first appellant was that when Jonathan When made him aware that the printing machine was being used for an unlawful purpose, he caused it to be removed from the village. Though the hiring was for a period up to August 1972, it does not appear that Kwashie asked the first appellant any question about the removal of the machine. Before this time however Kwashie had told the first appellant that George Bakuyeya had refused to work with Jonathan When on the ground that the latter did not know how to operate the Multilith printing machine. Accordingly, Kwashie removed Jonathan from where he was engaged. The first appellant said that he knew that Kwashie employed Jonathan When to join his (Kwashie’s) group of currency forgers at Swedru, though he tried to deny this under cross-examination. Shortly after the printing machine had been removed from Swedru, Kwashie left this country for the Republic of Togo, because, according to the first appellant, he said he was not in good health and needed treatment at home. It is not clear the date on which he left Ghana, but the printing machine was removed from Swedru to Accra on 19 July 1972, and it would appear, therefore, that Kwashie left this country some time after that date. The first appellant
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maintained that Jonathan When was never in his employment, but that, on the contrary, he was employed by Kwashie. However, on 26 August 1972, when the office of the first appellant was searched, there was discovered a receipt file in which a receipt for a salary payment of twenty cedis to Jonathan When dated 19 July 1972, had been filed. When Major Nkrumah, who led the search team, asked the first appellant about Jonathan When, the first appellant was alleged to have replied that Jonathan When had left his employment. And when pressed under cross-examination to explain why he kept contact with the two men in spite of his knowledge of their criminal activities, the first appellant said that Kwashie felt he was under an obligation to pay Jonathan When, whom he had lured from another job, a salary whilst he remained unemployed, and it was for that reason that Kwashie instructed him (the first appellant) to pay Jonathan When at the end of each month. The first appellant said:
“Kwashie gave me the money to pay Jonathan When because he was not in good health: that he was going to receive treatment in Togo and that he might not be here at the end of the month. This means that I was still communicating with Kwashie after he had left. After he had left he made one or two visits to Accra and he brought further money for the pay of When. Kwashie gave me the money and not to Acquah perhaps because Jonathan When was in Accra and Kwashie thought me reliable to do the service for him. It is not correct I employed Jonathan When. I did not pay him.”
Jonathan When fled the country during the investigation into this case, but, long before this time, Paul Anyarko had warned the first appellant that Jonathan When was one of those who had been going into the room at 32 Farrar Avenue, where the Multilith machine had been installed. And knowing what Kwashie, Jonathan and others did with the printing machine at Swedru, it is a great surprise that he took no action against Jonathan When, but he rather received money from Kwashie to pay his monthly salary.
The powers of this court on the hearing of an appeal are conferred by the Courts Act, 1971 (Act 372), and these are set out in subsection (12) of section 26 which may be summarised as follows:
On the hearing of an appeal against conviction, the Court of Appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or of fact, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where, notwithstanding that the court is of the opinion that on any ground mentioned in (a) above, the appeal might be decided in favour of the appellant, it is of the opinion that
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(i) no substantial miscarriage has actually occurred, or
(ii) the point raised in the appeal consists of a technicality, or procedural error, or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment, or of any other offence of which the accused could have been convicted upon that charge or indictment.
The first appellant has appealed to this court on several grounds. Arguing firstly ground (2) of the original grounds of appeal, counsel for the first appellant, Mr. Campbell, said that the learned trial judge was wrong in upholding the objection by the Republic to an application by the defence to have the statement of George Bakuyeya (the fifth prosecution witness) tendered in evidence. He argued that George Bakuyeya gave evidence which was diametrically opposed to a statement which he gave to the military police on 21 August 1972 during the investigation. The application by the defence was made under section 268 of the Criminal Procedure Code, 1960 (Act 30), and this reads:
“268. (1) At any time before, or during the course of, the trial, the accused may require the police to deliver to him a copy of a statement taken by them from any person who is either listed in the summary of evidence or in any supplementary summary or is actually called as a witness.
(2) If a witness is cross-examined at the trial on behalf of the accused on any part of the witness’s statement to the police the prosecution may furnish the Court with a copy of the statement which shall become part of the record of the trial.
(3) The statement shall not thereby become evidence of any facts alleged therein but the judge and jury may take it into account in judging the credibility of the witness on his evidence as a whole and the prosecution and defence shall be entitled to refer to it in examining or cross-examining any witness and in addressing the Court.”
In rejecting the application, the learned trial judge ruled that the court ought not to depart from the procedure laid down by section 268. “The power to obtain a copy of the statement from the prosecution,”
said the learned trial judge, “is itself given by that section.”
In this court, Mr. Campbell has submitted that subsection (2) merely confers on the prosecution the discretion to tender certain statements, if the defence does not want to tender them. But, said counsel, the subsection does not take away the common law rights developed under the rules of evidence whereby the defence, or, for that matter, any party can tender in evidence a previous inconsistent statement made by a witness who does not clearly admit making that previous inconsistent statement. If subsection (2) were to be interpreted as conferring a discretion on the prosecution at all times to tender a statement of a witness only when they saw fit to do so, then one could imagine cases in which it would not be in their best interest to have that statement tendered, and the accused would
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then be deprived of having matters which go to credibility put to the judge and jury. Counsel relied on the English case of R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A. in which a witness, having shown herself as a “hostile witness” to the prosecution, was permitted to be cross-examined with reference to her previous statement to the police.
Whether or not a witness should be treated as hostile is a matter wholly within the discretion of the judge who may be guided by the witness’s behaviour and his language in the witness-box: see Rice v. Howard (1886) 16 Q.B.D. 681, D.C. The practice at common law is that if prosecuting counsel has in his possession a statement by a prosecution witness which conflicts directly or substantially with his testimony, it is his duty promptly to show the statement to the trial judge, and to ask leave to cross-examine him as a hostile witness: see R. v. Fraser and Warren (1956) 40 Cr.App.R. 160, C.C.A. The object is to show either that the witness was originally lying, or that pressure has been put on him to change his story and commit perjury. In the Harris case (supra), the trial judge, having granted leave for the witness to be treated as hostile, allowed the gist of her previous signed statement to be read to the jury, and at the same time warning them that it was not evidence against the prisoner. It was argued on behalf of the prisoner that the statement should not have been put to the witness in the way it was, because that procedure was only permissible when the witness had denied having made a statement inconsistent with his sworn evidence. The proper procedure was explained in the following extract of the judgment of the court at pp. 147-148:
“In this case there was no question of putting in the previous statement of the witness in the true sense of putting in. The use which was made of that previous statement was that the witness was cross-examined upon it passage by passage . . . it was permissible to cross-examine this girl upon the assertions she had previously made, not for the purpose of substituting those unsworn assertions for the sworn testimony, but for the purpose of showing that her sworn testimony, in the light of those unsworn assertions, could not be regarded as being of importance. It is upon that matter that confusion has sometimes arisen. It has undoubtedly sometimes been thought that where a witness is cross-examined upon a previous unsworn statement and admits the fact that the statement was made, but says that the statement was untrue, that unsworn statement may sometimes be treated as if it could be accepted by the jury in preference to the sworn statement in the witness-box, and in like manner sometimes where the witness has denied having made the previous statement, and evidence has thereupon been given that the previous statement was made, there has been, at least, a suggestion that the jury, if they chose, might accept the previous in preference to the sworn statement. That, of course, is all wrong, as has been pointed out on various occasions by this court and not least in the case of A. White.”
See also R. v. Golder (1960) 45 Cr.App.R. 5, C.C.A.
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The present case is the converse of the Harris case (supra) and on that ground it is distinguishable from that case. Where, as in this case, it is alleged that the prosecution witness had previously made a statement in which he did not incriminate the accused person, but now makes a contrary statement on oath, then it is not the duty of prosecuting counsel to cross-examine that witness. His duty is only to acquaint the defence of the earlier contradictory statement and leave the defence to cross-examine that witness. If the accused is not represented, the prosecuting counsel should show the prior contradictory statement to the trial judge and the accused, and it is for the judge to give any directions he may deem fit.
In Ghana, the procedure in the cross-examination of witnesses for the prosecution on their previous police statements is that laid down in subsection (2) of section 268, and in construing this subsection the court is of the opinion that effect must be given only to its language. It has been decided in Wallace-Johnson v. R. (1939) 5 W.A.C.A. 56, P.C. that where the Criminal Code of Ghana appears to be intended to contain a full and complete statement of the law, it must be interpreted according to its tenor, free from any glosses or interpolations derived from any expositions however authoritative of the law of England or of Scotland. This principle obviously applies to the construction of the Criminal Procedure Code, 1960, which, by virtue of section 415 thereof, is read and construed as one with the Criminal Code.
The plain meaning of the words of subsection (2) is that the prosecution have a discretion in furnishing the court with a copy of a statement made by their witness, who is being cross-examined. Section 27 of the Interpretation Act, 1960 (C.A. 4), says that “may” is to be construed as permissive and empowering. In a criminal trial, the prosecution always have a general discretion as to what evidence to call. In Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156, P.C. where the relevant authorities were reviewed, it was stated at p.168 that,
“the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive.”
In the opinion of this court, the prosecution have under subsection (2) a similar discretion with regard to statements they can place before the court to enable it to do justice, and the court will only interfere if this discretion is abused or exercised improperly. In Archbold, Criminal Pleading, Evidence & Practice (36th ed.), para. 1374 at pp. 522-523, it is stated:
“Where a witness whom the prosecution call or tender gives evidence in the box on a material issue, and the prosecution have in their possession an earlier statement from that witness substantially conflicting with such evidence, the prosecution should, at any rate, inform the defence of that fact.”
Once the statement is produced it becomes part of the record. There is, however, nothing in subsection (2) which provides that the statement
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should be formally tendered in evidence, and this is because under subsection (3) of Act 30 the statement does not constitute evidence on which the jury can act: see R. v. Golder (1960) 45 Cr.App.R. 5, C.C.A. Where the prosecution had failed to hand over to the trial court a previous contradictory statement of their witness, this court will intervene only if (a) the earlier statement differs materially or substantially from the evidence of that witness, and (b) the omission or refusal of the prosecution to produce the statement had caused a miscarriage of justice: see R. v. Adebanjo (1935) 2 W.A.C.A. 315 at pp. 327-329.
In the opinion of the court, subsection (2) does not give the defence the right to tender in evidence a witness’s statement made to the police, and it cannot, therefore, be said that the learned trial judge erred in law in rejecting an application by counsel for the defence to tender George Bakuyeya’s previous statement through him. Mr. Campbell, of course, conceded that the prosecuting counsel produced to him a copy of the previous statement, and the witness was asked questions about matters which counsel considered were conflicts between his evidence and his previous statement. During the course of his very able argument in this court, counsel called attention to these conflicts, or at least to some of them. This court does not, however, think that there is sufficient merit in the complaint against the learned trial judge’s refusal to admit in evidence the previous statement by George Bakuyeya. The object of the defence in wanting the statement tendered in evidence was to destroy the credibility of George Bakuyeya, and, in an effort to achieve this object, parts of the statement were put to the witness and he was asked to reconcile them with his evidence on oath. And in his summing-up the learned trial judge specifically drew the attention of the jury to the evidence on this aspect of the case. First, he said to the jury: “Also you will recall that the first prosecution witness and the fifth prosecution witness were cross-examined at length in order to bring out inconsistencies in their evidence and previous statements made to the police.” Next, the learned trial judge referred the jury to various items of evidence by George Bakuyeya and said: “Gentlemen, note that not every minor conflict or inconsistency in the evidence of a witness and a previous statement made by him should let him be described as a stranger to truth.” Before leaving the issue to the jury, however, the learned trial judge read to them the following passage from the judgment in the case of Attah v. The Republic, Court of Appeal, 1 May 1970, unreported:
“Such an inconsistency must, in our view, be of a material nature capable of turning the result of the case one way or the other. For there could hardly be any witness of truth if the principle or rule were otherwise, since in nine cases out of ten, witnesses are called upon to give evidence touching upon matters about which they might have made previous statements many months before. In such cases, the possibility of their making a few minor slips which may be in conflict with their previous statements cannot be ruled out; but that should not necessarily make them untruthful witnesses.”
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It is difficult to think that after these directions the jury would fail to take into account any previous inconsistent statements made by George Bakuyeya in assessing his credibility. This court is, therefore, unable to accede to the complaint that the first appellant was seriously prejudiced by the refusal to accept the previous statement of George Bakuyeya as an exhibit or to make it part of the record.
The next ground of appeal argued by counsel alleges that the learned trial judge misdirected himself in law, and in the exercise of his discretion, by refusing leave to the defence to recall John Kofi Acquah (the fourteenth prosecution witness) an important prosecution witness, at a time when the prosecution had not closed its case despite information to the judge showing that the said witness might have committed perjury. The power of a trial judge to call and recall a witness is contained in section 119 of the Criminal Procedure Code, 1960 (Act 30), and this reads as follows, “Any Court may at any stage of any enquiry, trial, or other proceeding under this Code call any person as a witness or recall and re-examine any person already examined.” In explaining the circumstances in which a witness may be called, the court in Kpekata v. Commissioner of Police [1963] 1 G.L.R. 398, S.C. said at p. 401 as follows:
“In our view it is important that when an application is made for the recall of a witness the court should enquire from counsel or the applicant the nature of the evidence the witness was being recalled to give and if it appears that the evidence intended to be given is not an explanation of something he had already said, the application should be refused. A witness should only be recalled when it becomes necessary to explain something already deposed to by him or in very exceptional cases where it would be in the interest of justice to do so and not otherwise.”
In the opinion of this court a witness may be recalled to add something to what had been said before, and indeed it is very irregular in a jury trial to recall a witness merely for the purpose of repeating what he had said before: see Phelan v. Back (1972) 56 Cr.App.R. 257, D.C. And the judge may recall a witness, if in his opinion that course is necessary in the interests of justice. The grounds of the application by the defence to recall Acquah (the fourteenth prosecution witness) were twofold: (1) that subsequent to Acquah’s evidence, the defence had received information which would show that Acquah in fact did not purchase the machine he sold to the first appellant from an alien; and (2) that it was difficult for counsel for the first appellant to receive instructions since his client was in custody. The main object of the application was to have Acquah recalled and to get him to give evidence, not in explanation of, or additional to, his previous testimony, but to give evidence in conflict with what he had already said on oath. The most important point in Acquah’s evidence is whether he sold a printing machine to the first appellant. This was conceded, and, therefore, the fact that he might have told lies about the
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source from which he had got it is in the opinion of the court, immaterial. The first appellant, however, called as witness, one Phillip Kwaku Oware (the first defence witness) a Ghanaian, to say that he sold the printing machine to Acquah on 9 March 1971, and this evidence was supported by two other witnesses – George Owusu Dankyi (the second defence witness) and Nicholas Cofie (the fourth defence witness). The purpose of calling these witnesses was to impugn the credibility of Acquah, and it was for the jury, having heard the evidence, to decide what weight they should attach to the evidence of Acquah. This court does not think that the ground upon which the learned trial judge refused to recall Acquah violated any principle of law, and even if it did, there had been no miscarriage of justice.
The fourth additional ground of appeal argued alleges that the learned trial judge erred in law and on the facts in not upholding the submission of no case to answer made at the close of the case for the prosecution, since there was no credible evidence to support the charges against the first appellant. There has recently sprung up the practice by some counsel to make a submission of no case to answer in the teeth of direct cogent evidence implicating the accused in the crime charged. This invariably delays the dispatch of work in the criminal courts, and this court now considers it necessary to re-state the tests for making a submission of no case. The circumstances in which a submission of no case may successfully be made are: (a) when there has been no evidence to prove an essential element in the crime charged; and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it: see State v. Ali Kassena [1962] 1 G.L.R. 144, S.C. Can it be said that either of these conditions was satisfied in the present case?
The first appellant, as we have already observed, was charged on the first count under section 19 (a) (ii) of the Currency Act, 1964 (Act 242), and the relevant provisions of the section read as follows:
“Any person shall be guilty of a first degree felony who without lawful authority or excuse –
(a) . . . knowingly has in his custody or possession . . .
(ii) any frame, mould or instrument for making such paper, or for producing in or on such paper any words, figures, letters, marks, lines or devices peculiar to and used in or on any note . . .”
The particulars of the offence on the first count were that:
“Modesto Kwasi Apaloo, on or about 19 August 1972 at Accra in the Eastern Region without lawful authority or excuse knowingly had in his possession an instrument, namely, a Multilith printing machine model 1250 for producing on papers devices peculiar to and used in 500 W.A. franc note, 5,000 W.A. franc notes, Nigerian £5 notes, United States one hundred [dollar] notes.”
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In order to succeed on the first charge, the prosecution must prove (1) that the first appellant was found in possession of an instrument, a Multilith printing machine model 1250, which was capable of being used for producing on paper devices peculiar to and used on currency notes, the subject-matter of the charge, either from its common use for that purpose or from the particular circumstances of the case; and (2) that the first appellant knew that the instrument was being used for that purpose: see R. v. Patterson [1962] 2 Q.B. 429, C.C.A. It was not necessary for the prosecution to lead evidence of actual knowledge; it would be sufficient if there was evidence from which knowledge of the first appellant could be justifiably inferred: see Asamoah v. The State [1962] 2 G.L.R. 207, S.C. and Sokoto v. The Republic [1972] 2 G.L.R. 372, C.A.
Possession under Act 242 is explained in section 33 as follows:
“33. (1) Where the having of any coin or note, or any instrument or other thing in the custody or possession of any person is in this Act expressed to be an offence, a person shall be deemed to have such coin, note, instrument or other thing in his custody or possession if he –
(a) has it in his personal custody or possession; or
(b) knowingly and wilfully has it in the actual custody or possession of any other person, or in any building, lodging, apartment, field, or other place, whether open or enclosed, and whether occupied by himself or not.
(2) It is immaterial whether the thing such person had in such custody or possession or place is for his own use or for the use and benefit of another person.”
In considering the submissions on ground (4) of the additional grounds, we should first look at the evidence led by the prosecution in support of count (1). It is common ground that the Multilith printing machine model 1250, which the first appellant bought from Jory Adu soon after Easter 1972, was transported to Manso village, near Swedru. There was evidence by George Bakuyeya (the fifth prosecution witness), Arthur (the thirteenth prosecution witness) and Acquah (the fourteenth prosecution witness) that the machine was used in printing currency notes at that village. There was also evidence that some of these fake currency notes were put in a suitcase and carried to the first appellant in his office at 32 Farrar Avenue, Accra. Giving evidence of his meeting with the first appellant after the delivery of the suit-case, John Kofi Acquah said:
“I asked the first appellant about the dollars that were in the suit-case that was brought from Manso. He told me the surface of the notes was white; that they had not been properly done and so he gave them to Paul Anyarko to burn them. I then left.”
Acquah’s evidence on this point was confirmed by his brother, John Kofi Arthur (the thirteenth prosecution witness). In the opinion of this court, this evidence, if believed, would amount to a confession by the first appellant, and would establish that he knew that his printing machine
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at Manso village was being used for the printing of fake currency notes for his profit. Also there was evidence, as will be seen when considering the evidence in support of counts (3), (4) and (5), from which the inference could reasonably be drawn, that the currency notes, which formed part of exhibits EE1-EE5, were printed at 32 Farrar Avenue on the Multilith printing machine model 1250. And finally, it is the view of this court, that the first appellant’s continued association with persons who had misused the machine after knowledge of its misuse by them, lends credence to the allegation that he knew that the machine had been operated for an unlawful purpose, namely, the printing of currencies at Swedru.
We next proceed to consider the incidents that took place at 32 Farrar Avenue on 19 August. Just before that house was searched, the first appellant was asked whether he had any printing machine, and he replied that he had only one machine. This was, of course, a false statement made out of a sense of guilt, and the only purpose for this falsehood was to put the search-party off the scent. Even though the first appellant had caused the room in which the Multilith machine was installed to be prepared, yet when he was asked who owned the room, he told Major Nkrumah, “Ask Paul.” This was another lie, because the first appellant knew that he owned the room, and that he had kept in that room a Multilith machine, which was being used for an unlawful purpose. When the door was eventually opened and the military police entered the room, they found a printing machine installed in the centre of the room. Other items also found in the room included papers, ink, paint and cotton-wool. The first appellant was asked who owned the machine and he replied that though it was formerly his property he had sold it to George Bakuyeya. This was obviously another lie, for the first appellant knew it would not be safe to claim ownership of it, having regard to the condition in which the room and the machine were found, and also to the fact that he, the first appellant, knew the use to which the machine was being put. These lies told by the first appellant are, in the opinion of this court, very significant. A lie told out of court by an accused person is capable, in some circumstances, of constituting corroboration of a witness whose evidence requires corroboration in law or practice: see Republic v. Jantuah, High Court, Accra, 16 February 1968, unreported; digested in (1968) C.C. 87. In R. v. Chapman (1973) 57 Cr.App.R. 511, C.A. the court said at p. 521 that:
“Proof of a lie told out of Court is capable of being direct evidence, admissible at the trial, amounting to affirmative proof of the untruth of the defendant’s denial of guilt. This in turn may tend to confirm the evidence against him and to implicate him in the offence charged.”
It was indeed a question of fact in this case for the jury whether the demonstrable lies of the first appellant out of court furnished corroboration of the case against him.
On the second count, the first appellant was charged with knowingly and wilfully aiding and abetting one, Jonathan When and Edmund Ampadu in the forgery of United States 100 dollar notes and Nigerian five pound
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notes. The law of abetment under the Currency Act, 1964, is explained in section 32 as follows: “32. Any person who knowingly and wilfully aids, abets, counsels, causes, procures, or commands the commission of an offence against this Act shall be liable to be dealt with, indicted, tried and punished as a principal offender.”
There was evidence by Major Nkrumah that Ampadu admitted to him that he (Ampadu), Kwashie and Acquah printed false Nigerian currency notes at Manso village for the first appellant. And in the presence of the first appellant at 32 Farrar Avenue Ampadu identified the Multilith printing machine model 1250 as the printing machine they used in printing the false Nigerian currency notes. Again, at the confrontation on 26 August, Ampadu said in the presence of the first appellant that he (the first appellant) had employed him to print currency notes at Manso village. In his statement, exhibit J, which formed part of the case for the prosecution, Ampadu confirmed his earlier statement to Major Nkrumah that he and others printed Nigerian five pound currency notes and American 100 dollar notes for the first appellant. The statement, exhibit J, was tendered in evidence when Ampadu was in the dock with the first appellant. Both George Bakuyeya and Acquah also gave evidence of the printing of the American dollars and the Nigerian currency notes, which were subsequently carried to the first appellant in Accra. Evidence was led to show that the United States 100 dollar notes and the Nigerian five pound notes were forged. The case for the prosecution was that Ampadu was employed by the first appellant even though the first appellant well knew that Ampadu had been prosecuted on at least two occasions for forged currency offences. It was proved that Jonathan When was also on the pay-roll of the first appellant.
The first submission which Mr. Campbell made with regard to count (2) was that the first appellant could not have aided and abetted Ampadu, because the name of Ampadu had been deleted from that count. The reason for this submission, in Mr. Campbell’s view, is that in making an application for an amendment to the bill of indictment the prosecuting counsel had asked the court to delete Ampadu’s name wherever it occurred. This court is, however, satisfied that the application was only in relation to the original count (2) in which Edmund Ampadu alone was charged with forgery of notes contrary to section 18 (1) (a) of the Currency Act. In granting the application, the trial court said, “The application to amend granted as prayed. Second count struck out.” The trial then proceeded on the basis that the original count (3), which then became the present count (2), remained unaffected by the application to amend.
Edmund Ampadu did not give evidence, because he absconded in the middle of the trial, but the prosecution led evidence of extra-judicial statements made by him. Two of these statements – one to Major Nkrumah and the other in exhibit J – were made in the absence of the first appellant. A statement is not hearsay and is admissible when it is proposed to
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establish by the evidence, not the truth of the statement, but the fact that it was made. In Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965, P.C. it was stated at p. 970 that:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.”
The two statements were admissible not for the purpose of establishing the truth that the first appellant aided and abetted Ampadu, but for the purpose of asking the jury to hold that Ampadu printed false currency notes at Manso village, and showing that this was a factor which they could take into consideration with the other relevant evidence given in the case in deciding whether the Multilith printing machine model 1250 was used in printing forged currency notes as alleged in counts (1) and (2).
The evidence of the conduct of the first appellant during the confrontation on 26 August is also very significant with respect to the charge on count (2). Giving his evidence of the confrontation between the first appellant and Ampadu, Major Nkrumah said:
“The second accused to the hearing of the first accused said that the first accused employed him together
with one Kwashie and Acquah to print counterfeit notes at Manso village. The first accused sat down quietly and only nodded his head.”
This evidence was confirmed by Isaac Kwapong Donkor (the second prosecution witness). The first appellant of course denied this accusation when he subsequently gave a written statement (exhibit B) to the police. But the principle is that a statement or accusation made to or in the presence of an accused person may be evidence against him, although he actually denied or repudiated it at the time, if by his conduct or demeanour he may be held to have admitted it. This principle of law was expounded by Lord Atkinson in Director of Public Prosecutions v. Christie (1914) 10 Cr.App. R. 141 at pp. 155-156, H.L. as follows:
“The rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated, save so far as he accepts the statement, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement is made amounts to an acceptance of it in whole
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or in part. It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner, and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgment may be inferred by them.”
In this case, the conduct or demeanour relied upon by the prosecution was the silence of the first appellant, for silence may amount to an admission, when it is natural to expect a reply: see Bessala v. Stern (1877) 37 L.T. 88, C.A. And if the jury came to the conclusion that the first appellant’s silence was an admission, that could afford sufficient corroboration of the evidence for the prosecution that he aided and abetted Ampadu, Kwashie and Acquah to print counterfeit notes at Manso village.
It was also submitted by Mr. Campbell that there was no abetment by the first appellant so far as Jonathan When was concerned, because there was no evidence that he did anything at Manso village, though he might have been instructed to go there. But even if this admission is correct, we think that his presence at that village was an indirect encouragement to those who were printing the currency notes at the village. In the opinion of this court, the gist of the offence under section 32 consists merely in the act of either aiding or facilitating or procuring the commission of the crime. It is not essential that the actus reus should be in relation to a particular person. If there was evidence that a printing machine belonging to the first appellant was taken to Manso village upon his instruction, and that to his knowledge this printing machine was used by some persons, “known or unknown, certain or uncertain,” in printing false currency notes, and further that these currency notes were carried to him in Accra, we think that there was ample evidence from which it could be reasonably inferred that the first appellant had counselled and procured the commission of the offence of forging currency notes.
Though we agree with Mr. Campbell’s submission that no offence was committed by anyone in Accra in May 1972, as alleged in the charge, we think that this argument does not avail the first appellant, since in the opinion of the court this is only a defect in the charge or indictment, and there is abundant evidence to support the offence alleged in the statement of offence: see section 26 (12) of the Courts Act, 1971 (Act 372), and section 406 of the Criminal Procedure Code, 1960 (Act 30).
The evidence in support of counts (3), (4) and (5) was essentially circumstantial. In Nyame v. The Republic [1971] 2 G.L.R. 140, C.A. the court said at pp. 144-145 that:
“But circumstantial evidence ought to be closely examined, and it must be acted upon only when the circumstances are such that the guilt of the accused must necessarily be inferred, and that the facts lead to no other conclusion. Thus, in Teper v. R. [1952] A.C. 480 at p. 489, P.C. Lord Norman said: … it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another . . . It is also necessary before drawing the
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inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’.”
In the recent case of Director of Public Prosecutions v. Kilbourne (1973) 57 Cr.App.R. 381, H.L. Lord Simon of Glaisdale gave the following simple definition of circumstantial evidence at pp. 419-420:
“Circumstantial evidence is evidence of facts from which, taken with all the other evidence, a reasonable inference is a fact directly in issue. It works by cumulatively, in geometrical progression, eliminating other possibilities.”
In Taylor on Evidence (12th ed.), Vol. 1, at pp. 66-67, para. 69, it is said in relation to circumstantial evidence that after the facts sworn to are satisfactorily proved, a highly difficult duty still remains for the jury to perform. The text continues:
“They must decide, not whether these facts are consistent with the prisoner’s guilt but whether they are inconsistent with any other rational conclusion; for it is only on this last hypothesis that they can safely convict the accused. The circumstances must be such as to produce moral certainty, to the exclusion of every reasonable doubt. Moral certainty and the absence of reasonable doubt are in truth one and the same thing.”
The real question with regard to counts (3), (4) and (5) is whether the prosecution proved facts which satisfactorily established the first appellant’s connection with exhibits EE1-EE5. The evidence by Adamu Zabrama (the twelfth prosecution witness) the first appellant’s watchman, that he saw these exhibits one evening at about 6.00 p.m. being carried from the room or the direction where the printing machine had been installed at 32 Farrar Avenue was not challenged. The evidence of Adamu Zabrama on this important issue was as follows:
“The first accused was in his office at the time I saw Paul. Paul left the office and went into his bedroom. He returned from his bedroom with exhibits EE1 to EE5. Paul packed them under a mango tree by the road and told me to look after them. This was near the first accused’s office. He went to look for a taxi and returned with one. When Paul brought the taxi the first accused left his office. I helped Paul to put the exhibits in the taxi. I did not challenge Paul when he was taking the exhibits from the place because the first accused had instructed me that I should not check people who were leaving his premises with parcels but should check only those who brought in parcels. Paul left with the exhibits. Paul sleeps in the building. His bedroom is near the first accused’s office.”
This incident took place on 16 August soon after the arrest of George Bakuyeya, and the first appellant’s own version of what took place on that day, just about the same time, was stated in his statement to the police (exhibit B) as follows:
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“Just before I left my office between 5 and 6 p.m. on 16 August 1972, Paul rushed to my office with another man who, he claimed, was George’s brother and stated that George had been arrested with about ¢150.00 and he stated that I had paid it to him as his wages for one month.”
The prosecution invited the jury to infer from this evidence that the first appellant, apprehending a search of his premises after the arrest of George Bakuyeya instructed Paul Anyarko to remove from the room exhibits EE1-EE5 to another place. As the learned trial judge told the jury: “Is it a mere coincidence that the parcels were said to have been removed on the day the first accused was informed of the arrest of the fifth prosecution witness? You must consider the evidence as a whole.” It was Paul Anyarko who led the military police to the Fadama area in Accra where the exhibits were collected from the house of Manu. The first appellant admitted in his statement (exhibit B) that Paul Anyarko informed him that Ampadu, George Bakuyeya and Jonathan When often went into the machine room. Yet he made no effort to find out what these gentlemen were doing in that room, which was out of bounds to anyone except the one who was employed by the first appellant to operate the printing machine. In directing the jury on this aspect of the case the learned trial judge told them:
“The question is then what did they go to do there? Did the first accused take steps to stop them from entering the room? After all he had bought the machine. He had taken the trouble and prepared a special room for it air-conditioned and all. A danger sign was seen on the wall… He did not however say what they went there to do and there is no evidence that the first accused ever asked them what they went there to do. Even if you accept that these people were not in the employment of the first accused, was the accused not in a position to control their movements in the house? Remember all three people were those who lived on the charity of the first accused. He at one time or another gave them financial assistance. The first accused said he did not have the key to the room, did not know what the people went into the room to do. Do you accept this explanation as reasonable? Do you think it reasonable for the first accused to spend all that money and to sit back unconcerned when he was informed unauthorised persons were entering the room?”
The jury’s verdict was an affirmation of the case for the prosecution that the three gentlemen entered that room to print for the first appellant counterfeit currency notes on his printing machine. There was evidence by John Kofi Acquah (the fourteenth prosecution witness) that when he visited the office of the first appellant on 15 August, Ampadu also came there and was dressed in a sleeveless singlet and a part of his pants stained with ink. There was also evidence that at the confrontation on 26 August, Paul Anyarko accused the first appellant as the one who gave him exhibits EE1-EE5 to keep for him. The other circumstantial evidence which the jury were entitled to consider in relation to the three counts was the
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conduct of the first appellant when the military police arrived at 32 Farrar Avenue for the search: firstly, there was the lie told by the first appellant about the existence of a second machine at the premises; and, secondly, there was the disclaimer by him of the printing machine in the room. In the opinion of this court, there was no need for the first appellant to tell these deliberate falsehoods, unless he knew that there was in the room a Multilith printing machine, which produced forged currency notes for him. And if the jury arrived at that conclusion, they were entitled to draw the further inference that the first appellant was the owner of exhibits EE1-EE5 that came from that room, and that he was at all times in possession of the exhibits within the meaning of section 33 of Act 242. The evidence on counts (3), (4) and (5) was relevant to two items in count (1): the production of 500 W.A. francs and 5,000 W.A. francs on the Multilith printing machine model 1250 which was the subject-matter of that count.
The direct evidence against the first appellant was largely the evidence of accomplices, and in ground (9) of the additional grounds of appeal it was alleged that the learned trial judge misdirected himself in law in not directing the jury as to who in law were accomplices, and that George Bakuyeya (the fifth prosecution witness), John Kofi Arthur (the thirteenth prosecution witness) and John kofi Acquah (the fourteenth prosecution witness) being participes criminis, were accomplices, whose evidence required corroboration. In his direction to the jury on accomplices the learned trial judge said:
“You should consider whether or not the fifth prosecution witness or any other witness for the prosecution is an accomplice or if not so strictu sensu whether any of the witnesses is involved in the commission of the offence or matters related to them to such an extent that such a witness ought to be treated in the same manner as an accomplice or whether in any case any such witness has a purpose of his own to serve in giving evidence or whether for any other sufficient reason he should be looked at with caution. The evidence of the fifth prosecution witness apart, you should look at the evidence of the thirteenth prosecution witness and the fourteenth prosecution witness (the two brothers Arthur and Acquah).”
Later in the summing-up the learned trial judge instructed the jury as follows:
“Where a witness is labelled an accomplice it is desirable that a warning should be given that the witness may be one with some purpose of his own to serve. In such a case the jury should be warned about the danger of convicting an accused on the uncorroborated evidence of an accomplice. This is so because that witness might have a motive for putting the blame on the accused. If you decide that the fifth prosecution witness or any other witness for the prosecution is an accomplice you must look for corroboration.”
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In the first passage quoted above the learned trial judge appears to have recognised three classes of accomplices: (i) an accomplice in the strict sense of the term, which he did not, with respect, define for the benefit of the jury; (ii) a person involved in the criminal transaction who ought to be treated as an accomplice; and (iii) a person with a purpose to serve. With respect, we find the direction in the second passage rather confused. But looking at the passages as a whole, this court thinks that what the learned trial judge meant was that every witness who is labelled an accomplice, whether in the strict sense or in the wider sense, has a purpose of his own to serve, and that there is the need to treat his evidence with caution and suspicion. This court has noted that the learned trial judge failed to explain to the jury the strict meaning of the term accomplice, and on the whole we find, with due respect, that the directions on accomplice were unsatisfactory.
In the well-known case of Davies v. Director of Public Prosecutions [1954] 2 W.L.R. 343, the House of Lords gave a definition of accomplice for the purpose of judicial warnings to juries against convicting on the uncorroborated evidence of an accomplice. For the purpose of this rule the following are to be treated as accomplices:
(a) Persons who were participes criminis in respect of the actual crime charged, and these embrace (i) those persons who are principals or accessories in a case of a felony, and
(ii) those persons who procure, aid or abet or actually commit a misdemeanour;
(b) on a trial for larceny, persons who had received stolen goods from the accused; and
(c) where a person was charged with a specific offence and evidence was admitted of his having committed similar crimes to show a system, evidence of similar offences given by the parties to them should not be left to the jury without a warning.
The House of Lords held that there was no reason for any further extension of the term accomplice. The question whether or not a particular witness was participes criminis in the actual crime charged is usually determined by the witness either confessing to participating in it or by pleading guilty to the crime or by being convicted of it. It seems clear from the Davies case (supra) that where an accomplice in any of the three categories gives evidence, the rule of practice which now has the force of law requires that the judge should warn the jury of the danger of convicting on the uncorroborated evidence of an accomplice, and if the judge failed to do this, the conviction should be quashed.
There can be no doubt that on the evidence the fifth, thirteenth and fourteenth prosecution witnesses were clearly participes criminis, but the learned trial judge must have given the jury the impression that they were participants in the wider sense, being accomplices in the criminal transaction. In such a case it would be within the discretion of the learned trial judge to give the warning as he thought fit. In the opinion of this court, the evidence of every accomplice, whether in the strict sense or in the wider sense, is tainted and his motives are naturally suspect. His
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evidence, therefore, must be treated with circumspection, and in our judgment this is the real justification for the “warning” rule. As Lord Hailsham of St. Maryleborne L.C. said in Director of Public Prosecutions v. Kilbourne (1973) 57 Cr.App.R. 381, H.L. at p. 404:
“Obviously where two or more fellow accomplices give evidence against an accused their evidence is equally tainted. The reason why accomplice evidence requires corroboration is the danger of a concocted story designed to throw the blame on the accused. The danger is not less, but may be greater, in the case of fellow accomplices.”
In this case, though the learned trial judge did not specifically direct the jury in terms of the decision in Davies v. Director of Public Prosecutions (supra) that accomplices for the purpose of the rule requiring corroboration means participes criminis in the technical or strict sense, the trial was conducted on the footing that corroboration of the evidence of the fifth, thirteenth and fourteenth prosecution witnesses was essential, if the jury thought that their evidence was tainted and that they might have some motive for exaggerating or fabricating evidence as to the guilt of the first appellant. There is no magic in the word “accomplice”: see R. v. Hunt [1965] Crim.L.R. 607, C.C.A.; and a summing-up in which the jury are warned of the danger of convicting on tainted evidence without corroboration cannot, in the view of this court, be cavilled at. It was sufficient to direct, as the learned trial judge did in this case, that if the fifth, thirteenth and fourteenth prosecution witnesses each had an interest in exculpating himself and blaming the first appellant, they should not accept their evidence unless satisfied that they were truthful. It is axiomatic that the wider includes the lesser, and where, therefore, a judge had directed a jury to apply the wider test to the facts of a case, a convicted person cannot be heard to say that he had been deprived of a chance of acquittal by the jury by reason of the omission of the judge to direct the jury only on the strict test. Therefore despite the failure to explain the strict meaning of “accomplice” to the jury, this court will not interfere with the verdict of a jury, if there was sufficient evidence to corroborate the evidence of the accomplices. And the corroboration required in this case was evidence from some other source tending to confirm that the three suspect witnesses were telling the truth in some part of their stories which would go to show that the first appellant committed the offences with which he was charged. Explaining corroboration in his speech in Director of Public Prosecutions v. Kilbourne (supra) Lord Hailsham L.C. said at pp. 395-396 that:
“The word ‘corroboration’ by itself means no more than evidence tending to confirm other evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration. and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.”
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What items of evidence in this case were capable of amounting to the corroboration required? Apart from the out of court lies told by the first appellant to which reference has already been made earlier in this judgment, there was also the evidence of his conduct at the confrontation with the witnesses on 26 August. It was part of the case for the prosecution that the first appellant employed Jonathan When and Ampadu to print false currency notes for him both at Manso village and at 32 Farrar Avenue. The first appellant admitted both in his statement, exhibit B and in evidence that Jonathan When informed him that the printing machine was being used for some “contraband” or unlawful business. The first appellant said that he believed what he was told and as a result he removed the printing machine from the village. Again the first appellant stated in exhibit B that he was informed by Paul Anyarko that after the printing machine had been installed in the room at 32 Farrar Avenue, George Bakuyeya, Ampadu and Jonathan When sometimes went into this room. Yet the first appellant took no action to prevent them from entering the room, which he had specially prepared for his printing machine. The prosecution led evidence of Ampadu’s criminal activities relating to currency to make less credible the first appellant’s alleged innocent association with him. In the opinion of this court, the above items of evidence are cumulatively of such cogency that any reasonable jury would draw the inference that the evidence of the fifth, thirteenth and fourteenth prosecution witnesses was true.
The learned trial judge, indeed, gave the jury clear warning against convicting on the uncorroborated evidence of the three principal witnesses for the prosecution, and therefore even if there was no corroboration of their evidence it is well-established that a conviction after an appropriate warning may not be disturbed, notwithstanding that the accomplice’s evidence was uncorroborated, unless, of course, the verdict is otherwise unreasonable or is not supported by the evidence: see R. v. Baskerville [1916] 2 K.B. 658, C.C.A. and also Director of Public Prosecutions v. Kilbourne (supra) at p. 394, H.L.
The two last grounds which were argued with great force and persuasion both alleged misdirections as to the law and the evidence. Although Part III of the Supreme Court Rules, 1962 (L.I. 218), relating to criminal appeals does not give any guidance as to how grounds of appeal alleging misdirections are to be stated in the notice of appeal, the courts in this country have in practice insisted that where a misdirection is complained of, the ground of complaint must allege not only whether the misdirection is one of law or of fact, but also its nature. For, as Blackall P. said in Kweku Mensah v. R. (1951) 13 W.A.C.A. 140, “The prosecution is entitled to know what case they have to meet . . .” Where a complaint is made of particular passages in a summing-up, particulars identifying the passages by reference to pages in the record should be given before the hearing of the appeal commences.
On 26 June 1973, when Mr. Campbell began to argue grounds (6) and (8) of the additional grounds of appeal in which misdirections as to both
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law and facts had been alleged, sufficient particulars had not been given, but the court reluctantly permitted Mr. Campbell to continue his address. However, on the next day, i.e. 27 June 1973, Mr. Campbell filed on behalf of the first appellant a catalogue of a multitude of particulars of the various alleged misdirections. Without going into the details of the summing-up and the misdirections alleged, this court wishes to make it plain that it does not sit here to retry cases where juries have heard evidence and have come to some conclusions upon the evidence; and, if we may respectfully refer to the words of the Lord Chief Justice of England in the judgment of the Court of Criminal Appeal in the oft-quoted case of R. v. Stoddart (1909) 2 Cr.App.R. 217 at p. 246, C.C.A.:
“Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice.”
In Yirenkyi v. The State [1963] 1 G.L.R. 66, S.C. where the court considered the effect of misdirections in a summing-up, it was said at p. 75 that:
“The law, as we understand it, is that whatever the nature of the misdirection complained of (whether it be an omission by the judge to put the defence adequately to the jury or a misdirection on a point of law) if it can be predicted that properly directed the jury must have returned the same verdict, then, there being in that case no substantial miscarriage of justice, the appeal fails.”
See also Addai v. The Republic [1973] 1 G.L.R. 312, C.A.
Where misdirection as to the law or the facts is established it will not necessarily avail the appellant if the court is satisfied (1) that the evidence against the appellant was overwhelming, and (2) that properly directed the jury could not have come to any other verdict other than that of guilty: see Boateng II v. The Republic [1974] 1 G.L.R. 214, C.A.; Azametsi v. The Republic [1974] 1 G.L.R. 228, C.A.; R. v. Lewis (1973) 57 Cr.App.R. 860 at p. 869, C.A. In Customs and Excise Commissioners v. Harz [1967] 1 A.C. 760 at p. 823, H.L., Lord Morris of Borth-y-Gest referred in his speech to the proper approach to the jury’s verdict of guilty indicated in Stirland v. Director of Public Prosecutions [1944] A.C. 315, H.L., and said at p. 824 that:
“In his speech in that case Viscount Simon L.C., in referring to the proviso, said that it assumed ‘a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.’
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It is to be observed that the test to be followed is not that of seeking to assess what the particular jury that heard the case would or must have done if it had only heard a revised version of the evidence. For the purpose of the test the appellate court must assume a reasonable jury and must then ask whether such a reasonable jury hearing only the admissible evidence could if properly directed have failed to convict.”
Referring to Lord Morris’s test in R. v. Richards [1967] 1 All E.R. 829, C.A. Winn L.J said at P. 831 that:
“It is not for this court to speculate what would have happened in the trial itself, what the jury which was charged with the decision in that case would or would not have done. It is not sufficient that this court itself should be clear that the appellant is guilty. The court has to apply the test which I have just enunciated and ask itself whether, on the two hypotheses stated and assuming an intelligent and reasonable jury, this court can itself be sure that the appellant would have been convicted.”
The admissible evidence against the first appellant is, in the opinion of this court, overwhelming, and the question is whether this court ought to apply the proviso to section 26 (12) of the Courts Act, 1971 ‘(Act 372), notwithstanding the misdirections, some of which are well-founded. The test then, as indicated above, is whether it can be said with confidence that an intelligent and reasonable jury, properly directed upon the evidence would have convicted the first appellant.
But before proceeding to apply the test it is important to bear in mind the proper function of the jury. As Lord Morris of Borth-y-Gest said in McGreevy v. Director of Public Prosecutions (1973) 57 Cr.App.R. 424 at p. 431, H.L.:
“The solemn function of those concerned in a criminal trial is to clear the innocent and to convict the guilty. It is, however, not for the Judge but for the jury to decide what evidence is to be accepted and what conclusion should be drawn from it. It is not to be assumed that members of a jury will abandon their reasoning powers and, having decided that they accept as true some particular piece of evidence, will not proceed further to consider whether the effect of that piece of evidence is to point to guilt or is neutral or is to point to innocence. Nor is it to be assumed that in the process of weighing up a great many separate pieces of evidence they will forget the fundamental direction, if carefully given to them, that they must not convict unless they are satisfied that guilt has been proved and has been proved beyond all reasonable doubt.”
In this case, the jury heard the evidence for the prosecution and they also heard the denials and explanations given by the first appellant in the witness-box. In many passages in his summing-up the learned trial judge
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referred to the burden of proof, and the duty of the prosecution to satisfy the jury so that they felt sure of the guilt of each accused person before they convicted, and he also referred in correct and particular terms to the burden of proof on the appellants to show lawful authority or excuse. The issues before the jury were essentially questions of fact, and the jury by their verdict accepted the evidence for the prosecution, and this means that they were satisfied beyond doubt that the first appellant was guilty of the charges on counts (1), (2), (3), (4) and (5). The jury had the advantage of seeing and hearing the witness, and no good reasons were assigned why all the prosecution’s principal witnesses should fabricate evidence against the first appellant. Indeed, when the first appellant was asked in cross-examination if he knew any reasons why the prosecution witnesses should tell lies about him, he said: “The reason why all these persons made allegations against me would be best known to them. I can imagine that they want to escape their own responsibility. The allegations made by these persons are not true.” A defence that the incidents alleged by the prosecution witnesses never took place, or that the accused had no connection with those incidents, seems inevitably to imply that the witnesses have fabricated accusations against the accused.
This court respectfully adopts the view expressed in R. v. Sims [1946] K.B. 531 at p. 540, C.C.A. that:
“whereas the jury might think one man might be telling an untruth, three or four are hardly likely to tell thensame untruth unless they were conspiring together. If there is nothing to suggest a conspiracy their evidence would seem to be overwhelming.”
In this case, there was no evidence of any conspiracy, for it seems that from 16 August when George Bakuyeya was arrested there was hardly any opportunity for the witnesses to conspire to frame the first appellant. Though, as we have earlier stated that the fifth, thirteenth and fourteenth prosecution witnesses were participes criminis, this court is satisfied that properly directed on the whole evidence the jury would not have failed to convict the first appellant of the charges against him. Accordingly, his appeal against conviction is dismissed.
After the conviction of all the appellants, the learned trial judge recorded the following sentences:
“First accused—First count—fifteen years’ imprisonment with hard labour.
Second count—eight years’ imprisonment with hard labour.
Third count—eight years imprisonment with hard labour.
Fourth count—fifteen year’s imprisonment with hard labour.
Fifth count—fifteen years’ imprisonment with hard labour.
Third accused—Sixth count—five years’ imprisonment with hard labour.
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Fourth accused—Seventh count—five years’ imprisonment with hard labour.
Eighth count—two years’ imprisonment with hard labour.
Fifth accused—Ninth count—eight years’ imprisonment with hard labour.
Tenth count—eight years’ imprisonment with hard labour.
Sixth accused—Eleventh count—five years’ imprisonment with hard labour.
Seventh accused—Twelfth count—four years’ imprisonment with hard labour.
Sentences of the first, fourth and fifth accused to run concurrently.”
The first appellant has appealed against the sentence of fifteen years’ imprisonment with hard labour solely on the ground that it is excessive. The second appellant asks for mercy “as the gentle rain from above” for his sentence of five years’ imprisonment with hard labour to be reduced. Each of the appellants, i.e. the fourth, fifth and sixth appellants, has appealed on grounds expressed in identical terms as follows:
“With a contrite heart, I appeal to your lordship on bended knees to temper justice with mercy and reduce my sentence for me. I promise to refrain from all criminalities henceforth.”
It would appear that there was some misunderstanding about the third appellant’s intention to appeal. She appeared in court, not having filed any grounds of appeal, and was anxious to make oral representations to the court. The court granted her the indulgence, and she appealed to the court to reduce her sentence of five years’ imprisonment with hard labour.
Arguing the first appellant’s appeal against sentence, Mr. Campbell submitted that consideration should be given to the previous good record and the age of the first appellant, who is 54 years of age. Apart from the fifth appellant who submitted a memorandum in support of his case, none of the other appellants said anything which improved the oral statements made in court.
In the three counts (counts (1), (4) and (5), upon which the first appellant was sentenced to fifteen years’ imprisonment with hard labour the charges were laid under the Currency Act, 1964 (Act 242), s. 19, which carries a maximum sentence of life imprisonment. In the remainder of the counts, except count (2), the charges were laid under section 18 (2) of the Act which attracts a maximum sentence of ten years’ imprisonment. The charge in count (2), which relates to aiding and abetting, was laid under section 32 of the Act, and the sentence here depends upon the section of the Act under which the principal offender is charged.
The principles upon which this court acts on an appeal against sentence are well-settled. It does not interfere with sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. The court will interfere with
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a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case, or that the sentence is wrong in principle. In Kwashie v. The Republic [1971] 1 G.L.R. 488, C.A. where it was argued that the appellant was a first offender of previous good character and that the sentence was excessive, having regard to the value of the goods stolen, the court said in the course of its judgment at p. 493 that:
“The determination of the length of sentence within the statutory maximum sentence is a matter within the discretion of the trial court, and the courts always act upon the principle that the sentence imposed must bear some relation to the gravity of the offence: see R. v. Connolly [1959] Crim. L.R. 530, C.C.A. An offence which is of a very grave nature merits severe punishment: see R. v. Enahoro (1947) 12 W.A.C.A. 194 at p. 197; and also Awuah v. Commissioner of Police (1950) 13 W.A.C.A. 1 at p. 3.
In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.”
The court further said at p. 494 that:
“Upon these facts, which reveal an offence of a very grave nature, the sentence must not only be punitive, but it must also be a deterrent or exemplary. The sentence must mark the disapproval of our society of such conduct by police officers. Where the court decides to impose a deterrent sentence, the value of the subject-matter of the charge, and the good record of the accused become irrelevant.”
This is a case in which the first appellant who lives in Accra bought a printing machine and employed persons, including Edmund Ampadu, well known for his criminal record for forged currency offences, to use it in printing false currency notes for him at a secret place in the village of Manso. When he apprehended danger of the printing machine being discovered at the village, he removed the printing machine to 32 Farrar Avenue, where it was installed and the printing of the currency continued. The evidence shows that the first appellant used George Bakuyeya and the other appellants in pushing the printed false currency notes on the public. The evidence further shows that the other appellants wilfully and knowingly participated in the criminal currency business promoted by the first appellant.
One of the objects of the Currency Act, 1964 (Act 242), of Ghana was to prohibit acts tending to depreciate the currency of the country and
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harmful to the general economy. The conduct of the appellants, it seems to this court, was very serious, because by putting the false currencies in circulation they were helping to undermine the confidence of the country’s currency in the present circumstances, when the economy is slowly but gradually recovering from the damage of past years. Offences of this gravity usually call for deterrent sentences which would teach others like the appellants that crimes of this sort would not be tolerated and would be severely punished. But the general principle is that a sentence of imprisonment, even though intended specifically as a general deterrence, must not be excessive in relation to the facts of the offence. This court thinks after a most anxious consideration of the age of the first appellant and all the circumstances of this case, that the sentences of fifteen years on each of counts (1), (4) and (5) are inordinately excessive and ought to be reduced and accordingly a sentence of ten years’ imprisonment with hard labour on each of those counts is accordingly substituted to run from the date of the original sentences. To that extent the appeal by the first appellant against sentence is allowed.
With regard to the second, third and fifth appellants, their sentences were just half the maximum, and with regard to the sixth appellant a little less than half of the maximum. This court does not think the sentences in these cases were so manifestly excessive as to justify any interference, having regard to the gravity of the offences. The appeals by the second, third and fifth appellants are accordingly dismissed. The fourth appellant, like the rest of the other appellants, was charged in count (10) under section 18 (2) of the Currency Act, and except that he was found in possession of the largest quantity of forged United States dollars, this court does not find any aggravating circumstances in the commission of the offence by him. His sentence of eight years’ imprisonment with hard labour is only two years short of the maximum sentence, and in the opinion of this court, the sentence imposed on him is manifestly excessive. Accordingly, the appeal of the fourth appellant is allowed and the sentence of eight years’ imprisonment with hard labour on count (10) is set aside, and a sentence of six years’ imprisonment with hard labour is substituted thereafter to run from the date of the original sentence.
DECISION
Appeal by first appellant against conviction dismissed.
Appeal by first and fourth appellants against sentence allowed in part.
Appeal by second, third and fifth appellants against sentence dismissed.
S.Y. B.-B