SUPREME COURT, ACCRA
DATE: 21ST DECEMBER, 1962
BEFORE: SARKODEE-ADOO, CRABBE AND BLAY, JJ.S.C.
CASES REFERRED TO
(1) R. v. Ogba Agu (1949) 12 W.A.C.A. 486
(2) Bharat v. The Queen [1959] A.C. 533; [1959] 3 W.L.R. 406; [1959] 3 All E.R. 292, P.C.
(3) Dankwa v. The King (1951) 13 W.A.C.A. 134
(4) R. v. Cugullere [1961] 1 W.L.R. 858; [1961] 2 All E.R. 343, C.C.A.
(5) R. v. Sarpong [1959] G.L.R. 383, C.A.
(6) R. v. Gyamfi [1960] G.L.R. 45, C.A.
(7) R. v. Adamu [1960] G.L.R. 91, C.A.
(8) R. v. Lee Kun [1916] 1 K.B. 337; 11 Cr.App. R. 293; [1914 15] All E.R. Rep. 603, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against convictions on two counts of possessing forged Ghana currency notes and two counts of uttering the said notes contrary to the Currency Act, 1960, ss. 18 and 17 (1), entered by Djabanor, J. sitting with the aid of assessors at the Kumasi Criminal Session on the 11th December, 1961.
COUNSEL
D.G. E. Brookman for the appellant.
C.E. L. Hewlett, Senior State Attorney for the respondent.
JUDGMENT OF CRABBE J.S.C.
Crabbe J.S.C. delivered the judgment of the court. In this appeal the substantial question that the court had to determine was whether on the proved facts the appellant knew at the material times that the currency notes which he was charged with possessing and uttering were forged.
The following facts of the case are taken from the judgment of the trial judge: “The case for the prosecution is briefly as follows: On Friday, 23rd March, 1961 at about 6 p.m. the accused went to Kwapanin village to buy some kente cloths. He is a weaver himself. He went to Kofi Peprah and Kwabena Mensah in their house and asked to buy these cloths. Kofi Peprah showed him what he had and they bargained. According to the prosecution the price agreed upon for the three kente cloths was £G51. Accused says it was £G52 — Kwabena Mensah was present with Peprah in the room when this transaction took place. According to the prosecution after the accused had selected the three cloths he was allowed to take them away and come and pay later. Peprah and Mensah knew accused before this. Accused took the cloths away and deposited them with his uncle Kofi Krah (P.W.5) in the village for safe-keeping. Later accused went back to Peprah’s house into his room and in the presence of Mensah accused counted fifty-one pound notes and gave them to Peprah. Peprah counted them again but on examining one of them he discovered that it was counterfeit. He there and then in the room and in the presence of both the accused and Kwabena Mensah told the accused that the money was counterfeit and so accused should take it back and return his cloths to him. Accused insisted that the notes were genuine and refused to give back the cloths to Peprah. At this stage accused left them in the room. Peprah and Kwabena Mensah followed him out and went to accused’s uncle’s house to report the matter to him.
Although they Peprah and Kwabena Mensah got there accused had not arrived. Peprah and Kwabena Mensah then reported to the uncle that his nephew Kwame Asamoah bought cloths from him and paid him with counterfeit notes, and that they had come to take back their cloth and give back his counterfeit notes to him. The uncle sent for the accused and put the matter before him. But again the accused insisted that what he used in paying for the cloths was genuine money. The matter was therefore reported to the town committee, and later accused and the complainants were taken to the Offinso police station.”
[p.209] of [1962] 2 GLR 207
Section 18 of the Currency Act, 1960,1(1) which makes the possession of a forged note an offence reads as follows:
“Any person, who, without lawful authority or excuse, the proof whereof shall lie on him, purchases or receives from any person, or has in his custody or possession, a forged note, knowing the same to be forged commits an offence and shall be guilty of a second degree felony.”
This section clearly provides that where a person is charged with the offence it is essential that the prosecution must prove that the accused knew that he had in his possession the forged note which is the subject matter of the charge. It is not necessary for the prosecution to lead evidence of actual knowledge; it is sufficient if there is evidence from which knowledge of the accused may be justifiably inferred. It is only when such evidence has been led by the prosecution that “the onus lies upon the accused to prove lawful authority or excuse for his possession, a burden it would be impossible for him to discharge unless it be established that he had knowledge of the possession,” per Verity C.J. in R. v. Ogba Agu.2(2)
At the trial after the appellant had given evidence on his behalf in course of which he maintained that he was not aware that the currency notes found in his possession were counterfeit, the learned trial judge summed up to the assessors. His summing-up notes on the first and second counts read as follows:
“2. Burden of proof explained.
—prosecution to prove the guilt of accused in each count beyond reasonable doubt.
3. Explain what prosecution has to prove in count 1.
— 51 notes counterfeit.
— possession without lawful excuse.
— accused knew they were counterfeit.
No excuse given because accused says he never possessed the 51 notes. Examine evidence for prosecution and for accused.
4. Count 2 — uttering these 51 notes.
5. notes counterfeit.
— Whether accused tendered them in payment for cloth.”
The direction on the third and fourth counts was given in the same language and by the same method.
In the opinion of this court the summing-up by the learned trial judge, albeit sketchy, was, except in one respect, unexceptionable inasmuch as he did put to the assessors those essential matters which they must take into consideration before making up their minds on the case as a whole.
It was therefore not surprising that each of the three assessors expressed the opinion that the appellant was not guilty on all the four counts. But four days later the trial judge gave the judgment of the court in which he found the appellant guilty on each count and convicted him accordingly.
The trial of this case was with the aid of assessors and under section 264 (1) of the Criminal Procedure Code, 19603(3)‘ “the decision shall be vested exclusively in the Judge.” A trial judge is not bound by the opinions of the assessors, but since under section 260 (1) of Criminal Procedure Code, 1960, the assessors are selected by the judge as fit persons to assist
[p.210] of [1962] 2 GLR 207
him in the trial it must be presumed that he must at least consider and take into account their opinions when forming his own independent judgment in the case. In Bharat v. The Queen4(4) Lord Denning, L.J. (as he then was) said: “According to section 246 of the Criminal Procedure Code the trial is by the judge ‘with the aid of assessors’. The judge is not bound to conform to their opinions, but he must at least take them into account. . . . Take this very case. Suppose the assessors had been properly directed, is it not possible that one or more of them might have been of opinion that the appellant was guilty of manslaughter only? If the majority had given such an opinion, the judge might possibly have accepted it in preference to his own. At any rate, he could hardly have rejected it without saying why he did so….”
It seems to this court that this appeal raised a novel point, because this was the first time that the decision of a trial judge had been challenged on the ground that he had misdirected himself in his judgment, even though he had properly directed the assessors. In some of the earlier cases the point taken was that there was an omission to direct the assessors on a point of law; but the courts had held that such an omission would not be fatal to a conviction unless it was shown that there was something in the judge’s decision which indicated that he did not direct himself aright. Thus in Dankwa v. The King5(5) it was said: “But a judge is presumed to know the law (ex parte Markham (34 J.P. 150)) unless there is something in his judgment which gives a contrary indication.” It seems to us therefore that where a case tried with the aid of assessors goes on appeal the real test is whether there is anything in the judgment of the court which displaces the presumption that the judge knows the law.
The most vital issue at the trial was whether the appellant knew at the time he offered the currency notes in payment for the kente cloths that they were forged. The onus of proving knowledge on the part of the appellant lay on the prosecution throughout the case. In his judgment the learned trial judge stated the law as follows: “By law the accused, once these counterfeit notes had been found on him, has to show lawful excuse for possessing them. In this case none is shown because accused says the notes were not found on him at all . . . I noted earlier on that the issue I have to decide is whether or not the accused used the 51 counterfeit pound notes exhibited here in paying for the cloths.”
With very great respect to the learned trial judge this court was of the opinion that the foregoing passages contained very serious misdirections on the burden of proof which go to the very root of the whole case. Even though once possession was proved the onus was upon the accused to prove lawful authority or excuse the onus still remained on the prosecution to give conclusive evidence that possession was accompanied with guilty knowledge.
The recent case of R. v. Cugullere6(6) was in our view clearly in point. The charge against the accused in that case was that he, in a certain public place, without lawful authority or reasonable excuse, had with
[p.211] of [1962] 2 GLR 207
him an offensive weapon. In his summing-up the chairman directed the jury in these words7(7): “The next thing is the question of possession. This is one of those cases where once the prosecution have proved possession the onus shifts to the accused to show that he was in lawful possession……”
In allowing the appeal in that case the Court of Criminal Appeal referred to the summing-up of the chairman and said8(8): “That is clearly wrong because as far as the question of possession was concerned the onus remained
throughout on the Crown to prove that the appellant knew that the pickaxe handles were in the van.
The Court is clearly of the opinion that on that ground alone this conviction cannot be allowed to stand.”
It is unfortunate that the trial judge who had four days earlier directed the assessors properly on the law relating to possession should himself have excluded from his own consideration the importance of the issue of knowledge. He made no positive findings on the knowledge of the appellant and his references to this matter such as, “Perhaps he knew they were counterfeit,” satisfied us that the learned trial judge himself had some doubt as to whether the prosecution had discharged satisfactorily the onus of proving that the appellant knew that the 51 currency notes were counterfeit.
In our view it would be begging the question, and indeed dangerous to the administration of justice to assume or for that matter to hold that the omission to state that essential element of proof in his judgment made no difference to his decision and was immaterial or that it is a mere omission which has not occasioned a miscarriage of justice.
It is true that the decision vested exclusively in the trial judge who is presumed to know the law but this court cannot and would not proceed on that assumption particularly where in a trial with assessors there has been a failure to observe the statutory directions given to all judges in such cases by the provisions of section 287 of the Criminal Procedure Code, 1960, which substantially re-enacts section 300 of the old Criminal Procedure Code.9(9) Section 287 reads as follows:
“(1) When, in a case tried with assessors, the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record their opinions.
(2) The Judge shall then give judgment, and in so doing shall not be bound to conform with the opinions of the assessors, but he shall record his judgment in writing and in every case the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the Judge at the time of pronouncing it.
(3) If the accused is convicted, the Judge shall pass sentence on him according to law.”
[p.212] of [1962] 2 GLR 207
The meaning and intendment of this provision, in a language which could not possibly be in plainer or more mandatory terms, was dealt with by this court in the case of R. v. Kwabena Sarpong,10(10) where the court said, inter alia: “ . . . where a Judge sits with the aid of assessors it is essential (and he is so required by the Statute whether he sums up to the assessors or not) that he should give a judgment in writing, from which it will appear to all who read it that he has, in arriving at his own verdict, instructed himself as fully as his duty would require him to instruct a jury, if he had in fact been sitting with a jury.”
This case was referred to and followed by the court in R. v. Gyamfi11(11) and also in R. v. Adamu.12(12)
Justice must be administered in accordance with the law. The importance of keeping the administration of justice free from all suspicion of unfairness cannot be over-emphasised.
“Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law.”
Per Lord Reading, C.J. in R. v. Lee Kun.13(13) These safeguards include the need for a full and correct direction on the essential elements of the charge and the burden of proof.
Learned senior state attorney informed the court that he was unable to support the convictions because he thought there was a reasonable doubt whether the appellant knew that the 51 currency notes were counterfeit. The court was in entire agreement with him.
In the view of this court the learned trial judge by his own misdirection disabled himself from taking the opinions of the assessors into account as he should have done, and his reasons for rejecting their opinions cannot in law be justified. The court is satisfied that had the learned trial judge directed himself properly in his judgment on the law he would probably have arrived at the same conclusion as the assessors.
For the above reasons we come to the conclusion after anxious consideration that it would not be safe to let the convictions stand. We therefore allow the appeal.
DECISION
Appeal allowed.
J. D.
