BRUCE v. COMMISSIONER OF POLICE [1963] 1 GLR 36

DIVISION: IN THE SUPREME COURT

DATE: 18TH JANUARY, 1963

BEFORE: ADUMUA-BOSSMAN, OLLENNU AND AKUFO-ADDOJJ.S.C.

CASES REFERRED TO

(1) R. v. Bandoh (1944) 10 W.A.C.A. 190

(2) Setrena v. The King (1951) 13 W.A.C.A. 132

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NATURE OF PROCEEDINGS

APPEAL against convictions for stealing, forgery and falsification of accounts entered by the Circuit Court, Accra. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

K. Narayan for the appellant.

Annan, Senior State Attorney, for the respondent.

JUDGMENT OF AKUFO-ADDO J.S.C.

Akufo-Addo J.S.C. delivered the judgment of the court .The appellant George Frank Cleland Bruce (hereinafter referred to as Bruce) was at all material times a clerk of the Accra City Council. As such clerk he was responsible for, among other things, the issue of extension of hours licences to hotels and other entertainment establishments on the application of, and upon payment of the requisite fees, by the proprietors of such hotels and entertainment establishments. The prescribed fee payable is ten shillings for every extended hour beyond midnight.

On various days in March and April last year (1962) the appellant Bruce on the application of one Godson Udensi Okpara (hereinafter called Okpara) the proprietor of a bar known as Hotel de Africana at Christiansborg issued to Okpara a number of extension of hours licences.

In these licences, as was discovered by the police, the extended hours indicated did not tally with those recorded in the stubs of the licences which remained in the licence book when the licences had been torn off through a perforation, the extended hours in the licences being in all cases longer than those recorded in the stubs. The licences in the possession of Okpara revealed that the extended hours stated therein had been altered (admittedly by Bruce) from figures which originally tallied with those in the stubs to different figures representing longer hours of extension. The fees indicated in the stubs as having been paid for these licences represented the correct amounts payable for the hours stated in the stubs. This meant that the fees stated in the stubs as paid were less than the fees which either should have been paid or were actually paid for the licences in the possession of Okpara.

It was also the duty of the appellant Bruce to make up daily a cashier’s return of daily receipts, and in the returns which he made for the various days on which the said licences were issued he reproduced the figures both for the hours in respect of which the licences were issued and the amounts paid in fees as stated in the stubs.

Bruce and Okpara were charged before the circuit court, Bruce with four counts of stealing the various sums of money which represented the differences between the amounts stated in the stubs and the fees payable for the hours indicated in the actual licences, four counts of forgery in respect of the alterations in the licences and four counts of falsification of accounts in respect of the entries made in the cashier’s return of daily receipts, and Okpara with four counts of aiding and abetting Bruce to steal and four counts of possessing forged documents (i.e. the licences).

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Bruce and Okpara were convicted on all the above-named counts. Both appealed against their convictions, and Okpara’s appeal was allowed.

On the hearing of Bruce’s appeal on the 30th November, 1962, learned counsel for the Commissioner of Police, as he had previously done in respect of the convictions of Okpara on the charges of aiding and abetting stealing, intimated his inability to support the convictions on the charges of stealing against Bruce. Having regard to the circuit judge’s finding that Okpara only paid the fees for the hours indicated in the stubs, and nothing more, upon the issue of the licences to him this course was the only rational one open to counsel. Bruce’s appeal therefore proceeded in respect of the two sets of charges of forgery and falsification of accounts.

First, as to the charges of falsification of accounts. A prototype of the particulars contained in the charge sheet in respect of these charges reads as follows:

“COUNT TWO:

For that you George Frank Cleland Bruce, Clerk, Accra City Council, on the 14th day of April, 1962, at Accra in the Eastern Circuit and within the jurisdiction of this court, being a clerk or servant in charge of the issue of Extensions of Hours Licence for the Accra City Council, with intent to facilitate the commission of crime, did falsify a certain paper, to wit, counter cashier’s return of daily receipts dated the 13th March, 1962, by omitting to make a fully and true entry of cash £Gl being fee charged in respect of extension of hours licence (F. Licence) No. 7809 dated the 14th March, 1962 issued to one Godson Udensi Okpara of House No. F.99/2, Christiansborg, Accra.”

Although the ground of appeal filed by learned counsel for Bruce in his attack on the convictions for falsification of accounts merely stated that “the intent to facilitate the commission of a crime was not proved,” in developing his argument on this point he also submitted that the charge as laid was bad in that the specific crime the commission of which the false accounting was intended to facilitate should have been stated in the particulars, and the omission so to state was fatal. Learned counsel for the Commissioner of Police, on being asked by the court what that crime was, at first submitted that it was “stealing.” Later, however, as his argument strayed into other aspects of the appeal he changed his views and submitted that it was “defrauding.”

The statutory provision relating to the formulation of charges for offences triable summarily is contained in section 112 (1) of the Criminal Procedure Code, 1960, and is in the following terms: “Subject to the special rules as to indictments hereinafter mentioned, every charge, complaint, summons, warrant, or other document laid, issued, or made for the purpose of or in connection with any proceedings before any Court for an offence, shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”

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Where a trained lawyer, after a solemn conviction founded on charges preferred, and on evidence tendered, by his own client, was even then unsure of the nature of the crime the commission of which the appellant was alleged to have intended to facilitate by his false accounting, it would be over-stretching human imagination to expect the appellant to glean from the particulars “reasonable information as to the nature of the charge” against him. The general principle of criminal law is that where a particular intent is the essence or a necessary constituent of the crime, that intent must be proved by the prosecution on whom lies the onus throughout. But intention not being capable of positive proof is generally implied from overt acts. On the basis of the principle that every person is presumed to intend the natural and probable consequences of his own acts, the prosecution may succeed in securing a verdict of guilty if they can prove that the acts of the accused person and the circumstances connected therewith lead to a certain natural result.

There may therefore be a good conviction for a charge of falsification of accounts with intend to facilitate the commission of a crime unspecified, for the circumstances may be such that the crime referred to generally in the charge can only be a particular crime and nothing else. In such a case we do not hold that the omission to specify the crime in the averment of intent would be fatal. But where the particular crime in the averment of intent is not specified, and on the whole of the evidence there is room for more than one view as to the intent of the accused person then the omission to specify the particular crime would be fatal.

That there is such room for more than one view of the intent alleged in the charges is amply borne out by the state of uncertainty in which learned counsel for the respondent found himself in dealing with this aspect of the matter, and in fairness to learned counsel we must say that the evidence taken together with the findings of the learned circuit judge justifies his uncertainty.

We hold, therefore, that having regard to all the circumstances the omission to specify in the particulars of offence the crime the commission of which the appellant was alleged by his conduct to have intended to facilitate amounts to a failure by the prosecution to state what is necessary for giving reasonable information to the appellant as to the nature of the charge as required by section 112 (1) of the Criminal Procedure Code, and therefore the charge as laid is bad (see R. v. Bandoh,1 and we cannot uphold the convictions on the charges for falsification of accounts.

Respecting the convictions on the charges of forgery, we must say at once that after very careful consideration of the submissions of Mr. Narayan, learned counsel for the appellant Bruce, we are unable to say that the convictions on these counts were wrong or that they for any of the reasons advanced by counsel cannot be sustained.

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The following grounds were argued by counsel, namely:

“(2) That the learned judge misdirected himself in holding that the Accra City Council was defrauded because of the failure of the appellant to account for certain sums of money lost by the Accra City Council.

(3) That the learned judge having found as a fact that second accused (i.e. Okpara) only paid to the appellant initially for the hours indicated on the stub and having made no finding that second accused paid any more to the appellant ought to have acquitted the appellant.

(4) That the intent to defraud was not proved.”

The sum-total of counsel’s submissions was that the finding that no more money than was indicated in the stubs was paid to the appellant by Okpara meant not only that the appellant could not be convicted of stealing, but also that that finding necessarily negatived an intent to defraud. While we unhesitatingly accept the first half of this submission (and indeed Mr. Annan for the Commissioner of Police conceded this point), we reject the second half of it as being wholly untenable. Whether or not an acquittal on charges of stealing negatives an intention to defraud by forgery arising out of the same transaction or course of conduct is entirely a question of fact depending on the circumstances of the particular case. It is not a question of law. A similar argument was considered by the West African Court of Appeal in the case of Setrena v. The King,2 and rejected by Sir Henry Blackall, President, in the judgment of that court read by him, and we associate ourselves with the principle therein stated.

Intent to defraud, like all other intents, as stated earlier, is incapable of direct proof, and if the prosecution proved that the natural consequence of the appellant’s acts (in this case the alterations made in the licences) was a loss to the Accra City Council, then, so long as the intent to defraud was averted to in the particulars of the charge, the prosecution would be entitled to a verdict of guilty, unless the accused person offered an explanation which established that there was no such intent on his part. In this case the prosecution did prove that the Accra City Council was defrauded in that it lost financially by Bruce’s forgeries, and Bruce did offer an explanation which the trial judge rejected as unacceptable. His explanation in effect was that he made the alterations in the licences at the request of Okpara for longer extensions than he had originally applied for and to be paid for in the ordinary course of events, that it was never his intention that the additional fees represented by the longer extension hours in the licences should not be paid (Okpara indeed maintained that he paid fully for the hours appearing in the licences), and that the omission on his part both to receive the additional fees from Okpara and to alter the particulars in the stubs to tally with the altered particulars in the licences was the result of inadvertence brought about by the very heavy pressure which his multitudinous duties imposed upon him. In other words these omissions occurred innocently.

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It was therefore open to the trial judge to consider this explanation and to accept or reject it, and we hold that, notwithstanding that the logical pattern of the judge’s findings as a whole may not be highly commendable, he rejected his explanation in no uncertain language: “It will be quite understandable” said the judge, “if the alteration occurred only once. But I cannot understand why it happened four times in respect of the same person. I do not believe the alterations were made as a matter of course.” Here, indeed, is a clear finding of the perpetration by the appellant of a series of forgeries all of the same kind (and thus constituting a system) which resulted in financial loss to the Accra City Council and which in our view negatives any defence of accident, mistake or inadvertence, and we have no reason to disturb that finding.

This appeal is allowed in respect of the charges of stealing and falsification of accounts contained in counts 3, 8, 13, 18, 2, 7, 12, and 17, and the convictions and sentences thereon are quashed, and it is directed that a judgment and verdict of acquittal be entered, and the appeal in respect of the convictions on charges of forgery contained in counts 1, 6, 11 and 16 is dismissed.

DECISION

Appeal allowed in part.

J. D