DARKO v. THE REPUBLIC [1968] GLR 203

DIVISION: HIGH COURT, ACCRA

DATE: 4 MARCH 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

APPEAL against conviction for stealing. The facts are sufficiently stated in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

Ofosu-Asante for the appellant.

Tawia Adamafio for Tawiah, for the Republic.

JUDGMENT OF AMISSAH J.A.

After considering the evidence and the submissions by counsel on both sides I have come to the conclusion that this appeal against conviction should be dismissed. Substantially the issue was one of fact, namely whether or not a large quantity of blankets found with a co-accused and one other person had been stolen by the appellant. There was evidence coming from the co-accused that the appellant had brought the blankets to him to dispose of. Corroboration of this evidence came from others who said they had seen the appellant arrive in a lorry at a store which was under the control of the co-accused and that the blankets had been off-loaded from that lorry. There was also evidence that blankets of a similar kind and in similar packing had been lost from a certain government bungalow where they were held. It has been argued that the evidence connecting the appellant with the blankets was suspect. But this was a matter for the trial judge. What evidence there was, if believed, was sufficient to establish his connection with the transaction beyond doubt. Admittedly the evidence identifying the blankets found as the blankets lost was circumstantial. But it has not been unknown for the prosecutor to be unable to swear positively to the loss of the articles said to have been stolen. Nor will the prosecution for stealing necessarily fail for lack of positive proof that the property found on the prisoner and alleged to have been stolen is the prosecutor’s: see, for [p.205] of [1968] GLR 203 example, R. v. Burton (1854) 6 Cox C.C 293 and R. v. Mockford (1868) 11 Cox C.C. 16.

Learned counsel for the appellant has urged that the trial judge failed to consider the defence in that after stating its effect he omitted to make an express finding on it. According to this argument the judge must go beyond summarising the defence to give an opinion as to whether it is to be believed or reasonably probable or not. I do not think that the judge’s opinion on the defence need be stated in any particular formula of words. The maturity of a judge’s consideration of a case does not depend on the invariable inclusion of words like, “I do not believe the defence or think it reasonably probable.” After all he is not in his judgment instructing minds untutored in the law on the criteria they have to apply in arriving at their conclusion, as he would be doing in a summing-up to a jury or to assessors. Here he is stating his reasons for his own conclusion after those criteria have been applied. And unless it can be shown that he himself has not applied the requisite criteria the conclusion ought not be successfully challenged. In this connection, I do not think the omission to state any charmed words necessarily shows that a judge who is presumed to know what criteria to apply in deciding a criminal case has failed to apply them. The cases of R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A. and R. v. Ansere (1958) 3 W.A.L.R. 385, C.A. which explain the principle that an accused person should be acquitted if his defence is believed or if it is reasonably probable have keen urged on me. They do not, to my mind, call for uniformity of expression by judges or the use of any particular form of words. The crucial question relevant to the point in any ordinary criminal trial turns on whether the judge or tribunal of fact upon consideration of the whole evidence finds that the case of the prosecution has been proved beyond reasonable doubt. If the defence is believed, the prosecution has failed. This result equally follows if the story of the defence is reasonably probable because in this latter case the defence does cast a reasonable doubt on the case of the prosecution. The cases referred to do not as far as I know lay down any new principle of criminal justice. On the contrary, all they do is to approach the problem of the onus of proof from the position of the case for the defence. Where, therefore, the court convicts only because it takes the view that the accused person’s defence is not to be believed this is equivalent to shifting the burden of proof on to the defence. For it does amount in effect to saying that he is entitled to be acquitted only if he proves his defence to the satisfaction of the court. By implication the court would then have relieved the prosecution of its duty to prove its case beyond reasonable doubt which it is not entitled to do. A court [p.206] of [1968] GLR 203 cannot therefore stop short at saying that it is convicting the accused because it does not believe his story. It must go further and show whether his story does not create a reasonable doubt either. This is recognised in that passage of the judgment of the West African Court of Appeal in R. v. Grunshie (supra) where van Lare J. (as he then was) said at p. 38:

“With these submissions we agree as we are unable to discover that the defence was adequately considered, and there was no direction to acquit if the defence raised a reasonable doubt. It is not safe to dismiss the defence of an accused person, especially on a charge of murder, simply by finding his case as not being true if, on the whole of the evidence, his case might reasonably be true. In such a case the prosecution would have failed to discharge the onus of proving the case beyond reasonable doubt.”

(The emphasis is mine.) It will be noticed from both Abisa Grunshie and Ansere that the trial judge had convicted the accused because he said he did not believe the defence of the accused. There is no doubt that a judge who says that openly proclaims that he has not properly applied the criteria for a decision in the ordinary criminal case. Where, on the other hand, the judge comes to the conclusion after dealing with the evidence on both sides that the prosecution’s case is proved, as he did in this case, then unless it can be otherwise shown that he has in his consideration cast the onus of proof on the accused, then he does by inference say that he does not accept the defence as true or as reasonably probable. The appeal against the conviction in this case is accordingly dismissed. As far as the sentence goes, this was the first offence which the appellant had committed. He had a good service record in the Army and a plea in mitigation was put in by the Army officer defending him. I do think in the circumstances that imprisonment for a year which is the maximum which should be imposed for a first offence after a summary trial is a bit excessive.

I would therefore reduce it to six months’ imprisonment.

DECISION

Appeal dismissed.

Sentence reduced to six months’ imprisonment.

S. K. T