HIGH COURT, TAMALE
Date: 6 NOVEMBER 1974
ATA-BEDU J
CASES REFERRED TO
(1) R. v. Williams (1913) 77 J.P. 240; 29 T.L.R. 188; 8 Cr.App.R.133, C.C.A.
(2) Badmos v. Commissioner of Police (1948) 12 W.A.C.A. 361.
(3) R. v. Barnes and Richards [1940] 2 All E.R. 229; 56 T.L.R. 379; 84 S.J. 258; 27 Cr.App.R. 154, C.C.A.
(4) R. v. Ahenkora and Badu [1960] G.L.R. 160, C.A.
(5) 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.
(6) R. v. Tomey (1909) 2 Cr.App.R. 329, C.C.A.
(7) 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.
(8) R. v. Modam (1938) 4 W.A.C.A. 39.
(9) R. v. Kirkham (1909) 2 Cr.App.R. 253; 73 J.P. 406, C.C.A.
(10) R. v. Tate [1908] 2 K.B. 680; 77 L.J.K.B. 1043; 99 L.T. 620; 72 J.P. 391; 52 S.J. 699; 21 Cox C.C. 693; 1 Cr.App.R. 39, C.C.A.
(11) R. v. Moore (1942) 28 Cr.App.R. 111, C.C.A.
NATURE OF PROCEEDINGS
APPEAL from a decision of a circuit court convicting the appellant for stealing. The facts are sufficiently stated in the judgment.
COUNSEL
A. A. Oppong for the appellant.
I. Y. Buamah, Assistant State Attorney, for the Republic.
JUDGMENT OF ATA-BEDU J.
The appellant was convicted on 13 July 1973, by the Circuit Court, Tamale. He was the first of three accused persons charged separately as follows: The appellant (as the first accused) with stealing “ten cassette tapes of tape recorder” valued at 060.00 the property of one Oscar Ntim on or about 14 May 1973; Dominic Baba Amagsime (as the second accused) with dishonestly receiving the said “ten cassette tapes of tape recorder” from the appellant on 14 May 1973 and Alex Aminu Kadri (as the third accused) also with receiving from the second accused the said “ten cassette tapes of tape recorder” or 31 May 1973. After the evidence of the third prosecution witness, the second and third accused changed their pleas of not guilty to pleas of guilty resulting in their conviction and sentence to the terms of fifteen months’ imprisonment with hard labour and twelve months’ imprisonment with hard labour respectively. At the close of the case for the prosecution the submission of no case made on behalf of the appellant was overruled and the appellant was convicted and sentenced to a term of eighteen months’ imprisonment with hard labour after the close of the evidence of the appellant who did not call any witness.
Aggrieved by this conviction the appeal has been brought on the following original grounds:
(1) The appellant ought not to have been called upon after the close of the prosecution’s case.
[p.120] of [1975] 1 GLR 118
(2) The learned trial judge failed critically to consider the law on accomplices.
And the further grounds are:
(1) The judgment cannot be supported by the evidence on the record.
(2) The trial judge failed to examine the defence of the appellant.
In arguing the first ground of the further grounds of appeal it was contended that if there was any evidence to connect the appellant with the parcel containing the ten tapes it could be that of the third and fourth prosecution witnesses which is conflicting as to the time the parcel was alleged to have been given to the fourth prosecution witness. It was further contended that the evidence of the first and second prosecution witnesses did not connect the appellant directly with the offence charged.
In criminal trials the identity of the accused as the person who committed the crime may be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it may be inferred by the court. In Cross on Evidence (2nd ed.) at p. 43 this is what is stated:
“When there is no doubt that an act has been done, and the question is whether it was the act of a particular person, all relevant evidence is normally admissible in order to prove or disprove that fact.”
Opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done are admissible to prove identity: see Phipson on Evidence (10th ed.) at p. 171, para. 383.
The evidence for the prosecution on the record of appeal is that the appellant, who was the assistant to the second prosecution witness, the assistant traffic officer of the State Transport Corporation stationed in Tamale, at the material time, was in charge of parcels for delivery on arrival of buses. On 14 May 1973, the appellant received three parcels consigned to the first prosecution witness from F. Malawi and Company which, according to the second prosecution witness were placed in the parcels room. The parcels room, according to the second prosecution witness and the appellant, had two doors; the one leading outside was always locked with the key left in the keyhole inside when there was no transaction. The other door led into the office of the second prosecution witness which was not locked during office hours. The office of the second prosecution witness itself was accessible to other members of the staff and the door from there leading to the parcels room was shut but not locked during office hours and even when there was no transaction. Except those on business with the parcels office, delivering or receiving parcels, the parcels office was not accessible to everyone.
The first prosecution witness later on 14 May 1973 called on the second prosecution witness for the parcels but, according to the second prosecution witness, the appellant could not be found to deliver the parcels. The first prosecution witness was told by the second prosecution witness to come back on the following day but before the first prosecution witness left, the second prosecution witness made sure that the three parcels consigned to the first prosecution witness were in the room. When the first prosecution
[p.121] of [1975] 1 GLR 118
witness called on 15 May 1973 for the parcels, the second prosecution witness asked the appellant to attend to him and the parcels were delivered to the first prosecution witness intact in the presence of the second prosecution witness. According to the first prosecution witness before the parcels arrived, F. Malawi and Company, the consignors, had told him that two of the parcels were sealed and the other one was tied with a rope and that the waybill was in one of them. In answer to counsel, the first prosecution witness confirmed that the parcels were intact when delivered to him; two were not touched but the third was secured with a rope and he could not say whether it had been interfered with. According to him, he did not see the waybill when he took the parcels to his store but after his contact with the consignors on the telephone and the receipt of the duplicate waybill he discovered that the waybill accompanying the parcels and one packet of cassette tapes containing ten tapes were missing. He immediately went back to the appellant and complained to him. According to the first prosecution witness, the appellant and the second prosecution witness told him they would investigate the complaint but the evidence of the second prosecution witness was that the first prosecution witness reported to him the loss of not only the packet containing the ten tapes but also the waybill. He told the first prosecution witness to make his own inquiries and report to the police for action to be taken since, in his opinion, his office was not responsible. On 31 May 1973 at 4.15 a.m. the second prosecution witness was told on the telephone by the first prosecution witness that the appellant had been arrested in connection with the missing tapes. According to the second prosecution witness, the appellant was the only person who handled all the parcels received at the station.
But the evidence adduced to connect the appellant with the missing tapes was that of the third and fourth prosecution witnesses. The evidence of the third prosecution witness, the watchman at the State Transport yard at the material time, was that on 14 May 1973 he was on duty at the main gate when at 2.00 p.m. the appellant came from the yard and gave him a parcel wrapped in a Daily Graphic newspaper to look after it for him; he did not know the contents. The appellant then left but later went back for the parcel in the absence of the third prosecution witness. According to the third prosecution witness the second accused (the fourth prosecution witness) went to him on the following day, that is, on 15 May 1973, and asked what the appellant gave him on the previous day; he told him what happened. The second accused in his evidence as the fourth prosecution witness, said on one Saturday in May 1973 he was returning from the new offices of the Fire Service where he was employed to their old office, which shared the same compound with the State Transport Corporation, when he met the appellant who called him and gave him some tapes wrapped in a Daily Graphic newspaper. The appellant told him the parcel contained ten tapes which were given him by a bus conductor from Kumasi with instruction to sell. The fourth prosecution witness agreed to sell and offered them to the third accused who did not buy them but said he could assist in the disposal of them. According to the fourth prosecution witness, he told the third accused that the tapes belonged to a boy
[p.122] of [1975] 1 GLR 118
working at State Transport Corporation and that the owner would give them a gift out of the proceeds. He said later the appellant became frightened when he informed him that the tapes had been sold to the O.K. store-keeper (the fifth prosecution witness) and that the purchaser had requested the owner of the tapes to be present before payment could be made. Unaccompanied by the appellant, the fourth prosecution witness and the third accused went back to the O.K. Store for the payment but they were there arrested. The appellant was arrested after the fourth prosecution witness had mentioned him as the person who gave the tapes to them to sell. There appeared contradictions in the evidence of the third and fourth prosecution witnesses as to dates when the parcel passed from the appellant to the fourth prosecution witness and also when the fourth prosecution witness talked to the third prosecution witness about what the appellant had given him (the third prosecution witness) on the previous day. The fourth prosecution witness’s evidence was that he received the tapes from the appellant outside the State Transport yard a few yards from the gate on 13 May 1973. He denied talking to the third prosecution witness on 15 May 1973 but said it was on 14 May 1973. However, he said he could not be precise about the actual dates in the transaction.
In his explanation after the change of his plea to one of guilty, the fourth prosecution witness said that on 13 May 1973, when the Fire Service was moving out of the State Transport yard, the appellant called him and said he should endeavour to see him when he was less busy. Later he saw the appellant in the yard where the appellant told him to wait for him outside the yard. He went out. He saw the appellant deposit some parcel wrapped in a Daily Graphic newspaper by the watchman at the gate. The appellant then walked to him and told him he had got ten tapes which he wanted him (the fourth prosecution witness) to sell for him since he was busy with the buses arriving from Kumasi. In reply to his question as to ownership, the appellant is alleged to have said that he owned them and explained that the tapes were given him by a bus conductor from Kumasi who had continued his journey on the Wa bus to Wa.
The evidence of the appellant in his defence was that he delivered the parcel to the first prosecution witness on the day after he had received them from Kumasi. Later the first prosecution witness made a report to the second prosecution witness in his presence that he could not find the waybill in the parcel and therefore could not know what was actually consigned to him. The second prosecution witness advised the first prosecution witness to check up with Kumasi whether or not a waybill was enclosed and the first prosecution witness left. Subsequently, he saw the first prosecution witness give a small empty packet to the second prosecution witness but did not hear what was discussed. After that the first prosecution witness left. The appellant admitted leaving a parcel by the gate where the third prosecution witness was on duty but collected it later in the absence of the third prosecution witness on the same day. The parcel, he said, contained cooked rice which he had bought at the bus stop. The parcels office, he said, was accessible to all workers of the State Transport
[p.123] of [1975] 1 GLR 118
Corporation and described its condition as testified to by the second prosecution witness adding that the key to the main door of the office was kept by the night watchman. He denied giving any parcel to the second accused (the fourth prosecution witness). He admitted that although after the arrival of the bus he was required to remain at his post to serve the public, he left his post before the closing time on that day. He denied the suggestion that he was solely responsible for delivery of parcels to the public. He said he did not detect any interference with the parcels when he delivered them to the first prosecution witness. He did not admit the suggestion that the parcel he deposited at the gate did not contain cooked rice but the tapes. Such was the evidence at the trial when the learned circuit judge rejected the defence and convicted the appellant.
Developing the first of the original grounds of appeal that the appellant ought not to have been called upon after the close of the prosecution’s case it was contended on behalf of the appellant that the fourth prosecution witness was an accomplice whose evidence needed corroboration. The submission on this point was that there was no corroboration.
I have read carefully the ruling of the learned trial judge from which it is abundantly clear that there was a prima facie case to answer. It is apparent on the face of the record that the learned trial judge reviewed and considered every aspect of the evidence relevant to the points raised in the submission of no case, namely, that the fourth prosecution witness was an accomplice and that his evidence was not corroborated on every material particular. Although the learned trial judge found that the evidence of the fourth prosecution witness was “more direct and specific,” he found also that there was the evidence of the third prosecution witness connecting the appellant with the offence charged. The evidence of the first and second prosecution witnesses considered together with that of the third and fourth prosecution witnesses satisfied him that the appellant had a case to answer and therefore should be heard.
Before I come to deal with the question of accomplice, I am called upon to consider the submission on a point which was not taken at the trial court which is that the contradictions in the evidence of the third and fourth prosecution witnesses as to the dates when the parcel alleged to contain the ten tapes passed from the appellant to the fourth prosecution witness and also when the fourth prosecution witness talked to the third prosecution witness about what the appellant had given him (the third prosecution witness) on the previous day. The fourth prosecution witness said he spoke to the third prosecution witness on 14 May 1973 but not on 15 May 1973 about the tapes as alleged by the third prosecution witness. There is no evidence of what the date of the Saturday mentioned was but if by the evidence on record, the undisputed date is 14 May 1973, then it is immaterial if the fourth prosecution witness said the appellant gave the tapes to him on 13 May 1973. In fact, the fourth prosecution witness eventually said he could not be precise about the date of the actual transaction. As has been held in the case of R. v. Williams (1913) 8 Cr.App.R. 133, C.C.A. and stated at p. 213 of Cross on Evidence (supra), such a contradiction will not obliterate the testimony sufficient to designate the actual date of
[p.124] of [1975] 1 GLR 118
the occurrence. This could not create such a doubt as to enure to the benefit of the appellant.
Adverting now to the issue whether or not the fourth prosecution witness was an accomplice the learned trial judge in his ruling rejected the submission on behalf of the appellant that the fourth prosecution witness was an accomplice as misconceived relying on the statement of the rule in the case of Badmos v. Commissioner of Police (1948) 12 W.A.C.A. 361 (as stated in the headnote) thus:
“An accused person who gives evidence which incriminates a co-accused is not an accomplice of the co-accused, and though such evidence should be suspiciously regarded and cautiously accepted, it does not require corroboration.”
Other cases on which he relied are R. v. Barnes and Richards (1940) 27 Cr.App.R. 154, C.C.A. and R. v. Ahenkora and Badu [1960] G.L.R. 160, C.A. In the Ahenkora case the court (as stated in the headnote at p. 161) followed the law stated in the Barnes case as follows:
“[W]here prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given the incriminating evidence is not placed in the position of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case. The rule applies only to witnesses called for the prosecution.”
After the evidence of the appellant, the same submission made on his behalf that the fourth prosecution witness was an accomplice and that the two cases referred to above did not apply was also rejected and this is what the learned trial judge said:
“I have read the cases above referred to and I am of the view that the evidence given by the second accused as the fourth prosecution witness is evidence given on his own behalf that is to say evidence showing his involvement in the crime. I am of the view that the cases of Badmos and Ahenkora apply to the instant case.”
For the purpose of the rule as to warning, Lord Simonds L.C. in the case of Davies v. Director of Public Prosecutions [1954] 1 All E.R. 507 at p. 513, H.L. gave the definition of the term “accomplice” as including the following persons, if called as witnesses for the prosecution: (i) persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in the case of felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours); (ii) receivers of the thieves from whom they receive goods on a trial of the latter for larceny; and (iii) where a person is charged with a specific offence on a particular occasion, and evidence is admissible and has been admitted, of his having committed crimes of the identical type on other occasions as proving system and intent and negativing accident, parties to such other similar offences who give evidence of them.
[p.125] of [1975] 1 GLR 118
What this court is concerned with is the category (ii) in which the fourth prosecution witness is placed but the above definition should not lead to any difficulty in seeking the answer to the question whether the fourth prosecution witness, having been charged together with the appellant, could be deemed as an accomplice when he has given evidence for the prosecution. The answer, no doubt, is in the affirmative and the learned assistant state attorney has conceded the point. It is the learned trial judge, who, in his view, seemed to differ. What to me seemed to have blurred his view is his misconception of the term in the statement of the law in the case of R. v. Barnes and Richards (supra), namely, “evidence on his own behalf incriminating a co-prisoner” which patently is not the same in meaning as “evidence on his own behalf that is to say showing his involvement in the crime” expressed by him.
Where a co-accused in his defence steps out of the dock and walks into the witness-box and gives evidence implicating his co-accused he is, in my opinion, deemed as giving evidence on his own behalf and therefore, is not deemed as an accomplice. For this opinion I find support in the same case of Barnes and Richards (supra) relied on by the learned trial judge where Mrs. Hewitt and Mrs. O’Hara as co-prisoners were not called as witnesses for the prosecution but went into the witness-box to give evidence and gave evidence on their own behalf. It was held that the rule with regard to corroboration did not apply. The position is different where the co-accused has been called as a witness for the prosecution. In such a case the co-accused who has given the evidence implicating his co-accused is deemed an accomplice and the rule will apply. What makes the distinction is that here, when it is proposed to call such a co-accused as a witness, the practice is to take his plea on arraignment or during the trial if he withdraws his plea of not guilty. He must be sentenced before he is called. I refer to the case of R. v. Tomey (1909) 2 Cr.App.R. 329, C.C.A. the headnote of which reads as follows: “A co-prisoner who has pleaded not guilty may be allowed to plead guilty, and may then be sentenced and called against co-prisoners jointly indicted.” And as the Lord Chief Justice said in the case of R. v. Tomey (supra) at p. 330: “The case of a prisoner jointly indicted with others can be disposed of before the case against the others is proceeded with.” (See also Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 1307). It is clear from the foregoing distinction that the learned trial judge misdirected himself as to the application of the rule and erred when he held that the fourth prosecution witness was not an accomplice and therefore the rule of practice with regard to corroboration did not apply in the present case.
Although the learned trial judge was prevented by this error from warning himself as to the danger of convicting on the evidence of an accomplice he found there was corroboration of the evidence of the fourth prosecution witness to warrant conviction of the appellant. And this is what he said in his judgment:
“If I am wrong in so holding I am satisfied that the evidence of the first, second and third prosecution witnesses when considered together with that of the second accused (the fourth prosecution witness)
[p.126] of [1975] 1 GLR 118
show the guilt of the first accused beyond doubt. I have already given reasons for this conclusion. In the result I am satisfied that even if the second accused is an accomplice there is corroboration from the first, second and third prosecution witnesses to link and connect the first accused with the offence charged. I find on the totality of the evidence that the guilt of the first accused has been proved beyond doubt. I find the first accused guilty and accordingly convict him on count one.”
As was said in R. v. Baskerville (1916) 12 Cr.App.R. 81 at p. 91, C.C.A.: “The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.” Also in the case of R. v. Modam (1938) 4 W.A.CA. 39 at p. 40 the court was of the view that “it is not necessary that the corroborative evidence should corroborate the accomplice’s evidence in detail, but what is essential is that there should be some independent evidence which definitely associates the accused with the crime.” The conduct of the appellant on 14 May 1973, namely, as the sole person responsible for delivery and receipt of parcels and his disappearance from his post before the official closing time after receiving the parcels and depositing with the third prosecution witness at the gate a parcel wrapped in the Daily Graphic newspaper were circumstances which afforded sufficient corroborative evidence and the learned trial judge rightly so held.
The courts have often laid down as a rule of practice that unless the evidence of accomplices be corroborated, it is a fatal defect if a caution be not given to the jury, but it has been held also in R. v. Kirkham (1909) 2 Cr.App.R. 253, C.C.A. that if there is sufficient corroboration of accomplice’s evidence, the court will not interfere, despite the want of proper warning. In the case of R. v. Tate [1908] 2 K.B. 680, C.C.A. referred to in the case of Davies v. Director of Public Prosecutions (supra) at p. 511, the conviction was quashed for want of warning to the jury as to the need for corroboration of the evidence of an accomplice but the court added that the want of a warning would have been excused and the maintenance of the conviction justified if there had been in fact enough corroboration. And in the case of R. v. Moore (1942) 28 Cr.App. R. 111, C.C.A. it was held that the existence of sufficient corroboration was regarded as an adequate substitute for compliance with the rule.
In my judgment I find that on the facts there was sufficient corroborative evidence and in the light of the two authorities, R. v. Tate and R. v Moore, the absence of the warning will not justify the quashing of the conviction. The appeal is therefore dismissed.
DECISION
Appeal dismissed.
S. Y. B.-B.
