STATE v. ANNAN AND OTHERS [1965] GLR 600

DDIVISION: HIGH COURT, ACCRA

DATE: 8 OCTOBER 1965

BEFORE: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.

(2) Ryder v. Woombwell (1868) L.R. 4 Exch. 32; 38 L.J.Ex. 8; 19 L.T. 491.

(3) R. v. Taylor (1928) 21 Cr. App. R. 20, C.C.A.

(4) State v. Anani Fiadzo [1961] G.L.R. 416, S.C.

(5) R. v. Onufrejczyk [1955] 1 Q.B. 388; [1955] 2 W.L.R. 273; [1955] 1 All E.R. 247; 39 Cr.App.R. 1,

C.C.A.

(6) R. v. Horry [1952] N.Z.L.R. 111.

(7) R. v. Harris (1927) 20 Cr.App.R. 144 C.C.A.

(8) R. v. Boateng (1941) 7 W.A.C.A. 109.

(9) Re London and Globe Finance Corporation Ltd. [1903] 1 Ch. 728; 72 L.J.Ch. 368; 88 L.T. 194; 19

T.L.R. 314.

NATURE OF PROCEEDINGS

RULING on a submission of no case made by counsel for the accused persons. The facts are fully set out in the ruling.

COUNSEL

Gyeke-Dako, Senior State Attorney and Aikins, State Attorney, for the State. Armah for the first accused.

Okudjeto for the second accused.

Mensah for the third accused.

Mrs. Harlley for the fourth accused.

Zwennes for the fifth accused.

JUDGMENT OF HAYFRON-BENJAMIN J.

At the last hearing of this case, the prosecution after calling the fiftieth witness finally closed their case.

Learned counsel for each of the accused submitted that no case had been made out against any of the accused persons on any of the counts preferred against them. Learned senior state attorney then withdrew the charges

[p.602] of [1965] GLR 600 against the fourth and fifth accused persons on count 3, and also withdrew counts 4, 5, 6, 8, and 10. I therefore acquitted the third accused on counts 4, 5 and 6; the fourth accused on all the counts preferred against him, and the fifth accused on counts 8, 9 and 10. The senior state attorney then replied to the submission on the remaining and subsisting counts. I reserved ruling till today on the submission whether or not the prosecution have made out a case for the accused persons to be called upon to answer.

In Ghana, the position at the conclusion of the case for the prosecution is governed by express statutory provisions. Section 173 of the Criminal Procedure Code 1960,1 provides:

“If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.”

This refers to summary trials. The provisions relating to trials on indictment are found in section 271 of the Criminal Procedure Code, 1960, which states:

“The Judge may consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the Judge is of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted on the indictment upon which he is being tried, the

Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused.”

This section deals with trials on indictment, and its wording may seem to indicate that the draftsman had in view trials by jury. In State v. Ali Kassena2 these provisions came up for consideration and Azu

Crabbe J.S.C. (as he then was) giving the unanimous decision of the court said, “We think that the variation in the language of the two sections is deliberate, and it underlines the functions of a judge in a summary trial and trial by jury.” That case was an appeal from a jury trial, whereas in this case, I decided to sit with the aid of assessors. If that proposition is well-founded, and the variation in language was deliberate as underlying the functions of judge and jury, then it seems to me that the judge being the judge of both law and fact in trials with the aid of assessors, his powers of upholding a submission of no case would be wider in trials with assessors than in trials by jury. Happily I am not called upon to decide this point in this trial. I shall assume that the powers of upholding a submission of

[p.603] of [1965] GLR 600 no case are the same in all trials on indictment whether by jury or with the aid of assessors, and apply the narrow and more stringent provisions of section 271 to this case: What then is the meaning of “no evidence”? In Ryder v. Woombwell3 Wills J. said:

“It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge is… not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”

As Azu Crabbe J.S.C. said in the Ali Kassena4 case:

“The question which the judge has to consider at the close of the prosecution case in a trial on indictment is

`whether the prosecution has given reasonable evidence of the matters in respect of which it has the burden of proof.’ It is for him as a matter of law to determine whether the evidence adduced has reached that standard of proof prescribed by law…”

It seems to me therefore that a submission of no case ought to be upheld in trials on indictment if the judge is of the view that the evidence adduced will not reasonably satisfy a jury, and this I think will be the case first, when the prosecution has not led any evidence to prove an essential element or ingredient in the offence charged and secondly, where the evidence adduced in support of the prosecution’s case has been so discredited as a result of cross-examination, or is so contradictory, or is so manifestly unreliable that no reasonable tribunal or jury could safely convict upon it.

Before proceeding to consider the charges and the evidence adduced by the prosecution, I must allude to one rule of law applicable to criminal trials. It is this, that where several accused persons are charged on one indictment, it is obligatory on the court to consider the case against each accused separately.

The counts against the first accused are two of stealing. The particulars of count 1 are that on or about 5

May 1964, at Accra in the Eastern Region, he stole one parcel containing 7,620.25 carats of rough diamonds valued at £G18,288 12s. the property of Gutchen Ritterman & Co., Ltd., London. The particulars of the second count of stealing are that on or about 5 May 1964 at Accra in the Eastern

Region, the first accused stole one parcel containing 13,097 carats of rough diamonds valued at £G64,478

5s. 1d., the property of the Pituach Diamond Research & Development Co., Ltd., Tel-Aviv, Israel.

[p.604] of [1965] GLR 600

There is abundant evidence that about £G83,000 worth of diamonds has been stolen; the question which arises for determination is whether there is enough evidence that they were stolen by the first accused. To establish their case the prosecution have relied on a mass of circumstantial evidence, there being no direct evidence of theft. But as Lord Hewart said in R. v. Taylor5 “it is no derogation of evidence to say that is circumstantial.”

However, in State v. Anani Fiadzo6 Sarkodee-Addo J.S.C. (as he then was) stated the law as to circumstantial evidence when he said that:

“A presumption from circumstantial evidence should be drawn against the appellant [i.e., the accused person] only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion.”

In R. v. Onufrejczyk7 which was a case of murder Lord Goddard C.J. adopted the statement of law made in R. v. Horry8 that: “`the circumstantial evidence should be so cogent and compelling as to convince a jury that on no rational hypothesis other than murder can the facts be accounted for’”. Circumstantial evidence must therefore point to one and only one conclusion, and that is the guilt of the accused. As Azu

Crabbe J.S.C., said in State v. Ali Kassena9: “It would appear, however, that where circumstantial evidence has to be considered the law requires a particularly high standard of proof because: `There is an anxiety felt as to the detection of crimes, particularly such as are very heinous or peculiar in their circumstances, which often leads witnesses to mistake or exaggerate facts and tribunals to draw rash inferences; and there is also natural to the human mind a tendency to suppose greater order and conformity in things that really exists, and likewise a sort of pride or vanity in drawing conclusions from a number of isolated facts which is apt to deceive the judgment.’ See N.

W. Sibley, Criminal Appeal and Evidence, page 137.”

The evidence that the prosecution is relying on to prove the first count of stealing is that after two regularly sealed parcels had been

[p.605] of [1965] GLR 600 consigned at the export cargo section 2 at the Accra International Airport, the first accused processed the necessary papers and the parcels were left on the floor of the export section. Later the first accused and one Akyeampong delivered these parcels to Laryea who later locked them up in a safe in Accan’s office.

Later Laryea went to collect the parcels after the arrival of the President of the Congo Brazaville. He had earlier had a phone call that the plane had been delayed. Later he had another phone call that the plane would be arriving. He therefore went to Accan’s office, but Accan was not in. He went to Accan’s house for the key to the safe, and removed the three parcels which had been given to him earlier in the day by the first accused.

The prosecution says that Laryea then checked these parcels with Deku of the Customs and they were all intact, and that it was later that the first accused produced the fourth parcel for inspection by Deku. After this inspection Laryea gave the four parcels to the first accused and asked him to prepare the precious cargo receipts. According to him the first accused had in his custody these parcels all the time, until they were delivered on board the B.O.A.C. aircraft. The prosecution have led evidence to suggest that the same parcels which were taken on board the B.O.A.C. plane found their way to the office of Gutchen Ritterman

Ltd., London. One of the parcels was found to contain tropical sand of the type found at Labadi. The prosecution says that the first accused was the only person who had custody of these parcels after they had been checked by customs, and therefore he must have stolen them. Laryea and Cudjoe are the principal witnesses as to this, Laryea admitted on oath that he had previously made contradictory statements to the police.

On the authority of R. v. Harris10 therefore, no reliance or very little reliance can be placed on his word.

Cudjoe’s evidence negatives any inference that the first accused had any opportunity of preparing any bogus parcels to be used in switching. Laryea was the only one who had visited Labadi, and Biney, his companion that evening, was the only one who stayed at the Airport Hotel for any considerable length of time. Sand can be found at Labadi beach and biscuits are likely to be sold at a hotel. Nevertheless Laryea and Biney are not on trial. But where several persons have an opportunity of committing a crime, the prosecution does not prove that one of them committed the offence by calling the others to say that they did not. There must be some evidence of conduct consistent only with guilt established against the one accused. This evidence the prosecution says lies in

[p.606] of [1965] GLR 600 the fact that there were identical typing mistakes on another parcel consigned the same afternoon to Israel which was also found to contain biscuits instead of diamonds. The typing on the original consignment note was by the first accused.

The prosecution is asking this court to infer that because the same mistakes have been made twice, they must have been made by the same person. This inference might be legitimate if it had been established reasonably that the first accused was in sole custody of the parcels during the material period. There is evidence that the consignment notes when prepared are kept in a shelf accessible to all. There is evidence that the steel locker is accessible to all. Any person who wants to prepare a parcel would have access to the address from the consignment note from which he would try to make an accurate reproduction, thereby repeating the same mistakes. I do not think the circumstantial evidence in support of counts 1 and

2 is explicable only on the basis of guilt. I hold therefore that the prosecution has failed to prove the case against the accused. I therefore acquit and discharge him on both counts.

The charge against the second accused is that of dishonestly receiving 398 carrats of diamonds, contrary to section 146 of the Criminal Code, 1960.11 Section 146 provides that:

“Whoever dishonestly receives any property which he knows to have been obtained or appropriated by any offence punishable under this Chapter shall be liable to the same punishment as if he had committed that offence.”

The evidence on which the prosecution is relying to support this charge is that the accused was found on

15 May 1964 working on a quantity of diamonds some of which were of Congo origin and had formed part of a consignment sold to Hareel. Both Hareel and Keesje the Senior Valuer of the diamond

Marketing Board identified the diamonds as forming part of those sold to Hareel on 5 May 1964. It is argued that these diamonds are rare in Ghana and because no two diamonds are the same the second defendant should have detected them as being part of a consignment he had bought about seven months previously, when they were offered for sale on 15 May 1964. They further rely on the circumstances under which the second accused obtained the diamonds for the third accused, and also on what learned senior state attorney has described as the suspicious behaviour of the accused persons when confronted with the news that the diamonds formed part of the stolen diamonds.

[p.607] of [1965] GLR 600

I know of no rule of law or common sense that imputes to a buyer of natural produce the detective ability of a Sherlock Holmes. We are told that the diamonds sold to Hareel formed part of a consignment bought in October 1963. Even if this had been proved, it would not have been sufficient. Prosecution witnesses gave evidence which shattered in evidence. His evidence was to the effect that whenever foreign diamonds are bought, the voucher is so marked, and that in October 1963 no foreign diamonds were bought by the board. The evidence of the first prosecution witness was to the effect that the diamonds sold to Hareel formed part of the diamonds bought in October 1963. The fact that Congo diamonds were in Hareel’s consignment has therefore not been proved with that certainty required in criminal prosecutions.

Moreover, this court will be justifiably slow to draw the inference that a buyer in a busy state purchasing office should be able to identify and spot out all diamonds he had purchased even months previously.

Such an inference would place an intolerable burden on those whose duty it is to purchase natural produce. The fact that no two diamonds are the same does not mean a person should be able to identity every diamond he has purchased. I can find nothing in the circumstances under which the second accused obtained the diamonds from the third accused, or in his conduct subsequent to learning of the theft, that can lead any reasonable jury to the irresistible conclusion that the second accused at the time he got the diamonds for the third accused reasonably suspected them to have been stolen or unlawfully obtained. I hold therefore that no case had been made against the second accused on the charge of dishonestly receiving and I acquit and discharge him accordingly.

The third accused is charged on one count of dishonestly receiving 398 carats of diamonds, and one count of attempting to sell diamonds without licence. I have already set out the provisions of section 146 of the Criminal Code, 1960, when dealing with the case against the second accused. The evidence adduced by the prosecution in support of this charge is found in the accused’s own statement to the police, in the evidence of Detective Inspector Buadi, and in the testimony of Assistant Superintendent Arko. Before considering this evidence it is necessary to note that the necessary nexus between the stolen diamonds and those given by the third accused to the second accused has not been established by the prosecution.

It is the statement of the second accused which states that the diamonds found with the second accused on

15 May 1964, were those given to him by the third accused, and in the absence of any evidence that the third accused had at any time identified those diamonds as those he gave to the second

[p.608] of [1965] GLR 600 accused, I must hold that the prosecution have not established as against the third accused, that the diamonds he gave to the second accused contained Congo diamonds or were part of the stolen diamonds.

However,

“It is undoubtedly good law that on a charge of dishonestly receiving property knowing it to have been stolen, it is not essential to prove the identity of the property with property the proceeds of a particular theft, and that the necessary guilty knowledge may be inferred from all the circumstances of the case.”

See R.v. Boateng.12 It is therefore necessary to examine the other evidence referred to above.

In his statement to the police the third accused related in some detail how he came by the diamonds. He said that he got the diamonds from a man called Awudu Grunshie about four days prior to 16 May 1964.

The said Awudu Grunshie came to his house with the diamonds and requested him, the accused, to sell them for him. He had known the said Awudu Grunshie about three months previously at Korle Wokon,

Accra, and he was neither a friend nor a relative of his. He does not know whether Awudu Grunshie is a licensed diamond dealer. He also gives a narrative of his movements after Biney had reported to him of the theft. He says that he went to town in search of the said Awudu Grunshie, he visited Korle Wokon, and later in the evening went to Adeiso, where he made fruitless searches for the man Awudu Grunshie.

He returned to Accra to find that his wives had been arrested. He therefore went to the police stations at

Kotobabi, Nima and Central where the police at these stations could offer him no information about his missing wives. He returned to his house and was there arrested by the police. He made this statement the same day.

The prosecution’s contention is that Awudu Grunshie is a fictitious person, and the evidence adduced in support of this contention is found in the evidence of Detective Inspector Buadi, who said that he was at the house of the third accused when the third accused arrived there at about 7.30 a.m., on 16 May 1964.

When he interrogated him, the third accused said he had been to Adeiso the previous night to look for one

Awudu Grunshie who had given him the diamonds. He took the third accused to the C.I.D. Headquarters where he was detained. Detective Inspector Buadi then went to Adeiso without the third accused in search of Awudu Grunshie,

[p.609] of [1965] GLR 600

“who was described as a tall and popular man.” He did not find this man Awudu Grunshie even after contacting the chief and some butchers. He later made several investigations but could not trace Awudu

Grunshie. He at all times went on these searches without the third accused because the third accused had informed him that he did not know the house of Awudu, and that he the third accused had gone to Adeiso.

Assistant Superintendent Arko in his evidence said that the third accused was detained in custody from the time of his arrest up to the time he was released on bail at the district court. It is suggested by the prosecution that the third accused had had enough time since his release on bail to have produced the said Awudu Grunshie. The question that has to be asked is produce him to whom?

I do not know of any rule of law or practice that obliges an accused person to produce to the police extra judicial evidence tending to exonerate him after he has been charged with an offence and put before the court. The police by charging the accused are presumed and indeed are deemed to have enough evidence to substantiate the offence charged at the time of charging him. I do not think they can safely infer that

Awudu Grunshie is a fictitious person. I do not think the accused was given enough opportunity to locate or find the said Awudu Grunshie.

However, the fact that the prosecution has failed to adduce enough evidence from which the court can draw an inference that Awudu Grunshie is fictitious does not materially affect the case against the third accused on the charge of receiving. If from the circumstances surrounding the receipt of the diamonds from Awudu Grunshie the case raises the reasonable inference that they were unlawfully obtained, the third accused must be called upon for his defence. Although this point was not raised by learned senior state attorney, I shall deal with it. The relevant circumstances are (a) the quantity of diamonds given by

Awudu Grunshie to the third accused was large, (b) the fact that the third accused was not at that time either a licensed dealer or winner and (c) the fact that he did not inquire whether Awudu Grunshie was a licensed winner.

However the assertion by the third accused that he had once been a licensed dealer was not checked up by anybody. He states that his licence expired about four years prior to 1964, but that he continued to deal in diamonds by selling through other persons’ licences. There is enough evidence to establish that this is a general practice among those engaged in diamond business. No suspicion can therefore attach to the fact that Awudu Grunshie sent diamonds to the third accused to sell. The conduct of the third accused immediately after he heard

[p.610] of [1965] GLR 600 that the diamonds may be part of the stolen diamonds is consistent both with guilt and with innocence. I am therefore of the view that in the absence of any other evidence of suspicious circumstances it would be dangerous to infer that the diamonds given to the third accused by Awudu can be reasonably suspected to have been stolen or unlawfully obtained to satisfy the requirement of either section 146 or 148.

I therefore acquit and discharge the third accused on this count. The third accused has also been charged with attempting to sell diamonds without a licence contrary to section 18(2) of the Criminal Code and sections 3(1) (a) and 11 of the Ramond Mining Industry Protection Ordinance13. Section 3(1) (a) of cap.

152 provides that “Subject as hereinafter provided— . . . (a) no person shall sell any diamonds,” and section 11 provides that:

“Any person who—

(1) commits any act or makes any omission which constitutes or involves a contravention of any of the provisions of this Ordinance or of the Customs laws relating to the exportation of diamonds. . . shall independently of any other liability, be guilty of an offence against this Ordinance.”

[p.611] of [1965] GLR 600

The evidence on which the prosecution relies to sustain this charge can only be found in the statement of the third accused to the police. He states in that statement in clear unequivocal terms “I gave quantity of rough diamonds to Biney to sell for me. The quantity of the diamonds was estimated by me to weigh about 398 carats.” The prosecution has submitted that the second accused being the buyer for the

Diamond Marketing Board, this can only mean that they were offered to him to buy. I do not agree. The only interpretation I can put on the statement of the third accused is that he had obtained diamonds from a third party, and he asked Biney, the second accused to arrange the sale of the diamonds. Such conduct is already provided for in our Criminal Code. Section 20 of the Code provides:

“(1) Every person who directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging, or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime.”

I am of the view that all that the third accused did was to solicit the second accused to sell his diamonds for him. Section 20(2) provides that “Every person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment be deemed guilty of that crime.” The prosecution by charging the third accused with attempt impliedly contend that the crime was not actually committed, and therefore section 20(2) cannot apply. Section 154(1) of the Criminal Procedure Code,

1960, which provides that:

“When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence, although he was not charged with it,” also does not apply, because an abetment of a crime is not a lesser offence than an attempt to commit that offence. I am of the view therefore that the charge against the third accused for attempting to sell diamonds without licence cannot be sustained. I am further fortified in this view by the fact that there is no evidence that when the third accused asked Biney, the second accused, to sell the diamonds for him he solicited or even contemplated that the second accused was to sell the diamonds without licence. In the result, I acquit and discharge the third accused on the fifth count of attempting to sell diamonds without a licence.

The case against the fifth accused must now be considered. As I have already said the prosecution have withdrawn a number of counts against him. Those remaining are three, these are 11, 12, and 13, i.e. the forgery counts. Forgery is defined in section 159 as follows:

“Whoever forges any document whatsoever, with intent to defraud or injure any person, or with intent to evade the requirements of the law, or with intent to commit, or to facilitate the commission of, any crime, shall be guilty of a misdemeanour.”

The prosecution was obviously in a quandary as to which of these intents to impute to the accused person.

They originally charged him with forging with intent to facilitate the commission of a crime to wit, selling diamonds without licence. When I pointed out to them that it is curious to charge a person with a count of forging a document with intent to facilitate the commission of a crime which has already been committed, they sought leave to amend the charges to forging with intent to defraud. I allowed this amendment because counsel for the defence did not oppose the application. Strictly speaking there

[p.612] of [1965] GLR 600 is no power in the Criminal Procedure Code to allow such an amendment. There is power to amend where the charge is defective but not where the evidence adduced does not or is not likely to support a charge.

Anyway, the amendment did not help the prosecution.

The prosecution’s case is that the fifth accused sold diamonds to the Diamond Marketing Board under the licence of one Deneji. The Marketing Board made out a cheque payable to the said Deneji. The fifth accused endorsed the name of Deneji on the cheque as payee and the fourth accused identified him as

Deneji. The fourth accused was not charged either with forgery or any other offence connected with the cheques. The fifth accused presented the cheque at the Ghana Commercial Bank and was paid. On these facts the fifth accused is prosecuted for forgery.

I am of the view that the highest point at which the prosecution’s case can be placed is that the fifth accused intended to deceive the bank, and this does not amount to forgery. The first and primary consideration of the bank when paying out open cheques is that the drawer is a person with an account with that branch of the bank on which the cheque is drawn, and that he has sufficient cover for the cheques. In this case there is no dispute that the Diamond Marketing Board has sufficient cover for the cheques, and that the cheques were properly drawn. There is also no doubt that the Marketing Board intended to pay the fifth accused, although they thought that having sold under the licence of Deneji, he was Deneji. The position therefore is simply that the fifth accused endorsed the name of Deneji on a cheque to enable him obtain what was due to him. As Buckley J. said in Re London and Globe Finance

Corporation Ltd.14

“To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit; it is by deceit to induce a man to add to his injury.”

I hold that there is no case of forgery made against the fifth accused on any of the counts 11, 12 and 13 and I acquit and discharge him on each accordingly.

DECISION

Submission of no case upheld.

A. K. F.