THE STATE v. AMANKWA [1961] GLR 783

DIVISION: IN THE SUPREME COURT

Dayte: 22ND DECEMBER, 1961

BEFORE: VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.

CASES REFERRED TO

(1) Reekie v. The Queen (1954) 14 W.A.C.A. 501

(2) Helwani v. C. O.P. (1946) 12 W.A.C.A. 61

(3) Kassardjian v. The Queen (1955) 14 W.A.C.A. 686

(4) R. v. Davies (1954) 38 Cr. App. R. 11

NATURE OF PROCEEDINGS

APPEAL against conviction for stealing contrary to section 287(1) and falsification of accounts contrary to section 295(1) of the Criminal Code, Cap. 9 (1951) Rev.) recorded by Crabbe, J. sitting with the aid of assessors in the High Court, Sunyani, on the 18th January, 1961, reported at p. 56 ante, where the facts are fully set out. COUNSEL

K. Narayan for the appellant.

K. Dua Sakyi with him Adjetey for the respondent (the State).

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

Adumua-Bossman, J.S.C. delivered the judgment of the court [His lordship referred to the facts and the previous proceedings and continued:] The well-reasoned conclusion of the trial judge is challenged by the appellant on the main ground that the principal witness, the cashier, Joshua Okoe Tetteh, P.W. 10 should have been treated as an accomplice whose evidence required legally to be corroborated but was not. Learned counsel for the

[p.784] of [1961] GLR 783 appellant argued forcefully that the evidence available as to the cashier’s conduct established that he was an accomplice; the conduct referred to was that: (1) he entered up the cash requisition book (exhibit 1) as having requisitioned and received £G1,000, indicating the denominations of money which were supplied to him; (2) he wrote on the withdrawal form (exhibit B) that he identified P.W. 2 (Kofi Num) by his photograph; (3) he recorded in the savings account or pass-book (exhibit A) that the £G1,000 was paid out by him to Num, and he specified the denominations of money in which the payment was made; the appellant had testified that the cashier requisitioned for £G1,000 and he supplied him with the amount which he (the cashier) paid to Num, and the appellant relied on the cashier’s own entries in the relevant documents to support and establish his case. But even if that case was not believed, there was nonetheless the obligation of the learned trial judge to consider whether, having regard to the available evidence as to the cashier’s conduct in acting falsely in the matter of entering up the material documents in relation to the withdrawal of the £G1,000, he was not an accomplice. Counsel then went on to cite some of the cases (Reekie v. The Queen1(1), Helwani v. C.O.P.2(2) and Kassardjian v. The Queen3(3)) dealing with trials in which witnesses appear who turn out to be accomplices, and counsel emphasised and stressed the court’s obligation to have regard to the established rule of practice that corroboration of the evidence of the accomplice by the evidence of other independent witness or witnesses must be sought and found to be available, before an accused can be properly convicted, and that the jury with whom the judge is trying the case must clearly and expressly warned, as laid down in hose cases. learned counsel placed special reliance on kassardjian v. The Queen (Supra) in which the court referred to the English cases of R. v. Michael John Davies in the house of Lords4(4) and the definition of an accomplice given by Simonds, L.C. who in the course of his judgement said:

On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category [of accomplices]: — On any view, persons who are participes criminis, in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies); or persons committing, procuring or aiding and abetting in the case of (in the case of misdemeanours).”5(5) Applying the test laid down in that case and having regard to the cashier’s admitted conduct in aiding in the withdrawal of the £G1,000, he must be treated as an accomplice. Learned counsel concluded what the court shold have first determined and made a pronouncement on whether Tetteh was an accomplice, before proceeding to look for corroborative evidence. The learned Director of Public Prosecutions in reply stated that although the signing of the documents seem to indicate that Tetteh was

[p.785] of [1961] GLR 783 involved, yet as he gave explanations which the learned judge accepted, it cannot be maintained that his finding is unreasonable. Upon a careful consideration of the arguments on behalf of the appellant, we are of the opinion that the question whether the cashier, (Tetteh), was an accomplice or not, was essentially one of fact. We put the question to able counsel for the appellant whether, assuming the explanations given by the cashier were believed, he could be considered a particeps criminis and an accomplice, and counsel honourably conceded he could not then be considered an accomplice, but counsel insisted that from the available evidence it was not reasonably possible to believe the cashier’s evidence and explanations. We are, however, unable to agree with him in this view that from the available evidence it was not reasonably possible to believe the cashier’s evidence, and from our own careful and dispassionate study and consideration of all the available evidence, we think there were good grounds for the learned trial judge’s saying in relation to Tetteh that he was: “highly impressed by the demeanour of P.W. 10 who gave his evidence in a calm and convincing manner and I think that his integrity is beyond reproach”. He also went on to find that Tetteh (P.W. 10) “made the entries in exhibit A, particularly the entry of £G1,000, on the instructions of the accused. I have no doubt that P.W. 10 made these entries innocently on the directions of the accused.”

We are in entire agreement with the learned trial judge on that finding, and it follows that there is no ground for treating Tetteh, P.W. 10, as an accomplice. It is certainly a point in his (Tetteh’s) favour that it was he who reported the irregularity, whereas if he had been involved, once the account had been made up by the payments-in, one would have expected him to let the matter die a natural death and ensure that nobody outside the circle of himself and the appellant got to know about it. But even if Tetteh were an accomplice, (which we are completely satisfied he was not) and independent testimony was therefore necessary to confirm his evidence, we think there was ample independent testimony which went to confirm and corroborate his evidence. Indeed it seems to us that it was substantially on the existence of such confirmatory and corroborative evidence that the learned trial judge based and founded his judgment. Undoubtedly three of the most decisive instances of corroborative evidence were (a) the fact that custody and/or possession of the savings bank account or pass book (exhibit A) by which alone any withdrawal can be made was at the material date the 23rd April, 1960 in or with the appellant, and he retained such custody and/or possession till about 4 p.m. on the 12th May, 1960 when he returned the book to its owner Kofi Num through his little daughter;

(b) the fact that on the 10th May, 1960, Num applied to the appellant in his office for withdrawal of £G300 and the appellant paid Num the amount in the presence of Gyabaa, (P.W. 3) in his office, but the record of entries represented the withdrawal as the usual one by the clerk or cashier at the counter; and (c) the circumstance that amounts were paid in to make good the withdrawn sum of £G1,000, a sum of £G450, was by cheque established to have been obtained by appellant from the Berekumhene.

[p.786] of [1961] GLR 783

The learned trial judge mentioned this confirmatory evidence and dealt with the relevancy of each instance, and we are satisfied that its decisiveness cannot be overestimated. In our view this constituted the strongest possible corroboration of Tetteh’s evidence, even if he were an accomplice (which he is not, as we have already said) and the conviction of the appellant based on this and all the other available evidence, is unimpeachable. For the foregoing reasons we hereby dismiss the appeal.

DECISION

Appeal dismissed.