REGINA vs. ZONYRA & ORS [1959] GLR 26

CASES REFERRED TO

(1) Azumah & anor. v. The King, (13 W.A.C.A. 87);

(2) Rex v. Kamara & ors. (8 W.A.C.A. 95);

(3) Rex v. Ayanful & ors. (11 W.A.C.A. 20);

(4) R. v. Coney ((1882) 8 Q.B.D. 534)

COUNSEL

The Court called on Crabbe for respondent (Crown) as to the case of the first appellant.

Crabbe: I am unable to support the conviction of the 1st appellant for lack of evidence. There was no evidence to go to the jury. The letter of the 1st appellant Exhibit “B”) in no way established conspiracy.

per cur: Upon hearing learned Counsel for the respondent we are of the opinion that the learned trial-Judge erred in not allowing the submission of Counsel for the defence, at the close of the case for the prosecution, that there was no case to go to the jury. It is unfortunate that the appellant was wrongly convicted. His appeal is allowed, and the conviction is hereby set aside and quashed. The 1st appellant is acquitted.

Apaloo for 2nd, 3rd and 4th appellants. The appellants were charged with an offence against sec. 271 of the Criminal Code, but there was no evidence that the building fired was a dwelling house, a term which is defined in section 286. This was a necessary ingredient of the charge.

The 4th appellant was present, but no one saw him do anything, and mere presence is not enough. In Azumah and anor. v. The King (13 W.A.C.A. 87),it was held that the alleged accomplice to a murder, who was merely present when the crime was committed, was not a confederate, had not participated in the crime, and was not, therefore, an accomplice. The summing-up to the jury was unsatisfactory in respect of the 4th appellant’s case, for the learned Judge said, “In the case of No. 4 accused, evidence for the prosecution is that he was present together with Nos. 2 and 3 accused prepared to pursue a common unlawful object and in the furtherance of that common object the arson was committed.”In the case of Rex v. Kamara and ors. (8 W.A.C.A. 95) it was held that a direction to the jury in vague and general terms amounted to a misdirection.

The case against the appellants as a whole “was not proved with that degree of certainty which is required by the criminal law” (Rex v. Ayanful and ors.; 11 W.A.C.A. 20).

The appeals are also against sentences, which were manifestly excessive. It would seem that the learned Judge was influenced by evidence in respect of those counts which were not proceeded with.

Crabbe for respondent (Crown). It is conceded that there was no direct evidence that the structure was a dwelling house, but in his summing-up the learned Judge read the definition of “dwelling house” in sec. 286 of the Criminal Code, and left the question to the jury.

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per Granville Sharp J.A. The third witness for the Crown said under cross-examination, “Five buildings were burnt. There are other buildings in Torglo. People live in the other houses.”

Crabbe (continuing). There is evidence that the house had in it household properties. Under sec. 151 of the Criminal Procedure Code the jury could have found the prisoners guilty of an offence against sec. 272 of the Criminal Code, though they were charged under sec. 271, for the former is a minor offence in relation to the latter. Nor is this court restricted to such considerations, for under sec. 11(2) of the Court of Appeal Ordinance, 1957, “where an appellant has been convicted of an offence and the Judge who tried him or the jury (as the case may be) could on the information or charge have found him guilty of some other offence, and on the finding of the Judge or jury it appears to the Court of Appeal that the Judge or jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by such Judge or jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

As to the 4th appellant, the evidence against him was more than that of mere presence. He was seen with the other appellants, going to the locus. He took a cutlass from a passer-by (3rd witness for the Crown) on the instructions of the 2nd appellant. In the circumstances, the 4th appellant was a confederate. Moreover, if he was innocently present, his explanation of his presence was requisite.

“The decision in R. v. Coney ((1882) 8 Q.B.D. 534) makes it clear that encouragement can be inferred from mere presence. Cave J., who gave the leading judgment, said of the summing-up, ‘it may mean that mere presence unexplained is evidence of encouragement, and so of guilt, or that mere presence unexplained is conclusive proof of encouragement, and so of guilt. If the former is the correct meaning, I concur in the law so laid down, if the latter, I am unable to do so’.”

(per Devlin J., National Coal Board v. Gamble. ((1958) 3 All E.R. 203 at p. 210).

Voluntary presence is prima facie evidence of encouragement, and sec. 46(11) of the Criminal Code provides that “every person who . . . encourages . . . the commission of a crime . . . is guilty of abetting that crime,” while ss. (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.” And sec. 49(1) of the Code provides that “if two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”

It is submitted that there was a sufficient degree of proof and certainty to justify the conviction.

As to sentence, the Crown does not wish to be heard.

Apaloo in reply. Sec. 152 of the Criminal Procedure Code should be read along with sec. 151. An offence against sec. 272 of the Criminal Code is not a minor offence in relation to an offence against sec. 271. Sec. 11(2) of the Court of Appeal Ordinance; 1957, ought not to be applied.

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The Court draws attention to the proviso to sec. 10(1) of the Court of Appeal Ordinance, 1957 (“Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred).”

JUDGMENT OF VAN LARE AG. C.J.

The four appellants in this matter complained that they had been wrongly convicted before Scott J of conspiracy to commit arson, and (so far as concerned all the appellants except the first) of arson contrary to section 271 of the Criminal Code, in that they intentionally and unlawfully caused the dwelling house of Gregor Amoaku to be set on fire.

At the outset of the hearing, Mr. Crabbe, Senior Crown Counsel, acknowledged that he was unable to support the conviction in the case of the first appellant because of lack of evidence. With this view we entirely agreed, and we accordingly allowed the appeal of this appellant, quashed the conviction, substituted a verdict of acquittal and ordered him to be discharged forthwith.

The evidence against the remaining three appellants was that they were seen together both before and after the burning of the house. At the time the house took fire the second appellant was seen to light the thatch with a match. The third appellant was seen using burning thatch for the same purpose. The fourth appellant was seen standing by; how near, the evidence does not disclose. He was seen to be doing nothing.

The first ground of appeal argued on behalf of these appellants by Mr. Apaloo was that “there being no proof that the house alleged to be set on fire was a dwelling house in law the learned Judge was wrong in not directing the jury to return a formal verdict of not guilty in respect of Count 2 (i.e. arson). Counsel drew attention to the fact that Count 2 as originally framed contained words appropriate to a charge contrary to section 272 of the Criminal Code, which is intended for an offence of arson in respect of a building other than a dwelling house. The words in question “with intent to destroy or materially damage” were expunged from the count at the instance of prosecuting counsel (by amendment on the order of the Court) before the trial began. Mr. Apaloo therefore contended that as the charge was exclusively under section 271 of the Criminal Code, proof that the building in question was a dwelling house within the meaning of the definition contained in section 286 of the Code was essential to establish guilt on such a charge.

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(His lordship read the definition of “dwelling house,” and proceeded):

It must be said that there was no direct evidence that the building in question was ordinarily used as a sleeping place, although the evidence was clear that it was a building containing all the possessions of the owner, which were destroyed in the fire. A building, in the sense in which that word is used in section 272 of the Code, means, according to the definition in section 286, “any structure …. or other covered place used …. for the habitation or meeting or shelter of human beings, or for the keeping or shelter of any cattle or goods.” The building in question, according to the evidence, was undoubtedly used for the storage of the owner’s goods, and was therefore a “building” within the meaning of section 272.

In these circumstances it is important to bear in mind the provisions of section 151 of the Criminal Procedure Code. (His lordship read the section, and proceeded):-

It follows, as a result of those provisions, that although the evidence may have fallen short of establishing the guilt of the appellants on a count framed under section 271, it was ample and sufficient to prove their guilt of the minor offence against 272.

The only way in which the evidence fell short of establishing that a crime under section 271 had been committed was lack of evidence that the building was used as a sleeping place. In all other respects the several particulars which comprise an offence under section 271 were proved, and those which were proved are a combination which constitute a complete minor offence under section 272. In our view, sections 271 and 272 (each of which deals with the offence of arson of a building) comprise two offences, one major with a penalty of life imprisonment, and the other minor with a penalty of imprisonment for 20 years. The reason for this is obvious because, in the case of arson of the one, life may be endangered; in arson of the other, goods only may be involved. We shall deal further with this in our conclusions.

So far as the offence of conspiracy is concerned, it is not clear from the evidence that any such separate offence had been committed, or that the appellants had concerted together for the purpose of committing arson. In our opinion it is wrong to ground a charge of conspiracy only upon the fact that two or more persons were engaged together in committing an offence. That appears to be the case here, and we will allow the appeal on the first count in all cases.

With regard to the fourth appellant, the ground of appeal submitted to us was that the learned Judge misdirected the jury by non-direction in his case that mere presence at the scene of the crime

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is not proof of participation, because there was no evidence that the fourth appellant did any act in furtherance of the crime. There was evidence which, in our opinion, might entitle a jury upon a proper direction to convict this appellant upon the charge of arson, but we are not satisfied that a proper direction was given by the learned Judge upon this aspect of the matter. He directed as follows:

“In the case of No. 4 accused, evidence for the prosecution is that he was present, together with Nos. 2 and 3 accused, prepared to pursue a common unlawful object, and in the furtherance of that common object the arson was committed, he No. 4 accused would be as responsible as Nos. 2 and 3 accused.

Prosecution inviting jury to find Nos. 2, 3, 4 accused guilty of arson.

This direction in our view was, too, general in its terms, in that it did not put the matter in such detailed or analytical form as to enable the jury to bring to consideration of the matter a critical mind whether or not the fourth appellant was a confederate in the commission of the offence. It was necessary, in our opinion, in the circumstances of this case that the jury should be informed that mere presence was not necessarily evidence of complicity. They should have been told that it was for them to say whether upon the evidence of his association with the other appellants, before and after the burning, he was “prepared to pursue a common and unlawful object,” and that “in the furtherance of that common object” he was present to assist in the commission of the crime. We think that the direction which we have cited above was an instance of a judge’s usurpation of the function of a jury in regard to the fourth appellant. As we cannot speculate whether the decision of the jury in regard to this appellant would have been the same if they had been properly directed, we cannot feel it safe to allow the conviction in his case to stand.

The result is that in the case of the second and third appellants, applying the provisions of section 151(2) of the Criminal Procedure Code, we substitute for their convictions under section 271 of the Criminal Code convictions of the minor offence of arson under section 272, and we allow their appeals on the charge of conspiracy.

In the case of the fourth appellant we allow his appeal on both counts, quash his convictions, substitute a verdict of acquittal and order that he be discharged.

There is also an appeal against sentence of seven years imprisonment with hard labour on each count, to run concurrently. It is necessary to consider this aspect of the matter only in respect of the 2nd and 3rd appellants. We think that the sentences imposed by the trial-judge are manifestly excessive. He was no doubt influenced by the [p.34] of [1959] GLR 26 fact that they had been convicted of a very serious offence which they had conspired to commit, and in these respects found him to have erred. The house destroyed was a mud farm-cottage worth £25, according to the evidence. The goods within it were neither described nor valued. There was no evidence as to any bad antecedents.

DECISION We will therefore substantially reduce the sentence, and substitute for seven years I.H.L. on the 2nd count a sentence in each case of 3 years I.H.L.