THE STATE v. J. A. BOATENG [1961] GLR 619

DIVISION: IN THE SUPREME COURT

DATE: 30TH OCTOBER, 1961

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

CASE REFERRED TO

(1) R. v. Davies (1954) 38 Cr. App. R.11, H.L.

(2) Bharat v. The King [1959] A.C. 533; [1959] 3 W.L.R. 406; [1959] 3 All E.R. 292, P.C.

(3) R. v. Obiase (1938) 5 W.A.C.A. 16

(4) R. v. Uko (1939) 5 W.A.C.A. 63

(5) R. v. Shaw; R. v. Agard [1942] 2 All E.R. 342

(6) R. v. Crane (1912) 7 Cr. App. R. 113

NATURE OF PROCEEDINGS APPEAL against conviction and sentence to three years I.H.L. for being in possession of means of means of coining contrary to section 323 of the Criminal Code, Cap.9 (1951 Rev.) entered by Acolatse, J. sitting with the aid of assessors at the Criminal Sessions held in Accra on the Accra on the 12 th January, 1961.

COUNSEL

Koi Larbi for the appellant.

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

JUDGMENT OF CRABBE J.S.C.

Crabble, J.S.C. delivered the judgment of the court [He stated the facts as set out in the headnote and continued:] In our view the learned trial judge clearly usurped the functions of the assessors when he directed them to hold that P.W.2 and P.W.4 were not accomplices. The question whether a witness for the prosecution is an accomplice or ought to be regarded as such, is a question of fact for the assessors or jury to determine. The first ground of appeal argued by Mr. Larbi, counsel for the appellant, reads as follows:

“That the learned trial judge misdirected the court by holding that P.Ws.2 and 4 were not accomplices and thereby erred in law by failing to warn the court on the danger of convicting on the uncorroborated evidence of an accomplice.”

The main question to determine therefore is whether on the evidence and in the circumstances of the case P.W.2 and P.W.4 were accomplices. In the case of R. v. Davies1(1), Lord Simonds, L.C. defined an accomplice as follows:

“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: (i) 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 misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice’ “. No other categories referred to by Lord Simonds appear to be relevant to this case.

[p.622] of [1961] GLR 619

The evidence of constable Robert Asunade shows quite clearly that P.W. 2 was found in the room with the appellant, P.W.4 and second accused. Although P.W.2 said in his evidence on oath that the appellant slept in his boys-room yet in the statement he gave to the police he said that he slept in his own room with the appellant. P.W.2 did not explain why the police uniform was found under his bed if it is true that the appellant slept in the boys apartment in his house. He also appeared frightened at the sight of the policeman. There can be no doubt that before the arrival of Constable Robert Asunade P.W.2 knew of the existence of the photographic plate under his bed. After very careful consideration of the evidence and the conduct of P.W.2 we are compelled to hold that he was an accomplice. We are therefore not surprised that he was committed for trial at the conclusion of the preliminary investigation.

The position of P.W.4 is not so easy to determine because he does not readily fall within Lord Simond’s first category. But it was contended by counsel for the appellant that the evidence of P.W.4 was so tainted that the learned trial judge should have received it with caution even though he was strictly not an accomplice. This witness was found with the others in the room of Ocloo Torso by Constable Asunade, and when they were asked what they were doing in the room he said nothing and looked frightened. His evidence that the appellant threw the uniform under the bed was not supported by Ocloo Torso, and also his evidence that the appellant begged Constable Asunade was in conflict with the evidence of Constable Asunade himself and Ocloo Torso, both of whom said that it was the second accused alone who begged.

We thought that although P.W. 4 could not stricto sensu be called an accomplice yet he was so thickly involved in the criminal transaction that his evidence should have been received with considerable caution. As Lord Simonds said in R. v. Davies:

“In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that if they consider on the evidence, that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after the warning they still think fit to do so.”2(2)

In our opinion the circumstances in which P.W.2 and P.W.4 were found in the room detracted from their credit to such an extent as to render unsafe a conviction based upon their evidence unless it was corroborated. We ourselves are unable to find on the record “some corroboration from the corners of the evidence” (as the trial judge put it), and we are therefore satisfied that the learned trial judge erred in failing to warn himself and the assessors of the danger of convicting on the evidence of P.W.2 and P.W.4. In the words of Denning, L.J., in Bharat v. The King “He has, in truth, by his misdirection, disabled the assessors from giving him the aid which they should have given; and thus in turn disabled himself from taking their opinions into account as he should have done. This is a fatal flaw.”3(3)

[p.623] of [1961] GLR 619

It was further contended on behalf of the appellant that the learned trial judge misdirected the court on the vital issue of possession. Counsel for the appellant argued that he did not explain to the assessors what constituted “possession”. In the summing-up the issue of possession was dealt with in this way: “The first charge is being in possession of means of coinage. You must be satisfied that the accused persons were indeed found in possession of exhibit C. If you are so satisfied, then the burden of proof will be on each of the accused that he had lawful excuse to have it in his possession, if you are satisfied by the case for the prosecution that exhibit C is an instrument specially adapted or contrived for purposes of forgery or committing any crime relating to coin.” In his judgment the learned trial judge held that the photographic negative plate was found in the joint control of the appellant and the second accused and convicted them both on the first count but the second accused has not appealed. It was clear on the evidence that the appellant was not in actual manual possession of the photographic negative plate when it was discovered by the police constable. The appellant also denied that he had knowledge of the existence of this exhibit and in view of the conduct of the second accused when he was confronted with the negative plate it was essential that there should be in the summing-up a careful direction as to possession.

Possession may be either exclusive or joint, and before a person can be convicted of being in possession it must be established that he is either physically in possession or that the thing is in the possession of a person over whom he has control. The onus of proof that lies on the prosecution in proceedings under section 232 of Cap. 9 (now section 165 of Act 29) appears to us to be settled by the judgment of the West African Court of Appeal in the case of R. v. Obiase.4(4) It was said:

“In the present case, under the new section 150A, although once possession is proved the onus is cast upon the accused to prove lawful authority or excuse, the onus still remains upon the prosecution to give conclusive evidence of possession. That is to say the prosecution must prove facts which are not capable of any other reasonable explanation than that the coins were in accused’s possession, that is to say in the present case that the coins found in accused’s house were there with his guilty knowledge”.

In this case the evidence to establish possession in law was very unsatisfactory and depended partly upon the evidence of an accomplice and partly upon the tainted evidence of a person involved in the criminal transaction. The case of R. v. Uko5(5) is not completely on all fours with this case but it seems to elucidate, however, the problem that arises here. There the appellant and a friend, conspired to “plant” a counterfeit coin on an innocent person. The friend of the appellant was in actual possession of the coins before he “planted” them, but there was no evidence that the [p.624] of [1961] GLR 619 appellant was in actual possession of the coins at any time. In their judgment the court said:

“The question then arises can he be properly held to have been in constructive possession through the actual possession of his fellow conspirator, the first appellant? The point seems to be on all fours with that which arose in the case of R. v. Rogers (2 Mood 85-referred to at Archbold 30th Edition p. 1122).

There it was held that when pieces of counterfeit coins are found on one of two persons acting in guilty concert, and both knowing of the possession, both are guilty of possession.”6(6) In this case the learned trial judge found as a fact that the photographic negative plate was found in the control of both appellant and the second accused. But we think that his omission to direct the assessors and himself upon possession is fatal to the conviction of the appellant since it made it impossible for the court to consider whether the appellant was acting in guilty concert with the second accused or whether he knew of the possession of the photographic negative plate: see R. v. Shaw, R. v. Agard7(7) and R. v. Crane.8(8)

We are unable in the absence of any clear direction or any express finding upon the matters to which we have referred to conclude that if they had formed part of the summing-up and of the judgment, so as to indicate that they had been fully considered, the decision in the case of the appellant at the trial would have been the same. We think that these omissions were fatal to the conviction and we therefore have no alternative but to allow the appeal, set aside the conviction on the first count, direct acquittal, quash the sentence of three years I.H.L. and order that the appellant be discharged.

DECISION

Appeal allowed.

Appellant acquitted and discharged.