GARIBA v. THE STATE [1963] 2 GLR 54

DIVISION: IN THE SUPREME COURT

DATE: 21ST JUNE, 1963

BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Lee v. Taylor and Gill (1912) 77 J.P. 66; 23 Cox C.C. 220

(2) R. v. Hopkins-Husson (1949) 34 Cr.App.R. 47, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction for stealing, entered by Acolatse J. at the Accra Criminal Sessions.

COUNSEL

Appellant in person.

D. F. Annan, Senior State Attorney, for the respondent.

[p.55] of [1963] 2 GLR 54

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. This appellant and another person who has not appealed (the second accused at the trial) were indicted at the Accra Criminal Sessions before Acolatse J. on two counts. The first count on which the appellant was acquitted, charged them with unlawfully entering the store of the Ghana National Construction Company with the intent to commit a crime therein to wit: stealing contrary to section 152 of the Criminal Code, 1960.1 The second count, on which the appellant was convicted, charged them with stealing various quantities of goods from the said store contrary to section 124 of the Criminal Code, 1960.2 The other accused person was convicted on both counts.The sole ground of appeal is: “That the appellant is not guilty of the alleged crime to warrant conviction and sentence.” The facts are simple. At about 7 a.m. on the 18th June, 1960, the store-keeper of the Ghana National Construction Company, Accra, discovered that part of the store which was raised from the ground and built with welded mesh had been broken into. He entered the store and on inspection he found that 33 lorry outer covers, 12 batteries and 43 pieces of yellow dusters had been stolen. It would appear that the thieves carried these stolen goods to a spot near the Awudome cemetery along the Ring Road. In accordance with a previous arrangement, one of the confederates, a driver who was a witness in the case, drove his lorry early that same morning to the spot where he met the other accused and another man standing by the stolen goods. The driver agreed to carry them for a charge of £G3, and after the lorry had been fully loaded the driver was instructed to drive to Kasua-Gariba, a village about sixteen miles from Accra on the Winneba Road. Those on the lorry at the time were the other accused, the man who arranged the transport, and another. On the way the two men who were not prosecuted alighted and whilst the lorry was waiting they went into a certain house and later came out with the appellant. The appellant boarded the lorry with the others and the driver continued the journey to Kasua-Gariba. On arrival at Kasua-Gariba the appellant led the four men who were in the lorry to the house of the fifth witness for the prosecution. At the request of the appellant this witness permitted the thieves to pack the tyres under the shade of a tree in the compound of his house. The reason which the appellant gave this witness for asking him to keep the tyres for them was that their lorry had developed some trouble. This witness was subsequently apprehended by the police and on the 3rd July, 1960, he identified the appellant who was also arrested. After being cautioned the appellant made a voluntary statement which was produced in evidence as part of the case for the prosecution.

After hearing the evidence for the prosecution and the explanation given by the appellant the learned trial judge acquitted the appellant on the first count but convicted him on the second count of stealing and sentenced him to three years’ imprisonment with hard labour.

[p.56] of [1963] 2 GLR 54

In this appeal learned counsel for the State has expressed himself unable to support the conviction for stealing, and we are in entire agreement with him. He submitted, however, that on the facts of this case the learned trial judge could have been justified in acting under section 156 of the Criminal Procedure Code, 1960,3 and convicting the appellant of dishonestly receiving. Section 156 of the Criminal Procedure Code, 1960, reads:

“When a person is charged with stealing anything and it is proved that he received the thing knowing the same to have been stolen, he may be convicted of receiving, although he was not charged with that offence.” The offence of dishonestly receiving is explained in section 147 (1) of our Criminal Code, 1960,4 as follows:

“A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner.”

For the prosecution to succeed it must be shown that (1) the goods which were off-loaded in the house of the fifth witness for the prosecution at Kasua-Gariba were stolen, (2) the appellant knew they were stolen and (3) he assisted in the disposal of these goods otherwise than with a purpose to restore them to the owners. The evidence in this case establishes beyond controversy that the goods were stolen from the store of the owners, the Ghana National Construction Company.

The most important issue in this case is whether the appellant knew that the goods on the lorry which he directed to Kasua-Gariba on the 18th June, 1960, had been stolen. This requires a careful analysis of the evidence for as Channel J. pointed out in Lee v. Taylor and Gill5 “In all cases where it is necessary to prove anything which depends upon the state of a man’s mind, whether it is malice, whether it is intent, whether it is knowledge, whether it is suffering or conniving, which all depend upon what is in the man’s mind, in any of those cases the way in which it certainly may be and generally must be proved is by inferring it from other facts.”

It would appear that before the lorry left the spot where the stolen goods had been deposited the thieves had informed the driver that their destination was Kasua-Gariba. On the way the lorry stopped and two of the thieves went to the appellant’s house and called him. The latter joined them to Kasua-Gariba. According to the appellant when the two men called at his house they asked him to allow them to keep the tyres in his own house till the following day because the driver had refused to continue the journey. A further reason which the appellant said the driver gave to the second accused for refusing to continue the journey was that there was something wrong with his lorry. However, in his cautioned statement when the facts were fresh in his mind he could not think of any reason why the thieves should go to his house and ask him to keep the tyres.

[p.57] of [1963] 2 GLR 54

In his answer to a question under cross-examination by the second accused the appellant said: “You told me the tyres belonged to one of the men and you begged me to keep them till the following day. The man said he was an importer and sold tyres.”

The appellant knew the second accused only casually as a tailor who lived in James Town, Accra, and it must have struck the appellant as odd, if his story is true, why an importer and dealer in tyres should ask him to keep his tyres in his (appellant’s) house. In his cautioned statement the appellant stated that the tarpaulin on both sides of the lorry had been removed and used in covering the tyres. Surely, the association of a tailor with a so-called importer and seller of tyres at that time of the morning and themanner in which the tyres were covered were all circumstances which we think should have aroused the suspicion of an honest and prudent man. On reading the evidence of the appellant the first impression which one gets is that the lorry was on its way to Kasua-Gariba when it stopped near his house. If the appellant had no foreknowledge of this transaction then it is a very strange co-incidence, almost a telepathy, that the thieves should call on him for assistance at a time when he himself was preparing to go to Kasua-Gariba.

The evidence of the appellant gives the impression also that the thieves knew the petrol-seller at Kasua-Gariba (the fifth witness for the prosecution) and that it was at their request that he took them to his house. But a close examination of the evidence shows that the thieves did not know the petrol-seller at all but that it was through the intercession of the appellant that the latter agreed that the tyres should be packed in his house. The petrol-seller himself said in his evidence as follows:

“The first accused told me in the presence of the second accused in Hausa that they wished me to keep the tyres on a lorry which was spoiled. I agreed and he said they would come for the tyres on the next day. The four men then went to the lorry and brought a number of tyres to my house for safe keeping under a shade tree in the compound of my house.”

The reason which the appellant gave for asking the petrol-seller’s favour was false, because the driver of the lorry did not say that his lorry developed trouble at any time, neither was any such suggestion made to him under cross-examination by the appellant. The evidence of the petrol-seller regarding the transaction at Kasua-Gariba is substantially confirmed by the appellant in his cautioned statement when he said, “When we got to Kasua-Gariba at about 7 a.m. I saw Isumalla coming from his house to where he sells petrol and I told Bortei to stop and he did so. I alighted and went to Isumalla and told him that Aryee Quashie and his people wanted him to give them some place to put their tyres for collection the following day and he said he did not know them so he would not accept them. Quashie and his people started to beg Isumalla to give them a place. Isumalla asked me whether I knew them and I said yes with the exception of the driver and the man who claimed to be the owner. Isumalla then agreed and showed them a room in his house to put the tyres. I left them for my farm. I returned to Accra at about 10 a.m.”

[p.58] of [1963] 2 GLR 54

It would appear that the appellant did very little work on his farm that morning. There can be little doubt that the appellant actively assisted the thieves to dispose of the stolen goods otherwise than with a purpose to restore them to their rightful owners.

The all-important issue then is whether the appellant knew that the goods were stolen properties. In the opinion of this court the circumstances in which the appellant was called from his house that early morning, the manner in which the tyres were covered and the part played by the appellant in arranging for the stolen goods to be kept by someone at a place sixteen miles from Accra raise a strong presumption of guilty knowledge. If the appellant was not in the deal then he must have wilfully shut his eyes to facts from which any reasonable and honest man would realize that the goods were stolen.

The explanation which the appellant gave was substantially the same as the evidence given by the prosecution, except that he himself had decided to go to Kasua-Gariba that morning when the lorry arrived in front of his house. He said that he took the thieves to Kasua-Gariba at their request. He said further that it was at the request of the second accused that he interceded with the petrol-seller to keep the tyres. The petrol-seller agreed because the appellant assured him that he knew the thieves. The appellant himself helped to off-load the tyres from the lorry, and after the driver had been paid he asked the driver to give him two shillings, but this the driver refused. It would appear from this piece of evidence that the appellant expected no gain from the transaction. But in the opinion of this court where a person is charged with dishonestly receiving, or assisting to dispose of stolen goods, it is immaterial that he received those goods to show favour or assisted to dispose of them without reward, provided that he knew that the goods were stolen. In his judgment the learned trial judge gave a careful consideration to the law as to accomplices and held that the two principal witnesses for the prosecution, the driver and the petrol-seller, were accomplices. He accordingly warned himself on the danger of convicting on the uncorroborated evidence of these two witnesses. Whilst we agree with the learned trial judge that these two witnesses were accomplices we think that there was no danger in convicting on their evidence because their evidence was amply corroborated both by the appellant’s sworn testimony and his cautioned statement.

After warning himself, however, the learned trial judge who saw the demeanour of the witnesses accepted the evidence of the driver and the petrol-seller and convicted the appellant, because he was satisfied that he was a guilty man. The assessors also arrived at the same conclusion. “A jury are entitled to take into account the demeanour of a prisoner in the box because it may satisfy the jury that he is a guilty man.” Per Lord Goddard C.J. in R. v. Hopkins-Husson.6

[p.59] of [1963] 2 GLR 54

In the opinion of the court the facts of this case are clearly covered by the latter part of section 147 (1) of the Criminal Code, 1960,7 relating to assisting in the disposal of stolen property otherwise than with a purpose to restore it to its owner. This court will, therefore, allow the appeal in regard to conviction for stealing, but will substitute therefor a conviction for dishonestly receiving.

This appeal therefore fails and it is accordingly dismissed.

DECISION

Appeal dismissed. Conviction for dishonestly receiving substituted.

K. T.