BUOR v. THE STATE [1965] GLR 1

DIVISION: SUPREME COURT

DATE: 22 JANUARY 1965

BEFORE: MILLS-ODOI, ACOLATSE AND SIRIBOE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Ho, confirming the appellant’s conviction by His Honour Judge Amarteifio, in the Circuit Court, Ho, for stealing. The facts are set out in the judgment of Siriboe J.S.C.

COUNSEL

Appellant in person. K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. On 28 November 1964 we allowed this appeal and reserved our reasons to be given later which are as follows: The appellant and one other named

[p.2] of [1965] GLR 1

Emmanuel Ofosu were jointly charged before the Circuit Court, Ho, with one count of conspiracy to steal, and another count of stealing the sum of £G4 10s. the property of one O. K. Awuma. The particulars of the charges state that during the month of October 1963, at Ho, the two accused agreed together with a common purpose to commit a crime, to wit stealing, and did steal the amount in question. When they appeared before the circuit court presided over by Judge Amarteifio, the first accused Emmanuel Ofosu pleaded guilty to both counts and was accordingly convicted on his own plea and sentenced to six months’ imprisonment with hard labour on each count, the sentences to run concurrently. The trial thereafter proceeded against the appellant who had pleaded not guilty to the two counts. After hearing four witnesses for the prosecution including the first accused (the first prosecution witness) and also the defence, the learned circuit judge held that because the actual offence of stealing had been committed, the first count of conspiracy ought not to have been added to the second count. He therefore acquitted and discharged the appellant on that count. With regard to the second count, he held as follows, “I am satisfied beyond reasonable doubt and find as a fact that the accused [i.e. the appellant] and the first witness for the prosecution stole the money together with a view to refund it later. I do not believe the accused’s story that he never knew anything about this case. I therefore find the accused guilty and convict him.” Dissatisfied with this decision, the appellant appealed to the High Court, Ho, upon grounds argued by him personally, which in our view went to the root of the whole case; yet he lost his appeal. He therefore appealed to this court-this time on one ground only, namely, “Insufficient evidence to support the conviction.” As we were in agreement with the ground filed, upon our perusal of the record of proceedings, we called upon the learned state attorney to support the conviction. After stating that the only issue before the court was whether there was evidence which, if believed, was sufficient in law to support the conviction of the appellant, the learned state attorney made the following submissions: “The appellant was convicted solely on the evidence of the first prosecution witness, an accomplice, after the learned circuit judge had duly warned himself. That at the close of the evidence-in-chief of the first prosecution witness there was insufficient evidence to support the charges.”

[p.3] of [1965] GLR 1

Referring to answers given by the first prosecution witness under cross-examination by the appellant, he continued: “However, the deficiency in the evidence was supplied through cross-examination of the first prosecution witness by the appellant. The first prosecution witness having said that the appellant asked him to give him £G2 out of the £G4 10s. for Awuma presupposes that the appellant had knowledge that Awuma’s money was in the possession of the first prosecution witness.” Learned state attorney, however, conceded that the first prosecution witness made conflicting statements earlier, but he submitted that those conflicting statements amounted to a mere denial of theft of Awuma’s money at a time when that theft had not been discovered. That when the theft was discovered he made a statement exculpating himself and placing the entire blame on the appellant, which statement also, the learned state attorney submitted, amounted to a mere refusal at that stage to incriminate himself. He then contended that when the first prosecution witness finally conceded the part he played in the crime there was no alternative because at that time he was faced with the appellant. “Since no accused person can be compelled to incriminate himself, the first prosecution witness’s earlier refusal to confess at a time when he was not on oath,” the learned state attorney pointed out, “cannot necessarily invalidate his evidence on oath.” He finally submitted that the trial court had the advantage of watching the demeanour of the first prosecution witness and chose to believe him after due warning, therefore the conviction should be allowed to stand and the appeal be dismissed. For the prosecution to succeed, there ought to be evidence sufficient enough to prove the conspiracy and the theft against both the appellant and the first prosecution witness, but in our opinion there was none. In his examination-in-chief the first prosecution witness put it beyond doubt that the second prosecution witness Awuma submitted his claim for night allowance amounting to £G4 10s. in the month of August 1963. That he, the first prosecution witness, later received the money together with other people’s claims totalling £G12 5s. from the treasury, but never paid the second prosecution witness’s £G4 10s. to him, even though he called in September for his salary. The second prosecution witness in his evidence said that in September 1963, when he approached the first prosecution witness for the money, the first prosecution witness told him the voucher was still with the treasury officer, a statement which was untrue to the knowledge of the first prosecution witness because, long before the

[p.4] of [1965] GLR 1

September pay day, the first prosecution witness had already received the money from the Treasury; yet he did not pay it over to the second prosecution witness. The relevant piece of the first prosecution witness’s evidence-in-chief is as follows: “In August, 1963, Awuma submitted a payment voucher for night allowance. It was passed by the Treasury. A cheque order was prepared and I received the money . . . I received the cheque for £G12 5s. in all including £G4 10s. for Awuma. I got the money and paid the people . . . except Awuma . . . Awuma was then not in. I don’t remember when he returned but he returned to receive his salary for September 1963. On September pay day Awuma’s money was with me. I never gave the money to Awuma when he came to collect his salary.” That being the evidence-in-chief of the first prosecution witness (the star witness for the prosecution), we need hardly emphasize the point that no conviction could be based upon it either in respect of the charge of conspiracy or of stealing preferred against the appellant, because the evidence as such, did not support either of the two charges against him. In the circumstances we do not agree with the submission made by learned state attorney that the appellant supplied any deficiency in the prosecution’s case through his cross-examination of the first prosecution witness. The appellant did no more than put the material part of his defence to the first prosecution witness, which was that the first prosecution witness owed him an amount of 17s. 6d., payment of which the appellant demanded from him on the pay day, 29 September 1963, and at the same time asked the first prosecution witness for a loan of £G2 to be refunded to the first prosecution witness on the appellant’s return from a course in Accra; but the first prosecution witness gave him only £G2. The fact that the first prosecution witness denied that the £G2 he gave to the appellant was a loan and said that the appellant asked him (the first prosecution witness) to give him £G2 out of Awuma’s money did not, in our view, supply the deficiency in the prosecution’s case against the appellant. In other words, that did not mean that the first prosecution witness and the appellant together stole the money and shared the same between them in the proportion of £G2 for the appellant and £G2 10s. for the first prosecution witness as stated in the trial court’s judgment. That evidence, considered in the light of the defence, in our view, did not amount to what the prosecution say of it.

[p.5] of [1965] GLR 1

For the trial court to act upon such piece of evidence, as anything affecting the appellant, it should have borne in mind the fact that there was nothing of the sort said by the first prosecution witness in his examination-in-chief; secondly that the first prosecution witness was not only an accomplice, but also, as rightly conceded by the learned state attorney, he had earlier and before the trial made conflicting statements-at times exculpating himself and shifting the entire blame on to the appellant. He lied to the second prosecution witness that the latter’s money, the subject-matter of the charge, had not been received by him. Again in the month of October 1963, taking advantage of the appellant’s absence from Ho attending a course in Accra, the first prosecution witness lied to Mr. Eyeson, their local head of department, that the amount of £G4 10s. was with the appellant as a result of which Eyeson erroneously deducted the £G4 10s. from the appellant’s October salary. The evidence of such a witness, in our view, called for the closest scrutiny by the trial court before deciding whether or not to act upon it, for he had shown by his conduct that he was quite unreliable. “The character of a witness for habitual veracity is an essential ingredient in his credibility; for a man who is capable of uttering a deliberate falsehood is in most cases capable of doing so under the solemn sanction of an oath. If therefore, it appears [as happened in this case] that he has formerly said or written the contrary of that which he has now sworn (unless the reason of his having done so is satisfactorily accounted for), his evidence should not have much weight with a jury.” See Archbold, Pleading, Evidence & Practice in Criminal Cases, (35th ed.), p. 562, para. 1352 under the heading Veracity. Had the learned circuit court judge directed his mind to the above principle of law, we are of the opinion that he would inevitably have found it quite unsafe to accept what the first prosecution witness said under cross-examination as anything credible upon which to come to the conclusion he did. It was not sufficient in the peculiar circumstances of this case for the learned circuit court judge simply to say: “The first prosecution witness therefore is classified as an accomplice whose evidence must be corroborated. I therefore warned myself as to the admissibility of the evidence of the first prosecution witness. Despite the fact of the first prosecution witness being an accomplice, I do believe that when the money was cashed by him he mentioned it to accused [i.e. the appellant] and the two of them shared the money. The first prosecution witness had £G2 10s. and the accused £G2. I do believe that

[p.6] of [1965] GLR 1

the first prosecution witness owed the accused 17s. 6d. at the time but he never demanded that from the first prosecution witness except his share of the £G4 10s.” In our opinion the finding made on the alleged sharing of the money is not supported by the evidence. If there was any agreement to steal and share the money as found by the trial court, then since it appeared from the record that the first prosecution witness was subordinate to the appellant, it was highly improbable that the appellant, being the senior, would have condescended to accept a lesser amount, i.e. £G2, and for the, junior officer, the first prosecution witness to take £G2 10s. If the trial court and the learned judge on appeal had considered this aspect of the case, it is not unlikely that they would have discarded the question of sharing of the money, following which they concluded that the appellant was guilty of stealing. Again, the learned circuit court judge fell into a serious error in his appraisal of the evidence given by the appellant which was admitted by the first prosecution witness. This was that even though it is clear from the evidence that there was a demand by the appellant for payment of the debt of 17s. 6d. due to the appellant, nevertheless, the learned circuit court judge in his judgment quoted supra said, “I do believe that the first prosecution witness owed the accused 17s. 6d. at the time but he never demanded that from the first prosecution witness except his share of the £G4 10s.” All this came about because it appears from his judgment that the learned circuit court judge was so obsessed with the finding that the money was stolen and shared. In our view, by rejecting the evidence of the demand made by the appellant for payment of the debt of 17s. 6d. from the first prosecution witness which the latter admitted took place, the learned circuit court judge failed to give the appellant’s defence the proper weight it deserved, thereby rendering the appellant’s conviction unsupportable even on that score alone. We regret to say that on appeal to the High Court, the learned judge also failed to give due consideration to the evidence as a whole, particularly the appellant’s defence, but rather allowed himself to be influenced by the trial court’s decision which he consequently affirmed, in the following words: “The appellant’s main contention is that there was no evidence in support of his conviction in that the £G2 which he received from the first prosecution witness was a loan and not part of the sum of £G4 10s.

[p.7] of [1965] GLR 1

There is, however, ample evidence . . . that the £G2 paid by the first prosecution witness to the appellant was the appellant’s share of the £G4 10s…. That evidence believed as it was by the learned circuit court judge, makes it very difficult for me to interfere with his decision.” Having regard to all the circumstances of the case, we were of the opinion that the conviction was unsupportable, and the submissions of learned state attorney too were untenable. We accordingly allowed the appeal.

DECISION

Appeal allowed.

S. K. D. B.