LARTEY AND ANOTHER v. THE REPUBLIC [1968] GLR 986

DIVISION: HIGH COURT, ACCRA

DATE: 7 NOVEMBER 1968

BEFORE: AKUFO-ADDO C.J.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the District Magistrate, Tema, convicting the appellants on charges of conspiracy to steal and stealing. The facts appear in the judgment.

COUNSEL

Osafo-Buabeng for the appellants.

Darko for the respondent.

[p.988] of [1968] GLR 986

JUDGMENT OF AKUFO-ADDO C.J.

The appellants were charged on two counts of conspiracy to steal and stealing before the District Magistrate at Tema and convicted on the two counts and sentenced to a day’s imprisonment and a fine of N¢80.00 each. The facts upon which the prosecution relied were as hereunder stated.

The second appellant was a driver employed by a company known as the Ghana Rubber Products, and on the material date he was engaged in carting a quantity of what was described as “Omaya Whiting” delivered by the Cargo Hauling Company. This article was made up in bales and the practice was to arrange them in rows on the lorry.

The first appellant was the tally clerk employed by the said Cargo Hauling Company, and it was his duty to check the quantities of goods loaded on the trucks carting the goods delivered by his company and to issue way-bills to cover the quantities loaded. These way-bills had to be presented at the appropriate control point on the journey out of the Tema Harbour where the officer in charge of the control point would check the quantity of goods on the truck against the quantity stated on the way-bill. Any discrepancy found would give rise to suspicion which would call for an immediate investigation. On the material date the second appellant, the driver, was expected to have loaded on his truck 420 bales arranged in six rows of 70 bales each. For some reason which he could not account for the quantity loaded was 360 bales made up of six rows of 60 bales each. His case was that as he expected each row to contain 70 bales he only counted the number of rows and having satisfied himself that there were six rows he concluded he had the correct quantity so his truck. He nevertheless signed a way-bill showing the quantity to be 360 bales. He said he was illiterate, but could write his name, and no evidence was given to rebut the fact of his illiteracy; and he appended his signature to the way-bill in the knowledge that there were 420 bales on his truck. The first appellant who issued the way-bill said he actually counted 360 bales on the truck and issued his way-bill accordingly. He might have made a mistake in the counting, for he said he was engaged that day in supervising the loading of two trucks by about ten labourers, and his divided attention might have accounted for his miscalculation in respect of the bales of the “Omaya Whiting”. Whatever his reasons might have been for the miscalculation he did issue an extra way-bill to cover the additional 60 bales as soon as a representative of the consignees, who was present at the loading, [p.989] of [1968] GLR 986 had checked over the quantity on the truck and had pointed out to him the discrepancy between the actual quantity on the truck and the quantity stated on the way-bill. Before he could deliver this second way-bill to the driver, however, the driver had already moved away his truck on his journey out of the harbour and had meanwhile been stopped at the control point where upon a check being made the discrepancy had been discovered. The driver (the second appellant) and the first appellant were promptly arrested and charged as mentioned above. These then were the facts upon which the prosecution based their charges of conspiracy to steal and stealing.

Conspiracy import an agreement to commit a crime, and where there is no direct evidence of any such agreement, as indeed there was not in this case, the circumstances establishing facts from which conspiracy is to be inferred must lead uniquely to an inference of the existence of an agreement, that is to nothing else. If the circumstances merely lead to suspicion that there might have been such an agreement the charge of conspiracy is not proved.

I have considered with some care the evidence on record, and I am unable to say that the evidence justified an irresistible inference of agreement by the appellants to steal the 60 bales of the “Whiting,” and I therefore allow the appeal against the conviction for conspiracy.

It is obvious that the evidence by which the prosecution sought to establish the crime of conspiracy was the same evidence by which they sought to establish the crime of stealing. In these circumstances the position is not very different from the position in the English case of R. v. Cooper and Compton [1947] 2 All E.R. 701, C.C.A. and the conviction for stealing cannot therefore stand: see also Commissioner of Police v. Boakye (1958) 3 W.A.L.R. 524. Apart from this consideration I am unable to find on the evidence any proved intention on the part of either or both of the appellants to steal the 60 bales of “Whiting” as alleged. I therefore allow the appeal on this count as well. While the case of R. v. Cooper and Compton (supra) cannot be regarded as laying down any general principles relating to the joinder in a charge or in an indictment of a conspiracy count and a count in respect of the consummated crime, I think it necessary to draw the attention of the law and police officers to the undesirability of combining a conspiracy count with a count for the consummated crime when the evidence establishing the conspiracy is the same as that establishing the consummated crime. The ingredients of a conspiracy go very much beyond those of the accomplished crime [p.990] of [1968] GLR 986 which is the object of the conspiracy, and, in the circumstances mentioned above, if the conspiracy charge fails for want of evidence, the charge of the actual commission of the crime must fail as well, even though the latter may well succeed if it stands by itself.

The appeal is allowed, the convictions are quashed and the sentences are set aside.

If the fines imposed have been paid the same shall be refunded to the appellants.

DECISION

Appeal allowed

F. S. T.