AHENKORA v. THE REPUBLIC [1968] GLR 625

DIVISION: HIGH COURT, ACCRA

DATE: 8 JULY 1968

BEFORE: CHARLES CRABBE J.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the district court convicting the appellant for allowing his conduct as a public officer to be influenced

[p.626] of [1968] GLR 625 by the demand and acceptance of money. The facts are sufficiently set out in the judgment of the court.

COUNSEL

A. Asante-Tannor for the appellant.

Mrs. C. A. Anson, Assistant State Attorney, for G. E. K. Aikins, State Attorney for the Republic.

JUDGMENT OF CHARLES CRABBE J.

This is an appeal from the judgment of the district magistrate sitting at Mampong Akwapim. The appeal is one against conviction on the ground that the judgment cannot be supported having regard to the evidence on record and that the conviction is wrong in law.

The case against the appellant is that acting in the execution of his duties as a public officer investigating a case of assault he allowed his conduct as a public officer to be influenced by the demand, and the acceptance, of the sum of sixteen new cedis in order to stop the prosecution of a case then before the court.

Counsel for the appellant maintains that from the evidence it would appear that the appellant was trapped. The evidence does not support the conviction and he referred to several parts of the evidence to support this contention, relying finally on Archbold’s Criminal Pleading, Evidence and Practice in Criminal Cases (36th ed.), and Brannan v. Peek [1947] 2 All E.R. 572, D.C. Counsel for the Republic argued that there was sufficient evidence upon which the court could come to the decision to which it came, citing Nweke v. R. (1955) 15 W.A.C.A. 29 and Diamantides v. Chief Inspector of Mines (1950) 13 W.A.C.A. 94. From the arguments of counsel and from a reading of the record it seems to me that the issue for determination is whether the conduct of the appellant in this case is consistent with his innocence. The appellant before the court below stated:

“Immediately he entered my office he placed the amount on a table in the office and left. I shouted for him, ‘Come! come!’ All that he said was that he was going to call a complainant in a case in which the third prosecution witness was involved. He never came. Not quite five minutes after the fourth prosecution witness had left, the second and third prosecution witnesses came to my office. I took possession of the money as I was calling the fourth prosecution witness to come. Immediately the second prosecution witness came to my office, the second prosecution witness called me and after producing a piece of paper from his pocket told me that the third prosecution witness had made a report of extortion of an amount of sixteen (16) new cedis against me. On the paper was written the serial numbers of the [p.627] of [1968] GLR 625 currency notes. I denied extorting the third prosecution witness, but said that it was the third prosecution witness and the fourth prosecution witness who came to my office to offer me that amount which I refused but later the fourth prosecution witness came alone to my office and put the money on my table and left the office. That whilst the fourth prosecution witness was going I shouted for him to come back but he refused saying that he was going to call somebody. As a result I took possession and kept it in my back pocket with a view to returning it to him. It was soon after taking possession that the second prosecution witness came in.” This piece of evidence on oath of the appellant at the court below shows clearly the position of things and the state of his mind with respect to whether or not he is innocent. It is to be remembered that the superintendent in charge of the Akwapim Police District at the time had given evidence in chief in which he said:

“At approximately 9.30 p.m. on 17 March 1967 I was then in my office at Mampong when a certain gentleman accompanied by a woman came to my office and introduced himself to me as Eric Amoah Kwakye a teacher of the Anglican Primary School, Aburi. He told me that he had come to see me with a complaint which was of a confidential nature. I offered him and his wife seats and he lodged his complaint to me against the accused. He produced to me an amount of ten new cedis and in consequence of what he told me I asked him to go home and come back the next morning to see me in my office. He then left with his wife. Immediately they left I rang the accused at Aburi and told him to come down to see me in my office. He came down in a police jeep almost immediately. I offered him a seat and told him that I had received a complaint from some one that he was trying to extort money from him, and therefore he should guard himself against such temptation. I told him that I would not mention the name of the party but a word to the wise was enough. He stood up and thanked me that same night. On the next morning 18 March 1967, Amoah Kwakye returned to see me in my office at about 8.00 am. As I discussed the previous night I added six new cedis of my own money to the ten new cedis he brought the previous night making sixteen new cedis in all which I handed over to him after taking down the serial numbers of the sixteen new cedis. He then left the station. Shortly after he had left I followed up to the Aburi Police Station where I saw him standing on the road facing the Aburi Police Station. I called him to Aburi Police Station and together with him I entered the Criminal Investigation Department office [p.628] of [1968] GLR 625 where I saw the accused sitting by his desk working. I called the inspector, the first prosecution witness, whose office adjoins the accused’s office. There I confronted the accused that Amoah Kwakye had complained to me that he the accused had extorted from him an amount of sixteen new cedis. The accused dropped his head, paused for a moment, raised up his head and was just looking at me without saying anything. I then showed him a piece of paper on which I had written the number of the cedis, exhibit B. The accused said, ‘Superintendent as for this I would not deny. I was busy in the office when these people came and put the money on the table. I told them to take it away, they refused and so I kept it in my pocket with a view to returning it to them after I had finished what I was doing.’ He then put his hand into his right hip pocket he was wearing and pulled out the cedi notes, exhibit A. I took possession of the cedi notes compared the numbers with the numbers on exhibit B and found them to tally. I then handed over this N¢16.00 exhibit A and the piece of paper exhibit B to the first prosecution witness and instructed him to make the necessary entry and investigate this case personally.” The effect of these two pieces of evidence is that the appellant was warned to be on his guard by one of his superior officers. Nonetheless according to him the money was placed on a table in his office. He shouted that the fourth prosecution witness should come back. He never came back but then the appellant in his own words says that he took possession of the money as he was calling the fourth prosecution witness to come. In view of his attitude after having been warned by a superior officer that he was trying to extort money I find it difficult to appreciate why if he had no intention of extortion he should have taken possession of the money which was put on a table in his office. An innocent person would, in my view, have left the money on the table and anybody who came in would obviously have found the money on the table. Indeed his statement to his superior officer as shown in the extract quoted above amounted to a confession. This superior officer was subjected to cross-examination on behalf of the appellant. He was not shaken in cross-examination at all. Indeed it was put to him that he had tried to trap the appellant into committing the offence and this is what the record shows he said: “If really I wanted to trap the accused I would not have invited him to my office and warned him against such temptation.” I am therefore satisfied on the facts of this case that the learned district magistrate was right in coming to a conclusion that: “The accused does not allow any favourable interpretation to be placed on his conduct that as a [p.629] of [1968] GLR 625 police officer he was behaving badly and this is attributable to the fact that he knew he was going to benefit financially from all this.”

It was contended that the law frowns upon the attitude of the police in trapping an accused person under circumstances such as those in this case. It is pertinent, therefore, to refer in this case to the dictum of Lord Goddard C.J. in the case of Brannan v. Peek (1947] 2 All E.R. 572, D.C. He said at pp. 573-574:

“The court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that, unless in Act of Parliament provides for such a course of conduct—and I do not think any Act of Parliament does so provide—it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow, or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence.” In my view the conduct of the superior police officer in charge of the district cannot be taken to be the commission of an offence in order to prove an offence. He went out of his way to warn the appellant and in considering the effect of Brannan v. Peek (supra) on the conduct of the police in this case, the whole of the conduct of the police as such and the whole of the circumstances need to be taken into account and not only an aspect of their conduct.

In Diamantides v. Chief Inspector of Mines (1950) 13 W.A.C.A. 94, the West African Court of Appeal had held that it was unlawful for a police constable to provoke a crime but not unlawful for a police constable to feign participation in a crime which is going on in order to observe and obtain evidence. On the facts of this case and on the law as I see it I am satisfied that the police officers who came into this little drama did not come in to provoke the crime. All that happened is that as a result of what the accused had told one of the prosecution witnesses one of them raised a loan in order to meet the payment which the appellant in this case had asked to be made. Certain representations were made to the police and the superior officer in charge of the district warned the appellant of his conduct. With such a warning how can it be seriously contended that the police were committing an offence in order to detect an offence. It

[p.630] of [1968] GLR 625 is obvious from the record that the appellant persisted in his desire and steps were then taken to bring him to justice by the handing over of cedi notes, the numbers of which had been taken, to the complainant to find out whether in fact the appellant would take the money. This he did. The case, therefore, in my view falls under the other limb of the decision in the Diamantides case that it is not unlawful for the police to feign participation in a crime in order to observe and obtain evidence.

Having read the whole record and having considered the arguments of counsel and the law I come to the conclusion that I must dismiss this appeal.

DECISION

Appeal dismissed.

S. O.