REPUBLIC vs. YIADOM [2001-2002] 1 GLR 558

CASES REFERRED TO

(1) Republic v Okorodudu (1947) 12 WACA 129.

(2) Osae v The Republic [1980] GLR 446.

(3) State v Lieutenant Ackah, Court Martial Appeal No 4/70, 21 December 1940.

APPEAL by the appellant against the decision of the Circuit Court, Bekwai-Ashanti convicting and sentencing him for the offence of stealing. The facts are sufficiently set out in the judgment.

I K Antwi (holding the brief of Kwame Anyimadu Antwi) for the appellant.

No representation for the Republic.

Quaye J. This is an appeal from the conviction and sentence of the appellant by the Circuit Court, Bekwai-Ashanti on 13 September 1999. On the record it has been indicated that the appellant was charged

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before the trial court with the offence of stealing under section 124(1) of the Criminal Code, 1960 (Act 29) as amended by section 4 of the Criminal Code (Amendment) Decree, 1969 (NLCD 398). The particulars of the offence were stated to be that the appellant, while a purchasing clerk during the 1998-99 cocoa season which ended on 30 March 1999 at Tebeso No 2 in the Ashanti circuit did steal cash amounting to ¢2,390,625 which was said to be the property of CASHPRO Cocoa Buying Co.

The plea of the appellant was taken on 13 December 1999 and after he had entered a plea of guilty, the facts of the charge were given. According to the prosecutor, one Frank Adu Gyamfi who was a purchasing officer of CASHPRO gave a sum of ¢11,671,895 to the appellant for the purchase of 83 bags of cocoa. The appellant bought 66 bags of cocoa valued at ¢9,281,250. He was unable to account for the balance of the money, being ¢2,390,625. When the appellant realised that pressure was being brought to bear upon him on account of his conduct, he left the town thinking he could escape justice. Upon his aforesaid plea of guilty to the charge, the appellant was convicted and sentenced to three and a half-years’ imprisonment.

It is the above conviction against which this appeal has been filed. The counsel for the Republic of Ghana failed, despite service upon them of several hearing notices, to attend the hearing of the appeal. Arguing the appeal, counsel for the appellant submitted that the facts of the case did not support the charge that was preferred against the appellant. He contended that the facts showed only a shortage in the accounts of the appellant. To sustain a charge of stealing, there must be facts to suggest that the accused person deliberately and intentionally or dishonestly appropriated the sum involved. On this submission, counsel relied on the decision in Republic v Okorodudu (1947) 12 WACA 129 at 131 and Osae v The Republic [1980] GLR 446. Counsel further submitted that there is nothing on the facts to show or prove how the shortage occurred, contending that the facts do not cast a slur on the appellant as a dishonest person. He was of the view that the law is very clear and simple: The offence of stealing is upheld when there is proof that the person charged was not the owner of the item allegedly stolen; that he must have appropriated the thing; and that the appropriation was dishonest. Futhermore, in criminal trials, conviction must be based

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upon proof beyond reasonable doubt. In the instant case, no evidence was led; hence nothing was “proved.” In effect, he contended that the charge was not substantiated by evidence.

I would say that where the person charged, by his conduct admits the charge and by his plea forestalls the prosecution from going ahead to substantiate the charge against him it would not accord with common sense that he is allowed to turn back and say that the charge was not proved against him. A distinction must be made of two scenarios. One is where the prosecution fail to prove a charge against an accused person either because the evidence adduced by them was weak or unreliable, or they could not call material witnesses. The other circumstance is where the duty upon the prosecution to offer proof has been waived by the accused himself by his plea of guilty to the charge. In the latter instance, it is wrong for the appellant to fault the prosecution for not laying the proof of the charge before the court. The submission of counsel for the appellant herein belongs to the second category and it must accordingly be dismissed.

In substance, the appellant is contending that the facts do not support the offence of stealing. The facts herein ought to be distinguished from the scope which counsel has urged upon the court. The term “general deficiency” was held in the case of State v Lieutenant Ackah, Court Martial Appeal No 4/70, 21 December 1970, unreported, to connote:

“unaccountable deficit after either stock-taking or the balancing of accounts. That such deficiency might occur in the normal course of business, is not in doubt, but it may also occur as a result of the criminal activities of the person to whom the property has been entrusted.”

Where, therefore, such a person was not able to pay any money which he should have paid, that fact alone does not suffice to sustain a charge of stealing. However, where the person charged is established to have specifically misappropriated any money dishonestly, he can appropriately be charged and convicted of stealing. Whenever the prosecution succeeds in showing how the money got missing, the onus would shift onto the accused to offer an explanation. In this case the appellant did not offer any explanation. Significantly, however, this case does not fall in line with those usually classified under the term

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“general deficiency”. The facts herein show clearly that the money was specifically given to the appellant for use in buying a stated number of bags of cocoa. He dishonestly bought a lesser number of bags and dishonestly appropriated the balance of the money. His own conduct gave him out. He failed to offer an explanation for his failure to buy as he was instructed, and being aware of his dishonesty attempted to escape justice. His conduct can only be described in one form. It was dishonest appropriation. He simply stole the balance of the money. His conviction, and sentence will not be disturbed.

Appeal dismissed.

AD