ATUAHENE vs. COMMISSIONER OF POLICE [1961]DLSC1985

Date	1961-05-17
Suit No.
Citation No.	[1961]DLSC1985

AKAINYAH J

B.E. KWAW-SWANZY

ATTORNEY-GENERAL

(WITH HIM GYEKE-DARKO) FOR THE RESPONDENT

OFORI-ATTA FOR PATRICK ANIN FOR THE APPELLANT.

[1961]DLSC1985
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ATUAHENE

[HIGH COURT, ACCRA]

[1963] 1 GLR 448

DATE: 17TH MAY, 1963.

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COUNSEL:&nbsp;&nbsp;

B.E.
KWAW-SWANZY, ATTORNEY-GENERAL, (WITH HIM GYEKE-DARKO) FOR THE RESPONDENT.

OFORI-ATTA
FOR PATRICK ANIN FOR THE APPELLANT.

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AKAINYAH J.

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&nbsp;

The appellant was charged with fraud by false pretences, contrary
to section 131 of the Criminal Code, 1960,1 and the particulars of the offence
are as follows:

“Paul Achampong Cofie Atuahene, Regional Organiser, Builders
Brigade, Koforidua, on or about the 7th day of April, 1960, at Tafo in the
Eastern Magisterial District, defrauded Benjamin Akuamoah Boateng of the sum of
£G20 by falsely pretending that the said sum of money was payable to Ebenezer
Aikins-Hawkson the then Regional Organiser of the Builders Brigade at Koforidua
before the said Benjamin Akuamoah Boateng could be promoted to the post of
Group Leader in the said Builders Brigade.”

&nbsp;

On the 14th April, 1962, the appellant was convicted by the
district magistrate, Koforidua, and sentenced to a term of six months
imprisonment with hard labour. Against his conviction, he lodged an appeal and
an application for bail was made by counsel on his behalf to the Circuit Court,
Accra, (the then appellate court) but the same state attorney who conducted the
prosecution at trial and who was seised of the facts, opposed the application
successfully. Consequently he was compelled to serve the six months prison term
but prosecuted the appeal only to test the validity of the conviction.

I have carefully perused the record of proceedings and heard
defence counsel’s arguments. In my view, it is needless to review the facts in
this judgment. It is sufficient to say that the prosecution failed to prove the
case beyond all reasonable doubt and, therefore, the appellant was entitled to
an acquittal. At all events, all the material witnesses upon whose testimony
the prosecution relied to discharge the onus probandi were particeps criminis
and on the vital issue as to whether or not any sum of money was paid at all to
the appellant, their evidence was conflicting. Apart from the incomplete
evidence of the first prosecution witness, who was the only independent witness,
the evidence of the accomplices was not corroborated. The learned magistrate
failed completely to direct himself that it was unsafe and dangerous to convict
on the uncorroborated evidence of accomplices.

When I read the record and heard the appellant’s counsel on the
22nd April, 1963, I formed the opinion that the trial was most unfair to the
appellant and therefore I decided to grant him leave to appeal and to hear the
Attorney-General. On the 7th May, 1963, the learned state attorney who appeared
for the respondent announced in court that he did not intend to support the
conviction. I thought that was very wise and I allowed the appeal and acquitted
the appellant. But in view of the fact that the record of proceedings clearly
showed that the state attorney who appeared for the prosecution at the court
below conducted the case in contravention of the principles of justice, I
decided to write a considered judgment embodying my reasons and comments.

The appellant was arrested without warrant on the 12th December,
1961, and was granted police bail on the same date to appear before the
District Magistrate’s Court, Koforidua, on the 18th December, 1961. At the
request of the prosecuting state attorney, the appellant was put before the
court on Saturday, the 16th December, 1961, instead of the return date, Monday
the 18th December, 1961, and he pleaded not guilty. His counsel then quite
rightly made an application for an adjournment to the 18th December, 1961, for
the reason that he had been briefed the previous day, and was not yet ready to
go on. The prosecuting state attorney vehemently opposed the application on the
ground that a prosecution witness was leaving for Russia. He insisted that that
witness should be heard by all means and, if need be, he would remain in the
country until released by the court. Following the state attorney’s suggestion,
the court rejected the defence counsel’s application and made the following
order, “I will hear this witness to help me to decide whether this witness
should be released or not.”

The witness Edmond Asare Addo was then sworn, and he gave evidence
for the prosecution incriminating the appellant. He deposed inter alia that the
appellant admitted in his presence that he had paid the £G20, the
subject-matter of the charge, to one Hawkson, the then Regional Organiser of
the Workers Brigade. This piece of evidence turned the scale substantially in
favour of the prosecution, therefore the appellant was entitled as of right, to
test the veracity of the witness and the accuracy of his evidence by
cross-examination, but only one question was asked by defence counsel when the
case was ad</main>