COMMISSIONER OF POLICE vs. ISAAC ANTWI [1961]DLSC5356

Date	1961-06-26
Suit No.
Citation No.	[1961]DLSC5356

KORSAH C. J.

SARKODEE-ADOO JSC

AKIWUMI J.J.S.C.

VICTOR OWUSU WITH HIM HEWARD-MILLS FOR THE APPELLANT

K. DUA-SAKYI FOR THE RESPONDENT (THE STATE).

[1961]DLSC5356
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">COMMISSIONER OF POLICE<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;ISAAC ANTWI<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

VICTOR
OWUSU, WITH HIM HEWARD-MILLS FOR THE APPELLANT<o:p></o:p>

K.
DUA-SAKYI FOR THE RESPONDENT (THE STATE).<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KORSAH C. J., SARKODEE-ADOO
JSC, AKIWUMI J.J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
KORSAH C.J.<o:p></o:p>Korsah C.J. delivered the judgment of the court. The appellant was
convicted by the circuit judge at Kumasi on the 14th February, 1961, of
stealing by means of his employment, for that he during the months of May and
June, 1958, stole cash the sum of £G92, the property of the Ashanti Turf Club,
Limited, to which sum he had the means of access by reason of his office as a
managing director of the Ashanti Turf Club, and was sentenced to five months’
imprisonment with hard labour. At the trial the defence to the charge was that
from time to time monies were received from the cashier and the amounts jotted
down on paper and finally a voucher covering £G132 was prepared and signed by
the appellant; the amount so received was used in the Turf Club business in which
no receipts were taken and no receipts were in the circumstances necessary. By
the appellant’s service agreement he was authorised, inter alia, to:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“exercise and carry out all such powers and duties and shall
observe all such directions and restrictions as the Board of Directors may from
time to time confer or impose upon him but in default thereof the Managing
Director shall control the general management of the business of the Company
and do all other acts and things which he may consider necessary or conducive
to the interests of the Company.”<o:p></o:p><o:p>&nbsp;</o:p>Learned counsel for the appellant argued ten grounds of appeal in
two groups, viz: grounds one and two together, and also grounds three to ten
together, and it will assist in understanding the case if we set these out in
extenso. They are as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“1. The trial circuit judge misdirected himself seriously as to
the burden of proof and thus shifted the burden onto the defendant occasioning
a miscarriage of justice.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">Particulars of misdirection Page 46, lines 1-6. `Apart from these
witnesses no evidence was led by the prosecution to disprove other payments and
rightly in law shifted the burden of proof onto the defence to prove payments
or to give an explanation as to payments reasonably probable of the truth.’
Page 51, lines 5-9. `I have considered the case for the prosecution and also
all aspects of the defence put forward by the accused as not reasonably
probable.’ “2. That the misdirection was all the more grievous considering that
the appellant was not charged with unlawful possession or receiving but stealing
where the onus is on the prosecution throughout to establish that the accused
stole, the burden of proof never shifting. “3. Apart from Duah, Gyimah and
Oppong who denied receiving money from accused (which denial is not supported
by the prosecution’s own evidence) the prosecution failed to establish that the
accused did not in fact use the money for the purposes he alleged he used them.
“4. The evidence even from the prosecution witnesses was overwhelming regarding
payments of money without obtaining receipts and the trial circuit judge erred
in holding this against the appellant to support his conclusion that the
appellant stole the money. “5. The charge being originally in respect of £G132
and the prosecution having agreed that £G40 was accounted for even though not
supported by receipts the probability was that the rest of the amount had been
so expended without supporting receipts. This probability the trial circuit
judge failed completely to consider in favour of appellant. “6. The trial
circuit judge misdirected himself in many parts of his judgment by posing
questions such as this: `Defence counsel has not shown any reason why I should
not believe this witness’ (a prosecution witness). Surely it is for the
prosecution to bring such evidence as the court will believe and accept and to
show why they should be believed. “7. Even if Attiya was not Justman and the
evidence was overwhelming that he was, the trial circuit judge failed to
consider whether in fact there was a Justman who was in fact paid money by
accused seeing that in all of Justman’s letters he was in fact asking for sums
of money to effect all sorts of contacts. If in fact such a man existed then it
was immaterial whether Attiya was in fact this Justman or not. “8. Gyimah was
paid according to prosecution witnesses as publicity officer, Duah as security
officer and Oppong for propaga</main>