DOMENA vs. COMMISSIONER OF POLICE [1964]DLSC1896

Date	1964-11-06
Suit No.
Citation No.	[1964]DLSC1896

MILLS-ODOI JSC

OLLENNU JSC

SIRIBOE J.S.C.

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT.

J. N. K. TAYLOR SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1964]DLSC1896
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													<main id="main" class="content" style="min-height: 60rem" >DOMENA<o:p></o:p>&nbsp;vs. <o:p></o:p>COMMISSIONER OF POLICE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 563<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">

DATE:
6 NOVEMBER 1964.<o:p></o:p>

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

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT.<o:p></o:p>

J. N. K. TAYLOR, SENIOR STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

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

MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. This is an appeal from a judgment
of Acolatse J., as he then was, upholding the convictions of, and sentences
passed upon the appellant by the District Magistrate, Somanya. The convictions
and sentences are in respect of three counts of stealing. The subject of the
alleged offence is three turkeys in the first and one turkey in each of the
other two counts.<o:p></o:p><o:p>&nbsp;</o:p>When the
appeal from the decision of the district magistrate came before the High Court
on 5 June 1963, the learned judge formed the opinion that it was not a matter
which should be dismissed summarily as he is empowered to do under section 328
of the Criminal Procedure Code, 19601; he therefore caused notice to be given
to the Attorney-General as provided by section 329 of the said Criminal
Procedure Code, 1960. The appeal came before the court again on 1 November
1963, the appellant appearing in person, the respondent represented by a state
attorney. After hearing submissions by the appellant, the High Court dismissed
his appeal without calling upon the respondent, stating that there is no
substance in the appeal.<o:p></o:p><o:p>&nbsp;</o:p>There was
no appearance by or for the appellant in this court; information received from
the prisons which was his address is that he had served his sentences and been
discharged. The respondent was represented by a senior state attorney. The
absence of the appellant notwithstanding, the court, in the interest of
justice, called upon learned senior state attorney to support the convictions.<o:p></o:p>After
strenuous efforts, the senior state attorney was obliged to concede that he
could not support the conviction on the first count. He however contended that
there is sufficient evidence which, in law, conclusively proved the guilt of
the appellant in respect of the second and third counts.<o:p></o:p><o:p>&nbsp;</o:p>The first
count charged the appellant with stealing three turkeys, the property of one
Emmanuel Kwame Gyasi, the first prosecution witness. The only evidence in
respect of that count is that the complainant noticed on the morning of 16
April 1962, that he had lost three turkeys, two male and one female, and went
out in search of them. In the course of the search he met two sanitary
labourers, the second and third prosecution witnesses. While these three
persons, first, second and third prosecution witnesses were together, they saw
the appellant approaching their direction holding three empty cardboard boxes.
The appellant suddenly dropped the cardboard boxes and took to his heels; the
three men chased and arrested him, and took him to the place where he had
dropped the three boxes. The witnesses later discovered three turkeys under a
tree in the neighbourhood; these were identified by the first prosecution
witness as his property. The first, second and third prosecution witnesses took
the appellant, the three turkeys and the three cardboard boxes to the police
station, made a complaint and handed the appellant over to the police and the
appellant was charged.<o:p></o:p><o:p>&nbsp;</o:p>The
learned district magistrate gave the following reasons for convicting the
appellant on this count:<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">“It is
true that the accused was not actually seen with the turkeys, but to my mind
there is sufficient evidence, having regard to all the surrounding
circumstances to incline this court to believe that the concealing of the three
birds under those trees was the act of the accused.”<o:p></o:p><o:p>&nbsp;</o:p>