NYINA vs. COMMISSIONER OF POLICE [1964]DLSC1935

Date	1964-06-30
Suit No.
Citation No.	[1964]DLSC1935

MILLS-ODOI JSC

OLLENNU JSC

AKAINYAH J.S.C.

APPELLANT IN PERSON.

D. F. ANNAN SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1964]DLSC1935
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													<main id="main" class="content" style="min-height: 60rem" >NYINA<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 452<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:
30 JUNE 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">

APPELLANT IN PERSON.<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 AKAINYAH
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. The appellant was charred before
the District Court, Kumasi, jointly with one Kwame Dapaa, with two counts of
stealing contrary to section 124 of the Criminal Code, 1960.1 Before the trial
commenced, the said Kwame Dapaa was certified insane and admitted as a patient
of the Mental Hospital; the prosecution therefore withdrew the charge against
him and proceeded against the appellant alone. The trial court found the
appellant not guilty of stealing but convicted him of receiving by virtue of
the provisions of section 156 of the Criminal Procedure Code, 1960.2 The
reasons given by the learned district magistrate for so convicting him 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">“From the
nature of the goods, the manner they were conveyed to the accused, his conduct
before the police at Kwadaso on the date in question, his conduct in connection
with this case coupled with the falsehood he tells the court, there is not the
iota of doubt in my mind that the accused knew the articles conveyed to him by
Kwame Dapaa were stolen.”<o:p></o:p><o:p>&nbsp;</o:p>The
appellant appealed from his said conviction to the High Court, Kumasi. After
hearing preliminary submissions on behalf of the appellant as required by
section 328 of the Criminal Procedure Code, 1960, the learned judge of the High
Court said:<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">&nbsp;“I am not quite clear in my mind whether there
was sufficient positive evidence led before the trial court to prove the
accused’s guilty knowledge in respect of a charge of receiving stolen
properties upon which the accused has been convicted. In the circumstances, I
propose to hear the views of the state attorney as to whether there was
sufficient evidence to support the conviction on a charge of receiving.”<o:p></o:p><o:p>&nbsp;</o:p>He
therefore caused notice to be served on the Attorney-General in pursuance of
section 329 of the Criminal Procedure Code, 1960. However, after he had heard
full arguments on both sides, the learned judge dismissed the appellant’s
appeal, holding that “on the whole of the evidence in this case the court could
properly have come to the conclusion on the facts found that the case of
dishonest receiving had been proved against the appellant.” The directions the
learned judge gave himself upon which he came to his said conclusion 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">“The
accused’s room was inspected and identification (5) which he claimed was found.
The evidence of the sixth prosecution witness the general police constable is
very noteworthy on this point. According to him, the accused made no statement
concerning the claim made by the second prosecution witness to the men’s cover
cloth including exhibits B1, B2 and B4; furthermore, it must be noted that
although it is a well established principle of the law that a statement made by
a co-defendant not on oath in court is not evidence against the other defendant
on trial the court properly accepted the evidence having regard to the evidence
of the prosecution witnesses as to what was said when Kwame Dapaa was
confronted with accused in the presence of the police. There was certainly some
evidence of guilty knowledge which made it more probable than not that some of
the goods were delivered at the accused’s house by an arrangement with Kwame
Dapaa.”<o:p></o:p><o:p>&nbsp;</o:p>This is
clear misdirection on the law. The law is that a statement made in the presence
of an accused person, accusing him, albeit made by an accomplice in crime, is
not evidence against the accused person except in so far as the accused by word
or conduct admitted the truth of the accusation: see R. v. Christie,3 where the
leading English authorities on the subject are discussed. R. v. Norton4 laid
down the principle 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">“Where
they [the statement</main>