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HELWANI AND GOUCH v. COMMISSIONER OF POLICE

JELR 85892 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
M’CARTHY, AG. C.J. (GOLD COAST), JACKSON AND KORSAH, JJ.

Judgement

These are appeals from the judgment of the Divisional Court, Sekondi, con- firming convictions by the District Magistrate, Sekondi. The first appellant who was the first accused in the District Magistrate's Court was convicted of dishonestly receiving stolen property contrary to section 284 (1) of Cap. 9, and the second appellant who was the fifth accused in the trial Court was convicted on charges of conspiracy to steal and stealing.

At the conclusion of the hearing of the appeals this Court dismissed them, and intimated that reasons would be given later.

As regards the first appellant the only ground of appeal of any substance was ground 5 (a) which reads as follows:- “Because the Court was wrong in holding that the facts proved by the prosecution amounted in law to dishonestly receiving.”

It was proved that the appellant had driven in his motor car at night near to , the scene of the theft of several cases of motor spare parts from a military depot for the purpose of transporting the stolen property to his house With a View to buying it from one of the thieves, and that this thief accompanied him in the car. That on reaching a place to which the cases had been carried by other thieves, the appellant turned his car and opened its boot for the reception of the cases. After one case had been put into the boot, officers and other members of the military police who were lying in wait rushed up to the car. The appellant though called upon to stop by a European officer attempted to drive away, but was with some difficulty stopped and taken into custody.

Section 284 (1) of Cap. 9 reads thus:- “Whoever dishonestly receives any property which he knows to have been obtained or appropriated by any offence punishable under this title shall be liable to the same punishment as if he had committed such offence.”

Section 43 (1) is as follows:- “A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner.”

It was submitted on behalf of the appellant that even supposing the District Magistrate was justified in holding as he did that the appellant knew that the goods had been stolen, the above facts do not bring the case within the definition of receiving.

Mr. Quist relied on the case of R. v. Wiley (1), and other English cases which establish (as stated in Archbold, 31st Edition, 724) that, even if there is proof of a criminal intent to receive, and a knowledge that the goods were stolen, if the exclusive possessions still remains in the thief, a conviction for receiving cannot be sustained”.

He pointed out that as the goods had not been brought by the appellant from the thief who took him to the spot it is evident that exclusive possession still remained in the thief. When invited by the Court to say whether the facts did not bring the case under section 43 (1), Mr. Quist replied in the negative, on the ground, as we understood him, that as the appellant was only assisting in the transport of the goods with a view to possible purchase, and had not taken delivery of them on purchase, there was no disposal of them within the meaning of section 43 (1).

In our opinion this proposition is quite untenable. Construing the sub-section according to the ordinary meaning of its language, the latter part relating to assisting in the disposal of stolen property otherwise than with a purpose to restore it to its owner, in our opinion, clearly covers the facts of the case.

The English authorities relied upon by Mr. Quist do not apply because the English law as to receiving does not cover the acts contemplated in the part of section 43 of Cap. to which reference has just been made. Such acts in English law would constitute the offence of being an accessory after the fact. They do not appear to fall within the scope of section 384 of Cap. 9 as to harbouring, etc, a criminal which presumably explains why the definition of receiving in section 43 (1) is so wide.

For these reasons we dismissed the appeal.

As regards the second appellant, the only ground of appeal to which we need refer is the following:- “(1) Because the evidence of the prosecution lacks corroboration and the Court found on the evidence of accomplices.”

The District Magistrate who had the opportunity of seeing and hearing the two principal witnesses against the appellant, Lamptey and Abotchey, considered it advisable to treat them as accomplices, and therefore found it necessary to look for corroboration of their evidence. The learned judge held on the evidence that these witnesses were not accomplices, but that though their evidence did, not need corroboration it was in fact corroborated.

In our view whether these witnesses were accomplices is an open question, but it was not unreasonable for the District Magistrate to regard them as such and in the circumstances the conviction could not stand unless in fact satisfactory corroboration existed.

In R .v. Kelfalla (2), in the course of its judgment this Court stated:- It is an open question whether Siaffa Mada was or was not an accomplice and the Judge evidently thought it a proper precaution, upon the principle of giving an accused person the benefit of the doubt, to treat Siaffa Mada as an accomplice upon whose evidence it would be unsafe to convict unless it were corroborated.”

The Court differed from the Court below as to the existence of corroboration and quashed the conviction.

The evidence of Lamptey and Abotchey in the present case was to the effect that on the night in question they saw the appellant together with other soldiers removing goods from the depot in circumstances obviously amounting to theft.

For corroboration the Crown relied on the conduct of the appellant very soon after the time of the theft, that is when the stolen goods were being disposed of as already mentioned in connection with the first appellant, and on contradictory and unsatisfactory explanations of his conduct given by the appellant before trial and in the witness box.

The appellant was found just about the time that the first appellant was \arrested in his car in a neighbouring military area in suspicious circumstances which not unnaturally led to his being detained by servants attached to the Officers’ Mess. His various explanations of his presence in the area that night were all unsatisfactory as also was his explanation on oath at the trial. Moreover, when Captain Hurd almost immediately after the arrest of the first appellant found the second appellant in the hands of the servants of the Officers’ Mess, he noticed that he was perspiring freely and appeared to have been running.

It is not surprising that in view of this evidence the District Magistrate thought that the evidence of Lamptey and Abotchey afforded the only probable explanation of the appellant’s conduct. If the appellant was one of the thieves it is quite easy to see that he must have fled upon the appearance of the military police and unfortunately for him have come across the servants who detained him.

There was thus independent testimony which affected the appellant by tending to connect him with the crime, inasmuch as it provided circumstantial evidence which confirmed the evidence of Larmptey and Abotchey that they saw the appellant take part in the theft (vide R. v. Baskerville (3)). It is established by R. v, Medcraft (4) and R. v. Blatherwick (5), that the prisoner’s own evidence may afford the necessary corroboration, as may also his conduct in the circumstances of the particular case.

This ground of appeal therefore failed, for which reason the appeal was dismissed.

Appeals dismissed.

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