THE STATE v.

OSEI AND ANOTHER

[1960] GLR 218

Division: IN THE SUPREME COURT

Date: 11TH NOVEMBER, 1960
Before: VAN LARE, SARKODFE-ADOO AND AKIWUMI, JJ.S.C.

Criminal law—Evidence relating to similar transactions not charged—Admissibility—Conviction for

aiding and abetting where stealing charge proved—Criminal Code Cap. 9 s. 46 (2)—Application of
proviso to s. 15 (1) of Courts Act, 1960.

HEADNOTES
The appellants who were a cashier and an assistant accountant in the Ministry of Food and
Agriculture at Kumasi were jointly charged and convicted at Kumasi Assizes on six counts of
conspiracy to steal and six counts of stealing monies, belonging to the Ghana Government (Criminal
Code ss. 49 (1) and 288 (1)).
The trial judge found that there was a conspiracy to steal monies of the Ghana Government by means
of fictitious vouchers for labourers’ wages prepared by one E. A. Daniels (also an employee of the
Ministry) and that the first accused who was a party to this conspiracy cashed all the cheques relating
to these vouchers. As regards the second accused he said “ on the evidence I am fully satisfied that the
second accused was a party to the conspiracy to steal the monies belonging to the Ghana Government
as charged. In my view the conduct of the second accused was not consistent with innocence, and I
have no doubt that he ‘deliberately refrained from making inquiries the result of which he might not
care to have’ because he was a partner in the deal. There is no evidence that any of the cheques which
forms the subject matter of counts 2, 4, 6, 8, 10 and 12 was cashed by the second accused. But section
46 (2) of Cap 9. reads as follows:
(2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during
the continuance of the abetment, be deemed guilty of that crime.’
I have no doubt on the evidence that the second accused aided, facilitated and encouraged the stealing
by the first accused of the various sums of money mentioned in counts 2, 4, 6, 8, 10 and 12.”

[p.219] of [1960] GLR 218

At the trial, the prosecution led evidence relating to other transactions of the same nature by the two
accused, which did not form the subject matter of any of the counts in the information. The appeals
were dismissed by the Supreme Court.
Held:—
(1) it is for the court to rule on the question of admissibility of evidence of similar facts after such
evidence has been led by the prosecution, and not to ascertain what the nature of evidence of
system is before it could be adduced by the prosecution. In the present case the evidence was
relevant and admissible;
(2) the second appellant, not having been charged with aiding and abetting the crime of stealing
could not be convicted of that offence. No substantial miscarriage of justice had however
occurred and the proviso to section 15 (1) of the Courts Act, 1960 would be applied.
Note: — Section 46 of the Criminal Code, Cap. 9 is now section 20 of the Criminal Code, 1960.

CASES REFERRED TO
(1) Makin and Another v. A.G. for New South Wales [1894] A.C. 57;
(2) R. v. Bond [1906] 2 K.B. 389.

NATURE OF PROCEEDINGS
APPEAL against conviction for conspiracy to steal and stealing by Crabbe J. sitting with assessors at
the Kumasi Assizes on March 31, 1960.

COUNSEL
Kom for 1st appellant.
Koi Larbi for 2nd appellant
Amissah for respondent.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo J.S.C. read the judgment of the court. The appellants were jointly charged on twelve
counts, six of conspiracy to steal and six of stealing moneys totalling in all a sum of £G2,911 10s.
belonging to the Ghana Government. On the counts of conspiracy the appellants were jointly charged
with one E. A. Daniels and other persons unknown to steal moneys belonging to the Ghana
Government by means of employment.
The first appellant, Kwame Fosu Osei was a cashier in the Ministry of Food and Agriculture at
Kumasi on the material dates of the offences charged; the second appellant, Emmanuel Daniel Annan
was the assistant accountant in the said Ministry and E. A. Daniels, who was a clerical officer
attached to the Konongo/North District of the said Ministry, did not stand trial with the appellants.
The trial was at the Kumasi Assizes before Crabbe, J., with the aid of assessors who expressed various
opinions as to the guilt of the appellants. The learned trial judge found each appellant guilty on all the
twelve counts and convicted each of them accordingly.
Mr. Kom for the first appellant was granted leave to argue the additional grounds filed, namely —
“1. The learned trial judge was wrong in overruling the preliminary objection that the accused person
can be charged with conspiracy and stealing together.

[p.220] of [1960] GLR 218

“2. The trial judge was wrong in admitting similar facts evidence to the prejudice of the accused
without first ascertaining from the prosecution what the evidence of system is to prove or
establish.
“3. In view of the following conclusion of the learned judge the conviction for conspiracy cannot
stand: —
‘I accept the evidence of P.W.3 and P.W.5 and I have not the slightest doubt that Exhibits “A”
“Al-A5” were cashed by the first accused, who stole the amount represented by these cheques.’
“4. If the learned judge had as a matter of fact found ‘Exhibit “N” (i.e. the Cash Book) shows that
first accused had no intention of stealing any money as reflected by the entries’ he should in law
have withdrawn the charge from the assessors or directed the assessors to return a verdict of not
guilty of stealing.
“5. The finding of the learned judge in paragraphs 3 and 4 are contradictory and therefore conviction
 cannot stand.
“6. On the whole the prosecution failed to prove the charge of conspiracy and stealing.”

In arguing ground 1, learned counsel himself cited Archbold, (34th ed. at p. 1525 para. 4070 ) which
deals with the inclusion of a count for conspiracy in an indictment charging specific offences. Learned
counsel then argued ground 2 and, in support of that contention cited Makin and Another v. The
Attorney-General for New South Wales [1894] A.C. 57 and R. v. Bond [1906] 2 K. B. 389.
A careful reading of these cases shows that they are clearly against counsel’s submissions. It is for the
court to decide on the question of admissibility of evidence of similar facts after such evidence had
been led and not to ascertain what the nature of evidence of system is before it could be adduced by
the prosecution. The Lord Chancellor in the course of the judgment of the court in the first cited case
said inter alia:
“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused
has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to
the conclusion that the accused is a person likely from his criminal conduct or character to have
committed the offence for which he is being tried. On the other hand, the mere fact that the evidence
adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to
an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged
to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which
would otherwise be open to the accused” ([1894] A.C. at p. 65).

A principle enunciated in the course of the majority decision by Lawrence, J., in the second cited case
([1906] 2 K.B, at p. 424) worthy of note in this connection is as follows:

[p.221] of [1960] GLR 218

“In all cases in order to make evidence of this class admissible there must be some connection between
the facts of the crime charged in the indictment and the facts proved in evidence. In proximity of time, in
method, or in circumstance there must be a nexus between the two sets of facts, otherwise no inference
can be safely deduced therefrom.”

The passage complained of is not a finding of fact as alleged but it appears in the learned trial judge’s
summing-up of the defence of the first appellant to the assessors as part of the case put forward by
him (first appellant). Learned counsel abandoned grounds 5 and 6.
Mr. Koi Larbi for the second appellant argued the following grounds of appeal: —
“1. That the learned trial judge wrongfully admitted in evidence Exhibits X, X1-4.
“2. That the learned trial judge misdirected himself by directing that Exhibits X, X1-4 constituted
evidence of guilty knowledge on the part of the appellant.
“3. That there was substantial miscarriage of justice in that by the cross-examination of the appellant
by the counsel for prosecution in respect of the previous trial coupled with the admission in
evidence of X, X1-4 it became known to the court that the appellant had been previously
convicted.
“4. That the insertion of the conspiracy count in addition to stealing count highly prejudiced the
defence of the appellant.
“5. That the learned trial judge misdirected himself by holding that by reason of section 46 (2) of the
Criminal Code, Cap. 9, the appellant was guilty on counts 2, 4, 6, 8, 10 and 12 although the
appellant was not charged under section 46 (2) aforesaid.
“6. That on the whole the trial was unfairly conducted.”

In arguing grounds 1, 2 and 3 together, the submission of learned counsel was that the evidence of
similar facts received in this case was wrong because the accused persons had already been convicted
on the matters which were similar to the facts in the present case and that there is an appeal pending in
respect of that conviction. Learned counsel however declined to entertain a suggestion by the court for
an adjournment in this case pending the hearing and determination of that appeal as alleged. He was
therefore unable to pursue this ground. Learned counsel abandoned ground 4 which he conceded was
covered by the arguments advanced by counsel for the first appellant. With respect to grounds 5 and
6, in support of his submission learned counsel referred to that part of the learned trial judge’s
judgment which reads as follows:
“There is no evidence that any of the cheques which forms the subject matter of counts 2, 4, 6, 8 10 and
12 was cashed by the second accused. But section 46 (2) of Cap. 9 reads as follows:
(2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during
the continuance of the abetment, be deemed guilty of that crime.’

[p.222] of [1960] GLR 218

“I have no doubt on the evidence that the second accused aided, facilitated and encouraged the stealing
by the first accused of the various sums of money mentioned in counts 2, 4, 6, 8, 10 and 12.”

Ex facie the accused not having been charged with aiding and abetting could not be convicted of that
offence but we are of opinion that what the learned trial judge had in mind was that if two or more
conspire to act together to do a certain act, and if such act be done in pursuance of such conspiracy all
the conspirators are responsible in law for the act so done; in other words, once conspiracy is
established the act of one is the act of all the others and all are liable to the same punishment.
Notwithstanding this legal point in favour of the second appellant, in the exercise of our powers by
the proviso to section 15 (1) of the Courts Act, 1960, we dismissed the appeal as we considered that
no substantial miscarriage of justice had actually occurred.
In the result as there was no substance in any of grounds argued each appeal was dismissed.

DECISION
Appeal dismissed.