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AKSOR KASSARDJIAN
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF MARCH, 1955
APPEAL NO. 86/54
2PLR/1955/58 (WACA)
OTHER CITATION(S)
2PLR/1955/58 (WACA)
(1955) XIV WACA PP. 686-689
LEX (1955) – XIV WACA 686-689
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
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BETWEEN:
AKSOR KASSARDJIAN – Appellant
AND
THE QUEEN – Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Accomplice – An accomplice not so treated at trial – Absence of corroboration Appeals in Criminal Cases – Cap 5, section 10, proviso to sub-section (1) Not applied.
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ORIGINATING COURT(S)
Appeal by convicted person:
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REPRESENTATION
G. Bing, Q.C., with A.G. Heward-Mills — for Appellant
D. J. Sheridan, Director of Public Prosecutions — for the Crown
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CASE SUMMARY
The appellant, a building contractor and transport owner, was convicted of endeavouring to influence B, a public officer, in the duties of his office by a gift of money, this public officer being the Minister of Communications and Works. The case for the Crown was that B had accepted the gifts believing that no quid pro quo was expected but later the appellant made it clear that he expected contracts. The defence was that the appellant gave the money to help B in his political career, as being a good representative of the area in which the appellant worked and made his money, and without any corrupt motive. The trial Judge rejected the defence but held that B was not an accomplice and his evidence needed no corroboration. Leave to appeal was granted on this point.
For the Crown it was argued –
(1) that if B was held to have been an accomplice, there was corroboration in the appellant’s false denial to the police that he had ever paid any money to B, but B was not an accomplice; and
(2) that the trial Judge would have convicted the appellant even if he had held B to have been an accomplice, and this was a case for acting under the proviso to sub-section (1) of section 10 of Cap. 5. (The said proviso enables the Court of Appeal to dismiss an appeal if of opinion that there had been no miscarriage of justice.)
The circumstances attending the gifts of money are examined in the judgment infra. Apart from that lie there was nothing to afford corroboration of B’s evidence.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal while entering a verdict of acquittal) that:
(1) The circumstances of the case made it imperative to hold that the public officer concerned was an accomplice.
(2) The lie told by the appellant could not be said to be such, and to have been told in such circumstances, as to afford corroboration of that officer’s evidence.
(3) The Court of Appeal could not speculate as to the conclusion the trial Judge would have reached had he found that that officer was an accomplice, and this was not a proper case for applying the proviso to section 10 (1) of Cap. 5.
Case cited:-
(1) Michael John Davies, 38 C.A.R., at p. 32, in the House of Lords.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant was convicted on four counts, each of which charged him with endeavouring to influence the conduct of a public officer, in respect of the duties of his office, by the gift of the sum of £500, and he was sentenced to two years’ imprisonment with hard labour on each count, to run concurrently.
The facts were fully ventilated at the trial before the learned Chief Justice, and again at the hearing of this appeal. It is, therefore, sufficient to say that at the relevant time the appellant was a building contractor and transport owner, and the public officer concerned was one Mr. Braimah, Minister of Communications and Works in the Government of this country. It was not in controversy that the sum of £2,000, in four lots of £500 currency notes, were paid by the appellant to Mr. Braimah.
Shortly put, the case for the prosecution was that Mr. Braimah accepted the payments or gifts in good faith believing that no quid pro quo was expected, and the appellant having persuaded him to accept the money on that footing later showed his hand and made it clear that he did expect Mr. Braimah to reciprocate by favouring him with contracts, and that Mr. Braimah then became afraid that be might be blackmailed. To use his own words:
“The reason I disclosed these matters to the Governor and decided to resign was that I feared I might be blackmailed by Nicolescu. I feared that if I did not disclose matters myself, and it came to light in some other way that I had been receiving money gifts from accused 1 (the appellant), it might be misunderstood and a false construction put on it.”
The defence was that the appellant was a generous man with his money and that he gave Mr. Braimah the £2,000 with the object of assisting him in his political career; to quote the appellant:
“I said to him (Braimah) that as long as he was in the Assembly the interests of the Northern Territories would be well protected. He agreed, but he explained to me the way and the manner in which the new Legislative Assembly would be elected and said that as he did not belong to any party he might face some difficulty in getting elected, as the C.P.P. was well organised in the Northern Territories. I said;
‘Mr. Braimah, I have made some money in the Northern Territories and the future is very bright and I am in a position to assist you.’
He thanked me for what I said and I said I could easily give him £2,000 – not all at once but in bits. Before he left, in order to show him that I was sincere in my offer, I handed over to him £500. He took the money and I gave him a lift to his house in my Chevrolet “;
and the suggestion that the money was paid with the object of influencing Mr. Braimah to favour the appellant over contracts was repudiated.
The defence was rejected by the learned Chief Justice, but he went on to hold that Mr. Braimah was not an accomplice and that his evidence did not therefore require corroboration; and this was the point upon which we granted leave to appeal.
We do not think that a narrow or precise definition of “accomplice” should, or indeed can, be laid down, but as Lord Simonds, L.C., said in the case of Michael john Davies (1):
“On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category: (i) On any view, persons who are partuipes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours) “,
the other categories referred to by Lord Simonds are not relevant to the present case.
The question we have to determine is – how does Mr. Braimah emerge from an application of this test.
The appellant was not, on the evidence, by any means a close personal friend of Mr. Braimah. The occupation of the former was well known to the latter. Before any money had passed there had been a request by the appellant, through a third party, to Mr. Braimah for the removal of two employees of the Public Works Department who were likely to be troublesome to the appellant.
Under cross-examination, when asked by counsel for the defence, Mr. Bing, why he thought the appellant had given him the money, Mr. Braimah replied:
“If I am asked why accused 1 gave me this money I say that he himself told me, sometime during the period when he was giving me money that ‘ he loved me because people were speaking well of me’. That is the reason he gave.”
Mr. Braimah admitted that the first £500 was banded to him by the appellant, wrapped in brown paper, on a motor car journey during the course of which Government contracts figured largely in the conversation, but it is only fair to record that Mr. Braimah said that he had made it quite clear that he could do nothing to assist regarding contracts. The second £500, “a bundle of bank notes, not wrapped up”, was pushed by the appellant under a cushion in Mr. Braimah’s room, in the latter’s presence. The third £500 was paid over during a motor car ride round Accra, and the fourth £500 was again pushed by the appellant under a cushion in Mr. Braimah’s room, and in his presence.
Mr. Braimah also admitted giving the gentleman who was acting as a sort of go-between £300 out of the first £500. His evidence on the point reads as follows:
“I then gave him £300 for himself. This was according to our custom – One always gives a man who brings a present either a part of the present or a dash”;
and his statement to the police when he reported the matter concludes as follows:-
“All that I have said in this statement is the truth and I have given it because the praises people begin to give me now are regarded by me that they are teasing me and my conscience tells me I am guilty of receiving this £2,000. I was so ashamed of myself when I got up on last Saturday morning that I decided to go back to my home near Salaga. I took my revolver and ammunition because I was afraid but I left these at Salaga before I returned to Accra as I did not think I would need them. I decided to come back in order to complete this statement and to see Dr. Hawe. I now ask you to look into any story that you get of my receiving bribes to offer contracts but I know that so far as contracts are concerned I have not received any bribes other than the £2,000 from Kassardjian. I give you liberty to look into any story that I have money anywhere besides the accounts I have mentioned …”
After careful consideration we feel bound to hold that Mr. Braimah was an accomplice. That he must be so considered seems to us to be almost beyond argument.
Mr. Sheridan, who appeared for the prosecution before us, submitted that if we came to the conclusion that Mr. Braimah was an accomplice, which be urged was not the case, the appellant’s denial to the police that he had ever paid any money to Mr. Braimah was a lie of such a nature as to amount to corroboration; alternatively, be submitted, it is clear that the learned Chief Justice would have convicted the appellant even if be bad held Mr. Braimah to have been an accomplice, and that this is a case in which we should act under the proviso to sub-section (1) of section 10 of Cap. 5, and hold that no substantial miscarriage of justice has actually occurred.
On the facts before us we do not think that the lie in question can be said to be of such a nature, and to have been told in such circumstances, as to lead to an inference in support of the evidence of Mr. Braimah, and we are, therefore, of the opinion that it does not afford corroboration of his evidence. Apart from that, Mr. Sheridan conceded that there was no corroborative evidence.
It was, of course, open to the Chief Justice to convict on the uncorroborated evidence of Mr. Braimah provided that he warned himself of the danger of so doing, and having done so, came to the conclusion that he was a witness of truth, and that in the circumstances here it was safe to convict on his uncorroborated evidence. Had he done so we are satisfied that we should not have thought it right to interfere with the conviction, but he did not do this. His judgment was based upon his finding that Mr. Braimah was not an accomplice, and we do not consider that this is a case in which it would be proper to apply the proviso to section 10(1) of Cap. 5. We think it would be wrong and clearly contrary to practice for us to speculate as to the conclusion the learned trial Judge might have reached had he found, as we think he ought to have done, that Mr. Braimah was an accomplice.
In these circumstances this Court is bound to allow this appeal and to quash this conviction, which we accordingly do, and we direct that a judgment and verdict of acquittal be entered.
Appeal allowed; verdict of acquittal entered.
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