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NAPARO BRAIMA AL-HASSAN
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
28TH DAY OF JULY, 1944
2PLR/1944/67 (WACA)
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OTHER CITATION(S)
2PLR/1944/67 (WACA)
(1944) X WACA PP. 238 – 242
LEX (1944) – X WACA PP. 238 – 242
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BEFORE THEIR LORDSHIPS:
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
COUSSEY, J.
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BETWEEN:
NAPARO BRAIMA AL-HASSAN – Appellant (Defendant)
AND
COMMISSIONER OF POLICE – Respondent (Complainant)
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ORIGINATING COURT(S)
Appeal from the decision of the Divisional Court dismissing the appeal from the District Magistrate’s decision.
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REPRESENTATION
A. G. Heward-Mills with A. M. Akiwumi — for Appellant
J. S. Manyo Plange, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Corruption – Criminal Code, s. 394 – Extortion – Proof of system –Witnesses alleged to be accomplices – How treated
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CASE SUMMARY
Defendant was the “Stock” man on a Government farm and was convicted by a District Magistrate of corruption in that he had exacted £1 each from four labourers mentioned in the charges before engaging them. To prove system the prosecution called two witnesses, who gave evidence that money had been extorted from them by defendant, though there were no charges regarding these two witnesses. He argued that this evidence was inadmissible on the authority of Makin v. Attorney-General of N.S.W. (1894) A.C. 57, whilst the respondent relied on King v. Lovegrove, 1920, 3 K.B., at p. 043. This was the main point on appeal. The other point was that the four labourers should have been treated as accomplices.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that,
1. The fact of the appellant having previously extorted money from others had no specific connection with the charges at issue and the evidence was inadmissible as appellant denied having received the money stated in the charges.
2. As the four labourers did not seek out the appellant and offer him a bribe, they were mere victims.
3. As in his judgment the District Magistrate examined the evidence and decided on each charge separately without referring to the two alleged previous offences, it was clear that he had not been prejudiced by the inadmissible evidence.
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MAIN JUDGMENT
The judgment of the Court was delivered by Harragin, C.J., Gold Coast:-
The appellant in this case was convicted on four counts for corruption contrary to section 394 of the Criminal Code (Cap. 9).
The facts upon which he was convicted are as follows:
The appellant was the “Stock” man on a Government farm, and appears in the Government Staff List as such. Amongst his other duties, he supervised, engaged and dismissed the labourers. It was alleged by the prosecution and proved to the satisfaction of the learned District Magistrate that the appellant had exacted from each of the four labourers mentioned in the counts the sum of £1 before he would engage them. He was sentenced to three months’ imprisonment with hard labour and a fine of £25 or two months’ imprisonment with hard labour on each count, the sentences of imprisonment to be concurrent and the fines to be non-cumulative. From this finding and sentence he appealed to the Divisional Court where his appeal was dismissed.
There are three grounds of appeal, and we may say at once that, with regard to those grounds which refer to the facts of the case, we are of the opinion that there was ample evidence upon which the learned District Magistrate could convict the appellant if he believed the witnesses for the prosecution, and we are not of the opinion that the discrepancies in the evidence of the witnesses for the prosecution were of such a serious nature as to make it imperative upon the learned District Magistrate to discard their evidence.
There are, however, two points of law for decision in this case. The first appears in Ground 3(a): “The Court received inadmissible evidence in proof of system”. This ground was based on the fact that two witnesses for the prosecution stated in their evidence that they themselves had at some previous date been obliged to give the appellant sums of money in order to obtain employment. This evidence was given in chief, and was, of course, evidence of crimes committed before those charged in this case, and were not to be found in any count in the charge. The appellant relied on the judgment in the case of Makin v. Attorney General of N.S.W. (1894) A.C. 57, 65 and the other authorities cited in that case. The judgment in that case is still the leading authority with regard to the admission of evidence in order to prove facts similar to those in issue. We cannot do better than quote the learned author of Phipson on Evidence, 8th Edition at page 147 where he sets out shortly the effect of the judgment in the above-mentioned case :-
“Facts which are relevant merely from their general similarity to the main fact or transaction, and not from some specific connection therewith as illustrated below, are not admissible to show its existence or occurrence. Nor, to prove that an act was done by a given party, may evidence be given of similar acts done either by himself, with the object of showing a general disposition, habit, or propensity to commit, and a consequent probability of his having committed, the act in question, or by others, though similarly circumstanced to himself, to show that he would be likely to act as they. If, however, the similar acts are so related to the main act as to show the party’s identity irrespective of any general propensity, they will be admissible notwithstanding that they may also tend to show such propensity.”
For the respondent the case of the King v. Lovegrove, 1920, 3 K.B. page 643 was cited, but we are of the opinion that this case can be distinguished. The Lord Chief Justice in his judgment in that case states as follows:-
“We do not desire either to extend or to restrict the principle laid down in Makin’s case and in other similar cases. But the present case does not depend on the principle there laid down.”
We are of the opinion that the question now before us does depend on the principle laid down in Makin’s case. The fact that a witness had previously paid a sum of money to the appellant in no way tends to corroborate the fact that he was present when the complainant, in the case before us, made a similar payment, but was a fact which was relevant solely from its general similarity to the main fact or transaction and has no specific connection with the matter at issue. It is therefore in our opinion clearly inadmissible.
In the Lovegrove case the evidence was only admitted on the ground that it corroborated the account given by one of the witnesses for the prosecution with regard to a certain interview with the appellant in that case. In our view the fact that the appellant some months before received a certain sum of money in no way corroborates the matter at issue which is whether he received the money on the dates stated in the charge. If we accept the argument put forward by Counsel for the respondent, it would mean that in every case the prosecution would be permitted to lead evidence of similar acts-thus if “A” were accused of stealing a watch on the 15th of June, 1944, evidence could be called to show that he stole a watch in 1943 from which the Court would be asked to deduce that he was the type of man likely to have stolen the watch on the date appearing in the information. This would be running entirely contrary to the rule laid down in the Makin case above quoted.
We would, however, like to make it perfectly clear that had the appellant, for example, raised the issue by way of defence that although he had received the money in question on the date mentioned in the charge, it was not received with any criminal intent but with some such object as to buy provisions for the labourers in question, then on the authority of the Lovegrove case, the prosecution would have been entitled to call evidence that on previous occasions the appellant had received sums of money from labourers under circumstances similar to the present, and where the question of buying provisions could not have arisen. No such issue was raised in this case where it was perfectly clear that the appellant was denying ever having received the money.
The next point raised on behalf of the appellant was to this effect-that as the labourers who were giving evidence with regard to the payment of the money were themselves committing a crime in bribing a public officer, the Court should have treated them as accomplices. The evidence satisfies us that the witnesses referred to did not seek out the appellant and offer him a bribe, but that when they applied for employment, they were told that this would not be given to them unless they were prepared to pay to the appellant the sum of £1 which in all innocence they did. On these facts and on the authority of Rex v. Dare, 5 W.A.C.A. page 122 which in turn was based on the cases of Rex v. de Verteuil and Whelan and Rex v. Cramp (14 Cox Criminal Cases), we are of; opinion that they were victims and not accomplices and that this ground of appeal fails.
The other grounds of appeal raised by Counsel for the appellant are of no substance, and were not pressed by him.
It now becomes necessary for us to consider the effect of the improper admission of evidence relating to similar facts on the mind of the learned District Magistrate, and we are of the opinion that it could not have affected his mind adversely to the appellant in any way whatsoever.
In coming to this conclusion we have not failed to give close consideration to the words of Kennedy, J. in Bond 1906, 2 K.B., 398 “Nothing can so certainly be counted upon to make a prejudice against an accused as the disclosure to the jury of other misconduct of a kind similar to that then charged”.
There are, however, three distinctions which we would draw between the case of Bond and the present case.
Firstly, the distinction between a jury and a professional Magistrate. As to this may be cited the further words of Kennedy J. in Bond (at page 398) “and the hearer (meaning each member of the jury) is a person who has not been trained to think judicially, the prejudice must sometimes he almost insurmountable.” In this connection it is to be noted that in his judgment the learned District Magistrate examined the evidence and gave a decision on each of the counts before him separately and made no reference to the evidence of the two alleged offences which were not charged. We regard this as clear proof of judicial thinking.
The second distinction arises from the fact that the accused was tried, lawfully and without objection by the defence, at one trial on four counts of the same class of offence. Where one offence is charged and evidence is given which tends to show that accused has been guilty of another similar offence, the prejudice is naturally much greater than it is in a case such as the present where the accused was lawfully charged with a number of offences of the same kind and evidence was led as to two other similar offences.
Thirdly, the two witnesses who gave evidence of similar transactions were both of them giving evidence with regard to the issue before the Court and if the learned District Magistrate believed their evidence, it mattered little whether the appellant had committed a similar act on a previous occasion, whereas if the learned District Magistrate did not believe them to be witnesses of truth, the fact that they were prepared to lie still further and give other instances of alleged crimes committed by the appellant would not in any way tend to make him believe their evidence; any the more. Under these circumstances we are not of the opinion that the appellant was adversely affected by the admission of this inadmissible evidence or that the learned District Magistrate would have come to any other conclusion than the one which he did had the evidence been omitted. The appeal is therefore dismissed.
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