Criminal
Law-Conspiracy-Outsider
conspiring with Post Office
employees to tamper with postal
matter-Criminal Code, section
163, and section
576Circumstantial
evidence-Where guilt not the
only possible inference-Where
certainly not deducible
Evidence
Ordinance-Section 34-Government
Officer-Gazette to justify
absence at trial-Section
114: presumption on record of
evidence.
Section 163
of the Criminal Code makes it an
offence to tamper with postal
matter: but it applies to
employees of the Posts and
Telegraphs Department only.
Section 576 of the Code relates
to conspiracy.
The
appellant, a solicitor, was
tried with two employees of the
Post Office on a charge of
conspiring to tamper with postal
matter, the substance being that
they conspired to make it appear
that a letter sent by the
appellant on a certain day had
been posted on an earlier day.
All three were convicted; and
the appellant appealed.
His first
ground of appeal was that as he
(not being an employee of the
Post Office) could not commit
any offence under section 163 of
the Code, he could not be
accused or convicted of
conspiracy to commit that
offence. (He relied on a case
which did not support his
argument.)
His second
ground related to evidence. A
Government officer made a
deposition before the
investigating Magistrate and put
in some papers, which were
marked as exhibits. That officer
went abroad on leave, and
Counsel for the Crown applied
for the deposition to be read
after producing the Gazette
showing that the witness was
abroad on leave. The second
ground complained that the
deposition and exhibits had not
been proved in manner required
by law. The provisions of the
Evidence Ordinance (section 34
and section 114) are cited in
the judgment infra;
section 114 creates a
presumption that a deposition
duly signed, etc., was properly
taken, and section 34 makes the
Gazette sufficient on the point
of absence. The manner of taking
a deposition and the marking of
documents is governed by the
Criminal Procedure Ordinance
(sections 321, 322, and 330,
referred to in the judgment
infra). The appellant had an
opportunity, at the time, of
crossexamining the absent
witness; the latter signed his
deposition, and the Magistrate
authenticated it.
The third
ground of appeal was that the
verdict was unreasonable. There
was no direct evidence. The
Crown theory (which was accepted
by the trial Judge) was that the
cheque in the letter was sent in
response to a demand which
'reached the appellant by post
on Saturday, the 15th, after 2
p.m., that the cheque was not
borrowed until later that day,
and the letter with the cheque
was therefore posted on Monday,
the 17th, but made to appear as
having been posted on the 15th
as the result of a conspiracy
between the appellant and his
co-defendants. One co-defendant
said in evidence that the
appellant gave him the letter
early on Saturday morning to
post but he forgot to post it
until Monday, and the other
co-defendant confirmed him that
the letter was registered on
Monday. There was evidence for
the Crown that the person who
lent the blank cheque was away
on Friday afternoon and
returned late that day (but the
value of this 'evidence was
spoilt by earlier evidence in
another proceeding); there was
evidence for the appellant that
he was visited on Friday
afternoon and given the cheque
before [pg
64] 8 a.m. on Saturday;
that then he gave the letter 'to
the first co-defendant to post;
and the counterfoil bore a note
of 14.9.5t,' viz. Friday, as
being the day on which the
cheque was loaned. The evidence
bearing on the case of the
appellant is reviewed in the
final part of the judgment
infra.
Held:
The gist of the offence of
conspiracy lies, not in the
doing of the act or effecting
the purpose for which the
conspiracy is formed, but in the
forming of the scheme or
agreement between the parties;
and a person may be charged and
convicted of conspiracy to
commit a crime of which he could
not, if he stood alone, be
convicted.
Held also:
The deposition and the
documents therein referred to
were rightly admitted under
sections 34 and 114 of
the Evidence Ordinance, as the
provisions of the Criminal
Procedure Ordinance, sections
321, 322, and 330, had been met
and the deposition and documents
were produced from the custody
of the registrar of the trial
Court.
Held
further: The conflict and
discrepancies in the evidence
for the Crown were such that
there was not the certainty
required to justify the
conviction of the appellant; nor
was guilt on his part the only
possible inference.
Cases cited:-
(1) Rex
v. Crossman and
Leyland-Ex parte Chetwynd,
24 T.L.R. 517.
(2) Regina
v. Whitchurch (1890),
24 Q.B.D. 422.
(3)
Mulcahy v. R. (1868),
:~ H.L., at p. 317.
(4) Rex
v. Plummer (1902), 2
K.B., at p. 348.
(Editor's
Note: on the Held
above. In a later case, iHomo
Maliek v. R., the
Court of Appeal set aside the
conviction for obtaining money
by false pretences but
nevertheless upheld the
conviction for conspiring with
others so to obtain money. Lagos
No. 119 of 1953 on 23rd Oct.,
1953.)~
Appeal by
convicted person: No. 3749.
F. R. A. IFilliams for
Appellant.
E. Egbuna,
Crown Counsel, for the
Crown.
The
following judgment was
delivered:-
Foster-Sutton, P. The
appellant was charged jointly
with two other men, Olaiwola
Ogunyemi and Isaac Onawoga, on a
number of counts including one,
upon which they were all three
convicted, charging them with
conspiracy to commit a felony,
contrary to section 576 of the
Criminal Code, in that they" on
the 17th day of September, 1951,
at Ibadan, in the Province of
Ibadan, conspired to commit a
felony, to wit, to tamper with a
postal matter ".
The appellant
was sentenced to nine months'
imprisonment with hard labour.
The facts of the case are fully
and clearly set out in the
learned trial Judge's Judgment.
It is, therefore, sufficient to
say here that the appellant is a
lawyer practising his profession
in Ibadan, and the other two
persons charged with him were
employees at the Post Office in
Ibadan.
The
appellant's Counsel argued four
grounds of appeal, but we only
consider it necessary to deal
with the following:-
" The
decision is wrong in law in that
the appellant being a person who
cannot commit any offence under
the provisions of section 163 of
the Criminal Code he cannot be
indicted or convicted for
conspiracy to commit the
aforesaid offence .
.. The
learned trial Judge wrongly
considered the statement of the
witness Eric Parr and the
documents referred to by him in
his said statesmen as evidence
when the statement and documents
were not proved in Court in the
manner required by law .••
" The
decision is wrong in law in that
there is no evidence from which
it can be reasonably inferred
that the appellant conspired
with the other
[pg65]
accused persons to commit
the acts alleged to amount to an
offence under section 163 of the
Criminal Code.
As to
the first ground-appellant's
Counsel argued that as the
conspiracy charged was to commit
an offence under section 163 of
the Criminal Code, and that
section only applies to persons
•• employed by or under the
Posts and Telegraphs Department
", the appellant, not being so
employed, could not be convicted
of conspiring to commit the
offence since he could not be
convicted of the offence itself;
and he cited the case of Rex
v. Crossman and
Leyland-Ex parte Chetwynd
(1) in support of his
contention. It is true that
Archbold cites the case in
support of the proposition that
the point is " well worthy of
argument ", but we can see
nothing in the report of the
case in Volume 24 of the
Times Law Reports to justify
either the submission of
Counselor the statement in
Archbold to which I have
referred. In that case, a
warrant having been issued by a
Magistrate against the mother of
a child and two other persons
'upon a charge of conspiring to
take the child out of the
custody of its guardian, the
Court refused to direct the
Magistrate to withdraw the
warrant, it not having been
clearly shown that the mother,
notwithstanding the protection
in the proviso to section 56 of
the Offences Against the Persons
Act, 1861, was not guilty of the
offence of conspiracy charged
against her. The Court, however,
in the absence of the mother,
who was out of the jurisdiction,
declined to decide whether she
was liable for the conspiracy.
In oui
view a person may be charged and
convicted of conspiracy to
commit a crime of which he could
not, if he stood alone, be
convicted, and we are fortified
in that view by the judgment 6f
Lord Coleridge, C.]., in
Regina v. Whitchurch
(2), and by the generally
accepted definition of the
offence of conspiracy given by
Willes, J., on behalf of the
judges in Mulcahy v.
R. (3), where he said:-
" A
conspiracy consists not merely
in the intention of two or more
but in the agreement of two or
more to do an unlawful act, or
to do a lawful act by
unlawful means. So long as a
design rests in intention only
it is not indictable. When two
agree to carry it into effect,
the very plot is an act in
itself, and the act of each of
the parties, promise against
promise, actus contra actum,
capable of being enforced if
lawful, punishable if for a
criminal object or for the use
of criminal means."
The
gist of the offence of
conspiracy lies, not in doing
the act, or effecting the
purpose for which the conspiracy
is formed, but in the forming of
the scheme or agreement between
the parties. As Bruce, ]., says
in Rex v. Plummer
(4), " the external or overt act
of the crime is concert, by
which mutual consent to a common
propose is exchanged".
Counsel for
appellant then submitted that
the deposition of Eric Parr,
surveyor, Posts and Telegraphs
Department, had been wrongly
admitted in evidence at the
trial because it was not
properly proved, Counsel for the
Crown having merely applied for
the deposition to be read after
producing a notice 'in the
official Gazette showing that
the witness was out of the
country on leave.
The
deposition was admitted by the
trial judge under the provisions
of section 34 of the Evidence
Ordinance (Cap. 63) which for
convenience of reference reads
as follows:-
"34. (1)
Evidence given by a witness in a
judicial proceeding, or before
any person authorised by law to
take it, is relevant for the
purpose of proving in a
subsequent judicial proceeding,
or in a later stage of the same
judicial proceeding, the truth
of the facts which it states,
when the witness is dead or
cannot be found, or is incapable
of giving evidence, or is kept
out of the way by the adverse
party, or when his presence
cannot be obtained' without an
amount of delay or expense
which, in the circumstances of
the case, the court considers
unreasonable:-
[pg 66 ]
"
Provided-
I'
" (a)
That the proceeding was between
the same parties or their
representatives in interest;
" (b)
that the adverse party in the
first proceeding had the right
and opportunity to
cross-examine; and
"(c)
that the questions in issue were
substantially the same in the
first as in the second
proceeding.
" (2) A
criminal trial or inquiry shall
be deemed to be a proceeding
between the prosecutor and the
accused within the meaning of
this section.
" (3) In the
case of a person employed in the
public service who is required
to give evidence for any purpose
connected with a judicial
proceeding, it shall be
sufficient to account for his
non-attendance at the hearing of
the said judicial proceedings if
there is produced to the court,
either a Gazette or telegram or
letter purporting to emanate
from the head of his department,
sufficiently explaining to the
satisfaction of the court his
apparent default."
The
deposition in question was taken
by the Magistrate under the
provisions of Part XXXVI of the
Criminal Procedure Ordinance
(Cap. 43), during the course of
a Preliminary Enquiry into the
Indictable Offence of which the
appellant was eventually
convicted in this case.
The
deposition of the witness was
duly signed by the Magistrate at
the end thereof which
authenticated it under section
322 of the Criminal Procedure
Ordinance, and Exhibit" A ",
which was put in evidence
through the witness, was marked
in accordance with the
provisions of section 321 of the
same Ordinance.
It is clear
from the note made by the
Magistrate at the end of the
witness's examination-in-chief
that the appellant was informed
of his right, and given an
opportunity, to cross-examine;
and the deposition was duly
transmitted to the Registrar of
the Court before which the trial
in this case was held, in
compliance with the provisions
of section 330 of the Criminal
Procedure Code.
Section 114
of the Evidence Ordinance
provides that, " Whenever any
document is produced before any
court, purporting to be a record
or memorandum of the evidence,
given by a witness in a judicial
proceeding , taken in accordance
with law, and purporting to be
signed by any judge or
magistrate, , the court
shall presume:-
" (a)
that the document is genuine;
•• (b)
that any statements as to the
circumstances in which it was
taken, purporting to be made by
the person signing it, are true;
and
•• (c)
that such evidence, ... was duly
taken."
Section 34 of
the Evidence Ordinance makes the
evidence given by a witness in a
judicial proceeding relevant for
the purpose of proving, in a
subsequent judicial proceeding,
the truth of the facts which it
states, providing that the
conditions set out in paragraphs
(a), (b) and (c)
of the proviso to sub-section
(1) of the section are present,
and there can be no question
that they were in the case under
consideration here.
In our
opinion, providing the
requirements of the sections of
the Ordinances; to which I have
referred, have been met, the
deposition of a witness taken at
a Preliminary Enquiry, and
produced from the custody of the
Registrar of the Court before
which the trial is held, may
properly be admitted in evidence
without further proof. That
being ,so it follows that, in
our view, the trial Judge
rightly admitted in evidence the
'deposition in question in thy;
case.
As to the
last ground-the case for the
prosecution was that the
appellant handed Exhibit" A ",
which was the envelope addressed
to •• The Director, Messrs. C.
Zard & Co., Ltd., P.O. Box 114,
Ibadan," containing the letter,
[pg 67]
'Exhibit" F
", and the cheq'1:.e for £1,000,
Exhibit" G ", to the first
accused early on Monday morning,
the 17th September, 1951, to
send by registered post for him
and that he then conspired with
him to make it appear that the
letter had been posted on
Saturday, the 15th September,
1951.
There was no
direct evidence of the alleged
conspiracy, but the prosecution
relied on the evidence of;-
(a)
Feiz Khalil who gave evidence
that he lent Exhibit" G" as a
blank cheque to defence witness
K. T. Daryanani on a Saturday
between 3 and 4 p.m. He said
that he could not remember" what
date, nor the month. But I know
it was a Saturday" and he went
on to say that on the Friday,
the day before he lent the blank
cheque, he was in Lagos. had not
returned until late in the
evening and no one had come to
see him that evening.
(b)
Samuel Alabi, transit clerk to
Feiz Khalil, who swore that
Daryanani borrowed the cheque
from his employer on a Saturday
between 3 to 5 p.m. in
September, 1951; apparently when
Khalil lent the blank cheque he
asked Daryanani to put his name
and the date on the counterfoil
of the cheque, and the witness
gave evidence that on the
following Monday morning, 17th
September, 1951, his employer
asked him to look at the
counterfoil to see if Daryanani
had done so and he found that he
had. In this connection it is
important to note that the
counterfoil Exhibit " V ",
bears the following
inscription;- " Loaned the <;lip
to J. T. Chanrai and Co. (Nig.)
Ltd., on 14.9.51. "K.T.D."and
there is no suggestion that the
witness expressed surprise at
the date it bore;
(c)
Reji Akande, motor driver to
Khalil, who gave evidence that
he drove his employer to Lagos"
one day in September, 1951. It
was a Friday, I don't know which
Friday. We left Ibadan early
morning and got back to Ibadan
after dark";
(d) a
statement given by the appellant
to the police in which he
admitted handing Exhibit" A " to
the first accused with a request
that he send it by registered
post for him, alleging that he
had done so on Saturday the 15th
September at about 8 a.m.; and
(e)
the first accused who gave a
statement admitting that the
letter, Exhibit" A ", was not in
fact posted until Monday morning
the 17th September, 1951, but
that he had made it appear, by
altering the date stamp, that it
had been posted on Saturday the
15th September.
On that
evidence coupled with unusual
conversations which the defence
alleged had taken place between
the appellant and the first
accused, and the appellant and
E. A. Odusonwu, who was called
as a witness by the appellant,
and the letter, Exhibit" F ",
which the prosecution suggested
was really written in reply to
the letter Exhibit" D ", which
was proved not to have reached
the hands of the appellant until
after 2 p.m. on Saturday, the
15th September, the prosecution
submitted that the cheque was
not borrowed until late on the
afternoon of Saturday the 15th
September, 1951, and that the
letter and cheque contained in
the envelope, Exhibit" A ",
could not, therefore, have been
handed by the appellant to the
first accused, for posting, on
the early morning of 15th
September; and the prosecution
invited the learned trial Judge
to draw the inference. that the
alteration to the date stamp was
effected as a result of a
conspiracy between the appellant
and the fin'; and second
accused.
The appellant
5ave evidence that Daryanani and
one Dawandas, who was called as
a witness for the prosecution,
came to his house at Ibadan on
the afternoon of Friday, 14th
September, 1951, as clients, to
consult him upon a
[pg 68]
professional matter, that
he advised them to send ~ cheque
for £1,000 to Zard & Co., that
they then went away and returned
again early on Sunday morning
the 15th September and that
after studying some papers they
handed to him he typed Exhibit"
F" and enclosed it, together
with the cheque for £1,000,
Exhibit" G ", in the envelope,
Exhibit" A ", and that having
done so he handed the letter to
the first accused at about 7.50
a.m. on the Saturday morning
"and asked him to help me get it
registered ". He denied having
entered into any conspiracy with
either of the other accused.
The first
accused gave evidence at the
trial to the effect that the
appellant, who was his landlord,
had handed him Exhibit" A "
early on Saturday morning the
15th September with a request
that he send it for him by
registered post, that he had
taken it to the post office when
he went on duty that morning,
but through an oversight had
forgotten to post it until
Monday morning the 17th
September, and that as the
appellant had been very good to
him and he did not wish him to
know of his omission, he, with
the assistance of the second
accused, made it appear that the
letter had been posted, by
registered post, on Saturday the
15th September; and the second
accused gave evidence that the
first accused had come to him
early on Monday morning the 17th
September, told him that he had
forgotten to post Exhibit" A "
on the Saturday, and asked him
to help him to cover up his
forgetfulness.
Dawandas, the
second witness for the
prosecution, gave evidence,
which was corroborated by
Daryanani who was called as a
defence witness, that he was
with Daryanani when the latter
borrowed Exhibit" G" from Khalil,
that it was borrowed on Friday,
the 14th September, 1951, and
that he saw Daryanani fill in
the counterfoil of the cheque.
He also
stated that he went with
Daryanani to the appellant's
house early on Saturday morning
the 15th September when the
former handed the cheque for
£1,000 to the appellant, thus
supporting the case put forward
by the appellant.
Evidence
given by Feiz Khalil, Alabi and
Raji Akande in another case was
tendered and admitted in
evidence as Exhibit" Q ". In
that case Khalil said that
Daryanani had come to him in
September, 1951, that he could
not remember if he came" in the
evening or afternoon or morning
", and that he could not
remember the day of the week he
went to Lagos.
Alabi said he
could not remember the month
Daryanani came for the cheque,
but he remembered it was on a
15th of the month, and Raji
Akande said he went to Lagos
with his employer about" three
months ago ... we went to Lagos
on a Friday". This evidence was
given by the three witnesses on
the 9th January, 1952, and their
evidence at the trial in the
case now before us was given on
the 5th February, 1952. Their
recollection appears to have
improved with the passage of
time.
In view of
the conflict and discrepancies
in the evidence of the
prosecution, can it be said that
the case against the appellant
was proved with that certainty
which is necessary in order to
justify a verdict of guilty? We
have come to the conclusion that
the question must be answered in
the negative. Moreover, we are
not satisfied that the only
inference that can be drawn from
the evidence given at the trial
is one of guilt. Upon these
grounds, therefore, we allow
this appeal, and quash the
conviction.
Appeal
allowed.
[pg69]
