Misdirection of trial judge; in consequence of error' in stating section of Code under' which Accused were tried-Separate sentences should be passed in respect of each count.

Held: Convictions quashed.

The facts are fully set out in the judgment .

.A.G. Heward - Mills  for first Appellant.

a. Sawyerr for second Appellant.

T A. Brown for Crown.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, WEBBER, C.J., SIERRA LEONE, AND STROTHER-STEWART, J.

In this ease there were four persons charged in one inform­ation before Yates, Acting Chief .Justice, sitting with a jury at the Accra Assizes. The information was as follows:-

" The fourteenth day of October, 1935, at the Assizes " holden at Victoriaborg, ACcra, on the second day of October, 1935, the Court is informed by the " Attorney  - general on behalf of our Lord the King " that Hassan Shallahi, Adih Sabih, Nazim Wahab " and Beshit Coutsey are charged with the following •• offences:-

"FIRST COUNT, " Stealing.

" Contrary to section 276 of the Criminal Code .

• , P ARTlCULARS OF OFFENCE.

" Hassan Shallabi and Adib Sabih on the 19th day of " June, 1935, at Accra in the Accra District in the "Province aforesaid did steal quantity of-gold to " the value of£42B the property of Minnah Ashong.

" SECOND COUNT.

" .Aiding and Abetting ,stealing.

" Contrary to sections 46 (2) aU^f1 276 of the Criminal " Code.

4

                           " PARTICULARS OF OFFENCE.

" Nazim ·Wahab on the 19th day of June, 1935, at Accra, " in the Accra District in the Province aforesaid did " aid and abet Hassan Shallabi and Adib Sabih in " the commission of a crime to wit stealing.

" THIRD COUNT. " Receiving.

" Contrary to section 289 (1) of the Criminal Code.

                                  " PARTICULARS OF OFFENCE.

" Beshit Coutsey on the 19th day of June, 1935, at Accra " in the Accra District in the Province aforesaid did " dishonestly receive ninety-one pieces of gold and " quantity of gold dust which he knew to have been " stolen.

      " FOURTH COUNT. "

 Conspiracy.

" Contrary to section 49 (1) of the Criminal Code.

                                    " PARTICULARS OF OFFENCE.

"Hassan Shallabi, Adib Sabih, Nazim Wahab and " Beshit Coutsey on or about the 19th day of June, " 1935, at Accra in the Accra District in the Province "aforesaid did agree to act tog~ther to steal a " quantity of gold to the value of £429 the property " of Minnah Ashong."

The third and fourth accused were acquitted, but the first two were found by the jury " Guilty of Stealing and Conspiracy" and the following sentence was passed by the Acting Chief Justice: -

" I sentence both prisoners to six months imprisonment " with hard labour and under section 78 of the Code " to a fine of £200 to be paid in ten days-in default "a further term of twelve months imprisonment "with hard labour-sentences to run concurrently " on each count."

They now appeal to this Court against the convictions on the

following grounds:-

(1) Misdirection.

(2) Misreception of evidence.

(3) Error in law.

(4) No evidence to support conviction.

(5) Sentence wrong in law.

They also appeal against the sentences as being excessive.

No particulars of the grounds for appeal against conviction are given and particulars should have been given in respect of all the grounds except No.4. At the hearing, however, the first appellant's counsel gave the necessary particulars which included a number of points upon which misdirection is alleged. We only found it necessary to hear him on what is really one point though it affects two of the grounds of appeal, viz: -Misdirection and Error in Law.

It will be seen that the first count of the information is laid under section 276 of the Criminal Code. The section reads as follows: -

"276. Whoever is convicted-

" (1) Of stealing anything of which he had the custody, " control or possession, or to which he had the means " of access, by reason of any office, employment, or " service; or

" (2) Of stealing from or in any dwelling-house, shop, " manufactory, warehouse, or vessel, or in any place " of worship; or

" (3) Of stealing from the person; or " (4) Of stealing cattle; or

" (5) Of stealing any pole, wire, or apparatus used for " the purposes of any telegraph; or

" (6) Of stealing from a grave:

" shall be liable to imprisonment for seven years."

The particulars of the offence given in the information are merely-

"did steal quantity of gold to the value of £429 the " property of Minnah Ashong."

There is; therefore, nothing to indicate under which head of section 276 the offence is alleged.

The learned Crown Counsel, who signed the information and sought to uphold the convictions before us, submitted that the figures " 276 " were a clerical or typist's error for " 275" and that throughout the trial was conducted as though " 275 " were the figures instead of "276" . We are not convinced that the error is merely clerical; it appears to be a substantial error made by the draughtsman. This is borne out by the fact that the so­ called " Old information" also contains the error in two places. Counsel suggests that the mere absence of a figure in brackets after

276" shows that "275" must have been intended. But section 275 also consists of sub-sections, and if it had been used should have been" 275 (1) ".

However the error arose, it is clear to us that it caused confusion in the trial and led the trial Judge to misdirect the jury.

The Acting Chief Justice has supplied us with notes of his summing-up. In them he says: "I read the sections of the Code "under which they were charged and explained the Law of " Conspiracy." The sections of the Code under which the two appellants were charged are 276 and 49(1). Counsel for the Crown asserts that the Acting Chief Justice did not read 276 but is not prepared to say that he read 275. As we' intimated when an application was made to us to take notice of unofficial and unauthorised notes of the summing-up, we are not prepared to go behind the notes of the trial Judge save that a doubtful point might be cleared up by a note taken by counsel at the time. In this case the Crown Counsel is unable to rely upon any such note and we accept the, Acting Chief Justice's statement that he read the sections of the Code under which the appellants were charged, which reference to the information shows to be sections 276 and 49 (J). It does not appear that the reading of section 276 was followed by any explanation of the law thereunder or of what was required to be proved to establish an offence under any of the heads of that section. The jury must have been left in a complete fog as to what was required. Even if the section read had been 276, instruction to the jury of what, in the particular circumstances of this ease, amounted to stealing would have been very necessary, and this  is instruction was omitted.

No evidence was led for the prosecution which could support a conviction under any of the sub-heads of section 276, and if the convictions are sought to be supported as under section 275, then there has been a failure to comply with the provisions of sub ­section a (i1'i) of section 202 of the Criminal Procedure Ordinance.

We are convinced that the error' in law in charging the offence under section 276 caused such confusion at the trial and resulted in such serious misdirection to the jury that the conviction on this count cannot be allowed to stand.

In coming to this conclusion we have not overlooked the proviso to sub-section (1) of section 10 of the West African Court of Appeal Ordinance, 19a5, nor the wide powers enjoyed by this Court under section 11 of that Ordinance, and if there had been a mere clerical mistake resulting in no substantial error in the conduct of the trial, we should probably have acted  under one of those sections. But such is not the Case here.

So far as the conviction Under the fourth count for conspiracy is concerned, the learned counsel for the Crown admits that, If the conviction under count 1 cannot be supported, the conviction for' conspiracy must go by the board, too, and we hold this opinion.

Having come to this conclusion, we did not call upon counsel for either appellant to argue on the other grounds of appeal, and it is unnecessary to refer 'to any of them except the last, namely, " Sentence wrong in 1,aw."

The form in which the sentence is expressed has already been set out. It is. unusual, and its legality is doubtful. When accused persons are convicted under two or more count's separate sentences should be passed in respect of each count. Here this was not done, but after sentence had been passed as though there were only one count, the words are added "sentences to run "concurrently on each count." The effect is not clear. Presumably the intention is that each prisoner should suffer six months imprisonment with hard labour under each of Counts 1 and 4, the sentences running concurrently; but what of the " fine of " £200 to be paid in ten days in default a further term of twelve " months imprisonment with hard labour." Is this imposed in respect of Count 1, or Count 4, or both, and have the accused got to pay £400 each to escape the further twelve months imprisonment or only £200? If we had upheld the convictions it would have been necessary for us to exercise our powers of alteration of sentence so as to put it into proper form.