Cole v S (CR APP 2 of 1975) [1975] SLCA 1 (21 December 1975)

= ‘Sie Leone Ba Asin Law Reports (097480) SLBALR COLE v THE STATE, cA COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 2 of 1975, Hon Mr Justice E Livesey Luke JA, Hon Mr Justice C A Harding JA, Hon Mr Justice S Beccles Davies JA, 21 December 1975

[1] Criminal Law and Procedure — Embezzlement ~ Ingredients of offence — Omission of “fraudulently” from indictment meant charge was defective ~ Larceny Act 1916 5

“The appellant, who worked at the General Post Office, was charged with embezzling Le963.87¢ representing the proceeds of postal orders and stamps that he had sold to the public and was, ‘convicted of embezzlement contrary to $ 17(1}() of the Larceny Act 1916. On appeal it was ‘argued that the indictment was defective in that the particulars of the offence omitted the ‘averment thatthe appellant had “fraudulently” embezzled the money in question. ' Held, per Beccles Davies JA, upholding the appeal and quashing the conviction:

1. The essence ofthe offence of embezzlement isthe fraudulent appropriation by a servant of his employer's money chattel or valuable security. The appropriation must be done by the : servant with a fraudulent intention.

2. Where an offence requires particular intent for its constitution then that intent must be averred in the particulars of offence in the indictment. The identity ofthe person whom the ‘accused had in mind need not be stated in the particulars unless such identity is essential to the constitution of the offence. The omission of the expression “fraudulently” from the indictment meant thatthe count was defective and the conviction was therefore quashed. R -yShaibu Yakubu 10 WACA 267 followed.

3. There was no evidence that money had been received by the appellant in exchange for ! postal ders and stamps. This was essential in determining whether the offence alleged to hhave been committed was embezzlement or larceny.

4. The trial judge placed undue emphasis on the absence from duty ofthe appellant a if it ‘yas a necessary ingredient in proving the offence. The effect of the judge's incorect interpretation of William's case was to prejudice the minds of the jury. R v Williams (1836) 7 C & P 338 distinguished. Cases referred to Ry Shaibu Yakubu 10 WACA 267 Ry Williams (1836) 7 & P338 Legislation referred to Larceny Act 19165 17010) Other sources referred to Archbold on Criminal Pleading, Evidence and Practice 34* edition para 1708 ‘Halsbury's Laws of England 3° Edition Vol 10 para 703 at p 388 Appeal ‘This was an appeal by Patrick Cole against conviction of embezzlement contrary to $ 17(1Xb) ofthe Larceny Act 1916. The fats appear sufficiently in the following judgment.

times sane coe * CSRABAREIE) coo aaa aaaE ie | Mr 0 Mok ore apelin. | Mr Bll vgn he pond BECCLES DAVIES JA: The alin Paik Bick Cle was ie nd cmv fhe Dect enbesemen cnt 170) he ery At 1916. Th ape aie ot ttarconion The apt was pled athe Goel Po Oi. He was date 1 ce of he ‘bic Cours a Pos fe fl ps ol ee we mene oe pati He was so engaged between the 2" and 12" days of June 1973. It was during this period that he salle he eer namant of 9387 epesening te Poss fp ean aps tte hada eae ‘Tennent ha en mjc otc by ose the apelin. is comeson was dri atte te "pris fas” ored the sere a {ppl had “assay” embed Beene ia quem The note Sinan y et oe ea 1* Count suse fe: Enberemet oy 517) fe any At 1916. Pacino fee: ; Patrick tick Cole on a day unknown between the 2% and 12" days of June, 1973 at the Geer Po Oc, Hesown te Weston Ase apc of Soa Lae ban Chote sna of i Garment o Sm Lane ember the sum of Lad387e be proces oe fps rc an up ce by you fre ene acto Se Errenn oS Le The prc ft fee ine fam ince on fee nr 10a ‘set out in paragraph 1708 of the 34* edition of Archbold on Criminal Pleading, Evidence and Prac ale “Pai ti AB ene day of CD inh ry of Eig clerk at 1 JN rent re en ods mony ym rin tae oro te ou oe SiNhemuers Is ceteris the pn of flome Pre he lc oid te sve ng Sestim I) be Ley At 116 ries “Every person who being a clerk or servant or a person employed in the capacity ofa clerk | crear (0) fanny errs te woe sy pa oy tel men) o Sats scan dane ee en to psn hn for tunceranbestcamtofhic maser eongyer slo uly oly" Teese ole lle fembesenenshe fe apopatn bya rant his coppers money chloe ety. The pep mabe ore He ‘Seana faa en Wee a fe es prime cnn hen ha ne must be aver inthe pata of fence inthe inet The entity of the person whom the ‘ane nnn pod me sen pata nis a ety era oe constitution of the offence. We find the following statement of the law on the point in volume | 10 of the 3" edition of Halsbury's Laws of England at paragraph 703 at page 388:

» Stora Leone Bar Asxion Law Repos (197682]1 SLBALR “Where any particular intent isa necessary ingredient of an offence, the intent mast be stated in the indictment. I is however not necessary in stating any intent to defraud, deceive oF injure to state an intent to defraud, deceive oF injure any particular person ‘where the statute creating the offence doesnot make an intent o defraud, deceive o injure particular person an essential ingredient of the offence.”

‘The “intention o defraud” whichis summed up inthe expression “fraudulently” as Ihave already said was omited from the particulars of the offence in the indictment before the til court. What then isthe effect of such an omission? The predecessor ofthis cout the West ‘Aican Court of Appeal in the case off v Shabu Yakubu 10 WACA 267, had this say onthe Point at page 268:

“nthe objection taken to the conviction ofthe appellant on count 6 is of avery diferent

character fr here the Crown has failed o allege in the “particulars of offence an intent to

<efraud which isthe very esence ofthe crime charged and following the judgment of this court in R v James Emtest Bandoh delivered at Accra on 26* May 1944, in which the

English authorities more particularly R v James & Anor 12 Cox 127 are discussed, we

‘quash the convieton on this count.”

In view ofthe foregoing, we hold tha the counts bad quite apart from the defect inthe indictment. There ar other aspects ofthis case which we consider necessary to deal with

‘The evidence adduced in support ofthe count for embezalement was that the Postmaster, Freetown had issued stamps and postal orders to the appellant On 12" June 1973, the Postmaster issued a supplementary supply of samps and postal orders tothe appellant.

He refused to sign the requisition forthe goods. At about 3.30 pm on that day, the appellant closed his counter and lef the post office teling the Postmaster, Freetown that he had an appointment to keep withthe Establishment Secretary. Two days ltr, is safe in which his stock of stamps and postal orders was kept was sealed. The appellant was not seen until 23% June, 1973 when he went tothe office that evening. He was followed and suveilled by one of the post office watchmen, It was that same day thatthe second prosecution witness the Postmaster, Freetown discovered thatthe sal which had boon affixed tothe safe had boon broken. He informed the CID, the appellant was arested on 26" June 1973. The contents ofthe safe were examined. Thee was a deficiency of Le963.87e in the appellant’ stock.

‘The appellant countered by saying that he had not found the contents of his safe ashe had left them and that there was a shortage of Le566:56c which was inflated by the second prosecution witness to Le963.87c, the later having claimed to have made @ supplementary supply to him of Le390.37¢ worth of postal orders

‘The appellant had the keys to the lock ofthe safe and the padlock securing the crossbar to the safe It eame out in evidence thatthe duplicate key to the safe was kept in the Accountant- ‘General's department. No evidence was led by the prosecution o rule out the possibility ofthe duplicate key being, made available to any other person. There was also no evidence as to Whether the padlock securing the cos-bar to the safe had just the key which was in the appellants possesion.

‘There was a veiled suggestion in the evidence forthe prosecution thatthe appellant had tampered with the contents of the safe on the night of 23° June as that was the time the ‘appellant was alleged to have gone tothe office after 12* June. It was aftr that that the sal Which had been affixed to the safe was discovered broken. Its noteworthy to mention that the appellant was put under surveillance by watchmen Santigie Bangura onthe instruction of Abu Bangura, during that visit to the office. Santigie Bangura was for some inexplicable reason never called to testify forthe prosecution. This was how the lear tril judge dealt with the evidence on the point.

(974s SLBALR Cole Te Se % He si

“Counsel for the defence invited you to say that this evidence is completely ielevant. What is the prosecution tying to prove? That there is a conection betwen the Aissppearance ofthe stamps and theme when this man came back or ae they suggesting that when this man came back on the 23% that everything went topsy turvy? With respect to defence counsel, the prosecutions saying tha th accused person was never seen in the post office again until the 23" and he was seen by Abu Bangura. They are only pointed but the period for which he disappeared. He abscondd. And that was the very day when infact Mr Gabbidon found the sel broken and he went tothe CID to report...”

‘The effect ofthe evidence relating tothe breaking ofthe sal and the above quoted passage from the summing-up was to create confusion inthe minds ofthe jury. With espect to te aed de he a ought be mae ot by he prac ws ht te plan between the 2” and 12° June had embezsed the proceeds ofthe sale of stamps and postal ders, and no tat stamps had “disapeared from the sf. The judge's mind was confused on this point and that confusion was transite tothe jury. If stamps had ben extracted fom the ‘safe by the appellant on the night of the 23% June, then the charge should have been larceny of Stamps and not embezzlement of money. Even if a charge fr larceny had ben brought based on the type of evidence thet was before the rial our it would have been difclt fr the prosecution to succeed having regard to its fae in adducing evidence to rule out the sibility of an interference with the safe by the use ofthe duplicate key by someone else oer than he sppelant

1 is unclear from evidence whether the amount allege to have been embezzled reprecened the tol cost ofthe postal order ad stamps entused tothe appellant or whether it represented the proceeds of postal odes and stamps sold by the appellant.

“The tial judge in his summing-p sai iter alia:

“The aceused person received, acconding othe prosecuion, if you believe the evidence,

the money in exchange for postal order and taps." |

Win espect ote lead judge there was no evidence that money had been received by the appellant in exchange for postal odes and stamps. Tiss esenial in determining whether the cffence alleged to have been commited was embezzlement or lreny. Undue emphasis ‘vas pt by the learned judge on the absence frm duty ofthe appellant, as iit was necessary Ingredient in proving te offence. He sed rather extravagantly the case of Rv Wiliams (1836) 71€ P 338 He made the following comments:

“The accused was never Seen again around that building until the 23% of June. We shall

come to the question of absconding it is a mater of law, which was decided in one

celebrated case" Lateron he si

“Whatever the figure may be why dd the accuse fil to tum up at werk? In anater ease

that is now an authonty a cein woman was sent collect money for her employer;

instead of coming backto the office to handover the money which she received on bel

‘of her employer, she went to Ireland. She was subsequenly apprehended, charged,

‘cent and conic for embezzlement. The lead judge in the Court of Appeal eld

that the conviction was proper. This is absconding."

“The above question is obviously a reference to Williams's cas. The report ofthat casein the lw reports is rather re, Coleridge Jin his summing up si

The pages read for this report end here. The judgment continues in the PDF.