Younge & Ors v S (CR APP 18 of 1975) [1976] SLCA 4 (6 July 1976)

w Siera Leone Bar Assocation Law Reports (097442)1 SLBALR YOUNGE & ORS v THE STATE cA

COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 18 of 1975, Hon Mr Justice

S CW Betts JSC, Hon Mrs Justice A V Awunor-Renner JA, Hon Mr Justice S Beccles Davies

JA 6 lly 1976

[1] Criminal Law and Procedure ~ Larceny as a bailee ~ Distintion between stealing ‘and bailment ~ Not necessary for cashiers to pay out specific coins ~ Question of bailment did not arise until non-payment after request for monies was made ~ Larceny Act 1916s 17(1)@)

{2} Criminal Law and Procedure ~ Evidence — Evidence adduced not suficient or does ‘ot constitute offence charged ~ Judge applying wrong principle of law ~ Retrial on those issues ‘

3] Constitutional Law - Distinction between “Republic of Sierra Leone” and “Government of Sierra Leone” — Context in which both phrases used synonymously

The three appellants, who were officers working inthe Judicial Sub-Treasury, were charged and convicted of larceny under s 1 of the Falsification of Accounts Act 1875. They were also ‘charged and convicted under section 17(1Xa) ofthe Larceny Act 1916 as having stolen amounts “from the Siera Leone Government as bailees:" The falsifiations were said to be made in relation to paying-in-lips and paying-out vouchers in respect of three amounts of money transfered into and out of the Judicial Sub-Treasury. The main ground of appeal was thatthe evidence adduced could not constitute any ofthe offences charged and that the verdict was unreasonable and cannot be supported having regard to the evidence. An issue also arose as to whether the judge was corect finding the appellants guilty of having stolen “as bales".

Held, per Betts JSC:

1. There was no evidence connecting the frst appellant with any prior or subsequent dealings with the documentation the subject ofthe charge, nor was there evidence that she had any agreement with those dealing with the documentation or that she procured them or concurred with them in omiting, defacing or otherwise tampering withthe documents to effec falsification. Asa result, the ist appellants appeal was upheld and she was to be cquited and dischargod on all the falsification counts. The appeal ofthe second and third appellants was dismissed on all the counts relating to falsification of accounts

2. It was important to distinguish between stealing and bailment. In the first case the thing stolen is taken fraudulently, without the knowledge and consent ofthe owner, with a view to deprive that owner permanently ofthe thing stolen. On the other hand a bile is person to whom goods are entrusted fora specific purpose without any intention of transferring the ownership to such person. Inthe present case monies were deposited or supposed 10 hhave been deposited to two Cashiers, at different times for third persons, but in the pacular circumstances ~ when a lot of people are paying in monies ~ it would be impractical and certainly not obligatory on the Cashiers to pay the specific coins. R'v Hassall {1861} Le& Ca 56 applid.

3. The question of bailment did not arise until an pplication was made by the parties for ‘whom the monies were intended and there was non-payment asa result of conversion of the money deposited. Here there was no complaint of an application being made and the matter of investigation as to conversion did not aise. The tial judge was inoorret in

(197480) SLBALR ‘Younge Ors vThe Sate us

“4. finding thatthe appellants were guilty of stealing from the govemment as bailes as the ‘question of bailment was not a matter for consideration. The three appellants were to be ‘acquitted and discharged on the various charges of larceny.

Per curiam

‘5. The indictment used the words “the Republic of Sierra Leone” while the judgement used the words “the Govemment of Siera Leone.” In the Interpretation Act, No 8 of 1971, “Government” means the Goverment of Sierra Leone and includes, where appropriate, any authority by which the executive power of the State is duly exercised in a particular case and “Republic” means the State of Sierra Leone as constituted by the Constitution.” ‘Under constitutional provisions which divide powers of govemment into the legislative, the executive, including the administrative, and the judicial departments, the word “administrative” is not synonymous with “executive”. But when not used in this

] specialised way the words “executive” and “administrative” may be used as synonyms or

‘may be interchangeable terms. In the same way, although the words “Republic” and “Government” appear dissimilar, they were synonymous inthe Curent context.

Cases referred 10

Baker v The Queen (1975) 3 WLR 115

Ry But (1884) 31 LT 607

Ry Hassall {1861} Le& Ca 56

Ry Oliphant {1905]2 KB 67

‘State v Allen 369 Louisiana 1046

Tucker v State (1941) 218 Ind 614

Waddington v Miah (1974) 1 WLR 683

Legislation referred to

Fabsification of Accounts Act 1875 1

Interpretation Act, No8 of 1971

Larceny Act 1916 55 1(1),17(1a)

Appeal

‘This was an appeal by Irene Younge and two others who were convicted before the High Court

‘on charges under the Falsifcation of Accounts Act 1875. The facts appear sufficiently in the

following judgment.

MrJ H Smythe QC and Mr N D Tejan-Cole for the 1 appellant.

‘Mr J W Davies for the 2“ and 3” appellants.

‘Mr Bankole Thompson for the State.

BETTS JSC: The appeal is on behalf of three accused who were convicted before the High

Court on eleven of a thirteen court indictment. They were represented by John H Symthe QC

and JW Davies. The grounds of appeal were in substance — after specifying the particular

counts oftheir respective clients ~ thatthe evidence as adduced cannot constitute any of the

offences charged and that the verdict is unreasonable and cannot be supported having regard to

The Evidence

To these, counsel for the 1* appellant added another five. They however, did not

break fresh grounds but gave details relevant tothe grounds of appeal as summarised earlier. ‘The thee accused were charged under the Falsification of Accounts Act 1875

1. Itreads: “That if any clerk, officer o servant, or any person employed of acting in the capacity of ‘a clerk, officer, o servant shall wilfully and with intent defraud, destroy, alte, mutilate or |

9 Sera Leone Bar Assocation Law Reports (097480) SLBALR falsify any book, paper writing, valuable security, or account, which belongs to ors inthe Possession of his employer, or has been received for o on behalf of his employer, o shall wilflly with intent to defraud make or concur in making any false entry in, or omit o¢ alter or concur in omitting or altering any material particular from or in any such book, oF ‘any document or account, then and in every such case the person shall be guilty of a rmisdemeanour.”

‘The expression ‘any person’ is equally pertinent in a casei which more than one person is involved, and even where a person fraudulently and wilflly procures an innocent person to make the entry as in v But (1884) 51 LT 607, o€ omit some material paicuar through an innocent party as in the case of R v Oliphant [1905] 2 KB

67. In that case the operational mechanics were so organised that a discrepancy could be located. The prisoner was employed in Paris bya firm carrying on business in London, and it was his daily duty to enter on slips an account of all sums received by him in Pais for his employers, and to transmit these slips to them in London in order thatthe amounts might be entered up ina cashbook in London. He received three sums in Pars, which he fraudulently appropriated to his own use, and omitted to , center an account of them onthe sips sent by him on that day to London, intending that the same should be omited from the cashbook in London, as was the case. Held, he was rightly convicted in London of omitting material particular from the cashbook. | would wish to impress the significance of this point ~ that a flaw ina chain of activity could be identified at the point of its occurrence.

‘A location of tis kind inthe instant case is not as simple asin Oliphant’ case because of the numberof people who work inthe Judicial Sub-Treasury and who get involved with the subject matter somewhere along the line; the duties ofeach officer and how these duties were related to one another. Apart from the tree accused persons there were Rosaline Benjamin PW4, Augustus Sannah PW7, I'S B Johnson PWS, Hannah Marsh PW9. The subject matters were the sums covered by Exhibit C1, the paying-insip for Le80, and Exhibit H, the authenticating paying out voucher for Le80I; Exhibit C2 covering the paying-out voucher for 1Le375.65 authenticated by Exhibit D1 and Exhibit C3 for Le300 and authorised Exhibit C3.

NNo one knew for certain how Exhibit C1 stated its life history but it appeared to have been registered in Exhibit A as having been issued from the Magistrate's Office and made payable to one $ B Prat. No one could tellin what condition it was when it life cycle began but when PWS Hannah Marsh saw it the name of the person who paid and the amount pad in, had been rubbed off. The amount pid appeared to have been pasted over with apiece of paper. ‘The peculiar thing about it was that it was accompanied by Exhibit H_ which camied the signature of the Sub-Accountan, the 1* accused: and the authentication of the Accountant PW2. Up to the point where the Accountant authenticates the payment voucher there is provision for cross- checking all entes. The sum of Le801 endorsed on Exhibit Hand purportedly based cn Exhibit C1 was to have been posted in the Magistrate's Court Ledger, the Receipt Cash-Book and the Revenue Cash Book. These two letter books were controlled by the Cashier who also prepared Exhibit FI the document which states the sum paid out. Although Exhibit FI showed that Exhibit H for laser had been met there was no record in either the Receipt Cash Book or the Revenue Cash Book showing how the amount covered by Exhibit H came in f anyone should know what monies were pad i, paid out and to whom. it should be the Cashier as he tabulates all the documents. He receives the paying-in-slip from the “Magistrates, stats the receipt number, and stamps the back ofthe sip to indicate that payment has been inserted, also a machine number together wit the name of the payee and the cause in which the money was paid. When the person for whom the money was intended draws out the ‘money from the Cashier he makes the final endorsement onthe voucher and slip and passes them out for fling. To confirm my view I would refer to porion of evidence of PW3 Gilbert Jarrett who, in opinion, is an important witness as being the most independent. He said

ions SLBALR Youngs & Or The Sate » “Exhibit H being pose in Exhibit F means mone is paid ut. This in shor is that mney not recived was money pad ou”

“Te evidence points out o me that there been a falsification and tha flifcation was by the Cashier, the 2" accused who was the Cashier in July 1972, when PW3 was holding down the post as Accountant Judicial Sub-Treasry. I cannot se from the evidenoe any connection ‘between the Cashier and the 1* accused. There was no evidence indicating that she influenced which could lad ne to conclude, that she procured accused to flyby iting to make the necessary entries in the Cash Revenue Book and the Cash Book. The 2" accused in my opinion asi voluntarily wit the necessary intent to defraud

Inthe case ofthe second sum of 375.65 the 2 accused was again involved. Exhibit C2

| and I were te Exhibits prinen this count OF thse PW2 sid in evidence:

“I see Exhibit C2. The imporance of Exhibit C2 iso show that money i pai ino the

Sub-Treasury. It means tat the money should be paid into the Sub- Treasury. Ths is

prepared by the Magisrate Cour Office. When i coms to my Deparment the Cashier

‘eas with i He stamps it atthe back. Ths is posed ito the Receipt Cash Book and

Revenue cash Book. Mr Koroma was the Cashier who dealt with the slips. He is 2"

accusd. Date on tis 17/1/72, Exhibit C2 snot posted in Exhibit B. Ext Fis posed

wih Exhibit 5”

Apa from these technical dts she gost say tha: "ie significance of thse postings and no postings is that amounts were never deposited into the Sub-Treasary but were pid ee

In this case the 2 accused was directly involved according to the evidence; but a new aspect ~ tat of atempting to connec the 1" accused also diel ~ was brought in. PW4 Madeline Coker said in evidence that Exhibit C2 was handed to her by 1" accused with instraction to prepare Exhibit D1, which allegedly was the supporting payment voucher for 1137545, But twas PW herself who took the voucher for checking. Tere i no acount of how the checking. was conducted by 1" accused i is however significant that ater the

checking, PW4 took Exhibit D1 far the counter-signature of the Accountant. According to her