COMMISSIONER OF POLICE v. DIMBIE

JUDGMENT OF VAN LARE AG. C.J.

This is an appeal from the decision of Smith J. dismissing an appeal against conviction by the District Magistrate, sitting at Tamale, for the offences of conspiracy and stealing. The appellant was charged and convicted, together with another person who has not appealed, and with him we are not concerned.

There were three charges of conspiracy, and three charges of stealing. Apart from the evidence that both men together stole the sum specified in each of the three counts of stealing on three different dates there was no specific evidence to establish that there was any anterior conspiracy to commit the offence of stealing. Conspiracy to commit a criminal offence is by itself a criminal offence, whether the offence contemplated is or is not committed. It follows, therefore, that where there is a specific charge of conspiracy, that is to say in addition to the offence itself, there must be some evidence directed and confined to the facts which constitute or are concerned with the conspiracy. It is not so in this case.

Learned Crown Counsel for the respondent conceded that it is undesirable to add a count for conspiracy to an indictment charging a specific substantive offence in cases where it is clear that the evidence to be submitted for consideration is nothing more than evidence of the actual commission of the substantive offence. In the case of R. v. Boulton ((1871) 12 Cox at p.93) Cockburn C.J. in summing up had this to say:

"I am clearly of the opinion that where the proof intended to be submitted to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused."

[p.205]

Although we are aware that it often happens that conspiracy to do such a thing as stealing may be inferred from the evidence establishing theft, nevertheless in giving the best consideration to this case we do not think there was evidence upon which any of the three conspiracy charges as separate and specific offences can be supported. We would therefore allow the appeal with respect to the conspiracy charges, that is to say, counts 1, 3 and 5.

The position is, however, different with respect to counts 2, 4 and 6, which charged the appellant with stealing.

(His lordship stated the facts, and proceeded:—)

In our view, this is strong evidence from which dishonesty may well be inferred, an