R. v. JACOB K. MENSAH

(His lordship stated the facts of the case, and proceeded:-)

There is no doubt that Mensah misconceived the requirements of the law as to the proper execution of a Will, but it is clear on the evidence that his sole purpose in doing what he did was to give effect to the intentions of the testator. We are unable to discover, or to infer, mens rea.

The main ground of appeal argued is that the learned Judge misdirected himself on the question of intent. That ground involves three points, viz.,

(i) misdirection as to the person in whom the intent to defraud must be shown;

(ii) whether there is any evidence from which intent to defraud can be inferred, having regard to the findings of the learned Judge;

(iii) whether fraud as defined in section 18 of the Criminal Code is shown to exist.

As to the first point: The offence of aiding and abetting the commission of a crime is committed by a person who, knowing what the essential ingredients of a particular crime are, "directly or [p.316] indirectly instigates, commands, counsels, procures, solicits, or in any manner purposely aids another person in the commission of that crime" (Criminal Code, sec. 46 (1); and see Johnson v. Youden & ors.([1950] 1 K.B. 544).

The essential ingredient of the crime of forging a will, contra sec. 314 (1) of the Criminal Code, is that the forgery must be made with one or other of the following intents, namely, "intent to defraud, intent to defeat, obstruct or pervert the course of justice." In the absence of such intent, the "forgery" is no offence against sec. 314 (1), and the existence of the intent in an abettor of the "forgery" could not supply the lack of intent in the "forger," so as to make the "forgery" an offence against the section. And, indeed, each of the charges as laid in the information against Mensah for abetting, alleges that Tabi and Anyimadu had such an intent to defraud.

The learned trial-Judge, however, concluded his judgment in the following words:

"After I had summed up the three assessors unanimously stated that in their opinion the accused was guilty on both counts. With this opinion I am in entire agreement, as I am satisfied that when the accused caused this Will to be witnessed after the death of Kwabena Bonsu, he did so with an intent to defraud."

This finding of the learned Judge amounts to a direction to himself that it is the abettor who must intend to defraud, not the principal offender. This is a clear misdirection, and reveals that the le