Adebiyi Majekodunmi V. The Queen (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Conspiracy—Outsider conspiring with Post Office employees to tamper with postal matter—Criminal Code, section 163, and section 576—Circumstantial evidence—Where guilt not the only possible inference—Where
certainly not deducible.
Evidence Ordinance—Section 34—Government Officer—Gazette to justify absence at trial—Section 114: presumption on record of evidence.

Facts

Section 163 of the Criminal Code makes it an offence to tamper with postal matter; but it applies to employees of the Posts and Telegraphs Department only. Section 576 of the Code relates to conspiracy.

The appellant, a solicitor, was tried with two employees of the Post Office on a charge of conspiring to tamper with postal matter, the substance being that they conspired to make it appear that a letter sent by the appellant on a certain day had been posted on an earlier day.

All three were convicted; and the appellant appealed. His first ground of appeal was that as he (not being an employee of the Post Office) could not commit any offence under section 163 of the Code, he could not be accused or convicted of conspiracy to commit that offence. (He relied on a case which did not support his argument.)
Hissecond ground related to evidence.

A Government officer made a deposition before the investigating Magistrate and put in some papers, which were marked as exhibits. That officer went abroad on leave, and Counsel for the Crown applied for the deposition to be read after producing the Gazette showing that the witness was abroad on leave. The second ground complained that the deposition and exhibits had not been proved in manner required by law.

The provisions of the Evidence Ordinance (section 34 and section 114) are cited in the judgment infra; section 114 creates a presumption that a deposition duly signed, etc., was properly taken, and section 34 makes the Gazette sufficient on the point of absence.

The manner of taking a deposition and the marking of documents is governed by the Criminal Procedure Ordinance (sections 321, 322, and 330, referred to in the judgment infra). The appellant had an opportunity, at the time, of crossexamining the absent witness; the latter signed his deposition, and the Magistrate authenticated it.

The third ground of appeal was that the verdict was unreasonable. There was no direct evidence. The Crown theory (which was accepted by the trial Judge) was that the cheque in the letter was sent in response to a demand which reached the appellant by post on Saturday, the 15th, after 2 p.m., that the cheque was not borrowed until later that day, and the letter with the cheque was therefore posted on Monday, the 17th, but made to appear as having been posted on the 15th asthe result of a conspiracy between the appellant and his co-defendants.

One co-defendant said in evidence that the appelant gave him the letter early on Saturday morning to post but he forgot to post it until Monday, and the other co-defendant confirmed him that the letter was registered on Monday.

There was evidence for the Crown that the person who lent the blank cheque was away on Friday afternoon and returned late that day (but the value of this evidence
was spoilt by earlier evidence in another proceeding); there was evidence for the appellant that he was visited on Friday afternoon and given the cheque before 8 a.m. on Saturday; that then he gave the letter to the first co-defendant to post; and the counterfoil bore a note of 14.9.51, viz. Friday, as being the day on which the cheque was loaned. The evidence bearing on the case of the appellant is reviewed in the final part of the judgment infra.

Held

The gist of the offence of conspiracy lies, not in the doing of the act or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties; and a person may be charged and convicted of conspiracy to commit a crime of which he could not, if he stood alone, be convicted.

Held also

The deposition and the documents therein referred to were rightly admitted under sections 34 and 114 of the Evidence Ordinance, as the provisions of the Criminal Procedure Ordinance, sections 321, 322, and 330, had been met and the deposition and documents were produced from the custody of the registrar of the trial Court.

Held further

The conflict and discrepancies in the evidence for the Crown were such that there was not the certainty required to justify the conviction of the appellant; nor was guilt on his part the only possible inference.

Appeal allowed.