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Criminal law
- Conspiracy to commit robbery -
Sections 23(1) and 149 of Act 29
- indictment and convicted of
the offences – Defence of alibi
- Burden of proof - Whether or
not there was non-compliance
with Section 187 and 188 of the
Criminal
and Other Offences (Procedure)
Act, 1960 (Act 30) - Whether
or not of the non-compliance the
committal proceedings were a
nullity - Whether or not the
amendment to the Bill of
Indictment after the close of
the case for the prosecution has
occasioned a substantial
miscarriage of justice to the
appellant - sections 10 to 17 -
Evidence Act, 1975 (NRCD 323)
HEADNOTES
According to
the Prosecution, the appellants
are Nigerian citizens now
resident in Ghana. On 21st
December 2000 they arrived in
Takoradi from Accra and
continued to Tarkwa. They
arrived in Tarkwa at about
10:00pm where they were led by a
man by name C.K. to Akoon Small
Mining Company. Armed with a
single barrel shot gun, an axe,
a jack knife and a quantity of
ammunition, the appellants
together with certain other
persons attacked the security
officers on duty. The appellants
beat up these officers and
afterwards made away with a gold
weighing machine valued at ¢12
million (old Cedis) and a
quantity of gold concentrate.
The appellants then continued to
Wasa-Manso where they attacked
the home of a prosecution
witness and his family. The
appellants hit the witness on
the head and he fell down
unconscious. They subjected his
wife to severe beatings after
which they stole two travelling
bags, a mobile phone and its
charger, one kente cloth and a
sum of ¢1.1 million. The
appellants packed the items into
the man’s vehicle and fled but
abandoned the vehicle at a point
after radio announcements had
been made about the robbery.
Fortunately the appellants were
spotted by some town folks and
were chased and apprehended and
handed over to the police.
HELD
We are in no doubt, whatsoever,
that the direction given by the
learned trial judge to the jury
was clear enough to show the
jury that the onus was on the
Prosecution to establish its
case against the accused
persons. He also directed them
clearly enough concerning the
standard of proof required of
the Prosecution. He gave them
clear enough direction to
prevent them from shifting the
burden of
proof from the Prosecution
to the defence unless the
Prosecution had met the standard
of proof required of it. Thus,
the judge adequately placed the
jury in a strong position to
understand the duty cast on them
and as such the judge rightly
directed the jury. There was no
misdirection or non-direction
whatsoever. The direction was
indeed impeccable and fully
served the purposes of the law;
it cannot be faulted in any way.
For the foregoing reasons, the
appeal fails in its entirety and
the judgment of the Court of
Appeal is hereby affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Criminal and
Other Offences (Procedure) Act,
1960 (Act 30)
Evidence Act,
1975 (NRCD 323)
CASES
REFERRED TO IN JUDGMENT
State v Bisa
[1965] GLR 389
Kwakye v The
State [1965] GLR 647
THE State v
Director of Prisons; Ex Parte
Schumann [1966] GLR 703.
Afwireng v
The Republic [1972] 1 GLR 270
Dochie v The
State [1965] GLR 208
Adabele and
Others v. The Republic [1984-86]
1 GLR 478-481
Kugblenu v.
The Republic [1969] CC 160, CA.
Oteng v. The
State [1966] GLR 355
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
SOPHIA A. B.
AKUFFO (MS), JSC.
COUNSEL
AUGUSTINE
OBUOR FOR THE APELLANTS.
MARINA
APPIAH-OPARE (PRINCIPAL STATE
ATTORNEY) FOR THE REPUBLIC
J U D G M E N T
SOPHIA A. B.
AKUFFO (MS), JSC.
The
appellants were charged with the
offences of
conspiracy to commit robbery
contrary to
sections
23(1) and 149 of Act 29, and
robbery contrary to section 149
of Act 29. At the Sekondi High
Court, they were tried on
indictment and convicted of the
offences. They were each
sentenced to twenty-five (25)
years IHL on each count to run
concurrently. On appeal to the
Court of Appeal, their
conviction and sentences were
affirmed. The appellants
therefore brought a further
appeal to the Supreme Court.
Brief
Background
According to
the Prosecution, the appellants
are Nigerian citizens now
resident in Ghana. On 21st
December 2000 they arrived in
Takoradi from Accra and
continued to Tarkwa. They
arrived in Tarkwa at about
10:00pm where they were led by a
man by name C.K. to Akoon Small
Mining Company. Armed with a
single barrel shot gun, an axe,
a jack knife and a quantity of
ammunition, the appellants
together with certain other
persons attacked the security
officers on duty. The appellants
beat up these officers and
afterwards made away with a gold
weighing machine valued at ¢12
million (old Cedis) and a
quantity of gold concentrate.
The appellants then continued to
Wasa-Manso where they attacked
the home of a prosecution
witness and his family. The
appellants hit the witness on
the head and he fell down
unconscious. They subjected his
wife to severe beatings after
which they stole two travelling
bags, a mobile phone and its
charger, one kente cloth and a
sum of ¢1.1 million. The
appellants packed the items into
the man’s vehicle and fled but
abandoned the vehicle at a point
after radio announcements had
been made about the robbery.
Fortunately the appellants were
spotted by some town folks and
were chased and apprehended and
handed over to the police.
The grounds
of appeal to the Supreme Court
may be summed up as follows:-
1.
There was non-compliance with
Section 187 and 188 of the
Criminal and Other Offences
(Procedure) Act, 1960 (Act 30)
were not complied with therefore
the
committal proceedings were a
nullity
2.
The amendment to the Bill of
Indictment after the close of
the case for the prosecution has
occasioned a substantial
miscarriage of justice to the
appellant
3.
There was misdirection by non
direction of the jury as regards
alibi since the appellants
claimed they had not been at the
crime scenes
4.
Failure to take the pleas of the
Appellants in respect of count 3
was fatal to the Respondent’s
case
5.
The Court of Appeal erred when
it failed to consider the time
factor in the two robberies at
Tarkwa Kwaabedu and Wasa Manso.
6.
The Court of Appeal erred when
it held that the summing up is
faultless when the trial high
court judge misdirected himself
by non-direction of the jury as
to what constitutes a
‘reasonable doubt’ in criminal
trial.
Beginning
with the first ground of appeal,
Section 187 of Act 30 explains
the process for taking the
statement of the accused person
in court during committal
proceedings, whereas section 188
discusses the subject of
witnesses for the defence.
Though the appellants’ first
ground of appeal is couched
broadly under sections 187 and
188, in his written submission
before the Court, their counsel
only discussed section 187 of
Act 30.
Section 187
provides as follows:-
(1)
‘The Court
shall, before deciding whether
to commit the accused for trial,
address to the accused the
following words or words to the
like effect:-
“Before
deciding whether to commit you
for trial, I wish to know if you
have anything to say in answer
to the charge. You are not
obliged to say anything but if
you have an explanation it may
be in your interest to give it
now. What you wish to say will
be taken down in writing and if
you are committed for trial it
may be given in evidence. If you
do not give an explanation your
failure to do so may be the
subject of comment by the judge,
the prosecution or the defence.”
(2)
‘The Court
shall comply with the rules set
out in the Sixth Schedule as to
the taking of a statement.’
It is notable
that the Section makes it clear
that ‘words to the like
effect’ may be used in
addressing the accused person on
the matter.’
The said
Sixth Schedule of Act 30 sets
out the rules for taking the
Statement of the Accused and
provides that:-
-
“The Court shall refer the
accused to the requirements
of section 131, in relation
to alibis, and if necessary
explain to the accused in
simple terms the meaning of
an alibi. The court should
then tell the accused that
if the accused’s answer to
the charge is an alibi the
accused may give a personal
explanation now, although
the accused may not yet be
able to name the witnesses
by whom the accused proposes
to prove it, giving notice
of the witnesses later,
within the time specified in
the section.
-
Where a statement already
made by the accused and
intended, according to the
summary of evidence, to be
put in evidence at the trial
of the accused appears to
the Court to be inconsistent
with the statement now being
made, the Court should draw
the accused’s attention to
the inconsistency and invite
the accused to make the
correction desired in the
accused’s present
statement.”
According to
Counsel for the appellants, the
appellants denied the offence
and explained to the trial court
how it was that they found
themselves in Manso and were
arrested by the youth.
Consequently, he contends that
the Sixth Schedule should have
been complied with and the
meaning of an alibi should have
been explained to them at the
committal. Counsel, therefore,
submits that there was a failure
to do so which has occasioned a
substantial miscarriage of
justice being meted out to the
appellants at that stage.
Counsel for
the appellants also contends
that the conclusion by the
magistrate that ‘there is
sufficient evidence to
successfully prosecute the
accused persons’ leaves much to
be desired of an impartial
judge.
As was
observed by both counsels in
this matter, there were no
statutory statements of the
appellants attached to the
record of appeal. However, as
was also noted by counsel for
the respondent, at page 98 of
the record of appeal, it is on
record that, before the
Prosecution closed its case, the
statutory statements of the
appellants were tendered in
evidence as exhibits V, W, X and
Y. This clearly indicates that
statutory statements of the
appellants were indeed taken at
the committal proceedings.
However since they were not
attached, it is hard to tell if
sections 187 and 188 were
complied with. (This includes
whether or not the provisions on
alibi and on inconsistent
statements made by the accused
were followed). The record is
quite clear that on 8th
July, 2003, the day the
statements were added to the
record of proceedings in the
High Court, the appellants were
represented by Counsel, who was
present in court. However,
counsel herein has not given any
indications to the court what
efforts, if any, he made to
ensure that the statutory
statements were included in the
record of appeal.
Now, the
judge’s duty in committal
proceedings is amply spelt out
in section 184(4) of Act 30 i.e.
the duty of the court to
determine whether there is a
case for the accused to answer.
The case of
State
v Bisa [1965] GLR 389
affords further clarification of
the scope of this duty and
explains that the duty of the
Magistrate is to find out
whether a prima facie case has
been made against the accused;
or to determine the credibility
of the accused or his witnesses
since no one testifies on oath
before the committal court. In
that case it was held by the
court that:-
“... if after due
examination of the summary of
evidence the magistrate comes to
the conclusion that there is
evidence, even a scintilla, to
support the offence of which the
accused stands charged, he must
commit.”
It is not
imperative for a magistrate to
hear the evidence of witnesses
on oath before he may commit, as
has been held in
Kwakye
v The State [1965] GLR 647
and the State v Director of
Prisons; Ex Parte Schumann
[1966] GLR 703. In this
regard it is noteworthy that, in
this case, the Chairman of the
Community Tribunal noted, after
perusing the Bill of Indictment
and summary of evidence and all
relevant documents and
preliminary evidence, that there
was sufficient evidence to
successfully prosecute the
accused persons.
Additionally,
Section 406(1) of Act 30 states
as follows:
(1)
Subject to
this Part a finding, sentence or
order passed by a court of
competent jurisdiction shall not
be reversed or altered on appeal
or review on account
(a)
of an error,
omission or irregularity in the
complaint, summons, warrant,
charge, proclamation, order,
judgment, or any other
proceedings before or during the
trial or in an enquiry or any
other proceedings under this
Act, or
(b)
of the
omission to revise a list of
jurors in accordance with Part
Five, or
(c)
of a
misdirection in a charge to a
jury,
unless the
error, omission, irregularity,
or misdirection has in fact
occasioned a substantial
miscarriage of justice.
Thus, even
assuming that sections 187 and
188 of Act 30 were not complied
with, from the record of this
case, such an omission cannot be
said to have occasioned such a
miscarriage of justice as is
contemplated by section 406(1)
of Act 30. This is because, as
already noted above, the
Community Tribunal, after it had
considered the Bill of
Indictment and summary of
evidence and other relevant
documents found that there was
sufficient evidence to prosecute
the appellants in the High
Court. 0
Regarding the second ground of
appeal, Section 232(1) of Act 30
allows for the amendment of an
indictment at any stage during
the trial of an accused person.
The Section reads as follows:-
“Where before a trial on an
indictment or at any stage
of the trial, it appears to the
Court that the indictment is
defective or that an order
should be made for a separate
trial, the Court shall make an
order for the amendment of the
indictment that the Court thinks
necessary to meet the
circumstances of the case, and
on the terms that the Court
considers just unless, having
regard to the merits of the
case, the amendment cannot be
made without injustice.”
(emphasis mine)
Hence, the law is quite explicit
that an amendment to a Bill of
Indictment may be made at any
stage of the trial unless,
having regard to the merits of
the case, the amendment cannot
be made without injustice. In
this case, it is noteworthy
that, as the record shows,
counsel for the appellant did
not object to the amendment
being made. In any event,
nowhere in his Statement of Case
herein has counsel for the
appellants been able to
demonstrate to the court the
manner in which the amendment
occasioned an injustice to the
appellants. It is not sufficient
for counsel for the appellant to
simply make a sweeping statement
that a substantial miscarriage
of justice to the appellants has
occurred, without showing how it
was caused. This ground of
appeal, therefore, fails.
Interestingly enough, though
counsel for the appellants
formulated his third ground of
appeal as ‘misdirection by non
direction of the jury as regards
alibi’, in his arguments in
support of this ground of
appeal, he merely harps back to
the first ground of appeal that
certain salient procedures under
section 187 of Act 30 were not
followed.
Though the first ground of
appeal has, hereinbefore, been
sufficiently dealt with, certain
other elements are worth
mentioning in our consideration
of ground three.
Section 131 of Act 30 provides
as follows:-
“(1) Where an accused
intends to put forward as a
defence a plea of alibi, the
accused shall give notice of the
alibi, to the prosecutor or
counsel with particulars as to
the time and place and of the
witnesses by whom it is proposed
to prove,
a. Prior, in the case of a
summary trial, to the
examination of the first witness
for the prosecution, and
b. Prior, in the case of a
trial on indictment, to the
sitting of the trial Court on
the date to which the case of
trial has been committed for
trial.
“(2) Where the notice is
given the Court may, on the
application of the prosecution,
grant a reasonable adjournment
“(3) Where the accused puts
forward a defence of alibi
without having given notice, the
Court shall call on the accused
to give notice to the
prosecution of the particulars
mentioned in subsection (1)
forthwith or within the time
allowed by the Court and
after the notice has been given
shall, if the prosecution so
desires, adjourn the case.
“(4) Where the accused
refuses to furnish the
particulars as required the case
shall proceed but evidence in
support of a plea of alibi is
not admissible in evidence.”
The procedural requirements,
where the defence of alibi is
intended to be or is raised, are
thus quite clear and specific.
In the case of
Afwireng v The Republic [1972]
1 GLR 270, the
appellant, in his defence, set
up alibi, and contended that,
contrary to what the prosecution
alleged, he was elsewhere and
not at the scene of the crime.
He, however, failed to give
notice of his defence of alibi
and so the evidence was
excluded. Upon his conviction,
he appealed, contending that the
failure to give notice was not
fatal to the defence. The appeal
came before His Lordship Edmund
Bannerman C.J., sitting as an
additional High Court judge. The
Court allowed the appeal and
held that assuming that the
defence of the appellant was one
of alibi (as the learned
magistrate found) the above
section requires in such a case
the trial magistrate to call
upon an accused person to file a
notice of alibi when such a
defence is raised without notice
of the particulars of such alibi
having been previously given to
the prosecution to adjourn the
case for such purposes, if
necessary. It is only when the
court has complied with this
requirement and the accused has
failed to furnish the details of
his alibi as directed that any
evidence of the alibi is shut
out and excluded. Thus, where
the court has failed to comply
with subsection (3) of Section
131 by calling on the accused to
give particulars of his alibi,
no issue of a refusal to furnish
particulars would arise and
subsection (4) of Section 131
will not apply. In such
circumstances, unless the
prosecution calls the attention
of the Court to the
non-compliance, or applies for
particulars of the defence of
alibi raised to be given, the
trial will simply proceed
normally.
In the matter before us, though
the trial judge failed to comply
with the requirements of
subsection (3) of section 131,
in that he failed to call on the
accused persons to give notice
to the prosecution of the
particulars of the alibi they
were raising, he did not exclude
the evidence. Rather, he
considered the evidence in his
summing up to the jury. He asked
the jury to consider the
statements of the accused
persons and their testimony
before the court and to convict
or acquit based on all these
(see pages 161 and 162 of the
Record of appeal). The third
ground of appeal is, therefore,
quite untenable as there was no
misdirection of the jury,
concerning the appellants’
defence
of alibi.
Concerning Ground 4 of the
appeal, it is very clear at Page
21 of the Record of Appeal that
the pleas of the appellants were
taken as regards counts one and
two. Though there is no record
of their pleas having been taken
on count three, which is in
respect of the robbery incident
at Adum Benso, the Bill of
Indictment clearly shows that
the appellants were charged with
one count of conspiracy to
commit robbery, and two counts
of robbery. In addition the
record of proceedings shows that
the appellants were tried in
respect of count three as
evidence was led on this count.
The prosecution at the trial led
evidence through PW1 and PW2 to
prove the guilt of the
appellants as regards the
robbery incident at Adum Benso.
As shown at page 144 of the
Record of Appeal, the jury
returned a verdict of guilty on
each of the charges against the
accused appellants. Also at page
145 of the Record the trial
judge sentenced each appellant
“on each charge to twenty-five
years IHL to run concurrently.”
The learned judge did not
specify whether the appellants
were sentenced on all three
counts on the Bill of Indictment
or on the two counts they
pleaded to as appears on the
record. However His Lordship in
his summing up to the jury
considered the testimonies of
all the prosecution witnesses
including PW1 and PW2 and
directed the jury to do same.
During the trial counsel for the
appellant did not raise any
objection when evidence was led
on count three. Section 406(2)
of Act 30 stipulates that:-
“(2) In determining whether
any error, omission, or
irregularity has occasioned a
substantial miscarriage of
justice the Court shall have
regard to the question whether
the objection could and should
have been raised at an earlier
stage in the proceedings.”
In
Dochie v The State [1965] GLR
208 the appellant was
charged with, inter alia,
attempt to commit crime contrary
to section 18(1) instead of
section 18(2) of Act 29. He was
convicted by a circuit court and
appealed to the High Court
alleging that he was convicted
under the wrong provision. The
Court held that the objection to
section 18(1) could have been
taken in the court below by
counsel. Since no miscarriage of
justice had been occasioned by
the mistake, the appellant could
not rely on it as provided under
section 406(2).
Further in the case of
Adabele and Others v. The
Republic [1984-86] 1 GLR 478-481
the pleas of the accused
persons were not taken during
the trial. However the
prosecution witnesses were cross
examined by the counsel for the
appellant. Subsequently counsel
for the appellants made a
submission of no case and lost
and also had the opportunity to
address the court at the close
of their case. He never at any
of these stages raised any issue
against the fact that the pleas
of the accused persons were not
taken. The High Court sitting at
Bolgatanga held that the fact
that the counsel participated in
the trial from its inception to
the end shows that the
appellants were being tried on a
plea of not guilty. The court
was of the view that the
appellants’ case was not
prejudiced in any way and as
such, on appeal, the conviction
of the appellants could not be
interfered with solely on the
ground that their plea was not
taken. This stance is entirely
reasonable since, essentially, a
plea serves the purpose of
enabling the accused person to
declare his/her intention to
place in contention a particular
charge made against him/her.
In this appeal, it is clear from
the record that the appellants
were afforded ample opportunity
to contend with the Republic
concerning count three. Counsel
for the accused indeed
cross-examined PW1 and PW2 who
had testified for the
prosecution in connection with
the said count. Consequently,
there is no basis for us to
interfere with the conviction of
the appellants, merely because
their pleas were not taken at
the trial with regards to count
three. Ground four is,
therefore, baseless.
Our only reaction to Ground 5 of
the appeal herein is that there
is nothing on record to show
that the prosecution’s case
indicated that the crimes
occurred at the same time. The
appellants had also raised this
ground before the Court of
Appeal, and it was, in our view,
sufficiently considered and
dealt with. Reading the judgment
of the Court of Appeal, the
learned Iris May-Brown, JA,
noted that:-
“The prosecutor has led evidence
to show that the two robberies
took place at different times.
There was evidence of the car
stolen from the second robbery
and abandoned not too far away
from where the accused persons
were apprehended by the town
folk. The kente and the gold
weighing machine, retrieved from
the accused persons were proved
to have been stolen from the two
places where the robbery
occurred.
“The suggestion as to the long
distance between the two towns
and the incapability of the
accused persons to have been
present in the two areas was
made by counsel for the defence
during cross examination of a
prosecution witness. No evidence
was offered to support the
suggestion and to cast doubt on
the case of the prosecution. A
suggestion made during cross
examination does not constitute
evidence and the judge is not
obliged to direct the matter to
the jury for their
consideration.
Kugblenu v. The Republic [1969]
CC 160, CA.”
In any event, since the
appellants were pleading alibi,
it would not in any significant
manner help their case either
way if the robberies were
committed at different times or
at the same time. Thus this
ground also fails.
With regard to the sixth ground
of appeal, the record shows
that, in his summing up to the
Jury, the learned trial judge
gave the following directions:-
“The generally accepted
principle of criminal trials in
Ghana is that the prosecution
must discharge the burden of
proving the accused guilty of
the offence charged to your
satisfaction and must do so
beyond all reasonable doubt.
That means the prosecution must
not leave you in any doubt at
all about the guilt of the
accused . . . so that even
before you come to the end of
your deliberations, you must
feel completely satisfied with
the case for the prosecution
that unanswered by the accused,
you could convict him of the
charges otherwise your verdict
for each accused or any of them
should be not guilty . . .
Therefore before you even
consider the defence of the
accused persons, you must first
be satisfied that the
prosecution has succeeded in
taking their case outside the
ambit of speculation and
conjecture.”
(emphasis mine)
The
Evidence Act, 1975 (NRCD 323),
in sections 10 to 17,
stipulates the law on the burden
and standard of proof in civil
and criminal cases. For the
purposes of the sixth ground of
appeal, one only needs to focus
on sections 13(1) and 16 which
provide as follows:-
“13(1) In any civil
or criminal action the burden of
persuasion as to the commission
by a crime which is directly in
issue requires proof beyond a
reasonable doubt.
“14. The Court
on all proper occasions shall
instruct the jury as to which
party bears the burden of
persuasion on each issue and as
to whether that burden requires
that a party raise a reasonable
doubt concerning the existence
or non-existence of a fact or
that he establish the existence
or non-existence of a fact by a
preponderance of the
probabilities or by proof beyond
a reasonable doubt.”
The rationale for the strictures
codified by these provisions is
well known and was expressed by
Olennu JSC in
Oteng
v. The State [1966] GLR 355
in the following terms:-
“... the citizen too is entitled
to protection against the State
and that our law is that a
person accused of a crime is
presumed to be innocent until
his guilt is proved beyond
reasonable doubt as distinct
from fanciful doubt.”
We are in no doubt, whatsoever,
that the direction given by the
learned trial judge to the jury
was clear enough to show the
jury that the onus was on the
Prosecution to establish its
case against the accused
persons. He also directed them
clearly enough concerning the
standard of proof required of
the Prosecution. He gave them
clear enough direction to
prevent them from shifting the
burden of proof from the
Prosecution to the defence
unless the Prosecution had met
the standard of proof required
of it. Thus, the judge
adequately placed the jury in a
strong position to understand
the duty cast on them and as
such the judge rightly directed
the jury. There was no
misdirection or non-direction
whatsoever. The direction was
indeed impeccable and fully
served the purposes of the law;
it cannot be faulted in any way.
For the foregoing reasons, the
appeal fails in its entirety and
the judgment of the Court of
Appeal is hereby affirmed.
(SGD)
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COUR
(SGD) S. O.
A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) R. C. OWUSU
(MS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL;
AUGUSTINE
OBUOR FOR THE APELLANTS.
MARINA
APPIAH-OPARE (PRINCIPAL STATE
ATTORNEY) FOR THE REPUBLIC |
