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Criminal law
- Exportation of narcotic drugs
and possession - Lawyer of his
choice - Constitutional rights -
Article 19 (2) (f) – 1992
Constitution -
Self-representation -
Fundamental human right –
Whether or not the Court of
Appeal erred in its
interpretation of sections 110
and 112 of the Criminal
Procedure Code Act 30, 1960
section 56 (a) and 1 (1) -
Narcotic sanctions) Act of 1990
(PNDCL 236) -
HEADNOTES
The facts of
the case as presented by the
prosecution are that the accused
persons are all American
nationals resident in the United
States of America. They arrived
at the Kotoka International
Airport to board a Delta Airline
flight to the United States of
America. While going through
pre-departure formalities for
the flight, operatives of
Narcotics Control Board
suspected them of carrying
narcotic drug and therefore
picked them for a search which
revealed a powdery substance
suspected to be narcotic drug
hidden in their pants and the
sole of their shoes. A further
search on 2nd and 3rd
accused persons revealed pellets
of the same powdery substance
hidden in their vagina. They
were therefore arrested. On
interrogation, they mentioned
one Abubakari Issaka in the
U.S.A. as the one who contracted
them for a fee to carry the
substance to the United States.
They named one Alhaji as their
contact in Ghana and that the
said Alhaji for whom they
brought four envelopes
containing money met them on
their arrival in Ghana on
02/09/09. In Ghana, Alhaji took
care of all their needs. It was
he who gave them the substance
to be carried to Abubakari in
America. From these facts, one
can safely conclude that the
accused persons acted together
with a common purpose in
committing the offence of
attempt to commit an offence of
exportation of narcotic drug
without a license issued by the
Minister for Health contrary to
section 56(a) and 1 (1) of the
Act
HELD
In the end,
the appeal fails on all grounds
except ground (e) and same is
hereby dismissed.I feel I will
fail in my duty if I do not
comment on the reckless manner
in which the prosecution handled
the case in the court below. How
could the charge sheet state
that what the accused persons
carried was cocaine when p.w.1
talked of heroine? The Appellant
could have gotten away but for
sections 406 (1) (a) of the
criminal and (other offences)
procedure Act and of the courts
Act, Act 459. The offence of
possessing narcotic drug as
stated under section 2 (1) is
without authority but not
without a license issued by the
Minister. I have not dealt with
this in the judgment because
that was not raised in the
appeal. What is more the
particulars of the offence
correctly stated the offence and
that defect again did not
occasion any miscarriage of
justice which would have
vitiated the conviction.
DESSENTING
In my thinking even guilty
persons are entitled to be
advised of strategies for their
defence in the conduct of
criminal cases in the same way
as innocent persons and as such
the violation of this
fundamental right when properly
asserted must result insetting
aside any conviction that is
founded thereon. When people are
accused of crimes and going
through trials, the role of
counsel is of utmost importance
in ensuring that they are
properly advised in preparing
their defence and all the
options that are available to
them are explained to them to
ensure that the trial process is
fair and also to uphold the
integrity of the judicial
process by which their right to
personal liberty might be
curtailed following their
conviction. I am of the opinion
that the right to counsel for
accused persons if not respected
by our courts would render
article 14.2 a mere expression
of lofty principles that are
devoid of any substance. Such a
state of affairs would not only
be regrettable from the point of
view of our duty in terms of our
oath to “preserve, protect and
defend the Constitution” but
undermine the corollary duty of
our citizens to respect the
Constitution. In the
circumstances, the appellant’s
appeal to this court on grounds
that touch and concern the
violation of her right to
counsel is allowed.
STATUTES
REFERRED TO IN JUDGMENT
Criminal and
other Offences Act, 1960, Act 30
1992
Constitution
Narcotic
sanctions) Act of 1990 (PNDCL
236).
Courts Act,
Act 459
CASES
REFERRED TO IN JUDGMENT
The Republic
v. High Court (Fast Track
Division) Accra: Ex parte Tsatsu
Tsikata [2007-2008] SCGLR 1200
State V
Otchere [1963]2 GLR 463.
Yeboah V The
State [1964] GLR 715 at 717.
Republic V
Bright [1974]2 GLR 12
Forson V. The
Republic [1976] 1 GLR 138
Miller V.
Minister of Pension [1947] 2 AER
372,
Republic V
High Court Kumasi; Ex-parte
Atumfuwa and Another [2000]
SCGLR 72
Bonsu alias
Benjilo V The Republic [2000]
SCGLR 112.
Warner V
Metropolitan Commissioner, R. V.
Boyeson (supra) and Akosa V The
Republic [1979] GLR 250
Togbe Fiti v
State [1965] GLR 33
Darkwa v The
Republic [1973] 1 GLR 431
R v Asiegbu
1937 WACA 142
Hodgson v The
Republic [2009] SCGLR 642
Egbetowokpor
v Republic [1975] 1 GLR 485
Miranda v
Arizona 384, U.S 436 (1966)
Massiah v
United States, 377 U.S. 201
(1964).
Brewer v
Williams 430 U.S 387 (1977) 178
Okorie v The
Republic [1974] 2 GLR 272
Republic v
Akosa and Another [1975] 2 GLR
406,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ADINYIRA
(MRS.) JSC:
DESENTTING
DOTSE JSC:
GBADEGBE JSC:
COUNSEL
AUGUSTINE OBOUR FOR THE
APPELLANT
K. ASIAMAH-SAMPONG (PRINCIPAL
STATE ATTORNEY) FOR THE
RESPONDENT
_______________________________________________________________________________________________
J U D G M E N
T
_______________________________________________________________________________________________
ADINYIRA
(MRS.) JSC:
I have the
privilege of reading beforehand
the opinion of my eminent sister
Justice Owusu and I agree with
her conclusion that the appeal
is without merit.
I also had
the opportunity to read the
dissenting opinion of my
esteemed brother Justice Dotse
which turned on ground (b) of
the appeal. I wish his
permission make some comments in
relation to that ground.
Ground (b):
‘’The Court
of Appeal erred when it held
that the trial High Court was
right in accepting the plea of
the appellant in the absence of
her counsel without explaining
the consequences to the
appellant.’
His Lordship
discussed Articles 14 (2) and 19
(2) (f) of the 1992 Constitution
in relation to this ground of
appeal.
Article 14
(2) provides that:
“14(2) a
person, who is arrested,
restricted or detained, shall be
informed immediately in a
language that he understands of
the reasons of his arrest and
detention and of his right to a
lawyer of his choice.”
I do agree
with my brother Justice Dotse
that our Courts must observe
best practices in the
administration of justice
especially when it affects the
liberty of the individual. It is
fair to say that the best
practice as envisaged in the
Miranda rights referred to by
Justice Dotse and what is called
the Judges Rules in the UK have
been applied and observed in the
administration of criminal
justice in this country. It is
indeed a standard procedure and
requirement. It is trite law
that any breach of these rules
in the course of the arrest
detention and interrogation by
the police or any arresting
officer or enquiry renders any
confession statement given by a
suspect or any evidence obtained
in the process, inadmissible at
a trial.
Article 14
(2) reflects these values that
seeks to protect personal
liberty. However this provision
is with all due respect not
applicable in this instant case
as the appellant’s complaint is
that the judge erred in
accepting the plea of the
appellant in the absence of her
lawyer.
The relevant
article is rather Article 19 (2)
(f) that provides:
(2) A person
charged with a criminal offence
shall
(f) be
permitted to defend himself
before the court in person or by
a lawyer of his choice.
An accused
person is vested under this
article with the right to defend
herself or by a lawyer of his
choice. This Court in a
unanimous decision in the case
of The Republic v. High Court
(Fast Track Division) Accra: Ex
parte Tsatsu Tsikata [2007-2008]
SCGLR 1200 had the occasion
to define the phrase “a lawyer
of his choice”.
The relevant
facts as it appears in the
headnotes of the law report are
that the applicant Mr. Tsatsu
Tsikata was the accused person
in a criminal matter pending
before an Accra High Court (Fast
Track Division). The trial court
fixed 18 June 2008 for judgment.
On 10 June 2008 the applicant
caused a motion to be filed on
his behalf to adduce fresh
evidence. According to the
applicant, accompanying the
motion paper and supporting
affidavit was a letter addressed
to the Registrar of the Court,
informing him that his counsel
would be out of the jurisdiction
on 12 June 2008, and therefore
requesting that, when the
criminal matter came up for
hearing it should be adjourned
further to a date in the second
half of 2008.
At the
hearing on 18 June 2012, the
applicant referred to counsel’s
letter and asked that the motion
be adjourned. The learned Judge
however insisted that the
hearing of the matter must
proceed. When the applicant
declined to move the application
himself, the court, after
hearing the Attorney-General on
behalf of the Republic struck
out the application for want of
jurisdiction. The applicant
filed an application for
certiorari to quash the decision
and on other matters not
relevant for our purpose. One of
the grounds inter alia was that
the decision of the High Court
to strike out his motion for
want of prosecution was in
breach of the applicant’s
constitutional rights under
Article 19 (2) (f) for fair
trial.
At page 1221
the Supreme Court unanimously
held that:
“It is clear
from the language of article
19(2) (f) that an accused person
has a right to
self-representation. On the
affidavit evidence, the trial
judge did indeed, in the course
of the proceedings, draw the
applicant’s attention to that
fact, and gave him the
opportunity to do so, which the
applicant insistently declined.
Also under this provision, an
accused person has the right to
decide to be represented by
counsel of his choice. This
seems to be the option taken by
the applicant. However the
phrase “lawyer of his own choice
does not mean a particular
lawyer if such a lawyer
knowingly absent himself from
court. To hold otherwise would
be to place the processes of
criminal justice at the mercy of
the whims and fancies of defence
counsel and at the risk of
grinding to a halt.”
In this case
the appellant on 15 September
2009 opted to exercise her right
to be represented by a lawyer of
her choice before she would
plead to charges preferred
against her and two others. The
court granted her request and at
the next hearing, she pleaded
not guilty to the charges of
attempt to commit an offence of
exportation of narcotic drugs
and possession of same in the
presence of a lawyer of her own
choice. On that day the other 2
co-accused who had on an earlier
date pleaded not guilty changed
their plea to that of guilty and
they were convicted and
sentenced to 10 years
imprisonment IHL on both counts.
The appellant was present when
all these events occurred.
The case
against the appellant proceeded
to full trial on 23 February
2010 and the first prosecution
witness gave evidence and was
cross-examined. On 4 May 2010,
the appellant was in court
without her counsel and she
without any prompting informed
the court that she wanted to
change her plea. The trial judge
without any enquiries into her
decision had the charges read to
her and she pleaded guilty and
she was convicted and sentenced
to 10 years IHL on her plea.
I fully agree
with Justice Dotse that our
courts must follow the best
practices in the administration
of criminal justice in order to
protect the liberties of the
individual. Although no
provision is made in the
Criminal and other Offences Act,
1960, Act 30, as to what was
required of a judge in a summary
trial upon a change of change of
plea in the course of hearing
evidence, the best practice that
has evolved in our courts and
which the judge could have
followed was to have explained
the consequences of the change
of her plea, or at least
enquired the reasons for her
decision to proceed without her
counsel. This practice stems
from Section 199 of Act 30 which
applies to trials on indictment.
It is
recommended that similar
provisions are made in respect
of summary trials as an accused
person is entitled to full
protection of his fundamental
human rights to fair trial
irrespective of the nature of
the offence.
Having said
that, is the omission of the
trial judge to enquire into the
appellant’s change of plea in
the absence of her lawyer so
grave and weighty to result in a
miscarriage of justice? This was
a summary trial and proceedings
could continue in the absence of
counsel for an accused person;
furthermore it was regular for
the trial judge to record the
plea of guilty and proceed to
convict and sentence the
appellant. It is only in
capital offences that as a
matter of practice the trial
Court does not proceed in the
absence of lawyer for the
accused; and under section
199(5) of Act 30, a plea of
guilty shall not be accepted and
instead a plea of not guilty is
entered on behalf of an accused.
Having regard
to the facts on record, I find
it difficult to conclude that
this omission was so material as
to vitiate the whole
proceedings. The appellant was
someone who was fully aware of
her fundamental human right to
counsel and she demonstrably
insisted and exercised that
right. On the other hand, the
appellant also had the right to
elect to conduct her case in
person. See Tsatsu supra.
The choice was hers and she
made it on this occasion.
In any event
it is not surprising that the
appellant changed her plea
having regard to the evidence of
PW1 at the previous hearing.
PWI’s evidence was mainly that
during a search on the appellant
at the airport, some drugs were
found in her shoes and she
herself removed some pellets of
drugs from her vagina. Upon this
evidence I do not think there
was any cause or legal duty for
the trial judge to enquire from
the appellant the reason for her
change of plea and as such there
was no miscarriage of justice
I therefore
do not find any merit in this
ground of appeal.
The other
grounds of appeal have been
sufficiently dealt with by
Justices Owusu and Dotse. I
concur that the errors in the
charge sheet were cured by the
evidence of PW1 and that did not
occasion any miscarriage of
justice.
The appeal is
without merit and it is
dismissed.
(SGD) S. O. A. ADINYIRA
(MRS.)
JUSTICE OF THE SUPREME COURT
OWUSU JSC.
The Appellant
herein was charged together with
two others on two counts of:
Count One
Attempt to
commit an offence of exportation
of narcotic drug without a
licence issued by the Minister
for Health: Contrary to section
56 (a) and 1 (1) of the Narcotic
sanctions) Act of 1990 (PNDCL
236).
Count Two
Possession of
Narcotic drug without licence
issued by the Minister for
Health: contrary to section 2
(1) of the Narcotic Drugs
(Control, Enforcement and
Sanctions) Law 1990 (PNDCL 236)
The
particulars of the offences as
set out in the charge sheet are
as follows:
Count One
“1. Shadrack
Bamfo Ntiamah, fire officer, 2.
Abena Serwaa; student, 3.
Gabriel Joanne; student, on 9th
September, 2009 at the Kotoka
International Airport in the
Greater Accra Region and within
the Jurisdiction of this court
attempted to export to the
United States of America
49.8932gms of cocaine, a
narcotic drug without license
issued by the Minister of
Health.
Count Two
1. Shadrack
Bamfo Ntiamah, fire officer, 2.
Abena Serwaah, student, 3.
Gabriel Joanne, student, on 9th
September, 2009 at Kotoka
International Airport, Accra in
the Greater Accra Region and
within the jurisdiction of this
Honourable court had in your
possession 491.8932 of cocaine,
a narcotic drug without lawful
authority.
On 15th day of
September 2009 the Appellant
together with the others was
arraigned before the High court
for the first time.
The charges were read and
explained to them to which the 1st
and 2nd accused
persons pleaded not guilty to
both counts. The Appellant
refused to plead to the charges
because her counsel was not in
court.
Thereafter, the facts were given
to the court. The accused
persons were then remanded in
custody and the case adjourned
to 23/09/2009.
On 23/09/2009 when the accused
persons reappeared before court,
this time one Lawyer Adjei
appeared as counsel for the
accused persons.
The charges were read and
explained to the 3rd
accused, the Appellant herein
whereupon, she pleaded not
guilty to both counts.
They were again remanded in
custody and the case adjourned
to 8/10/2009.
On 28/01/2010 when the accused
persons reappeared in court
their counsel S. R. Brempong
pleaded for a short adjournment
for the accused persons to
reconsider their plea.
The court obliged them and
granted the adjournment to
03/02/10.
On 03/02/10, Lawyer Brempong
appeared as counsel for the 1st
and 2nd accused
persons while Lawyer Effah
Dartey appeared for the 3rd
accused person.
The 1st and 2nd
accused persons pleaded to
change their pleas. The charges
were re-read and explained to
them to which each of them
changed her plea on both counts
to guilty.
Each of them was convicted on
her own plea and sentenced to
10yrs I.H.L. The case of the
Appellant was adjourned to
23/02/10.
On 23/02/10 the 3rd
accused was in court with her
counsel and hearing of the case
began.
The first prosecution witness
mounted the witness box and
testified as to what happened on
the 9th of August
2009 at the Airport leading to
the arrest of the accused
persons. P. w. 1, Timothy
Abolimpo told the court he is a
Narcotic Control Officer.
At the Airport, the Appellant
was searched while going through
departure formalities and
substance suspected to be
narcotic drug was found in her
shoes. The Appellant then on
her own brought out some pellets
of drugs from her vagina.
When the substance was tested,
it proved positive for heroin.
She was thereafter handed over
to the police at Nacob
Headquarters.
The witness was cross-examined
by counsel for the accused and
the case was thereafter
adjourned to 10/03/10.
It was not until the 4th
day of May 2010 that the accused
appeared in court. This time
she was there without her
counsel.
She informed the court that she
wanted to change her plea.
The court ordered the charges to
be re-read to her and they were
so re-read to her and she
pleaded as follows:
“COUNT 1: Plea: Guilty
COUNT 2: Plea: Guilty
Upon her plea of guilty on both
counts, the court convicted her
and sentenced her to 10 years I.
H. L on both (sic) counts to run
concurrently.
The sentences were to take
effect from the day of her
arrest under Article 14(6) of
the 1992 constitution.
She was ordered to be deported
from the country after serving
her sentence.
On 19th January 2011,
on application for extension of
time within which to appeal, the
Court of Appeal granted the
Applicant extension of time to
appeal and pursuant to the leave
granted, the Appellant on
24/01/11 filed a Notice of
Appeal against her conviction by
the High Court on the following
grounds:
“(a) The facts of the case do
not support the charge leveled
against the accused person.
(b) The charge sheet was
incurably bad and could not be
the basis of the Appellant’s
conviction and subsequent
sentence.
(c) The Learned Judge erred when
he accepted the plea of the
Appellant in the absence of her
counsel after she had refused to
plead to the charges.
(d) The Appellant never intended
to plead guilty to any charge as
she had written in her statement
to the police and for that
matter to the prosecution that
she knew nothing about the
drugs.
(e)
The Appellant did not understand
the proceedings at the
court below in that she is only
21 years, a U. S. A. National
as well as a student and she was
without any relative in
court or Ghana.
On 19th
May 2011, the Court of Appeal by
a unanimous decision after both
counsel have filed their written
submissions, dismissed the
appeal.
Dissatisfied
with the decision of the Court
of Appeal, the Appellant on
20/05/11 filed a Notice of
Appeal to this court on the
grounds that:
“(a) The
Court of Appeal erred in its
interpretation of sections 110
and 112 of the Criminal
Procedure Code Act 30, 1960.
(b) The Court
of Appeal erred when it held
that the Trial High Court was
right in accepting the plea of
the Appellant in the absence of
her counsel without explaining
the consequences to the
Appellant.
(c) The Court
of Appeal erred when it held
that the defect in the charge
sheet was not fatal.
(d) The Court
of Appeal erred when it failed
to consider the effects of
section 171 of the criminal
procedure code 1960 Act 30 on
the change in the plea of the
Appellant of the Trial High
Court.
(e) The Court
of Appeal erred when it held
that the prosecution would have
amended the charge sheet if the
Appellant had not changed its
(sic) at the Trial High Court
when there was no such evidence
before the Court of Appeal.
(f) The Court
of Appeal erred when it refused
to follow a precedent from the
Supreme Court.
(g)
Additional grounds of appeal may
be filed on receipt of a
certified copy of the Judgment
of the Court of Appeal.
No such
additional grounds have been
filed.
The facts of
the case as presented by the
prosecution are that the accused
persons are all American
nationals resident in the United
States of America. They arrived
at the Kotoka International
Airport to board a Delta Airline
flight to the United States of
America.
While going
through pre-departure
formalities for the flight,
operatives of Narcotics Control
Board suspected them of carrying
narcotic drug and therefore
picked them for a search which
revealed a powdery substance
suspected to be narcotic drug
hidden in their pants and the
sole of their shoes. A further
search on 2nd and 3rd
accused persons revealed pellets
of the same powdery substance
hidden in their vagina. They
were therefore arrested.
On
interrogation, they mentioned
one Abubakari Issaka in the
U.S.A. as the one who contracted
them for a fee to carry the
substance to the United States.
They named one Alhaji as their
contact in Ghana and that the
said Alhaji for whom they
brought four envelopes
containing money met them on
their arrival in Ghana on
02/09/09. In Ghana, Alhaji took
care of all their needs. It was
he who gave them the substance
to be carried to Abubakari in
America.
From these
facts, one can safely conclude
that the accused persons acted
together with a common purpose
in committing the offence of
attempt to commit an offence of
exportation of narcotic drug
without a license issued by the
Minister for Health contrary to
section 56(a) and 1 (1) of the
Act.
Arguing the
appeal, counsel had argued
grounds (a) and (c) as filed in
the notice of Appeal together.
In the court
below, counsel had argued that
the facts do not support the
charge preferred against the
accused persons and that the
charge was incurably defective.
It was
submitted that the facts as
presented by the prosecution
alleged that each of the accused
persons had a narcotic drug
independent of the other and
therefore to put them together
as if all three of them jointly
held the drug in the particulars
of offence is wrong and fatal to
the prosecution’s case.
It was in
dealing with this submission
that the court below per Acquaye
J. A. referred to section 110 of
the criminal and (other
offences) procedure Act, Act 30.
Counsel
submits that the issue before
the court below was not joinder
of accused persons but rather it
centres on joinder of charges
which was not addressed in its
judgment.
Counsel
referred to section 110 (1) (a)
of the Act.
According to
him the word “charge” in section
110 (1) does not mean “count”.
The “charge” here means joining
other accused persons in the
same charge sheet with different
counts. In a very limited
sense, it may mean a conspiracy
charge involving several or more
accused persons. Counsel
further submitted that the
section must be read in
conjunction with section 109 of
the Act.
Section 109
of the Act deals with joinder of
charges.
109 (1)
states that –
“for each
distinct offence of which a
persons is accused there shall,
subject to subsection (2), be a
separate charge or count.
(2) charges
or counts for offences may be
joined in the same complaint
charge sheet, or indictment and
tried at the same time if the
charges or counts are founded on
the same facts, or form or are a
part of a series of offences of
the same or a similar
character.”
Having
referred to section 109, Acquaye
J. A. referred to section 110
(1) of the Act which deals with
joinder of accused persons.
Section 110
(1) (a) states that “persons
accused of the same offence
committed in the course of the
same transaction may be charged
and tried together.
Under this
subsection, the Court of Appeal
found nothing wrong with their
being charged jointly for the
same offences because they were
said to have arrived in the
country together on the same
date and were leaving together
on the same date with each
carrying the same narcotic drug
in almost the same manner.
Counsel
however submits that this is not
the issue but rather the issue
is one of joinder of charges
which the Court of Appeal did
not address.
The accused
persons were charged on two
distinct counts from the charge
sheet. Indeed, if they acted
together with a common purpose
in committing crime, they should
have been charged on a separate
count of conspiracy. The fact
that no such distinct charge was
preferred against them does not
detract from the fact that they
acted together with a common
purpose in committing crime. If
they acted together with a
common purpose in committing the
offence of attempting to export
the drug found on them without a
licence from the minister, then
the charge sheet cannot be said
to be defective as counsel for
the Appellant is urging upon the
court.
In that case
the quantity found on each of
them becomes immaterial. Even
if none was found on any of
them, that person would have
been equally blameable for the
quantity found on the rest and
all of them would be guilty of
attempting to export the whole
quantity of 491.8932gms found on
all of them if the prosecution
succeeded in establishing that
that person participated in the
execution of a conspiracy.
In this case,
the Appellant and the others had
come to Ghana purposely to carry
the drug to the United States of
America and for that reason all
of them are equally blameable.
See the case of STATE VRS
OTCHERE [1963]2 GLR 463.
The Court of
Appeal saw nothing wrong with
the accused persons being
charged jointly for the same
offences and this court sees
nothing wrong with the charge on
this score either. The appeal
fails on these grounds.
Ground (b) to
me is what merits consideration
by this court. This ground
attacks the Court of Appeal’s
holding that the trial Judge was
right in accepting the plea of
the Appellant without explaining
the consequences of such a plea
to the Appellant.
It is
counsel’s submission that
Justice expected in summary
trials is no lesser justice than
in a trial on indictment. In
this wise, he referred to
“practice and procedure in the
trial court and Tribunal of
Ghana by the learned Author S.
A. Brobbey JSC, in which he
dealt with change of plea. The
learned Author cited the case o
YEBOAH VRS THE STATE [1964] GLR
715 at 717.
Counsel
contented that if the trial
Judge had asked for and recorded
the explanation for the change
in plea, the court would not
have accepted the plea of guilty
and convicted the Appellant.
In the case
of YEBOAH, Supra, the Appellant
was arraigned before the
District Court on a charge of
stealing. On his first
appearance he pleaded not guilty
and was granted bail. On the
second occasion he was
discharged for want of
prosecution. He was re-arrested
and appeared again before the
same Magistrate on the same
charge. He then pleaded
guilty. He was convicted and
sentenced to a fine of 25 or
three months I. H. L. on all
three occasions the appellant
was not represented by counsel.
On appeal to
the High Court against his
conviction, it was argued on his
behalf that the trial was
irregular since the appellant
was induced by the prosecution
officer to change his plea and
that he did not appreciate the
import of the plea of guilty.
The court
presided over by Kinsley Nyinah
J. (as he then was) held,
allowing the appeal that:
“(1) when the
appellant suddenly changed his
erstwhile plea of “not
guilty” to “guilty”
the magistrate “ought to have
paused for judicial thought”
and enquired from the accused
the circumstances surrounding
and leading to his sudden change
of plea, and recorded his
answers.
If his
answers indicated that he had a
defence, the court should
proceed to try the case under
section 199 (4) of the criminal
procedure code, 1960 (Act 30)
failure to do that was a neglect
of duty.
(2) the
appellate court can go behind
the record of appeal to find out
whether the accused “deliberately
and unequivocally” pleaded
guilty or he did so as a result
of some misapprehension or
inducement. If the latter, the
appellate court ought properly
to hold that there has been a
miscarriage of Justice, and
allow the appeal.
With all due
deference to the appellate
Judge, section 199(4) of the
criminal procedure code 1960
(Act 30) is referable to trial
on Indictment. It is not for
nothing that two different
procedures have been set out
under the Act for trial. The
procedure in summary trials so
far as taking of plea and its
consequences are concerned is
not the same as trials on
indictment. The procedure is as
set out under section 171(3) of
the Act.
The Appellant
herein was tried summarily.
Under section
163 of the Act, a reference in
an enactment to an offence as a
summary offence, triable
summarily, or punishable
summarily, means that the
offence shall be tried in
accordance with this part.
Under section 164, this part
applies to the summary trial of
an offence by a District Court,
a Circuit Court or the High
Court.
“(1) where
the accused appears personally
or - - - - - - - - - - - - - -
- the substance of the charge
contained in the charge sheet or
complaint shall be stated and
explained to the accused or - -
- - - - - - - - - - - - - - -,
and the accused or counsel of
the accused shall be asked to
plead guilty or not guilty.” See
section 171 (1) of the Act.
171 (3)
states that –
“A plea of
guilty shall be recorded as
nearly as possible in the words
used or if there is an admission
of guilt by letter under section
70(1), the letter shall be
placed on the record and the
court shall convict the
accused and pass sentence or
make an order against the
accused unless there appears
to it sufficient cause to the
contrary.” (emphasis mine)
Reference to
section 199 (4) of the Act with
all due respect to his
Lordship was
wrong reference in a summary
trial.
Under section
171 (3) what the trial Judge was
legally bound to do was to have
recorded the plea as nearly as
possible in the words used so
that if there was any
explanation or words used which
rendered the plea of guilty
inconsistent with the words
added then the court was bound
to enter a plea of not guilty
and proceed to try the case.
Section 199
laid down the procedure before
the trial court in a trial on
indictment.
PLEA OF
GUILTY
199 (1)
“where the accused pleads guilty
to a charge, the court before
accepting the plea shall, if the
accused is not represented by
counsel, explain to the accused
the nature of the charge and the
procedure which follows the
acceptance of a plea of guilty.
(4) “ where
the accused pleads guilty but
adds words indicating that the
accused may have a defence or so
indicates in answer to the
court, the court shall enter a
plea of not guilty and record it
as having been entered by order
of the court.
I have had a
look at the cases of REPUBLIC
VRS BRIGHT [1974]2 GLR 12 and
FORSON VRS. THE REPUBLIC [1976]
1 GLR 138 at 146 referred to by
counsel for the Appellant.
In the Bright
case His Lordship Andoh J.
cautioned as follows:
“It is
imperative that ample care
should be taken by the tried
court to see that there should
be no ambiguity in the plea of
“guilty”. The trial court is to
make sure that the plea is not
imperfect or
unfinished; for in law, a
court ought not to take the
Accused to have admitted his
guilt unless he does so in
unmistakable terms.”
The case was
cited because of this caution
but counsel did not relate the
facts of the case to the present
case. In Bright’s case, the
plea of “guilty” was with
explanation which indicated that
the accused might have a defence
to the charge. Under the
circumstances the court’s
acceptance of the plea and
subsequent conviction of the
accused was wrong and in
contravention of s.173 (3) of
the procedure Act.
His Lordship
to whose court the accused was
sent to be committed for
sentencing was of the view that
the trial magistrate was wrong
in not entering a plea of not
guilty in view of the
explanation offered by the
accused.
In the case
of FORSON, the accused had
pleaded not guilty, tried and
convicted in two separate trials
arising out of the same facts
and circumstances.
In the second
trial, the trial magistrate
ordered that the evidence in the
first trial be adopted “since
the same evidence gave rise to
the second. This was done.
Judgment in both cases was
delivered on 12 August 1974 when
the accused was sentenced to a
fine of GH50.00 or Six months
imprisonment in the first trial
and, in the second trial to nine
months imprisonment on count 1
and 24 months imprisonment on
count 2.
On appeal
against his sentence which
cumulatively came to 30 months
imprisonment because of the
separate trials, the appellate
court suo motu concerned itself
with the validity of the
conviction in the second trial
because of the procedure of
adopting the evidence in the
first trial as evidence in the
second trial.
The court
presided over by Taylor J. (as
he then was) held that
“(2) The
conviction in the second trial
was a nullity and could not
support any sentence because the
procedure of adopting the
evidence in the first as
evidence in the second trial was
not justified by Act 30 or any
decided case or practice. The
procedure to be adopted in a
summary trial on a plea of not
guilty was provided in Act 30,
S. 172, which was mandatory and
made provision for the taking of
evidence and cross-examination
of witnesses.”
The
conviction was vitiated because
the procedure adopted offended
against section 172 which set
down the procedure on a plea of
not guilty in a summary trial.
I am unable
to appreciate the relevance of
this case to the instant case.
When on the second appearance of
the Appellant, she pleaded not
guilty, the court in compliance
with section 172 of the Act, set
down the case for trial and
proceeded to hear it.
When the
Appellant changed her plea of
“not guilty” to guilty, she
added no words which
necessitated a plea of “not
guilty” being entered by the
court for her.
I have
already stated that section
199(4) of the Act is not
applicable in summary trials.
This does not mean that in a
summary trial, the court’s duty
has been in any way lessened and
therefore justice demanded
lesser than in trials on
indictment.
If the plea
is recorded in as nearly as
possible in the words used and
it appears to the court that
there4 is sufficient cause for
which the plea of guilty should
not be accepted, then the court
will enter a plea of not guilty
for the accused.
The duty
being cast on a trial court to
pause for “judicial thought” and
inquire from the accused the
circumstances leading to the
sudden change of plea and record
his answers is not a legal duty
under the Act failure of which
must in all cases vitiate the
conviction.
I must admit
such an inquiry may be desirable
but not a necessity for non
compliance of it to vitiate a
conviction where having regard
to all the circumstances of the
case the appellate court finds
no justification in doing that.
In YEBOAH’S
case, His Lordship had this to
say:
“In all the
circumstance, I find and am
satisfied that the appellant did
not deliberately and
unequivocally plead “guilty” to
the charge of stealing.”
Indeed as
Denning J. (as he then was)
opined in MILLER VRS. MINISTER
OF PENSION [1947] 2 AER 372, the
court would fail in its duty to
assist in clamping down this
menace if it permitted such
technicalities to deflect the
course of Justice.
The
Appellant’s plea in this case
was unequivocal. From the record
one cannot say that the
Appellant, aged 21 and an
American National did not
appreciate the consequences of
the change of plea.
On the 1st
day of her appearance in court
without counsel, she refused to
plead to the charges because she
was unrepresented. On the day
that she entered her plea of not
guilty, she was in court with
her counsel.
On the next
appearance, counsel appeared for
all the accused persons and
pleaded for a short time to
reconsider their pleas.
On the next
adjourned date, counsel, who had
pleaded for adjournment for the
accused persons to consider
their plea appeared for only 1st
and 2nd accused
persons while another counsel
Effah Dartey appeared for the 3rd
accused person, Appellant,
herein.
The 1st
and 2nd accused
persons changed their plea to
guilty simpliciter in the
presence of their counsel and
were convicted on their plea and
sentenced to 10 years I.H.L.
At least from
that, the Appellant got to know
if she did not know before then
the consequences of a plea of
guilty.
After the
conviction of the 1st
and 2nd accused
persons, the Appellant’s case
was set down for trial.
On 23rd
day of February 2010, hearing
started and p.w. 1, a narcotic
control officer testified before
the court.
Significantly, this change of
plea was after the 1st
prosecution witness had
testified in court. To get what
he said in court, I wish to
reproduce his evidence verbatim
as follows:
“My name is
Timothy Abolimpo. I am a
narcotic officer stationed at
the Kotoka International
Airport. I know the accused
person. My Lord, on the 9th
of August 2009. I was on duty at
the Kotoka International Airport
with Felix Akolgo, Issaka and
others.
My Lord on
that day while passengers were
going through departure
formalities to board Delta
Flight from Accra to J. F. K. My
Lord, Marine and Akolgo took
some passengers and examined
them for drugs. My Lord the
accused person was one of them
and Marine took her to the
ladies room to examine her. My
Lord, she found drugs in her
shoes and then accused also
voluntarily brought out some
pellets of drugs from her
vagina. My Lords, we tested the
drug and it read positive for
heroin. My Lord, I handed her
over to the police investigator
at NACOB Headquarters Office.”
This piece of
evidence was given in the
presence of her counsel who took
time to cross-examine the
witness.
This is what
transpired under
cross-examination.
“Timothy to
be sincere to the court, you
were on duty at the Airport, you
didn’t examined (sic) the
accused person. So you have
nothing to say about her, you
don’t know anything.”
My Lord I
know something
What do you
know?
My Lord when
she was brought to me (sic) I
ordered for (sic) her to be
examined. I am not a lady so
the lady took her to the private
and brought me the report. So
it was Marine Issaka who after
examining her brought me the
report.
So the only
role you played was to order a
female officer to examine her?
Yes my Lord
and after examining her, I again
ordered that the substances be
tested in the presence of all.
And we ran the clarificates
(sic) on them which work
positive for heroin my Lord.
You are
relying solely on the report
given to you by your female
officer is that it?
My Lord, I
was a witness to everything that
happened. Expect (sic) the fact
that I did not go into the room
with her. The drugs were
brought, we all examined them
together and I ordered that they
should test them, they did the
test.
Timothy I
want you to accept the fact that
you have nothing to do with the
discovery of the substance on
her.
You were not
inside the room where the
examination took place?
No my Lord.
So you don’t
know or you know?
My Lord I
know.
My lord I
think I am flaring (sic) a dead
horse. I wont (sic) ask any
further question.
The court
then discharged the witness and
the case adjourned to 10/3/2010.
It was however not until 4/5/10
that the Appellant appeared
again in court and pleaded to
change her plea.
It is
significant to note that the
evidence that the substance was
found in her shoes and that she
voluntarily brought out some
pellets of the drug from her
vagina was not challenged by the
Appellant’s counsel who was then
in court.
With this
evidence, when the Appellant
appeared on 4/5/10 and changed
her plea I do not see the need
for the trial court to have
asked why the change of plea.
At least the evidence of p.w.1
if believed by the court is
sufficient to sustain the
conviction in line with the plea
of guilty.
Counsel’s
contention is that the Appellant
acted under a misapprehension
and that if the court had asked
her questions about whereabouts
of her counsel and why the
change of plea, the Appellant
would have told the court that
she knew nothing about the
charge just as she told the
police in her statement to the
police. Where is this statement?
Why did counsel not exhibit it
in this appeal?
I am
convinced that the Appellant who
would not plead to the charges
on her first appearance would
not take what somebody told her
to influence her to go to court
and change her plea without
consulting her counsel knowing
very well what follows after a
plea of guilty.
The Appellant
before the court on 4/5/10 did
not show that she did not
appreciate or understand the
charge or procedure and thus
pleaded guilty by mistake.
As much as
the constitution guarantees the
Appellant’s right to be
represented by counsel of her
choice, the same constitution
permits the accused to defend
herself before the court in
person. Art. 19(2) (f) of the
constitution states that:
“A person
charged with a criminal offence
shall be permitted to defend
himself before the court in
person or by a lawyer of his
choice.”
Where she
chooses to defend herself in
person that choice which is
completely hers should not be
“criminalized” and used under
such circumstances to derail the
course of Justice.
In the case
of REPUBLIC VRS HIGH COURT
KUMASI; EX-PARTE ATUMFUWA and
Another [2000] SCGLR 72, Acquah
JSC. (as he then was and now of
blessed memory had this too say:
“Our
procedure rules have gone a long
way in freeing this court from
the clutches of pointless
technicalities. The tendency
now, is to look at eh substance
of the case and ensure that
substantial Justice is done on
the merits within the four
corners of the procedural rules.
Of course, where parties and
their counsel exhibit deliberate
and reckless non-compliance of
the rules, sometimes with a view
to overreach their opponent’s,
the court’s discretion would not
be exercised in their favour - -
- - - -”
This case is
not on all fours with the
instant one but it goes to
support the fact that
technicalities such as the one
being urged on the court should
not be allowed to derail the
course of Justice.
Consequently
I am satisfied that on the facts
and especially having regard to
the evidence of p. w. 1, the
trial court committed no error
as, the Court of Appeal found
when it accepted the change of
plea of guilty and convicted the
Appellant accordingly without “pausing
for Judicial thought” and
explaining the consequences to
her.
This ground
of Appeal also fails and same is
dismissed.
On ground
(d), I am unable to appreciate
counsel’s submission on section
171 of the Act and thus attack
on the Court of Appeal that it
failed to consider the effects
of the section on the change of
plea of the Appellant in the
trial court.
Section 171
(3) does not deal with a plea of
“not guilty”. Rather, it is 171
(4) which states that “where the
plea is one of not guilty, the
court shall proceed to hear the
case.
171 (3)
provides for the procedure to be
followed on a plea of guilty but
not a plea of not guilty as
counsel has quoted in his
statement of case.
I am unable
to understand what counsel means
by the trial court “applying
reverse gears”, upon indication
by the Accused without counsel,
to change her plea.
The Appellant
is someone who knew what the
whole trial was about and was
very much aware of her rights.
On her first appearance without
counsel, she refused to plead to
the charges because she had no
counsel. The court in its duty
to afford the Appellant fair
trial in consonance with Article
19 (1) of the constitution,
adjourned the case.
When she
pleaded not guilty, the case was
set down for trial for the
prosecution to prove her guilt.
Under Art
19(2) (c), she was presumed
innocent until she changed her
plea and pleaded guilty on both
counts. When she indicated she
wanted to change her plea, the
charges were read over to her
again in a language she
understood and she pleaded
guilty to both of them.
Ground (e) of
the appeal without much ado
should and is hereby sustained.
The Court of
Appeal erred when it held that
the prosecution would have
amended the charge sheet if the
Appellant had not changed her
plea at the trial court.
The court was
of the view that even though the
particulars of offence stated
that the drugs carried was
cocaine, when p.w.1 testified
and stated that the drug carried
was heroine, the prosecution
should have amended the
particulars of offence in line
with p.w.1’s evidence, the
amendment could not be effected
because of the change of plea.
This view of
the Court of Appeal clearly is
not supported by any evidence
and same is based on
conjecture. If anything at all,
the defect i.e. that what the
Appellant carried was cocaine,
was remedied by the evidence of
p.w.1 and therefore that by
itself occasioned no miscarriage
of justice under section 406 of
the procedure Act, S. 406 (1)
(a) reads in part as follows:
“--------- no
finding, sentence, or order
passed by a court of competent
Jurisdiction shall 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 any
enquiry or any other proceedings
under this Act or unless such
error, omission, irregularity or
misdirection has in fact
occasioned a substantial
miscarriage or Justice.
Again under
section 31(2) of the courts Acts
of 1993, Act 459
“The
appellate court shall dismiss
the appeal if it considers that
a substantial miscarriage of
justice has not actually
occurred or that the point
raised in the appeal consists of
a technicality or procedural
error or a defect in the charge
or indictment but that there is
evidence to support the offence
alleged in the statement of
offence in the charge or
indictment or any other offence
of which the accused could have
been convicted on that charge or
indictment.”
Coming to the
last ground of appeal, that the
Court of Appeal erred when it
refused to follow a precedent
from the Supreme Court, it is
the contention of counsel that
the court of Appeal bound to
follow the decisions of the
Supreme court on questions of
law, erred when it refused to
follow the decision of the court
in the case of BONSU alias
BENJILO VRS THE REPUBLIC [2000]
SCGLR 112.
In this case,
the Appellant and four others
were charged with three drug
related offences including
unlawful possession of narcotic
drug contrary to section 2 (1)
of PNDC 236.
The 1st
and 5th accused
persons, Nigerians absconded and
were tried in absentia. All the
accused persons were convicted
of the three offences. They
appealed to the Court of Appeal
against their conviction for the
offence of unlawful possession
of heroin. The Court of Appeal
after making certain inferences
on the issue of possession and
knowledge of the contents of the
parcel by the accused, dismissed
the appeal.
On appeal to
the Supreme Court, one ground
was that the trial court had
erred in holding that on the
evidence the appellant has
possession of the parcel and
that there was sufficient
evidence to convict him of the
offence of possession of a
narcotic drug.
The court per
Atuguba J.S.C. listed the
essential ingredients of the
offence of possession of
narcotic drug contrary to
section 2 (1) of the Narcotic
Drugs (Control, Enforcement and
sanctions) Law of 1990 (PNDCL
236. This is what His Lordship
said “from the foregoing. I hold
that on a charge of possessing
of narcotic drug under PNDC
L236, the prosecution must prove
(1) custody or control of the
drug by the accused;
(ii)
knowledge of the presence of the
drug;
See WARNER
VRS METROPOLITAN COMMISSIONER,
R. V. BOYESON (supra) and AKOSA
VRS THE REPUBLIC [1979] GLR 250
and (iii) knowledge of the
nature and quality of drug
possessed I hasten to say that
proof of any of these
ingredients may be actual or
constructive - - - - - - -”
His Lordship
referred to cases of REPUBLIC
VRS MUNTALIA, WARNER VRS THE
REPUBLIC, AMARTEY VRS THE STATE
and Others.
It is
counsel’s submission that this
decision is binding on the Court
of Appeal.
However, the
particulars of the present case
did not state the nature and
quality of the drug that the
Appellant had in her possession
to start with except that there
is some insertion indicating the
quantity of cocaine.
He submitted
that the Appellant pleaded
guilty to possessing cocaine the
evidence of p.w.1 is that what
the Appellant had on her was
heroine.
Counsel then
contended that the nature and
quality of what the Appellant
held is missing from the charge
sheet and thus the Appellant
was not charged with what she
held but pleaded not (sic) to
what probably the two other
convicts held. At page 63 of the
record, the Court of Appeal on
this issue held as follows:
“It should
also be noted that the offence
creating section of the Narcotic
Drugs (control, enforcement and
sanction) Law PNDCL 236/1990
does not speak of cocaine or
heroin but Drugs. Since heroin
and cocaine are all drugs the
non amendment does not cause any
embarrassment or prejudice the
case of the accused and no
substantial miscarriage of
justice was occasioned there.”
I have
already dealt with this defect
when dealing with ground (c) of
the grounds of appeal together
with ground (a).
From the
record what the accused persons
had on them is stated as cocaine
but the evidence before the
court is that what the Appellant
had on her heroine.
What the
Appellant pleaded guilty to from
the record is not clear whether
it was possession of cocaine or
heroine since the change of plea
was after the evidence of p.w.1.
I will agree
with Acquaye J. A. that the
offence is possessing of
narcotic drug be it cocaine or
heroine and for that reason the
defect in the charge if stated
as cocaine occasioned no
miscarriage of justice and for
that reason the appeal will not
be allowed on that ground.
The charge
sheet from the record stated the
nature and quantity of the drug
held by the accused persons by
the insertion and the court is
bound by the record. When and
how the insertion was effected
for purposes of the appeal is
immaterial.
For this
reason, the case of Benjilo
becomes irrelevant and of no use
to the Appellant. This ground
of appeal also fails and same is
dismissed.
In the end,
the appeal fails on all grounds
except ground (e) and same is
hereby dismissed.
I feel I will
fail in my duty if I do not
comment on the reckless manner
in which the prosecution handled
the case in the court below.
How could the
charge sheet state that what the
accused persons carried was
cocaine when p.w.1 talked of
heroine? The Appellant could
have gotten away but for
sections 406 (1) (a) of the
criminal and (other offences)
procedure Act and of the courts
Act, Act 459.
The offence
of possessing narcotic drug as
stated under section 2 (1) is
without authority but not
without a license issued by the
Minister.
I have not
dealt with this in the judgment
because that was not raised in
the appeal. What is more the
particulars of the offence
correctly stated the offence and
that defect again did not
occasion any miscarriage of
justice which would have
vitiated the conviction.
(SGD) R. C. OWUSU (MS.)
JUSTICE OF THE SUPREME COURT
DOTSE JSC:
I have had
the honour and privilege to have
discussed the lead judgment just
delivered by my respected
Sister, Rose Owusu JSC. I have
also tried my best to understand
the reasons underpinning the
said decision but has been
unable to come to terms with it.
I am reluctantly compelled, to
come out with my reasons why I
cannot with respect subscribe to
the reasons behind the majority
and lead judgment.
In the first
place, it has to be noted that
this is not only the Supreme
Court, but is the Court of last
resort and a Constitutional
Court for that matter.
As a result,
I am of the view that this court
must always be very circumspect
in the decisions it delivers
especially when it has to do
with the curtailment of the
liberty of the individual.
It is
therefore not surprising that
the whole of chapter five of the
Constitution 1992 has been
devoted to securing the
enjoyment of fundamental human
rights and freedoms by the
citizenry. It is in this light
that I am of the opinion that
provisions contained in articles
12, through to 33 of the
Constitution 1992 can be said to
be the philosophical
underpinnings of the
Constitution 1992.
For example,
article 14 (2) of the
Constitution 1992 provides as
follows:-
“a person who
is arrested, restricted or
detained shall be informed
immediately in a language that
he understands, of the reasons
for his arrest, restriction or
detention and of his right to
a Lawyer of his choice.”
emphasis
My
understanding of this provision
is that, immediately a person is
arrested, restricted or detained
the arresting person or persons
shall do the following:
i.
Inform the suspect of the
reasons for his or her arrest,
restriction or detention.
ii.
This must be done in a language
he understands.
iii.
Thirdly, and by far the most
important, that the suspect is
entitled to the services of a
lawyer of his choice before he
starts talking to the arresting
officer or officers. This means
that, before commencing
investigations, the suspect must
be made aware of these rights.
The
achievement or attainment of the
above even though might prove
difficult is the path that Ghana
endorsed by the promulgation of
the Constitution 1992 and a
Court of law such as this
Supreme Court must be prepared
to hold these ideals strictly.
It is the
provisions of this article 14
(2) and those in articles 19 (2)
(c) (d) (e) and (f) of the
Constitution 1992 that has
informed my decision and resolve
to chart a different path from
the majority. What then are the
facts of this case?
On or about
the 9th of September,
2009 the appellant herein, an
American national, together with
two other persons, now convicts
were arrested at the Kotoka
international airport in the
Greater Accra Region for
attempting to export to the
United States of America, a
quantity of narcotic drug
without licence issued by the
Minister of Health. Appellant
and the other two persons were
arraigned before the High Court,
Accra, for trial. One charge
sheet was prepared recounting
the statement and particulars of
offence of all three persons.
It is relevant to note that on
the first day of trial, after
the charges were read and
explained to the three accused
persons, while the other persons
pleaded not guilty, the
appellant chose not to plead to
the charge, her reason being
that her lawyer was not present.
Subsequently, during the trial,
the appellant with her lawyer
present in court pleaded not
guilty to the two counts,
namely:
1.
Attempt to commit an offence of
exportation of narcotic drugs
without a licence issued by the
Minister for Health, contrary to
Sections 56(a) and 1(1) of the
Narcotic Drugs (Control,
Enforcement and Sanctions) Law
1990, (PNDCL 236); and
2.
Possession of narcotic drugs
without licence issued by the
Minister for Health contrary to
Section 2(1) of the Narcotic
Drugs (Control, Enforcement and
Sanctions) Law 1990 (PNDCL 236)
On the next
day of trial, the two other
accused persons therein changed
their “not guilty” pleas to
“guilty” and were convicted on
their own pleas. The trial judge
then proceeded to a full trial
of the appellant alone.
This he did
by taking evidence from the
Narcotic control officer, one
Timothy Abolimpo with subsequent
cross examination by counsel for
the appellant.
Very
surprisingly, while the trial
was ongoing, the appellant on a
later date, in the absence of
her counsel, informed the court
that she wanted to change her
plea. The court reread the
charges to her, after which
appellant changed her plea to
guilty, all in the absence of
her counsel. The court
thereafter proceeded to convict
her on her own plea of guilty
sentencing her to 10 years
imprisonment with hard labour on
both counts to run
concurrently. The court again
ordered that appellant be
deported after serving her
sentence.
Dissatisfied
with her conviction and
sentence, appellant
unsuccessfully appealed to the
Court of Appeal against her
conviction and sentence.
The Court of
Appeal dismissed appellant’s
appeal and confirmed the
conviction and sentence on the
basis, inter alia that there had
been no miscarriage of justice,
that the appellant reasonably
understood the charges read to
her and the consequences of her
guilty plea. It is against the
decision of the Court of Appeal
that the appellant now further
appeals to this court to set
aside her conviction and
sentence on the following
grounds of appeal:
GROUNDS OF
APPEAL
a.
The Court of Appeal erred in its
interpretation of Sections 110
and 112 of the Criminal
Procedure Code Act 30, 1960
b.
The Court of Appeal erred when
it held that the trial High
Court was right in accepting the
plea of the Appellant in the
absence of her counsel without
explaining the consequences to
the appellant.
c.
The Court of Appeal erred when
it held that the defect in the
charge sheet was not fatal
d.
The Court of Appeal erred when
it failed to consider the
effects of Section 171 of the
Criminal Procedure Code 1960,
Act 30 on the change in the plea
of the appellant at the trial
High Court.
e.
The Court of Appeal erred when
it held that the prosecution
would have amended the charge
sheet if the appellant had not
changed its plea at the trial
High Court when there was no
such evidence before the Court
of Appeal.
f.
The Court of Appeal erred when
it refused to follow a precedent
from the Supreme Court.
The main
issue I identify as running
through the grounds of appeal of
the appellant is whether the
intermittent errors and omission
from the time the appellant was
charged through to her
conviction were weighty enough
to occasion a miscarriage of
justice. I shall proceed to
discuss the grounds of appeal.
Grounds (b) and (d) which border
on the same issue, so I shall
leave them for the last and
discuss them jointly
Grounds A and
C
The Court
erred in its interpretation of
Sections 110 and 112 of the
Criminal and other Offences
Procedure Act 1960 Act 30.
The Court of
Appeal erred when it held that
the defect in the charge sheet
was not fatal.
In arguing
these two grounds, counsel for
appellant contends that a
reading of Sections 110 (1) (a)
in conjunction with Section
109(1) of Act 30 imposes a duty
on the prosecution to lay a
distinct charge or count for
every separate offence that a
person is accused of. Counsel
for the appellant vehemently
opposes the argument that
accused persons arrested in the
course of a joint illegal
venture may be prosecuted on the
same charge sheet under the same
count. Counsel for the appellant
quotes a paragraph of the
judgment of the Court of Appeal
to disagree with same, that:
“Since the
accused persons were said to
have arrived in the country
together on the same date and
were leaving together on the
same date with each carrying the
same narcotic drug(with
emphasis) in almost the same
manner we find nothing wrong
with their being charged jointly
for the same offence”
Upon a
careful reading of Sections 109
and 110, I cannot bring myself
to agree with counsel for the
appellant that, necessarily,
every accused person where such
person acts in consent with
others and they are charged on
the same facts, they must
nevertheless be charged by
distinct charge sheets and
counts. If that were to be the
case, there would not have been
the need for making Section
109(1) subject to subsection 2.
Besides, the use of ‘similar’ in
both Sections 109 and 110
suggests that in situations like
the appellant’s case, where the
charges can be established on
not only the same, but similar
(with emphasis) facts, then
there could be joinder of
charges and accused persons.
The intense
weight counsel for appellant
also gives to his argument
regarding Sections 109 and 110
is unexplainable looking at it
in the light of Section 110 (2)
which reads:
(2) A trial
shall not be invalidated by
reason only that two or more
persons have wrongly been tried
together on one complaint,
charge sheet or indictment
unless objection is made by any
of the accused persons at the
time or before the accused was
called upon to plead”.
This
provision was rightly quoted and
interpreted by learned Counsel
for the respondent that even if
appellant had been wrongly tried
with the other persons,
appellant cannot now be heard to
raise this objection. She should
have done so before or at the
time her plea was being taken.
Thus, the issue of misjoinder,
if any cannot now be heard at
the time of appeal.
See cases of
i.
Togbe Fiti v State [1965] GLR
33 where it was held on
appeal that it was counsel’s
duty to raise at the earliest
possible time the submission
that the charge was bad for
duplicity i.e. before the case
of the prosecution is closed. It
was thus held that where an
appeal had been based solely on
duplicity (in the middle of the
trial of the appellant) that
contention and objection would
not be allowed.
ii.
In Darkwa v The Republic
[1973] 1 GLR 431 it was held
that putting the words
“demanding” and “obtaining” in
the same count was bad for
duplicity but this was not fatal
to the prosecution’s case since
there had been no miscarriage of
justice.
iii.
See also the case of R v
Asiegbu 1937 WACA 142.
On the
strength of the above cases and
the combined effect of sections
109 and 110 (1) and (2) of the
Criminal and other offences
Procedure Act, 1960, Act 30, it
is clear that even though the
charge sheet is bad for
duplicity and was not drafted in
the best of terms, the
provisions of section 110 (2)
operate to nullify the type of
submission learned counsel for
appellant intends since no
substantial miscarriage of
justice has resulted thereby and
most importantly, the objection
to the charge sheet was not
taken timeously. I will
therefore dismiss grounds (a)
and (c) of the appeal.
Ground F
The Court of
Appeal erred when it refused to
follow a precedent from the
Supreme Court.
That the
Court of Appeal is bound by
decisions of the Supreme Court
is well established. See
articles 129 (1) and (2) of the
Constitution 1992. According to
Counsel for the appellant the
Supreme court in the case of
Bonsu alias Benjilo v The
Republic, SC GLR 112 listed
the essential ingredients of the
offence of possession of
narcotic drugs. Specifically,
counsel for the appellant quoted
my respected brother Atuguba JSC
as follows:
“From the
foregoing, I hold that on a
charge of possessing of narcotic
drug under PNDCL 236 the
prosecution must prove: (i)
custody or control of the drug
by the accused; (ii)
knowledge of the presence of the
drug;…and (iii) knowledge
of the nature and quality of
drug possessed. I hasten to
say that proof of any of these
ingredients may be actual or
constructive…”emphasis supplied.
Counsel for
the appellant argued that the
respondent failed to state the
nature and quality of the
narcotic drug the appellant was
accused of, and this omission,
by reason of the decision in
Benjilo is fatal as to
render the conviction and
sentencing a nullity which has
to be quashed.
Admittedly,
PNDCL 236 does not speak of
cocaine, but drugs, as the Court
of Appeal found.
However, with
the peculiar facts of this case,
where the appellant and the
other accused persons found
themselves in, whilst some
carried cocaine and appellant
carried heroin, and where also
they were charged jointly by the
same charge sheet, the best
practice would have been to
specify that the appellant
carried heroin and not cocaine
like the other accused persons
to avoid any embarrassment and
confusion to the appellant.
Besides, I am
drawn to the holding by my
respected learned brother
Atuguba JSC, that the
prosecution must prove those
ingredients (emphasis mine).
Proving here does not suggest
that, the prosecution must state
the nature and quality of the
drug possessed failing which the
court would consider that
omission so grave as to result
in quashing of a conviction and
sentence. The fact is that the
appellant had been found in
possession of a narcotic drug.
I am certain
that Section 112 of Act 30 and
the case of Hodgson v The
Republic [2009] SCGLR 642
is instructive on issues
concerning the disclosure of the
specific particular narcotic
drug on the charge sheet. As the
Court in Hodgson found,
what is relevant is that the
appellant knew the nature of the
offence he was being tried for.
Section 112 is quite elaborate
on these issues;
“112 (1)
Subject to the special rules as
to indictments mentioned in this
section, a charge, complaint,
summons, warrant or any other
document laid, issued or made
for the purpose of or in
connection with proceedings
before a Court for an offence
shall be sufficient if it
contains a statement of the
offence with which the accused
person is charged together with
the particulars necessary for
giving reasonable information as
the nature of the charge and
although there may be a rule of
law to the contrary it shall not
be necessary for it to contain
any further particulars other
than necessary particulars.”
Even prior to
completion of the trial due to
the U-turn plea the accused
made, evidence of PW1 gave
appellant reasonable information
as to the offence she was being
charged with. Ground (e) on the
issue of amending ‘cocaine’ to
read ‘heroine’ is partly
answered by Section 112 of Act
30 and the Hodgson case.
Ordinarily, I
would have considered these
lapses on the part of the
prosecution as serious enough to
merit the quashing of the
conviction and sentence. But
considering the evidence of PWI
the Narcotics Control Officer
when he testified that the
narcotic drug found on the
appellant was heroin at the time
that appellant had counsel in
court, any irregularity should
have been raised at that stage
or subsequently.
In view of my
opinion on the remaining grounds
of appeal on the change of plea
by appellant from not guilty to
guilty during the course of the
trial, it is my opinion that the
decision of the Court of Appeal
was not a refusal to follow a
binding Supreme Court decision.
This is
because if one considers the
evidence of PWI Timothy Abolimpo
which I have referred to, any
lapses or irregularities in
establishing the proof of the
narcotic substance found on the
appellant had been filled in by
the evidence. This ground of
appeal is also dismissed.
Grounds b and
d
The Court of
Appeal erred when it held that
the trial judge was right in
accepting the plea of the
Appellant without explaining the
consequences to the Appellant
“The Court of
Appeal erred when it failed to
consider the effects of section
171 of the Criminal Procedure
Act 30, 1960 on the change in
the plea of the Appellant at the
trial High Court”
The case
before the honourable court
presents a peculiar problem of
balancing the effect of an
irregularity as against
upholding strictly the liberty
of accused persons. The need to
uphold respect and uphold the
liberty of an accused person,
all in a bid to ensure that the
appellant is dealt with justly,
is without distinction a
necessity as it applies in
summary trials or trials by
indictment. Counsel for the
appellant makes strong argument
against the lack of careful
inquiry, as it were, by the
learned trial judge when
appellant made a U-turn plea of
guilty. S A Brobbey in his
invaluable book “Practice and
Procedure in the Trial Courts &
Tribunals of Ghana” lays it out
succinctly on situations where
an accused person suddenly
changes his plea from ‘not
guilty’ to ‘guilty’. He writes:
“It sometimes
happens that in the middle of a
trial or after some appearances
in court, an accused person
suddenly changes his plea from
not guilty to guilty with or
without explanation. It is the
duty of the magistrate or trial
panel in such a situation to
pause for “judicial thought” and
inquire from the accused the
circumstances leading to the
sudden change of plea and record
his answers…”
The present
case before us presents the very
situation envisaged by the
learned author. Even more, this
case presents a stronger
argument for the need for
“judicial thought”. This is an
accused person who at the first
day of trial refused to plead to
the charges read to her on the
basis that her lawyer was not
present. Then ironically in the
absence of her lawyer, this same
appellant changes her not guilty
plea to guilty. I am of the
opinion that the best practice
was for the judge to have been
placed on alert, and made
further enquiries as to the
sudden change of mind by the
appellant and in the absence of
her counsel.
Let me use
this occasion to urge our
prosecution team to adopt
practices, best practices, as
they are normally called,
especially when issues arise
that involve the respect for the
freedom of the accused persons.
Let me hasten to add that the
balance between over-indulgence
in technicalities and best
practices may not always be
simple. However, where these
technicalities can have dire
consequences on the freedom of
the accused persons, this should
enure to the benefit of the
accused person. In advocating
for best practices to be adopted
by the prosecution, I can
envisage examples like in this
case, the omission to state the
nature of the drug and the
joinder of accused persons (as I
have discussed already), which
are not so grave and weighty
enough to result in miscarriage
of justice, as against the
omission to enquire into the
appellants sudden decision to
change her plea in the absence
of her lawyer.
Let not a
broader interpretation than is
necessary be placed on Section
406 of Act 30. The limit should
be where such irregularity is so
grave and weighty as to unjustly
take away the liberty of an
accused person. As much as
possible, let the Republic
strive to adopt best practices
that will seek to respect the
freedom and liberty of an
accused person that are
enshrined in the Constitution
1992. After all, the Republic is
better placed and much resourced
to prove the guilt of the
accused and must do so humanly
possible without flouting well
laid principles bordering on the
protection of the liberty of the
accused. Does this practice I am
advocating for not share the
same reason behind the
well-known principle of “proving
the guilt of the accused person
beyond all reasonable doubt.”
Needless to
say, judges when they serve in
their capacity are judges not
just for the prosecution but to
all citizens alike including
accused persons, and so must be
slow to take away the freedom of
the accused person, more so in
situations like we have before
us. I am of the opinion that the
judge should have done more than
just re-read the charges to the
appellant and convict her on her
own plea. There is nothing on
record to show the reason for
the sudden change in plea. Who
knows what could have accounted
for the change in plea. Such
best practices, I am also sure
will eradicate most of the
unproven allegations like what
was being alluded to in the
present case that the appellant
had been told that if she
changed her plea the prosecutor
will go and see the judge in
‘chambers’ and beg for her. If
the judicial enquiry had been
made, which would have been in
open court, the reason will have
been evident, and any such
“begging in chamber” reasons may
have come up for the judge to
address accordingly.
I am fully
aware that in advocating for
these best practices, guilty
persons might be escaping the
course of justice as was done in
the case of Egbetowokpor v
Republic [1975] 1 GLR 485.
In answer to counter-arguments
by skeptics of the best
practices I am propounding the
dictum of the Court of Appeal in
the Egbetowokpor case is
suitable, that:
“We fully
appreciate that in view of the
result we have reached, guilty
persons may well be escaping
justice. If this be so, we
cannot but regret it. But our
duty is to do justice not
according to our own lights but
in accordance with the law as we
conceive it”
Indeed, it is
better for a hundred guilty
persons to walk away than for an
innocent person to be punished.
A similar
situation like this arose in the
U.S. Supreme Court Cases of
Miranda v Arizona 384, U.S 436
(1966) and Massiah v
United States, 377 U.S. 201
(1964).
FACTS IN THE
MIRANDA CASE
Ernesto
Miranda was arrested by the
Police on suspicion of a kidnap
and sexual assault. The victim
identified the suspect, Ernesto
Miranda at the Police station.
In accordance with U.S standard
operating procedures, the
suspect Miranda was taken into a
private interrogating room. The
suspect was not advised that he
is entitled to be represented by
a lawyer before he is
interrogated.
Two hours
later, the suspect signs a
confession. There was no
evidence that Miranda was
physically or mentally abused.
The confession statement
includes a statement that, the
suspect has “full knowledge of
his legal rights and
understanding that any statement
he makes may be used against
him.”
But on
appeal, the U.S Supreme Court
held that once Miranda was taken
into police custody and before
any interrogation could begin,
the Police had the
constitutional duty under the 5th
Amendment to advise him that he
had the right to refuse to
answer any questions and to be
represented by a lawyer, and if
Miranda chose to take advantage
of those rights, the Police
could not interrogate him in
anyway. The Supreme Court
further ruled that, and because
the Police failed to advise
Miranda of these rights now
known in the U.S as “Miranda
Rights”, before they
questioned him and obtained his
confession, Miranda’s conviction
was thrown out, just as other
convictions have been thrown out
for similar reasons since the
decision in Miranda had been
handed down by the U.S Supreme
Court.
See other
cases like
Harris v New
York 401 U.S 222 (1971)
decided by a vote of 5-4
majority, where the U.S. Supreme
Court per Warren Burger for the
stated that:
“while
Miranda can be read as
prohibiting the use of an
uncounseled statement for any
purpose, such a reading was
unnecessary to its logic and
thus not controlling”
Miranda case,
Burger noted was not a license
to use perjury with no risk of
being confronted with prior
inconsistent statements.
The rationale
of the decision of the Court can
be seen against the background
of the fact that the courts seem
to enforce the viewpoint that
since it might be easier and
quicker for law enforcement
authorities to solve a crime by
forcing a confession than it is
to solve an offence through
painstaking investigation,
particularly where the evidence
may be hard to come, by it is
better to expect that the law
enforcement agencies prove their
case without the testimony of
the suspects. This principle
which is the bedrock of English
law and is part of the common
law principles which both the
U.S and Ghana have enshrined in
their Constitutions.
For example,
the Fifth Amendment to the U.S.
Constitution commands that no
person “shall be compelled in
any criminal case to be a
witness against himself.”
On the other
hand, the Sixth Amendment to the
U.S. Constitution among other
rights, guarantee’s the right to
Counsel.
FACTS OF THE
MASSIAH CASE
The case of
Massiah v United States, already
referred to is a case in point,
where the court by a majority
vote of 6-3 held that a
defendant is entitled to the
right of his Counsel.
This was an
appeal where the U.S Sixth
Amendment which guarantees a
defendant the right to rely on
Counsel as the medium between
him and the investigating and
law enforcement agencies was
enforced and applied.
It should be
noted that, the rationale of the
Sixth Amendment is that, once
adversary proceedings have
begun, the government cannot by
pass the defendant’s lawyer and
deliberately elicit statements
from the defendant himself.
The facts in
the Massiah case are that, after
he had been indicted for federal
narcotics violations, Winston
Massiah, retained a lawyer pled
not guilty and was released on
bail. Jesse Colson, a
co-defendant who has also been
released on bail, invited
Massiah to discuss their pending
case in Colson’s car. Unknown to
Massiah, his Co-defendant had
become a federal agent and had
hidden recording gadgets in his
car. Their conversation was
broadcast to a nearby federal
agent.
As expected,
Massiah made several
incriminating statements. These
facts are different from a
typical confession or self
incriminating case as was
observed in Miranda v Arizona.
Nevertheless, a 6-3 majority
vote of the U.S Supreme Court
held that the defendants
statements could not be used
against him. The main important
feature of the decision was that
after adversary proceedings had
commenced against the defendant
and at a time when he was
entitled to a lawyer’s help
the government had deliberately
set out to elicit incriminating
statements from him in the
absence of Counsel. This the
court held, constituted a
violation of the defendant’s
Sixth Amendment right to
Counsel.
I wish to
emphasise here that I am by no
means by reference to these
cases seeking to import
wholesale, constitutional rights
and their applications of the
U.S. into this country. But it
is sufficient to take note that,
having embarked upon a
constitutional system of
government, then it behoves on
us as a nation to attempt to
practice it as best as we could
by drawing useful lessons from
the rich experience of countries
like the U.S who have practiced
it for well over 200 years. It
is in this light that I believe
we have fallen short of the best
practices which will enable us
as a country to rob shoulders
with the big brothers like U.S
and U.K.
Once an
individual, in this case the
appellant has evinced a clear
intention to rely and insist on
her right to Counsel, steps must
be taken to ensure that the
enjoyment of this right is not
curtailed and or abused.
The principle
in the Massiah case, referred to
supra was also applied by the
U.S Supreme Court with more
potent force in the following
case:
1.
Brewer v Williams 430 U.S 387
(1977) 178
In our
circumstances articles 14 (2)
already referred to supra and 19
(2) (c) (d) (e) and (f) of the
Constitution 1992 which provides
as follows:-
“A person charged with a
criminal offence shall:
(c) be
presumed to be innocent until he
is proved or has pleaded guilty
(d) be
informed immediately in a
language he understands, and in
detail of the nature of the
offence charged.
(e) be
given adequate time and
facilities for the preparation
of his defence.
(f)
be permitted to defend himself
before the court in person or by
a lawyer of his choice”
are all
provisions meant to protect the
sanctity of the liberty of the
individual facing criminal
prosecution. It is therefore
clear that the constitutional
provisions dealing with the
arrest, arraignment and trial of
persons suspected of having
committed crimes must follow a
certain pattern or procedure.
In the
instant case as stated many
times in this judgment, the
appellant has evinced a very
strong and clear intention to be
guided by a lawyer of her choice
from the very beginning of the
trial.
It should
have struck the learned trial
judge as odd, when only after
her insistence that she will not
even plead to the charges in the
absence of her lawyer, she
suddenly changes her not guilty
plea to a guilty plea.
What I deduce
from our constitutional
provisions in articles 14 (2)
and 19 (2) (c) (d) (e) and (f)
of the Constitution 1992 and the
Fifth Amendment of the U.S.
Constitution is that, every
person who is accused of having
committed a criminal offence has
the right and the power to
insist that the government
through its massive and coercive
organs of state prove the
accusations through real,
substantive evidence and that
every person is provided
safeguards, like a lawyer, and
an unbiased court, to resist the
oppressive conduct and might of
those in power when they want to
get at you.
In the light
of the above, it does appear to
me sufficiently that those
constitutional guarantees in our
Constitution 1992 have been
violated against the appellant
in so far as the learned trial
judge failed to make the
necessary enquiries to help
disabuse the minds of all and
sundry that the protections
afforded suspects in the
Constitution 1992 have not been
violated.
The vex
question which I have to answer
is, does this constitutional
breach, technical though it
might seem constitute a
substantial miscarriage of
justice such as would entitle
the appellant to an acquittal?
In the
Miranda case, even though the
confession upon which his
conviction was based was thrown
out, the Police re-assembled the
evidence, retried him and
Miranda was convicted.
In the
instant case, I observe from the
record that the appellant was
arrested at the Kotoka
International Airport, Accra on
the 9th of August,
2009. She was convicted on the 4th
day of May 2010 by the High
Court in the following terms:
“The accused
person is convicted on her own
plea of guilty to both counts of
the offence levelled against
her. She is sentenced to 10
years imprisonment on both
counts to run concurrently. The
sentences are to take effect
from the day of her arrest under
article 14 (6) of the 1992
Constitution of Ghana. The
authorities of Narcotics Control
Board are to return her
belongings to her. She should be
deported from the country after
serving her sentence.”
In view of
the fact that the appellant has
been in custody since 9th
August 2009 which is well over
two and half years, no useful
purpose will be served in
ordering a re-trial in this
case. Re-trials are ordered when
the appellant has not served a
substantial part of the
sentence. I consider the period
the appellant has served in
prison as substantial of the 10
years sentence. I will therefore
order that the appellant is
acquitted and discharged on
grounds (b) and (d) and she
should be released forthwith.
(SGD) J. V. M. DOTSE
JUSTICE
OF THE SUPREME COURT
ANIN YEBOAH, JSC
I had the opportunity of reading
beforehand all the opinions of
my esteemed colleagues. I am of
the opinion that the appeal be
dismissed.
I am of the view that all
criminal proceedings in common
law jurisdictions are regulated
by statutes. In Ghana, criminal
proceedings in both summary
trials and trials on indictments
are regulated by the Criminal
and Other Offences (Procedure)
Act, 1960 Act 30. Like my
sisters in the majority, I find
no provisions in the Act 30
which denied the appellant her
rights under the existing
constitution or any other law
for that matter. Care must be
taken not to import certain
rights on accused persons which
to me are not conferred by any
existing law into our criminal
procedure.
What my esteemed brothers in the
minority are advocating appears
to be a desirable requirement
but not a statutory requirement
which would lead to any
substantial miscarriage of
justice for us to quash the
conviction. I therefore vote
for the dismissal of the appeal
which to me is based on purely
technical point which is without
merits under the circumstances.
(SGD) ANIN YEBOAH
JUSTICE
OF THE SUPREME COURT
GBADEGBE JSC:
I have had the advantage of
reading the incisive opinion of
my worthy brother, Dotse JSC and
I agree entirely with him that
the instant appeal be allowed.
In view of the importance which
I think the point touching the
right to counsel for an accused
person raises for our
consideration, I wish to add a
few words of my own for coming
to the conclusion that the
appeal herein be allowed. The
right to counsel is provided for
in article 14.2 of the 1992
Constitution as follows:
“A
person who is arrested,
restricted or detained shall be
informed immediately, in a
language that he understands, of
the reasons for his arrest,
restriction or detention and of
his right to counsel or lawyer
of his own choice.”
This provision is one of the
fundamental human rights
contained in Chapter Five the
1992. In the opening article to
the said chapter of the
Constitution it is provided as
follows:
“The fundamental human rights
and freedoms enshrined in this
Chapter shall be respected and
upheld by the executive,
Legislature and Judiciary and
all other organs of government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the courts as provided for in
this Constitution.”
In my view, these are carefully
drafted words that were provided
for the protection of the rights
of citizens and indeed every
person within Ghana and place an
onerous responsibility in
particular on the Judiciary.
When this provision is read
together with article 14.2 of
the Constitution, it is quite
clear to say that the right to
counsel for an accused person is
of fundamental importance to our
criminal justice system. Within
the context of the 1992
Constitution, the right to
counsel is the central element
of our adversary criminal
system. A constitution sets out
in my opinion the values of any
society informed by historical
events and when as in this case
we, as a nation have made these
elaborate provisions as part of
our criminal justice system, it
behoves us all to do nothing
that might be seen as
undermining their efficacy and
accordingly it becomes a
valuable standard by which to
measure the essentials of
fairness in criminal
adjudication.
Although the right of a person
charged with a crime to counsel
may not be deemed fundamental
and essential to fair trials in
some countries having regard to
our constitution it is of
fundamental importance. In my
thinking, for a criminal trial
to have the approbation of
validity, it must satisfy due
process requirements. The
fundamental right to counsel
provided for in article 14.2 of
the Constitution in my view is
substantive in its nature and
not merely one of procedural due
process only. As it seems, the
right to counsel if not
knowingly waived should be
available to an accused in order
that the trial should not only
be fair but for the purpose of
upholding the integrity and
accuracy of the fact finding
process by which a conviction
might be reached with the
resultant deprivation of the
right to personal liberty, which
is also one of the fundamental
human rights provisions
contained in the 1992
Constitution. What this means is
that when there is a proven
violation of the right to
counsel, it like any other
breach of the Constitution by
article 2 .1 calls for the
intervention of the Supreme
Court in the exercise of its
enforcement jurisdiction by
making any order or such orders
that it considers fit under
article 2.2 to give effect to
the declaration of invalidity of
the act that might have been
done in breach of the right to
counsel as its breach impairs
fairness of the proceedings. It
is useful at this juncture to
refer once again to article 12.1
of the 1992 Constitution in
terms of the responsibility
that is placed on us as judges;
a responsibility that is
reasonably expected from all
persons within Ghana subject to
the Constitution to be
discharged in accordance with
the provisions of the
Constitution. See: Okorie v
The Republic [1974] 2 GLR 272
In my opinion, although this is
an appeal, we cannot close our
eyes to the provisions of
articles2.1 and 12.1 of the 1992
Constitution. In the event of a
breach of the fundamental right
to counsel, the court is enabled
to enforce the constitution by
taking cognisance of it to
invalidate the act that is
founded on its breach. Now, from
the record of appeal before us
in the matter herein, it is
undisputed that on the very
first day that the parties were
arraigned before the trial High
Court, the appellant herein
asserted her right to counsel
whereupon the court adjourned
the taking of her plea to the
charges that she was facing
along with others. At page 10 of
the record of appeal, the court
adjourned the taking of her plea
on all the counts. The record of
proceedings for the day
regarding the taking of her plea
is as follows:
“3rd accused says her lawyer is
not present so she will not
plead to the charge.”
Consequently, on the next
adjourned date of 23 November
2009, she pleaded to the charges
in the presence of her lawyer as
appears at page 11 of the record
of appeal before us. I think
that in granting the appellant
herein the opportunity to plead
to the charges only in the
presence of her counsel, the
learned trial judge was not
acting benevolently but properly
as this was within the right of
the appellant by virtue of
article 14.2 of the 1992
Constitution. In my view, if the
learned trial judge had not made
an accession to the said request
of the appellant regarding the
presence of her counsel, the
proceedings would have been
vitiated. Indeed that the
learned trial judge was aware of
his limitations to proceed in
the absence of counsel for the
accused persons is borne out by
the proceedings of 28 January
2010 at page 12 of the record
of appeal wherein the following
entry is made:
“ACCUSED COUNSEL: Pleading for a
short time to reconsider their
pleas.
By COURT: Case is adjourned to 3rd
February 2010.”
The record of appeal at page 14
discloses that indeed on the
next adjourned date of 23
February 2010, the pleas of the
1st and 2nd accused persons were
actually retracted in the
presence of counsel after the
charges had been read over and
explained to them. Based upon
their retraction, the learned
trial judge proceeded to convict
them and sentenced them to ten
years imprisonment. It is
interesting to observe that so
far the right to counsel that is
enshrined in the 1992
Constitution was respected by
the learned trial judge
regarding the presence of
counsel at the proceedings at
which the pleas were taken and
subsequently retracted.
As the appellant herein did not
retract her pleas of not guilty
to the charges, the trial of the
offences against her was
commenced on the same date as
appears at pages 15-18 of the
record of proceedings with the
further hearing adjourned to 10
March 2010. The record reveals
that although the matter was
adjourned to 10 March 2010, for
no reason apparent from the
record of proceedings the
further hearing of the matter
was continued on 4 May 2010.On
that date, the record of
proceedings at page 19 has the
following entry for the
proceedings of the day.
“Accused person present.
George K Ofori for the Republic
present.
Accused person informs the court
that she wants to change her
plea.
By COURT: The charges should be
re-read to her.
Charges read to the accused
person.
COUNT 1: Plea: Guilty.
COUNT 2: Plea: Guilty.
BY
COURT: The accused person is
convicted on her own plea of
guilty to both counts of the
offence levelled against her.
She is sentenced to 10 years
imprisonment on both counts to
run concurrently…..”
Within the context of the record
of proceedings that has been
previously referred to in the
course of this judgment, there
is a noticeable departure by the
court from what transpired at
the initial taking of the pleas
of the accused persons to the
charges and also when their
pleas were retracted or changed.
The previous proceedings were in
the presence of counsel but at
that date she did not effect any
change to her pleas.
In my thinking, having
previously adjourned the
proceedings in the presence of
counsel for the pleas of the
accused persons to be
reconsidered over a period of
one week, when in the absence of
her counsel, the appellant
indicated to the court that she
desired to have a change of her
plea, the learned trial judge
mindful of her assertion of the
right to counsel should have
paused to inquire from her where
her counsel was and whether she
desired to proceed with the
matter on her own. In my
opinion, there was the need for
the learned trial judge to have
made an inquiry regarding the
absence of counsel. If counsel
was absent but still acting in
the matter, I think this called
for a short adjournment to
enable counsel to be present in
court to give meaning to article
14.2 of the 1992 Constitution.
If, on the other hand, counsel
was no longer acting in the
matter and the appellant had
indicated her wish to act on her
own then in line with settled
judicial opinion in such matters
the court would have to advise
her of the consequences of a
change of plea from not guilty
to guilty.
It cannot be said having regard
to the learned trial judge’s
previous course of conduct
regarding the taking of the
pleas of the accused persons and
in particular, the appellant who
had by her indication on the
very first day of arraignment
asserted her constitutional
right to counsel that there was
a compliance by the court with
article 14.2 before the change
of plea was received on 4 May,
2010. In my opinion, any
reasonable person who was in
court from the first day of the
arraignment of the accused
persons would have thought that
the retraction of the plea in
the absence of counsel was not
fair. For myself, I think it was
odd indeed if an accused who
before then had insisted on
asserting the right to counsel
could lose that right without
the court making any inquiry to
establish if she desired now to
proceed on her own. This becomes
difficult to comprehend when
instead of the further hearing
being conducted on 10 March 2010
it was proceeded with long after
the said date on 4 May 2010.
Although section 199 of Act 30,
of the Criminal Procedure and
Other Offences (Procedure) Act,
which was referred to by the
appellant in her submissions to
us deals with trials on
indictment, it is observed that
the practice has crept into
summary trials such as to be
deemed to be part of the
existing practice in criminal
trials when there is a change of
plea by an unrepresented accused
person from not guilty to
guilty. It being so, beyond the
constitutional provision
contained in article 14.2 one
can say based on the practice of
our courts in such cases that
its violation is a good ground
for avoiding proceedings based
thereon. I do not think that our
courts can have different
standards depending on whether
or not a retraction of plea is
in a trial that is proceeding by
way of indictment or summarily
and accordingly the failure to
satisfy this statutory
requirement is fatal to the
conviction.
I am of the view that on the
date that the appellant
requested to retract her pleas
to the charge, the learned trial
judge did not afford her of the
protection provided by article
14.2 of the right to counsel in
criminal proceedings and that
the violation of this
fundamental right is sufficient
to invalidate the entire
proceedings founded thereon. It
is to be observed that
violations of provisions of the
constitution are grave matters
and once a court is satisfied
that there has been such an
infraction then the act which is
based on the said infraction
should be invalidated by the
court, there being no discretion
in the matter. For my part, the
point on which this decision
turns being one of
non-compliance with due process
requirements is not concerned
with the merits of the case
brought against the appellant
and it being so “the axe must
fall where it falls.” It does
appear to me that the right
provided in article 14.2 has not
been respected by our courts for
a considerable length of time
but that should neither give
legitimacy to it nor fetter our
enforcement jurisdiction in
preventing its further breach,
it being an act that is not
sanctioned by the Constitution.
I venture to say that beyond the
decision of the Court of Appeal
in the Okorie case
(supra) which was applied by
Taylor J (as he then was) in the
Republic v Akosa and Another
[1975] 2 GLR 406, when the
right to counsel was considered
one rarely comes across any
other previously decided case in
which the point came up for
decision within the scope of
this judgment regarding the
availability of the right to
accused persons in the
performance of their cases in
court before conviction is
entered against them.
It would appear to me from a
fair reading of the
constitutionally protected right
to counsel for an accused person
that its violation renders the
plea accepted involuntary and
consequently one that cannot be
the lawful basis of a conviction
in our criminal justice system.
The scope of the right to
counsel permits a plea to be
taken from an accused only in
the presence of counsel where as
in this case the appellant has
asserted her right to counsel
and not waived same. Judges must
recognise that once there has
been a violation of a
constitutionally protected right
then there is inherent in the
acts founded on the violation of
those right other factors might
come into play that cumulatively
have the effect of rendering the
guilty plea such as occurred in
the case herein unreliable and
indeed involuntary.
Before putting this matter to a
rest, I wish to say that in the
proceedings before the Court of
Appeal particularly at pages 2-3
of the record of appeal herein,
the appellant in her deposition
in support of her application
for extension of time to appeal
made reference in paragraphs
18-20 to some matters that in
my view were so grave that
though denied by they tended to
raise the issue of the
retraction of the pleas having
been induced by certain
representations that were
allegedly made to her. Perhaps,
an inquiry into them might
establish that they were not
true but in its absence one
cannot say that the retraction
of the pleas was voluntary .I
think article 14.2 of the 1992
Constitution is intended to
prevent the state taking
advantage of uncounselled
accused persons who might be
thought of as unable in the
absence of counsel to prepare
their cases. Our training as
lawyers is a special skill that
the constitution makers in their
wisdom think should be available
to persons who are accused of
crimes and we should uphold the
fundamental right so provided in
an effort to deepen
constitutionalism in this
country.
In my thinking even guilty
persons are entitled to be
advised of strategies for their
defence in the conduct of
criminal cases in the same way
as innocent persons and as such
the violation of this
fundamental right when properly
asserted must result insetting
aside any conviction that is
founded thereon. When people are
accused of crimes and going
through trials, the role of
counsel is of utmost importance
in ensuring that they are
properly advised in preparing
their defence and all the
options that are available to
them are explained to them to
ensure that the trial process is
fair and also to uphold the
integrity of the judicial
process by which their right to
personal liberty might be
curtailed following their
conviction. I am of the opinion
that the right to counsel for
accused persons if not respected
by our courts would render
article 14.2 a mere expression
of lofty principles that are
devoid of any substance. Such a
state of affairs would not only
be regrettable from the point of
view of our duty in terms of our
oath to “preserve, protect and
defend the Constitution” but
undermine the corollary duty of
our citizens to respect the
Constitution.
In the circumstances, the
appellant’s appeal to this court
on grounds that touch and
concern the violation of her
right to counsel is allowed.
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL
AUGUSTINE OBOUR FOR THE
APPELLANT
K. ASIAMAH-SAMPONG (PRINCIPAL
STATE ATTORNEY) FOR THE
RESPONDENT
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