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Criminal law - Robbery
- Sentence - Judicial
records - Wether or not the
Court commited serious error of
law for refusing to look at the
appeal against conviction -
Wether or not there was no
evidence to show that he
conspired with any other person
- Wether appellant’s inability,
through no fault of his, to
fully access the trial records,
for purposes of his appeal, is a
clear violation of his
constitutional right to fair
hearing - Whether or not it is
the appellant who causes the
loss or destruction of official
court proceedings-
HEADNOTES
On the 28th
of February, 2002, the Appellant
and one Billy who is at large,
were tried and convicted by the
Sunyani High Court of the
offences of conspiracy to commit
robbery to ss. 23 and 149, and
robbery contrary to s. 149 of
Act 29/60 and sentenced to life
imprisonment on each count to
run concurrently. Appellant
unsuccessfully appealed against
the sentence, on grounds of its
harshness and excessiveness, as
he contended, “given the
circumstances of the case”. He
however lost the appeal on the
jurisdictional ground that:
“…appellant committed this
offence in 2002. At that time
the minimum sentence for robbery
with small arms where there was
no death was life imprisonment.
Even though the law has such
been amended with regard to
sentencing, we do not have
jurisdiction to interfere with
the sentence lawfully imposed on
the appellant in 2002.”
HELD :-
The Respondent Counsel concedes that
the appellate court decided the
appeal wrongly, given that
contrary to the decision; it had
jurisdiction to interfere with
the sentence of life
imprisonment. Counsel thus urged
that given the loss of the
record, we bring this entire
matter to closure as it were, by
reducing the sentence. We
cannot however accede to this
request. The appellant has not
invited us to limit the appeal
to the sentence. He has invited
us to do something more
fundamental than this, that is,
examine the conviction in its
totality, an exercise this court
differently constituted, has
affirmatively ruled that he was
entitled to and thus deserves to
be heard in this regard. We
cannot truncate that order.
Attractive though this argument
sounds, we would be violating
our constitutional duty to do
right to all manner of persons,
if we adopted what in reality
appears to be the line of least
resistance. On balance, we think
the appellant having spent as
many as thirteen(13) years in
prison; believe justice would be
best served to both parties if
we granted him a conditional
discharge for a period of five
years during which period the
prosecution may prosecute the
case afresh when they are able
to trace the witnesses. The
appellant shall be entitled to a
complete discharge if not
prosecuted within the specified
five year period.
STATUTES REFERRED TO IN JUDGMENT
U.S. Code: Title
28-Judiciary and Judicial
Procedure Part V Chapter 115 -
Evidence; Documentary 1734
CASES REFERRED TO IN JUDGMENT
The criminal case
of the State of Wisconsin,
Plaintiff Respondent v. Joseph P
Defilipino, Defendant-
Appellant, No 2005 AP515 –CR,
decided August 2, 2005,
S v Siibelelwana
(A401/2011) [2012] ZAWCHC150 (3
August 2012
S v Van Standen
(105/2007)[2008] (2)SCAR, 626
S v Ntantiso and Others
1997 (2) SACR 302 (E)
S v Leslie 2000(1) SACR
347 (W) at 353 D-E)
The State v Nare
Benjamin Chokoe North Gauteng
High Court on 28th
March 2014
Benjamin Onganya &
Another v Republic [2013] eKLR
Joseph Maina
Kariuki v Republic; Criminal
Appeals Nos. 53&105 of 2004 EklR
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
WOOD
(MRS) CJ:-
COUNSEL
NKRABEAH EFFAH DARTEY ESQ.
FOR THE APPELLANT.
MARINA APPIAH OPARE ESQ.
(PRINCIPAL STATE ATTORNEY) FOR
THE REPUBLIC
WOOD (MRS) CJ:-
On the 28th
of February, 2002, the Appellant
and one Billy who is at large,
were tried and convicted by the
Sunyani High Court of the
offences of conspiracy to commit
robbery to ss. 23 and 149, and
robbery contrary to s. 149 of
Act 29/60 and sentenced to life
imprisonment on each count to
run concurrently. Appellant
unsuccessfully appealed against
the sentence, on grounds of its
harshness and excessiveness, as
he contended, “given the
circumstances of the case”. He
however lost the appeal on the
jurisdictional ground that:
“…appellant committed this
offence in 2002. At that time
the minimum sentence for robbery
with small arms where there was
no death was life imprisonment.
Even though the law has such
been amended with regard to
sentencing, we do not have
jurisdiction to interfere with
the sentence lawfully imposed on
the appellant in 2002.”
Dissatisfied, he has with
leave, this time around,
appealed the conviction on the
basis that:
1.
“The Court of Appeal made a
serious error of law for
refusing to look at the appeal
against conviction because:
a.
The Record of proceedings from
the High Court, Sunyani produced
by the Registrar was incomplete
due to the non-availability of
the other relevant records. The
Appellant, reeling under
irrevocable sentence of Life
imprisonment must not suffer as
a result of incompetence of the
Record of Proceedings.
b.
There was no evidence to show
that he conspired with any other
person.
c.
The trial Court failed to order
a MINI TRIAL to determine
admissibility or otherwise of
the alleged confession statement
of the Appellant – and this is
fatal to the subsequent
conviction.
d.
The trial Court failed to
investigate the defence of ALIBI
that was given right at the
onset of his arrest.”
Given the appellant’s
unfettered constitutional right
to use all legitimate avenues to
assert his legal rights,
we do not begrudge
him for challenging the
conviction, with the object of
having it stripped of
legitimacy, root and branch.
What we find objectionable is
the charge of dereliction of
duty leveled against the
appellate justices who heard his
appeal, when on his own clear
choosing, the appeal ground and
indeed the arguments marshalled
in support hereof were all
targeted at only the sentence.
Indeed, at the hearing, the
appellant did not, in the
slightest sense of the word,
impugn the validity of the
conviction. Contrarily, the
appeal grounds and the
supporting arguments thereof,
coupled with the record of
appeal the court was seized
with, relevantly, the summing up
and the very brief court
sentencing orders, negates the
charge of willful neglect.
Following the dismissal of
his appeal, the appellant first
applied to this honourable court
for extension of time to appeal
the decision. The motion which
was heard by a single justice of
this court was however denied.
Undaunted, he repeated the leave
application before a three judge
bench, pursuant to article 134
(a) of the 1992 Constitution.
The three judge panel, while in
agreement with the Court of
Appeal on the legality of the
sentence of life imprisonment,
nevertheless, on the strength of
his proposed appeal against
conviction, granted the motion.
The court reasoned that
although:
“...it is true that the
sentence cannot be
disturbed…whether or not it was
right in imposing the sentence
depends on whether or not the
conviction itself was
justifiable.”
In other words, this court
decided in the paramount
interest of justice that the
appellant be given the
opportunity to challenge,
albeit, for the first time on
appeal, the validity of the
conviction which forms the
sub-stratum of the sentence
earlier complained of.
At the first hearing of
the appeal, it became clearly
evident, to our utter chagrin
that a substantial segment of
the criminal trial record made
up of the entire testimonial
evidence of the nine prosecution
witnesses, as well as the
appellant’s, could not be
traced. How the coretrial
records could disappear from the
registry, leaving us with only
the non-essential segment; the
shell, so to speak, remains a
mystery. This has ultimately led
us to explore the frontiers of
our criminal jurisprudence on
lost or destroyed judicial
proceedings, with a view to
establishing the legal
principles governing this area
of the law, and placing same on
a sound footing.
Generally, the
responsibility for keeping court
records in safe and proper
custody and producing them on
demand rests on the Registrar of
the relevant court. The
guaranteed constitutional right
to a fair trial within a
reasonable time under article 19
(1) of the 1992 Constitution
ought to be generously and
purposively construed to include
a fair appeal hearing within a
reasonable time. This right, on
demand and subject to the
fulfillment of all necessary
legal and administrative
requirements, includes an
untrammelled access to the full
record of the trial proceedings.
We state this as the standard
rule, as clearly, this right may
be lost or curtailed through an
appellant’s own criminal
actions, the clearest example
being where an appellant
conspires with others to have
all his trial records
destroyed. But, an appellant’s
inability, through no fault of
his, to fully access the trial
records, for purposes of
obtaining a merit-based
determination of his appeal, is
a clear violation of his
constitutional right to fair
hearing. In this instant case,
the only available judicial
records were the statement of
offence, the facts of the case,
the bill of indictment, the
appellant’s cautioned
statements, the summing up and
the sentencing and consequential
orders of the trial court.
Counsel’s brief of legal
arguments emphasized the gross
injustice appellant stood to
suffer, on account of this
incomplete record. It was to
correct this anomaly, promote
justice and prevent a travesty
that, at the first hearing, we
made the following crucial
orders.
1.
“…The Registrar of the
Sunyani High Court produces
certified true copies of all
full records of proceedings in
this criminal matter within one
(1) month of today, with copies
having been served on all the
parties and this Court by the
said date,
2.
Failing which we order the
Registrar of the Court to file
an affidavit making full
disclosure on the whereabouts of
the record, by this said date,
i.e. a month from the date of
these orders.”
The verified terse
affidavit of Kofi Jacob Kumah,
the Registrar, reads:
1.
“That on 13th
January, 2015 that Honourable
Court at its sitting ordered me
to produce Certified True Copies
of the record of proceedings in
the above criminal case that was
decided in that court.
2.
That in spite of diligent
search conducted in this
registry, I could not trace the
record of proceeding or any part
thereof.
3.
Wherefore I make this oath
in compliance with the
Honourable Court’s order dated
13th January, 2015.”
Without subjecting the
paragraph 2 of the affidavit in
particular to any further
thorough enquiry, we proceeded
to determine the matter based on
the limited record at our
disposal. Admittedly, our
failure to fully interrogate the
circumstances leading to the
loss of the records and the
alleged genuinely diligent
search for its retrieval might
appear to have fallen short of
jurisprudential best practice,
but we justified this approach
in the context of this case.
In the final analysis, the
legal question we identified as
being pertinent for our
consideration is this. In a
criminal appeal against
conviction or sentence, what
judicial outcomes are open to an
appellate court seized with an
incomplete trial proceedings or
records, on account of all or a
significant segment of the trial
records being lost or completely
destroyed? Stated differently,
what reliefs is an appellant
entitled to? Does it exclude or
include a setting aside of the
decision, that is, an acquittal,
on the basis that the general
rule that an impugned decision
is prima facie correct until
otherwise declared, cannot be
made to apply under those
clearly defined circumstances
where the records, through no
fault of the appellant, are
irretrievably lost or destroyed?
are clearly vital to the
proper functioning of courts.
But these may be lost or
destroyed either through plain
burglary, or fire or some other
unfortunate natural calamity. In
this technological age, it may
also be lost through the
inability to recover electronic
data; that is recorded court
proceedings, or scanned
exhibits, from a crashed
computer. Thus, it is not only
against sound judicial policy,
but clearly impracticable to
prescribe a one- size- fit all
uniform conduct in matters of
lost or destroyed judicial
records, given the varying
circumstances of each case and
also the several related factors
that must legitimately influence
judicial decisions arising from
such incidents.
Thus, in cases of this
kind, the real challenge lies in
reconciling two competing
interests. These are firstly, an
appellant’s unfettered
constitutional right to a fair
hearing, as already noted, a
fair and just appeal hearing on
the merits within a reasonable
time, by direct access to the
trial record, in conformity with
the fundamental principle that
an appeal is a re-hearing; and
secondly, the overriding
constitutional duty of appellate
courts, indeed all courts, to
keep the streams of justice
pure; to protect it from
manipulation and abuse, and from
being overran by unscrupulous
persons acting in collusion with
dishonourable court officials to
pervert its course. Inevitably,
an appellate court faced with
this impasse has a duty to
ensure, on balance, that these
competing interests are
simultaneously realised.
The unavailability of
judicial precedent in this
unchartered area of our law made
it imperative that were sort to
foreign case- law to guide our
formulation of the relevant
legal principles. In this
regard, we commend Respondent
Counsel for her industry and
invaluable assistance to this
court, when compelled by the
novelty of this cause; we called
for fresh legal arguments on the
core issues raised.
It emerges from the
jurisprudence of foreign courts
that in some jurisdictions, the
law on lost or destroyed
judicial proceedings is
codified, while in others the
legal principles have developed
from case-law. But, invariably,
these principles conform largely
to those that obtain in the
statutorily controlled regimes.
We recommend that the Honourable
Attorney –General and the Rules
of Court Committee examine the
viability of providing the
necessary legislative framework
to govern the adjudication of
such cases in our jurisdiction.
Any such legislative
intervention, we propose, must
endeavour to achieve two broad
objectives. The embodying rules
must ensure clarity and
certainty, but, should not be so
restrictive as to limit the
court’s ability to adapt the law
to varying circumstances,
thereby hampering judicial
development.
We have chosen two
examples of codified principles,
from across the global economic
divide-The United States and The
Philippines-for our learning.
The first is the “U.S.
Code: Title 28-Judiciary and
Judicial Procedure Part V
Chapter 115 - Evidence;
Documentary 1734 – Court record
lost or destroyed” provides:
a.
“A lost or destroyed
record of any proceeding in any
court of the United States may
be supplied on application of
any interested party not at
fault, by substituting a copy
certified by the clerk of any
court in which an authentic copy
is lodged.
b.
Where a certified copy is
not available, any interested
person not at fault may file in
such court a verified
application for an order
establishing the lost or
destroyed record.
28 U. S. Code & 1735 – Court
record lost or destroyed where
United States interested,
provides that:
a.
When the record of any
case or matter in any court of
the United States to which the
United States is a party, is
lost or destroyed, a certified
copy of any official paper of a
United States attorney, United
States marshal or clerk or other
certifying or recording officer
of any such court, made pursuant
to law, on file in any
department or agency of the
United States and relating to
such case or matter, shall, on
being filed in the court to
which it relates, have the same
effect as an original paper
filed in such court…
b.
Whenever the United States
is interested in any lost or
destroyed records or files of a
court of the United States, the
clerk of such court and the
United States attorney for the
district shall take the steps
necessary to restore such
records or files, under the
direction of the judges of such
court.”
States within the US, such as
Wisconsin, Texas, Illinois
(Court Records Restoration Act
of Illinois (705 ILCS 85)
section 1) have similar
regulations.
Thus, Rule 34.6(f) of Texas
Rules of Appellate Procedure
provides:
“Reporter’s Record Lost or
Destroyed. An appellant is
entitled to a new trial under
the following circumstances:
(1)
If the appellant has
timely requested a reporter’s
record;
(2)
If, without the
appellant’s fault, a significant
exhibit or a significant portion
of the court reporter’s notes
and records has been lost or
destroyed or – if the
proceedings were electronically
recorded – a significant portion
of the recoding has been lost or
destroyed or is inaudible;
(3)
If the lost, destroyed, or
inaudible portion of the
reporter’s record or the lost or
destroyed exhibit, is necessary
to the appeal’s resolution; and
(4)
If the lost, destroyed or
inaudible portion of the
reporter’s record cannot be
replaced by agreement of the
parties, or the lost or
destroyed exhibit cannot be
replaced either by agreement of
the parties with a copy
determined by the trial court to
accurately duplicate with
reasonable certainty the
original exhibit.”
The criminal case of the State
of Wisconsin, Plaintiff
Respondent v. Joseph P
Defilipino, Defendant-
Appellant, No 2005 AP515 –CR,
decided August 2, 2005, on the
basis of the relevant
legislation, set out the
relevant factors that must
inform the court’s decisions.
Understandably, it emphasises
the necessity for the court to
ensure that a reconstructed
record adequately reflects what
actually occurred at the
hearing.
Act No. 3110 of The Philippines,
an Act To Provide an Adequate
Procedure For The Reconstitution
Of The Records Of Pending
Judicial Proceedings And Books,
Documents, And Files Of The
Register Of Deeds, Destroyed By
Fire Or Other Public Calamities,
And For Other Purposes
stipulates in part:
“Pending Criminal Actions
Sec. 13. Pending criminal
actions shall be reconstituted
by means of fiscal and the
counsel for the defendant or the
defendant himself, or certified
by them under oath as being
correct, and whatever cannot be
reconstituted in this manner
shall be reconstructed by, means
of the supplementary procedure,
provided for the reconstitution
of ordinary civil cases.
Sec. 14. The testimony of
witnesses, if any has already
been taken, shall be
reconstituted by means of an
authentic copy thereof or by a
new transcript of the
stenographic notes; but if it is
impossible to obtain an
authentic copy of the evidence
and if the stenographic notes
have been destroyed, the case
shall be heard anew as if it had
never been tried.
Sec. 15. If the case has already
been decided, the decision shall
be reconstituted by means of an
authentic copy. If an authentic
copy is not obtainable, the case
shall be decided anew, as if it
had never been decided.”
The jurisprudence of
countries without specific
statutory rules on lost or
destroyed judicial records such
as South Africa, Kenya and
Nigeria, provided us with the
necessary persuasive
authorities.
Weexamine the South
African legal position from
three cases. First, the case of
S v Siibelelwana (A401/2011)
[2012] ZAWCHC150 (3 August
2012), in which it was held
that:
“An accused is not ipso
facto entitled to his discharge
if the record or portions
thereof get lost. The best
possible evidence of the record
should rather be obtained and
information on what was
testified or said during the
trial should be sought from
every source that can make a
contribution. When the record of
the proceedings in the court a
quo is inadequate for a proper
consideration of the appeal,
both the state and the appellant
have a duty to try and
reconstruct the record.”
Second, is the criminal
case of S v Van Standen
(105/2007)[2008] (2)SCAR, 626.
This case dealt inter alia, with
an application for leave to
appeal against sentence, in
circumstances where the missing
record of the trial proceedings
could not be reconstructed. The
court expounded the law thus:
“Where an accused has the
right to appeal and a missing or
incomplete record makes it
impossible to consider and
adjudicate such appeal, the
conviction or sentence will
often be set aside… The mere
fact that the record of
proceedings might be lost or
incomplete would not, however,
automatically entitle an accused
to the setting aside of a
conviction or sentence. Such
relief will only be granted
where a valid and enforceable
right of appeal is frustrated by
the fact that the record is lost
or destroyed and cannot be
reconstructed (see SVK, supra,
at 192i-194b, S v Ntantiso and
Others 1997 (2) SACR 302 (E) and
S v Leslie 2000(1) SACR 347 (W)
at 353 D-E)
The court explained the
philosophy underlying the grant
of this relief thus:
“…the State is burdened
with the responsibility of
keeping proper record of trial
proceedings and that an
accused’s right to a fair trial
(and therefore also to the right
of appeal) should not be
frustrated by the State’s
failure to do so (see S Zondi,
supra, at 243i-244b and S v S195
(2) SACR420 (T) at 42b).
The more recent South
African case of The State v Nare
Benjamin Chokoe, decided by the
North Gauteng High Court on 28th
March 2014, a case in which the
court records were destroyed by
a tragic fire that ravaged the
court buildings, outlines the
influencing factors of the step
by step approach to the proper
judicial decision. The
principles may be summarised as
follows:
a. The court has a duty to “try
its level best to reconstruct
the record”;
b. The parties must agree to the
correctness or accuracy of the
reconstructed record;
c. The case is to be tried de
novo, if the parties are not in
agreement on the correctness of
the record and the areas of
disagreement are substantial and
relevant to a resolution of the
identified issues.
In the Kenyan case of
Benjamin Onganya & Another v
Republic [2013] eKLR, where the
appeal could not be heard
because the court records had
been officially destroyed, the
court again approved the
standard principles governing
lost records in these terms:
“In such as a situation as
this, the Court must try to hold
the scales of justice and in
doing so must consider all the
circumstances under which the
loss has occurred. Who
occasioned the loss of all the
files? Is the appellant
responsible? Should he benefit
from his own mischief and
illegality? In the final
analysis, the paramount
consideration must be whether
the order proposed to be made is
the one which serves the best
interest of justice. An
acquittal should not follow as a
matter of course where a file
has disappeared. After all a
person, like the appellant, has
lost the benefit of the
presumption of innocence given
to him by Section 77(2) (a) of
the Constitution he having been
convicted by a competent court
and on appeal the burden is on
him to show that the court which
convicted him did so in error.
Thus, the loss of the files and
proceedings may deprive him of
ability to discharge that
burden, but, it by no means
follows that he must of
necessity be treated as innocent
and automatically acquitted. The
interest of justice as a whole
be considered.”
Another Kenyan case;
Joseph Maina Kariuki v Republic;
Criminal Appeals Nos. 53&105 of
2004 EklRoffers persuasive
guidance on the relevant factors
that influence judicial
outcomes. In that case, the
appellate court in examining the
alternative of a trial de novo
observed on the peculiar facts
that:
“… the appellant could not
be kept in prison indefinitely
when it was possible for his
appeal to have been concluded
according to the law.”
The clearly distinct
jurisprudence which emerges from
a comparative analysis of the
governing principles in both the
statutory and non-statutory
jurisdictions alike is this. An
appellant is not automatically
entitled to an acquittal upon
the mere proof of lost or
destroyed trial proceedings. The
quantum or magnitude of the
missing record- lost or
destroyed- and its centrality to
the resolution of the appeal is
the first criterion that merits
attention. Thus, it is not every
missing part of a trial record
that would prejudice a merit-
based determination of an
appeal, but only that which is
vital to its fair, just and
conclusive determination. We
cite this example for purposes
of clarity. In an appeal against
sentence, where from the
available records, the clear
intention is for a plea for
mercy and compassion, or in the
case of an appeal based
exclusively on a pure question
of law, without recourse to the
proven facts of the case, the
absence of the full record of
the trial may not be fatal to
its fair and just determination.
Inarguably, an appeal against
conviction is more likely to
pose greater difficulty than one
against sentence, and which is
not predicated on any of the
proven facts of the case that
is, evidence led at the trial.
The cardinal principle is
that the law does not demand a
hundred percent perfect record
of proceedings, but such
adequate record that can answer
to the issues raised on appeal.
Adequacy of the record test is
therefore a question
determinable on the facts, by
reference to the grounds of
appeal; weighed against the
available record or
alternatively the lost or
destroyed record. The Texas
criminal appeal case of James
Robert Vasquez v The State of
Texas the tenth Court of Appeals
in its opinion delivered on 21st
September, 2011 underscores the
importance of a clear and
conclusive resolution of this
essential fact.
Where it is proven that
the missing record is material
to the determination of the
appeal, the next important task
is for the court to determine
the viability of a
reconstruction of the lost
record. This could be on
application of either party or
by the court acting on its own
motion. But since the whole
theory of reconstruction is to
reproduce the lost or destroyed
proceedings; it is subject to
other factors.
First, it must be evident
that the applicant is not at
fault, that is, responsible or
blamable for the loss or
destruction. It is thus
absolutely inconceivable for an
appellant who causes the loss or
destruction of official court
proceedings, to be permitted to
profit by his crime. To the
contrary, not only would this
fact weigh against
reconstruction let alone a
setting aside of the conviction
or sentence, but additionally,
the State ought to exact the
severest sanction permitted
under the law for such crimes.
The sound policy reasoning
that persons who escape from
lawful custody, on being
captured, deserves to be tried
and punished for the offence of
escaping from lawful custody, is
that which justifies this
argument to serve as a deterrent
to others. We think such obvious
cases justifiably call for a
striking off the appeal on the
basis that it cannot be disposed
of without the proceedings.
The second factor is
whether or not the appellant’s
request for the record was
timely; making reconstruction a
feasible option. If not,
depending on the nature of the
offence and availability of
witnesses, a re-trial might be
the more appropriate decision.
Third, the availability of
the best contemporaneous and
most reliable material from
credible sourcesis a key factor.
In the South African case of the
State v Nare Benjamin Chokoe,
(supra), a decision of the North
Gauteng High Court, dated the 28th
March 2014, however, the court
observed that the State
prosecutor and the Defence
Attorney could reconstruct from
their notes taken at the trial.
Clearly, given such critical
factors as memory loss,
reconstruction based simply on
the recollection of parties,
counsel, court officers or even
judges, without any
corroborative documents or
notes, ought not to be
encouraged. Also, the viability
of the reconstruction option
rests inter alia on the length
and the straight forwardness of
the trial and proceedings. Thus,
notes taken at uncomplicated
guilty plea hearings are more
likely to be authentic than
those purportedly recorded
during a lengthy and complex
trials.
Fourth, whatever materials
are used to reconstruct, the
parties are entitled as of right
to scrutinise the reconstituted
record and agree on its accuracy
or correctness. In the final
analysis, the responsibility
rests on the court to ensure
with reasonable certainty (Texas
Rules Of Appellate Procedure) or
beyond reasonable doubt ((State
of Wisconsin, Plaintiff
Respondent v. Joseph P
Defilipino, Defendant-
Appellant, No 2005 AP515 –CR)
(supra) the authenticity of the
reconstructed segment.
Where reconstruction is
neither feasible nor possible,
the court should consider a
re-trial. Again, this is
dependent on other criteria,
with sound prudential and legal
reasons being central to the
court’s final decision. The
critical known factors include
the availability of witnesses,
the nature, seriousness or
complexity of the offence, and
time spent by the appellant in
custody, if any.
We would adopt the
enlightened approaches that
consistently run through the
decisions of the jurisdictions
we have referred to and state
the following as the general
rule. The first fundamental
principle is that an appellant
is not entitled to an acquittal
on the mere basis of the loss or
destruction of the judicial
records, notably, trial
proceedings.
An allegation that court
proceedings are lost or
destroyed require investigations
into three important areas, the
veracity of the claim, the
quantum or magnitude of the
lost, missing or destroyed
record and its relevance to the
determination of the appeal in
question.
Next, what or who caused
the loss or destruction? Who
stands to benefit? Depending on
the finding, a reconstruction
may be ordered from a variety of
sources depending on the
availability of contemporaneous
and reliable material from which
to reconstruct, with the
parties, their counsel and
finally the court being
satisfied beyond reasonable
doubt about the accuracy of the
reconstructed record.
If appellant is not
blamable for the loss or
destruction, or if
reconstruction is impossible,
then a retrial may, depending on
the circumstances, be ordered
and genuine efforts made to
trace the witnesses.
In the event of the
prosecution’s clear inability to
secure witnesses, the ultimate
order of conditional or
unconditional discharge must
inure to the benefit of an
innocent appellant. But this
extreme order must be made
sparingly. It must apply in
those exceptional cases, where
the evidence points beyond
reasonable doubt to the
innocence of the appellant in
relation to the missing records,
the nature of the offence the
appellant was charged with and
the length of time spent in
custody, etc.
In all this,
accountability principles ought
to be rigorously enforced, for
all persons, officers, etc.
found culpable for the loss or
destruction appropriately being
sanctioned, in order to preserve
the integrity of the criminal
justice system and save it from
total collapse. But, we would at
the same time, strongly advocate
the adoption of safe and secure
recording and archival systems
for court records.
In this instant case, we
are minded, as a first step, to
opt for his conditional
discharge, rather than his
re-trial on account of the
following.
Firstly, we have no
evidence that he is blamable for
the loss, which loss, from the
antecedents of this case, we
discover, was in existence at
the Court of Appeal stage.
Certainly, we thought, if he
colluded with others while in
custody to have the records
destroyed, would he not have
taken steps to benefit from this
almost immediately? Why would he
continue to languish in prison
for another couple of years
before proceeding to the Supreme
Court for relief? But we also
recognise that he was dilatory
and did not act timeously to
apply for the record of appeal.
He did so ten years into his
conviction, by which date the
records could not be traced.
Secondly, it is extremely
doubtful that the trial judge,
the jury, as well as the
prosecution and the defence kept
reliable written notes of the
evidence tendered in court or
has recorded material which we
can use to reconstruct the lost
evidence of the nine witnesses
who testified at the jury trial
over a decade ago. We also doubt
if the contemporaneity test can
even be satisfied. Thus, the
quantum of lost evidence and the
other critical factors make
reconstruction a clear
impossibility.
We examine the grounds of
appeal in the light of the
available record of appeal and
we discover that the lost record
is most relevant to a fair and
conclusive determination of this
appeal.
The appellant proposes to
demonstrate that no evidence was
led in proof of the charges. He
questions the court’s failure to
hold a mini trial to determine
the voluntariness and a fortiori
the admissibility of the alleged
confession statement. Again, he
accuses the trial judge of
failing adequately to consider
his plea of alibi. Pertinently,
what evidence did the
prosecution lead in proof of his
active participation in the
crimes alleged? How did the
witnesses fare under
cross-examination, if any? Only
the trial proceedings could
assist this court to resolve
these substantive issues. In
law, neither the bill of
indictment nor the judge’s
summing up notes could provide
satisfactory answers to
challenges to factual findings
raised on appeal. The point is
that an even well-reasoned court
judgment embodying factual
findings resolved in the context
of evidence led at a trial, is
not in itself conclusive proof
of the correctness or otherwise
of those findings when they are
impugned. It is the hard
evidence received at the trial
that an appellate court uses to
determine the correctness or
otherwise of those findings.
This is what makes the record at
our disposal, with the summing
up being that which bears even
the closest affinity or
resemblance to a judgment,
wholly inadequate for a fair
resolution of this appeal.
The Respondent Counsel
concedes that the appellate
court decided the appeal
wrongly, given that contrary to
the decision; it had
jurisdiction to interfere with
the sentence of life
imprisonment. Counsel thus urged
that given the loss of the
record, we bring this entire
matter to closure as it were, by
reducing the sentence. We
cannot however accede to this
request. The appellant has not
invited us to limit the appeal
to the sentence. He has invited
us to do something more
fundamental than this, that is,
examine the conviction in its
totality, an exercise this court
differently constituted, has
affirmatively ruled that he was
entitled to and thus deserves to
be heard in this regard. We
cannot truncate that order.
Attractive though this argument
sounds, we would be violating
our constitutional duty to do
right to all manner of persons,
if we adopted what in reality
appears to be the line of least
resistance.
On balance, we think the
appellant having spent as many
as thirteen(13) years in prison;
believe justice would be best
served to both parties if we
granted him a conditional
discharge for a period of five
years during which period the
prosecution may prosecute the
case afresh when they are able
to trace the witnesses. The
appellant shall be entitled to a
complete discharge if not
prosecuted within the specified
five year period.
(SGD) G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD)
V. J. M. DOTSE
JUSTICE OF THE
SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE
SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE
SUPREME COURT
COUNSEL
NKRABEAH EFFAH DARTEY ESQ.
FOR THE APPELLANT.
MARINA APPIAH OPARE ESQ.
(PRINCIPAL STATE ATTORNEY) FOR
THE REPUBLIC.
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