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Criminal law - Armed robbery -
Act 29/60 - Missing Court
documents - Whether competent to hear the appeal with the record available. - Whether
or not the lost or destroyed
record of proceedings
constitutes a material or
significant part of the record
of proceedings - Whether
sentence was harsh and excessive
in the circumstance
HEADNOTES
On the 5th of June,
2004 at about 1.30 a.m. some
armed men attacked the lodgers,
at Richland Hotel in
Dunkwa-on-Offin with weapons of
guns and a cutlass and took away
their clothings, mobile phones
and various sums of money in
dollars and local currency. On a
tip off, Kwame Nkrumah @ Taste
[the Appellant] and two others
were arrested. They were
identified by some of the
victims through identification
parades. They were subsequently
charged and tried, at the High
Court, Cape Coast, presided over
by Nana Gyamera-Tawiah J. On 28
July 2005 they were convicted on
the charges of conspiracy to rob
and robbery and each of them
were sentenced to a term of 20
years on conspiracy and a term
of 45 years IHL on two counts of
robbery; the three sentences
were to run concurrently Six
years after the conviction, the
Appellant appealed against his
conviction and sentence, upon
leave granted by the Court of
Appeal on 1/2/2011. The appeal
was assigned to Augustines Obuor
Esq. by the Court Appeal.
Counsel noticed that the record
of proceedings was incomplete
The registrar of the trial court
was ordered to rectify the
record but was unable to do so
with the explanation that : “I
have been informed by the Court
Clerk of the late Justice Nana
Gyamera-Tawiah that after he had
delivered a lot of judgments he
took away some record books,
Counsel therefore filed
additional grounds of appeal
contending that the Court of
Appeal could not hear the appeal
without a full record of
proceedings and requested for
the acquittal and discharge of
the Appellant -
HELD :-
We would therefore advocate a
scheme of sentence where the
length of the sentence, whist
being commensurate to an extent
with the gravity of the crime
and revulsion which law-abiding
citizens feel towards the crime,
will be such that, the peers and
younger persons of society will
have an opportunity to observe
the life of the convict after
his release and hopefully be
deterred thereby.
The Court went on to reduce the
sentence from 65 years to 30
years. In adopting the same
sentiments we will allow the
appeal against sentence on the
two counts of robbery. We would
leave undisturbed the 20 years
sentence for the conspiracy
charge.
We would accordingly substitute
a sentence of 30 years on each
count in place of the 45 years
in respect of the two counts of
robbery contrary to section 149
of the Criminal and Other
Offences Act, 1960, (Act 29).
The sentences are to run
concurrently To conclude, the
appeal against conviction fails
in its entirety, while the
appeal against sentence succeeds
by the substitution of the
sentence of 45 to 30 years’
imprisonment with hard labour in
respect of the two counts of
robbery to run concurrently.
STATUTES REFERRED TO IN JUDGMENT
Criminal and Other Offences
Act, 1960, (Act 29). Act
29- section149
CASES REFERRED TO IN JUDGMENT
John Bonuah @Eric Blay v The
Republic Criminal Appeal No.
J3/1/2015, 9thJuly,
2015,
unreported
S v Siibelelwana (A401/2011)
[2012] ZAWCHC150 (3 August
2012);
S v Van Standen (105/2007)[2008]
(2)SCAR, 626
The State v Nare Benjamin Chokoe, decided
by the North Gauteng High Court
on 28th March 2014.
Benjamin Onganya & Another v
Republic [2013]EKLR (Kenyan)
Joseph MainaKariuki v Republic;
Criminal Appeals Nos. 53&105 of
2004 EKLR (Kenyan)
Behome v Republic [1979] GLR
112, Frimpong alias Iboman v The
Republic [2012] 1SCGLR 297.
Gligah v Republic [2010] SGCLR
870
Kwashie v The Republic [1971]1
GLR 488,
Adu-Boahene v The Republic
[1972]1 GLR 70,
Kamil v The Republic [2011]
SCGLR 300
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
ADINYIRA (MRS), JSC:-
COUNSEL.
AUGUSTINE OBOUR FOR THE
APPELLANT.
EVELYN KEELSON, CHIEF STATE
ATTORNEY FOR THE RESPONDENT.
_____________________________________________________________
J U D G M E N T
ADINYIRA (MRS), JSC:-
Facts and Procedure
My Lords, permit me to start my judgment with this preface on loss
or destruction of judicial
records:
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.
Per Wood CJ
in John Bonuah @Eric Blay v The
Republic Criminal Appeal No.
J3/1/2015, 9th July,
2015, unreported
On the 5th of June, 2004 at about 1.30 a.m. some armed
men attacked the lodgers, at
Richland Hotel in
Dunkwa-on-Offin with weapons of
guns and a cutlass and took away
their clothings, mobile phones
and various sums of money in
dollars and local currency. On a
tip off, Kwame Nkrumah @ Taste
[the Appellant] and two others
were arrested. They were
identified by some of the
victims through identification
parades.
They were subsequently charged and tried, at the High Court, Cape
Coast, presided over by Nana
Gyamera-Tawiah J. On 28 July
2005 they were convicted on the
charges of conspiracy to rob and
robbery and each of them were
sentenced to a term of 20 years
on conspiracy and a term of 45
years IHL on two counts of
robbery; the three sentences
were to run concurrently
Six years after the conviction, the Appellant appealed against his
conviction and sentence, upon
leave granted by the Court of
Appeal on 1/2/2011. The appeal
was assigned to Augustines Obuor
Esq. by the Court Appeal.
Counsel noticed that the record
of proceedings was incomplete.
The charge sheet, caution
statement of the Appellant,
which the Appellant relied upon
during trial, and the reasoned
judgment of the trial court were
missing.
The registrar of the trial court was ordered to rectify the record
but was unable to do so with the
explanation that : “I have been
informed by the Court Clerk of
the late Justice Nana
Gyamera-Tawiah that after he had
delivered a lot of judgments he
took away some record books,
judgments and proceedings. The
Court therefore finds it
difficult to lay hands on a lot
of his records required for.”
Counsel therefore filed additional grounds of appeal contending
that the Court of Appeal could
not hear the appeal without a
full record of proceedings and
requested for the acquittal and
discharge of the Appellant.
The Court of Appeal nevertheless decided that it is competent to
hear the appeal with the record
available. After examining the
record available, the Court of
Appeal dismissed the appeal and
affirmed both the conviction and
sentence.
The Appellant then filed an appeal before the Supreme Court on ten
grounds, which are set out as
follows:
1.
That the Court
of Appeal erred when their
lordships affirmed the
conviction without the full
record of proceedings
2.
That the Court
of Appeal erred when their
lordships affirmed the sentence.
3.
The Court of
Appeal erred when their
lordships inferred the story of
the Appellant from the cross
examination
4.
The Court of
Appeal erred when their
lordships preferred the
testimonies of the prosecution
witnesses to none from the
Appellant
5.
The Court of
Appeal erred when their
lordships affirmed both the
conviction and sentence without
charge sheet, full judgment and
caution statement
6.
The Court of
Appeal erred when their
lordships failed to consider the
issue of alibi raised by the
Appellant
7.
That the Court
of Appeal erred when their
lordships failed to consider the
issue of material witness raised
by the Appellant
8.
The Court of
Appeal erred by affirming both
the conviction and sentence
imposed on the Appellant without
assessing the reasons by the
trial High Court
9.
Whether or not
the lost or destroyed record of
proceedings constitutes a
material or significant part of
the record of proceedings.
10.
The sentence
is harsh and excessive in the
circumstance of the case.
The grounds of appeal are inter related and they can be considered
under three main heads (a) the
missing part of the record
covering grounds 1,2,3,5,8
and 9 of appeal, (b) the
evidence before the trial court
covering grounds 4, 6 and 7 and
(c) ground 10 on sentence.
Consideration of the Grounds of Appeal
(a)The Missing Part of the
Record of Appeal
The main argument of Counsel in this appeal is that the Court of
Appeal in the absence of the
full record of proceedings ought
to have set aside the conviction
and sentence of the appellant
and acquit and discharge him.
The Chief State Attorney, Evelyn D. Keelson, Esq. argues that the
submission by Counsel for the
Appellant was flawed and has no
basis in law. She drew the
Court’s attention to the recent
Supreme Court decision of
John Bonuah @Eric Blay v The
Republic Criminal Appeal No.
J3/1/2015, 9th July,
2015, unreported.
We recall that the Supreme Court, in the Bonuah case
supra was faced with a
similar situation, and Wood CJ
remarked:
“The
unavailability of judicial
precedent in this unchartered
area of our law made it
imperative that we resort to
foreign case- law to guide our
formulation of the relevant
legal principles.
…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.”
The Supreme Court proceeded to review statutes of jurisdictions
such as the USA and the
Philippines, where the law on
lost or destroyed judicial
proceedings is codified. The
Court similarly looked at
jurisdictions and where the
legal principles have developed
from case-law as in South
Africa, Kenya and Nigeria.
The Court examined the South African legal position from three
cases S v Siibelelwana
(A401/2011) [2012] ZAWCHC150 (3
August 2012); S v Van Standen
(105/2007)[2008] (2)SCAR, 626
and The State v Nare
Benjamin Chokoe, decided by
the North Gauteng High Court
on 28th March 2014.
The Court also looked at the Kenyan cases of Benjamin Onganya &
Another v Republic [2013]EKLR
and Joseph MainaKariuki v
Republic; Criminal Appeals Nos.
53&105 of 2004 EKLR
The Supreme Court held in its judgment per Wood JSC proffered this
opinion:
“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
[ Emphasis
supplied]
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”
We will conveniently summarise
the relevant factors that must
inform 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:
1.
An Appellant shall not be
at fault, responsible or
blamable for the loss or
destruction
2.
An appellant is not
automatically entitled to an
acquittal upon the mere proof of
lost or destroyed trial
proceedings
3.
The quantum or magnitude
of the missing record- lost or
destroyed- and its relevance to
the appeal in question shall be
determined by the court
4.
Where it is proven that
the missing record is material
to the determination of the
appeal it is for the court to
determine the viability of a
reconstruction of the lost
record
5.
Where reconstruction is
impossible then a retrial may be
ordered depending on the
circumstances such as the nature
of the offence and the length of
time spent in custody
In the
Bonuah case supra the
entire record was missing with
no fault attributed to the
Appellant and since a
reconstruction of the record was
not possible, the Supreme Court
granted a conditional discharge
of the Appellant for a period of
five years during which 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.
We acknowledge
the appellant’s unfettered
constitutional right of appeal
and the right to a fair and just
appeal hearing on the merits, by
direct access to the trial
record. In the instant case
there is no evidence of
collusion however, but on the
principles enunciated above, the
Appellant is not entitled to
automatic acquittal.
We have
examined the available record
and we find a certified true
copy of the day to day
proceedings of the trial
obviously obtained from the
record book; starting with
hearing from the taking of the
plea of the Appellant and the
other two accomplices, the
evidence in chief and
cross-examination of the
prosecution witnesses, the
Appellant and the two others
being called upon by the trial
judge to open their defence at
the close of the prosecution
case, as in the opinion of the
court a prima facie case has
been established against them;
the evidence in chief and
cross-examination of the
Appellant and two others,
addresses by the prosecutor and
counsel for the second accused
and the pronouncement by the
court of the conviction and
sentence of the Appellants and
two others. What is missing from
the appeal record are the charge
sheet, caution statement of the
Appellant, and the exhibits and
the reasoned judgment of the
trial court.
Even though
the charge sheet is missing, it
is plain on the face of the
record that the Appellant and
the two others were charged with
three offences; conspiracy to
commit robbery and two counts of
robbery which were read to them
before their pleas were taken
and the facts in support of the
charges were given by the
prosecutor. The absence of a
reasoned 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
We have
examined the grounds of appeal
in the light of the available
record of proceedings and we are
of the firm belief that the part
of the record which is missing
is not material to the
determination of the appeal and
it would not occasion any
miscarriage of justice. After
all an appeal is by way of
rehearing and the Court of
Appeal was under a duty to
examine the evidence on the
record to ascertain whether
there was sufficient evidence to
support the conviction.
.Accordingly
we hold that the Court of Appeal
came to the right conclusion
that it was capable of disposing
of the appeal with the available
record before it and there was
no occasion of miscarriage of
justice, to warrant the setting
aside of the judgment of the
appellate court.
(b) The evidence before the
trial court
Counsel for
the Appellant submits that the
Court of Appeal erred by not
considering the defence of alibi
and that of a material witness
raised by the Appellant and by
preferring the evidence of the
prosecution to that of the
Appellant
It must be
noted in fairness to the
appellate justices that the
appeal ground and indeed the
arguments marshaled in support
thereof were not on the merits
of the case but targeted at the
technical point as to whether in
the absence of certain
documents from the record of
proceedings the appellate court
is disabled from hearing the
appeal and ought to acquit and
discharge the Appellant
simpliciter..
We have a duty
to examine the record of
proceedings to satisfy ourselves
whether the prosecution
succeeded in proving the
essential ingredients of the
offences of (a) conspiracy to
commit the unlawful act of
robbery contrary to section 23
(1 and section 149) of Act 29
and (b)for robbery contrary to
r section 149 of Act 29- The
essential ingredients are
whether the Appellant and the
two others agreed or acted
together with a common purpose
to commit a criminal offence,
and whether the appellant and
the others stole from the
victims and in so doing used any
force or caused any harm or used
any threat of criminal assault
or harm on the victims with
intent thereby to prevent or
overcome the resistance of
their victims to the stealing of
the thing. See Behome v
Republic [1979] GLR 112,
Frimpong alias Iboman v The
Republic [2012] 1SCGLR 297.
Case for the
Prosecution
In this case,
the prosecution led evidence
through PW1, PW2, PW3 and PW4,
that on 5 June 2004 they were
sleeping in their hotel rooms at
the Richmond Hotel in Dunkwa- on
– Offin when the Appellant and
two other armed men attacked and
robbed them at gun point. The
Appellant and the 2nd
accused were both wielding guns
and the 1st accused a
cutlass which they used to
threaten them; some of them were
asked to lie down while their
rooms ransacked. We are
satisfied by the evidence on
record that the prosecution led
sufficient evidence to establish
a prima facie case for the
accused persons to answer.
Case for the
Defence
Alibi
The Appellant
elected to give evidence on oath
and merely relied on his
statement given to the police.
Unfortunately this statement is
lost. However the answers he
gave during cross-examination by
the prosecution and his own
cross-examination of the
prosecution witnesses did not
disclose any defence of alibi;
that he was at a different place
at the time of the robbery. He
merely stated under
cross-examination that he did
not know Dunkwa- on – Offin and
has never been there and nor met
the 1st and 2nd
accused persons before. All the
four prosecution witnesses were
positive of their identity of
the three armed robbers from
their distinct features.
. Material
Witness
On the issue
of material witness, the Supreme
Court recalls its holding in
Frempong alias Iboman, supra
at pages 310 to 311 of the law
report:
“It must be noted that, the
evaluation of the evidence in a
criminal trial such as one
involving a serious offence of
robbery and, indeed, any other
criminal offence, is not based
on the quantity of witnesses
called at a trial in proof of
the case of the prosecution or
defence, but the quality of the
evidence that the witnesses
proffer at the trial. Thus the
Supreme Court in a unanimous
decision in the case of
Gligah v Republic [2010] SGCLR
870 held (as stated in
holding (5) of the headnote
that:
“The Supreme Court would affirm
as good law, the principle of
law regarding the need for a
party to call a material witness
in support of its case.
However, the said principle of
law did not apply in the
circumstances of the instant
case. In establishing the
standard of proof required in a
civil or criminal trial, it was
not the quantity of witnesses
that a party who had the burden
of proof, called to testify,
that was important; but the
quality of the witnesses called
and whether at the end of the
day the witnesses called by the
party had succeeded in proving
the ingredients required in a
particular case. In other
words, the evidence led must
meet the standard of proof
required in a particular case.
If it did, then it would be a
surplusage to call additional
witnesses to repeat virtually
the same point or seek to
corroborate evidence that had
already been corroborated.”
In this case,
the prosecution witnesses were
the victims of the robbery
attack and were able to give
detailed testimony that linked
not only the appellant, but also
the other convicted persons to
the commission of the offences.
Since the evidence of the
prosecution witnesses was
relevant and germane to the crux
of the case, there was no need
to look elsewhere.
It is
therefore clear that the
inability or failure of the
prosecution to call the lorry
station chairman, Kofi Badu has
not resulted in a miscarriage of
justice for which the appellant
should have any benefit. What
is important to consider is
whether the evidence of the
prosecution witnesses who gave
evidence in the case, testified
upon what is relevant and
material evidence. If their
evidence is relevant and
material in establishing the
necessary ingredients of the
offence charged, then the
prosecution must be deemed to
have discharged the burden of
proof that lies upon them.
Upon
consideration of the entire
evidence, we come to the
conclusion that there is
sufficient evidence to establish
the charges of conspiracy to
commit robbery and robbery
against the Appellant and the
other accused persons, beyond
reasonable doubt.
Accordingly we
hold that the appeal against
conviction fails and is
therefore dismissed. We affirm
the conviction of conspiracy to
commit robbery and robbery
against the appellant and the
two accused persons.
(C) Sentence
Counsel for
the Appellant submits the
concurrent sentence of 45 years
for the two counts of robbery is
harsh and excessive in the
circumstance of the case.
What this
court has been requested to do,
is to consider whether the
sentence of 45 years’
imprisonment is appropriate
under the circumstances. In the
absence of the judgment we
cannot tell what factors
influenced the trial judge in
imposing the sentence of 45
years’ imprisonment which is
undoubtedly is harsh and
severe. But is the trial judge
not justified?
Whilst the minimum sentences of
robbery have been fixed by
operation of law, at ten years
where no weapon was used and
fifteen years where a weapon was
used, the sky appears to be the
limit for the maximum sentence.
Considering the principles on
sentencing enunciated in the
cases of Kwashie v The
Republic [1971]1 GLR 488,
Adu-Boahene v The Republic
[1972]1 GLR 70, Kamil v The
Republic [2011] SCGLR 300
which we restate as follows:
1.
The
seriousness of the offence,
2.
the
premeditation with which the
criminal plan was executed,
3.
the
prevalence of the crime within
the locality in particular and
the country in general,
4.
the degree of
revulsion felt by the law
abiding citizens of the society,
5.
Mitigating
circumstances such as extreme
youth, first offender and good
character.
We also recall
the purpose of sentencing to be
punitive, calculated to deter
others, to reform the offender,
to appease the society and to be
a safeguard to this country. We
note that Counsel for the
Appellant failed to urge any
mitigation circumstances in
favour of the Appellant but
rather concentrated on the lost
cautioned statement of the
accused.
Considering
the high incidence of robbery,
the effect of the menace of
robbery on human life and
property in the society and
coupled with the fear and
revulsion which right thinking
members of society feel about
the crime, there is the urgent
need to deal with it in a manner
that will serve as a deterrent
to other likeminded citizens.
Using all the factors and
principles enunciated in the
above-stated cases, it would
appear that the trial court had
some justification in imposing
the sentence it did.
There
is absolutely no doubt that such
a long sentence of 45 years’
imprisonment will appease
society and safeguard them from
criminal conduct.
Nevertheless
this Court in Frimpong alias
Iboman v The Republic, supra
Coram: Brobbey, Sophia Adinyira,
Rose Owusu, Dotse and Gbadegbe,
while considering a plea for
leniency in a sentence of 65
years imposed in a robbery case
was doubtful whether such
long sentences by their nature
do reform offenders. The court
at page 334 of the law report,
per Dotse JSC said:
We would therefore advocate a
scheme of sentence where the
length of the sentence, whist
being commensurate to an extent
with the gravity of the crime
and revulsion which law-abiding
citizens feel towards the crime,
will be such that, the peers and
younger persons of society will
have an opportunity to observe
the life of the convict after
his release and hopefully be
deterred thereby.
The Court went
on to reduce the sentence from
65 years to 30 years. In
adopting the same sentiments we
will allow the appeal against
sentence on the two counts of
robbery. We would leave
undisturbed the 20 years
sentence for the conspiracy
charge.
We would
accordingly substitute a
sentence of 30 years on each
count in place of the 45 years
in respect of the two counts of
robbery contrary to section 149
of the Criminal and Other
Offences Act, 1960, (Act 29).
The sentences are to run
concurrently
To conclude,
the appeal against conviction
fails in its entirety, while the
appeal against sentence succeeds
by the substitution of the
sentence of 45 to 30 years’
imprisonment with hard labour in
respect of the two counts of
robbery to run concurrently.
S. O. A. ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
V. J. M DOTSE
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
N.
S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE
OF THE SUPREME COURT)
COUNSEL
AUGUSTINE OBOUR FOR THE
APPELLANT.
EVELYN KEELSON, CHIEF
STATE ATTORNEY FOR THE
RESPONDENT.
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