|
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, 9thJuly,
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
ofJohn 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]EKLRand 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, supraat
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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