Criminal law and procedure – Summary trial – Plea of guilty – Accused literate pleading guilty  – Omission to record facts presented by prosecution not fatal to conviction – Criminal Procedure Code 1960 (Act 30) s 171.

Criminal law and procedure – Summary trial – Plea of guilty – Accused well educated convicted on his plea of guilty – Conviction to be set aside only if miscarriage of justice established – Criminal Procedure Code 1960 (Act 30) s 171 (2).

State proceedings - Certiorari - Application – Delay – Grant discretionary – Delay over 25 years inordinate and fatal.

The appellant applied to the High Court for an order in the nature of certiorari to quash his conviction and sentence on charges of stealing and attempted stealing. He deposed that he was persuaded by his manager to plead guilty to the charges and was convicted on his own plea. He contended that the failure of the circuit court to record the facts presented by the prosecution was in breach of the mandatory provisions of s 171 of the Criminal Procedure Code 1960 (Act 30) and that the facts, in any case, could not support the charges preferred against him. He submitted that since the conviction and sentence were in breach of s 171 of Act 30, time did not bar the application. The High Court judge declined the application and the applicant appealed.

Held: Sections 171(1) and (2) given a simple, plain and ordinary interpretation, laid emphasis on the information that should be put across to accused persons. The rationale for the emphasis was that in such trials, the law was concerned with the liberty of the accused. The general tenor of section 171(1) suggested that a trial judge was required to exercise his discretion so as to protect the accused. He was required to put across the substance but not the exact wording of the charge, to the accused. Recording that the charge had been so put across to the accused was an administrative exercise pertaining to the preparation of the record for which the judge could not be tied down to a particular format. Where the charge sheet was properly prepared, and contained the correct statement of the offence and accurate particulars, the prosecution would merely repeat its contents. In such a situation, the trial judge could not be said to have erred if he relied on the charge sheet to explain to the accused the substance of the charge as required in section 171 of Act 30.

Cases referred to:

Dom v Republic [1968] GLR 767.

Frafra (Atinga) v Republic [1968] GLR 85.

Mosi v Bagyina [1963] 1 GLR 337, SC.

R v Minister of Health ex-parte Committee of Visitors of Glammorgan County Mental Hospital  [1938] 4 All ER 32.

Republic v High Court, Kunasi, ex parte Fosuhene [1989-90] 2 GLR 315 SC.

William Joseph and Sons v Jebeile Bros (1969) CC 98, 2 G&G 406, CA.

APPEAL against the decision of High Court dismissing an application for certiorari.

AMUAH JA. This is an appeal against the ruling of the High Court, Sekondi dated 27 January 1992, for refusing to grant an order of certiorari to quash the conviction and sentence imposed on the appellant in 1964. The brief facts of the case are as follows: On 7 September 1964, the appellant was convicted on two charges namely, attempted stealing and stealing of a cheque leaf of a customer of the Bank of West Africa (now Standard Chartered Bank) by the Takoradi Circuit Court, and sentenced on the first charge to twelve pounds or in default one month imprisonment with hard labour, on the second charge to a day's imprisonment and a fine of forty pounds or in default to two months imprisonment with hard labour. The fines were paid. The facts on which the prosecution relied to establish their case were not recorded and all attempts to obtain this information from the police or court dockets failed because the dockets could not be traced. The convictions stood against him; he did not appeal and did not consider them to be of any consequence. In 1987 however, the appellant was nominated elected and installed as the paramount chief of Prampram. He then applied to the Government of the Republic of Ghana for recognition but the government refused to accord him recognition. In the circumstance, he applied to the High Court for an order of certiorari to bring up and quash his conviction and the sentence imposed on him in Case No 1405/1964 entitled The State versus Samuel Abbey.

This application suffered a setback at the initial stages. For instance, it was dismissed for not being brought within six months of the conviction. The order made by the court extending the time within which the application could be made was appealed against by the State and the application was struck out for want of prosecution. When eventually those hurdles were removed, learned counsel for the appellant, at the hearing of the motion, urged the court to quash the convictions and sentences imposed on the appellant because section 171 of the Criminal Procedure Code 1960 (Act 30) was not complied with. He stated, among other grounds, that the facts given by the prosecution in support of their case were not recorded by the circuit judge and stressed that even if the facts had been recorded they would not have supported the charges. He cited Mosi v Bagyina [1963] 1 GLR 337 and a host of authorities in support of his case.

For a complete understanding of the applicant’s case, I reproduce a full text of his affidavit in support of this motion paper:

“I, Samuel Abbey otherwise known as Annortey Mensah Samuel Abbey of Prampram, make oath and say as follows:

1. I am Paramount Chief of Prampram traditional area, having been duly nominated elected and installed in accordance with the custom and usage of the said traditional area, in succession to the late Nene Anorkwei II. My stool name or royal style and title is Nene Agbo III.

2. In 1987 I was denied recognition by the Government, which had refused to publish my particulars as paramount chief in the Local Government Bulletin of the Gazette on the ground that I was some time ago, convicted of stealing and sentenced accordingly.

3. It is perfectly true that I was convicted and sentenced as alleged but I am advised and verily believe that my said conviction which occurred in 1964 in the Circuit Court, Takoradi was wrong in law and further or in the alternative that the relevant proceedings on the day of my trial were null and void as being in breach of the Criminal Procedure Code 1960 (Act 30).

4. With a view to taking legal action to quash or otherwise set aside my said conviction and sentence, I have, upon the advice and with the assistance of my solicitor, sent to Sekondi-Takoradi no less than five times this year agents who have made diligent and expensive search and enquiry at the circuit court, the police and the regional archives. In addition my solicitor has caused urgent searches to be made at the National Archives for the court or police docket on my case. All the said searches and enquiries have proved in vain; neither the court docket nor the police docket has been found from which relevant papers might be extracted and laid before this honourable court.

5. There has been found, however, in the circuit court Criminal Record Book the court notes of the short proceedings at my trial on 7 September 1964 before His Honour Judge J S C Okai. I attach hereto, marked AA1 a photocopy of the certified extract of the said proceedings supplied by the registrar of the circuit court.

6. To the best of my recollection, knowledge, information and belief, the first count mentioned in the photocopy extract was a charge of attempted stealing, and the second count was a charge of stealing the cheque leaf of a customer of the Bank of West Africa, Takoradi where I was in 1964 employed as an accountant.

7. The said customer had presented the said cheque leaf filled up for the withdrawal of about £G60 and I endorsed it for encashment, and passed it to the paying-out cashier in the paying-out cage. The said cashier then discovered that there was a “stop order” written against the ledger card of the said customer's account, and in accordance with normal practice took the said cheque leaf to the expatriate manager for his instruction whether or not to pay out the amount sought to be cashed by the said customer.

8. The said manager, however, immediately handed me over to the police on suspicion of deliberately endorsing the said cheque leaf for encashment, and I was thereupon charged with the said offences.

9. I was eventually persuaded by the said manager (but not the police) to plead guilty to the said charges on the ground that it was a small matter, no money had been lost, and that I was being charged purely as a deterrent against further occurrences of hasty processing of cheques, and that I would not lose my job in any event.

10. I therefore ultimately admitted the offence, pleaded guilty on arraignment, was convicted on each count as aforesaid and sentenced to a fine of £G12 or 1 month ihl on the first count and to 1 day's imprisonment plus £G40 or one month imprisonment ihl, the sentences to run concurrently.

11. The said fines were paid by my late father and a family friend the same morning, and after the court closed, I returned to my job at the bank as the said manager had promised and worked there for nine more months before I finally left.

12. I am advised and verily believe that by reason of the foregoing facts, my conviction on each count was fundamentally wrong in law, and that the facts as above or as given to the said trial court by the prosecutor could not support either count or charge.

13. I am further advised and verily believe that, as is apparent on the face of the said photocopy extract, the safeguarding procedures of the Criminal Procedure Code 1960 (Act 30) (which have been held to be mandatory and not optional) have not been complied with, but on the contrary have been ignored thereby rendering my said conviction and sentences null and void ab initio.

14. The said conviction (and sentence) have always been treated both by the said bank and me as of no consequence all these intervening years until the shock of the Government's refusal to accord me recognition as a paramount chief in 1988 on the basis of the said conviction and sentences.

15. I now urgently seek the removal of the impediment constituted by my said conviction and sentence in order that I may obtain the necessary recognition as paramount chief as aforesaid, for which purpose I seek an order of certiorari to quash my said conviction and sentence.

16. I therefore pray that I may be granted such order of certiorari.”

Learned counsel for the respondents on the other hand contended that section 171 of the Criminal Procedure Code 1960 (Act 30) has not been breached. He further contended that even if the said section had been breached, there has not been any miscarriage of justice as a result of the conviction. He relied on section 406 of the Criminal Procedure Code 1960 (Act 30) and section 26(12) of the Courts Act 1971 (Act 372).

The learned High Court judge, after considering the submissions and the law, refused to grant the order of certiorari. The appellant being dissatisfied has appealed against the decision on a number of grounds as below:

 (i) Error of law apparent on the face of the record in that the High Court overlooked the failure of the Circuit Court, Sekondi to record the narrative of facts relied upon by the prosecution and further overlooked the relevant decided authorities as well as the Practice Direction in Dom v Republic [1968] GLR 767 to the effect that in a summary criminal trial the facts relied upon by the prosecution must be recorded by the trial court in order to afford a means of testing whether these facts are sufficient to support the charge laid against the applicant.

(ii) Error apparent again by reason that upon the High Court's own finding as to the facts relied upon by the prosecution there could not possibly be any offence of stealing on the part of the applicant (of either the cheque leaf or its proceeds), and hence that his plea of guilty was void in any event.

(iii) Further or in the alternative, the applicant's pleas of guilty to the charges of stealing proved that contrary to the requirement of section 171 of Act 30 he had not understood the charges in spite of the particulars of offence which were apparently read and explained to him.

(iv) Another patent error of law (ie consideration of irrelevant matter) is that the reference to “section 199 of Act 30” was acknowledged by counsel for the applicant to be an error which should properly have read “section 171 of Act 30” hence no submission whatsoever was addressed to the High Court under section 199, whereas all the submissions made on behalf of the applicant related to section 171 exclusively.

(v) Since the conviction and sentence were both patently void for non-compliance with section 171 of Act 30 or alternatively with the well established judicial interpretation of that section, time does not run in bar of certiorari proceedings to quash the conviction and sentence.

(vi) Neither section 406 of Act 30 nor section 26(12) of the Courts Act 1971 (Act 372) avails where the facts found to be those on which the prosecution relied do not support, and indeed could not possibly support the charges laid against the applicant (however full the particulars of offence) since there is then a substantial miscarriage of justice.

(vii) Since the Attorney-General did not challenge the applicant’s version of the circumstances leading to his arrest, trial, conviction and sentence and furthermore the High Court itself found the applicant’s version to be unchallenged, it was inconsistent of that court to exercise its discretion by refusing to quash the applicant's conviction and sentence.”

Having given the facts of the applicant’s case, I begin by saying that every case must be judged on its own facts. I will consider the grounds of appeal in the order in which they are set out. In Dom v Republic [1968] GLR 767, Edusei J stressed the need for the facts as given by the prosecution to be recorded in a summary trial when the accused person pleads guilty. This, he said, would enable the appellate court to determine whether the facts given by the prosecution constituted an offence. In that case, it will be observed that the appellant put his side of the case, which the magistrate considered as “frivolous” without recording the facts on which he took that view. The appellate court was therefore unable to determine whether there was “sufficient cause to the contrary”. The case went on appeal and the appellant was acquitted and discharged.

The present application is for an order in the nature of certiorari – indeed certiorari cannot be used as a cloak for an appeal. See William Joseph and Sons v Jebeile Bros (1969) CC 98. The question for decision in the case before me, is the proper construction of section 171 of the Criminal Procedure Code 1960 (Act 30).

Certiorari lies to quash the decision of a statutory tribunal where an error appears on the face of the record. This principle remains inviolable. See R v Minister of Health, ex parte Committee of Visitors of Glammorgan County Mental Hospital  [1938] 4 All ER 32.

Paragraphs 6, 7, 8, 9 and 10 of his affidavit in support of his application give the facts of the case. The appellant, an accountant of the bank, endorsed a cheque presented by a customer and passed it on to the cashier for payment. The paying cashier observed that there was a stop order attached to the ledger card of the customer and so approached the manager for instructions. The matter was referred to the police and after investigation, the appellant was charged with the offences of attempted stealing and stealing of a cheque. If the paying cashier had not intervened promptly, moneys belonging to the bank would have been paid to the customer without the consent of the bank. Either the manager or the police did not accept an explanation of hasty processing. Normally the cheque is presented to the paying cashier who in turn hands it over to the officer in charge of references. Why the customer handed over the cheque to the accountant was not easy to understand. The respondents did not challenge these facts which were offered by the appellant as they found in them a prima facie case.

If a charge is properly laid, any omissions made in the particulars of the offence would not make a conviction bad. See Courts Act 1971 (Act 372) section 26(12). There was therefore a possible offence, or rather there were offences.

As regards Ground 3, the complaint of the appellant was that he did not understand the charges before pleading guilty. A glance at paragraphs 7, 8, and 9 of his supporting affidavit shows that he understood the seriousness of the charges and the facts to be led but that he pleaded guilty on the advise and persuasion of the bank manager.

The relevant statutory provision applicable to summary trials is section 171(1) of the Criminal Procedure Code 1960 (Act 30). By basing his argument on section 199 of the Criminal Procedure Code (1960) Act 30 he misfired. Now section 171 of the Criminal Procedure Code 1960 (Act 30) contains the following provisions:

“171. (1) If the accused appears personally or, under section 70 (1), by his advocate, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to him, or, if he is not personally present, to his advocate (if any), and he or his advocate, as the case may be, shall be asked whether he pleads guilty or not guilty. In stating the substance of the charge, the Court shall state particulars of date, time, and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to have been committed, and the section of the enactment creating the offence.

(2) If the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by a letter under section 70 (1) such letter shall be placed on the record and the Court shall convict the accused person and pass sentence or make an order against him, unless there shall appear to it sufficient cause to the contrary.”

For easy reference I will reproduce here the judge’s notes on the conviction and sentence of the appellant. It reads:

“C 1405/1964            The State versus Samuel Abbey

1st Count, pleaded guilty. Convicted accordingly 12 pounds or one month.

2nd Count - pleaded guilty, convicted accordingly. A day’s imprisonment plus 40 pounds or 2 months concurrent and non-cumulative.”

Now, did the learned circuit judge fail to comply with section 171(1) and (2) of the Criminal Procedure Code 1960 (Act 30)? There is no doubt that the appellant was asked whether he was guilty or not guilty and that the substance of the charge was brought to his attention. Under 171(1) there is no provision compelling the circuit judge to record the facts which the prosecution gave to the court. On the other hand under 171(2) there is a provision that the judge should take down as nearly as possible the plea of guilty in the words used. The appellant did not plead guilty with explanation and did not offer any explanation on the advice of the manager. The learned judge therefore became satisfied that there was no sufficient cause to the contrary and proceeded to convict and pass sentence. That the facts on which the prosecution was going to rely to prosecute its case were not recorded does not make a conviction based on those facts bad. The appellant was aware, as they were obvious. The appellant realised the seriousness of the charges but failed to give an explanation. The learned judge was entitled by law to convict. The learned judge was therefore right in arriving at this decision that: “It is my judgment that the failure of the court to record the facts of the case does not nullify the conviction and sentence of the appellant. Furthermore, I do not think it has occasioned a miscarriage of justice.” It is clear that the learned circuit judge did not act contrary to the provisions of the section when he failed to incorporate the case of the prosecution in the record of proceedings.

I also think that the learned High Court judge was right in refusing to quash the proceedings by a prerogative order of certiorari and that his decision ought to be affirmed. I dismiss the appeal.

BROBBEY JA. I also agree that the appeal is unmeritorious and should be dismissed. To what has been stated in the judgment read by the president of this panel, I will add the following: The generality of the arguments canvassed on behalf of the appellant leaves me in no doubt that the appellant should have appealed. He did not appeal. The reasons could be several, he pleaded guilty and was caught by section 324 (3) of Act 30. Another reason is that he was grossly out of time, having been convicted as far back as 1964, some 26 years past, before he took the first step by way of motion filed in 1990.

Faced with that dilemma, the appellant sought refuge under the broad ambit of a prerogative writ. He applied for an order of certiorari to quash the conviction imposed on him. The application does not seek to impugn the jurisdiction of the court, which tried him. It is based on the fact that the trial circuit  judge failed to comply with section 171 of (Act 30).

Before us, counsel for the appellant has argued that section 171 of Act 30 should be interpreted to mean that a trial judge is enjoined to record the facts given by the prosecution in support of the charge; and when that is not done, it will amount to non-compliance with that statutory provision which will render the conviction void and thus give rise to a miscarriage of justice for which the conviction and sentence should be quashed. Counsel for the appellant concedes that section 171 of Act 30 does not expressly stipulate that the trial court should record the facts as given by the prosecution. He however bases his argument on an interpretation of the section as contained in Dom v Republic [1968] GLR 766.

The proposition of law that non-compliance with a statutory provision will render a conviction void is no doubt correct. What has to be decided is whether or not there was such non-compliance. The statutory provisions in question read as follows:

“171. (1) If the accused appears personally or, under section 70 (1), by his advocate, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to him, or, if he is not personally present, to his advocate (if any), and he or his advocate, as the case may be, shall be asked whether he pleads guilty or not guilty. In stating the substance of the charge, the Court shall state particulars of date, time, and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to have been committed, and the section of the enactment creating the offence.

(2) If the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by a letter under section 70(1) such letter shall be placed on the record and the Court shall convict the accused person and pass sentence or make an order against him, unless there shall appear to it sufficient cause to the contrary.”

My view is that if section 171(1) and (2) were to be given their simple, plain and ordinary interpretation, it would become apparent that these two sub-sections lay emphasis on the information that should be put across to accused persons. That is the essence of the sentence “the substance of the charge shall be stated and explained to him...” The rationale for the emphasis on the sections is that in such trials, the law is preoccupied with protecting the liberty of the individual being tried. His liberty and interest are paramount and that is why provision is made to safeguard them.

How the trial judge is to ensure the protection of that interest is not expressly stated. It is however deducible from the general tenor of section 171(1) of Act 30 that the trial judge is required to exercise his discretion as to how to protect the interest of the accused. This will be found clearly in the use of the expression “the substance” of the charge. If the trial judge is required to state the “substance” and not the exact content of the charge, it pre-supposes that he will use his own words and expressions to put that “substance” to the accused. He cannot be tied down to any hard and fast form of expression or words.

It is obvious that the fact that the “substance of the charge” had been made known to the accused would be recorded in the record book. That is an administrative exercise pertaining to the preparation of the record. Indicating that the words or the substance of the charge have been put across and explained to the accused will comply with the provisions of section 171(1). The trial judge cannot be tied down to any particular format in that exercise. Those words do not exclusively have to be limited to the statement of the facts as given by the prosecution although in some cases those words to be recorded in the record book may include some of those facts as well as the words in the charge sheet.

In practice, if the charge sheet is properly prepared, it would contain the correct statement of offence and accurate particulars of offence. Quite often, the facts as given by the prosecution would amount to mere repetition of the contents of the charge sheet. In such a situation, the trial judge may very well rely on the charge sheet and what he hears from the prosecutor in putting across to the accused “the substance of the charge.” It surely cannot be correct to state that a judge errs when he relies on the charge sheet whose contents are repeated by the prosecutor in court in order to put across and explain to the accused the substance of the charge as required in section 171 of Act 30.

It cannot therefore be correct to assert as Dom v Republic does that the only way to comply with section 171 of Act 30 is to record the prosecutor's facts in the record book. On the basis that the proper interpretation of section 171 refers to what the court should put across to the accused, compliance with section 171 will require a statement to the effect that the substance of the charge has been put across and explained to the accused.

As stated already, section 171 does not show in any of its sub-sections that the facts given by the prosecutor must be stated before the section will be complied with.

On the face of the section, my view is that the interpretation in Dom v Republic cannot be correct. In the two cases where section 171 has been invoked, references have been made expressly to section 171(2). Quite naturally, those cases refer to the rationale for that subsection. One of the cases was Frafra (Atinga) v Republic [1968] GLR 85. In that case it was stated at page 87 that:

“The failure of a court in summary trials, when the accused person had pleaded guilty, to hear the facts of the case before proceeding to convict disabled that court from determining whether or not there is sufficient cause, under section 171(2) of Act 30, to convict the accused.”

In Dom v Republic supra it was stated at page 767 that:

“It is only in this way that an appellate court will be able to determine whether the facts recorded do constitute an offence or may show that a plea of not guilty be announced instead.”

For the purpose of satisfying the requirement whether the plea of guilty could be allowed to stand or altered to a plea of not guilty, the most significant factors are the explanations given by the accused, if any. It cannot be wholly correct to state that the prosecutor’s facts are the only factors from which to determine whether or not to allow a plea of guilty to stand. Secondly, the court can determine whether the facts constitute an offence from the charge sheet as well, not only from the prosecutor's facts.

In the instant case, the charge sheet was not put before the trial High Court. The affidavit filed by the appellant stated beyond any doubt that appellant clearly understood what went on in the circuit court, which culminated in the conviction and sentence. In paragraph 6 of the affidavit filed in support of his motion for extension of time he detailed out the charges and in paragraph 7 he further set out the particulars leading to the charge. He did not in any of his affidavits swear that he did not understand the proceedings or the plea he made. He was well educated, being an accountant in a foreign bank at the time of the trial; by his own showing the trial was quite regular and clear to him.

I have already illustrated that the most important requirement under section 171 of Act 30 is what the court puts across and explains to the accused ie the substance of the charge. If the appellant’s complaint in this appeal were that the trial circuit judge failed to put across and explain to him the substance of the charge, and that failure was borne out by the evidence on the record, then it can certainly be asserted that the trial circuit judge failed to comply with section 171 and that failure could very well be said to have occasioned a miscarriage of justice. But that is not the basis of the appeal before us. In so far as this appeal is based on failure of the trial court to put across and explain the substance of the charge to the appellant, the contention that section 171 of Act 30 has not been complied with is untenable.

Counsel for the appellant further submitted that even if the facts had been stated, this would not have supported the charge sheet. The fallacy in that argument lies in the fact that the appellant was not asked to put the charge sheet before the High Court. How then could the High Court or this court decide that the facts could not have supported the charges when the charge sheet was not available to be considered in the light of the facts sworn by the appellant? Since the charge sheet was not available to be considered in relation to the facts the appellant's argument that the facts could not support the charges cannot be correct and I would therefore dismiss the appeal.

The question posed by the appeal is simply this: Where a well educated man appears in court on a criminal charge under