AYEBI, (J. A.):

1. In this case, the appellant was charged with one count of murder contrary to Section 46 of the Criminal and Other Offences Act, 1960 (Act 29) as amended. He originally pleaded not guilty to the charge. But the principal issue raised in the appeal is whether or not in plea bargaining, the plea of the accused should be taken on the original charge for him to plead not guilty but guilty to a lesser offence not charged and whether or not the plea of guilty to the lesser charge in a statement by counsel for the accused rather than the accused himself is wrong in law and has occasioned a substantial miscarriage of justice to the accused.

2. The case itself has a history which in my view justifies the popular saying that justice delayed especially the trial court is justice denied. The Attorney in his written submission revealed that the appellant, one of his wives and two other young men were arrested and indicted for conspiracy to commit murder, attempted murder and murder in 2007. Before the trial commenced, one of the two young men fell sick in prison and later died while on bail.

3. The trial itself started in Sunyani High Court in 2008. The accused were represented by counsel. At the close of prosecution’s case, the wife of the appellant and the other young man were acquitted and discharged. The appellant put in a defence and closed his case. Submissions were made to the jury on behalf of the State and the appellant in 2011.

4. The trial Judge adjourned the summing up to a month later. But for over one year, the trial Judge failed to do the summing up until two of the jurors died. This necessitated a new jury to be empaneled and the trial started afresh before a different Judge in 2013.

5. When the charge of murder was read and explained to the appellant, he pleaded not guilty. After the presentation of the facts of the case, the court asked counsel for the appellant if he had anything to say. I quote verbatim what transpired between the bench and bar at page 21 of the record:

“By Court: Counsel for accused person, have you  anything to say?

Counsel for My Lord, we have had some years in court accused: in respect of this case and we want to plead on the charge leveled against him. We would want to plead guilty to manslaughter. In fact we have been in court for 6 years.

By Court: Have the prosecution anything to say about the plea?

Prosecution: My Lord, we have nothing to say, we are agreeable to the plea.

By Court: Let the records indicate that the accused pleads not guilty to murder but guilty to manslaughter. For this reason, I proceed to convict accused of manslaughter. Jurors discharged. Accused will remain with the police until 12:00noon when I will pronounce my sentence. Case stood down to 12:00noon.

6. When the case was recalled, the court asked the accused if he had anything to say before he is sentenced. The accused personally pleaded for mercy and to be given the minimum sentence because he had suffered a lot. The counsel for the accused then apprised the court of the circumstances surrounding the case, the facts of the case, the number of years the accused been in court and prayed the court to have mercy on the accused whose personal health and family have been greatly affected by the incident and the long trial.

7. The prosecution on its part urged upon the court to take all the facts of the case into consideration particularly the hitting of the head of the deceased with a Guinness bottle, which the medical doctor found as the cause of the head injury to the deceased, leading to his death. In reply, counsel for the accused called the act of the accused as pure mistake from which he will learn. The court then sentenced the accused to 30 years IHL for manslaughter. In passing the sentence, the court referred simply to Article 14 (6) of the 1992 Constitution and ordered the sentence to run from 2007 when accused was arrested.

8. Dissatisfied with the conviction and sentence, the appellant appealed as per the amended notice of appeal on two grounds namely:

1. The conviction of your humble prisoner/appellant was wrong in law having regard to Section 239 (2) of Act 30.

2. Further or in the alternative, the sentence was excessive having regard to the circumstances of the case.

In support of ground one, counsel for the appellant submitted that the procedure by which counsel for the accused at the trial pleaded to the lesser charge of manslaughter is wrong in law. This is because there is no provision throughout Sections 231 to 239 (2) of the Criminal Procedure and Juvenile Act, 1960 (Act 30) as amended which transferred the responsibility of pleading to a charge by the accused to his lawyer.

9. Counsel referred to the procedure described in Criminal Procedure in Ghana by A. N. E. Amissah on change of plea by an accused at page 112. The learned author wrote:

“He (accused) may change his plea at any time before verdict or judgment. He does so by indicating to the court his intention to change his plea. The charge is then read over once more to him and he pleads afresh to it. The proceedings from then on continue on the basis of a plea of guilty.”

10. By the submission on behalf of the appellant, the procedure described above was not followed. It is counsel’s considered view that in matters like this, where the liberty of the accused was at stake, everything should be done to ensure that his human rights are fully taken care of. He described the conduct of the trial as irregular and this should inure to the benefit of the appellant.

11. In response to that submission, the learned State Attorney for the Republic identified what happened at the trial court leading to the conviction and sentence of the appellant for manslaughter instead of murder which he is charged with as plea-bargaining. She observed that in our Criminal Procedure Act 1960 (Act 30) there is no specific mention of the concept of plea-bargaining. Also, in spite of the provision in S. 239 (2) of the Act 30 which permits an accused to plead guilty to a lesser offence not charged in the indictment but not guilty to offence charged, there is no laid down procedure to guide the court in a plea-bargaining. Section 239 (2) of Act 30 states that:

“Where an accused is arraigned on an indictment for an offence and can lawfully be convicted on the indictment of any other offence not charged in the indictment, the accused may plead not guilty of the offence charged in the indictment but guilty of the other offence and upon the plea of guilty the court may, with the consent of the prosecution, acquit the accused of the offence with which he is charged and record the plea of guilty to the other offence.”

12. The learned State Attorney referred to the definition of the concept of plea-bargaining in the Black’s Law Dictionary as well as the website, US Legal Journal.com, and submitted that it is a form of contract in which the offer proceeded from the accused through his counsel to the prosecution. If the prosecution accepts the offer, the court considers its appropriateness and records it.

13. As a judicial precedent in our jurisdiction, the learned State Attorney referred to the case of Republic vrs Dr. Ohene-Djan and Adu Yeboah (unreported) in which the defence invoked Section 239 (2) of Act 30 and offered to plead guilty to the offence of manslaughter and not guilty to the murder charge in the indictment. The State Attorney relied on the procedure in the Ohene-Djan case as recorded by the A. N. E. Amissah in his book Criminal Procedure in Ghana at page 111. This is what the learned author wrote of the procedure:

“After the case had proceeded against the accused upon his plea of not guilty until the prosecution had closed its case, an application was made by counsel for the defence to change their pleas to one of not guilty of murder but guilty of manslaughter. The Director of Public Prosecutions (DPP) who conducted the prosecution, sought an adjournment to consult the Attorney-General and upon the next hearing date informed the court that the course the accused proposed to take was acceptable to the prosecution. At this stage, only Ohene-Djan took this course.

The plea of guilty of manslaughter but not guilty of murder was recorded against him and he was convicted accordingly of manslaughter while being discharged of the offence of murder. Subsequently, Adu Yeboa gave evidence but upon completion decided to follow the course taken by Ohene-Djan. The DPP said his instructions covered Adu Yeboa as well and therefore his plea of guilty to manslaughter was acceptable to the prosecution. That plea was also recorded and he was convicted upon it.”

14. In the view of the State Attorney, the procedure as described above seems simple but in practice, it can be complex and procedurally confusing. It can be procedurally confusing because it is not the usual case of an accused changing his plea from not guilty to guilty on the same charge or indictment. In the normal change of plea, the same charge or indictment is read over and explained to the accused and he pleads to it. But in a plea-bargaining, the offer to plead guilty to a lesser offence or an offence not charged in the indictment is made by the accused or his counsel and if the offer is accepted by the prosecution, the bargain is deemed struck and enforced by court. A new charge or indictment is not prepared for the accused to plead to.

15. As regards the charge that it is wrong for counsel to plead on behalf of the accused to the charge of manslaughter, the State Attorney referred to S. 171(5) of Act 30 and submitted that it is not entirely true that accused must in all circumstances plead to a charge personally. But then granted that the trial court erred in allowing counsel for the accused to plead to the charge or take the plea, the error is an irregularity or a procedural error which had not occasioned any miscarriage of justice to the appellant. This is because by the acceptance of the plea of counsel of guilty of the offence of manslaughter and not guilty of murder, the appellant had benefitted positively from the charge of manslaughter instead of murder which carries a death sentence.

16. But in a sharp rebuttal, counsel for the appellant submitted that if the idea of plea-bargaining came from a lawyer who was tired of a six-year trial through the default of the Judge in the first trial, there can be no automatic benefit to the appellant. More so, it being a jury trial, no one can predict the outcome of a full trial.

17. Now, what is plea-bargaining? In the Black’s Law Dictionary,8th edition, it is defined as “A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges – It is also termed plea agreement; negotiated plea; or sentence bargain”.

Osborn’s Concise Law Dictionary, 8th Edition also stated that a plea bargain is :

“An arrangement by which a defendant to criminal proceedings may agree to plead guilty to one or more charges in return for the prosecution extending some advantage to him, e.g. dropping another charge. Such a bargain will be closely scrutinized by the court and a Judge should never indicate what sentence he has in mind to induce the defendant to change his plea”.

Then in the website, US Legal Journal.Com, it is explained that:

“In practice, plea-bargaining often represents not so much “mutual satisfaction” as perhaps ‘mutual acknowledgement’ of the strengths and weaknesses of both the charge and the defence against a back drop of crowded criminal courts and court dockets. Pleas bargaining usually occur prior to trial but in some jurisdictions may occur at any time before verdict is rendered. It is often negotiated after a hung jury. The parties may negotiate a plea rather than go through another trial”.

18. One common trend in all these definitions is that the disposition of the case by the process of plea-bargaining is arrived at through negotiation between the defence and the prosecution. It is Counsel for the accused who first moots the idea. And since the Counsel represents the interest of the accused at the trial, he would have discussed the idea and explained the consequences of the procedure to the accused before he steps out to make the application (offer) to the prosecution in court.

19. And before Counsel for the accused suggests such a course to the accused for his approval, Counsel would have from the professional point, assessed the strengths and weaknesses of the defence of the accused and for that matter the chances of the accused in the matter. Plea-bargaining appeared to be a very common practice in the United States. In the comments of the then Chief Justice on the Ohene-Djan case in the article entitled Change of Plea on Arraignment for An Indictable Offence recorded in the Ghana Law Review, 1975 Volume 7 at page 192, he observed that:

“There is in our law, no such thing as plea-bargaining, a process well-known in the United States, whereby the prosecutor and defence counsel agree privately that if the accused will plead guilty to a lesser offence, the prosecutor will not charge him with a more serious one which he has evidence to prove. Our section 239 (2), like its British counterpart, is designed to ensure that the change of plea, is put under judicial control, and is offered and considered in open court with all the safeguards that the judicial system provides”.

20. On the advantages of plea-bargaining, the learned Chief Justice, stated that it is intended to save great waste of time and money as Salmond L.J. said in R vrs Hazeltine [1967] 2 Q.B. 857 at 861, CA as follows:

“The prosecution might be satisfied that a plea of that kind ought to be accepted and the judge might be so satisfied, yet a great deal of unnecessary time and money had to be wasted by holding a full-dress trial in order to obtain a verdict from the jury which the prosecution, the defence and the judge were satisfied was the only proper verdict in the circumstances”.

21. From the definition or explanation of the concept, resort to the practice by the court is not meant to meet out sentences not commensurate with the offences the accused is charged with or indicted for, but to ensure speedy trial of the accused whose liberty is probably being unduly violated as a result incarceration pending trial. Therefore, before the accused or his Counsel makes an application (offer) and before the prosecution accepts or rejects the offer, either of them would have assessed their chances of acquittal or securing a conviction depending on the evidence available to them; the load of work on the trial court; the availability of both the defence Counsel and the prosecutor any time the trial is to proceed and the nature of the offence charged, amongst others.

22. In my view, the circumstances in which a plea-bargaining may be resorted to as explained of the practice in the US fits wholly the circumstances of the appellant. The appellant had gone through a six-year trial without a verdict against him. He is to go through another trial. In applying to the court to accept a plea of manslaughter, counsel no doubt, had at the back of his mind the evidence led at the abortive trial and did a proper assessment of it.

23. In his submission, Counsel for the appellant insinuated that the idea to plea-bargain came from a lawyer who was tired of a trial which took six years without a result. Indeed the lawyer said so and the appellant also told the trial Judge that he had suffered a lot before he was sentenced. But then the lawyer for the accused at the trial Court could not have plea-bargained to plead to a lesser offence with a lesser punishment without the knowledge and consent of the accused then. Again, the lawyer for the accused at the trial court would not have offered to plead guilty to the offence of manslaughter instead of the charge of murder if the evidence already available to him did not support that lesser offence or any offence at all. The present Counsel in my view made that submission without taking the evidence available on the record into consideration.

24. As noted by the learned State Attorney, the main complaint of the appellant in this appeal is that it is wrong in law for counsel for the accused to take the plea of the appellant at the trial. The learned Attorney argued that it is not entirely true or accurate to say that a Counsel cannot plead on behalf of an accused. This is because Section 171 (5) of Act 30 provides that where the accused or counsel for the accused refuses to plea or if the accused is absent and the court decides to hear the case in accordance with Section 170, the court shall enter a plea of not guilty and the plea so entered shall have effect as if the accused had actually pleaded.

25. That provision relates to summary trials. In a trial on indictment, Section 199(1) is relevant and provides that where the accused pleads guilty to a charge, the court before accepting the plea shall, if the accused is not represented by Counsel, explain to the accused the nature of the charge and the procedure which follows the acceptance of the plea of guilty.

26. The procedure which follows is that, an accused who pleads guilty will be convicted and sentenced at once. For per section 239(1) of Act 30, a plea of guilty when recorded, constitutes a conviction. So without the plea of the accused, the court cannot exercise its jurisdiction and try him. Any trial which takes place in the absence of the accused is null and void. Thus in R vrs Nze [1941] 7 WACA 24, the counsel for the accused pleaded guilty to the charge on his behalf without the knowledge of the accused. The accused did not intend to plead guilty. His conviction was quashed on appeal and re-trial ordered.

27. Should it be the same result in this case where the court acted on the plea of guilty to the offence of manslaughter by counsel for the accused? In this country it is a constitutional requirement that an accused charged with an indictable offence must be represented at the trial by a counsel of his choice but if he could not afford one, by a state appointed counsel.

28. The section 199 of Act 30, I have referred to is a provision meant for the protection of the interest of an accused who is not represented by counsel at the trial. The appellant herein was represented by the same counsel throughout the six years. The counsel represented the interest of accused fully at the trial. It was counsel for the appellant who made the offer to plead to the offence of manslaughter to the prosecution and the latter accepted it. The court’s record is clear that it acted on that offer and acceptance and proceeded to convict the appellant.

29. As argued by the learned Attorney, it will not make sense to read again the indictment with the offence of murder to the appellant and expect him to plead guilty to the offence of manslaughter which was not on the indictment. The process of plea-bargaining as noted by the learned attorney appeared simple but technical in practice. As I stated the Ohene-Djan case is not reported and the record of proceedings is very difficult to trace. There is therefore no record of what followed the acceptance of the offer of the defence to plead guilty to the offence of manslaughter by the prosecution. The procedure as described by A.N.E Amissah in his book was silent on the issue of accused personally pleading guilty to the offence of manslaughter. What is on record is that the court acted upon the offer of the defence accepted by the prosecution.

30. In an article published in the Ghana Law 1975 Review Volume 7 titled Change of Plea On Arrangement For An Indictable Offence at page 183, the learned author Mr. S. Y. Bimpong-Buta, compiled some of the relevant documents, statements or speeches in connection with the debate on the case, the Director of Public Prosecutions’ justification for accepting the plea, the trial judge’s remarks, the then Chief Justice’s remarks on the trial and the resolution of the Bar Association. At page 184 under the sub-heading Change of Plea, he wrote:

“When it came the turn of the accused to open their defence, counsel for the first accused informed the court that the first accused Dr. Ohene-Djan, would like to plead guilty to a charge of manslaughter under section 239 of the Criminal Procedure Code, 1960. Counsel for the second accused however informed the court that the second accused would like to fight on with the case and that he would not like to make an application under s.239 (as quoted above).

31. At this stage of the proceedings, the trial judge asked the Director of Public Prosecutions, what course of action he intended taking in view of the application for a change of plea made by counsel for the first accused. The D.P.P. applied for an adjournment to consult the Attorney-General. The trial judge ruled as follows:

“The learned D.P.P. wants to consult the Attorney-General as to whether the law required that they should accept the course of action that [the defence] have taken so I will accept that we to adjourn this case …”.

32. At the hearing on the adjourned date, the D.P.P. informed the court that after consultation with the Attorney-General, the prosecution had agreed to accept a plea of guilty to manslaughter as prayed by counsel for the first accused, Dr. Ohene-Djan. Before deciding whether to accept the plea of guilty to manslaughter the trial judge said:

“If the prosecution now decides to accept a plea of guilty of manslaughter, I think unless there is something extra-ordinary about the circumstances it will be wrong for the court to compel the prosecution to go on”.

The court then accepted the first accused’s plea of guilty of manslaughter, acquitted him of the offence of murder with which he was charged and recorded a plea of guilty to the other offence …”

33. In the procedure adopted in the Ohene-Djan case, after the acceptance by the prosecution of the accused’s application to plead guilty to manslaughter, there is no evidence that the charge in the indictment was read over again to the accused to plead to. From the record, the application of counsel that the first accused would like to plead to manslaughter is taken as the plea of the accused. We cannot therefore fault the trial judge in this case when he also proceeded in the same manner as in the Ohene-Djan case.

34. In spite of the complaint by the appellant that his conviction is wrong in law, the final submission on the ground is that “the trial was not regularly conducted and this should inure to the benefit of the appellant”. It is a relief that the trial is not described as a nullity. So if the trial leading to the conviction of the appellant is irregular due to a procedural error, it can only be set aside if this court is of the opinion that the appellant has suffered a miscarriage of justice.

For in Section 31 (2) of the Courts Act, 1993 (Act 459) it is stipulated that:

“The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or defect in the charge or indictment but there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”

35. In the instant case, despite arguments of counsel for the appellant to the contrary, the appellant has benefitted substantially from the plea-bargaining on his behalf by his counsel. With the acceptance of the appellant’s plea of guilty of manslaughter instead of the offence of murder in the indictment, appellant was saved from a possible sentence of death to a term of imprisonment. He was also saved from further psychological torture, time and expense of going through another marathon trial. In our candid view, the irregularity or error appellant complained occasioned him no miscarriage of justice let alone a substantial one. The ground one of the appeal is thus dismissed.

36. In ground two of the appeal, appellant complained that the sentence imposed on him is harsh having regard to the circumstances of the case. The sentence imposed on the appellant is 30 years IHL commencing from the date of his arrest in 2007. Indeed, this ground of appeal is very legitimate in view of the circumstances attending the trial of the accused, although the trial Judge described the act or conduct of the appellant as horrendous.

37. The appellant a transport owner at Techiman, arrested the deceased, Yahaya Amadu and Baba Majaah (PW1) on suspicion of stealing his money in various currencies. He tied their hands and feet and put them in the boot of his car. He took them to a location where they were subjected to severe beatings to extract confession from them.

38. From there, he by-passed two police stations and sent them to his house. In the house, he again tied them to a pipe stand and subjected them to further beatings and other forms of torture. By dawn of the next day, the deceased collapsed and passed away. The appellant locked up PW1 in a room and then put the body of the deceased in the boot of his car. He went to a village called Bredi No. 1, 36 miles away from Techiman and buried it secretly. On his return, he took PW1 to the police station and lodged a complaint of stealing against him. It was during the investigation of appellant’s complaints against PW1 that he was exposed, arrested and charged with the offence of murder. These are the basic facts which informed counsel for the accused at the trial to take the opportunity at the said trial denovo to plea-bargain.

39. Before passing the sentence, the trial Judge described the revenge the appellant unleashed on the victims as simply callous, wicked and devilish. Indeed, the appellant took the law into his own hands to absurd limit. The trial Judge has the right to impose a sentence he considered commensurate with the gravity of the offence in the exercise of his discretion. That notwithstanding, the sentence of years IHL on conviction for manslaughter is excessive. It appeared to me it is unheard of because I could not find any good precedent for it.

40. In imposing the sentence of 30 years IHL on the appellant, the trial Judge rightly made reference to Article 14 (6) of the 1992 Constitution. But by ordering the sentence to start to run from the date of arrest in 2007, the trial Judge had made the sentence to ran retrospectively. The Constitution abhors legislation which takes effect retrospectively.

41. Similarly, it is unconstitutional for a court to make an order and direct that it is applied retrospectively. The trial Judge therefore erred in directing that the sentence of 30 years IHL he imposed on the appellant on 19th February, 2013 should be calculated back to the date of his arrest in 2007. The order is also violation of s.315(3) of Act 30, which provides that a sentence of imprisonment commences on and includes the day on which it is pronounced.

42. The operative words of Article 14 (6) of the Constitution are that any period of confinement spent in lawful custody during the trial of the case and before the completion of the case shall be taken into account by the trial court when it imposes the sentence after conviction. What it means in the particular instance of this case is that the trial Judge should have deducted the six years the appellant spent in lawful custody before completion of the case and conviction, from the 30 years and impose a sentence of 24 years IHL which will start to ran from the date of conviction, which is 19th February, 2013. See Frimpong @ Iboman vrs The Republic [2012] 1 SCGLR 297 and Bosso vrs The Republic [2009] SCGLR 420.

43. But then, a sentence of 24 years IHL will appear to be again excessive in circumstances of this case. Accordingly, we reduce the sentence to 12 years IHL effective from 19th February, 2013, the date of conviction. To the extent of that variation ground two of the appeal is allowed. However, since the ground one of the appeal against conviction failed, the appeal itself fails and it is dismissed.

K. AYEBI (JUSTICE OF APPEAL)

G. TORKORNOO (MRS.),               I agree       G. TORKORNOO

(JUSTICE OF APPEAL)

A. M. DOMAKYAAREH (MRS.),        I also agree  A. M. DOMAKYAAREH

                    (JUSTICE OF APPEAL)