PDF-
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2019
BENJAMIN DANKWAH& ANOTHER - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 30TH APRIL, 2019
CRIMINAL APPEAL SUIT NO: H2/11/19
JUDGES: M. OWUSU JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
LAWYERS:
ISAAC BARNABAS KOKU DZASA BEING LED BY MR. CHARLES AGBANU FOR THE APPELLANT
CECILIA ANIMAH PEPRAH TAKYI WITH HER AKOSUA ASANTEWAA SARPONG OSEI-AFRIYIE FOR THE REPUBLIC/RESPONDENT
JUDGEMENT
DZAMEFE, JA
The appellant, Benjamin Dankwah together with Akwasi Prempeh were jointly charged for conspiracy contrary to Section 23(1) and Section 149 of Act 29, 1960 and Robbery contrary to Section 149 of Act 29 of 1960 as amended by Act 646 of 2003.
Plea: The two accused persons pleaded guilty with explanation to both counts.
Facts
There are no facts recorded in the record of appeal.
COUNT ONE
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT AN OFFENCE TO WIT ROBBERY: Contrary to Section 23 (1) and Section 149 of Act 29 of 1960
PARTICULARS OF OFFENCE
BENJAMIN DANKWAH, Driver, AKWASI PREMPEH, Driver’s Mate: on or about the 23rd of February, 2007 at Abrepo in Kumasi, in the Ashanti Region did agree with a common purpose to rob a Taxi Cab.
COUNT TWO
STATEMNET OF OFFENCE
ROBBERY: Contrary to Section 149 of Act 29 of 1960 as amended by Act 646 of 2003.
PARTICULARS OF OFFENCE
BENJAMIN DANKWAH, Driver, AKWASI PREMPEH, Driver’s Mate: on or about the 23rd of February, 2007 at Brofoyedru in Kumasi, in the Ashanti Region did rob Kwabena Takyi of his Opel Kadett Taxi Cab No. GT 9803Q.
By Court: Each accused persons are convicted on their own plea of guilty with an explanation. Accused persons are therefore sentenced to a term of 24 years 1HL on each of the two counts, both sentences are to run concurrently.
This is all we have on the record of appeal as the proceedings from the trial, held at the High Court, Kumasi on Friday, the 2nd day of March 2007 before H/L Justice K. A. Pobih
Appeal
The appellant Benjamin Dankwah dissatisfied with the judgment appealed against the conviction and sentence pursuant to leave of this court dated 22nd May 2018.
Grounds of Appeal
i. The court below grossly erred in law in accepting the alleged guilty plea of the appellant who was not represented by counsel without first explaining to him the nature of the charge or charges and the procedure which would follow the acceptance of the plea of guilty, a non-compliance with a mandatory statutory provision which has occasioned a substantial miscarriage of justice.
ii. The court below erred in law in not recording in writing the statement made by the appellant in answer to the two charges as he allegedly pleaded guilty with the explanation as borne by the record thus rendering the record of proceedings incomplete and null and void, a non-compliance with imperative statutory provision which had occasioned substantial miscarriage of justice.
iii. The learned trial judge erred in law in convicting and sentencing the appellant when there are no facts recorded as given by the prosecution in support of the two grave felonious offences which formed the basis of the charges preferred against him.
iv. The custodial sentence of 24 years I.H.L. imposed on the youthful appellant in 2007 was harsh and excessive in the circumstances.
v. Additional grounds to be filed upon receipt of the record of proceedings.
Submissions
Ground 1
Counsel for the appellant submit that the procedure adopted by the trial court is at variance with the law and procedure as far as prosecution of criminal cases in Ghana is concerned, and any conviction and sentence based upon such a charade should not be allowed to stand.
Counsel states that quite apart from that no explanation of the appellant was recorded in compliance with the mandatory provision in Section 171(2) of the Criminal Procedure Code, Act 30 of 1960.
The Section provides: -“if the plea is one of guilty the plea shall be recorded as nearly as possible in the words used and the court shall convict the accused person and pass sentence unless there shall appear to it sufficient cause to the contrary”.
Counsel submits that non-compliance with imperative statutory provisions by a trial court is breach of statutory duty rendering any conviction and sentence based on same a nullity. He referred this court to the case of Asamoah vrs. The Rep [1984/6] 2 GLR 769.
It is his submission that the conviction and sentence in the instant appeal cannot stand. Counsel argued there are several flaws in the proceedings for example prosecution offered no facts in support of the two purported charges to enable the presiding judge access whether or not the charges were supportable having regard to the facts. It is his contention that in the absence of any facts proffered by the prosecution to the charges the trial court lacked competence to accept the purported pleas of guilty and utilize same to convict and sentence the appellant.
Counsel insist that the trial court by not complying with the mandatory provisions of Act 30 Section 171(1) and (2) has occasioned a substantial miscarriage of justice entitling the appellants’ appeal to succeed.
Counsel for the respondent in response said “Respectfully, it is obvious that the record from the trial court is incomplete due to the non-compliance of Section 171(3) of the Criminal Procedure Code, 1960 (Act 30). Thus, the incompleteness of this record will deprive this honourable court of the opportunity of reading the explanation or otherwise of the appellant to enable it determine whether or not the appellant intended to plead guilty to the charge or intended to plead not guilty by his explanation”.
Counsel for the state submitted that the failure of the trial judge to record the explanation had created serious doubts as to the intended plea of the appellant and the justice of the matter demands that his conviction should not be made to stand since it obviously amounts to a substantial miscarriage of justice as envisaged by Section 31(1) of the Courts Act, 1993 (Act 459).
From the record of appeal, the trial High Court recorded the plea for the appellant as “guilty with an explanation” for both counts. The court went on the state “Each accused persons are convicted on their own plea of guilty with an explanation”
Section 171(2) of the Criminal Procedure Code, Act 30, 1960 states: “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 guilty by 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”.
In the proceedings following the plea of guilty any statement made by the accused in answer to the court must be recorded by the court in writing and should form part of the record of proceeding. Where the accused pleads guilty but adds words indicating that he may have a defence or gives that indication in his answer to the court, the court must enter a plea of not guilty and record it as having been entered by the order of the court. Quite often when an accused pleads that he is “guilty with explanation” he may actually mean a plea of not guilty when the explanation comes out or it may mean he is in fact guilty but saying something towards mitigation of punishment. It is therefore obligatory on such trial judge to record the explanation or other statements of the accused to form part of the records. An appellate court, for example, would want to know why the plea of guilty was accepted by the trial court in one case and not in the other.
See (i) Section 199(3)& (4) of Act 30
(ii) The State vrs Adam Mamprusi [1965] CC 127
(iii)The State vrs Poku [1967] CC 31
If after hearing the explanation or “other words” of the accused and the trial court is of the opinion that the plea should be one of not guilty, it ought to alter the plea of the accused accordingly. Any explanation inconsistent with a plea of guilty should cause the court to take this course and to proceed with the trial. Should the trial court decide not to alter the plea, the appellate court has the right on an appeal against conviction, to order a re-trial if in its opinion a plea of not guilty should have been entered by the trial court.
The law is trite, that in criminal trials, where the accused person pleads guilty to a charge the court must record (i) The facts of the case to enable one to know whether they support the charge; and (2) any explanation that the accused offers as to whether the accused really meant to plead guilty. If his explanation is inconsistent with a plea of guilty the court must enter a plea of not guilty and proceed to trial.
Section 199(3) of Act 30, 1960 states; -
(3) Any statement made by the accused in answer to the court shall be recorded by the court in writing and shall form part of the record of the proceedings.
(4) where the accused pleads guilty but adds words indicating that he may have a defence or so indicates in answer to the court, the court shall enter a plea of not guilty and record it as having been entered by order of the court.
In the instant appeal, the appellant pleaded “guilty with an explanation” as recorded by the trial High Court Judge. However, there is nothing on record as to the explanation the appellant offered.
It is obligatory on the trial judge in such situations to demand the explanation from the accused and record same as near as possible the words used by the accused. The judge shall ask for the explanation and record same as much as possible as it was said. It will be a miscarriage of justice if the trial judge fails to ask for that explanation especially if the accused is unrepresented.
As said earlier it is obligatory on such a trial judge to alter the plea of the accused to “not guilty” if after listing to the explanation he thinks the explanation gives the accused a defence to the charge. Failure to do so will render the trial a miscarriage of justice. That duty of the trial judge to ask for the explanation and record same is a statutory duty imposed on him and any failure to carry it out renders it a breach of statute thereby rendering any conviction and sentence based on such non-compliance a nullity and therefore cannot stand.
In the instant appeal, the trial High Court Judge failed to record the explanation given by the accused person. Assuming he never even offered one, it was obligatory for him to ask the accused to offer his explanation. The trial judge’s failure to carry out these two functions occasioned a statutory breach and therefore the conviction and the sentence of the accused is a nullity and therefore cannot stand.
The conviction and sentence of the accused is hereby declared a nullity and same quashed. That ground of appeal succeeds.
Facts
There are no facts recorded in the record of appeal. The facts of a case are so important and it is therefore incumbent upon a judge or magistrate to record the facts of the offence as given by the prosecution even after a plea of guilty, because it is upon those facts that the severity or otherwise of sentence depends. Furthermore, a convicted person is entitled to appeal against his sentence even though he had entered a plea of guilty. An appellate court can only properly deal with such an appeal when the facts have been recorded.
See Tetteh Asumaday @ Osagyefo & Anor vrs COP [1967] CC 31.
The essence of facts in a criminal trial cannot be over emphasized. From the facts the trial judge forms his opinion about the charges preferred against the accused on trial. From the facts he determines whether the charge preferred against the accused in right or wrong. In some cases, the trial judge advice the prosecution to substitute the original charge for the appropriate charge. Normally after the plea has been recorded, the prosecution gives the facts of the case. The object primarily is to assist the court in determining the sentence which it should impose and also to enable anyone afterwards examining the record of proceedings to know whether the facts as known to the prosecution supported the charge preferred. See Tetteh Asumadey @ Osagyefo (supra). From the facts, an appellate court can make its informed decision as to whether the charge preferred against the accused, based on those facts, was appropriate or not. Secondly, on appeal the appellate court can decide whether the prosecution has established it case or not to merit a conviction. Without the facts the appellate court has no basis to determine an appeal in a criminal appeal such as the instant appeal whether the conviction was right, based on the facts given by the prosecution.
In the instant appeal, this court is deprived of the opportunity to assess the facts as given by the prosecution to determine whether the conviction was based on those facts. Without the facts this appellate court cannot determine whether the trial courts conviction and sentence was based on the facts. Even if the conviction was based on a plea of guilty, simplicter, the sentence must be based on the facts except in cases where the sentence is prescribed e.g. murder
The trial court erred in not recording the facts of the case which also sins against criminal proceedings.
Counsel for the respondent was right in their submission on this point that there was no statutory obligation on the trial judge to record the facts, but in practice the facts are always given after the plea is taken. For the accused to offer a plea, the charge must have been read and explained to him in the language he understands and therefore knew the charge for which he was standing trial.
I am however of the opinion that the fact that the trial judge failed or erred in not recording the facts per se will not render the trial a nullity. Though it is desirable, his failure will not render the proceeding a nullity because strictly speaking, that requirement of recording the facts is not statutory. Section 171 (1) & (2) never mentioned recording of facts.
That ground of appeal fails.
On the totality, this court is of the decision that the trial courts’ failure to record the appellant’s explanation occasioned a substantial miscarriage of justice. That explanation could make us decide whether he intend pleading guilty or not guilty to the charge. In effect whether the appellant is guilty or not guilty to the charge is in doubt.
His conviction occasioned a substantial miscarriage of justice and it is hereby quashed. This court has the option of ordering a re-trial but for the fact that the appellant had been in prison from 2007 to date, we shall acquit and discharge him.
The appellant is therefore acquitted and discharged.
