IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
BENJAMIN DANKWAH & AKWASI PREMPEH - (Appellants)
THE REPUBLIC- (Respondent)
DATE: 23RD OCTOBER, 2017
SUIT NO: H2/06/2017
JUDGES: AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
COUNSEL FOR APPELLANTS: CHARLES AGBENU
COUNSEL FOR RESPONDENT: CECELIA ANIMA PEPPRAH TAKYI (SA)
TORKORNOO (MRS), J.A.
The record of this case covers all of two pages. The notice of appeal adds another two pages to the record of appeal. The lack of substance in how the case was conducted is the point that binds both parties to the appeal in their position that the appeal should be allowed. While Appellant counsel submits on one hand that the court should set aside the entire conviction on account of it being a nullity, Respondent counsel argues that failure by the Judge to follow the full procedure required by statute after taking the plea occasioned substantial miscarriage of justice. It did not lead to a nullity.
The Appellant was a driver’s mate. He was charged on two counts of armed robbery with one Benjamin Dankwah, a driver. The statement and particulars of offence were that on 23rd February 2007, they agreed with a common purpose to rob a taxi cab contrary to Section 23(1) and Section 149 of Act 29 of 1960. The cab belonged to one Kwabena Takyi and the incident occurred at Brofoyedur in the Ashanti Region.
When they appeared before the court on 2nd March 2007, the record reads that their charge was read and explained to them. Then their pleas were taken. They both pleaded ‘guilty with an explanation’. There is no record that the explanation was received and recorded. The court then proceeded to convict and sentence them. These are his words.
Each Accused persons (sic) are convicted on their own plea of guilty with an explanation. Accused persons are therefore sentenced to a term of 24 years IHL on each of the two counts both sentences are to run concurrently.
It is this conviction and sentence that have been appealed against. The grounds of appeal are
Grounds of appeal
The court below grossly erred in law in accepting the guilty plea of the Appellant who was not represented by counsel without first explaining to him the nature of charge of charges and the procedure which would follow the acceptance of the plea of guilty, a non-compliance with mandatory statutory provision which had occasioned a substantial miscarriage of justice.
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 pleaded guilty with 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.
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.
The custodial sentence of 24 years I.H.L. imposed on the youthful Appellant in 2007 was harsh and excessive in the circumstances.
Additional grounds to be filed upon receipt of the record of proceedings.
I think that the arguments of Appellant counsel were more clearly set out by counsel for Respondent and so I will quote from the submissions of Respondent. She said at the bottom of the first page of her submissions:
‘The Appellant’s counsel in arguing the appeal has submitted that since the Appellant pleaded guilty with explanation but the Trial Judge failed to record the explanation of the Appellant, then the Trial Judge has violated the statutory duty imposed on him by section 171 (2) of the Criminal Procedure Code, 1960 (Act 30), and consequently the trial is a nullity and the conviction and sentence should be set aside by this Appellate court.’
This is the first legal position that can be gleaned from Appellant counsel’s submissions. He closes that line of argument at the tail end of the penultimate paragraph on the second page of his submissions with the words
‘…it is respectfully submitted that since there are no facts recorded in the proceedings from which it could be deducted that in fact robbery took place, the conviction for the offence without facts in support renders the conviction incurably bad and null and void. ‘
He makes a second presentation on the third page that
‘However should the appeal against the conviction be disallowed, we would still pray for reduction of sentence for the Appellant is a young first time offender’
He cited the dictum of Taylor J as he then was in Kwadu v The Republic 1971 1 GLR 288 where the judge had said regarding the term of imprisonment that ‘it ought to be deterrent and short enough to satisfy the reformative element in criminal justice’
With this, he submitted that the Appellant had already been in prison for 10 years and learnt bitter lessons so his sentence should be reduced.
Respondent counsel agreed that the appeal should be allowed. She however submitted that the procedure used in arriving at the conviction did not violate statute. It was her position that ‘the Appellant had been tried summarily and the procedure in summary trials so far as taking of plea and its consequences are concerned are set out under section 171 of the Criminal and Other Offences (Procedure) Act, 1960 Act 30. Under section 171(3) of the Act, the trial Judge is legally bound to record the plea as nearly as possible in the words used so that if there was any explanation or words used which rendered the plea of guilty inconsistent with the words added, then the court would be bound to enter a plea of not guilty and proceed to try the case.’
It was her position that the plea was duly taken. She drew attention to the decision in Asamoah vrs The Republic [1984-86] 2 GLR 769, where ‘it was held that section 171 (3) of the Criminal Procedure Code, 1960 Act 30), imposed a statutory duty on trial courts to record as nearly as possible the plea of an accused person and an omission or failure to do that amounted to a breach of statutory duty and a conviction based on non-compliance with such duty amounted to a nullity.’
Her argument was that since the plea had been taken, the court had discharged the required statutory duty required by Section 171(2) and 171 (3).
Section 171(3) reads.
3. A plea of guilty shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1), the letter shall be placed on the record and the court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary.
On the requirements of Section 171 (3), she cited the decision of Acquah J (as he then was) in Dorvlo v The Republic 2001-2002 1 GLR 679 where as a high court judge, he had proposed guidelines for trial magistrate courts where the accused pleads ‘guilty with explanation’. The learned Judge had set down five steps which started with
a. Record the plea;
b. Record word for word, whatever explanation was offered by the accused;
c. Put down in writing to form part of the record, the court’s assessment of that explanation as to whether in the courts’ opinion such an explanation amounted to an admission of guilty or not, i.e. whether by that explanation the accused admitted having committed the offence;
d. If the court concluded from the assessment that the explanation amounted to an admission of guilt, he should make such a recording, and proceed to convict. If the court’s conclusion was that the explanation did not amount to an admission of guilt, the court should make a recording and enter a plea of “not guilty” and direct the prosecution to open their case; and
e. If the accused after pleading “guilty with explanation” failed to offer an explanation, the court should demand an explanation, and if he still refused to offer one, the court should enter a plea of “not guilty” and proceed to take evidence, for a plea of “guilty with explanation” without any explanation offered did not amount to a plea of “guilty”. In such a situation the court should assume that the accused had offered no plea”
Her submission was that since the trial judge had recorded the plea but failed to record the explanation, what is missing is whether the explanation was offered but not recorded, or whether the accused did not offer any explanation at all. She agreed that with no explanation in the record of appeal, this made the record from the trial incomplete.
She went on to argue that ‘the incompleteness of the record will deprive this honorable court (of) the opportunity of reading the explanation or otherwise of the Appellant to enable it determine whether the Appellant intended to plead guilty to the charge or intended to plead not guilty by his explanation.’
On this point, she went on to conclude that because of the ‘serious doubts as to the intended plea of the Appellant, the justice of the matter demands that his conviction should not be made to stand since it amounts to a substantial miscarriage of justice as envisaged by section 31(1) of the Courts Act, 1993 (Act 459).
She next turned her attention to the submission of Appellant counsel that the failure of the trial judge to record the facts of the case renders the conviction incurably bad and thus null and void. She disagreed with that position and said there that there is no statutory provision which enjoins a trial judge to record the facts given by the prosecution in support of the charge. She went on to point to the facts of the charge being found in the charge sheets.
On a rehearing of the scanty records, and consideration of the submissions of counsel, I agree with Respondent counsel that the failure to set out the explanation for the plea of ‘guilty’ did not render the conviction void. It tainted it with substantial miscarriage of justice.
First, there is no doubt that the court had jurisdiction to convict once the charge against the accused was part of the records, and the plea of the accused had been taken. When an accused appears before a court in a summary trial, the direction of Section 171 of Act 30 regarding the required procedure is to explain the substance of the charge under sections 171 (1) and (2). The provisions read:
where the accused appears personally or by counsel as provided under section 79, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to the accused or if the accused is not personally present to the counsel of the accused, and the accused or counsel of the accused shall be asked to plead guilty or not guilty.
in stating the substance of the charge, the Court shall state particular of the 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
In the present case, this procedure is recorded as fulfilled with these words ‘Charge Read and Explained’
The next statutory requirement is to take the plea. In section 171 (3), the statute only directs that a plea of guilty shall be recorded as nearly as possible in the words used. This is also recorded tersely in the Record of Appeal in the words:
PLEA: - Count One
A1 – Guilty with an explanation
A2 – Guilty with an explanation
A1 – Guilty with explanation
A2 – Guilty with explanation
The next requirement is that ‘and the court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary’
Now in criminal trials, it is the fundamental position that the only sufficient cause for conviction is if there is proof beyond reasonable doubt that the accused not only caused the offence with all the ingredients as set out in the statute that created the offence, but he also intended to cause that offence. In a plea of ‘guilty with an explanation’, the explanation will go to impact on whether there is sufficient cause to the contrary against conviction though the accused had pleaded ‘guilty’.
In the circumstances, the failure to set out the explanation as occurred in this case does not nullify the jurisdiction to convict. What it does is to deprive the determination of whether justice has been done by the conviction. In the absence of the record of what the explanation is, there is no material to determine if the conviction and sentence were justified or there is sufficient cause to the contrary. It is for the above reasons that the appeal is allowed on ground four of the appeal. The remaining grounds of appeal are dismissed. The conviction and sentence of the Appellants are set aside.