DONATUS V THE REPUBLIC (BE/TN/HC/F15/01/2025) [2025] GHAHC 160 (28 February 2025)

1 IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT TECHIMAN IN THE BONO EAST REGION ON FRIDAY THE 28th DAY OF FEBRUARY2025BEFORE HIS LORDSHIP JUSTICEKWAME GYAMFIOSEI CASE NOBE/TN/HC/F15/01/2025 ABILIMSIGEDONATUS INMATESUNYANI PRISONS SUNYANI :APPELLANT VRS THEREPUBLIC :RESPONDENT ========================================================================== JUDGMENT In the Circuit Court, Techiman the Appellant was charged with the offence of Careless and inconsiderate driving contrary to Section 31 of the Road Traffic Act 2004 ( Act 683) as amended by Act761 of 2008 and Negligently causing harm contrary to Section 72 of the Criminal Offences Act 1960 [Act 29]. The Appellant pleaded not guilty to the charge 1 2 of Careless and inconsiderate driving but guilty to the offence of Negligently causing harm. The Appellant was convicted on the offence of Negligently causing harm and sentenced to 18 months imprisonment. The prosecution withdrew the offence of Carelessand inconsideratedriving and same was struck outas withdrawn. It is from this judgment that the Appellant has appealed to this court by Notice ofAppealfiled on28/11/24 onthe following grounds; a. “That the trial court erred in law by failing to explain to the convict the nature of the offence charged and consequences of the plea of guilty b. That the whole trial was irregular and occasioned a miscarriage of justice c. Thatthe Convict could not inlaw have been guilty for count two, the offence of negligently causing harm contrary to section 72 of Act 29 without being found guilty for count one, the offence of careless and inconsiderate riding contrary to section 31 of the Road Traffic Act 2004 (Act 683) as amended by Act 761 of 2008 since count two dependent on count one and ther trial judge should have entered not guilty for the Convict/Appellant once the Convict/Appellant pleaded notguilty to countonethrough pleading guilty to count two. 2 3 d. That when the prosecution withdraw count one the trial judge should have discharged the Convict/Appellant on count two since Counttwo was dependent oncount one e. That the explanation of the Convict/Appellant amounted to a plea of not guilty and the trial judge should have changed the Convict/Appellant plea of guilty to not guilty to go through a full trial. f. Thatthe Convict/Appellant plea ofguilty was not voluntarily made g. That the trial judge erred in law by failing to consider the mitigation factorson the basis thatthe occurrence of death eroded same h. That the sentence was harsh and excessive considering the brief facts ofprosecution and the circumstances asafirst time offender.” I intend to deal with ground “e” since it has the capacity to render the other grounds mootorirrelevant.Ground “e”reads “e. That the explanation of the Convict/Appellant amounted to a plea of not guilty and the trial judge should have changed the Convict/Appellant plea of guilty to notguilty to gothrough afulltrial.” On this ground counsel for the appellant argued that when the Appellant was asked by the judge as to why he pleaded guilty the Appellant said he did not anticipate the child would suddenly cross the road hence the accident. According to counsel this 3 4 fact coupled with the facts as presented by the prosecution the guilty plea should have beenchanged and aNon-guiltyone enteredinfavourofthe Appellant. Responding to this ground counsel for the Republic maintained that the charges were read and explained to the Appellant. The court also explained the effect of pleading guilty and non-guilty to the Appellant and he understood same before pleading guilty. According to counsel he was duly convicted and sentenced based on his ownguilty plea hence theappealought tobe dismissed. First of all, it is trite that an appeal could be launched against a conviction and sentence based on a plea of guilty by an Accused person. In the case of ALPHA ZABRAMA v. THE REPUBLIC [1976] 1 GLR 291-305 Taylor J gave one of such instances asfollows in holding 2D “(d) If the appellant pleaded guilty but gave an explanation which practically amounted toadefence ornegatived theplea ofguilty..” You may also see the case of Ofei v. The State [1965] G.L.R. 680. Now was there anything before the judge which should have compelled him to change the plea of guilty to not guilty? Before same is answered I would reproduce the terse proceedings dated21stNovember2024.It isas follows “THE REPUBLIC V. ABILIMSIGE DONATUS ACCUSED: Present at 8/45. Prosecution: Chief Inspector Emmanuel Kudahor. 4 5 Disclosuresmade- chargeand factssheet served onAccused person Sameexplained to accused inEnglish. Chargereadand explained toAccused personinEnglish. The effect ofguilty and not guilty plea explained toaccused person PLEA Countone: NotGuilty Counttwo: Guilty Factsreadby prosecutorasper the sheet attached tothecharge sheet. By court: Accused is convicted on his own guilty plea on count two. He is pronounced guilty by this count two. One: Whydo yousayyouareguilty oncount two. Answer: I saw the children with some elderly persons. I did not anticipate thechild crossing theroadhence my hitting him. Pre-SentenceHearing Ageaccused mitigationfactor. Age35yearsworkatVRA asan electrician onacausal basis (2)remorseful (3)Early Plea (4)unmarried (5)Bread winner for family 5 6 Aggravation Deathoccurredas aresult oftheaccident By court: The aggravation factor of the death of a child outweighs the mitigationfactors Sentence Accused is sentenced to eighteen months term of imprisonment with hard labour. Prosecution: We wish towithdrawcount one. By Court: Court one is struck out for want of prosecution. Accused is herebydischargedoncount one” It could be seen from the record of proceedings that after the conviction the trial judge asked theAppellant thus “One: Why doyou say youare guilty on counttwo. Answer: I saw the children with some elderly persons. I did not anticipate the child crossing the roadhence my hittinghim.” (Emphasis mine) When the Appellant made that statement the trial judge should have activated specifically Section 171 (2) of Act 30 and entered a plea of not guilty on his behalf because that statement is a viable defence to the offence of negligently causing harm. The said Sectionreadsasfollows; “Section 171—Accused tobe called uponto Plead. 6 7 (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 guiltyornot guilty. In stating the substance of the charge the Court shall state particulars 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 thesectionofthe enactment creating theoffence. (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 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 itsufficient cause to the contrary.”(emphasis mine) Act 30 recognizes a plea of guilty and not guilty. However if a plea of guilty is entered but the accused says anything which points to a defence to the offence charged, then however weak that defence might be, the plea ought to be changed to that of not guilty. That is why Section 171 (2) of Act 30 provides that even after conviction if the court finds sufficient cause it should change the plea. 7 8 It is trite learning that the mere fact that an accident has occurred and someone has succumbed to his injuries is no evidence of negligence. Hence that statement by the Appellant was sufficient cause for the trial judge to have changed the plea from guilty to not guilty. It could even be inferred from these facts that the explanation in respect of the second count was notproperly done because athin runsseparates the ingredients of the two offences the Appellant was initially charged with. If the victim suddenly crossed the vehicle ofthe Appellant at atime he least expected, why would be plead not guilty to count one but guilty on count 2. That explanation should have compelled the trial judge to change the plea. Evidence should have been taken to find out whether the accused did not exercise reasonable care under the circumstances he found himself. The explanation amounted to a possible defence hence the trial judge erred when he maintained the guiltyplea and proceeded tosentence him That omission on the part of the trial judge has clearly occasioned a substantial miscarriage of justice and on the basis of that the appeal ought to succeed on ground “e” and which I hereby do. With this holding I find no need to discuss the other grounds of appeal. The conviction and sentence of the Appellant on the 21st of November 2024 is accordingly set aside. Since the Appellant has served 4 months in prison, Iwould notorderaretrial. Heis discharged. (SGD) 8 9 KWAME GYAMFIOSEI JUSTICEOF THE HIGH COURT TECHIMAN-BER. SAMUEL VANDA-ICE ESQFORTHE APPELLANT PRESENT DEREK ASANTE OBENGESQ (SA)FORTHE RESPONDENTPRESENT 9