ADAMS VRS REPUBLIC (.F22/05/2024) [2024] GHAHC 362 (9 July 2024)

1 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, WENCHI - BONO REGION HELD ON TUESDAY 9TH JULY, 2024. BEFORE HER LADYSHIP MARIAM SALEH SINARE SUIT NO.F22/05/2024 HARUNA ADAMS CONVICTS/APPELLANTS IDDRIS SEIDU VRS. THE REPUBLIC RESPONDENTS PARTIES APPELLANTS IN LAWFUL CUSTODY LAWYERS ▪ DANIEL KORANG ESQ. FOR CONVICTS/APPELLANTS ▪ THE REPUBLIC ABSENT JUDGMENT This Appeal was filed by Counsel, Daniel Korang on behalf of the Appellants herein against their conviction and sentence of 12 months by the District Court Wenchi on the 4th March 2024 in respect of conspiracy to steal and stealing contrary to section 23 (1) and 124 (1) of the criminal and other offence Act, 1960 Act 29 as amended by Act 646 of 2003. The Appellants before me are aggrieved by their conviction and the 12 months sentence imposed on them and are humbly praying that their conviction and sentence be set aside. 2 In line with my core mandate to rehear this appeal I would ascertain from the Record of Appeal whether or not in the circumstance of this case, the Appellants were deserving of their conviction and the 12 months sentence imposed on them by the trial court or whether the sentence was in accordance court with law. Brief of the facts On the 1st day of March, 2024 about 2:00pm complainant returned from Mosque after the Jumah prayers. He locked and packed his white Haojue motor bike, with Registration number M – 24 – GR – 1924 just in front of his door at his house at Wurompo Junction at Wenchi and entered his room with his friend to eat. Whilst the complainant and his friend were inside the room eating A1 and A2 saw the motor bike parked in front of the house. Realizing that there was nobody around, the two broke the steer lock of the bike and pushed it away through the Wenchi Farm Institute Orange Plantation and parked the bike in A2’s House at Wenchi Boadan. Accused persons after stealing the motor bike went ahead and removed all the plastic Covers of the motor bike leaving only the skeleton of the bike so that nobody will be able to identify same. Complainant reported the case to the Wenchi Police and during investigation, police arrested the Accused persons and the motor bike was retrieved. After careful investigation Accused persons were charged with the offences and arraigned before the District Court Wenchi. Decision of the District Court At the trial on the 4thMarch 2024 Accused persons that is A1 and A2 pleaded guilty to the two counts that is conspiracy to steal and sealing simpliciter. The court convicted them on their own pleading of guilty and sentenced each of them to 12 months imprisonment on each count and sentence to run concurrently. Grounds of Appeal On the 22nd March 2024 the Appellants filed their appeal against their conviction and sentence on the following grounds. 3 a. That the fact and particulars of offence did not support the charge of conspiracy preferred against the appellants in count one. b. That the court failed to adequately explain the substance of the charges to the Appellants. c. That the Appellants, who were not represented at the trial did not properly understand or appreciate the nature of the charges against them. d. That the guilty pleas upon which the Appellants were convicted and sentenced were mistaken, uninformed, unintelligible, made in ignorance and that the Appellants did not intend to admit that they were guilty of the charges as they were improperly induced by the police to plead guilty. e. That there is a miscarriage of justice by a wrong acceptance of the pleas of guilty by the District Court. f. That the sentence of twelve (12) months imposed on the Appellants is wrong, null and void. g. That the learned Magistrate erred in law by failing to consider mitigation factors in imposing the sentence of twelve (12) months on the appellants THE LAW It is a settled principle of law, that an appeal is a creature of statute and as such the right to appeal at any stage of a trial, whether, criminal or civil, and to which court and through what means or procedure is all governed by law. Under the criminal procedure Act, 1960 (Act 30) the right to appeal to the high court in a criminal case from a lower court is provided by the section 324 as well as under section 44 (2) of courts (Amendment) Act, 2002 (ACT 620). The position of the law is that, every appeal is by way of rehearing. In Dexter Johnsons VS. REPUBLIC (2011) 2 SCGLR The 601 at 606 , the Supreme Court per Dotse JSC, Anim Yeboah and Aryeetey JJSC Concurring (Holding 3) explained thus. 4 “what was meant by an appeal being by way of re-hearing was that the appellate court had the power to either maintain the conviction and sentences, set it aside and discharge or increase the sentence” REPUBLIC VS HIGH COURT ACCRA; EX- PARTE APPIAH &ANOTHER WATERVILLE HOLDING VS. REPUBLIC 2013 1SCGLR 125, the supreme court under scored that an appeal is not merely a review of the decision of the lower court but a rehearing, which allows the appellate court to consider the case a new In the case of Amankwah, VS THE REPUBLIC( J3/04/ 2019) GHASC 27 DATED 21ST JULY 2021 the Supreme Court Speaking through Dotse JSC’ explained the concept as pertains to criminal trial as follows. ‘’ … applying the above principle in a criminal Appeal might result in the court embarking upon the following to analyse the entire Record of Appeal and this must include the charge sheet, the Bill of indictment (where applicable), the witness statement of all witness, all documents and exhibits tendered and relied on during the trial, as well as the evidence during – testimony and cross examination. To satisfy itself that the prosecution has succeeded in establishing the key ingredient of the offence charged against the Appellants beyond reasonable doubt. And that the entire trial conformed to settle the procedures under the criminal and other offences procedure Act, (Act 30) and that the acceptable rules of evidence under Evidence Act (NRCD) 323 have been complied with including the Practice Direction issued following the decision in the Republic Vs. Baffoe – Bonnie And 4 Others (2017 – 2020) 1 SCGLR 322 Case.’’ See Court Acts, 1993 Act 459 section 31 when its states. (1) subject to subsection (2), of this Section, an Appellate court in hearing any Appeal before it in a criminal case shall allow the appeal if it considers (2) that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or 5 (3) that the Judgment in question ought to be set aside on the ground of wrong decision on a question of law or fact or (4) that there was miscarriage of Justice, and in any other case shall dismiss the appeal. However, it is also the principle that an Appellate court can interfere with a conviction which is deem wrong in law or not borne out of the facts and set it aside notwithstanding the fact that the appeal was not against conviction. It was stated in Forson Vs. The Republic 1975 JELR 66385 HC. Taylor J as he then thus. ‘‘ it is my opinion that an appeal against sentence where the conviction is not being challenged as in this case necessary implies that the conviction is prima facie in order, However, if the conviction is not in fact in order it cannot support a sentence and in such a case the sentence and in such a case the is set aside as it ought to be, then, with it goes the conviction.’’ Analysis The Accused Appellants were arraigned before the court on the 4/3/2024 for the offences of conspiracy to steal and stealing. The convict/ appellant pleaded guilty to the two (2) counts that is conspiracy to steal and stealing simpliciter. Counsel for Convicts/Appellants stated that the facts and particulars of offences did not support the charge of conspiracy preferred against the Appellants. The basis of his argument is that the Accused persons were convicted and sentenced under old Rendition of conspiracy under section 23 Act 29 which provides as follow. “ where two or more persons agree or act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a pervious concert or, each of them commits a conspiracy to commit or abet the deliberate criminal offence.” It is his case that, the old rendition of conspiracy has been changed and modified. Hence the new formulation of conspiracy under Act 23 (1) Act 29 is as follows. 6 Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a pervious concert a deliberation, each of them commits a conspiracy to commit or abet that crime. It is the case of counsel for the appellant that, there is a world of difference between the old and new law of section 23 (1) of Act 29. Thus under the old law the prosecution needed to prove only one of two things: one is that, the Accused persons agreed to act together. The other is that, even without previously agreeing to act together; they acted together in furtherance of the commission of a crime. Whiles the new stipulate that the prosecution has to prove one thing: that the Accused persons agreed to act together. Thus if the prosecution succeeded proving that even without a previous agreement to act with a common purpose ,the accused persons nonetheless acted together to commit a crime , then the prosecution had succeeded. Now, under the new law of section 23 (1) of Acts 29, it is obligatory for the persecution to prove that there was a prior agreement to act together in furtherance of the commission of crime. Thus under the new law ,the prosecution cannot simply depend on proving that the accused person acted together ,the prosecution must go further and prove that there was a prior agreement between or among the accused persons to act together . This view of the law has been endorsed in the court of Appeal case AGYAPONG VS REPUBLIC [2015] 84 G.M.J; In the instant case, what did the particular of offence indicate? It did not show that the Accused person agree to act together to suggest a charge of the new Rendition of section 23 (1) of Act 29 which has been affirmed and discussed in a Recent – decisions of the Court of Appeal and Supreme Court. The Supreme Court pointed out in the recent case of Yirenkyi vs. The Republic {2010} 99 GM. J1. of P 11. In this new formulation, the only ingredient- that has been preserved is the agreement to act to commit a substantive crime to commit or a bet that crime,” on P. 49 of his judgment; Dotse JSC noted that. 7 “ In deed, if the learned trial Circuit Court Judge had adverted her mind to the new formulation in section 23 (1) of Act 29, She would not have concluded that the appellant and the others agreed to commit a crime.’’ The Republic/Respondent in her response in analyzing the conspiracy issue, stated that, the appellants were charged with two counts, count one, conspiracy to steal and count two, stealing, ‘as such even if credence is given to the fact that the facts do not support the charge of conspiracy the facts as narrated clearly support the charge of stealing for which the appellants were rightly convicted.’ The statement by the Republic therefore seems to suggest that they have thrown in the towel. That is, the Republic has observed and acknowledged the fact that, the conviction of the appellants on count one that is conspiracy to steal was wrong in law though they pleaded guilty to the charge. Having noticed that the conviction and sentence of the appellant on count one (1) was clearly wrong in law and sinned against 1992 constitution, Article 19 (2) (c), and with the power of rehearing and having noticed an error of law and substantial miscarriages of justice in this regard, I will have both conviction and sentence on count one on the offence of conspiracy to stealing set aside and acquit and discharge the Appellants on that count. On Count two (2) on a charge of stealing the Appellants plead guilty simpliciter. The taking of the plea of an Accused person in a summary trial which is what happened in the instant case is Regulated by Section 171(3) of the criminal and other offences Act of 1960, (Act 30) and section 199 in a trial on indictment. Section 171 (3) states: ‘’ a plea of guilty shall be recorded as clearly as possible in the words, used or if by letter under 70 (1) the letter shall be placed on the record and the court shall convict the Accused and pass sentence or order against the Accused unless there appears to it sufficient cause to the contrary”. According to the counsel for the Appellant the court failed to adequately explain the substances of charge to the Appellant That the appellants were unrepresented during the trial, did not properly understand or appreciate the nature of the charges against them That, before their appearance at the court for the trial the police had advised them to 8 plead guilty so that the magistrate would have mercy on them. So when the charges were read to them they hurriedly pleaded guilty simpliciter and they were convicted and sentenced. In Response, counsel for the Republic stated; section 199 (1) of the criminal and other offences Act 1960 Act 30 provides that 199 (1) plea of guilty, 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 follow the acceptance of a plea of guilty 171 of Act 30 also provides that. ‘’ Accused to be called upon to plead where the Accused appears personally or by counsel as provide under section 79, the substance of the charge contained in the charge sheet or compliant shall be stated and explained to the accused or if the accused is not personally present to counsel of the accused, and the accused or counsel of the accused shall be asked to plead guilty or not Guilty. As an the Appellate court, with the right of rehearing I am enjoined to consider the entire record of Appeal and fish out whether there is any statement on record to show that the charges were explained to accused persons to plea. I see no record of such nature. There being no record to the effect that the charges were explained to the Accused persons, then there is a violation of the Appellants right to a fair trial. Thus the trial proceedings may be deemed invalid if the Appellants were not properly informed of the charges against them. This is because understanding the charges is fundamental to preparing an adequate defence. Hence failure to comply with section171 (1) of Act 30 by not explaining the substance of the charge, makes the trial invalid. It is my considered opinion, the trial judge should have recorded that, the charges were explained to the Appellants in the language of their choice to their understanding before their Pleas were taken. Since the trial judge failed to do that, it could be inferred that the Appellants did not appreciate or understand the charges or procedure. And so, if they 9 did plea, they pleaded guilty by mistake. The law is that a conviction ought not to stand where it is not clear whether the Accused understood what he was doing or that he did not intend to admit the statutory offence with which he was charged See Offei vs. State (1965) GLR 650 Ollennu JSC delivering the judgment of the Supreme Court laid down the law at page 686 that; “ the law is that a court must not take a defendant to have admitted his guilt unless he does so in unmistakable terms” 1. As an Appellant court, with the power of the rehearing, l am yet duty bound to e nsure that the Appellants especially not defended then by counsel, does not suffer substantial miscarriage of justice. The plea of guilty entered on count 2 by the Appellants is wrong in law and therefore there is a miscarriage of justice by apparent wrong acceptance of their plea of guilty on count two See the case of Rahim Ibrahim and Ors vs. The Republic (2017) JELR 107062 CA. Dennis Adjei JA in his concurring judgment stated inter alia; An appeal against a decision rendered in criminal Appeal Succeeds only when it is prove or found that there was a miscarriage of justice against the Accused, section 31 of the Courts Act Sum up the grounds upon which criminal appeals may succeed. He further stated; ‘’ as a court of law, even though the 4th Accused did not appeal against conviction but was apparent that he ought to have been acquitted and discharged by the trial court, but was convicted .I am duty bound to ensure that a party whose case is before me does not suffer substantial miscarriage of justice and having come to that conclusion. I am duty bound to acquit and discharged the 4th Accused. An appellate court is duty bound to set aside a wrong decision of law or void decision irrespective of how it comes to the notice and in what form or shape.” 10 I have noticed that the Appellants are first time young offenders. This is their first brush of the law. Also there is no record of previous conviction of any criminal offence. They have spent five months in prison custody. The stolen item have been retrieved. In the circumstance, their conviction and sentence of twelve (12) months IHL on count two is hereby set aside. Accordingly, the Appellants are acquitted and discharged on both counts. H/L JUSTICE MARIAM SALEH SINARE (JUSTICE OF THE HIGH COURT)