CONVICTION FOR OFFENCES OTHER THAN CHARGED IN GHANAIAN COURTS: AN AFFRONT TO THE CONSTITUTIONAL GUARANTEE AND INTERNATIONAL PRINCIPLES OF FAIR TRIAL.

 

BY:                            

HER HONOUR JUDGE SEDINAM AWO KWADAM (MRS.), CIRCUIT COURT 2, ADENTAN, ACCRA.

 AND                         

EMMANUEL BABUBOA ESQ., PRIVATE LEGAL PRACTITIONER.

 INSPIRED BY         

JOHN BAPTIST AYEDZE ESQ.,PRIVATE LEGAL PRACTITIONER,

LECTURER, UPSA LAW SCHOOL, ACCRA, GHANA.

 

DATE:  16^TH OCTOBER, 2024.

 

ABSTRACT

The right to a fair trial is enshrined in Article 19 of the 1992 Constitution of the Republic of Ghana. The comprehensiveness of this article underscores its critical role in safeguarding personal liberty. The stringent requirements for amending Article 19, including the necessity of an entrenched referendum, highlight Ghana’s constitutional commitment to fair trials, as the absence of such safeguards can lead to the irreversible loss of personal liberty.

Ghana is also a signatory to various International Human Rights Conventions and Treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), affirming the country’s commitment to safeguarding personal liberty among other fundamental human rights.

 

A principle of a fair trial in Article 19 mandates that an accused person be adequately informed of the charges they face so they can defend themselves effectively. Regardless of this hallowed provision, Sections 153, 154, 155, 156, 157, 158, 159, and 161 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which is Ghana’s current Criminal Procedure Act, permit the conviction and sentencing for offences not charged. In essence, these Sections grant the court the wide and indeed frightening discretion and power to convict and sentence the accused for offences they were never officially charged with, had no knowledge of, never pleaded to, were never tried for, and never defended against, but only discovered at the delivery of judgment.

 

Through a rigorous analysis of the relevant laws, the authors posit that convictions for offences other than those charged constitute a fundamental breach of the fair trial requirements envisioned in Article 19 of the Constitution, as well as International Conventions safeguarding human rights to which Ghana is a signatory. Additionally, the authors argue that these statutory provisions are prima facie unconstitutional under Ghana’s Doctrine of Constitutional Supremacy, which invalidates any law inconsistent with the Constitution.

 

The authors further, among several recommendations, make a case for the expungement of Sections 153 – 159 and 161, as well as a reform of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), in order to conform with the human rights principles envisioned in the 1992 Constitution and International Human Rights standards.

 

 

 

 

 

 

 

CONTENTS:

1. Introduction
2. Article 19 of Ghana’s 1992 constitution
3. Ghana’s fair trial provisions and International Human Rights standards
4. Examination of Act 30: Nature and classification for convictions for offences other than charged.
   1. Conviction for Attempt instead of the Offence Charged (Section 153 of Act 30)
   2. Conviction for a Lesser Offence other than Charged (Section 154 of Act 30)
   3. Conviction by Interchanging Offences (Sections 155 to 161 of Act 30)
      1. Conviction of Extortion on Charge of Corruption and vice versa
      2. Conviction of Receiving on Charge of Stealing

• Conviction of False Pretences on Charge of Stealing and vice versa

1. Conviction of Extortion on Charge of Robbery and vice versa
2. Conviction of Kindred offence on Charge of Rape or Defilement
3. Conviction of Motoring Offence on Charge of Manslaughter

 

5. Implications of sections 153-159 & 161 on the accused person’s rights to a fair trial
6. Prosecutorial discretion and consequences on fair trial
7. Case Study and Evaluation of the Courts’ application of Convictions for Offences Other than Charged on the Accused Person’s Right to a Fair Trial: Richard Banousin v. The Republic
8. Conclusion:
   1. Key arguments
   2. Impact of Convictions for Offences other than Charged on fair trial
   3. Recommendations for reforms
   4. Invitation for rejoinders
   5. Echoing Learned Justice Professor Sir Dennis Dominic Adjei JA’s advice

 

 

 

 

 

 

 

 

 

 

 

 

 

INTRODUCTION

The right to fair trial is outlined in Article 19 of the Constitution.[1] Article 19 is the longest article of the Constitution, and its comprehensiveness arguably, demonstrates the importance of fair trial to the constitutional scheme of things. It is extremely important because, without a fair trial, the right of an individual to personal liberty could be curtailed, and in some instances, irredeemably lost (in respect of conviction for some offences). It is not perplexing therefore that the Report of the Committee of Experts on the draft of the 1992 Constitution described the right to personal liberty as a corollary to the right to life.[2] Given this context, if the right to personal liberty which is a corollary to the right to life could be curtailed or lost through trial, then fair trial is definitively a relevant, if not the most relevant, fundamental constitutional guarantee.

This constitutional guarantee explains why the inalienable right to fair trial has been described in Ghanaian jurisprudence as a jus cogens.[3] That is, the right to a fair hearing is a peremptory norm of General International Law,[4] a norm accepted and recognized by the International Community of States as a whole, as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of General Law having the same character.[5] Fair trial, as embodied in Article 19 of the Constitution, just like the other fundamental human rights and freedoms enshrined in Chapter 5 of the Constitution, is entrenched. Thus requiring a referendum to amend the constitutional guarantee of fair trial.[6] This paper delves into the interplay between Sections 153 to 159 and 161 of Act 30[7] and the constitutional provisions governing fair trials.

 

The concept of fair trial embodies the following fundamental principles:

1. Presumption of Innocence[8]
2. Informed Charges[9]
3. Adequate Time and Facilities for Defence[10]
4. Examination of Witnesses[11]

 

The paper further reveals that notwithstanding the constitutional guarantee for fair trial, Sections 153 to 159 and 161 of Act 30 bestow on the court the wide and indeed frightening discretion to convict an accused person for offences other than the offence the accused person has been charged with.

Let us illustrate this:

An accused person is charged with “offence A” and defends against that charge during trial. However, the court convicts them for an entirely different offence, “offence B.” Here lies the catch: the accused was never formally charged with “offence B,” had no knowledge of it, never pleaded to it, was never tried for it, and never had the chance to defend themselves specifically against it during the trial. To add to the complexity, the witnesses who testified during the trial provided evidence related to “offence A,” not “offence B.” Essentially, the cross-examination of the witnesses by the accused focused on disproving “offence A,” not “offence B.”

 

Despite this, the court retains the power and discretion to convict the accused for “offence B” and not “offence A,” primarily due to a lack of evidence proving “offence A”. Even more frightening is the fact that on Appeal, the accused can be convicted on “offence B” even though the appeal focused on “offence A”.

 

The court’s justification is that the evidence supports a finding of guilt for “offence B” even though it was not charged. This situation raises significant questions about fairness and constitutional guarantees, as it diverges from the principles of a fair and just trial.

 

This paper argues that the discretion given to the court in Sections 153 to 159 and 161 of Act 30 is in sharp contrast with the principles of fair trial as envisioned in Article 19, as it constitutes an affront to the constitutional guarantee for fair trial and falls short of Internationally accepted standards of fair trial.

 

Furthermore, Ghana practices Constitutional Supremacy, a principle that elevates the Constitution above all other laws, as against Parliamentary Sovereignty,[12] where legislative Acts reign supreme. Therefore, any other law which is found to be inconsistent with any provision of the Constitution is void to the extent of the inconsistency.[13]

 

The humble opinion of the authors is that since Article 1(2) of the Constitution contains a built-in repealing mechanism which is automatically triggered in situations of constitutional non-conformity,[14] it is sound to draw the conclusion that Sections 153 to 161 of Act 30 which permit conviction for offences other than charged  by Ghanaian Courts, are prima facie, unconstitutional.

 

The authors further propose that Sections 153-159 and 161 of Act 30 should be repealed and consequently, the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) should be amended in order to bring it into resonance with the human rights principles enshrined in the 1992 Constitution and international human rights standards.

ARTICLE 19 OF GHANA’S 1992 CONSTITUTION

Article 19 of the 1992 Constitution of the Republic of Ghana is the bulwark of due process in criminal trials. It provides safeguards for the right to fair trial of a person alleged to have committed a criminal offence. Article 19 commences with an imposition on the prosecution to ensure that a person charged with a criminal offence is brought before a court and given fair trial within a reasonable time.[15] The subsequent provisions of Article 19 are dedicated to the components of fair trial.

 

These are discussed as follows;

1. Presumption of Innocence:

An accused person is presumed innocent until proven otherwise or until they plead guilty[16]. Thus, during the trial of an accused person, the presumption of innocence stands unwavering. This presumption insulates the accused, ensuring that they do not face bias or prejudice merely because they are charged with an offence.

2. Informed Charges:

An accused must be fully informed of the charges against them[17]. Knowing the charge and having clarity regarding the charge allows for effective defence preparation.

3. Adequate Time and Facilities for Defence:

Whether self-represented or assisted by legal counsel, the accused deserves sufficient time and resources to prepare their defence[18]. This fair trial principle requires that an accused person is afforded adequate facilities to prepare their defence and that they shall be afforded the necessary facilities to examine witnesses at his trial[19].

4. Examination of Witnesses:

Adequate facilities should be provided for the accused to examine witnesses called by the prosecution[20]. This ensures transparency and the pursuit of truth.

 

We shall set out the relevant provisions of Article 19 of the Constitution in extenso.

 

Article 19(1) and (2) (c), (d), (e) and (g) provides:

“(1) A person charged with a criminal offence shall be given a fair hearing within

a reasonable time by a court.

(2) A person charged with a criminal offence shall –

       (c)be presumed to be innocent until he is proved or has pleaded guilty;

       (d) be informed immediately in a language he understands, and in detail, of  the nature of the offence charged.

      (e) be given adequate time and facilities for the preparation of his defence;

      (g) be afforded facilities to examine, in person or by his lawyer, the

witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution.” [21] [Emphasis humbly supplied].

 

GHANA’S FAIR TRIAL PROVISIONS AND INTERNATIONAL HUMAN RIGHTS STANDARDS

We shall forthwith juxtapose Ghana’s constitutional provisions on fair trial with the international benchmarks established by Conventions to which Ghana is a signatory, as well as some Common Law jurisdictions.

The Republic of Ghana as a State Party, upholds fundamental human rights through its adherence to International Conventions. Our observation reveals that Chapter 5 of Ghana’s Constitution, 1992, which addresses Fundamental Human Rights and Freedoms, directly incorporates the International Bill of Rights, a tapestry woven from the Universal Human Rights and Freedoms as articulated in the Universal Declaration on Human Rights (UDHR).

In this symphony of legal harmonization, Ghana’s constitutional score resonates with global chords of justice. For instance, Article 19 of Ghana’s 1992 Constitution mirrors Article 10 of the UDHR, harmonizing with the spirit echoed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

It will therefore be important to set out the relevant provisions of these International Conventions for a comparative analysis.

1. Article 10 and 11 (1) of the UDHR provides:

“10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his right and obligation of any criminal charge against him;

11(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantee necessary for his defence”[22]– the emphasis is humbly ours.

 

2. Article 14 (1), (2) and (3) (a), (b), (e) of CCPR provides:

“(1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone

shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…

(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

           (c) To be tried without undue delay;           

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”[23] – the emphasis is humbly supplied by us.”[24]

 

3. The European Convention on Human Rights provides:

“6 (1) In the determination of his civil rights and obligations or of any criminal  

     charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

(2) Everyone charged with a criminal offence shall be presumed innocent

     until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail,

     of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his case

(c) to defend himself in person or through legal assistance of his own

     choosing…

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”[25]

 

4. The African Charter on Human and Peoples’ Rights provides:

“Every individual shall have the right to have his cause heard. This Comprises:

(b) the right to be presumed innocent until proved guilty by a competent court or tribunal

(c) the right to defence, including the right to be defended by counsel of his choice

(d) the right to be tried within a reasonable time by an impartial court or tribunal.”[26] – emphasis humbly ours.

 

5. The Constitution of the Federal Republic of Nigeria, 1999, provides as follows:

“(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

            (6) Every person who is charged with a criminal offence shall be entitled to:

(a) be informed promptly in the language he understands and in detail of the nature of the offence;

(b) be given adequate time and facilities for the preparation of his defence.

(c) defend himself in person or by legal practitioners of his own choice

(d) examine, in person by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution:”[27] – emphasis humbly supplied.

 

6. The Constitution of Kenya, 2010, provides as follows:

“50 (2) Every accused person has the right to a fair trial, which includes the right –

(a) to be presumed innocent until the contrary is proved;

(b) to be informed of the charge, with sufficient detail to answer it;

(c) to have adequate time and facilities to prepare a defence;

(i) to remain silent, and not to testify during the proceedings;

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

(k) to adduce and challenge evidence;

(l) to refuse to give self-incriminating evidence”[28] – emphasis supplied.

 

7. The Constitution of the Republic of South Africa, 1996, provides:

“Every accused person has the right to a fair trial, which includes the right:

(a) to be informed of the charge with sufficient detail to answer it.

(b) to have adequate time and facilities to prepare a defence.

(h) to be presumed innocent, to remain silent, and not to testify during

     proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;”[29]

 

The elements common to Ghana, International Conventions and the Common Law Countries cited include:

1. Presumption of Innocence: Across these legal frameworks, the accused is presumed innocent until proven guilty, a bedrock principle.
2. Right to Know Charges: Transparency prevails. The accused has the right to know the specific charges against them.
3. Adequate Defence Preparation: Adequate time and facilities for defence form part of this symphony of fairness.
4. Witness Examination: The accused can cross-examine witnesses called by the prosecution.
5. Protection Against Self-Incrimination: The right to avoid self-incrimination resonates.

Notably, Ghana’s Constitution dances in step with these International best practices. For emphasis, Ghana did not invent fair trial rights, rather, it joined a global waltz. Thus, in the context of this paper,  we argue that it would be rightly unconstitutional and condemnable for the Republic of Ghana, through its criminal procedure, to surreptitiously snatch away an accused person’s right to fair trial such as convicting them for offences other than charged.[30]

It is unequivocal that the right of an accused person to a fair trial is regarded by the international community as inviolable. The authors of this paper recognize the protections and enforcement mechanisms established by both international and domestic law to uphold this right. Therefore, it is imperative to highlight to all, especially the legal community and its relevant stakeholders, the concerning provisions within Ghana’s Criminal Procedure Act, 1960 (Act 30) that, alarmingly, allow the courts in Ghana to deviate from these widely accepted and protected principles of fair trial.

 

EXAMINATION OF ACT 30: CLASSIFICATION OF CONVICTIONS FOR OFFENCES OTHER THAN CHARGED

Act 30 serves as Ghana’s criminal procedure law, delineating the process for prosecuting individuals accused of criminal or other offences. It also facilitates the implementation of provisions from the Criminal Offences Act (Act 29) and other offence-creating Enactments.

Within Act 30, Sections 153 to 159 and 161 bear the subheading “Convictions for Offences Other Than Charged”.

We unequivocally assert that convicting an accused person for an offence beyond what was formally charged constitutes a direct violation of the constitutional guarantee of fair trial.

Our analysis unfolds in three recognized categories;

1. Conviction for Attempt instead of the Charged Offence (Section 153)
2. Conviction for Lesser Offences instead of the Charged Offence (Section 154)
3. Conviction for Interchanging Offences (Sections 155 to 161, noting the repeal of 160)

Conviction for Attempt instead of the Offence Charged (Section 153 of Act 30)

Section 153 states:

“a person charged with an offence may be convicted of having attempted to commit that offence although the attempt is not separately charged”^[31]. However, “where a person is charged with an attempt to commit an offence and the evidence establishes the commission of the offence, the accused may not be convicted of the offence but may be convicted of the attempt”^[32]

Section 153 grants the court the authority to independently convict the accused for an attempt, substituting it for the charged offence. Notably, while this provision allows for such conviction, it does not empower the court to summon the accused to answer a separate charge of attempt, so they could at least answer to the offence of attempt which they are ultimately convicted for.

In Seidu v. The Republic[33], it was established that every attempt to commit a crime is an indictable misdemeanor at Common Law. Therefore, a person can be indicted and convicted for an attempt to commit an offence, even if the indictment charges the actual offence.

The court said:

“apart from the inchoate offences such as conspiracy, misprison,(sic) etc., I think the law is well settled that every attempt to commit a crime is in itself an indictable misdemeanour at common law. Whenever the intention to obtain advantage by issuing a false cheque is manifested by any overt act, the drawer can properly be indicted for an attempt to commit the statutory offence under section 313A (1) (c) and section 18 of the Criminal Code, 1960 (Act 29), and he may be convicted of an attempt although the indictment charges the actual offence.” [34]

In Richard Banousin v. The Republic[35], (A case we shall revisit in this paper as a case study) there was no evidence of rape, there was no evidence of penetration, not even romance or foreplay by the appellant on the complainant resembling what was described by the Supreme Court as brush work in the Gligah Case[36]. Prior to that, the Court of Appeal held that persons accused of an offence, such as rape, may be convicted of attempted rape even if the attempt to commit the offence is not separately charged, and accordingly convicted the appellant for attempted rape. However, the Court of Appeal’s decision was reversed by the Supreme Court on appeal on grounds that there was no evidence of attempted rape.

The cases cited illustrate the court’s commitment to convict a person for attempt to commit a crime although the person was not charged for attempt. This procedural provision permits the court to convict for attempt even when the charge sheet or bill of indictment charges a substantive offence. Suffice it to say that the attempt to commit a criminal offence is an offence in its own right[37], deserving a separate charge.

 

Conviction for a Lesser Offence other than Charged (Section 154 of Act 30):

During a trial, the evidence may reveal that the accused committed a different offence, one that is less serious than the charged offence. In such cases, the Judge has the discretion to convict the accused for the lesser offence, even if it was not explicitly charged.

Section 154 provides:

“where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and the combination is proved but the remaining particulars are not proved, that person may be convicted of the lesser offence although not charged with it.”[38] Also, “where a person is charged with an offence and facts are proved which reduce it to a lesser offence, that person may be convicted of the lesser offence although not charged with it.”[39]

The implication of Section 154 of Act 30 is that a person may be convicted for an offence, established to be a lesser offence although he was not charged with that offence.

An example is where a person is charged with the offence of murder but the evidence proves that the person is guilty of either manslaughter or causing harm or assault[40]. Thus, though the accused person was not charged with the latter three scenario offences, the accused may be convicted thereon (as the case may be)[41].  Again, let us assume an individual is charged with robbery (a serious offence). However, during the trial, it becomes evident that the accused did not use a weapon, but they did steal property from someone (a lesser offence like stealing). In this scenario, the Court has the discretion to convict the accused for stealing instead of robbery, even though the accused person was not charged with stealing.

In Atta Bonsu & Moses Awuah v. The Republic[42], the appellants were charged with two counts of conspiracy and robbery. The appellate court found that the facts did not disclose guilt on the two counts. However, from the facts, the 2nd accused was guilty of stealing.

 

The Court of Appeal stated thus;

“the facts as presented do not support the charge of robbery but stealing. The court has power to convict for a lesser offence for an aggravated offence like robbery to stealing when the evidence so allows though not the other way round. The trial court suo motu could have substituted stealing for the charge of robbery against 2nd accused which it failed to do.”[43]The court then proceeded to convict and sentence the 2^nd accused for stealing, an offence he was not originally charged with, was never tried for and never defended.

 

In Sarimbe alias Olala v. The Republic (No. 2)[44] the appellant fought his seven-month old pregnant wife. She died the next day. The pathologist who performed the autopsy attributed her death to shock and intracranial haemorrhage. He was convicted of murder and he appealed against it. In light of the evidence established before the trial court, the Court of Appeal found that the offence of murder was not established. The prosecution then invited the court to substitute a verdict of manslaughter.

 

The Court held:

“Since on the evidence the appellant admitted slapping the deceased, he was clearly guilty of assault within the meaning of section 84 of Act 29. In the exercise of the court’s power under section 154 of the Criminal Procedure Code, 1960 (Act 30), a verdict for assault would be substituted for the one for murder.” [45]

 

These cases illustrate the inclination of the courts, authorized by law, to convict a person for a lesser offence other than the offence charged.

 

 

Conviction by Interchanging Offences (Sections 155 to 161 of Act 30)

The final part of the statutory provisions in context is Conviction by Interchanging Offences. Conviction by interchanging offences refers to a legal scenario where an accused person is convicted for an offence different from the one charged by substituting the offence charged with an uncharged offence based on an assumed relatedness of the two offences.

In other words, during the trial, evidence may surface that supports an offence with elements similar to the charged offence. Although this substantive offence was not charged, the courts possess the power and discretion to convict the accused for that offence.

 

The Offences in this category are:

1. Conviction of Extortion on Charge of Corruption and vice versa– Section 155
2. Conviction of Receiving on Charge of Stealing – Section 156

• Conviction of False Pretences on Charge of Stealing and vice versa – Section 157

1. Conviction of Extortion on Charge of Robbery and vice versa – Section 158
2. Conviction of Kindred offence on Charge of Rape or Defilement – Section 159
3. Conviction of Motoring Offence on Charge of Manslaughter – Section 161.

 

We shall review the relevant sections as follows;

 

1. Conviction for Extortion on Charge of Corruption and vice versa – Section 155

 

Section 155 provides:

“where a person is charged with an extortion as a public officer or juror and corruption is proved, that person may be convicted of corruption although not charged with that offence.”[46] It further provides: “where a person is charged with corruption as a public officer or juror and extortion is proved, that person may be convicted of extortion although not charged with that offence.”[47]

 

Elements of Extortion[48]:

1. The Accused employs force, threats, or deception to obtain something valuable from another person.
2. The use of force can include physical violence, threats of violence, or the threat of harm to another individual.
3. Threats may involve physical harm, financial consequences, or even legal action.

 

Elements of Corruption[49]:

1. The accused must hold the status of a public officer(occupying a position within government or a public institution).
2. The accused’s conduct as a public officermust be influenced by valuable consideration (such as bribes, gifts, or other benefits).
3. The accused must directly or indirectly permittheir conduct to be influenced by this valuable consideration.

 

From the above, it is clear and unambiguous that the offences of extortion and corruption have distinct elements whose proof is of the utmost relevance to a finding of guilt or otherwise. However, Section 155 gives the court the discretion to convict a person of extortion on a charge of corruption and vice versa.

 

1. Conviction of Receiving on Charge of Stealing – Section 156

Section 156 states:

“where a person is charged with stealing a thing and receiving the thing knowing it to have been stolen is proved, that person may be convicted of receiving although not charged with that offence”[50]

 

Elements of Stealing;

The legal definition of stealing, often referred to as theft or larceny, generally involves the following elements:

1. Appropriating the property: The act of taking someone else’s property.
2. Dishonest appropriation of the property: The property is taken without the owner’s permission and with the intent to permanently deprive the owner of the property.
3. Accused not owner of the property: the accused must not be the owner of the property.

 

Elements of Dishonestly Receiving (Sections 147 and 148 of Act 29):

When an accused person faces a Charge of Receiving, as espoused in Gariba v. The State^[51], the elements to prove are;

1. Proof that the Goods were obtained through a criminal offence.
2. Knowledge of the accused that the goods were unlawfully acquired.
3. Disposition: Despite this knowledge, the accused either bought, received, or assisted in disposing of the goods, without intending to restore them to the rightful owner.
4. Insufficient justification: The accused failed to provide a satisfactory explanation for his possession of the stolen property.

 

Evidently, the offences of Dishonestly Receiving and Stealing have distinct elements whose proof establishes the guilt or otherwise of the accused. However, Section 156 gives the court the discretion to convict a person of Dishonestly Receiving on a charge of Stealing.

 

 

III. Conviction of False Pretences on Charge of Stealing and vice versa – Section 157

Section 157 reads as follows:

“where a person is charged with stealing a thing and it is proved that the thing was obtained in a manner that would amount under the Criminal Offences Act, 1960 (Act 29) to defrauding by false pretences, that person may be convicted of defrauding by false pretences although not charged with that offence.”[52] Also, “where a person is charged with defrauding by false pretences and stealing is proved that person may be convicted of stealing although not charged with that offence.”’[53]

 

Elements of Defrauding by False Pretence:

1. The accused knowingly made a false pretenceor impersonated another person.
2. By reason of this false pretence or personation, the accused obtained the victim’s consentto part with or transfer ownership of something to the accused.
3. The accused acted with intent to defraudthe victim[54].

 

Elements of Stealing;

1. Appropriating the property: The act of taking someone else’s property.
2. Dishonest appropriation of the property: The property is taken without the owner’s permission and with the intent to permanently deprive the owner of the property.
3. Accused not owner of the property: the accused must not be the owner of the property.[55]

 

In the case of Commissioner of Police v. Mutari[56], it was established that if the evidence presented during a trial for stealing reveals elements consistent with the offence of false pretences, the court has the authority to convict the accused for false pretences. Importantly, the omission of the specific phrase “with intent to defraud” in the charge of stealing does not render the conviction for false pretence invalid.

 

The court stated:

“As to (a) the learned judge acted within his rights by virtue of section 154, Cap. 10 which reads as follows: — “When a person is charged with stealing anything and it is proved that he obtained the thing in any such manner as would amount under the provisions of the Criminal Code to obtaining it by false pretences with intent to defraud he may be convicted of obtaining it by false pretences although he was not charged with that offence.” The evidence on record clearly indicated that although the complainants parted with their money willingly, they were influenced to do so through the inducement of the appellant with intent to defraud them. This changed the offence from stealing to that of false pretences as was found by the learned judge.”[57]

 

Thus, although the offences of Defrauding by false pretence and stealing are proved by the establishment of their respective elements which are distinct, Section 157 of Act 30 permits the trial court to convict an accused for one offence in place of the other charged offence.

 

1. Conviction of Extortion on Charge of Robbery and vice versa – Section 158

Section 158 of Act 30 provides:

“where a person is charged with extortion and robbery is proved, that person may be convicted of robbery although not charged with that offence.” Also, “where a person is charged with extortion and robbery is proved, that person may be convicted of robbery although not charged with that offence.”

 

Elements of Extortion:

1. The Accused employs force, threats, or deception to obtain something valuable from another person.
2. The use of force can include physical violence, threats of violence, or the threat of harm to another individual.
3. Threats may involve physical harm, financial consequences, or even legal action.

 

Elements of Robbery:

1. The accused stole a thing(dishonestly appropriated something that does not belong to them).
2. In the course of Stealing the thing:
   1. Either force or harmwas used (such as physical violence).
   2. Or the accused threatened criminal assault or harm.
3. The accused acted with intent to prevent or overcome any resistance by the victimduring the theft[58].
4. The minimum number of years of prison sentence after conviction depends on whether or not offensive weapon is used during the robbery[59]

 

In summary, extortion focuses on obtaining something through coercion or threats, while robbery involves theft accompanied by force, harm, or threats. While each offence has its distinct elements, Section 158 of act 30 permits the trial court to convict an accused for one uncharged offence for the other charged offence where the evidence supports the uncharged offence.

 

1. Conviction of Kindred Offences on Charge of Rape or Defilement – Section 159

Section 159 provides:

 “Where a person is charged with rape, unnatural carnal knowledge or defilement and the original charge is not proved, that person may be convicted of the lesser offence of indecent assault although not charged with that offence.” Also, “where a person is charged with an offence under section 106 of the Criminal Offences Act, 1960 (Act 29) (which relates to a householder permitting defilement of a child on premises belonging to the householder) the householder may be convicted of an offence under section 273 of the Criminal Offences Act, 1960 (Act 29) (which relates to permitting persons under sixteen years to be in brothels) although that person was not charged with that offence^[60].”

 

Elements of Rape:

1. The accused intentionally and unlawfully engages in a sexual act that causes penetration of the victim’s genitals with their genital organs.
2. The victim did not consent to this sexual act.
3. Consent is vitiated if it is obtained through force, threats, or intimidation.

 

Elements of Indecent Assault:

1. The accused engages in an indecent conduct which is grossly vulgar, obscene, and repugnant to common propriety.
2. The conduct tends to excite sexual desire or deprave morals regarding sexual relations.

 

Elements of Defilement:

1. The accused performs an unlawful sexual act with a victim who below 16 years of age.
2. The act can include penetration or other sexual contact.
3. Consent is irrelevant because the victim is legally incapable of giving consent due to age.

 

While kindred offences may be similar in nature, they have distinct elements. However, Section 159 grants the court discretion to convict an accused for offences kindred to the charge of rape.

 

 

1. Conviction of Motoring Offence on Charge of Manslaughter – Section 161

Section 161 of Act 30 provides that:

“where a person is charged with manslaughter in connection with the driving of a motor vehicle by that person and the Court finds that person not guilty of that offence but is guilty of an offence under the Road Traffic Act, 2004 (Act 683) that person may be convicted of that offence although not charged with it.”

Elements of Manslaughter[61]:

• Unlawful harm (not out of negligence) causing the death.

 

 

Motoring Offences[62]:

The various provisions of Act 761 and L.I 2180 set out the many road traffic offences an accused may be charged as the circumstance may demand. Each particular offence requires different elements for a successful proof.

Under Section 161 of Act 30, if an accused person, charged with Manslaughter due to causing the death of another through driving, is found by the evidence to have committed a motor offence instead, the court has the discretion to convict the accused of the motor offence, when it was not charged. This conviction occurs irrespective of the elements required to prove Manslaughter and the specific motor offences outlined in Act 761.

 

 

 

IMPLICATIONS AND IMPACT OF SECTIONS 153, 154, 155, 156, 157, 158, 159 & 161 ON THE ACCUSED PERSON’S RIGHTS TO A FAIR TRIAL

 

1. The Charge preferred against an Accused Person

The following elements are necessary for each distinct offence listed on a charge sheet:

• For every distinct offence, there must be a separate charge or counton the charge sheet. This ensures clarity and avoids confusion between different offences.
• Each charge or count should include:
  1. Specific Crime and Statute: The specific crime (offence) and the relevant statute (law) that creates that offence should be explicitly stated.
  2. Statement of Offence: The description of the offence in clear terms. This description should include the section and the enactment (law or regulation) that defines the offence.

• Particulars of Offence: The provision of additional necessary information or particulars regarding the nature of the charge. This may include details about the time, place, and circumstances of the alleged offence.

 

It is trite that, in legal proceedings, if no specific offence is clearly charged against the accused, the court lacks jurisdiction to convict. It is also essential that the accused knows with certainty the exact offence for which they may face conviction[63]. This principle underscores the importance of clarity in the charges preferred and ensures that the accused is fully aware of the allegations against them during trial.

 

 

(ii) The Criminal Procedure leading to Conviction for Offences other than Charged:

1. Case Initiation and Court Appearance:

When a case is called in court, several steps unfold. They are described below:

The accused person responds and moves to the dock.

The prosecutor announces their presence.

If there is a defence lawyer, they also announce themselves.

The charge against the accused is read aloud and explained in a language the accused understands. This step is crucial because it ensures that the accused comprehends the charges.

The plea of the accused is then taken. Importantly, the plea relates specifically to the offence with which they have been charged.

 

1. Plea and Bail:

If the accused pleads not guilty, the court considers bail.

If the accused has legal representation, their lawyer can apply for bail.

In cases where the accused is unrepresented, the court itself assesses whether bail is appropriate.

If the accused pleads “Not Guilty”, the case proceeds to trial. However, before the trial, there are disclosures and case management procedures.

If the accused pleads “Guilty”, the accused is convicted and sentenced accordingly

 

1. Pre Trial:

The disclosure of the specific offence charged, proposed witnesses and the evidence they each propose to adduce at the trial is crucial. It allows the accused to tailor their defence precisely to the allegations. Armed with this information, they can identify weaknesses in the prosecution’s case and build a counterargument. The accused must have access to facilities includes having a private space to consult with legal representatives, review case materials, and strategize. Resources encompass not only time but also access to relevant documents, witnesses, and experts. Without these, the accused would be at a severe disadvantage during trial.

 

Importantly, Disclosure opens potential lines of defence. For instance:

1. If the charge is based on mistaken identity, the accused can focus on alibi evidence.
2. If the evidence is circumstantial, they can challenge its reliability.

• If there are constitutional violations (e.g., illegal search and seizure), those become key points of defence.

 

1. Trial and Defence:

During the trial, the accused has the opportunity to defend themselves against the charges. Their defence focuses on countering the specific allegations outlined in the charge sheet or bill of indictment. The defence does not commence only when the accused is invited by the court to enter a defence. In fact, the defence essentially commences when the prosecution’s witnesses are cross-examined by the accused. The defence strategy is tailored to adequately address and dismantle the case of the prosecution per the charges as captured in the charge sheet and not any other offence not charged.

 

For instance, the defence against a charge of stealing would vary from that against a charge of receiving stolen property. Similarly, the defence for murder would differ from that for causing harm or assault. For this reason, the Constitution requires that the accused, when charged with a criminal offence, be given adequate time and facilities for the preparation of his defence.[64] The disclosure of the offence charged would most likely open an entirely different or clearer line of defence to the accused person.[65]

 

In light of these legal requirements and their significance, it is reasonably inferred that when an accused person is ultimately convicted for offences other than the one charged, they have not had the opportunity to defend against the offences they are convicted for. This lack of opportunity arises because they were never formally charged with those offences, never pleaded to them, never underwent trial for them, and never presented a defence to those offences. The defence mounted during the trial typically pertains only to the offences as encapsulated in the charge sheet, and none other.

 

However, as provided in Sections 153 to 159 and 161 of Act 30, the court is empowered to convict an accused person for offences other than those charged, regardless of the defence presented by the accused in response to the offence charged if the evidence supports the conviction for the alternative offence. This situation effectively renders the entire defence strategy employed by the accused a brutum fulmen. The accused might as well not have defended the charge preferred against him in court. If the accused is convicted of an offence they never pleaded to or defended, it means the accused was never heard on that specific offence. This constitutes a breach of the Rule of Natural Justice, audi alteram partem.

 

Consequently, convicting an accused for an offence they never defended against means they were not afforded the opportunity to address the elements of defence relevant to the uncharged offence for which they are eventually convicted. Under these circumstances, it is reasonable to conclude that the accused becomes a victim of misdirection, as they are compelled to defend the charge presented at trial, only for the court to take an unannounced and unexpected detour under Sections 153 to 159 and 161, to convict them for a completely different offence, one they were never charged with. Such a conviction undoubtedly raises significant legal issues pertaining to the principles of a fair trial.

 

(iii) No Charge, no Fair trial:

Conviction for offences other than charged permits a court to convict and sentence an accused for an offence they have not been formally charged with but whose elements have however been established by the evidence adduced at the trial. We submit that this does not constitute a fair trial.

 

We posit that Article 19 (1) encapsulates 4 key elements of Fair Trial.

These are:

1. Charging: An accused person must first be formally charged with a criminal offence.
2. Fair Hearing: After the charge, the accused is entitled to a fair hearing.
3. Reasonable Time: The hearing must occur within a reasonable timeframe.
4. Judicial Process: The hearing must take place before a court.

 

More importantly, Article 19(2)(e) and (g) [supra] conjunctively reads:

“A person charged with a criminal offence shall be given adequate time and facilities to prepare his defence… and be afforded facilities to examine… the witnesses called by the prosecution…”

 

We, therefore, humbly opine that being charged with a criminal offence precedes all other elements of a fair trial, placing it at the forefront of the trial process. This precedence establishes that the requirement of being charged is a prerequisite to a fair trial, as every step of the trial process is contingent upon the charges the accused faces.

 

Indubitably, when a person is alleged to have committed a crime and is being processed for trial, the initial step is the formal accusation, known as the charge. The charge is the fulcrum of every criminal trial because the prosecution’s responsibility of establishing a prima facie case against the accused, the defence’s task of raising a reasonable doubt as to the guilt of the accused, and the court’s duty in making a finding for or against the accused all pivot on the charge presented before the court.

 

Therefore, the charge serves as the compass for the trial, guiding all stakeholders through the proceedings, as it sets the stage for subsequent legal proceedings, particularly the trial and even on appeal. Without the foundational step of charging the accused, the entire fair trial process would be fundamentally compromised.

 

 

(iv) An accused person only gets to know the specific offence for which they are convicted during delivery of Judgement:

The accused enters trial with his accusers (prosecution) believing that they are charged with and are standing trial for a specific offence, only to be informed during delivery of judgement that they have been convicted for a totally different offence. Conviction for offences other than charged literally means that an accused person only gets to know the offence they were actually under trial for, at the moment of delivery of judgement, that is, at the time of conviction and sentencing. In that moment there exists no opportunity for the accused to give an answer to that particular offence. The doors of being heard on that offence are never opened for them to go through.

 

 

(v) Conviction for Offences other than Charged is ambush litigation:

Ghanaian legal practice generally disallows ambush litigation, which refers to surprising the opposing party with new evidence or arguments during trial without prior notice. Historically, such surprise tactics were common in civil cases, where adversaries would introduce unexpected evidence or arguments during trial. However, this approach is now considered outdated, as it is deemed unfair and prejudicial to the rights of the opposing party.

Consequently, if surprise tactics are generally frowned upon in civil matters, where financial disputes, property rights, or contractual disagreements are at play, why should they be permissible in criminal cases, where fundamental rights such as the right to liberty and the presumption of innocence are at stake?

 

A fair trial is a fundamental principle of criminal law, ensuring that accused persons have a meaningful opportunity to defend themselves. Ambush tactics run counter to this principle, as they curtail adequate preparation and catch the defence off guard.

To ensure a fair trial, it is crucial to prefer specific charges against an accused person. Once the accused is formally charged and enters a plea in court, necessary disclosures should follow. This process allows the accused to understand the prosecution’s case, assess its strengths and weaknesses, and prepare their defence.

 

Convicting an accused for an offence other than the one charged undermines the principles of a fair trial. Such surprise convictions do not align with the necessity for full disclosures and amount to ambush litigation with the direst consequences. Ensuring that the accused knows precisely the charges they face promotes confidence in the criminal justice system and upholds the integrity of the legal process.

 

 

 

 

(vii) Related Case Law on pre-trial disclosures and impact of Conviction for Offences other than Charged on Practice Directions in Criminal Trials:

The Supreme Court has clarified that pre-trial disclosures extend beyond trials on indictment (more serious cases) and also apply to summary trials (less serious cases). This means that, regardless of the type of trial, the accused is entitled to certain information before the trial begins. This underscores the argument that without an explicit charge of an offence, the accused cannot obtain the information necessary to discharge the burden of raising a reasonable doubt as to their guilt.

 

In furtherance of pre-trial disclosures, Chief Justice Sophia Akuffo JSC (as she then was) issued a Practice Direction in 2019, providing specific guidelines on how pre-trial disclosures and case management should occur in criminal trials. However, this discussion highlights a significant issue: when an accused person is convicted for an offence other than the one charged, as provided under Sections 153 to 159 and 161 of Act 30, pre-trial disclosures lose their essence. This is because the disclosures were made in relation to one offence, yet the eventual conviction is for an entirely different offence.

 

The Supreme Court in the Republic v. Baffoe-Bonnie & 4 Others [supra] adopted a more liberal, generous, benevolent or purposive approach in interpreting “adequate facilities”. It said ‘facilities’ is to be understood as resources, or means, which makes it easier to achieve a purpose, an unimpeded opportunity of doing something, favourable conditions for the easier performance or doing of something. Its verb ‘to facilitate’ means to render easy or easier the performance of doing something to attain a result, to promote, help forward, assist, aid or lessen the labour of one; to make less difficult; or to free from difficulty or impediment.^[66]

 

The Supreme Court thus stated as follows:

“We hold that an accused person must be given and afforded opportunities and means so that the prosecution does not gain an unfair advantage; so that the accused is not impeded in any manner and does not suffer disadvantage in preparing his defence, confronting his accusers and arming himself in defence, so that no miscarriage of justice is occasioned. Non-disclosure (for our purpose, of the offence charged) is a potent source of injustice as it is often difficult to say whether an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.”[67] – the emphasis humbly ours.

 

Ghana’s Constitution rests upon the pillars of openness, transparency, and accountability. Equality before the law, the very heartbeat of justice, demands adherence to these foundational tenets. Thus, we submit humbly that these principles must resonate within the realm of fair trial.

 

 

The Supreme Court speaking through Acquah JSC (as he then was) said as follows:

“For one of the basic principles of any civilized system of justice is that a person is entitled to a fair trial free from prejudice.  No system of justice can be effective unless a fair trial to both sides is ensured…. This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana.”^[68]

 

The Supreme Court speaking through Adinyira JSC (as she then was) stated:

“We are of the view that access to administration of justice and the enforcement of the constitutional right to fair hearing shall be enforced in a manner that ensures that no individual is deprived, in procedural terms, of his/her right to seek justice.”^[69]

 

We concur with Adinyira JSC in Baffoe-Bonnie [supra], and by parity of reasoning, we find illumination.

 

Within the context of this paper, consider this: Had the accused been charged with the offence, would not a new avenue of defence unfolded, one capable of casting a reasonable doubt upon their guilt? We answer unequivocally in the affirmative. In essence, convictions for uncharged offences slam shut the door of defence by denying the accused the chance to explore alternative defences envisioned in Baffoe-Bonnie [supra].

 

 

(viii) Impact of Conviction for Offences other than Charged on Presumption of Innocence:

When a person is charged with a criminal offence, they are presumed innocent until they plead or are proven otherwise[70]. This foundational principle ensures that the burden of proof rests squarely on the prosecution. Until guilt is established beyond a reasonable doubt, the accused maintains their innocence.

The Supreme Court has clarified that the presumption of innocence is not a mere formality. Instead, it imposes a significant obligation on the prosecution. Whenever an accused person stands trial, the prosecution must prove all essential elements of the charged offence beyond a reasonable doubt[71], in order to establish a Prima Facie case against the accused, for which the accused shall be called upon to raise a reasonable doubt as to their guilt.

 

In Eric Asante v The Republic[72], the Supreme Court speaking through Pwamang JSC explained the presumption of innocence as follows;

“Article 19(2)(c) of the 1992 Constitution provides that; “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.” Our law is that when a person  is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond  reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence  such that on an assessment of the totality of the evidence adduced in court, including that led by the  accused person, the court would belief(SIC) beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it.”[73]

 

Similarly, in Derick Adu-Gyamfi v The Attorney-General[74], the Supreme Court speaking through Ackah-Yensu JSC held as follows;

“It is a well-entrenched position of the criminal law, and indeed, constitutional law, that the entire legal process, starting with investigations after an individual’s arrest, through charges, and prosecution, should adhere to the principles of due process and be driven by the ideals of a fair trial. Fair trial entails affording the accused adequate time, facilities and all such assistance to enable them have sufficient time to prepare his defence and face his accusers. As is the salutatory law, he who asserts must prove. Thus, it is the prosecution that will carry the burden of proving the guilt of the accused person. Despite its entrenched position in criminal jurisprudence, the 1992 Constitution of the Republic has carefully designed fair trial mechanisms as a constitutional right of all accused persons.”[75]

 

The Court further stated in Adu-Gyamfi (Supra) that;

“In simple terms, the constitutional presumption of innocence mandates that a person accused of the commission of a crime, or even a suspect cannot be condemned before he has had his day in court.  At all tim’es, an accused person or suspect must be deemed innocent until his guilt is proven in accordance with the statutory standard by the Prosecution, or he admits being guilty of the offence.”[76]

 

The principle that stands as a bulwark against wrongful convictions, in dubio pro reo, Latin for “when in doubt, favour the accused”, accurately encapsulates the essence of the Ghanaian criminal justice system, which prioritizes the protection of innocent individuals, even at the risk of some guilty parties escaping punishment. At the heart of this principle is the notion that justice must be certain and that no person should be convicted without incontrovertible evidence of guilt. The importance of in dubio pro reo cannot be overstated, as it ensures certainty in the conviction of accused persons.

 

Given this high standard, it becomes even more bizarre and, we dare say, brazenly dangerous when the courts are empowered by statute to convict an accused for offences they were never charged with, had no knowledge of, were never tried for, never defended against, and only learned about at the time of delivery of judgment. Such a situation not only violates the principle of in dubio pro reo but also infringes upon the right of an accused person to a fair trial as provided for in Article 19 of the 1992 Constitution of the Republic of Ghana, as well as International Human Rights Standards.

 

 

PROSECUTORIAL DISCRETION AND CONSEQUENCES ON FAIR TRIAL

The Prosecution, the architects of destiny, decide which cases to pursue and which charges to file based on the facts of the case. Their discretion is both a privilege and responsibility. The accused, the victims and society, all stand at the mercy of these choices. The consequences of these decisions ripple through courtrooms, prison cells, and lives. In effect, the integrity of our justice system rests on the fulcrum of prosecutorial discretion. When wielded judiciously, it upholds fairness. When abused, it erodes trust. This section explores the role of the prosecution in trials and how their potential abuse of prosecutorial powers affects the integrity of administration of justice in Ghana.

 

(i) What prosecution ought to do when it is unable to prove the guilt of the accused person on the charge preferred against them:

When the prosecution realizes it lacks sufficient evidence for the initial charge against an accused person, it has an option. The prosecution can withdraw the first charge and prefer new charges. Admittedly, this choice has implications.  If new charges are preferred, the trial must start afresh (de novo) and the accused person will take their plea against the new charge. This process can cause delays, expenses, and burden an already overburdened prosecution. While these challenges exist, the core issue is the liberty of the individual[77]. Sacrificing the right of an accused person for the convenience of the prosecution is unjustifiable. The Ghanaian legal system recognizes the inviolability of the right to life[78], and liberty[79], and has entrenched these rights[80]. It is therefore our contention that it is inappropriate, and certainly unconstitutional, to sacrifice these sacrosanct rights of the accused on the altar of expediency and convenience of the prosecution.

 

In Republic v. Baffoe-Bonnie & 4 Others [Supra], Adinyira JSC posed this question:

“Should the expediency of prompt and less expensive trials in summary trials be more important than the liberty of the accused which is at stake to justify non-disclosure?”

We modify this question to address the issue of conviction for offences other than those charged: “Should the expediency of prompt and less expensive trials be more important than the liberty of the accused which is at stake to justify conviction for offences other than charged?”

 

We respectfully opine that the appropriate thing for prosecution to do under the circumstances is to withdraw the first charge (to which it does not have evidence in order to establish the guilt of the accused beyond reasonable doubt) and to prefer new charges (which the prosecution has the evidence to establish a prima facie case against the accused person). The authority and discretion granted the prosecution to consider alternative charges when faced with insufficient evidence, ensures both appropriateness and constitutional adherence. This stands in contrast to relying solely on the judge’s discretion under Act 30 to convict and sentence the accused for an offence other than the one formally charged.

 

(ii) Function of the Prosecution in criminal trials

The function of the prosecutor in criminal trials is a public duty. This duty requires the prosecution to assist the court in uncovering the truth. Importantly, the role of the prosecutor is not solely about securing convictions; in contrast, it is about presenting credible evidence relevant to the alleged crime. Even when the prosecution seeks a conviction, it must adhere to principles of fairness. If the prosecution possesses evidence that could exculpate the accused person (i.e., prove their innocence), it has a duty to disclose and present that evidence. In essence, the onus of the prosecution in the trial of an accused is circumscribed by Public Duty, Exculpatory Evidence and Fairness. This ensures that the court can make an informed decision about convictions, acquittal or discharge.

We refer to Rand J’s observation on the public duty of the prosecutor as follow:

“It cannot be over-emphasized that the purpose of criminal prosecution is not to obtain conviction, it is to lie before [the Court] what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of a prosecutor excludes any notion of winning or losing; his function is a matter of public duty”[81].

 

 

(iii) Abuse of Prosecutorial Discretion and Consequences on Fair Trial:

The Prosecution has a fundamental duty to investigate the offence alleged against a suspect. This investigative process is crucial for gathering evidence and understanding the facts related to the alleged crime. After completing the investigation, the prosecution must carefully study the facts. Based on this analysis, the prosecution should prefer the appropriate charge against the accused person. Importantly, this duty should not prejudice the rights of the accused.

The discretion of the Prosecution is essential but must be exercised judiciously. Fairness and safeguarding the integrity of the justice system are paramount. Any abuse of discretion violates the rights of the accused person and is inappropriate and unconstitutional.

In the case of Republic v. Darko[82], a critical error occurred during the charging process which undoubtedly adversely affected the outcome of the case. This classical case, illustrates the harrowing effect of wrong use of prosecutorial discretion, with regards to wrong charges on the right to fair trial.

 

Facts of the Case:

The accused allegedly loaded a double-barrel gun. He entered a room where the victim was present, accompanied by another person. The accused reportedly requested that the other person step aside to allow a clear shot at the victim. Despite pulling the trigger, the gun failed to discharge, and the accused was overpowered.

 

Charging Error:

The prosecution charged the accused with “Attempting to cause harm by the use of an Offensive Weapon” under Sections 18(1) and 70 of the Criminal Offences Act, 1960 (Act 29). However, the evidence supported a more serious offense: Attempted Murder.

 

The Role of the Court:

The trial Judge, Edward Wiredu J, recognized the alignment of the evidence with the crime, “Attempted Murder” instead of “Attempting to cause harm by the use of an Offensive Weapon”. Although at the time, discretion to Convict for Offences other than Charged under Sections 153 and 154 of Act 30 existed, the learned trial Judge saw no reason to apply it.

 

The Judge stated:

“My researches did not carry me successfully beyond the statutory rights conferred on the court by sections 153 and 154 of the Criminal Procedure Code, 1960 (Act 30), but this case does not fit into any of the provisions of the said sections.”[83]

 

We concur with the learned trial Judge to the extent that as a non-party to any suit, neutrality of the Judge is and should remain the guiding light. Thus, the neutrality of the court demands that the correct charges be preferred.

 

In summary, accurate charges are essential, and the court, as a neutral, should not rectify charging errors by convicting the accused for offences other than charged, as the duty of the Prosecution is to seek justice, not merely convictions.

CASE STUDY AND EVALUATION OF THE COURTS’ APPLICATION OF CONVICTIONS FOR OFFENCES OTHER THAN CHARGED ON THE ACCUSED PERSON’S RIGHT TO A FAIR TRIAL: RICHARD BANOUSIN V. THE REPUBLIC:

 

Richard Banousin v. The Republic[84] is a bizarre case that depicts the harshness of conviction for offences other than charged and the harrowing effects on the Accused person’s right to fair trial and personal liberty.

 

Brief Facts:

The appellant, a teacher at Kanton Senior High School in Tumu, Upper West Region, allegedly committed rape on July 28, 2009. Under the pretext of returning a pullover seized earlier at a school event, the appellant lured the complainant, a student, to his apartment. Upon arrival, the complainant claims the appellant forced her to engage in sexual intercourse against her will. The complainant promptly reported the incident to her parents and school authorities. The appellant denied the allegations during initial investigations. However, following a police report, he was subsequently charged with rape and tried before the High Court in Wa.

 

Charge Sheet:

The Charge Sheet read as follows:

“Statement of Offence

Rape contrary to section 97 of the Criminal Offences Act, 1960 (Act 29)

Particulars of Offence

Richard Banousin, Teacher, for that, you on the 28th day of July 2009 at Tumu in the Upper West Region had carnal knowledge of one, Rashida Kanton Ibrahim without her consent.”

 

 

Evidence of Victim:

At the trial, Rashida Ibrahim Kanton – victim of alleged rape, gave her evidence as follows:

“On the 28/7/2009 about 9.00am. I was in my classroom. I was revising my notes. The accused person came to our classroom. The accused asked me to follow him to collect my pullover. I also followed him to his house on the school campus. The accused asked me to sit down whiles [sic] he fetches the pull-overs. I sat down. The accused brought the pullovers and sat by me. He started asking me whether some of the students and teachers have proposed to me. I told him no one has proposed to me. He then placed his hand on my laps and started kissing me. I wanted to leave the room but the accused rushed and locked the door. The accused then locked the door. The accused then started pulling me and in the process my school uniform got torn. The accused pulled me to his bedroom. He removed his trousers leaving his white boxer shorts on. He pushed me unto his bed and had sex with me.

After this the accused person told me I should not tell anyone. The accused asked me to take an ablution can and go and wash down myself. I did so. The accused gave me the pullovers and opened the door. We went back to the school. I went to my class. I was crying. One of my friends asked me why I was crying. I went outside with my friend and I told her what the accused did to me. She advised me to report the matter to our headmistress [sic]. I told her I would rather tell my parents. In the evening I called my parents and told them what the accused did to me. They came to the school that evening to see the headmaster. I reported the case to the headmaster. The Headmaster asked us to go and come the next morning. The next morning, we went to the headmaster’s office. The accused person was present. I narrated the incident to them. The accused denied having sex with me. We therefore reported the matter to the Police. I was given medical forms to attend hospital. I went to hospital. I have the school uniform which got torn when the accused pulled me. I want to tender it in evidence.”

 

Case of the Appellant (Accused):

The Appellant gave his evidence at the trial denying the allegation of Rape. However, his earlier caution statement indicates that there was a truce arranged by the headmaster for the accused person to admit the offence to enable the headmaster resolve the matter amicably between the parties. However, after the accused had admitted the offence, they rather reported him to the police leading to his arrest and arraignment before the court. Consequently, he denied having committed the offence at the trial.

 

Medical Report:

At the trial, the medical report did not show that the appellant raped the complainant. For clarity, we shall reproduce the evidence of the medical doctor:

“My name is Dr. Royale L. Gomez. I live at Tumu. I am a medical officer attached to the Tumu Hospital. On the 29/7/2009 I concluded a medical examination on one Rashida Kanton Ibrahim. I issued a medical report… I did not see any signs of violence on the body of the girl. I conducted a vaginal examination and found the hymen broken. It was not recently broken. If it were recent there would have been signs. I did not find any sperm inside or outside. I conducted a pregnancy test and scan but they were all negative.”

 

Cross Examination of Medical Doctor:

The Following ensued when Dr. Gomez was cross-examined:

“Q. From your findings, can you conclude that there was a penetration of the vagina of the victim?

1. I cannot say
2. Infections of the gland is very common
3. Yes
4. That is all”

‘By Court: From your examination, did you find the girl to be very active sexually?’

A: Yes”

 

This exchange during cross-examination is particularly revealing. During the cross-examination, the complainant was posed the following questions and provided the corresponding answers:

“Q. Before 28/7/09 you might have had sex before

1. I never had sex before this date
2. Put. You are not being truthful
3. I am truthful
4. Before the said date, were you a virgin?
5. Yes”

 

Judgement of the Courts:

High Court: Notwithstanding excerpts of the evidence above, the High Court convicted the Appellant of rape and sentenced him to 7 years IHL.

 

Court of Appeal: The Court of Appeal varied the offence and substituted it with attempted rape, holding that persons accused of an offence, such as rape, may be convicted of attempted rape even if the attempt to commit the offence is not separately charged, and accordingly convicted the appellant for attempted rape.

Portions of the Judgement is captured as follows:

“There is evidence of intention to rape and the appellant attempted it but was resisted. In s.153 (1) of Act 30/60, it is provided that when a person is charged with an offence, he may be convicted of having attempted to commit that offence although the attempt is not separately charged.

That being so in the absence of any positive evidence of the ingredient of actual carnal knowledge, to wit penetration of the vagina, we set aside the conviction of the appellant of rape. In its place, we find him guilty of attempted rape and convict him. And since the provisions of s. 18 (2) of Act 29/60 made the punishment for an attempted crime for which a person has been convicted the same as the punishment for a crime which has been completed, i.e. actually committed, we maintain the seven (7) years IHL imposed on the appellant by the trial court. We therefore confirm the conviction of the appellant on the charge as varied, and dismiss the appeal.”

Supreme Court: The Supreme Court overturned the Court of Appeal’s decision, ruling that there was insufficient evidence to support the claim of attempted rape.

 

 

Analysis of Decisions:

Richard Banousin v. The Republic illustrates the far-reaching consequences of convictions for offences other than those charged and the troubling manner in which trials under Sections 153–159 and 161 of Ghana’s Criminal and Other Offences (Procedure) Act, 1960 (Act 30), violate the right of an accused person to a fair trial and personal liberty.

 

To begin with, notwithstanding the overwhelming evidence on record proving the innocence of the accused during the trial, the High Court convicted the accused of “Rape” and sentenced him to seven years of imprisonment with hard labor (IHL). After the High Court erroneously convicted the accused of “Rape,” despite there being no evidence on record to support the conviction, the Court of Appeal subsequently, and also erroneously, convicted the accused of “Attempted Rape,” justifying the conviction under Section 153—an offence with which the accused was never charged, had no knowledge of, was never tried for, never defended against, did not even appeal, and only learned about at the time of the delivery of the judgment on his appeal.

 

It is frightening that during the appeal, while the accused focused on disproving the elements of “Rape” to raise doubt about his guilt, the Court of Appeal focused on the elements of “Attempted Rape,” clandestinely and without the knowledge of the accused. We assert this because the accused knew that he had been charged only with “Rape,” hence his appeal strategy was focused on proving his innocence to the charge of “Rape” only and, therefore, did not mount an appeal for “Attempted Rape” the offence he was never charged with, had no knowledge of, was never tried for, never appealed, but was ultimately convicted of on appeal as a substitute offence under convictions for uncharged offences.

 

More shocking was the fact that there was no evidence of “Attempted Rape” on record, as later found by the Supreme Court. Ideally, where the courts do not find convincing evidence to convict for the charged offences, they must acquit. They should not go hunting for other offences for which to convict the accused—offences the accused has not even been charged with. However, the Court of Appeal ultimately convicted the accused of “Attempted Rape,” an uncharged offence, albeit in error, as the Supreme Court later found that there was no evidence to support the conviction for the uncharged offence of “Attempted Rape.”

 

We humbly opine that the Court of Appeal would have acquitted and discharged the appellant if not for the provisions permitting convictions for offences other than those charged. We submit that the Court of Appeal’s decision was a deviation from the fundamental practice of acquitting an accused when the evidence does not support the charged offence. The principle of in dubio pro reo, Latin for “when in doubt, favour the accused,” serves as a fundamental safeguard against wrongful convictions. It accurately encapsulates the essence of the Ghanaian criminal justice system which prioritizes the protection of innocent individuals, even at the risk of allowing some guilty parties to escape punishment. Central to this principle is the notion that justice must be unequivocal, and no person should be convicted without incontrovertible evidence of guilt. The significance of in dubio pro reo cannot be overstated, as it ensures certainty in the conviction of accused persons, thus upholding the integrity of the legal system.

 

However, the provisions in Sections 153–159 and 161, allowing convictions for offences other than those charged, undoubtedly led to the unjust outcome in this case. Even more troubling is the fact that the Court of Appeal sentenced the accused to the same punishment he would have faced if the offence of rape had been proven against him, as the punishment for attempted rape is the same as that for actual rape. Despite the irretrievable loss of his personal liberty, the decision of the Court of Appeal, had it not been reversed by the Supreme Court, would have significantly affected the appellant’s career and resulted in the irretrievable loss of his right to personal liberty for the duration of the conviction. Additionally, beyond the indictment on the character of the young teacher, he would have had to suffer the punishment of seven years of imprisonment with hard labor (IHL).

 

The case of Richard Banousin underscores the need for the expungement of Sections 153–159 and 161 of Ghana’s Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which permit convictions for offences other than those charged. Such provisions undoubtedly result in the irretrievable loss of personal liberty and undermine the fundamental principles of a fair trial envisioned in Article 19 of the 1992 Constitution. It is imperative that Ghana’s criminal justice system safeguards the rights of accused persons by ensuring that convictions are based solely on evidence presented in court and charges formally brought against the accused. This quagmire requires an urgent remedy to safeguard the right to a fair trial for accused persons.

 

 

 

CONCLUSION: KEY ARGUMENTS, IMPACT OF CONVICTIONS FOR OFFENCES OTHER THAN CHARGED ON FAIR TRIAL, RECOMMENDATIONS FOR REFORMS:

 

(i) Summary of Submissions:

Conviction for offences other than charged denies an accused person the constitutionally inalienable right to know the specific charges they would be convicted and sentenced for at the commencement of their trial. This lack of clarity impedes the ability of the accused person to know the charges, adequately prepare and tailor their defence strategy to raise a reasonable doubt as required by law. Sections 153 to 161 of Act 30, which allow for conviction for offences other than those charged, is inconsistent with fair trial rights enshrined in Article 19 of the Constitution. Such statutory provisions are prima facie unconstitutional to the extent that they violate the right to fair trial of the accused person. This conclusion applies similarly to any other criminal law that allows the court to substitute a different offence for the one stated on the Charge Sheet or Bill of Indictment. Conviction for offences other than those charged undermines fair trial provisions and is unconstitutional.

 

(ii) Recommendations:

While Ghana’s Criminal and Other Offences Act, 1960 (Act 30), was enacted during the era of the 1960 Constitution, Ghana currently operates under the 1992 Constitution. However, Act 30 has not been updated to conform to the provisions of the 1992 Constitution. It remains a statute intrinsically tied to 1960, despite the new dispensation and standards of human rights under the current constitution.

 

Additionally, Ghana became a State Party to major international human rights conventions many years after the enactment of the Criminal and Other Offences Act, 1960 (Act 30). Specifically, Ghana acceded to the International Covenant on Civil and Political Rights (ICCPR) on 23 March 1976[85] and the African Charter on Human and Peoples’ Rights on 21 October 1986[86]. These time differences may have contributed to the lax circumstances under which certain provisions that clearly violate these international human rights conventions were passed. Particularly, the right to a fair trial remains an area where urgent alignment is needed[87]. Aligning Act 30 with constitutional provisions is essential to uphold fundamental rights and ensure consistency in justice delivery. Therefore, efforts should be made to initiate reforms to bring Act 30 into conformity with the 1992 Constitution, ensuring that the human rights standards envisioned by the 1992 Constitution are fully implemented.

 

Our concern that there is an urgent need for legislation to reform Act 30 receives backing from Adinyira JSC.

 

The learned Judge called for reforms to Act 30 as follows:

“This decision is yet another urgent call to the Law Reform Commission to overhaul Act 30 which is an earlier and subordinate legislation to bring it in line with the Constitution, the supreme law of the land.  In view of the numerous clarification and interpretation of Constitution by this Court in contradiction with provisions of the said Act 30, there is the need for urgent reforms in the administration of criminal justice in the country. This call is urgent in view of the on-going reforms and restructuring of the Judiciary by way of case management, e-filing and electronic tracking of criminal cases. Rules of Civil Procedure have been exhaustively reformed in 2004, by the C.I. 47; an overhaul of Act 30 must follow suit in respect of trial on indictment and summary trials for it to be in compliance with the Constitution. Legislation [overhaul of Act 30] …. will give a clear guide to all stakeholders and thereby reduce the number of unnecessary cases put on trial … as well as minimize delays and the miscarriage of justice.”[88]

The recommendations of Adinyira JSC resonates with us.

 

We further recommend the following:

 

1. Criminal Procedure and Constitutional Alignment:

Arguably, a criminal procedure established under the 1960 Constitution may be due for a constitutional realignment with the current Constitution, the 1992 constitution. Our departure from that Constitution, especially concerning fundamental human rights and freedoms, necessitates a re-evaluation of the procedural norms highlighted in this paper.

2. Repeal of the highlighted Provisions of Act 30:

Many provisions within Act 30 have been repealed, either through substantive legislation or court decisions[89]. Notably, the Supreme Court has declared Section 96 of Act 30 unconstitutional.

3. Recommendations for Reform:

We propose a comprehensive revision of Ghana’s Criminal Procedure Law, akin to C.I 47 for Civil Procedure. This revised law should reflect modern guarantees for fundamental human rights and freedoms as envisioned by the 1992 Constitution.

4. Enhancing Legal Resources:

To improve criminal prosecution, we recommend employing more lawyers within the Attorney General’s Department. Assigning at least one lawyer to each police district to guide prosecutors in accurately preferring charges against accused persons would be beneficial. Fortunately, the current Ghana legal education system is producing more lawyers than ever before. A positive for the increasing population of Ghana.

5. Training of Police Prosecutors:

Non-lawyer police prosecutors should receive training on fact analysis and precise charging of alleged offenders. The Ghana School of Law has taken the initiative to introduce a short course for police prosecutors. However, this is not mandatory for all police prosecutors. It remains a personal decision for the police prosecutor to make.

6. Interim Measures:

If legislative changes are delayed, a practice direction from the Chief Justice could regulate Judges’ discretion in substituting charged offences.

 

 

 

 

 

ADDRESSING POTENTIAL CRITICISM OF THIS PAPER:

Critics may contend that the discretion granted to courts to convict for offences other than those charged is not absolute. They may elaborate on the premise that the discretion of a judge is always circumscribed by the law and that, as non-participants in specific cases, judges must and do exercise their discretion judiciously while adhering to legal boundaries. The initial criticism about the discretion of judges deserves scrutiny. While the framers of our constitution likely assumed that judges would wield discretion justly, the constitutional requirement remains clear: crimes must be defined in written law, with specified punishments. They must be proscribed and the punishment for them prescribed by law. Judges, like all humans, are susceptible to fallibility. The Court of Appeal’s erroneous exercise of discretion in the case of Richard Banousin v. The Republic, analyzed above, exemplifies this vulnerability. Thankfully, the Supreme Court rectified the error, emphasizing the need for vigilance. However, a permanent cure is required.

 

Critics may also argue that discretion to convict for uncharged offences hinges on the uncharged offence being proved during trial. However, Article 19 of our Constitution mandates fair trial rights. Particularly, an accused person must be officially charged, plead, tried, and defend the charged offence. Only then can a legally correct conviction occur. Any moral argument, divorced from fair trial requirements, lacks merit and is unequivocally unconstitutional.

Some critics posit that repealing these provisions would burden the prosecution. They argue that dropping existing charges and preferring new ones against the accused would lead to costly prosecution as the trial must commence afresh (de novo). We, however, pose this question: Should the burden of the prosecution in establishing the guilt of the accused outweigh the liberty of the accused? Is anything more expensive than unconstitutionally depriving someone of their right to personal freedom? Our answer is in the negative. No cost of prosecution can be more expensive than the right to personal liberty enshrined under the Constitution, which can be irretrievably lost as a result of convictions for offences other than those charged.

 

Again, Critics may propound the fear that our proposition may open floodgates for criminals to escape punishment. Yet, we consider this: Could there be cases where individuals are wrongly incarcerated due to their lack of legal knowledge? Our response lies in the positive state of law, the Constitutional Democracy under the 4th Republic of Ghana. Safeguards for personal liberty and fair trial are enshrined within the constitutional framework. No argument promulgating morality or fear can and should be permitted to eclipse constitutional safeguards of personal liberty.

 

In consequence, we unequivocally declare that this paper does not in any way advocate for freeing alleged criminals or convicted persons. Instead, it champions the Constitution and its fair trial provisions. As citizens of Ghana, we are duty-bound to uphold these principles.

 

 

Invitation for Rejoinders

As an academic exercise, this paper welcomes rejoinders as engaging in thoughtful discourse enriches our legal understanding and propels the advancement of jurisprudence.

 

 

Echoing Learned Justice Professor Sir Dennis Dominic Adjei JA’s Advice

In the interim, we emphasize the need for rigorous scrutiny in judges’ exercise of discretion when substituting charged offences. Justice Professor Sir Dennis Dominic Adjei JA called for thorough scrutiny in the application of Section 154 of Act 30 to prevent abuse, particularly in cases where the substituted charge constitutes a lesser offence than the one for which the accused has been charged. By parity of reasoning, we extend the learned Justice’s call to all offences under Sections 153-159 and 161 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).

 

In line with the principle of lex iniusta non est lex translated “an unjust law is no law at all”, it is incontrovertible that convictions for offences other than those charged do not adhere to the principles of a fair trial as enshrined in Article 19 of the 1992 Constitution of the Republic of Ghana, as well as the many International Human Rights Conventions to which Ghana is a signatory. Therefore, such convictions cannot be considered good law. This deviation undoubtedly undermines the fairness of trials and the fundamental rights of the accused. Ensuring that the accused is explicitly, fairly, formally, and adequately charged is essential to protecting the rights to a fair trial and personal liberty, as well as upholding the sanctity of Ghana’s criminal justice system and principles of international human rights.

 

[1] 1992 Constitution of the Republic of Ghana

[2] Paragraph 145 of the Report of the Committee of Experts (Constitution) On Proposals for a Draft Constitution of Ghana, 1992 at page 67 of the Report

[3] Tsatsu Tsikata v. Republic (2011) 1 SCGLR 20; see also Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327

[4] Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327

[5] Article 53 of the Vienna Convention on the Law of Treaties

[6] Article 290 of the Constitution

[7] The Criminal and Other Offences (Procedure) Act, 1960 (Act 30)

[8] Article 19 (2)(c) of the Constitution

[9] Article 19 (2) (d) of the Constitution

[10] Article 19 (2) (e) of the Constitution

[11] Article 19 (2) (g) of the Constitution

[12] Justice Abdulai v. Attorney General [2022] DLSC11238 – dictum of Kulendi JSC

[13] Article 1(2) of the Constitution

[14] Mensima v. Attorney General [1996-1997] SCGLR 676 – dictum of Acquah JSC; [1997-98] 1 GLR 159

[15] Article 19(1) of the Constitution

[16] Article 19 (2) (c) of the Constitution

[17] Article 19 (2) (d) of the Constitution

[18] Article 19 (2) (e) of the Constitution

[19] Raymond A. Atuguba, “The New Constitutional and Administrative Law in Ghana – From the Garden of Eden to 2022 (2022) at page 639

[20] Article 19 (2) (c) (d) (e) and (g) of the Constitution

[21] Article 19(1) and (2) (c), (d), (e) and (g) of the Constitution

[22] Article 10 and 11 (1) of the Universal Declaration of Human Rights (UDHR)

[23] Article 14 (1) (3) (b) (e) of International Covenant on Civil and Political Rights (CCPR)

[24] Article 14 (1), (2) and (3) (a), (b), (e) of the International Covenant on Civil and Political Rights (CCPR)

[25] Article 6 (1), (2) and (3) (a), (b), (c) and (d) of the European Convention on Human Rights

[26] Article 7 (1) (b), (c) and (d) of the African Charter on Human and Peoples’ Rights

[27] Article 36 (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999

[28] Article 50 (2) (a) (b) (c) (i) (j) (k) and (l) of the Constitution of Kenya, 2010

[29] Article 35 (3) (a), (b), (h), (i) and (j) of the Constitution of the Republic of South Africa, 1996

[30] Sections 153 to 161 of Act 30

[31] Section 153 (1) of Act 30

[32] Section 153 (2) of Act 30

[33] [1976] 2 GLR 288

[34] Seidu V. The Republic [1976] 2 GLR 288; (1976) JELR 69693 (HC), Coram Edward Wiredu

[35] Richard Banousin v. The Republic (2015) JELR 68931 (SC) – dictum of Dotse JSC

[36] G/CPL Valentino Gligah and EC/1 Abdulai Aziz Atiso v. The Republic (2010) JELR 66292 (SC)

[37] Section 18 of Act 29

[38] Section 154 (1) of Act 30

[39] Section 154 (2) of Act 30

[40] Tsinowope v. The Republic [1989-90] 1 GLR 114

[41] Homenya v. The Republic [1992] 2 GLR 305 – dictum of Acquah JA; see also Dennis Dominic Adjei, “Criminal Procedure and Practice in Ghana” (2021), 3^rd Edition at page 318

[42] (2018) JELR 66461 (CA), Criminal Appeal Suit No: H1/01/17; delivered on 22 January, 2018

[43] Ibid

[44] [1984-86] 2 G.L.R. 17, C.A

[45] Ibid

[46] Section 155 (1) of Act 30

[47] Section 155 (2) of Act 30

[48] Appiah v. The Republic [1987-88] 2 GLR 377; (1988) JELR 67999 (SC)

[49] Republic v. Quansah [1968] GLR 235 – 245; (1968) JELR 83497 (HC), See also Asare & Ors v. The Republic (No. 3) 1968] GLR 804

[50] Section 156 of Act 30

[51] [1963] 2 GLR 54 – 59

[52] Section 157 (1) of Act 30

[53] Section 157 (2) of Act 30

[54] Section 132 of Act 29 see also Chief Superintendent of Police v. Ceesay and Gomez (1956) WALR 87

[55] Section 125 of Act 29. See also Brempong v. The Republic [1995 – 96] 1 GLR 350

[56] [1960] GLR 201

[57] Ibid; Commissioner of Police v. Mutari [1960] GLR 201

[58] Section 150 of Act 29; see also Behome v. Republic [1979] GLR 112

[59] Section 149(1) of Act 29

[60] As amended by section 15 of the Criminal Procedure Code (Amendment) Act, 2002 (Act 633)

[61] Sections 50 and 51 of Act 29

[62] Road Traffic (Amendment Act), 2008 (Act 761), Road Traffic regulations, 2012

[63] Datsa v. The Republic [1971] 1 GLR 418

[64] Article 19 (2) (e) of the Constitution

[65] Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327

[66] Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327

[67]Ibid

[68] In Re Effiduase Stool Affairs (No 2), Republic v. Oduro Nimapua, President of the National House of Chiefs; Ex Parte Ameyaw II (No. 2) [1998-99] SCGLR 630 at 670; [1999-2000] 1 GLR 283

[69] Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327

[70] Article 19 (2) (c) of the Constitution

[71] Gligah & Another v. The Republic [2010] SCGLR 870

[72] [2017] JELR 65212 (SC)

[73] Ibid

[74] 2023 JELR 111597 (SC)

[75] Ibid

[76] Ibid

[77] Paragraph 145 of the Report of the Committee of Experts (Constitution) On Proposals for a Draft Constitution of Ghana, 1992 at page 67 of the Report

[78] Article 13 of the Constitution

[79] Article 14 of the Constitution

[80] Article 290 of the Constitution

[81] Boucher v The Queen [1955] SCR 16 at pp 23-24, see also Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327

[82] [1971] 2 GLR 227

[83] Republic v. Darko [1971] 2 GLR 227 – Dictum of Edward Wiredu J

[84] Richard Banousin v. The Republic (2015) JELR 68931 (SC) – dictum of Dotse JSC

[85] Optional Protocol to the International Covenant on Civil and Political Rights | OHCHR

[86] AFRICAN (BANJUL) CHARTER ON HUMAN AND PEOPLES’ RIGHTS (african-court.org)

[87] Republic v. Baffoe-Bonnie & 4 Others [2017-2020] 1 SCGLR 327 – dictum of Adinyira JSC

[88] Ibid

[89] Martin Kpebu (No. 2) v. Attorney General [2015-2016] 1 SCGLR 171