SUPREME COURT, ACCRA
DATE:16TH NOVEMBER, 1962
BEFORE: CORAM, ADUMUA-BOSSMAN, MILLS-ODOI and AKUFO-ADDO, JJ.S.C.
JUDGMENT OF AKUFO-ADDO J.S.C.
Where the trial of the offender is by a circuit court or local court, the trial court before committing the offender to the High Court for sentence of preventive custody, shall satisfy itself that the offender is not a young person, and shall state on the record the grounds for being so satisfied, including any enquiry that the trial court may have held in that behalf and also any evidence tendered by the prosecution in establishing that the offender is not a young person. In other words it must appear on the face of the record that the trial court was satisfied by evidence or otherwise that the offender was not a young person. In the case of an obviously grown-up person (i.e. of the age of 20 years or more) not much difficulty would appear to arise in determining this issue, but where the offender is not obviously a grown-up person, the fact that he is not a young person must be strictly proved.
It is basically essential that at least two previous convictions be established either by the admission of the offender or by strict proof, and where more than two previous convictions are alleged only such of them,
[p.146] of [1962] 2 GLR 145
not being less than two, as are admitted or proved shall be taken into account in the exercise of the powers under section 402, and the same together with the sentence imposed shall appear clearly on the record.
We would like to state that we regard the fact of the offender not being a young person and the existence of at least two previous convictions as conditions precedent to the exercise by the trial court of the power to commit the offender to the High Court for a sentence of preventive custody.
The High Court to which the offender is committed for sentence of preventive custody shall conduct an enquiry in terms of section 402 (1) (c) and the record shall show on its face the nature and details of the enquiry conducted together with notes of any evidence tendered at such an enquiry. It is to be observed that in addition to the two conditions stated above (section 402 (1) (a) and (b)) this enquiry constitutes a third precedent requirement to the exercise of the powers under section 402, and, therefore, the mere existence of two or more previous convictions does not in itself justify a conclusion that “it is expedient for the protection of the public that he [i.e. the offender] should be detained in custody for a substantial term” which is the conclusion which the law requires to be reached by the enquiry before the imposition of a sentence of preventive custody.
In causing the enquiries to be made under section 402 (2) of the Criminal Procedure Code, the High Court shall require the person making the enquiries to include in his report an opinion of the probable age of the offender where the offender is not an obviously grown-up person.
Before pronouncing sentence the High Court shall address the following question (which together with the answer thereto shall appear on the record) to the offender or his advocate: “Have you been served with a copy of the report about you (or about your client?).” If the answer is “No,” steps must be taken immediately to serve a copy of the report.
We think it essential that a reasonable time must elapse between service of the copy of the report on the offender or on his advocate and the offender’s appearance in court for sentence, and that opportunity be afforded the offender to challenge the accuracy of the report if he so wishes. Should the offender desire to cross-examine the person making the report or any other person upon whose testimony or information any material conclusions in the report are based that person must be made available for that purpose, and if the offender in making his challenge desires to adduce evidence he should be allowed to do so.
The proceedings in the High Court shall be recorded and shall form part of the record of proceedings in the event of an appeal to the Supreme Court. Where the trial of the offender is by the High Court the above directions affecting the circuit court, district court or local court shall, mutatis mutandis, apply to the High Court.
These directions have the approval of the Chief Justice.
(Commissioner of Police v. Baba Grunshie. Coram, Adumua-Bossman, Mills-Odoi and Akufo-Addo, JJ.S.C. Directions upon judgment read by Akufo-Addo, J.S.C.)
