HIGH COURT, SUNYANI
Date: 2 MAY 1973
OSEI-HWERE J
CASES REFERRED TO
(1) Atuahene v. Commissioner of Police [1963] 1 G.L.R. 448.
(2) R. v. Hilton [1972] 1 Q.B. 421; [197]1 3 W.L.R. 625; [1971] 3 All E.R. 541; 55 Cr.App.R. 466, C.A.
(3) The State v. Langa (1963) (4) S.A. 941.
(4) R. v. Gbadamosi (1940) 6 W.A.C.A. 83.
NATURE OF PROCEEDINGS
APPEAL against the judgment of the Circuit Court, Sunyani, wherein the appellant was convicted of unlawful possession of Indian hemp and sentenced to twelve years’ imprisonment with hard labour. The facts are set out fully in the judgment.
COUNSEL
Oppong for the appellant.
Awuku Yeboah, Assistant State Attorney; for the Republic.
JUDGMENT OF OSEI-HWERE J
On 4 August 1972, the appellant was arraigned before the Circuit Court, Sunyani, on a charge of possessing without lawful excuse Indian hemp weighing 454.00 grammes. He pleaded not guilty and after several adjournments by Judge Sarpong (the relieving judge) his trial commenced before Judge Azina-Nartey on 25 September 1972. That day the first prosecution witness gave his evidence-in-chief and after a short cross examination the appellant’s counsel applied for about two days’ adjournment to enable him get a certified true copy of the proceedings in an abortive trial of the appellant where the first prosecution witness had given evidence. Counsel’s avowed intention was to confront the first prosecution witness with his former evidence. The case was, accordingly, adjourned to 28 September 1972 and subsequently to 4 October 1972, 18 October 1972 and to 27 October 1972 as the appellant’s counsel informed the court that he had been unable to obtain a copy of the proceedings. On 27 October 1972 counsel absented himself from court and the court, at its own instance, adjourned the case to 30 October 1972. On that day
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also the appellant’s counsel failed to appear in court even though the appellant had intimated to the court that he had seen him earlier that morning. As counsel had not informed the court by letter or otherwise of his excuse for absenting himself from court, and the judge had satisfied himself that counsel had collected the certified copy of the proceedings he was after from the registry some four days earlier, the judge decided that the case should proceed in the absence of the appellant’s counsel and he also held that the appellants counsel must be deemed to have abandoned further cross-examination of the first prosecution witness. The prosecution, accordingly, called their remaining witnesses and, indeed, the trial proceeded to a close that same day except for the judgment which was reserved to the next adjourned date, 31 October 1972. The accused was subsequently found guilty and convicted. He was also sentenced to a term of twelve years’ imprisonment with hard labour. It is against this conviction and sentence that this appeal is brought.
In regard to his conviction the appellant’s counsel argued the only ground that “there was manifest miscarriage of justice.” The basis of his argument was that it is clear from the record that the appellant’s counsel had not concluded his cross-examination of the first prosecution witness when he applied for an adjournment and that the court ought to have given the appellant the opportunity to engage fresh counsel when his counsel failed to appear or that he should have been permitted to cross-examine the first prosecution witness himself. As the charge the appellant was facing is technical, so argued his counsel, the court ought readily to have adjourned the case to give the appellant the benefit of the services of counsel or, failing which, the court itself should have come to the assistance of the appellant in guiding him through his defence. Counsel further argued that by rushing through the trial on 30 October 1972, the court sacrificed the fair trial of the accused and that, coupled with the denial to him of his right to cross-examine the first prosecution witness, there was a substantial miscarriage of justice. In reply counsel for the respondent conceded that the failure to give the accused the right to cross-examine was an irregularity but that it was not such an irregularity which occasioned a substantial miscarriage of justice. The second prosecution witness gave substantially the same evidence as the first prosecution witness and the accused had ample opportunity to cross-examine him. Besides, there was the accused’s confession which was corroborated by the evidence of the second, third and fourth prosecution witnesses. The court therefore had sufficient material, according to the respondent’s counsel, on which to convict the appellant.
There can be no dispute that the trial judge erred in denying the appellant himself the right to cross-examine the first prosecution witness when his counsel failed to appear in court. The trial judge himself appreciated that the cross-examination of the first prosecution witness had not concluded and, even if the appellant’s counsel had abandoned the field, that did not disentitle the appellant from relying on his own resources. It is for this reason that he ought to have called on the appellant, if he
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were so minded, to continue with the cross-examination of the first prosecution witness. To brush the appellant aside constituted an irregularity. It is clear that by section 406 of the Criminal Procedure Code, 1960 (Act 30), an irregularity in the trial such as this will be no ground for reversing the judgment on appeal unless it has in fact occasioned a substantial miscarriage of justice.
The question to be answered, therefore, is whether or not the denial to the appellant of the right to cross-examine has in fact occasioned any substantial miscarriage of justice. Normally when an accused person (or his counsel) is precluded, through no fault of his from exercising his right to cross-examine it is the duty of the court to expunge the whole of the evidence of such a witness from the record or to insist that the witness be available for cross examination: see Atuahene v. Commissioner of Police [1963] 1 G.L.R. 448. Where however, the court itself precluded the accused (or his counsel) from the right to cross-examine then the question whether or not such denial has occasioned a substantial miscarriage of justice must depend on (a) the nature of the cross-examination sought by the accused (or his counsel) but which was denied him, or (b) whether, excluding the evidence of the witness, there was no other sufficient evidence on which the court could convict. It is well known that there are two main types of cross-examination, viz. cross-examination to the issue and cross-examination to credit. The former type is designed to elicit statements concerning the facts in issue or relevant to the facts in issue, which are favourable to the cross-examiner’s case. The latter is designed to suggest that the witness is not the kind of person whose evidence can be regarded as trustworthy.
Where the object of cross-examination is to the issue and the court denies such right to the person cross examining any conviction will be set aside on appeal since such denial will amount to a substantial miscarriage of justice. In the English case of R. v. Hilton (1971) 55 Cr.App.R. 466, C.A. the point raised on appeal was whether counsel for one or more of several co-accused has the right to cross-examine a co-accused who has given evidence but which was in no way adverse to any of the defendants. All the counsel concerned had indicated at the trial that they had matters to put to various of the co-accused in the hope of eliciting matters favourable to their own clients. The trial judge, however, ruled against their right to cross-examine such co-accused. On appeal the Court of Appeal (Criminal Division) adopted the statement of the South African judge Harcourt J. in the case of State v. Langa (1963) (4) S.A. 941 at p. 945 (quoted in Cross on Evidence (3rd ed), p. 212) when he said:
“An accused ought, if a fair trial is what is aimed at, to be at liberty to cross-examine a co-accused or any witness called by him who may not have inculpated him in any way in order to establish facts which may tend to support the alibi.”
The court held that the right to cross-examine (to the issue in the case) was necessary for justice to be done and that it was wrongly refused to counsel. The appeal was, accordingly, allowed.
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Was noted before the object of cross-examination to credit is to expose a witness as untrustworthy so as to render, as far as possible, his evidence negligible. If a trial court denies an accused person the right to conduct such a cross-examination, it will be the duty of an appellate court to expunge the whole of the evidence of the witness from the record and then consider whether there is some other evidence to support the conviction. It follows, therefore, that the mere denial of the right to cross-examine to credit will not amount to any miscarriage of justice unless the trial court relied solely on that evidence to convict. If the appellate court satisfied itself, after obliterating such evidence, that the prosecution’s case was otherwise and by others made out it should not disturb the conviction. It is quite clear from the judgment that the learned judge did not rely on the evidence of the first prosecution witness alone. He found that the evidence against the appellant was overwhelming after he had considered the testimony of the second and third prosecution witnesses in addition to that of the first prosecution witness. Both the second and third prosecution witnesses gave substantially the same evidence as the first prosecution witness. He also accepted the evidence of the fourth prosecution witness, the independent witness to the accused’s confession, which was not challenged by the accused as well as the confession statement itself. In the light of the above I am satisfied that the trial judge had ample evidence before him, excluding that of the first prosecution witness, on which he convicted the appellant.
It is undoubtedly, one of the recognized functions of a judge in a criminal trial that he should assist an accused person, who is not represented by counsel, in putting his defence before the court: see R. v. Gbadamosi (1940) 6 W.A.C.A. 83 at p. 89. But the duty of the trial judge to assist the accused does not mean that he should vacate his role of the “impartial umpire” and enter the arena of contest by assuming the cross-examination of the witnesses on behalf of the accused himself or that he should show uninhibited paternalism towards the accused. The scope of his assistance is as laid down in sections “172. (3) and (4) and 174 (2) of the Criminal Procedure Code, 1960 (Act 30), which provide as follows: “172. (3) If the accused does not employ an advocate, the Court shall, at the close of the examination of each witness for the prosecution, ask the accused whether he wishes to put any questions to that witness and shall record his answer.
(4) If the accused instead of questioning the witness makes any statement regarding the evidence of that witness, the Magistrate shall, if he thinks it desirable in the interest of the accused, put the substance of such statement to the witness in the form of questions.”
“174. (2) If the accused states that he has witnesses to call but that they are not present in Court, and the Court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused, the Court may adjourn the trial and issue process, or take other steps, to compel the attendance of such witnesses.”
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I can find nothing on record to show that the trial judge acted in contravention of the above provisions and the complaint that the appellant did not have a fair trial cannot be sustained.”
The appellant was properly charged under sections 47 (1) and 57 (1) of the Pharmacy and Drugs Act, 1961 (Act 64), as amended by Act 222. By section 57 (3) of Act 64 a person guilty of an offence relating to Indian hemp shall, subject to the proviso, be sentenced to imprisonment for at least five years. The appellant’s counsel sought (and was granted) the leave of the court to appeal against the sentence of twelve years’ imprisonment with hard labour imposed on the appellant. His only ground is that the sentence is excessive. Before his sentence the appellant admitted his criminal record which showed four previous convictions for stealing and one previous conviction for possessing Indian hemp on 3 December 1964. His record also disclosed that he was sent to a borstal institution, in Accra, for three years and that he was last sentenced to six months’ imprisonment with hard labour at the District Magistrate’s Court, Nkawkaw, on 20 December 1967. The trial judge considered the appellant’s previous conviction for possessing Indian hemp and the period he spent at the borstal institute and felt that he deserved a sentence longer than the five years’ minimum laid down in section 57 (3) of Act 64 and he accordingly imposed the twelve years’ sentence. The exercise of the power of sentencing lay entirely within the discretion of the trial court and, provided the sentence falls within the maximum permitted by the statute creating the offence and the trial judge duly considered those matters that should go in mitigation of sentence, an appellate judge should not disturb the sentence only because he would have felt disposed to impose a lighter sentence if he had tried the case at first instance.
Although section 57 (3) of Act 64 defines the minimum sentence the trial court can impose for possessing Indian hemp it does not pretend to lay down the maximum punishment for the offence. Section 57 (2) (c) of Act 64 (as amended by Act 222), however, provides as follows:
“(c). where the offence is that of … having in his possession any… Indian hemp contrary to … subsection (1) of section 47 of this Act … and the person has… been convicted of that offence on two previous occasions, shall be liable to imprisonment not exceeding twenty years.”
It becomes quite obvious, reading section 57 (3) together with the above quoted provision, that there is a legislative lacuna as to the maximum sentence to be imposed where the accused is a first offender or has only one previous conviction for a similar offence. What then should be the sentencing limit of a trial court where, in a case like this the punishment creating section does not set its own ceiling? Is the trial judge entitled to stretch his sentencing powers as far as he pleases? I think that the guiding principle should be that where the term of imprisonment to which a person on conviction of an offence may be sentenced is not expressly limited, the sentence shall, subject to any limitations on the powers of the court, be in the discretion of the court, but shall be reasonable and not
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excessive. This principle will be in line with the provision in section 297 (2) of Act 30 in relation to the imposition of fines.
The sentence of the appellant to twelve years’ imprisonment with hard labour for possession of only 454.00 grammes of Indian hemp is, undoubtedly, excessive. In imposing this harsh sentence the trial judge openly took into account the appellant’s previous conviction for the similar offence. But that was in 1964. Indeed his last brush with the law was in 1967. The court ought, to attach considerable weight to the fact that an offender has “gone straight” for a significant period since his last release from custody.
Such a gap in an extensive record must be seen as a reason for not imposing a long preventive sentence or for mitigating a sentence based on normal “tariff” principles. It is in the light of the above considerations that I hold that the sentence of twelve years is excessive and the appeal against sentence must succeed. In the result I dismiss the appeal against conviction but allow the appeal against sentence. I accordingly set aside the sentence of twelve years’ imprisonment with hard labour imposed by the trial judge and in place thereof I substitute a sentence of six years’ imprisonment with hard labour.
DECISION
Appeal against conviction dismissed.
Appeal against sentence allowed.
S. E. K.
