OKYERE AND ANOTHER v. THE REPUBLIC [1972] 1 GLR 99
HIGH COURT, ACCRA
Date: 17 NOVEMBER 1971
BEFORE: HAYFRON-BENJAMIN J.
CASES REFERRED TO
(1) State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111.
(2) R. v. Tunwashe (1935) 2 W.A.C.A. 236.
(3) State v. Halm, Court of Appeal, 27 July 1967, unreported.
(4) Rossi v. United States, 11 F (2d) 264 (8 Cir. 1926)
(5) United States v. Motlow 10F (2d) 657 (7 Cir. 1926)
(6) Gyakye v. The Republic [1971] 2 G.L.R. 280.
(7) D’ Aquino v. United State 180F (2d) 271 (9 Cir. 1950).
(8) Armah Mensah v. The Republic [1971] 2 G.L.R. 17.
(9) Griffin v. California 380 U.S. 106 (1965).
NATURE OF PROCEEDINGS
APPLICATIONS for bail pending appeal .The facts are fully stated in the ruling of Hayfron-Benjamin J.
COUNSEL
Adamafio for the applicants.
G. K. Avah for the respondents.
JUDGMENT OF HAYFRON-BENJAMIN J.
This is an application by the second and third accused persons for bail pending appeal. The second
accused applicant was charged on one count of conspiracy to steal, two counts of pretending to be a public officer, and one count of stealing. The third accused applicant was charged on one count of
conspiracy to steal, one count of aiding and abetting stealing, and two counts of aiding and abetting
extortion. The accused persons were found guilty and convicted on all counts. The second accused
applicant was sentenced to four years’ imprisonment with hard labour on each count and the third accused was sentenced to eighteen months’ imprisonment with hard labour on each count. All the sentences were to run concurrently. The judgment was delivered on 27 August 1971 , i.e. over two months ago. On 25 October 1971, the applicants applied for bail before this court. I dismissed their application but directed the registry [p.101] of [1972] 1 GLR 99 to expedite the preparation of the record of proceedings to enable the appeal to be heard at an early date. I did so because on the perusal of the lengthy judgment of the learned trial circuit court judge, it appeared to me that some fundamental constitutional rights of the accused persons might have been infringed during the trial, and it would be desirable to hear the appeal quickly to determine whether this view was well founded or not. Unfortunately the registry has not been able, due undoubtedly to pressure of work, even to start the preparation of the record of proceedings. The applicants have therefore brought a fresh
application.
The Court of Appeal in 1967 laid down the principles guiding the court in the exercise of its discretion to grant bail. Ollennu J.A. (as he then was) reading the unanimous ruling of the court in the case of State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111, said very clear principles are laid down as to the circumstances in which alone the court may exercise its discretion to grant bail after conviction. These principles have been summarised in R. v. Tunwashe (1935) 2 W.A.C.A. 236 as follows:
“(1) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed. (2) That in dealing with the latter class of case the Court will have regard not only to the length of time which must elapse before the appeal can be heard but also to the length of the sentence to be appealed from, and further that these two matters will be considered in relation to one another.” To these may be added a third, namely, where the court is satisfied that the conviction is prima facie erroneous either in law or in fact, and that there will be apparent miscarriage of justice if bail is refused.
The Court of Appeal in State v. Halm, 27 July 1967, unreported, applied the ruling in State v. Owusu
(supra). Akufo-Addo C.J. (as he then was) said:
“The principles upon which an appellate court in this country will act on an application for bail pending appeal are clearly set out in the judgment of this court dated 22 June 1967 in the case of State v. Owusu. The grant of bail to a convicted prisoner pending the hearing of his appeal is an unusual course which may be adopted only in exceptional circumstances. Such exceptional circumstances may be that (1) the conviction is prima facie wrong and the appeal therefore has obvious prospects of success. Coupled with that is: (2) the probability that having regard to the shortness of the sentence imposed the hearing of the appeal may be unduly delayed. Another such exceptional circumstance may be the absolute necessity for the appellant to be free to help his advisers in the preparation of the appeal.”
It is quite clear that the learned Chief Justice’s catalogue of exceptional circumstances was not meant to be exhaustive. The learned Chief Justice was however clear in his mind that “expressions of belief in the merits of an appeal coupled with expressions of hope in its success do not [p.102] of [1972] 1 GLR 99 create such exceptional circumstances as to warrant a resort to the unusual course of admitting a convicted prisoner to bail.” The foregoing were the principles guiding the court on application for bail by convicted prisoners pending the hearing and determination of their appeals before the Constitution, 1969, of the Second Republic was promulgated. Before examining any changes (if any) which have been brought about as a result of the constitutional provisions, it is pertinent to refer to another aspect of the ruling in State v. Halm (supra). The learned judges of the Court of Appeal found themselves substantially handicapped in their assessment of the prospects of the success of the appeal in that they had not before them the notes of evidence of the trial, and they were unable to find on the face of the judgment alone anything to support the contention that the conviction appealed against was prima facie wrong. The learned Chief Justice said, “We do not go so far as to say that the appeal has no chance of success. The appeal may well succeed, but on the material presently before us we are unable to say that it probably will succeed.” Learned state attorney representing the Attorney-General has urged this court to take a similar course in the absence of notes of evidence taken at the trial. Article 20 (3) of the Constitution provides:
“Whenever a person is tried for any criminal offence the accused person or any person authorised by him in that behalf shall, if he so requires, and subject to the payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the Court.”
The applicants herein have been unable to obtain copies of the record of proceedings, not through any fault of their own, but because of the dilatory processes of state instrumentalities. Acquainted as I am with the inadequate facilities provided for the despatch of business in the registries of the court, I shall not attribute blame to any person for the delay in the preparation of the records. I shall also not penalise the applicants for the absence of the record of proceedings.
I do not think that it is open to the Republic, having denied the applicants their fundamental rights as prescribed and enshrined in article 20 (3) of the Constitution, to oppose the grant of bail on the ground that the notes of the evidence are not available to the court. The power of the court to grant bail pending appeal is conferred by section 26 (5) of the Courts Act, 1971 (Act 372), which provides that “The Court before which a person is convicted or the Court to which an appeal is made may if it thinks fit on the application of an appellant admit the appellant to bail pending the determination of his appeal.” This repeats with modifications the same provisions in para. 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84), which was the subject of consideration in the Owusu case (supra). The only significant modification is the substitution of the word “thinks” for “seems” in the clause “if it thinks fit.” The legislature by adopting a different wording must have intended a change in the meaning and effect of the section. I do not think it is necessary for the purpose of [p.103] of [1972] 1 GLR 99
this ruling to consider the difference in effect. It is however important to consider whether with the
entrenchment of certain provisions which hitherto had been considered procedural rules, into the
Constitution, 1969, as fundamental rights, the traditional signposts guiding the courts in the exercise of their discretion to grant or refuse bail are still valid. These signposts as I have already shown were
discussed in extenso in Owusu’s case.
The important provisions are found in the following provisions of article 15 of the Constitution, 1969:
“ 15. (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say, (a) in execution of the sentence or order of a Court in respect of a criminal offence of which he has been convicted… (3) Any person who is arrested, restricted or detained… (b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Ghana, and who is not released, shall be brought before a Court within twenty-four hours. (4) Where a person arrested, restricted or detained in any circumstance as is mentioned in paragraph (b) of the immediately preceding clause is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be
released either unconditionally or upon reasonable conditions, including in particular such
conditions as are reasonably necessary to ensure that he appears at a later date for trial or for
proceedings preliminary to trial. (5) Any person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation therefor from that other person. (6) Where a person who has served the whole or part of his sentence is acquitted on appeal, (a) by
a Court, other than the Supreme Court, the Court may certify to the Supreme Court that the
person so acquitted be paid compensation; and the Supreme Court may, upon examination of
all the facts and the certificate of the Court concerned, award such compensation as it may
deem fit.” In Owusu’s case, Ollennu J.A. emphasized the distinction between applications for bail pending trial and those for bail after conviction and pending the hearing and determination of an appeal. This distinction had hitherto not gone unchallenged. It has been argued that the whole purpose of bail before trial is to secure the attendance of the accused at his trial and to serve any sentence that may be pronounced on him subsequent to his conviction. It is further argued that the purpose of bail pending appeal is to secure that the convicted person prosecutes his appeal and serves his [p.104] of [1972] 1 GLR 99 sentence if his appeal fails. It is argued that one who suffers imprisonment after conviction and during the pendency of his appeal which is eventually successful suffers the same injustice as is endured by one who is denied bail before his trial and is subsequently acquitted. It is to prevent this injustice that courts are granted power to grant bail in appropriate cases. It is therefore contended that the basic principle which underlies and ought to govern the allowance of bail both before and after trial is the same. See Rossi v. United States 11F (2d) 264 (8 Cir. 1926) at p. 265.
It is clear that in Ghana the constitutional provisions draw a sharp distinction between bail for persons accused of crime and bail for person convicted of crime. Once it is established that a trial is not probable within a resonable time, bail for persons accused of crime is mandatory. Failure or refusal to grant bail under such circumstances is a direct infringement of the constitutional rights of the individual, and may result in the quashing of any conviction and either an acquittal or an order for a new trial. In the words of Rutter J. in United States v. Motlow 10F (2d) 657 (7 Cir. 1926) at p. 662. “Abhorrence, however great, of persistent and menacing crime will not excuse transgression in the courts of the legal rights of the worst offenders. The granting or withholding of bail is not a matter of mere grace or favour.” Once a trial is not probable within a reasonable time, the Constitution decrees no discretion in the judge in matters of bail.
The law regarding bail for persons accused of crime has therefore undergone a sea-change since the
Constitution and the old principles are no longer wholly valid.
In Gyakye v. The Republic [1971] 2 G.L.R. 280, the accused persons were charged with Murder. Section 96 of the Criminal Procedure Code, 1960 (Act 30), provides that bail shall not be granted in charges of murder. They were remanded and kept in custody for over a year, and there was no prospect of an early trial. Coussey J. admitted them to bail notwithstanding the provisions of Act 30. He said at p. 281, “I am, therefore, compelled within spirit and letter of the Constitution to allow the applicants bail . . .” The learned judge therefore ruled that the provision in section 96 of Act 30, should be read with modification to bring it into conformity with the clear provisions of the Constitution. On the other hand the provisions relating to compensation to persons who have served the whole or part of their sentences clearly indicate that the Constitution contemplates denial of bail pending appeal under certain circumstances and that bail to convicted persons is not automatic or a matter of course. Article 15 (1) of the Constitution as has already been said protects personal liberty save as may be authorised by law in the execution of the sentence or order of a court in respect of a criminal offence of which a person has been convicted.
The law is that a person convicted of crime shall serve his sentence notwithstanding the pendency of an appeal against the said conviction or sentence or both unless he is released on bail by the court convicting him or the court to which he has appealed. What then are the principles guiding the court in the exercise of this power to grant or refuse the grant of bail? I am of the firm opinion that with the entrenchment of what hitherto had [p.105] of [1972] 1 GLR 99 been mere procedural rules in article 20 of the Constitution, an addition should be made to the principles stated by Ollennu J.A. in Owusu’s case. Where it is apparent from the judgment or other materials before the court that there is prima facie a breach of any of the fundamental rights guaranteed under article 20 of
the Constitutions during the trial of the accused, the court ought not to refuse the grant of bail. As
Douglas J. said in D’Aquino v. United States 180F (2d) 27 (9 Cir. 1950). “An appellant though guilty
beyond question may have been denied the kind of a trial that even a traitor to our country is entitled to under the Constitution and laws. Those are situations where bail pending appeal should be granted.” In that case D’Aquino had been convicted of treason and had been sentenced to ten years imprisonment. She was granted bail pending appeal principally on the ground whether confessions obtained from her immediately following her prolonged confinement by military authorities and which had formed the basis of her conviction did not violate her constitutional right to a fair trial. I would add that in the application of this principle, the length of the sentences an immaterial factor.
I have read with interest the erudite judgment of Taylor J. in the case of Armah Mensah v. The Republic [1971] 2 G.L.R. 17. In that case the appellant was tried and convicted of stealing by a district court. When the case was called for the first time the appellant applied for an adjournment to secure the presence of his counsel. This was disallowed and the appellant had therefore to defend himself in person. Consequently he did not adequately defend himself. The appeal was allowed on the ground, inter alia, that article 20 (2) of the Constitution, 1969, gives to every person charged with a criminal offence the right to defend himself or to be represented by counsel of his choice. That choice is not the tribunal’s but that of the accused person, and where the tribunal narrows the choice to one, or in other words where the tribunal by its act, effectively takes away that choice, there is an infringement of the constitutional rights of the accused person. I entirely agree with this conclusion of the learned judge’s judgment. He said in Armah Mensah v. The Republic (supra) at p. 21.
“As it is by its ruling the district court denied the appellant the protection given to him by article 20 (2) (e) of the Constitution. The article reads, ‘Every person who is charged with a criminal offence … (e) shall be permitted to defend himself before the Court in person or by counsel of his own choice….’ This provision is mandatory but the court did not seem to be inclined to give effect to it. The failure has quite clearly occasioned a miscarriage of justice because, as it turned out, the appellant was not able to put his defence adequately before the court as a trained lawyer would have done. In the result the conviction cannot be allowed to stand.”
My understanding of this statement is that the breach of the fundamental right is itself a miscarriage of justice, and that the judge in his usually exhaustive and meticulous manner wanted to explain to the parties and to the public how the miscarriage of justice had occurred. The assistant editor of the Ghana Law Reports however says in the headnotes to the [p.106] of [1972] 1 GLR 99 report of the case, that, “In depriving the appellant of his rights under article 20 (2) (e) the trial court might have occasioned a miscarriage of justice in that the appellant was denied an adequate defence . . .”
It is quite clear from the learned judge’s statement above quoted that his conclusion was not that the
denial might have occasioned a miscarriage of justice but that it did in fact do so.
The headnote seems to say that where an appellate court finds that there has been a breach of an article 20 right in the trial, the appellate court must go further and determine or find whether or not there has been a miscarriage of justice. In other words a conviction will not be quashed if the breach of the fundamental right did not occasion a miscarriage of justice. This view implies that a breach of article 20 during a trial in a court of law does not per se involve a miscarriage of justice. The relevance of this view in this case is that if it is well founded then there need not be any addition to the principles as stated by Ollennu J. in Owusu’s case, as in any event the court will be called upon to consider and decide whether or not there has been a miscarriage of justice.
Article 12 of the Constitution states that every person in Ghana shall be entitled to the protection of the law, and other fundamental rights and freedoms of the individual. The provisions of Chapter 4 of the Constitution are designed to have the effect of affording protection to these rights and freedoms; the limitations on those rights contained in the provisions of Chapter 4 are designed “to ensure that the enjoyment of the said rights and freedoms by any individual shall not prejudice the rights and freedoms of others or the public interest.” I do not find anything in Chapter 4 or any other part of the Constitution that confers power on any court or other body to impose further limitations on the enjoyment of these rights.
The provisions of article 20 of the Constitution are meant to secure the equal protection of the law. The chiefs and people of Ghana who in their Constituent Assembly adopted, enacted and gave themselves this Constitution were clearly of the view that without these fundamental rights a person charged with crime would not have the protection of the law. They therefore spelt out these rights in some detail in article 20. It is clear from the provisions of article 28 (5) that these rights are the minimum, and that their enumeration is not meant to be exhaustive.
The provisions of article 20 constitute a code of minimum standard for the trial of every person including the worst traitor to the country, or the most vicious of murderers.
Article 20 contains several provisions including the following:
“(2) Every person who is charged with a criminal offence . . .
(b) shall be presumed to be innocent until he is proved or has pleaded guilty . . .
(e) shall be permitted to defend himself before the Court in person or by Counsel of his own choice . . .(h) shall, in the case of the offence of treason, be tried by the High Court of Justice duly constituted by three Justices thereof; . . . [p.107] of [1972] 1 GLR 99
(6) No person who shows that he has been tried by a competent Court for a criminal offence and either convicted or acquitted shall again be tried for that offence or any other criminal offence of which he could have been convicted at the trial for the offence, save upon the order of a superior Court in the course of appeal or review proceedings relating to the conviction or acquittal . . . (10) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
The courts in Ghana have always treated the presumption of innocence of accused person with respect. Where therefore the burden of proof has without statutory authority been placed on to the accused, that fact alone resulted in the quashing of the conviction.
I do not think that where a person is tried for treason before a single judge of the High Court, and
convicted, the conviction would be allowed to stand even if the judge’s summing-up is impeccable, and the evidence of guilt of the accused is overwhelming, on the ground that there has been no miscarriage of justice. The appellate court would quash the conviction on the ground that the court was not properly constituted and on that ground alone. Again, where the record shows clearly that an accused person has once been tried and acquitted of the same offence, and yet that the trial court proceeded to try him again on that same offence, a conviction obtained on the second trial will not be allowed to stand merely because the second trial has shown that he was clearly guilty and that his first acquittal was wrong. All these instances would be accepted almost instinctively by most lawyers in Ghana, because of their training and experience in practice. They would not so readily accept a situation where a conviction has been quashed because the trial judge denied the accused the right to choose to defend himself by counsel.
This is because this ground is new and counsel are not accustomed to having convictions quashed on such grounds. The Constitution however places all these rights on an equal footing. There is no doctrine of preferred rights in our Constitution. All the rights enumerated in article 20 are of equal efficacy; they are all designed to secure the protection of the law.
Any breach as such means that the minimum protection prescribed by the Constitution for the trial of an accused person in order to ensure a fair trial has been denied the accused person. I do not think any court, or any other authority is empowered to do so, whatever the reasons and whatever the justification. To hold otherwise is to substitute the opinion of the judge of the requirements of a fair trial for what has been clearly set out in the Constitution. I am of the view therefore that a breach of any of the rights entrenched by article 20 during the trial of any accused person amounts in itself to a miscarriage of justice. In the case before this court, the learned trial circuit court judge examined and considered the evidence in detail in writing his judgment and drawing up his orders. In considering the case to the defence he said, “When each of the accused persons was charged and was invited to make a statement each refused to make a statement until he came to [p.108] of [1972] 1 GLR 99
court and until he had heard what the prosecution had to say. The court is of the view that even though an accused person is not bound to make a statement when he is charged with an offence or offences of the like we have here, but where in a case like this where each of the accused persons is literate and he could briefly write a statement denying the allegation being levelled against him, the court will be entitled to comment on the silence kept by the accused especially where the prosecution present such a strong case and where the accused person, as here fails to impress the court as a truthful witness. The court here holds the view that all that each of the accused persons told the court is an afterthought. None of the accused persons impressed me as a truthful witness and I reject the story told this court by each of them as being absolutely untrue. I do not consider any of the accused’s stories to be reasonably probable.”
Article 20 (10) of the Constitution provides that no person who is tried for a criminal offence shall be
compelled to give evidence at the trial. This right encompassing as it does the right against
self-incrimination is like all the other fundamental rights important and far-reaching. Although it
originated from England as a common-law privilege, several constitutions including that of Ghana, have made it a constitutional right, and clothed it with the same status as other rights, like freedom of religion, and it can no longer be considered as a mere privilege even though usually referred to as such. The Supreme Court of the United States describes this right as “one of the nation’s most cherished principles.”
It is no mere rule of evidence or procedure, it is a fundamental principle of liberty and justice.
The question that arises from the judgment is whether an accused person who in the exercise of his constitutional right not to give evidence at his trial, fails or refuses to give a statement to the police when he is charged with a crime is to be affected by comments, adverse or otherwise, on his failure or refusal to speak, by the bench during his trial. This is a question of some importance. In the case of Griffin v. California 380 U.S. 106 at p. 109 (1965) a prosecution resulted in a conviction for murder in the Superior Court of Los Angeles County, California. The failure of the accused to testify was commented upon by the prosecuting attorney and the judge acted pursuant to provisions in the Constitution of the State of California, which provides that in any criminal case, whether the defendant testifies or not, his failure to explain or deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel and may be considered by the court or jury. The Supreme Court of the United States quashed the conviction on the ground that the self-incrimination guarantee of the Fifth Amendment, forbids either comment by the prosecution on an accused’s silence or directions by the court that such silence is evidence of guilt. Douglas J. delivering the opinion of the court said:
“For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ which the fifth amendment outlaws. [p.109] of [1972] 1 GLR 99 It is a penalty imposed by Courts for exercising a Constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the
failure does not magnify that inference into a penalty for asserting a Constitutional privilege. What the jury may infer when the court solemnizes the silence of the accused into evidence against him is quite another.”
This is a trial before the circuit court judge and there is no jury. Nevertheless the principle would apply. A trial judge ought not to infer guilt from the exercise by an accused person of his constitutional right to keep silent.
The question whether the applicants’ rights have in fact been infringed cannot be decided on these
applications. All that is necessary is to ascertain whether or not a case of probable infringement has been made out. I think one has been made out and I therefore admit both applicants to bail. The second accused applicant is granted bail in the sum of N¢15,000.00 three sureties each in the sum of N¢5.000.00 to be justified and the third accused applicant is granted bail in the sum of N¢4,000.00 two sureties each in the sum of N¢2,000.00 to be justified.
DECISION
Applications for bail granted.
