HIGH COURT, ACCRA
Date: 28 MARCH 1974
ABBAN J
CASES REFERRED TO
(1) R. v. Harrod (1846) 2 Car. & Kir. 294; 175 E.R. 122.
(2) R. v. Barron [1914] 2 K.B. 570; 83 L.J.K.B. 786; 78 J.P. 311; 30 T.L.R. 422; 58 S.J. 557; 10 Cr.App.R. 81, C.C.A.
(3) R. v. Kendrick and Smith (1931) 144 L.T. 48; 29 Cox C.C. 285; 23 Cr.App.R. 1, C.C.A.
(4) R. v. Thomas [1950] 1 K.B. 26; [1949] 2 All E.R. 662; 65 T.L.R. 586; 93 S.J. 695; 33 Cr.App.R. 200, C.C.A.
(5) Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; 128 J.P.
418; 108 S.J. 356; [1964] 2 All E.R. 401; 48 Cr.App.R. 183, H.L.
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition and certiorari to prohibit a General Court Martial from proceeding further with the trial of the applicant and to quash the proceedings so far taken on the ground of a plea of autrefois convict. The facts are sufficiently stated in the ruling.
COUNSEL
H. K. Akuffo for the applicant.
Captain F. W. Amarteifio, State Attorney, for the Republic.
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JUDGEMENT OF ABBAN J
In this application, brought under Order 59, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), the applicant is asking for an order of prohibition and certiorari directed against the General Court Martial “currently trying the applicant on a charge of conduct prejudicial to the good order and discipline of the Armed Forces.”
The applicant is a lieutenant in the Ghana Army. On or about 31 July 1972, while he was on duty at the Tema Harbour, he stole from one of the sheds, three bales of grey baft, seven bales of furnishing material, two cases of Volkswagon spare parts, nine cartons of yeast and three bales of fishing nets, all belonging to the Ghana Government. He unlawfully used the Armed Forces’ vehicle to transport the stolen goods from the harbour to house No. M/11 in Community 5, Tema, where he was at that time residing.
Consequently, he was charged with two counts of fraudulent misapplication (which offence is almost the same as stealing), contrary to section 52 (1) (a) of the Armed Forces Act, 1962 (Act 105); and also with one count of unauthorised use of a vehicle of the Armed Forces, contrary to section 50 (a) of the same Act. The applicant was summarily tried by a disciplinary service tribunal; and on 28 November 1972, he was convicted on all the three counts. It may be observed that an accused person, if convicted under the said section 52 (1) (a), can be sentenced to imprisonment for a term not exceeding seven years or “to any less punishment provided” by the Act. In the case of conviction under section 50 (a) the sentence is imprisonment “for less than two years or to any less punishment provided” by the Act.
Section 78 (1) provides a scale of punishment numbering (a) to (n), and the section states that each of the “punishments shall be deemed to be a punishment less than every punishment preceding it” in the scale. In the scale the death penalty is considered the highest, followed by imprisonment for two years or more. The third highest punishment in the scale is dismissal with disgrace from the Armed Forces.”
Following his conviction, the applicant was given this third highest sentence; that is, “dismissal from the Armed Forces with disgrace” and without any release benefits. The letter which conveyed the sentence of dismissal to the applicant was dated 28 May 1973 and it was signed by the Military Secretary, Ministry of Defence, Burma Camp, Accra. On the receipt of that letter of dismissal, the applicant on 8 June 1973, addressed a petition to the Head of State and Chairman of the National Redemption Council, apparently, protesting against his dismissal. It must be noted that the applicant did not appeal against his conviction and sentence to the Court Martial Appeal Court.
On 3 August 1973, the applicant was, however, reinstated in the Army in the same rank with his salaries retrospectively paid to him from the date of the dismissal. Back in the Army, the applicant was served with a fresh convening order to the effect that he was to be charged with the offence of conduct prejudicial to the good order and discipline of the Armed Forces, contrary to section 54 of the Armed Forces Act, 1962
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(Act 105). This time he was to be prosecuted before a General Court Martial, presided over by a colonel; and the panel of that court was to be different from the panel of the disciplinary service tribunal which had previously tried him summarily and convicted him.
The second trial was commenced before the said General Court Martial on 16 January 1974. When the applicant appeared before that court, he raised the plea of autrefois convict, but it was overruled and the trial proceeded. He therefore brought the present application to challenge the legality of the second trial, contending that under the Armed Forces Act, 1962 (Act 105), and on the grounds of natural justice and public policy, the second trial is incompetent; and that the General Court Martial, which is engaged in that irregular trial, should not only be prohibited from proceeding further with the trial but also the proceedings so far taken should be brought to the High Court for the same to be quashed.
Learned counsel for the applicant, in arguing the motion, contended that since the conviction obtained at the first trial has not been set aside under section 84 (1) of the Armed Forces Act, 1962 (Act 105), there can be no question of a new trial. Counsel pointed out that the first trial was by a competent disciplinary service tribunal, and the trial was regular. He therefore submitted that the conviction was valid, and that inasmuch as the second trial will be based on the same facts, the same transaction and on the same evidence as that used at the first trial, the conviction acts as a total bar to the second trial, both under the common law and under section 81 (1) of the Armed Forces Act, 1962 (Act 105).
It was also contended by learned counsel that even if the letter which reinstated the applicant could be taken to be a pardon, that pardon only set aside the sentence of dismissal and not the conviction; and the applicant can still plead autrefois convict.
Learned counsel for the respondent opposed the application. He contended that the charges on which the applicant was convicted at the first trial are different from the one involved in the second trial, which is the subject of the present application. Counsel argued that the charges at the two trials were mutually exclusive and since the applicant could not at the first trial have been convicted of the offence involved in the second trial, the plea of autrefois convict has no basis.
Learned counsel further submitted that even if the charges at both trials are practically the same, from the mere fact that the applicant is being tried again can properly be inferred that the conviction at the first trial has been set aside as irregular, under the Armed Forces Act, 1962, s. 84 (1). In support of this contention counsel drew the court’s attention to section 64 (3) of the Act and submitted that the disciplinary service tribunal which tried the applicant had no power to award any punishment other than forfeiture of seniority, severe reprimand, reprimand or a fine; and that punishment of dismissal, to which the applicant was sentenced was ultra vires, and it therefore vitiated the whole proceedings at the
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first trial. So that there was no need for any express order to set aside the said proceedings and the conviction. For legally, those proceedings have never existed and the applicant could be tried again on the same charges, and the plea of autrefois convict is not therefore open to the applicant.
I think it does not lie in the mouth of learned counsel for the respondent to say that the first trial was a nullity. The applicant in his affidavit in support of the application deposed to facts showing clearly that the first trial was orderly and regularly conducted and that the said disciplinary service tribunal was a court of competent jurisdiction. Those facts were never challenged or disputed by the respondent and I accept them. Indeed, the respondent could not have denied them without committing perjury. If in an application, like the present, sworn statements remain on record and uncontradicted, the court is bound to proceed upon them. I therefore hold that there was nothing irregular about the proceedings at the first trial, and the said disciplinary service tribunal also had competent jurisdiction to try the applicant.
It may be true, as contended by learned counsel for the respondent, that the punishment of dismissal which the disciplinary service tribunal meted out to the applicant after he had been convicted was far in excess of what that tribunal could lawfully have passed. But that cannot in any way make the whole proceedings at the trial null and void. In my view the fact that a competent trial court did impose on a person properly tried and convicted, a sentence which was more than what the said trial court could legitimately have imposed, cannot raise any presumption that the whole trial was irregular. If anything at all, it was the sentence which was a nullity and not the proceedings up to conviction. The conviction of the applicant was therefore valid.
Section 84(1) of Act 105 gives discretionary powers to the commander of the appropriate Armed Forces to set aside any conviction and order a new trial under certain conditions. But there is nothing before the court to show that the applicant’s commanding officer did exercise his powers under this section 84 (1) before the new or the second trial commenced. Quite contrary to the submission of learned counsel for the respondent, I am of the opinion that in the absence of any express order from the commander of the appropriate Armed Forces, setting aside the applicant’s said conviction, the mere commencement of that second trial cannot by itself be evidence that the conviction obtained at the first trial has in fact been set aside.
In reply to the arguments about the pardon, learned counsel for the respondent contended that the letter which informed the applicant of his reinstatement in the Armed Forces had nothing to do with a pardon. The letter, counsel submitted, did not emanate from the office of the Head of State. It was a letter written by the military secretary in the course of performing his administrative, and not judicial, functions. I do not think the arguments about a pardon were really necessary. The fact remains that for reasons, not yet known, the applicant was
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reinstated in the Ghana Armed Forces by a letter dated 3 August 1973, signed by the very military secretary who signed the letter of dismissal; and there is nothing to indicate that that letter was written on the orders of the Head of State who alone enjoys the exclusive and inseparable right of granting pardons. The said letter was also silent about the previous trial and the conviction. The letter simply stated, in effect, that the dismissal letter of 28 May 1973, had been withdrawn and that all the directives given in that letter of dismissal had been cancelled, and the applicant was to go back to the Army.
I doubt whether such a letter could constitute a pardon from the Head of State. In any case, even if I had come to the conclusion that that letter was a pardon, I would have held that the said pardon was confined expressly to the offences of fraudulent misapplication and unauthorised use of an army vehicle. A pardon relieves the convicted person of all the statutory or other disqualifications following upon the conviction and the effect is confined only to the particular offence or offences for which it is granted, and it cannot therefore be a bar to a trial for any other offence: see R. v. Harrod (1846) 2 Car. & Kir. 294 at p. 295
The most important question, however, is this: a valid conviction not having been set aside, either under section 84 (1) of the Armed Forces Act, 1962 (Act 105), or by any other competent authority, can the applicant be subjected to a new or second trial involving the same subject-matter and the same facts as were relied upon by the prosecution at the first trial?
Section 81 (1) of the Armed Forces Act, 1962, provides as follows:
“81. ( 1). Every person, in respect of whom a charge of having committed a service offence has been dismissed, or who has been found guilty or not guilty either by a service tribunal or a civil court on a charge of having committed any such offence shall not be tried or tried again by a service tribunal under this Act in respect of that offence or any other offence of which he might have been found guilty on that charge by a service tribunal or a civil court.”
It appears to me that this provision was based on the well-known common law principle that no man shall be liable to be punished twice for the same offence. It is this principle which enables an accused person to plead autrefois convict or acquit as the case may be. See also section 237 of the Criminal Procedure Code, 1960 (Act 30), where a similar provision has been made. In R. v. Barron (1914) 10 Cr.App.R. 81 at p. 87, C.C.A. Lord Reading C.J. observed:
“The principle on which this plea depends has often been stated. It is this, that the law does not permit a man to be twice in peril of being convicted of the same offence (4 Hawkins P.C. 311; B.II c. 35). If, therefore, he has been acquitted, i.e. found to be not guilty of the offence, by a Court competent to try him, such acquittal is a bar to a second indictment for the same offence. This rule applies
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not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment.”
The decided cases make it clear that to enable an accused person to rely on a plea of autrefois convict, it must be established that he is being charged with an offence which is the same “or substantially the same” as the one in respect of which he has been convicted or could have been convicted. So that it is not enough to show that the evidence to be tendered to prove the offence at the second trial will be the same evidence as that offered to prove the offence at the first trial. “It is not the evidence which is material to the charge that grounds the plea, but the offence which is charged”: see R. v. Kendrick and Smith (1931) 23 Cr.App.R. 1 at p. 4, C.C.A. per Swift J.
In R. v. Thomas [1950] 1 K.B. 26, C.C.A. a husband was charged with and convicted of having feloniously wounded his wife with intent to murder her. He was sentenced to seven years’ imprisonment by the Central Criminal Court. The wife later died as a result of the wounds she had received; and the husband was indicted at the same court on a charge of murdering his wife.
He set up a plea of autrefois convict and the trial judge directed the jury to return a verdict that the plea of autrefois convict had not been made out. The husband was then tried on his subsequent plea of not guilty to the indictment for murder. He was found guilty and convicted. He appealed to the Court of Criminal Appeal on the ground that the plea of autrefois convict was wrongly rejected. In dismissing the appeal, the court held as appears in the headnote that:
“Where a person has been convicted of wounding with intent to murder and the person wounded subsequently dies of the wounds inflicted, a plea of autrefois convict is not a good answer by the person who inflicted the wound to an indictment for murder.”
Because the two offences were not the same in any respect. This doctrine of autrefois has recently been discussed fully by the House of Lords in the case of Connelly v. Director of Public Prosecutions [1964] A.C. 1254, H.L. Lord Devlin, in delivering his speech said:
“For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.”
(The emphasis is mine.)
In the present case, the applicant was at the first trial charged with fraudulent misapplication of the goods, and with unauthorised use of a vehicle belonging to the Armed Forces. These two offences are found in sections 52 (1)(a) and 50(a) of the Armed Forces Act, 1962 (Act 105).
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At the second trial the applicant is facing a charge of conduct prejudicial to the good order and discipline of the Armed Forces, contrary to section 54 (1) of the same Act; and in the particulars of the offence the very goods, which were the subject of the first trial, have been listed. It is also alleged in the said particulars that the applicant was improperly found in possession of those goods and, to the prosecution, the applicant’s conduct of possessing those goods illegally was highly prejudicial to the good order and discipline of the Armed Forces.
Looking at these offences and bearing in mind the principles enunciated above, I have come to the conclusion that the plea of autrefois convict cannot avail the applicant. Because the offence for which the applicant is now being tried is not the same, both in law and in fact, as any of the offences with which he was charged and convicted at the first trial. In other words, the former charges are not the same or “substantially the same” as the charge of conduct prejudicial to the good order and discipline of the Armed Forces, and the applicant could not have been convicted of this latter offence at the first trial. The mere fact that the prosecution at this second trial will rely on the same witnesses, on the same facts or on the same evidence as that produced at the first trial, cannot make the offences identical.
The offences are quite distinct. I therefore hold that the applicant has not already been tried and convicted of the same offence as the one he is now facing at the second trial. Neither has he been able to show that at the first trial he could have been convicted of the offence involved in the second trial. Consequently, the doctrine of autrefois convict does not apply. In the circumstances, the application will be refused. The interim order for stay of proceedings made against the General Court Martial on 30 January 1974 is hereby discharged. The trial of the applicant can now proceed.
DECISION
Application dismissed.
Interim order for stay of proceedings discharged. Trial to proceed.
S.E.K.
