AKRONG v. THE REPUBLIC [1968] GLR 748

DIVISION: HIGH COURT, TAMALE

DATE: 7 AUGUST 1968

BEFORE: QUASHIE-SAM AG.J.

NATURE OF PROCEEDINGS

APPEAL against a decision of a district court convicting the accused on his plea of guilty. The facts are fully set out in the judgment.

COUNSEL

S.A. Codjoe-Fordjour for the appellant.

J. R. Turkson, Assistant State Attorney, for the Republic.

JUDGMENT OF QUASHIE-SAM AG.J.

This is an appeal filed against conviction on charge of stealing preferred against the appellant under section 124 (1) of the Criminal Code, 1960 (Act 29), for which he was convicted and sentenced to three months’ imprisonment.

The appellant, who is a fitter, was, on 3 June 1968, arraigned before the district court, faced with the charge of stealing one hydraulic cylinder valued at N¢80.00 the property of the Ghana Government. He was represented by counsel. He pleaded not guilty to the charge. Upon counsel’s application, the appellant was granted bail and the hearing adjourned to the following day, 4 June 1968. On the adjourned date, the accused was again represented by the same counsel who informed the court that the accused was “taking a new course,” whereupon the charge was read and explained to [p.750] of [1968] GLR 748 the appellant. The appellant then pleaded guilty. The prosecuting officer proceeded to give the facts which led to the offence and subsequent recovery of the cylinder. Counsel also informed the court of the circumstances under which the appellant took the cylinder, after which he proceeded to plead for leniency for the appellant. The accused was convicted on his plea and sentenced accordingly. This then constituted the whole proceedings. By reason of subsection (3) of section 324 of the Criminal Procedure Code, 1960 (Act 30), no person who has pleaded guilty to a charge and has been convicted thereof has a right of appeal against his conviction. This law is mandatory for it enjoins the appellate court not to entertain an appeal in those circumstances. There are, however, cases where the appellate court may entertain an appeal, in spite of the provisions of section 324 (3) of Act 30, the circumstances being as laid down in Duah v. Commissioner of Police (1950) 13 W.A.C.A. 85 and in R. v. Forde [1923] 2 K.B. 400 at p. 403, C.C.A. in the following statement: “A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.” These conditions have been applied in the cases of the State v. Arthur Seshie, High Court, 13 November 1964, unreported; digested in (1965) C.C. 32 and Yeboah v. The State [1964] G.L.R. 715 where they were examined in relation to section 199 of the Criminal Procedure Code, 1960 (Act 30). In this appeal the only ground of appeal originally filed with the petition was:

“That the learned magistrate erred in law in not entering a plea of not guilty for the trial to proceed when my explanation showed innocence and thereby entitled me in law to a plea of not guilty as required by section 199 (4) of Act 30.”

Additional grounds of appeal were filed as follows:

“(1) That the omission by the learned district magistrate to record the statement given by the appellant in explanation or answer in court was a violation of the mandatory provisions of section 199 (3) of Act 30.

(2) That the statement made by the appellant in court in explanation or answer was that he took the exhibit with the consent and full knowledge of the gate keeper who was a [p.751] of [1968] GLR 748 trustee for the owners of the said exhibit and that, by the said explanation or answer which amounted to a good defence in law, a plea of not guilty ought to have been entered as required by section 199 (4) of Act 29.

(3) That the former plea of not guilty coupled with the subsequent plea of guilty and counsel’s instructions as exhibited in the proceedings or the said instructions alone do not constitute guilt and a plea of not guilty should have been entered as required by section 199 (4) of Act 30.” Since, in substance, the appeal is grounded on section 199 (3) and (4) of the Criminal Procedure Code, 1960 (Act 30), it is necessary to examine the provisions of section 199 as a whole. That section opens with subsection (1) which is in the following terms:

“199. (1) Where the accused pleads guilty to a charge, the Court before accepting the plea shall, if the accused is not represented by an advocate, explain to him the nature of the charge and the procedure which follows the acceptance of a plea of guilty.”

(The emphasis is mine.) Then follows subsection (2) which allows the accused the option to withdraw his plea of guilty and plead not guilty. Subsection (3) provides that any statement in answer to the explanation by the court, as required under subsection (1), shall be recorded by the court. Subsection (4) provided further that where the accused pleads guilty but adds words indicating that he may have a defence or so indicates in his answer to the court, the court must enter a plea of not guilty for the accused and proceed to trial. From my examination of these provisions, I am of the opinion that all the subsections (2), (3) and (4) must be read with subsection (1) in which the operative words are “if the accused is not represented by an advocate.” It is my view that the whole intention of the legislature in enacting section 199 of Act 30 was to safeguard the interests of prisoners who may conduct their own cases in ignorance because they are not represented by counsel. In the case of Kofi alias Fiozo v. The State [1965] G.L.R. 28 at p. 30, Lassey J. (as he then was) had this to say in re-opening a plea of guilty and entertaining an appeal in spite of the mandatory provisions of section 324 (3) of Act 30:

“I do not myself think that it was the intention of the legislators when enacting that section to deprive an appellant who has been convicted upon a plea of guilty of the right to appeal against his conviction in the special circumstances I have just mentioned. If it were so, great injustice would be caused [p.752] of [1968] GLR 748 to an illiterate prisoner who pleads in ignorance to an obviously bad charge and who is not represented by counsel.”

It is in the light of this reasoning that I myself view the provisions of sections 199 and 324 (3) of Act 30, laying emphasis on representation by counsel as a prerequisite of section 199 of the Act.

At the hearing of this appeal, counsel for the appellant sought leave to procure additional evidence under section 333 (1) of Act 30 or paragraph 67 of the Courts Decree, 1966 (N.L.C.D. 84), but I refused such leave for stated reasons in my ruling which I need not reproduce in this judgment. Upon that ruling the whole appeal rested on the provisions of section 199 of Act 30. As I have already stated, I cannot divorce my mind of the fact that the appellant was represented by counsel both at the time when he pleaded not guilty and when, on the second appearance, he applied through his counsel to change his plea to that of guilty. The point was argued that when the appellant changed his plea of not guilty to that of guilty, he gave a certain explanation to the court which was not recorded by the learned district magistrate. It was alleged by counsel at the hearing of this appeal that the said explanation was that the appellant obtained the consent of the gate keeper to take away the exhibit to make a coal pot and that the gate keeper assisted the appellant to put the exhibit in a truck. It will be judicially wrong for me to say that if an accused person, in addition to his plea of guilty, gives an indication, by any means, that he may have a defence to the charge, a plea of not guilty should not be entered on his behalf for the case to proceed to trial on merit, merely because he is represented by counsel. But, in this instant case, it appears on the record that after the appellant had changed his plea to that of guilty, and the facts had been narrated by the prosecutor, learned counsel for the appellant proceeded to tell the trial court as he had been instructed. What he told the court is on the record and, in my view, does not support the argument that the learned district magistrate should have invoked the provisions of subsection (4) of section 199 of Act 30 and entered a plea of not guilty. It must be observed here that counsel at this appeal was not the same as counsel at the trial court, and this court will require more than bare allegations to impeach the accuracy of the record, again, as the appellant was represented by counsel.

For these reasons I do not think that the appellant has brought himself within any of the categories in which an appellate court will entertain an appeal on a recorded plea of guilty. The appeal is therefore dismissed.

[p.753] of [1968] GLR 748

Counsel applies for bail pending further appeal on the ground that the instruction given by the appellant to counsel at the trial did qualify the plea of guilty.

Bail is refused.

DECISION

Appeal dismissed.

S.K. T.