BOAHENE AND ANOTHER v. THE STATE [1965] GLR 279

DIVISION: SUPREME COURT (FULL BENCH)

DATE: 15 APRIL 1965

BEFORE: SARKODEE-ADOO C.J., MILLS-ODOI, OLLENNU,

BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Abaley (1958) 3 W.A.L.R. 463, C.A. (2) R. v. Sarpong [1960] G.L.R. 15, C.A. (3) R. v. Jones (1961) 46 Cr.App.R. 68, C.C.A. (4) Owusu v. Commissioner of Police, Court of Appeal, Cyclostyled Judgments, January-June 1958, p. 119, unreported, reversing (1958) 3 W.A.L.R. 364.

NATURE OF PROCEEDINGS

APPEALS from convictions and sentence by Sowah J. in the High Court, Accra, on charges of conspiracy to forge notes, conspiracy

[p.282] of [1965] GLR 279 to utter forged notes and forgery. The facts are fully set out in the judgment of Ollennu J.S.C. COUNSEL Victor Owusu for the first appellant. Osei for the second appellant. A. N. E. Amissah, Director of Public Prosecutions (with him Gyeke-Dako, Senior State Attorney), for the respondent.

JUDGMENT OF OLLENNU J.S.C

Ollennu J.S.C. delivered the judgment of the court. The two appellants were tried by Sowah J. in the High Court with the aid of assessors, on an indictment which charged the two of them jointly on two counts of conspiracy to commit a crime, to wit, forgery of Ghana currency notes contrary to section 23 of the Criminal Code, 1960,1 and section 16 of the Currency Act, 1960,2 now repealed, and charged the first appellant alone with the substantive offence of forgery of a Ghana currency note contrary to section 16 of Act 17 aforesaid. The assessors were unanimous in their opinion that the appellants were not guilty on each of the offences of which each stood charged; but the learned judge with whom rests the final decision in such a trial, as provided by section 287 (2) of the Criminal Procedure Code, 1960,3 found each of the appellants guilty, convicted him accordingly and sentenced the first appellant to a term of five years’ imprisonment with hard labour on each of the three counts, the sentences to run concurrently, and the second appellant to two years’ imprisonment with hard labour on each of the two counts on which he was charged, the sentences also to run concurrently. Each of the appellants has appealed against his conviction and the sentences passed upon him. Five original grounds of appeal were filed on behalf of the first appellant, and with the leave of the court, a large number of additional and further additional grounds of appeal were argued together with those originally filed. With the leave of the court additional grounds were argued on behalf of the second appellant also in addition to the two grounds originally filed. It is not necessary to set out all the grounds of appeal; the gist of the most important of them will be set out at appropriate stages in the course of the judgment. Two of the first appellant’s grounds of appeal complained that the committing district court failed to comply with the mandatory

[p.283] of [1965] GLR 279 provisions of section 191 of the Criminal Procedure Code, 1960, which requires that upon committing an accused person for trial upon an indictment where the charge is one in which an option is given to the accused, “the Court. . . shall ask him whether he desires to be tried with a jury or by the Court with the aid of assessors and shall record and attest by his signature the answer of the accused,” and also that the High Court erred in acceding to the request made by the Attorney-General under section 242 (2) of the Act and directing that the trial should be with the aid of assessors instead of by jury. These grounds, it is said, raise constitutional issues as to rights of a citizen under the law to be tried by jury. In consequence of this view expressed by learned counsel for the first appellant, the learned Director of Public Prosecutions requested a full court for the hearing of the appeal, and his lordship the Chief Justice in consequence accordingly constituted a full bench of the court for the hearing of the appeal. Having heard full arguments on both sides on these grounds we would say that in our opinion the issues involved are no more constitutional than a complaint in a habeas corpus proceedings that an arrest and detention of a citizen without a warrant or order of a court are not in conformity with the law of the land for the time being in force. In support of the contention that the appellants were deprived of their right to be tried by jury, counsel referred to (a) section 242 (1) of the Criminal Procedure Code, 1960, which provides that certain offences specified by the minister in a legislative instrument shall be tried by jury; (b) to Order No. 41 of 1948 made under section 254 of the Criminal Procedure Code, now repealed,4 which provides that in Southern Ghana, all offences punishable by imprisonment for life shall, in addition to offences punishable by death be tried by jury; and (c) to section 16 of Act 17 which makes the offences in this case first degree felonies and therefore punishable by imprisonment for life. Order No. 41 of 1948 aforesaid is still in operation by virtue of section 413 (2) of Act 30 which says, “Any regulations or other instruments made under any enactment hereby repealed shall remain in force and be deemed to have been made under the corresponding provisions of this Code.” Counsel submitted that by reason of these provisions of the law, the trial should have been by jury and not with assessors. He submitted that subsection (2) of section 242 of Act 30 is not a proviso to subsection (1) of section 242, and therefore it is not a case where the Attorney-General or an accused person has a right to elect that trial should be with assessors instead of by jury. In the alternative counsel submitted

[p.284] of [1965] GLR 279 that if the case is covered by subsection (2) of section 242 of Act 30, then the committing district court should have put the appellant to his election at the committal, as it is required to do by section 191, so that the election made by the appellant should be before the trial court at the time the Attorney-General makes his application. The learned Director of Public Prosecutions, in reply to the submission on this point, argued that the only way to treat subsection (2) of section 242 of Act 30 in order that it can fit into that part of the Act dealing with mode of trial, is as a proviso to subsection (1) of section 242. He referred to section 254 of Cap. 10, which is the corresponding provision in the old Criminal Procedure Code, now repealed, where it is shown that provisions similar to those in sub-section (2) of section 242 of Act 30, were appended as a proviso to that part of section 254 of Cap. 10 which corresponds to section 242 (1). He submitted therefore that the case comes under section 242 (2); and therefore both the Attorney-General and the appellants have an option to apply that the trial should be with assessors instead of by jury. On the question of the failure of the district court to comply with the provisions of section 191, he submitted that although the duty imposed upon the district court is mandatory, the omission to comply with it has not occasioned any miscarriage of justice. Now section 204 of the Criminal Procedure Code, 1960, provides only two modes of trial on indictment, namely, (1) by jury or (2) with the aid of assessors, and adds that trial in either case should be in accordance with the provisions of the Code. Section 245 is the only section in the Code which is definite as to offences triable by jury, that is, all offences punishable by death. It follows from it, that all other offences are triable with assessors, save that Order No. 41 of 1948, which by virtue of section 413 of Act 30, is deemed to have been made under section 242 (1) of Act 30, has appropriated all offences punishable by imprisonment for life, as offences triable in Southern Ghana, as also triable by jury. The position therefore is as follows: (i) All offences punishable by death are triable throughout Ghana by jury, (ii) offences carrying life imprisonment are triable in Southern Ghana only by jury, (iii) all other offences are triable with assessors as provided in section 243 (1) of the Code. Section 243 (2) gives the trial court power, for reasons stated, to have a case which comes under section 243 (1) as an offence triable with assessors, tried by a jury; and section 242 (2) gives the Attorney-General and an accused person an option to request that a case which is triable by jury should be tried instead with assessors. In other words, where the law has fixed one mode of trial, i.e. by jury or with assessors, the other mode of trial may be employed in certain [p.285] of [1965] GLR 279 special circumstances. It follows that since section 242 (1) is the only section apart from section 245 which lays down offences which should normally be tried by jury, the provision in subsection (2) of section 242 that instead of trial by jury as directed by the law, a case may be tried with the aid of assessors can only be referable to offences which come under subsection (1) of section 242, and not to any other offence. We therefore agree in opinion with the submission of learned Director of Public Prosecutions that upon proper construction subsection (2) of section 242, should be treated as qualifying subsection (1) of section 242, and is a proviso thereto. Next it was contended on behalf of the appellants that the proceedings were a nullity because the committal of the appellants by the district magistrate is bad in law, he having been functus officio by reason of a previous committal, in respect of which a nolle prosequi had been entered, and in the alternative that the committal is a nullity because no charges were preferred against the appellants before their committal. This ground of appeal is based upon the following facts: The appellants were first arrested and charged by a police officer, they were thereafter served with a bill of indictment, put before the district court and there committed in compliance with the provisions of Part IV of the Criminal Procedure Code, 1960, to stand their trial at the High Court. In the High Court, the Attorney-General entered a nolle prosequi and the appellants were thereupon discharged; they were immediately re-arrested outside the court, served with fresh bill of indictment, placed before the district court the same day, and there and then recommitted to stand their trial in the High Court. No oral charge was preferred against them upon their re-arrest. It was submitted for the appellants that sections 181 and 182 make preferment of a charge orally or in writing on a charge sheet in the form stipulated in section 60 of Act 30, against an accused person, a condition precedent for vesting the district court with jurisdiction to commit a person accused of an indictable offence for trial in a higher court; that the entry of the nolle prosequi determined the whole of the previous proceedings including the oral charge which the police officer preferred against the appellants upon their first arrest; therefore since no fresh oral charge was preferred against them, and no written charge sheet was served upon the appellants before they were again put before the district court, the district court was not seised with jurisdiction to commit them for trial, and therefore the commitment and the trial consequent thereon are a nullity. In support of this submission counsel cited R. v. Abaley5

[p.286] of [1965] GLR 279 and R. v. Sarpong.6 The learned Director of Public Prosecutions does not dispute the soundness of the judgments cited; he submitted, however, that they are not applicable to the present proceedings because the proceedings in those two cases were conducted in accordance with provisions for committal under the former Criminal Procedure Code,7 now repealed, which were materially different from the provisions for committal under the present Criminal Procedure Code, Act 30. An examination of sections 177 to 180 of the Criminal Procedure Code, Cap. 10, now repealed, reveals that committal proceedings under that Code began with a charge being preferred against a person in the district court, the charge being made in a writ of summons, a warrant or otherwise, including a charge sheet. Thus section 177 says: “Whenever any charge has been brought against any person of an offence not triable by a Magistrate’s Court or as to which the Magistrate’s Court is of opinion that, having regard to any representation made in the presence of the accused by or on behalf of the prosecutor, the character and antecedents of the accused, the nature of the offence, the existence of circumstances which would render the offence one of a grave or serious character and all the other circumstances of the case, it is not suitable to be disposed of upon summary trial, a preliminary enquiry shall be held according to the provisions hereinafter contained by a Magistrate’s Court, locally and otherwise competent, and such Magistrate’s Court shall have power to commit such person for trial to the Supreme Court or discharge him according to the provisions of this Part.” Section 179 says inter alia: “A Magistrate conducting a preliminary enquiry shall at the commencement of such enquiry read over to the accused person the charge or charges set out in the complaint or charge sheet in respect of which the enquiry is being held . . .” while section 180 (1) says inter alia: “When the accused comes before the Court on summons or warrant or otherwise, the Court shall in his presence take the statements on oath of those who know the facts and circumstances of the case, and put them in writing (called the depositions).”

[p.287] of [1965] GLR 279

Filing of an information did not initiate proceedings in a criminal cause before the assize court; it was a process filed in consequence of proceedings taken in the district court commenced upon a charge made in a warrant, charge sheet or summons. Filing of information is a step taken as part of criminal proceedings. Therefore if the proceedings become null and void, no other information may validly be filed upon it. In order that fresh information may be valid, there must be fresh proceedings lawfully instituted before the district court by charge, summons or otherwise. But committal under the Criminal Procedure Code, 1960, does not require a person to be charged with an offence in the district court. This is borne out by sections 181 and 182 (1) relied upon by learned counsel for the appellants, which are as follows: “181. (1) Where a person is before a District Court charged with an offence which is not being tried summarily there shall be a preliminary hearing of the case by the Court, at which the procedure laid down in this Part shall be followed. 182. (1) The prosecution shall furnish the Court and the accused with— (a) a bill of indictment which shall state in writing the charge against the accused; (b) a summary of evidence which shall comprise a list of the witnesses whom the prosecution propose to call at the trial and a summary of the evidence to be given by each witness and a list of the documents and things it proposes to put in evidence at the trial.” The question then is, what is an indictment? We find guidance in this from Archbold, Criminal Pleading, Evidence & Practice (35th ed.), pp. 1-2. A bill of indictment is a written or printed accusation of a crime made at the suit of the State against one or more persons; and such a bill charging any person with an indictable offence may be preferred before a court in which the person or persons charged may lawfully be indicted for that offence. In short therefore, a bill of indictment is a written charge preferred against one or more persons in a circuit court or the High Court, as the case may be. Once a person is served with a bill of indictment, he is a person charged before the court in which the bill is preferred, and the district court becomes vested with jurisdiction to commit the case; it is the service of the bill upon a person which gives the district court its jurisdiction under Part IV of Act 30 to commit a case for trial; hence section 182 (1) (a) provides that as a condition precedent, “The prosecution shall furnish the Court and the accused with a bill

[p.288] of [1965] GLR 279 of indictment which shall state in writing the charge against the accused.” On the face of it, the indictment in the present case was preferred in the High Court, and it is admitted that a copy was served on each of the appellants. In these circumstances the district court had full jurisdiction to commit the case as it did without a fresh oral charge, and the committal and the trial consequent thereon are therefore valid. In respect of count (3) of the indictment charging the first appellant with forgery of a currency note with intent to defraud, it was submitted on behalf of the first appellant that the documents, exhibits M4 (a-c) and M4 (d-e) tendered as the forged note, show the obverse and reverse side of a note, they are not complete notes, and that an offence under section 16 of Act 17 can only be committed if a whole note is forged with the necessary intent; the submission is based upon the definition of forgery in section 15 of the Act which says “forgery is the making of a false note in order that it may be used as genuine.” This submission is misconceived. A genuine note is one issued by the Bank of Ghana, or upon its authority. Therefore any unauthorised reproduction of that note or any part of it is a forgery. Thus section 15 (2) says, “A note is false within the meaning of this Part of this Act if the whole or any material part thereof purports to be made by or on behalf or on account of the Bank of Ghana, . . .” and subsection (3) says, “For the purposes of this Part of this Act forgery of a note may be complete even if the note when forged is incomplete, or is not or does not purport to be such a note as would be binding or sufficient in law.” Since the documents produced in this case are reproductions of parts of a genuine note, they will be false within the meaning of subsections (2) and (3) of section 15 of Act 17, and if proved to have been forged with intent to defraud, the offence created under section 16 would have been committed in respect of them. Two small matters may be dealt with at this stage, namely, the mission on behalf of the second appellant that the trial judge failed to deal with his defences adequately, and in particular misdirected himself that (i) he had only one defence, i.e. countermand, ignoring his defence of denial, and (ii) that he confessed to the commission of the crime with which he was charged. The defence of countermand may only avail with respect to an offence to be committed in future, e.g. where a person having given instructions to, say, his servant, to go and beat up someone, and before the servant could put the directions into effect, recalls his directions. The offence with which the second appellant is charged is conspiracy. That offence is committed the moment two or more people agree

[p.289] of [1965] GLR 279 together or act together to commit a crime; one of the conspirators may recant and withdraw from the perpetration of the substantive offence, but he cannot undo the act of his previous agreement. Again, the plea of countermand implies admission of original complicity in an act, and a subsequent change of heart. That being the case, it is not a misdirection on the part of the trial judge to direct himself that the defence of the second appellant is an admission of his complicity in a conspiracy. There remain two very important grounds which it is necessary should be treated together, one is that the trial judge misdirected himself and the assessors on a number of very important points of law in the case, and the other is that the first and second charges on the indictment are each inherently bad and disclosed no triable offence. As to misdirection counsel for the appellants singled out the following directions: (1) that all that it was necessary to prove to establish the offence charged in those two counts is that the appellants conspired to make false notes, completely ignoring the necessity for proof that the forgery was made with intent to defraud; (2) that under our law the offence of conspiracy consists merely in two or more people agreeing to do an unlawful act; (3) that any act of a conspirator is the act of his co-conspirator; (4) that the inquiries made by the appellants for machines for printing bank notes constitute an offence under Act 17; and (5) that the agreement entered into, as found by the trial judge, about the end of 1957 or early 1958, constituted conspiracy to forge a Ghana Bank note which did not exist at the date of the said agreement. These misdirections, counsel submitted, are so serious that their cumulative effect is that of miscarriage of justice. In support of his submission in this regard counsel cited R. v. Jones.8 The learned Director of Public Prosecutions admitted that the trial judge completely ignored to direct the assessors and himself that intent to defraud is an essential ingredient without which the offence created under section 16 of Act 17 cannot be committed; he also admitted that the learned judge misdirected himself on the offence of conspiracy as defined in section 23 of our Criminal Code, 1960; he conceded also that making inquiries for a machine for printing bank notes was not an offence under our law at the date of the offence. As to the statement made by the learned judge that the

[p.290] of [1965] GLR 279 act of one conspirator is the act of his co-conspirators, the learned Director of Public Prosecutions pointed out that subsequent directions made by the learned judge qualified the general statements he made in this regard at certain stages of his summing-up and in his judgment, and that when all these are read together it becomes obvious that what the learned judge meant is acts of one conspirator done in pursuance of the common design, not just any act. There is substance in this last point. And as to the finding that the agreement was originally concluded at the end of 1957 or early 1958, the Director of Public Prosecutions submitted that although it is true that the present Ghana bank note had not come into existence at the date the judge found the conspiracy to have been hatched, yet the conspiracy found must be one to forge whatever was legal tender in Ghana for the time being, which may be the West African currency notes which were in circulation at the time. In any event, he submitted, the conspiracy must be deemed to have continued and its object changed to Ghana currency notes as soon as those notes come into circulation. This submission is ingenious and admirable, but bearing in mind that counts (1) and (2) fixed the date of the offence over a definite long period covering the years 1960 to 1963, and having regard to the definite finding made by the learned judge, and the absence of any further definite finding of a new conspiracy, it is made quite clear that the learned judge placed himself in serious difficulties. Finally the learned Director of Public Prosecutions submitted that in spite of the misdirections relied upon, no miscarriage of justice has occurred, and that the evidence is such as to bring the case within the proviso to section 15 of the Courts Act, 1960, as amended. There is no gainsaying the fact that the misdirections are grave and serious, even though each of them taken separately may not by itself be sufficient to warrant the appeal being allowed in respect of those two counts. But they show that by taking wrong views of the law, the trial learned judge disabled himself from making an objective evaluation of the evidence as a whole. In a case where there are such grave misdirections the court has to consider the cumulative effect of the misdirections on the case as a whole and to say whether dismissal of the appeal in the face of those misdirections would make justice manifestly appear to have been done. A case in point is Owusu v. Commissioner of Police.9 The appellants in that case were convicted by a district court, Accra, on the offences

[p.291] of [1965] GLR 279 of unlawful assault and detention of their political opponents. There were a number of legal errors, mostly procedural and evidential, on the part of the trial court. On appeal the High Court10 set out the legal errors, and treating them separately allowed the appeal in respect of two of the convicted persons, because it thought the errors with respect to them were grave, but dismissed the appeal of the thirteen others. The thirteen others appealed to the Court of Appeal, and their appeals were allowed on the ground of the cumulative effect of the errors in law. In the course of their judgment, their lordships said: “The case unfortunately arises out of differences of political opinion. Any court in this country will naturally regard such offences with serious disapproval, and it is important that in regard to such matters care should be taken to avoid creating an impression that because of the nature of the case and the court’s reaction to it, principles of law and justice as well as rules of evidence are not meticulously observed. To relax the application of these principles and rules would create the impression that in certain cases justice does not appear manifestly to have been done. And at a later stage they said: “The matter of real importance before us, as was conceded by Crown Counsel is the cumulative effect of the aggregation of errors disclosed by the record, which although he refers to it in the passage of his judgment to which we have referred, the learned judge does not appear fully to have appreciated. It is this which causes us to say that we are not in a position to state that these admitted errors against legal principles did not materially affect the opinion of the learned magistrate, and in a sense disabled the learned magistrate from making an objective evaluation of the evidence as a whole.” That principle is also set out in the case of R. v. Jones,11 cited to us on both sides. Applying the principle to this case we feel that a dismissal of this appeal on these two counts in the face of all these misdirections on the law, will not make it manifestly appear that justice has been done, and particularly so, having regard to the point which follows. Finally to the submission that counts (1) and (2) of the indictment disclose no triable offence. The said counts read as follows:

[p.292] of [1965] GLR 279

“FIRST COUNT STATEMENT OF OFFENCE CONSPIRACY TO FORGE NOTES contrary to section 23 of the Criminal Code, 1960, (Act 29), and section 16 of the Currency Act, 1960, (Act 17).

PARTICULARS OF OFFENCE

YAO BOAHENE and SAMUEL MONNEY during the years 1960 to 1963 at Accra and Sekondi in the Republic of Ghana and at Hanover and other places in the Federal Republic of Germany did agree together and with one George Monney, a Ghanaian citizen now resident in Hanover in the Federal Republic of Germany, and others to commit a crime, namely, the forgery of Ghana currency notes.”

SECOND COUNT

STATEMENT OF OFFENCE CONSPIRACY TO UTTER FORGED NOTES contrary to section 23 of the Criminal Code, 1960 (Act 29), and section 17 of the Currency Act, 1960 (Act 17).

PARTICULARS OF OFFENCE

YAO BOAHENE and SAMUEL MONNEY during the years 1960 to 1963 at Accra and Sekondi in the Republic of Ghana and at Hanover and other places in the Federal Republic of Germany did agree together and with one George Monney, a Ghanaian citizen now resident in Hanover in the Federal Republic of Germany, to commit an offence namely the uttering of forged Ghana currency notes.” It was submitted on behalf of the appellants that section 15 of Act 17 defines a forged note, but section 16 states that forgery of a note as defined in section 15 does not constitute a crime unless it is made with intent to defraud. It was therefore submitted that the charges as framed, omitting as they do, any reference to defrauding or intent to defraud, disclose no offences. Counsel drew attention to section 1 of the Courts (Amendment) Act, 1965,12 passed while this appeal was pending, which amends by substitution section 15 of the Courts Act, 1960,13 and argued that the proviso thereto does not affect the present case.

[p.293] of [1965] GLR 279

The Director of Public Prosecutions while admitting that, without intent to defraud, forgery of notes cannot constitute a triable offence, contended that in a charge of conspiracy, it is sufficient compliance with section 202 (2) of Act 30, if it states the offence in terms of the definition in section 23 of the Criminal Code, 1960; he submitted that counts (1) and (2) of the indictment conform with that principle. He submitted that at its very worst, the omission of those particulars is a technicality or procedural error or a mere defect, and that the court is therefore enjoined by the provisions of section 15 of the Courts Act, 1960, as amended, to dismiss the appeal, because there is evidence to support the offences alledged. Section 202 (2) of the Criminal Procedure Code, 1960, provides as follows: “Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.” And section 233 says that, “No indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved . . .” When the two sections are read together, the proper interpretation to be placed upon section 202 (2) is that an averment of a matter which it is unnecessary to prove may be omitted without rendering a charge bad, but that the omission to aver any matter which it is necessary to prove renders the charge bad; in other words, an averment of a matter which it is necessary to prove is a sine qua non, one without which no offence can be disclosed. In short, that which must be proved, must first be averred in the particulars of the charge. The omission of such a sine qua non averment cannot therefore be a. mere technicality or procedural error or defect. Support for this view of the law is provided by some of the examples given in subsection (2) of section 15 of the Courts Act, 1960, as amended by Act 262; those examples bear out this most important principle. Taking some of the examples in paragraphs (b) and (c) of the subsection, we see for example, that where it is made clear in the particulars of a charge that the case an accused person faces is that he defrauded by means of false pretences, then without going further to aver that he did whatever he is alleged to have done “with intent to defraud” the omission will not be fatal because the gravamen of the offence, i.e. “intent to defraud” is impliedly averred in the particulars given; or again in a case of extortion, if the charge on the face of it, discloses that the particular species of the offence of extortion charged is the one which may only be

[p.294] of [1965] GLR 279 committed by a public officer, then the omission to state, e.g. “A.B. a public officer to wit a police constable” is not fatal, because the gravamen of the offence is already disclosed in the particulars of the charge. The omission in either of those cases can, by virtue of the amendment to section 15 of the Courts Act, 1960, be regarded as a technicality, a procedural error, or a mere defect, because the “intent to defraud” which is the essence of the offence in the first example, and being “a public officer” which is the essence of the offence in the second example, has already been averred in the charge. To interpret the amendment otherwise will be to impute to the legislature an intention to encourage a relaxation in the standard of efficiency and carefulness in the drafting of indictments, which lowering of standards will eventually operate to the detriment of the State no less than to the citizen. Again, an interpretation other than what we have given will amount to saying that the legislature intend that law should be of no consequence in criminal trials, and that all criminal trials should be confined to issues of fact. We cannot read any of these two intents from the amendment to section 15 of the Courts Act, 1960. We are of opinion that it is necessary in a charge of conspiracy to state the offence in such a way as to disclose the offence which the conspiracy is hatched to commit, and that in conspiracy to defraud “intent to defraud” or “defrauded” is an essential averment which must be made. The form of indictment set out in Archbold, Criminal Pleading, Evidence & Practice (35th ed.), p. 1575 confirms our view. It is as follows: “The Queen v. A B and C D A B and C D are charged with the following offence:

STATEMENT OF OFFENCE

Conspiracy to defraud

PARTICULARS OF OFFENCE

A B and C D, on divers days between the—day of—, and the—day of—, in the county of—, conspired together, and with other persons unknown, to defraud such persons as should thereafter be induced to part with money to the said A B and C D by false representations, that A B and C D were then carrying on a genuine business as jewellers at-, and that they were then willing and prepared to supply articles of jewellery to such persons.” We hold that counts (1) and (2) are inherently bad, that they each disclose no offence. It is no wonder then that with such charges

[p.295] of [1965] GLR 279 before him the learned trial judge should fall into the grave errors as to the nature of the offences as disclosed in his summing-up to the assessors and in his judgment. This too adds to the cumulative effect of the errors and makes the case one in which it will be unjust for the court to apply the proviso to section 15 of the Courts Act, 1960. Count (3), however, is in a different category, it correctly states the offence with which the first appellant is charged, and the evidence points to the intent alleged. In respect of it, it was submitted that upon the admission made by the fourth prosecution witness, the Deputy Governor of the Bank of Ghana, under cross-examination, that if another person offers his services for printing the bank notes at a lesser fee the bank would consider the offer, the learned judge should have considered that the forgery of the notes might have been made with an intent other than intent to defraud, and therefore the learned judge erred in failing to direct the assessors and himself on that issue. A court in such a case can only consider an alternative intent if there is evidence, coming either from the prosecution or the defence, which creates a probability that there is such an alternative. The admission made by the fourth prosecution witness as referred to above, standing by itself, does not show a reasonable probability that the first appellant intended or might have intended to take a contract from the Bank of Ghana for the printing of Ghana bank notes. The mere fact that the bank is ready to consider an offer, if made, does not of itself show any probability that an offer may be made to the bank by the first appellant. For the reasons stated above the appeal of each of the appellants against his conviction on counts (1) and (2) is allowed, and the conviction of each appellant on each of those charges is quashed, the verdicts of the trial court on those two counts are set aside, and a judgment and verdict of not guilty on each of those counts is substituted, and each appellant is acquitted and discharged. The appeal of the first appellant against his conviction on count (3) is however dismissed. On the question of sentence we hold a strong view that the offence of which the first appellant stands convicted is so serious that it merits the most severe punishment, and in normal circumstances we would not interfere with it. However, again on the principle that justice must be made manifestly to appear to have been done, we feel obliged to say that the success of his appeal on counts (1) and (2) should be reflected in his sentence. In the circumstances the appeal of the first appellant against sentence is allowed, the

[p.296] of [1965] GLR 279 sentence of five years’ imprisonment with hard labour passed upon him is quashed. For that sentence we substitute a sentence of three years’ imprisonment with hard labour.

DECISION

Appeal allowed on counts (1) and (2). Appeal dismissed on count (3). Sentence of first accused reduced.

A. K. F.