HIGH COURT, CAPE COAST
DATE: 28 APRIL 1967
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Seedi v. Commissioner of Police (1946) 12 W.A.C.A. 29.
(2) R. v. Ekpo (1947) 12 W.A.C.A. 153.
(3) Commissioner of Police v. Marteifio (1943) 9 W.A.C.A. 40.
NATURE OF PROCEEDINGS
APPEAL against sentence imposed following a plea of guilty. The facts are set out in the judgment.
COUNSEL
Appellant in person.
J. O. Amui, Assistant State Attorney, for the State.
JUDGMENT OF ARCHER J.
The appellant was charged with another on two counts of unlawful entry and stealing the sum of ¢15,724.00. He pleaded guilty to the charge but there is no record that he was convicted by the learned trial circuit judge on the plea of guilty. It is, however, recorded that the trial judge, after hearing the facts, sentenced the
[p.281] of [1967] GLR 280
appellant to seven years’ imprisonment with hard labour on each count-sentences to run concurrently. He appealed against sentence only. Nevertheless, during the hearing, the learned assistant state attorney agreed with the court that there was nothing on record to show that the appellant was convicted after his plea. Section 171 (2) of the Criminal Procedure Code, 1960 (Act 30), reads: “If the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1) such letter shall be placed on the record and the Court shall convict the accused person and pass sentence or make an order against him, unless there shall appear to it sufficient cause to the contrary.”
The words of section 171 (2) are mandatory and the trial judge should have convicted the appellant on his plea by recording it. The appellant admits he pleaded guilty but it appears there was an omission on the part of the court to convict him before sentence. Has this omission or irregularity occasioned a miscarriage of justice as envisaged by section 406 of the Criminal Procedure Code?
There are conflicting authorities on this matter. In the case of Seedi v. Commissioner of Police (1946) 12 W.A.C.A. 29, the appellate court held that the omission to enter on record a finding of guilty against an appellant before passing sentence, was a mere technicality and the court could remedy it so that substantial justice might be done: see also R. v. Ekpo (1947) 12 W.A.C.A. 153. On the other hand there is the case of Commissioner of Police v. Marteifio (1943) 9 W.A.C.A. 40 where a finding of guilty was not recorded before passing sentence and the appellate court held that the sentence could not be allowed to stand. At p. 43 the following is recorded:
“A conviction at common law has been said in strictness to consist of verdict, judgment and sentence. In certain English Statutes it means verdict or confession of guilt.
In a summary trial in this Colony what is called in the side note to section 163 of the Criminal Procedure Code ‘the decision’ takes the place of the verdict of a jury. The decision is an ingredient of a conviction and we would say it is the main ingredient, for without a decision (except in the special case referred to in section 79 of the Criminal Code) we do not see how there can be either a judgment or a sentence. We hold therefore that a failure to convict is not a mere irregularity but the omission of a vital part of a trial and that in
[p.282] of [1967] GLR 280
its absence a sentence cannot lawfully be recorded or carried out.” For my purposes, I am prepared to follow the decision in Seedi v. Commissioner of Police (supra) because in the present appeal, the appellant confessed his guilt and there was no question of the trial judge taking evidence from both the prosecution and the appellant in order to consider his verdict. Section 171 provides that he shall convict on the plea of guilty. And if I may borrow the words of the appellate courtin Seedi v. Commissioner of Police at p. 30 (supra): “In a case where there is such an omission as this one, which was undoubtedly an oversight, to consider it fatal we are of opinion would be straining the law of procedure to such an extent that it would amount to a miscarriage of justice…”
I do not therefore think that the appellant has suffered any miscarriage of justice after confessing his guilt. It appears that a substantial portion of the sum stolen was retrieved by the complainant himself before he reported the matter to the police. The appellant claims to be about 25 years old and he is a first offender. I therefore consider the sentence of seven years too severe. Accordingly the appeal against sentence is allowed and the sentence of seven years set aside. The appellant is sentenced to three years’ imprisonment with hard labour with effect from the date of his conviction.
DECISION
Appeal allowed in part.
Sentence set aside.
Fresh sentence substituted.
S.E.K.
