HIGH COURT, ACCRA
Date: 17 NOVEMBER 1975
TAYLOR J
CASE REFERRED TO
Aikins v. The State [1966] G.L.R. 170, S.C.
NATURE OF PROCEEDINGS
COMMITTAL for sentence of convicted persons to the High Court by a district court under the provisions of the Punishment of Habitual Criminals Act, 1963 (Act 192). It is unnecessary to state the facts.
COUNSEL
Convicts in person.
Poku Kankam, Assistant State Attorney, for the Republic.
JUDGMENT OF TAYLOR J.
The four persons before me have been committed to this court for sentence under the provisions of the Punishment of Habitual Criminals Act, 1963 (Act 192). When the case was called on 31 October 1975 counsel for the Republic, Mr. Poku Kankam, assistant state attorney, sought to submit that the convicts were caught by the provisions of the Act and so the court should exercise its powers under the Act and sentence them peremptorily to the terms of imprisonment provided for under the Act. I drew his attention to the fact that this would seem to be undesirable and that under the Act an inquiry should be held. He was clearly very unhappy
[p.430] of [1975] 2 GLR 429
as he was anxious that the case be dealt with expeditiously. I ruled then as follows:
“This case will be adjourned for one week for the Republic to produce evidence to show that in the circumstance of this case and having regard to the criminal proclivities of the convicted persons they should be sentenced to terms of imprisonment beyond the jurisdiction of the district magistrate.”
This morning when the case was called, Mr. Poku Kankam submitted that he did not know the nature of what was required of a state attorney in the circumstance of this case. I had drawn his attention to the Supreme Court case of Aikins v. The State [1966] G.L.R. 170. I asked him to read the relevant part of the judgment in which Azu Crabbe J.S.C. (as he then was) said at pp. 174-175:
“The Act itself is silent on the nature of the inquiries which the High Court should hold. Without intending to fetter the discretion of the High Court in any way, we think that any inquiry should be such as would enable the court to determine the proper sentence. In our opinion the inquiry must be held into: (a) the circumstances under which the offence was committed, i.e. whether the crime was well-planned or was accompanied with violence; (b) the criminal habits or proclivities of the offender; (c) whether the offender has shown by his conduct that previous sentences had had no effect upon him; and (d) whether the offender has shown that he was able to, and had held, a job for a substantial period immediately before the offence for which he has been convicted for sentence or has ‘gone straight’ for at least twelve months before conviction. We would say that these matters which we have mentioned are not exhaustive, and it is open to the judge of the High Court to probe other relevant matters. These facts must be stated on oath, and the offender or his counsel, if he is represented, must be given an opportunity to cross-examine the person deposing to these facts. The record of the High Court must show on the face of it the nature and details of the inquiry conducted together with notes of any evidence tendered at the inquiry.”
After Mr. Poku Kankam had read the above passage he submitted as follows: “I am not in a position to provide the material which the Supreme Court has indicated in Aikins v. The State. If the case is not finished today, I will advise the Director of Public Prosecutions to withdraw me from the case.”
I must say that I am amazed that an officer of the court can say, as this officer has said, that he would withdraw from the case if it was not completed in time. The Supreme Court per Azu Crabbe J.S.C. (as he then was) has given definite and detailed guidance, admittedly not exhaustive, as to the nature of the inquiry that is to be conducted under Act 192. Indeed in Aikins v. The State, Koranteng-Addow J. was said to have failed to make the inquiry and the case was sent back to him to have the inquiry conducted. To suggest to this court that I can ignore the provisions of the Act
[p.431] of [1975] 2 GLR 429
and peremptorily sentence the convicts in open defiance of the decision of the Supreme Court is a suggestion which Mr. Poku Kankam ought not to make to this court. The time is now 1.15 p.m. An inquiry cannot obviously be conducted right now since this will necessitate in my opinion the calling of the police to tender the previous convictions, the examination of the proceedings in the court below, the calling of the probation officers to testify, and the convicted persons also giving evidence. These are matters which will obviously take time; it seems therefore that I must adjourn to a more convenient date.
Since Mr. Poku Kankam has confessed that he is in no position to supply the material which I need, I direct that the attention of the Director of Public Prosecutions be called to this matter and if he also shares the same view with Mr. Poku Kankam, then on the adjourned date I shall examine the material offered so far and give any decision warranted by law.
I must remark though that what Mr. Poku Kankam has done in this case is very wrong. All he did was to state as follows: “The inquiry I chose to do is to submit the reports prepared by the social welfare officers. I accordingly submit the reports.” This is clearly wrong and it is a flagrant violation of the procedure which was clearly enunciated by Azu Crabbe J.S.C. (as he then was) in the case I have referred to. The probation officers must give evidence on oath and tender their reports and the convicts or their counsel must be given an opportunity to cross-examine them. I do not sanction the novel procedure which counsel is advocating, as if he is a witness.
The case will accordingly be adjourned for one week for the Director of Public Prosecutions to take a further decision in the light of this ruling. The case is adjourned to 24 November 1975.
DECISION
Order accordingly.
S. Y. B.-B.
