COURT OF APPEAL, ACCRA
Date: 16 MARCH 1973
SOWAH JA
NATURE OF PROCEEDINGS
CASE STATED for the determination of the Court of Appeal as to, inter alia, the duty of a circuit court when a convicted person is committed to that court for sentence by a district court under Act 30, s. 178.
COUNSEL
Mrs. J. Amankwah, Senior State Attorney, for the Republic.
No appearance by or on behalf of the accused.
JUDGMENT OF SOWAH JA
He delivered the ruling of the court. On 19 January 1973 this court gave answers to the following questions of law which were said to have arisen in the proceedings before the learned circuit judge at Sunyani:
“(a) Does the circuit court, being the sentencing court, have power to endorse or decline to endorse the conviction by the district court before passing sentence, or does this court have to regard the conviction as sacrosanct and proceed to pass sentence?
(b) If the view of this court that the district court is bound to record accused’s version of the incident is sustainable, should this court remit the cast to the district court with an order that that court should record the accused’s version and send the case back to this court for sentence, or should it re-open the case and take a fresh plea itself?”
We now proceed to give full reasons. The brief facts of the case were that the accused was charged with the offence of fraudulent evasion of customs duties contrary to section 317 (1) (f) of the Criminal Code, 1960 (Act 29), as amended by the Criminal Code (Amendment) Act, 1971 (Act 364). The record shows that the charge was read to the accused who pleaded guilty sirnpliciter to it. After the prosecution had related the facts leading to the apprehension and prosecution of the prisoner, the learned magistrate convicted him “on his own plea” and committed him to the circuit court for sentence.
The accused subsequently appeared before the learned circuit judge for sentence. At that stage the accused engaged the services of counsel who submitted that, before the learned magistrate, the accused gave an explanation of his conduct which had not appeared in the record. Counsel further submitted that the circuit court ought also to satisfy itself of the propriety of the conviction before sentence. Counsel for the Republic countered by submitting that the circuit court was bound by the record of proceedings and nothing that counsel had said or done showed that the record was incomplete or defective. Upon these submissions the circuit court judge reserved his ruling. In a long ruling the learned judge raised difficulties which were of his own creation and which had nothing to do with the matter before him and held that the learned magistrate was obliged under section 171 (2) of the Criminal Procedure Code, 1960 (Act 30), to record anything the accused had said after his plea of guilty and before he convicted him and that the failure to do so vitiated the proceedings.
We will proceed by answering first, the second question. First, there was nothing in the record showing that after the plea of guilty the accused did say anything. Secondly, there was further no affidavit before the circuit judge from the accused indicating that he in fact gave any explanation which had not been recorded. Counsel, who submitted that an explanation had been given, did not even care to give the nature of that explanation. The result was that the learned circuit judge did not have the benefit of the alleged explanation and yet he castigated the magistrate on his failure to record the alleged explanation when there was no material upon which such castigation could have been based.
We think that if the learned circuit judge had observed the simple rule that he was bound by the record of proceedings, unless positive evidence was available before him that either the record of proceedings was incomplete or defective, the difficulties he encountered would not have arisen. Accordingly, We hold that there is nothing in the record or before him to show that the magistrate had failed in his duties. The answer to the second question in either case is no.
The next question raised concerned the interpretation of section 178 (2) of the Criminal Procedure Code, 1960 (Act 30). Perhaps it is necessary to reproduce the whole of the section. It reads thus:
[p.197] of [1974] 1 GLR 195
“178. ( 1) Where, upon the summary conviction of a person for any offence, the District Court is of opinion that, having regard to the evidence, and to the character and record of the offender, the maximum punishment which the District Court is empowered to impose would be insufficient, the Court may commit the offender for sentence to a Circuit Court and any enactment relating to the powers of any Court upon committal for trial shall apply so far as relevant to such committal for sentence.
(2) The Circuit Court shall have power to deal with the offender as if he had been convicted on indictment by that Court of the offence, and the conviction and sentence shall be subject to appeal as if he had been so convicted.”
We do not see the difficulties of the learned circuit judge if he would only interpret section 178 (2) in its ordinary meaning without pedantry or embellishment. It means simply that the learned circuit judge should assume that he had convicted the accused person; in other words, the conviction should be taken as the circuit court’s conviction, the only power remaining thereafter, was to pass sentence. It is not for the circuit court to endorse or refuse to endorse the conviction; that is the function of an appellate court to which the accused if he were so disposed, would appeal. We are of the view that the only power residing in the circuit court was to pass sentence on the accused. Accordingly, the answer to the first question is that the circuit court should proceed forthwith to pass sentence.
We will be failing in our duty if we do not record our dismay and chagrin at the turn of events in this matter. A simple issue was before the circuit judge, he raised difficulties which were unnecessary and then proceeded to grant bail to an accused person who had been properly convicted on his own plea of guilty to a serious offence. At the hearing of the case stated, neither the offender nor his counsel appeared, and for all we know he might have jumped bail and fled the country as the name appears to be foreign. We think that it is in the public interest that such matters should be dealt with expeditiously and with a sense of responsibility.
DECISION
Order accordingly.
S.Y.B.-B.
