REPUBLIC vs. KUMA [1968] GLR 532

CASES REFERRED TO

(1) Practice Direction (Submission of no case) [1962] 1 W.L.R. 227; [1962] 1 All E.R. 448.

(2) State v. Kassena (Ali) [1962] 1 G.L.R. 144, S.C.

(3) State v. Bisa [1965] G.L.R. 389.

NATURE OF PROCEEDINGS

APPEAL from a ruling of a magistrate’s court that the respondent had no case to answer on his committal before the court on an indictment for stealing. The facts are sufficiently stated in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

S. M. Boison, Chief State Attorney (Aikins with him), for the Republic.

B. J. da Rocha (Tetteh Tawiah with him) for the respondent.

JUDGMENT OF AMISSAH J.A.

The point in this appeal has been narrowed down to one simple issue, namely, whether a committal magistrate is entitled to discharge an accused person rather than commit him for trial if the evidence in the summary before the magistrate supports some offence other than that charged in the indictment even though the trial court would have power to convict the accused of the other offence on the same charge. The respondent was brought before the district court on an indictment which charged him with two counts of stealing. The learned magistrate who was called upon to deal with the case took the view that the evidence supported charges of fraud by false pretences and not stealing. He therefore stated as his opinion that the summary of evidence did not disclose that the offence of stealing had been committed and he discharged the accused. The State complains of this action.

Mr. Boison for the state has argued that the whole scheme of the Criminal Procedure Code, 1960 (Act 30), for the trial of persons on indictment, would be frustrated if the magistrate’s view was accepted as correct. Because whereas a court trying a case on indictment may, upon finding that the evidence does not support a charge of stealing, nevertheless, by law, convict the accused of fraud by false pretences, a magistrate’s conduct in discharging the accused would deny such a

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trial court any opportunity of complying with the provisions on alternative convictions.

Section 184 (4) and (5) of the Criminal Procedure Code, 1960, governs the decision of the magistrate to commit or discharge. Its provisions are as follows:

“(4) If the Court is of opinion that there is a case for the accused to answer, it shall commit him for trial to a Court (in this Part called ‘the trial Court’) of competent jurisdiction (5) If the Court is of opinion that there is not a case for the accused to answer, it shall discharge him but this shall not be a bar to a subsequent charge in respect of the same facts.”

The decision at the committal stage, therefore, turns on whether or not in the magistrate’s opinion there is a “a case for the accused to answer.” For if there is, the magistrate is under a duty to commit the accused. When, then, should the magistrate find that there is a case to answer? At a trial, a court finds that there is a case to answer, in the first place, if there is evidence adduced by the prosecution on all the ingredients of the offence. If there is such evidence the accused is called upon to answer unless the evidence is “so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it”: (see the Practice Direction (Submission of no case) [1962] 1 All E.R. 448 quoted in State v. Ali Kassena [1962] 1 G.L.R. 144 at p. 148, S.C.).

The approach of the magistrate in committal proceedings should, in my view, be the same, having regard of course to the limitations imposed by the very nature of the proceedings. I am aware that in State v. Bisa [1965] G.L.R. 389, Sowah J. seems to have laid down a different and somewhat lower standard for the committal magistrate. But that appears to me to introduce an unnecessary refinement into a branch of the law which is not always easy to apply. Whatever difference there is in the respective duties which a trial court on the one hand and a committal court on the other are called upon to discharge, stems, to my mind, not from the requirement to apply fundamentally different criteria but from the nature of the evidence presented to either court.

The committal magistrate is presented with a written summary of the evidence on which there is no cross-examination. So that no question of discredit of that evidence from cross-examination arises. And unless the prosecution chooses to include contradictory evidence on the essential ingredients of the offence in the summary, neither would the evidence appear so manifestly unreliable that no reasonable

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tribunal could safely convict on it. The duty of the committal magistrate, therefore, though the same as his trial colleague, is more straightforward. It would normally be confined to finding out whether there is evidence on each of the ingredients of the offence. For if there is no evidence on any one of them then there is no case for the accused to answer and he must be discharged. On the other hand if there is the evidence the magistrate is bound to commit. The magistrate in discharging this function puts himself, as it were, in the position of the trial court, and finds out whether faced with such unchallenged evidence the trial court would call upon the accused to answer. The trial court would also find that there is a case to answer if the evidence, though not supporting the offence charged, supports some other offence of which by law the accused may be convicted on the charges. It is as to this that there is sharp controversy. For the State contend that the magistrate has a similar duty to find that there is a case to answer, a view which the respondent rejects. Mr. da Rocha for the respondent has urged that though at the trial the court may convict of a cognate offence, the committal magistrate is not entitled to commit if the summary supports that other offence because the committal proceedings are wholly regulated by statute. And that nowhere in that part of the Code concerned with committal proceedings, that is Part IV of the Code, is power given him to commit for an offence other than that with which the accused is charged. A magistrate who does that can only claim to be exercising an inherent power. But no magistrate has any inherent power in the exercise of his functions in committal proceedings. To hold, in the circumstances, that the magistrate has the power to so commit would amount to judicial legislation on a point which the legislature has chosen not, or omitted through inadvertence, to legislate.

It is an attractive argument. If correct, it exposes one of the anomalies of the law in which lawyers will forever continue to delight. For it would mean that had the same magistrate been trying the accused, after hearing the very same evidence he would have had to call upon the accused to answer. As he was only holding a preliminary inquiry prior to some other tribunal actually trying the case, he should not even give that trial court the opportunity of hearing the prosecution case and deciding for itself whether to call upon the accused to answer. It also follows that a trial court in a case tried on indictment may exercise its power to convict for an alternative offence only if at the committal, the magistrate happens erroneously to think that the evidence on the summary supports the actual charge on the indictment. But is that correct? I think the argument advanced takes an unduly narrow view of the expression “a case to answer.” It is to be recalled that in section 184 (4) and (5) that is the phrase used.

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The section does not say that the magistrate should commit if the evidence supports the specific charge. This court therefore has to give a meaning to the expression used. In construing it, I think that the whole scheme of the trial on indictment ought to be looked at. The provisions for committal do not stand in isolation. I also think that in such an exercise sight should not be lost of the elementary canon of construction that statutes should be construed as far as possible to avoid absurdity.

Now, sections 133 to 162 of the Criminal Procedure Code, 1960, provide for convictions for offences other than those actually charged. The provisions cover not only named cognate offences but also attempts to commit the crimes charged as well as lesser offences generally. If the argument is sound, it must apply to any of the situations that may arise under these sections. If before the magistrate the charge is murder and he is of the opinion that there are indications of provocation, he must refuse to commit the accused. Similarly he should refuse if the evidence supports only an attempt to commit the offence charged. On the particular case under consideration, section 157 (1) is the provision with a direct bearing. It provides that:

“157. (1) When a person is charged with stealing anything and it is proved that he obtained the thing in any such manner as would amount under the provisions of the Criminal Code to defrauding by false pretences he may be convicted of defrauding by false pretences although he was hot charged with that offence.”

The conviction, admittedly, is to be made by the court of trial but the magistrate before whom the accused is originally brought on the committal proceedings is aware that on the charge of stealing, the accused protesting his complete innocence, has to answer not only the case of stealing but, if perchance the evidence rather supports a charge of defrauding by false pretences, an alternative case of fraud. The section quoted is so framed that it gives notice to any court before which the accused is charged, and by virtue of section 181 of Act 30, the court making the preliminary inquiry is a court before which the accused is charged, that he is liable to a conviction on that charge for the alternative offence. In the circumstances, can a committal magistrate, before whom an accused has been charged, say that the accused has no case to answer just because the charge is of the one offence and the evidence in his opinion is in support of the other? Of course he has a case to answer. He has no case to answer only if on the charge and evidence before the court of committal he cannot be convicted of any offence by a trial court. I think the proper approach for the magistrate is to project himself into the position

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of the trial court and to ask himself whether he would, after hearing the case of the prosecution as it appears on the summary, be obliged to call upon the accused to answer. If the answer is yes, whether it is because there is a prima facie case of the offence charged or of some other offence for which the court has power to convict is of no moment, the accused has a case to answer and the magistrate must commit.

To hold otherwise would indeed stultify the provisions on trial on indictment. Take the case where a man is charged with murder. He is brought before the magistrate for committal. The magistrate takes the view that the evidence supports a case of manslaughter. On the basis of the respondent’s argument, the magistrate must discharge the accused. And this he must do in spite of the fact that a case of murder or manslaughter can only be tried by the High Court on indictment and that once the case is before that court, it has power to convict of manslaughter on a charge of murder. The result, to say the least, sounds a bit curious. But Mr. da Rocha says that if there is such a discharge the prosecution suffers no prejudice because it can bring the accused before another committal magistrate on the same charge and evidence. To what end, one may ask? If it is right for the first magistrate to discharge the accused on this ground then there is a point of principle on which it should be right for every other magistrate to refuse to commit. The prosecution will then be forced to substitute a charge of manslaughter to satisfy a magistrate that the case should go on trial. But does it not matter that at the trial the court might agree with the prosecution that the case is really one of murder? I am unable to accept that section 184 read in the context of the provisions on trials on indictment supports the argument of the respondent. I do not think that the meaning of “a case to answer” in that section should be so restricted.

I am therefore of the opinion that the learned magistrate was wrong in discharging the respondent for the reason he gave. I accordingly allow the appeal and order that the case be remitted to him with instruction to commit the respondent for trial if in his opinion there is evidence on the summary which supports the offences charged in the indictment or any other offences for which he, as an accused, could be convicted on those charges at his trial.

DECISION Appeal allowed.

Case remitted to trial magistrate with instructions to commit.

S. Y. B.-B.