HIGH COURT, ACCRA
DATE: 5 MARCH, 1967
BEFORE : AMISSAH J. A.
CASES REFERRED TO
(1) Ex parte Campbell; Re Cathcart (1870) L.R. 5 Ch. App. 703; 23 L.T. 289; 18 W.R. 1056.
(2) Mullins v. Surrey County Treasurer (1881) 7 App.Cas. 1;51 L.J.Q.B. 145; 45 L.T. 625; 45 J.P. 267;
30 W.R. 137; 15 Cox C.C. 9, H.L.
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(3) Demer v. Cook (1903) 88 L.T. 629; 67 J.P. 208; 19 T.L.R. 327; 47 S.J. 368; 20 Cox C.C. 444.
(4) Hobert and Stroud’s Case (1630) Cro.Car. 209; 79 E.R. 784.
(5) R. v. Thompson (1914) 2 K.B. 99; 83 L.J.K.B. 643; 110 L.T.272; 78 J.P. 212; 30 T.L.R. 223; 24
Cox C.C. 43; 9 Cr.App.R.252, C.C.A.
(6) Ogbebor v. Commissioner of Police (1950) 13 W.A.C.A. 22.
(7) R. v. Eagleton [1855] Dears. C.C. 376; 24 L.T.M.C. 158; 26 L.T. (o.s.) 7; 19 J.P. 546; 1 Jur. (N.S.)
940; 4 W.R. 17; 3 C.L.R. 1145; 6 Cox C.C. 559.
(8) R. v. Robinson [1915] 2 K.B. 342; 84 L.J.K.B. 1149; 113 L.J.379; 79 J.P. 303; 31 T.L.R. 313; 59
S.J. 366; 24 Cox C.C. 726; 11 Cr.App.R. 124. C.C.A.
(9) R. v. Osborn (1919) 84 J.P. 63.
(10) R. v. Roberts (1855) Dears. C.C. 539; 25 L.J.M.C. 17; 26 L.T. (o.s.) 126; 19 J.P. 789; 1 Jur. (N.S.)
1094; 4 W.R.128; 7 Cox C.C. 39.
(11) R. v. Miskell [1954] 1 W.L.R. 438; 118 J.P. 113; 98 S.J. 148; [1954] 1 All E.R. 137; 37 Cr. App.
R. 214.
NATURE OF PROCEEDINGS
APPEAL against the judgment of a circuit court in which the respondents were acquitted and discharged on charges of smuggling things from a prisoner and attempting to smuggle them out of prison. The facts are set out fully in the judgment of Amissah J.A. sitting as an additional judge of the High Court.
COUNSEL
J. N. K. Taylor, Director of Public Prosecutions and P.V.A. Adjetey, for the State.
J. C. Armah for Bossman for the first respondent.
Joe Reindorf for the second respondent.
H. P. Swaniker for the third respondent.
JUDGMENT OF AMISSAH J.A.The State appeals, in this case, against the acquittal of the three respondents by the circuit court on charges connected with the smuggling of things from prison and out of prison. As most of the issues of the appeal turn on the nature of the charges, clarity demands that these charges be reproduced in full.
They are as follows:
First Count
STATEMENT OF OFFENCE
Smuggling things from a prisoner contrary to section 228 of the Criminal Code, 1960 (Act 29) (as amended by Act 293).
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PARTICULARS OF OFFENCE
Joseph Kwami Obeng, on or about 22 May 1966, at Ussher Fort Prison, Accra, in the Eastern Region without authority from the prison superintendent conveyed a thing, namely, a letter from one Emmanuel Humphrey Tetteh Korboe through one Osei Owusu Afriyie both persons then being prisoners in the Ussher Fort Prison, Accra.
Second Count
STATEMENT OF OFFENCE
Attempted smuggling things out of prison contrary to sections 18 (2) and 228 of the Criminal Code, 1960 (Act 29) (as amended by Act 293).
PARTICULARS OF OFFENCE
Joseph Kwami Obeng, on or about 22 May 1966, at Ussher Fort Prison, Accra, in the Eastern Region, without authority from the prison superintendent attempted to convey a letter from one Emmanuel Humphrey Tetteh Korboe, through one Osei Owusu Afriyie, both persons being prisoners, out of the Ussher Fort Prison.
Third Count
STATEMENT OF OFFENCE
Abetment of smuggling things out of prison: Contrary to sections 20(1) and 228 of the Criminal Code, 1960 (Act 29) (as amended by Act 293).
PARTICULARS OF OFFENCE
Osei Owusu Afriyie, E.H.T. Korboe, on or about 22 May 1966, at Ussher Fort Prison, Accra, in the Eastern Region, procured one Joseph Kwami Obeng, in the commission of a crime, namely, smuggling a letter out of Ussher Fort Prison.
Fourth Count
Attempted smuggling things out of prison: Contrary to sections 18 (2) and 228 of the Criminal Code, 1960 (Act 29) (as amended by Act 293).
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PARTICULARS OF OFFENCE
Joseph Kwami Obeng, on or about 22 May 1966, at Ussher Fort Prison, Accra, in the Eastern Region,without authority from the prison superintendent attempted to convey a letter from one Yaw addressed to one B.B. out of Ussher Fort Prison. The case which the prosecution sought to prove was as follows: The first respondent was at the material time a prison officer discharging his duties at Ussher Fort Prison where the second and the Third respondents were then held in protective custody as a result of the dramatic change in government on 24 February 1966. The Third respondent wrote a letter which he passed to the second respondent who in turn handed it to the first respondent to convey to someone outside the prison. It was the case of the prosecution that the conveyance of the letter was unauthorised by the proper authority for such purpose, namely, the prison superintendent. According to the prosecution the first respondent received the letter and in furtherance of his objective of conveying it, hid it in his puttees, a place likely to avoid discovery in an ordinary search, went to his point of duty and was waiting to go off-duty just to walk out of the prison with the letter when he was summoned by the superior officers and questioned about his conduct.
He had to be searched before the letter was discovered. The respondents in their defence disputed this case put forward by the prosecution. But their version has no bearing on this appeal because the trail circuit judge made no findings on any of the issues of fact raised. He disposed of the case on points of pure law; on one issue, namely, whether the first respondent’s act amounted to an attempt or not he assumed the prosecution’s case as true and decided that putting it at its highest the conduct complained of could not constitute an attempt. I do not therefore propose to take any further time in discussing the various defences raised by the evidence of the respondents at this stage. This letter alleged to have been written by the third respondent formed the subject-matter of the first three counts in the charge sheet. The first respondent was charged with smuggling it from a prisoner in that he conveyed it from the third respondent without authority. The first respondent was also charged with attempting to smuggle it out of prison without authority, a completely separate offence, in that he made the attempt to convey it out of the prison. The second and third respondents were in the third count charged with abetting the offence of smuggling out of prison in that they procured the first respondent to convey the letter out of the prison. Thus the third count refers specifically to the charge laid in the second count. The
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fourth count, again against the first respondent stands by itself, because it is not based on a letter written by the third respondent. At the time the first respondent was searched there was also discovered a letter written by one Yaw, who was apparently not before the court, to one “B.B.” The fourth count was of an attempt to smuggle this letter as well out of prison.
After hearing the evidence and submissions by counsel, the learned judge acquitted the respondents on each respective charge made against them. It will make for better understanding if I here tabulate the grounds on which each count was dismissed. The first count, that concerning the smuggling of the letter from a prisoner, was found unsustainable because the persons described as prisoners from whom the letter was conveyed, namely, the second and the third respondents, were held not to be prisoners. The second count in respect of the attempt to convey the letter out of prison was similarly found wanting because in the first place the charge as drafted was held bad for duplicity. Secondly, the act complained of was held not to amount to an attempt. The third count which charged the second and third respondents with having procured the first respondent to smuggle the letter from prison fell together with the failure of the charge against the principal offender. The fourth count failed because like the second count, the act complained of was not an attempt.
Finally, there was one ground which must have applied to all the counts charged: the offences were laidunder or in connection with section 228 of the Criminal Code, 1960 (Act 29). But this section was held in any event inapplicable to the respondents, even though it says that “whoever” does any of the acts prescribed is guilty of an offence, because a provision in the Prison Regulations makes the conduct of the respondents offences against prison discipline. The reasoning here being that the Prison Regulations having made this provision to cover a special class of persons, of whom presumably the respondents formed a part at the material time, a general provision of the law prescribing such conduct cannot apply to this special class already provided for; generalis specialibus non derogant, was said to govern the situation.
Against each of the reasons advanced for dismissing the charges, the Director of Public Prosecutions, on behalf of the State, has complained. It is therefore necessary to examine these reasons in greater detail. The learned judge found that the second and third respondents were not prisoners because they were in protective custody. What the court had to deal with was section 228 of the Criminal Code, 1960 (Act 29), as amended by the Criminal Code (Amendment) Act, 1965
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(Act 293), which creates the offences around which this case was fought. Its terms are as follows:
“Whoever, without authority from the Prison Superintendent, conveys anything into or out of a prison, or to or from a prisoner, whether in or out of a prison, shall be guilty of an offence and shall be liable, on conviction thereof, to imprisonment for a term of not less than five years.” There is no definition of the word “prisoner” in the Code. The obvious aid to the construction of this word is the Prisons Act, 1963 (Act 221), which may be described as an Act in pari materia, and which, in its interpretation section, deals with the expression. Section 60 of the Act provides inter alia that : “In this Act unless the context otherwise requires . . . `prisoner’ includes any person lawfully committed to custody.” Adopting the words of James L.J. in Ex parte Campbell; Re Cathcart (1870) L.R. 5 Ch.App. 703 at p. 706 that: “Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature had repeated them without any alteration in a subsequent statute … the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them,” the learned judge held that the word “committed” in the section has acquired a special legal meaning because it has once before received such a judicial construction. This apparently was in Mullins v. Surrey County Treasurer (1881) 7 App.Cas. 1, H.L. where Lord Blackburn in construing the expression “committed to prison” said at p.9 that it meant “when the order is made under which the person is to be kept in prison” and not when the person is “received into prison.” To the learned trial judge, therefore, since this decision, not only the expression “committed to prison” but even the word “committed” by itself, when used in connection with a prisoner, is forever stamped with the requirement of a court order. And it is quite irrelevant whether the expression is used by the legislature in the United Kingdom or in Ghana. But at least two things ought to have put the circuit judge on his guard in this application of this supposed definition. In the first place, if Lord Blackburn was attempting to define an expression at all, which was not in fact the case, the expression he was dealing with was “committed to prison” which appears in the English Prisons Act of 1877, s. 57, which is not exactly the same as in our Prisons Act, 1963, which uses the expression “committed to custody.” The word “custody” may in certain circumstances be wider in concept than “prison.” The dictum of James L.J., [p.100] of [1967] GLR 91even if in point, seems to have been misapplied because he predicates the situation where words once judicially interpreted are subsequently used by the legislature without any alteration. It cannot be said that the expression construed by Lord Blackburn has been used by the legislature in Ghana without alteration.
Besides, merely to isolate the word “committed” in this instance and say that because of the decision in the Mullins case it must have the same meaning whatever the context in which it appears is to misuse the dictum of James L.J. The other factor which should have put the trial judge on his guard is a consideration of the comparative situations in England and in Ghana as regards the situations in which a citizen might find himself in lawful custody in either country. It is only upon satisfaction that the situations are materially the same that a definition in this respect made for the one country can be held to apply to the other. I do not think that the learned judge applied his mind to this consideration. But the wider question which still remains is whether Lord Blackburn in the Mullins case was making any attempt at an exhaustive definition of the expression “committed to prison.” The issue for determination by the House of Lords in that case was certainly not whether the person affected was a prisoner or not. He had been properly convicted by a court of law and sentenced to a term in prison, where indeed he eventually found himself. No one was therefore concerned with whether he was a prisoner or not. The issue, according to my reading of the case, was when in the particular case a convicted person sentenced to a term of imprisonment became a prisoner. Was it when the committal order was made by the court or was it when he was received in prison. The exact timing of this was necessary to determine the authority responsible for the expenses incurred in the transportation of the person from the court convicting him to the prison. Lush J. had thought that the convict became a prisoner when he was received in prison. Lord Blackburn upon appeal thought otherwise. To him the convict became a prisoner upon committal. Nor was he even then giving what might be described as legal definition as opposed to a dictionary definition of the word “committed”. On the contrary, he went out of his way to say at p. 9 that the words “committed to prison” meant “both in common parlance and in legal phraseology when the order is made under which the person is to be kept in prison.” This can mean no more than that a convicted person becomes a prisoner immediately an order for his committal to prison is made and not when he is actually received in prison. It surely is no authority for the proposition that any person in prison is a prisoner only if a court order committing him has been made.
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I do not think Demer v. Cook (1903)88 L.T. 629, which was also relied upon, is of much assistance either. It sets out to determine whether a person held in prison as a result of a conviction is being held under proper authority or not. The man had been committed to prison. He was later released. His sentence having been reduced on appeal he was taken back to prison without a fresh committal warrant. The view taken by the court was that the original warrant was exhausted upon his release. Therefore the absence of the fresh committal warrant made his imprisonment unlawful. Taken at its widest what this case decides, if anything, is that a person sent to prison by a court must be covered by a committal warrant for his detention there to be lawful. But to say that every convicted person must be sent to prison under a warrant is not the same as saying that every person found in prison must have been convicted and sent there under a warrant. Imprisonment as a result of criminal process is dealt with by the Criminal Procedure Code, 1960 (Act 30), which provides the various warrants of committal under the relevant sections. Section 315 (1) of that Code for example, provides that: “315. (1) Where a person is sentenced to a term of imprisonment, the Court which sentenced him shall issue a warrant of commitment ordering that the sentence shall be carried out in any prison in Ghana, and the warrant shall be full authority to the police and prison officers to take, convey, and keep that person and to all other persons for carrying into effect the sentence described in the warrant.”But for the different types of persons who might inhabit a prison it is the Prisons Act, 1963, which must be looked at.
The two English cases cited are not helpful to me in my interpretation of the word “prisoner” in section 228 of the Criminal Code. No other authority has been cited to me on this. I therefore propose to tackle this particular problem without further undue glosses or interpolations derived from the English authorities. At this stage, I think it proper to draw attention to the fact that if it was one time the law that the provisions of Criminal Code should be strictly construed in favour of the accused, this ceased to be so with the Code of 1960. By section 4(a) which is one of the general rules to be observed in the construction of the Code, it is provided that, “This Code shall not be construed strictly, either as against the State or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof.” The ordinary meaning of the word “prisoner” is a person kept in prison. This is narrower than the lawyer’s concept of it which would cover any person held in custody. In the context of section
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228 of the Code, the lawyer’s view may be too wide. Because it is not difficult to think of persons in lawful custody who are not under the jurisdiction of any prison superintendent. But he is the officer whose authority ought to be sought under the section. To that extent the narrower layman’s meaning is in this instance to be preferred. The only qualification which I think should be admitted when construing this word “prisoner” in connection with section 228 of the Criminal Code is that the person should be in prison lawfully because I cannot imagine the section contemplating an illegal detention in a prison as giving rise to an obligation to submit meekly to the prison authorities. Looked at in this light the question for consideration is whether the second and third respondents, who were in fact in prison at the material time, were being kept there lawfully. It is common ground that the respondents concerned were in lawful custody. Could they properly have been kept in prison? Mention has already been made of the interpretation section of the Prisons Act, 1963, which provides that a prisoner includes anyone lawfully committed to custody. The suggestion that a person can be kept lawfully in prison only if committed to it by court order seems to me untenable having regard to section 43 (1) of the Prisons Act, 1963, which provides that: “A prisoner which according to that Act includes any person lawfully committed to custody, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise detained in accordance with law, may be lawfully confined in any prison.” Obviously the provision contemplates committals to prison otherwise than by court order. It would be straining language unduly to say that the expression “otherwise detained in accordance with law” can only mean committed by court order. The second and third respondents were detained in accordance with the law enacted in the National Liberation Council (Protective Custody) Decree, 1966 (N.L.C.D. 2), which ordered that persons including those respondents “shall be taken into custody and kept in protective custody.” At the time, a Decree was, as it still is, the supreme law making instrument of the land. I cannot therefore accept it as inferior to a court warrant in its power to consign a person to custody.
On being taken into custody, section 43 (1) of the Prisons Act, 1963, says they may lawfully be confined in any prison. I think in considering the status thereby conferred on the people by N.L.C.D. 2 the motive or reasons advanced for taking them into custody is quite irrelevant. The primary consideration is what was done not why it was done.
[p.103] of [1967] GLR 91That disposes of any suggestion that the respondents were in privileged sanctuary and not in prison. They were effectively lodged in prison without any right to determine for themselves when it was good for them to come out of it. But even if it was sanctuary that the respondents were given, one is reminded of the ancient case of Hobert and Stroud (1630) Cro.Car. 209 at p. 210 which held that every place where any person is restrained of his liberty is a prison; “as if one take sanctuary and depart thence, he shall be said to break prison.” The Prison Regulations, 1958 (L.N. 418), it is true, do not provide for persons in protective custody, just as they never provided for those in preventive detention. But, although deemed to have been made under the new Prisons Act of 1964, they wee in fact made under an Ordinance which had no provision similar to section 43 (1) of the Act referred to above. And in any event no subsidiary legislation can cut down the clear meaning of its parent Act. If therefore the regulations have not provided for a class of prisoners, it is a serious omission which ought to be rectified. I am unable to accept the argument that because of the omission in the subsidiary legislation the provision in the parent Act does not mean what it clearly appears on face of it to mean. The second and third respondents were, in my view, prisoners at the material time.
The learned judge also held as an alternative that even if the second and third respondents were prisoners within the meaning of the Prisons Act, then as prisoners they were excluded from the operation of the provisions of section 228 of the Criminal Code. If I understand him properly, it is his view that no prison officer or prisoner can commit an offence under section 228. This undoubtedly is the least satisfactory conclusion on the law that he drew in his judgment. The reasons given for the conclusion were curious. Regulation 82 (17) of the Prison Regulations, 1958 (L.N. 412), makes the “giving to or receiving from any prisoner any article whatever without leave” a minor offence against prison discipline, for which punishment is provided. According to the learned judge as this regulation dealt with a special class of persons and for a special object, on the principle of generalia specialibus non derogant the general words of the Criminal Code cannot be held to have indirectly repealed, altered or derogated from the special provisions. That any class of persons should be exempted from the application of the Criminal Code by virtue of a regulation as to discipline is the most startling proposition I have heard. Take for example, the civil service: the governing Act, which is the Civil Service Act, 1960 (C.A. 5), creates in Part V a number of disciplinary offences. Section 26 (c), not a mere regulation, makes it misconduct in a civil servant “to use, without the consent of the prescribed authority, any property or
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facilities provided for the purposes of the Civil Service for some purpose not connected with his official duties.” Penalties for this and other acts of misconduct are provided for in section 27. If the reasoning of the learned judge is correct then no civil servant could be charged for stealing government property provided for the civil service. The incidents of a class of prisoners and prison officers, as given by the judge, will equally be found in the class of civil servants. But assuming the learned judge’s reasoning is correct, it is difficult to see how prison officers come within any class dealt with by regulation 82 (17) of the regulations at all. Nowhere does the regulation state that the disciplinary offences created therein are for prison officers. The most substantial point in this connection, however, is that the learned judge completely overlooked the provisions of section 9 of the Criminal Code. They are as follows:
“9. (1) Where an act constitutes an offence under two or more enactments the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. (2) This section shall not affect a right conferred by an enactment on any person to take disciplinary measures against the offender in respect of the act constituting the offence.”
With all due respect to the learned trial judge, I find myself totally unable to subscribe to the view thatpockets of the society can claim exemption from the application of the Criminal Code either by virtue of their association or employment. On the contrary, where an enactment provides for their discipline, those persons are liable to be charged by the State under the Criminal Code and by whoever is so empowered under their special code of discipline for conduct which is in breach of both codes. With regard to the criticism levelled against the judgment of the trial judge in respect of his conclusion that the second count, which charged the first respondent with “attempted smuggling things out of prison,” is bad for duplicity, it has been pointed out that section 228 of the Criminal Code under which the charge was laid creates no less than six distinct offences. Two of these are in relation to the prison, namely, without authority, conveying anything into prison, or secondly, conveying anything out of prison. As to these two offences it is irrelevant whether the conveyance is from any particular person or not. Then there are the offences of conveying without authority to or from a prisoner which may be any one of the following, namely, conveying to a prisoner in prison, or conveying to a prisoner out of prison, or conveying from a prisoner in a prison or conveying from a prisoner out of a prison. I agree that a proper
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charge must indicate in the particulars which of these acts the accused is supposed to have done.
But although it would appear that some of the material particulars of the first count have been repeated in the second, apart from the allegation that there was an attempt to convey out of prison, it is quite clear that what the accused was charged with in the second count is in connection with the conveyance out of prison. Indeed Mr. Joe Reindorf, in the course of his submissions on another aspect of the case, did agree that the act of conveying from a prisoner may form part of that of conveying from a prison. This must be so if the conveyance out of prison happens to be from a prisoner lodged in the particular prison. The particulars could have been more happily worded. But if the facts which the prosecution seek to prove involve a conveyance out of prison of a thing taken from a prisoner in that prison it seems to me to be taking a very narrow view of things to say that no mention of the particulars as to the prisoner ought to be made because this would disclose a double offence although the evidence may show that this particular conveyance was from a prisoner. I would not have thought that on a charge of conveying a thing out of prison, particulars that the thing to be conveyed was a letter written by a prisoner in particular circumstances, would indicate that two or more offences have been charged in the count either in the alternative or together. After all particulars necessary for giving the accused reasonable information on the charge he has to meet must be given him. I therefore disagree with the trail judge’s conclusion on this point. But the question is one of extreme technicality. And should the view I take be wrong, then there is one further question which the learned Director of Public Prosecutions justifiably complains was not considered by the judge. That is whether the trial on the count even if it was bad for duplicity occasioned a miscarriage of justice. R. v. Thompson (1914) 9 Cr.App.R. 252, C.C.A. and Ogbebor v. Commissioner of Police (1950) 13 W.A.C.A. 22 are authorities for that proposition. I am inclined to the view that the proposition is sound. No consideration was given to this.
In avoiding this duty therefore I think the trial judge was wrong. It was submitted for the respondents that where a judge is sitting alone as judge of both law and fact, there is a presumption that he has directed himself properly. But this is not an irrebuttable presumption. The presumption should be displaced if the judge’s views on the law expressed on other issues in the same case are questionable. And indeed certain aspects of the judgment do give adequate cause for the displacement of this presumption.
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Counsel for the respondents in the course of the appeal have argued that not only count (2) but all thecounts are bad for duplicity. This point is not strictly a subject of this appeal. The argument on it was that a charge which states that a thing is conveyed from one prisoner through another where the offence concerned is that of conveying from a prisoner must be bad duplicity. This argument can be appreciated only if reference is made to the evidence to show that the conveyance was not through the prisoner through whom it is alleged to have been made. It is not a ground of objection that the particulars as they stand in each count charge the accused with two or more offences. In the circumstances I cannot see how an objection to them on the ground of duplicity can be sustained.
A great number of authorities have been cited on the issue whether the facts as evidenced by the prosecution witnesses amount to the crime of attempt or not. On behalf of the State these authorities were put forward to show that if there ever was anything like a “last act” doctrine as appears to have been formulated by Parke B. in R. v. Eagleton (1855) 6 Cox C.C. 559, it is no more good law. In that case Parke B. made the following pronouncement at p. 571:
“The mere intention to commit a misdemeanour is not criminal, some act is required; and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it; but acts immediately connected with it are …” As a general principle, this is unexceptionable and it has been quoted in later cases such as R. v. Robinson (1915) 11 Cr.App.R. 124 at p. 129, C.C.A. with approval. But Parke B. continued his pronouncement on the same page thus: “and if in this case after the credit with the relieving officer for the fraudulent overcharge, any further step on the part of the defendant had been necessary to obtain payment, as the making out a further account, or producing the vouchers to the board, we should have thought that the obtaining credit in account with the relieving officer would not have been sufficiently proximate to the obtaining of the money.
But on the statement in this case no other act on the part of the defendant would have been required. It was the last act depending on himself towards the payment of the money, and therefore it ought to be considered as an attempt.”
It is this latter part of the pronouncement which has been criticised. It was sound for the particular case then before the court. But if [p.107] of [1967] GLR 91
were put forward as the test then I am quite certain in my mind that that test has been rejected by our Criminal Code. And nothing more is required to demonstrate this than the latter part of the illustration to section 18 of the Code that where: “A. buys poison and brings it into B.’s room, intending to mix it with B.’s drink. A. has not attempted to poison B. But if A. begins to mix it with B.’s drink, though A. afterwards alters his mind and throws away the mixture, he is guilty of an attempt.” (It must be remembered that according to section 4 (c) of the Code, the illustrations form part of the Code and may be used as aids to its construction.)
Where the accused voluntarily abandons the venture, any test based on the last act dependent on himself breaks down. Admittedly where the accused has done everything dependent upon himself and the commission of the full offence is frustrated by some intervention beyond his control, the act must amount to an attempt. That, however, does not mean that every act should reach this stage before it qualifies as an attempt. It is therefore the complaint of the State that in the learned judge holding that the first respondent was intercepted too soon, he applied this test of the last act dependent on the accused. The passage in the judgment complained of is as follows:“if he had been intercepted when it was closing time and he had made for the gate to leave the prison then he would have done enough towards the execution of his purpose and the crime of attempt could have been constituted.”
I do not think that this criticism is justified. Making for the gate is a continuous process and whether the last act dependent on the accused in the process of conveying a thing has been performed or not would be determined by the point in his progress at which he is stopped. I am not satisfied that the judge applied any such last act test. But the larger question is whether he was right in deciding that even if the prosecution’s case is assumed, the acts proved do not amount to an attempt. On this issue various definitions, including one by the learned Director of Public Prosecutions himself, have been advanced.
The very illustration to section 18 of the Code which rejects the last act dependent on the accused test, also shows that not every act towards committing a full offence amounts to the crime of attempt. That part of Parke B.’s statement of the law which I referred to earlier as having been often cited with approval is, I think, a correct
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statement of our law on attempts. The difficulty, as has been pointed out by the judges who have had the problem before them, is in its application to particular facts to determine whether or not they constitute attempts. And it is not this statement alone which suffers from this difficulty. Practically all definitions formulated do suffer from it. This particular case throws the difficulty into bold relief. Acts amounting merely to preparation have to be distinguished from those which amount to attempts. I think a useful test to apply is to ask whether the conduct of the accused, looked at objectively, without regard to any subsequent confessions or admissions which the accused may have made, can be considered as aimed only at the commission of the particular offence.
Bearing in mind that the offence charged is one of attempting to convey a thing out of a prison without authority, what are the facts that the prosecution relied upon to prove it. There was a great deal of evidence that letters by prisoners should be written and despatched in accordance with a certain procedure and that in the first respondent taking the exhibits from either of the other respondents, he was doing an unauthorised act. There was also evidence that he hid the letters in his puttees. There does not appear to have been any direct evidence as to the place at which the first respondent took the letters from the second respondent. It seems to have been assumed that as the second respondent was confined to that part of the prison called the infirmary, he must have got the letters there. That place was apparently about 120 yards from the point where the first respondent ought to have been on duty. But there was evidence that when the first respondent was summoned to be searched, he was at his proper point on duty. There was no evidence as to the relationship that this point variously described as “a hall gate” and “a hall entrance” had to the main gate of Ussher Fort Prison leading to the outside world where presumably warders are searched before they depart from the prison.
Nor was there any evidence to show the relationship from the point of view of direction of the infirmary to either “a hall gate” or the main prison gate. The question is whether the prosecution evidence which was assumed proved by the judge for the purpose of his decision on this issue, satisfies the requirements of an attempt to commit the particular crime, namely, to convey a thing out of prison without authority. I do not think that the carrying of an unauthorised packet at a place where the carrier should be at the particular time satisfies this requirement. The essence of the offence is the conveyance out of prison. That is the act which has to be done without authority, not any other act. For the offence to be constituted it does not really matter whether the thing conveyed was obtained from a prisoner or not. Indeed, strictly, it is not an ingredient of the offence that the [p.109] of [1967] GLR 91
thing should be obtained from any particular person. In a life so closely regulated as that in prison, I am sure there are numerous acts which could be done without authority. A warder receiving a letter from a prisoner does, I understand, an unauthorised act. But I find it difficult to conclude from this that he has attempted to convey the letter out of the prison without authority. It is conceivable that he might obtain authority from his superior for the conveyance out which would legalise that particular act without touching the illegality attached to his original taking of the letters without authority. Even if the first respondent received the letters at the infirmary, this would not advance the case of the prosecution much because according to the evidence of Seth Asare Kwami Agbeli, an assistance director of prisons, there is nothing to prohibit a prison officer posted at one point from moving to another point within the prison. And although the distance between the infirmary and a hall gate would be of relevance to the charge of conveying from a prisoner there is nothing in the evidence which makes it necessarily relevant to that of conveying out of prison. Even if the learned Director of Public Prosecutions’ submission that the proper test is that put forward in R. v. Osborn (1919) 84 J.P. 63 by Rowlatt J, is accepted, that requires that the accused must be “on the job,” i.e. the job for which he is charged. I am driven to the conclusion, after anxious consideration, that the facts do not satisfy the offence of an attempt to convey out of the prison.
The Director of Public Prosecutions submitted that apart from the prosecution evidence showing that the first respondent received the letters with the intention of conveying them out of the prison and that he put them in his puttees, it also showed that the first respondent “started conveying” the letters before he was caught. I am afraid I have not found any evidence that he had started to convey the letters out, which is the only conveyance of relevance to this case. An attempt to convey the letter out of prison would have been constituted as soon as the first respondent while carrying the letters made a move towards the exit of the prison. It would not have mattered in the slightest whether this was before or after his closing time.
Before this move was made, however, all acts done in furtherance of the intention would lie in the realm of preparation. In the circumstances I agree with the trial judge in his decision that the facts adduced do not amount to an attempt to convey a thing out of prison. The learned Director of Public Prosecutions has strongly urged that if the court takes this view then it is saying that the case of R. v. Roberts (1855) 7 Cox C.C. 39 was wrongly decided. That may well be. Apart from a restatement of his position in the Eagleton case (supra) by Parke B. and a useful contribution to the law of attempt
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by Wightman J. it is difficult to determine exactly what that case decided. It was a case where the accused was charged with several counts of unlawfully, knowingly, and without lawful authority, or excuse, making and causing to be made, cut and engraved dies of a silver half dollar of Peru, with intent to use them, and by means thereof feloniously to counterfeit Peruvian half dollars, and so attempting to make such counterfeit coin. There was also one simple count of attempting to coin half dollars of Peru. The trial judge reserved the whole case for consideration by a court of five judges because of an objection to the last mentioned count on the ground that there was no proof of it as the complete apparatus for the coining had not been procured. Jervis C.J. at p. 43 drew a distinction between a “statutable attempt to commit an offence” and “the common law misdemeanour of doing an act towards the commission of an indictable offence” and then continued on the same page:
“There does not appear to have been any direct attempt to coin, and if this had been a charge of a statutable attempt to coin, the prosecution would have failed; but here the indictment is founded upon the criminal intent coupled with an act.”Parke B. who earlier on in the same year had given the famous judgment in Eagleton’s case (supra) also made the same distinction when he said at p. 44:
“I agree that the law is as laid down in R. v. Eagleton, and that to constitute the misdemeanour the act done must be proximate to the offence intended. Merely going to Birmingham in order to procure dies, if he had not procured them, would not have been any act sufficiently proximate to the offence; but I think the act of procuring the dies to be made was sufficiently proximate to the offence of coining. They could not have been procured for any lawful purpose. A distinct attempt to coin need not be proved, except in the case of statutable attempts, as in R. v. Williams, (1 Den C.C. 39) which stand upon a different ground.” Wightman J. made the following pronouncement at p. 44: “It cannot be said that every act which is done in furtherance of an intent to commit an offence is itself indictable; nor is it possible to define very exactly what acts are so indictable. But according to the rule laid down in R. v. Eagleton, they must be acts connected immediately with the offence intended to be committed, and having no other object, and in the present case the procuring of the dies appears to me to fall within that rule.”
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The report continues to say that the conviction was affirmed without specifying for which of the offences charged. But in view of the persistent reference to Eagleton, it can fairly be assumed that the conviction was intended to cover the charge of simple attempt. However, it is difficult to escape the impression that the consideration of the court of this charge was influenced by the other charges. The distinction between statutable attempts and the common law misdemeanour of doing an act towards the commission of an indictable offence cannot be helpful in our situation. And the statement of Jervis C.J. appears a bit too wide in the light of the law at present. In any event the case does not persuade me that the view I have come to is wrong. Two points taken on behalf of the respondents, though not forming the subject of a cross-appeal, deserve brief mention. The first is that he various charges as to “smuggling things” as made in the statements of the offences are bad in that the word “smuggle” does not appear in the enacting part of section 228 of the Criminal Code, but only in the marginal note. According to the argument, it is imperative that the wording of the enactment should be strictly followed and not the marginal note which forms no part of the enactment. But all that is required in a statement of offence is a short description of the offence in ordinary language coupled with the section which creates it, if any. Although it was argued for the respondents that smuggling invariably conjures up a customs offence, I do not think that anyone reading these charges would confuse their nature with customs offences. Further the word “smuggle” is quite often used to mean “convey secretly in or out.” The words used in the enactment are “convey out.” I think their meaning is accurately conveyed by the word “smuggle.” Like the trial judge, I do not think this submission has must merit.
The other point is a preliminary objection which surprisingly was raised in the very last stages of the submissions on behalf of the second respondent. It is that the right of appeal by the prosecution is strictly limited to questions of pure law. But an appeal on whether facts amount to an attempt is one on mixed law and fact. Consequently the prosecution is debarred from appealing. I think this is wrong. Whether an act proved or assumed, amounts to an attempt is one of law: see R. v. Miskell (1954) 1 All E.R. 137 at p. 138. For the purposes of this part of his judgment the trial judge assumed the act proved. The prosecution are on this point merely saying that his determination of the law is wrong. Their appeal is therefore competent.
In the result, the first count charging the first respondent with conveying a thing from a prisoner should not have been dismissed[p.112] of [1967] GLR 91
on the ground that the person named as prisoners therein were not prisoners. The second count charging the same first respondent with attempting to convey a thing from prison was properly dismissed on the ground that the act complained of did not amount to an attempt. The fate of the third count is admittedly bound up with that of the second count in that it charges the second and third respondents with abetment of the first respondent in the act of conveyance of a thing out of prison. It therefore falls with that count.
Had the charge been one of abetment to the crime of conveying from a prisoner, which substantive offence had, according to the prosecution, already been completed by the first respondent, the position might well have been different. The fourth count also charging the first respondent with attempting to convey a thing from prison fails for the reason assigned for the failure of the second count.
That being the view of the court, what order can it make? No difficulty arises in connection with counts (2), (3) and (4). On these the appeal must be dismissed. But one further submission must be considered in relation to count (1). It was urged by the Director of Public Prosecutions that this court’s powers in an appeal from a judgment in a trial by a competent court acquitting the accused, are limited to either dismissing the appeal or allowing it; and in the latter case, substituting a conviction for the acquittal. The most serious hurdle in the way of this argument is the learned judge’s omission to make any findings on the facts. It is particularly unfortunate that he decided to rest his judgment on the issues of law raised alone. He ought to have considered the possibility of a contrary view being taken by any appellate court, and the difficulties which would in that case be created by his failure to find the facts. Two opposing versions of the facts were put before him. He had the singular privilege of observing the demeanour of the witnesses and other factors not normally reproduced or described in print but which all go to the assessment of the truthfulness or otherwise of witnesses. By all standards he was the one to determine whether the prosecution’s version of the story is established beyond reasonable doubt. Had he discharged this duty, the case could have been disposed of now. He did not. The Director of Public Prosecutions has assured me that I am in an equally good position to make these findings of fact and that it is not unknown for appellate courts to make these findings. I do not share his conviction. Appellate courts admit their inferior position in the making of findings of fact by refusing to disturb them when made by a trial court, unless it is affirmatively proved that the findings cannot stand. When they do interfere, this is almost invariably because the findings cannot be supported by the evidence. Where there is contradictory evidence
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put forward by the two sides, one of which is expected to establish its case beyond reasonable doubt, it must be highly undesirable if not impossible, for a court, removed from the battleground, to decide just on a reading of the cold print, not only that the one story is preferable to the other but that the acceptable story establishes a case beyond reasonable doubt. I therefore decline the invitation to make findings of fact on the record.
The relevant power of the court in this appeal is found in section 330 (1) (a) (i) of the Criminal Procedure Code, 1960 (Act 30), which provides that in an appeal from a conviction or acquittal, this court may, “reverse the finding and sentence, and acquit or discharge or convict the accused, as the case may be, or order him to be retried by a Court of competent jurisdiction, or commit him for trial . . .”
The learned Director of Public Prosecutions submitted in this connection that the court may order a retrial only if the first trail is a nullity. There is nothing in the provision which limits the exercise of the power to such occasions. The legislature could easily have said so if that was its intention. The requirement that theretrial be by a court of competent jurisdiction does not, in my view, impose such a limitation. It rather enables this court to order, if there should be a retrial, that it be conducted not necessarily by the court which conducted the original trail but by any court competent to try the offence in question. In the instant case, for example, I do not think that in all the circumstances a retrial should be before the same circuit judge. In my view the court should order a retrial in any case where it is of the opinion that the ends of justice would thereby be served. On the conclusions of the law which I have come to, there is a perfectly proper charge in count (1) which has been dismissed on an erroneous appreciation of the law. No decision has been taken on the evidence. Justice demands that, should the State insist on a complete answer to all the issues, there should be such a decision. I accordingly order that count (1) against the first respondent be retried by a circuit judge other than the one from whom this appeal has come. Otherwise the appeal is dismissed.
DECISION
Appeal allowed in part.
S.E.K
