HIGH COURT, ACCRA
DATE: 27 NOVEMBER 1967
Before: AKUFO-ADDO C.J.
CASES REFERRED TO
(1) R. v. Ashley (1967) 112 S.J. 29; 52 Cr.App.R. 42; 117 New L.J. 1138; [1968] Crim.L.R. 51, C.A.
(2) Johnson v. Youden [1950] 1 K. B. 544; [1950] 1 All E. R. 300; 66 T.L.R. (Pt. 1) 395; 114 J.P. 136;
94 S.J. 115; 48 L.G.R. 276; 92 S.J. 109; 215 L.T. 4, D.C.
(2) Thomas v. Lindop [1950] 1 All E.R. 966; [1950] W.N. 227; 66 T.L.R. (Pt. 1) 1241; 94 S.J. 371; 48
L.G.R. 353, D.C.
(4) Ferguson v. Weaving [1951]1 K.B. 814; [1951] 1 All E.R. 412; [1951] 1 T.L.R. 465; 115, J.P. 142;
95 S.J. 90; 49 L.G.R. 339, D.C.
(5) Davies, Turner & Co., Ltd. v. Brodie [1954] 1 W.L.R. 1364; [1954] 3 All E.R. 283; 118 J.P. 532;
98 S.J. 770; 52 L.G.R. 558, D.C.
(6) Yirenkyi v. The State [1963] 1 G.L.R. 66, S.C.
NATURE OF PROCEEDINGS
APPEAL from a conviction for abetment of smuggling a letter out of prison without authority. The facts
are fully set out in the judgment.
COUNSEL
P. Swaniker for the appellant.
Adjetey, State Attorney, for the respondent.
JUDGMENT OF AKUFO-ADDO C.J.
The appellant, a colonel in the Ghana Army, and who at the material time was in protective custody at the Ussher Fort Prison, Accra, was charged with, and convicted of, abetment of smuggling a thing (i.e. a letter written by him) out of prison without the authority of the prison superintendent. Particulars of the offence as stated in the relevant count in the charge sheet read as follows:[p.682] of [1967] GLR 680 “David Gbon Zanlerigu: For that you during the month of July 1966, at Ussher Fort Prison, Accra in the Eastern Circuit and within the jurisdiction of this court, procured a convict prisoner in the commission of a crime, namely, conveying a letter out of Ussher Fort Prison without authority from the Prison Superintendent to one Brigadier D. C. K. Amenu.” The appellant was also charged on another count with conspiracy to smuggle a thing (i.e. the same letter as aforesaid) out of prison. He was discharged on this count, and an appeal against the discharge entered by the Republic was struck out by me on 8 November 1967, for having been entered out of time.
The appellant was convicted on the other count and sentenced to five years’ imprisonment with hard labour which is the statutory minimum sentence prescribed for the offence, and it is against this conviction and sentence that the appellant has appealed. The facts are briefly these: On 24 February 1966, when the army staged a coup d’etat to oust the then President from power, the appellant, a colonel in the army, was in command of the Presidential Guard stationed at Flagstaff House, the residence of the then President. When a contingent of the army staging the coup attacked the said Flagstaff House the Presidential Guard under the command of the appellant resisted the attack. The resistance was in course of time overcome, and the appellant was subsequently, that is on 27 February 1966, arrested and detained in the Ussher Fort Prison. It is not apparent from the evidence what was precisely the nature of his detention. But on 18 April 1966, while the appellant was still detained the National Liberation Council (that is, the government) promulgated a Decree (i.e. the National Liberation Council (Protective Custody) (Amendment) Decree, 1966 (N.L.C.D. 37)), whereby the appellant was formally placed in protective custody. The evidence shows, and the learned trial judge found, that when the appellant was first taken to the Ussher Fort Prison he was, in the words of the trial judge:“housed at the gate lodge and enjoyed several facilities and privileges not normally open to prisoners; he received food from outside and visits by his wife. By N.L.C.D. 37 dated 18 April 1966 the accused was formally placed under protective custody, and, in the normal course of events, the privileges accorded the accused ought to have ceased, but they continued to be enjoyed by him until the end of June 1966.” Some time in July 1966, an officer of the army, Brigadier Amenu, then Commander of the Second Infantry Brigade Group, a personal
[p.683] of [1967] GLR 680
friend of the appellant, who used to be the appellant’s commander in the President’s Own Guard, received a letter from the appellant. The letter was written on toilet paper and was posted by a discharged prisoner at the appellant’s request. This was the letter that formed the subject-matter of the charges brought against the appellant. The letter bore no date, and although it reached Brigadier Amenu by post, enclosed in an envelope, the envelope was not produced at the trial. Since the precise date on which the letter was sent out became one of the material issues in the trial one can only express surprise that the prosecution did not think it necessary to produce the envelope. No explanation for its non-production appears on the record.
The evidence is not very instructive as regards the precise corpus of privileges which the appellant enjoyed up to end of June 1966, as found by the trial judge. But the fact that the prosecution set out to prove that the letter (exhibit A) was written after the appellant’s incarceration, admittedly of a nondescript
character, at the Ussher Fort Prison had been metamorphosed into one of protective custody by N.L.C.D. 37 suggests that the privileges enjoyed by the appellant before he was placed in protective custodyincluded the writing and sending of letters, and that these privileges, in spite of the appellant’s subsequent detention in protective custody, continued, as the judge found, to the end of June 1966. A good deal, if not the whole, of the evidence for the prosecution was directed towards establishing that the letter was written and sent out after the privileges had become terminated by reason of the appellant’s change of prison status.
The trial judge’s finding that the aforesaid privileges were enjoyed by the appellant up to the end of June 1966, and his further finding that “there is equally evidence that the accused had privileges perhaps to write and send letters,” although not as illuminating as one would wish, taken together with the question that the judge posed for himself, namely, “Did these privileges extend to the convict prisoner?” can only mean that the trial judge was satisfied that the letter was written and sent out at a time when the appellant had the authority to write letters and to send them out of prison, that is before the end of June 1966, and not in July as laid in the charge when, according to the prosecution, the privileges had been terminated.
After posing the question aforesaid the judge, in proceeding to a consideration of the charge of procuring by the appellant, went on to say, by way of providing for himself a guide-line, “If the answer to this question is in the negative, then the convict prisoner has committed an offence under section 228 of the Criminal Code, 1960 (Act 29), as amended by section 2 of the Criminal Code (Amendment) Act, 1965,(Act 293). “ The question which the judge posed defines the entire basis for the consideration of the case against the appellant and
[p.684] of [1967] GLR 680
may, for clarity, be paraphrased to read: “Does the appellant’s privilege or authority to send out the letter extend to the convict prisoner so as to make his act taking out the letter at the appellant’s request a lawful act? “Nowhere in the judgment did the learned trial judge exhibit any attempt at providing an answer to this question which goes to establish the basic ingredient of the offence charged, namely, whether the convict prisoner had, or could in the circumstances be said to have had, authority to take the letter out of prison, and consequently, whether the appellant could be said to have requested the doing of an unlawful act. It was imperative for a proper adjudication of the issues involved that this question should have been resolved one way or another, for by the terms of section 228 of the Criminal Code, 1960 (Act 29), only such conveying out of prison as was without authority constituted an offence under the section which is in the following terms: “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.” (See the judgment of the English Court of Appeal per Edmund Davies L.J. in R. v. Ashley (1967) 52 Cr. App.R. 42.) A consideration of the question whether or not the appellant was to be believed when he said he countermanded the request made to the convict prisoner to post the letter for him was wholly irrelevant in answering the question whether the convict prisoner had authority to take the letter out. The trial judge however based his consideration of the central issue entirely on a consideration of the credibility of the appellant’s story of changing his mind about sending a letter to Brigadier Amenu and the consequent countermanding of the request made to the convict prisoner, and delivered himself of the following dicta:
“The question to be determined is whether or not the accused person did procure the convict prisoner to convey the letter exhibit A out of the person. The accused does not deny he originally obtained the convict prisoner to post the letter for him after the prisoner’s discharge. But the accused explains he later changed his mind and countermanded his instructions. The learned editor of Archbold, Criminal Pleading, Evidence & Practice (35th ed.) p.1596 in para. 4144 has this to say on the law of countermanding by accessories beforethe fact: ‘The procurement must be continuing; for if the procurer of a felony
[p.685] of [1967] GLR 680
repents, and before the felony is committed, actually countermands his order and the principal notwithstanding commits the felony, the original contriver will not be an accessory; but in order to escape from liability as accessory there must be express and actual countermand or revocation of the order previously given.’
Whether or not the accused did expressly and actually countermand his instruction to the convict prisoner to convey exhibit A out of the Ussher Fort Prisons is a question of fact to be determined by this court.
I have carefully considered the evidence of the seventh prosecution witness, Detective-Sergeant Klutse and also the evidence of the accused, and compared the same with the explanation given in exhibit J, the accused’s own statement, and I find as a fact that the story of countermanding the instructions to the convict prisoner is an afterthought. Indeed the whole of the accused’s defence that exhibit A (the signed letter) was a draft given to the convict prisoner to study to make up his mind whether or not to post it and the subsequent discussion culminating in countermanding his order whilst the letter was with a third person nowhere near them is not only untrue but unreasonably probable.
The case against the accused on count (2) is proved beyond all reasonable doubt; he is, therefore, found guilty and convicted on that count.”
The issues raised concerning the countermanding of the request to the convict prisoner, as also other issues like the appellant’s story of delivering to the convict prisoner the letter written on toilet paper as a draft to be faired on writing paper and the statement contained in that letter about his not being allowed to write letters (not to mention the appellant’s explanation on this matter which appeared to have passed unnoticed by the trial judge) were material only in determining whether or not by his own conduct the appellant had not provided evidence of the absence of authority for his act. But these issues became irrelevant when the trial judge found that the appellant enjoyed the privilege, inter alia, of writing and sending letters up to the end of June 1966, and that the only issue that called for determination was whether the authority he had to send letters did “extend to the convict prisoner.” The trial judge having so clearly and cogently defined the basic ingredient of the offence nevertheless failed to expound it. Counsel for the Republic very properly submitted that the charge did not concern the writing of the letter but the sending of it. If the
[p.686] of [1967] GLR 680
appellant had the authority to send out letters, what consequences can be said reasonably to flow from such an authority? The word “send” is defined in the Shorter Oxford English Dictionary (3rd ed.), Vol. II, p. 1839 as follows: “To order or direct to go or be conveyed … To commission, order or request (a person) to go to or into a place or to a person. Chiefly, to dispatch as a messenger or on an errand.” To send a letter out of prison, the appellant would have to do so through some human agency, and unless the exercise of that authority or privilege is clearly limited in its mode (and there is no evidence of any such limitation), it stands to reason that the appellant could commission any person who would agree to do so to carry the letter for him and such a commissioning would be no more than a legitimate exercise of the authority or privilege which he enjoyed. If then the person commissioned executed his commission, would he be committing an offence? And would the request amount to procuring the commission of an offence?
Apart from the general view of the situation accepted by the judge that the appellant enjoyed privileges including the writing and sending of letters up to the end of June 1966, the appellant stated in evidencethat he discussed with the late Director of Prisons the idea of writing to Brigadier Amenu to solicit his intervention with the late General Kotoka, then the Commander-in-Chief of Ghana Armed Forces, to secure his release from detention. The appellant said he told the director that a convict prisoner who was about to be discharged had agreed to take out the letter for him and the director had said it was alright if the prisoner had agreed to do so. At the time the appellant gave this evidence the director had died, and that piece of evidence was wholly side-tracked by the trial judge who made no reference to it in his judgment. It was submitted by counsel for the Republic in reply to a submission made by the appellant’s counsel that mens rea on the part of the appellant was not essential in law in that the prohibition contained in the section under which the appellant was charged was an absolute one. That submission is in my view an over-simplification. For if the circumstances were such that the appellant could be held to have reasonably believed in the existence of facts which would not make it an offence on the part of the convict prisoner if he acceded to the appellant’s request it would be stretching human reasoning just a little too far to say that he was requesting the doing of an act which would amount to an offence merely because the prohibition of the act requested was absolute. This I conceive to be the position on the analogy of such cases as Johnson v. Youden 1 K.B. 544, D.C.;
[p.687] of [1967] GLR 680
Thomas v. Lindop [1950] 1 All E.R. 966, D.C.; Ferguson v. Weaving [1951] 1 K.B. 814, D.C. and Davies, Turner & Co., Ltd. v. Brodie [1954] 3 All E.R. 283, D.C. And I would further add that the prohibition is not an absolute one in that anyone charged with an offence under the section can successfully defend himself by establishing the appropriate authority for his act. If therefore there are circumstances which would reasonably lead the accused person to believe in the existence of authority for his act, he cannot be convicted. And what were the circumstances? As already stated the appellant enjoyed the privilege of writing and sending letters up to the end of June 1966. In addition he had obtained, at least so he said, the blessing of the Director of Prisons for his request to the prisoner about to be discharged to post the letter for him.
Would he then, by proceeding to make the request, be procuring the doing of something prohibited when that something could lawfully be done if or when done “with authority”? The proposition that the convict prisoner should have separately obtained the requisite authority to take the letter out does make complete nonsense of the appellant’s general authority to send out letters without any restriction as to the mode of doing so. Counsel for the prosecution submitted that assuming the Director of Prisons gave his authority, that authority would not be valid in law because by section 228 of Act 29 as amended by Act 293, s. 2, under which the charge was brought only the authority of a prison superintendent could be valid in law. Apart altogether from the absurdity of the situation created by the acceptance of such a submission which would make the authority of an inferior officer valid in law and that of a superior officer invalid, the appellant’s case cannot, it seems to me, be made to rest entirely on the ad hoc authority which he alleged was granted by the Director of Prisons for the particular act that is the subject of these proceedings. I do not feel myself called upon to interpret section 228 of Act 29 in so far as the reference to the “authority of the Prison Superintendent” is concerned, but, if I were, I would have no hesitation in saying that the only reasonable interpretation is that the authority required must be that of an officer not below the rank of a prison superintendent. Any other interpretation would lead to an absurdity. In this regard it is both interesting and amusing to note how the prison officers, or at least one very senior officer regarded their powers under section 228 of Act 29. Attoh, a senior prison superintendent who gave evidence for the prosecution, would deny to a prison superintendent (as distinct from a senior prison superintendent) theexercise of any powers under [p.688] of [1967] GLR 680
section 228 aforesaid, and would himself refer to the Director of Prisons any application to him for the exercise of his powers under that section, for instance an application to send a letter out of prison.
It hardly lies in the mouth of the prosecution to draw a distinction between a prison superintendent and the Director of Prisons in so far as that distinction is intended to bear on the matters in issue in these proceedings, for the prosecution all along, both here and below, maintained that the appellant enjoyed the privilege to write and send letters, and such privilege with the authority to exercise it that goes with it must therefore be presumed, at any rate against the prosecution, to have been lawfully conferred. Indeed the main complaint of the prosecution was that the letter was sent out of the prison at a time when the appellant’s privilege to do so had been terminated.
As already indicated the trial judge found in effect that the letter was sent out during the period in which the appellant still enjoyed the privilege of sending out letters, but held that because the appellant’s story of countermanding his request to the convict prisoner was not a credible story the appellant was therefore guilty of the offence of abetment as charged. In this he was wrong, as he also was in not expounding the basic ingredient of the offence which he himself defined. If he had adverted his mind to a consideration of this latter matter he no doubt would have considered not only the effect on the convict prisoner’s act of the appellant’s general authority to send out letters but also the appellant’s evidence of the additional ad hoc authority which he said he obtained from the director to send the letter through the convict prisoner.
Counsel for the Republic invited me, should I come to the conclusion that the above criticisms would impel a decision in favour of the appellant, to apply the provisions of the proviso to paragraph 13 (1) of the Courts Decree, 1966 (N.L.C.D. 84), and dismiss the appeal on the ground that no substantial miscarriage of justice has actually occurred. The proviso to paragraph 13 (1) of N.L.C.D. 84 reads as
follows:
“Provided that the Court shall, notwithstanding anything to the contrary in the foregoing provisions, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or of a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”
[p.689] of [1967] GLR 680
It will be observed that this paragraph is an extended version of the proviso to section 15 (1) of the Courts Act, 1960 (C.A. 9), which it has replaced, but the principles on which the proviso in N.L.C.D. 84 may be applied are, in my view, the same as those applicable to the proviso in the Courts Act, 1960, the only difference being that in N.L.C.D. 84 more detailed guide-lines are given to the court. The principles which this court will apply in invoking the proviso to section 15 (1) of the Courts Act have been exhaustively dealt with in the case of Yirenkyi v. The State [1963] 1 G.L.R. 66, S.C. I can see nothing in this appeal which justifies a recourse to the proviso. It is difficult to say whether the learned judge’s verdict would inevitably have been the same if he had adverted to the matters mentioned earlier in this judgment. To take one example: It is not possible to say what view the trial judge would have taken of the appellant’s story of having obtained additional authority from the director. If he believed the story the appellant could not be found guilty, and this conclusion he would come to without the need to consider any other matter raised in the trial. On the other hand if he did not believe the story this would not be the end of the matter, for as I have already pointed out he would have to consider theconsequences of the appellant’s privileges which he generally enjoyed. I have already demonstrated that if you accept that the appellant had the general authority to send letters without any restrictions as to the mode of doing so then it is difficult to see how he would be committing an offence by requesting the convict prisoner to take out the letter. On the evidence the prosecution did not discharge the onus which was upon them to prove that when the act occurred the appellant’s privileges had been terminated. These points are not mere technicalities or matters of procedural errors. They go to the very root of the appellant’s criminal liability and they all contributed to produce a conclusion which cannot be justified on any principle of justice.
If the only point in the appeal was one based on the discrepancy between the judge’s finding about the date on which the letter was sent out and the date alleged by the prosecution it would be easy, if, that is, the question of date was a matter of indifference to the prosecution, to apply the proviso. As it was the question of date was not, and could not be, a matter of indifference to the prosecution, who could only succeed if they proved that the appellant committed the act when his privileges had been taken away. The proviso is not intended to re-inforce a prosecution structure initially built on a foundation of shifting sands. For these reasons I am unable to apply
[p.690] of [1967] GLR 680
the proviso. It would be wrong to do so. From which it follows that the appeal must succeed. The appeal is accordingly allowed, the conviction is set aside and the sentence quashed.
DECISION
Appeal allowed.
D.R.K.S.
