Appellate court's function where the jury was properly directed
Be that as it may, the jury were amply directed by the learned judge on the conflicts in the evidence of the prosecution witnesses, and they, having had the advantage of seeing and hearing those witnesses, chose to believe them; and there was evidence upon which the jury could act. In the case of R. v. McGrath,3 Lord Goddard C.J. (as he then was) in delivering the judgment of the Court of Criminal Appeal, stated, inter alia, the following: “Where there is evidence on which a jury can act and there has been a proper direction to the jury this court cannot substitute itself for the jury and re-try the case. That is not our function. If we took any other attitude, it would strike at the very root of trial by jury.”
We do not sit here to re-try cases on appeal, and where there was evidence on both sides and the verdict is one which a reasonable jury could arrive at, it is not for us to interfere, even though we may feel that we might ourselves have come to an entirely different conclusion. In the present case there was sufficient evidence upon which the jury could act, and the summing-up, except in one respect, was adequate and fair to the defence. In our opinion, therefore, there is no sufficientreason for interfering with the verdict of the jury and the appeal is accordingly dismissed.
Appellate interference where another court might decide differently
The fact that another court, differently constituted, would have reached a different verdict is no reason why an appellate court should set aside the trial court’s decision or judgment.
Burden on an appellant who alleges the verdict is against the weight of evidence
Finally, on the submission that the verdicts were against the weight of the evidence, we find that the Appellants failed to discharge this burden. A person who alleges that the verdict is not supported by the evidence on record has the burden of pointing out the lapses in the judgment of the court below. In the case of Tonado Enterprise & Ors v. Chou Sen Lin [2007-2008] SCGLR 235, the court stated that: “When a party in his ground of appeal states that the judgment is against the weight of evidence, he imposes upon himself the onus of satisfying the appellate court that the evidence led in the trial were not such as to warrant the findings made on it.”
It goes to show the legislative intendment that an appeal should not be allowed merely on account of what appears to be a technical objection or defect in the charge sheet where evidence has been led to support what is being objected to. If the charge sheet said the theft took place in 1980 but the evidence showed that the theft took place in or about 1986 it causes no miscarriage of justice since the appellant does not dispute that the car in question was given to him and that he was the one who took it to Kumasi in 1980 and that since then it has not been returned to the council. He also does not plead alibi. He had every opportunity to contest the prosecution’s story. It is my view, therefore, that the objection is untenable and ought to be dismissed. Also, as long as the statement of offence disclosed the offence with which he is charged, an appeal based on a defective particulars of offence cannot hold.
Deference to the trial judge on credibility of witnesses
Where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are reliable and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed. The appellate tribunal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way.
The admissible evidence against the first appellant is, in the opinion of this court, overwhelming, and the question is whether this court ought to apply the proviso to section 26 (12) of the Courts Act, 1971 ‘(Act 372), notwithstanding the misdirections, some of which are well-founded. The test then, as indicated above, is whether it can be said with confidence that an intelligent and reasonable jury, properly directed upon the evidence would have convicted the first appellant.
Justice must be administered in accordance with the law. The importance of keeping the administration of justice free from all suspicion of unfairness cannot be over-emphasised. “Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law.” Per Lord Reading, C.J. in R. v. Lee Kun.13(13) These safeguards include the need for a full and correct direction on the essential elements of the charge and the burden of proof.
If exhibit M had been excluded from consideration by the jury it would have been impossible for them to have returned the verdict which they did return. The learned Director of Public Prosecutions has conceded this aspect of the matter, and we are satisfied that there has been a fatal misdirection by direction on inadmissible evidence and in the circumstances it is impossible in law to permit the convictions to stand.
However, from the particular facts of this case we do not think that the jury regarded themselves as having been bound by the expressions of the judge upon the questions of fact in the trial. In considering the effect of this particular direction, one must take into account the effect of the whole of the summing-up in deciding whether a particular misdirection occurring in part of the summing-up could have misled the jury. In this regard, giving credit to the jury for their intelligence, and for the knowledge that they are not bound by the opinion of the judge upon issues of fact, there can be no miscarriage of justice resulting from the manner in which the learned judge directed the jury on this aspect of the case
The directions in the last paragraph of the above passage were the judge’s last charge to the jury, and it is clear that the learned trial judge’s direction in the opening sentence of the paragraph is incomplete, for he should have gone further to tell the jury that if after considering the whole evidence they were left in reasonable doubt whether or not the defence of self-defence had been made out they should acquit the appellant. We think that this is a serious flaw in the summing-up, but that it occasioned no substantial miscarriage of justice.
Effect of an appeal by one of several persons convicted together
Now an appeal vests the court with jurisdiction over the whole of the proceedings from the court below. That is so even if only one of two or more persons convicted together appealed, and the other failed to appeal. As a general rule, the court, in dealing with an appeal in a case where two or more persons have been convicted together, is bound to deal with the cases of the convicted persons separately, each on its own merit, so that if only one of the convicted persons appealed and another or others failed to appeal the court has to deal only with the issues in the appeal which affect the appellant or appellants before it and with no other; so that while the appeal of one or more appellants may succeed, that of another or other appellants may fail, and also the conviction of the convicted person or persons who have not appealed will not be affected in any way.
Enhancement of a sentence that has been fully served
We have taken into account all the circumstances surrounding this case and the fact of the appellant having served his original 5-year sentence not having weighed on the minds of His Lordships of the Court of Appeal in enhancing his original sentence and are of the view that the enhancement of the appellant’s sentence at a time when he had fully served the original five (5) year sentence occasioned a substantial miscarriage of justice. Accordingly, we allow the appeal against the enhanced sentence which we hereby set aside as having been made without any justification.
One would have thought that for a sentence to be enhanced, the sentence itself must be subsisting. Our researches has not revealed a similar case in our jurisdiction which our courts have made a clear judicial enunciation as to the law relating to enhancement of sentence after same had been fully served but we refer to the case of State vs. Heyward 152 Conn. 426, 207 A. 2d 730 (1965) where the Supreme Court of the State of Connecticut in the United States set aside the judgment of the appellate court which had enhanced the appellant’s sentence for a narcotic offence after he had completely served his original sentence. The Supreme Court held that since the appellant had fully served his original sentence before the enhanced sentence was imposed, he was entitled to be freed. The Court stated as follows: “To subject him, instead to another, and more severe judgment for the same offence placed him in jeopardy for the crime for which he had already paid the penalty”
We have taken into account all the circumstances surrounding this case and the fact of the appellant having served his original 5-year sentence not having weighed on the minds of His Lordships of the Court of Appeal in enhancing his original sentence and are of the view that the enhancement of the appellant’s sentence at a time when he had fully served the original five (5) year sentence occasioned a substantial miscarriage of justice. Accordingly, we allow the appeal against the enhanced sentence which we hereby set aside as having been made without any justification.
Error of law that occasions no miscarriage of justice
I am of the respectful view that it is not every finding based on an error of law that is fatal to a ruling or verdict. In my respectful opinion, where the error is harmless, or even if serious, it is counterbalanced by evidence so overwhelming to override the error and no substantial wrong or miscarriage of justice resulted, it should not affect the decision.
Grounds on which a criminal appeal must be allowed
Since the charge disclosed no offence and since the evidence too did not prove that the appellant has committed any offence the principle to be applied to the case is the one laid down in section 15 (1) and (2) of the Courts Act, 1960, which are as follows: “15 (1) The Supreme Court on any appeal against conviction shall allow the appeal if such court thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the Court may, notwithstanding that the Court is of opinion that the point raised in the appeal might be decided in favour of the applicant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Subject to subsection (2), an appellate Court on hearing an appeal in a criminal case shall allow the appeal if the appellate court considers a. That the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or b. That the judgment in question ought to be set aside as a wrong decision on a question of law or fact, or c. That there was a miscarriage of justice and in any other case shall dismiss the appeal
I am also of the opinion that in every case, if the reviewing court, such as this court, takes the position that the error, whether procedural or substantive, led to a denial of a fair trial, the court may properly characterize the matter as one where there was a miscarriage of justice. But, where the error is of a minor nature having no impact on the verdict, it should not overturn the verdict or ruling.
Miscarriage of justice also includes any departure from the rules of Court, practice or procedure which permeates all judicial procedures, rules of court or practice to make that which happened not in the proper use of the word judicial procedure, rules of court or practice at all. This position was espoused by Justice Dundedin of the Privy Council in the case of Robbins v. National Trustee Company [1927] 2 DCR 97.
The Appellant’s appeal does not demonstrate that miscarriage of justice has merely occurred but rather provides that a substantial wrong occurred during the trial and has infected the proceedings as to merit its setting aside to ensure that fairness is meted out to the Appellant. The miscarriage of Justice occasioned to the Appellant as a result of the procedure adopted by the trial High Court Judge goes to the root of the trial and the conviction and sentence emanating from such a Judgment cannot stand.
Since, in the circumstances, the jury were erroneously apprised of the previous convictions of the first and third accused persons for stealing prior to the summing-up and the consideration of their verdict, it is indisputable that there was a substantial miscarriage of justice and a denial of a fair trial for all the accused persons who faced a joint trial on two counts of robbery. Since we, sitting in this appeal court, cannot determine without doubt whether a reasonable jury would, after being directed on properly admissible evidence have convicted these appellants of the offences charged, we had no option but to allow their appeals, acquit and discharge them. In any event, justice must be dispensed according to the law; and in a case where statutory safe-guards for the benefit of the accused persons have been violated and the jury have been erroneously informed of the bad character of two out of three accused persons in a joint trial before retiring to consider their verdicts, the ends of justice and fairplay would best be served by allowing these appeals and quashing the convictions, which we accordingly did.
The law is, that although matters mentioned in a judgment as affording corroboration are not in law corroboration, yet if there is evidence which affords corroboration, the misdirection by the judge is not fatal, and the appeal court will take cognisance of the evidence which provides the corroboration.
Mistrial distinguished from miscarriage of justice
A mistrial is a trial that has been terminated before its conclusion and therefore lacks legal effect and such a trial is always rendered nugatory or nullity. It is our decision that the procedure adopted by the trial High Court Judge has occasioned miscarriage of Justice and not mistrial as it departed from the rules which permeates all Judicial procedure to make the conviction and sentence not in the proper use of the word judicial procedure or at all.
As the jurisprudence establishes, there is no inherent right for any litigant to appeal, as an appeal is a creature of statute. Therefore, a party who is piqued by a ruling/judgment and desires to appeal against the same must comply with the conditions spelled out by the law regarding an appeal. To that extent, the 1st Appellant is mandated by law to provide particulars of the alleged errors in the grounds of appeal set out in the Notice of Appeal because, without the particulars, the Court is left to speculate as to what the alleged errors are. The allegation of error(s) must be set out in concise, clear, and plain terms as required by the rules. It is not for the Court to speculate and infer. As this Court is bound by its own rules and the decisions of the Supreme Court, the impugned grounds of appeal set out in the 1st Appellant’s Notice of Appeal as grounds (a), (b), (c), (d), (f), and (g) contravene the mandatory provisions in Rule 8(4) of C.I. 19. Consequently, all those grounds of appeal are inadmissible and unarguable as they are not compliant with the rules of court. They are hereby struck out.
Quashing the conviction of a co-accused who did not appeal
Again if the cases of the convicted persons are inseparable, or if the case of the person or persons who appealed is so interlocked with that of a person who has not appealed as to be incapable of separate considerations, a decision on the case of the one who appealed necessarily operates as a decision on the merits of the case of the convicted person or persons who did not appeal; in such a case the success of the appeal and the quashing of the conviction of the appellant or appellants necessitates the quashing of the conviction even of those who have not appealed.
Rules 15 of the Court of Appeal Rules, 1997 (C.I. 19) makes provision for the filing of Notice for Variation of judgment in civil appeals and shall be filed within one month after service of the Notice of Appeal on the respondent. There is no such provision made for a Respondent in criminal appeal and a Respondent who wish to file an appeal against the decision of the High Court to the Court of Appeal shall file it in the form of appeal and not cross appeal as the Attorney-General did in the instant appeal and must be filed within the time prescribed for appeal. Section 11(6) of the Courts Act,1993 (Act 459) provides that a party who desires to appeal against a judgment delivered by the High Court to the Court of Appeal shall give Notice of Appeal or Notice of an Application for leave to appeal within one month of the decision appealed against. The Attorney-General filed his Notice of Appeal against the sentence imposed on the Appellant for an enhancement barely one month three weeks from the date of the delivery of the judgment without the leave of the Court, and indeed, there was no appeal pending in the eyes of the law. The Notice of Appeal filed by the Attorney-General on 8th August, 2008 without the leave of the Court is incompetent and same is struck out as such.
The right to appeal against a decision of the High Court to the Court of Appeal is created by article 137 of the Constitution and section 11(c) of the Courts Act only provides for the time frame within which such an appeal may be filed. A person who files an appeal against the criminal decision of the High Court to the Court of Appeal under article 137 of the Constitution acquires a constitutional right and not a statutory right and cannot therefore say that an appeal is a creature of statute as pertains in the English Courts where they do not have a written Constitution.
We hereby state that the Appellant’s appeal is a creature of Constitution as he derives his rights from the Constitution and not a statute. We therefore unambiguously state that we would not follow the English position which has been wrongly transported into our jurisprudence that all appeal are creature of statute. In Ghana, most of the appeals as in the instant appeal are created by the Constitution and a person who takes advantage of it acquires a constitutional right.
The conviction of the appellant means that the jury were satisfied upon the facts that the appellant used the dagger with intent to cause harm. In other words they were satisfied that the appellant caused the death by unlawful harm. The only verdict open to the jury upon such a finding of fact is guilty of manslaughter, not guilty of murder. Therefore the law makes it incumbent upon us to substitute for the verdict of murder, the lawful verdict which the jury should have returned upon the facts they must be presumed to have found.
Verdict unreasonable or unsupported by the evidence
The last ground of appeal, like the previous grounds already referred to, was based solely on questions of fact and contained matters which were put before the jury, we have no doubt, with force by the appellant who conducted his own defence, and equally favourably to the appellant by the learned judge in his summing-up. Upon that, the jury, having heard the evidence on both sides on the narrow issue of fact came to the conclusion that they believed the case put forward by the prosecution and convicted the appellant of the murder of the deceased. Learned counsel for the appellant has not raised in this appeal any question of law for our consideration and it is impossible for this court to say, in the words of the statute, that the verdict to which the jury came was unreasonable or could not be supported having regard to the evidence.
It is trite that where an Appellant in a criminal case alleges in his notice of appeal that the judgment is unreasonable or cannot be supported having regard to the evidence, it is incumbent on an appellate court to analyze the entire record of appeal to satisfy itself that, taking into account the testimonies and the documentary evidence, the prosecution proved its case beyond a reasonable doubt, or as in this case, that the prosecution provided sufficient evidence and the conclusions of the judge are reasonable and supported by the evidence. In effect, a criminal appeal, like a civil appeal, is by way of rehearing. See Dexter Johnson v. The Republic [2011] SCGLR 601. It is also noted that having set out the ground of appeal under discussion, the onus is on the Appellant to satisfy us, as the appellate court that the judgment is indeed unreasonable having regard to the evidence.
