Section 112: particulars necessary to give reasonable information of the charge
The authorities just reviewed are all in agreement that in criminal procedure, the only circumstances in which a charge can be deemed to be properly laid is where the particulars of the charge sufficiently inform the accused person of the specific acts and/or omissions that the accused person engaged in which resulted in the event; the reason for which he is being prosecuted.
The Osei Kwadjo case (supra) encapsulates the position of the courts on what the particulars of the offence in respect of which a person is charged must contain in order to comply with the constitutional requirement that the person charged is entitled to and must be given details of the offence the subject matter of the charge before he can be properly prosecuted on the charge(s). The particulars of the offence as I have earlier pointed out must state such particulars of the offence as may be necessary for giving reasonable information as to the nature of the charge. This requires that the particulars of offence charged must state with some precision the wording of the section defining the crime and alleging that the accused did an act or omitted to do an act having the ingredients of the offence.
An interpretation of section 112 of the Criminal Procedure Code, 1960, reveals that some particulars of a charge are only necessary for giving “reasonable information as to the nature of the charge,” while others are “of the essence” or “constitute the gravamen” of the offence charged. Thus two principles emerge from the allegedly conflicting authorities cited, they are as follows: (i) While the particulars are only necessary for giving reasonable information as to the nature of the charge, omission to aver those particulars in the charge or indictment renders the charge merely defective, and that the defect caused by the insufficient particulars can be cured by evidence which supplies the omission; in that case the proviso to section 15 of the Courts Act, 1960, could be prayed in aid and (ii) If the particulars are of the essence, or form the gravamen of the offence charged their omission from a charge or indictment is fatal, because no offence would be disclosed, and cannot be cured except by amendment.
Section 129(5)(c): imputations not reasonably necessary for the conduct of the defence
Under our law, cross-examination as to the previous convictions and bad character of the accused is permissible only when the nature or conduct of the defence is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct of the defence. In other words, an accused person under our law cannot be cross-examined as to his previous convictions and bad character if and when the conduct of his defence reasonably requires the making of injurious reflections or imputations on the prosecutor or the witnesses for the prosecution.
Section 173: acquittal where no case is made out in a summary trial
Section 173 is concerned with summary trials where the judge decides both questions of law and fact. It is for the judge in a summary trial to weigh the evidence and then decide whether from the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if uncontradicted will justify a conviction.
Section 268(2): production of a previous statement of a prosecution witness
In Ghana, the procedure in the cross-examination of witnesses for the prosecution on their previous police statements is that laid down in subsection (2) of section 268, and in construing this subsection the court is of the opinion that effect must be given only to its language. It has been decided in Wallace-Johnson v. R. (1939) 5 W.A.C.A. 56, P.C. that where the Criminal Code of Ghana appears to be intended to contain a full and complete statement of the law, it must be interpreted according to its tenor, free from any glosses or interpolations derived from any expositions however authoritative of the law of England or of Scotland. This principle obviously applies to the construction of the Criminal Procedure Code, 1960, which, by virtue of section 415 thereof, is read and construed as one with the Criminal Code. The plain meaning of the words of subsection (2) is that the prosecution have a discretion in furnishing the court with a copy of a statement made by their witness, who is being cross-examined. Section 27 of the Interpretation Act, 1960 (C.A. 4), says that “may” is to be construed as permissive and empowering.
In a trial on indictment it is the duty of the trial judge to decide, under section 271 of Act 30, whether there is any evidence to be left with the jury. If there is none it is his duty to withdraw the case from the jury and direct them to enter a verdict of acquittal and acquit the accused.
In our view it would be begging the question, and indeed dangerous to the administration of justice to assume or for that matter to hold that the omission to state that essential element of proof in his judgment made no difference to his decision and was immaterial or that it is a mere omission which has not occasioned a miscarriage of justice. It is true that the decision vested exclusively in the trial judge who is presumed to know the law but this court cannot and would not proceed on that assumption particularly where in a trial with assessors there has been a failure to observe the statutory directions given to all judges in such cases by the provisions of section 287 of the Criminal Procedure Code, 1960, which substantially re-enacts section 300 of the old Criminal Procedure Code.
Section 96(7): refusal of bail for listed offences
To conclude I uphold the claim that section 96(7) of Act 30, as variously amended is inconsistent with Article 19(2)(c) of the Constitution and for that reason is null, void and of no effect. In my view article 14(1)(g) does not justify the continued existence of section 96(7) of Act 30, as amended. Indeed in so far as article 14(1)(g), either standing on its own or when read together with Article 14(4), leaves room for the court to consider a release of a person detained under that provision, section 96(7) of Act 30 as amended is clearly inconsistent with it, and to that extent is null, void and of no effect. And in so far as the prohibition imposed by section 96(7) of Act 30 does not fall within the exceptions in Article 14(1) it is inconsistent with it and is thus null, void and of no effect. Section 96(7) of Act 30 is accordingly struck down. I do hereby reject the claim founded on Article 15(2) of the Constitution for reasons explained above.
