SBAITI vs. THE REPUBLIC [1968] GLR 934

CASES REFERRED TO

(1) Republic v. Halm and Ayeh-Kumi, Court of Appeal, 27 July 1967, unreported.

(2) Owusu v. The State [1967] G.L.R. 435, C.A.

(3) R. v. Tunwashe (1935) 2 W.A.C.A. 236.

NATURE OF PROCEEDINGS

APPLICATION for bail pending the hearing and determination of an appeal against conviction. The facts are sufficiently set out in the ruling of Archer J.

COUNSEL

P. A. Adjetey for the applicant.

R. A. Darko, State Attorney, for the respondent.

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JUDGMENT OF ARCHER J.

The applicant was convicted at the Accra Circuit Court on 17 September 1968, on two counts for corruption of a public officer contrary to section 239 (2) of the Criminal Code, 1960 (Act 29), and was sentenced to twelve months’ imprisonment with hard labour on each count, both counts to run consecutively, i.e. he was to serve two years’ imprisonment with hard labour. He has lodged an appeal to this court against his conviction which has not been heard and it is anybody’s guess when the appeal will be heard. In the meantime he has applied to this court for bail pending the hearing of the appeal. In support of his motion for bail, an uncle of the applicant filed an affidavit in which the uncle stated, inter alia, that the applicant was quite innocent of the charges and that he had a very good defence; moreover there was a very strong probability that the appeal would succeed and that if bail was not granted, the applicant would have served a substantial part of his sentence.

The main arguments urged by Mr. Adjetey, learned counsel for the applicant, were that as the acts in the two counts constituted a series of crimes but connected with the same purpose, the trial court should have applied section 302 of the Criminal Procedure Code, 1960 (Act 30), and should have made the sentences run concurrently and not consecutively. Furthermore, there was no indication when the appeal could be heard and as the applicant had a further right of appeal to the Court of Appeal if his appeal in this court were to be dismissed, the period of two years was so short, that the applicant would have served the whole period before the appeal went to the final appellate court.

In reply to this argument, Mr. Darko, learned state attorney, agreed that it was impossible to tell when the appeal would be heard but he maintained that the two counts consisted of two separate transactions and therefore the trial court was right in making the sentences run consecutively. I must say at this stage that I am inclined to agree with the learned state attorney that the two offences were alleged to have been committed on 12 April 1967 and also on 12 May 1967, in respect of two different transactions. It is true that in the judgment, the trial court in count (2) referred to the words “for the same purpose” but these words clearly refer to the words “to influence the conduct of the said Stephen Kojo Pambo by gift of a valuable consideration” as mentioned in count (1). The court did not want to repeat these words in count (2).

The next point taken by Mr. Adjetey was that the evidence disclosed no offence of corruption committed by the applicant and if any offence had been committed at all, then it was the offence of extortion committed by the said Stephen Kojo Pambo. The learned state attorney argued in reply that as the record of proceedings was

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not available to the court it was impossible for the court to consider whether the appeal would probably succeed. He relied on a ruling of the Court of Appeal delivered on 27 July 1967 in Republic v. Halm and Ayeh-Kumi, unreported. Mr. Adjetey on the other hand drew attention to another ruling by the same court on 22 June 1967 in the case of Owusu v. The ‘State [1967] G.L.R. 435.

I have had the opportunity of reading the two rulings and I have tried to understand their contents. So far as the High Court is concerned, the power to grant bail pending the hearing of an appeal is contained in section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) (No. 2) Act, 1962 (Act 116), s. 9 which reads:

“After the filing of a petition of appeal by any person entitled to appeal, and pending the hearing, the High Court may, for reasons to be recorded by it in writing, order that the execution of a sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond.”

It follows that the High Court has a discretion in the matter but it seems to me that the discretion has to be exercised on known and well-settled principles. In my view these principles are well-settled in the two cases cited by both learned counsel. In the Owusu case (supra) at p. 440 the Court of Appeal adopted the two principles laid down in R. v. Tunwashe (1935) 2 W.A.C.A. 236 and added a third and I quote from the judgment:

“These principles have been summarised in R. v. Tunwashe (1935) 2 W.A.C.A. 236 as follows: ‘(1) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed. (2) That in dealing with the latter class of case the Court will have regard not only to the length of time which must elapse before the appeal can be heard but also to the length of the sentence to be appealed from, and further that these two matters will be considered in relation to one another.’ To these may be added a third, namely, where the court is satisfied that the conviction is prima facie erroneous either in law or in fact, and that there will be an apparent miscarriage of justice if bail is refused.”

The same Court of Appeal approved of these principles in the Halm and Ayeh-Kumi case (supra) and his lordship the Chief Justice made this clear when he said:

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“we find ourselves substantially handicapped in our assessment of the prospects of the success of the appeal in that we have not before us the notes of evidence at the trial, and we are unable to find on the face of the judgment alone anything to support the contention that the conviction is prima facie wrong. We do not go so far as to say that the appeal has no chance of success. The appeal may well succeed, but on the material presently before us we are unable to say that it probably will succeed.”

It is obvious that the Court of Appeal was dealing with the particular case before it where learned counsel had referred to various conflicts of findings and the court was of the opinion that without the notes of evidence, it was impossible for the court to consider those conflicts. Nowhere in that ruling did the court lay down any invariable rule of practice, that an application for bail should not be entertained unless and until the notes of evidence were available to the court. I do not think that it was the intention of the appellate court to stipulate that the availability of the whole record of proceedings was a sine qua non or condition precedent for entertaining an application for bail pending the hearing of an appeal. In my humble view, if the judgment is self-revealing, the court can act on it in considering the grant of bail.

But for the purposes of my ruling I wish to revert to the third principle laid down in the Owusu case (supra) namely that bail may be granted where the court is satisfied that the conviction is prima facie erroneous in law. I have considered the judgment very carefully and my inclination is that there is a prima facie error in law. Throughout the judgment, the trial court rejected the oral evidence of the applicant on oath and preferred and relied on a confession statement which the trial court classified as a voluntary statement. In that confession statement, the applicant is alleged to have stated that, and I quote the judgment:

“Before he handed that order to him the sixth prosecution witness told him that he wanted a commission for himself, otherwise he would make the purchase elsewhere. He tried to convince him to forego the commission but he insisted and he therefore yielded and agreed to give him the commission.”

It appears from the confession statement also that the applicant bought the articles, inflated the prices, resold them and out of the profits he paid the commission to the sixth prosecution witness. The trial court itself admitted that the applicant committed no crimes by selling the articles at the inflated prices. The only crime he committed was that he paid commissions to the sixth prosecution witness

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and these payments amounted to corruption. The trial court accepted the whole of the confession statement and as such the trial court was bound to consider not only the facts disfavourable to the applicant but also facts favourable to the applicant. Nowhere in the judgment is there any rejection of the applicant’s story in the confession statement that the sixth prosecution witness demanded the commission and he had to yield. The law on this aspect of the evidence is well-settled and I shall quote from paragraph 1128 of Archbold’s Criminal Pleading Evidence and Practice (36th ed.):

“In all cases the whole of the confession should be given in evidence; for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he had made such assertion, but as admissible evidence of the matter alleged by him in his discharge.”

The trial court also admitted that the prosecution elicited from the sixth prosecution witness, the recipient of the moneys, nothing vital to their case beyond his admission that he took the cheques. But is there in the judgment, any finding of fact as to whether or not the sixth prosecution witness did or did not make any demand from the applicant? Was this question answered? I think not. If indeed, there was a demand as stated by the applicant, then the trial court would have had to consider whether any offence had been committed and if so by whom?

I have considered this application very carefully and I hold that the judgment is prima facie erroneous in law and as the appeal will probably succeed, I think there will be miscarriage of justice if bail is refused. Imprisonment involves deprivation of one’s liberty however short the period of deprivation and no man should be made to suffer loss of his liberty except under the law of the land.

For the above reasons, the application is granted. Accordingly, the sentence imposed by the court below is suspended and it is hereby ordered that the applicant should be released from confinement upon his executing a bail bond in the sum of N¢2,000.00 with two sureties in the sum of N¢1,000.00 each. DECISION Application granted.

F. S. T.