The Charge
In summary trials-charge sheet in Indictment-Bill of Indictment
Charging is the act of assigning particular offences in a statute to the behaviour of a suspect as evidenced from the facts as well as the witness documents contained in the docket prepared by the police investigator. Where it appears that a charge is defective in form or substance, the court may order amendment, substitution, or addition of a new charge per S 176(1).Charge sheet must be signed.
Statement of Offence: Per Brobbey, the statement of offence is based on the charge creating section and not the definition section of the offence.Although not mandatory to refer to the enactment creating offence, it will be held as bad if omitted where substantial miscarriage of justice will arise per Republic v Dufa. Failure to observe the wording of the charged section may result in the acquittal of accused on argument of charge under a non-existing law per Klutse v Republic. Court has no power to convict because what was purported to be the statement of offence was in fact the particulars of offence, since no offence is charged per Datsa v Republic. Where a charge is made on a different section than section creating the offence, but particulars of offence confirms the offence charged, it is mere technicality and not result in substantial miscarriage of justice per Dochie v State.
Particulars of offence: accused must know information as to what he did, how, where, when, etc. Andoh v Republic, failure of particulars of offence which is a sine qua non is a futility to the charge and not curable by evidence.
Duplicity: S 109 each offence must be distinctively charged on one count on charge sheet, different offences flowing from same facts or similar offences however may be combined on separate counts on one charge sheet.A charge will be nullified for duplicity where an accused who committed same offence on different occasions is charged on a count or charge containing more than one offence, steal 20 pounds and later 25 pounds charged with stealing 45 pounds on one count a defect and conviction quashedwhere accused is embarrassed, trial prejudiced and miscarriage done per Commissioner of Police v Sencherey. S 110 Certain persons are charged together on one charge sheet where they commit similar or different offences arising from same or similar facts or same transaction or abet or attempt, trial not invalid for wrong charge together on same charge sheet unless objected to at plead to charge. Court may order separate trials of counts in charge sheet where necessary S111.
Lunacy Enquiries
In course of trial or preliminary proceedings at DC court is of view that accused is of unsound mind and can’t make defence, inquire into insanity as preliminary issue per S 133 to 135 which is a duty on court to inquire into insanity of accused at trial or preliminary proceedings if court believes accused is of unsound mind and incapable of making defence, which is different from S 136 & 137 of Act 30. 136 deals with preliminary trials where one appears to be of unsound mind which the court will still go ahead and proceed with hearing, 137 however has to do with during trial where at commission of crime accused was insane then defence of insanity may be upheld and shall return verdict of guilty but insane and certified copy of record to MOJ and ordered by court to criminal lunatic releasable only at president’s pleasure.
Referred to medical officer-medical report and relevant evidence on oath by medical officer-burden of proof lies on accused. Agyemang v Republic where conviction quashed on appeal on failure of trial judge to take oath of medical officer and relying only on report that accused is fit to plead to charge. Moshie v Republic insanity issue may be raised at any time by accused, prosecution or court itself-after inquiry if prima facie case against accused who is of unsound mind, recorded, proceedings postponed, bail or remanded-certified copy of record transmitted to minister of justice-may direct accused confined to lunatic asylum or suitable place-proceedings resumed only when medical officer certifies accused fit and AG informs court of intention to proceed per S 134-may continue or start de novo and if still insane, another inquiry per S 135-if accused still same and can’t understand proceedings not out of madness, trial may proceed save that if convicted, entire proceeding be transferred to HC to pass order as fit per S 138 and same per Brobbey where sane but pretends as not provided for in Act 30.
Mental Health Decree, 1972 (NRCD 30) informant may give magistrate info on oath that suspect believed to suffer insanity for safety be placed under care in psychiatric hospital, application be supported by two medical recommendations and prolong treatment may be ordered upon examination on request of chief administrator of hospital per S 8,9 of NRCD 30.
Trial
Two forms of trial, Summary which is for less serious offences and triable with only one judge determining questions of law and fact by RT, JC -with judge and two others, DC, CC -with original jurisdiction, and at times HC, Indictment which is for more serious offences and triable by the HC, either with Jury or Assessors.
Summary trial: offence is triable as such where a statue creating offence says so, or where no mode stated punishment is maximum of 6 months, or where no mode stated then summarily, per S 2(1) and S 163(2) of Act 30. No committal proceedings necessary.
DC summary jurisdiction is in respect of offences not exceeding 2 years’ imprisonment, 5 penalty units or both, and all offences but not death, life imprisonment or first-degree felony which AG decides to try summarily, per S 48 of Courts Act.
CC summary jurisdiction is in original jurisdiction is all offences except treason, death or indictable offences, per S 43 of Courts Act.
Indictable trial: Rape per Richard Banousin v Republic, Art 19(2) Treason or High Treason, S2(2) of Act 30 Offence punishable by Death, Robbery either summarily or indictment per S 149 of Amendment Criminal Procedure Act 646. Trial not brought before HC or CC unless previously before DC to commit accused for trial at HC or CC per S 44 of Act 30. Committal proceedings before DC for all indictable offences, where it’s found out whether prosecution has case on which accused should stand trial and not a trial so not to determine guilt, submitting to DC two documents, bill of indictment and summary of evidence both signed by AG or authorized per S 181. Bill contains charge(s) whilst summary contains list of witnesses, summary of their evidence to be given and list of things to be put in evidence per S 182. Titled HC not DC since it will be transmitted from DC to HC.
Summary Trial Procedure
Before trial, accused served with criminal summons (contains charge, court, etc.)
Commencement of trial: Clerk reads charge to accused, court explains to the understanding of accused.
Plea is taken in all cases except committal proceedings or murder, personally not by lawyer except where its fine or imprisonment not exceeding 3 months by letter per S 70. Mensuo v Republic, acquitted because of charge of contempt without plea taken. Guilty-Section 50(3) possible to appeal against conviction even upon pleading guilty, guilty but with words, the words are recorded and where defence seen then not guilty entered, but if guilty but asking for mitigation of sentence, then guilty per Republic v Bright, where unrepresented by lawyer judge must explain consequence of guilty plea to accused, per Fiadjoe v The State. Prosecution gives facts for judge to record to impose the required sentence upon guilty plea per Dom v Republic.
It is only after recorded facts that conviction must be made not vice versa, else a nullity per Chida v Republic. Not Guilty-Guilty plea negated by explanation per S 199(4), even where accused insists on guilt, the courts may look at any explanation or external matter and where sufficient enter not guilty per Kwaku v Republic. Failure/Refusal to Plead-autre fois convict or acquit or lack of jurisdiction per S 113 & 117. Accused may change plea at any time but this must be unconditional and willingly else a nullity and the charges read again to accused to take plea again, per S 172 and Yeboah v Republic.
Prosecution or the Court may alter (amend), substitute or change (withdraw) charges before close of its case and new plea taken and leave required for re-examination of witnesses to put across fresh or new evidenceper S 176(2). Manu v Commissioner of Police, a new charge requires newpleaand witnesses and previous testimonies not admissible in new charge.
Recording of the facts of the prosecution’s case, upon which bail may or may not be granted
Recording of explanation of accused in respect of the facts to confirm or modify the plea taken, failure renders proceeding void. Afterwards, where not guilty then taking of evidence and cross-examination per S 172. Ewudzi v Dadson, no power to strike case off or convict after facts without hearing evidence of prosecution to establish facts.
Prosecution’s case: Swearing or affirmation by witnesses per S 42 of Courts Act. Evidence in chief-no leading questions or those that prosecutor has no answer to. Cross-examination by accused on witness’ testimony or character per S 172(2), leading questions allowed. Re-Examination by prosecution, not automatic and not to lead new evidence or fill gaps but clear ambiguities. Investigator is the last witness to tender all documents. Mini-trial or voir dire is a trial within trial to determine the admissibility of a statement given to police and signed by accused not made by accusedat all or made under duress upon objection to statement per Nyarko v Republic.
Prosecution closes its case and defence may by 3 options which must be recorded, 1. submit no case on the prosecution by accused which is an interlocutory order or the court especially where further evidence will be required on an issue by prosecution, means case not proved and accused is acquitted and discharged per S 173 and Mali v The State. Judge not to make findings of facts or call for further evidence in ruling on no case submission per State v Koomson2. refuse to give any evidence or 3. open up its defence.
Accused’s case: where he decides to open defence the court makes clear to him that he may remain silent, or make a statement from the dock where prosecution can’t cross examine such statements or make statement from witness box to testify on oath or affirm where he can be cross-examined per S 174.
Defence closes its case
Addresses to the court of summary of cases after which adjournment for judgement. In practice where accused calls witness, he does so first and vice versa where he doesn’t call any per S 175.
Judgement by court with reasons and recorded in proceedings. Plea by accused for clemency or prosecution regarding sentence.
Sentence is given by court.
Indictment Trial Procedure
New S 43 of Act 459 CC can’t try indictable offences only superior courts. When accused is served with bill of indictment, date is set by DC for hearing where the magistrate determines whether there is a case against accused by examining the summary of evidence, before hearing magistrate ask accused whether he has been served with the bill and answer is noted, prosecution gives brief facts of case and what he intends to prove, accused may be permitted to respond, not a trial so no witnesses are called per S 184. Sowah J said that if after examining, charge isn’t maintainable accused discharged if maintainable accused committed, not to decide whether prosecution has made out a prima facie case for accused to answer, non-belief in witnesses’ summary of evidence can’t warrant a discharge per State v Bisa. Claim that DC trial was a nullity because no evidence was heard isn’t maintainable once procedure followed, committal is valid per Kwakye v State. Before committing, magistrate address accused to say or not to speak in answer to the charge in his own interest, court will then refer accused to optional requirement ofalibi (statutory statement per S 131that accused was elsewhere at the time the offence was committed, must give notice of it to prosecution with particulars of defence of alibi, in summary-before prosecution calls first witness, in Indictment-at committal or before trial) and explain its meaning to him and based on its truthfulness prosecution may withdraw the case or otherwise continue, before making must be cautioned else not admissible, taken down in own words by magistrate not paraphrased, read back to accused and if agrees to content both him and magistrate sign or thumbprint, alibi added to bill and sent to HC per S 187. Where statement contradicts that given to police, attention is drawn to explain himself else his credibility is questionable per Poku v State. After committal, trial should be within a month which is either by jury or assessors per S 204.
Errors committed during DC committal doesn’t invalidate the committal unless substantial miscarriage of justice is occasioned per S 193A. Prosecution or defence may apply to the court for the evidence of a witness to be taken before the trial where it appears that witness will not be available and notice of it served on other party to attend who may cross-examine, recorded and read at trial per S 200. Testimony may be preserved by judge or magistrate where person dangerously ill or unlikely to recover is willing to give on oath info relating to indictable offence, notice being served on both partiesand signed by judge per S 194-197.
Art 19(2) except treason or high treason, death and life imprisonment be tried by jury, death unanimous but life then majority. Jury trial per S 245 guilt determined by jury on judge’s directions. Seven in number, men or women between 25-60 years’ resident in Gh. understands English, selected each year from list by magistrate of qualified persons in district, paste at court house for 3 weeks per S 205. Settled list signed and copies to HC and CC. Excluded persons per S 207, especially convicted of offence involving dishonesty. Court Sheriff cause names of jurors written on separate cards and draws 7 number as court direct per S 214. Indictable offence is by jury or assessors per S 204.
Assessor trial per S 228 guilt determined by judge alone assessors merely help arrival at conclusion, qualification same as jury but no women until new S 227 of Act 30 include women, not less than 3 in number based on case per S 260, no pre-emptory challenge only challenge for cause, no adjournment where 1 absent unless 2 unlike jury S 262, can’t try death or life imprisonment, don’t ask questions or info and no foreman, never leaves the courtroom, unlike jury not mandatory for judge to direct jury to apply presumed facts per S 23 of Act 323, sum up of only evidence of prosecution and defence to assessors but may touch on the law per Agyemang v State. Republic v Maikankan SC held that the offence not punishable by death was properly tried by jury at the direction of the judge which is discretionary, Art 20(2) didn’t abolish assessor’s trial or alter provisions of codeof S 242.
HC Trial: Arraignment per S 231, names drawn from box until required number per S 246. Accused warned to challenge before the jurors are sworn S 249. Peremptory challenge by accused only of 3 jurors without assigning reason S 250. Challenge for cause after exhaustion of peremptory with reasons by both parties per S 251. Every challenge objected to must be tried by court without jury and cause may be done before peremptory challenge per S 252. After jurors swearing, they appoint a foreman or if difficulty court appoints per S 253, who preside, ask info and give verdict on behalf of jury per S 254. Officer of court then gives accused in charge of the jury per S 255, i.e. inform them after sworn of charge in indictment and their duty as jurors on trial. Unlike Assessors, Jury may be kept together upon adjournment per S 258(1). Grounds for disqualification and exemption from service for non-attendance without justification per S 230.
Bill of indictment read to the accused S 198. Judgement given is based on verdict of jury without ascertaining from them reasons unlike assessors per S 285(1)
Accused pleads to the indictment S 199.Plea of guilt constitutes conviction per S 239. Insane person’s refusal to plead S 133. Accused may plead to a lesser offence and jury will rise to pronounce guilt per S 239, e.g. Murder charge but pleads manslaughter.
Evidence adduces, chief, cross examination, re-examination, jury may ask questions and judge may give opinion to jury but must tell them it isn’t binding on them. At end of prosecution’s evidence and caution statement of accused is objected to documents or submission of no case (where prosecution fails to prove case judge may direct jury to come to a certain conclusion or totally withdraw facts from its consideration), a mini trial in absence of jury is conducted, where upheld foreman pronounces accused acquitted. Whether there is a case to answer for prosecution is solely vested in judge not assessor or their opinion per Armah v State. Where one jury is absent and doesn’t appear again, case is started de novo even if all witnesses called per S 257(1).
Day is set aside for addresses and summing-up.
S 277 Judge’s duty to sum up: decides all questions of law, relevance of evidence, which questions are admissible, construction of documents, opinion on evidence led but must inform jury it isn’t binding on them, sum up prosecution’s case and evaluate evidence, does same for accused, address any defence arising though not raised by accused else misdirection by non-direction which inure to accused’s benefit per State v Kwame Amo.
Summing up per Republic v Ojojo judge usurped his powers when he directed jury that their verdict should be guilty of murder, as the explanation of the accused wasn’t confession of murder but raised defences of provocation and self-defence which are questions to be left to jury but which the judge never considered in direction or by himself, and same was a miscarriage of justice Outline of a good Summing up: Case of Prosecution-Case of Defence-Charge and the applicable law-Who bears burden of persuasion-standard of proof-Jury reminded of non-binding judge’s decision-Contentious issue within matter-Mode of Presumption-Role of Jury-Remind Jury effect of their decision being either majority or unanimous-Possible verdict.
Per Duah v Rep judge is entitled in summing up to comment on law or fact in any way as to infer guilt or not where he makes clear to jury they aren’t bound by them or to rid their minds of the comments when finally left to go and decide as per S 2 of Act 323, where trial isn’t with jury judge decides fact and law questions.
Jury retire to consider verdict which is the conviction per S 279. Upon pronounce of guilt by jury or assessor or pleads guilty judge mandatorily, in the absence of which is nullity of whole proceedings, asks accused whether he has anything to say why sentence should not be passed according to law per S 288. An opportunity to plead mitigation. Before sentence also may apply for motion on notice in arrest of judgement supported by affidavit i.e. discovery of nullity of proceedings before sentence at any time of the trial per S 289.In application disqualification of juror isn’t a good ground per S 292.
Before conviction motion that offence of keeping human excrement on premises as wrong charge was upheld and discharged and acquitted per R v Binney. Per Collins alias Derby v Republic when jury returns verdict they become functus officio and the judge is justified in directing jury to reconsider matter where jury had previously disclosed non-unanimity, since that wasn’t a verdict.
Sentence passed by judge. After sentencing, judge writes memo on case in which prerogative writ of mercy can be applied for, if death sentence automatic appeal within 30 days.
Difference between Trials
Assessors: at least 3 in number S 260(1) of Act 30, trial of both law and fact as advisory role, selected by judge discretionary, formerly only men but now both men and women, can’t try offences death or life imprisonment punishment Art 19(2)(a) S 245 of Act 30, advise the judge, accused may challenge for cause only, accused person not put in charge of assessors, no foreman, judge sums up only evidence to assessors.
Jury: 7 in number S 266 of Act 30, trial of questions of fact, accused can challenge under pre-emptory as well as for cause, jury in charge of accused person, foreman appointed among jury, in submission of no case judge directs jury to return verdict of guilt if succeeds, judge sums up law and evidence to jury S 272.
Similarities: S 204 both tries indictable offences, both must be preceded by committal proceedings, S 227(1) S 207 of Act 30 both members are 25-60 years of age, resident and understands English, both have same mode of disqualification, both have same ground for challenge for cause, same punishment of members for misconduct S sections 222 223 224 226
Juvenile Trial Procedure
Article 57(5) president not personally liable to criminal or civil proceedings whilst in office, thus the assumption of full age and capacity are exempted in certain conditions, infancy, mental incapacity. S 26 of Act 29 a person below 12 years not liable to crimes. S 1(1) Juvenile Justice Act, 2003 (653) Juvenile is a person under 18 years in conflict with the law. Tried by juvenile court but courts of summary jurisdiction where tried with an adult but case remitted to juvenile court for sentence per S 17(3)&18(1).
S 49(2) of Act 620 CJ the Presiding Magistrate and two others, social welfare and another of not less than 25 years, appointed on recommendation of the Director of Social Welfare. Proceedings governed by Act 30. Panel is same for family tribunal case. Act 30 governs procedure since criminal but best interest of juvenile and welfare is upheld, no tarnishing of images S 2 and respected rights to privacy, no publication of identity, S 3 of Act 653. Unless submit to arrest, not touch unless refusal and reasonable force applied S 4 of Act 653. Caution is informal and no record of it is made, formal caution in private in presence of parents, guardians with or without conditions, record of formal caution made available to the social welfare department S 12. No interviewing unless presence of parent or guardian or lawyer or probation officer where there’s none S 13. May be granted self-recognizance bail or on recognizance of a relative S 14. Detained at cells designated for juveniles per S 15.
Complaint to police or magistrate
After investigations police prepare charges or issue summons for juvenile trial
Act 30 as amended by Act 653 excepts the court sits in different building or room S 16(1) of Act 653; in camera S 16(2) of Act 653 presence of authorized parents, witnesses, counsels, social welfare and court officials; informal proceedings police in mufti; court administered by Registrar of DC. Bail application per S 21 of Act 653 executed by parent or guardian not himself.
Pleads; if not guilty but court want to keep him in custody then commit him to care of parent or guardian or a remand home per S 23 of Act 653. Remand order of offence juvenile pleads not guilty and not punishable by imprisonment was abuse of discretion and bail granted per Osei v Republic .
Evidence led Per S 24(1) of Act 653 court must order social enquiry report and must inform juvenile and guardian of report.
Convicted or acquitted. After conviction, juvenile sentenced under S 29 of Act 653-discharge conditional or unconditional S 29(1a), entry into recognisance to be of good behaviour S 30, release under probation S 31 where the probation order is valid for not less than 6 months and more than 18 months, probation is grace period within which juvenile won’t be given original sentence where he complies with conditions of not committing another offence, period can be extended for any long period unlike a supervision order which can only extended less 3 years, factors guiding court in making probation order nature of offence, character, interest of juvenile, antecedents, home surroundings, be supervised by probation officer of his district. committed to care S 29(1d), detention in correctional centres S 29(1e), fine S 29(1f), parents pay fine29(1g) only if contributed to crime commission by failure to exercise due care over juvenile per Donkor v Republic.
Appeal is to HC of conviction or sentence or parent’s payment of fine, damages or cost per S 21(1) of Act 620
No pronounce of death sentence or imprisonment S 32 of Act 653, where tried with adult conviction can’t be questioned by juvenile court in passing sentence on remission since no review or appellate powers over summary court. Previous convictions not taken into account considering sentence S 30(4) per Abbot v Republic. Detained in junior correctional centres not senior correctional centres unless desired per S 39(3) of Act 653. Relative, juvenile convict or probation officer for expunge order after 5 years or 10 years if no new offence committed or sentence completed but not forserious offences.
A court of summary jurisdiction (DC, CC, HC or RT) may try case involving juvenile where, offence committed in a place where no juvenile court exists, charged with adult, charged with offence which if charged with adult is punishable by death, commission of serious offence per S 68(8) such as murder, rape, defilement, robbery, indecent assault involving unlawful harm, drug offences and offences relating to firearms.