NOTETIO VRS REPUBLIC (H2/3/2023) [2023] GHACA 168 (7 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA-GHANA CORAM: ANTHONY OPPONG JA (PRESIDING) CYRA PAMELA KORANTENG JA GIFTY AGYEI ADDO JA SUIT NO H2/3/2023 7TH DECEMBER 2023 NOTETIO @ KWAME ANTHONY APPELLANT VERSUS THE REPUBLIC RESPONDENT J U D G M E N T GIFTY AGYEI ADDO, JA INTRODUCTION My Lords, the principal issues that we are confronted with in this appeal are whether or not the offence for which the Appellant herein was charged and arraigned before the trial court is supported by the facts as presented by the prosecution and also, whether the trial court was right in rejecting the explanation added to the Appellant’s plea of guilty with explanation and entering a guilty plea for the Appellant. These issues, were answered in the affirmative by the first Appellate Court. Dissatisfied with the position taken, the Appellant has further supplicated before us. BACKGROUND AND FACTS The Appellant, together with four others, were arraigned before the Circuit Court, Tarkwa, on charges of conspiracy to commit robbery contrary to Section 23 and 149 of the Criminal Offences Act, 1960 (Act 29) and robbery contrary to Section 149 of Act 29. 1 | P a g e CONVICTION AND SENTENCE BY THE TRIAL COURT At the trial, the Appellant pleaded guilty with explanation. His explanation was rejected by the trial court and in consequence, he was convicted for the crimes. He was sentenced to sixty (60) years in hard labour on each count to run concurrently. The trial judge pronounced as follows: The explanation of A1 is rejected. He is convicted on counts 1 and 2 and sentenced to 60 years IHL on each count to run concurrently. In sentencing the Accused I have taken into accounts the circumstances of the case and the upsurge in robbery cases of late and the need to help people have the accused away for long time so that the law abiding citizens will live in peace. APPEAL TO THE HIGH COURT Per a petition of Appeal dated 11th March 2022, the Appellant appealed against the conviction and sentence by the trial court to the High Court, Accra. On the following grounds: (i) The trial Judge erred by convicting the Appellant on his explanation which did not amount to guilty. (ii) That the conviction is not supported by the evidence on record. (iii) That the trial Judge failed to consider Appellant as a first time and young offender as mitigating factor in imposing the sentence. (iv) That the sentence imposed on the Appellant is harsh and excessive in all the circumstance of the case. 2 | P a g e In a judgment delivered on the 29th day of June 2022, the High Court dismissed the appeal in its entirety. At pages 4 and 5 of the decision, found at pages 34 to 35 of the Record of Appeal, the court reasoned as follows: In his written submission Appellant Counsel has submitted at length that the conviction and sentencing of the Appellant was done without any evidence. What evidence is the Appellant looking for when the appellant pleaded Guilty with Explanation. The Explanation that it was the woman who asked them to take the GHC4,100.00 although she agreed to pay them GHC350.00 per year. Indeed the explanation offered by the Appellant after he pleaded Guilty to the charges is unacceptable in any form and led the Court to conclude correctly that Appellant was Guilty simpliciter. When Counsel submit in their written submission that accused should have been considered on mitigation grounds as they are young and first offenders, they tend to forget that ordinarily a young and first offender will not engage in grave offences like Robbery and threat of death. It is this Court’s view that anybody who commits grave offences like robbery is an experienced offender who has derived his experience form time tested criminal operations he has gotten himself into. On the basis of the findings supra, the Court will not do anything to disturb the judgment of the Court below but only affirm the lower Court decision. The Appeal consequently fails. APPEAL TO THE COURT OF APPEAL Also dissatisfied with the judgment of the High Court, the Appellant launched an appeal to this Court on the 20th September 2023, per a notice of appeal, with the following grounds: 3 | P a g e 1. The High Court decision affirming the judgment of the lower Court cannot be supported by the evidence on record. 2. The sentence is harsh and Excessive The Appellant prays for the setting aside of the decision of the High Court, Tarkwa, affirming the trial court’s decision. And secondly, reduction in sentence. It is interesting that the Appellant does not seek ground 2 as an alternative relief in the event that the first principal relief fails. In doing justice, the Court shall construe ground 2 as an alternative relief as same will become spent upon the grant of the first relief. GROUND 1: THE HIGH COURT DECISION AFFIRMING THE JUDGMENT OF THE LOWER COURT CANNOT BE SUPPORTED BY THE EVIDENCE ON RECORD As stated, at the trial, the Appellant pleaded guilty with explanation. His explanation was rejected by the trial court and in consequence, he was convicted for the crimes. He was sentenced to sixty (60) years in hard labour on each count to run concurrently. In his written submissions to this Court, one of the major arguments urged on this Court by Counsel for the Appellant is that the facts of the case do not support the charges leveled against the Appellant. As such, the trial court erred in convicting and sentencing the Appellant. It is thus crucial to detail in extenso the facts of the case as presented by the prosecution. The facts as presented per the charge sheet are that: Complainant Salamatu Abdullai is a farmer whilst accused Noitetio is a farm labourer working on the complainant’s farm at Boamah village near Ahwetieso, Tarkwa. On 7/11/10, the complainant travelled to Techiman to engage farm labourers to work on her farm. The complainant fell on first and second accused persons who later introduced her to third and fourth accused 4 | P a g e persons now at large who agreed to work for her. An agreement letter was prepared and signed by all parties at Techiman. On 14/11/10 the complainant arrived at Boamah village with third and fourth accused persons now at large and they were shown the farm which they were going to work in by the complainant, her husband and her rival. On 18/11/10 at about 10:20pm in the absence of complainant’s husband, A3 and A4 broke into the rooms of the complainant and her rival respectively and pulled them out. A3 and A4 tied the hands of the complainant and her rival with nylon rope and tied their mouths with cloth and threatened to kill them if they do not show where their husband’s money is. Out of fear they showed them a suit case containing cash of GHC4,100.00 belonging to the husband. A3 and A4 took possession of the said suit case and fled. The complainants own investigation led to the arrest of A1 who admitted the offence in his caution statement and mentioned A2, A3 and A4 as his accomplices. A1 further told Police his part of the money is with A5 Hanna also at large. From the record, the Appellant herein together with other persons were charged with conspiracy to commit the offence of robbery and robbery contrary to Sections 23 and 149 of Act 29. To ground a charge of the stated offences, it would have been expected from the facts that the Appellant herein would be implicated in concerting to the use of force and or using force and stealing from the complainant. However, from the facts reproduced above, there is no indication that the Appellant was present at the scene of the crime. There is also no indication whatsoever of his involvement in the offence complained of. Indeed, the persons who are stated to be the perpetrators of the alleged offence do not include the Appellant but rather the 3rd and 4th accused persons. It is therefore wondered the basis for which the Appellant was charged and arraigned before court. We note at the tail end of the facts of the prosecution that the Appellant was charged for the alleged offence not on the basis of the prosecution’s investigations but rather on the following grounds: 5 | P a g e The complainants own investigation led to the arrest of A1 who admitted the offence in his caution statement and mentioned A2, A3 and A4 as his accomplices. A1 further told Police his part of the money is with A5 Hanna also at large. We cannot but agree with the Appellant that the facts as narrated by the prosecution do not support the charge. THE PLEA OF THE APPELLANT It is also the view of the Court that assuming for discussion sake that the Appellant was properly charged with the alleged offences, his conviction and sentence should be set aside for the reasons below expressed: The Appellant herein pleaded guilty with explanation. His explanation was as follows: It was the woman herself who said we should take the GHC4,100.00 away though we said we would have been paid GHC350.00 as year. She allowed us to take the money when we have worked for a week. At the stage an accused is invited to plead, three options are open to him: 1. He may opt to plead guilty to the charge. 2. He may plead not guilty to the charge. 3. He may also refuse or fail to plead to the charge. It must be pointed out that regarding the plea of guilty, same may be made simplicter or be accompanied with some words or explanation. It is settled law that where the accused pleads guilty accompanied by some form of explanation, which explanation 6 | P a g e is not fanciful, but casts doubt on the genuineness of the plea, the court must enter a plea of not guilty. This is because the law expects that an admission of guilt must be genuine and devoid of controversy since it amounts to a judicial confession to having committed an offence with dire consequence. Thus, a plea of guilty is considered as a prima facie confession of guilt unless same is rebutted by the explanation of the accused. Therefore, whenever an accused person accompanies his or her guilty plea with words, the trial court is duty bound to have same recorde, evaluate same to ascertain whether the accompanying words or explanation have the potency of implicating the guilty plea to not guilty. Where the court is convinced that the explanation is not fanciful or merely goes to mitigation, the court must enter a plea of not guilty. In the case of NOKWE VRS: THE REPUBLIC [1999-2000] GLR 49, the court expatiated on the two main modes of pleading in criminal trials as follows: It must be stated that Act 30 provides for two pleas, namely “Guilty” and “Not Guilty”. However, as a matter of practice, our courts have tended to accept a plea which is to the effect of “Guilty with explanation.” Much as this was not provided for by Act 30, one cannot deny that it has become part of our criminal jurisprudence, thus, forming part of our criminal procedure and as such when such pleas are received by the courts, they should only convict when the explanation is not such as in the words of section 171 (2) of Act 30 constitute “a sufficent cause to the contrary.” In my view, a plea should be quite clear and unambiguous and therefore when an accused pleads guilty to a charge but adds by way of explanation words which negative the plea of guilty by rendering the said plea equivocal then, in the words of section 171 (2) of Act 30, the said person has given “sufficient cause to the contrary”; in which the trial 7 | P a g e judge is disabled from proceeding to convict by entering a plea of not guilty on his behalf. In the recent decision of KOFI DARGATI, KADRI (AT LARGE), PROVY (AT LARGE) VRS: THE REPUBLIC, CRIMINAL APPEAL NO. H2/93/2015, dated 29th February 2016, this Court at page 5 of its decision held as follows: By judicial convention and not statutory, our courts also accept a plea of guilty with explanation. On this type of plea, A. N. E. Amissah in Criminal Procedure in Ghana at page 109 observed that “This may actually mean a plea of not guilty when the explanation comes out or it may only mean that the accused is in fact guilty but has something to say in mitigation of punishment.” Additional to that, the explanation of the accused may tend to show that, the admitted facts notwithstanding, the accused committed no offence in law -see Kofi @ Fiozo vrs The State [1965] GR 28. For these reasons and others, the pea of accused and any additional words used must be recorded by the court as far as possible in the words of the accused. Further, in R VRS: GOLATHAN (1915) 11 CRIMINAL APPEAL CASE 79, the accused was charged with entering a dwelling house by night with the intention to steal. He pleaded guilty but added that his entry was not to steal. He was nonetheless convicted by the court of first instance. On appeal to the Court of Appeal, it was held that his plea of guilty was ambiguous and that the court ought to have entered a plea of not guilty. The conviction was accordingly quashed. Similarly, in R VRS: FIELD (1943) 29 CRIMINAL APPEAL CASE 151, the accused was charged with aiding and abetting two of his daughters in concealment of them. He pleaded guilty of harbouring. The court held, that the plea was not complete and that a plea of guilty must be beyond dispute. He accordingly succeeded on appeal. 8 | P a g e Indeed, where an accused person is unrepresented at his trial, the trial court must take that special situation in explaining the consequences of the interplay of the law and rules of evidence as regards its utilisation in favour of or against the accused. The Evidence Act, 1975 (NRCD 323) solves this situation when it explains under Section 178 (2) that: In applying this Decree and in particular in determining whether and to what extent to exercise its power under section 8, the court shall have special regard to the fair application of this Decree in respect of a party not represented by a lawyer. The proposition is supported by the case of FIADJOE VRS: THE STATE [1965] GLR 28, which postulates that where an accused is not represented by Counsel and he pleads guilty, the judge must explain the consequences of the plea to the accused. Finally, in BENJAMIN DANKWAH AND ANOTHER VRS: THE REPUBLIC, CRIMINAL APPEAL NO. H2/11/19, dated 30th April 2019, the court pronounced as follows: In the proceedings following the plea of guilty, any statement made by the accused in answer to the court must be recorded by the court in writing and should form part of the record of proceedings. Where the accused pleads guilty but adds words indicating that he may have a defence or gives that indication in his answer to the court, the court must enter a plea of not guilty and record it as having been entered by the order of the court. Quite often when an accused pleads that he is “guilty with explanation” he may actually mean a plea of not guilty when the explanation comes out or it may mean he is in fact guilty but saying something towards mitigation of punishment. It is therefore obligatory on such trial judge to record the explanation or other statements of the accused to form part of the records. An appellate court, for example, would want to know why the plea of guilty was accepted by the trial court in one case and not 9 | P a g e in the other. See (i) Section 199(3) & (4) of Act 30 (ii) The State vrs Adam Mamprusi [1965] CC 127(iii). The State vrs Poku [1967] CC 31. If after hearing the explanation or “other words” of the accused and the trial court is of the opinion that the plea should be one of not guilty, it ought to alter the plea of the accused accordingly. Any explanation inconsistent with a plea of guilty should cause the court to take this course and to proceed with the trial. Should the trial court decide not to alter the plea, the appellate court has the right on an appeal against conviction, to order a re-trial if in its opinion a plea of not guilty should have been entered by the trial court. The law is trite, that in criminal trials, where the accused person pleads guilty to a charge the court must record (1) The facts of the case to enable one to know whether they support the charge; and (2) any explanation that the accused offers as to whether the accused really meant to plead guilty. If his explanation is inconsistent with a plea of guilty the court must enter a plea of not guilty and proceed to trial. Section 199 (3) of Act 30, 1960 states; (3) Any statement made by the accused in answer to the court shall be recorded by the court in writing and shall form part of the record of the proceedings. (4) where the accused pleads guilty but adds words indicating that he may have a defence or so indicates in answer to the court, the court shall enter a plea of not guilty and record it as having been entered by order of the court. In pleading guilty, these are the words that followed the Appellant’s plea: It was the woman who said we should take the GHC4,100.00 away although we said we would have been paid GHc350.00 a year. She allowed us to take the money when we have worked for a week. Both the court of first instance, and the first appellate court rejected the explanation of the Appellant. For the first appellate court, the court described the explanation as 10 | P a g e “unacceptable in any form” and that the trial court was right in concluding that the Appellant was guilty simpliciter. Interestingly, there was no attempt to point out what makes the explanation unacceptable in any form, whether same went to affirm the guilt of the Appellant, or was by way of mitigation or was fanciful. With much deference to the courts below, the explanation of the Appellant, literally construed, suggests that the amount alleged to have been stolen, as the basis of the offence of stealing, an ingredient of robbery and indeed conspiracy to rob, was voluntarily given the Appellant and his cohorts by the complainant. This, according to the Appellant, was notwithstanding that they had worked for just a week. Both the trial and first appellate court, failed to advert their mind to the fact, that stealing is a pertinent ingredient of the offence of robbery. Section 150 of Act 29 defines the offence of robbery as follows: A person who steals a thing commits robbery (a) if in, and for the purpose of stealing the ting, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing. Therefore, where there is absent proof of stealing, the offence of robbery fails. Clearly, by contending that the monies were freely given them, what the Appellant was putting across, if accepted at trial, would have had the potency of whittling any element of intention to steal, thereby defeating the robbery charge. Indeed, there is no evidence on record that the trial judge explained to the Appellant the import of his plea in a language he seemed to understand. 11 | P a g e It is our firm opinion therefore, that there was a mis-trial which occasioned the Appellant, a substantial miscarriage of justice. The trial court ought to have entered a plea of not guilty, having regard to the explanation that followed the “guilty plea” of the Appellant. CONCLUSION Having come to the conclusion that the facts as presented by the prosecution did not support the charges levelled against the Appellant and also that the trial judge erred in law in convicting and sentencing the Appellant having regard to the nature of his plea, the conviction and sentence of the Appellant are hereby set aside as being wrong in law. By reason of the fact that the Appellant was not tried on the merits of the charges, this Court would ordinarily have ordered a re-trial. However, considering our position that the facts of the prosecution did not ground the charges levelled against him and also for the reason that the Appellant has wrongfully been incarcerated for thirteen years, the Appellant hereby is discharged. SGD ................................. GIFTY AGYEI ADDO JA (JUSTICE OF THE COURT OF APPEAL). SGD .................................... CYRA PAMELA KORANTENG JA (JUSTICE OF THE COURT OF APPEAL). 12 | P a g e CONCURRING JUDGMENT ANTHONY OPPONG, JA: I have had the privilege and the singular advantage of reading the judgment of my learned and respected sister Gifty Agyei Addo (Mrs.) J. A. and I am in agreement with her reasoning, analysis and conclusion. I however consider that I should express myself in just some few words in amplification of the need for trial judges not to simply reject words added to a plea of guilty but rather to assess them carefully in determining whether those words undermine or negate the plea of guilty. In a criminal trial, where an accused pleads guilty with explanation or guilty with reservation or guilty with an excuse or guilty with any such like expressions, the courts must not be quick to reject the words constituting the explanation or the reservation or the excuse or any such like words the accused might have added to the plea of guilty. Rather, the words of explanation, or reservation or excuse added to the plea, which must unavoidably be recorded, must be carefully weighed and assessed to ascertain whether they contain the least perceptible defence and where the courts discern any perceptible opening of defence inherent in whatever the accused might have added to a plea of guilty, the courts must enter a plea of not guilty on behalf of the accused so as to pave the way for the merits of the case to be fully inquired into. This view is even more imperative where the accused is unrepresented and there is no record as to whether the Court explained the consequences of a plea of guilty to the unrepresented accused. The Supreme Court, citing the cases of R. v. Muanbo (1941) 7 W. A. C. A. 27 and R. v. Golathan (1915) 11 Cr. App. R. 79, held in the case of Ofei v. The State (1965) 680 that, in law, a court would not take an accused person to have admitted his guilt unless he did so in unmistakable terms or, if I may add, in clear and unequivocal understanding of what is at stake. 13 | P a g e It bears emphasis that since a plea of guilty, in essence, is an admission of committing the offence charged by an accused which obviates the prosecution of the duty to prove the guilt of the accused, the courts must always ensure that such a plea is unequivocally clear and not shrouded in any ambiguity. Indeed, whenever it could be shown that an accused person did not appreciate or understand the charge or procedure and thus pleaded guilty as a result, an appeal against conviction on his own plea may be sustainable. In Dorvlo v. The Republic (2001-2002) GLR 679, an accused who was charged with stealing sheep pleaded guilty with explanation and his explanation was that he thought the sheep was for her mother. Nevertheless, the trial circuit court convicted him on his own plea and sentenced him. On appeal against the conviction, Acquah J (as he then was) stated the law which I endorse in the following words at page 683 of the Report: “Now, because a plea of ‘guilty with explanation’ is not known to our law, a trial court cannot convict an accused on this plea unless the court has fully satisfied itself that such a plea amounts to an admission of guilt, otherwise any conviction on such a plea will be quashed on appeal. And it is for this reason that the provisions of section 171 and 199 of the Criminal Procedure Code, 1960 (Act 30) impose a mandatory duty on trial courts to ensure that the plea of the accused persons amount to that of “guilty” or “not guilty”. And section 171(4) of Act 30 even goes on to provide that where the accused refuses to plea to the charge, a plea of “not guilty” should be entered for him. The said section reads: “(4) If the accused or his advocate, as the case may be, refuses to plead, or if he does not appear and the court decides to hear the case in his absence under the provisions of section 170 a plea of not 14 | P a g e guilty shall be entered and the plea so entered shall have the same force and effect as if the same had been actually pleaded” It is therefore clear that a plea of guilty should be entered only in circumstances where the accused consciously and with full knowledge of the implications of the plea, offers such a plea; or if he offers the plea of ‘guilty with explanation’, makes such an explanation thereafter which upon a proper assessment of the said explanation undoubtedly shows that the accused admits committing the offence and thereby accepts his guilt” For the fact that appellate courts are invariably burdened with numerous appeals from convictions on pleas of “guilty with explanation” Acquah J proceeded to recommend guidelines in situations where an accused pleads “guilty with explanation” and I deem it meet to reiterate the said guidelines by way of practice direction to trial magistrate courts in particular. The guidelines were stated thus: After the charge has been read over, interpreted and fully explained to the accused who thereafter offers a plea of “guilty with explanation” the court should: 1. Record the plea 2. Record word for word, whatever explanation is offered 3. Put down in writing, to form part of the record, the court’s assessment of that explanation as to whether in the court’s opinion such an explanation amounts to an admission of guilt or not; i.e. whether by that explanation the accused admits having committed the offence 4. If the court’s conclusion from the assessment is that the explanation amounts to an admission of guilt, he should make such a recording, and proceed to convict. If the court’s conclusion is that the explanation does not amount to an admission of his guilt, the court should make such a recording and enter a plea of “not guilty” and direct the prosecution to open their case 15 | P a g e 5. If the accused after pleading ‘guilty with explanation’ fails to offer an explanation, the court should demand an explanation, and if he still refuses to offer one, the court should enter a plea of “not guilty” and proceed to take evidence. For in this situation, a plea of “guilty with explanation” without any explanation offered, does not amount to a plea of guilty. The court should assume that the accused offered no plea I will conclude by saying that if the learned trial circuit court and the High Court had adverted their attention to these wholesome guidelines, the proper thing would have been done in this case where the assessment of the explanation would have revealed some measure of negation as to the admission of guilt of the appellant as ably demonstrated by the opinion of my sister to which I have already expressed my agreement. SGD ........................... JUSTICE ANTHONY OPPONG (JUSTICE OF THE COURT OF APPPEAL) COUNSEL EMMANUEL OTOO-BOISON FOR THE APPELLANT. NANA AGYEMAN SARFO-KANTANKA (A. S. A.) FOR THE RESPONDENT. 16 | P a g e