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 VIII WACA 134
BEFORE THEIR LORDSHIPS:
LINGLEY, AG. J.
Sarkodee-Adoo for the Appellants.
CRIMINAL LAW AND PROCEDURE:- Offences against the safety of the State – Charges under section 324 of the Gold Coast Criminal Code – How proved
CRIMINAL LAW AND PROCEDURE:- Plea of Alibi – Omission by judge in case tried by assessors to state specifically that the failure of an alibi does not lessen onus laid upon prosecution – Whether not fatal
CRIMINAL LAW AND PROCEDURE:- Indictment, Conviction and Sentencing – Rule that no one count of the indictment should charge the defendant with having committed two or more separate offences – Test – Giving of maximum sentence upon each count to convicted persons without distinction – When justified – Relevant considerations – Duty of court to weigh mitigating circumstances
PUBLIC LAW AND JURISPRUDENCE:- Offences against the State – Need to distinguish subversive or rebellious design against the central Government from local political dispute of a violent character between two rival political factions carried out by non- professional criminals with bad records – Implication for sentencing
ELDERS LAW:- Criminal proceedings involving accused persons – Sentencing and age of convicted persons – Where older men were throughout the instigators and ring leaders, and that their influence and their authority was used to lead the younger members of the community into lawless and violent courses – attitude of court to plea for leniency on account of advanced age
CHILDREN AND WOMEN LAW:- Young people and justice administration – Young people engaging in violent conducts as minions of older political actors – Criminal conviction arising therefrom – Rule that “old and young alike that those who engage in, or lend themselves to, enterprises of this kind, in defiance of authority, cannot expect to be treated with leniency” – Implication for sentencing
PRACTICE AND PROCEDURE – COURT:- Power of Judge to amend charge at any stage of criminal proceedings – Basis – Presumption that Judge knows that law – Effect
INTERPRETATION OF STATUTE:- Headings of sub-divisions of enactments – When recourse to same is important for the purpose of construing the sections contained in those sub-divisions – Whether the rule of construction regarding headings is the same as that which regulates the effect of preambles – “That they may be taken into consideration in order to ascertain the meaning of the sections which follow if the meaning of these sections is doubtful, but not otherwise” – Effect
The following judgment was delivered:
In this case, the applications for leave to appeal on the facts were refused, but the appellants also appealed on a number of grounds of law upon which arguments were addressed to us by counsel.
First, it was submitted that the nature of the case was not such as to support charges under section 324 of the Criminal Code since that section appears in Title 23 of the Code, under the heading “ Offences against the Safety of the State.” It was contended that recourse must be had to that heading in order to understand section 324 and the various sections grouped under the heading and that the sections should be construed as relating only to such offences as can be said to be directed against the Government of the Gold Coast. Applying that test, it was then argued that section 324 was not applicable to the facts of this case, and that the charges should have been confined to certain sections in Title 24 under which they had been laid in the first instance, since the heading of that Title reads “ Offences against the Public Peace.”
As to the latter part of this argument, it is not uncommon for offences to be chargeable under more than one section. The decision as to which is the appropriate section is a matter left to the discretion of the Attorney-General. Indeed, the fact that in the present case, charges were finally framed under section 324 may well be an indication of the serious view taken by the Law Officers when they came to consider the allegations and all the attendant circumstances.
The contention that all the provisions under Title 23 are to be read as being restricted to offences against the Government of the Gold Coast is one which we are unable to accept. But in any event, the maintenance of law and order is—or should be—one of the first responsibilities of the State. It is a prerequisite not only of the safety of the State but of its very existence; and it is pertinent to observe, in this connection, that the main heading of Part 9 of the Criminal Code—of which Title 23 is merely a sub-division-is expressed as “ Offences against Public Order, Health and Morality.” It is not easy to understand, therefore, how it can be argued that attacks made against the police – the servants employed by the State to ensure law and order-do not constitute “ Offences against the safety of the State.” That is not to say, of course, that offences against the State under that section are to be taken to be limited, in the case of armed attack to attacks against the servants of Government armed or unarmed; the words “any persons“ are not, in our opinion, to be read in any such narrow sense, but their ordinary and natural meaning.
Apart, however, from such considerations, which in part may be peculiar to this case, we take the view, as already indicated, that the suggested interpretation restricting offences under Title 23 to offences directly against the Gold Coast Government cannot properly be applied to the various provisions under the Title: nor do we think that the ejusdem generis rule can possibly be stretched as it has been submitted that it should be-so as to require those provisions to be read together with the heading to the Title. The varied character of the different sections grouped under the Title is fatal to the success of the legal arguments addressed to us. To illustrate this, we desire to refer only to two of them, namely to section 334 which deals with piracy—an offence not primarily against the Gold Coast Government, but against the jus gentium—and to section 335, which is concerned with unlawful oaths in relation, to the commission of any offence.
Before passing from this part of the appellant’s arguments, we wish to refer briefly to the circumstances in which it is sometimes considered proper to have recourse to the headings of sub-divisions of enactments for the purpose of construing the sections contained in those sub-divisions. Mr. Sarkodee-Adoo addressed us at some length on this aspect of the matter and endeavoured to show from the authorities that the present case is essentially one where such a procedure should have been followed. We do not think that it is. The rule of construction regarding headings is the same as that which regulates the effect of preambles; that rule is abundantly clear, namely, that they may be taken into consideration in order to ascertain the meaning of the sections which follow if the meaning of these sections is doubtful, but not otherwise. In the present case, it seems to us that the meaning of section 324 is clear and unambiguous, and that there was therefore no necessity to look at the headings to explain, still less to restrict, its purpose. The only question, then, for this Court to decide was whether there was evidence to support the charges under the section.
The second argument on behalf of the appellants related to an amendment made by the Judge-admittedly at a late stage of the trial – to the charges under the first and second counts, by which the word “armed“ was inserted in front of the word “force“ to conform with the wording of the section. Crown Counsel informed the Court that the word had been omitted by mistake, and it does not appear that any objection was taken to the form of the information by the defence at the beginning of the trial. It is clear that the learned judge was fully entitled to order the amendment: indeed he was bound to do so if he could satisfy himself (as he records that he did) that no injustice was occasioned thereby to the accused. His duty in this respect is made plain by the observations of Hewart, L.C.J., in R. v. Fraser (1), where he said: “It was a case in which section 5 (1) of the Indictments Act, 1915, imposes a duty on the Court to amend the indictment. There was no injustice, and it would have been a failure of duty on the part of the Court if the amendment had not been made.” The wording of section 5 (1) of the Indictments Act corresponds exactly with that of section 231 (2) of the Gold Coast (Cap. 10), which is the section of the local law which empowers the Court to amend information.
The case of Fraser is of considerable interest, since in that case there was a charge of obtaining by false pretences, but the indictment was defective as the very important words “with intent to defraud “ had been omitted: nevertheless, it was held by the Court of Criminal Appeal that not only was the trial judge right to allow the necessary amendment to be made to the indictment but that he was required to do so, so long as the accused was not prejudiced. In the recent case of R. v. Smith (2) an amendment which went even farther was approved by the Court of Criminal Appeal. For there, charges of obtaining money by false pretences were allowed to be amended to obtaining valuable securities in the form of cheques by false pretences. Moreover, the Court permitted the amendment to be made at the close of the case for the prosecution when the defence had submitted that there was no evidence to support the obtaining of money. The local case of R. v. Bandoh (3), which was also cited, is clearly distinguishable, since in that case the defective indictment was allowed to remain unamended, with fatal results; but we would observe- that this Court in quashing the conviction pointed out that the power to amend could, and should, have been exercised.
In the present case we are satisfied that the amendment was properly made and that the accused could not possibly have been embarrassed. The gravamen of the case was the forcible attack made by the accused, and the succeeding two counts (the third and fourth) left no room for doubt as to the weapons which were alleged to have been used; nor did the evidence adduced by the prosecution, which throughout was directed to supporting charges of the use of armed force and to indicating the various weapons used by different individuals.
Counsel for the appellants also addressed us upon Ground 3 (3) of the grounds of appeal, which contains a suggestion that the learned trial judge did not rightly direct his mind to the rule of law that the failure of an alibi does not lessen the onus laid upon the prosecution. But a judge is presumed to know the law (ex p. Markham (4)) unless there is something in his judgment which gives a contrary indication. We can find nothing of the sort here, and nothing to support the submission that the learned judge can be shown to have regarded an unsuccessful alibi as a proof of guilt. Moreover, this was a case tried, not with a jury, but with the aid of assessors. In such trials the decision, after the assessors have given their opinions, rests “exclusively in the judge “ (section 264 of Cap. 10, and the case of R. v. Wuseni (5) ) – a point which is sometimes overlooked – and therefore the judgment as it appears on the record in such cases, is to be considered in the light of that section and of section 286 of the Criminal Procedure Code, where the task of the judge is set out in the following words: ”When in a case tried with assessors the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence.”
There remains only the final ground of appeal, Ground 3 (4), where it is alleged that there cannot properly be convictions for both the first and second counts, that is to say, both for preparing to attack and for attacking. We do not think that objection can be sustained. Both offences are provided for in section 324 of Cap. 9; but the prosecution was careful to avoid any suggestion of duplicity by charging each offence as a separate count, thus conforming with the rule laid down by the authorities, and set out in Archibold in the following words” The indictment must not be double: that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences.” It must be remembered, moreover, that while the appellants were convicted on both of these counts, the sentences imposed were concurrent and not consecutive. All these grounds were argued with great ability by Mr. Sarkodee-Adoo, who certainly left no stone unturned in his efforts on behalf of the appellants. But for the reasons given, we are unable to accept his submissions, and we have come to the conclusion that the appeals against conviction cannot succeed, and must be dismissed in the case of each appellant.
That brings us to the question of the sentences, as to which all the appellants have appealed.
The learned trial judge followed the course of giving the maximum sentence upon each count to each of the appellants, without distinction. That is not altogether surprising, having regard to the nature of the offences and to the difficulty of differentiating between the prisoners in a case where all were shown to have taken an active part in one way or another. As, however, it is not usual to impose maximum punishments save in exceptional circumstances, we have thought it right to subject the case of each of the appellants to the most careful examination, so that the matters proved against him might be weighed with any mitigating factors.
Now, on the one hand, the conduct of the appellants unquestionably constituted a flagrant and calculated defiance of, and an armed attack upon, uniformed police; that is to say, upon persons who were quite unmistakably acting as the servants, and with the authority of, the Government. That is the kind of offence which, if it were allowed to recur, would tend to sap the very foundations of government and which, in this case, resulted in the death of one policeman and the wounding of a number of others. Moreover, these events took place at, or immediately following upon, a time when the Gold Coast was agitated by political disturbance and by widespread attempts to foment opposition to authority. In such circumstances, the element of deterrence in punishment assumes an importance, in certain classes of cases, which is absent in less turbulent times. There can be little doubt that such considerations, among others, were very properly in the mind of the learned judge when he addressed himself to the question of what were the appropriate sentences.
As against all this, it can be said in favour of the appellants generally that the trouble in which they first allowed themselves to be involved – and in consequence of which they well knew that they must expect the police to make a number of arrests – was not of itself a subversive or rebellious design against the central Government, but a local political dispute of a violent character between two rival factions. Furthermore, it is to be remembered that the appellants, though convicted of very grave offences, have not, so far as we know, been criminal in the sense in which that term is ordinarily applied to professional criminals with bad records.
It is with this background that we have scrutinized the cases of each of the appellants, and have considered whether it would be proper to make any reductions in sentence; and whether it was possible, by graduating the punishments, to mark the varying degrees of culpability of the individual appellants. Counsel for the appellants laid some stress on the advanced age of some of the appellants: but we feel bound to observe that there are indications in the evidence, that in this case the older men were throughout the instigators and ring leaders, and that their influence and their authority was used to lead the younger members of the community into lawless and violent courses. Be that as it may, it must be clearly understood by old and young alike that those who engage in, or lend themselves to, enterprises of this kind, in defiance of authority, cannot expect to be treated with leniency.
We have come to the conclusion that justice will be satisfied and the principles of punishment – including that of deterrence-properly observed by the following sentences, which we hereby substitute respectively for the sentences imposed on the appellants at the trial, and all of which are to run concurrently and from date of conviction:
Appiah Dankwa: First count, fifteen years; second count, fifteen years; third count, twelve years; fourth count, two years.
Kofi Amoah: First count, ten years; second count, ten years; third count, eight years; fourth count, two years.
Appiah Dwaa: First count, twelve years; second count, twelve years; third count, ten years; fourth count, two years.
Kwasi Anin: First count, twelve years; second count, twelve years; third count, ten years; fourth count, two years.
Kwasi Appiah: First count, ten years; second count, ten years; third count, eight years; fourth count, two years.
Yaw Mirika: First count, ten years; second count, ten years; third count, eight years; fourth count, two years.
Kojo Mintah: First count, ten years; second count, ten years; third count, eight years; fourth count, two years.
Kwame Forti (Patasi): First count, twelve years; second count, twelve years; third count, ten years; fourth count, two years.
Kofi Bronya: First count, twelve years; second count, twelve years; third count, ten years; fourth count, two years.
Kojo Dwumfuo: First count, ten years; second count, ten years; third count, eight years; fourth count, two years.
Kwame Djan: First count, five years; second count, five years; third count, five years; fourth count, two years.
Kojo Dede: First count, fifteen years; second count, fifteen years; third count, twelve years; fourth count, two years.
Kojo Asubonteng: First count, ten years; second count, ten years; third count, eight years; fourth count, two years.