BOATENG vs. THE STATE [1964]DLSC1879

Date	1964-11-20
Suit No.
Citation No.	[1964]DLSC1879

OLLENNU JSC

ACOLATSE JSC

SIRIBOE J.S.C.

N. Y. B. ADADE FOR THE APPELLANT.

J.N. K. TAYLOR SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1964]DLSC1879
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													<main id="main" class="content" style="min-height: 60rem" >BOATENG <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 602<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20 NOVEMBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

N. Y. B. ADADE FOR THE APPELLANT.<o:p></o:p>

J.N. K. TAYLOR, SENIOR STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, ACOLATSE AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. On 13 October 1964, we allowed the
appeal in this case and reserved our reasons for so doing; the following are
the reasons for our decision.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was convicted by Apaloo J. (as he then was) at the High Court,
Kumasi, for abetting an abortion contrary to sections 20 (1) and 58 of the
Criminal Code, 1960,1 and sentenced to a term of ten years’ imprisonment with
hard labour. That was the minimum penalty prescribed by section 1 of the Criminal
Code (Amendment) (No.3) Act, 19632 The first defendant, a girl under the age of
fifteen years, whom the appellant was alleged to have abetted, was charged with
the substantive offence of abortion, contrary to section 58 of Act 29, and
tried together with the appellant. She was also convicted. Being precluded, by
reason of the age of the girl, from imposing a sentence of imprisonment upon
her, the court bound the first defendant over to keep the peace for a period of
four years. She has not appealed from her conviction and the said order.<o:p></o:p><o:p>&nbsp;</o:p>The
offence of the abetment of a crime, as defined in section 20 (1) of Act 29, may
only be committed if the act or omission of another party which is purposely
aided, facilitated, encouraged or promoted itself constitutes a crime.
Therefore, if it is shown that the act or omission complained of in that other
person does not amount to a crime known to our law, any act of whatever nature
which aids, facilitates, encourages or promotes the commission of that other
act, is not punishable as a crime. See Okpara v. Commissioner of Police.3 Upon
that principle the first issue to be decided in the appeal is whether the
charge of abortion preferred against the first defendant was proved. Counsel
for the appellant submitted that the prosecution failed to prove it, and that
consequently the conviction of the appellant cannot stand.<o:p></o:p><o:p>&nbsp;</o:p>To be an
offence, miscarriage by a pregnant woman must be caused intentionally and
unlawfully; miscarriage otherwise procured does not amount to the crime of
abortion. In other words, a miscarriage must be intentionally induced by some
unlawful means. Therefore, the prosecution cannot succeed on a charge of
abortion if they fail to prove beyond a reasonable doubt that the miscarriage,
the subject-matter of the charge, was intentionally or purposely induced, and
that the inducement was procured without lawful justification. Counsel for the
appellant contended that the prosecution failed to discharge that onus.<o:p></o:p><o:p>&nbsp;</o:p>The
issues in the case were simplified to a certain degree by an admission made by
the first defendant that she took a drug which she obtained from the appellant,
and an admission by the appellant that he did give a certain drug to the first
defendant as alleged by her. But while the defence said that the drug given and
taken was “super vitamin Avion” tablets, and that it was given and taken with
intent to cure the first defendant of a general weakness and sleepiness, and in
addition to give her strength, the prosecution on the other hand contended that
in all the circumstances of the case the drug taken must have been “Mensicol”
which contains abortifacient properties, and must have been taken with intent
to cause an abortion, and did in fact cause an abortion.<o:p></o:p><o:p>&nbsp;</o:p>Since the
first defendant was charged with the substantive offence of abortion, and not
with an attempt to cause an abortion, it was incumbent upon the learned judge
first and foremost to decide whether or not the miscarriage of the first
defendant was induced. If he found that the miscarriage was not induced, it
would then have been open to him by virtue of section 153 of the Criminal
Procedure Code, 1960,4 to consider whether there was evidence to establish an
attempt to commit the offence as defined in section 18 of Act 29.<o:p></o:p>