AGYEMAN vs. THE REPUBLIC [1968]DLHC10250

Date	1968-11-07
Suit No.	G L R 1004 – 1007
Citation No.	[1968]DLHC10250

ARCHER J.

B. KWAW-SWANZY FOR THE APPELLANT.

R. A. DARKO ASSISTANT STATE ATTORNEY FOR THE REPUBLIC.

[1968]DLHC10250
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													<main id="main" class="content" style="min-height: 60rem" >AGYEMAN<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">G L
R 1004 – 1007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:&nbsp;
7TH NOVEMBER, 1968<o:p></o:p>

</div>COUNSEL:<o:p></o:p>B. KWAW-SWANZY FOR THE APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

R. A. DARKO,
ASSISTANT STATE ATTORNEY, FOR THE REPUBLIC.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;ARCHER
J.<o:p></o:p>&nbsp;The appellant was charged with stealing and
was found guilty after he had pleaded not guilty and after the prosecution had
closed their case and the appellant had stood mute throughout without cross-examining
the prosecution witnesses or giving any evidence&nbsp; from the witness-box or statement from the
dock.<o:p></o:p>&nbsp;After the first prosecution witness had
completed his examination-in-chief the accused stood mute.&nbsp; The learned circuit judge then recorded:
"Accused has been certified by the medical officer as fit to plead."
It is not clear from the record whether the court asked the appellant whether
he wished to cross-examine the witness and he stood mute.&nbsp; It is also not recorded when this medical
certificate was made available to the court.&nbsp;
If it was not before the court, from where did the learned circuit judge
get his information?<o:p></o:p>&nbsp;The same episode followed after the second
witness for the prosecution had finished his examination-in-chief.&nbsp; When the prosecution closed their case, the
court called upon the appellant to make his defence under section 174 (1) of
the Criminal Procedure Code, 1960 (Act 30).&nbsp;
The court then recorded as follows: “Accused refuses to make statement.&nbsp; Accused refused to give evidence.&nbsp; "The judgment of the court was delivered
immediately afterwards with brevity, precision and conciseness as follows:
"I find the prosecution case proved beyond all reasonable doubt.&nbsp; I find the accused guilty and I convict him
accordingly."<o:p></o:p>&nbsp;&nbsp;It is not possible to imagine what was
operating in the mind of the learned circuit judge when he reacted to the
appellant's muteness by recording that the appellant had been certified by the
medical officer that he was fit to plead.&nbsp;
Did the appellant's mute condition strike the learned judge as a
condition symptomatic with the quiescence of a person suffering from an unsound
mind?&nbsp; What was the necessity for
adverting to a medical certificate?<o:p></o:p>&nbsp;Section 133 (1) of the Criminal Procedure
Code, 1960 (Act 30), provides:<o:p></o:p>&nbsp;“133. (1) When in the course of a trial or
preliminary proceedings the Court has reason to believe that the accused is of
unsound mind and consequently incapable of making his defence, it shall enquire
into the fact of such unsoundness by causing him to be medically examined and
shall thereafter take medical and any other available evidence regarding the
state of the accused's mind."<o:p></o:p>&nbsp;It follows from the words of the section that
the court may have reason to believe that the accused is of unsound mind not
only before his plea is taken but also after his plea has been taken.<o:p></o:p>&nbsp;The medical evidence contemplated by section
133 (1) is medical evidence on oath from the witness-box and subject to
cross-examination.&nbsp; It does not empower
the court to look at a medical certificate filed or produced to the court.&nbsp; It does not also empower the court to rely on
oral information given by the prosecution to the court during the
proceedings.&nbsp; The words of section 133
(1) are mandatory and if the learned trial judge had reason to suspect insanity
on the part of the appellant, he should have ordered the medical officer who
issued the certificate, after examining the appellant, to give oral evidence.<o:p></o:p>&nbsp;There is another statutory safeguard for
accused persons.&nbsp; Section 138 of the
Criminal Procedure Code, 1960, provides:<o:p></o:p>&nbsp;" 138.&nbsp;
If the accused, though not insane, cannot be made to understand the
proceedings, the Court may proceed with the&nbsp;
trial; and, in the case of a Court other than the High Court, if the . .
. trial results, in a conviction, the proceedings shall be forwarded to the
High Court with a report of the circumstances, and the High Court shall pass
thereon such order as it thinks fit."<o:p></o:p>&nbsp;