DARKURUGU vs. THE REPUBLIC [1989]DLHC577

Date	1989-03-03
Suit No.
Citation No.	[1989]DLHC577

BENIN J.

MUHAMMAD MUMUNI FOR THE APPELLANT.

AGBOLOSOO SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1989]DLHC577
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													<main id="main" class="content" style="min-height: 60rem" >DARKURUGU <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90] 1 GLR 308<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:
3 MARCH 1988<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">

MUHAMMAD MUMUNI FOR THE APPELLANT.<o:p></o:p>

AGBOLOSOO, SENIOR STATE ATTORNEY, FOR THE
REPUBLIC.<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">

BENIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENIN J.<o:p></o:p>Professor
Amissah in his book Criminal Procedure in Ghana (1982) at 109 writes that, “A
plea of guilty is a judicial confession which disposes of the obligation on the
prosecution to prove the case.” This statement is true having regard to the
provision contained in section 239 (1) of the Criminal Procedure Code, 1960
(Act 30) which enacts that “A plea of guilty, when recorded, shall constitute a
conviction.” Provisions similar to those contained in our Act 30 have been in
existence for long in other common law jurisdictions. In the United States, for
instance, the Supreme Court has held in the case of Machibrode v. United
States, 368 U.S. 487 at 493 quoting Kercheval v. United States, 274 U.S. 220 at
223 (1927) that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“A plea
of guilty differs in purpose and effect from a mere admission or an
extra-judicial confession; it is itself a conviction. Like a verdict of a jury
it is conclusive. More is not required; the court has nothing to do but give
judgment and sentence.”<o:p></o:p><o:p>&nbsp;</o:p>The
foregoing represent, broadly speaking, the state of the law with regard to
guilty pleas. That being so, it will seem at first blush that once the record
shows a plea of guilty that should be the end of the matter and the conviction
should stand. However, there have been several judicial decisions, which I am
unable to find any reason to doubt, which show that a plea of guilty even
though recorded can still be set aside on appeal if certain legal requirements
are not satisfied. I shall refer to two of such decisions. In Alpha Zabrama v.
The Republic [1976] 1 G.L.R. 291 at 302-303, Taylor J. (as he then was) set out
certain circumstances which would justify an appellate court setting aside a
conviction based on a plea of guilty. These circumstances are very pertinent
and instructive indeed. And in Kwaku v. The Republic [1978] G.L.R. 279 the
court took the view that once there were some facts which would negate a plea
of guilty the court ought not to accept the plea of guilty and if it is so
wrongly accepted a conviction thereon would be set aside.<o:p></o:p><o:p>&nbsp;</o:p>Section
171 (2) of Act 30 provides, inter alia, that if an accused in a summary trial
pleads guilty,<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“the plea
shall be recorded as nearly as possible in the words used ... and the Court
shall convict the accused person and pass sentence or make an order against
him, unless there shall appear to it sufficient cause to the contrary.”<o:p></o:p><o:p>&nbsp;</o:p>(The
emphasis is mine.) This provision, to my mind, casts more than ordinary and
passive supervisory role on the trial court. Judging from the circumstances
outlined by Taylor J. (as he then was) in Alpha Zabrama v. The Republic (supra)
it will clearly be seen that the trial magistrate or judge is expected to play
an active role to ensure that the accused actually intended to plead guilty to
the charge. Amissah in his book referred to above at 109-110 puts it this way:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“If after
hearing the explanation or other words of the accused 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 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. Thus in R. v.
Muambo [(1941) 7 W.A.C.A. 27] the accused pleaded guilty but the record showed
that he did not intend to admit the facts constituting his guilt. It was held
by the West African Court of Appeal that a plea of not guilty should have been
entered and the proceedings subsequent to the plea was declared a nullity.”<o:p></o:p><o:p>&nbsp;</o:p>