IRREGULAR CHARGE SHEETS: IS THERE A METHOD TO THIS “MADNESS”?

The Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides the means of instituting criminal proceedings in the various courts.

Article 88(2) and (3) of the Constitution stipulates that the Attorney General shall be responsible for the initiation and conduct of all prosecutions of criminal offences and all offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorized by him in accordance with any law.

Section 60 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) captioned “method of instituting criminal proceedings”, provides that subject to Article 88 of the Constitution, criminal proceedings may be instituted before a district court, by making a complaint and applying for the issue of a warrant or a summons in the manner prescribed under section 61 of Act 30, or by bringing a person arrested without a warrant before the court on a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against the person and the time when and the place where the offence is alleged to have been committed.

By the same provision, the charge sheet shall be signed by the police officer or public prosecutor in charge of the case and the validity of the proceedings instituted or purporting to be instituted under subsection 1 shall not be affected either by a defect in the complaint or charge sheet or by the fact that a summons or warrant was issued without a complaint, or in a case of a warrant without complaint on oath.

In the ensuing paragraphs the various components of a charge sheet will be examined and their functions discussed.

• Heading

Usually, the document containing the charge is headed by the name of the court where the trial is to take place. It is followed by the area where the court is exercising jurisdiction. This enables the person being charged to know the jurisdiction within which he or she is being charged

• Statement of Offence

The charge itself must contain two elements, namely a statement of the offence alleged to have been committed together with particulars of offence which explains the exact thing done by the accused to constitute an offence.

The statement would usually describe the offence shortly in ordinary language, avoiding as much as possible the use of technical terms, and without necessarily stating all the essential elements of the offence. Where the offence is one created by enactment, it must contain a reference to the appropriate provision in the enactment.

The first part of a charge must state the specific offence with which an accused person is charged. So in Donkor v The State [1964] GLR 598 it was stated that a charge of extortion under Section 239 of Act 29 involves extortion by a public officer or juror. A count in the information or charge which merely stated the offence as extortion without any further words to show the specific offence of extortion was inherently bad as it violated Section 112(1) of Act 30.

In the same case it was shown that the second part of a charge must give particulars of the charge. The particulars that the appellant held a public office and that he demanded and received money under colour of his office were omitted and these were matters that went to the root and formed the essence or gravamen of the offence. Their omission was fatal since the charge as it stood disclosed no offence.

• Particulars of Offence

The purpose of the particulars of offence is usually to enable the prosecutor give reasonable information as to the nature of the charge. The necessary particulars must be set out after the statement of offence in ordinary language. The use of technical terms is not necessary as is emphasized in section 112 of Act 30. In the case of indictments, it is provided that where any rule of law or enactment limits the particulars of an offence required to be given, the rule here stated cannot be taken as requiring more particulars to be given than those so required.

It is always expedient when drafting the particulars of the offence charged, to follow with some precision the wording of the section defining the crime and alleging that the accused did an act having the ingredients of the offence.

• What is the effect of an irregularity on a charge sheet?

Supplying defective particulars has often led, and may still lead to the quashing of convictions based on the charge. However, the courts are hesitant to quash convictions based only on the reason that the charge sheet is defective, especially if it is shown that the accused understood the offence he was being charged with.

Section 112 of Act 30 as amended by Act 261, Section 1 provides as follows:

“(1) Subject to the special rules as to indictments mentioned in this section, a charge, complaint, summons, warrant or any other document laid, issued or made for the purpose of or in connection with proceedings before a Court for an offence shall be sufficient if it contains a statement of the offence with which the accused person is charged, together with the particulars necessary for giving reasonable information as to the nature of the charge and although there may be a rule of law to the contrary it shall not be necessary for it to contain any further particulars other than necessary particulars”.

The issue of whether or not a defect in the charge sheet is fatal to the criminal procedure has vexed the courts for so long. There are instances where a conviction is quashed because of an error in the charge sheet; there are other instances where the courts have ignored such errors for want of substance.

In the case of Datsa v The Republic [1971] 1GLR 418, the appellant, a post office counter clerk, had her accounts satisfactorily checked at the close of work on a Saturday. Within a few hours of the commencement of work on the following Monday, her accounts were again checked and a shortage was discovered. She was charged and convicted based on a statement of offence which did not state the offence but rather the particulars of the offence. The appellate court held that since no specific offence was charged, the court had no jurisdiction to convict. The court went on to admonish that the accused must always know with certainty what it is that he may be convicted of.

Amissah, for instance refers to the case of Boateng v the Republic[1969] C.C. 20 to explain the difference between the offence creating provision and the provision defining the offence. In that case, the charge was corruption by a public officer contrary to section 244 of the Criminal Code (as it then was). Section 244 of the Criminal Offences Act, 1960 (Act 29) actually provides that “where, after a person has done an act as a public officer, juror, or voter that person secretly accepts, or agrees or offers secretly to accept for personal gain or for any other person, a valuable consideration on account of the act, that person shall be presumed, until the contrary is shown, to have acted corruptly, within the meaning of this Chapter, in respect of that act before the doing of the act”.

The appellant was charge with and convicted on a charge of accepting a bribe after doing an act, contrary to Section 244 of Act 29, after a summary trial. He appealed; arguing that section 244 only described the offence but did not create it.

The appellate court held that the proper section to refer to was not Section 244 which was no more than a rule of the offence, creating a presumption which was rebuttable, but Section 240 of the Criminal Offences Act. They however stated that in the case of summary trials, the charge sheet need not state the section or the Act under which the accused is charged. It is sufficient if the accused is given enough particulars to indicate to him the nature of the offence.

There seems to be an inconsistency in the position of the courts in the two cases. On one hand, the court seems to be suggesting that an error in stating the offence in a charge sheet should be ignored. On the other hand it seems to be suggesting that the court must not gloss over an error which may occur when stating the offence in a charge sheet.

Section 112 (2) of Act 30 provides that the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and where the offence is one created by an enactment may contain a reference to the enactment.

The Act itself relaxes the rules of drafting, encouraging that as much as possible the language used in drafting must be ordinary and not technical to enable the accused appreciate what exactly he is being accused of. So, in the case of Andoh and Another v The Republic [1970] C.C. 42 C.A, the statement of offence was correct whiles the particulars of offence were improperly stated. It was held that where a statement of offence has been properly stated but the particulars fail to contain any of the essential ingredients of the offence then it becomes a statement of offence with incomplete or defective particulars and not a bad indictment or one that is unknown to the law. In this case the Court stated that the Supreme court cases of Akowuah v C.O.P [1964] and State v Boahene [1965] were decided per incuriam. In the former case, the Supreme Court sought to make a distinction between certain particulars of a charge which were only necessary to give reasonable information as to the nature of the charge, and others which constituted the gravamen of the offence charged.  The Court said that omission to include charges in the first instance would render the charge fatally bad but merely defective which defect could be filled by evidence at the trial. It was quick to add however, that omission to include in the charge the particulars in the second instance was fatal because no offence would be disclosed and the omission could not be cured by amendment.

Notwithstanding these decisions, the courts have in many instances tried to make a clear case as to the effect of a defect on the face of a charge sheet. At this juncture we would revisit section 60(3) of Act 30 which stipulates that the validity of proceedings instituted or purporting to be instituted under subsection 1 of section 60 shall not be affected either by a defect in the complaint or charge sheet or by the fact that a summons or warrant was issued without complaint, or in a case of warrant without a complaint on oath. The combined effect of sections 60 and 112 of Act 30 is that it is enough that the accused is able to deduce from the charge sheet the offence with which he is being accused of. It is immaterial that technical words are not used to draft the charge sheet.

From the foregoing, it appears that defective particulars in a charge might not render the charge fatally bad, especially where the statement of the offence was correctly made out and where the evidence adduced had cured the defect in the particulars of the charge and this was asserted in the case of Kungua and Others v The Republic [1984-86] 2 GLR 489.

Another case that drives home the point is the case of Arthur v The Republic [1976] 2 GLR 250. In this case the appellant sexually assaulted a three-year old girl. In the particulars of offence, it was stated that the appellant assaulted the victim’s mother. He was convicted. The appeal was dismissed to the effect that by Section 112(1) of Act 30 as amended by Act 261, a statement of offence with incomplete or defective particulars was not a bad indictment or one that was strange to the law. The court went on to say that in the instance there was no doubt in the mind of the accused as to the person he was alleged to have assaulted.

The question that still remains unanswered therefore, is how the courts determine that a particular defect on a charge is so fatal as to warrant quashing of a conviction or an acquittal.  

The courts have held in several cases that where no substantial miscarriage of justice has been occasioned by the error, objections to convictions founded on the charge should not be entertained. It was observed in Republic v Dufa [1976] 2 GLR  that where the relevant executive instrument imposing the maximum control price for the time being against which the accused was alleged to have offended was not included, the charge unless amended will be held irredeemably bad.

In Gundaa v The Republic [1989-90] 2GLR 50 it was held that since the charge of deceit of a public officer was known to the Criminal Offences Act and the particulars of offence in the case stated concisely and precisely what the accused was charged with, the error in stating section 257 instead of section 251 of Act 29 as the offence creating section was a mere technicality which did not occasion a substantial miscarriage of justice – a conclusion also supported by the provision in section 406(1) of Act 30. However, the unrepresented and illiterate accused could not have been expected to raise any objection to the charge sheet “at an earlier stage in the proceedings” as required by section 406(2) of Act 30.

Despite the fact that an error on the face of the charge sheet should not affect proceedings, the laws make it quite clear that an amendment to a Bill of Indictment or Charge Sheet may be made at any stage of the trial unless having regard to the merits of the case, the amendment cannot be made without injustice. Hence, in the case of Okeke v The Republic [2012] 2 SCGLR 1105, the court noted that counsel for the appellant had not objected to the amendment made by the prosecution. The court also noted that counsel for the appellant was unable to show in his statement of case the manner in which the amendment occasioned an injustice to the appellants. In dismissing the appeal, the court stated that it was not sufficient for counsel for the appellant to simply make a sweeping statement that a substantial miscarriage of justice to the appellants has occurred, without showing how it was caused.

Section 109 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) posits that several charges could be joined in the same Charge Sheet and tried together provided the charges were founded on the same facts or form part of offences of the same or similar character. However, in the case of Doe v The Republic [1999-2000] 2 GLR, the court held that consolidation of charge sheets was not known in criminal trials, hence the procedure adopted by trial by consolidating the charge sheets and thereafter conducting the proceedings under the joint charge sheet was irregular and was neither justified by any known provision in Act 30. The appeal court was however careful to add that the irregularity did not however, vitiate the proceedings.

From the discussions above, it seems that there is always a method to a madness and despite a charge sheet being irregular, its purpose is to charge an accused of an offence and possibly get the court to convict that accused person for a stated offence. Therefore, a mere irregularity on the face of the charge sheet should not render it void. However, if the error is such as would occasion a miscarriage of justice on the accused, then that error would be thoroughly considered by the court.