Appiah Dankwa & Others V. The King (1951)
LawGlobal Hub Judgment Report – West African Court of Appeal
Charges under section 324 of the Criminal Code not restricted to offences against the Government of the Gold Coast-Power of Judge to amend charge al any stage of the proceedingsOmission by Judge in case tried by state specifically that the failure of an alibi does not lessen onus laid upon prosecution not fatal-Judge presumed to know law-Counts of preparingto attack, and attaching, mat objectionable.
The appellants were charged with offences against section 326 of the Criminal
Code (Cap. ). This offence appears under Title 23 of the code under the heading” Offences Against the Safety of the State”, and the marginal note to section 324 reads as
follows: Attacking or preparing to attack with force persons within or without the Gold Coast
The facts disciound a local political dispute of a violent character between two rival factions. The police intervened to restore order and met with armed resistance, and in the course of quelling the disturbance one policeman was killed and a number of others wers wounded.
At a late stage in the proceedings the Judge amended certain counts by the inertion of the word “armed in front of the word ” force”, to conform with the worling of section 324.
The Judge did not, in summing up the case to the Assessors, inform them that the failure of an alibi does not lessen the onus on the prosecution.
The appellants were charged under section 324 on separate counts with preparing to attack, and with attacking, and convicted on both counts and awarded concurrent sentences.
Counsel for appellant argued the appeal on four grounds:
(1) that the evidence did not support the charges, having regard to the heading ading of Title 23. He contended that the sectioba thereunder should be construed as relating only to sach offences as can be said to be directed against the Government of the Gold Coast. The evidence only disclosed offences under Title 24-Offences against the Public Peace; (2) that the Judge wrongly aiand his powers in amending the chargee
(3) that the Judge did not rightly direct his mind to the rale of law that the failure of an aliis does not lessen the onus upon the prosecution (4) that there could not be separate convictions, both for preparing to attack and for attacking
The main hending of Part 9 of the Code, of which Titles 23 and 24 formpart, is expressed as “Cilences apsinet Public Order, Health and Morality”Certain other sections of Title 23 do not relate to offences primarily against the Gold Coast Government, and the meaning of section 324 being clear andunambiguous, there is no necessity to look at the sub-heading to explain, stilllems to restrict, its purpose. The charges were properly laid under section 324.
The Judge was fully entitled to amend the charges, and indeed it was his dutyto do so in the circumstances of the case, as the amendment occasioned no injustice. The powers of amendment conferred by section 231 (2) of the Criminal Procedure Code (Cap. 10) are identical with those existing in England under section 5 (1) of the Indictments Act, 1915.A Judge is presumed to know the law unless there is something in his judgment which gives a contrary indication. There was nothing to support the sub minion that the Judge could be shown to have regarded an unsuccessful alibi as proof of guilt. This was a case tried with Aamssors and they, having given their opinion, the decision rests exclusively on the Judge.
The offences of preparing to attack and of attacking are both provided for by section 324 of the Criminal Code. The prosecution had been careful to avoid any suggestion of duplicity by charging each offence as a separate count. The charges were unobjectionable.