Rex V. Albert Stephen Tawiah & Ors (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Arson—Criminal Procedure—Trial with assessors—Gold Coast Criminal Procedure Code, sections 276 and 286—Necessity for including the word ” intentionally ” in a charge under the Gold Coast Criminal Code, section 255—Gold Coast Criminal Procedure Code, sections 231, 288, 291 and 333
Section 286 of the Gold Coast Criminal Procedure Code provides that the Judge may sum up to the assessors the evidence for the prosecution and the defence: therefore, when the Judge does sum up, he does so in relation only to the facts and not to the law.
In a charge for an offence contrary to section 255 of the Gold Coast Criminal Code, the particulars of offence should include the word ” intentionally “.
Quite apart from the authorities, the omission of the word in the present case, no objection having been taken at the trial and there having been no failure of justice, is covered by sections 231, 288, 291 and 333 of the Gold Coast Criminal Procedure Code.
Cases referred to :
- Heymann v. The Queen (1873), 8 Q.B. 102; 28 L.T. 162; 37 J.P. 565; 12 Cox C.C. 383.
- Taylor v. The Queen (1895), 1 Q.B. 25; 64 L.T.M.C. 11; 71 L.T. 571; 59 J.P. 393; 11 T.L.R. 6; 39 Sol. Jo. 11; 18 Cox C.C. 45.
Appeal from the Supreme Court of the Gold Coast.
Bossman for Appellant.
Buckmaster, Crown Counsel, for Crown.
The following judgment was delivered:
Levey, J.A. These were appeals against convictions in the Divisional Court, Kumasi, for the offence of arson of a building contrary to section 255 of the Criminal Code.
The facts were simple; the learned trial Judge believed the evidence of the prosecution witnesses and it is only necessary to say that this Court can find no good reason for criticising him for so doing.
With the leave of this Court, additional grounds of appeal, involving questions of law, were filed on the 3rd January. In so far as those grounds relate to an alibi which the appellants sought to establish at the trial, there is little to be said, and there is nothing on the record to support any suggestion that this part of the defence did not receive due attention at the trial. As to the facts of the alibi, it was not disputed that, on the evening of the fire, the appellants bicycled from Badu—the scene of the fire—to Wenchi, a distance of some eighteen miles, and there made a report to the police. But as it is established that they did not arrive at Wenchi until about 11.30 p.m., it would clearly have been possible for them, having regard to all the evidence, to have started the fire before they left Badu. This ground of appeal therefore fails.
Ground 4 of the additional grounds of appeal is in the nature of a complaint that there is no record of the details of the Judge’s summing up. There is, in
our view, no substance in the point. The appellants were tried by a Judge sitting with assessors, and a clear distinction exists between the language of section 286 of the Criminal Procedure Code, which deals with the procedure for summing up to assessors, and that of section 276 which makes the provision for the summing up by a Judge to a jury. Section 286 merely provides that the Judge may sum up to the assessors the evidence for the prosecution and the defence: and therefore when the Judge does sum up, he does so in relation only to the facts and not to the law. In contradistinction to this, section 276 requires that the Judge in a case tried with a jury ” shall, if necessary, sum up the law and the evidence “.
Ground 1 of the additional grounds of appeal was concerned with the Information upon which the appellants were tried. It was upon this ground that Mr. Bossman, who appeared for both appellants, addressed the major part of his argument to this Court, his contention being that the charge was defective inasmuch as it omitted a material or constituent element of the offence, namely the word ” intentionally “.
The Information charged the appellants with the offence of ” Arson of a Building ” contrary to section 255 of the Criminal Code. The Particulars of Offence conform with the requirements of the law save in the one respect to which this ground of appeal relates, namely the omission in one place of the word ” intentionally “. The Particulars set out the allegation that the appellants ” unlawfully ” caused the building in question to be set on fire, and that they did so ” with intent materially to damage ” the building. But in order to follow word for word the language of section 255, the Particulars should not merely have alleged that the appellants ” unlawfully ” caused the fire, but that they did so ” intentionally and unlawfully “.
It is difficult, however, to see how the appellants can be said to have been embarrassed by a formal defect of this kind. It appears to us that the Particulars contained all such matters of detail as would enable the appellants to meet the charge, and it is apparent from the record that no steps were taken by the defence to call attention to this technical error at the trial, when it could at once have been cured. Moreover, since the appellants were in fact convicted on the Information, it is to be presumed that the prosecution succeeded in proving not only the unlawful firing, but also an element of intent, that is to say, the intention of the appellants to damage the building by unlawfully causing it to be set on fire. This point was strongly argued before us by Crown Counsel (Mr. Buckmaster), who cited authority in support of his submission that a defective averment can be deemed to be cured where a verdict has been found which necessarily involves the proof of that averment (Heymann v. The Queen) (1) and that an adequate indictment can nevertheless be a good indictment where it contains the allegations necessary to bring home the offence charged (Taylor v. The Queen) (2).
Quite apart, however, from such considerations, the point appears to be covered by certain provisions of the Criminal Procedure Code to which our attention was directed by Crown Counsel; namely sections 231 and 288 as to objections to, and amendment of, defective Informations, and sections 291 and 333 which provide that the Judgment of the Court shall stand, despite formal defects and omissions, if no objection has been made at the trial and if no failure of justice has been occasioned.
The appeals are dismissed.