Trying Criminal Cases De Novo: The Ghana Situation

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Selasi Kuwornu

introduction::

In legal practice, the term “trial de novo” means to try a case again, since “de novo”, a Latin expression, means again and again or new[1]. In the course of the proceedings before a court some situations[2] may justify cases that may have already started in court[3] be brought before another court or the same court be constituted differently. Then the question arises: does the case start again or does the new court have to accept the proceedings before the previous court and proceed from that point?

The situation in Ghana::

It is interesting to note that under Ghanaian jurisprudence there are no related legal provisions in relation to criminal matters. The practice in our criminal courts has been to start judicial proceedings de novo. The rationale of this practice is that the new judge and / or the jury[4] must be able to observe the conduct of the accused (s) and any witnesses who may have already testified in the previous court. There is also the argument that accepting a trial in a case where an individual’s freedom is at stake can lead to prejudice as the previous judge’s notes and proceedings can be filled with their opinion on the case. On the other side of this justification is the argument that de novo processes destroy the judicial search for fast processes.

Let us consider the case of The Republic against. Justice Osei Kofi[5] That was in the High Court, Accra. The brief background is that the summary proceedings in this case began on February 26, 2015, before the same court was constituted differently. At the end of the trial, on July 11, 2019, and before the verdict could be passed, the trial judge retired. The case was then referred to the new presiding judge on February 18, 2020. It should be noted that the defendant has remained in lawful detention since the beginning of the trial.[6]

To prevent the case from starting de novo, the prosecution asked the Chief Justice on August 24, 2020 to instruct the new judge to accept the previous judge’s case instead of starting the case de novo. The aim was to avoid further delays. In a letter dated September 3, 2020, the Chief Justice stated through the Assistant Secretary of Justice that the new presiding judge had the discretion to initiate proceedings or to hear the case de novo. The obvious implication is that although criminal law is silent as to whether or not criminal proceedings should always begin de novo, the judgment rests with the judge before whom such a situation arises.

On October 15, 2020, both sides put forward arguments in public to force the judge to use her discretion in her favor. The prosecution referred to the case of The republic against Mensah Mawusi[7] In another trial, a Supreme Court judge faced with a similar situation ruled that there should be no wrong decision should the court initiate proceedings instead of starting de novo. To demonstrate the novelty of his decision and how seriously it deviates from the norm, the judge stated on page 1 of the judgment: “When the law changes and the time changes, the rules of practice and the constitution of the law and practice change must also change in parallel with time. “

By doing Justice Osei Kofi In this case, the judge exercised her discretion in favor of the prosecutor by deciding to accept the previous judge’s case. However, she gave the opportunity to submit additional legal arguments even though both sides had already submitted their final addresses, which is very much welcomed.

Other common law jurisdictions::

It should be noted at this point that in our case study above, only one judgment was pending as both sides had closed their cases.

Section 326 (1) of the 1973 Code of Criminal Procedure in India provides that:

(1) Whenever 1 [Judge or Magistrate]After hearing and recording all or part of the evidence in an investigation or legal proceeding, jurisdiction ceases and another 1 follows [Judge or Magistrate] Who has and who exercises such competence, the 1 [Judge or Magistrate] Such a success can affect the evidence recorded by its predecessor or partly by its predecessor and partly by itself: provided that the successor 1 [Judge or Magistrate] believes that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of the judiciary, he may re-summon such witness and, after such further examination, if necessary, cross-examine and re-examine as he did allows the witness to be dismissed.

What is striking about the Indian situation is that the new judge has the discretion to recall witnesses and bring further evidence. This offers a solution to the problem of observing the behavior of witnesses.

In the Kenyan case of Abdi Adan Mohamed v. republic[8], The appeals court ruled as follows:

As far as practically possible, it is highly desirable that the trial judge or judge bring the case to a close and ultimately render a judgment, as it is important that the final arbitrator be able to weigh the evidence that is gathered with him and observe the observation of the judge Behavior of witnesses.

In Kenya, where a judge is confronted with the situation that is the subject of this article, as in the case of India, the judge is free to decide whether or not to recall witnesses[9]. Section 200 StPO[10] of Kenya is educational. For academic purposes, Section 200 (1) is reproduced below:

200) Evidence convicted, partly by one judge and partly by another

(1) Subject to paragraph 3, in which a judge, after hearing and recording all or part of the evidence in a proceeding, no longer exercises his jurisdiction and is replaced by another judge who has and exercises that jurisdiction, the subsequent judge –

(a) deliver a judgment that is written and signed but not passed by its predecessor; or

(b) If the judgment was not written and signed by his predecessor, act on the evidence recorded by that predecessor or reinstate the witnesses and start the trial again.

In the Kenyan case of Joseph Kamau Gichuki v. Republic of NRA [2013] eKLR, it was held that:

“This court previously ruled that Section 200 of the Code of Criminal Procedure should be invoked sparingly and only in cases where the ends of justice are defeated if a succeeding judge fails to pursue a trial initiated by his predecessor. Some of the considerations to consider before invoking Section 200 include whether it is appropriate to begin the de novo trial, how far the trial was, availability of witnesses who had already testified, possible loss of memory of the witnesses , the time that had become obsolete since the beginning of the trial and the prejudice that is likely to be suffered by either the prosecutor or the defendant. “

Also consider the case of Prosecutor against Kipyegon Josphat and others[11] where it was stated that “Section 200 of the CPC is not a charter in criminal matters that begins de novo every time a court changes. It is a desirable idealistic pursuit. However, like all endeavors, it has limitations. The limitation is what the appeals court set out in the case of Abdi Adan Mohamed v. Republic (above) The aforementioned limitation includes: whether it is appropriate to start the trial de novo, how far the trial has progressed, the availability of witnesses who have already testified, any loss of memory of the witnesses, the time elapsed since the trial began, and the likely amount Prejudice to be suffered either by the public prosecutor or by the accused ”.

In Nigeria the law is half-hearted. Section 294 (2) of the Constitution of the Republic of Nigeria deals with the issue as it concerns judgments pending in the appellate courts and the Supreme Court, but is silent on judges in other courts, including the High Court.[12]

Rule 25 of the Federal Code of Criminal Procedure[13] of the United States of America provides that any judge who regularly sits in court or is assigned to court can terminate a trial during the trial if: (1) the judge before whom the trial began is due to death or illness or other disability cannot continue; and (2) the judge closing the trial certifies familiarity with the trial record.[14]

It is evident that many jurisdictions have either comprehensive or restrictive legislation on this matter. Why is Ghanaian criminal law silent on a matter that affects the speedy delivery of justice?

Conclusion::

To satisfy the constitutional demand for legal proceedings within a reasonable time[15]Trials de novo need not always be the norm when a new judge takes office. Nor is it enough to leave the matter to the discretion of the judges. It is the draftsman’s hope that the legislature will consider incorporating solid legislation to address the envisaged situation in a later amendment to the Criminal Procedure Act 1960 (Act 30).

[1]”Once again.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/de%20novo.

[2] In practice, some judges are transferred and cannot close partially negotiated cases before the date when they are due to resume before their new courts. Other reasons could be illness, resignation or retirement.

[3] These are known as partially heard cases.

[4] For indictment proceedings; see Section 204 of the Criminal and Other Offenses (Proceedings) Act 1960 (Act 30)

[5] Criminal case no. ST 13/15

[6] The judgment was passed on January 28, 2021.

[7] High Court, Ho, Claim No. F14 / 2/19, dated October 10, 2019

[8] [2017] eKLR

[9] See section 200 (3) of the Code of Criminal Procedure (Cap 75)

[10] Code of Criminal Procedure, (Cap 75) (revised edition 2009)

[11] In the Meru High Court, Criminal Revision 170 of 2019

[12] For an in-depth reading on the subject in relation to Nigeria, please see the well-written review by Peter Olaoye Olalere and Olaniyi Fayomi entitled “Impact of a Judge’s Settlement on the Court of Appeal”. July 27, 2018; http://www.spaajibade.com/resources/wp-content/uploads/2018/07/EFFECTS-OF-ELEVATION-OF-A-JUDGE-TO-THE-COURT-OF-APPEAL-Olalere-Niyi.pdf

[13] (As amended on December 1, 2019);

[14] Cornell Law School; Legal information institute; https://www.law.cornell.edu/rules/frcrmp/rule_25

[15] Article 19 (1) of the 1992 Constitution of Ghana