IN THE SUPERIOR COURT OF IUDICATURE
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
ACCRA
CORAM: R.K. APALUO, J.A (PRESIDING)
K.A. ACQUAYE, J.A	19TH MAY 2011
ADUAMA OSE!, J.A	H2/8/2011
GABRIEL JOANNE	APPELLANT VRS
THE REPUBLIC	RESPONDENT
Criminal law and procedure	Narcotic Offence	Appellant charged with
possession of narcotic drugs	Narcotic Drugs (Control, Enjbrcement &
Sanctions) Law, ss. 56(a), 1(i) - Trial Mistake in charge sheet Non- amendment of mistake - Whether it occasioned substantial miscarriage of justice Criminal Procedure Code, s.112 (2).
Plea	Change in appellant's plea Accepting plea in the absence of attorney
whether Court committed procedural error— Criminal Procedure Code, s. 199.
JUDGMENT K.A. ACQUAYE I.A.
This is an appeal against the conviction and sentence of ten years imprisonment with hard labour imposed on the appellant by the Fast Track High Court, Accra on 411, May 2010. The appellant was charged with attempting to commit an offence of exporting narcotic drugs without licence contrary to sections 56(a) and 1(i) and possession of narcotic drug without licence contrary to Section 2(i) both of Narcotic Drugs (Control, Enforcement and Sanctions) Law PNDCL 236 of 1990.
 

 
The facts of the case were that on 9th September 2009 the appellant and two others all said to be Americans arrived at the Kotaka International Airport to board a Delta Airline to the United States of America. While going through pre-departure formalities for the flight officials of Narcotic Control Board suspected them of carrying narcotic drugs and conducted a search on them. The search revealed a powdery substance suspected to be narcotic drugs hidden in their pants, the soles of their shoes, and the 2' and 3rd female accused persons in their vagina. On interrogation they admitted the offence and mentioned one Alhaji in Accra as their source of supply. The suspected drugs were sent to the Ghana Standards Board in Accra for analysis and the tests proved positive for narcotics hence the three were charged with the offences.
On their arraingment before the Fast Track High Court in Accra the 1st and 2nd accused persons pleaded not guilty but the 3rd accused who is the appellant herein refused to plead in the absence of her lawyer so they were all remanded in custody. On their second appearance before the court, the 3rd accused person then represented by a lawyer pleaded not guilty when the charges were again read to her and they were remanded in custody. The record of proceedings indicate that on 28th January 2010 when the accused persons were brought to the court their counsel pleaded for a short time to reconsider their pleas and the case was adjourned to 3rd February 2010. On the next adjourned date the 1st and 2nd Accused persons who appeared by their old Lawyer pleaded to change their pleas and on the charges being re¬read and explained to them, the 1st and 2nd persons changed their pleas and pleaded guilty to the two charges. They were accordingly convicted on their own pleas and sentenced to 10 years imprisonment on each count.
 

 
The 3rd accused now the appellant who was represented by a new lawyer had her case adjourned to 23' February 2010. On that day the prosecution called their first witness who was cross-examined by the appellant's lawyer and the case adjourned to 10th March 2010 for continuation. There is no record in the record of proceedings as to what transpired in March and June 2010 but on 4th May 2010 the appellant appeared in court without any lawyer and informed the court that she wanted to change her plea. The charges were re-read to her
to which she changed her two pleas to guilty and was accordingly convicted on her own pleas and sentenced to 10 years imprisonment with hard labour to
take effect from the day of her arrest. The court also ordered that she should
be deported from the country after serving her sentence.
It is against this background that the appellant has filed five grounds of appeal
which are:-
a)	The facts of the case do not support the charge levelled against the
accused person.

b)	The charge sheet was incurably bad and could not be the basis of the
appellant's conviction and subsequent sentence.
c)	The learned judge erred when he accepted the plea of the appellant in
the absence of her counsel after she had refused to plead to the
charges.
d)	The appellant never intended to plead guilty to any charge as she had
written in her statement to the police and for that matter to the
prosecution that she knew nothing about the drugs.
 
e) The appellant did not understand the proceedings at the court below in that she is only 21 years, a U.S.A national as well as a student and she was without any relative in court or in Ghana.
Arguing the first ground of appeal that the facts do not support the charges Counsel stated that the kind of drugs was not stated in the particulars of offence and the facts. Counsel also stated that the facts suggest that each suspect's drug was independent of the other yet the particulars stated all the three suspects held 491.8932 grams together as they walked. Counsel submitted that since two of the three suspects had pleaded guilty to carrying the 491.8932 grams of drugs, the facts are different from what the appellant was charged with and it is wrong in law for the appellant to plead guilty to a charge not supported by the facts. In his answer the Principal State Attorney admitted the error in not mentioning the kind of drug the suspects were carrying in the charge sheet but submitted the error was cured by the evidence of PW! and that it did not occasion a miscarriage of justice.
In page 76 of A.N.E. Amissah's Criminal Procedure in Ghana the author Paraphrased Section 112(2) of the Criminal procedure Code Act 30/60 as "the statement [of offence] must 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 if the offence is one created by enactment must contain a reference to the enactment". Under "particulars of offence" the learned author wrote at page 77 "it is necessary to state under this head such particulars of the offence as may be necessary for
 
giving reasonable information as to the nature of the charge". The statement
of offence of count one on the charge sheet of the appellant stated
"Attempt to commit an offence of exportation of narcotic drugs without a licence issued by the Minister of Health contrary to sections 56(a) and 10) of the Narcotic Drugs (Control Enforcement and Sanctions) Law 1990 (PNDCL 236)".
The particulars of offence of count one also stated
"1)	Shadrak Bamfo Ntiamoah: Fire Officer.
2)	Abena Serwaa: Student.
3)	Gabriel Joanne: Student.
On the 9th September 2009 at the Kotaka International Airport in the Greater Accra region and within the jurisdiction of this court attempted
to export to the United States of America 491.8932 grams of cocaine a
narcotic drug without licence issued by the Minister of Health".
The statement and particulars of offence of Count Two were couched in similar fashion. An examination of the two counts show that they describe the offences and give particulars of the offences as to give reasonable information on the nature of the charges faced by the three accused persons. The particulars mentioned the type of drug carried by the accused person as cocaine. Before the Criminal Procedure Code Amendment Act 361 of 1965 there were authorities to the effect that if an essential particular was omitted from the particulars of offence on the charge as laid, the conviction had to be
quashed on appeal as the accused would have been convicted on a non-existent charge. In the case of Andoh and Another vrs The Republic (1970) CC 42 the Court of Appeal considered what was meant by a "defect" in the particulars and held that the word should be given its ordinary dictionary meaning, namely "lack of something essential to completeness". In the words of A.N.E. Amissah if the omission does not cause any embarrassment or prejudice to the accused person's case and the defect is cured by the evidence adduced at the trial the courts are bound to dismiss an appeal on this ground because no substantial miscarriage of justice would have been occasioned thereby". As already stated the particulars of offences stated the drug carried as cocaine but PW1 stated in his evidence that the drug carried was heroin. Even though this should have necessitated an amendment to the particulars it should be noted that the prosecution did not close its case before the appellant changed her plea to that of guilty. It should also be noted that the offence creating sections of the Narcotic Drugs (Control Enforcement and Sanctions) Law P.N.D.C.L 236/1990 does not speak of cocaine or heroin but Drugs. Since heroin and cocaine are all drugs the non amendment does not cause any embarrassment or prejudice the case of the accused and no substantial miscarriage of justice was occasioned thereby. Also in the case of Appiah vrs The Republic (1996-97) SCGLR 610 at 614 it was held that " a defective charge sheet has never been known to subvert the jurisdiction of a trial court. It was further held that Section 3(2) of the Court's Act 453 of 1993 clearly provides for the dismissal of an appeal based on grounds of defective or error in the charge sheet provided there is available evidence to support the offence alleged in the statement of offence or in any other offence...". Counsel for the appellant also questioned under this ground whether the quantity of the drugs mentioned in both counts were for the appellant alone as she
 
pleaded guilty to the whole. The charge sheet shows that three persons were charged with possession of the whole 491.89 grams with each person holding a certain quantity of the whole. Even though it would have been better to charge each accused person with the exact quantity of drugs found on him or her the lumping together of the three accused and total quantity of drugs found on him does not make the charges defective. It is not the quantity of drugs carried which constitutes the offence but the carrying of any amount. It should be noted that where a charge states that the accused stole a certain sum and it is proved that he actually stole less, there is no need to amend, nor is there anything improper in the charge. See
Obeng alias Donkor and others vrs The State (1966) GLR 259.
We have examined the arguments canvassed on this ground of appeal and find no merit in them. We dismiss the first ground of appeal.
The second ground argued in this appeal is that the charge sheet was incurably bad and could not be the basis of the appellant's conviction and subsequent sentence. Counsel for the appellant submitted that by Section 109(i) of Act 30 for every distinct offence of which any person is accused of there shall be subject to subsection (2) a seperate charge or count. Relying on the case of Donkoh vrs The State (1964) GLR 598 at page 601 Counsel submitted that the appellant was charged with carrying cocaine yet the evidence disclosed that she was carrying heroine hence the charge sheet was incurably bad. Counsel also argued that the nature, quality and quantity of the drug mentioned in the particulars of offence are not known. With respect to the accused being tried jointly Section 109(1) is stated to be subject to subsection (2). Subsection (2) of Section 109 states that "charges or counts for any offences may be joined in
 

 
the same complaint, charge sheet or indictment and tried at the same time if such charges or counts are founded on the same facts, or form or are a part of a series of offences of the same or a similar character". Section 110(1) also provides that "The following persons may be charged and tried together
namely:
a) Person accused of the same offence committed in course of the same transaction"
Since the accused persons were said to have arrived in the country together on the same date and were leaving together on the same date with each carrying the same narcotic drug in almost the same manner we find nothing wrong with their being charged jointly for the same offences. We have already dealt with the issue of cocaine instead of heroin and the issue of quantity and quality of the drug found. Suffice it to repeat that by changing her plea from not guilty to guilty the appellant obviated the prosecution from leading evidence to establish all the ingredients of the offence. This ground of appeal also fails and we dismiss it.
Counsel for the appellant next argued the third ground of appeal that the learned judge erred when he accepted the plea of the appellant in the absence of her counsel after she had refused to plead to the charges. Counsel submitted that Section 199 of the Criminal Procedure Code Act 30 of 1960 imposes a duty on the trial court in the absence of counsel to explain to an accused person who pleads guilty the nature of the charge and the procedure which follows such a plea before accepting such a plea. Relying on Yeboah vrs The State (1964) GLR 715
 

 
at page 717 and Ross on Criminal Appeals (19th Edition at page 110) Counsel for the appellant submitted that the pleas of guilty was inconsistent with her earlier plea of not guilty and that the appellant's mind and intention was not to plead guilty. To these submissions the Principal State Attorney for the Republic replied that on 15th September 2009 the appellant refused to plead because her counsel was absent and the trial judge adjourned the case to 23"' September 2009 when she pleaded not guilty in the presence of her lawyer. It was after PW1 had testified that upon a sober reflection of the evidence the appellant decided to change her plea to guilty. Counsel for the Republic also pointed out that Section 199 of Act 30 comes under Part IV of the code which deals with trials on indictment and not summary trial under which the appellant was tried. We totally agree with Counsel for the Republic that there is no duty on a trial judge in a summary trial to explain the nature of the charges and procedures to an accused who pleads guilty as Section 199 of the code applies to trials on indictment. The appellant was in court and saw and heard what happened to her do-accused persons when they changed their pleas of not guilty to guilty. When she informed the trial court that she wanted to change her plea the charges were re-read to her and she, an American student aged over 21 years cannot be heard to say she did not understand the charges read nor the consequences of her plea of guilty, the absence of any relative in court notwithstanding. This ground of appeal also fails and it is dismissed.
Counsel for the appellant lastly argued grounds (d) and (e) together. These are that the appellant never intended to plead guilty and did not understand the proceedings in the court below. As these grounds have
 

 
already been dealt with above and dismissed there is no point in re-stating them.
On the whole we have considered the grounds argued in this appeal and find them unmeritorious. The appeal is thus dismissed and we hereby confirm the decision of the trial court.
••	.,v (JUSTICE OF APPEAL)
 

 
R. K. APALOO, J.A
 
I agree
 
(JUSTICE OF APPEAL)
 


 
ADUAMA 05E4 J.A
 
I also agree
 
muLJAMA OSEI (JUSTICE OF APPEAL
 
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