Committal Proceedings

Introduction:

This note will discuss the meaning of committal proceedings and the requirement that before a case is tried on indictment by the High Court, there must be committal proceedings in the District Court. The note will further examine what happens in the District Court during committal proceedings.

Meaning of Committal Proceedings:

These are preliminary proceedings in the District Court that precede a trial on indictment in the High Court.

These proceedings are sometimes called preliminary proceedings.

Requirement for Committal Proceedings:

In Section 44(1) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) , it is provided that:

A criminal case which is being tried on indictment shall not be brought before the High Court, unless it has previously been brought before a District Court and the accused person has been committed for trial to the High Court...

Thus, without committal proceedings, the High Court, which has jurisdiction to try an indictable offence, cannot assume that jurisdiction.

Overview of the Procedure for Committal Proceedings:

The procedure for committal proceedings is governed by Part IV of Act 30. In Section 181 of Act 30, it is provided that:

When a person is before a District Court charged with an offence which is not being tried summarily there shall be a preliminary hearing of the case by the Court, at which the procedure laid down in this Part shall be followed.

The procedure in Part IV may be summarised as follows:

1. The proceedings are usually conducted in public, unless the court determines otherwise in the interest of justice, per Section 185
2. Furnishing the court and the accused with the bill of indictment and the summary of evidence, per Section 182.
3. The first day of the committal proceedings.
4. Conduct of the preliminary hearing.
5. Taking the statement of the accused person.
6. Deciding to discharge or commit the accused for trial.
7. Acts after committing the accused for trial.

These processes are now discussed.

1. Conduct of the Proceedings in Public:

Section 185 of Act 30 provides that:

The room or place in which the proceedings are held is, in accordance with clause 3 of Article 126 of the Constitution , a public place, but, the court may, if it considers that the ends of justice will be best served by so doing, order that a person shall not have access to, or be, or remain in that room or place without the express permission of the court.

Thus, the general rule is that committal proceedings are held in public. However, the court may, for the sake of justice, order that a person shall not have access to that room without the express permission of the court.

2. Documents to Furnish the Court and the Accused: Bill of Indictment and Summary of Evidence:

In Section 182(1) of Act 30, it is provided that the prosecution shall furnish the court and the accused with:

1. A bill of indictment.
2. A summary of evidence.

The content of these two documents are now discussed.

Bill of Indictment:

1. Charge Against the Accused: Per Section 182(1)(a) of Act 30 , the bill of indictment shall state in writing the charge against the accused.
2. Date of Signature: Per Section 201 of Act 30 , a bill of indictment shall bear the date of the day when it is signed.
3. Must Contain A Statement of the Offence and Particulars of the Offence: Per Section 202(3) of Act 30, an indictment shall contain a statement of the offence with which the accused is charged, together with the particulars that are necessary for giving reasonable information a to the nature of the charge.
4. Signature of the Attorney General or an Authorised Person: Per Section 183 of Act 30, the bill of indictment shall be signed by the Attorney General or by a person authorised by the Attorney-General in that behalf.

Summary of Evidence:

Per Section 182(1)(b) of Act 30,

A summary of evidence which shall comprise a list of the witnesses who the prosecution proposes to call at the trial and a summary of the evidence to be given by each witness and a list of the documents and things it proposes to put in evidence at the trial.

Per Section 183, it must also be signed by the Attorney-General or by a person authorised by him.

Possibility of Amendment of Bill of Indictment and Summary of Evidence:

Per Section 182(3) of Act 30, the bill of indictment and summary of evidence may be amended or added to at any time during the proceedings. This must be done by leave of court.

3. Day One of the Proceedings in the District Court:

The court, to ensure compliance with Section 182(1) of Act 30 , shall find out if the accused has been served with the bill of indictment and the summary of evidence.

The court shall also find out if all the parties are present in court.

After the court is satisfied, Section 186 provides that the proceedings may be adjourned to a later date. The adjournment is governed by Section 169. It is essential to take note of the following:

1. If the accused has been committed to prison, the adjournment shall not be more than fourteen (14) clear days, per section 169(2).
2. If the accused has not been committed to prison, the adjournment may be more than fourteen clear days but not more than thirty clear days.

Conduct of the Proceedings:

If the court adjourns and resumes, or simply proceeds after satisfying itself that the accused has been served with the bill of indictment and statement of offence, the procedure specified in Section 184 shall then apply.

Per subsection 1, the prosecution may address the court and explain the case against the accused.

Per subsection 2, an address may be made by the accused or his lawyer in reply to the case against him. Subsection 3 provides that this address by the accused shall not be recorded.

4. Taking the Statement of the Accused Person:

A. General Requirement to Take Statement of the Accused Person:

In Section 187(1), it is provided that:

The Court shall, before deciding whether to commit the accused for trial, address to the accused the following words or words to the like effect:

“Before deciding whether to commit you for trial, I wish to know if you have anything to say in answer to the charge. You are not obliged to say anything, but if you have an explanation, it may be in your interest to give it now. What you wish to say will be taken down in writing, and if you are committed for trial, it may be given in evidence. If you do not give an explanation, your failure to do so may be the subject of comment by the judge, the prosecution or the defence.”

This statement is known as the statutory statement. It is essential to note that here, the court is not asking the accused whether he is guilty or not. That will be done in the High Court. The court is simply asking the accused if he has anything to say. In making this statement, subsection 6 of Section 187 provides that the accused does not have to be sworn (swear on oath). If the accused fails to make a statement, Subsection 7 of Section 187 provides that the failure may be the subject of comment by the judge, the prosecution, or the defence.

Also, unlike the non-recording of the address that may be given by the accused in reply to the prosecution’s case against the accused, Section 187(3) of Act 30 provides that:

The statement of the accused in answer to the charge shall be recorded in full and shall be shown or read over to the accused, who shall be at full liberty to explain or add to the statement.

If the accused decides to explain or add to the statement until it is conformable to what he declares to be the truth, Subsection 4 of Section 187 provides that:

The statement shall be attested by the District Magistrate, who shall certify that the statement was taken in the Magistrate’s presence and hearing and contains accurately the whole statement made by the accused.

Afterwards, subsection 5 provides that the accused shall sign or attest by mark the record. However, if he refuses to sign or attest by mark, “the Court shall add a note of the accused’s refusal, and the statement may be used as if the accused had signed or attested it.”

B. Rules on Taking the Statutory Statement:

In Section 187(2) of Act 30, it is provided that:

The Court shall comply with the rules set out in the Sixth Schedule as to the taking of a statement.

The provisions in the Sixth Schedule may be summarised as follows:

1. Generally, the accused cannot be cross-examined or questioned when making the statutory statement.
2. However, questions may be asked for the purpose of removing ambiguity in what the accused actually said. For instance, if the accused said something was done at 7:00, the court may ask whether in the morning or in the evening.
3. The court must also refer the accused to the requirement of Section 131 in relation to alibis. Said section 131 requires that if the accused intends to put forward a plea of alibi as a defence, he shall give notice of the alibi prior to the sitting of the trial court on the date to which the case of trial has been committed for trial. It is therefore important that the accused give the notice at the District Court during his statement.
4. If necessary, the court must explain to the accused in simple terms the meaning of an alibi. If the accused has this defence, the court should then tell him that he can explain his alibi to the court, even if at the time of the explanation he does not have the names of the witnesses by which he proposes to prove the alibi.
5. Sometimes, a statement made by the accused in his statutory statement may be inconsistent with an earlier statement he made. If this is the case, the court should draw his attention to the inconsistency and ask for corrections.
6. If the accused gives an explanation which causes the court to think it desirable that the prosecution should give further consideration to the case, the court should adjourn the proceedings for that purpose.

6. Deciding to Commit the Accused for Trial or Discharge the Accused:

After the taking of the statutory statement, the court must either decide to commit the accused for trial or discharge him. This power is conferred by Section 184 of Act 30.

A. Court Decides to Commit the Accused for Trial:

In Section 184(4), it is provided that:

Where the Court is of opinion that there is a case for the accused to answer, it shall commit the accused for trial to a court of competent jurisdiction, in this Part referred to as the trial Court.

The court commits the accused for trial by a committal order. Per Section 190, this order shall:

1. Contain the day, time and place at which the accused is to appear before the trial court in answer to the indictment.
2. In specifying the day, subsection 2 provides that the day shall not be more than one month after the date of committal.
3. However, failure to state the date, time, and place, shall not invalidate the order of committal.

B. Court Decides to Discharge the Accused:

In Section 184(5), it is provided that:

Where the Court is of opinion that there is no case for the accused to answer it shall discharge the accused, but, subject to clause (7) of article 19 of the Constitution, the discharge shall not be a bar to a subsequent charge in respect of the same facts.

This provision was interpreted in the case of State v. Bisa [1965] GLR 389-393 . In that case, the defendant respondent was charged with murder and arraigned before the District Court for committal. After the prosecution furnished the court with the bill of indictment and summary of evidence, counsel for the accused submitted that there was no case made against the accused and he should be discharged in accordance with Section 184 (5) . The magistrate accepted the submission and discharged the accused. The state appealed. In allowing the appeal, the court said:

the phrase "if...there is a case . . . to answer" must have a limited meaning or construction. " A case to answer" can only mean that if after due examination of the summary of evidence the magistrate comes to the conclusion that there is evidence, even a scintilla, to support the offence of which the accused stands charged, he must commit. It is not part of the duty to find out whether there is sufficient evidence to commit or for which the accused should be called upon to answer. If there is no evidence to support the charge, then he is obliged to discharge the accused. As pointed out by Mr. Creppy for the State, which point Mr. da Rocha conceded at this stage of the proceeding, the credibility or otherwise of the witnesses does not arise, since these witnesses have not been seen or heard in court.

If I am correct in the view I hold as to the interpretation of the section then I would say that there is a case for the respondent to answer. There are two persons who will give evidence that they saw the accused shoot. There are other persons who would say that they saw and heard the accused on the date of the incident. The question whether the evidence they will give will be "so manifestly unreasonable that no reasonable tribunal could safely convict upon it" will be for the trial judge to decide as a matter of law and at the close of the case of the prosecution.

Thus, no case to answer involves the existence of evidence to support the charge against the accused.

It is also essential to note if the accused is discharged, the discharge does not serve as a bar to subsequent proceedings. Thus, he can be arraigned before the court again on the same charge. This was explained in the case of Kuma v. The Republic [1968] GLR 757-760 as follows:

There is a plea of autrefois convict or acquit in our Criminal Procedure Code, 1960 (Act 30), which enables a court before which a subsequent charge is brought against a man already convicted or acquitted of the same offence to absolve him from liability to the second trial. But it will be noticed from section 113 of the Criminal Procedure Code, 1960 (Act 30), that this privilege from a second trial is limited to cases where the accused has once before been tried and convicted or acquitted by a court of competent jurisdiction on the same charge or any other charge of which he could have been convicted. There is nothing in the Criminal Procedure Code which accords the same protection to an accused who has not been tried but has merely been discharged. The principle on which the person properly tried before is freed from facing a second trial is based on the well known one that a person should not be put in jeopardy twice for the same offence. It is not written in so many words in section 113 of Act 30 but that as I see it is the rationale behind that section. How can the accused, who has never been tried on these charges, claim that he has once before been put in jeopardy or peril of a conviction ? He certainly cannot.

That a discharge by the magistrate is no bar from a subsequent charge on the same facts is made abundantly clear by section 184 (5) of the Criminal Procedure Code. Mr Adjetey has argued that "subsequent charge" must mean some different charge. I am unable to accept that view. It means any charge which is brought subsequent to the discharge, on the same facts. And that covers this case. I can see no reason why the expression "subsequent charge" must be restricted only to a charge different in nature from the first. And it is important that this should be the position. If the conduct of Mr. Hansen gives any illustration at all, it is that he was not sure of the law he was propounding on the first occasion. How can anybody be [p.760] sure that he was right the second time? Yet his was not the duty to try the accused to find out whether he was guilty or not of the offence charged.

It has been said here that as the district court is one in the Eastern Region and it has discharged the accused once, it is not open to the prosecution to bring the case before another magistrate to ask for a committal. On the contrary the law allows them to bring the accused on a subsequent charge on the same facts before the court and even if it is the same magistrate he has jurisdiction to go into the case again. The magistrate's jurisdiction in this case is founded on the position that the prosecution have preferred a charge, which they are entitled to, for a trial on indictment. And that under section 44 of the Code, this trial which has to be before the High Court or the circuit court cannot commence before the case has been brought before a district court and committed.

7. Acts After Committing the Accused for Trial:

A. Asking the Accused for his Witnesses:

In Section 188, it is provided that:

(1) The Court, on committing the accused for trial, shall ask the accused whether the accused desires to call witnesses at the trial.

(2) Where the accused states the desire to call witnesses, the Court shall cause to be taken down in writing the name, address and any other necessary particulars of each witness

(3) Where a witness is present in Court, the Court may bind the witness by recognisance, with or without surety, to appear at the trial to give evidence.

(4) The Court shall inform the accused of the accused’s right to require the attendance at the trial of a witness and of the steps to be taken by the accused for the purpose of enforcing the attendance.

(5) The accused may give notice to the District Court at any time before the date to which the accused has been committed for trial and at any time after that to the registrar of the trial Court of the desire of a witness to attend at the trial and the Court or registrar shall cause a summons to be served on the witness for the attendance at the trial.

This section is to ensure that the accused has persons who can provide evidence on his behalf to enable him raise reasonable doubt as to his guilt. It is possible that some witnesses, out of fear, malice, personal dislike of the accused, or convenience, may decide to not testify on behalf of the accused. This section ensures that the accused has witnesses.

B. Deciding to Admit the Accused to Bail or to Prison:

In Section 190(4) of Act 30, it is provided that:

The District Court shall admit the accused to bail or send the accused to prison for safe keeping until the day so named.

C. Transmission of Documents to Trial Court and Attorney-General:

In Section 193(1) of Act 30, it is provided that:

(1) On a committal for trial the bill of indictment, the summary of evidence, a recorded statement of the accused, the answer of the accused respecting the Court before which the accused desires to be tried, the recognisances of the witnesses, and of the recognisances of bail, and any other documents and things which have been delivered into the custody of the District Court, shall be transmitted in proper time to the trial Court [the High Court].

(2) An authenticated copy of the document referred to in subsection (1) shall be transmitted to the Attorney-General.

Conclusion:

After the committal proceedings, the trial will begin in the High Court. Subsequent notes will discuss that process.