Trial in Absentia

A lot of cases in court have either stalled, abandoned, become stale or redundant because the accused persons have jumped bail after they were granted bail by the police and notified to appear before court or after they appeared before court and were granted bail by the court.

The immediate reaction of a number of prosecutors is to apply for a Bench Warrant for the arrest of the accused person. While this is not a bad idea, often the bench warrant never gets executed because the accused could not be found after multiple efforts by the Police and as new cases come up, focus is shifted to new cases and before you know the case is forgotten as investigators are already overwhelmed by cases.

For many prosecutors, the thinking is that, until the accused person is arrested the case cannot go on and the only available option is to go after the sureties. It is good to go after the sureties but the accused must still be held for his wrongs against the state.

The constitution,1992 provides for circumstances under which an accused shall be tried in absentia under Article 19(3)(a). it provides as follows:

(3) The trial of a person charged with a criminal offence shall take place in his presence unless

(a) he refuses to appear before the Court for the trial to be conducted in his presence after he has been duly notified of the trial; or

(b) he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the Court orders him to be removed for the trial to proceed in his absence.

Article 19(3)(a) received Judicial blessing in the case GEORGE BONSU @ BENJILLO v. REPUBLIC [22/12/99] CA NO. 7/98. MRS. JOYCE BAMFORD-ADDO, J.S.C, who presided and gave the lead judgement had this to say: -

“As I said earlier the 1st and 5th Accused persons together with the three others were all first put before the Circuit Tribunal but as soon as they were granted bail the 1st and 5th Accused persons, never appeared in court again. When a nolle prosequi was entered at the Circuit Tribunal and the case was transferred to the

Regional Tribunal they also failed to appear. At the Regional Tribunal the attention of the Tribunal was drawn to the fact that 1st and 5th Accused were absent in court and counsel for the Republic then submitted that under Article 19(3)(a) of 1992 Constitution the two absent accused persons who were aware of the charges against them and of their pending trial and who had intentionally absconded from this country even before the entry of the nolle prosqui, were notified of their trial and could therefore be tried in absentia. The court in the circumstances of this case, in my view, correctly ruled that the trial was to proceed in their absence.

In this appeal counsel for Appellant complains about (1) the trial of 1st and 5th Accused Persons in absentia and (2) the admission of their statements in evidence. It was submitted that the trial of the accused persons together with 1st and 5th accused was a nullity because those absconded Nigerians were not notified of their trial before the Regional Tribunal as stipulated under Article 19(3) of the 1992 Constitution and should not have been tried in absentia. Article 19(3)(a) says:

“The trial of a person charged with a criminal offence shall take place in his presence unless

(a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial.”

The two accused persons were notified of the charges against them and knew of their trial which started in the Circuit Tribunal in their presence but upon the grant of bail to them they absconded and refused thereafter to attend their trail, in fact they were not seen again at the Tribunal. They demonstrated by this conduct that they were not prepared to appear for any trail even though they know they were to be tried for drug offences, and the transfer of the case to a higher court would not have changed their intention as stated above. Under the circumstances the mere transfer of the same case to a higher Tribunal, cannot be said to alter the fact that they had been earlier notified of their trial, nor be allowed to nullify the earlier notification given to them.

Since by their own conduct of leaving this jurisdiction, they refused to stand trial and intentionally prevented service of any further documents on them they cannot be allowed to benefit from their misconduct and must be held to have known of their trial at the time of notification. In any case since they are not appellants herein, nor can their trial in absentia even if wrong (which is denied,) benefit the

Appellant, herein there is no need to belabour this point which is devoid of merit.”

Speaking on the same subject, Dr SETH YEBOA BIMPONG-BUTA in his book,

THE ROLE OF THE SUPREME COURT IN THE DEVELOPMENT OF CONSTITUTIONAL LAW IN GHANA, had the following to say:

“A person also has the right on being charged before a court to be present at his trial. However, article 19(3)(a) and (b) provides for the circumstances in which a person could be tried in absentia. First, the accused person must be notified to appear before the court for trial but if he refuses to do so, or if present at the trial, he conducts himself in such a manner that it is impracticable to continue with the trial in his presence; or if the court orders the removal of the accused from the court for the trial to proceed in his absence.

The true effect of article 19(3)(a) of the 1992 Constitution, on the question of trial in absentia of an accused, was considered by the Supreme Court in Bonsu alias Benjilo v The Republic [1998-99] SCGLR 112. Five persons, including the second accused and two Nigerians (the first and fifth accused persons), were first arraigned before a lower court, the Greater Accra Circuit Tribunal. All the accused persons had, before their arraignment been notified of the charges.

They were charged with three drug-related offences, including unlawful possession of a narcotic drug contrary to section 2(1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236). All the accused persons were subsequently granted bail pending trial by the circuit tribunal.

The case was, however, transferred to a higher court, the Greater Accra Regional Tribunal for trial. By then, the two Nigerians, the first and fifth accused, had jumped bail and absconded from Ghana. Nevertheless, the two Nigerians were tried in absentia on the same drug charges by the higher court, the regional tribunal, together with the three remaining Ghanaian accused persons including the second accused. All the accused persons were found guilty and convicted on the three-drug charges and sentenced accordingly.

Subsequently, the second accused and the other two accused persons, appealed to the Court of Appeal against their conviction and sentence but the appeal was dismissed. On a further appeal to the Supreme Court, counsel for the second accused argued that the trial regional tribunal had erred in trying the second accused and the other two accused persons together with the two Nigerians who had absconded and who had, indeed, not been notified of their trial in absentia before the regional tribunal, contrary to Article 19(3)(a) of the Constitution. It was further argued that the error had vitiated the whole trial.

The appeal was unanimously dismissed by the Supreme Court. The court, in a clear bid to develop the law on criminal trial in absentia of an accused person, reasoned that by absconding and thus refusing to attend their trial at the lower court, the two absconding Nigerians had made it clear that they were not prepared to appear before any trial despite knowing that they were to be tried for drug offences. The subsequent transfer of the case from the lower tribunal to the higher tribunal did not affect their intention to abscond. In effect, the transfer did not affect the fact that they had earlier been notified of their trial as required by Article 19(3)(a) of the Constitution.

By their own conduct of leaving the court’s jurisdiction, the two absconding accused persons had refused to stand trial and thus intentionally prevented service on them of any further documents. They must thus be held to have known of their trial in absentia.”

I believe the exposition above is self-explanatory and in addition to prosecutors asking for bench warrant, they should begin to exercise the option of hearing cases in absence of accused persons. The effect would be that, if prosecutors are able to prove their cases and get convictions, the moment the accused persons are arrested they are off to prisons.

From experience, the courts are reluctant to proceed when the accused has not made an appearance at all and prosecutors are seeking for trial to proceed under Article 19(3)(a). The lower courts seem to hold the view that, the accused must first be present in court and if he jumps bail then such an application can be made. A view I disagree with.

My understanding is that, Article 19(3)(a) has to do with notice and the only thing the court needs is for prosecutions to demonstrate that the accused had notice or was served notice of his trial and failed to appear. If the accused is in the custody of the Police or any state agency, then it is the prosecution’s duty to produce him before court but where accused is granted bail to appear and he fails to do so then, my candid opinion is that, the court cannot insist that, the prosecution should first produce the accused before it can come under Article19(3)(a).

There are various ways of instituting criminal proceedings, one of which is to serve the accused with a criminal summons which in this case is the notice of trial. If an accused failed to appear after service, should the court insist that, until he is compelled to attend, Article 19(3)(a) should not be invoked?

It is for this reason that, I would like to suggest that, the Police Legal Directorate should liaise with the Office of the Attorney General to have the supreme court make a definite pronouncement on whether or not Article 19(3)(a) should not be invoked against an accused person who have not previously appeared and failed to appear even though duly notified to appear.

Another option is for prosecutions to involved the Office of the Attorney General in such matters so that, the AG can appeal against such decisions at the lower courts. Most often than not, most prosecutors just lament about decisions of the courts that, they are unhappy with without informing the AG through their JUPOLs for such decisions to be appealed against (SI 198 provides for Police Appeals).

I will like to conclude by stating that, in addition to the verbal notice given to accused persons after grant of bail, a copy of the charge sheet should also be served on the accused. By this, the provision under sections 63, 64 and 65 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) on service of summons should be followed. It provides as follows:

63. Service of summons

(1) A summons shall be served by a police officer or by an officer of the Court issuing it or any other public officer, and shall, if practicable, be served personally on the person summoned by delivering or tendering to that person one of the duplicates of the summons.

(2) A person on whom a summons is served shall, if so required by the serving officer, sign a receipt of the summons on the back of the other duplicate.

64. Service when person summoned cannot be found

Where the person summoned cannot, by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for the person summoned with a person apparently over the age of eighteen at the usual or last known place of abode or business of that person.13(14)

65. Procedure when service cannot be effected as before provided

Where service in the manner provided by sections 63 and 64 cannot, by the exercise of due diligence be effected, the serving officer shall affix one of the duplicates of the summons to a conspicuous part of the house or homestead in which the person summoned ordinarily resides, and the summons shall be considered to have been duly served.

Supt Alex Odonkor

Legal and Prosecutions

Accra Region