Introduction to Trial on Indictment

Introduction:

One of the modes of trial in Ghana is trial on indictment. This note will discuss the meaning of trial on indictment, modes of conducting trial on indictment, the High Court as the only court to try offences on indictment in Ghana, and how trial on indictment is commenced.

Offences that are Tried on Indictment:

In Section 2(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) , it is provided that:

An offence shall be tried on indictment if—

(a) it is punishable by death or it is an offence declared by any enactment to be a first degree felony; or

(b) the enactment creating the offence provides that it shall be triable on indictment, and provides for no other mode of trial.

Summarily, an offence is triable on indictment if:

1. It is a capital offence: Currently, the offence that qualifies is high treason under Article 3(3) of the 1992 Constitution . This offence involves trying to overthrow the constitution or any part of it.

2. It is declared by any enactment to be a first degree felony: Under the Criminal Offences Act, 1960 (Act 29), the following offences, among others, are first degree felonies:

i. Attempt to commit murder, contrary to Section 48.

ii. Manslaughter contrary to Section 50.

iii. Abetment of suicide, contrary to section 57.

iv. Causing harm with the use of offensive weapon contrary to section 70.

v. Rape contrary to section 97.

vi. Unnatural carnal knowledge with a person of sixteen years or above contrary to section 104(1)(a).

3. The enactment creating the offence expressly provides that the offence is triable on indictment. For instance, in 2(1)(a) of the Anti-Terrorism Act, 2008 (Act 762) , it is provided that an act is a terrorist act if it is performed in furtherance of a political, ideological, religious, racial or ethnic cause and causes serious bodily harm to a person. Subsection 2 then provides that anyone who contravenes subsection 1 commits an offence “and is liable on conviction on indictment to a term of imprisonment of not less than seven years.”

It is essential to note the special provision in relation to robbery. In Section 149 of Act 29 (as amended by the Criminal Offences (Amendment) Act 2003, Act 646) , it is provided that the offence of robbery can be tried summarily or on indictment. In subsection 2, the Attorney General is entitled to determine whether the offence is tried summarily or on indictment.

Modes of Conducting Trial on Indictment:

An offence that is triable on indictment may be tried by:

1. Judge and jury

2. Judge with assessors.

This is provided in Section 204 of Act 30 which reads:

All trials on indictment shall be by a jury or with the aid of assessors in accordance with the provisions hereinafter contained.

Per Article 19(2)(a) of the 1992 Constitution, offences that are punishable by death or life imprisonment, other than high treason or treason, must be tried by judge and jury. In light of this provision, under Act 29, the following offences qualify:

i. Murder: Section 46 of Act 29 originally provided that “Whoever commits murder shall be liable to suffer death.” However, this section was amended by Section 1 of the Criminal Offences (Amendment) Act, 2023 (Act 1101) which now provides that the punishment for murder is life imprisonment. Given that Article 19(2)(a) covers both the death penalty and life imprisonment, murder still qualifies.

ii. Attempt to Commit Murder by a Convict: Section 49 of Act 29 originally provided that “Whoever, being under sentence of imprisonment for three years or more, attempts to commit murder, shall be liable to suffer death.” This too has been amended by Section 2 of Act 1101. Now the punishment is life imprisonment.

iii. Genocide: Section 49A of Act 29 originally prescribed death for the offence of genocide. This too has been amended by Act 1101 to life imprisonment.

Summarily, in cases where the punishment is for life, the court has no discretion but to try the case with a jury, as doing so is a constitutional requirement.

Under Act 30, various provisions are made for when a trial must be with a jury or with assessors. These may be summarised as follows:

1. If the offence is a capital offence, it must be tried with a jury, per Section 245 of Act 30.

2. An offence is tried with a jury if the Minister for Justice, by legislative instrument, decides that it shall be tried with a jury. This is provided for in Section 242(1).

3. If the offence is not a capital offence, and there is no legislative instrument directing that it be tried by jury, the accused or the Attorney General may apply to the court to try the case with assessors instead of a jury. If the court thinks the ends of justice would be served by doing so, the court can order trial with assessors per Section 242(2).

4. Also if the offence is not a capital offence, and there is no legislative instrument directing that it be tried by jury, the court may direct that the accused be tried with a jury per Section 243(2) .

The High Court as the Only Court with Jurisdiction to Try Offences on Indictment:

In Section 2(4)(a) of Act 30, it is provided that

Subject to any limitations on the jurisdiction of the Court—

(a) a trial on indictment shall be by the High Court or a Circuit Court;

Thus, under Act 30, the High Court and the Circuit Court have jurisdiction to try an offence on indictment.

However, in Section 43 of the Courts Act, 1993 (Act 459), as amended by Section 5 of Courts (Amendment) Act, 2002 (Act 620) , it is provided that:

A Circuit Court has original jurisdiction in all criminal matters other than treason, offences triable on indictment and offences punishable by death.

This provision effectively excludes the jurisdiction of the Circuit Court to try an offence on indictment.

Summarily, only the High Court has the jurisdiction to try cases on indictment.

Commencement of Trial on Indictment:

A trial on indictment starts with the preparation of a bill of indictment and a summary of evidence by the prosecution. These are briefly discussed.

A. The Bill of Indictment

Black’s Law Dictionary, 9 ^th ed., defines a bill of indictment as:

An instrument presented to a grand jury and used by the jury to declare whether there is enough evidence to formally charge the accused with a crime. See INDICTMENT; NO BILL; TRUE BILL.

The bill of indictment must contain the charges against the accused. This is provided in Section 182 of Act 30 which provides that “The prosecution shall furnish the Court and the accused with-a bill of indictment which shall state in writing the charge against the accused.” In Subsection 3 of Section 182, it is further provided that the bill of indictment must conform to the form and content in Sections 201 and 202. These sections reveal that each bill of indictment must contain a statement of offence and particulars of offence. Particularly in Section 202(2) , it is provided that:

Every indictment shall contain and shall be sufficient if it contains a statement of the offence with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars.

Below is a sample of bill of indictment:

B. Summary of Evidence:

Per Section 182(1)(b) of Act 30, a summary of evidence

Shall comprise a list of the witnesses whom 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.

Below is a sample of summary of evidence.

After the above documents are prepared by the prosecution, there should be a committal proceeding in the District Court where the court and the accused are furnished with these documents. This is provided for in Sections 181 and 182 of Act 30 . The committal proceedings shall be discussed extensively in subsequent notes.