AUTRE FOIS - CONVICT or ACQUIT Flashcards
AUTRE FOIS (ACQUIT or CONVICT)
This is a defence flowing from the principle of double jeopardy which dows not allow a person to be punished twice on the same facts by a court of a competent jurisdiction.
The general principle is contained in Article 19(7) of the 1992 Constitution and Section 113 of the Criminal (Procedure) Act (Act 30): that no person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted, shall be tried again for the same offence or for any other offence of which he could have been convicted at the trial.
AUTRE FOIS (Convict or Acquit) - Act/Offence
The principle of Autre Fois prevents a person from being punished for the same offence but not from being punished twice for the same act. So a person can be punished twice under two or more enactments for the same act if the act constitutes different offences under the different enactments.
AUTRE FOIS (Convict of Acquit) -
- What does Section 9(1) of Act 29 say?
- State a case and what the court held per Autre Fois
Section 9(1) of Act 29 provides that , subject to Art 19 of the constitution, where an act constitutes a criminal offence under 2 or more enactments, the offender is liable to be prosecuted and punished under either of the 2 or any of those enactments but the offender shall not be punished twice for the same offence, criminal or otherwise.
In Essien v The State, the court held that the accused could be charged with both dangerous driving under the Road Traffic Ordinance, 1992, and negligently causing harm under the then criminal code, 1960 (act 29) becuase it s not the law that a person should be punished twice fot the same office and these constituted 2 different offences. Amissah, in his book, agreed the Double Jeopardy is to prevent punishment for the same offence and not double punishment for the same act.
WHAT IS A PERSON ASSERTING THE DEFENCE OF AUTRE FOIS SUPPOSED TO PROVE?
- That he was tried by a court
- Of competent jurisdiction
- And that he was either acquitted or convicted
- On the same facts
(Section 117 of Act 30)
WHAT ARE THE EXCEPTIONS TO AUTRE FOIS (THE DOUBLE JEOPARDY RULE)?
The Exceptions to Autre Fois are:
- Retrial
- Disciplinary Measures
- Consequences Came Later
- Nolle Prosequi
- Competence of Court
- Treason or High Treason
- Disciplinary Force
AUTRE FOIS EXCEPTIONS -
- RETRIAL
RETRIAL - from an Appeal or Review
The first exception can be found in the same Art 19(7) and Sec 113 of Act 30, where a superior court in the course of an appeal or review proceedings relating to the conviction or acquittal, orders a retrial. In such a case the accused may be tried again on the SAME FACTS that led to the earlier conviction or acquittal.
AUTRE FOIS EXCEPTIONS
- Disciplinary Measures
Exception to Autre Fois - Disciplinary Measures Section 9(2) of Act 29 states that the general rule of Article 19(7) and S113 of Act 30 does not affect a right conferred by an enactment on a person to take disciplinary measures against the offender in respect of the act constitutiing the offence.
So a person tried under an enactment can ALSO be punished for the same facts under another enactment which allows such a right to take disciplinary measures against the defender.
AUTRE FOIS EXCEPTIONS
- Consequences (Con5equen5e5 as in 11-5 of Act 30)
S115 of Act 30 provides that where a person is convicted or acquitted of an offence from an act AND the act has caused consequences which at the time of the conviction or acquittal had not happened, the act TOGETHER with the consequences CONSTITUTE a different offence from the offence for which that person was acquitted/convicted and the person may be tried afterwards for the different offence which occurred as a result of the consequences.
SO under this exception a person is not being tried for the same offence but a whole different offence which arises out of the same facts.
(Limitation: S64(e) of S29 - see next Card)
LIMITATION TO THE CONSEQUENCES EXCEPTION TO AUTRE FOIS
Section 64(e) of Act 29 contains the one-year-and-a-day rule that the Consequences exception of S115 of Act 30 to Autre Fois is subject to. In that rule, death is not caused by harm unless the death takes place within a year and a day of the harm being caused.
In R v. Dyson, accused inflicted wounds on a man which caused death more than a year and a day later, and the Court held that, in the ABENCE OF RECENT INJURIES, the death COULD NOT HAVE BEEN ACCELERATED by the act of the accused.
AUTRE FOIS EXCEPTIONS
- DISCHARGE - NOLLE PROSEQUI or PROSECUTOR WITHDRAWAL
This exception exists where there has not been a conviction or acquittal but a ‘mere discharge’ under Nolle Prosequi. Nolle Prosequi is entered under Section 54 of Act 30, where an accused person is discharged by power granted the Attorney General.
The discharge shall not operate as a bar to subsequent proceedings against the accused in respect of the same case/facts. Also under Section 59 of Act 30, where a prosecutor WITHDRAWS from the prosecution of a person before the prosecution closes its case, the accused will be discharged but the discharge will not be treated as a bar to subsequent proceedings on the same facts. However if the prosecutor withdraws after prosecution has closed its case, the accused shall be acquitted and the double jeopardy rule applies.
EXCEPTIONS TO AUTRE FOIS
- Competence of Court
S116 of Act 30 provides that if the Court is not competent to try the offence subsequently charged for which the court tried and acquitted/convicted the accused in the first trial, the first trial, then a person may be tried for the same set of facts for any other offence arising from the same act(s). Under this exception, the previous trial must have been by a court of competent jurisdiction and so where the court is not competent to try any other offence which could have been brought against a person, that person can later be charged with and tried on the same facts for any other offence which could have been tried by the court but for want of competency to try that offence.
This seems confusing, but what it means is that, if the court could have tried the subsequent case but for want of competency, then the accused can be charged and tried (in another court) for another offence from the same act/facts
AUTRE FOIS EXCEPTIONS
- High Treason or Treason
Article 19(8) of the 1992 Constitution provides that, notwithstanding Art 19(7) which lays down the general rule, an acquittal of a person on a trial for high treason or treason will not be a bar for future proceedings on the same facts/act. This is because Art 140(3) provides that the HC shall, in a trial for treason or high treason, shall have no power to try someone for any other offence other than high treason or treason.
This means that for any other offence arising from the same facts for which the person could have been tried for treason/high treason and yet barred by Art 140(3), it may subsequently be charged and tried against that person.
AUTRE FOIS EXCEPTIONS
- Disciplinary Force
Under Art 19(16)(e), notwithstanding any trial and conviction or acquittal of a member of a disciplinary force under the disciplinary law of force for a criminal offence, a court may try that member of a disciplined force for that offence
(Even when punished ‘internally’ by the disciplinary force, the court may still try the person.)
ALIBI
Governed by Section 131 of the Criminal Offences (Procedure) Act, Alibi is a defense in law used by an accused to claim that s/he was not present at the scene of the alleged crime at the time of the crime
Notice of Alibi
Where an accused intends to put forward as a defense a plea of alibi, the accused shall give notice of the alibi, to the Prosecutor OR Counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove.
