REPUBLIC v. MAIKANKAN AND OTHERS

JUDGMENT OF BANNERMAN C.J.

Bannerman C.J. delivered the judgment of the court. This is a reference by way of a case stated by Aboagye J. as a result of submissions made by counsel in the trial of the accused persons at the Criminal Sessions held at Accra on 17 June 1971. The proceedings up to the time of the said submissions were as indicated in the case stated by the trial judge as follows:

"The ten accused persons were on 20 May 1971, committed by his worship Mr. E. T. A. Torto, District Magistrate, to the High Court, Accra, for trial on charges of conspiracy to defraud contrary to sections 23 (1) and 131 of the Criminal Code, 1960; defrauding by false pretences contrary to section 131 of the Criminal Code, 1960; forgery of document contrary to section 158 of the Criminal Code, 1960; uttering forged document, contrary to section 169 of the Criminal Code, 1960; and making illegal payments outside Ghana contrary to section 6 and paragraph 5 (1) of Part II of the Exchange Control Act, 1961.

None of the charges carries the death penalty or life imprisonment.

All the accused persons duly appeared before the High Court presided over by me, on 17 June 1971. They were all represented by counsel.

Before the charges could be read to the accused persons Mr. Gyeke-Dako, Chief State Attorney, pleaded that owing to the complicated nature of the case I was to try the case without jury. He read articles 20 (2) and 112 (2) of the Constitution, 1969, and submitted that since none of the charges carries the death penalty or life imprisonment I was competent to try the case without jury.

Mr. Kwaku-Boateng, counsel for the seventh, eighth and ninth accused persons, agreed with Mr. Gyeke-Dako.

The other defence counsel, through Mr. J. B. Quashie-Idun, however, disagreed with the learned chief state attorney and submitted that the interpretation put on article 20 (2) of the Constitution was wrong. Mr. Quashie-Idun referred to section 204 of the Criminal Procedure Code, 1960 (Act 30), (hereinafter referred to as Act 30) and submitted that the trial can only be heard by me and a jury."

The trial judge referred the matter to this court under and by virtue of the provisions of article 106 (2) of the Constitution for determination of the simple question "whether a justice of the High Court can try the charges against the accused persons herein without a jury."

The provisions of article 112 (2) of the Constitution provide that:

"The High Court of Justice shall be duly cons