Appellant's Arguments

Counsel for the appellant argued that the trial judge relied on inadmissible and prejudicial evidence, violating her constitutional right to a fair hearing under Article 19(1) of the 1992 Constitution. Specifically, it was submitted that mere evidence of phone communication between the appellant and Nhyira could not, without more, establish an intention to instigate the robbery, and that the trial court wrongly relied on hearsay testimony from PW4 that should have been excluded under sections 116 and 117 of the Evidence Act, 1975 (NRCD 323). Counsel further argued that PW4's evidence was internally contradictory and unreliable, that the prosecution's failure to call Nhyira as a witness deprived it of certain evidential benefits under section 118 of the Evidence Act, and that the trial judge made a perverse finding by describing the appellant as having been "beaten and had sex with" by the robbers rather than accepting her account that she was raped.

On the defence-evaluation ground, counsel argued that the trial court failed to apply the settled three-tier test for assessing an accused person's evidence, and failed to give reasons for preferring the prosecution's case. On sentence, counsel pointed to two Court of Appeal decisions reducing sentences in robbery and narcotics cases, and argued that as a first-time offender who was a "good Samaritan," the appellant deserved a lighter sentence.

Court's Findings

The Court agreed, as a matter of principle, that the trial judge was under a legal duty, pursuant to section 173 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), to expressly determine at the close of the prosecution's case whether a prima facie case had been established before calling on the appellant to open her defence, and that the trial court's failure to do so was a genuine procedural irregularity. However, applying section 31(1) of the Courts Act, 1993 (Act 459) and treating the appeal as a full rehearing, the Court held that an irregularity of this kind only warrants setting aside a conviction where it occasions a substantial miscarriage of justice, and undertook its own independent review of the entire record to determine whether that threshold was met.

On the instigation evidence, the Court accepted that phone communication alone could not establish guilt, but held that it could not be viewed in isolation. Taken together with the appellant's admitted prior relationship with Nhyira, her handing him the phone moments before the call to PW4, the coincidence of PW4's presence on the same isolated bush route immediately afterwards, her false claims about a hotel and taxi supposedly arranged by her sister (which the sister denied under oath), and her shifting, contradictory statements to police, the Court found the circumstantial evidence formed a chain pointing irresistibly to the appellant's involvement, sufficient to establish a prima facie case of abetment by instigation.

On the hearsay complaint, the Court found it procedurally untenable: because counsel had not objected when PW4's witness statement was adopted in court, and had instead proceeded to cross-examine him on the contested paragraph, the hearsay was admitted by implied agreement under the principle in Edward Nasser & Co Ltd v McVroom [1996-97] SCGLR 468, leaving only a question of weight rather than admissibility. On the alleged mischaracterisation of the sexual assault, the Court found no perversity, holding that the trial judge had simply reproduced, in substance, language the appellant herself had used on oath.

Applying the three-tier test for evaluating an accused's defence, the Court found the appellant's explanation neither believable nor reasonably probable, pointing to a series of shifting and contradictory statements across her complaint statement, two caution statements, and her sworn testimony, including conflicting accounts of who booked the hotel and hired the taxi, later contradicted by her own sister, and an unexplained refusal to seek medical treatment despite an assurance that cost would not be a barrier. The Court held that her resort to falsehood under oath supported an inference of a guilty mind.

On sentence, the Court found that counsel had made no real attempt to identify specific mitigating factors the trial court had ignored, and that the record showed the trial judge had expressly considered a plea of allocutus before sentencing. Noting that the robbery was committed with a machete, attracting a statutory minimum of fifteen years under section 149 of Act 29, the Court held that a sentence of eighteen years, only marginally above that floor, given the planning and violence involved, could not be described as manifestly excessive.

Decision

The Court held that, notwithstanding the trial court's flawed procedural sequence, its ultimate conclusion was correct on the evidence, and that an appellate court will not disturb a correct decision merely because it was reached by imperfect reasoning. The entire appeal was accordingly dismissed, and the conviction and eighteen-year sentence imposed by the trial court were affirmed. The Court commended counsel for the appellant for a well-researched submission, notwithstanding its ultimate rejection.

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