The Duplicitous Count and the Late Amendment
The Attorney-General files an indictment in the High Court, Accra, charging Yaw Boateng with one count: ‘Statement of offence: stealing and dishonestly receiving, contrary to sections 124 and 146 of the Criminal Offences Act, 1960 (Act 29).’ The particulars allege that ‘on or about 3 June 2023 at Osu, you stole one Toyota Corolla vehicle valued at GH¢180,000 or dishonestly received the same vehicle knowing it to have been stolen.’ The vehicle’s registration number is not given. At the first appearance Yaw pleads not guilty. The case is adjourned for case management. The prosecution serves no witness statements until the morning of trial. After the prosecution closes its case, defence counsel applies to quash the indictment for duplicity and latent ambiguity. The prosecution responds that any defect is curable and asks to amend the count to ‘stealing’ only. The judge is inclined to allow the amendment and to recall two prosecution witnesses.
1. Is the count defective? Distinguish duplicity from want of particulars and explain the applicable test.
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The count is duplicitous. It joins stealing and dishonestly receiving in one count, with ‘or’ between them, although they are distinct offences with different elements: stealing requires an appropriation; receiving requires knowledge that the property was stolen. A single count alleging both leaves the accused unsure what case he must meet and creates a risk of a non-unanimous verdict. That is a defect of substance, not mere style.
Want of particulars is different: omitting the vehicle’s registration number may make the charge vague, but identity can be proved by other particulars such as chassis number, colour and owner. The accused’s remedy for want of particulars is a request for further and better particulars before plea. The test is whether the charge, read with the particulars, tells the accused the nature of the accusation with sufficient clarity to prepare his defence. Here the duplicity is the real problem; the missing registration number is secondary.
2. Should the court permit the amendment at this stage? What conditions, if any, should attach?
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The court has a discretion to permit amendment before judgment, but the stage matters. After the close of the prosecution case, an amendment that changes the offence can prejudice the accused because he may have conducted his defence on a different basis. The court should ask: what is the prejudice, can it be cured by an adjournment, recall of witnesses and costs? Amending from ‘stealing and dishonestly receiving’ to ‘stealing’ narrows the case but still changes the charge.
The proper course is to allow the amendment only on conditions: the amended charge must be put to the accused and a fresh plea taken; the accused must be at liberty to recall any prosecution witness and to lead further evidence; the prosecution should pay the costs of the adjournment; and the court should record that no unfairness is caused. If the amendment would introduce a new offence after the defence has closed, it should normally be refused.
3. If the prosecution, instead of amending, enters a nolle prosequi after the close of its case, what is the legal effect and what ethical issues arise?
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A nolle prosequi may be entered by the Attorney-General before judgment. Its immediate effect is to discharge the accused; it is not an acquittal and does not bar a later prosecution. But the power is not a tactical device to escape an adverse ruling. If it is entered after the close of the prosecution case, the court should scrutinise whether it is being used to avoid a no-case submission or to forum-shop.
The prosecutor’s ethical duties are to the court and to the fair administration of justice, not simply to win. The prosecution should be prepared to explain the public-interest basis, and the court may record its observations. A later re-prosecution on the same facts may be stayed as an abuse of process if the accused has been prejudiced. Defence counsel should ask for a discharge on the record and preserve the point for any future proceedings.