When “Guilty” Is Not the Final Word: Seven Grounds for Challenging a Conviction Based on a Guilty Plea in Ghana

Introduction

When an accused person is arraigned, the substance of the charge is stated and explained to them, including the date, time, place, the person or thing affected, and the law creating the offence. The accused may then answer “guilty” or “not guilty.” In practice, a third response is common, namely “guilty with explanation,” even though, as the discussion below shows, Ghana’s Criminal and Other Offences (Procedure) Act, 1960, (Act 30) does not use that phrase itself.

A guilty plea is a serious matter, but it is not always the end of the road. Ghanaian courts have repeatedly held that where a guilty plea was unclear, mistaken, legally defective, or accompanied by an explanation amounting to a defence, the resulting conviction may be set aside, and in appropriate cases the accused may be acquitted and discharged. This article works through the three kinds of plea before turning to its central concern: the seven grounds on which a guilty-plea conviction can still be undone.

1. The Plea of Guilty

A plea of guilty means that the accused admits the offence charged, and, where properly taken, the court may convict and sentence without requiring the prosecution to call evidence. This is because a guilty plea is treated as a prima facie confession of guilt, capable of discharging the prosecution’s burden to prove the offence.

The court must nonetheless proceed with care, since a person charged with a criminal offence is presumed innocent until proved guilty or until they have pleaded guilty. An accused cannot be treated as having admitted guilt unless the admission is made in unmistakable terms, and the trial court must satisfy itself that the accused understands the charge, understands the consequences of the plea, and that the facts support the offence charged. Even where these requirements are satisfied, however, section 199(5) of Act 30 prohibits the court from accepting a plea of guilty to an offence punishable by death.

In the case of Darkurugu v The Republic [1989-90] 1 GLR 308-324, the High Court stressed that a guilty plea must be voluntary and intelligent. In other words, the accused must understand his rights, including the right to a full trial, the nature of the charge to which he is pleading, and the consequences of his plea. The plea must also be supported by a factual basis: the facts presented by the prosecution must support the charge, and the accused’s explanation must not tend to negate any of its essential ingredients, such as the requisite intent. It follows that the court must guard against any threat, promise, inducement or misunderstanding that could affect the plea before accepting it.

These safeguards matter because even a fine, a caution or a discharge following conviction can leave the accused with a criminal record and its attendant consequences. A valid guilty plea therefore requires more than the bare word “guilty”; it requires clarity, voluntariness, understanding and a factual foundation. Where these are absent, a conviction founded on the plea may be disturbed on appeal.

2. The Plea of Not Guilty

A plea of not guilty means the accused denies the charge, or does not admit all of its essential elements. Once such a plea is entered, the court must proceed to hear the case, and the prosecution bears the burden of proving the essential elements of the offence beyond reasonable doubt.

Under section 171(3) of Act 30, where the plea is not guilty, the court proceeds to hear the case; and under section 172 of the same Act, the court must hear the evidence adduced by the prosecution in support of the charge. The constitutional presumption of innocence likewise means that an accused who pleads not guilty remains presumed innocent until proved guilty according to law.

A plea of not guilty may also be entered by the court itself, where the accused refuses to plead, fails to plead under section 171(4) of Act 30, or gives an answer that is not a clear admission of guilt. For indictable matters, section 238 of Act 30 allows the court, where an accused stands mute or cannot answer directly to the indictment by reason of infirmity, either to enter a plea of not guilty or to determine whether the accused is of sound mind. This was made clearer in Moshie v The Republic [1968] GLR 1016-1026, where the Court of Appeal explained that where an accused person charged on indictment fails to plead, the court must first consider whether the accused is merely refusing to plead or is unable to plead by reason of infirmity of mind. If the accused can understand the proceedings, the judge may enter a plea of not guilty and the trial proceeds.

3. The Plea of “Guilty with Explanation”

“Guilty with explanation” arises where an accused pleads guilty but adds an explanation which the court must consider before deciding whether the plea amounts to a clear admission of the offence. This expression is common in Ghanaian criminal practice. As the Court of Appeal pointed out in Nokwe v The Republic [1999-2000] GLR 49, Act 30 does not use that phrase, and its ordinary plea-taking provisions formally recognise only guilty and not guilty pleas. That does not mean the practice floats free of the statute, however. It sits within, and is tested against, several connected provisions: section 171(2), which asks whether there is “sufficient cause to the contrary” before a conviction can follow a plea of guilty; section 199(4), which requires a plea of not guilty to be entered where an accused on indictment adds words indicating a possible defence; and section 238, which governs how a plea is taken and recorded where the accused’s response is not a straightforward admission. Read together, these provisions show that Act 30 has always required courts to look past the bare word “guilty” to what the accused actually said.

In Nokwe (supra), the Court of Appeal held that although the phrase itself is absent from the statute, the practice has become part of Ghana’s criminal procedure, and that a court receiving such a plea should convict only where the explanation does not amount to “sufficient cause to the contrary” under section 171(2). Where the explanation instead negatives the plea, by rendering it equivocal, the trial judge is disabled from convicting and must enter a plea of not guilty. On the facts of that case, the accused’s explanation disclosed a lack of knowledge of the narcotic substance found in his possession, negating an essential ingredient of the offence, so the conviction entered on the guilty plea could not stand.

Again, in Kwabena Appiah v The Republic¹, the Court of Appeal set out the approach a trial judge should take where an accused adds words to a guilty plea: the words must be recorded as nearly as possible, the court must assess whether they disclose a possible defence or otherwise render the plea unclear or ambiguous, and if they do, a plea of not guilty must be entered. The court adopted the guidance in Dorvlo v The Republic (2001-2002) 1 GLR 679 that the plea should be recorded, the explanation recorded word for word, the court’s assessment of the explanation recorded, and a conviction entered only if the explanation amounts to an admission of guilt.

When “Guilty with Explanation” Remains a Guilty Plea

Where the explanation does not deny the offence but merely asks for mercy or explains why the accused committed it, the court may still treat the plea as one of guilty. In Kojo Ameyaw v The Republic, Civil Appeal No H2/3/17 (Court of Appeal, 29 June 2017) (Unreported), the appellant explained that he had lost both parents, bore responsibility for younger siblings, and turned to robbery because things had become difficult; the Court of Appeal treated this as mitigation rather than a denial of guilt.

Furthermore, in Gundaa v The Republic [1989-90] 2 GLR 50-57, the High Court, speaking through Benin J (as he then was), made it clear that where the explanation is consistent with guilt and the accused maintains it, the court may convict on the plea after explaining its consequences. “Guilty with explanation” therefore does not automatically save an accused; everything depends on whether the explanation legally negates guilt or merely reduces moral blameworthiness.

When “Guilty with Explanation” Becomes Not Guilty

Where the explanation is inconsistent with guilt, discloses a defence, or renders the plea ambiguous, the court must enter a plea of not guilty and proceed to trial. Section 199(4) of Act 30 provides, for trials on indictment, that where an accused pleads guilty but adds words indicating a possible defence, the court shall enter a plea of not guilty and record it as entered by order of the court.

Even in summary trials, governed by section 171, the courts have held that the same principle applies: if the explanation creates “sufficient cause to the contrary” within the meaning of section 171(2), the court should not convict on the plea. In Gundaa (supra), the High Court held that there is no statutory plea of “guilty with explanation” under Act 30, and that it is wrong to convict on such a plea without first deciding whether the explanation is consistent with guilt. If it is consistent, the plea may be treated as guilty and a conviction entered; if it is not, the court must enter not guilty and proceed to a normal trial.

In Ntumy Francis @ CJ and Kwabena Boakye @ A1 v The Republic, No F17/02/2023 (Court of Appeal, 3 November 2022) (Unreported), the High Court applied the Gundaa case and held that where the accused’s explanation was capable of both an innocent and a guilty interpretation, the court should not resolve that ambiguity against the accused, since the burden remains on the prosecution to prove guilt beyond reasonable doubt. The conviction was accordingly set aside.

The fullest illustration of this principle is Notetio @ Kwame Anthony v The Republic², where the Court of Appeal held that a plea of guilty accompanied by an explanation that is not fanciful, but casts doubt on the genuineness of the plea, cannot be allowed to stand; the court must instead enter a plea of not guilty. The Court of Appeal explained that an admission of guilt must be genuine and free from controversy, since it amounts to a judicial confession carrying serious consequences, and that a trial court is not entitled to resolve any resulting doubt in favour of a conviction. On the facts, the court found that the prosecution’s own stated facts did not, in any event, support the charge, and that the appellant’s explanation went further still by negating the essential element of stealing. For both reasons, the conviction and sentence were set aside.

4. The Seven Grounds in Alpha Zabrama v The Republic

Having set out how the three pleas work in practice, the article now turns to its central concern. The leading Ghanaian authority on when a guilty-plea conviction may still be disturbed on appeal is Alpha Zabrama v The Republic [1976] 1 GLR 291, 298-302, decided by Taylor J (as he then was) at the High Court. Taylor J reviewed the Ghanaian, English and West African authorities in detail and drew out seven grounds on which an appellate court will interfere with a conviction entered on a plea of guilty, notwithstanding the general rule that a person convicted on their own plea has limited rights of appeal. He was careful to note that the list is not exhaustive, since the deciding question is always whether there has been a miscarriage of justice. Each ground is set out below in turn.

First: the accused did not appreciate or understand the charge, and pleaded guilty by mistake

This ground applies where the record shows that the accused did not truly understand what they were pleading to. In R v King³, the English Court of Criminal Appeal quashed a conviction where a warder’s conversation with the accused led her to change her plea to guilty in circumstances where, in Lord Reading CJ’s words, it was not clear that she understood what she was doing. The Ghanaian courts have taken the same approach: in Kofi alias Fiozo v The State⁴, Lassey J (as he then was) applied the same principle, consistent with the West African Court of Appeal’s decisions in Essien v R⁵ and Duah v Commissioner of Police⁶, both of which relied on Avory J’s classic formulation in R v Forde⁷ that, among other recognised circumstances, a plea of guilty, once recorded, may found an appeal against conviction where the accused did not appreciate the nature of the charge.  .

Second: the accused pleaded guilty to a crime that does not exist

Nothing is a crime in Ghana unless it has been made one by statute, or under statutory delegated power. It follows that a guilty plea to a charge disclosing no such offence cannot stand. Annan J (as he then was) applied this ground in Amadu v The State⁸, quashing convictions entered on guilty pleas to offences under regulations that, at the material time, no longer made the conduct charged illegal. The same reasoning underlies the more recent decision in Fuseini Alhassan v The Republic⁹, where the High Court held that a guilty plea is only valid where the charge discloses an offence known to law, and quashed a conviction for mining without a licence entered under a provision that had by then been repealed and re-enacted elsewhere, the trial court having in any event lacked jurisdiction under the Act as charged.

Third: the plea itself is ambiguous

As explained earlier in this article in relation to Notetio @ Kwame Anthony and Ntumy Francis @ CJ and Kwabena Boakye @ A1, a plea capable of more than one meaning cannot establish a conviction. Justice Taylor traced this ground to Ofei v The State¹⁰, where Ollennu JSC held that a court must not treat an accused as having admitted guilt unless they do so in unmistakable terms, citing the English cases of R v Golathan, R v Field, R v Ingleson and R v Emery¹¹. In Golathan, an accused charged with entering a dwelling house by night with intent to steal pleaded guilty to entering, but added that he had not entered to steal; the Court of Criminal Appeal held that this was not a plea of guilty at all, and that any ambiguity must be resolved in favour of a plea of not guilty. Annan J (as he then was) applied the same reasoning locally in Zongo v The State¹².

Fourth: the explanation given amounts to a defence

This ground connects directly to the discussion of “guilty with explanation” earlier in this article. Justice Taylor himself applied it as a High Court judge in Kotokoli v The Republic¹³, quashing a conviction for hunting a wild animal in a game reserve where the accused’s explanation, that he fired his gun in fright rather than to hunt, amounted to a defence that nullified the plea. It is the same principle already seen at work in Nokwe (supra), where the accused’s explanation negated knowledge of the narcotic substance in his possession, in Notetio (supra), and in Dorvlo‘s guidance on recording an explanation properly. Mahamadu Mumuni @ Osaman v The Republic¹⁴ illustrates the same point: an explanation showing, at most, presence at the scene did not admit the elements of robbery, so the conviction was set aside and the appellant acquitted and discharged. Justice Taylor traced the underlying principle to the West African Court of Appeal’s decision in R v Muambo¹⁵ and the English case of R v Durham Quarter Sessions; ex parte Virgo¹⁶, which held that where an explanation nullifies a guilty plea, a plea of not guilty must be entered.

Fifth: the plea, properly understood, is no plea at all

A related but distinct ground covers cases where the accused’s answer cannot fairly be treated as a guilty plea to the charge at all, for example where the accused pleads guilty to a lesser or different offence than the one charged, or where a plea is purportedly changed by counsel without the accused’s instructions. In R v Lloyd¹⁷, the accused was charged with breaking and entering but pleaded guilty only to entering; Lord Hewart CJ held that there had, in substance, been no plea at all to the charge as laid. In the Nigerian case of R v Nze¹⁸, defence counsel purported to change the accused’s plea from not guilty to guilty, without instructions, midway through the trial; the West African Court of Appeal held that the appellant had never in fact pleaded guilty, and that proceedings founded on a plea wrongly understood to have been entered are a nullity. Annan J applied the same principle locally in Yakubu v The State¹⁹.

Sixth: the prosecution’s own facts disclose no offence

A guilty plea is only as good as the facts the prosecution places before the court in support of the charge. Justice Taylor traced this ground to Osei Tutu v The State²⁰, where Koranteng-Addow J held that if no offence has in fact been committed on the prosecution’s own stated facts, both the charge and the plea are a nullity, and the accused need not have pleaded at all. The Court of Appeal took the same view in Amartey v The State²¹, following its own earlier decision in Dagomba v The State, holding that where the prosecution’s stated facts, as set out in the charge sheet, disclose no triable offence, the court should acquit and discharge the accused. Osei-Hwere J applied the same reasoning in Watara v The Republic²².

Seventh: the residual ground, any other miscarriage of justice

Taylor J (as he then was) was careful not to close the list. He added a seventh, residual ground: that in any situation not covered by the first six, an appellate court will still intervene where, having regard to the facts, there has been a miscarriage of justice in the trial court’s acceptance of an apparent guilty plea. Justice Taylor found statutory support for this residual ground in section 26(12) of the Courts Act 1971 (Act 372), now section 31 of the Courts Act, 1993 (Act 459), which permits an appellate court to allow an appeal in a criminal case wherever it considers that a conviction cannot be supported having regard to the evidence, is wrong in law or fact, or has otherwise resulted in a miscarriage of justice.

Conclusion

Taken together, these seven grounds show why a guilty plea, however final it may look on the day it is entered, is not always the last word. Ghanaian courts have consistently protected one simple idea: a conviction must rest on a plea that is genuine, informed and unambiguous, or, failing that, on proof beyond reasonable doubt after a fair trial. Anyone advising a client who has pleaded guilty, or considering an appeal against such a conviction, would do well to test the record against Justice Taylor’s seven grounds in Alpha Zabrama before assuming the case is closed.

Notes

1. [2021] DLCA 11559, accessible at <www.dennislawgh.com>.
2. JELR 111579 (CA), accessible at <www.judylegal.com>.
3. (1920) 15 Cr App R 13 (CCA).
4. [1965] GLR 28, 30.
5. (1950) 13 WACA 6, 7.
6. (1950) 13 WACA 85.
7. [1923] 2 KB 400, 403 (CCA).
8. High Court, Tamale, 17 March 1967 (Unreported).
9. [2024] DLHC 17825, accessible at <www.dennislawgh.com>.
10. [1965] GLR 680, 686.
11. R v Golathan (1915) 11 Cr App R 79 (CCA); R v Field (1943) 29 Cr App R 151 (CCA); R v Ingleson [1915] 1 KB 512 (CCA); R v Emery (1943) 29 Cr App R 47 (CCA).
12. High Court, Tamale, 16 March 1967 (Unreported).
13. High Court, Kumasi, 7 November 1969 (Unreported); digested in (1970) CC 24.
14. (2024) JELR 111816 (HC), accessible at <www.judylegal.com>.
15. (1941) 7 WACA 27.
16. [1952] 1 All ER 466 (DC).
17. (1923) 17 Cr App R 184 (CCA).
18. (1941) 7 WACA 24; see also R v Baker (1912) 7 Cr App R 217 (CCA); R v Ingleson (n 11); R v Hussey (1924) 18 Cr App R 121 (CCA).
19. High Court, Tamale, 17 November 1966 (Unreported).
20. [1965] GLR 593, 596 (Koranteng-Addow J).
21. Court of Appeal, 27 January 1967 (Unreported), following Dagomba v The State, Court of Appeal, 1 November 1966 (Unreported).
22. [1974] 2 GLR 24, 31.

By Fred Seth T. Mireku Jnr, Esq.

Kusi-Appiah and Associates