LEGAL PRINCIPLE: CRIMINAL PROCEDURE — Alternative Conviction — Power to Convict for Lesser Offence Notwithstanding Acquittal on Main Charge
PRINCIPLE STATEMENT
Where an accused is wrongly convicted of a more serious offence but the evidence discloses a lesser offence, the appellate court may convict for the lesser offence even though the accused was acquitted of that lesser offence at trial.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Ahmed v. State (2001) NLC-271999(SC) at p. 13; Paras A–D.
"Although the appellant had been wrongly convicted of homicide, it is evident that the evidence disclosed a lesser offence for which he should have been convicted. On the facts as found by the trial court, I hold that the appellant committed the offence of voluntarily causing hurt by dangerous means contrary to section 248(1) of the Penal Code and should have been convicted of that offence."
EXPLANATION / SCOPE
An appellate court may substitute a conviction for a lesser offence even if the trial court acquitted on that lesser charge. The power is based on the principle that the evidence discloses the lesser offence. The accused is not prejudiced because the lesser offence is included in the greater charge. The court examines whether the elements of the lesser offence are proved. The rule applies where the evidence fails to prove the greater offence but proves the lesser. The court may exercise this power under criminal procedure codes. The accused must have had notice of the facts constituting the lesser offence. The principle ensures that justice is done without ordering a retrial.