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Criminal law - Possession of
Narcotic Drugs without Lawful
Authority - Evidence Act,
NRCD323 - Hearsay evidence
whether the prosecution led any
evidence to warrant the eventual
convictions - Whether or not
errors were committed to the
detriment of the appellant, and
thereby causing a miscarriage of
justice to the appellant.
HEADNOTES
The appellant at the time
material to this case was a
Police officer attached to the
Accra Regional Headquarters one
Maxwell Antwi, was arrested by a
Police Detective from CID
Headquarters, Accra on suspicion
of being in possession of a
narcotic drug. Indeed a search
on his person revealed some
whitish substance suspected to
be cocaine – a narcotic drug. he
mentioned Ekow Russel as the
one who gave him the drug to
sell on his behalf. Maxwell
Antwi and Ekow Russel were
charged jointly convicted and
sentenced by the High Court,
Accra, On appeal against his
conviction and sentence, the
Court of Appeal found no merit
in the arguments proffered and
dismissed same, thus affirming
the decision of trial court.
HELD
In conclusion and for all the
reasons rendered above, the
appeal is allowed. The decision
of the trial judge which same
was affirmed by the Court of
Appeal is hereby set aside.
Considering the totality of
evidence on record and the role
played by the appellant herein
in the events that led to the
charges against him, it is clear
that the accused is being
acquitted based upon a pure
technicality. On the whole
therefore, I do not find this to
be a suitable case to invoke
article 14 (7) of the
Constitution for the award of
any compensation. For the
avoidance of doubt, we do not
find the appellant in the
circumstance of this case,
suitable for the award of any
compensation. In conclusion and
for all the reasons rendered
above, the appeal is allowed.
The decision of the trial judge
which same was affirmed by the
Court of Appeal is hereby set
aside. Considering the totality
of evidence on record and the
role played by the appellant
herein in the events that led to
the charges against him, it is
clear that the accused is being
acquitted based upon a pure
technicality. On the whole
therefore, I do not find this to
be a suitable case to invoke
article 14 (7) of the
Constitution for the award of
any compensation. For the
avoidance of doubt, we do not
find the appellant in the
circumstance of this case,
suitable for the award of any
compensation.
STATUTES REFERRED TO IN JUDGMENT
Narcotic Drugs (Control,
Enforcement and Sanctions) Law,
PNDCL 236.
Act 30, the Criminal and other
Offences (Procedure) Act
CASES REFERRED TO IN JUDGMENT
Francis Yirenkyi vs The
Republic, CRA J3/7/2015
delivered on 17th
February 2016 (unreported), SC,
Rhodes (1954) 44 CR. App. R. 23
Rudd 1948 32 Cr. App. R. 138
Moore (1959) 40 Cr. App. R. 50
Republic v Munkaila (1996-97)
SCGLR 445,
Kwaku Frimpong @ Iboman vs The
Republic, [2012] 1 SCGLR 297
Antoh v The State 1965 GLR 676.
BOOKS REFERRED TO IN JUDGMENT
‘The Ghana Law of Evidence, 1993
Ofori Boateng
DELIVERING THE LEADING JUDGMENT
J.B. AKAMBA
COUNSEL
AUGUSTINE OBUOR FOR THE
APPELLANT.
MRS. EVELYN KEELSON (PSA) FOR
THE RESPONDENT.
JUDGMENT
AKAMBA, JSC:
There is a growing menace of
drugs infiltrating the very
fabric of our society. The
situation calls, not only for
concern but vigilance as well
amongst all in order to stem the
tide. This will not be achieved
by mere wishful thinking but by
willing, active and prudent
initiatives to expose the
miscreants and to bring them to
justice. The fact of the matter
is that those who indulge in
these activities know the
“rules” of engagement and
will do all it takes to beat
them. Against this background
the law enforcement agencies
must be current in modern
methods of stemming criminal
activities and in particular and
for our purpose, in meeting all
necessary requirements for
successful prosecution.
The strength of our criminal
justice system over the years
has not thrived on mere wishes
and speculation but by the
production of evidence that
meets the standard of proof of
crime in a court of justice.
Without the necessary evidence,
presented in accordance with the
rules of law, all the prior
efforts made in arresting a
suspect would be brought to
nought.
FACT BACKGROUND
This appeal lies from a decision
of the Court of Appeal dated 13th
February 2013 which affirmed the
appellant’s conviction and
sentence. The appellant at the
time material to this case was a
Police officer attached to the
Accra Regional Headquarters. On
27th March 2007 one
Maxwell Antwi, a car dealer at
Nyamekye, a suburb of Accra was
arrested by a Police Detective
from CID Headquarters, Accra on
suspicion of being in possession
of a narcotic drug. Indeed a
search on his person revealed
some whitish substance suspected
to be cocaine – a narcotic drug.
Upon interrogation, he mentioned
that the substance was part of
some nine hundred (900) grams of
similar substance that the
appellant Ekow Russel gave to
him to sell on his behalf.
According to the said Maxwell
Antwi, he had succeeded in
selling some of the drugs and
given the money to the
appellant. He was in the process
of selling the rest of the
substance when he was arrested.
It is apparent from the appeal
record that Maxwell Antwi and
Ekow Russel were charged jointly
as 1st and 2nd
accused respectively. On 7th
February 2008 the 1st
accused Maxwell Antwi changed
his plea to one of guilty and
was convicted and sentenced to
10 years IHL. Maxwell Antwi died
on 10th January 2009
while serving his sentence at
Koforidua Prisons. (See page 420
of ROA)
Based on these facts, the
appellant, Ekow Russell, was
tried and convicted by the High
Court, Accra and sentenced to 12
years IHL on counts 1 and 2 but
acquitted on count 3. On appeal
against his conviction and
sentence, the Court of Appeal
found no merit in the arguments
proffered and dismissed same,
thus affirming the decision of
trial court.
BASIC PRINCIPLES OF CRIMINAL
JUSTICE
Let me state certain basic
principles underlying our
criminal justice system as a
prelude to considering the
grounds of appeal raised before
this court. The first is that an
accused person is presumed
innocent until the prosecution
proves or establishes the
contrary. This is a
constitutional guarantee
provided under article 19 (2) (c
) of the Constitution 1992 which
states:
“19 (2) A person charged with a
criminal offence shall-
(c ) be presumed to be innocent
until he is proved or has
pleaded guilty.”
The next is that throughout the
trial of an accused person, the
prosecution has the burden to
prove each ingredient of the
charge (s) against the accused,
beyond reasonable doubt. Failure
to meet this high burden in
relation to one of the
ingredients of a charge must
resonate in an acquittal on that
particular charge. The
Prosecution must produce the
evidence to meet the
requirements of S. 11 (2) of the
Evidence Act, NRCD 323 which
provides that:-
“In a criminal action the burden
of producing evidence, when it
is on the prosecution as to any
fact which is essential to
guilt, required the prosecution
to produce sufficient evidence
so that on all the evidence a
reasonable mind could find the
existence of the fact beyond a
reasonable doubt.”
Lastly, our criminal justice
system is premised upon the
principle that it is better for
ninety-nine criminals to go away
scot free, than for one innocent
person to be wrongly
incarcerated or jailed.
ORIGINAL CHARGE SHEET
The trial High Court Judge
convicted the appellant herein
on counts one and two and this
was upheld by the Court of
Appeal. The following are the
charges that went before the
trial court:-
“Count One
Statement of Offence
Possession of Narcotic Drugs
without Lawful Authority,
Contrary to Section 2 of the
Narcotic Drugs (Control,
Enforcement and Sanctions) Law,
PNDCL 236.
Particulars of Offence
Ekow Russell, that you between
22nd and 27th
March 2007 in and around
Nyamekye, in Accra and within
the jurisdiction of this Court,
did have in your possession and
under your control, without
lawful authority, a quantity of
cocaine a narcotic drug.
Count Two
Supply of Narcotic Drugs,
Contrary to Section 6 (1) of the
Narcotic Drug (Control,
Enforcement and Sanctions) Law
PNDCL 236.
Particulars of Offence
1.
Ekow Russel, that you on or
about the 22nd March
2007 at Nyamekye in Accra and
within the jurisdiction of this
court did supply Maxwell Antwi
with a quantity of cocaine
without any lawful authority.”
GROUNDS OF APPEAL
Four grounds of appeal have been
filed for our determination,
namely:
1.
The Court of Appeal erred when
it affirmed the Appellant
conviction and sentence.
2.
The Court of Appeal erred when
it affirmed the admission of
Exhibit F and G into evidence.
3.
The Court of Appeal erred when
it also relied on Exhibit F to
affirm the conviction of the
Appellant.
4.
The Court of Appeal erred when
it failed to comply with a
decision of the Supreme Court.
ANALYSIS
I will consider the first three
grounds of appeal (supra)
together in relation to each of
the counts on which the
appellant was convicted. I will
embark on this with a break-down
of each of the above quoted
counts filed against the
appellant Ekow Russel to
ascertain whether indeed the
prosecution led any evidence in
proof of each of the counts to
warrant the eventual
convictions. I will also
determine the fourth ground of
appeal in the closing
considerations of the three
grounds of appeal.
COUNT ONE
The appellant was charged for
being in possession of narcotic
drugs without lawful authority.
What evidence was led by the
prosecution in proof of this
charge? Possession is the fact
of having or holding property in
one’s power; the exercise of
dominion over property. (See
Black’s Law Dictionary, Eight
Edition by Bryan A Garner).
Possession in law can be actual
or constructive. Possession is
said to be actual when one has
physical occupancy or control
over the property. It is
constructive when there is
control or dominion over the
property without actual
possession or custody of it.
What evidence did the
prosecution lead in proof of the
charge of possession by the
appellant herein, Ekow Russell?
The prosecution’s evidence in
proof of this charge is centered
on the testimony of PW2, Lance
Corporal Thomas Anyekase, who
arrested Maxwell Antwi in front
of Cata Hotel, Nyamekye (a
suburb of Accra) at which time
he was behaving suspiciously by
putting something in his
underpants after he had given a
similar thing to somebody. A
search on his person revealed
some whitish substance suspected
to be cocaine. He was arrested
to the CID headquarters in Accra
and handed over to the station
officer of the Organised Crime
Unit for investigation. Upon
interrogation by the station
officer, suspect Maxwell Antwi
indicated that the substance
found on him was part of some
900 grams of similar substance
the Appellant gave to him to
sell. That he had already sold
some of it and paid the proceeds
to the Appellant and was in the
process of selling the rest when
he was arrested. It was from
this piece of evidence that the
court was to conclude that the
appellant was in possession of
the whitish substance which was
subsequently confirmed to be
cocaine.
In our determination of this
ground of appeal it is important
to put the PW2’s evidence in
proper context. In the closing
stages of PW2’s testimony in
court this is what he said at
page 54 of the record of appeal
(ROA):
“He did interrogate Maxwell
Antwi and he admitted that the
substance he was holding or was
arrested with was cocaine and
that substance that he was
arrested with was given to him
by the 2nd accused
Lance Corporal Ekow Russell.
After handing him over I did not
do anything in respect to this
case because I was not the
Investigator whatever transpired
was between the investigator and
the accused persons.”
Then under cross-examination by
the 2nd accused
(appellant herein) this is what
the PW2 said:
“Q. You said you arrested
Maxwell at Nyamekye with the
substance and from Nyamekye to
the Police Headquarters, did
Maxwell ever mention my name to
you that I gave him that
substance?
A.
No my lord.
Q. And at the point of, as you
said Maxwell mentioned my name
to the Investigator, were you
there when he mentioned the name
or it was after that you heard
it?
A. It was after that I heard
that he mentioned your name.
Q. So it means that Maxwell
never told you that I, Ekow
Russell have a hand in whatever
he was possessing that time?
A. Yes my lord.
….
Q. So you agree with me that you
cannot say that Maxwell
mentioned my name as the
provider of whatever he was in
possession at that time?
A. That is during his arrest he
didn’t but I said from the
station officer or from the
investigator of the case during
interrogation that he mentioned
that his source of supply was
from you.
Q. You have just told this
court that you never
interrogated him and that the
interrogation was done by the
investigator and you later on
heard and I am saying that you
cannot come here and say that
Maxwell mentioned my name as
the provider of whatever he was
holding.
A. Yes my lord.”
The arresting officer PW2
admitted as underlined above
that he was not privy to the
so-called mention of the
appellant as the source or
provider of the drug for which
he arrested Maxwell. The
connection to the appellant was
based upon what he (PW2) learnt
later from the Investigating
officer, PW6 Happy Michael
Addae. This transmission is
obviously hearsay evidence. How
then can hearsay evidence
provide a foundation for
corroboration by PW6, because
you cannot put something on
nothing? Put differently, how do
you corroborate hearsay evidence
which is no evidence, so as to
achieve what results?
Whatever PW2 said about what he
subsequently heard as emerging
from PW6’s encounter with
Maxwell Antwi would be hearsay
so long as he (PW2) was not
present when it was uttered.
Admitting PW2’s testimony about
what he heard would be against
the hearsay rules provided under
s. 117 of the Evidence Act, NRCD
323. In simple terms the rule
against hearsay requires that a
witness should not talk about
something of which he has no
personal knowledge. He should
rely upon his own observation
and recall of the matter in
dispute. PW2’s testimony about
what happened between PW6 and
Maxwell Antwi, which amounts to
admissions, do not also fall
within the exceptions provided
under s. 119 of the Evidence Act
NRCD 323 because PW2 is not a
party to the charge in his own
capacity nor has the appellant
manifested his adoption of or
belief in the truth of the
statement. Equally important,
the appellant had not authorized
PW2 nor appointed him as his
agent to make the statement
concerning the mention of his
name as the source. Also, PW2
did not make the statement as a
co-conspirator in furtherance of
the crime. It is therefore
surprising that both the trial
judge and the honouable
appellate judges glossed over
this very important evidential
foundation which had not been
satisfied to pronounce that PW6
had corroborated PW2 that the
appellant was the source of the
cocaine retrieved from Maxwell
Antwi. Section 118 of NRCD 323,
would also not avail the
prosecution because at the time
the PW6 testified in this matter
Maxwell Antwi was available and
yet not called as a witness.
This section avails the
prosecution where the declarant
is unavailable as a witness. I
will return to this issue anon
when dealing with the hearsay
rules. The trial court and the
Court of Appeal simply refused
to be guided by Part VIII of the
Evidence Act, NRCD 323 hence
they fell into avoidable errors
to the detriment of the
appellant, and thereby causing a
miscarriage of justice to the
appellant.
Hear what the trial judge stated
at page 390 of the ROA:
“PW6 ASP Happy Michael Addae
formerly Chief Inspector who is
the Station Officer. And the
Investigator in this case
corroborated the evidence of PW2
that upon interrogating the
accused he mentioned that
Maxwell Antwi (sic) was his
source of supply of the cocaine.
PW6 also stated that in his
presence and of Maxwell Antwi,
the accused admitted that he
gave cocaine to the Maxwell
Antwi which he sold and gave the
proceeds being money to him. PW6
also testified that his presence
and the accused, Maxwell Antwi
informed him that he sold part
of the 900 grams of the cocaine
and he gave that money to the
accused. The accused also
confirmed this to him that he
received the US$9,700 as the
proceeds. PW6 also tendered
Exhibit B as the cocaine taken
from Maxwell Antwi when he was
arrested.”
There is obviously a mix-up in
the trial judge’s recount of the
narrative by PW2 because PW2
never interrogated Maxwell Antwi
beyond arresting him and handing
him over together with the
suspected cocaine. The PW6
cannot therefore corroborate
what the PW2 was not privy to.
The trial judge was therefore
wrong in his evaluation of the
evidence and the attributes he
gave to PW2 on the alleged
admission by the appellant.
CORROBORATION
Corroboration is defined in
section 7 (1) of the NRCD 323 as
consisting ‘of evidence from
which a reasonable inference can
be drawn which confirms in some
material particular the evidence
to be corroborated and connects
the relevant person with the
crime, claim or defence.’ The
essence of corroboration is to
confirm or support a proof of a
specific fact on which other
evidence has already been given
or would be given in due course.
This will give the inference
that the evidence already given
or yet to be given, when given
is more likely than not to
destroy or establish the fact in
issue. Since the testimony of
PW6 is based on hearsay evidence
the same cannot be allowed to
stand against the appellant. I
find the trial judge’s admission
of PW6’s hearsay evidence
against the appellant and its
subsequent endorsement by the
Court of Appeal wrongful and
pursuant to section 8 of the
Evidence Act 323, I hereby
exclude same from the record.
The first appellate court did no
better by also glossing over the
many wrongful inferences that
the trial court made and thereby
affirming the conviction on
count one.
In the result the conviction of
the appellant on count one which
same was affirmed by the Court
of Appeal is hereby set aside.
The appeal on count one could
have terminated at this point
but since other issues were
raised before us I would address
them, such as the question of
possession since that was a
matter of concern.
Possession offences in general
represent a particular category
of strict liability offences. In
spite of this, the courts have
recognized that the possession
must be voluntary in order to
constitute the actus reus of the
relevant offence. Even where no
knowledge is required in respect
of the nature of what the
accused possesses, there must be
knowledge that he possesses
something, which seems to imply
that the possession must at
least be voluntary. All these
elements do not come into play
in the present set of narrative
which must satisfy the very
first hurdle in a charge of
possession that is to say that
the accused (appellant) was in
possession either actual or
constructive. The appellant was
not arrested with the whitish
substance which was later
confirmed to be cocaine. He was
nevertheless charged for
possession simply because his
co-accused (late Maxwell Antwi)
mentioned him as the source of
the substance. In any case PW2
in his testimony before the
court did not say that the
appellant was mentioned as the
source of the substance.
It is significant to point out
that the evidence of PW6 was
composed of his viva voce
testimony of what he was told
and gathered during his
investigations into the case and
the written records particularly
the investigation caution
statements obtained from Maxwell
Antwi incriminating the
appellant as being the source of
the narcotic drug found on him.
These statements were tendered
in evidence at the trial. They
include exhibits L, K, and J.
(See pages 422 to 426 of ROA)
To admit these exhibits (supra)
simpliciter, as providing the
nexus that the prosecution was
required to lead evidence to
establish, would be to
underestimate the nature of the
burden the prosecution is
required to meet in a charge of
such magnitude.
In the case of Francis
Yirenkyi vs The Republic, CRA
J3/7/2015 delivered on 17th
February 2016 (unreported), SC,
I had occasion to elaborate on
the evidential value of
confessions made against other
accused persons. This is what I
stated:
“It is trite criminal law that a
confession made by an accused
person which is admitted in
evidence is evidence against
him. It is however not evidence
against any other person
implicated in it (See Rhodes
(1954) 44 CR. App. R. 23) unless
it is made in the presence of
that person and he acknowledges
the incriminating parts so as to
make them, in effect, his own.
This position is in contrast
with the evidence on oath of a
co-accused in a joint trial,
which is evidence for all
purposes, including the purpose
of being evidence against the
accused. (See Rudd 1948 32 Cr.
App. R. 138)
At common law the plea of guilty
of a co-accused was not evidence
against the accused (Moore
(1959) 40 Cr. App. R. 50).
In the instant case the
incriminating evidence relied
upon was made prior to the
arraignment. It was not evidence
given while they were jointly
charged when the co-accused in
his defence made the
incriminating statement. In such
instance, the co-accused against
whom the incriminating statement
is made has the opportunity to
discount the incriminating
statement in cross-examination.”
Thus in the instant appeal,
whereas the confessions made in
exhibits L, K and J would be
incriminating their maker,
Maxwell Antwi himself, they
cannot be used or weighted as
incriminating the appellant
herein unless the statements
were made in the presence of the
appellant and he acknowledges
the incriminating parts and
thereby making them his own. In
the light of the foregoing
determination, I find exhibits
L, K and J of no evidential
value such as to incriminate the
appellant herein.
THE HEARSAY RULE
The point has also been urged
that PW6’s testimony concerning
what Maxwell Antwi said
concerning the source of the
cocaine found on him ought to be
admitted as not constituting
hearsay thus justifying the
positions taken by both the
trial High Court and the Court
of Appeal. It is unfortunate
that, simple as they are, the
hearsay rules which are now
graciously codified and adopted
in statutory form in the
Evidence Act, NRCD 323 still
baffles practitioners in
prosecution, defence and even
the bench.
The fact of the matter is that
the question whether a matter is
hearsay or not cannot be
answered without establishing
what is it the court is invited
to infer from the evidence. In
this instance, PW6’s evidence is
being proffered to prove that
the person so mentioned is the
one who gave out the whitish
substance and thus committed the
offences charged and in those
circumstances the evidence would
clearly be hearsay. PW6 has no
personal knowledge of this fact
and relies upon information
derived from elsewhere or
someone else.
The trial court and the first
appellate court belabored over
the issue of constructive
possession being in the
appellant. In the case of
Republic v Munkaila (1996-97)
SCGLR 445, this court
highlighted the issue of
Constructive Possession.
In that case the
appellant arranged for the 1st
accused to smuggle narcotic
drugs into Ghana. The 1ST
accused was arrested with the
drugs. It was held that since
the appellant it was who
employed the 1st
accused to smuggle the drugs to
Ghana, he was deemed to be in
possession and liable
accordingly. Even though the
appellant was not found in
physical possession of the drug,
the court held that “a person
would be in in constructive
possession or joint possession
of an object if he had control
over the other person in
physical control of the article
as to its disposal, control or
otherwise. The actual manual
possession or touch of the goods
by the accused was unnecessary
for the completion of the
offence…”
The above statement of the law
on possession is sound. It is
premised upon a number of
considerations, key among which
is the fact that the court found
that it was the appellant who
employed the 1st
accused to smuggle the narcotic
drugs into Ghana hence he was
deemed to be in possession and
liable. In the present state of
affairs, the prosecution failed
to assemble credible evidence
that would pass the evidential
test required of them. Such
evidence must not be hearsay
evidence but evidence that would
be admissible under the rules of
engagement.
Here I pause to ask why the
prosecution failed to call
Maxwell Antwi as a witness. All
the issues about hearsay would
have been out of the question. I
have read what purports to be
the prosecution’s answer to this
question but that is
unconvincing. Fact of the matter
is that following his conviction
and sentence on 7th
February 2008, Maxwell Antwi was
available if the prosecution was
minded to invite him to be their
witness. Were it the case that a
witness could not travel to the
court for stated reasons, the
prosecution in appropriate
cases, could have applied to the
trial court invoking section 124
of Act 30, the Criminal and
other Offences (Procedure) Act
for a commission to issue
dispensing with his attendance
at the High Court and for a
District Court to examine the
witness and the outcome
transmitted to the trial court.
PW 6 testified in these
proceedings on 29th
October 2008 (See page 90 of
ROA). Maxwell Antwi died on 10th
January 2009. So that, between
his conviction date of 7th
February 2008 and his death on
10th January 2009
what was the prosecution waiting
for? Well, it was their case to
make.
Having failed to meet the
initial test, no further
consideration can be given to
the rest of the evidence put
forward by the prosecution since
you cannot put something on
nothing – it will collapse. As a
reminder section 11 (2) and 13
(1) of the Evidence Act, NRCD
323 provides:
“11 (2) In a criminal action the
burden of producing evidence,
when it is on the prosecution as
to any fact which is essential
to guilt requires the
prosecution to produce
sufficient evidence so that on
all the evidence a reasonable
mind could find the evidence of
the fact beyond all reasonable
doubt.
….
13 (1) In any civil or criminal
action, the burden of persuasion
as to the commission by a party
of a crime which is directly in
issue requires proof beyond a
reasonable doubt.”
ADMISSIBILITY OF CONFESSION
STATEMENTS
The strongest effort made by the
prosecution to sustain a
conviction of the appellant came
from their attempt to rely upon
a confession statement
purportedly made on 28th
March 2007 and accepted in
evidence and marked as Exhibit
F. A confession is an
acknowledgment in express words,
by the accused in a criminal
charge, of the truth of the main
fact charged or of some
essential part of it. By its
nature, such statement if
voluntarily given by an accused
person himself, offers the most
reliable piece of evidence upon
which to convict the accused. It
is for this reason that
safeguards have been put in
place to ensure that what is
given as a confession is
voluntary and of the accused
person’s own free will without
any fear, intimidation,
coercion, promises or favours.
Exhibit F was accepted in
evidence after a heated
controversy over its
voluntariness. Another
confession statement obtained
from the appellant, exhibit G,
was withdrawn because the
alleged independent witness
could not be identified. Since
an appeal is by way of
rehearing, the issue of the
admissibility of exhibit F,
being the subject of vehement
challenge in this appeal, would
be revisited. I would begin
consideration of the
admissibility of exhibit F by
observing that quite a number of
‘caution statements’ were
obtained from the appellant in
the course of these
investigations and tendered in
evidence. Exhibit C was obtained
on 11th April 2007;
Exhibit D was obtained on 29th
March 2007; Exhibit E was
obtained on 27th June
2007; Exhibit F was obtained on
28th March 2007.
Exhibit G a ‘further statement’
was obtained on 14th
April 2007 but was withdrawn.
(See pages 409 to 418 of ROA).
It is obvious from the exhibits
above listed that quite apart
from exhibit F in which the
maker admits the offence, the
rest (except for exhibit G which
was withdrawn by the
prosecution) are denials or
retractions. It is simply
because the exhibit F purports
to be a confession statement
hence the challenge to its
admissibility.
INDEPENDENT WITNESS
The appellant objected to the
tendering of exhibit F. His
reasons are that he did not give
such statement but that the
Chief Inspector Henry Addae
wrote a statement in his own
words of which he had no idea
and he was made to sign it while
he was in Mr Adu Amankwah’s
office on 28th March
2007. In brief, the statement
attributed to him was not his
making. There was also no
independent witness to the
signing. It is in order to
resolve such stalemates that the
Evidence Act, NRCD 323
stipulates for the presence of
an independent witness who will
help to determine the
circumstances in which the
statement was obtained. Who then
is an independent witness under
the Evidence Act, NRCD 323? J.
Ofori Boateng in his book
entitled ‘The Ghana Law of
Evidence, 1993, provides a very
useful and beneficial definition
of an independent witness
against the background of the
many difficulties encountered in
the earlier attempts at
disqualifying members of the
police and armed forces as
independent witnesses and the
requirement that the independent
witness be approved by the
accused. The present state of
the law is that policemen and
members of the armed forces qua
policemen and members of the
armed forces are not
disqualified per se but that
they must meet the standard
test. Thus at page 115 of his
book, the distinguished jurist
and author provides the
following inclusive definition:
“Independent witness may include
every person who qualifies to be
a competent witness and has
no direct personal
interest in the case in issue.
And so, even policemen and
soldiers who come from the
investigating stations may
qualify under the Decree to be
independent witnesses whether
the detained accused person
approves of them or not. An
incarcerated accused person
wishing to confess voluntarily
therefore has no choice but to
accept any competent
disinterested person imposed
on him by the investigating
police or military officer, even
when this disinterested
person is another policeman or a
military man.” [Underline
Mine]
It is against this working
definition and this court’s
earlier decision in the case of
Kwaku Frimpong @ Iboman vs
The Republic, [2012] 1 SCGLR 297
that I would consider the
objection taken to the admission
of exhibit F.
In the Iboman case (supra), this
court gave a vivid summary of
the rationale for the necessity
for the presence of an
independent witness when
obtaining confession statements
from accused persons. My
respected brother Dotse JSC
stated the rationale in the
following words:
“The rationale for the above
elaborate provisions is clear:
They are to ensure that the
rights of the declarant, i.e.
the accused, who is under
restriction, are not trampled
upon by the Police or the
investigative agencies. These
constitute the rights of all
accused persons as has been
protected by 1992 Constitution.”
The present case affords us an
opportunity to have another look
at our decision in the Iboman
case (supra) especially on the
question as to who is an
independent witness in the light
of section 120 of the Evidence
Act, NRCD 323. There is no
denying that section 120 (2) and
(3) of NRCD 323 is provided to
ensure fairness to an accused
person who volunteers to make a
confession while under State
restrictions. Thus the
safeguards enumerated in the
NRCD 323 (1975) are formulated
to protect the rights of the
accused that are guaranteed by
the Constitution 1992. In the
same vein the provisions of
section 120 of NRCD 323 are not
intended to stifle
investigations into crimes by
state agencies. It is common
knowledge the difficult and
harsh conditions under which
some of these agencies operate
in order to bring culprits to
justice. On the other hand, we
need to be mindful of the level
of impunity that agencies can go
to without proper guidelines to
streamline their operations.
The requirement for an
independent witness is dictated
by the need to grant both
investigators and accused
persons a transparent, fair and
even field for the proper
gathering of evidence. Two
illustrations will assist us in
arriving at a working definition
of the independent witness
envisaged under section 120 of
NRCD 323. In the course of these
investigations, exhibit G was
obtained from the appellant
herein. It was purported to be a
confession statement. It was
supposed to have been obtained
in the presence of an
‘independent witness’ - a
supposed aunt of the appellant
identified as Rosemary Asiedu on
14th April 2007.[See
page 417 of ROA]. The
prosecution was compelled to
abandon their reliance on that
statement because, not only did
the appellant deny making it,
they (prosecution) could not
trace Rosemary Asiedu from her
Aburi Secondary School address
that was given to them. The
prosecution claimed that the
witness had come to visit the
suspect (appellant) during the
investigations and was invited
by the investigator as a
potential independent witness.
The investigator thought he
could rely on her to witness the
statement of the suspect. This
choice was made without regard
to the purpose to be served and
the need for circumspection in
order to achieve those
objectives. The result was to
succumb to a witness who is
otherwise non-existent or who
could not be traced when needed.
The prosecution had no option
than to withdraw the statement
or suffer a humiliating
rejection by the court. The
problem with this ‘independent
witness’ (if indeed there was
such witness) was that she had
an interest which was better
served by swerving the
investigators in order to
absolve her relative. In the
same vein a policeman or soldier
or prison officer who is closely
involved with the investigation
team is likely to play bias in
favour of his duty calling by
simply not being truthful on the
matter in issue. It is therefore
not so much the institution one
belongs to that should determine
whether a person is qualified to
be an independent witness as
much as the level of interest
and closeness one has to or in
the particular case under
investigation. For the above
reasons I find this an opportune
occasion to clarify that the
segment of our decision in the
Iboman case which gives the
impression that police personnel
per se are excluded from being
independent witnesses when it
states to the effect that ‘an
independent witness must not be
someone who is so closely
connected to the police as to
make him more or less dependent
on the police’ as not properly
couched and as such not in
consonance with the intendment
of our s 120 of the NRCD 323 and
to that extent made per
in-curiam. In order to attain
the objectives of providing
adequate safeguards for a
suspect under investigation an
independent witness as used in
s.120 of NRCD 323 may include
any person who qualifies to be a
competent witness and has no
direct personal interest in the
case in issue. Such an
independent person must be a
person who is disinterested in
the matter under investigation.
At the official level, the
independent person should not be
directly under the control and
influence of the person
investigating the crime nor
himself be part of the
investigation team. In summary,
any person - be it a policeman,
a soldier, a prison officer,
other security investigating
apparatus or civilian - who
qualifies in terms of being
disinterested in the matter
under investigation, and is not
under the direct control and
influence of the person
investigating the crime, or is
not himself part of the
investigation team and qualifies
to be a competent witness may
serve as an independent witness.
The independent witness must
also meet the requirements of
section 120 (3) of NRCD 323. By
this provision the person must:
(a)
Understand the language which
the accused speaks
(b)
Can read and understand the
language in which the statement
is made
(c)
Must understand read and speak
English.
Against the above understanding,
I proceed to measure exhibit F
as to whether or not it was
obtained voluntarily and in the
presence of an independent
witness. The prosecution named
one Christopher Afful as the
independent person who witnessed
the recording of exhibit F. The
appellant disputes the presence
of any such witness as well as
the voluntariness of the
statement. The presence of the
independent witness is crucial
for determining the
voluntariness of the statement.
Equally important is the need
for the witness to be truly
independent in the sense of
being a disinterested person in
the matter being investigated in
order to give his testimony a
measure of credibility.
Recounting the events leading to
the choice of Police Constable
Christopher Afful at the
material time, this is what
Happy Michael Addae said at page
139 of the appeal record:
“Yes my lord I could remember on
the 28th of March
when I called accused on phone
and he came in police uniform. I
marched him before my Unit
Commander. So after my Unit
Commander interrogated him and
he confessed my Unit Commander
asked me and other policemen,
including Christopher Afful to
take the accused to his
residence and search him. So
after the search we came back
and I used Christopher Afful as
independent witness to witness
the statement I was taking from
accused.”
It is obvious from the account
given by Happy Michael Addae
that Constable Christopher Afful
was part of his investigation
team that went to search the
premises of the appellant for
anything incriminating failing
which, on their return, he used
him as the independent witness.
Here are excerpts from the
cross-examination of Constable
Christopher Afful during the
voire dire (See page 128 of
ROA):
“Q. All right I am sure my lord
understands my question so I
won’t pursue it. Now, on that
Wednesday afternoon I suggest to
you that you had no business
with Chief Addae until he called
you. Is that not so? You had no
business with Chief Inspector
Addae until he sent for you?
A.
No my lord
Q. You had business with him?
A. Yes my lord.
Q. What type of business?
A. We conducted search at A2’s
house, he was our commander at
that time.
Q. So Chief Addae led you and
others to go and search the 2nd
accused?
A. Yes my lord.”
It quite evident from the
record that Constable
Christopher Afful played an
important role in the
investigations into the
allegations against the
appellant culminating in the
search of the appellant’s
premises which he admits. Such a
person without doubt cannot be
described as a ‘disinterested
witness’. This is not because he
is a policeman but because of
his role in investigating the
appellant at the time. Any other
policeman who was not involved
directly in the investigations
could have passed the test for
an independent witness. Corporal
Christopher Afful was not a
disinterested person and could
not have dissociated himself
from doing the bidding of the
team leader or the team as a
whole, whether rightly or
wrongly. Thus he did not satisfy
the requirement of an
independent witness for the
purpose for which he purportedly
witnessed exhibit F. His
testimony concerning the
circumstances under which the
statement was obtained cannot be
trusted more so when he was part
of the investigation team. The
appellant denies the presence of
Corporal Christopher Afful at
the time the exhibit was given
to him to sign. He signed the
document because they threatened
to handcuff him and parade him
to his residence for the search.
Given the interest and role of
Constable Afful in this matter,
he did not qualify to serve as
an independent witness as
envisaged under s 120 of NRCD
323. His testimony and accounts
of events were warped to achieve
the objectives of the
investigations of which he was
an essential part.
Both the trial judge and the
appellate judges were unmindful
of the policy considerations
which underlie the requirement
for an independent witness and
thereby fell into the grave
error of accepting exhibit F as
a confession statement.
Underlying these policy
considerations are the need for
reliability of confessions
weighted against the indignity
and injustice of the use of
physical and psychological
coercion to extract
incriminating statements. The
question of reliability is
important because a confession
is a damning statement made by
the accused himself and it is
apt to be given considerable
weight by the tribunal of fact.
If the tribunal should choose to
believe that a confession was
made when in fact there was no
confession or that a particular
confession were true when in
fact it was false, it is very
likely that the wrong verdict
would be reached or at least
that the accused would be
seriously prejudiced. Since a
true confession is so highly
persuasive, care must be taken
to ensure that the tribunal of
fact does not credit evidence of
a confession unless there is
good reason to believe that the
confession was actually made in
the terms presented in court and
was a true and reliable
statement when made. (See the
commentary on the Evidence
Decree, 1975, NRCD 323, page
100)
By a strange and curious
coincidence exhibit D which was
obtained on 29th
March 2007, the very next day
after exhibit F was purportedly
made, bears a complete denial of
the charges levelled against the
appellant. In exhibit D the
appellant stated that Maxwell
Antwi trumped up the charges
against him because of their
rivalry over a girl-friend. See
also page 267 of ROA.
This case has all the hallmarks
of very poor investigation and
lack of professionalism. A lot
was taken for granted by the
investigators who were unmindful
of the fact that their desire to
bring culprits to justice for
infringing the criminal laws
must be matched by the
safeguards for the liberty of
the individual guaranteed by
law.
In the circumstances narrated
supra I find merit in this
ground of appeal and declare
exhibit F as not obtained in
accordance with section 120 of
NRCD 323 as amended by SMCD 237.
The so called independent
witness was unqualified to be an
independent witness.
Consequently, the exhibit F was
made in the absence of a
qualified independent witness
and same was wrongly admitted in
evidence by the trial court
after the voire dire. The
subsequent affirmation by the
Court of Appeal was equally
wrong. This certainly is one of
the situations in which this
court may appropriately expunge
the exhibit F as inadmissible
pursuant to section 8 of the
Evidence Decree. (See also
Edward Nasser vs McVroom
1996/1997 SCGLR 468). It is
accordingly expunged as an
exhibit pursuant to s. 8 of NRCD
323. Consequently the appeal on
this ground is allowed.
Our attention has also been
drawn to the case of Antoh v
The State 1965 GLR 676.
We have no doubt that the
statement of principle therein
made is correct. It is correct
to state that the admissibility
of a statement by a court does
not necessarily mean that the
statement is of evidential value
so as to automatically result in
conviction. A statement that is
admitted into evidence must be
weighted to determine whether it
is valuable enough to sustain
the conviction sought. The
present case is different. Here,
we are discounting the admission
of exhibit F as same did not
meet the prior requirement of
the presence of a qualified
independent witness before
obtaining the ‘confession
statement’ from the accused. In
essence the exhibit was obtained
in the absence of a qualified
independent witness which is a
necessary prerequisite of s. 120
(2) of NRCD 323.
COUNT TWO
The evidence relied upon to
sustain count one was the same
for this count except that in
the latter instance it was
proffered to establish a charge
of supplying narcotic drug
contrary to s 6 (1) of PNDCL
236. With the collapse of the
possession charge in count one
the second count of supplying
cannot stand. The simple reason
for this is that one cannot
supply what one does not
actually or constructively
possess. For the same reasons
advanced in allowing the appeal
against the appellant’s
conviction on count one, count
two equally fails. The appeal on
count two is consequently
allowed.
In conclusion and for all the
reasons rendered above, the
appeal is allowed. The decision
of the trial judge which same
was affirmed by the Court of
Appeal is hereby set aside.
Considering the totality of
evidence on record and the role
played by the appellant herein
in the events that led to the
charges against him, it is clear
that the accused is being
acquitted based upon a pure
technicality.
On the whole therefore, I do not
find this to be a suitable case
to invoke article 14 (7) of the
Constitution for the award of
any compensation. For the
avoidance of doubt, we do not
find the appellant in the
circumstance of this case,
suitable for the award of any
compensation.
The article 14 (7) of the
Constitution, 1992 states that:
“Where a person who has served
the whole or a part of his
sentence is acquitted on appeal
by a court, other than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where the acquittal is
by the Supreme Court, it may
order compensation to be paid to
the person acquitted.”
The appellant is acquitted and
discharged on both counts.
Appellant is not entitled to any
award of compensation.
(SGD) J.B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD) V.J.M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N.S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
AUGUSTINE OBUOR FOR THE
APPELLANT.
MRS. EVELYN KEELSON (PSA) FOR
THE RESPONDENT.
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