|
Criminal law
- Narcotic Drugs - Attempted
exportation of
Narcotic
Drugs – Possession of
Narcotic Drugs without lawful
authority - Whether or not the
Appeal Court judges erred in law
on the facts when they made
wrong inferences from the
evidence advanced at the trial
that the appellant attempted to
export narcotic drugs without
lawful authority - Whether or
not the learned Appeal Court
occasioned a grave miscarriage
- Narcotic Drugs Control
enforcement and Sanctions Law,
PNDCL 236
HEADNOTES
The facts as
presented to the trial court and
which formed the basis of
prosecution, conviction and
sentence of the appellant, were
that on 20th August
2006, workers at DHL offices in
Accra noticed an unusually large
parcel said to contain documents
for posting to the UK. When
examined it was found to contain
rather compressed leaves, which
tested positive for ‘cannabis
sativa’, a narcotic drug.
Further investigations by
officials of the Narcotic
Control Board revealed that the
first accused, a courier of the
company, had brought the parcel
to the office meant for
shipment. When questioned the
first accused said it was the
appellant who gave the parcel to
him and further denied all
knowledge of the contents of the
parcel. On his part the
appellant admitted giving a
parcel to the first accused but
asserted it was not the one
alleged to contain the drugs.
The grounds of appeal seemed to
say and mean one and the same
thing relating to inferences
drawn by the trial court and
affirmed by the Court of Appeal
with regard to the possession
and attempt to export the
prohibited drugs by the
appellant. The issue was could
the trial court have been right
in its findings and conclusions
and could the Court of Appeal
have been right in affirming the
judgment of the trial court
HELD
MAJORITY OPINION
There was
evidence that the illicit parcel
was to be exported to the U.K.
when the appellant gave it to
the first accused a DHL courier.
The evidence by the appellant
that he did not know of the
contents to have been sativa
cannabis was false, neither was
it reasonably true judging from
his acts and behaviour. In the
circumstances the lower courts
were justified in finding the
appellant guilty of both
offences, convicting him
accordingly and imposing the
sentence on him. They are
further affirmed by this court
and the appeal dismissed
MINORITY OPINION
The evidence
on record cannot be said to be
one which works by cumulatively
eliminating other possibilities
in a geometric progression. The
plausibility of the accused
person’s innocence is deafening.
It is for the foregoing reasons
that I allow the appeal set
aside the conviction and
sentence and enter a not guilty
verdict for the appellant on
both counts.
STATUTES
REFERRED TO IN JUDGMENT
Narcotic
Drugs Control enforcement and
Sanctions Law, PNDCL 236
Evidence
Decree 1975 (N.R.C.D 323)
CASES
REFERRED TO IN JUDGMENT
The State v
Anani Fiadzo [1961] 1 GLR 416
Duah v The
Republic [1987-88] 1 GLR 343
Logan v. The
Republic [2007-2008] 1 SCGLR 76
The State v
Anani Fiadzo [1961] GLR 416 S.C
Bonsu alias
Benjilo v The Republic [2000]
SCGLR 112
Republic v
Munkaila [1996-97] SCGLR 445
R v Smith
Dearsley and PCC 494
R v Gleed
(1917) 12 CR App. R. 32a
Warner v
Metropolitan Police Commissioner
[1969]2 A.C. [1969] 2 All E.R.
356,
Amartey v The
State [1964] GLR 256
Nyameneba v
The State [1965] GLR 723,SC.
Sweet v
Parsley [1970] A.C. 132
Brend v. Wood
(1946) TLR 462
Bonsu v. The
Republic [ 1999-2000]IGLR 199
Teper v. R
[1952] AC 480
Anane v.
Fiadzo 1961 1 GLR 416
BOOKS
REFERRED TO IN JUDGMENT
Archbold
Criminal Pleading, Evidence and
Practice (36th ed.)
Adrian Keane
in the Modern Law of Evidence,
Third Edition
DELIVERING
THE LEADING JUDGMENT
ANSAH, JSC:
DESSENTING
BAFFOE-BONNIE, JSC:
COUNSEL
NENE
AMEGATCHER ESQ. FOR THE
APPELLANT.
VALARIE
AMARTEY (CSA) FOR THE ATTORNEY
GENERAL.
J U D G M E N
T
______________________________________________________________________
ANSAH, JSC:
Each accused
was charged with and convicted
for the offences of:
“COUNT ONE
STATEMENT OF
OFFENCE.
Attempted
exportation of Narcotic Drugs
without lawful authority
contrary to Sections 56 (a) and
1(1) of the (Narcotic
Drugs Control enforcement and
Sanctions) Law, PNDCL 236.
PARTICULARS
OF OFFENCE.
1
ROGER
OCLOO 2 ELLIS TAMAKLOE on or
about 29th August
2006 at the DHL Office, Kanda in
Accra, in the Greater Accra
Region did attempt out of Ghana
without any licence issued by
the Minister of Health, a
quantity of Cannabis Sativa a
Narcotic Drug, weighing 695g.
COUNT TWO
STATEMENT OF
OFFENCE
Possession of
Narcotic Drugs without lawful
authority
contrary to
Section 2 of the Narcotic Drugs
(Control Enforcement and
Sanctions) Law, 1990, PNDCL)
236.
PARTICULARS
OF OFFENCE
1 ROGER
OCLOO, 2 ELLIS TAMAKLOE, on or
about the 29th August
2006 in Accra in the Greater
Accra Region, without lawful
authority, did have in your
possession and under your
control a quantity of Cannabis
Sativa , a Narcotic Drug
weighing 695 g.”
The accused
were found guilty on both
counts, convicted and sentenced
to the minimum 10 years jail
term on each count to run
concurrently.
The
prosecution gave evidence
through five witnesses and
closed its case, after which the
accused persons opened their
defence but called no witnesses.
The second
accused (hereafter called the
appellant) was aggrieved by the
conviction and sentence and
appealed to the Court of Appeal,
which dismissed the appeal on
both counts. The appellant once
again appealed to this court
against the judgment of the
Court of Appeal on the grounds
that:
1.
“The
learned
Appeal Court judges erred in law
on the facts when they made
wrong inferences from the
evidence advanced at the trial
that the appellant attempted to
export narcotic drugs without
lawful authority contrary to
Section 56(a) and (1) of the
Narcotic Drugs Act, PNDCL 236.
2.
The
learned Appeal Court occasioned
a grave miscarriage of justice
and in the process erred when
they held that the appellant had
possession of narcotic drugs
without lawful authority
contrary to section 2 of PNDCL
236 when no evidence was adduced
to support that finding.
3.
The
learned Appeal Court Judges
failure to consider the evidence
led at the trial that the parcel
originated from one Harry
Campbell occasioned a
miscarriage of justice when they
concluded that the parcel
originated from the appellant.
4.
The
learned trial judge and the
Appeal Court Judges occasioned a
grave miscarriage of justice and
misdirected themselves on the
law of circumstantial evidence
when they held that the
appellant was guilty of the
offences of attempting to export
narcotic drugs without lawful
authority contrary to section 2
of PNDCL 236
5.
Further grounds of appeal would
be filed upon receipt of the
reasons for the judgment and the
Record of proceedings,”
The facts as
presented to the trial court and
which formed the basis of
prosecution, conviction and
sentence of the appellant, were
that on 20th August
2006, workers at DHL offices in
Accra noticed an unusually large
parcel said to contain documents
for posting to the UK. When
examined it was found to contain
rather compressed leaves, which
tested positive for ‘cannabis
sativa’, a narcotic drug.
Further investigations by
officials of the Narcotic
Control Board revealed that the
first accused, a courier of the
company, had brought the parcel
to the office meant for
shipment. When questioned the
first accused said it was the
appellant who gave the parcel to
him and further denied all
knowledge of the contents of the
parcel.
On his part
the appellant admitted giving a
parcel to the first accused but
asserted it was not the one
alleged to contain the drugs.
The grounds
of appeal seemed to say and mean
one and the same thing relating
to inferences drawn by the trial
court and affirmed by the Court
of Appeal with regard to the
possession and attempt to export
the prohibited drugs by the
appellant. The issue was could
the trial court have been right
in its findings and conclusions
and could the Court of Appeal
have been right in affirming the
judgment of the trial court?
It is not
always that there will be direct
evidence to prove the commission
of an offence and circumstantial
evidence has often been used.
The leading case of
The State
v Anani Fiadzo [1961] 1 GLR 416-419
the Supreme Court held that:
“A presumption from
circumstantial evidence should
be drawn against an accused
person only when the presumption
follows irresistibly from the
circumstances proved in
evidence; and in order to
justify the inference of guilt,
the inculpatory facts must be
incompatible with the innocence
of the accused and incapable of
explanation upon any other
reasonable hypothesis than that
of guilt.”
In other
words, as was held in
Duah v
The Republic [1987-88] 1 GLR 343-360,
it was only when the guilt of an
accused person had necessarily
to be inferred from the facts
before the court that it would
be safe for a court to act upon
circumstantial evidence. In a
recent decision by this court in
Logan v
The Republic [2007-2008]
Aninakwa JSC re-echoed the law
on circumstantial evidence when
he said:
“… for circumstantial evidence
to support a conviction it must
be inconsistent with innocence
of the accused. It must lead to
irresistible conclusion not only
that the crime had been
committed but it was in fact
committed by the persons charged
in order to arrive at a definite
conclusion. Conviction based on
circumstantial evidence which is
not supported by facts is
wrongful.”
I think the
trial judge herein was right in
her statement on the law of
circumstantial evidence when she
said:
“The primary
burden on the prosecutor to
prove the guilt of the accused
beyond reasonable doubt may not
always be discharged by the
provision of direct evidence. As
stated in section 18(2) of the
Evidence
Decree 1975 (N.R.C.D 323),
Circumstantial evidence
including the acts of the
accused may point to one and
only one inference which may be
sufficient proof.
The State
v Anani Fiadzo [1961] GLR 416
S.C.”
This being a
criminal trial, the prosecution
bore the onus of proving the
offence beyond reasonable doubts
in order to secure the
conviction of the appellant. The
ingredients of the offence of
possessing narcotic drugs as
can be gleaned from the offence
created by section 2 of the
Narcotic Drugs Control,
Enforcement and Sanctions Law ,
1990 PNDCL 236 which provided
that:
“2 Any person
who without lawful authority,
proof of which shall be on him,
has in his possession or under
his control any narcotic drug
commits an offence.”
To secure a
conviction of a person charged
with the offence of possessing a
narcotic drug under PNDCL 236,
the prosecution must prove
beyond reasonable doubts that
-
“the appellant had custody
or control of the drugs;
-
he knew of the presence of
the drugs; and
-
he knew of the nature of the
drugs possessed”:
see
Bonsu
alias Benjilo v The Republic
[2000] SCGLR 112 at 123.
It is not
always capable of proving the
commissioning of an offence
especially, those dealing with
narcotic drugs, by direct
evidence considering the
sophistication with which the
offence is committed, which is
always increasing.
Circumstantial evidence is often
resorted to for it is often the
best…. Bamford-Addo could
not have been more right when
she said at page 123 that:
“The proof of knowledge or mens
rea is not capable of direct
proof but same may be inferred
from established facts as stated
in Section 18 2 of the Evidence
Decree, 1975, NRCD 323. s18 2
states as follows: ‘An inference
is a deduction of fact that may
logically and reasonably be
drawn from another fact found or
otherwise established in the
action.”
The case of
Republic
v Munkaila [1996-97] SCGLR 445
dealt with what constituted
the offence of possession of
narcotic Drugs, and decided
that:
“A person is said to be in
constructive possession or joint
possession of an object if he
has control over the other
person in physical control of
article at his disposal, control
or otherwise. The actual manual
possession or touch of the goods
by the prisoner, however, is not
necessary to the completion of
the offence. It is sufficient if
the prosecution can prove that
the article was in the
possession of a person over whom
the defendant or accused had
control so that the article
would be forthcoming if he
ordered it: see
R v Smith
Dearsley and PCC 494; R v Gleed
(1917) 12 CR App. R. 32a and
Archbold
Criminal Pleading, Evidence and
Practice (36th ed.)
at 780 at para 1531”.
What were the
facts which the trial judge
found as established by the
evidence and from which she
inferred the appellant committed
the offences in question?
Details of
the facts have been given
earlier in this opinion and to
recapture them it is that in his
defence, the appellant admitted
that he received a sealed parcel
from one Harry Campbell but he
never opened to see the
contents. Harry Campbell told
him the envelope contained
catalogues. But what he received
was different from what the
prosecution showed him on his
arrest. Whether or not the
envelope or parcel the appellant
admitted he gave the first
accused was different from what
was tendered in evidence was a
question of fact to be
determined by evidence before
the trial judge. The learned
judge found the appellant
admitted giving a parcel to the
first accused and further
testified that he had personally
written his name and address of
the consignee on the airway bill
found attached to the parcel. He
had seen that the space for the
name of the consignor had
already been indicated wrongly
as the Company called Friesland.
Was there any
evidence that there was any
signature on the parcel and that
it belonged to the appellant? If
there had been that proof then
the appellant would have had to
explain how that came to be and
so was easy and reasonable to
deduce it established an
infrangible nexus between the
appellant and the parcel. The
appellant appended his signature
on the parcel and admitted
receiving the parcel from Harry
Campbell. That constituted
physical possession thereof;
which possession continued when
he also admitted giving it to
the first accused even if that
was so constructively. The
prosecution succeeded in proving
the appellant had possession of
the parcel. The conviction on
count one was therefore
supported by evidence.
Knowledge
that what he possessed was
Cannabis Sativa a narcotic drug
was largely a matter of
inference deduced from the
evidence led and it is to that
that I shift my focus now. Quite
apart from that the appellant
possessed the parcel, he said he
noted the address of the sender
on the pre-printed airway bill
on the parcel as having not been
his. Harry Campbell had given it
to him for postage and the query
is if he knew that Harry gave
the parcel to him for postage
and he was doing that when he
gave it to the first accused
non-appellant why did he not
write either his name or that of
Harry as the sender when he saw
it was that of Freisland
Company? In his evidence under
cross-examination, he said:
“Q Did you
give him any shipment details
for the parcel?
-
It was on the envelope-the
senders address and the
Recipient address
Q The first
Accused person said you did not
give him any senders address for
the parcel you gave him?
A
Senders address was on the
envelope.
Q Do you
remember what it was?
A. I
can’t recollect but it was Harry
Campbell’s name but the address
I cannot recollect.
Q. You
said the first accused gave you
an airway bill when you gave the
parcel to him?
A. Yes
My lord.
Q. And
you filled in some details on
the bill?
A.
Yes, my Lord. He showed me where
to fill.
Q.
Have a look at this. Was that
the airway bill you filled on
that day?
A.
Yes, I believe so.
Q. Do
you remember the recipient
address?
A I
remember my hand writing ( words
italicized for emphasis.)
BY COURT: A
2 WAS SHOWN EXHIBIT A.
Q. Was
that the airway bill Mr. Ocloo
gave you when you gave him the
parcel?
A.
Yes I believe so because my hand
writing is there (emphasis
supplied)
Q. And
you said that that bill he gave
you was there a portion for
senders
address?
A. Yes
My Lord.
Q.
But?
A. But
I realized that it has been
filled with a company address.
Q. You
did not find any thing strange
about that one?
A. I asked
him and he said they had run
short of airway bill so he will
change it
when he gets to the office.
X
x
x
Q. After you
had filled this form what
happened?
A During the
filling of the airway bill I
realized that the sender’s
address side was filled and he
told me that they had run out of
blank airway bills so he will go
to the office and put the
information on a blank airway
bill so there is no need for me
to sign.”
From the
evidence, the appellant found it
strange that the parcel Harry
Campbell gave him for shipment,
had been filled with a company
address in the portion for
sender’s address. It was not
difficult to find why it was
strange to the appellant; simply
put, the company was not the
sender of the parcel. Yet that
was the airway bill the
appellant signed that day,
thereby making it his own. And
he gave it to the first accused
non-appellant for shipment. In
other words the appellant
physically possessed the parcel.
That plainly was manual or
physical possession of the
parcel and its contents, thus
satisfying a vital ingredient in
the offence in count two.
That alone
will not lead to the guilt of
the appellant for not only must
the prosecution prove the factum
possidendi by the appellant, it
must also be proved he had it
coupled with the animus
possidendi or the intention to
possess it which constituted the
mens rea.
In the
English case of
Warner v
Metropolitan Police Commissioner
[1969]2 A.C. [1969] 2 All E.R.
356, a majority of the House
of Lords held that a person
could not b in possession of
dangerous drugs unless he was at
least aware of the nature of
that which was under his
control, although it was (on the
preponderant view within the
majority) unnecessary for the
prosecution to show that he knew
of its quality. This English
view of what was legal
possession did not reflect the
Ghanaian view and is not
applicable as was explained by
Atuguba JSC in Bonsu (supra) at
page 123. The Ghanaian view was
expressed by Ollennu JSC in
Amartey v
The State [1964] GLR 256 at
261 that:
“What is the possession proof of
which without more makes a
person guilty of an offence
under the section 47(1) unless
he proved that his possession
was lawful. Upon a proper
construction of the section, the
possession must be possession
with knowledge of the nature and
quality of the article; that
what he possessed awareness that
what he possessed is ‘opium or
Indian hemp’, or residue from
the smoking of opium or ‘Indian
hemp’. Physical possession
without that knowledge is no
offence. Without that knowledge
there is no legal possession
which can support the charge.
Therefore to succeed on such a
charge, the prosecution must
prove legal possession; that is
in addition to proving physical
or constructive possession they
must go further to lead evidence
which establishes that the
defendant had the requisite
knowledge or evidence from which
it will be reasonable to presume
that the defendant proved to be
in possession well knew or ought
to have known, that the article
he possessed was ‘opium or
Indian hemp’, or was ‘residue
from smoking of opium or Indian
hemp’.” See Amartey v The State
SC [1964] GLR 256;
Nyameneba v The State [1965] GLR
723,SC.
The offences
in question dealt with the
exportation and the prohibition
or possession of narcotic drugs.
I have elsewhere in this opinion
stated the ingredients of the
offence in count two to be that
the appellant in addition to
having physical possession of
the prohibited drugs knew
actually or ought to have known
that what he possessed was a
narcotic drug, to wit cannabis
sativa, or Indian hemp. Such
knowledge will constitute the
mens rea of the offence which
Lord Morris of Borth-y-Gest said
in Sweet
v Parsley [1970] A.C. 132 at
152 that:
“It has frequently been affirmed
and should unhesitatingly be
recognized that it is a cardinal
principle of our law that mens
rea, an evil intent or a
knowledge of the wrongfulness of
the act is in all ordinary cases
an essential ingredient of guilt
of a criminal offence.”
Proof of such
a vital ingredient in the
offence is not always capable of
direct proof and facts proved in
evidence are often used as such
proof. The trial judge found as
such facts as the admission by
the appellant giving the parcel
to the first accused a proven
DHL courier, in the service of
DHL, to send to the U.K. (via
DHL), even though the appellant
claimed Harry Campbell gave the
parcel to him for that purpose,
his name or that of the
appellant did not appear on the
parcel as the sender; instead
that of the Friesland company
had been there. The falsity in
that was proved by the
prosecution beyond all
reasonable doubts for the
appellant admitted having
written the name of the sender
on the parcel. If by his
evidence the name of that
company had been written on the
parcel as the sender then by
necessary inference he wrote the
name which was proved to be
false.
Then he wrote
that which was false as the
sender. Why did he have to do
that if it was not to avoid
detection as to who the real
sender was and the contents of
the parcel to be illicit, to wit
Sattiva cannabis or Indian hemp.
This would on the whole prove
the fact that the appellant knew
of the nature and quality of the
substance he possessed actually
or constructively, as a narcotic
drug. That meant the prosecution
proved the most essential
ingredient in the offence to wit
the mens rea, beyond all
reasonable doubts by the
prosecution beyond all
reasonable doubts as held by the
trial judge and rightly affirmed
by the appellate court that the
appellant was deeply involved in
committing the offences, for he
had physical possession of the
parcel, and that was coupled
with the presumed knowledge that
what he possessed was sativa
cannabis a prohibited drug. On
the evidence he was not who
Atuguba JSC called the ‘luckless
victim’ but the real ‘criminal
recruit’ in the Benjilo case.
There was
evidence that the illicit parcel
was to be exported to the U.K.
when the appellant gave it to
the first accused a DHL courier.
The evidence by the appellant
that he did not know of the
contents to have been sativa
cannabis was false, neither was
it reasonably true judging from
his acts and
behaviour.
In the
circumstances the lower courts
were justified in finding the
appellant guilty of both
offences, convicting him
accordingly and imposing the
sentence on him. They are
further affirmed by this court
and the appeal dismissed.
J. ANSAH
JUSTICE OF
THE SUPREME COURT
BAFFOE-BONNIE,
JSC:
Since the
facts of this case have been
adequately recounted I will not
repeat them. The appellant was
charged, together with one Roger
Ocloo, with two counts as
follows:
1. Attempted
exportation of narcotic drugs
without lawful authority,
contrary to sections 56(a) and
1(1) of the (Narcotics, drugs
(Control, Enforcement, and
Sanctions) Law 1990 PNDCL 236
2.
Possession of Narcotic Drugs
without lawful authority
contrary to section 2 of the
Narcotic Drugs (Control,
Enforcement and Sanctions) Law
1990 PNDCL 236
He was tried,
convicted and sentenced. His
appeal to the Court of Appeal
was dismissed. He has appealed
to this Court on the following
grounds:
-
The learned Court of Appeal
Judges erred in law and on
the facts when they made
wrong inferences from the
evidence adduced at the
trial that the appellant
attempted to export narcotic
drugs without lawful
authority contrary to
section 56 (a) and (1) of
the Narcotic Drug Act, PNDCL
236;
-
The learned Court of Appeal
occasioned a grave
miscarriage of justice and
in the process erred when
they held that the appellant
had possession of narcotic
drugs without lawful
authority contrary to
section 2 of PNDCL 236 when
no evidence was adduced to
support that finding;
3
The
learned Appeal Court Judges’
failure to consider the evidence
led at the trial that the parcel
originated from one Harry
Campbell occasioned a
miscarriage of justice when they
concluded that the parcel
originated from the appellant;
4
The
learned trial Judge and Appeal
Court Judges occasioned a grave
miscarriage of justice and
misdirected themselves on the
law of circumstantial evidence
when they held that the
appellant was guilty of offences
of attempting to export narcotic
drugs without lawful authority
and possession of narcotic drugs
without lawful authority
contrary to section 2 of PNDL
236
This
appeal raises two fundamental
issues as follows:
1
Whether or not the criminal
intent of an accused person is a
necessary ingredient for a Court
to conclude that there was
possession of a Narcotic
substance contrary to Section to
2 of The Narcotic Drugs
(Control, Enforcement and
Sanctions) Act, 1990.
2 The proper
use of circumstantial evidence
in criminal trials.
It is trite
learning that for an action or
omission to constitute an
offence, there has to be a
coincidence of the act or
omission with the requisite
intention to commit the offence.
This intent can be direct or
constructive since a man is
deemed to intend the reasonable
consequences of his action or
omission. Every crime contains
expressly, or by implication a
proposition as to a state of
mind except where the statute
expressly excludes the element
of intention thereby making it a
strict liability offence.
Goddard CJ captured this
position of the law aptly
in Brend
v. Wood (1946) TLR 462
as follows:
“It is of the
utmost importance for the
protection of the liberty of the
subject that a Court should
always bear in mind that unless
a statute, either clearly or by
necessary implication, rules out
mens rea a constituent part of a
crime, the Court should not find
a man guilty of an offence
against the criminal law unless
his mind is guilty”
In
determining whether mens rea is
an essential ingredient of an
offence under a statute, it is
necessary to consider the words
of the statute itself and the
subject matter with which it
deals. No difficulty arises in
determining whether the
legislature intended an offence
to be one of a strict liability
where in the definition of the
offence expressions like
intentionally, fraudulently,
knowingly, dishonestly etc are
used because these words
indicate a condition of mind.
The difficulty arises where no
such expressions are used by the
statute. The section in issue
deals with prohibition on
possession of narcotic drugs and
it provides as follows:
1)
A
person who, without lawful
authority, the proof of which
lies on that person, has
possession or control of a
narcotic drug commits an offence
Reading the
offence creating section It is
clear that the accused person’s
liability arises where it has
been proven that what he
possesses or has control over is
a Narcotic drug or where it will
be reasonable to fix him with
such knowledge.
In the
instant case there is evidence
from both the prosecution and
the defence to the effect that
it was not possible to look at
the sealed parcel in issue from
the outside to know the
contents. The Appellant in his
evidence said that Harry
Campbell handed him the parcel
already sealed, told him it
contained catalogues and
instructed him to post it on his
behalf. Nowhere has this piece
of evidence been denied by the
prosecution. Indeed, during the
trial one prosecution witness
PW2, Mr. Djangba, told the Court
that the parcel in issue had
gone through two of the three
pronged stages the parcels go
through at the DHL office
successfully without anybody
having any reason to suspect
that the parcel contained
substances other than the
documents they were alleged to
contain. It was only at the
bagging stage that one officer
opened the parcel and it was
realised that it did not contain
documents. It is important to
note that the two stages the
parcel went through successfully
were the debriefing stage and
the reweighing and scanning. If
at the reweighing and scanning
stage the parcel was not
detected to contain prohibited
drugs, how can it be said that
the Appellant’s mind should have
been put on enquiry when he was
handed a sealed parcel for
postage by a friend. It is my
candid opinion that this is not
a case in which the accused can
reasonably be fixed with
knowledge of the contents of the
parcel. And without proof of
knowledge legal possession
cannot be said to have been made
out.
What
constitutes possession has been
decided by our courts in a
number of cases. In
Amartey v. The State [1964] GLR
256, Ollenu JSC
posed the question and answered
as follows:
“What is
possession, proof of which,
without more, makes a person
guilty of an offence under
section 47(1), unless he proved
that his possession is lawful?
Upon a proper construction of
the section, the possession must
be possession with knowledge of
the nature and quality
of the article; awareness
that what is possessed is “opium
or Indian hemp” or residue from
the smoking of “opium or Indian
hemp”. Physical possession
without that knowledge is no
offence. Without that knowledge
there is no legal possession
which can support the charge.
Therefore to succeed on such a
charge, the prosecution must
prove legal possession; that is
in addition to proving physical
or constructive possession, they
must go further to lead evidence
which establishes that the
defendant had the requisite
knowledge, or evidence from
which it will be reasonable to
presume that the defendant
proved to be in possession well
knew, or ought to have known,
that the article he possessed
was “opium or Indian hemp” or
was “residue from smoking of
opium or Indian hemp”
This
statement of the law given in
1964 has not changed. Atuguba
JSC in the case of
Bonsu v. The Republic [
1999-2000]IGLR 199
made this statement at pgs
225-226.
“Once
again, as the memorandum to
PNDCL 236 shows: “ The purpose
of this law is to bring under
one enactment offences relating
to illicit dealing in narcotic
drugs” and to prevent illicit
narcotic drug dealers from
benefiting from their crimes” A
person who does not even know
the nature and quality of the
substance he possesses cannot be
said to engage in illicit
dealing in narcotic drugs” but
is merely a luckless victim”
whom our legislature, prima
facie does not hold to ransom”….
From all the foregoing, I hold
that on a charge of possessing a
narcotic drug under PNDCL 236
the prosecution must prove:
1.
Custody or control of the drug
by the accused;
2.
Knowledge of the presence of the
drug by the accused
3.
Knowledge of the nature of the
drug possessed”
From the
accepted evidence on record, and
applying this principle and the
three staged test to the current
case, I am unable to say that
the appellant had legal
possession since his knowledge
of the contents of the parcel as
containing narcotic drugs has
not been proved to evidential
certainty. Once the prosecution
fails on this then the second
part of the section which seeks
to fix an appellant with a
strict liability of proving the
lawfulness of his authority to
possess will not arise. Equally
the first count would also fail
because a person cannot
reasonably be said to have
attempted to export a drug which
he did not legally possess.
The second
issue, not exactly unconnected
with the earlier one, which I
will like to discuss, is the
appropriate use of
circumstantial evidence in proof
of criminal charges.
Concluding
her judgment the learned trial
judge noted thus;
“These
deliberate acts of concealment
point irresistibly to an
awareness of the illegality of
the whole enterprise and
specifically as breaching the
provisions of the narcotics laws
as charged”
From the
facts of this case, and as
confirmed by the above quoted
statement by the trial judge,
there was no direct evidence
that the appellant had knowledge
that the parcel he attempted to
post contained narcotics. He was
convicted based on all the
circumstances put together and
imputed with knowledge of the
contents of the parcel. I will
concede that it is almost
impossible to prove intention,
knowledge, and other such legal
requirements by direct evidence.
That is why in most cases
knowledge of the existence or
non existence of something is
often proved by circumstantial
evidence other than direct
evidence.
Adrian Keane
in the Modern Law of Evidence,
Third Edition
at page 10
defined Circumstantial evidence
as
“… evidence
of relevant facts (facts from
which the existence or
non-existence of a fact in issue
may be inferred) and contrasted
with direct evidence, a term
which is used to mean testimony
relating to facts in issue of
which a witness has or claims to
have personal knowledge or first
hand knowledge.”
Circumstantial evidence may
take the form of oral evidence
(including admissible hearsay)
or real evidence. In the
English case of
Teper v. R [1952] AC 480
at page 489 Lord
Normand observed as follows:
“Circumstantial
evidence may sometimes be
conclusive, but it must always
be narrowly examined, only
because evidence of this nature
may be fabricated to cast
suspicion on another…It is also
necessary before drawing the
inference of the accused’s guilt
from circumstantial evidence to
be sure that there are no other
co-existing circumstances which
would weaken or destroy the
inference.”
The law on
circumstantial evidence has been
espoused variously by the
Ghanaian Courts in several
cases.
In the 1961
case of
Anane v. Fiadzo 1961 1 GLR
416 the Supreme
court had laid down the bench
mark for the use of
circumstantial evidence in
criminal trials as follows
“ a
presumption from circumstantial
evidence should be drawn against
an accused person only when the
presumption follows irresistibly
from the circumstances proved in
evidence ; and in order to
justify the inference of guilt,
the inculpatory facts must be
incompatible with the innocence
of the accused and incapable of
explanation upon any other
reasonable hypothesis than that
of guilt.”
The court of
appeal later in 1987 put it even
more succinctly in the case of
Duah v Republic 1987-88 1
GLR 343 as follows;
“Circumstantial evidence was
evidence of surrounding
circumstances which by
undesigned coincidence was
capable of proving a proposition
with the accuracy of
mathematics. In criminal cases,
it was sometimes not possible to
prove the crime charged by
direct or positive evidence of
persons present at the time the
crime was committed. So where
the testimony of eye-witnesses
was not available, the jury was
entitled, and indeed permitted,
to infer from those facts which
the prosecution had proved,
other facts necessary either to
complete the elements of guilt
or establish innocence.
However, before drawing the
inference of the guilt of an
accused from circumstantial
evidence, it was very important
to make sure that there was no
other co-existing circumstance
which would destroy or weaken
the inference. Thus,
circumstantial evidence had to
be closely examined and acted
upon only when the circumstances
were such that the guilt of the
accused had of necessity to be
inferred and that the facts led
to no other conclusion”
At the trial
the appellant put up two
defences
1.
That
the parcel that was intercepted
was not the parcel that he had
initially given to the 1st
accused person, and
2.
He
did not know that the parcel he
gave to the 1st
accused, which had been given to
him by one Harry Campbell for
posting, contained any banned or
narcotic drugs.
These are
formidable defences separately
and collectively, and the
prosecution and the court could
not just wish them away by a
cursory wave of the hand.
As an accused
person, the only thing that he
was required to do through out
the trial was to raise
reasonable doubt. He produced
evidence to show that the parcel
did not originate from him and
that he was only a messenger of
Harry Campbell. Again, he said
that he did not refuse to
collect the postage receipt or
alter the sender’s address
deliberately. According to him,
it was the first accused who
gave him a pre-printed airway
bill with Friesland Ltd as the
sender’s address. He queried
this anomally and the first
accused assured him that it was
only because he had ran out of
blank airway bills and that he
was going to do the right thing
when he got back to the office.
Someway, somehow he failed to do
so. The first accused confirmed
this story and said that it was
not because they were trying to
hide anything but only because
he sought to pocket the postage
sum. This evidence was further
corroborated by a prosecution
witness from DHL who said that
the couriers sometimes engaged
in such practices but when they
were found out they were
dismissed. This has been the
case of the appellant right from
the time of his arrest to now!
In the face
of this consistent and weighty
evidence this is what the Court
of Appeal said;
“There is no
doubt that it was appellant who
actually delivered the parcel to
the courier for export. What he
sought to do was to show that he
did not know the contents of the
envelope which he alleged
contained documents……..The
trial judge considered this
defence adequately and rejected
it because by his own conduct
appellant deliberately concealed
the identity of the real sender,
falsified the address and
signature and the route, all in
an attempt to escape detection.
These acts were rightly found by
the trial court not to be
consistent with the acts of an
innocent person. These acts
together with the fact that the
appellant personally wrote the
name of the consignee at the
time when he had seen the name
of the consignee wrongly,
indicated as Friesland and
refusing to take receipt for the
payment that he made, further
condemn the appellant.”(emphasis
added)
But what
exactly did the trial judge say
that led the learned Justices of
the Court of Appeal to conclude
that she had considered the
evidence adequately and come to
a conclusion which they did not
feel inclined to disturb? In her
four and a half page judgment
this is all that she said about
the evidence on record.
“…..The
testimony of the second accused
shows that by previous
association, he knew of the
correct procedure for
remittances through DHL yet he
had acted to the contrary in
respect of the offending
parcel. His complicity in using
a false address and a false
signature of the sender address
on parcel is in my opinion not
innocent acts of omission but
rather acts deliberately
executed with the sole purpose
of preventing the detection of
the real sender of the parcel.
These deliberate acts of
concealment point irresistibly
to an awareness of the
illegality of the whole
enterprise and specifically as
breaching the provisions of the
Narcotic laws as charged.”
Why the
Learned Justices of the Court of
Appeal, like the Learned Trial
Judge, came to the conclusion
that these recounted acts
constituted credible
circumstantial evidence to
support conviction, I cannot
fathom. Suffice it to say in a
criminal trial the appellant was
only supposed to raise
reasonable doubt to earn an
acquittal. It is my candid
opinion that the Appellant
succeeded in raising reasonable
doubt in the case of the
prosecution to earn an
acquittal. Conversely, the
prosecution failed to prove
their case beyond reasonable
doubt.
Let me end
this judgment by quoting what
our brother Aninakwa JSC
said in the case of
Logan v. The Republic
[2007-2008] 1 SCGLR 76
“..for
circumstantial evidence to
support a conviction it must be
inconsistent with innocence of
the accused. It must lead to
irresistible conclusion not only
that the crime had been
committed, but it was in fact
committed by the persons charged
in order to arrive at a definite
conclusion. Conviction based on
circumstantial evidence which is
not supported by facts is
wrongful”
The evidence
on record cannot be said to be
one which works by cumulatively
eliminating other possibilities
in a geometric progression. The
plausibility of the accused
person’s innocence is deafening.
It is for the foregoing reasons
that I allow the appeal set
aside the conviction and
sentence and enter a not guilty
verdict for the appellant on
both counts.
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
ATUGUBA, JSC:
I agree that
the appeal be dismissed.
W.A. ATUGUBA
JUSTICE OF
THE SUPREME COURT
ADINYIRA
(MRS), JSC:
I had the
benefit to read beforehand the
opinions of my brothers Ansah
and Baffoe-Bonnie JJSC. I
support the conclusion reached
by Ansah, JSC that the appeal be
dismissed.
S. O. A.
ADINYIRA (MRS)
JUSTICE OF
THE SUPREME COURT
ARYEETEY, JSC:
I also agree
that the appeal be dismissed.
B. T.
ARYEETEY
JUSTICE OF
THE SUPREME COURT
COUNSEL:
NENE
AMEGATCHER ESQ. FOR THE
APPELLANT.
VALARIE
AMARTEY (CSA) FOR THE ATTORNEY
GENERAL.
|
