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JUDGMENT
AKUFFO, J.S.C.
The Appellant is the former
Minister of Youth and Sports. On
20th July 2001, the High Court
convicted him on two counts of
stealing and fraudulently
causing the financial loss of
$46,000.00 to the State contrary
to sections 124(1) and
179A(3)(a), respectively, of the
Criminal Code, 1960 (Act 29).
The High Court sentenced him to
serve 4 years in jail on each
count plus a fine of
¢10,000,000.00 or, in default,
12 months in jail on count two.
Additionally, the Appellant was
ordered to refund the amount of
$46,000.00 or, in default, serve
an additional jail term of 2
years. All the sentences were to
run concurrently. The Appellant
appealed to the Court of Appeal
against both the conviction and
the sentences. On October 23rd
2001, the Court of Appeal gave
judgment upholding the
conviction and, therefore,
dismissed the appeal. However,
the court varied the sentences
by quashing the 2 years' jail
sentence imposed in default of
making the refund ordered by the
High Court.
The Appellant by his appeal
herein challenges the Court of
Appeal's confirmation of the
conviction and the remaining
sentences. The Notice of Appeal
sets out 9 grounds of appeal,
which may be summed up as
follows:—
1. The confirmation of the
conviction of the Appellant on
the two counts cannot be
supported by the evidence.
2. The Court of Appeal erred
when it failed to evaluate the
evidence in accordance with the
law regarding circumstantial
evidence (grounds 2 and 3).
3. The Court of Appeal erred
when it failed to determine
whether, with regard to the
evidence of the prosecution
before the High Court, the
requisite standard of proof had
been satisfied.
4. The Court of Appeal erred
when it held that the Appellant
had failed to prove that he had
been framed.
5. The Court of Appeal erred
when it confirmed that the
Appellant's former bodyguard was
not a vital witness and
therefore the failure by the
prosecution to call him was not
fatal to the prosecution of the
Appellant.
6. The Court of Appeal erred
when it ignored the Learned
Trial Judge's statement, which
raised the Appellant's burden of
proof to one beyond reasonable
doubt.
7. The sentence to refund the
missing amount having been
declared to be enforceable by
civil action, the remaining
sentences of 4 years on each
count are too harsh.
8. The manner in which the trial
of the Appellant was conducted
by the High Court deprived the
Appellant of and/or infringed
his fundamental human right to a
fair trial under Article 19 of
the Constitution.
At the hearing of this appeal,
we drew the attention of counsel
for the Appellant to the
interlocutory appeal in which he
had raised the issue as to the
constitutionality of the charge
brought against the Appellant in
count two. Counsel's reply was
that, once an appeal is by way
of a rehearing, the Court of
Appeal's decision on the
constitutionality of the charge,
together with its decision on
all other issues, are all before
us. He, therefore, invited us to
consider all of the record
before us.
Section 31 (1) of the Courts
Act, 1993 (Act 459) provides as
follows:—
"Subject to subsection (2) of
this section, an appellate court
on hearing any appeal before it
in a criminal case shall allow
the appeal if it considers that
the verdict or conviction or
acquittal ought to be set aside
on the ground that it is
unreasonable or cannot be
supported having regard to the
evidence or that the judgment in
question ought to be set aside
on the ground of a wrong
decision of any question of law
or fact or that on any ground
there was a miscarriage of
justice and in any other case
shall dismiss the appeal."
Subsection (2), to which
subsection (1) is made subject,
requires the appellate court to
dismiss an appeal if it
considers that there has,
actually, been no substantial
miscarriage of justice or that
the point made by the appeal
consists of a technicality or
procedural error or a defect in
the charge or indictment but
that there is evidence to
support the alleged offence in
the statement of offence. From
the grounds of appeal, the
Appellant is saying that his
conviction cannot be supported
having regard to the evidence
and that, in any event, the
sentence is too harsh. He is
also saying that he has been
denied his constitutional right
to a fair trial.
Regarding the evidence, we have
reviewed the entire record of
proceedings and have no doubt
that the Appellant's conviction,
as well as the confirmation
thereof by the Court of Appeal
and the respective reasons,
given by the learned Justices of
Appeal for their conclusions,
are amply supported by the
evidence adduced by the
prosecution. Furthermore, this
is an appeal from concurrent
decisions of the courts below,
i.e. the High Court and the
Court of Appeal. That being so,
it was the duty of the Appellant
to demonstrate to this court
that the conclusions of the
trial court and the Court of
Appeal were not based on the
evidence on record or that, on
the totality of the evidence,
the charges against him had not
been proven beyond reasonable
doubt. This, the Appellant, in
our view, has failed to do.
Before moving on to the question
of whether the proceedings in
the High Court in any way
infringed upon the Appellant's
right to a fair trial, there is
the need to consider whether,
regardless of the foregoing, the
trial judge assigned to the
Appellant a higher burden of
proof than that required by the
law. To deal with this question,
there is the need to take a
close look at the provisions of
the Evidence Decree, 1975 (NRCD
323), relating to the burden of
proof on an accused person in a
criminal trial. These provisions
start off in section 10 with a
definition of the burden of
persuasion as follows:—
"(1) For the purposes of this
Decree, the burden of persuasion
means the obligation of a party
to establish a requisite degree
of belief concerning a fact in
the mind of the tribunal of fact
or the court.
(2) The burden of persuasion may
require a party to raise a
reasonable doubt concerning the
existence or non-existence of a
fact or that he establish the
existence or non-existence of a
fact by a preponderance of
probabilities or by proof beyond
a reasonable doubt."
Section 11 (1) and (3) state
that:—
"(1) For the purposes of this
Decree, the burden of producing
evidence means the obligation of
a party to introduce sufficient
evidence to avoid a ruling
against him on the issue.
"(3) In a criminal action, the
burden of producing evidence,
when it is on the accused as to
any fact the converse of which
is essential to guilt, requires
the accused to produce
sufficient evidence so that on
all the evidence a reasonable
mind could have a reasonable
doubt as to guilt."
Section 13(2) also provides
that:—
"Except as provided in section
15(3), in a criminal action the
burden of persuasion, when it is
on the accused as to any fact
the converse of which is
essential to guilt, requires
only that the accused raise a
reasonable doubt as to guilt.'
And finally, in section 14, it
is provided that:—
"Except as provided by law,
unless and until it is shifted,
a party has the burden of
persuasion as to each fact the
existence or non-existence of
which is essential to the claim
or defence he is asserting."
Taken together, the burden of
producing evidence and the
burden of persuasion are the
components of 'the burden of
proof.' Thus, although an
accused person is not required
to prove his innocence, during
the course of his trial, he may
run a risk of non-production of
evidence and/or non-persuasion
to the required degree of
belief, particularly when he is
called upon to mount a defence.
According to counsel for the
Appellant, the trial court set a
higher standard than that
legally required of the
Appellant when, in the course of
his judgment, he expressed
himself as follows:—
"This court was treated to a
revelation of a litany of
misdeeds at the Ministry of
Youth and Sports, many of which
were unravelled during the short
tenure of office of the accused.
For example, the accused had
cause to castigate the Ag. Chief
Director for being incompetent
on one or two occasions. . . .
"For all this, the accused said
he had been framed up with the
story of he having stolen the
$46,000.00. I must say that most
of the above were admitted by
the prosecution witnesses, but
it was not enough to say that
the accused was framed up. The
accused should have also shown
how as result of the hostility
to him in his office, all those
persons or some of them, either
by themselves or their agents,
privies, workmen or assigns and
confederates took the money away
from him. He should also have
shown how the money was taken
from his suitcase by or on the
plane or elsewhere. Nothing of
the sort was shown by him.
Beyond merely making these
allegations, he provided no
concrete of substance of any
evidence to buttress his point.
When the onus shifts unto the
accused to raise reasonable
doubts in the story of the
prosecution, the story of the
accused must indeed go beyond
what is nothing but fanciful
fiction and mere suppositions.
This, the accused in my
estimation from his otherwise
long and verbose evidence,
failed to do. Whilst I
disbelieve his evidence, I do
not believe it to be reasonably
probable either. In the result I
state that his evidence did not
meet the case of the
prosecution.”
When counsel for the Appellant
raised this point before the
Court of Appeal, the Court, per
Gbadegbe, JA., concluded that,
when read with the entirety of
the judgment, it is clear that
the trial judge had properly
directed his mind to the
relevant burden of proof, and
therefore, that portion of the
judgment could not have amounted
to a miscarriage of justice
within the contemplation of
section 31 of the Courts Act. We
do not believe that the Court of
Appeal erred in arriving at this
conclusion. Admittedly, there
was no burden on the Appellant
to show how the money got
missing. However, we are not
convinced that that expression
alone, on the part of the Trial
Judge, is such as to amount to
his misdirecting himself on the
law and thereby causing a
miscarriage of justice. The
Appellant had a burden of
producing evidence sufficient
enough, in the light of the
totality of the evidence, to
raise, in the judge's mind, a
reasonable doubt as to his
having appropriated the money.
The Learned Trial Judge declared
himself unpersuaded by the
evidence produced by the
Appellant to buttress the
assertion in his defence that he
had been framed, and we have not
been shown any reason why we
should find otherwise.
Turning now to ground 9, which
raises the issue of whether or
not the trial court conducted
the trial of the Appellant in
such a manner as to deprive him
of or infringe upon his
fundamental and constitutional
right to a fair trial under
article 19, counsel for the
Appellant, under this ground,
particularised the instances
that, in his view, give rise to
this ground as follows:—
a. "The Fast Track High Court,
Accra refused to stay
proceedings for the Supreme
Court, Accra to determine an
appeal against the dismissal of
a submission of no case to
answer and the constitutionality
of the second charge against the
Appellant... and in fact stated
that only an express order of
the Supreme Court Accra and not
the pendency of an application
before the Supreme Court Accra
for a stay of proceedings is
adequate to stay proceedings
before it.
b. "That the Fast Track High
Court, Accra refused the
Appellant's applications for
necessary adjournments to enable
counsel for the Appellant to
facilitate the preparation of
Appellant's defence/case in
consonance with his right under
Article 19 of the
Constitution....
c. "That the Appellant's right
of appeal under the 1992
Constitution ... has been
hampered by high fees peculiar
to the Fast Track High Court
system which raises an issue of
jurisdiction namely whether the
fast Track High Court is in
substance a High Court
simpliciter.
The grant or refusal of an
application for an Order of Stay
of Proceedings is entirely
within the discretion of the
court. As with all such
discretions, it must be
exercised judicially, not
whimsically or capriciously. The
mere fact of the pendency of an
interlocutory appeal does not
necessarily justify, or compel,
the exercise of the discretion
by a trial judge. The
circumstances of the particular
case must be taken into account
and such circumstances must
include some special
circumstances. In this case, the
learned High Court judge gave
copious reasons and based
himself on decided cases, for
his refusal to stay the
proceedings. As he noted, at
page 14 of Volume 2 of the
Record of Appeal:—
"In the instant case, if the
trial goes on and the Supreme
Court allows the appeal filed by
the accused, the trial will
automatically be halted and the
accused will earn his freedom.
If it is over by then, he would
be acquitted and discharged on
both counts. Also the accused
will have the decision quashed
by certiorari or set aside by
appeal. No irretrievable harm
will be caused to the accused
then.
“I do not lose sight of the fact
that the Court of Appeal has
ruled that the accused has a
case to answer on both counts as
the evidence supports them and a
prima facie case has been made
out against the accused.”
In the course of moving his
application for Stay of
Proceedings, counsel for the
Appellant had, as he has done in
his written submissions before
us, relied on this court's
decision in British Airways v.
The Attorney General, [1996-97]
SCGLR 547. The learned judge,
however, distinguished
(correctly in our view), that
case from the circumstances
surrounding the application
before him. We consider that the
trial judge had sound reasons
for refusing the application and
that, in refusing to exercise
his discretion in the matter, he
acted judicially and did not
deny to the Appellant his right
to fair trial, nor did he
infringe upon such right.
Likewise, adjournments are
within the sole discretion of
the court and the mere refusal
by a judge to grant the
Appellant's applications for
adjournments cannot, of itself,
constitute a denial of the right
to a fair trial, particularly
where the peculiar circumstances
of the court were such that it
was possible to produce
transcripts of the records of
the previous day's proceedings
within a matter of hours.
As to the third particular, this
court has, by its ruling dated
June 26th 2002, in CM 11/2002,
Tsikata v. the Attorney General,
now placed it beyond any further
debate that the Fast Track Court
is part of the High Court. The
higher fees charged thereat are
justified because of the court's
technical mode of operation and
cannot form the basis of a
conclusion that such fees amount
to a denial of the Appellant's
constitutional right to a fair
trial.
Finally, and with regard to the
sentences, as varied by the
Court of Appeal, counsel for the
Appellant submitted that, taking
into account the peculiar
circumstances of the case, the
custodial sentences be waived.
These special circumstances,
according counsel are that:—
1. The Appellant was in office
as a Minister for only 30 days
and received no remuneration for
his services.
2. The Appellant admitted
responsibility for the loss of
the $46,000.00 and offered to
refund the same by instalments.
3. The Appellant's commitment to
refund the said amount was
constrained by the law in view
of the offences charged and his
plea of "not guilty" to the
charges.
4. The Appellant can only make
good his offer to refund the
amount if he is involved in
activities that yield earnings,
therefore incarceration will
damage is capacity to make the
refund.
It is quite clear from the
record that the Appellant did,
indeed, offer to make the refund
in instalments, both during the
investigation of the loss and in
the course of the trial. However
the law on the matter is quite
clear. Section 35 of the Courts
Act sets out the parameters and
consequences where an accused or
convicted person offers
compensation or restitution. The
section requires that such an
accused person must first admit
the offence and then offer
compensation or make restitution
and reparation for the loss,
harm or damage, whereupon the
court shall proceed to accept a
guilty plea from the accused and
convict him on his own plea. In
such event, the Court may, in
lieu of passing sentence on the
accused, make an order for him
to pay compensation or make
restitution and reparation,
subject to such conditions as
the court may direct. This is
the import of subsections (1) to
(4) of the said section 35.
Admittedly, modern jurisprudence
frowns on custodial sentences
and considers restorative
justice more beneficial and
economical to the society.
Furthermore, the current trend
in the administration of
criminal justice is to encourage
more recourse to civil remedies
where such are available for
actions that constitute both
civil and criminal offences. In
this case, the State,
unfortunately for Appellant,
opted to bring criminal charges,
rather than civil claims,
against him; that being so, we
cannot bypass the clear
provisions of Act 459, s. 35.
The Appellant did indeed offer
to refund the money, however he
did not plead guilty to the
offence charged. Consequently,
we cannot waive the sentence
simply because he has offered to
refund the missing amount. In
the circumstances, the custodial
sentence is lawful, as has been
admitted by counsel for the
Appellant, and in order. We,
therefore, see no reason to
waive it.
In coming to the foregoing
conclusions, we would state
that, in a nutshell, we have
taken into consideration all the
proceedings in this case and all
papers filed on behalf of the
parties, including interlocutory
proceedings, the grounds of
appeal filed and everything laid
before this court and we have
determined that:—
a. The charge based on the
Criminal Code, (Act 29) as
amended, i.e. section 179A
(3)(a), is constitutional and
has been legitimately laid under
the Criminal Code. The charge
and the provisions under which
it was brought have in no way
violated the provisions of
article 19 of the Constitution.
We adopt fully, the reasons and
opinions of the Justices of the
Court of Appeal, Brobbey, Baddoo
and Amonoo-Monney, JJA, dated
June 26th 2001, in CRA 22/2001
and affirm the same.
b. On the facts and evidence
brought, we are satisfied that
they support the conclusions
arrived at by both the trial and
appellate courts of justice and
we confirm them. As to both the
conviction and the sentence,
none of the grounds of appeal
filed on behalf of the Appellant
has succeeded in persuading us
to hold otherwise.
The entire appeal is hereby
dismissed.
E.K. WIREDU
JUSTICE OF THE SUPREME COURT
G.K ACQUAH
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO
JUSTICE OF THE SUPREME COURT
D. K. AFREH
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Ambrose Derry for Appellant.
Mr. Anthony Gyambiby for
Respondent.
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