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Evidence – Admissibility – Confession – Prosecution failing to establish that confession statement witnessed by independent witness – Statement not admissible ‑ Evidence Decree 1975 (NRCD 323) s 120.

Constitutional law – Fundamental human rights – Right to counsel – Accused not informed of his right to counsel before alleged confession – Accused filling Army Form A9 informing him of right to seek adjournment if procedural rule not complied with – Accused not complaining of violation of right to counsel in Army Form A9 – Whether accused entitled to complain of violation of right to counsel.

Criminal law and procedure – Appeal – Miscarriage of justice – Accused charged on three counts of the same offence – Convicted on one count and discharged on two counts – Conviction inconsistent.

The appellant, a Lieutenant was arraigned before a General Court Martial and convicted of the offence of scandalous behaviour contrary to section 32(1) of the Armed Forces Act 1962 (Act 105) and dismissed from the Armed Forces. He appealed to the Court of Appeal on the ground that contrary to s 66 of the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) 1982 (PNDCL 42), s 4(2) of the Provisional National Defence Council (Establishment) Proclamation 1981 and the 1979 Constitution, he was not informed of his right to consult counsel of his choice while he was interrogated in custody. He contended that his constitutional right was violated and his alleged confession was rendered inadmissible. Counsel submitted further that the three counts on which the appellant was charged were similar and founded on the same facts and that the acquittal of the appellant on counts 2 and 3 necessarily implied his acquittal on count 1.

The respondent’s counsel argued that the Army Form A9 titled Record of Proceedings of a Court Martial notified the appellant of his right to apply for adjournment on the ground that any rule of procedure before trial had not been complied with, and that he had been prejudiced thereby or did not have sufficient opportunity to prepare his defence. Counsel argued that if there were violation of the appellant’s fundamental rights, he would have said so.

Held: (1) The questionnaire spoke of “rules relating to procedure before trial” and “insufficient opportunity for preparing the defence.” Those procedures were the formal preliminary steps to be taken before actual trial. They did not refer to the basic and fundamental constitutional rights relating to the individual’s liberties. Ohene v Republic [1974] 2 GLR 272, Republic v Akosah [1975] 2 GLR 406 referred to.

(2) Although the Criminal Procedure (Amendment) Decree 1975 (SMCD 3) provided that no statement should be inadmissible by reason only of the fact that the accused had not been informed of his right to consult counsel of his own choice, the Evidence Decree 1975 (NRCD 323) s 120 excluded a confession statement by an accused unless it was made in the presence of an independent witness. Since the prosecution did not establish that the statement was witnessed as required by the provision the statement ought not to have been admitted. But having admitted it wrongly the judge ought to have directed the panel in her summing up to disregard the alleged confession. The ground would be dismissed, as it did not appear from the record that the prosecution based its case solely on the alleged confession. Ohene v Republic [1974] 2 GLR 272 referred to.

(3) The essential ingredients in the counts were the same. The vocabulary was different but the elements that made up the offence were the same. The charges are duplicated and any one count could have sufficed for all three counts. Having thus acquitted the appellant on counts 2 and 3, it was strange that he was convicted on count 1. The verdict was inconsistent and the appeal ought to be allowed.

Cases referred to:

Ohene v Republic [1974] 2 GLR 272, CA.

Republic v Akosah [1975] 2 GLR 406, CA.

APPEAL from the conviction of the General Court Martial of the Ghana Armed Forces.

de Paul for the appellant.

Lt Col Allotey for the respondent.

LUTTERODT JA. On 9 July 1992 this court allowed the appeal and reserved reasons which I now proceed to give.

The appellant was a Lieutenant attached to the Army Health Department of the Military hospital, Accra, the unit which is said to be popularly known as the “Hygiene Wing.” Travelers from Ghana to other countries and who need to be immunised against certain endemic diseases, like yellow fever, typhoid, cholera and the like receive, both their inoculations and their certificates from this Department.

In the early part of January 1989, it was discovered that false inoculation certificates were being unlawfully issued to travelers. On 30 February 1989, the accused was found in a toilet in this Department allegedly stamping inoculation certificates with two forged stamps. He was however not arrested on the spot but he is alleged to have confessed later before his superior officer. He was therefore arraigned before a General Court Martial, charged with three offences. On 13 May 1991, he was convicted of only one of those offences, the offence of scandalous behaviour contrary to section 32(1) of the Armed Forces Act 1962 (Act 105) and sentenced to dismissal from the Armed Forces. When these findings and orders made against him were confirmed and approved by the relevant authorities within the Ghana Armed Forces, the appellant appealed to this court on a number of grounds. These are contained in the application for leave to appeal, additional grounds of appeal filed on 17 October 1991, further additional grounds of appeal of 12 February 1992 and yet additional grounds of appeal dated 1 April 1992.

The first ground of appeal urged upon us is dated 1 April 1992. By it, it was contended that while the appellant was restricted following his appearance before his superior officer on the day of the incident ie 10 February 1989 and, contrary to the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) 1982 (PNDCL 42) section 66 and the Provisional National Defence Council (Establishment) Proclamation 1981 section 4(2) and the 1979 Constitution, he was not informed of his right to consult counsel of his choice. The argument of his counsel is that at the time he was being interrogated, his captors, including his superior officer, were under a duty to inform him of his constitutional right. The contention here is that because of such failure, or violation of this constitutional right, the oral statements made by him allegedly admitting the offence was clearly inadmissible. More importantly, it was contended on his behalf that since the learned Judge Advocate failed in her summing up to warn the Court Martial that the said oral confession was clearly inadmissible no conviction could be based on it; that she erred gravely by the omission; also that the error occasioned substantial miscarriage of justice in that the appellant had been wrongly convicted on inadmissible evidence.

It was however submitted on behalf of the respondent that no constitutional right of the appellant was infringed. Why? One of the forms that had to be filled in at the trial is what has been described as Army Form A9 titled “Record of Proceedings of a Court Martial.” It contains such information as who constitutes the court, the name of the Judge Advocate and other matters relevant to the trial. Also it contains a number of questions addressed to the appellant, which he

“Q Do you wish to apply for an adjournment on the ground that any of the rules relating to procedure before trial have not been complied with, and that you have been prejudiced thereby or on the ground that you have not had sufficient opportunity for preparing your defence?“

The thrust of the argument of the respondent’s counsel is that in so far as the appellant answered in the negative, none of his constitutional rights had been violated. In other words, had there been any violation of any of his fundamental rights, he would have said so at the earliest opportunity.

I am of the view however that this argument is untenable. We would clearly see that the questionnaire speaks of “rules relating to procedure before trial” and “insufficient opportunity for preparing the defence.” I would think by these procedures are meant those formal procedural steps that must be taken before the actual trial commences, in other words, those preliminary steps which set the actual trial in motion. I do not think they refer to the basic and fundamental constitutional rights crucial to the individual’s liberties - those rights which have been aptly described in Ohene v Republic [1974] 2 GLR 272, Republic v Akosah [1975] 2 GLR 406 as rules of law.

I think those rules of law are completely different and distinct from the rules “relating to procedure” described in the questionnaire. While I may say that possibly the argument raised by the respondents’ counsel may be valid where the complaint is that such a rule of procedure ie any of those preparatory steps has not been complied with, I do not think the same argument can be put up where the allegation is that a fundamental human right of an accused has been violated.

But then the more important reason why I think that the principle of law established in both Ohene and Akosah is no longer good law is this: In 1975 the Criminal Procedure (Amendment) Decree 1975 (SMCD 3) was passed. It provided that:

“(1) Notwithstanding any enactment to the contrary, in any proceedings commenced after the first day of August, 1969, no statement shall be inadmissible by reason only of the fact that the person making such a statement had not been informed of his right to consult counsel of his own choice prior to the making of such statement.”

I think this clear provision of the law makes it impossible for any statement obtained in flagrant disregard of the provision of the constitution to be described as inadmissible. However, by the clear provision of the Evidence Decree 1975 (NRCD 323) no confession statement made by an accused is admissible against him unless the statement was made in the presence of an independent witness. The provision I speak of is section 120 which reads as follows:

“In a criminal action, evidence of a hearsay statement made by an accused admitting matter which—

the commission of a crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily.

(2) Evidence of a hearsay statement shall not be admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness.”

Section 120(3)(a) provides: “The independent witness must be a person who can understand the language spoken by the accused.” Section 120(3)(b) shows that the confession is not restricted to written statement only. In other words the above provision covers an oral confession also. It says in (b) that the independent witness can read and understand the language in which the statement is made, and where the statement is in writing, the independent witness must certify in writing that the statement was made voluntarily in his presence.

In my view therefore since the prosecution led no evidence to show that the said confession was made in the presence of an independent witness, (indeed no such person testified at the trial) the same ought not to have been admitted. The learned Judge Advocate ought to have rejected such evidence altogether. But having wrongly admitted it in evidence she ought at least at the summing up stage to have directed them to exclude totally the alleged confession.

But perhaps the more crucial issue is whether this non-direction has caused such a substantial miscarriage of justice that the conviction ought not to stand. It does appear from the record that the prosecution did not base the case solely on the alleged confession. They placed reliance on other pieces of evidence eg the evidence of PW2. In my view therefore the appeal ought not to be allowed on this sole ground.

It was next argued, in relation to ground 3 that the Judge Advocate again failed to draw the court’s attention to the onus and degree of proof where the prosecution was seeking to rely on a confession allegedly made by the accused. The contention of the appellant’s counsel was that by the clear provisions of the Armed Forces Regulations, reg 15, Volume 2 C112, Appendix 1, and on the authority of the cases he has cited, there was a duty on the prosecution to prove affirmatively that the said confession was voluntarily made. In other words that it was not induced by any promise of favour or advantage nor was it obtained by threat, fear, or pressure by a person in authority. The learned counsel’s argument is that the learned Judge Advocate erred in not directing the panel to disregard completely the said confession if they found that the prosecution had failed to prove the voluntariness of the said confession. Counsel lamented that by her failure to draw the court’s attention to the fact that two other personnel of the Armed Forces who were said to have been present at the time of the alleged admission were never called by the prosecution to testify whether the confession was voluntarily made or not, occasioned a grave miscarriage of justice. My view on the matters raised by these arguments is the same as I gave for dismissing the first ground of appeal. I would reiterate however that while I agree with the appellant’s counsel that there were lapses on the part of the learned Judge Advocate, it is equally true as contended by the respondent’s counsel that the prosecution did not rest their case only on the alleged confession. In these circumstances, I do think we need to look at these other pieces of evidence before coming to a final conclusion.

By the ground (1) of the additional grounds of appeal dated 1 April 1992 and ground (d) of the further additional grounds of appeal filed on 12 February 1992, the following points were urged upon us namely, that the learned Judge Advocate failed to adequately present to the Court Martial the evidence led by the prosecution in proof of one of the important elements in the offences with which the appellant was charged, namely, possession of the stamp in question. One such failure, it was pointed out, was when she referred in her summing up to “stamps” instead of a stamp. Secondly, it was argued that she failed to draw the panel’s attention to the conflicts and inconsistencies inherent in the prosecution’s case. Again, the complaint of the appellant’s counsel is that the key issue at the trial was whether the appellant was found in possession of the stamp. When it became apparent that this issue turned on the credibility of the witness, the failure on the part of the Judge Advocate disabled the panel from effectively evaluating the evidence led. The argument, as I understand it, is that had the panel been properly directed, it would not, in all probability, have convicted the appellant. Thirdly, it was contended that the failure of the learned judge in drawing the panel’s attention to the failure of PW1 to collect the items used in the commission of the crime or call witnesses to see what the appellant was doing when he allegedly found him stamping and issuing the false certificates, occasioned a grave miscarriage of justice.

The appellant’s counsel listed some of these conflicts and inconsistencies; the most fundamental being this: Although the evidence of the PW2 does clearly show that he retrieved the stamp tendered at the trial from a common table used by about four people in the Department, the evidence of PW1, the head of the Department, who interrogated the appellant when he was arrested was that PW2 told him he recovered the stamp from the appellant. I would think a better approach would be to produce that part of his testimony. It reads as follows:

“Q I further put it to you that the stamps were not recovered from the accused.

Q I am further putting it to you that Captain Quafio who brought the stamps said he recovered them from Lt Frempong’s desk.

A Captain Quafio who brought the stamps to me said he recovered them from Lt Nyarko.”

I am of the view that the reference by the learned judge to stamps when only one stamp was in issue would not by itself occasion a miscarriage of justice. But I think we must bear in mind that the onus at all times rested on the prosecution to prove the guilt of an accused beyond reasonable doubt. This case turns wholly on the issue whether to believe PW2 that he did in fact see the appellant in the act of committing the offences charged; then I would agree with the appellant’s counsel that had the inconsistency which I have pointed out as being material, been highlighted and the attention of the Court Martial drawn to it and its effect spelt out to them, it could well be that the panel would not have accepted PW2’s version in preference to the appellant’s denial. And more particularly, had the panel been directed to consider all the surrounding circumstances of the case, for example failure of PW2 to invite to the scene someone to witness what the appellant was doing or even to retrieve the offending articles from him, the chances are that he may not have been convicted.

But perhaps the more serious complaint against the judgment is ground (1) of the original grounds of appeal dated 29 August 1991. The appellant in this case was acquitted on counts 2 and 3 but convicted on count 1. The submission of learned counsel is that all the three counts are so similar and so inter-related and founded on the same facts that an acquittal on one count must necessarily imply an acquittal on the other. In order that we appreciate the impart of this argument, I will reproduce the various charges:

“1. Conduct to the prejudice of good order and discipline contrary to section 54(1) of the AFA 1962.

In that he at the Army Health Department of the Military Hospital on 10 February 1989 was in possession of unofficial Army Health Department stamps which he had procured for his own use.

2. Conduct to the prejudice of good order and discipline contrary to section 54(1) of the AFA 1962.

In that he at the Army Health Department of the Military Hospital on 10 February 1989 without lawful authority used a fake stamp he had improperly acquired for patients of the hospital.

In that he at the Army Health Department of the Military Hospital behaved in a manner that is unbecoming of an officer. He procured fake stamps with which he stamped official documents illegally.”

It is clear that the essential ingredients in each of these offences in counts 2 and 3 are the same. The vocabulary is different in each case but the elements which go to make up the offence in count one is the same as in the other two counts. Thus for example in respect of the count 2 the following ought to have been proved: that he without lawful authority used a fake stamp he had improperly acquired for patients in the hospital. Those that had to be proved in count 3 are that he procured a fake stamp (the same as improper acquisition). “Stamped” implies using the fake stamps while “to stamp official documents illegally” implies “without lawful authority” in count 2. So also, count 1 contains elements similar to the two counts above, save that the charge concerns mere possession and does not extend to the actual use of the item in question. Even so the element of possession runs through all three counts, for by the very facts of this case he could not have used the stamp if he were not in possession of them.

In these circumstances, I am constrained to think that the charges are duplicated and either count 2 or 3 should have sufficed for all three counts. More importantly, we find that all three counts are based or founded on the same facts. Having thus acquitted the appellant on counts 2 and 3, I think it strange that he was convicted on count 1. In other words, I think the verdict is inconsistent and on this ground alone the appeal ought to be allowed. In the circumstances, I would allow the appeal.