HIGH COURT, ACCRA
Date: 6 NOVEMBER 1975
TAYLOR J
CASES REFERRED TO
(1) Okorie v. The Republic [1974] 2 G.L.R. 272, C.A.
(2) Escobedo v. Illinois 378 U.S. 478 (1963).
(3) Miranda v. Arizona 384 U.S. 436 (1965).
NATURE OF PROCEEDINGS
SUBMISSION of no case based on an objection to the admissibility of police statements made in contravention of article 15 (2) of the Constitution, 1969.
COUNSEL
S. E. Asamoah, Senior State Attorney (with him Doku, State Attorney), for the Republic.
Bob Anane for the first accused.
James Ahenkora for the second accused.
JUDGMENT OF TAYLOR J.
In this case the accused persons are charged on two counts. The first accused with attempted abortion contrary to sections 18 (2) and 58 of the Criminal Code, 1960 (Act 29). The particulars of the offence state that, “On or about 15 September 1973 at Asylum Down in Accra in the Greater
Accra Region, the first accused attempted intentionally and unlawfully to cause an abortion on one Georgina Kissi.” It is unnecessary to go into the facts at all. The prosecution called six witnesses, the last witness, the sixth, was the policeman who conducted the investigation. None of the first five witnesses for the prosecution gave any evidence implicating the first accused. When the sixth prosecution witness gave evidence, however, he tendered in evidence two statements, exhibits B and D which were taken from the first accused. These statements would seem to indicate that the first accused did give some injection to the said Georgina Kissi apparently with the intention of causing an abortion. The statements were admitted in evidence without objection. At the close of the case, however, counsel has submitted no case to answer on the ground that the statements ought not to have been admitted having regard to the provisions of article 15 (2) of the Constitution, 1969. He drew my attention in this regard to Okorie v. The Republic [1974] 2 G.L.R. 272 at p. 280, C.A. where Azu Crabbe C.J. relying on the American cases of Escobedo v. Illinois 378 U.S. 478 (1963) and Miranda v. Arizona 384 U.S. 436 (1965) had held that such statements taken in disregard of the provisions of article 15 (2) of the Constitution, 1969, are inadmissible in evidence. The Republic in reply submits that by virtue of the National Redemption Council (Establishment) Proclamation, 1972, s. 2 (1) the operation of the Constitution is suspended and with the suspension goes the fundamental human rights enshrined in Chapter 4 of the Constitution, the chapter under which article 15 (2) is promulgated.
I have heard quite exhaustive arguments on this matter in this and two other cases pending now before me. I hope to give full reasons later in one or the other of those other cases to demonstrate that this argument that the rights formulated as rules of law in the Constitution have been abrogated by the Proclamation is misconceived. For my present purpose I will only consider the implication of section 3 (2) of the said Proclamation. That subsection reads as follows:
“Subject to any Decree made under the immediately preceding subsection, any enactment or rule of law in force in Ghana immediately before the 13th day of January, 1972 shall continue in force and any such enactment or rule of law may by Decree of the Council be revoked, repealed, amended (whether by addition, omission, substitution or otherwise) or suspended.”
(The emphasis is mine.) In my view article 15 (2) is clearly a rule of law. In the Okorie case Azu Crabbe C.J. put the matter in such clear language as to dispel in my view any argument that article 15 (2) is not a rule of law. He said at p. 280, “In the opinion of this court, article 15 (2) is an extension of the common law principle relating to the liberty of the individual . . .” Now by section 3 (2) of the National Redemption Council (Establishment) Proclamation, 1972, enactments and rules of law in existence immediately before 13 January 1972 were saved and were not abrogated in spite of the suspension of the operation of the Constitution, 1969.
[p.409] of [1975] 2 GLR 406
I agree that there is much to be said against a system that excludes a statement voluntarily made merely because the accused was not informed of his right to consult counsel of his own choice. Arguments against the principle were exhaustively canvassed in the dissenting opinions of four of the American Supreme Court judges who sat on the Miranda case (supra). I do not propose in this short ruling to advert to these, suffice it to say that one important consideration which dominated the reasoning of Warren C.J. in the Miranda case at pp. 444-448 and which commends itself to me, is that if the law enforcement officers of the State are permitted to depend for convictions on confessions instead of on an independent source pointing to guilt, the administration of justice will be discredited and the law enforcement officers will be encouraged to use brute force to obtain confessions. The quality of the material supporting convictions in an adversary system of justice will suffer.
I hold therefore that on the authority of Okorie v. The Republic, which of course binds me, the statements are inadmissible. I regret though that counsel did not take the objection earlier on, but as was decided in the Okorie case he is perfectly entitled to take it at any stage of the proceedings. I do not therefore call upon the first accused since the statements are the only evidence against him. I will direct the jury therefore to return a verdict of Not Guilty as a matter of law.
In the case of the second accused the matter is really very simple. He was charged with abetment of an unknown dispenser to commit abortion. There is in his case not an iota of evidence led in support of the charge. The state attorney when called upon to assist the court to examine the material against him, confessed quite honourably that there is no evidence led by the witnesses which in any way incriminates him. In the result I see no reason therefore to call on him as I also see no evidence. I will also direct in his case that the jury should bring in a verdict of Not Guilty.
You are [Jury] therefore directed as a matter of law to bring a verdict of Not Guilty against the accused on their charges.
DECISION
Objection and submission of no case upheld.
S.Y.B.-B.
