Division: COURT OF APPEAL, ACCRA
Date: 2 AUGUST 1974
Before: AZU CRABBE CJ
CASES REFERRED TO
(1) White v. Maryland 373 U. S. 59 (1962).
(2) Massiah v. United States 377 U.S. 201 (1963).
(3) Escobedo v. Illinois 378 U.S. 478 (1963).
(4) Miranda v. Arizona 384 U.S. 436 (1965).
(5) Gilbert v. California 388 U.S. 263 (1966).
(6) Crooker v. California 357 U.S. 433 (1957).
(7) Cicenia v. LaGay Superintendent, New Jersey State Prison Farm 357 U.S. 504 (1957).
(8) Christie v. Leachinsky [1947] A C. 573; [1947] L.J.R. 757; 176 L.T. 443; 63 T.L.R. 231; 111 J.P. 224; [1947] 1 All E.R. 567; 97 L.J. 369, H.L.
(9) Tims v. John Lewis & Co., Ltd. [1951] 2 K.B. 459; [1951) 1 T.L.R. 79; [1951] 1 All E.R. 814, C.A.
(10) R. v. Kulynycz [1971] 1 Q.B. 367; [1970] 3 W.L.R. 1029; [1970] 3 All E.R. 881; 55 Cr.App.R. 34, C.A.
(11) Wheatley v. Lodge [1971] 1 W.L.R. 29; [1971] 1 All E.R. 173; [1971] R.T.R. 22, DC.
(12) R. v. Inwood [1973] 1 W.L.R. 647; [1973] 2 All E.R. 645; 57 Cr.App.R. 529, C.A.
(13) Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada [1912] A C. 571; 81 L.J.P.C. 210; 106 L.T. 916; 28 T.L.R. 446, P.C.
(14) Carnley v. Cochran, Corrections Director 369 U.S. 506 (1961).
(15) Kojo v. Solaz (1938) 4 W.A.C.A. 191.
NATURE OF PROCEEDINGS
APPEAL against a judgment of the High Court convicting the appellants of murder on the ground that statements made by the second appellant were received in evidence in violation of article 15 (2) of the Constitution, 1969, then in force. The facts are sufficiently set out in the judgment of Azu Crabbe C.J.
COUNSEL
Frimpong Boadu for the first appellant.
Alhaji B. Kwaw-Swanzy for the second appellant.
S. E. Asamoah, Senior State Attorney, for the Republic.
JUDGMENT OF AZU CRABBE C. J.
Crabbe C.J. delivered the judgment of the court. The appellants were convicted before Okai J. at the criminal session of the High Court of Justice, Kumasi, Ashanti Region, on 4 August 1972, for the murder of John Kwame Appiah, and were sentenced to death.
The case for the prosecution was based essentially on circumstantial evidence, and, with regard to the second appellant, the prosecution also relied on the confessional statements (exhibits A and K) made by the second appellant during the police investigations.
In the opinion of this court, the circumstantial evidence was sufficiently cogent to justify the conviction of the appellants, and but for the very important constitutional issue raised in ground (i) of the additional grounds of appeal, filed on behalf of the second appellant, this court would have no difficulty whatsoever in dismissing the appeal, because it found no merit in the arguments advanced by counsel in support of the other grounds of appeal.
Ground (1) is stated as follows:
“(a) The learned trial judge erred in law when he held that exhibits A and K, statements made by the appellant herein and dated respectively 26 October 1969 and 1 November 1969, were admissible.
(b) The exhibits A and K ought to have been excluded on the ground that they were made in breach of the appellant’s constitutional right conferred on him by article 15 (2) of the Constitution of the Republic of Ghana, 1969.”
The provisions of article 15 (2) of the Constitution read as follows:
“Any person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to consult Counsel of his own choice.”
Arguing this ground of appeal, Mr. Kwaw-Swanzy, counsel for the second appellant, submitted that any statement taken from a person in
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custody in contravention of article 15 (2) was inadmissible, and he argued that having regard to the fact that the second appellant was not informed of his right to consult counsel of his choice, the two investigatory statements taken from him were inadmissible. And in support of this contention, counsel cited the following American cases: White v. Maryland 373 U.S. 59 (1962), Massiah v. United States 377 U.S. 201 (1963), Escobedo v. Illinois 378 U.S. 478 (1963), Miranda v. Arizona 384 U.S. 436 (1965) and Gilbert v. California 388 U.S. 263 (1966).
It did not surprise us that Mr. Kwaw-Swanzy should rely on these American cases, because we find that the provisions of article 15 (2) provide guarantees similar to those found in the Sixth Amendment to the United States Constitution.
The first statement, exhibit A, was made by the second appellant on 26 October 1969, when the Constitution of the Republic of Ghana, 1969, had just come into force, and the circumstances leading to the making of this statement were narrated in the evidence of the interrogating officer, Detective Corporal Charles Osei the ninth prosecution witness as follows:
“On 25 October at about 8 a.m. I received a telephone message from Interpol Lome that vehicle No. GG 196 had been traced and the person found in it had been arrested. I accompanied the senior police officer, Mr. Hokporti, to Lome. At the National Headquarters in Lome vehicle No. GG 196 was handed over to me together with the second accused. I see vehicle No. GG 196 Toyota outside in the yard. The vehicle was driven to the border together with the second accused. I put the second accused into my office. I brought out the first accused into my office. I asked the second accused whether he knew the first accused and he said yes, that they came together from Accra but that they took the lead and went to Lome. I asked the first accused whether he had heard what the second accused said. The first accused did not reply. When the first accused came he spoke all along in English. I spoke to him in English. I sent back the first accused into the cells. In the presence of Mr. Ayiku, I interrogated the second accused about the ownership of the vehicle. The second accused told us that on 17 October 1969 he met somebody, he mentioned the name. That he left with that person. They went to Accra and lodged with one Mr. Sunny a brother to that person.
Whilst they were in the house of Mr. Sunny, Sunny discussed something with the other person in Biafran language. This was later translated to him by the other person as follows: ‘That Mr. Sunny had given an amount of N05O.OO to the other friend to find a vehicle to buy, that the friend and the second accused were to go to Kumasi to buy the vehicle. On 18 October 1969 the friend and the second accused left Accra for Kumasi. On arriving at Kumasi they lodged with a friend at Aboabo for the night. On 19 October 1969, they hired a taxi car.’ I sensed that the second accused was going to say something so I administered the cardinal words. That a case of stealing a vehicle, Toyota vehicle, was under investigation. That I
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suspected him in that case, he was not obliged to say anything unless he wished to do so but whatever is said will be taken down in writing, and will be given in evidence. The second accused decided to make a statement, he took the pen and he said he would like to make a statement and that he would like to write the statement. Mr. Ayiku [identified] was still with us. He wrote the statement. He signed the statement after he had read through. I told accused he can make corrections, he could do anything he liked. He read through the statement and he made a certificate, and then he signed. I also signed as a witness. Mr. Ayiku made a certificate. I see in court the statement it was made on 26 October 1969. I see my signature on it.”
When it was sought by the prosecution to tender the statement in evidence, counsel for the defence objected, and the learned trial judge recorded the grounds of this objection as follows:
“(1) Mr. Totoe informs court he is objecting as no proper caution words were administered.
(2) It was induced after an application of promise of favour.
(3) It was induced by promise of favour.
The statement was not voluntarily made. Mr. Totoe said that the jurymen leave the court when this matter is determined.”
There followed a “trial within a trial,” and, on the conclusion of the evidence, learned counsel for the defence elaborated the grounds of his objection in his address to the court as follows;
“(a) No proper caution was administered. In that the ninth prosecution witness told him he was investigating a case of stealing. The caution words are in order.
(b) The statement was given in consequence of assault and duress. If in fact accused was assaulted and
promised then the statement was not voluntarily made. The version of accused as to what happened before the statement was taken is preferable to that given by the police. Onus is on prosecution to prove that the statement was taken voluntarily. Conduct of the police in attempt to comment on what happened must create a doubt in the mind of the court as to whether the statement taken was voluntarily made or not. This must be decided in favour of the accused.”
Thus, it is clear that the thrust of the objection to the admissibility of the statement of 26 October 1969, was directed only to the voluntariness of the statement. The learned trial judge, however, rejected the argument in support of the objection, as, in his view, the statement was voluntary, and he admitted it into evidence and marked it exhibit A. There can be no doubt, as appears in exhibit A, that before the second appellant wrote his statement he was clearly told of his right to remain silent, if he wished, and that he fully understood this. In the statement, the second appellant confessed that he put in the hand of the first appellant the instrument with which the deceased was killed, and that he also helped the first appellant to drag the dead body into the bush.
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After making the statement in exhibit A, the second appellant remained in police custody, whilst the investigation into the murder of the deceased continued. On 11 November 1969, he was charged with the murder of the deceased, and again he was told of his right to remain silent if he wished, and it appears that he perfectly understood what he was told. The second appellant then made a statement and signed it in the presence of an independent witness. At the trial, learned counsel for the defence objected also to this statement, and quoting the words of counsel, “on the grounds that the statement was made after promise of favour held out to the accused.” But this objection was rejected by the learned trial judge after “a trial within a trial,” and admitted into evidence and marked exhibit K. In this statement the second appellant said that the first appellant alone killed the deceased and forced him (the second appellant) to help in dragging the dead body into a bush.
It seems quite clear, looking at exhibit A and exhibit K alone, that although the second appellant was told within a reasonable time of the grounds of his arrest and detention, yet no one apprised him of “his right to consult Counsel of his own choice.” But it seems equally clear from the record of proceedings at the trial that the defence did not complain about the failure to warn the second appellant of his right to consult counsel. The two statements were written by the second appellant, and no one who reads them can fail to form the impression that the second appellant is an educated man of some intelligence. Therefore, the questions that arise are: (a) whether the second appellant can be deemed to have waived the constitutional safeguard provided for the protection of a suspected person to be told of his right to consult counsel of his choice, and (b) if he did not waive it, whether exhibit A and exhibit K were thereby rendered inadmissible.
Neither the 1957 Constitution for the Independence of Ghana nor the 1960 Constitution of the Republic of Ghana contained provisions similar or analogous to article 15 (2) of the 1969 Constitution, and, therefore, there is complete lack of authority of any Ghanaian case law which should guide this court in solving the questions which face it. As we have said earlier in this judgment, the Sixth Amendment to the American Constitution contained provisions similar to article 15 (2), and, therefore, we propose to look for assistance from cases decided in the American jurisdiction on the Sixth Amendment. But in this endeavour, our task is made even more difficult by the conspicuous lack of unanimity among the justices of the American Supreme Court.
In a series of decisions prior to 1964, based primarily on the Sixth Amendment principles, the failure or refusal of the police or other interrogators to give opportunity to the person interrogated to consult with counsel, even after a specific request to see a particular lawyer, was regarded only as part of a chain of circumstances which helped to determine the voluntariness of a statement: see Crooker v. California 357 U.S. 433 (1957) and Cicenia v. LaGay Superintendent, New Jersey State Prison Farm 357 U.S. 504 (1957). However, in Massiah v. United States (supra),
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the Supreme Court held that the guarantee in the Sixth Amendment that, “In all criminal prosecutions the accused shall enjoy the right . . . to have the assistance of counsel for his defence” required that incriminating statements elicited by agents of the government from an accused person, after an indictment has been preferred, and in the absence of counsel, should be excluded. The court further observed at p. 204 that:
“[A] Constitution which guarantees a defendant the aid of counsel at . . . trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extra judicial proceeding. Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him’.”
In Escobedo v. Illinois (supra) there was established the principle of the suspect’s right to consult with his lawyer during the course of police interrogation. The court said (by majority of five to four at pp. 490-491):
“We hold therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the assistance of counsel’ . . . and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.”
In 1966, Miranda v. Arizona (supra) established detailed and specific guidelines for the questioning of suspects. Delivering the majority opinion of the court, Chief Justice Warren said at pp. 444-445:
“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of any attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner
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and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”
Later the Chief Justice again said at pp. 473-475:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease … If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At the time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
This does not mean, as some have suggested, that each police station must have a ‘station house lawyer’ present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel … This Court has always set high standards of proof for the waiver of constitutional right, … and we re-assert these standards as applied to in-custody interrogation …
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”
Four members of the court dissented: Mr. Justice Clark differed at p. 499 from the majority “because its opinion goes too far on too little, while my dissenting brethren do not go quite far enough.” Mr. Justice Harlan described the new rules at p. 517 as “anything but a hazardous experimentation” whilst Mr. Justice White declared at p. 538:
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“I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police’s asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent . . .”
Miranda v. Arizona marks an important step forward in the development of the treatment of persons suspected of crimes, and in its judgment the court laid down three fundamental rules: (a) before he is interrogated, a person suspected of a criminal offence must be warned of his constitutional rights to silence and counsel; (b) counsel, including appointed counsel if necessary, must be available during interrogation; and (c) the suspect may waive both counsel and his right to remain silent only by an explicit statement to that effect after warning. Mere proof by the prosecution that a warning was given is not sufficient; there must be a clear showing that the accused knowingly and deliberately waived his right.
In the opinion of this court, article 15 (2) is an extension of the common law principle relating to the liberty of the individual in a democratic society. This common law principle was considered by the House of Lords in Christie v. Leachinsky [1947] A.C. 573, H.L. where Viscount Simon, after reviewing the authorities, stated the following propositions at pp. 587-588:
“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.(4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g. by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. These principles equally apply to a private person who arrests on suspicion.”
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See also Tims v. John Lewis & Co., Ltd. [1951] 1 All E.R. 814, C.A.; R. v. Kulnycz [1970] 3 All E.R. 881, C.A.; Wheatley v. Lodge [1971] 1 All E.R. 173 and R. v. Inwood (1973) 57 Cr.App.R. 529, C.A.
To these safeguards provided by the common law for the protection of the individual, article 15 (2) has superimposed the further safeguard that the person “arrested, restricted or detained” should be informed immediately of “his right to consult Counsel of his own choice.”
In this case the court is not concerned with the civil remedy of the individual for the infringement of his constitutional right arising from the failure of the police officers to inform the second appellant of the reasons for his arrest. The question which the court is rather asked to consider is whether the investigatory statements (exhibits A and K), obtained in violation of the second limb of article 15 (2) of the Constitution, are inadmissible in evidence in the trial of the second appellant. In Escobedo v. Illinois (supra) the United States Supreme Court concluded its judgment with the following observation at p. 492: “We hold only that when the process shifts from investigatory to accusatory-when its focus is on the accused and its purpose is to elicit a confession-our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.”
Miranda v. Arizona lays down that not only has the suspect the right to consult with counsel before interrogation, but that the right extends to have counsel present during the process of “custodial interrogation.”
The clause in the 1969 Ghana Constitution which guarantees the right of a person under arrest or detention to consult counsel appears to have been deliberately inserted by the Constitution-makers, having regard to the wanton suppression of personal liberty during the First Republic. The object of the whole provision of article 15 (2), it seems to this court, is, to enable a person, who thinks that he is unlawfully detained or restricted, to apply, or to instruct counsel to apply on his behalf, to the High Court for an order of habeas corpus to secure his release. The Constitution is the fundamental law of the land, and the duty of the court is to ensure its strict observance. And as Lord Loreburn L.C. said in Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada [1912] A C. 571 at p. 583, P.C.:
“In the interpretation of a completely self-governing Constitution founded upon a written organic instrument . . . if the text is explicit the text is conclusive, alike in what it directs and what it forbids.”
It seems to this court that the guarantee of the right to consult counsel is based on the Sixth Amendment to the Constitution of the United States of America, and in our opinion the interpretation of the second limb of article 15 (2) should, therefore, be made consistent with the decisions of the Supreme Court of the United States on the Sixth Amendment, which,
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though not binding upon this court, are no doubt of persuasive authority in this country. So interpreted, it will mean that a departure from the procedures required by article 15 (2) would render inadmissible at the resulting trial any confessional statement obtained from a suspect.
At the trial in this case, the objections to exhibits A and K were no doubt directed in each case only to the issue of whether the statements were voluntary, and no question was raised about the failure of the police to inform the second appellant of his constitutional right to consult counsel of his choice. In Carnley v. Cochran, Corrections Director 369 U.S. 506 (1961), it was said at p. 516:
“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”
As a general rule, the failure of one party at a trial to object to the admission of inadmissible evidence does not preclude that party from raising the objection on appeal, if the admission of the inadmissible evidence constitutes a breach of a rule of law: see Kojo v. Solaz (1938) 4 W.A.C.A. 191. Here the objection is to the admissibility of evidence in breach of the supreme law of the land, and in the opinion of this court, the point can legitimately be taken at this late stage in this court. An accused person cannot be held to have easily acquiesced in the loss of his fundamental rights, and the prosecution must prove that he knowingly waived those rights. There is no proof of any conscious waiver in this case, but counsel for the Republic, Mr. Asamoah, has contended that failure to inform the second appellant of his right did not occasion a miscarriage of justice.
In the opinion of this court, it is irrelevant that an infringement of a constitutional right has not occasioned a miscarriage of justice. Any breach of the provisions of the Constitution carries with it “not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say, the breaking of the fundamental law of the land”: see The Proposals of the Constitutional Commission For a Constitution For Ghana, 1968. p. 22, para. 88. The statement in exhibits A and K, were obtained in violation of the second appellant’s constitutional rights, and consequently, we hold that they were inadmissible in evidence at the trial of the second appellant. There is, however, sufficient evidence aliunde to support the conviction of the second appellant, and his appeal must, therefore, fail.
In the result, we dismiss the appeal of both appellants.
DECISION
Appeals dismissed.
S. E. K.
