Court of Appeal — Accra
ACR 4/2007
24 Jul 2008
Ghana
CORAM:
PIESARE, J.A. (Presiding) YAW APPAU, J.A. ADDO, J.A.
YAW APPAU, J.A.
Though I did not have the opportunity to read beforehand the elaborate and well elucidated lead judgment of my learned senior colleague Piesare, J.A., I agree with him in all respects that the appeal before us has all the merits in the world for which the convictions and sentences of the appellants must be quashed without any hesitation whatsoever. I also appreciate the wisdom he exhibited in the said judgment. I do not wish to add anything substantial to what my learned senior colleague has already said, though I would like to express an opinion on the trial court’s decision to invite the appellants to open their defence and their consequent conviction, which I think was erroneous. I would, however, not wade too much into the waters of our criminal jurisprudence as my good friend and brother Dr. Ayine who represents the 1st appellant brilliantly did, though not surprising, he being within the four walls of academia or the intellectual terrain.
In my humble and honest view; the said convictions were outrageous as they were not based on any known and accepted principles of criminal law that attract the sympathies of our criminal jurisprudence. In fact, the appellants should not have been called upon under any circumstances at all to answer the alleged charges preferred against them as contained on the charge sheet, since the charges themselves were legally defective. On the authority of AKOWUAH v. C.O.P. [1964] GLR 475 and then THE REPUBLIC v. KWADJO II [2008] 1 GMJ (Part 1) 42, all decided by the Supreme Court, the whole trial of the appellants in the court below was a nullity.
I want to start on the ‘all things being equal’ principle as used by economists in their theories. By this, I want to begin my argument on the premise that the tape recording that was transcribed on a C.D. Rom and tendered in evidence as Exhibit ‘D’ did in fact, capture the discussions of the appellants and the others mentioned in the record. That is, the appellants were part of the group that met in the house of ACP Kofi Boakye and all the statements attributed to them on the recording were true. That was, in fact, the position of the trial court in its judgment of 28th November 2007 and I adopt it for purposes of my arguments and reasoning in this my short or brief opinion. I also adopt the position of the trial court, for purposes of my arguments only, that the said Exhibit, (i.e. ‘D’) that was later reproduced as Exhibit ‘K’ by P.W.9 and 10, which was mysteriously procured and without doubt had no source of manufacture as the appeal record unquestionably discloses, was properly admitted in evidence.
Granted that the trial court was right in its conclusions as stated above, I am still of the strongest view that it was erroneous on the part of the trial Court to conclude that the prosecution was able to establish the charges leveled against the appellants at the close of its case, for which the appellants were required to open their defences.
The truth is that quite apart from the fact that the particulars of the three charges as preferred on the charge sheet disclosed no offences whatsoever known under our law on drugs; i.e. P.N.D.C. Law 236, the prosecution was not able to prove even a single ingredient of the offence created by section 3(2) of P.N.D.C. Law 236 with all the eleven witnesses that it called. The trial court relied heavily on the testimonies of P.W.7, 9, 10 and 11 in convicting the appellants after it had wrongly called on them to open their defences. These witnesses, apart from P.W.7 were said to be experts in their various fields and they were; P.W.9 Professor French, his assistant Mr. Harrison who testified as P.W.10 and our own respected Professor (Dr.) Kofi Agyekum ‘alias’ Opanin Agyekum who also testified as P.W.11.
Though from the nature of things, the State had to invest heavily in bringing on board these experts to assist it in the prosecution of the appellants on the alleged offences, I can say without any fear of contradiction that the testimonies of the said experts carried no weight whatsoever in assisting the prosecution to establishing or prove the charges leveled against the appellants, because the charges themselves were in the first place wrong and misplaced. What all these witnesses came to the Court below to do was to exhibit or showcase their academic credentials and curriculum vitae without adding anything substantial to the trial. As for P.W.7, he assumed the role of an ‘expert’ in the ‘drug underworld’ without any factual basis and the trial court surprisingly fell flat for him.
In doing my analysis, I will not re-call all the facts of the case that went before the lower court since my learned senior colleague did set out the facts clearly in his lead judgment, which I endorse. I may, however make reference to them when the need arises.
Of the first three counts under which the appellants were convicted and sentenced, the 1st appellant was charged together with the 2nd appellant under count one (1) for conspiracy to commit crime, while the 2nd appellant was charged alone under count two (2) on a substantive offence of having committed a crime and the 1st appellant also charged alone under count three (3) on the same substantive offence, which said offences all fall under the NARCOTICS DRUGS CONTROL (ENFORCEMENT AND SANCTIONS) LAW, P.N.D.C. Law 236.. The said counts read as follows: –
“COUNT ONE
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT CRIME NAMELY PROHIBITED BUSINESS RELATING TO NARCOTICS CONTRARY TO SECTIONS 56 (C) AND 3(2) OF THE NARCOTICS DRUGS CONTROL {ENFORCEMENT AND SANCTIONS} LAW, 1990, P.N.D.C.L. 236
PARTICULARS OF OFFENCE
1. KWABENA AMANING @ TAGOR, businessman. 2. ALHAJI ISSAH ABBAS, businessman, in or about the month of May 2006, at Kanda in Accra, in the house of ACP KOFI BOAKYE agreed to undertake an activity for the purpose of promoting an enterprise relating to narcotic drugs, i.e. Cocaine, by planning to cooperate with each other to find the 76 missing parcels of cocaine and to jointly enjoy the benefits.
COUNT TWO
STATEMENT OF OFFENCE
PROHIBITED BUSINESS RELATING TO NARCOTICS CONTRARY TO SECTIONS 3(2) OF P.N.D.C.L 236.
PARTICULARS OF OFFENCE
ALHAJI ISSAH ABBAS, in the month of May 2006, in the house of ACP KOFI BOAKYE in Kanda in Accra, admitted that you undertook an activity for the purpose of promoting the enterprise relating to cocaine, a narcotic drug with KWABENA AMANING @ TAGOR in which he cheated you.
COUNT THREE
STATEMENT OF OFFENCE
PROHIBITED BUSINESS RELATING TO NARCOTICS CONTRARY TO SECTIONS 3(2) OF P.N.D.C.L 236.
PARTICULARS OF OFFENCE
KWABENA AMANING @ TAGOR, in the month of May 2006, in the house of ACP KOFI BOAKYE in Kanda in Accra, admitted that you undertook an activity for the purpose of promoting the enterprise relating to cocaine, a narcotic drug by stating that you credited about 100 kg of cocaine and arranged for its payment in Holland.
The said sections under which they were charged on all the three counts provide: –
“56 (c) A person commits an offence if that person abets or is engaged in a criminal conspiracy to commit an offence under this Act or under a corresponding foreign law whether or not the offence is committed.
3 (2) A person shall not, without lawful authority, undertake an activity for the purpose of establishing or promoting an enterprise relating to narcotic drugs.”
The law is that before the prosecution could secure conviction of an accused person under any criminal charge, the prosecution is obliged under the law to establish the guilt of the accused beyond reasonable doubt. This means that under count one (1) of the instant case before us, the prosecution was required by law, while in the Court below, to prove beyond reasonable doubt that the two appellants did agree to commit the offence provided under section 3(2) of P.N.D.C. Law 236 while under counts two and three, the prosecution had to establish also beyond reasonable doubt that the appellants committed the substantive offence prescribed under section 3(2) of the same law. This is an obligation the law imposes on the prosecution always. The prosecution could only do or achieve this if at the close of its case, it was able to prove or establish all the necessary or essential ingredients constituting the offence(s) for which the appellants were charged. The question is; was the prosecution able to establish at the close of its case that the appellants did commit the said offences under the three counts? The answer is absolutely NO!
This requirement that a charge against an accused person must be proved beyond reasonable doubt is the sole prerogative of the prosecution. The accused does not contribute in anyway to it and the prosecution is supposed to do that by the close of its case. The accused in a criminal trial has the right to remain silent throughout the trial. He could decide not to say anything after the close of the prosecution’s case and the fact that an accused person decides not to say anything does not whittle down or make less the burden of the prosecution to establish the charge(s) leveled against the accused beyond reasonable doubt by the close of its case. What this means is that if the accused failed to say anything, the court could only convict on the evidence led by the prosecution if the court was convinced or had no doubt in its mind of the guilt of the accused in respect of the offence(s) for which he/she was charged.
I wish to re-echo a statement I made in my dissenting judgment in the case of DANIEL KWASI ABODAKPI v. THE REPUBLIC, decided by this Court on 20/06/2008 in respect of the scope or application of the principle of standard of proof in criminal cases; i.e. ‘proof beyond reasonable doubt’. This was what I said: –
“However, I wish to stress and with much importance that this duty to prove charges leveled against another beyond reasonable doubt is a standard one. The principles that underlie this duty and how it has to be accomplished are the same. They do not change according to the status or disposition of either the accused person or the complainant involved neither do they change according to the charge(s) preferred nor the public perception, concern or reaction in respect of the offence and/or the accused person in question.”
What I want to imply here is that the fact that this particular case aroused national significance and again the fact that this country is becoming a drug designated country did not justify the crucifixion of our criminal law by applying different principles alien to our criminal law practice, in establishing the guilt of the appellants, aside of the known common law principle that an accused person’s guilt has to be proved beyond reasonable doubt, irrespective of the crime or offence. This is a task the prosecution is obliged to accomplish at the close of its case.
In the English case of BRATTY v. ATTORNEY – GENERAL FOR NORTHERN IRELAND [1963] A.C. 386, the House of Lords, per Viscount Kilmuir, L.C. reiterated this principle that was laid down in the earlier case of WOOLMINGTON v. D.P.P. (infra) thus: “Nevertheless, one must not lose sight of the overriding principle, laid down by this House in Woolmington’s case, that it is for the prosecution to prove every element of the offence charged.”
This principle was pronounced by Viscount Sankey who was then the Lord Chancellor in the case of WOOLMINGTON v. D.P.P. [1935] A.C. 462 in the following words: – “No matter what the charge or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
As a common law country, this same principle applies in our criminal law practice and even in our case, the principle has been given a further boost by having it enshrined in our 4th Republican Constitution; i.e. (1992 Constitution) under Article 19 (2) (c) as follows: – “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty”. Then Article 19 (10) provides further: “No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
What this implies is that whether the accused person testifies or not, it is still the duty of the prosecution to establish or prove the charges preferred against him and the standard of proof required by law is; ‘proof beyond reasonable doubt’. A person is not pronounced guilty just because he refused to testify. He is pronounced guilty only when the evidence led by the prosecution in respect of the charge(s) satisfied the standard of proof required by law and that is; ‘proof beyond reasonable doubt’. If at the close of the prosecution’s case the prosecution was able to prove all the essential ingredients or prerequisites of the crime alleged and the prisoner or accused refuses to say anything in explanation or in defence, it would mean that the prosecution had proved the charge(s) against the accused beyond reasonable doubt. That is because the prisoner or accused could not offer any explanation to rebut the allegations established which prima facie, constituted proof.
It was therefore a mis-statement of the law, as counsel for the 1st appellant rightly contended in his written address, when it was suggested by the learned Professor Modibo Ocran, JSC in the case of TSATSU TSIKATA v. THE REPUBLIC [2003-2004] SCGLR, 1068 that the court cannot seriously speak of ‘proof beyond reasonable doubt’ when the defence has not testified so a lesser standard of proof must be sought for when considering whether a prima facie case has been made or not.
Though this Court is constitutionally bound by the decisions of the Supreme Court at all times, I do not think the suggestion made by Justice Ocran whom I respected a great deal, was one of the ratio decidendi of the Supreme Court in the case under reference. Atuguba, JSC criticized that position in the same case in his dissenting judgment and I agree in toto with the stand of the learned and respected Justice Atuguba. This was what he said: –
“To my mind the provision in section 11 (2) of the Evidence Decree (now Evidence Act), 1975 means that, a reasonable mind, applying his powers of reasoning to the evidence led by the prosecution at the close of its case, will end in the conclusion that, if no contrary evidence is led, it could be said that the relevant fact which has to be established by the prosecution has been established beyond reasonable doubt. This certainly calls for an assessment of and not merely a reading of the evidence so led, in a manner consistent with the requisite standard of conviction that must at that stage of the trial be induced in the mind of the reasonable person.”
The principle is that an accused person has a choice to either testify or to remain dumb. No matter which way he chooses, it is still incumbent on the prosecution to prove any charge leveled against him beyond reasonable doubt. That assessment could only be made by considering both the factual and legal substance of the case led by the prosecution without necessarily looking at what the defence or accused had said or intends to say. In my view therefore, the requirement that the prosecution has to establish a prima facie case against an accused before the accused could be called upon to open his defence is another way of saying that such evidence or case led must be such that it should leave no doubt in the mind of a reasonable person that it was the accused who committed the offence so that where the accused failed to give any explanation to rebut the guilt staring in his face, he would by all means be convicted.
It is a notorious principle of the criminal law that ‘prima facie evidence’ is nothing other than evidence that can lead to the conviction of the accused if the accused leads no evidence to rebut the presumption(s) raised in it. The standard required in establishing a prima facie case is therefore not lesser than the standard required in establishing or proving a case beyond reasonable doubt. The two mean almost the same though different yardsticks are applied in determining them since they are used at various stages of the trial.
Prima facie evidence is evidence, which on its face or first appearance, without more, could lead to conviction if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if it hopes to secure conviction of the person charged. At this stage the trial court is not supposed to make findings of fact since the other side has not yet spoken to determine who was being factual. What the trial court has to find out at this stage that the prosecution has closed its case is whether or not the evidence led has established all the ingredients of the offence for which the accused could be convicted if he failed to offer an explanation to raise doubts in the said evidence.
However, what we must remember is that evidence that can lead to the conviction of an accused person must be evidence that satisfies the standard of proof required by law; i.e. proof beyond reasonable doubt, whether the accused testified in explanation or not. There is nothing like a lesser standard than the required standard prescribed by law as the learned Professor was suggesting, with all the greatest respect I had for him. This is because, having closed its case, the prosecution has no further proof to offer. The accused cannot add up to the prosecution’s case where at the close of its case, the prosecution had been unable to establish a prima facie case against him. See the Supreme Court case of DONKOR v. THE STATE [1964] GLR 598, where the Highest Court of the land decided that where a submission of no case is wrongly overruled, the fact that the accused gives incriminating evidence filling the omissions or defects in the case for the prosecution will not change the legal position, especially where no offence has been alleged or proved by the prosecution. {Emphasis mine}.
The burden of establishing a prima facie case is therefore not lesser than the burden of establishing the guilt of an accused beyond reasonable doubt. It is the same evidence of the prosecution that is used in determining both. The difference is that in the former, since the person charged has not testified, the trial court does not compare facts to make findings of fact. The trial court only looks at the whole case of the prosecution placed before it and then questions itself whether that evidence could lead to the conviction of the person charged. The trial court does not do that in vacuum. It does that based upon certain accepted principles.
The trial court has to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only when the court is satisfied that all the ingredients have been established by the prosecution that it proceeds to invite the accused to provide an explanation to avoid being convicted, otherwise not. So it is legally incorrect to say that prima facie evidence, which is evidence that can lead to the conviction of an accused if he chooses to remain silent, is not evidence that establishes a case beyond reasonable doubt at that stage. It therefore amounts to a great miscarriage of justice where a trial court invites an accused person to open a defence when the prosecution could not establish all the ingredients of the crime for which he was charged.
In the instant appeal before us, there is no gainsaying that the trial High Court seriously erred when it ruled against the submission of no case made for and on behalf of the appellants by their lawyers and proceeded to call on them to open their defence when, from the record, the prosecution had woefully and miserably failed to establish a prima facie case against any of them at the close of its case. In fact, at the close of the prosecution’s case, the prosecution had unreservedly failed to discharge this responsibility bestowed on it by law. I proceed to justify the position I have taken below and in doing so, I wish to take the counts one by one.
The authorities are legion that no two cases are alike and that each case has to be determined on its peculiar circumstances. This supports the legal position that general principles of law do not decide specific cases. It does not therefore admit of any argument that each criminal charge or offence specified under any Code or Act has its specific or special ingredients that the prosecution has to establish if it wants to secure conviction.
For example, a charge of murder has its ingredients different from say a charge of assault or a charge of robbery and in proving that murder has been committed, all the ingredients of the charge have to be established. This applies to all substantive criminal offences like assault, robbery, rape, defilement, etc. including the inchoate crimes like conspiracy and abetment.
The trial court, in its ruling on the submission of no case to answer made on behalf of the appellants by their lawyers, got the principle right when, after referring to decided cases like STATE v. ALI KASSENA [1962] 1 GLR 144 – SC; APALOO v. THE REPUBLIC [1975] 1 GLR 156 and REPUBLIC v. ACCRA SPECIAL COURT; Ex-parte AKOSAH [1977] 1 GLR 285, it stated as follows: – “My duty at this stage as I understand it and also in principle of the decision in the Ex-Parte Akosah case is to do a balancing act at the close of the case for the Prosecution ensuring that the prosecution has led evidence to support the essential ingredients of the offences charged. It does not matter at this stage if those pieces of evidence are rebuttable or not.” {Emphasis added}.
The paramount consideration in deciding whether a prima facie case has been made or not is; whether the prosecution has proved all the essential ingredients or prerequisites of the offence charged. No prima facie case is made where the prosecution was unable to prove all the essential ingredients. Even if one of the ingredients is not proved, the prosecution fails and no prima facie case is made.
For instance, if say ‘S’ is charged with murder, the prosecution must, by the close of its case have satisfied all the ingredients of murder because the trial court can only conclude that a prima facie case has been made when all the ingredients of murder have been proved or established. These ingredients are: –
i) That someone is dead.
ii) That he died as a result of harm caused to him.
iii) That the harm was unlawful.
iv) That the harm was caused by ‘S’ and no one else.
v) That in causing the harm, ‘S’ intended the death of the deceased.
In the above scenario, if, at the close of its case, the prosecution was not able to prove all the five ingredients listed above; i.e. if say the prosecution was not able to prove that someone had in fact died as alleged, it could not be said that a prima facie case had been made against ‘S’ to warrant calling on him to defend himself.
What this means is that even if ‘S’ had gone to boast or brag somewhere in a machoistic way that he had killed somebody and this statement comes to the knowledge of the police through some secret means, the only thing the police could do is to arrest ‘S’ and investigate what he himself had alleged. If at the end of their investigation there is no evidence to support the allegation made by ‘S’ in his boastings or bragging that he had killed somebody, ‘S’ could not be charged or arraigned before court and tried on murder just because he himself had said he had killed somebody without more.
In the same vein, if ‘S’ had whispered to say his landlord that he had assaulted someone in their neighbourhood and the landlord sneaks to make a report to the police, the police may arrest ‘S’ on the basis of the secret information received from the landlord, but if after investigations, the police were not able to gather any evidence to suggest that ‘S’ actually assaulted someone within the neighbourhood, ‘S’ could not be dragged to Court and tried just because he himself said he had assaulted someone when there is no evidence to support what he was alleged to have said.
The genesis of the instant case now on appeal before us, is exactly the same as the examples given above but unfortunately, the learned trial judge whom I hold in high esteem was hoodwinked by the clever bait of a purported public concern about Ghana becoming a safe haven for drugs, into concluding the way he did.
I want to emphasize that despite the fact that the prosecution called as many as eleven (11) witnesses, none of the eleven (11) led any evidence connecting the appellants to any crime. The only evidence that was used to confront the appellants was a recording of statements they were alleged to have made in their private discussions in the house of a Senior Police Officer who had invited them to assist him clear his name of a smear campaign to link him to narcotic drugs. Before then, none of the appellants was being investigated for any such crime. There was no prior history of their involvement in any drug-related crime or any crime whatsoever. The record did not indicate anything like that.
The statements they made in their secretly recorded conversations, which from the prosecution’s point of view, was done by who nobody knows up to date, were therefore not made in respect of any offence or crime that they had allegedly committed or suspected to have committed for which they were being investigated. I would therefore not call those statements ‘confession statements’ or ‘admissions’ of any crime as the trial court did in its ruling on the submission of no case to answer and judgment, since they do not qualify to wear that tag. I would soon give my reasons why I have said so.
What did the charges leveled against the appellants entail and what were the ingredients of the offences for which the appellants were charged which the prosecution was obliged to prove to enable them secure proper conviction? This brings me to the conspiracy charge which happens to be the first count.
CONSPIRACY CHARGE
By the definition of the offence of conspiracy under our law, it entails an agreement between two or more persons with a common purpose to commit a crime or the acting together of two or more persons with a common purpose in committing a crime. The offence is defined under section 23 (1) of our Criminal Offences Act, 1960 [Act 29] as follows: –
“If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”
The offence is in two forms. The first is; to agree with a common purpose for or in committing or abetting a crime while the second is; to act together with a common purpose for or in committing or abetting a crime.
Under the first, the offence is committed when the said persons agreed with a common purpose for or in committing or abetting a crime though in the end, the agreement was not carried into fruition. The second entails a situation where the said persons never had any previous agreement or deliberations for or in committing or abetting a crime though they acted together in committing or abetting a crime. Both situations, when established beyond reasonable doubt, constitute the offence of conspiracy.
In the instant appeal before us, the accused persons were charged under section 56 (c) and 3 (2) of P.N.D.C. Law 236 but not under section 23 (1) of Act 29/60. They were said to have agreed with a common purpose to commit the crime specified under section 3 (2) of the law; i.e. P.N.D.C. Law 236. Section 56 (c) provides: – “A person commits an offence if that person abets or is engaged in a criminal conspiracy to commit an offence under this Act or under a corresponding foreign law whether or not the offence is committed.” Meanwhile, the offence or crime that the appellants were said to have agreed or planned to commit was the crime specified under section 3 (2) of the Law; i.e. P.N.D.C. Law 236. This crime also reads: – “A person shall not, without lawful authority, undertake an activity for the purpose of establishing or promoting an enterprise relating to narcotic drugs.”
As the trial court rightly opined in its ruling on the submission of no case to answer and in the judgment that followed afterwards, the main ingredients that have to be proved in a conspiracy charge are:
1. There must be at least two or more parties to the agreement or action.
2. The two or more parties must agree or act together.
3. They must do so with a common purpose.
4. The common purpose in their agreeing or acting together must be to commit a crime.
In the instant case, the appellants were not alleged to have acted together. They were said to have agreed with a common purpose to commit a crime. What this implies is that the alleged agreement was not carried to fruition that is, the crime was not actually committed as agreed that was why they were not said to have acted together. What is this crime that they were said to have agreed to commit?
They were said to have agreed during a meeting in the house of ACP Kofi Boakye, to undertake an activity for the purpose of promoting an enterprise relating to cocaine which is a prohibited narcotic drug.
A person commits crime when he/she undertakes an activity for the purpose of promoting an enterprise relating to narcotic drugs without lawful authority. That is what section 3(2) of P.N.D.C. Law 236 says. The reason why the prosecution said the appellants agreed to undertake an activity for the purpose of promoting an enterprise relating to narcotic drugs as disclosed in the particulars of the offence under the first count was that during their meeting, they planned to cooperate with each other to find the 76 missing parcels of cocaine and to jointly enjoy the benefits.
Some of the questions that readily come to mind after reading this charge are;
1. Which 76 missing parcels of cocaine did the appellants agree to find?
2. Where were these 76 missing parcels of cocaine?
3. Who imported them and when and from where?
4. Is it true there were 76 missing parcels of cocaine hiding somewhere?
In fact, these questions and many more were never answered by the prosecution. While the particulars of all the charges suggested that these 76 parcels of cocaine existed in reality, there was no evidence whatsoever, throughout the trial, of any 76 parcels of cocaine hiding somewhere which the appellants and others wanted to hunt and enjoy granted they even said that. The investigations conducted by the police and the evidence led throughout by the prosecution in the lower court did not suggest any such thing.
I take judicial notice of the fact that there was only a rumour in the country that a vessel by name M.V. Benjamin was carrying some parcels of cocaine heading towards the shores of Ghana and that some people had gone to the high seas with a canoe and stolen 76 out of the 77 parcels from the vessel that brought them and bolted with them. Because of this rumour that filled the pages of our daily tabloids, a committee was set up by the then government to investigate that allegation. The committee was known as the Georgina Wood Committee chaired by our current Chief Justice, The Honourable Lady Justice Georgina Theodora Wood. The committee, in discharging its duties, hit the rocks as it did not make any headway in tracing the alleged 76 parcels of cocaine that were allegedly stolen from the vessel, granted the allegation was true. So as to whether or not there were some 76 parcels of cocaine that were stolen from a vessel by unknown persons remains a mystery up to this time that I am reading my opinion.
Quite aside of this, the evidence led by the prosecution did not mention the appellants as having anything to do with the importation of the alleged 77 parcels of cocaine, which would have constituted an offence under section 3(2) of P.N.D.C. Law 236. When one of the police investigators who testified as P.W.2 for the prosecution in the person of Detective/Corporal Edward Yaw Asante was asked how he became aware that 77 parcels of cocaine arrived in a vessel and out of the number 76 had been carted away, he answered that he was told by one of the crew members found on board the vessel when he was conducting investigations into that case. He did not mention the name of the alleged crew member who gave him that information; neither did he say that the appellants had anything to do with these 77 parcels of cocaine.
The only crime of the appellants under this count was that they also heard of the said parcels of cocaine and they organized a meeting to look for the said parcels so that they could enjoy the benefits jointly. The discussions at the said meeting were said to have been captured on a secret tape that was used to record their conversations without authority. In fact, from the nature of the discussions on the tape (Exhibit ‘D’), the appellants were not making any ‘confessions’ or ‘admissions’ to any authority or person. They were having a friendly chat in which some of them were bragging about their wealth and others. Whether all the discussions they had there had any factual basis or not was not established.
As I have earlier on recounted, at the time the private conversations of the appellants and the others were secretly taped, none of them was under any investigations of any sort for having committed or suspected to have committed any crime. But the question is; is it true that the appellants’ met in the house of ACP Kofi Boakye with other people purposely to plan to cooperate with each other to find the alleged 76 missing parcels of cocaine for their own enjoyment? Absolutely not!
The fact is that from the discussions recorded on Exhibit ‘D’, ACP Kofi Boakye who was the Director of Operations of the Ghana Police Service at the time, which was a powerful position within the police hierarchy in Ghana, had information that his name was being linked to the alleged 76 missing parcels of cocaine and his information was that it was the 2nd appellant who was doing that. He then invited the appellants and the others to a meeting to clear his name and to look for the culprits who allegedly imported the said drugs into the country without authority. His main aim, notwithstanding other careless statements or bragging that were made during the discussions, was to solicit the assistance of the appellants to look for the culprits who allegedly imported the said cocaine into the country so he even expressed his desire to inform National Security about it.
As a police officer, I am of the view that he was right in doing so since his main aim was to trace the culprits who allegedly imported the said drugs into the country. He could employ all means possible as a senior police officer, both lawful and even at times through unlawful means, to stumble upon any information that could lead to the arrest of the unknown perpetrators of the alleged crime. It was in the course of the discussions that a voice was heard on the tape saying in the Twi language to wit; “nipa baako entumi ndi”, which the prosecution literally interpreted to mean, one person could not enjoy the benefits of all the alleged 76 missing parcels of cocaine. It was this very statement that later formed the basis or the substance of the charge under count one. Meanwhile, the existence of the alleged 76 missing parcels of cocaine remains a mystery up to date. Again, the person who said one person could not enjoy all the missing parcels was identified by the experts as MO, which meant it was Moro who said that. This Moro was never charged with any offence granted what he said about one person not being able to enjoy the whole stuff constituted a crime, which in fact was not a crime as such.
So seriously speaking, none of the appellants ever said, during their conversations in ACP Kofi Boakye’s house, that they were going to look for the 76 missing parcels of cocaine so that they could jointly enjoy the benefit, granted that statement alone constituted the crime of conspiracy to undertake an activity for the purpose of promoting an enterprise relating to narcotic drugs to wit; cocaine.
It is therefore never correct that the two appellants ever agreed to commit a crime to wit; to undertake an activity in the promotion of an enterprise related to narcotic drugs by planning to cooperate to search for the parcels so that they could together enjoy them.
I do not think that if a Senior Police Officer of the caliber of the whole Director of Operations of the Ghana Police Service invites people to assist in locating a banned drug that had arrived in the country unlawfully, which was no secret but the topic of the day, the mere agreement to assist the police officer to unravel the mystery surrounding the alleged missing cocaine itself constituted the commission of the crime of conspiracy to commit a crime.
As counsel for the 1st appellant brilliantly argued in his written submissions, the charge of conspiracy against the appellants did not hold. The particulars as given under count one on the charge sheet do not constitute a crime under conspiracy as known under our criminal law and for holding that such a charge had been established for which the appellants were called upon to open their defences, the trial court grievously erred.
I now turn my attention to counts two and three which border on the same offence; i.e. section 3(2) of P.ND.C. Law 236. This section that creates the crime for which the appellants were separately charged provides: –
“A person shall not, without lawful authority, undertake an activity for the purpose of establishing or promoting an enterprise relating to narcotic drugs.”
The ingredients of this offence which the prosecution must establish if it wants to sustain the conviction of a person charged under such an offence are:
1. That someone has undertaken an activity.
2. That the reason for undertaking the said activity was to establish or promote an enterprise relating to narcotic drugs to wit; cocaine.
3. That, the said activity was unlawful since it was done without authority.
4. That the said activity was undertaken by the person charged; i.e. the accused.
In proving the above ingredients, there must be evidence that the said activity that was intended to establish or promote an enterprise relating to cocaine did in fact take place; i.e. that there was a physical or actual engagement in an identified and described activity. Again, there must be evidence as to the place or location where the said activity took place to make it a crime triable in Ghana. Also the time or period within which the alleged criminal activity was undertaken is crucial in determining whether the alleged offence was committed after the promulgation of the current law; i.e. P.N.D.C. Law 236 that was passed in 1990 or before. It must also be established that the said activity was undertaken by the persons charged and that they did so without authority.
In the instant case before us, the particulars of the charges under counts two and three were silent on all these. Throughout the evidence led by all the eleven witnesses the prosecution called, none of them indicated in the slightest measure possible that what the appellants alleged during their private discussions for which they were charged, tried and convicted did actually take place. Again, there was no indication whatsoever as to when and where the alleged activities took place.
So without mincing words, the particulars of the charges under counts two and three were defective making them incurably bad as counsel for the appellants rightly contended in their written submissions. They fit in the same jacket as the examples I gave with regard to murder and assault charges (supra); that is; if someone says he has killed a human being and there is no independent evidence to support that fact, can such a person be dragged to the court and convicted on the basis of what he had said only, when the factual basis of his allegation or the corpus delicti has not been established? I do not think so and I believe any such step would be jurisdictionally outrageous.
The second count under which the 2nd appellant was charged read as follows: –
“ALHAJI ISSAH ABBAS in the month of May 2006, in the house of ACP Kofi Boakye in Kanda in Accra, admitted that you undertook an activity for the purpose of promoting the enterprise relating to cocaine, a narcotic drug with Kwabena Amaning @ Tagor in which he cheated you.”
The same charge was preferred against the 1st appellant under count three as follows:
“KWABEWNA AMANING @ TAGOR, in the month of May 2006, in the house of ACP Kofi Boakye in Accra admitted that you undertook an activity for the purpose of promoting the enterprise relating to cocaine, a narcotic drug by stating that you credited about 100kg of cocaine and arranged for its payment in Holland.
The above particulars did not indicate that the two appellants did in fact undertake the said activities. What the particulars said was that the appellants admitted sometime in May 2006 in the house of a Senior Police Officer that they undertook the said activities. Whether what the appellants said in the said discussion actually took place or not, the evidence led did not establish that. Again, granted that the said activities did in fact take place (though there was no evidence to suggest that), there was no indication as to when and where the said activities were allegedly undertaken.
I would like to reduce this argument into a hypothetical question and answer basis. The questioner is someone who wants to know what the appellants did leading to their prosecution and conviction while the one answering is the prosecution that dragged the appellants to court. I begin with the 1st appellant: –
QUESTION: What activity did the 1st appellant undertake with the purpose of establishing or promoting an enterprise relating to narcotics?
PROSECUTION: He himself said, in the house of ACP Kofi Boakye that he credited 100kg of cocaine and arranged for its payment in Holland.
QUESTION: When did he say he undertook this activity?
PROSECUTION: Ah! He did not indicate.
QUESTION: Where did he say he credited the cocaine?
PROSECUTION: Ah! I don’t know?
QUESTION: Who was to pay for the cocaine in Holland?
PROSECUTION: Ah! He did not tell.
I now, move on to the 2nd appellant.
QUESTION: What activity did the 2nd appellant engage in that showed that he was establishing or promoting an enterprise relating to narcotic drug, to wit; cocaine?
PROSECUTION: He himself said during a meeting in ACP Kofi Boakye’s house that he did cocaine business with the 1st appellant in which the 1st appellant cheated him.
QUESTION: Did he indicate when he allegedly did the said business with the 1st appellant?
PROSECUTION: No, he didn’t.
QUESTION: Did he disclose where he and the 1st appellant carried on this business?
PROSECUTION: No, he didn’t.
QUESTION: But did you find out yourself whether he actually did any cocaine business with the 1st appellant as he claimed?
PROSECUTION: How could we have done so? We only relied on what he said on the tape recording.
As counsel for the 1st appellant rightly contended, the actus reus of the alleged offences committed by the two appellants under section 3(2) of P.N.D.C. Law 236 was not established. The actus reus alleged by the prosecution was an alleged admission of engaging in the activity, period. To the trial court, whether what the appellants alleged they did was actually done by them or not was immaterial. Since they themselves have said that they did undertake that activity, there was no need to establish that they in fact undertook that activity.
That was, in fact, a serious indictment on our criminal law with regard to proof of an offence. It is like saying that if someone is overheard saying that he has raped somebody and there is no evidence that somebody has in fact been raped as alleged by that someone, that person who was overheard saying so could still be charged for rape and convicted without any further proof that somebody was actually raped. This reasoning, in my humble and candid view, has no legal basis. It is devoid of legal touch and very dangerous.
The fact is that all the authorities that the prosecution relied on in convincing the trial court to conclude that a conviction could be based on mere admission without any supporting independent evidence whatsoever were given a wrong interpretation and improperly applied in the instant case before us. These cases were STATE v. OTCHERE [1963] 2 GLR 463; BILLA MOSHIE v. THE REPUBLIC [1977] 2 GLR 418 and AYOBI v. THE REPUBLIC [1992-93] GBR, PART II page 769.
In all these cases, there was evidence that a crime had actually been committed and the accused persons were being investigated for their roles in the crime. It was in the course of the said investigations that they confessed to the said crimes then being investigated.
In the first case; that is State v. Otchere (supra), the accused persons were charged with conspiracy to commit treason. There was evidence that there were series of meetings in Lome by some United Party members who were then in exile in Togo during Nkrumah’s time at which they planned to overthrow the government of Osagyefo Dr. Kwame Nkrumah. Following these meetings, there was an attempt to assassinate the President at Kulungugu when a bomb was thrown at him. This was followed by series of bomb outrages in various parts of Accra. The first accused in that case, made certain confessions to the police when he was eventually arrested. He admitted attending some of the meetings held in Lome to overthrow the government of the day but he denied doing anything in furtherance of that agreement. The only evidence the prosecution had against him was the confessions he made while under arrest.
The Special Criminal Division of the High Court that tried the accused persons was headed by the then Chief Justice and in its judgment; this was what the court said under holdings (7) and (8).
“(7) A confession made by an accused person of the commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused.
(8) The principle regarding a confession of murder (or manslaughter) is that where the confession is direct and positive, that is, where the confession establishes the corpus delicti, the confession is sufficient to sustain conviction. But where the confession falls short of establishing the corpus delicti, then further corroborating evidence is required to prove the corpus delicti.”
By these holdings, what the Special Court was saying was that where the confession statement does not establish the corpus delicti, that is, (the facts that constitute the offence) then there is the need for independent corroborative evidence to prove that the crime was indeed committed. The decision in the Otchere case (supra) on the effect of confession statements did not therefore mean what the prosecution and the trial court said it meant, i.e. that a mere confession statement without more is sufficient to ground conviction. In fact the Special Court did not say so since that is not the position of the law.
Now, in the Billa Moshie case (supra), the appellant who was a watchman at a distillery was charged with the murder of his co-worker. There was evidence that the co-worker was dead and that he was murdered. There was evidence that the deceased was hit with a stone and his mouth slashed with a cutlass. He was also shot with an arrow with the arrow sticking out of his abdomen. Immediately after the incident, the appellant Billa Moshie confided in his landlord that he had killed his co-worker. He was arrested and placed in police custody and in his confession statement made to the police; he gave details as to how he murdered the deceased. The details he gave corresponded with the evidence as to how the deceased was killed.
However, during the trial, he denied the charge. He was, nevertheless found guilty by the jury and convicted and sentenced accordingly. He later appealed against the said decision and in dismissing the appeal, this Court held that a conviction could quite properly be based entirely on the evidence of a confession by a prisoner, if such evidence was sufficient, as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness. {Emphasis added}.
In this Billa case just like the Otchere one, the confession statement that the appellant Billa made to the police while in custody established the corpus delicti and in that sense, there was no need for any corroborative evidence. Billa had told his landlord that he hit his co-worker with a stone. Again, he slashed his mouth with a cutlass and thirdly, he took the deceased’s bow and arrow and shot him in the abdomen. All that the appellant Billa said was established by the police during investigation as there was no doubt that the deceased was hit with a stone, slashed with a cutlass and shot with an arrow as Billa confided in his caution statement. So seriously speaking, there was independent evidence that suggested that the offence had been committed and that it was committed by the appellant Billa.
It is not correct, as was suggested by the respondent in its written submissions that it is only in murder cases that we can talk of corpus delicti. Corpus delicti is nothing more than the facts that constitute the offence for which an accused person has been charged. In an assault case for instance, the corpus delicti is the facts that establish that someone had actually been assaulted; i.e. evidence of the assault and it includes medical reports if any of the injuries sustained, etc.
In the instant case, the only evidence led by the prosecution in the Court below was that the 1st appellant said, during their discussions in the house of ACP Kofi Boakye that he credited about 100kg of cocaine and arranged for its payment in Holland while the 2nd appellant also said he did cocaine business with the 1st appellant in which the 1st appellant cheated him. Apart from what the appellants were alleged to have said during their private discussions, there was no evidence that what they said ever took place, meaning the corpus delicti of the said offences was not established. There were no facts to support the charges or the alleged offences committed.
There was no evidence that the 1st appellant ever credited cocaine any where and at any time and had it sold in Holland at any time as he was alleged to have said. Again, in respect of the 2nd appellant, there was no evidence, apart from what he was alleged to have said in the secret recordings that he ever did any cocaine business with the 1st appellant at any time and at any place for which investigations were being conducted against him. No such facts were established by the prosecution. It is such facts that form the corpus delicti in this case but none was established.
From the record, when the 2nd appellant said he did business with the 1st appellant during which the 1st appellant cheated him, the 1st appellant categorically denied that contention. So even between the 1st appellant and the 2nd appellant, they were not in agreement that they did any cocaine business together in which the 1st appellant cheated the 2nd appellant. This was all the evidence that the prosecution led against the appellants. So what criteria did the prosecution and the Court below use in believing the statement by the 2nd appellant that he did business with the 1st appellant in which the 1st appellant cheated him when in the same conversation the 1st appellant had categorically denied what the 2nd appellant had alleged?
In fact, the facts in this case are completely at variance with the facts in the cases the prosecution cited to support its contention that confession statements alone could ground a conviction without any corroborative evidence that establishes the corpus delicti. Seriously speaking, there can be no charge like; ‘accused admitted that he did commit some crime’ when the prosecution has no evidence to prove or establish that the alleged crime was ever committed.
In criminal proceedings, when there is evidence that a crime has been committed and someone is suspected of having committed the said offence, the police conduct investigations to gather information to support their suspicion that it was the person suspected who committed the crime. It is when the said suspect volunteers information connecting him to the crime being investigated that the said information could be used against him to buttress the suspicion. This is not what happened in this case. This case presents a situation where I am hearing for the first time in my whole judicial career that a conviction could be based on a mere allegation by a rabble-rouser or a braggart that he had done something criminal in nature when there is no evidence that suggests in the least that the alleged offence or crime had indeed been committed or was ever committed.
I now consider briefly the issue as to whether or not the statements attributed to the appellants in the secret recordings qualify to be tagged ‘confessions’ or ‘admissions’ in law. The ordinary dictionary meaning attached to the word ‘CONFESSION’ in the legal context by the Shorter Oxford English Dictionary (Deluxe Edition) is; “the making known or acknowledging of one’s own fault, offence, etc; acknowledgment before proper authority of the truth of a criminal charge.”
In legal lexicon, the following meanings or definitions have been attached to the word. It is defined in Osborn’s Concise Law Dictionary as, “an admission of guilt made to another by a person charged with a crime.”
The Oxford Dictionary of Law, 5th edition edited by Elizabeth A. Martin, defines it as “an admission, in whole or in part, made by an accused person of his guilt.”
Jowitt’s Dictionary of English Law, second edition by John Burke defines the word as follows: “In civil procedure, a confession is a formal admission. In criminal law, a confession is an admission of guilt, made either judicially, that is, in the course of a judicial proceeding, or not. Judicial confession may operate as an estoppel, and, if plenary, is sufficient to found a conviction, as where a prisoner pleads guilty. An extrajudicial confession never operates as an estoppel but is admissible in evidence if given freely and voluntarily, without inducement by temporal threat or promise from someone having authority in relation to the charge.”
In Black’s Law Dictionary, seventh edition by Bryan A. Garner as Editor in Chief, the word was defined as, “A criminal suspect’s acknowledgment of guilt, usually in writing and often including details about the crime.” It then quoted Wigmore on ‘Evidence in Trials at Common Law’, which defines it as; “A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.” Black’s Law Dictionary went ahead to give categories of confessions and their definitions. What concerns me here are the definitions attached to ‘judicial confessions’ and ‘extrajudicial confessions’, which were defined as follows: –
Judicial confession was defined as, “A plea of guilty or some other direct manifestation of guilt in court or in a judicial proceeding.” ‘Extrajudicial confession’ on the other hand was defined as “A confession made out of court, and not as a part of a judicial examination or investigation. Such a confession must be corroborated by some other proof of the corpus delicti, or else it is insufficient to warrant a conviction.”
In Stroud’s Judicial Dictionary of Words and Phrases, sixth edition by Daniel Greenberg and Alexandra Millbrook, the authors quoted R v. McKay [1965] Qd. R. 240 in which it was stated that “mere incriminatory statements are not of themselves sufficient to constitute a confession.” Further reference was made to the case of R. v. SAT – BHAMBRA [1988] CRIM. L. R. 453 where the court held that; “A damaging but exculpatory statement is not a confession.”
What all these definitions quoted above imply is that a confession is an admission of guilt made before proper authority or to another person by either a suspect who is facing a criminal charge or by someone not yet suspected of having committed the crime under investigations . This pre-supposes the existence of a crime for which the confession or admission was made by one to another person or authority confirming one’s guilt.
This means that there must first of all be a crime. Secondly, the maker of the statement that qualifies to be termed a ‘confession’ might have been either an accused on trial who made that statement to the court trying the case admitting the crime or offence (i.e. judicial confession) or, the maker might have been a suspect or someone who made the said statement voluntarily to the authority in charge of investigating the crime or to someone else, admitting the crime that had been committed (i.e. extrajudicial confession).
In an epitome therefore, before any statement could be used against the maker as a confession statement, there must be the existence of a crime or an offence that the alleged confession tends to support. Again, the confession must be voluntary.
In the English cases cited by the prosecution (respondent); i.e. R. v. SANG [1979] 2 All E.R. 1222 and R. v. KHAN, where the police had to plant a secret devise in the cells of the accused persons then under investigations so as to capture their involvement in the said crime being investigated, the prisoners were already under arrest and being investigated for the said crimes. The police just needed more evidence to strengthen their case thus the means employed, though with authority.
In the Sang case (supra) the appellant was charged with conspiring with others to utter forged United States banknotes. His defence was that he was induced to commit the offence by an informer acting on the instructions of the police and that but for that persuasion the appellant would no have committed the offence. His counsel tried to persuade the judge to rule, in the exercise of his discretion, that the Crown should not be allowed to lead any evidence of the commission of the offence thus incited. The judge overruled him and convicted the appellant on his own plea. On appeal against the judge’s ruling, the Court of Appeal dismissed the appeal and a further appeal was lodged with the House of Lords. The House of Lords held, inter alia, that; “if evidence against the accused had been improperly obtained by the police by the use of an agent provocateur or by a police man and an informer inciting the accused to commit the crime alleged that was not a ground on which the judge could exercise his discretion to exclude the evidence, although it could be a factor in mitigating the sentence imposed on the accused”…
In both cases, there was evidence that the accused persons had committed offences for which they were charged. That scenario is absent in the instant case before us, so it was wrong for the trial court to have referred to those cases to justify the wrong decision it arrived at. In the instant case before us, there was no evidence that the appellants admitted their guilt in respect of any crime that they had committed at any time or at any place to any body or before any authority. What the appellants and the others who met in ACP Kofi Boakye’s house said in their private conversation about things that they allegedly did in the past in the midst of quaffing liquor, without any further proof that what they were alleging or bragging about ever took place, did not therefore amount to confession or admission of guilt of any offence.
In my candid and objective view therefore, the whole trial was a nullity as it was based on defective charges that are not known under our criminal jurisprudence. The convictions and sentence of the appellants on all the charges constitute a cancerous tumor in our legal anatomy that should not be made to eat into and infect our lower courts. They need to be flushed out from the system and confined to the waste bin.
