As a general rule, evidence from the defence is not taken until the court has held that the prosecution has established a prima facie case. This is based upon the well-known principle that it is the prosecution which has the onus to prove the guilt of the person they accused of an offence, and not an accused should establish his innocence, the accused should therefore not to show his hands until the need arises
Effect of a ruling that a prima facie case is made out
It bears stressing that where the court rules that a prima facie case has been made out and orders the Accused person to open his defence, it does not mean that the Accused was guilty at that stage. What it simply means is that the evidence on record as led by the Prosecution has gone beyond mere allegations or speculations which calls for clarification or explanation from the Accused, bearing in mind the constitutional fiat as housed in Article 19(2) (c) of the 1992 Constitution that a person is presumed innocent unless found guilty or has pleaded guilty himself. It is after the accused person has given his side of the story by way of offering evidence in rebuttal of the evidence on record led by the Prosecution will the court then be seized with jurisdiction to pronounce him guilty or not. In other words, it is only at the end of the trial where the accused has offered in rebuttable can the court make findings of facts.
Findings of fact at the close of the prosecution case
It needs reiterating that as a matter of law, the trial court is not required at the close of the Prosecution’s case to make any findings of fact or make any pronouncement touching on the merits of the case. The trial court’s mandate is only to look at the evidence on record as offered by the Prosecution and decide as to whether or not a prima facie case has been made. If the court should make any findings of fact or say something which seemingly decide on the merits it will be presumed to have prejudiced the case of the defence and to have made the trial most irregular. This is because the trial court would be presumed to have made up its mind at that stage of the trial.
Function of the court at the close of the prosecution case
Section 173 is concerned with summary trials where the judge decides both questions of law and fact. It is for the judge in a summary trial to weigh the evidence and then decide whether from the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if uncontradicted will justify a conviction.
In a trial on indictment it is the duty of the trial judge to decide, under section 271 of Act 30, whether there is any evidence to be left with the jury. If there is none it is his duty to withdraw the case from the jury and direct them to enter a verdict of acquittal and acquit the accused.
In summary, therefore, the solemn and or the prime function of the court at the close of the prosecution’s case is to consider whether a prima facie case has been established to warrant the call on the accused to enter his defence in accordance with S.174 of Act 30. On the other hand, if the threshold of not establishing a prima facie case was not met, the court in exercise of its power under S.173 of Act 30 and acquit and discharge the accused. The duty is not otherwise cast on the court to determine whether the Accused was guilty or that his guilt could be inferred.
Inference of guilt at the close of the prosecution case
There was no eye-witness to the commission of the offence and therefore we have ourselves examined very carefully the evidence adduced by the prosecution and we are unable to discover any single fact definitely linking the appellant with the killing of the deceased, and consequently we do not think the circumstantial evidence in this case is so cogent and compelling as to convince a reasonable man. At the close of the case for the prosecution there was no evidence that the blood found on the clothes and palm of the appellant was that of the deceased, and therefore no definite inculpatory fact was proved against the appellant. The accumulation of facts proved amounts to no more than mere suspicion, and however strong suspicion may be, it cannot form the basis for continuing trial after a submission of no case.
the case of The State v. Ali Kassena supra reiterates the well-settled principle that, in every criminal trial, after the close of the prosecution’s case, the judge has the duty to determine whether guilt may be inferred from the facts as presented by the prosecution. It was stated that there can be no inference of guilt unless there are objective facts from which the inference can be made. If the positive facts are lacking, as in this case, what is left is mere conjecture or speculation.
The term, “prima facie” is a Latin expression that literally means a case at first hand. In law, it implies that a court of law has the duty to evaluate a case at the initial stage of a trial to satisfy itself if there is any evidence to support the allegation, the subject of the trial or the case.
Under common law, prima facie denotes evidence that unless rebutted, would be sufficient to prove a particular proposition or fact. Put differently, it is that evidence which is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted.
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.
Power to acquit at the close of the prosecution case
In our view the learned trial judge should, after the close of the case for the prosecution, have acted under section 271 of the Criminal Procedure Code by directing the jury to enter a verdict of not guilty and acquitting the appellant. Not having done so, however, would not render the conviction bad in law, if the appellant’s evidence taken together with the evidence for the prosecution supplied the quality of evidence required to sustain a conviction.
It is extremely important to explain that by reason that the court was not required to make findings of fact at the close of the case for the Prosecution did not also mean that the court cannot acquit and discharge at that stage of the trial. All that the principle simply means is that if the court after scrutinizing and considering all the evidence led on record by the Prosecution, it was satisfied that a prima facie case has been established then, as a matter of law, the court shall call upon the Accused person to open his defence. Per contra, where the court was of the opinion that no prima facie case has been made out, it has the power in terms of S. 173 of Act 30/60 to acquit and discharge at that stage of the trial without even calling on the accused to enter into his defence.
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.
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.
Standard of proof at the close of the prosecution case
The question which the judge has to consider at the close of the prosecution case in a trial on indictment is “whether the prosecution has given reasonable evidence of the matters in respect of which it has the burden of proof”. It is for him as a matter of law to determine whether the evidence adduced has reached that standard of proof prescribed by law; and for the jury to determine whether that standard has in fact been satisfied.
My Lords, it is true that at the close of the prosecution's case, the guilt of the accused is not supposed to be proved beyond reasonable doubt for purposes of submission of no case. But, the law requires that the prosecution provide sufficient evidence as per Section 11(2) of the Evidence Act, such that the evidence should be capable of convicting the accused if he/she does not offer any explanation. If there is no evidence to support the charge laid against the accused, the court must hold that no prima facie case has been made out and that the accused is entitled to be acquitted and discharged forthwith.
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.
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.
Where, therefore, the evidence adduced on behalf of the prosecution fails to take the case out of the realm of conjecture, the evidence is best described as “insufficient”. It is the type of evidence which because it cannot convince, cannot be believed, and therefore is incapable of sustaining conviction. In these circumstances it would be wrong in a summary trial to over-rule a submission of no case to answer.
My Lords, from the above and established in the case of Michael Asamoah & Another v. The Republic, supra, in considering an application for submission of no case, not only should all the elements of the offence be proved, but also the evidence adduced should be reliable and should not have been so discredited through cross-examination that no reasonable tribunal can safely convict on it. Additionally, the evidence at this stage should not be equally balanced as to be open to two likely explanations or consistent with both guilt and innocence.
The law now appears settled that at the close of the case of the Prosecution the court may call upon the Accused to make a defence only when a prima facie case has been established against him. The law as I understand it, is that if at the close of the prosecution’s case, no sufficient evidence had been led to prove the ingredients of the charge levelled against the accused the trial judge is enjoined by law as stipulated in S. 174(1) of Act 30 to hold that no prima facie case has been made. In consequence, the accused person shall be entitled to be acquitted and discharged on that charge.
where there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.
