THE REPUBLIC vs. KWAME AMPONSAH & ANOR

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- AD. 2026

CORAM: BAFFOE-BONNIE CJ (PRESIDING)

GAEWU JSC

KWOFIE JSC

AMALEBOBA JSC

ACKAAH-BOAFO JSC

CRIMINAL APPEAL

NO. J3/1/2025

8TH JULY, 2026

THE REPUBLIC ……….. RESPONDENT/APPELLANT

VRS

KWAME AMPONSAH

CHRISTOPHER OBAREKE ……….. APPELLANTS/RESPONDENTS

JUDGMENT

ACKAAH-BOAFO, JSC: i. Introduction:

[1] My Lords, the Respondents in this appeal, Kwame Amponsah and Christopher Obareke, together with five other persons, were charged with one count of conspiracy to commit the offence of defrauding by false pretence and one count of defrauding by false pretence, contrary to sections 23(1) and 131 of the Criminal Offences Act. They were also charged with one count of money laundering contrary to section 1 of the Anti-Money Laundering Act, 2008 (Act 749).

[2] The prosecution called two witnesses in proof of its case, without calling the complainant to testify. The Respondents were convicted by the trial High Court, which sentenced them to 24 months’ imprisonment with hard labour (IHL), in addition to a fine of 3,000 penalty units or, in default, an additional four years’ imprisonment on counts one and two and 2,000 penalty units or, in default, two years’ imprisonment on count three.

[3] The Respondents appealed, and a unanimous panel of the Court of Appeal held that the trial judge had committed errors of law sufficient to warrant the overturning of the convictions. The Court accordingly acquitted the Respondents, by which time they had already completed their sentences. The Republic has now brought the instant appeal before this Court.

[4] The principal issue for determination is whether the trial judge applied the correct legal and evidentiary principles in concluding that the Prosecution had established its case beyond reasonable doubt and in consequently convicting the Respondents.

[5] My Lords, for reasons to be elaborated upon in this opinion, I agree with the Court of Appeal that there were errors of law of sufficient gravity to justify setting aside the convictions and entering acquittals. In addition, although I do not entirely agree with the Court of Appeal’s conclusion regarding the alleged failure of the Prosecution to call a “material witness”, I am nevertheless of the view that its judgment is sustainable, ought to be affirmed, and that the appeal should accordingly be dismissed. ii. Overview:

[6] This appeal is before the Supreme Court at the instance of the Republic, which seeks to overturn the judgment of the Court of Appeal delivered on 6th May 2021. In that judgment, the Court of Appeal set aside the convictions and sentences imposed by the High Court, Accra, against the 1st and 2nd Accused persons, namely Kwame Amponsah and Christopher Obareke, respectively.

[7] The Respondents were arraigned before the trial High Court together with five other accused persons named on the charge sheet. They faced three principal charges. The first charge was conspiracy to commit the offence of defrauding by false pretence, contrary to sections 23(1) and 131 of the Criminal Offences Act, 1960 (Act 29). The second charge was the substantive offence of defrauding by false pretence, contrary to section 131 of Act 29. In addition, the accused persons were charged with money laundering contrary to section 1 of the Anti-Money Laundering Act, 2008 (Act 749), as amended.

[8] At the conclusion of the trial, the High Court convicted the accused persons on 18 April 2019 on counts one and two and sentenced them to a mandatory custodial term of twenty-four months imprisonment with hard labour. The trial court further imposed a fine of three thousand penalty units, with an additional term of four years imprisonment with hard labour in default of payment. On the charge of money laundering, the accused persons were sentenced to a mandatory term of eighteen months imprisonment together with a fine of two thousand penalty units, or, in default, a further term of two years imprisonment with hard labour. The sentences were ordered to run concurrently.

[9] Dissatisfied with both their conviction and sentence, the 1st and 2nd Accused persons appealed to the Court of Appeal. Upon a review of the record and consideration of the arguments advanced, the Court of Appeal allowed the appeal and acquitted the Respondents on all counts. The Republic, being aggrieved by that decision, has now invoked the appellate jurisdiction of the Supreme Court seeking a reversal of the judgment of the Court of Appeal.

[10] It is significant to note that by the time the Court of Appeal delivered its judgment on 6th May 2021, the Respondents had already fully served the custodial sentences imposed by the trial High Court. Although that circumstance does not render the present appeal academic or moot, it underscores the intensity with which the parties have contested the proceedings at every stage.

[11] For purposes of convenience and consistency throughout this judgment, the Republic, described procedurally as Respondent/Appellant, shall simply be referred to as “the Appellant,” whilst the Accused persons, procedurally designated as Appellants/Respondents, shall be referred to collectively as “the Respondents.” The remaining accused persons who are not parties to the present appeal are A3 – Eugenie Umukunzi, A4 – Daniele Andreani (at large), A5 – Adams Kaba (at large), A6 – Umar (at large), and A7 – Kwame Horgle alias Frank Yeboah (at large). iii. Background Facts:

[12] The case concerns an alleged fraudulent gold transaction arising out of an agreement between DLR Finance Limited, represented by the complainant, one Roberto Maria Di Lorenzo, and Ocean Link Mining Limited, represented by its General Manager, Adams Kaba (A5). The complainant’s account is that the transaction was orchestrated by the accused persons acting together under the guise of a legitimate gold export arrangement in Ghana.

[13] According to the record of appeal (ROA) of three volumes, the events leading to the transaction began on 23 July 2015 when an Italian associate of the complainant, Sommariva, informed him that one Daniel Andreani (A4), also an Italian national, had gold available for sale in Ghana. Upon expressing interest in the transaction, the complainant was assisted to travel to Ghana through arrangements facilitated by the 1st Respondent, Kwame Amponsah. The 1st Respondent, acting as Managing Director of Kwaglo Ghana Limited, wrote to the Ghana Immigration Service requesting that the complainant be granted a visa on arrival. In furtherance of the same arrangement, Adams Kaba (A5), acting as Managing Director of Ocean Link Mining Limited, also wrote to the Ghana High Commission in Italy seeking assistance to facilitate the complainant’s travel to Ghana.

[14] Upon arriving in Ghana, the complainant was received at the airport by Eugenie Umukunzi (A3), Daniel Andreani (A4), and Umar (A6). Thereafter, the complainant was introduced to A5 and A6 as Directors of Ocean Link Mining Limited. Subsequently, a contract was executed at the offices of Bar Purity Ghana Limited for the supply of 200 kilograms of gold. The agreement was signed on behalf of the respective companies by the complainant and A5. The complainant stated in his police statement that A3 and A4 were the persons who introduced him to Bar Purity Ghana Limited, the company represented to him as the entity responsible for shipping the gold to his designated address abroad.

[15] While at Bar Purity Ghana Limited, the complainant met the 1st Respondent, who informed him that, as part of the transaction, it was necessary for him to open a “metal account” with Bar Purity. Acting on this representation, the complainant opened the said account and deposited a total sum of Two Hundred and Sixteen Thousand United States Dollars (US$216,000.00) into accounts held by Bar Purity at Ecobank Ghana and the United Bank for Africa. These payments were allegedly made to cover shipment fees, insurance, taxes, legal documentation, and other logistical expenses connected with the export of the gold.

[16] The complainant further alleged that he paid an additional sum of Thirty Thousand United States Dollars (US$30,000.00) to a security company known as Standard Express Security Company as storage charges for the gold. Investigations, however, disclosed that no company by that exact name existed in the records of the Registrar-General’s Department. Instead, the records reflected the existence of a company known as Standard Express Ghana Limited, whose directors included the 1st Respondent and one Abdulimhem. Notwithstanding this discrepancy, the complainant produced a receipt issued by A7 on the letterhead of Standard Express Security Company.

[17] The complainant maintained that the money was handed over in the presence of A4, A5, and A6. The prosecution’s case was that the security deposit was ultimately received by the 1st Respondent. The 1st Respondent, however, denied any knowledge of Standard Express Security Company and contended that no such deposit was required because security for gold exports was ordinarily provided by Customs officers through placement of the gold in a Customs Bonded Warehouse pending export.

[18] Following the payments, the complainant stated that he was escorted by A7 and A5 to the Ridge Branch of HFC Bank, where they showed him metal stored in the bank’s vault, representing it to be gold forming part of the contracted shipment. The evidence further disclosed that the 1st Respondent withdrew funds from the complainant’s metal account and used part of the money to purchase two kilograms of gold, which was allegedly incorporated into the gold stored in the vault and subsequently shipped to a refinery in Dubai for the complainant’s benefit. Testing at the refinery confirmed that the consignment was genuine gold. However, despite this initial shipment, the complainant asserted that the remaining 198 kilograms of gold were never exported to him, notwithstanding repeated assurances.

[19] The complainant further stated that he was later informed by A6 that certain villagers who allegedly had custody of the gold were demanding a cash deposit before releasing it. A6 subsequently introduced four individuals to the complainant as miners in possession of the gold. In consequence, the complainant was induced to pay One Thousand Two Hundred United States Dollars (US$1,200.00) towards the transportation expenses of the said miners and an additional Two Thousand Ghana Cedis (GHS2,000.00) through A6 to persuade the villagers to expedite the release of the gold for export. In addition, the complainant withdrew Twenty Thousand United States Dollars (US$20,000.00) from the funds previously deposited with Bar Purity and handed same to A3 for the purchase of metal boxes purportedly intended for the transportation of some quantity of gold allegedly being held by a security company.

[20] As the transaction continued without delivery of the remaining gold, Mario Carmine Pugliese, who served as interpreter for the complainant and later testified as PW1, advised that the matter be reported to the Police. PW1 testified that after the complaint was lodged, he accompanied the complainant to the offices of Bar Purity Ghana Limited, where they met both the 1st and 2nd Respondents. According to PW1, the 2nd Respondent behaved aggressively and, after providing explanations for the delay in shipment, demanded an additional payment of Three Million United States Dollars (US$3,000,000.00) before the remaining 198 gold bars could be released and shipped. This demand was said to be contrary to the terms of the original agreement between the parties.

[21] PW1 further testified that on the following day, they proceeded to the Police Headquarters to meet the initial investigator, ASP Anaba. According to PW1, ASP Anaba informed them that the dispute appeared to be civil in nature and advised them to engage a lawyer. Dissatisfied with this response, the complainant lodged several petitions, which eventually resulted in the reassignment of the investigation to Detective Chief Inspector George Kingsley Adu (PW2), who was at the time reportedly investigating another alleged fraud case involving the Respondents.

[22] Subsequent investigations conducted by the Police allegedly revealed that the 1st and 2nd Respondents, together with the other accused persons who remained at large, had acted in concert to defraud the complainant. Consequently, criminal charges were preferred against them before the High Court. The record further disclosed that A3 was initially arrested and granted police enquiry bail. She later applied to the High Court for permission to travel outside the jurisdiction for medical treatment and was granted leave to do so on condition that she returned within six weeks. However, after leaving the jurisdiction, she failed to return. The investigator was likewise unable to apprehend the remaining accused persons who were still at large at the time of the trial. As a result, only the 1st and 2nd Respondents were eventually arraigned before the High Court to stand trial. iv. The Decision of the High Court:

[23] The trial High Court, by Asare Botwe J (as she then was) after considering the evidence and the submissions of counsel, convicted the 1st and 2nd Respondents on all counts. In arriving at the conviction, the trial Judge evaluated the testimony of the two prosecution witnesses (PW1, Mario Carmine Pugliese, and PW2, D/C/Insp. George Kingsley Adu), the documentary evidence tendered, as well as the case for the Defence.

[24] The trial Judge, in her judgment, which appears at pages 313–344 of Volume 2 of the Record of Appeal (ROA), found that Bar Purity Ghana Limited and its appendages were engaged in a scheme to defraud the complainant. At pages 338–339 of Volume 2 of the ROA, the trial Judge held:

“In my view, the testimony on record, the nature of the documents tendered in evidence, as well as the ingots which turned out not to be gold bars, lead to the inevitable conclusion that Bar Purity Ghana Ltd and its appendages are only attempting to avoid the obvious responsibility for perpetrating a gargantuan fraud on the complainant and, in the process, throwing dust in the eyes of the court.”

[25] With respect to the 2nd Respondent specifically, the trial Judge further found at page 339:

“Despite the fact that the company registration documents do not list A2 as a director or shareholder of Bar Purity Company Limited, his own evidence and that of A1 show that he is the Chief Executive Officer of the Company. He is the directing force of the Company. Yet, it is quite clear that even at the inception of the setting up of the company, A2, likely with mala fides, was careful to avoid any appearance in the company’s documents, yet he is a signatory to the account of a company with which he, on the record, has no link at all. Quite clearly, he is seeking to be the undetected beneficiary of the funds accruing from the transaction.”

[26] At page 340 of Volume 2 of the ROA, the trial Judge, after reviewing the exhibits and oral evidence, convicted the accused on both counts of conspiracy to defraud and defrauding by false pretences, holding that the Prosecution had established the charges beyond reasonable doubt. v. Decision of The Court of Appeal:

[27] As stated above, being dissatisfied with the decision of the High Court, the Respondents appealed against their conviction and sentence to the Court of Appeal on specified grounds of appeal. The Court of Appeal, after hearing the appeal and considering the submissions filed, in a unanimous decision delivered on 6th May 2021, allowed the appeal and set aside both the conviction and sentence imposed by the trial High Court.

[28] In evaluating the evidence, the Court of Appeal expressed reservations regarding the involvement of Bar Purity in the criminal proceedings. The Court of Appeal – Coram: Dzamefe, Agbevor & Mensah, JJA speaking through Dzamefe J.A. (as he then was) stated:

“I do not see where BAR PURITY committed any offence in this appeal. The contract specified their role, the amount to be paid them and which the buyer did. If the seller failed to supply the gold how was Bar Purity going to ship same. Secondly, why blame Bar Purity for the non-supply by Ocean Link Mining Limited? Aside speculations and conjectures there is no positive evidence that BAR PURITY is the same as Ocean Link Mining Limited nor related.”

[29] Upon a thorough analysis, the Court of Appeal found that the original investigator, DW1 (Chief Inspector Adaba), was a material witness whose testimony was vital to the prosecution’s case, and that the prosecution’s failure to call him was fatal to its case. The Court further held that the absence of the complainant at trial was equally fatal to the prosecution’s case, notwithstanding the evidence of PW1 and PW2. The first appellate court also characterised the evidence of PW1 as inadmissible hearsay.

[30] Additionally, the Court of Appeal observed that the complainant’s statement, which was not made part of the prosecution’s case, materially contradicted the prosecution’s narrative, and consequently found no evidential basis for the conviction on the charge of conspiracy.

[31] In concluding its analysis on the charge of conspiracy, the Court of Appeal held as follows:

“We are not conferring any ‘sainthood’ title onto the appellants, but every criminal case must be determined on the evidence available before the trial court. There is not a scintilla of doubt in our minds that on the totality of evidence before the court the prosecution could not establish any element of the charge of conspiracy against the appellants. There are also several doubts, inconsistencies and contradictions in the prosecution case which will inure to the favour of the appellant. There was no element of conspiracy proven against the appellants. If there was any conspiracy at all to defraud the complainant, then it was by his own compatriots, the 3rd and 4th accused who led him to the 5th, 6th and 7th accused persons in Ghana. We are of the view this is one contract gone bad and if the complainant thinks he has the legal right can sue the seller for damages for breach of contract.”

[32] Based on the holistic analysis of the record, the Court of Appeal, accordingly acquitted and discharged the 1st and 2nd Respondents on all charges and set aside the judgment of the trial High Court. The Court further ordered the Precious Minerals Marketing Company (PMMC) to restore the licence of Bar Purity and to unfreeze their bank account with immediate effect. v. The Instant Appeal:

[33] The Appellant, being the Republic, dissatisfied with the judgment of the Court of Appeal, has accordingly filed the instant appeal by way of a Notice of Appeal filed on 21st May 2021, and prays this Honourable Court to set aside the decision of the first appellate court on the following grounds:

Grounds of Appeal:

The decision of the Court of Appeal is not supported by the evidence on the record of appeal.

The Court of Appeal erred when it held that DW1, a former investigator in the case who only took statements from the appellants, was a material witness and so the failure of the Prosecution to call him as a witness was fatal to its case.

The Court of Appeal erred when it held that the absence of the complainant to testify at the trial was fatal to the case of the Prosecution in spite of cogent evidence from other witnesses called by the Prosecution.

See pages 751-753 of the ROA, Volume 3 vi. Summary of Arguments of the Parties:

Appellant’s Submissions:

[34] On the first ground of appeal, the Appellant argued that, in criminal trials, the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt by establishing the ingredients of the offences charged. On the charge of conspiracy, reliance was placed on section 23(1) of the Criminal Offences Act, 1960 (Act 29), and Faisal Mohammed Akilu v The Republic (Unreported) Criminal Appeal No. J3/8/2013 dated 5th July 2017. The Chief State Attorney argued that, in cases of conspiracy, there must be two or more persons, and that it is not always easy to prove agreement by direct evidence, as such agreement may be inferred from the conduct of, and statements made by, the accused persons.

[35] The Appellant further contends that although no direct evidence of prior agreement was led in this case, the evidence showed that the respondents and the other accused persons worked together in a coordinated manner to execute their criminal enterprise. According to the Appellant, each accused person played a distinct role towards the success of the fraud. According to Counsel, the complainant’s travel to Ghana was facilitated through a letter issued on the letterhead of Kwaglo Ghana Limited and signed by the 1st Respondent; the complainant was received at the airport by some of the accused persons; and A7 and A3 escorted the complainant to HFC Bank to inspect the purported gold. Further, A7 opened the relevant bank account using documents belonging to Bar Purity Ghana Limited. On the totality of the evidence, the Republic argued that the accused persons were acting in concert.

[36] On the charge of defrauding by false pretence, the Appellant relied on Sections 131, 132 and 133 of Act 29, together with Daniel Kwesi Abodakpi v The Republic Criminal Appeal No. G2/6/02 dated 20th June 2008 (Unreported) and Kuma v The Republic [1970] CC 113, and submitted that all the essential ingredients of the offence had been established by the evidence. The Republic maintained that the various companies involved were merely vehicles used to perpetrate the fraud. Counsel submitted that though the 2nd Respondent was not formally a director or shareholder of Bar Purity Ghana Limited, he was a co-signatory to its Ecobank account, thereby demonstrating his working relationship with the 1st Respondent and A7.

[37] The Appellant further argued that the Respondents used the various companies to create the false impression that they were separate entities. In relation to Ocean Link Ghana Limited, the Appellant pointed out that A7, who posed as Frank Yeboah and escorted the complainant to the HFC Bank vault, was in fact Kwame Hogle, a co-director of Bar Purity Ghana Limited. The safe deposit account was opened using Bar Purity documentation, and both Ocean Link and Bar Purity shared the same United Bank of Africa account used in the gold sale agreement.

[38] With respect to Bar Purity Ghana Limited, the Appellant stated that it was presented as the shipper of the gold, with the 1st Respondent acting as Managing Director, the 2nd Respondent as Chief Executive Officer, and both the 1st Respondent and A7 serving as directors and equal shareholders. The Ecobank account into which the complainant paid US$216,000 belonged to Bar Purity Ghana Limited.

[39] Regarding Standard Express Security Ghana Limited, the Appellant argued that the complainant paid US$23,920 as storage charges and that the receipt was signed by A7 under the false identity of Frank Yeboah. According to Counsel, evidence from the Registrar-General’s Department showed that no such company existed, although there was a registered company known as Standard Express Ghana in which the 1st Respondent was both director and shareholder. As for Kwaglo Ghana Limited, the Appellant noted that both Respondents were registered directors, with the 2nd Respondent also being a shareholder.

[40] Based on the foregoing, the Appellant submitted that the Court of Appeal erred in characterising the transaction as merely contractual, arguing that the purported contract was vitiated by fraud. Consequently, the offence of defrauding by false pretence had, in its view, been fully established.

[41] On the charge of money laundering, the Appellant relied on Section 1(1) of the Anti-Money Laundering Act, 2008 (Act 749), and argued that the proceeds obtained through the offence of defrauding by false pretence constituted proceeds of unlawful activity. Counsel maintained that the trial court properly found that the prosecution had discharged its burden of proof on this count, and accordingly urged that the decision of the Court of Appeal be reversed.

[42] On ground two of the grounds of appeal, the Appellant challenged the Court of Appeal’s conclusion that DW1, Chief Inspector Adaba, was a material witness whose absence from the prosecution’s case was fatal to the conviction. According to the learned State Attorney, Section 60 of the Evidence Act requires that a witness may only testify on matters within his personal knowledge, and the circumstances surrounding DW1’s involvement showed that he neither conducted meaningful investigations nor approached the matter impartially.

[43] The Appellant argued that DW1 had effectively aligned himself with the Respondents. In support of this position, it referred to DW1’s testimony, particularly at pages 291–312 of Volume 1 of the Record of Appeal, where he admitted that the complainant never reported the matter at Police Headquarters and that he informed PW1 and the complainant that the dispute was civil in nature. The Republic maintained that by characterising the matter as civil and discouraging the pursuit of criminal proceedings, DW1 failed to undertake any independent investigative steps capable of assisting the prosecution’s case.

[44] Counsel submitted, relying on the authority of Tetteh v. The Republic [2001–2002] SCGLR 854, that although the prosecution generally retains the discretion to determine which witnesses to call, that discretion must be exercised in a manner consistent with fairness and the broader interests of justice. Counsel also cited Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 for the principle that, in criminal trials involving serious offences, the determination of a case depends not on the number of witnesses called, but on the quality and probative value of the evidence adduced.

[45] Relying on the above decisional law, the Appellant contends that the prosecution had valid and justifiable reasons for not calling DW1 as a witness. According to the Appellant, DW1 merely took statements without conducting any substantive investigations and had prematurely concluded that the matter was civil in nature. The Republic therefore argued that DW1 was not a witness upon whom the prosecution could reasonably be expected to rely, and described the Court of Appeal’s characterization of him as a material witness as wholly incomprehensible and unjustified.

[46] On Ground 3, the Appellant contends that the Court of Appeal erred in its judgment when it stated that the Prosecution relied on the statements of the complainant to prosecute the Respondents even though the Respondents did not have the opportunity to cross-examine him. The Appellant submits that the evidence on record does not show that the Prosecution relied on the statements of the complainant. According to Counsel, the first Prosecution witness testified about his personal involvement in the matter when he was contacted by the complainant to assist in reviewing a contract for the sale of gold, which was written in English, since the complainant did not speak English at all.

[47] The Appellant further points out that it was rather counsel for the 2nd Respondent who introduced the complainant’s statement into evidence through PW2, tendered as Exhibit 1 for A2 at page 114 of the ROA, Volume 1. Counsel further contends that nowhere in the judgment of the trial court, appearing at pages 313–344 of Volume 2 of the ROA, did the court consider Exhibit 1 for A2 as part of the reasons for its decision. According to Counsel, there being no such record available, the Court of Appeal erred in arriving at its decision. Based on all of the above, the Chief State Attorney, Stella Ohene Appiah, submits that the Court of Appeal decision be set aside and the decision of the High Court be affirmed.

The Respondents’ Submissions

[48] The Respondents, through Counsel Mr. Kwame Boafo Akuffo, in their Statement of Case filed on 9 December 2025 with leave of the Court, first addressed Ground 1 of the appeal by contending that the prosecution before the High Court was conducted on facts materially inconsistent with the contents of the Complainant’s statement to the Police. According to the Respondents, the findings of the Trial Judge were founded on a misunderstanding and misapprehension of the evidence on record. They argue that the Trial Judge’s conclusion that the Complainant never received gold was directly contradicted by the Complainant’s own statement to the Police. Similarly, they maintain that the finding that the 3rd Accused (A3) did not receive money was inconsistent with the evidence of both the Complainant and PW2, each of whom testified that A3 collected the sum of Twenty Thousand United States Dollars (US$20,000.00) from the Complainant.

[49] The Respondents further submit that there was no evidence to demonstrate that the Complainant was even aware of the criminal proceedings instituted against them in the High Court. They note that the Complainant neither attended the trial nor testified by video link or through any alternative mode of giving evidence. They also contend that nowhere in the Complainant’s statement to the Police did he accuse the Respondents of criminal conduct, yet criminal proceedings were nevertheless commenced and pursued against them.

[50] According to the Respondents, the Prosecution deliberately avoided relying on the Complainant’s statement because its contents would have undermined the prosecution’s theory of the case and exposed what they describe as a false narrative. They point out that it was rather the 2nd Respondent who caused the Complainant’s statement to be tendered in evidence after obtaining it through a subpoena directed at the first investigator, ASP Adaba.

[51] The Respondents additionally argue that the Judgment of the High Court made virtually no substantive reference to the 2nd Accused (A2) until pages 339–340, where the Trial Judge referred to what Counsel described as “less than transparent circumstances” in support of a conviction. Counsel submits that at this stage of the Judgment, the Trial Judge concluded that A1 and A2 were guilty of conspiracy to defraud the Complainant, notwithstanding the absence of any complaint by the Complainant alleging conspiracy or fraud against the Respondents. They therefore contend that there was no evidential basis on the Record to justify such a conclusion and that the Court of Appeal was correct in holding that the Respondents had made no false representations to the Complainant.

[52] With specific regard to the conviction of the 2nd Respondent, Counsel for the Respondents submits that the Trial Judge relied on a weak and speculative basis for the conviction. Counsel refers to the portion of the Judgment where the Trial Judge observed that although the company registration documents did not list A2 as a director or shareholder, his own testimony revealed that he acted as the Chief Executive Officer and the directing mind of the company and was “seeking to be the undetected beneficiary of the funds accruing from the transaction.” The Respondents argue that this conclusion was unsupported by the evidence on record and amounted to mere speculation, rendering the conviction unsustainable.

[53] Finally, on Ground 1, Counsel for the Respondents contends that the Trial Judge failed to comprehensively set out the factual circumstances capable of grounding a conviction for conspiracy to defraud. In the view of Counsel, the mere payment of money into the Bar Purity account did not constitute a criminal offence, particularly as no substantial argument was advanced during the trial to establish any criminality arising from those transactions. Consequently, the Respondents maintain that there was insufficient evidence on the Record to sustain the conviction for conspiracy to defraud.

[54] On Ground 2 of the appeal, Counsel for the Respondents argued that the Prosecution failed to call DW1 as a witness, despite the fact that he conducted all the Police investigations and took all the relevant statements in the matter. Counsel contended that no document on the Record was prepared under the supervision of PW2 and that the Prosecution deliberately avoided calling DW1 because his evidence would not have supported their case.

[55] Counsel further submitted that the documentary evidence relied upon by DW2, particularly the Complainant’s statement, was crucial, thereby justifying the Court of Appeal’s finding that DW1 was a material witness whom the Prosecution ought to have called. The Respondents maintained that PW2 did not participate in the investigations that produced the statements concerning them, while DW1, who was available and material to the case, was not called by the Prosecution. Consequently, the Respondents had to subpoena DW1 to testify, failing which the Complainant’s statement might not have been admitted into evidence.

[56] On Ground 3 of the grounds of appeal, the Respondents contend that the Trial Court was never informed that the Complainant would be absent from the trial proceedings. They argue that the Complainant’s statement was not tendered during the Prosecution’s case and emphasize that the Complainant’s presence at trial was indispensable, given that the case itself originated from the statement made by the Complainant. Counsel questioned who else could properly be regarded as a material witness if not the Complainant. On that basis, the Respondents submitted that the failure of the Prosecution to call the Complainant to testify constituted a fatal defect in the Prosecution’s case and that, for that reason alone, the appeal ought to fail.

[57] The Respondents further argue that, instead of calling the Complainant, the Prosecution relied on the testimonies of PW1 and PW2. Counsel maintains that the evidence of PW1 amounted to inadmissible hearsay. In support of this contention, the Respondents argue that PW1’s evidence did not satisfy the requirements of Section 118 of the Evidence Act, NRCD 323. Reliance was placed on the decision of this Court in Opanin Osei Akwasi (Substituted By Badu Dankwah Alias James Danquah) v. Kwadwo Dwemoh Civil Appeal No. J4/37/2022, where the Court, per Kulendi JSC, addressed the principles governing the admissibility of hearsay evidence.

[58] Counsel further submits that the Prosecution failed to disclose to the Trial Court that PW1 was being called specifically to give hearsay evidence and, in addition, failed to comply with the statutory notification requirements under the Evidence Act. The Respondents argue that no evidence was adduced to establish that the Complainant was unavailable to testify. Although PW2 admitted during cross-examination that the Complainant’s absence was allegedly due to illness, PW2 was unable to produce any evidence to substantiate that claim. Consequently, Counsel submits that PW1’s evidence was legally inadmissible and ought to have been rejected by the Trial Court. According to the Respondents, the admission of that evidence occasioned a grave miscarriage of justice. Counsel further contends that the Prosecution lacked credibility and that, accordingly, the Court of Appeal was right in setting aside the judgment of the High Court. He therefore prays this Honourable Court to dismiss the appeal. vii. The Law, my Opinion and Analysis:

[59] My Lords, Ground (1) represents, in criminal jurisprudence, the equivalent of the omnibus ground of appeal in civil proceedings, namely that “the judgment/ruling is against the weight of evidence on record.” It is well settled that where an appellant in a criminal appeal contends that the judgment is not supported by the evidence on record, he is, in substance, inviting the appellate court to undertake a full and dispassionate re-evaluation of the entire record for the purpose of determining whether, as a matter of law and on the evidence adduced, the conviction is properly supportable.

[60] Flowing from such a ground of appeal, it becomes incumbent upon the appellate court to examine the entirety of the record so as to satisfy itself that, having regard to the totality of the testimonial and documentary evidence, the prosecution discharged the burden of proving its case beyond reasonable doubt, or, as in the present case, that there exists sufficient evidential basis to sustain the conclusions reached by the first appellate court and that such conclusions are reasonable and anchored on the evidence.

[61] In effect, a criminal appeal, much like its civil counterpart, proceeds by way of rehearing. See Dexter Johnson v. The Republic [2011] SCGLR 601. It is further trite that once this ground is invoked, the burden lies on the appellant to demonstrate to this Honourable Court that the judgment under appeal is, in the circumstances, unreasonable, having regard to the evidence on record.

[62] My Lords, the first ground of appeal therefore calls for a thorough and scrupulous scrutiny of the decision of the court below by this Appellate Court. In Kingsley Amankwa (aka Spider) v. The Republic, Criminal Appeal No. J3/04/19, dated 21st July 2021, this Court, referring to the oft-cited decision in Tuakwa v. Bosom [2001–2002] SCGLR 61, restated the principle of rehearing in criminal appeals in the following terms:

“Applying the above stated principle in a criminal appeal might result in the court embarking upon the following: to analyse the entire record of appeal and this must include the charge sheet, the bill of indictment where applicable, the witness statements of all witnesses, all documents and exhibits tendered and relied on at the trial, as well as the evidence under examination-in-chief and cross-examination, to satisfy itself that the Prosecution has succeeded in establishing the essential ingredients of the offences charged against the appellant beyond reasonable doubt, and that the entire proceedings conformed to the established procedures under the Criminal and Other Offences (Procedure) Act, and that the applicable rules of evidence under the Evidence Act, 1975 (NRCD 323) were duly complied with, including the Practice Directions issued following the decision of this Court in Republic v. Baffoe-Bonnie & 4 Others [2017–2020] 1 SCGLR 327…”.

[63] My Lords, flowing from the settled jurisprudence outlined above, this Court is enjoined to undertake a careful and comprehensive re-examination of the entire record in order to determine whether the decision of the Court of Appeal ought to be affirmed or set aside. In criminal appeals, the appellate court is under a duty to consider whether, on the totality of the admissible evidence adduced in support of the charge, the prosecution has discharged the burden of proving the guilt of the accused beyond reasonable doubt. Where it is shown that there has been a material error in the admission or exclusion of evidence, or that irrelevant considerations were taken into account, such that the high standard of proof beyond reasonable doubt has not been met, the appellate court is bound to intervene.

[64] This position is reinforced by section 31(2) of the Courts Act, 1993 (Act 459), which provides that the appellate court shall dismiss an appeal where it is satisfied that no substantial miscarriage of justice has in fact occurred, or where the ground of appeal is merely technical or relates to procedural irregularity or a defect in the charge or indictment, provided that there remains evidence sufficient to sustain the offence charged in the statement of offence or any other offence upon which the accused could lawfully have been convicted on the same charge or indictment.

[65] It is a settled principle of criminal law that the prosecution bears the burden of proving the accused’s guilt beyond reasonable doubt, as stipulated in sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323). The accused is under no obligation to prove his innocence and may remain silent, though where a prima facie case is established, he may merely raise a reasonable doubt as to his guilt under section 11(3) of the Act.

[66] While the standard of “proof beyond reasonable doubt” is well established, it is difficult to define precisely. It is not suspicion, conjecture, or mere probability, nor is it satisfied by showing that the prosecution’s case is more likely than not. Rather, it is a standard far higher than proof on a balance of probabilities. However, it does not require proof beyond all possible doubt; it is not proof beyond a shadow of doubt or beyond every conceivable or remote uncertainty.

[67] A conviction must be based on a level of certainty that satisfies the standard of proof beyond reasonable doubt. This reflects the fundamental principle that the burden rests entirely on the prosecution to prove the accused’s guilt, as affirmed in Woolmington v DPP [1935] AC 462, which established the “golden thread” running through criminal law in the common law tradition that an accused is presumed innocent unless and until guilt is proven by the prosecution, subject only to limited exceptions such as insanity or statutory defences.

[68] The Woolmington principle, consistently applied in Ghanaian law, means that an accused cannot be convicted where the evidence merely suggests that guilt is “possible” or “likely.” If there exists any reasonable possibility of innocence, the prosecution has failed to discharge its burden. However, the benefit of doubt only arises where the doubt is real, rational, and grounded in the evidence before the court — not speculative or fanciful. It must be the kind of doubt that would cause a reasonable and impartial person, properly considering the totality of the evidence, to hesitate and conclude that the accused may not be responsible.

[69] My Lords, in my respectful opinion, when the law speaks of reasonable doubt, it does not refer to a fanciful doubt. To paraphrase the Supreme Court of Canada in R. v. Villaroman [2016] 1 SCR 1000, 2016 SCC 33 (CanLII) at p. 1023, “A reasonable doubt is a doubt based on reason and common sense; it is not imaginary or frivolous; it does not require proof to an absolute certainty; and it is logically connected to the evidence or the absence of evidence” (see also R. v. Lifchus [1997] 3 SCR 320, 1997 CanLII 319 (SCC)).

[70] In other words, reasonable doubt is not a doubt founded on prejudice or sympathy but a fair and honest doubt that must be distilled from the evidence or the lack of evidence. More is required than proof that the accused is probably guilty. It is a doubt that logically arises from the evidence, or from the absence of evidence, grounded in common sense and reason. The threshold does not require a fantastical suspension of disbelief.

[71] Under Ghanaian law, the proper approach is that once the prosecution has proved the essential elements of the offence and a prima facie case has been established, the court must assess the accused person’s defence in accordance with the three-stage approach set out in Lutterodt v Commissioner of Police [1963] 2 GLR 429. First, the court considers whether the accused’s explanation is acceptable; if it is, the accused must be acquitted. If the explanation is not accepted or is found to be untrue, the court must then consider whether it is nonetheless reasonably probable; if so, an acquittal must still follow. It is only where the explanation is both unacceptable and not reasonably probable that a conviction may properly be entered. See also the Canadian case of R v W (D), [1991] 1 S.C.R. 742, 1991 CanLII 93 (SCC), a seminal decision of the Supreme Court of Canada which established a mandatory jury instruction framework used to guide the trier of fact on how to properly assess and weigh an accused person’s testimony when evaluating credibility and the burden of proof.

[72] My Lords, having stated the applicable law, the appropriate approach is to consider the instant case in light of the legal principles governing the prosecution’s burden of proof, particularly in relation to the charges of conspiracy to defraud under section 23 of Act 29 and defrauding by false pretences.

[73] In Francis Yirenkyi v Republic [2017–2020] 1 SCGLR 433, this Court clarified the modern position on conspiracy. The Court held that the offence is established essentially by proof of an agreement between two or more persons to commit a substantive offence or to aid in its commission. The emphasis, under this formulation, is that the accused persons must be shown to have acted in concert pursuant to a shared purpose. Unlike the earlier approach, liability for conspiracy can no longer be inferred in the absence of proof of such prior agreement.

[74] Accordingly, for the prosecution to succeed on a charge of conspiracy, it must establish that there was a prior arrangement or understanding between the accused persons to commit the offence charged. While direct evidence of such agreement is rarely available, the courts are entitled to infer its existence from the surrounding circumstances, including the conduct of the parties and their participation in the alleged criminal enterprise. However, such inference must be carefully drawn. Importantly, mere presence at the scene of the crime, without more, does not constitute evidence of participation in a conspiracy or guilt. Presence alone cannot substitute for proof of agreement or intentional collaboration.

[75] This principle was further reinforced in Faisal Mohammed Akilu v The Republic (SC) (Unreported) Criminal Appeal No. J3/8/2013, dated 5th July 2017, where the Court reiterated that conspiracy, by its nature, is often difficult to prove by direct evidence of prior agreement. Consequently, it may be inferred from proof that the accused persons acted together in the commission of the offence. The Court held that:

“This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime.”

[76] The issue of whether a conspiracy existed in the present case should be appropriately examined alongside the charge of defrauding by false pretences. In relation to that offence, the Court of Appeal in the old case of Kuma v. The Republic [1970] C.C. 113 set out the essential ingredients as follows:

That there was a misrepresentation or personation by the accused which, in law, amounts to a false pretence;

That the accused knew the pretence to be false or had no belief in the truth of the representation made;

That by reason of the pretence, the accused obtained the consent of another person to part with, or transfer ownership of, property or something of value; and

That the accused acted with the intention to defraud.

[77] On the basis of the above elements constituting the offence, the record shows that the Prosecution sought to assemble various acts of the Respondents in order to establish that they conspired to defraud the Complainant. From the record of appeal, the circumstantial evidence relied upon by the Prosecution in proof of these elements includes:

Letter written by 1st Respondent on the Letter head of Kwaglo Ghana Limited requesting for an entry visa for the Complainant upon his arrival in Ghana. (See page 460 ROA)

Registrar-General Records showing that both 1st Respondent and 2nd Respondent are Directors and Shareholders of Kwaglo Ghana Limited. (See 408 – 409 ROA)

Letter written by Adams Kaba (A5) as Managing Director on the letterhead of Ocean Link Mining Limited. (see 459 ROA)

That Ocean link was the seller of the Gold to the complainant and in the contract for the sale of the Gold, the Bank chosen for the transaction was United Bank of Africa and Account name is Bar Purity Gh Ltd. (See 391 ROA)

Registrar-General records showing that Bar Purity has both 1st Respondent and A7 as shareholders and directors. (See 401 ROA)

That A7 was seen on CCTV footage at HFC Bank, taking the Complainant to have a look at Gold bars in a Security deposit box.

That the documentation for the security deposit box included a document of Bar Purity.

That the Gold bars in the security deposit box, when tested by PMMC, turned out not to be Gold. (See 430 ROA)

The 2nd Respondent, though not named in the Registrar-General Records as a Director, admitted under Evidence in Chief that he is the CEO of Bar Purity. (See 257 ROA)

That 2nd Respondent is a co-signatory of the Bar Purity Account with Ecobank. (See 445 -446 ROA.)

That the Complainant paid USD $216,000 into the accounts of Bar Purity to open what was called “a metal account”. A fact admitted by both the 1st and 2nd Respondent. (See 223 and 257 ROA)

[78] Other acts alleged by the prosecution to have resulted in the dissipation of funds belonging to the complainant, and which are said to bear the hallmarks of criminal conduct, and which formed part of the prosecution’s case, include:

The Complainant claims to have received back US$30,000 from 1st Respondent for the purpose of opening a security storage for the Gold.

Complainant paid $24,000 to a nonexistent company known as Standard Express Security Ltd.

The receipts from Standard Express Security indicate that money was received by A7 (See 370-371 ROA)

That a company within the records of Registrar-Generals Department with a similar name was Standard Express Ghana Limited with 1st Respondent and one Abdulimhem as Directors and Shareholders. (see 403 – 404 ROA)

The 1st Respondent took money from the metal account and bought 2 Kgs of Gold, which he passed off as part of the gold in the banks’ vault.

The 1st and 2nd Respondent demanded that a further deposit of 3 million be made before the rest of the 198 bars could be shipped.

A6 made the complainant to pay some alleged villagers $1,200 as transport fare to the mine and also an additional GHc2000 to entice them to release the gold.

1st Respondent Advised and, with the consent of complainant, paid A3, US$20,000 for the purchase of the metal boxes to carry a quantity of Gold.

[79] My Lords, the evidence set out above is circumstantial in nature. It consists of a series of surrounding facts which the prosecution urged the trial judge to rely upon in drawing the inference that the accused persons had a prior arrangement to defraud the complainant by false pretences. Circumstantial evidence consists of facts from which a trier of fact may infer, presume, or deduce the existence, non-existence, or proof of another fact. Put differently, circumstantial evidence is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics.

[80] Undeniably, in criminal adjudication, it is not always possible to establish guilt by direct or positive evidence of the physical acts or the requisite mental element of the accused. In such situations, the law permits the court to infer the existence of other essential facts necessary to establish either guilt or innocence from the facts that have been proved. However, before any inference of guilt may properly be drawn from circumstantial evidence, the court must be satisfied that there are no other co-existing circumstances which could weaken, contradict, or reasonably displace that inference.

[81] According to S.A. Brobbey, in his seminal work Essentials of the Ghana Law of Evidence (WRENCO Publications Ltd, 2014) at page 258, the principles governing the evaluation and application of circumstantial evidence in criminal cases are threefold, as developed in decisional law, namely:

Inferences that support the conclusion that the offence has been committed;

Inferences pointing to the accused, and no other person, as the perpetrator of the offence charged; and

Inferences that establish guilt as the only reasonable hypothesis, or that are inconsistent with any rational explanation consistent with the innocence of the accused.

Accordingly, in my view, when relying on circumstantial evidence, the evidence must be carefully evaluated and can only be acted upon where the circumstances point irresistibly to the guilt of the accused, leaving no other reasonable explanation. This principle is supported by the decision in Duah v The Republic [1987–88] 1 GLR 343–360.

[81] From the above pieces of evidence, a clear relationship is established between the Respondents, Ocean Link Mining Ltd, and A7. Ocean Link Mining Ltd is identified as the seller in the transaction, while A7 is alleged to be the individual who showed the Complainant the fake gold within the security deposit box.

[82] The key question that arises is whether the totality of the evidence adduced at trial proves, beyond reasonable doubt, that there was a prior agreement between the Respondents to defraud the Complainant. However, the concept of “reasonable doubt” cannot be properly assessed without due consideration of the Respondents’ case and the explanations they put forward at the trial.

[83] From the record, not all the facts alleged by the Prosecution were established by the evidence led at trial. In particular, Exhibit C1, the Gold (AU) Private Sale & Purchase Agreement between Ocean Link Mining and DLR Finance Ltd, expressly stated that Bar Purity would receive a maximum of €200,000 to handle export documentation, insurance, and freight arrangements. It may therefore reasonably be inferred that the complainant was aware, at the time of the agreement, that Bar Purity would receive those funds, equivalent to approximately US$216,000.00.

[84] The complainant further admitted in his statement to the police that Bar Purity refunded sums of US$30,000.00 and US$20,000.00 to him (see pages 491–492 ROA). Although the Prosecution contended that these monies were later dubiously taken back by the Respondents, the evidence elicited during the cross-examination of PW2 did not conclusively establish that assertion. Under cross-examination on 14 June 2017 by J. K. Yeboah (pages 92–93 ROA), PW2 denied suggestions that Lorenzo collected almost all the monies from Bar Purity’s account and maintained that only portions of the funds, including US$20,000.00 allegedly given to A3 for metal boxes, were misapplied. However, when questioned further, PW2 relied largely on suspicions and alleged documentary evidence concerning receipts issued by Standard Express Security Limited.

[85] This is a snippet of the exchange between the witness and counsel:

“Q: The money that came through the accounts of Bar Purity was 200,000 Euros.

A: Yes, my lord.

Q: And these monies were collected by Lorenzo from Bar Purity accounts, is that not it?

A: No, my lord.

Q: But you told the court that these monies were almost collected by Lorenzo but it turned to be in the coffers of the accused persons, is that not it?

A: I stated that it was 50,000 Dollars that was given to Roberto but during the process, the accused persons demanded that Roberto should pay for storage of the gold that had been brought to their custody and also, I stated that out of the 50,000, A3 took 20,000 Dollars to go and secure boxes for the transportation of the gold. After the 50,000 Roberto had to add in addition money from his own pocket to make for the balance.

Q: I am putting it to you that Roberto collected almost all the monies that were sent to Bar Purity accounts of which the accused persons are Directors.

A: It is not true.

Q: Counsel reads the evidence-in-chief of the witness dated 12th June, 2017 at page 3, you said this in your evidence-in-chief.

A: Yes, I was stating that it does not mean that Roberto collected all the monies and also I stressed that the monies that were given to Roberto were dubiously taken away from him by the justification for the purpose and that was what happened.

Q: Is it your personal opinion or you have documentary evidence to support this assertion?

A: It is evidenced that the Standard Express Security Limited receipt that was issued for the payment of money indicates by check at the Registrar General’s Department that the said company does not exist.

Q: I am saying that is it your personal opinion or you have documentary evidence to support this assertion?

A: Yes, my lord, I have documentary evidence which I submitted and additionally the money that was given to A3, which she claimed she was going to use to buy metal boxes for the shipment of the gold, was not used and there was no gold also shipped in that circumstances of the 200 kg of gold for that purpose.

[86] The exchanges also revealed uncertainty as to who actually benefitted from the monies in question. While the Prosecution attempted to connect the Respondents to the funds, the evidence suggested that A3 (a Burundian and resident in Italy, who knew the complainant before he came to Ghana) may have independently received or handled some of the monies. Similarly, other sums were allegedly paid to A7 and A6, rather than directly to the Respondents. The record further showed that monies had previously been returned to the complainant at his request, which corroborated the diary entry indicating the need for a reconciliation of accounts between the complainant and Bar Purity (see page 482 of the ROA).

[87] My Lords, based on the circumstances, it is my opinion that the Prosecution’s case on this issue amounted to no more than suspicion. As held in The State v Brobbey And Nipah [1962] 2 GLR 101-105, circumstantial evidence must lead irresistibly to the guilt of the accused and must exclude every reasonable possibility consistent with innocence. Mere suspicion, or a combination of suspicions, cannot constitute proof.

[88] On the evidence on record, it remained reasonably probable that persons other than the Respondents, particularly A3 or A6, may have handled or misappropriated the monies in question. Consequently, the Prosecution failed to prove beyond reasonable doubt that the Respondents, by false pretence and with intent to defraud, induced the complainant to part with US$216,000.00 under the false representation that gold would be supplied to him.

[89] Another material and striking inconsistency between the Prosecution’s case and the complainant’s own statement relates to the alleged 2 kilograms of gold sent to Dubai. While the complainant maintains that he indeed received the gold, the Prosecution strongly disputes this assertion. At page 491 of the Record, on the last line, the complainant is recorded as stating:

“I received the two kilogram gold in one … instead of the 2 bars I saw before the export. It was cleared and was found to be genuine after it was assayed at the agreed refinery in Dubai.”

[90] In sharp contrast, PW2, the investigator, consistently maintained that the complainant never received the gold, although he simultaneously admitted that investigations had not been concluded. During cross-examination on 31st July 2017 (see pages 116–117 of the Record of Appeal), the following exchange occurred:

“Q: Did you take any other statement from Lorenzo apart from Exhibit 1 for A2?

A: For written statement, No but the fact came out during investigation.

Q: Could you tell this court if any of the facts that you found contradicted what Roberto Maria Delorenzo had put down himself?

A: They were similar facts except that they made Roberto to believe that they were sending 2 kg of gold to Dubai at the time Roberto was in Ghana for which upon arrival of the said gold, the gold was not delivered to Roberto but rather to the Refinery they proposed in Dubai.

Q: Please read exhibit 1 for A2, the second sentence of page 3 to the court?

A: The witness reads to the hearing of the court.

Q: I put it to you that the monies were paid to DLR Financial Limited which belongs to Roberto?

A: If by this statement monies should be paid for the 2 Kilograms of gold, which was not delivered to DLR Finance Limited but rather the refinery, it caused a due diligence investigation.

Q: Do you have any statement or document to contradict Maria De Lorenzo’s statement that his company received 63,423.20 dollars and that he did not pay this money back to anyone?

A: As I stated earlier, the alleged gold was supposed to be received by Roberto who has come to buy or order for them but investigations disclosed that Roberto did not receive any gold. It was rather A3 who together with one Stephania Somariva who were in Dubai and posed as representative for DLR.

Q: I am putting it to you that you are running away from this question regarding the document which may have contradicted the statement of Roberto?

A: I may have to refer to my docket.”

Thereafter, with leave of the Court, the witness referred to his docket and stated:

“I have in my hand a document of KLM Cargo that was purported to be shipping the gold with 2 kilogram on the 18th August, 2015.”

[91] The cross-examination continued as follows:

“Q: Roberto himself says that the monies was paid to him which means it got into his account and he acknowledged and said he did not pay that money back to anyone?

A: As at the time Roberto was making that statement, he was in Ghana. He came to Ghana if my memory serves me right by investigations in July and he never travelled to anywhere so this is an organized crime and as at the time he was making the statement, they made him believe that the alleged gold which was supposed to be receiving. They did not even tell him the stage of which they were sending the gold to go and take it.

Q: I put it to you that if what you are saying was the case, you would have told Roberto to make additional payments to that effect.

A: Roberto had to travel in December to verify and that was when he realized that Stefania and A3 with the other accomplices misled him so it was the responsibility of the police to find out the fact but the time we wanted him to come and verify, he could not come because he was taken ill.”

[92] The foregoing clearly demonstrates that while the complainant maintained that he had received the gold, the investigator insisted otherwise. A careful consideration of the evidence thus far gives rise to two profoundly significant questions. First, in light of the numerous inconsistencies between the complainant’s own statement and the Prosecution’s case, why was the complainant not called to testify — a matter I shall revisit under Ground C? Secondly, the evidence strongly suggests that the investigations were, at best, incomplete and improperly conducted.

[93] Indeed, having regard to the evidence elicited under cross-examination, one is compelled to ask: why did the Prosecution proceed with the trial when such critical facts had not been conclusively verified? This concern is underscored by the admission of PW2 himself that:

“it was the responsibility of the police to find out the fact but the time we wanted him to come and verify, he could not come because he was taken ill.”

How, then, could the investigator arrive at such a firm and emphatic conclusion without any definitive confirmation from the complainant himself? This glaring deficiency in the investigation raises yet another substantial and reasonable doubt regarding the guilt of the Respondents.

[94] My Lords, the record further reveals concerns regarding the conduct of the investigations. While PW2 appeared particularly determined to prosecute the Respondents, comparatively little effort was made to pursue the other accused persons, especially A7, who was alleged to have signed receipts on behalf of a non-existent company and escorted the complainant to HFC Bank to inspect fake gold. The Court of Appeal rightly observed that PW2 had developed a close relationship with the complainant, noting evidence of “bad blood” between PW2 and the appellants and the likelihood of bias against them. At page 736 of the record, the Court of Appeal noted as follows:

“It is in evidence that PW2 became friends with the complainant and even saw him off at the airport when he was leaving. When asked, he said, ‘every potential caller is an ally.’ The cliché, ‘what is good for the goose is equally good for the gander,’ applies here. From the evidence before us, it is very clear that there was some bad blood between PW2 and the appellants, and there was a real likelihood of bias on his part against the appellants.”

[95] This bias bears directly on PW2’s credibility under section 80(2)(e) of the Evidence Act, NRCD 323, particularly given his conduct toward the complainant, his assumption of control over the investigations, and his apparent lack of diligence in pursuing the remaining suspects. Had equal effort been directed at all persons of interest, several doubts in the case might well have been resolved.

[96] In the absence of proof that the Respondents and the other accused persons acted pursuant to a prior agreement to defraud the complainant, the prosecution’s case on conspiracy necessarily fails. Mere association between the Respondents and the other persons or companies does not establish a common design, just as mere presence at the scene of a crime, without more, does not prove conspiracy.

[97] Moreover, even if the defence’s claim that the Respondents were engaged solely to ship the gold were disbelieved, that explanation remains reasonably consistent with the evidence on record and raises substantial doubt regarding their involvement in both the alleged conspiracy and the substantive offence of defrauding. Consequently, the Respondents succeeded in raising a reasonable doubt within the meaning of section 11(3) of the Evidence Act, NRCD 323.

[98] It follows that the charge of money laundering under Count Three must also fail. Under section 1(1) of the Anti-Money Laundering Act, 2008 (Act 749), money laundering depends on the existence of proceeds derived from unlawful activity. Since the prosecution failed to establish the predicate offence of defrauding by false pretence beyond reasonable doubt, there can be no proceeds of unlawful activity capable of sustaining a conviction for money laundering. Accordingly, once the principal offence collapses, the derivative offence of money laundering necessarily collapses with it.

[99] By the second ground of appeal, the Appellant contests the decision of the Court of Appeal that the failure of the Prosecution to call Chief Inspector Adaba (DW1), the original investigator in the matter, was fatal to the Prosecution’s case. The Court of Appeal held that DW1 was a crucial witness because he was the officer who first received the complaint, interrogated the parties while the matter was still fresh, and took statements from both the complainant and the accused persons, including the investigation, caution, and charged statements. In the Court’s view, the Prosecution was under a duty to call him and, if it believed his testimony might undermine its case, the proper course would have been to treat him as a hostile witness rather than omit him entirely. The Court of Appeal therefore concluded that the trial judge erred in failing to insist on his testimony, notwithstanding the general principle that the Prosecution ordinarily retains discretion as to which witnesses to call.

[100] My Lords, the legal principles governing the calling of witnesses by the Prosecution are well settled. The Prosecution generally retains the discretion to determine which witnesses it will call in support of its case. That discretion, however, must be exercised fairly, in a manner consistent with the interests of justice and without occasioning prejudice to the accused person. A witness is regarded as material where the anticipated evidence is capable of resolving a decisive issue in controversy or is likely to have a substantial bearing on the determination of the case. Accordingly, although the law recognises the importance of calling material witnesses, the question whether a witness is material ultimately depends on the significance and probative value of the evidence expected to be elicited from that witness.

[101] In this matter, DW1 clearly occupied an important position in the investigation. As the officer who initially received the complaint and recorded the statements of all parties, he was uniquely placed to explain how the investigation began, the circumstances under which the complainant’s statement was obtained, the nature of the allegations at their inception, and the basis upon which the matter was initially considered civil in character. These issues were not peripheral; they related directly to the foundation and evolution of the Prosecution’s case.

[102] Notwithstanding the importance of such evidence, the law has never imposed an absolute obligation on the Prosecution to call every material witness connected to a case. Authorities such as Agyeman and Another v The State [1964] GLR 681, Amlalo v The Republic [1979] GLR 162, and Boakye v The Republic [1999-2000] 1 GLR 740 establish that where the Prosecution reasonably considers that a witness may be untruthful, unreliable, hostile to its case, or otherwise untrustworthy, it is not compelled to call that witness. The discretion to decide which witnesses to present therefore, remains with the Prosecution, provided that the discretion is exercised properly and in good faith.

[103] What the Constitution requires, particularly under Article 19(2)(e) and (g) of the 1992 Constitution, is not compulsory presentation of every material witness, but full disclosure of all evidence and witnesses materially connected to the case. These constitutional guarantees ensure that an accused person has adequate facilities to prepare a defence and the opportunity to challenge the evidence against him. Those safeguards would be rendered ineffective if the Prosecution were permitted to conceal witnesses or evidence relevant to the defence.

[104] The obligation of disclosure has been authoritatively affirmed in decisions such as Republic v Baffoe-Bonnie and Others Suit No. J1/06/2018 dated 6th June 2018, which led to the Practice Direction on Disclosures and Case Management in Criminal Proceedings of 2018, and more recently in Republic v The High Court (General Jurisdiction 10), Accra; Ex Parte Kwabena Adu Boahene and Angela Adjei Boateng -Civil Motion No. J5/5/2026 dated 20th October 2025. These authorities collectively establish a structured regime of prosecutorial disclosure within Ghanaian criminal procedure.

[105] From the proceedings of 22nd February 2019, it is evident that the prosecution neither regarded DW1 as a material witness necessary to prove its case nor considered him a credible and diligent witness. The prosecution consistently maintained that DW1’s position conflicted with its case. This was apparent during the cross-examination of DW1 at page 311 of the ROA, where the prosecution suggested that he was biased in favour of A1 and A2, had “been running errands” for them, had received benefits from them, and that his testimony was “full of inaccuracies and untruth.” DW1 denied these allegations throughout.

[106] It is evident that, from the Prosecution’s standpoint, DW1 was not a witness upon whose testimony it intended to rely in establishing its case, the Prosecution having clearly formed the view that DW1 was not a credible witness. Equally, the Prosecution did not regard DW1 as a truthful witness and strongly maintained that his position was inconsistent with that of the Prosecution. In the circumstances, the Court of Appeal could not properly impose upon the Prosecution a mandatory obligation to call such a witness.

[107] In my considered opinion, although the Court of Appeal was correct in recognising the significance of DW1 as a witness, it proceeded too far in holding that his absence, without more, was fatal to the Prosecution’s case. It is important to emphasise that the obligation imposed by law is one of disclosure and not one of compulsory production of a witness. With the greatest respect to their Lordships of the Court of Appeal, these two concepts must be carefully and distinctly differentiated.

[108] I am of the respectful opinion that the first appellate court could have determined whether the Prosecution proved its case beyond reasonable doubt so as to sustain the conviction at the trial court on the basis of the evidence presented, without treating the failure to call DW1 as fatal to its case. In effect, it ought to have recognized the discretionary right of the prosecution to call its preferred witnesses. While the failure to call a material witness may, in some cases, prove fatal, it does not automatically vitiate a conviction where the remaining evidence independently establishes the prosecution’s case. To this extent, the Court of Appeal erred, and that aspect of the judgment is reversible.

[109] My Lords, the last ground of appeal concerns the absence of the complainant at trial and the reliance on the testimony of PW1. The Appellant contends that the Court of Appeal erred in holding that the Respondents were disadvantaged by not having the opportunity to cross-examine the complainant. The Appellant submits that it did not rely on the complainant’s statement, but rather on the testimony of PW1, Mario Carmine Pugliese. The Respondents, however, contend that Mr. Pugliese’s testimony was hearsay, and ought not to have been admitted by the court, and should not have been relied upon.

[110] Under Section 60(1) of the Evidence Act, NRCD 323, a witness is ordinarily required to testify only on matters within his personal knowledge. Evidence becomes hearsay where a statement made outside the courtroom is tendered to establish the truth of the contents of that statement. In Ghana, Section 116(d) of the Evidence Act defines hearsay evidence as “evidence of a statement other than a statement made by a witness while testifying in the action at the trial offered to prove the truth of the matter stated.” The effect of the rule against hearsay is therefore to prohibit the admission of statements made outside court where such statements are relied upon to prove the truth of their contents. However, the rule does not exclude evidence merely tendered to establish that a statement was made, irrespective of whether the contents are true. This reflects the common law position that a statement made by a person not giving oral testimony in the proceedings is generally inadmissible as evidence of the facts asserted therein.

[111] From the evidence on record, PW1 did not personally witness any of the transactions between the complainant and the Respondents. His involvement only began after the complainant lodged a complaint at the Police Headquarters. Consequently, all portions of PW1’s testimony relating to matters communicated to him by the complainant, and which were tendered for the court to accept as true, constituted hearsay evidence.

[112] Notwithstanding the general inadmissibility of hearsay evidence, the Evidence Act recognizes certain exceptions. One such exception is contained in Section 118 of the Evidence Act, which deals with first-hand hearsay. Section 118 provides in part as follows:

“118. First-hand hearsay

(1) For the purposes of section 117, evidence of a hearsay statement is admissible if

(a) the statement made by the declarant would be admissible had it been made while testifying in the action and would not itself be hearsay evidence, and

(b) the declarant is

(i) unavailable as a witness, or

(ii) a witness or will be a witness, subject to cross-examination concerning the hearsay statement, or

(iii) available as a witness and the party offering the evidence has given reasonable notice to the Court and to every other party of the intention to offer the hearsay statement at the trial and that notice gave sufficient particulars (including the contents of the statement to whom it was made and if known when and where) to afford a reasonable opportunity to estimate the value of the statement in the action.”

This provision was comprehensively explained by Kulendi JSC in the case of Opanin Osei Akwasi (Substituted By Badu Dankwah Alias James Danquah) v. Kwadwo Dwemoh [2023] Civil Appeal No. J4/37/2022.

[113] The central issue arising in the present matter was whether Mr. Pugliese, PW1’s testimony fell within this statutory exception to the hearsay rule. For PW1’s evidence to qualify as admissible under the exception created by Section 118, the prosecution bore the burden of establishing that the complainant was unavailable as a witness. The meaning of “unavailable as a witness” is provided under Section 116(e) of the Evidence Act, which states:

“(e) unavailable as a witness means that the declarant is

(i) exempted or precluded on the ground of privilege from testifying concerning the matter to which the statement of the witness is relevant; or

(ii) disqualified as a witness from testifying to the matter; or

(iii) dead or unable to attend or to testify at the trial because of a then existing physical or mental condition; or

(iv) absent from the trial, and the Court is unable to compel the attendance of the declarant by its process; or

(v) absent from the trial and the proponent of the statement of the declarant has exercised reasonable diligence but has been unable to procure the attendance of the declarant by the court’s process; or

(vi) in a position that the declarant cannot reasonably be expected in the circumstances (including the lapse of time since the statement was made) to have a recollection of matters relevant to determining the accuracy of the statement in question”

[114] My Lords, the trial High Court relied on Section 116(e)(iii) in concluding that the complainant was unavailable because of illness. However, there was no medical evidence before the court demonstrating that the complainant was in fact ill or incapable of attending court to testify. This deficiency became evident during the cross-examination of PW2 on 12th October 2017, as captured at page 137 of the Record of Appeal:

“Q: Where is Roberto now?

A: Roberto is currently in Italy.

Q: And why is Roberto not coming to testify before this court in this matter

A: He was taken ill.

Q: Have you provided this court with evidence of his ill health?

A: We have made the court aware that he has taken ill.

Q: Have you provided this court with evidence of his ill health?

A: No, my lord but he made a witness in this case Mario (PW1) to represent him.”

[115] My Lords, the evidence above demonstrates that the prosecution merely asserted that the complainant was ill without adducing any documentary or medical evidence to substantiate the claim. To my mind, to invoke the exception under Section 118(1) (a) and (b) (i), the party seeking to rely on hearsay evidence must lead positive and credible evidence proving the declarant’s unavailability. A mere assertion from the witness box that a declarant is unavailable does not satisfy the statutory threshold. The prosecution was therefore required to produce medical records or similar evidence establishing that the complainant was genuinely incapable of testifying.

[116] Furthermore, in light of modern technological advancements, alternatives such as video conferencing ought to have been explored to facilitate the complainant’s testimony, especially where his evidence was material to the issues before the court. The complainant’s absence significantly prejudiced the Respondents because, although the prosecution relied heavily on the testimonies of PW1 and PW2, several doubts arising from the evidence could only have been clarified by the complainant himself. This was particularly important in areas where the complainant’s own statement conflicted with aspects of the evidence advanced by the prosecution witnesses.

[117] Based on the foregoing, I am of the respectful opinion that, insofar as Mr. Pugliese (PW1) testified on matters outside his personal knowledge and presented them to the Court as the truth, such evidence constituted hearsay and was therefore inadmissible. This conclusion follows from the prosecution’s failure to establish with cogent evidence, within the meaning of the Evidence Act, that the complainant was unavailable to testify as a witness. viii. Observations from the Record:

[118] My Lords, before concluding this opinion, I find it appropriate to make certain observations arising from my review of the three volumes of the Record of Appeal. I do so mindful of the fact that this Court, as the final court of the land, is vested with the authority to pronounce on matters relating to legal practice in this country, and in particular, the ethics governing the practice of law.

[119] As stated elsewhere in this opinion, the Court of Appeal found as a fact that PW2, Detective Chief Inspector George Kingsley Adu, was biased against the Respondents. This is a finding which, on a proper reading of the record, appears to have been inferred from the evidence. At page 88 of Volume 1 of the Record of Appeal, during the cross-examination of the Detective Inspector, it emerged that the 1st Respondent herein had lodged a complaint against him at the Police Intelligence and Professional Standards (PIPS) Unit on account of what the 1st Respondent perceived to be a targeted investigation against him. It was further revealed that the 1st Respondent had instituted a civil action against the officer.

[120] Notwithstanding these developments, it was this same officer who was assigned to take over the investigation from another officer who was accused of being an ally of the accused persons. As the record discloses, his investigative focus appeared to be directed principally against the Respondents herein, even though, on the evidence as recorded and established in this opinion, the investigation arguably ought to have been directed more substantially at the other accused persons than at these two.

[121] When the above is juxtaposed with the manner in which the Prosecution assessed DW1, Chief Inspector Adaba, the first investigator, it becomes apparent that DW1 was regarded by the Prosecution as a friend of the Respondents. However, the record indicates that this conclusion was founded on certain decisions taken by him in the exercise of his professional judgment, and nothing more as was explored during his cross-examination at trial. At page 311 of the Record, Volume 2, ROA the following transpired during the cross-examination of DW1 by the Prosecution:

“Q: Because A1 and A2 are your friends, you could not investigate this case the way an investigator should do his work.

A: I have stated that they are not my friends and I did it to the best of my knowledge.

Q: You as an investigator, you were running errands for A1 and A2?

A: It is not true.

Q: And you were getting benefits for the errands you were running for them?

A: It is not true.

Q: You have come to this court to testify because you felt peeved for being removed from the case.

A: I was served with a subpoena to be in this court so I am following the Court’s order.

Q: Your testimony before this court today is full of inaccuracies and untruth because you want to justify yourself for your inaction as an investigator.

A: I do not agree….

End of cross-examination.”

[122] It appears that the same standard was not applied in evaluating the conduct of Detective Inspector Adu. This is because the Detective Inspector was not only close to the complainant, but also told the court that he was the one who saw him off at the airport when he left Ghana and, from the record, did not return to attend the trial. This answer was given when it was suggested to him that the complainant did not appear before him throughout the investigation. He answered that, “Roberto had been around and he had appeared before me ever since he came to Ghana. He did not even leave until late December, when I even saw him off at the airport.” See page 89 Volume 1 ROA. So, was the Detective Inspector also an “errand boy” of the complainant?

[123] Despite the above admission and the court’s finding that the Detective Inspector was biased against the Respondents, the record shows that the Prosecution appeared to regard Detective Inspector Adu as an ally in the proceedings rather than as an independent investigator acting on behalf of the State. In so doing, the Prosecution appeared to align itself with the police, thereby compromising its prosecutorial independence and failing to maintain the posture of an objective minister of justice. This approach overlooks the long-settled principle that the Prosecution is a minister of justice that neither wins nor loses a case.

[124] The duty of the Prosecution, as I understand it, has always been to uphold the administration of justice and to ensure that persons who have contravened the laws of Ghana are duly punished in accordance with due process. However, this duty is not an end in itself. It is circumscribed by the overriding obligation to act fairly, to pursue the truth rather than a conviction, and to place before the Court all material evidence, whether such evidence strengthens or undermines the Prosecution’s case.

[125] These principles are not merely judge-made rules; they have received express statutory recognition. The Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423) codify what may properly be described as the ethical framework governing prosecutorial conduct. Rule 56(1) of L.I. 2423 requires a prosecutor to assist the Court in arriving at the truth and to place the entirety of the relevant evidence before it in an intelligible manner.

[126] The above position was articulated by the Supreme Court of Canada in Boucher v. The Queen, [1955] SCR 16 at pp. 23–24 many years ago as follows:

“It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

This statement of the law was reiterated by Adinyira JSC in the seminal case of Republic v Baffoe-Bonnie and Others (supra).

[127] My Lords, in my respectful opinion, in a criminal prosecution, the police, as investigators, must remain independent of the prosecutor, who represents the State. This is because the prosecutor must not align himself or herself with the police but must independently assess the investigation conducted by them. As was again stated by the Supreme Court of Canada in Ontario A.G. v. Clark [2021] 1 S.C.R. 607 at paragraph 41: “One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police.”

[128] The Court further observed that “Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded” (Ontario A.G. v. Clark, supra, at paragraph 43). The Court also emphasized the potential harm that may arise where this separation is not strictly observed, noting that the “need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail” (Ontario A.G. v. Clark, supra, at paragraph 42).

[129] As recently stated by Madam Justice Katherine L. McLeod, a Canadian judge of the Ontario Court of Justice:

“The principle of the Rule of Law is about much more than punishing people who have been proven to have committed offences. It is an overarching principle about the conduct of all peoples and the state institutions which work within the government. If those state institutions do not follow the rules and then cover up that lack of adherence when called to account how can we in the justice system just stand by and respond with a ‘Yes but these are bad people’? We cannot, if we did ‘The Rule of Law’ would be nothing more than four meaningless words.” See R. v. Mohamed, 2026 ONCJ 253 (CanLII).

[130] In sum, in my view, it must be understood that the prosecutor is not an advocate for conviction but a minister of justice whose role is to seek the truth and assist the Court in the administration of justice. This duty must always be borne in mind. ix. Conclusion and Disposition:

[131] For the foregoing reasons, I am of the considered view that the Court of Appeal was correct in setting aside the conviction and sentence of the 1st and 2nd Respondents, notwithstanding the different conclusion I have reached in respect of Ground B of the appeal.

[132] In respect of Ground A, the evidence on the Record of Appeal falls short of establishing the guilt of the Respondents beyond reasonable doubt. The circumstantial evidence relied upon by the Prosecution, though arouses suspicion, does not exclude the reasonable possibility that the principal perpetrators of the alleged fraud were the accused persons who remain at large, namely A3, A4, A5, A6 and A7. The mere association of the Respondents with these individuals and the companies in question is insufficient, in law, to establish any prior agreement to commit an offence.

[133] Furthermore, the material contradictions between the Complainant’s own statement and the Prosecution’s case, coupled with the inadequacy of the investigation and the apparent bias exhibited by PW2, collectively generate reasonable doubt which cannot be lightly disregarded.

[134] As regards Ground B, the Court of Appeal fell into error in holding that the Prosecution’s failure to call DW1 was, of itself, fatal to its case. The law vests in the Prosecution a discretion, to be exercised judicially, in determining which witnesses to call, and it is not under a duty to call a witness whose credibility is reasonably in doubt. However, this misdirection does not ultimately affect the outcome of the appeal.

[135] With respect to Ground C, the Court of Appeal was right in treating the absence of the Complainant as a material evidential deficiency. The Prosecution failed to satisfactorily demonstrate the Complainant’s unavailability within the meaning of the Evidence Act, and consequently, the hearsay evidence of PW1 was inadmissible insofar as it was tendered to prove the truth of the Complainant’s assertions.

[136] Ultimately, although the Court of Appeal erred in its reasoning on Ground B, that error does not occasion a substantial miscarriage of justice within the meaning of section 31 of the Courts Act, 1993 (Act 459). This is because, on a proper and holistic evaluation of the record, the evidence is insufficient to sustain the conviction beyond reasonable doubt. Accordingly, the appeal by the Republic/Appellant is dismissed.

(SGD.) K. T. ACKAAH-BOAFO

(JUSTICE OF THE SUPREME COURT)

(SGD.) P. BAFFOE-BONNIE

(CHIEF JUSTICE)

(SGD.) E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. AMALEBOBA

(JUSTICE OF THE SUPREME COURT)

COUNSEL

STELLA OHENE APPIAH (CHIEF STATE ATTORNEY) FOR THE RESPONDENT/

APPELLANT

KWAME BOAFO AKUFFO ESQ. FOR THE APPELLANTS/RESPONDENTS WITH ADIVITI PLUNGE ESQ.