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IN THE COURT OF APPEAL, GHANA
(CRIMINAL DIVISION), ACCRA
SUIT NO. ACR 4/2007
A.D. 24/07/2008
CORAM: PIESARE, J.A. (Presiding)
YAW APPAU, J.A.
ADDO, J.A.
THE REPUBLIC
Versus
KWABENA AMANING @ TAGOR & Another
YAW APPAU, J.A.
Though I did not have the opportunity to read beforehand the elaborate and well
elucidated lead judgment of my learned senior colleague Piesare, J.A., I agree with
him in all respects that the appeal before us has all the merits in the world for
which the convictions and sentences of the appellants must be quashed without
any hesitation whatsoever. I also appreciate the wisdom he exhibited in the said
judgment. I do not wish to add anything substantial to what my learned senior
colleague has already said, though I would like to express an opinion on the trial
court’s decision to invite the appellants to open their defence and their
consequent conviction, which I think was erroneous. I would, however, not wade
too much into the waters of our criminal jurisprudence as my good friend and
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brother Dr. Ayine who represents the 1st appellant brilliantly did, though not
surprising, he being within the four walls of academia or the intellectual terrain.
In my humble and honest view; the said convictions were outrageous as they
were not based on any known and accepted principles of criminal law that attract
the sympathies of our criminal jurisprudence. In fact, the appellants should not
have been called upon under any circumstances at all to answer the alleged
charges preferred against them as contained on the charge sheet, since the
charges themselves were legally defective. On the authority of AKOWUAH v.
C.O.P. [1964] GLR 475 and then THE REPUBLIC v. KWADJO II [2008] 1 GMJ (Part
1) 42, all decided by the Supreme Court, the whole trial of the appellants in the
court below was a nullity.
I want to start on the ‘all things being equal’ principle as used by economists in
their theories. By this, I want to begin my argument on the premise that the tape
recording that was transcribed on a C.D. Rom and tendered in evidence as Exhibit
‘D’ did in fact, capture the discussions of the appellants and the others mentioned
in the record. That is, the appellants were part of the group that met in the house
of ACP Kofi Boakye and all the statements attributed to them on the recording
were true. That was, in fact, the position of the trial court in its judgment of 28th
November 2007 and I adopt it for purposes of my arguments and reasoning in this
my short or brief opinion. I also adopt the position of the trial court, for purposes
of my arguments only, that the said Exhibit, (i.e. ‘D’) that was later reproduced as
Exhibit ‘K’ by P.W.9 and 10, which was mysteriously procured and without doubt
had no source of manufacture as the appeal record unquestionably discloses, was
properly admitted in evidence.
Granted that the trial court was right in its conclusions as stated above, I am still
of the strongest view that it was erroneous on the part of the trial Court to
conclude that the prosecution was able to establish the charges leveled against
the appellants at the close of its case, for which the appellants were required to
open their defences.
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The truth is that quite apart from the fact that the particulars of the three charges
as preferred on the charge sheet disclosed no offences whatsoever known under
our law on drugs; i.e. P.N.D.C. Law 236, the prosecution was not able to prove
even a single ingredient of the offence created by section 3(2) of P.N.D.C. Law 236
with all the eleven witnesses that it called. The trial court relied heavily on the
testimonies of P.W.7, 9, 10 and 11 in convicting the appellants after it had
wrongly called on them to open their defences. These witnesses, apart from
P.W.7 were said to be experts in their various fields and they were; P.W.9
Professor French, his assistant Mr. Harrison who testified as P.W.10 and our own
respected Professor (Dr.) Kofi Agyekum ‘alias’ Opanin Agyekum who also testified
as P.W.11.
Though from the nature of things, the State had to invest heavily in bringing on
board these experts to assist it in the prosecution of the appellants on the alleged
offences, I can say without any fear of contradiction that the testimonies of the
said experts carried no weight whatsoever in assisting the prosecution to
establishing or prove the charges leveled against the appellants, because the
charges themselves were in the first place wrong and misplaced. What all these
witnesses came to the Court below to do was to exhibit or showcase their
academic credentials and curriculum vitae without adding anything substantial to
the trial. As for P.W.7, he assumed the role of an ‘expert’ in the ‘drug underworld’
without any factual basis and the trial court surprisingly fell flat for him.
In doing my analysis, I will not re-call all the facts of the case that went before the
lower court since my learned senior colleague did set out the facts clearly in his
lead judgment, which I endorse. I may, however make reference to them when
the need arises.
Of the first three counts under which the appellants were convicted and
sentenced, the 1st appellant was charged together with the 2nd appellant under
count one (1) for conspiracy to commit crime, while the 2nd appellant was charged
alone under count two (2) on a substantive offence of having committed a crime
and the 1st appellant also charged alone under count three (3) on the same
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substantive offence, which said offences all fall under the NARCOTICS DRUGS
CONTROL (ENFORCEMENT AND SANCTIONS) LAW, P.N.D.C. Law 236.. The said
counts read as follows: “COUNT ONE
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT CRIME NAMELY PROHIBITED BUSINESS RELATING TO
NARCOTICS CONTRARY TO SECTIONS 56 (C) AND 3(2) OF THE NARCOTICS DRUGS
CONTROL {ENFORCEMENT AND SANCTIONS} LAW, 1990, P.N.D.C.L. 236
PARTICULARS OF OFFENCE
1. KWABENA AMANING @ TAGOR, businessman. 2. ALHAJI ISSAH ABBAS,
businessman, in or about the month of May 2006, at Kanda in Accra, in
the house of ACP KOFI BOAKYE agreed to undertake an activity for the
purpose of promoting an enterprise relating to narcotic drugs, i.e.
Cocaine, by planning to cooperate with each other to find the 76 missing
parcels of cocaine and to jointly enjoy the benefits.
COUNT TWO
STATEMENT OF OFFENCE
PROHIBITED BUSINESS RELATING TO NARCOTICS CONTRARY TO SECTIONS 3(2)
OF P.N.D.C.L 236.
PARTICULARS OF OFFENCE
ALHAJI ISSAH ABBAS, in the month of May 2006, in the house of ACP KOFI
BOAKYE in Kanda in Accra, admitted that you undertook an activity for the
purpose of promoting the enterprise relating to cocaine, a narcotic drug with
KWABENA AMANING @ TAGOR in which he cheated you.
COUNT THREE
STATEMENT OF OFFENCE
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PROHIBITED BUSINESS RELATING TO NARCOTICS CONTRARY TO SECTIONS 3(2)
OF P.N.D.C.L 236.
PARTICULARS OF OFFENCE
KWABENA AMANING @ TAGOR, in the month of May 2006, in the house of
ACP KOFI BOAKYE in Kanda in Accra, admitted that you undertook an
activity for the purpose of promoting the enterprise relating to cocaine, a
narcotic drug by stating that you credited about 100 kg of cocaine and
arranged for its payment in Holland.
The said sections under which they were charged on all the three counts provide:
“56 (c) A person commits an offence if that person abets or is engaged in a
criminal conspiracy to commit an offence under this Act or under a
corresponding foreign law whether or not the offence is committed.
3 (2) A person shall not, without lawful authority, undertake an activity for the
purpose of establishing or promoting an enterprise relating to narcotic drugs.”
The law is that before the prosecution could secure conviction of an accused
person under any criminal charge, the prosecution is obliged under the law to
establish the guilt of the accused beyond reasonable doubt. This means that
under count one (1) of the instant case before us, the prosecution was required
by law, while in the Court below, to prove beyond reasonable doubt that the two
appellants did agree to commit the offence provided under section 3(2) of
P.N.D.C. Law 236 while under counts two and three, the prosecution had to
establish also beyond reasonable doubt that the appellants committed the
substantive offence prescribed under section 3(2) of the same law. This is an
obligation the law imposes on the prosecution always. The prosecution could only
do or achieve this if at the close of its case, it was able to prove or establish all the
necessary or essential ingredients constituting the offence(s) for which the
appellants were charged. The question is; was the prosecution able to establish at
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the close of its case that the appellants did commit the said offences under the
three counts? The answer is absolutely NO!
This requirement that a charge against an accused person must be proved beyond
reasonable doubt is the sole prerogative of the prosecution. The accused does not
contribute in anyway to it and the prosecution is supposed to do that by the close
of its case. The accused in a criminal trial has the right to remain silent throughout
the trial. He could decide not to say anything after the close of the prosecution’s
case and the fact that an accused person decides not to say anything does not
whittle down or make less the burden of the prosecution to establish the
charge(s) leveled against the accused beyond reasonable doubt by the close of its
case. What this means is that if the accused failed to say anything, the court could
only convict on the evidence led by the prosecution if the court was convinced or
had no doubt in its mind of the guilt of the accused in respect of the offence(s)
for which he/she was charged.
I wish to re-echo a statement I made in my dissenting judgment in the case of
DANIEL KWASI ABODAKPI v. THE REPUBLIC, decided by this Court on 20/06/2008
in respect of the scope or application of the principle of standard of proof in
criminal cases; i.e. ‘proof beyond reasonable doubt’. This was what I said: “However, I wish to stress and with much importance that this duty to prove
charges leveled against another beyond reasonable doubt is a standard one. The
principles that underlie this duty and how it has to be accomplished are the
same. They do not change according to the status or disposition of either the
accused person or the complainant involved neither do they change according
to the charge(s) preferred nor the public perception, concern or reaction in
respect of the offence and/or the accused person in question.”
What I want to imply here is that the fact that this particular case aroused
national significance and again the fact that this country is becoming a drug
designated country did not justify the crucifixion of our criminal law by applying
different principles alien to our criminal law practice, in establishing the guilt of
the appellants, aside of the known common law principle that an accused
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person’s guilt has to be proved beyond reasonable doubt, irrespective of the
crime or offence. This is a task the prosecution is obliged to accomplish at the
close of its case.
In the English case of BRATTY v. ATTORNEY – GENERAL FOR NORTHERN IRELAND
[1963] A.C. 386, the House of Lords, per Viscount Kilmuir, L.C. reiterated this
principle that was laid down in the earlier case of WOOLMINGTON v. D.P.P.
(infra) thus: “Nevertheless, one must not lose sight of the overriding principle,
laid down by this House in Woolmington’s case, that it is for the prosecution to
prove every element of the offence charged.”
This principle was pronounced by Viscount Sankey who was then the Lord
Chancellor in the case of WOOLMINGTON v. D.P.P. [1935] A.C. 462 in the
following words: - “No matter what the charge or what the trial, the principle
that the prosecution must prove the guilt of the prisoner is part of the common
law of England and no attempt to whittle it down can be entertained.”
As a common law country, this same principle applies in our criminal law practice
and even in our case, the principle has been given a further boost by having it
enshrined in our 4th Republican Constitution; i.e. (1992 Constitution) under Article
19 (2) (c) as follows: - “A person charged with a criminal offence shall be
presumed to be innocent until he is proved or has pleaded guilty”. Then Article
19 (10) provides further: “No person who is tried for a criminal offence shall be
compelled to give evidence at the trial.”
What this implies is that whether the accused person testifies or not, it is still the
duty of the prosecution to establish or prove the charges preferred against him
and the standard of proof required by law is; ‘proof beyond reasonable doubt’. A
person is not pronounced guilty just because he refused to testify. He is
pronounced guilty only when the evidence led by the prosecution in respect of
the charge(s) satisfied the standard of proof required by law and that is; ‘proof
beyond reasonable doubt’. If at the close of the prosecution’s case the
prosecution was able to prove all the essential ingredients or prerequisites of the
crime alleged and the prisoner or accused refuses to say anything in explanation
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or in defence, it would mean that the prosecution had proved the charge(s)
against the accused beyond reasonable doubt. That is because the prisoner or
accused could not offer any explanation to rebut the allegations established
which prima facie, constituted proof.
It was therefore a mis-statement of the law, as counsel for the 1st appellant rightly
contended in his written address, when it was suggested by the learned Professor
Modibo Ocran, JSC in the case of TSATSU TSIKATA v. THE REPUBLIC [2003-2004]
SCGLR, 1068 that the court cannot seriously speak of ‘proof beyond reasonable
doubt’ when the defence has not testified so a lesser standard of proof must be
sought for when considering whether a prima facie case has been made or not.
Though this Court is constitutionally bound by the decisions of the Supreme Court
at all times, I do not think the suggestion made by Justice Ocran whom I respected
a great deal, was one of the ratio decidendi of the Supreme Court in the case
under reference. Atuguba, JSC criticized that position in the same case in his
dissenting judgment and I agree in toto with the stand of the learned and
respected Justice Atuguba. This was what he said: “To my mind the provision in section 11 (2) of the Evidence Decree (now
Evidence Act), 1975 means that, a reasonable mind, applying his powers of
reasoning to the evidence led by the prosecution at the close of its case, will end
in the conclusion that, if no contrary evidence is led, it could be said that the
relevant fact which has to be established by the prosecution has been
established beyond reasonable doubt. This certainly calls for an assessment of
and not merely a reading of the evidence so led, in a manner consistent with the
requisite standard of conviction that must at that stage of the trial be induced in
the mind of the reasonable person.”
The principle is that an accused person has a choice to either testify or to remain
dumb. No matter which way he chooses, it is still incumbent on the prosecution
to prove any charge leveled against him beyond reasonable doubt. That
assessment could only be made by considering both the factual and legal
substance of the case led by the prosecution without necessarily looking at what
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the defence or accused had said or intends to say. In my view therefore, the
requirement that the prosecution has to establish a prima facie case against an
accused before the accused could be called upon to open his defence is another
way of saying that such evidence or case led must be such that it should leave no
doubt in the mind of a reasonable person that it was the accused who committed
the offence so that where the accused failed to give any explanation to rebut the
guilt staring in his face, he would by all means be convicted.
It is a notorious principle of the criminal law that ‘prima facie evidence’ is nothing
other than evidence that can lead to the conviction of the accused if the accused
leads no evidence to rebut the presumption(s) raised in it. The standard required
in establishing a prima facie case is therefore not lesser than the standard
required in establishing or proving a case beyond reasonable doubt. The two
mean almost the same though different yardsticks are applied in determining
them since they are used at various stages of the trial.
Prima facie evidence is evidence, which on its face or first appearance, without
more, could lead to conviction if the accused fails to give reasonable explanation
to rebut it. It is evidence that the prosecution is obliged to lead if it hopes to
secure conviction of the person charged. At this stage the trial court is not
supposed to make findings of fact since the other side has not yet spoken to
determine who was being factual. What the trial court has to find out at this stage
that the prosecution has closed its case is whether or not the evidence led has
established all the ingredients of the offence for which the accused could be
convicted if he failed to offer an explanation to raise doubts in the said evidence.
However, what we must remember is that evidence that can lead to the
conviction of an accused person must be evidence that satisfies the standard of
proof required by law; i.e. proof beyond reasonable doubt, whether the accused
testified in explanation or not. There is nothing like a lesser standard than the
required standard prescribed by law as the learned Professor was suggesting,
with all the greatest respect I had for him. This is because, having closed its case,
the prosecution has no further proof to offer. The accused cannot add up to the
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prosecution’s case where at the close of its case, the prosecution had been
unable to establish a prima facie case against him. See the Supreme Court case of
DONKOR v. THE STATE [1964] GLR 598, where the Highest Court of the land
decided that where a submission of no case is wrongly overruled, the fact that the
accused gives incriminating evidence filling the omissions or defects in the case
for the prosecution will not change the legal position, especially where no offence
has been alleged or proved by the prosecution. {Emphasis mine}.
The burden of establishing a prima facie case is therefore not lesser than the
burden of establishing the guilt of an accused beyond reasonable doubt. It is the
same evidence of the prosecution that is used in determining both. The difference
is that in the former, since the person charged has not testified, the trial court
does not compare facts to make findings of fact. The trial court only looks at the
whole case of the prosecution placed before it and then questions itself whether
that evidence could lead to the conviction of the person charged. The trial court
does not do that in vacuum. It does that based upon certain accepted principles.
The trial court has to find out if all the ingredients forming the offence have been
proved or established by the prosecution. It is only when the court is satisfied that
all the ingredients have been established by the prosecution that it proceeds to
invite the accused to provide an explanation to avoid being convicted, otherwise
not. So it is legally incorrect to say that prima facie evidence, which is evidence
that can lead to the conviction of an accused if he chooses to remain silent, is not
evidence that establishes a case beyond reasonable doubt at that stage. It
therefore amounts to a great miscarriage of justice where a trial court invites an
accused person to open a defence when the prosecution could not establish all
the ingredients of the crime for which he was charged.
In the instant appeal before us, there is no gainsaying that the trial High Court
seriously erred when it ruled against the submission of no case made for and on
behalf of the appellants by their lawyers and proceeded to call on them to open
their defence when, from the record, the prosecution had woefully and miserably
failed to establish a prima facie case against any of them at the close of its case. In
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fact, at the close of the prosecution’s case, the prosecution had unreservedly
failed to discharge this responsibility bestowed on it by law. I proceed to justify
the position I have taken below and in doing so, I wish to take the counts one by
one.
The authorities are legion that no two cases are alike and that each case has to be
determined on its peculiar circumstances. This supports the legal position that
general principles of law do not decide specific cases. It does not therefore admit
of any argument that each criminal charge or offence specified under any Code or
Act has its specific or special ingredients that the prosecution has to establish if it
wants to secure conviction.
For example, a charge of murder has its ingredients different from say a charge of
assault or a charge of robbery and in proving that murder has been committed, all
the ingredients of the charge have to be established. This applies to all
substantive criminal offences like assault, robbery, rape, defilement, etc. including
the inchoate crimes like conspiracy and abetment.
The trial court, in its ruling on the submission of no case to answer made on
behalf of the appellants by their lawyers, got the principle right when, after
referring to decided cases like STATE v. ALI KASSENA [1962] 1 GLR 144 – SC;
APALOO v. THE REPUBLIC [1975] 1 GLR 156 and REPUBLIC v. ACCRA SPECIAL
COURT; Ex-parte AKOSAH [1977] 1 GLR 285, it stated as follows: - “My duty at this
stage as I understand it and also in principle of the decision in the Ex-Parte
Akosah case is to do a balancing act at the close of the case for the Prosecution
ensuring that the prosecution has led evidence to support the essential
ingredients of the offences charged. It does not matter at this stage if those
pieces of evidence are rebuttable or not.” {Emphasis added}.
The paramount consideration in deciding whether a prima facie case has been
made or not is; whether the prosecution has proved all the essential ingredients
or prerequisites of the offence charged. No prima facie case is made where the
prosecution was unable to prove all the essential ingredients. Even if one of the
ingredients is not proved, the prosecution fails and no prima facie case is made.
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For instance, if say ‘S’ is charged with murder, the prosecution must, by the close
of its case have satisfied all the ingredients of murder because the trial court can
only conclude that a prima facie case has been made when all the ingredients of
murder have been proved or established. These ingredients are: i) That someone is dead.
ii) That he died as a result of harm caused to him.
iii) That the harm was unlawful.
iv) That the harm was caused by ‘S’ and no one else.
v) That in causing the harm, ‘S’ intended the death of the deceased.
In the above scenario, if, at the close of its case, the prosecution was not able to
prove all the five ingredients listed above; i.e. if say the prosecution was not able
to prove that someone had in fact died as alleged, it could not be said that a
prima facie case had been made against ‘S’ to warrant calling on him to defend
himself.
What this means is that even if ‘S’ had gone to boast or brag somewhere in a
machoistic way that he had killed somebody and this statement comes to the
knowledge of the police through some secret means, the only thing the police
could do is to arrest ‘S’ and investigate what he himself had alleged. If at the end
of their investigation there is no evidence to support the allegation made by ‘S’ in
his boastings or bragging that he had killed somebody, ‘S’ could not be charged or
arraigned before court and tried on murder just because he himself had said he
had killed somebody without more.
In the same vein, if ‘S’ had whispered to say his landlord that he had assaulted
someone in their neighbourhood and the landlord sneaks to make a report to the
police, the police may arrest ‘S’ on the basis of the secret information received
from the landlord, but if after investigations, the police were not able to gather
any evidence to suggest that ‘S’ actually assaulted someone within the
neighbourhood, ‘S’ could not be dragged to Court and tried just because he
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himself said he had assaulted someone when there is no evidence to support
what he was alleged to have said.
The genesis of the instant case now on appeal before us, is exactly the same as
the examples given above but unfortunately, the learned trial judge whom I hold
in high esteem was hoodwinked by the clever bait of a purported public concern
about Ghana becoming a safe haven for drugs, into concluding the way he did.
I want to emphasize that despite the fact that the prosecution called as many as
eleven (11) witnesses, none of the eleven (11) led any evidence connecting the
appellants to any crime. The only evidence that was used to confront the
appellants was a recording of statements they were alleged to have made in their
private discussions in the house of a Senior Police Officer who had invited them to
assist him clear his name of a smear campaign to link him to narcotic drugs.
Before then, none of the appellants was being investigated for any such crime.
There was no prior history of their involvement in any drug-related crime or any
crime whatsoever. The record did not indicate anything like that.
The statements they made in their secretly recorded conversations, which from
the prosecution’s point of view, was done by who nobody knows up to date, were
therefore not made in respect of any offence or crime that they had allegedly
committed or suspected to have committed for which they were being
investigated. I would therefore not call those statements ‘confession statements’
or ‘admissions’ of any crime as the trial court did in its ruling on the submission of
no case to answer and judgment, since they do not qualify to wear that tag. I
would soon give my reasons why I have said so.
What did the charges leveled against the appellants entail and what were the
ingredients of the offences for which the appellants were charged which the
prosecution was obliged to prove to enable them secure proper conviction? This
brings me to the conspiracy charge which happens to be the first count.
CONSPIRACY CHARGE
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By the definition of the offence of conspiracy under our law, it entails an
agreement between two or more persons with a common purpose to commit a
crime or the acting together of two or more persons with a common purpose in
committing a crime. The offence is defined under section 23 (1) of our Criminal
Offences Act, 1960 [Act 29] as follows: “If two or more persons agree or act together with a common purpose for or in
committing or abetting a crime, whether with or without any previous concert
or deliberation, each of them is guilty of conspiracy to commit or abet that
crime, as the case may be.”
The offence is in two forms. The first is; to agree with a common purpose for or in
committing or abetting a crime while the second is; to act together with a
common purpose for or in committing or abetting a crime.
Under the first, the offence is committed when the said persons agreed with a
common purpose for or in committing or abetting a crime though in the end, the
agreement was not carried into fruition. The second entails a situation where the
said persons never had any previous agreement or deliberations for or in
committing or abetting a crime though they acted together in committing or
abetting a crime. Both situations, when established beyond reasonable doubt,
constitute the offence of conspiracy.
In the instant appeal before us, the accused persons were charged under section
56 (c) and 3 (2) of P.N.D.C. Law 236 but not under section 23 (1) of Act 29/60.
They were said to have agreed with a common purpose to commit the crime
specified under section 3 (2) of the law; i.e. P.N.D.C. Law 236. Section 56 (c)
provides: - “A person commits an offence if that person abets or is engaged in a
criminal conspiracy to commit an offence under this Act or under a
corresponding foreign law whether or not the offence is committed.”
Meanwhile, the offence or crime that the appellants were said to have agreed or
planned to commit was the crime specified under section 3 (2) of the Law; i.e.
P.N.D.C. Law 236. This crime also reads: - “A person shall not, without lawful
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authority, undertake an activity for the purpose of establishing or promoting an
enterprise relating to narcotic drugs.”
As the trial court rightly opined in its ruling on the submission of no case to
answer and in the judgment that followed afterwards, the main ingredients that
have to be proved in a conspiracy charge are:
1. There must be at least two or more parties to the agreement or action.
2. The two or more parties must agree or act together.
3. They must do so with a common purpose.
4. The common purpose in their agreeing or acting together must be to
commit a crime.
In the instant case, the appellants were not alleged to have acted together. They
were said to have agreed with a common purpose to commit a crime. What this
implies is that the alleged agreement was not carried to fruition that is, the crime
was not actually committed as agreed that was why they were not said to have
acted together. What is this crime that they were said to have agreed to commit?
They were said to have agreed during a meeting in the house of ACP Kofi Boakye,
to undertake an activity for the purpose of promoting an enterprise relating to
cocaine which is a prohibited narcotic drug.
A person commits crime when he/she undertakes an activity for the purpose of
promoting an enterprise relating to narcotic drugs without lawful authority. That
is what section 3(2) of P.N.D.C. Law 236 says. The reason why the prosecution
said the appellants agreed to undertake an activity for the purpose of promoting
an enterprise relating to narcotic drugs as disclosed in the particulars of the
offence under the first count was that during their meeting, they planned to
cooperate with each other to find the 76 missing parcels of cocaine and to jointly
enjoy the benefits.
Some of the questions that readily come to mind after reading this charge are;
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1. Which 76 missing parcels of cocaine did the appellants agree to find?
2. Where were these 76 missing parcels of cocaine?
3. Who imported them and when and from where?
4. Is it true there were 76 missing parcels of cocaine hiding somewhere?
In fact, these questions and many more were never answered by the prosecution.
While the particulars of all the charges suggested that these 76 parcels of cocaine
existed in reality, there was no evidence whatsoever, throughout the trial, of any
76 parcels of cocaine hiding somewhere which the appellants and others wanted
to hunt and enjoy granted they even said that. The investigations conducted by
the police and the evidence led throughout by the prosecution in the lower court
did not suggest any such thing.
I take judicial notice of the fact that there was only a rumour in the country that a
vessel by name M.V. Benjamin was carrying some parcels of cocaine heading
towards the shores of Ghana and that some people had gone to the high seas
with a canoe and stolen 76 out of the 77 parcels from the vessel that brought
them and bolted with them. Because of this rumour that filled the pages of our
daily tabloids, a committee was set up by the then government to investigate that
allegation. The committee was known as the Georgina Wood Committee chaired
by our current Chief Justice, The Honourable Lady Justice Georgina Theodora
Wood. The committee, in discharging its duties, hit the rocks as it did not make
any headway in tracing the alleged 76 parcels of cocaine that were allegedly
stolen from the vessel, granted the allegation was true. So as to whether or not
there were some 76 parcels of cocaine that were stolen from a vessel by unknown
persons remains a mystery up to this time that I am reading my opinion.
Quite aside of this, the evidence led by the prosecution did not mention the
appellants as having anything to do with the importation of the alleged 77 parcels
of cocaine, which would have constituted an offence under section 3(2) of
P.N.D.C. Law 236. When one of the police investigators who testified as P.W.2 for
the prosecution in the person of Detective/Corporal Edward Yaw Asante was
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asked how he became aware that 77 parcels of cocaine arrived in a vessel and out
of the number 76 had been carted away, he answered that he was told by one of
the crew members found on board the vessel when he was conducting
investigations into that case. He did not mention the name of the alleged crew
member who gave him that information; neither did he say that the appellants
had anything to do with these 77 parcels of cocaine.
The only crime of the appellants under this count was that they also heard of the
said parcels of cocaine and they organized a meeting to look for the said parcels
so that they could enjoy the benefits jointly. The discussions at the said meeting
were said to have been captured on a secret tape that was used to record their
conversations without authority. In fact, from the nature of the discussions on the
tape (Exhibit ‘D’), the appellants were not making any ‘confessions’ or
‘admissions’ to any authority or person. They were having a friendly chat in which
some of them were bragging about their wealth and others. Whether all the
discussions they had there had any factual basis or not was not established.
As I have earlier on recounted, at the time the private conversations of the
appellants and the others were secretly taped, none of them was under any
investigations of any sort for having committed or suspected to have committed
any crime. But the question is; is it true that the appellants’ met in the house of
ACP Kofi Boakye with other people purposely to plan to cooperate with each
other to find the alleged 76 missing parcels of cocaine for their own enjoyment?
Absolutely not!
The fact is that from the discussions recorded on Exhibit ‘D’, ACP Kofi Boakye who
was the Director of Operations of the Ghana Police Service at the time, which was
a powerful position within the police hierarchy in Ghana, had information that his
name was being linked to the alleged 76 missing parcels of cocaine and his
information was that it was the 2nd appellant who was doing that. He then invited
the appellants and the others to a meeting to clear his name and to look for the
culprits who allegedly imported the said drugs into the country without authority.
His main aim, notwithstanding other careless statements or bragging that were
18
made during the discussions, was to solicit the assistance of the appellants to look
for the culprits who allegedly imported the said cocaine into the country so he
even expressed his desire to inform National Security about it.
As a police officer, I am of the view that he was right in doing so since his main
aim was to trace the culprits who allegedly imported the said drugs into the
country. He could employ all means possible as a senior police officer, both lawful
and even at times through unlawful means, to stumble upon any information that
could lead to the arrest of the unknown perpetrators of the alleged crime. It was
in the course of the discussions that a voice was heard on the tape saying in the
Twi language to wit; “nipa baako entumi ndi”, which the prosecution literally
interpreted to mean, one person could not enjoy the benefits of all the alleged 76
missing parcels of cocaine. It was this very statement that later formed the basis
or the substance of the charge under count one. Meanwhile, the existence of the
alleged 76 missing parcels of cocaine remains a mystery up to date. Again, the
person who said one person could not enjoy all the missing parcels was identified
by the experts as MO, which meant it was Moro who said that. This Moro was
never charged with any offence granted what he said about one person not being
able to enjoy the whole stuff constituted a crime, which in fact was not a crime as
such.
So seriously speaking, none of the appellants ever said, during their conversations
in ACP Kofi Boakye’s house, that they were going to look for the 76 missing
parcels of cocaine so that they could jointly enjoy the benefit, granted that
statement alone constituted the crime of conspiracy to undertake an activity for
the purpose of promoting an enterprise relating to narcotic drugs to wit; cocaine.
It is therefore never correct that the two appellants ever agreed to commit a
crime to wit; to undertake an activity in the promotion of an enterprise related to
narcotic drugs by planning to cooperate to search for the parcels so that they
could together enjoy them.
I do not think that if a Senior Police Officer of the caliber of the whole Director of
Operations of the Ghana Police Service invites people to assist in locating a
19
banned drug that had arrived in the country unlawfully, which was no secret but
the topic of the day, the mere agreement to assist the police officer to unravel the
mystery surrounding the alleged missing cocaine itself constituted the
commission of the crime of conspiracy to commit a crime.
As counsel for the 1st appellant brilliantly argued in his written submissions, the
charge of conspiracy against the appellants did not hold. The particulars as given
under count one on the charge sheet do not constitute a crime under conspiracy
as known under our criminal law and for holding that such a charge had been
established for which the appellants were called upon to open their defences, the
trial court grievously erred.
I now turn my attention to counts two and three which border on the same
offence; i.e. section 3(2) of P.ND.C. Law 236. This section that creates the crime
for which the appellants were separately charged provides: “A person shall not, without lawful authority, undertake an activity for the
purpose of establishing or promoting an enterprise relating to narcotic drugs.”
The ingredients of this offence which the prosecution must establish if it wants to
sustain the conviction of a person charged under such an offence are:
1. That someone has undertaken an activity.
2. That the reason for undertaking the said activity was to establish or
promote an enterprise relating to narcotic drugs to wit; cocaine.
3. That, the said activity was unlawful since it was done without authority.
4. That the said activity was undertaken by the person charged; i.e. the
accused.
In proving the above ingredients, there must be evidence that the said activity
that was intended to establish or promote an enterprise relating to cocaine did in
fact take place; i.e. that there was a physical or actual engagement in an identified
and described activity. Again, there must be evidence as to the place or location
20
where the said activity took place to make it a crime triable in Ghana. Also the
time or period within which the alleged criminal activity was undertaken is crucial
in determining whether the alleged offence was committed after the
promulgation of the current law; i.e. P.N.D.C. Law 236 that was passed in 1990 or
before. It must also be established that the said activity was undertaken by the
persons charged and that they did so without authority.
In the instant case before us, the particulars of the charges under counts two and
three were silent on all these. Throughout the evidence led by all the eleven
witnesses the prosecution called, none of them indicated in the slightest measure
possible that what the appellants alleged during their private discussions for
which they were charged, tried and convicted did actually take place. Again, there
was no indication whatsoever as to when and where the alleged activities took
place.
So without mincing words, the particulars of the charges under counts two and
three were defective making them incurably bad as counsel for the appellants
rightly contended in their written submissions. They fit in the same jacket as the
examples I gave with regard to murder and assault charges (supra); that is; if
someone says he has killed a human being and there is no independent evidence
to support that fact, can such a person be dragged to the court and convicted on
the basis of what he had said only, when the factual basis of his allegation or the
corpus delicti has not been established? I do not think so and I believe any such
step would be jurisdictionally outrageous.
The second count under which the 2nd appellant was charged read as follows: “ALHAJI ISSAH ABBAS in the month of May 2006, in the house of ACP Kofi
Boakye in Kanda in Accra, admitted that you undertook an activity for the
purpose of promoting the enterprise relating to cocaine, a narcotic drug with
Kwabena Amaining @ Tagor in which he cheated you.”
The same charge was preferred against the 1st appellant under count three as
follows:
21
“KWABEWNA AMANING @ TAGOR, in the month of May 2006, in the house of
ACP Kofi Boakye in Accra admitted that you undertook an activity for the
purpose of promoting the enterprise relating to cocaine, a narcotic drug by
stating that you credited about 100kg of cocaine and arranged for its payment
in Holland.
The above particulars did not indicate that the two appellants did in fact
undertake the said activities. What the particulars said was that the appellants
admitted sometime in May 2006 in the house of a Senior Police Officer that they
undertook the said activities. Whether what the appellants said in the said
discussion actually took place or not, the evidence led did not establish that.
Again, granted that the said activities did in fact take place (though there was no
evidence to suggest that), there was no indication as to when and where the said
activities were allegedly undertaken.
I would like to reduce this argument into a hypothetical question and answer
basis. The questioner is someone who wants to know what the appellants did
leading to their prosecution and conviction while the one answering is the
prosecution that dragged the appellants to court. I begin with the 1st appellant: QUESTION: What activity did the 1st appellant undertake with the purpose of
establishing or promoting an enterprise relating to narcotics?
PROSECUTION: He himself said, in the house of ACP Kofi Boakye that he
credited 100kg of cocaine and arranged for its payment in Holland.
QUESTION: When did he say he undertook this activity?
PROSECUTION: Ah! He did not indicate.
QUESTION: Where did he say he credited the cocaine?
PROSECUTION: Ah! I don’t know?
QUESTION: Who was to pay for the cocaine in Holland?
PROSECUTION: Ah! He did not tell.
22
I now, move on to the 2nd appellant.
QUESTION: What activity did the 2nd appellant engage in that showed that he
was establishing or promoting an enterprise relating to narcotic drug, to wit;
cocaine?
PROSECUTION: He himself said during a meeting in ACP Kofi Boakye’s house
that he did cocaine business with the 1st appellant in which the 1st appellant
cheated him.
QUESTION: Did he indicate when he allegedly did the said business with the 1st
appellant?
PROSECUTION: No, he didn’t.
QUESTION: Did he disclose where he and the 1st appellant carried on this
business?
PROSECUTION: No, he didn’t.
QUESTION: But did you find out yourself whether he actually did any cocaine
business with the 1st appellant as he claimed?
PROSECUTION: How could we have done so? We only relied on what he said on
the tape recording.
As counsel for the 1st appellant rightly contended, the actus reus of the alleged
offences committed by the two appellants under section 3(2) of P.N.D.C. Law 236
was not established. The actus reus alleged by the prosecution was an alleged
admission of engaging in the activity, period. To the trial court, whether what the
appellants alleged they did was actually done by them or not was immaterial.
Since they themselves have said that they did undertake that activity, there was
no need to establish that they in fact undertook that activity.
That was, in fact, a serious indictment on our criminal law with regard to proof of
an offence. It is like saying that if someone is overheard saying that he has raped
somebody and there is no evidence that somebody has in fact been raped as
23
alleged by that someone, that person who was overheard saying so could still be
charged for rape and convicted without any further proof that somebody was
actually raped. This reasoning, in my humble and candid view, has no legal basis.
It is devoid of legal touch and very dangerous.
The fact is that all the authorities that the prosecution relied on in convincing the
trial court to conclude that a conviction could be based on mere admission
without any supporting independent evidence whatsoever were given a wrong
interpretation and improperly applied in the instant case before us. These cases
were STATE v. OTCHERE [1963] 2 GLR 463; BILLA MOSHIE v. THE REPUBLIC
[1977] 2 GLR 418 and AYOBI v. THE REPUBLIC [1992-93] GBR, PART II page 769.
In all these cases, there was evidence that a crime had actually been committed
and the accused persons were being investigated for their roles in the crime. It
was in the course of the said investigations that they confessed to the said crimes
then being investigated.
In the first case; that is State v. Otchere (supra), the accused persons were
charged with conspiracy to commit treason. There was evidence that there were
series of meetings in Lome by some United Party members who were then in exile
in Togo during Nkrumah’s time at which they planned to overthrow the
government of Osagyefo Dr. Kwame Nkrumah. Following these meetings, there
was an attempt to assassinate the President at Kulungugu when a bomb was
thrown at him. This was followed by series of bomb outrages in various parts of
Accra. The first accused in that case, made certain confessions to the police when
he was eventually arrested. He admitted attending some of the meetings held in
Lome to overthrow the government of the day but he denied doing anything in
furtherance of that agreement. The only evidence the prosecution had against
him was the confessions he made while under arrest.
The Special Criminal Division of the High Court that tried the accused persons was
headed by the then Chief Justice and in its judgment; this was what the court said
under holdings (7) and (8).
24
“(7) A confession made by an accused person of the commission of a crime is
sufficient to sustain a conviction without any independent proof of the offence
having been committed by the accused.
(8) The principle regarding a confession of murder (or manslaughter) is that
where the confession is direct and positive, that is, where the confession
establishes the corpus delicti, the confession is sufficient to sustain conviction.
But where the confession falls short of establishing the corpus delicti, then
further corroborating evidence is required to prove the corpus delicti.”
By these holdings, what the Special Court was saying was that where the
confession statement does not establish the corpus delicti, that is, (the facts that
constitute the offence) then there is the need for independent corroborative
evidence to prove that the crime was indeed committed. The decision in the
Otchere case (supra) on the effect of confession statements did not therefore
mean what the prosecution and the trial court said it meant, i.e. that a mere
confession statement without more is sufficient to ground conviction. In fact the
Special Court did not say so since that is not the position of the law.
Now, in the Billa Moshie case (supra), the appellant who was a watchman at a
distillery was charged with the murder of his co-worker. There was evidence that
the co-worker was dead and that he was murdered. There was evidence that the
deceased was hit with a stone and his mouth slashed with a cutlass. He was also
shot with an arrow with the arrow sticking out of his abdomen. Immediately after
the incident, the appellant Billa Moshie confided in his landlord that he had killed
his co-worker. He was arrested and placed in police custody and in his confession
statement made to the police; he gave details as to how he murdered the
deceased. The details he gave corresponded with the evidence as to how the
deceased was killed.
However, during the trial, he denied the charge. He was, nevertheless found
guilty by the jury and convicted and sentenced accordingly. He later appealed
against the said decision and in dismissing the appeal, this Court held that a
conviction could quite properly be based entirely on the evidence of a confession
25
by a prisoner, if such evidence was sufficient, as long as the trial judge inquired
most carefully into the circumstances in which the alleged confession was made
and was satisfied of its genuineness. {Emphasis added}.
In this Billa case just like the Otchere one, the confession statement that the
appellant Billa made to the police while in custody established the corpus delicti
and in that sense, there was no need for any corroborative evidence. Billa had
told his landlord that he hit his co-worker with a stone. Again, he slashed his
mouth with a cutlass and thirdly, he took the deceased’s bow and arrow and shot
him in the abdomen. All that the appellant Billa said was established by the police
during investigation as there was no doubt that the deceased was hit with a
stone, slashed with a cutlass and shot with an arrow as Billa confided in his
caution statement. So seriously speaking, there was independent evidence that
suggested that the offence had been committed and that it was committed by the
appellant Billa.
It is not correct, as was suggested by the respondent in its written submissions
that it is only in murder cases that we can talk of corpus delicti. Corpus delicti is
nothing more than the facts that constitute the offence for which an accused
person has been charged. In an assault case for instance, the corpus delicti is the
facts that establish that someone had actually been assaulted; i.e. evidence of the
assault and it includes medical reports if any of the injuries sustained, etc.
In the instant case, the only evidence led by the prosecution in the Court below
was that the 1st appellant said, during their discussions in the house of ACP Kofi
Boakye that he credited about 100kg of cocaine and arranged for its payment in
Holland while the 2nd appellant also said he did cocaine business with the 1st
appellant in which the 1st appellant cheated him. Apart from what the appellants
were alleged to have said during their private discussions, there was no evidence
that what they said ever took place, meaning the corpus delicti of the said
offences was not established. There were no facts to support the charges or the
alleged offences committed.
26
There was no evidence that the 1st appellant ever credited cocaine any where and
at any time and had it sold in Holland at any time as he was alleged to have said.
Again, in respect of the 2nd appellant, there was no evidence, apart from what he
was alleged to have said in the secret recordings that he ever did any cocaine
business with the 1st appellant at any time and at any place for which
investigations were being conducted against him. No such facts were established
by the prosecution. It is such facts that form the corpus delicti in this case but
none was established.
From the record, when the 2nd appellant said he did business with the 1st
appellant during which the 1st appellant cheated him, the 1st appellant
categorically denied that contention. So even between the 1st appellant and the
2nd appellant, they were not in agreement that they did any cocaine business
together in which the 1st appellant cheated the 2nd appellant. This was all the
evidence that the prosecution led against the appellants. So what criteria did the
prosecution and the Court below use in believing the statement by the 2nd
appellant that he did business with the 1st appellant in which the 1st appellant
cheated him when in the same conversation the 1st appellant had categorically
denied what the 2nd appellant had alleged?
In fact, the facts in this case are completely at variance with the facts in the cases
the prosecution cited to support its contention that confession statements alone
could ground a conviction without any corroborative evidence that establishes
the corpus delicti. Seriously speaking, there can be no charge like; ‘accused
admitted that he did commit some crime’ when the prosecution has no evidence
to prove or establish that the alleged crime was ever committed.
In criminal proceedings, when there is evidence that a crime has been committed
and someone is suspected of having committed the said offence, the police
conduct investigations to gather information to support their suspicion that it was
the person suspected who committed the crime. It is when the said suspect
volunteers information connecting him to the crime being investigated that the
said information could be used against him to buttress the suspicion. This is not
27
what happened in this case. This case presents a situation where I am hearing for
the first time in my whole judicial career that a conviction could be based on a
mere allegation by a rabble-rouser or a braggart that he had done something
criminal in nature when there is no evidence that suggests in the least that the
alleged offence or crime had indeed been committed or was ever committed.
I now consider briefly the issue as to whether or not the statements attributed to
the appellants in the secret recordings qualify to be tagged ‘confessions’ or
‘admissions’ in law. The ordinary dictionary meaning attached to the word
‘CONFESSION’ in the legal context by the Shorter Oxford English Dictionary
(Deluxe Edition) is; “the making known or acknowledging of one’s own fault,
offence, etc; acknowledgment before proper authority of the truth of a criminal
charge.”
In legal lexicon, the following meanings or definitions have been attached to the
word. It is defined in Osborn’s Concise Law Dictionary as, “an admission of guilt
made to another by a person charged with a crime.”
The Oxford Dictionary of Law, 5th edition edited by Elizabeth A. Martin, defines it
as “an admission, in whole or in part, made by an accused person of his guilt.”
Jowitt’s Dictionary of English Law, second edition by John Burke defines the word
as follows: “In civil procedure, a confession is a formal admission. In criminal
law, a confession is an admission of guilt, made either judicially, that is, in the
course of a judicial proceeding, or not. Judicial confession may operate as an
estoppel, and, if plenary, is sufficient to found a conviction, as where a prisoner
pleads guilty. An extrajudicial confession never operates as an estoppel but is
admissible in evidence if given freely and voluntarily, without inducement by
temporal threat or promise from someone having authority in relation to the
charge.”
In Black’s Law Dictionary, seventh edition by Bryan A. Garner as Editor in Chief,
the word was defined as, “A criminal suspect’s acknowledgment of guilt, usually
in writing and often including details about the crime.” It then quoted Wigmore
28
on ‘Evidence in Trials at Common Law’, which defines it as; “A confession is an
acknowledgment in express words, by the accused in a criminal case, of the
truth of the main fact charged or of some essential part of it.” Black’s Law
Dictionary went ahead to give categories of confessions and their definitions.
What concerns me here are the definitions attached to ‘judicial confessions’ and
‘extrajudicial confessions’, which were defined as follows: Judicial confession was defined as, “A plea of guilty or some other direct
manifestation of guilt in court or in a judicial proceeding.” ‘Extrajudicial
confession’ on the other hand was defined as “A confession made out of court,
and not as a part of a judicial examination or investigation. Such a confession
must be corroborated by some other proof of the corpus delicti, or else it is
insufficient to warrant a conviction.”
In Stroud’s Judicial Dictionary of Words and Phrases, sixth edition by Daniel
Greenberg and Alexandra Millbrook, the authors quoted R v. McKay [1965] Qd. R.
240 in which it was stated that “mere incriminatory statements are not of
themselves sufficient to constitute a confession.” Further reference was made to
the case of R. v. SAT – BHAMBRA [1988] CRIM. L. R. 453 where the court held
that; “A damaging but exculpatory statement is not a confession.”
What all these definitions quoted above imply is that a confession is an admission
of guilt made before proper authority or to another person by either a suspect
who is facing a criminal charge or by someone not yet suspected of having
committed the crime under investigations . This pre-supposes the existence of a
crime for which the confession or admission was made by one to another person
or authority confirming one’s guilt.
This means that there must first of all be a crime. Secondly, the maker of the
statement that qualifies to be termed a ‘confession’ might have been either an
accused on trial who made that statement to the court trying the case admitting
the crime or offence (i.e. judicial confession) or, the maker might have been a
suspect or someone who made the said statement voluntarily to the authority in
29
charge of investigating the crime or to someone else, admitting the crime that
had been committed (i.e. extrajudicial confession).
In an epitome therefore, before any statement could be used against the maker
as a confession statement, there must be the existence of a crime or an offence
that the alleged confession tends to support. Again, the confession must be
voluntary.
In the English cases cited by the prosecution (respondent); i.e. R. v. SANG [1979] 2
All E.R. 1222 and R. v. KHAN, where the police had to plant a secret devise in the
cells of the accused persons then under investigations so as to capture their
involvement in the said crime being investigated, the prisoners were already
under arrest and being investigated for the said crimes. The police just needed
more evidence to strengthen their case thus the means employed, though with
authority.
In the Sang case (supra) the appellant was charged with conspiring with others to
utter forged United States banknotes. His defence was that he was induced to
commit the offence by an informer acting on the instructions of the police and
that but for that persuasion the appellant would no have committed the offence.
His counsel tried to persuade the judge to rule, in the exercise of his discretion,
that the Crown should not be allowed to lead any evidence of the commission of
the offence thus incited. The judge overruled him and convicted the appellant on
his own plea. On appeal against the judge’s ruling, the Court of Appeal dismissed
the appeal and a further appeal was lodged with the House of Lords. The House of
Lords held, inter alia, that; “if evidence against the accused had been improperly
obtained by the police by the use of an agent provocateur or by a police man
and an informer inciting the accused to commit the crime alleged that was not a
ground on which the judge could exercise his discretion to exclude the evidence,
although it could be a factor in mitigating the sentence imposed on the
accused”...
In both cases, there was evidence that the accused persons had committed
offences for which they were charged. That scenario is absent in the instant case
30
before us, so it was wrong for the trial court to have referred to those cases to
justify the wrong decision it arrived at. In the instant case before us, there was no
evidence that the appellants admitted their guilt in respect of any crime that they
had committed at any time or at any place to any body or before any authority.
What the appellants and the others who met in ACP Kofi Boakye’s house said in
their private conversation about things that they allegedly did in the past in the
midst of quaffing liquor, without any further proof that what they were alleging or
bragging about ever took place, did not therefore amount to confession or
admission of guilt of any offence.
In my candid and objective view therefore, the whole trial was a nullity as it was
based on defective charges that are not known under our criminal jurisprudence.
The convictions and sentence of the appellants on all the charges constitute a
cancerous tumor in our legal anatomy that should not be made to eat into and
infect our lower courts. They need to be flushed out from the system and
confined to the waste bin.