HARUNA VRS REPUBLIC (H1/16/2023) [2024] GHACA 19 (21 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CRIMINAL DIVISION) A. D. 2024 - ACCRA CORAM: POKU-ACHEAMPONG, JA. (PRESIDING) BARTELS-KODWO, JA KORANTENG, JA SUIT NO: H1/16/2023 21st March, 2024 IBRAHIM HARUNA (ALIAS SHEHU) :::::::: APPELLANT VRS. THE REPUBLIC ________________________________________________________________________ ::::::::: RESPONDENT __________________________________________________________________ JUDGMENT BARTELS-KODWO, JA: Introduction This is an appeal by the Appellant against the judgment of the High Court, Accra, convicting the Accused/Appellant (hereinafter called “the Appellant”) of the charges of Importation of Narcotic Drug without license issued by the Minister of Health and Possession of Narcotic Drug Without Lawful Authority contrary to sections 1(1) and 2(1) of the Narcotic Drugs (Control, Enforcement & Sanctions) Act 1990 PNDCL 236. Background The facts of this case as recounted by the trial Judge are that on the 18th of April 2018, the Appellant, traveling on a Ghanaian passport with Passport Number G2003857 disembarked from South African Airlines flight number SA 209. Following his disembarkation, the Appellant was confronted by officials from the Narcotics Control Board (NACOB) who asked him to identify his luggage. The Appellant is said to have picked a blue bag with his name on the tags. Following this, the officials from NACOB conducted a search on the Appellant’s possessions during which substances suspected to be narcotic drugs were found to have been concealed in false compartments of the bag. The substances were tested and tests revealed that the substances were the controlled substances cocaine and heroin. The Appellant is said to have alleged that one Rashid, a car dealer, secured a visa for him, paid for his travel, gave him money for his upkeep while in South Africa. While in South Africa, the Accused alleges that he was approached by a friend of the said Rashid, who gave him the blue bag to hand over to Rashid upon his return to Accra. According to the Appellant, he then packed his belongings into the blue bag. The Appellant denied knowledge of the contents of the bag. Following trial, the High Court found that the prosecution had satisfied the evidentiary burden and convicted the Appellant on both counts. On the first count, the Appellant was sentenced to twelve (12) years imprisonment with hard labour and on the second count, the Appellant was sentenced to pay a fine of 400 penalty units or serve twelve (12) months in prison. Grounds of Appeal According to the notice of criminal appeal filed pursuant to leave granted by this Court on 20th September, 2021, the grounds for this appeal are as reproduced below: a. The Judgment delivered on the 11th March 2021 [sic] was against the weight of evidence. b. The learned trial judge erred in law when she convicted the Accused Person based on evidence that had been tempered [sic] with. c. The learned trial Judge erred in law when she convicted the Accused Person especially when the prosecution had failed to prove their case beyond reasonable doubt. d. The sentence is harsh and excessive. The Appellant thus sought the following reliefs from this Honourable Court; a. An Order of the Court setting aside the Judgment of her Ladyship Justice Mary N. E. Nsenkyire (Mrs.) dated 11th March 2021. b. Any further order or orders as this Honourable Court would deem fit in the circumstances. Arguments of the Appellant After a summary of the facts of the case, counsel for the Appellant argued grounds 1, 2 and 3 together. On those grounds, counsel for the Appellant restated the law on the prosecutorial burden in criminal trials. Counsel for the Appellant cited the cases of Eric Asante v. The Republic (Criminal Appeal No. J3/7/2013) judgment delivered on 26th January 2017 and Patrick Mordo v. The Republic (Criminal Appeal No. H2/10/19) delivered on 30th April 2019 in his restatement of the law. Counsel for the Appellant then averred that in order to establish the guilt of the Appellant with regards to the first count (importation of narcotics without a license from the Minister), the Prosecution was under an obligation to prove what they describe as “three essential elements” of the offence. The said elements are reproduced verbatim below: I. That the Appellant imported substances which are narcotics into the country. II. That the Appellant knew the nature and quality of the said substances to be in the nature of narcotic drugs. III. That the Appellant did so without licence issued by the Minister responsible for health Counsel for the Appellant then went on to contend that the learned High Court Justice erroneously found that the substances found on the Appellant were found to be or had tested positively as cocaine and heroin when according to Counsel for the Appellant there was not sufficient evidence to establish that assertion. Counsel for the Appellant further argued that the trial court erroneously relied on the evidence of the Prosecution’s PW1, NACOB officer Victoria Imoru and that “the trial judge failed to consider that the Appellant did not import narcotic drugs into the country as the Appellant maintained throughout the trial.” Counsel for the Appellant went on to refer to various parts of the record where the Appellant denied having knowledge of the substances found in his bag. Further, counsel for the Appellant went on to say that the prosecution’s witness contradicted themselves on the issue of the time the substances were found on the Appellant. Counsel for the Appellant then reproduces copious portions of the cross-examinations of PW1 and PW2 saying that they contradict where and when the Appellant was searched. The Appellant says that while PW1 says that the search was conducted on the table where the baggage was retrieved, PW2 says the search continued when they moved into another room. It is also asserted that the witnesses contradicted themselves when talking about the false compartments in the Appellant's bag, and where the field tests on the substances were done. Counsel for the Appellant also argues that the honourable trial Court erred when it relied on the charge and caution statements (Exhibits A & B respectively) in finding that the Appellant lacked credibility. According to Counsel for the Appellant, the statements are inadmissible because the Appellant’s statements were spoken by him in Twi but recorded in English. According to the Counsel for the Appellant, the lack of a statement certifying that the statements were read to the Appellant in a language he speaks and understands, and the lack of the signature of an independent witness renders both Exhibits A & B inadmissible. The Appellant argues that it is irrelevant that counsel for the Appellant was present when the statement was taken. On the second count (possession without authority contrary to section 2(1) of PNDCL 236), Counsel for the Appellant says that the elements needed to establish the charge can be found in the cases of Bonsu @ Benjilo v. The Republic [2000] SCGLR 112 and Ellis Tamakloe vs. The Republic [2011] 1 SCGLR 29 Law and Analysis The Supreme Court in the case of Faisal Mohammed Akilu v The Republic; Criminal Appeal No. J3/8/2013 dated 5th July 2017 stated as follows; “... the principle in criminal trials is that; all reasonable doubts that make the mind of the court uncertain about the guilt of the accused are always resolved in favour of the accused. By reasonable doubt is not meant mere shadow of doubt. Where, from the totality of the evidence before a trial court, a soliloquy of; ‘should I convict’, or ‘should I acquit’ takes control of the mind of the court, then a reasonable doubt has been raised about the guilt of the accused. The appropriate thing to do, in such a situation, is to acquit, as required by law.” Could it be said that the submissions of the Appellant introduced sufficient doubt to the findings of the lower court which warrant the exercise of this Court’s power as an appellate court to overturn the decision of the lower court? Our answer is in the negative. While there are some contradictions in the testimony of the witnesses, none are sufficient to establish reasonable doubt about the guilt of the Appellant. This honourable Court is also of the view that even if Exhibits A & B (the charge and caution statements respectively) were excluded from conclusion, the unimpeached evidence points overwhelmingly to the fact that the Appellant was caught importing narcotic substances which he had no statutory license to carry or transport. His mere assertions that he had nothing to do with the substances being on his person are not sufficient to rebut the presumptions raised by the circumstances. While the Appellant claimed not to have knowledge of the false compartments or the substances, what the Appellant did not aver was that the substances were not cocaine or heroin, a position counsel for the Appellant seems to be attempting to make belatedly. Thus, in our considered view, the Appellant’s attempts to raise reasonable doubts to challenge the conviction fall short of what is required by law. In response to the assertions by Counsel for the Appellant that the burden of proof had prematurely or unlawfully been shifted to the Appellant to show that he had license from the Minister of Health to possess and transport the substances that were found on him, this Court would like to reproduce in extenso, with approval the ruling of the Supreme Court in an application for review brought before it in the case of Tamakloe vrs Republic (J7A/1/2010) [2011] (20 January 2011) wherein the erudite Atugubah JSC stated as follows; “As to the applicant’s counsel’s contention that the onus of proof has been unconstitutionally shifted to an accused person with regard to the requirement of lawful authority for the possession of a narcotic drug, we disagree. It is a fair onus since certainly the obtention of such authority would have been in the knowledge and possession of the accused person and in any event, it is trite law that its discharge is far easier than the discharge of any onus on the prosecution. As Edward Wiredu J. (as he then was) said in Donkor v. The Republic (1974) 2 GLR 254 at 258 “where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is a sine qua non to securing conviction. Unless the same statute places a particular burden on the accused, the fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly: see Woolmington v Director of Public Prosecutions [1935] A. C. 462 per Viscount Sankey L. C. at pp. 481-482, H. L. and R. V Abraham [1973] 3 All E. R. 694, C. A.”. In any case if the appellant had lawful excuse for possessing the narcotic drug it is incomprehensible that he should take all the pains to ensure the anonymity of the consignor or sender of this parcel or of himself.” (Emphasis supplied). In the considered view of this Honourable Court, the evidence led before the Court below was sufficient to find that Appellant was in possession of controlled substances. Thus, the Court below was also correct to request evidence of a license from the Minister of Health, without which the Appellant would not have been found to have possessed and imported the substances unlawfully. This was the case in this instant appeal and thus we uphold the conviction of the Appellant. On the issue of the sentence given the Appellant on conviction, Counsel for the Appellant contends that the sentence was too harsh, and that a number of mitigating factors which ought to have been settled in the favour of the Appellant were not. In Kwashie v The Republic (1971) 1 GLR 488, the Honourable Court, in an exposition on the harshness or otherwise of a sentencing, stated as follows: “In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” In the case of Banahene Vrs. Republic (J3/02/2019) (Judgment on 3rd July 2019) Adinyira (Mrs.) JSC, in an analysis of the factors to be considered by a court when sentencing a person convicted of charges by a Court, stated thus: “As a principle, sentencing is a matter of discretion for the trial court and an appellate court will only interfere when in its opinion the sentence is manifestly excessive having regard to the circumstances of the case or that the sentence was wrong in principle. See Apaloo v The Republic [1975] 1GLR 156. Factors that a court considers in determining the length of sentence include: 1. Any period of time spent in lawful custody in respect of that offence before the completion of his trial [Article 14 (4) of the Constitution, [1992] 2. The intrinsic seriousness of the offence. 3. The degree of revulsion felt by law abiding citizens of the society for the particular crime. 4. The premeditation with which the crime was committed. 5. The prevalence of the crime within the particular locality where the offence took place, or in the country generally. 6. The sudden increase in the incidence of the particular crime. 7. Mitigating circumstances such as the extreme youth, good character, remorse and reparation 8. Aggravating circumstances such as the violence or the manner in which the crime was committed.” See also the cases of Frimpong @Iboman v Republic supra, Adu-Boahene v The Republic [1972] 1 GLR 70, CA and Kamil v The Republic [2011] SCGLR 300. This Court is of the view that there is considerable evidence that the Honourable High Court did consider these factors in deciding on a befitting sentence for the Appellant. Particularly on page 185 of the record, the evidence shows that the trial court Judge was quite thoughtful in the sentencing decision and even considered the time spent by the Appellant on remand, as well as some of the other factors stated above in the Banahene case supra. As such, this Court finds that the sentence passed on the Appellant by the lower court ought not to be disturbed and refuses to intervene in that regard. In whole, this appeal lacks merit and is dismissed in its entirety. JANAPARE BARTELS-KODWO (MRS.) [JUSTICE OF APPEAL] (Sgd.) (Sgd.) Poku-Acheampong, (J. A.) I agree ALEX B. POKU-ACHEAMPONG [JUSTICE OF APPEAL] (Sgd.) Koranteng, (J. A.) I also agree CYRA PAMELA C. A. KORANTENG (MRS.) [JUSTICE OF APPEAL] COUNSEL: ➢ Emmanuel Murray for Appellant ➢ Dorcas Felli (SSA) for Republic/Respondent 10