Republic Vrs Kesse [2023] GHACC 182 (18 May 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 18TH MAY 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B18/03/2023 THE REPUBLIC VS NANA YAW AMOFA KESSE ACCUSED PERSON PRESENT DETECTIVE CHIEF INSPECTOR PETER SADAARI FOR PROSECUTION, PRESENT JUDGMENT Accused person was arraigned before this court charged with the offence of “POSSESSION OF NARCOTIC DRUG WITHOUT LAWFUL AUTHORITY” in accordance with section 37(1) of Narcotics Control Commission Act, 2020(Act 1019). Section 37(1) of Act 1019 deals with unlawful possession or control of narcotic drugs. It states: (1) A person who, without lawful authority, proof of which lies on that person, has possession or control of a narcotic drug for use or for trafficking commits an offence. (2) A person who commits an offence in subsection (1) (a) for use is liable on summary conviction to a fine imposed in accordance with the penalty specified in the Second Schedule and an additional term of imprisonment specified in that Schedule if the fine is not paid; (b) for trafficking is liable on summary conviction to the fine and imprisonment specified in the Second Schedule and an additional term of imprisonment specified in that Schedule if the fine is not paid. According the second schedule of Act 1019, a person convicted in line section 37(2)(a) of Act 1019 is liable to pay a fine on not less than two hundred penalty units and not more than five hundred penalty units and that if that person is not able to pay the fine then that person will serve a prison term of not more than fifteen months. According to the second schedule, a person convicted in line with section 37(2(b) of Act 1019, is liable to pay a fine of not less than ten thousand penalty units and not more than twenty- five thousand penalty units in addition to a prison term of not less than ten years and not more than twenty-five years imprisonment and if that person is not able to pay the fine then that person will serve additional three years imprisonment. The police prosecution gave the particulars of the offence as: “NANA YAW AMOFAH KESSE, 22YEARS, TRADER: For that you on 09/01/2022 at about 4:00pm at Dunkwa Mfuom in the Central Circuit and within the jurisdiction of this court did have in your possession 27 wraps of Indian hemp(cannabis) without lawful authority.” The following are the facts that the prosecution said they gathered to inform their decision to charge the accused herein for the said offence: “The complainant is the Dunkwa-On-Offin Police Command. The accused...is a trader and lives at Mfuom, a suburb of Dunkwa-On-Offin. On 09/01/2022 at about 4:00pm, No. 40391 G/SGT George Kwasi Baah in charge the Dunkwa-On-Offin Divisional Police Patrol team were on Patrol duty when they gathered intelligence that the accused was selling cannabis at his business place at Mfuom. The Police proceeded to the business place of the accused and arrested him. A search was conducted in a bag which was being hanged[sic] on the accused shoulders[sic] and found[sic] 27 wraps of Indian hemp(cannabis). An amount of GH¢1, 150.00 suspected to be the proceed[sic] from the sale of Indian hemp was also retrieved from the said bag. The 27 wraps of Indian hemp was sealed in the presence of the accused and same forwarded to Police Forensic Science Laboratory, Accra for testing. They tested positive of cannabis. Therefore, the accused was charged with the offence as stated in the charge sheet.” The prosecution is enjoined by law to prove the facts above by producing adequate evidence to seek to convince the court that the accused is guilty of the offence he has been charged with. Section 11 of NRCD 323 defines “Burden of Producing Evidence” and states further as follows: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. (3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Section 10(1) of NRCD 323 defines “Burden of Persuasion” and it states: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10(2) of the Evidence Act adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non- existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. The prosecution called one witness – the case officer or investigator herein. It was held in Kru v. Saoud Bros & Sons [1975] 1GLR 46, CA at page 48 per Apaloo JA that: “In so far as the issue involves the sufficiency of proof, the accepted statement of the common law is: "As a general rule, courts may act on the testimony of a single witness, even though uncorroborated; or upon duly proved documentary evidence without such testimony at all. And where the testimony is unimpeached, they should act on it and need not leave its credit to the jury."” The learned judge making reference to Ayiwa v. Badu [1963] 1 G. L. R. 86, S. C.; Republic v. Asafu- Adjaye (No. 2), Court of Appeal, 1 July 1968, unreported; digested in (1968) C. C. 106 and Commissioner of Police v. Kwashie (1953) 14 W. A. C. A. 319, further stated also at page 48 that: “...judicial decisions depend on intelligence and credit not the multiplicity of witnesses produced at the trial.” In Logos & Lumber Ltd v. Oppong [1977] 2 GLR 263, CA, it was held that a court could act on the testimony of a single witness provided that: (i)He was an honest witness; (ii) There was nothing in his background to cast doubt on his veracity; (iii)He had no motive to misrepresent facts or be biased; and (iv)His evidence was in no way tainted, i.e. he was not an accomplice. According to the prosecution witness [to be subsequently referred to in this judgment as PW], this case was referred to him for investigations on 09th January 2022. A small bag and cash the sum of GH¢1150.00 and Accused were handed to him. PW searched that small bag in the presence of the accused person and in that bag were 27 wraps of some plant materials which PW suspected to be Indian hemp. Also, in that bag was cash the sum of GH¢1,150.00. PW proceeded to obtain statements from No. G/Sgt George Kwasi Baah and No. 47782 G/Cpl Ansu-Yeboah Kwadwo who were part of the team of police officers that arrested Accused. He also obtained statement from Accused person for the purposes of investigation. PW, led by the above-mentioned arresting officers and two other members of the arresting team, visited the alleged crime scene, at Dunkwa Nfuom[sic]. There, Accused showed PW a wooden structure and said he sold footwear on it. Accused then admitted at that place that the above- mentioned items were with him at the time of his arrest. Accused then said the Indian hemp was for his personal use i.e., for smoking. The 27 wraps of Indian hemp were sealed in the presence of Accused and an independent witness and same was forwarded to the Forensic Science Laboratory in Accra for testing. The test result came in as positive. PW tendered in evidence the test report. Superintendent M. Agyepong, the personnel who conducted the test, gave his conclusion as: “The Exhibit plant material was Cannabis” I wonder the use of the verb “was”. We want to know what kind of substance is in issue. The conclusion therefore ought to be what it is and not what it was (at the time of testing). PW also tendered in evidence what he said was the investigation cautioned statement of Accused. It was not objected to by the then Counsel for Accused, Kwame Boaitey Adutwum. It was marked Exhibit A. The following is the statement Accused gave: “Today 09/01/2022 at about 4:00pm I was selling my foot wares[sic] at Mfuom last stop. A team of Police men numbering four approached me and they told me they want[sic] to buy some of the foot wares[sic]. I was holding my small bag and the Policemen took the bag from me and searched it. They asked me what was in the bag, one of the Policemen started to search the bag and they found twenty-seven wraps of dried leaves suspected to be Indian hemp and cash sum of GH¢1150.00. The dried leaves were supplied to me by one Alaska who stays at Obuasi. I am not selling the Indian hemp but I smoke it myself. The GH¢1150.00 is from the sales of my foot wares[sic]. As at now I do not have the necessary documents or permit that allows me to possess or smoke the Indian hemp or the dried leaves suspected to be Indian hemp.” The Court found on the evidence adduced by the prosecution that a case had been made out against Accused to require him to open his defence. See section 173 of the Criminal and Other Offences(Procedure) Act, 1960(Act 30). The court then proceeded to explain section 174(1) of Act 30/ section 63 of NRCD 323 vis-a-vis Article 19 (10) of the Constitution, 1992 to Accused. Section 174(1) of Act 30: At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence. Section 63 of NRCD 323 states: (1) An accused in a criminal action may make a statement in his own defence without first taking an oath or affirmation that he will testify truthfully and without being subject to the examination of all parties to the action. (2) Such a statement by an accused is admissible to the same extent as if it had been made under oath or affirmation and subject to examination in accordance with sections 61 and 62. (3) The fact that the evidence was given without oath or affirmation, or that there was no possibility of examination, may be considered in ascertaining the weight and credibility of the statement, and may be the subject of comment by the court, the prosecution or the defence. Article 19(10) of the Constitution, 1992 states: No person who is tried for a criminal offence shall be compelled to give evidence. Accused chose to give a statement from the dock. He stated: “When the police came to arrest me at where I was selling footwear, the items which the police claim that they found on me were not on me. What I had on me at that time were money and footwear stickers. The bag that the police tendered in evidence saying they found it on me, they did not find it on me and same does not belong to me” Section 80 of the Evidence Act, 1975(NRCD 323) states: (1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial. (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following: (a) the demeanour of the witness; (b) the substance of the testimony; (c) the existence or non-existence of any fact testified to by the witness; (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; (e) the existence or non-existence of bias, interest or other motive; (f) the character of the witness as to traits of honesty or truthfulness or their opposites; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) the statement of the witness admitting untruthfulness or asserting truthfulness. In Ntiri v. Essien [2001-2002] SCGLR 451, it was held that the trial judge has the duty to ascertain credibility of a witness. I find that the statement accused gave from the dock is an afterthought. Accused was clear in Exhibit A that he had possession of the said dried plant materials but that they were for his personal use. Accused is therefore not being credible. In Commissioner of Police v. Isaac Antwi , Korsah CJ stated: “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.” Section 14 of NRCD 323 allocates the Burden of Persuasion as: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. Section 15(1) of NRCD 323 states: Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue. Section 17 of NRCD 323 allocates the Burden of Producing Evidence as: (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. (2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. Section 22 of NRCD 323 states: In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact. PW, in his witness statement which got metamorphosed into his evidence-in-chief, stated the following in paragraph 13, inter alia, that: “Investigations revealed that accused...trades in narcotic drug together with foot wares...” It is worth noting that the prosecution charged Accused under section 37 of Act 1019 and not section 38. Section 38 of Act 1019 is on ‘Prohibited business relating to narcotic drugs’. PW is not one of the arresting officers; he based his conclusion that Accused was selling the dried plant materials on the accounts of the arresting officers. Whilst PW was under cross- examination, the following transpired between him and the then Counsel of Accused: “Q. Were you with the arresting team at the time of the arrest of Accused person. A. No. Q. So I will be right to say that you did not see all the items found on Accused at the time of his arrest. A. Yes.” Whatever the arresting officers said to PW are hearsay. There are a whole lot of rules as regards hearsay in the Evidence Act supra. Section 116(c) and (d) of NRCD 323 state the following concerning “hearsay”: (c) "hearsay evidence" is 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; (d) a "hearsay statement" is a statement evidence of which is hearsay evidence; Section 116(a) and (b) give the following definitions: (a) a "statement" is an oral or written expression, or conduct of a person intended by him as a substitute for oral or written expression; (b) a "declarant" is a person who makes a statement; Further in section 116 of NRCD 323, the following is provided: (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 his statement is relevant; or (ii) disqualified as a witness from testifying to the matter; or (iii) dead or unable to attend or 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 his attendance by its process; or (v) absent from the trial and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court's process; or, (vi) in such a position that he cannot reasonably be expected in the circumstances (including the lapse of time since the statement was made) to have any recollection of matters relevant to determining the accuracy of the statement in question. (f) "available as a witness" means that the declarant is not unavailable as a witness. Section 117 of NRCD 323 states: “Hearsay evidence is not admissible except as otherwise provided by this Decree or any other enactment or by agreement of the parties.” and Section 118(1) of NRCD 323 states: “Evidence of a hearsay statement is not made inadmissible by section 117 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 every other party of his 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. The prosecution failed to call any of the arresting officers to testify. I reject the notion that Accused was into the business of selling narcotics as same could not be proved. In Ackah v. Pergah Transport Limited and Ors[2010] SCGLR 728; Sophia Adinyira JSC made the following pronouncement at page 736 which is apt as regards proof in law: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable[sic] than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree[sic].” There was also no evidence to the effect that Accused was in anyway trafficking narcotic drugs. I therefore conclude that Accused had the said substances for his use. I hereby pronounce him guilty under section 37(2)(a) of Act 1019. Accused is sentenced to pay a fine of two hundred(200) penalty units and if he fails to pay the fine, he will serve a prison term of six(6) months in hard labour. The GH¢1150.00 should be handed to Accused. See section 145 of Act 30. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 18/05/2023 (SGD) 13