Republic Vrs Damoah and Another (B18/26/2022) [2023] GHACC 967 (24 October 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 24TH OCTOBER 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B18/26/2022 THE REPUBLIC VS 1. EMMANUEL DAMOAH 2. GEORGE DORMAN ACCUSED PERSON PRESENT DETECTIVE CHIEF INSPECTOR PETER SADAARI FOR PROSECUTION, PRESENT INTRODUCTION JUDGMENT Accused persons herein were arraigned before this Court charged as follows, as written on the charge sheet herein: COUNT 1 STATEMENT OF OFFENCE POSSESSING NARCOTIC DRUGS: CONTRARY TO SECTION 2(1) OF PNDC LAW 239/90[sic] PARTICULARS OF OFFENCE EMMANUEL DAMOAH, 21 YEARS, MASON APPRENTICE: For that you on the 30th day of July, 2019, at Nkontumso, in the Central Circuit Court and within the jurisidiction of this Court did have in your possession a hand bag containing sixty-six wraps of dried plant material suspected to be prohibited narcotic drug-cannabis without authority. COUNT 2 STATEMENT OF OFFENCE ABETMENT OF CRIME TO WIT:- POSSESSING NARCOTIC DRUG: CONTRARY TO SECTION 20(1) OF ACT 29/60 AND SECTION 2(1) OF PNDC LAW 236/90[sic]. PARTICULARS OF OFFENCE GEORGE DORMAN, 29 YEARS, BARBER: For that you on the 30th day of July, 2019, at Nkontumso, in the Central Circuit court and within the jurisdiction of this court did aid and abet one Emmanuel Damoah to commit crime to wit; possessing narcotic drug without authority. Section 2 of PNDC LAW 236 states: (1) Any person who, without lawful authority, proof of which shall be on him, has in his possession or under his control any narcotic drug commits an offence. (2) Any person found guilty of an offence under subsection (1) shall on conviction be liable to imprisonment for a term of not less than ten years. Section 20 of Act 29 states: (1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime. (2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime. It is worth noting that before Act 1019 – the current operative law on narcotic offences came into being, the law governing narcotic offences PNDC LAW 236. To give enough information to the court and accused in fulfilment of section 171 of Act, the prosecution attached a document to the charge sheet and read it in court as the facts based on which they charged Accused persons. The following is what the prosecution read to the court: “The complainant Nana Obeng Manu is the Sompahene of Nkotumso. The accused persons...are mason apprentice and barber respectively and both reside at nkotumso. On 30th July, 2019 at about 3:30pm, the complainant accompanied by three others arrested and brought to the Ayanfuri Police station A1 together with the sixty-six wraps of cannabis and lodge[sic] a complaint that A1 was seen selling the sixty-six wraps of cannabis as such needed Police action. A1 was re-arrested and the sixty-six wraps of cannabis retained. During investigations, A1 admitted the offence and mentioned A2 as the one who gave the sixty-six wraps of cannabis to him to be sold for him. A2 was subsequently arrested and a search [was] conducted in his place of work and [his] house but found nothing incriminating[nothing incriminating was found]. However, A1 further led the Police to a spot in the bush at the outskirts of Nkotumso being the cannabis sales point of A2, where a parcel of compressed cannabis was retrieved. The exhibit to wit; sixty-six wraps and the compressed cannabis were parcelled and sealed in the presences[sic] of both accused persons and same sent to the Police Forensic Science Laboratory for testing. The Laboratory test report confirmed the exhibits as cannabis. The accused persons were accordingly charged with the offences as stated in the charge sheet.” The accused persons pleaded Not Guilty to the charge they are facing. The prosecution, therefore, called three people to testify as the witnesses for the prosecution. The first to testify was referred to as PW1. The next was PW2 and the last was PW3. The third prosecution witness said he was the investigator herein. The second said he was Nana Obeng Manu. PW1 said he was General Sergeant Prosper Chris Azumah. PROSECUTION’S CASE Testimony of PW1 ... 4. On 30th July, 2019 I was on duty at the charge office as counter N. C. O. 5. on same day at about 3:00pm I was at the Charge Office when complainant Nana Obeng Manu and three others arrested and brought to the charge office 6. Accused was interrogated at the charge office and he mentioned one George Dorman of Nkotumso as the one who gave the sixty-six wraps and the parcel of cannabis to him to be sold for him. 7. On same day myself, D/Insp. Anthony Masak, D/Insp. Peter Sadaari, CPA Edward Nyame Boame and accused … in a pair [of] handcuffs left for Nkotumso and we arrested George Dorman at his barbering shop. 8. Myself, D/Insp. Anthony Masak, D/Insp. Peter Sadaari, CPA Edward Nyame Boame searched second accused persons[sic] shop and his place of residence but did not find anything incriminating. 9. F irst accused further led us into a nearby bush where we retrieved a compressed parcel of cannabis but told us that it belonged to second accused. PW2’S Testimony According to PW2, on 30th July, 2019 he and one Paul Boakye aka Yaw Enin arrested the first accused with sixty-six wraps of cannabis and sent him to Ayanfuri Police station. First Accused mentioned Second Accused person as the one who gave him the said substance for him(first accused) to sell. First Accused and the police and PW2 went to a nearby bush at Denkyira Nkotumso and he(PW2) and the Police retrieved one slab of compressed cannabis. PW3’s Evidence On 30th July 2019, this case was referred to him for investigation and he was handed a black and white hand bag. He searched through the bag and found sixty-six wraps of cannabis and a pair of scissors. He the obtained a statement from PW2 and one Paul Boakye aka Yaw Enin. He obtained statements from each Accused on caution for the purposes of the investigation he was conducting. 1st Accused led the Police to a nearby bush at Nkotumso and a compressed parcel of cannabis was retrieved and same retained. Pw3 sealed the exhibits to wit: sixty-six wraps and one compressed parcel of cannabis in the presence of Accused persons and PW3 sent the said exhibits to the police forensic lab in Accra for testing. The lab test result proved positive. PW3 sought to tender in evidence a document he said contained the investigation cautioned statement of 1st Accused; upon objection by 1st Accused that document was rejected after a minii trial marked R1. 2nd Accused did not raise objection to the tendering of the document that PW3 said contained his(2nd Accused’s) investigation cautioned statement; It was admitted in evidence and marked Exhibit A. the statement in Exhibit A that PW3 attributes to 2nd Accused reads: “I am a barber by profession and I have my barbering shop at Nkotumso. On 30/07/2019 it was a Tuesday and I was at my barbering saloon[sic] when the suspect Emmanuel Damoah came with Policemen into my shop and told me that they have[sic] arrested the suspect with ‘wee’ and that the suspect has[sic] informed the Police that I have[sic] given him the wee which is also known as Indian Hemp to sell. I have not given the suspect any Indian Hemp or wee to sell for me. It is a false allegation that the suspect is making and framing on me. I am a barber and I don’t trade in narcotics.” In a document marked Exhibit B that PW3 tendered in evidence as containing the charged cautioned statement of 2nd Accused, 2nd Accused is said to have to have relied on his earlier statement given to the Police on 31st July 2019. By way of further evidence, PW3 stated: “I have in my hands a sealed envelope containing sixty-six wraps and one compressed cannabis which I referred to in paragraph 10 of my witness statement I would like to tender it in evidence.” The Court noted the following: “The investigator ie PW3 opened the parcel and counted the wraps and they weresixty-six. There was something inside the parcel that PW3 says is the compressed cannabis” 1st Accused then stated: “I object. Because I know nothing about those items.” 2nd Accused raised no objection to the tendering in evidence of the said parcel and its contents. The Court then ruled: “The said parcel of brown envelope with sixty-six wraps and the said compressed item inside is admitted in evidence and the brown envelope is marked Exhibit C” A CASE TO ANSWER After the prosecution had closed their case, the court found that Accused persons had a case to answer on the charge they are facing. The Court referred Accused persons to section 63 of the Evidence Act, 1975(NRCD 323), section 174(1) of the Criminal and Other Offences(Procedure) Act, 1960(Act 30) as well as Article 19(10) of the Constitution, 1992. 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. 1st Accused person chose not to say anything. See Article 19(10) of the Constitution supra. 2nd Accused chose to testify from the witness box. 2nd ACCUSED PERSON’S TESTIMONY On 30th July 2019, 2nd Accused was at his barbering shop at Nkotumso. Whilst there working, 1st Accused came there with Police Officers at about 04:00pm. 2nd Accused denied being the one who gave the substances the prosecution is referring to, to 1st Accused. 1st Accused used to sell a substance known in local parlance as “wee”. The police arrested him some time ago and so he(2nd Accused) stopped that trade. Afterwards, 2nd Accused went into operating a barbering shop. On 30th July 2019, 1st Accused came to where he(2nd Accused) and 1st Accused lived and showed him(2nd Accused) the substance that the prosecution is referring to. Which is known as “wee”. 2nd Accused asked 1st Accused why he was into that trade because the chief and elders had cautioned them the youth not to engage in that trade and that ever since the police arrested him(2nd Accused) as regards that trade, he(2nd Accused) had stopped that trade. 2nd Accused then asked 1st Accused why he had brought those substances home and 1st Accused told 2nd Accused that he(1st Accused) was going to sell them. Later that day, PW1 was in his barbering shop when 1st Accused came with the police and arrested him(2nd Accused). ANALYSIS In Oteng v The State[1966] GLR 352@ 354, SC, Ollennu JSC stated: “One significant respect in which our criminal law differs from our civil law is that, while in civil law a plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain conviction upon mere probabilities.” This principle found space in the Evidence Act of 1975 i.e. NRCD 323, in section 13(1), to wit: In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. See also Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 138 and Fenuku v John-Teye [2001-2002] SCGLR 985 As there is no statement from the police that is attributed to 1st Accused before the court and 1st Accused also chose not to say anything in his defence, any information by 1st Accused as regards this case may be gathered from the cross-examinations he did. The following is the cross-examination first Accused did of the various Prosecution witnesses: Of PW2: Q. Do you remember that when you came to arrest me. I was roasting corn. A. You were not roasting the corn. It was a certain woman who was roasting the corn and you were standing by the corn being roasted and had a bag hanging on your shoulder and the substances were inside. Q. I put it to you that the bag was not hanging on my shoulder. It was on the ground and you took the bag from the ground and held me and the other person who was with you took the bag from the ground and the two of you put the bag around my neck. A. It is not true. The bag was on your shoulder when we got to you. Q. I put it to you that it is not true that I led you and the police to a nearby bush to retrieve anything. A. I still insist that you led us to the bush to retrieve the substance. Q. You are not being truthful to the Court. A. I am being truthful to the Court. Of PW1: Q. What is the proof that I led you to the bush for you to retrieve a compressed parcel of cannabis. A. You led me and other police officers to the bush and they can attest to that. Q. Do you have any pictorial evidence ie any photograph or video to show that I led you to the bush. A. No. But after the exhibit was retrieved, we took photograph of it. Q. Did that picture you are referring to capture me as holding the item. A. No. Of PW3: Q. When I was arrested, was any photograph taken of me as evidence that the said items belong to me. A. I did not take picture of you but the complainant gave a statement that he arrested you together with the said items. Q. Did the complainant take any photograph of me showing that I was in possession of those items. A. No. Complainant did not give me any such picture. Ollennu J(as he then was) in Majolagbe v. Larbi [1959] GLR 190 made reference to a dictum he gave earlier in Khoury and Anor v Richter which judgment was delivered on 8th December, 1958, as regards proof in law. That dictum has been referred to with approval in Klutse v. Nelson (1965)GLR 537 @ 542 and also Baah Ltd v. Saleh Brothers [1971] 1GLR 119. It is: "'Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true'." 1st Accused sought to put the prosecution to strict proof to establish their case that he so possessed those substances and also that he led the police to retrieve any other substance. Indeed and in fact the police did not provide any further evidence on that apart from words. PW1 mentioned a team of police officers that went with 1st Accused to retrieve the said parcel of compressed substance- the list did not include the investigator her – Corporal Samuel Aboagye Danso. When PW3 testified, he only said the A1 led the police to… I find that the investigator did not go with 1st Accused to retrieve anything; if the police went with 1st Accused to seek to retrieve anything at all. I also find that PW3 right from the onset had a prejudicial mindset. For he stated that the bag contained cannabis when he was yet to send those substances to the forensic lab for them to be tested for a determination as to what substances they were. In Ackah v. Pergah Transport Limited and Others[2010] SCGLR 728; Sophia Adinyira JSC stated at page 736 that: “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].” 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. 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. 2nd Accused in Exhibit A, denied any knowledge of the said substances. However, in his testimony before the court, he talked about his history as someone who engaged in the illicit trade of selling narcotic substances. He said after a stern warning by the chiefs of his area, he stopped. The question is can that history 2nd Accused gave be taken as a confirmation that it is 2nd Accused who gave the substance in wraps to 1st Accused and that the compressed substance belong to 2nd Accused?The case in point is about the sixty-six wraps of substance and the compressed substance and no other. The history 2nd Accused gave is a story and not evidence stricto sensu. Those items he claimed he sold were not put in evidence and therefore that story that form part of the testimony of 2nd Accused before the court cannot be taken buttressing any claim that 2nd Accused did give the substance in the wraps to 1st Accused and that 2nd Accused did own the compressed substance. The document the police said contained the investigation cautioned statement of 1st Accused was rejected as evidence and 1st Accused did not testify nor did he give any statement in court at all in his defence. Therefore, any evidence that the prosecution may want to rely on as the basis to hold 2nd Accused liable for the crime in count two of the charge sheet has been obliterated. Section 14 of the Evidence Act, 1975(NRCD 323) states: 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 NRCD323 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 states: (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 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. When 2nd Accused cross-examined PW1, the following came up: Q. When A1 was arrested where were you. A. I was at the charge office’ I was on duty there. Q. You stated that you searched my shop and my residence and found nothing, why then I have been charged. A. I am a witness in this case, I am not the investigator. 2nd Accused did not cross-examine both PW2 and PW3. It was held in Commissioner of Police v. Isaac Antwi[1961] GLR 408 SC, per Korsah CJ that: “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.” Though 1st Accused did not testify and did not give any statement in his defence, he sought to raise doubts as regards Prosecution’s case by the cross-examination he did. Answers given to the questions of 1st Accused during the cross-examination were not clear-cut to lead to the conclusion that the said accused was culpable, without the statement the prosecution claimed they took from 1st Accused for investigations which was rejected as evidence supra. 2nd Accused denied giving the substance in wraps to 1st Accused and also denied knowledge of the compressed substance, as stated above. CONCLUSION In Dexter Johnson v. The Republic [2011] 2 SCGLR 601 @ 663 Dotse JSC referred to Lord Viscount Sankey’s statement in Woolmington v. DPP [1935] AC 462, as follows: “Throughout the web of the English Criminal law, the golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…if at the end of, and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where 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.” I hold that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt as required of them by law. Therefore, 1st Accused is acquitted on Count one and 2nd Accused is acquitted on Count two. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 24/10/2023 15