Republic Vrs Boadi (B18/06/2023) [2023] GHACC 969 (13 October 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 13TH OCTOBER 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B18/06/2023 THE REPUBLIC VS ERIC BOADI @ KWABENA ASANTE ACCUSED PERSON ABSENT DETECTIVE CHIEF INSPECTOR PETER SADAARI PRESENT, HOLDING THE BRIEF OF SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION INTRODUCTION JUDGMENT Accused person was arraigned before this court charged as follows: STATEMENT OF OFFENCE POSSESSION OF NARCOTIC DRUG WITHOUT ATHORITY[sic]: CONTRARY TO SECT. 38 of NARCOTICS CONTROL COMMISSION ACT 2020 ACT 1019 PARTICULARS OF OFFENCE ERIC BOADI @ KWABENA ASANTE GALAMSY WORKER AGED 32: For that you on 26/11/22 at about 6:30pm at Denkyira Gyaman in the Central Circuit and within the jurisdiction of this court, did have in your possession of[sic] 83 wraps [of] dried leaves to be indian hemp without lawful authority. Section 38 of Act 1019 states: (1) A person who without lawful authority, produces, processes, manufactures or distributes narcotic drugs commits an offence. (2) A person who without lawful authority sells, trades in, purchases, trafficks or undertakes an activity for the purpose of establishing or promoting an enterprise relating to narcotic drugs commits an offence. (3) A person who, without lawful authority, has possession or control of a machine, equipment, a tool, utensil or any other material or article for the production, processing, manufacturing, distribution, sale, administration or use of a narcotic drug commits an offence. (4) A person shall not with or without lawful authority, import, export or re-export the chemicals listed in the Seventh Schedule with the intention of diverting the chemicals for use or production as illicit precursors or narcotic drugs. (5) A person shall not use any substance for the processing or extraction of a synthetic or semi-synthetic drug without lawful authority. (6) A person who commits an offence under this section is liable on summary conviction to a fine and a term of imprisonment as specified in the Second Schedule. (7) The person shall serve the term of imprisonment specified in the fifth column of the Second Schedule if the fine is not paid. WHY WAS ACCUSED CHARGED? It was gathered by the investigative team that: 1. The Complainants are Police officers stationed at Dunkwa-On-Offin and were in a patrol team led by Sergeant George Kwasi Baah as the operational commander of the patrol team. 2. On 26th November 2022 at about 6:30pm, whilst the said patrol team were on their usual patrols at areas patronized by hardened criminals, got Accused arrested at Denkyira Gyaman whilst Accused had in his possession 83 wraps of dried leaves that were suspected by the patrol team to be Indian hemp. 3. Accused, in his investigation cautioned statement, admitted ownership of the dried leaves. PROSECUTION’S CASE Prosecution called two witnesses – the leader of the patrol team testified and he was referred to as PW1 and the investigator herein Detective Corporal Francis Essoun testified next and he was referred to as PW2. According to PW1, whilst they were on the patrols, they had information that Accused was selling narcotics in a certain house. They proceeded to the said house and met Accused there. A search was conducted in the room where Accused was met and the search revealed 83 wraps of dried leaves suspected to be Indian Hemp, one sachet of 100mg tramadol and a quantity of dried leaves commonly called “amnesia”. ANALYSIS According to PW2, Accused was arrested at about 7:15pm in his house at Denkyira Gyaman. But in the facts presented by the prosecution in support of the charge, it was stated that Accused was arrested at about 06:30pm. “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.” This is a dictum on a question of proof in law by Ollennu J(as he then was) in Khoury and Anor. v. Richter in a judgment he delivered on 08th December, 1958 which dictum he repeated in the case Majolagbe v. Larbi [1959] GLR 190. This dictum was referred to with aprroval in Klutse v. Nelson (1965)GLR 537 @ 542 and Baah Ltd v. Saleh Brothers [1971] 1GLR 119 @ 122. It must be stated that the facts attached to charge sheets are similar to pleadings in civil cases. What you pleaded is what you are enjoined by law to lead evidence on. Therefore, if you say one thing in the facts and you come and testify and say a different thing, you dent your case. In the facts Prosecution presented to the Court for the accused to plead to the charge, they stated that Accused was arrested at about 06:30pm but when the investigator testified, he stated that Accused was arrested at about 07:15pm. In civil cases, if you find out that there is a twist to your story or you made some mistakes in your pleadings, you make amendments to your pleadings. Similarly, in a criminal case, if you make similar detection, in your charge sheet and/or your facts, you make amendments or you substitute the charge sheet however the situation demands. In the particulars of offence on the charge sheet herein, Accused is said to have been in possession of the substances at about 06:30pm. I also find this lacuna in the prosecution’s case that the investigator apparently visited the scene and the arresting officers showed where Accused was arrested but the investigator did not tell the court the findings he made there as part of his investigations into the case that assisted him to make a conclusion on his investigations and to assist the court to make a determination on the case. Despite the mess as to the time Accused was arrested in the prosecution’s case and the other lacuna I talked about supra, I find that the prosecution largely proved their case by proper legal means. In Miller v. Minister of Pensions [1947] 2 All ER 372 @ 373, Denning J (as he then was) stated, inter alia, in analyzing proof beyond reasonable doubt, that: “… It need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” Accused failed to appear in court during the hearing when he had notice of that. Article 19(3)(a) of the Constitution, 1992 states: (3) The trial of a person charged with a criminal offence shall take place in his presence unless (a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial Thus Accused was not present in court to cross-examine the prosecution witnesses. Section 62(1) of NRCD 323 states: At the trial of an action, a witness can testify only if he is subject to the examination of all parties to the action, if they choose to attend and examine. Accused was also not present to open his defence so he may offer some sort of explanation in his defence. In Commissioner of Police v. Isaac Antwi[1961] GLR 408 SC, 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.” The learned judge continued, referring to Archbold's Criminal Pleading, (34th ed.) at p. 371, para. 1001, that: "Where the prosecution gives prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them." 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. 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. CONCLUSION I hold that the prosecution has succeeded in proving their case beyond reasonable doubt. I pronounce Accused guilty on the charge against him. Accused is hereby convicted accordingly. In the Second Schedule of Act 1019, it is provided that a person convicted on section 38 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 and not less than ten years and not more than twenty-five years imprisonment and if the person is not able to pay the fine the person will serve additional three years imprisonment. In sentencing Accused, I have considered the circumstances of the case and I find that the minimum punishment may be very high and so I will impose the minimum sentence on Accused. I sentence Accused to pay a fine of ten thousand penalty units; I also sentence Accused to ten(10)years imprisonment in hard labour. If Accused fails to pay the fine, he will serve additional three(3) years imprisonment in hard labour. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 13/10/2023 8