Andam Vrs. Republic (F22/29/2023) [2024] GHAHC 13 (12 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD IN CAPE COAST ON TUESDAY THE 12TH MARCH, 2024, BEFORE HIS LORDSHIP JUSTICE JOHN-MARK NUKU ALIFO “J” CRIMINAL APPEAL F22/29/2023 AKUA ANDAM APPELLANT VRS. THE REPUBLIC RESPONDENT ACCUSED APPELLANT: PRESENT FREDERICK K. ACQUAAH ESQ. HOLDING THE BRIEF FOR MICHAEL ARTHUR-DADZIE ESQ. FOR THE APPELLANT MIRIAM GYESIWAA SARPONG ESQ. ASP WITH SENA SENOO A.S.A AND LINDA TENKORANG ESQ. A.S.A FOR THE RESPONDENT JUDGMENT This appeal originates from the Ruling of the Circuit Court in Cape regarding primarily the admissibility of a confession statement in an ongoing criminal trial. Brief facts Page 1 of 14 The brief facts of the case are that the Accused and Appellant in this appeal who is standing trial for the offence of stealing contrary to Section 124 (1) of the Criminal Offenses Act 1960 (Act 29) is alleged to have volunteered statements to the Police amounting to a confession admitting to the offence in two Investigation Caution Statements labeled Exhibits “A1” & “A2” all dated 11th August, 2022. During the evidence-in-chief of the Police Investigator PW2 in whose presence the confession was volunteered, the Prosecution sought to tender the said exhibits in evidence to which Learned Counsel for the Accused robustly objected on the ground that an independent witness was absent during the recording of the confession statement amounting to a breach of Section 120 (2) & (3) of the Evidence Act, 1975 (NRCD 323). Upon considering the totality of the objection made by Counsel for the Accused, the Learned Trial Judge ordered a Mini-Trial to determine whether or not an Independent Witness was present when the statements of the Accused were taken in compliance with statutory requirements. At the close of the Mini-Trial, the Learned Trial Judge in her Ruling dated 5th June, 2023 found that an Independent witness was present and subsequently admitted into evidence Exhibits “A1” & “A2” being the Investigation Caution Statement and Further Investigation Caution Statement of the Appellant. Dissatisfied with the said Ruling, Appellant appeals to this Court on the following grounds: 1. That the Ruling by the Learned Trial Judge is not supported having regards to the evidence on record. 2. That Learned Trial Judge erred by Ruling that the Investigation Caution Statement was obtained in compliance with the law governing the procurement of a Confession Statement. Reliefs sought: Page 2 of 14 1. That the Ruling on the Mini-Trial be set aside as same is not supported by evidence on record and Rules governing the procurement of Confession Statement. 2. An order declaring the Investigation Caution Statement is inadmissible in evidence. Although the Notice of Appeal indicated that further grounds would be filed upon receipt of the Record of Appeal, no additional grounds were argued. The Appellant had previously on 16th May, 2023 filed a Notice of Appeal against the Ruling of the same trial court made on 18th April, 2023 admitting the Witness Statement of PW2 and Exhibits A1 and A2 despite learned Counsel’s objection that the witness statement was unsworn. Concerning Exhibits A1 & A2, Counsel for the Accused argued that whilst it is stated that the Accused gave her statement in the Twi language, the jurat stated that the Independent Witness explained the content of the statement to the accused in the Fante language. Since the two languages are different, the Independent Witness could not have understood the Twi language to enable him to interpret same from English and explain same for effective comprehension of the Accused. Therefore, no independent witness was present when the accused person gave her statement. The Opinion of the Court & Analysis: A careful reading of all the grounds contained in the Notice of Appeal discloses only one plaint: that the evidence adduced in the mini-trial does not support a finding that the procurement of the confession statement complied with the law. The Court will therefore address the grounds together as one. A statement submitted by a person either orally or in writing out-of-court and offered to prove the truth of its content during trial is regarded as hearsay. On page 101 of his Page 3 of 14 book The Ghana Law of Evidence, 2nd Edition, the prominent Ghanaian jurist and author J Ofori Boateng provided a practical definition of hearsay: “…evidence of any oral or written expression, or conduct meant as a substitute for an oral or written expression, made out-of-court and offered during trial to prove the truth of the matter stated.” Section 116 (6) of the Evidence Act, 1975 (Act 323) defines “hearsay evidence” as: “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.” Evidence of hearsay is generally inadmissible as it cannot be received in evidence during the trial of a case. Section 117 of Act 323 states the position of the law clearly in the following words: “Hearsay evidence is not admissible except as otherwise provided by this Act or any other enactment or by the agreement of the parties.” The law however provides exceptions to this general rule against admission of hearsay in cases where Act 323 allows it. Hearsay found in other enactments are exempted from the rule against its admissibility. Finally, parties to a case may mutually agree to the admission of hearsay evidence. An important example of admissible hearsay as provided under Section 120 of Act 323 is confession. The admissibility of a confession statement as an exception to the hearsay rule can only be upheld when specific conditions stipulated under Section 120, Act 323 have been fulfilled. Section 120, Act 323 states: “120. Confessions (1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which (a) Constitutes, or Page 4 of 14 (b) Forms an essential part of, or (c) Taken together with other information already disclosed by the accused is a basis for an inference of, the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily. (2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an Independent Witness,2 (2) who (a) Can understand the language spoken by the accused, (b) Can read and understand the language in which the statement is made, and where the statement is in writing the Independent witness shall certify in writing that the statement was made voluntarily in the presence of the Independent Witness and that the contents were fully understood by the Accused. (3)Where the Accused is blind or illiterate, the Independent Witness. (a) Shall carefully read over and explain to the Accused the contents of the statement before it is signed or marked by the Accused, and (b) Shall certify in writing on the statement that the Independent Witness had so read over and explained its contents to the Accused and that the accused appeared perfectly to understand it before it was signed or marked. (4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if (a) The Accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or (b) The Accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer Page 5 of 14 or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or (c) The Accused was induced to make the statement by a threat or promise which was likely to cause the Accused to make the statement falsely, and the person making the threat or promise was a public officer, or a person who has a direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person. (6) In a criminal action tried by a jury a party may not, in the presence of the jury, offer to prove a hearsay statement under this section. (7) Where a party offers to prove a hearsay statement under this section the Court shall in the absence of the jury, determine the admissibility of the statement as provided in section 3. (8) A determination by the Court under subsection (7), that a statement is admissible shall not preclude the jury from determining that the statement is not to be believed.” The rule of law is that when an Accused person alleges that the confession statement that the prosecution intends to tender in evidence did not strictly comply with Section 120 of Act 323 and is therefore inadmissible because it does not constitute an exception to the hearsay rule, the trial Court is duty bound to consider the objection and determine its merit. In perusing the Record of Appeal, I am of the considered opinion that the Learned Trial Judge properly discharged her duty when she determined at page 32 of the Record that Counsel for the Accused objection regarding the presence or otherwise of an independent witness raised a fundamental question worthy of examination and ordered a mini-trial or a voire dire to determine the issue after staying proceedings of the substantive matter. In answering the question as to whether or not sufficient grounds had been laid to warrant the holding of a mini-trial, the Court in the case of Asare alias Fante v The State [1964] GLR 70, SC held inter alia as follows: Page 6 of 14 “A Mini-Trial will be held only when the accused alleges that no statement was made at all, or that the statement was made under duress (involuntarily). But when objection was raised against such a statement on the grounds of inaccuracy, its admissibility becomes a question of law for the judge and the weight to be attached to it is a question of fact for the jury and must therefore first be admitted before it can be evaluated.” In the case of Anto v The State [1965] GLR 676, however, it was held that no mini- trial would be ordered if the ground of the objection is that the statement was made voluntarily but some of its contents were not made by the Accused. In the instant appeal, the Appellant neither denies volunteering the confession statement nor challenges the accuracy of its content. Rather, her plaint is that the confession was volunteered in the absence of an independent witness in clear violation of the Evidence Act. A finding that confirms the allegation will render the confession inadmissible as hearsay in the context of the exceptions provided under Act 323. EVIDENCE AT THE MINI-TRIAL The law on the burden of persuasion is stated in SECTION 15 (a) of the Evidence Act as follows: “Unless it is shifted, a. The party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; b. The party claiming that a person did not exercise a requisite degree of care has the burden of persuasion on that issue.” Contrary to the above rule, in mini-trials, it is the prosecution that must first prove that the confession statement was procured in full compliance with the conditions defined under Section 120. In the case of Republic v Konkomba [1979] GLR 270, it was held inter alia that the legal burden of proving that a confession was voluntary Page 7 of 14 and thus admissible rested on the prosecution. Also, in Azametsi And Ors V The Republic [1974] 1 GLR 228, it had been held inter alia that the burden was on the prosecution to prove affirmatively that the confession was voluntary, and in this connection, all persons who had been present at the making of the confession had to be produced by the prosecution, at least for the purpose for cross-examination by the defence. In the instant appeal therefore, this Court will examine the Record of Appeal in its entirety to determine whether or not the evidence on record supports the findings of the Learned Trial Judge that indeed an Independent Witness was present during the taking of the statement of the Accused. Indeed, it has been held that an appeal is by way of rehearing. Thus, in the case of Bakana Ltd vs Osei [2014] 77 GMJ 68 at 76, the Court held that an appellate court as a rehearing Court is to rehear an appeal as if the rehearing were the original hearing of the case and hence may comprehensively review the whole case by analysing the entire record of appeal, taking into account the testimonies all the documentary evidence adduced at the trial before arriving at a decision. See also the cases of Dexter Johnson vs. The Republic (supra), Tuakwa vs Bosom [2001-2002] SCGLR 61 and Brown vs Quashigah [2003-2004] 2 SCGLR 930 Praka vs Ketewa 1964 GLR 423 SC. Thus, this Court is duty bound to refer to the record to form its own opinion of the facts, evidence on record, case law and relevant statutes, in this case, to determine whether the trial judge erred when she admitted the Investigation Caution Statement and Further Caution Statement of the Appellant labeled Exhibits “A1” & “A2” dated 11th August, 2022 and 1st March, 2013 respectively. The Record shows that at the mini-trial, the prosecution called its First Mini-trial Prosecution Witness (MPW1), the supposed Independent Witness named Ohenenana Appau who testified that he was a student of the University of Cape Coast doing his attachment with the Regional Criminal Investigations Department of the Ghana Police Service at Cape Coast. On the 11th August 2022, he was invited to witness the taking Page 8 of 14 of the statement of the Accused in which she admitted to appropriating some sums of money belonging to the complainant to pay off some unnamed blackmailers over the threatened publication of her private photographs. After the statement had been recorded in English, he read it over, interpreted and explained it in a language to the understanding of the Accused. He then certified the statement in writing after the Accused had made her thumbprint. He further stated that he physically witnessed the taking of all the two statements from the Accused. On cross-examination, PMW 1 stated his full name as Ohenenana Boateng Appau. Learned Counsel for the Accused insisted that PMW 1 was absent when the Accused statement was recorded. Learned Counsel further submitted that the jurat made under the statement did not state the language in which the Accused spoke, to which PMW 1 replied that the omission was an inadvertent error. Learned Counsel further sought to cast doubts over the authenticity of the statements when he argued that whilst MPW1 testimony is that the Accused spoke in Twi, in one of the three (3) statements given by the Accused he stated Fante as the language in which the Accused made her statement of confession. On 22nd May 2023, the Prosecution called its second Prosecution Mini-trial Witness (PMW 2) in the person of L/C Ohenebeng Harrison. He testified that he took the Cautioned Statement of the Accused on 11th August 2022 when a case of stealing was lodged at the Police Station. He further testified that the Accused volunteered her statement in the Twi language in the presence of the independent witness, Ohenenana Appau who read over same in English after it had been reduced into writing and explained it in Twi the language to the Accused. The independent witness then certified the statement after confirmation and thumbprint by the Accused. Counsel for the Accused suggested to PMW 2 that no independent witness was present when the Accused purportedly made her statement. In his rebuttal, PMW 2 testified that an independent witness in the person of PMW 1 was present. Learned Counsel further suggested that the Accused never volunteered any confession. PMW 2 parried it and insisted Accused confessed to the case of stealing leveled against her. Page 9 of 14 In her Ruling at the end of the mini-trial, the learned Trial Judge found on the evidence adduced that an Independent Witness, in the person of Ohenenana Appau, was present when the Accused gave her statement. Secondly, she also found as fact that Ohenenana Appau is the same person as Ohenenana Boaben Appau in Exhibit “M1” at page 42 of the Record. Page 39 of the ROA is the cross-examination of the Independent Witness regarding his identity. Q: You will agree with me that it is always a situation where we can have 2 different persons referring to the same name like Francis Essilfie? A: Yes. Q: You will also agree with me that those two persons bearing the same name will have different identities as regards their physique, date of birth or any personal details. A: Yes. Q: I put it to you therefore that the name Ohenenana Boaben Appau does not refer to you. A: My name is not the only personal detail I gave to you. My number was also given and where I stayed was also given. I do not believe there is another Ohenenanana Appau with the same number that I stated in the report living at Kwawprow and working with the regional CID on the said date. Section 10 (2) of Act 323 states that “The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.” Page 10 of 14 It was insufficient for Learned Counsel to have merely asserted that the two names belong to two different persons without adducing any evidence in proof. Evidence of the existence of Ohenenana Appau thus became essential to the claim of the Accused that no Independent Witness was present when she gave her statement. Therefore, sufficient evidence ought to have been adduced to convince the court that a person exists by the name of Ohenenana Appau who is separate and distinct from PMW1. Such evidence would have cast potently reasonable doubt concerning the identity and role of PMW 1 in the events of 11th August, 2022 as recounted by the Prosecution. It is worth emphasizing that the notion of “reasonable doubt” is doubt based on reason and common sense. The law does not equate reasonable doubt to fanciful doubt. The law will fail to protect the community and vice versa if it admitted fanciful possibilities to deflect the course of justice. See the cases of Oteng Vrs The State (1966) GLR 352 SC and Miller Vrs Minister of Pensions (1947) 2 All E.R. 372 and the Canadian Case of R Vrs. Villoroman (2016) 1 SCR 1000, 2016 SCC 33 (CanLII). Regrettably, evidence on the Record shows that Counsel for the Accused was unsuccessful in his spirited attempt to discredit the identity of PMW1 and his testimony that he physically witnessed the taking of the confession statement. Therefore, the learned Trial Judge acquitted herself admirably on the evidence led in the mini-trial, when she made a finding of fact at pages 49-50 of the ROA that “…Ohenenana Appau and Ohenena Boaben Appau is the same person.” Having established that PMW1 and Ohenenana Boaben Appau is the same person who was present when the Accused gave her statement, it is important to determine whether or not all the statutory conditions for the procurement of a confession statement were fully observed to make same admissible as evidence in the trial. The rules governing the taking of a confession statement voluntarily offered by a person arrested, detained or restricted by the State are clearly stated in Section 120(2) Page 11 of 14 and (3) of Act 323. In State Vrs. Otchere & Ors (1963) 2 GLR 463, a Special Criminal Division of the High Court per Korsah C.J. held (holding 3): “A confession made by an accused person in respect of a crime for which he is being tried is admissible against him provided it is shown by the prosecution that it was made voluntarily and that the accused was not induced to make it by any promise or favour, or menaces, or undue terror.” For such a statement to be admissible upon proof that it was offered voluntarily or willfully and without any coercion or inducement, the law further provides that the statement ought to have been given in the presence of an Independent Witness who must be: i. ii. Able to speak the language in which the accused makes the statement; Understand the language in which the statement is written; and iii. Not have any interest in the matter. Where the statement is in writing the Independent Witness shall certify in writing that the statement was made voluntarily in the presence of the Independent Witness and that the contents were fully understood by the accused. In the case of the blind or illiterate accused, the Independent Witness: (a) Shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and (b) Shall certify in writing on the statement that the Independent Witness had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked. In his objection to the admissibility of Exhibit A1 and A2 which also found the grounds contained in the first notice of appeal filed by the Accused on 16th May, 2023, Page 12 of 14 Counsel for the Accused strenuously argued that since the Accused made her statement in Twi but the jurat recorded Fante as the language in which the Independent Witness interpreted and explained its content to the Accused, the Independent Witness was disqualified. Counsel further argued that Twi and Fante are two different languages and that they are not the same in words, form and character and therefore the Independent Witness could not have fully appreciated the Twi language to enable him to accurately translate and explain the version recorded in English to the understanding of the Accused. It is my considered opinion that, although Twi and Fante may be regarded as different languages, they are both dialects of the Akan language. They can be likened to the branches of a common tree. The differences between the two are not materially significant. According to the Language Centre Resources of the University of Cambridge, Twi or Asante-Twi and Fante are mutually intelligible and they are considered as separate languages only in terms of their diverse cultural and literary traditions. Rebecca Shumway in her scholarly work on Fante history, The Fante and the Transatlantic Slave Trade (2011) stated at page 133 that, the Fante language is essentially a light blend of Akan, Guan and the now-extinct Etsi language including bits of English and Dutch. A Fante speaker can fully comprehend Twi and vice versa. This is a fact so notorious that, it is incapable of raising dispute amongst reasonable persons within the jurisdiction of this Court. Therefore, Learned Counsel’s shrill protestations over Fante and Twi mix-up will be akin to making a mountain out of a molehill. In a further attempt to impeach the validity of the confession and to render the same inadmissible, Learned Counsel for the Accused during cross-examination of the Independent Witness pointed out that the jurat inserted in the statement did not specify the language in which he explained the content to the Accused. A careful reading of the rules governing the confession statement will show that in the case of an illiterate or blind person, the Independent Witness upon explaining the statement Page 13 of 14 to their understanding is only required to certify the event in writing. There is no obligation pressed on him under the law to state the language in which he explained the content of the statement. From the foregoing, the decision reached by the Learned Trial Judge on the admissibility of the confession statements of the Accused as captured in Exhibits A1 & A2 stands inviolate. Therefore, the instant appeal fails in its entirety. (SGD) JOHN-MARK NUKU ALIFO ‘J’ JUSTICE OF THE HIGH COURT Page 14 of 14