Amoako v S (CR/0491/2024) [2025] GHAHC 138 (3 April 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 3RD DAY OF APRIL 2025 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0491/2024 RICHARD NANA AMOAKO APPELLANT VRS THE REPUBLIC RESPONDENT RULING The instant petition of appeal was filed on the 16th of September 2024 against the ruling of the trial circuit court CF-GBVC Police Headquarters admitting a pen drive containing audio recordings into evidence during the testimony of the first prosecution witness Patience Afful who also happens to be the victim in the case of the prosecution. The Accused/Appellant has been charged with the offence of physical assault contrary to Sections 1(b) (i) and 3 (2) of the Domestic Violence Act 2007 (Act 732), emotional abuse contrary to section 1 (b) (iv) and 3(2) of Act 732), engaging in domestic violence namely conduct or behavior that in any way undermines another person’s privacy or integrity contrary to Section 1(d) (iii) and 3(2) of (Act 732) and threat of harm contrary to Section 74 of the Criminal Offences Act 1960 Act 29. The first prosecution witness mounted the witness box and relied on her witness statement filed on her behalf. She also sought to tender a pen drive containing the voice recordings of the accused person and the complainant’s friend. Counsel for the accused person raised an objection to the admissibility of the said audio recordings on the basis that same were illegally intercepted and as such same violates the Constitution 1992 and the Electronic Transaction Acts, 2008 Act 772. The trial judge on the 22nd of August 2024 overruled the objection of counsel for the accused person and proceeded to admit the audio recording into evidence as exhibit A series. It is against this ruling that the accused/appellant has filed the instant appeal praying this court to set aside the ruling of the trial circuit court. GROUNDS OF APPEAL The ground of appeal filed are as follows: 1. The Learned Trial Circuit Judge erred in law when she failed to follow the Supreme Court decisions in ACKAH v AGRICULTURAL DEVELOPMENT BANK [2017-2020] 1 SCLR 226; and, CUBAGEE v ASARE & OTHERS |2017-20201 1 SCCLR 305 on the question of admissibility of secret recordings and the right to privacy as condensed in Article 18 of the 1992 Constitution of Ghana FACTS OF THE CASE The complainant Patience Afful is a graduate of the University of Cape Coast whereas the accused person Richard Nana Amoako is a businessman and the Chief Executive Officer of Freight Masters Shipping and Freight Masters Driving Institute. On or around July, 2023 the accused person met the complainant through one, Rosemary the Administrator of his Company while the complainant was then working with Digiext Agritech as an Executive Assistant. The accused person went ahead and proposed to the complainant and further persuaded her to stop her work as he is ready to pay her the same salary but fortunately on his side the Company coincidently ceased operation. The Complainant accepted his proposal, and he went ahead and rented a three bedroom apartment and furnished it for the complainant at Community 22 Tema. Some few weeks into the relationship the accused person moved from his house at Afeinya and joined the complainant in her rented apartment. Within the same period the accused person accused the complainant that she was still having amorous relationship with her former boyfriend and forcefully seized the complainant's phone and forced her to give out her password. He then went through her phone and picked the phone number of her former boyfriend called him and warned the gentleman never to call the complainant and further coerced her to speak to her Ex-boyfriend that she is married and lives with her husband. The accused person then went ahead and provided everything including a Range Rover he bought for the complainant but failed to show or give her the car documents. The accused person then based on what he refers to as “I have provided you with everything and I take care of your family too” started subjecting her to both emotional and psychological trauma. On 26/01/24 at about 4:30am as usual the accused person went through the complainant’s phone while she was still in bed. He saw a message that read as "In a meeting now, will call you later. What time will you close please? Please call me when you are on lunch break"" The accused person became offended with the message and attacked the complainant and subjected her to physical assault and went ahead to call her useless prostitute having multiple sex with a “useless old civil servant”. The accused person further threatened her to wit "I will kill you and leave this country and nobody can do me anything and as for that useless civil servant boyfriend my boys can take care of him within a minute". He again went ahead and seized the complainant IPhone 13Pro max changed her Gmail and snapchat accounts into his name and started intercepting every message or information that comes through the phone. The complainant was issued with police medical form and she attended hospital and a report was submitted on her and she is also going through Psychological assessment and a report is yet to be submitted on her. During investigation the accused was arrested and in his caution to police he denied all the allegation levelled against him by the complainant and added that on that fateful morning he only held the complainant and raised her up and instantaneously demanded for answers about the message. After investigation he was charged with the offences as stated in the charged sheet and put before the Honourable court. RESOLUTION OF THE APPEAL Per the record of appeal, the said audio recording was recorded by the PW1 who was tendering the recording. She told the court with regards to how the audio was recorded that “I asked Rosemary to call him with respect to my phone. He had taken one of my phones away and when I called him, the response kept saying "number busy", meaning I had been blocked. So I asked Rosemary to call him in my presence and he started repeating some of the threats he had already issued on the phone. I recorded it - it was on loudspeaker, but Rosemary was aware I was recording, because she didn't want to have any issue with her boss, the accused person. This happened in my apartment.” Section 51 (1) and (2) of the Evidence Act, 1975, (NRCD 323) deals with relevant evidence Section 51 (1) of the Act provides that: “Relevant evidence is admissible except as otherwise provided by an enactment (2) Evidence is not admissible except relevant evidence.” Per the narration, the recording sought to be tendered was obtained in violation of the privacy rights of the accused person. The general principle with regards to admission of communication obtained in violation of the privacy of the rights of an individual has been ruled upon in the case of Rapheal Cubage vrs Micheal Yeboah Asare & others unreported No J6/04/2017 delivered on 28th February 2018 where Pwamang JSC held that a certain secret recording amounted to a violation of the privacy rights of an individual. Exceptions to this rule was outlined in the said case. The court held that “the framework of our Constitution anticipates that where evidence obtained in violation of human rights is sought to be tendered in proceedings, whether criminal or civil, and objection is taken, the court has to exercise a discretion as to whether on the facts of the case the evidence ought to be excluded or admitted. We therefore adopt for Ghana the discretionary rule for the exclusion of evidence obtained in violation of human rights guaranteed under the 1992 Constitution. As to the grounds upon which evidence obtained in violation of human rights guaranteed in the 1992 constitution may be excluded, our opinion is that where on the facts of a case a court comes to the conclusion that the admission of such evidence could bring the administration of justice into disrepute or affect the fairness of the proceedings, then it ought to exclude it. The reasons are simple. …In determining whether impugned evidence could bring the administration of justice into disrepute or make proceedings unfair, the court must consider all the circumstances of the case; paying attention to the nature of the right that has been violated and the manner and degree of the violation, either deliberate or innocuous; the gravity of the crime being tried and the manner the accused committed the offence as well as the severity of the sentence the offence attracts. The impact that exclusion of the evidence may have on the outcome of the case, particularly in civil cases where establishment of the actual facts is of high premium. These factors to be considered in determining whether to exclude or admit evidence obtained in breach of human rights are not exhaustive but are only to serve as guides to courts. For instance, where the offence the evidence is offered to prove is a grievous crime committed in a gruesome manner and the infraction of the accused person's right by the police was unavoidable, in the absence of countervailing factors, public interest would require that a court leans towards allowing the evidence since it would bring the administration of justice into disrepute in the thinking of the public to exclude such evidence. But where in a civil case, while the case is pending or at the time the dispute was raging, one of the parties with a view to procuring evidence in support of his case in court obtains evidence in violation of the human rights of his opponent, that is conduct that could also bring the administration of justice into disrepute. It is the therefore the duty of the prosecution which sought to tender this audio recording recorded without the knowledge of the accused person and thereby violating his right of privacy to bring themselves within the exceptions for the trial court to exercise its discretion in their favor. From the record of appeal, the said audio is alleged to contain threats the accused person issued and as such same was going to assist the court to determine the offences the accused person has been charged with. Section 52 of the Evidence Act deals with the Exclusion of relevant Evidence. It provides as follows: “The court may exclude relevant evidence if the probative value of the evidence is substantially outweighed by: a. Considering of undue delay, waste of time, needless presentation of cumulative evidence or; b. The risk that the admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues, or c. The risk in a civil action where a stay is not possible or appropriate that the admission of the evidence will unfairly surprise a party who has not had reasonable grounds to anticipate that the evidence would be offered.” Aside the evidence assisting the court in determining the issues in contention, the court does not find any danger or unfair prejudice in admitting the audio in evidence especially considering the fact that the accused person has denied the charges against him and if therefore there is any evidence of the alleged happening then it is only desirable that same be admitted to confirm or disprove the allegation of the prosecution. The trial judge was therefore right in overruling the objection and admitting the audio recording into evidence. Same having been admitted into evidence, it is the duty of the counsel for the accused person to cross examine on it for the court to determine the weight to place on the said audio recordings. The appeal fails and same is dismissed. PARTIES: APPELLANT PRESENT COUNSEL: EMMA MESSIBA WITH JENNIFER AFRIYIE YENTUMI FOR THE REPUBLIC PRESENT NOAH GAIKPAH WITH SAMUEL SULEMANA AND PRINCE BOAHEN GYAN FOR THE ACCUSED/APPELLANT PRESENT (SGD) MARY M. E YANZUH J. JUSTICE OF THE HIGH COURT 8