REPUBLIC VRS. BANNIE (B18/36/2021) [2024] GHACC 352 (2 December 2024)

1 IN THE CIRCUIT COURT, JUASO HELD ON MONDAY, THE 2ND DAY OF DECEMBER, 2024, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. CASE: B18/36/2021 THE REPUBLIC VRS BRIGHT AGYAPONG BANNIE JUDGMENT: The accused person herein has been charged with one count of Unlawful Possession of Narcotic Plants Contrary to Section 41 (1) of the Narcotic Control Commission Act 2020, Act 1019. The combined effect of the particulars of the offence is that on the 1st day of August 2020 at Juaso in the Ashanti Circuit and within the jurisdiction of this court, the accused person had in his possession 50.09 grams of cannabis without authority. The accused person pleaded not guilty to the charge so prosecution assumed the duty to prove his guilt. The fundamental rule in our criminal justice system as stated in the 1992 Constitution, Article 19 (2) (c) reads: “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” 2 The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic (2012) 41 MLRG 53 at 61-62 per Akuffo JSC as follows: “ …. The citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt.” The above clause means that the accused person herein charged is not guilty of the offence right from the time of his arrest including the time when he is arraigned before the court. It is only after the accused person himself has pleaded guilty that he may be pronounced guilty. However, if the accused person pleads not guilty to the offence, his accuser has to prove that he is guilty. In the instant case the accused has pleaded not guilty a plea of not guilty therefore the onus of proving his guilt is on the prosecution. See: Essentials of Ghana Law of Evidence by Justice Brobbey at pages 45-55. Sections 13 (1) and 22 of the Evidence Act, 1975 (NRCD 323) place the burden on the prosecution to prove his/her case beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975 (NRCD 323) provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. Section 22 of the Evidence Act, 1975 (NRCD 323) also provides: 3 “22. 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 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.” See: Abakah Vrs The Republic (2010) 28 MLRG 111 CA The prosecution has a duty to prove the guilt of the accused person charged beyond reasonable doubt. The burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused person will be called upon to give his side of the story. See: Amartey Vrs The State (1964) GLR 256. Gligah & Another Vrs The Republic (2010) SCGLR 870. Dexter Johnson Vrs The Republic (2011) SCGLR 601. The dictum of Lord Denning in the case of Miller Vrs Minister of Pensions (1974) 2 ALLER 372 at 373 is relevant to our understanding of the phrase “beyond reasonable doubt”. According to Lord Denning: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” In the same case, “proof beyond reasonable doubt” was explained as follows: 4 “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” See also: Tetteh vrs The Republic (2001-2002) SCGLR 854 Dexter Johnson vrs The Republic (2011) 2 SCGLR 601 Francis Yirenkyi vrs The Republic (2017-2020) 1 SCGLR 433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 delivered on the 21st day of July 2021 This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof to the hilt. In Abdulai Fuseini vrs The Republic Criminal Appeal No. J3/02/2016 6th June, 2018, the Supreme Court reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means proof of the essential ingredients of the offence charged and not mathematical proof”. It is the duty of the prosecution to prove each and every ingredient of the offence, which is a precondition to securing conviction; unless the same statute places a particular burden on the accused person. The accused person is not under any obligation to prove his innocence. It is only when the defence is not reasonable probable that the accused person would be convicted. 5 In C.O.P Vrs Antwi (1961) GLR 408 SC it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly. The fact that the prosecution has the burden to prove the case beyond reasonable doubt does not change according to the status or disposition of either the accused person or the complainant involved neither does it change according to the charges preferred nor the public perception, concern or reaction in respect of the accused person in question. This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935) AC 462 at 481-482 in the following words: “No matter what the charges or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of our common law of England and no attempt to whittle it down can be entertained.” The import of all the above authorities, statutes and case law is that, it is the prosecution that is to prove the guilt of the accused person. The accused person is not to prove his innocence. In fact, he should not even show up his hands until the need arises. All that the accused person is required to do when invited to open his defence is to raise reasonable doubts regarding his guilt. It is only when the defence raised by the accused person is not one that can exonerate him that he would be convicted. See: Atsu Vrs The Republic (1968) GLR 176 CA. Tsatsu Tsikata v The Republic (2003-2004) SCGLR 1068. 6 Proof by the prosecution can be direct or indirect. It is direct when an accused person is caught in the act or has confessed to the commission of the crime. Thus, where an accused person was not seen committing the offence, his guilt can be proved by inference from surrounding circumstances that indeed the accused person committed the said offence. This type of evidence derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See: Logan Vrs Lavericke (2007-2008) SCGLR 76. Dexter Johnson Vrs The Republic (2011) 2 SCGLR 601 @ 605. State Vrs Anani Fiadzo (1961) GLR 416 SC. Kamil Vrs The Republic (2010) 30 GMJ 1 CA. Tamaklow Vrs The Republic (2000) SCGLR 1 SC. Bosso Vrs The Republic (2009) SCGLR 470. In Kingsley Amankwah (a.k.a. Spider) vrs The Republic supra, the Supreme Court referred to Frimpong @ Iboman vrs the Republic and held that where direct evidence was lacking, but there were bits and pieces of evidence connecting the appellant to his deep involvement in committing the offences with which he had been charged, the court must not shy away from using such strong circumstantial evidence. It must be noted that the standard of proof required in establishing whether or not there is a prima facie case against the accused person is not at the same level of proof beyond reasonable doubt as required at the end of the case. See: Tsatsu Tsikata Vrs The Republic (2003-2004) SCGLR 1068 at 1094-1095. It would therefore be wrong to presume the guilt of an accused person merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie 7 evidence from which the guilt of the accused may be presumed and which therefore calls for explanation by the accused. See: The State Vrs Sowah & Essel (1961) 2GLR 743 at 745 Prosecution in this case called two witnesses in support of his case. The first prosecution witness (PW1) was Baba Apolo with D/Insp. Joseph Quansah the investigator in this case as prosecution’s second witness (PW2). Prosecution also tendered in evidence his exhibits for the case. According to PW1, on the 31st day of August 2020, he received a distress call from his younger brother to the effect that the accused person had seized his mobile phone around a place called Debiaso so he went there and met the accused in a company of a gang smoking the narcotic plant and the accused was also holding a quantity of same in a Black Polythene Bag. He went on to say that his brother pointed out the accused as the person who had seized his phone so he arrested the accused and in an attempt to send the accused to the Police Station, the members of the gang started throwing stones at him and managed to free the accused person and also struggled to take the narcotic plant from him but he managed to overcome them and sent it to the Police Station and lodged a formal complaint against the accused person. PW2 tendered in evidence the Investigation Cautioned Statement, the Charge Statement, the Indian hemp and the Forensic Report on the Indian hemp in evidence. According to him, on receipt of the Forensic Report confirming that the plant tested positive for Tetrahydrocanabinol, Cannabinol and Cannabidol, all active ingredients in cannabis, he took a further Cautioned Statement from the accused person which he tendered in evidence. 8 The law is settled that at the close of the prosecution’s case the court is to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only when the court is satisfied that all the ingredients have been established by the prosecution that the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See: Kwabina Amaning alias Tagor & anor. vrs The Republic (2009) 23 MLRG 78 CA. A prima facie case is established against an accused when the evidence led by the prosecution is on its face or first appearance without more one that could lead to conviction, if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if they hope to secure conviction of the person charged. A person is pronounced guilty only when the evidence led by the prosecution in respect of the charges satisfies the standard of proof required by law and that is proof beyond reasonable doubt. The accused person herein has been charged with one count of Unlawful Possession of Narcotic Plants Contrary to Sections 41 (1) of the Narcotic Control Commission Act 2020, Act 1019. Section 41(1) provides “A person who, without lawful authority, proof of which lies on that person, has possession or control of a narcotic plant for use or for trafficking commits an offence. For prosecution to succeed in a charge in respect of possession or control of a narcotic plant for use or for trafficking, the prosecution must establish beyond reasonable doubt the following: 9 1. That the accused person was in possession of the plant either physical or constructive. 2. That the accused person had knowledge of the existence of the narcotic plant. See: Bonsu alias Benjillo vrs The Republic (1999-2000) 1GLR 199-236 @210. According to PW1 he met the accused and some other people smoking the plant and the accused was carrying some in a polythene bag which he took from him and sent to the Police Station. PW2 stated that the plant tested positive for cannabis. In the cautioned statement of the accused person, he stated that it is true that PW1 arrested him but he was holding only one wrap of Indian hemp and not the quantity that was sent to the Police Station. In the Charge Statement of the accused, he also told the police that someone gave the narcotic plants to him to sell for him but he had seen the person since his arrest and pleaded with the police to forgive him. From the foregoing, a prima facie case was established against the accused person and he was asked to open his defence. As I have stated earlier, all that the accused person is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. It is only when the doubt raised by the accused person is not one that can exonerate him that he would be convicted. According to the accused person, on the day of the incident he met PW1who is a security man at the Commercial Bank at Juaso. He asked him about a certain phone and he told him that he did not know what he was talking about. PW1 then told him that the Commander at the Police Station at Juaso was looking for him so he pushed him into a vehicle and sent him to the Police Station at Juaso. He was incarcerated for about two weeks without any information about the case till the investigator called him to the counter and informed him that PW1 told him that he was going to take One Thousand 10 Eight Hundred Ghana (GH 1,800.00) for the missing phone and after giving him the information, the investigator asked him to return to the cells. The next day he was informed that he could go home but whilst preparing, PW1 came back to the Police Station with a quantity of Indian hemp in a polythene bag and informed the investigator that he found the Indian hemp on him the day he arrested him but he forgot to give it to the Police. As a result, he was incarcerated again and subsequently sent to the District Court at Konongo but the Magistrate declined jurisdiction and he was sent back to the Police station. According to him, at the time, the judge who used to sit in this Court was on leave but she never returned so he was kept at the Police Station till the Court became differently constituted and he was arraigned. After going through a mini trial, it was found that the Investigation Cautioned Statement for the accused person was voluntarily taken and hence admitted into evidence. In the said Statement, the accused told the police that he was holding only one wrap of Indian Hemp and not the quantity that PW1 sent to the Police Station. He also told the police that PW1 arrested him at a Ghetto near Debiaso. However, in his defence, he denied all that thereby giving inconsistent evidence. The position of the law is that a party whose evidence on oath is contradictory of previous statement made by him whether sworn or unsworn was not worthy of credit and his evidence could not be regarded as being of any importance, in the light of his previous contradictory statement unless he is able to give reasonable explanation as to the contradictions. It must be appreciated that first statements about an event or a matter made close to the time of occurrence of the event or matter that is subject of enquiry, particularly statements made to a law enforcement officer would attract more credibility than statements made much later in the course of the litigation. See: Emmanuel Kwame Bansah Vrs The Republic (2022) 177 G.M.J @ 153. 11 Republic Vrs High Court (Criminal Division 1), Accra Ex parte: Stephen Kwabena Opuni, Attorney –General (2021) DLSC 10770 at page 20-21 per Pwamang JSC. The accused has not raised doubts in the case for the prosecution and he is thus found guilty of the offence and accordingly convicted. I have listened to the prayers of prosecution and accused person. I take into consideration that the accused is known in Court case numbered B1/7/2 for the offences of conspiracy to commit crime to wit Unlawful Entry and Stealing, Unlawful Entry and Stealing. I also take into consideration that the accused committed this offence before the one in Case numbered B1/7/22 and sentence him to Two Hundred Penalty Units and in default six months Imprisonment IHL. SGD. NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) COUNSEL C/ INSPECTOR MARTIN EGYIR FOR PROSECUTION ACCUSED IN PERSON 12 REFERENCES OKEKE VRS THE REPUBLIC (2012) 41 MLRG 53 ABAKAH VRS THE REPUBLIC (2010) MLRG 111 CA AMARTEY VRS THE STATE (1964) GLR 256. GLIGAH & ANOTHER VRS THE REPUBLIC (2010 SCGLR 870. DEXTER JOHNSON VRS THE REPUBLIC (2011) SCGLR 601. MILLER VRS MINISTER OF PENSIONS (1974) 2 ALL ER 372 TETTEH VRS THE REPUBLIC (2001-2002) SCGLR 854 FRANCIS YIRENKYI VRS THE REPUBLIC (2017-2020) 1 SCGLR 433 KINGSLEY AMANKWAH (A.K.A. SPIDER) VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/04/2019 DELIVERED ON THE 21ST DAY OF JULY 2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.P VRS ANTWI (1961) GLR 408 SC WOOLMINGTON VRS D.P.P (1935) AC 462 ATSU VRS THE REPUBLIC (1968) GLR 176 CA. TSATSU TSIKATA VRS THE REPUBLIC (2003-2004) SCGLR 1068 LOGAN VRS LAVERICKE (2007-2008) SCGLR 76. STATE VRS ANANI FIADZO (1961) GLR 416 SC. KAMIL VRS THE REPUBLIC (2010) 30 GMJ 1 CA. TAMAKLOW VRS THE REPUBLIC (2000) SCGLR 1 SC. BOSSO VRS THE REPUBLIC (2009) SCGLR 470. THE STATE VRS SOWAH & ESSEL (1961) 2GLR 743 KWABINA AMANING ALIAS TAGOR & ANOR. VRS THE REPUBLIC (2009) 23 MLRG 78 CA. 13 BONSU ALIAS BENJILLO VRS THE REPUBLIC (1999-2000) 1GLR 199-236 BEHOME VRS THE REPUBLIC (1979) GLR 112-128 EMMANUEL KWAME BANSAH VRS THE REPUBLIC (2022) 177 G.M.J REPUBLIC VRS HIGH COURT (CRIMINAL DIVISION 1), ACCRA EX PARTE: STEPHEN KWABENA OPUNI, ATTORNEY –GENERAL (2021) DLSC 10770 EMMANUEL KWAME BANSAH VRS THE REPUBLIC (2022) 177 G.M.J REPUBLIC VRS HIGH COURT (CRIMINAL DIVISION 1), ACCRA EX PARTE: STEPHEN KWABENA OPUNI, ATTORNEY –GENERAL (2021) DLSC 10770 BOOKS ESSENTIALS OF GHANA LAW OF EVIDENCE BY JUSTICE BROBBEY CONTEMPORARY CRIMINAL LAW IN GHANA BY JUSTICE DENNIS DOMINIC ADJEI.