REPUBLIC VRS. BEDZRA (D22/019/24) [2024] GHACC 336 (26 November 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 26TH DAY OF NOVEMER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D22/019/24 THE REPUBLIC VRS. EMMANUEL BEDZRA ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT EBENEZER ISAAC TEYE NUBUOR FOR THE ACCUSED PERSON PRESENT RULING ON MINI TRIAL The accused person was arraigned before this court on four counts of Fraudulent Breach of Trust contrary to section 128 of the Criminal Offences Act, 1960 (Act 29) The Rep. v. Emmanuel Bedzra Page 1 of 11 He pleaded not guilty to all the charges after same had been read to him. Accordingly, the case had to proceed to trial for the prosecution to prove the guilt of the accused person beyond reasonable doubt. The trial is already in progress with the prosecution having called their second witness being the investigator. When the investigator sought to have the caution and charge statements attached to his Witness Statement be adopted as exhibits to be tendered, counsel for the accused person raised objection to the tendering of the caution and charge statements of the accused person, in evidence. In view of the objection raised by counsel for the accused person and the response by the prosecutor and also in the interest of justice, the trial was put on hold for a mini trial (voir dire) to be conducted. The onus was therefore on the prosecution to establish that the investigation caution and charge statements were taken from the accused person in accordance with the provisions set under section 120 of the NRCD 323. Section 120, sub-sections 1, 2, 3 and 4 of the Evidence Act, 1975 (NRCD 323) provide as follows: (1) “In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which: (a) constitutes, or (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 Rep. v. Emmanuel Bedzra Page 2 of 11 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, who (a) can understand the language spoken by the accused, (c) 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 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 The Rep. v. Emmanuel Bedzra Page 3 of 11 (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 person who has direct interest in them outcome of the action, or a person acting at the request or direction of a public officer or the interested person.” [Emphasis provided] From the above, the confession should have been made voluntarily and secondly, it should have been made in the presence of an independent witness who understands the language in which the accused made the confession and must also understand the English language. The independent witness must write on the written confession statement that it was made voluntarily and that the accused fully understood it and where the accused is blind or illiterate, the independent witness must read carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused. A confession statement voluntarily made in accordance with the law, is admissible and is sufficient ground for the conviction of an accused. See: Frimpong @ Iboman v The Republic [2012] 1 SCGLR 297 Agyiri alias Otabil v The Republic [1987-88] 1 GLR 58 CA Duah v The Republic [1987-88] 1 GLR 343, CA. The prosecution in its quest to prove that the said statements were taken in compliance with the relevant provisions under section 120 of NRCD 323 called one witness as PWMT1. The Rep. v. Emmanuel Bedzra Page 4 of 11 The said witness called by the prosecution in the mini trial gave his name as Obeng Paul. He further testified that he was present when the accused Emmanuel Bedzrah made his statement on 7th November 2023 and 9th November 2023. That the accused person spoke Twi language and same recorded down in English language. That he recalled that he gave his statement in respect of complainant Akoto Ortis Yaw and John Acquah. That the accused person gave all his statements in his presence willingly and voluntarily. That no one forced him or coerced him before he gave his statement. According to the said independent witness, when the accused person was done giving his statement, the investigator made him read the statements all over to him and the accused agreed that what he meant to say was duly captured. The accused person did not adduce evidence in rebuttal of the evidence adduced by the prosecution in the mini trial, however counsel for the accused person with leave of the court, filed a written submission in respect of the mini trial. In the case of Ekow Russel v The Republic [2017-2018] 1 SCGLR 469, the Supreme Court held that: “By section 120 of NRCD 323, an independent witness included any person who qualified to be a competent witness and has no direct personal interest in the case in issue. Such an independent person must be a person who is disinterested in the matter under investigation. At the official level, the independent person should not be directly under the control and influence of the person investigating the crime nor himself be part of the investigation team. Accordingly, any person - be it a policeman, a soldier, a prison officer, other security investigating apparatus or civilian - who qualifies in terms of being disinterested in the matter under investigation, and is not under the direct control and influence of the person investigating the crime, or is not himself part of the investigation The Rep. v. Emmanuel Bedzra Page 5 of 11 team and qualifies to be a competent witness may serve as an independent witness. That person must also understand the language spoken by the accused; be able to read and understand the language in which the statement is made; and understand, read and speak English language as required by section 120 (3) of NRCD 323.” In this case, the relevant issue is whether or not the independent witness was under the control, order or authority of the investigator. Also whether or not he was directly under the control and influence of the investigator; or whether he was part of the investigation team or not? If the answer to any of the above is in the affirmative, same will nullify the confession statements of the accused person. Some relevant parts of the cross examination of PWMT1 by counsel for accused person on 20th September 2024 is as follows: “Q: Are you a policeman? A: I am a police assistant. Q: As a police assistant, you report to the investigator in this case, not so? A: Yes, I report to the investigator. Q: How long have you been a police assistant? A: Two years. Q: And in those two years how many times have you acted as an independent witness? The Rep. v. Emmanuel Bedzra Page 6 of 11 A: More than twenty times. Anytime I am available and a statement is being obtained, I act as an independent witness. Q: Who wrote the statements of the accused person on 7th and 9th November, 2023? A: It is the investigator who wrote the statements of the accused person. Q: When the statement was done who read it to the accused person? A: It is the same investigator who read it to the accused person. Q: Do you agree with me that you did not read the statement dated 7th November 2023 to the accused person? A: It is the investigator who read the statement to the accused person. Q: Can you take a look at the two statements taken on 7th and 9th November 2023, are those the statements you claim the investigator read to the accused person? A: Yes, my lady. Q: Do you remember stating in your Witness Statement that the investigator made you read the contents of the statements by the accused person to the accused person? A: Yes please.” The Rep. v. Emmanuel Bedzra Page 7 of 11 From the above evidence on record, the said independent witness was exposed under cross examination to the effect that, he did not read the said confession statements to the accused person even though he had stated in his evidence in chief that the investigator made him read the contents of the statements by the accused person to him. Under cross examination the said independent witness who was the only witness at the mini trial admitted the fact that he works directly under the investigator herein. From the said admission, the said independent witness who is a police assistant worked under the investigator and was at all material times directly under the order, control and authority of the investigator. From the evidence adduced at the mini trial, I find that the independent witness procured by the police to witness the taking of the statements of the accused is a police assistant working directly under the investigator in the instant case who is PW2 herein and is seeking to tender the same confession statements in evidence. From the requirements laid down by the Supreme Court in the Ekow Russel case, to attain weight, the independent witness must not be subordinate to or under the direct authority, control or influence of the person investigating the crime and for which the independent witness is needed to confirm the statement that has been given by the declarant. However, that was not the case in the instant case. The clear provision of section 120 of NRCD 323 was breached when the police assistant who worked directly under the investigator in the case was used as an independent witness to authenticate the statements allegedly made by the accused person. Being under the beck and call of the investigator, can the said independent witness be truly The Rep. v. Emmanuel Bedzra Page 8 of 11 deemed to be independent? I do not think that the police assistant could have acted without interest in the case so as to be independent. I do not think that he could have borne witness to exactly what transpired during the taking of the statement of the accused person. He was not supposed to be under the order, control, influence or authority of the investigator who investigated the case and is also seeking to tender same statements in evidence. Unfortunately, that is exactly what happened however the investigator could have called other persons who had nothing to do with him and his work to have acted as a true independent witness. Furthermore, from the evidence led at the mini trial it was revealed that the said independent witness is not the one who even read and explained the contents of the statements obtained from the accused person to him. Under cross examination, the only prosecution witness in the mini trial testified that it was the investigator who read and explained the caution and charge statements to the accused person which is a clear breach of the statutory provision in the Evidence Act as reproduced above. This goes to tell that the independent witness decided to be untruthful to the court in his evidence in chief because he stated in his evidence in chief that the investigator made him read the statements all over to the accused person and the accused agreed that what he meant to say was duly captured. The said independent witness was exposed subsequently under cross examination when he contradicted himself and testified that he did not read the said statements to the accused but rather it is the investigator who did read to the accused. Having established that the said independent witness who was the only witness in the mini trial is a police assistant who reports to the investigator in this case, and was under The Rep. v. Emmanuel Bedzra Page 9 of 11 the order, control, influence or authority of the investigator, I find that fact as sufficient to invalidate the confession statement of the accused person. The said police assistant was clearly not independent of the investigator herein. His relationship with the investigator created an imputation of bias against him. He thus, lost his independent stature. In that circumstance, the court cannot be expected to admit into evidence a statement which the potentially biased witness certified as having been procured validly. The court cannot trust such a person to independently authenticate the due compliance with the dictates of section 120 of NRCD 323. Moreover, the said independent did not also comply with the statutory provision under section 120 of NRCD 323 to read over and explain to the accused the contents of the said statements before it was signed or marked by the accused. On the totality of the evidence led at the mini trial, I hereby find and hold that the caution and charge statements of the accused person were not properly taken in accordance with section 120 of NRCD 323. Consequently, the objection raised by counsel for the accused person to the admissibility of these statements is hereby sustained. Accordingly, I reject as inadmissible, the caution and charge statements of the accused person attached to the Witness Statement of the investigator (PW2 herein). The said statements are marked as “Rejected”. The main trial shall be resumed hereafter. The Rep. v. Emmanuel Bedzra Page 10 of 11 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Rep. v. Emmanuel Bedzra Page 11 of 11