AWUDU ALHASSAN SULEMANA @ DOZER MOHAMMED SOLEMANA @ BABANA & SALAMATU KARIM @ MOTHER vs. THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
AWUDU ALHASSAN SULEMANA @ DOZER MOHAMMED SOLEMANA @ BABANA AND SALAMATU KARIM @ MOTHER - (Appellants)
THE REPUBLIC

DATE:  28TH JULY, 2016
CRIMINAL SUIT NO:  H2/6/16
JUDGES:  KANYOKE J.A. (PRESIDING), ACQUAYE J.A., WELBOURNE (MRS) J.A.
LAWYERS:  RAPHAEL ALIJINA FOR APPELLANTS
MALIKE WOANYAH DEY (SSA) RESPONDENT
JUDGEMENT

 

WELBOURNE (MRS), J.A.

 

Background:

 

This appeal is brought by the 1st & 2nd accused persons as Appellants. The Appellants and the 3rd accused person are standing trial on indictment before the High Court, Accra.

 

The Appellants have been charged with the offences of Conspiracy to commit murder and murder and the 3rd accused has been charged with the offence of abetment of murder.

 

During the course of the trial, the Appellants raised an objection to the tendering of the confession caution statement that the police procured from the Appellants. On 1st December, 2015, the trial judge ordered a mini-trial to determine whether or not the statements were obtained voluntarily.

 

On 17th December, 2015, the trial judge dismissed the objection of the Appellants and admitted the confession caution statements in evidence as Exhibits ‘A’ and ‘B’ respectively.

 

(The ruling can be found at pages 53-54 of the record of appeal)

 

Dissatisfied with the ruling, the Appellants filed the following grounds of appeal:

a. That the trial judge erred in holding that the caution statements were voluntarily obtained from Appellants and,

b. That the ruling admitting the caution statements in evidence cannot be supported having regard to the evidence adduced at the mini-trial and the law.

 

The grounds shall be considered together as they are inter- related. The whole appeal hinges on whether or not the confession statements were taken voluntarily or not. In such a determination, one has to look at the procedure used in obtaining the statements. The Evidence Act, 1975 (as amended) provides that:

 

Section 120:

1. In a criminal action, evidence of a hearsay statement made by an accused admitting matter which:

a. Constitute; or

b. Forms an essential part of; or

c. Taken together with other information already disclosed by him is a basis for an inference of,

The commission of a crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily.

2. Evidence of a hearsay statement shall not be admissible under subjection (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 (other than a police officer or member of the Armed Forces) approved by the accused.

3. The independent witness must be a person who:

a. Can understand the language spoken by accused;

b. Can read and understand the language in which the statement is made,

c. And where the statement is in writing the independent witness must certify in writing that the statement was made voluntarily in his presence and that the contents were fully understood by the accused.

4. Where the accused is blind or illiterate, the independent witness shall carefully read over and explain to him the contents of the statement before it is signed or marked by the accused, and shall certify in writing on the statement that he 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.

5. For the purpose of this section a statement that was not made voluntarily includes, but is not limited to, a statement made by the accuse if:

a. The accused when making the statement was not capable, because of a physical or mental condition of understanding what he said or did; or

b. The accused was induced to make statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon him by a public official, or the 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 official or such interested person; or

c. The accused was induced to make the statement by a threat or promise which was likely to cause him to make such a statement falsely, and the person making the threat or promise was a public official, or a person who has a direct interest in the outcome of the action, or a person acting at the request or direction of public official or such an 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. When 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 form determining that the statement is not to be believed.

Since an appeal is by way of a re-hearing, we have to examine the record to determine whether or not the trial judge evaluated the evidence adduced before him properly or whether he failed to do so thereby occasioning a miscarriage of justice and if so if the miscarriage of justice was substantial.

 

In arguing the appeal, counsel for the Accused persons maintained that the statements were not voluntarily taken because PW2 for instance admitted that, he saw scars on the 1st Appellant’s body and also noted that 2nd Appellant had lost some of his teeth.

 

Counsel for Accused submitted that A1 was beaten, tortured with electricity, had scars on his body and forced to thumb print the statement. They also alleged that prior to the statement, A2 was also – beaten and one of his teeth was removed. There were scars on his body.

 

The 1st Appellant testified as follows at page 36 of the Record of Appeal:

“Q: When they took you to the Regional CID Headquarters what happened there?

A. Before we arrived at Regional CID Headquarters the informants in the car alerted the policemen so about 30 police officers surrounded that private car before the gate was opened and I dropped down with Kofi Nyabgege in handcuffs and they sent us to a certain room. My lord, that room was where they started beating us without asking anything from us. They beat us to the extent that at that moment I could not talk to anybody. After that around 5.30 pm our CID, Mr. Awuni ordered a police pickup and took I and Kofi Nyagbege, Mohammed and Madam Salaah and sent Madam Salaah to Ministries Police Station and took the three of us to Nima Police Station. The following day on the 20th of June, 2013, Mr. Awuni sent his men to come for us and we were brought to Regional CID Headquarters. That same day, that was the day I was tortured with electricity at the Regional CID Headquarters. My lord, in the evening, they took us back to Nima Polcie station and on the 21st June, 2013, he sent his men to come for us again. That was the day my wife and my brother came to visit me at Nima Police station. So we were there when my wife and my brother came back to Regional CID Headquarters. Before I saw my wife, I saw Mr. Awuni the CID infront of my wife and my senior brother. He asked my wife who she was looking for and my wife pointed her hand on me. My lord, at that time the office was choked with police officers and my wife saw everything my brother also saw what they were doing to me”.

“Q: According to you the office was choked?

A. Yes my lord the office was choked with police officers.

Q. And you want this court to believe that the police officers were beating you in the presence of your wife and your brother.

A. That is correct my lord.

Q. Do you know if they took pictures of the police officers beating you.

A. No my lord, but it was the police officers who rather took pictures of us.

Q. I am putting it to you that what you are telling the court now is not the truth because they could not have beaten you in the presence of your wife and brother.

A. My lord they did.

Q. You were here when Prosper Tatra (PW 1) testify.

A. My lord that is true but if not his appearance in this court I had never met him anywhere before.

Q. And he testified that he was there when your statement was being taken.

A. That is between him and the CID I do not know him anywhere.

Q. You were also here and heard him say that when your statement was taken the place was busy with people, police officers, relatives, suspects, complainants etc.

A. I heard him say that but on that day it was only police officers and relatives of Madam Salaah, they also saw what they were doing to us.

Q. As a matter of fact, that room that you described was beaming with human beings so they could not have beaten you in front of all those people.

A. My lord, they did it”.

 

The 1st Appellant testified that he was beaten by the police (as in page 36 of the Record of Appeal) above.

 

Whilst 2nd Appellant’s evidence on page 47 of the record for clarity is as follows:

“Q: You say you were beaten by the police what effect does it have on you.

A. Yes my lord.

Q. Apart from losing your teeth what else happened to you.

A. As a results of the beatings I have problem with my waist and I cannot even walk properly”.

 

The tooth was tendered in evidence as Exhibit 3.

 

Learned counsel for the Appellant further urged on the court to discredit the statement taken from the 1st Appellant

 

Section 13 and 120 (1) of the Evidence Act, Act 323 required the Prosecution to prove beyond a reasonable doubt that the statements were voluntarily procured from the Appellants.

 

Section 13 (1) of Act 323 state that:

 

“In any criminal or criminal action, the burden of persuasion as to the communication of a crime which is directly in issue requires proof beyond a reasonable doubt”

 

The Prosecution called one Prosper Tatra as PW1, the independent witness when the confession statements were taken. (his evidence is found on pages 15-24 of the record of appeal).

 

PW2 – is the Investigator. (See pages 25 – 34 of the record of appeal). The 1st Appellant testified in person. (See pages 35 – 42 of the record of appeal). His wife Vincentia Adzah, testified as DW1. (see pages 42-46 of the record of appeal). 2nd Appellant also testified in person (see pages 42 – 52 of the record of appeal).

 

In summary, PW1 testified that he was called to be an independent witness in a case at the Nima Police Station. When he got there he saw the Appellants sitting in handcuffs. Also the 3rd accused but she was not in handcuffs. This was on 19th June 2013. He described the room where the statements were taken from the appellants as a short room with six tables and chairs and a bench. He stated that the handcuffs were removed from the appellants. The statements were taken from them in the Twi language, while it was recorded in English. PW1 further testified that the investigator read over and explained the contents to the Appellants after which they thumb printed and he witnessed the statements. He described the demeanour of the 1st Appellant as calm when he was making the statement. He stated that the 2nd appellant’s demeanour was also normal. He testified that the room was busy with people moving in and out. His evidence was not disturbed during rigorous cross examination by counsel for the appellants.

 

At page 6 of the record of proceedings dated 15th December, 2015, found at page 30 of appeal record,

PW2 testified further as follows:

Q. By your evidence, when did you take the Form 8 to the CID Headquarters, was it the same day you took the statements from A1 and A2?

A. Within 7 days.

Q. It was at that point that you realized A2’s teeth is broken, is that correct.

A. The forms were taken on that day and that was when I noticed that A2’s teeth were broken.

Q. That was the seventh day.

A. No my lord.

Q. You said you took the Form 8 to CID Headquarters on the 7th day after they were arrested.

A. No my lord, I took the forms on that 19th day June, 2013 because the form must leave within 7 days.

Q. Your evidence is that when you were taking the Form 8 to the CID Headquarters that was when you got to know that A2’s teeth is broken.

A. It was on that date the 19th of June, 2013 (day of Appellants arrest).

Q. But you took the Form 8 to CID Headquarters after you allegedly took the statement s from A1 and A2, that is your evidence, is it correct.

A. That is not correct.

Q. I am putting it to you that you are changing your evidence.

A. I have not changed my story.

Q. At the point that you arrested A2, did you notice his tooth was broken.

A. I noticed it my Lord.

Q. And why did you say that when you were taking the Form 8 to the CID Headquarters that was when you noticed his teeth was broken.

A. My Lord, at the point of arrest, I could not have asked him why he lost his teeth my Lord, but at the time of taking the Form I had asked him what happened to him why the teeth were not there, I couldn’t have asked.

Q. You took the Form 8 to the CID Headquarters after they arrested A1 and A2, it is correct.

A. Yes my lord.

 

On the issue of the arrest of the appellants, counsel for the accused submitted that they did not resist arrest for the police to use force to arrest them to cause bodily injuries. I found that however the record of appeal shows that while the 1st Appellant resisted arrest, the 2nd Appellant did not.

 

At page 4 of the Record of Appeal dated 15th December, 2015, found at page 28 of the appeal record,

PW2 testified about the arrest of Appellants as follows:

Q. You were one of the arresting officers(s) of A1 and A2, correct.

A. That is so.

Q. Did you use force to arrest them.

A. When we arrested, A1 he struggled with us before we could handcuff him therefore we used minimum force.

Q. Was he beaten at the point of arrest.

A. No my Lord.

Q. What about A2 did you also use minimum force to arrest him.

A. No my Lord.

 

There is a doubt as to whether DW1 and 1st Appellant’s brother visited 1st Appellant while he was in custody. The reason being that at page 41 of the record of appeal, 1st Appellant testified under cross-examination as follows:

Q. You told the court that your wife and your brother were present when you were being beaten.

A. That is true my Lord.

 

The conversation then continues further down the page as follows:

Q. You were also here and heard him say that when your statement was taken the place was busy with people, police officers, relatives, suspects, complainants etc.

A. I heard him say that but on that day it was only police officers and relatives of Madam Salaah, they also saw what they were doing to us.

 

Thus the conversation quoted above shows clearly that 1st Appellant was not being truthful. How come DW1 and 1st Appellant’s brother saw the beatings if the only people present were the relatives of madam Salaah (A3) and the police officers? The statements were taken in an office open to the public and if as she claims that she visited the 1st Appellant, if truly she visited, she was allowed there because it was a place opened to the general public and the Appellants could not have been beaten in full glare of the public as 1st Appellant would have this court to believe.

 

The fact is that the learned trial judge was in the position to observe the demeanor of all the witnesses including the prosecution witnesses and concluded that DW2 was not a truthful witness. At the trial, from the record of appeal, it was obvious that DW2 was economical with the truth about her visit to the station. Whiles she testified in chief that she received a call that her husband had been arrested, under cross examination, DW2 testified that it was her husband the 1st Appellant who called her. Also whilst she testified that her husband called her and told her he was at Nima Police Station she changed her story that he told her he was at Accra Central police station. Under cross-examination, DW2 stated thus:

A. My Lord the time my husband called me that they had arrested him at Accra Nima Police station it was in the morning.

Q. I am putting it to you that your husband was not arrested in the morning so you could not have received his call in the morning.

A. My Lord three days later that he called me that he had been arrested.

Q. So he did not call you on the day he was arrested.

A. No. my Lord.

Q. You told the court that at the time your husband called you in the morning he was at the Nima Police Station.

A. The time my husband called me he said they arrested them at Accra Central Police station.

Q. so you have changed your story.

A. I have not changed my story when my husband called me he said he was arrested at the Accra Central police station.

 

The record also reveals at page 44 of the record of appeal, that when the 1st Appellant’s counsel asked DW2 what the name of the elder brother of the 1st Appellant is and she could not mention it. Yet she claimed to have gone to the police station with him. DW2 stated at page 44 thus:

Q. What is the name of your husband’s brother.

A. I have forgotten his surname.

 

Whilst the prosecution led evidence that the statements were taken on the 19th day of June, 2013, the very day the Appellants were arrested, Vincentia claimed she went to the Central Police station 3 days after their arrest. One cannot fault a wife for trying to support her husband’s testimony that he was beaten. However, her testimony is that she saw the husband three days after his arrest. Therefore it cannot be true that she was present when the statements were taken on the 19th of June 2013. Her evidence is contradictory and cannot be supported by other pieces of evidence on the record.

 

On page 27 of the Record, PW2 testified as follows:

“Q: A1 and A2 said they were beaten severely before their statements were taken and you actually forced them to thumb print the statement that you brought to them. What do you have to say to that?

A. I vehemently deny to that because it was taken in an office where many people were moving around and that it is only an afterthought.

Q. What was only an afterthought?

A. That allegation that they were forced and also I remember when I was taking CID form 8 to be forwarded to the CID Headquarters I observed that A2 had lost two teeth so I questioned him in twi language as to what happened and he told me it was kaka. In respect of A1, I saw some marks on his body which are scars but these are stated on the form when you are building a record to be forwarded to the CID Headquarters. So apart from these petty things I saw on them nobody forced them to write their statements as they are alleging”.

 

Learned counsel sought to give the impression that the scars and the lost teeth occurred prior to the confession caution statement being taken.

 

This witness insisted in cross-examination that he did not say that he noticed

 

2nd Appellant’s teeth missing when he was taking Form 8 to the CID Headquarters. However, at page

 

27 of the Record of Appeal dated 15th December, 2015 he said in his evidence-in-chief as follows:

 

“…also I remember when I was taking CID Form 8 to be forwarded to the CID Headquarters I observed that A2 lost two teeth so I questioned him in Twi language as to what happened and he told me it is kaka”.

 

PW2 also stated that, in fact, he observed 2nd Appellant’s teeth missing at the point of arrest. At page 30 of the appeal record, he said:

“Q: At the point that you arrested A2 did you notice his teeth broken.

A. I noticed it my lord.

Q. And why did you say that when you were taking the Form to CID Headquarters that was when you noticed his teeth was broken.

A. My lord at the point of arrest I could not have asked him why he lost his teeth my lord but at the time of taking the form I had to asked him what happened to him why the teeth were not there. I couldn’t have asked him”.

 

Thus can one draw an inference that the Appellants sustained the injuries in police custody? I believe not.

 

Did PW2 say that he observed the bodily injuries of Appellants while he was taking their finger prints? (See page 22 of the Record of Appeal) or that he observed the bodily injuries of Appellants while he was taking the Form 8 to the Headquarters.

 

Therefore, counsel noted that there are serious contradictions in the evidence about the occasion on which PW2 allegedly observed 2nd Appellant’s missing teeth. What was the motive? Was it to hide the fact that the Appellants sustained these bodily injuries while in police custody?

 

Do these pieces of evidence cast a doubt on the fact that the statements were voluntarily procured from the Appellants?

 

The Oxford dictionary defines a scar as “a mark left on the skin or within body tissue where a wound, burn or sore has not healed completely and forms connective tissue has developed”.

 

I agree with counsel for the Respondent that a scar cannot occur in a day. PW2 observed these scars on 19th June, 2013, the day they were arrested. That means that these injuries would have been there prior to the arrest.

 

On the issue of whether or not PW2’s evidence was not to be relied on because it was full of contradictions; the record reveals that PW2 during Cross Examination referred to building a record to be forwarded to the CID Headquarters.

 

He also stated in his evidence that he noticed that A2’s teeth was missing at the point of arrest but that he could only ask him the reason for the loss of his teeth at the point when he was building the record on the CID form 8 to be forwarded to the CID Headquarters.

 

Counsel for Appellants in his submissions stated that the Prosecution did not produce the Form 8 in court because no entries were made. However, it was within the right of the Appellants and their counsel to request the court to direct the Police to produce it in court. This they failed to do.

 

The record also reveals that PW2 stated candidly that A1 resisted arrest and therefore minimum force was used to ensure his arrest. However, he further stated that A2 did not resist arrest. I do not find as credible the testimony of the A1 that “I dropped down with Kofi Nyagbedzi in handcuffs and they sent us to a certain room. My Lord, that room was where they started bearing us without asking anything from us”

 

The ultimate issue is whether the findings of the trial judge occasioned a substantial miscarriage of justice?

 

Learned Counsel for the Appellants submitted that there was erroneous finding by the judge and per Section 31 (1) and (2) of the Courts Act, 1993 (Act 459) this court must reverse the finding because it cannot be supported having regard to the evidence led.

 

As stated previously, the ultimate issue for the determination of this appellate court is whether or not that finding occasioned a substantial miscarriage of justice. This cannot be the case as there are other pieces of evidence discussed supra to support his finding that DW1 was not a truthful witness. In any case, as stated earlier, if she did not witness the taking of any statement on the day she visited the station, then it means that she does not have any personal knowledge about when the statement was taken or as to whether or not the accused was forced to thumbprint it.

 

On the issue of whether or not the finger prints of the Appellants were taken or not, the record is not before us and therefore submissions by Counsel for Appellant is speculative.

 

In the case of Azametsi vrs The Republic [1974] 1 GLR 228 CA, one of the issues for determination was whether or not the trial judge was bound to give reasons for his ruling at the mini-trial. The court held that although it was desirable that reasons be given for a ruling at the trial, the ruling need not be as exhaustive as the final determination or judgment, and where the reason was obvious and beyond doubt and could easily be inferred from the fact and circumstances there was no duty on the trial judge to give reasons for his ruling. If there was sufficient evidence at the mini-trial to satisfy the mind of the judge, it was immaterial that he did not give reasons preferring one story to the other. See also Practice and Procedure in the Trial Courts and Tribunals of Ghana S.A Brobbey 2nd Edition paragraph 250 at page 115-116.

 

Also in the case of Tsatsu Tsikata vrs The Republic [2003-2004] 2 SCGLR 1068 it was stated at page 1101 as follows; “… At the same time, we know that the lack of articulated reasons does not always lead to a miscarriage of justice. For even in the English case presently under discussion, Buckley L. J. admitted at page 827 that “in the present case we happen to know from the transcript of the argument what submissions were made to the judge. We may infer, but we cannot know, that the judge preferred those presented by counsel for the venders to those presented by counsel for the purchaser”. In the result, he merely deleted from the lower court’s order the declaration relating to the contingency allowing for the resale of the property by a specified date for less than the contract price. In the case before us, the ruling on the submission of no case, though made without articulated reasons, was not without basis in law. For the record, the judge wrote that: “Having listened to counsel for the Prosecution and the counsel for the Defence, and looking at the evidence so far adduced before this honourable court, I am of the opinion that a substantial case has been made against the accused to warrant him to be called upon to open his defence…”. It was a situation in which, as Buckley L J would put it, the judge “Preferred (the submissions)” made by the counsel for the prosecution. We hold that in this case, the failure of the trial judge to articulate her reasons for rejecting the submission of no case, regrettable as it is from the standpoint of judicial best practice, has occasioned no miscarriage of justice. We therefore dismiss this ground of appeal”.

 

In conclusion, it is my opinion that the learned trial judge had the opportunity to observe the demeanour of all the witnesses including the appellants. In addition going through the entire record, although there were a few inconsistencies in the evidence adduced by PW2 regarding when he noticed A2’s missing tooth or teeth, these were wiped out by the 2nd appellants own conflicting statements as to whether he lost a tooth or four? While the 2nd Appellant testified that his wife and children could testify that before he was arrested his teeth were intact, he failed to call them to confirm this assertion.

 

In the case of Hodgson vrs The Republic [2009] SCGLR 642, R C Owusu JSC stated at page 667 as follows:

 

“… The trial court which heard him and had the opportunity to assess his credibility came to the conclusion that he is not a truthful witness. His denial was weighed against the evidence of the prosecution witnesses which the trial court preferred. Short of believing the Appellant, did he put up any defence which can be said to be reasonably probable? We do not think so. Did this evidence succeed in raising any doubt, the benefit of which the trial court should have given to him? We have already stated that the Appellant’s denial and the reasons he gave for coming to Ghana did not in any way whittle down the case of the prosecution against him. Having concluded that the evidence was properly evaluated, this ground must also fail and same is dismissed”.

 

Ollenu JSC (as he then was) stated that a distinction ought to be made between reasonable and fanciful doubt. See Oteng vrs The Republic [1966] GLR 352 at 355.

 

I agree with learned counsel for the respondent when he stated that whatever doubts that the appellants sought to create in the evidence of the prosecution could at best be described in the words of Lord Denning in the Miller case cited supra as “fanciful possibilities meant to deflect the course of justice”.

 

For these reasons as stated above and in accordance with Section 31 (2) of the court’s Act, 1993, (Act 459) which provides that:

 

“The court shall dismiss the appeal if it considers that no miscarriage of justice has actually occurred or that the point raised in the appeal consist of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment”

 

I will dismiss the appeal and affirm the ruling of the court dated 17th December 2015.

 

Proceedings to continue at the Court below.

 

(SGD)

MARGARET WELBOURNE (MRS.)

(JUSTICE OF APPEAL)

 

(SGD)

KANYOKE     I agree                                            S. E. KANYOKE

(JUSTICE OF APPEAL)

 

(SGD)

ACQUAYE     I also agree                                         K. A. ACQUAYE

                                                                                    (JUSTICE OF APPEAL)