This is an appeal from the ruling of the High Court, Accra, dated 23rd May 2019, wherein the 3rd Accused/Appellant, was called upon to open his defence in respect of the charges of Conspiracy to steal, under sections 23(1) and 124(1) of the Criminal Offences Act 1960
(Act 29) as well as Money Laundering under section 1(1) (c) of the Anti-Money Laundering Act 2007, Act 749.
The facts giving rise to the instant appeal are not in any dispute. The 3rd Accused/Appellant, simply called the appellant, was charged alongside four other accused persons, for various offences, following investigations conducted into how an amount of Four Million United States Dollars (US$4,000,000.00) was used to purchase some cyber equipment allegedly for the National Security Council Secretariat, from the account of National Communications Authority, without any authorization, and also without going through the necessary procurement processes. The prosecution who alleged that the 1st, 2nd, 3rd Accused/Appellant, and the 4th accused took the decision to purchase the cyber surveillance equipment in 2015 without authorization, went on to allege that, in furtherance of this decision, the 4 accused persons, including the appellant, after getting the money released, transferred same to a Company called Infraloks Development Limited, with the 5‘h accused as director. The facts further show that, One Million United States Dollars (US$1,000,000.00), was transferred to NSO Group Technologist Ltd., an Israeli Company that had been selected to supply the equipment. The prosecution further alleged that investigations revealed that the remaining three million United States Dollars (US$3,000,000.00) was shared among the accused persons including the Appellant. Based on the above facts, the prosecution charged all the accused persons, including the Appellant, in counts 1, 2 and 3, with the offences of Conspiracy to wilfully cause financial loss to the state contrary to section 23(1) and l79(3)(a); wilfully causing financial loss to the state under section 179A(3)(a); and Conspiracy to steal, under section 23(1) and 124(1) of the Criminal and Other Offences Act 1960 (Act 29).
The 5th Accused person, George Derek Oppong, and Director of lnfraloks Development Ltd., alone was charged in count four, with the offence of stealing the sum of Four Million United States Dollars (US$4,000,000.00]. Under counts 5 to 9, the five accused persons are charged variously for using public office for profit contrary to section 179(C) (a) of Act 29, with the appellant being particularly charged under count 7. In counts 10 and 11, the 1st, 2nd and 4th Accused persons are charged with the offence of Contravention of the Public Procurement Act 2003 (Act 663), under sections 92(1) and 14(l)(a) and 92(1) and 15(1)(a) respectively. In counts 12 to 15, the five accused persons are variously charged with the offence of Money Laundering contrary to section 1(l) (c) of the Anti-Money Laundering Act 2007, Act 749, with the appellant being specifically charged under count 14. The prosecution then finally charged all the accused persons, including the appellant, in count 17 with the offence of intentionally misapplying public property under section 1(2) of the Public Property Protection Act 1977 (SMCD 140).
The accused persons, including the appellant, pleaded Not Guilty to their respective charges, and the prosecution, in a bid to demonstrate that the offences charged had been committed, called six witnesses and tendered in evidence, various documents, including unsworn statements taken from the accused persons, including the appellant, during the course of investigations. At the close of the prosecution’s case, Counsel for the accused persons all made submissions of no case in respect of the various charges against them, upon which the trial Judge, on 23rd May 2019, gave a ruling whereby he called upon the appellant to open his defence in respect of the charges laid against him in counts 3 and 14 in respect of the offences of conspiracy to steal and money laundering.
Dissatisfied with the ruling, the appellant has mounted the instant appeal on the following grounds of appeal in his notice of appeal at pages 216 to 218 of Volume 2 of the record of appeal:
“a. The leaned judge erred in law when he held that Accused had a case to answer to the charge of conspiracy to steal by reason of the doctrine of recent possession.
Particulars of error of law
i. The learned judge made no finding of fact that any of the ingredients of the offence of conspiracy to steal had been established by the prosecution against the Appellant.
ii. Appellant had not been charged with the offence of dishonestly receiving any stolen goods and as such the doctrine of recent possession is inapplicable.
b. The learned judge committed an error of law when he relied on section 156 of Act 30 to call upon the Appellant to open his defence.
Particulars of error of law
i. By the provision of section 156 of Act 30, a person can be convicted of dishonestly receiving a thing even though not charged with same only when he has been charged with the offence of stealing.
ii. The Appellant has not been charged with the offence of stealing as such section 156 of Act 30 is inapplicable.
c. The learned judge erred in law when he held that Appellant had a case to answer to the charge of money laundering.
Particulars of error of law
i. The learned judge made no finding of fact that any of the ingredient of offence of money laundering had been established by the prosecution.
d. The ruling cannot be supported having regard to the evidence”.
The appellant’s complaint, which is about the part of the ruling calling upon him to open his defence in respect of the offences of conspiracy to steal in count 3, and money laundering in count 14, seeks the intervention of this Court to set aside that part of the ruling.
The relevant provisions of the statutes under which the appellant was charged, as far as this appeal is concerned, are conspiracy to steal under sections 23(1) and 124(1) of Act 29 in count 3, and money laundering, under section 1(1)(c) of the Anti-Money Laundering Act 2007, Act 749 in count 14. In count 3, appearing at page 2, volume 1 of the record of appeal, the prosecution alleged in the particulars of the offence that the appellant and the others, between December 2015 and May 2016, in Accra, agreed to act together with a common purpose to steal money belonging to National Communication Authority. In respect of count 14, the particulars of the offence allege that the appellant, between March and May 2016, in Accra, knowingly took possession of the proceeds of an unlawful activity.
The offence of conspiracy, under section 23(1) of Act 29 has been restated by the statute Law Review Commission as follows:
“If two or more people agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be”.
This fact has been accepted, as the cases of Faisal Mohammed Akilu v The Republic J3/8/2013 of 5’“II July, 2017, and Francis Yirenkyi v The Republic, Suit No. J3/7/2015 show. The restatement of the offence did not however affect the double edged nature of the offence having regard to the use of the words “… whether with or without any previous consent or deliberation”, as explained in Faisal Mohammed Akilu case (supra). This being the case, the elements of the offences of conspiracy can be said to be the following:
a. There must be two or more persons
b. There was an agreement to act together
c. The purpose of their agreement to act together was to commit or abet a crime
d. That it is immaterial whether they had any previous concert or deliberations to act together.
As the authorities show, since it is usually difficult, if not impossible, to prove previous agreement, conspiracy can be inferred if facts show that the accused persons acted together in committing the crime charged. The prosecution therefore has the onus of adducing the needed evidence to show that, having regard to all the circumstances of the case, the appellant and the other accused persons must have acted together in committing or abetting the crime of stealing money belonging to National Communication Authority.
In respect of the charge of money laundering against the appellant in count 14, under section 1(1) (c) of the Anti-Money Laundering Act 2007, Act 749, section 1 of the Act provides as follows:
“1(1) A person commits an offence of money laundering 1f the person knows or ought to have known that property is or forms part of the proceeds of unlawful activity and the person
(a) Converts, conceals, disguises or transfers the property,
(b) Conceals or disguises the unlawful origin of the property, or
(c) Acquires, uses or takes possession of the property.
(2) For the purposes of this Act, unlawful activity means conduct which constitutes a serious offence, financing of terrorism, financing of proliferation of weapons of mass destruction or other transnationally organized crime or contravention of a law regarding any of these matters which occur in the country or elsewhere”.
In this case, as the particulars of offence in count 14 allege that the appellant knowingly took possession of proceeds of an unlawful activity, to wit $550,000.00, the prosecution must therefore adduce evidence showing that the appellant took the sum in question with knowledge that it was proceeds from an unlawful activity. To be able to discharge this onus of proof, the prosecution must first show that the Appellant in fact took possession of $550,000, and further that, he was aware of it being proceeds from an unlawful activity, which in this case, must be money stolen or unlawfully taken from the National Communication Authority.
The burden of producing evidence is provided under Section 11 of the Evidence Act, 1975, NRCD 323 and subsections (1) and (2) are as follows:
“(1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.
(2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt”.
Commenting on the provision in section 11(2) of NRCD 323, Atuguba JSC in his dissenting opinion in Tsatsu Tsikata v The Republic [2003-2004] SCGLR 1068 at 1121 said:
“To my mind, the provisions of section 11(2) of the Evidence Decree, 1975 means that a reasonable mind, applying his powers of reasoning to the evidence led by the prosecution at the close of its case will end in the conclusion that, if no contrary evidence is led, it could be said that the relevant fact which has to be established by the prosecution has not been established by the prosecution beyond reasonable doubt. This certainly calls for an assessment of and not merely a reading of the evidence so led …”
In the instant case, where the appellant and the other accused persons were being tried by a Judge sitting alone, the relevant provision applicable to be considered in determining whether the prosecution has been able to discharge the evidential burden in section 11(2) of the Evidence Decree 1975 NRCD 323 are sections 173 and 174(1) of the Criminal and Other Offences (Procedure) Act 1960, (Act 30), which are as follows:
“1 731f at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require him to make a defence, the court shall, as to that particular charge, acquit him. 174(1) At the close of the evidence in support of the charge, if it appears to the court that a case has been made out against the accused sufficiently to require the accused to make a defence, the court shall call on the accused to make a defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement.”
There is no dearth of authority, as to when a court should hold that at the close of the case for the prosecution, the burden of producing evidence, placed on the prosecution under section 11(2) of the Evidence Decree 1975, NRCD 323 has not been met sufficiently to warrant the accused being called upon to open his defence. In the State v Ali Knuenn [1962] 1 GLR 144 at 148, Taylor J, quoted the following passage from Pattet v Blunt of Cornfoot [1847] 2 Cot CC 242, that there is generally no case to answer unless there is “such evidence if the court found in favour to the party for whom it was offered, the court would not upset the judgment”.
After quoting the Practice Direction, given by Parker CJ in the Times of 10th February 1962, as to when a submission of no case should be upheld, the learned judge went on to hold as follows at page 149:
“It is for a judge, in a summary trial, to weigh the evidence and decide whether from the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if uncontradicted will justify a conviction”.
After reference to a passage from the judgment of Lord Wright in Cassel v Powell Duffreyn Assoc. Collerie Ltd. [1940] AC 152 at 169 BC, Taylor J stated thus at page 150:
“Where therefore the evidence adduced on behalf of the prosecution fails to take the case out of the realm of ’conjecture’ the evidence is best described as ‘insufficient ’. It is the type of evidence, which because it cannot convince, cannot be believed and therefore it is incapable of sustaining a conviction. In these circumstances it would be wrong, in a summary trial, to overrule a submission of no case to answer.”
In Apaloo v The Republic [1975] 1 GLR 156 at 175 CA, Azu Crabbe CJ stated the test on making a submission of no case as follows:
‘The circumstances in which a submission of no case may be successfully made are:
(a) Where there has been no evidence to prove an essential element of the crime charged; and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.”
In Moshie v The Republic [1977] 1 GLR 287 at 290 CA, Azu Crabbe CJ went on to expand, what he stated in Apaloo v The Republic (supra), by subdividing (b) into two parts, and adding another dimension, when, after reference to the duty of a judge under section 271 of Act 30, in a trial on indictment, he said:
“The law now seems to be that in considering his duty under section 271 of the Criminal Procedure Code 1960 (Act 30), the judge should not leave the case to the jury if he is of the opinion that (a) there has been no evidence to prove an essential element in the crime charged; or (b) the evidence adduced by the prosecution has been so discredited as a result of cross examination; or (c) the evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it; or (d) the evidence is evenly balanced, that is to say, the evidence was susceptible to two likely explanations, one consistent with guilt, one with innocence.”
At page 291, he concluded that where one of these elements is evident in the case for the prosecution, the judge ought to charge the jury for acquittal and not leave the matter in such a case to the jury.
The law on the submission of no case, as restated by Azu Crabbe CJ in Moshie v The Republic (supra), was adopted by the Supreme Court in Michael Anamoah & Another v The Republic, Suit No. J3/4/2017 (unreported) dated 20th July 2017, when Adinyira JSC in her judgment, after reference to the provisions of Sections 173 and 174 of the Criminal Procedure Code 1960 (Act 30) stated thus at page 5:
“The underlying factor behind the principle of submission of no case is that an accused should be relieved of defending himself where there is no evidence upon which he may be convicted. The grounds upon which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under summary trial or trial an indictment may be restated as follows: (a)There has been no evidence to prove an essential element in the crime; (b)The evidence adduced by the prosecution has been so discredited as a result of cross-examination; or (c) The evidence was so manifestly unreliable that no reasonable tribunal could safely convict on it; (d)The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt, and one with innocence”.
The learned Supreme Court Judge opened her judgment with the following dictum of Lamer Cd, in the Canadian case of R v P (MB) [1994] 1 SCR 555, on a submission of no case: “Perhaps the single most organizing principle in criminal law is the right of the accused not to be forced into assisting in his or her own prosecution. This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her”.
In R v Ojojo [1959] GLR 207 at 213 CA, the Court by way of obiter said:
“We wonder, if at the close of the case for the prosecution there was room for doubt, why the prisoner was called upon to open his defence. This brings us to the burden of proof which rest on the prosecution. If at the close of the case for the prosecution there was doubt whether or not the appellant had committed any offence of which he could lawfully be convicted on the information upon which he was being tried why was he called upon to open his defence?”
The Supreme Court, in The State v Sowah & Essel [1961] GLR 743 at 745 held as follows:
“In a criminal case, except in the instance of insanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence. It is wrong therefore to presume the guilt of an accused merely from facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed, and which, therefore calls for explanation from the accused.”
The court thereafter went on to quote the following passage from Woolmington v DP? [1935] AC 462 at 478 on what amounts to “presumption of guilt” or ‘prima facie” case:
“’Presumption of guilt; or ‘prima facie’ cases of guilt in a trial of a party charged with a crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offence with which he is charged”.
Bearing in mind the above principles, and the law as to what the prosecution must prove before an accused person may be called upon to open his or her defence, this court, in its duty to rehear the matter, will have to review the evidence led during the trial by the prosecution as at the close of its case, as far as the appellant is concerned, in respect of the offences for which he has been called upon to open his defence. This court, like the trial Court, has to weigh the evidence to satisfy itself whether at the close of the case for the prosecution, sufficient evidence had been adduced to warrant the appellant being called upon to open his defence. This evaluation of the evidence will be done along the lines stated in the many cases touching on when a submission of no case may be upheld; namely:
(a)Whether evidence has been adduced to prove each and every essential element of the offence(s) charged;
(b)Whether the evidence of the prosecution has been badly discredited as a result of cross-examination;
(c)Whether the evidence adduced by the prosecution is so manifestly unreliable that a court can safely convict on it if no explanation is forth coming from the accused; and,
(d) Is the evidence at that stage so balanced that it is both consistent with guilt and innocence?
As held by Azu Crabbe Cd in Moshie v The Republic (supra) at 291, where one of these elements is evident in the case of the prosecution the judge ought to charge the jury for acquittal and not leave the matter in such a case to the jury. This statement will apply with the same force to a summary trial.
What is the evidence led by the prosecution in this case against the appellant? PW2, Dr Isaac Yaw Ani, who in fact gave evidence as to how the sum of Four Million United States Dollars (US$4,000,000.00) was paid out of the funds of the National Communicational Authority, at page 105 of volume 1 of the record of appeal, narrated how in February 2016, he had an intercom call from the Director General, the 2nd Accused, in this case, to come to his office, and how on getting there, he met the Board Chairman, Mr Eugene Baffoe Bonnie, the 15th accused in the matter; and how he was directed to put in place processes to get the money transferred whilst waiting for a request from National Security. His account also shows that upon preparation of the necessary document, exhibit F, it was signed by the 2nd accused person, on behalf of National Communication Authority. He went on to state that he was later informed of the request from National Security, after he had prepared the transfer letter on behalf of lnfraloks Development Ltd. (see pages 105 107 of the record of appeal in Volume 1).
Following the acquisition of the cyber surveillance equipment, the evidence of PW4. Henry Akplehe Kanor, Deputy Director in charge of Technical Operations, at pages 229/230 of Volume 1 of the record of appeal, states that he was invited in April 2016, by the 1th, 2nd, 4th and 5th accused persons, where he met a white lady, to install the equipment.
On his part, the investigator and PW6, in his evidence at page 316, Volume 1 of the record of appeal, stated that, when the 1st, 2nd and 3rd accused persons were invited to the offices of the BNI, the 1st accused indicated that all the accused persons benefited financially from the purchase of the cyber surveillance equipment. At page 325, he went on to state that investigations, however, revealed that the Board did not approve the purchase.
The investigator, and PW6, upon being cross-examined by counsel for the appellant at pages 73 to 76 of Volume 2 of the record of appeal, and which have been extensively quoted in the submissions on behalf of the appellant at 18, 19, 21 and 22 of the submissions, admitted that in exhibit PP2, the 1st accused stated that he informed the 2nd accused to inform the appellant about the disbursement. The witness also admitted in cross-examination that the appellant has throughout insisted that he only got to know about the institutional support after the disbursement of the money. At page 74 in particular, he admitted that from the evidence of PW2 referred to earlier, that the instructions for the disbursement came from the 1st and 2nd accused persons. PW6 further admitted that, from his investigations, the appellant was not part of the deliberations leading to the purchase and that he charged the appellant because the 1st accused mentioned him in exhibit PP2 in connection with $550,000 (see page 74 Vol. 2).
When PW6 was cross-examined as to whether the 1st accused gave any details as to how the $550,000.00 was distributed, he answered that the 1st accused failed to give any details when requested (see page 75 Vol. 2 of the record of appeal). At page 76, the witness also admitted that investigation did not reveal that the appellant received any physical sum of $550,000 except what is stated in exhibit PP2, and further that, there was nothing to show that the appellant distributed any money to the 2nd and 4th accused persons. Asked the basis for charging the appellant for money laundering, the witness (PW6), at page 83 Volume 2 of the record of appeal, stated that it was because he failed to produce receipts for the dollars he said he had changed. At page 85/86 of Volume 2 of the record of appeal, PW6, who admitted that there was no evidence that any part of the $3,000,000.00 was given to the appellant, however said that he believed that the $300,000 deposited into his account was his share of the booty having regard to its closeness to the time of the purchase of the surveillance equipment.
From the above, was there any evidence adduced at the close of the prosecution’s case to show that the appellant was part of the deliberation leading to the purchase of the cyber surveillance equipment or that he agreed or acted with the other accused persons? The evidence of PW2 clearly shows that the appellant was not present when the instructions to transfer $4,000,000.00, on behalf of lnfraloks Development Ltd. was given by the 1st and 2nd accused persons in February 2016. The statement of the 1st accused, per exhibit PP2, even shows that it was 1st accused who told the 2nd accused to inform the appellant about the institutional support. It is true that the 2nd accused, in his statements to police, exhibit FF, stated that the appellant was present. It is, however, worthy to note that he did not indicate the occasion and purpose for which the appellant was present. In any case, it is clear from the evidence of PW2, that the appellant was not present when instructions to transfer $4,000,000.00 was given. It is also clear from exhibit PP2 that the appellant was informed about the institutional support by the 2nd accused upon instructions from the 1st accused. If the appellant was in fact present or aware of the institutional support, why did the 1st accused not say so or why would it be necessary for him to be informed about it. In any case, PW6 who took over the investigation, has admitted times and over that investigations did not reveal any involvement of the appellant prior to the purchase.
It is true that at the close of the case for the prosecution, the guilt of the accused is not supposed to have been proved beyond reasonable doubt. As the authorities however show, and having regard to the provisions of section 11(2) of the Evidence Decree 1975, NRCD 323, the evidence led at this stage should however be such that it should be capable of convicting the accused if he/ she offers no explanation.
Not only should all the elements of the offence should have been proved, but also that the evidence adduced should be reliable and should not have been so discredited, through cross-examination that no reasonable tribunal can safely convict on it. The evidence at this stage should also not be so equally balanced as to be susceptible to two likely explanations or consistent with both guilt and innocence.
Having regard to the totality of the evidence adduced at the end of the prosecution’s case against the appellant in respect of count 3, can it indeed be said that the prosecution has led sufficient or credible evidence that should result in the conviction of the appellant should he chose to say nothing? As has been stated in this judgment, PW6, the Police investigator, has admitted under cross-examination that investigations did not reveal that the appellant was part of the discussion leading to the purchase and further that there was no evidence of any payment of money to him or by him to any of the other accused persons.
Despite the amendment of the law of Conspiracy by the Statute Law Revision Commissioner, the prosecution still has the duty to prove that an accused person acted with others to commit or abet the particular crime. See Yirenkyi v The State (supra). This is what the law expects of the prosecution under section 15(1) of the Evidence Decree 1975 (NRCD 323). Also see section 11(2) of NRCD 323 on how this burden is discharged.
The trial judge, in his ruling at pages 210 and 211 of Volume 2 of the record of appeal, acknowledged the fact that the first time the appellant’s name came up was in the evidence of PW6 when he stated that the 1st accused had stated in exhibit PP2 that all the accused persons benefited financially from the purchase. The trial judge also referred to the cases of Lawson v The Republic [1980] GLR 574, on the effect of an unsworn statement made by a co-accused against another and the requirement for some independent evidence in such a situation.
After posing the question whether there was any such independent evidence connecting the appellant with the crime that was credible enough, he went on to observe that the 1’t accused had even in exhibit Z, given on 25th July 2017, recounted his statement in exhibit PP series.
The trial judge thereafter referred to exhibits “SS”, the Stanbic Bank Statement of the appellant, and the various lodgements made therein between 22nd September 2016 and November 2016, and observed that it was these lodgements, when matched with the withdrawals, made by the 5th accused in exhibit “QQ’, that the prosecution was relying on as connecting the appellant with the crimes. He also referred to the appellant’s explanation about his means supported by documents, and how he had accumulated dollars over the years. He thereafter stated, at page 213, volume 2 of the record of appeal as follows:
“The offence of stealing or conspiracy to steal and its symbiotic relationship to the offence of dishonestly receiving under section 156 of Act 30 cannot at this time be lost on the court Conversely section 148 introduce (sic) a dynamic provision which has been called by Justice Twumasi in his works Criminal Law in Ghana’ as the doctrine of recent possession. The section makes it possible for in a charge of dishonestly receiving where anything which is reasonably suspected of having been stolen or unlawfully obtained in the possession or custody of an accused, and the accused does not give an account, to the satisfaction of the court, as to how he came by it, the property may be presumed to have been stolen or unlawfully obtained and the accused may be presumed guilty of dishonestly receiving in the absence of evidence to the contrary.”
After making further reference to Twumasi works as contained at page 359 of his book, the learned trial judge continued thus at pages 213 and 214 of volume 2 of the record of appeal:
“I have noted that A3 is not charged with dishonestly receiving but with the offence of conspiracy to steal and due to section 156 of Act 30, that connects stealing with dishonestly receiving, 1 deem it necessary that an opportunity be offered A3 to explain how the $300,000 was obtained and deposited almost contemporaneous to the time that the withdrawals of A5 started. Accordingly, I find prosecution has established a prima facie case in respect of count 3 against A3. With prosecution having made a prima facie case of the commission under count 3 against A3, being a predicate offence which yields proceeds, a prima facie case of money laundering has been established and I invite A3 to also open his defence in respect of count 14. I intend to further deal and expand this technical area of the law in the final judgment of the court. I however, acquit and discharge A3 in respect of counts 1, 2, 7 and 17.”
From the cases touching on submission of no case, whether in a summary trial or trial on indictment, the judge, upon such a submission, has a duty to evaluate or weigh the evidence along the lines laid down over the years in deciding whether to uphold or overrule the submission of no case. A trial judge, upon submission of no case, therefore has a duty to first consider whether the prosecution has been able to adduce credible evidence in support of all the essential elements or ingredients of the offence(s) charged; when satisfied that this requirement has been satisfied by the prosecution, the trial just must next go on to consider whether or not the evidence adduced by the prosecution in support of the offence(s) charged, have not been so discredited in cross examination as diminish its worth. The judge will next consider whether the evidence led by the prosecution in support of charges against the accused person(s) is reliable enough to sustain a conviction in the eyes of any reasonable tribunal. Finally, the trial judge has to consider if the evidence is such that it is not consistent with both guilt and innocence or susceptible to two explanations.
As the authorities show, the submission should be upheld where an essential element of the crime charged has not been established by the prosecution. The same result should apply where upon weighing the evidence so far adduced in support of the charge, the trial judge finds that the evidence has been so discredited as a result of cross-examination as to amount to failure to discharge the burden of persuasion under section 11(2) of the Evidence Decree 1975 (NRCD 323). Where in his evaluation of the evidence adduced at this stage, the judge also finds it to be so unreliable that it would not be safe for any reasonable tribunal to convict on it, the submission of no case should also be upheld. Finally, where upon an evaluation of the evidence at that stage, the judge finds that it is equally balanced in that it is consistent with both guilt and innocence, the submission of no case should also be upheld.
It is the view of this court that the learned trial judge failed to discharge his duty in the manner stated above having regard to his ruling quoted earlier. It must be pointed out that sufficient evidence means such credible evidence as will satisfy any reasonable mind that the fact in issue has been proved beyond a reasonable as stated in section 11(2) of NRCD 323. The trial judge, who cited cases on the effect of unsworn statements made against an accused person by a co-accused, did not attempt to show the independent evidence that was required to connect the appellant with the crimes. This fact was not only admitted by PW6, but also by the trial judge who stated that the appellant was first mentioned by the 1st accused in his statement exhibit PP2. Even though he observed that the 1st accused later sought to recount his earlier statement, yet he failed to find that the evidence against the appellant was not reliable and that, no reasonable tribunal could base a conviction on it if the appellant failed to offer any explanation.
The fact that the deposits contained in exhibit “SS” were close to the withdrawals made by the 5th accused in exhibit “QQ” does not constitute evidence that the $300,000 was part of the $4 million appropriated from National Communication Authority. Section 1(1) of the Anti-Money Laundering Act 2007 act 749 is as follows:
“1(1)A person commits the offence of money laundering if the person knows or ought to have known that property is or forms part of proceeds of unlawful activity and the person: (a) Converts, conceals, disguises or transfers the property (b) Conceals or disguises the unlawful origin of the property (0) Acquires, uses or takes possession of the property”
The appellant was charged under section l (1) (c) of Act 749 and the particulars alleged that he knowingly took possession of proceeds of an unlawful activity to wit $550,000. The prosecution therefore has a duty to prove that the appellant did take possession of $550,000 with knowledge that it was proceeds from an unlawful activity. PW6, under cross-examination, admitted that there was no evidence that the appellant received or paid out any money. Neither the 2nd or 4th accused persons also stated in their statements to police that they received any money from the appellant. PW6 even admitted that the 1st accused, who stated that all accused persons benefited from the purchase, failed to give any details when called upon to do 30. Having regard to the totality of the evidence at this stage, can it be said to be reliable enough for a reasonable tribunal to convict on it?
It is true that under section 46(2) of the Anti-Money Laundering Act 2007, Act 749, an accused person may be presumed to have unlawfully obtained pecuniary resources or property in his possession which is disproportionate to his known sources of income which he cannot account for or had obtained access to personal pecuniary resources or property for which he cannot offer a satisfactory account. The section is as follows: ’46(2) In a trial for an offence under the Act, the accused person may be presumed to have unlawfully obtained pecuniary resources or property in the absence of evidence to the contrary, if the person (a) 1st in possession of pecuniary resources or property which the accused cannot account and which is disproportionate to the accused person‘s known sources of income; or
(b)Had at the time of the alleged offence obtained access to personal pecuniary resources or property for which the accused cannot satisfactorily account?”
The learned trial judge, on his ruling in the submission of no case in respect of the appellant, made reference to his explanation about his sources of income and how he came by the money in his Stanbic Bank account, as well as why he had deposited it at that time. The appellant, by this explanation, has tried to show that the sum in his account is not disproportionate to his known sources of income, and how he came by the pecuniary resources in his bank account. An accused person is only to raise doubt as to guilt even when the evidential burden is thrown upon him/her under section 11(3) of the Evidence Decree 1975, (NRCD 323). As the case of Michael Asamoah and Another v The Republic (supra) shows, an accused person has no duty to prove his innocence. It was also held in The State v Ali Knuena (supra) that where the prosecution’s evidence fails to take the case out of the realm of “conjecture” the evidence at best is described as ‘insufficient”.
1n the instant case, it is the view of this Court that the trial judge failed to carry out satisfactorily the duty placed on him by section 173 of the Criminal and Other Offences (Procedure) Act, 1960 Act 30 by subjecting the evidence adduced by the prosecution at that stage along the stages laid down in the many decided cases, and in the manner outlined earlier in this judgment. The learned trial judge rather referred to the doctrine of recent possession; the symbiotic relationship between the offences of stealing or conspiracy to steal and dishonestly receiving under section 147 of the Criminal Offences Act 1960 (Act 29), as well as the provisions of section 156 of Act 30, and then concluded that a prima facie case has been made against the appellant in respect of count 3, and, a fortiori, count 14 because count 3, conspiracy to steal, being a predicate offence which yields proceeds, he deemed it necessary that the appellant should explain further how $300,000.00 came to be deposited in his account almost contemporaneously to the withdrawals by the 5th accused.
In his written submissions, especially at pages 29 to 33, learned counsel for the appellant pointed out that as the learned trial judge had found as a fact that the appellant had not been charged with the offence of dishonestly receiving under section 147, the provision of section 148 of Act 30 were inapplicable and that the learned judge erred in calling upon him to open his defence in respect of the conspiracy charge in count 3. He further submitted that it is only where a person is charged with the offence of stealing and it is proved that he had received the thing with knowledge that it had been stolen that he can be convicted of receiving the thing under section 156 of Act 30. Whilst admitting that section 156 of Act 30 connects stealing with dishonestly receiving, that same cannot be said about its connection with the offence of conspiracy to steal.
It should be pointed out that even in a charge of Stealing, before an accused person can be convicted of the offence of dishonestly receiving under section 156 of Act 30, the prosecution must prove that the accused has received the thing stolen, and further that he or she knew that the thing has been stolen. As indicated earlier in this judgment, the prosecution has not been able to adduce scintilla of evidence to show that the $300,000.00 in the appellant’s Stanbic Bank account was indeed part of the $4million appropriated from the National Communication Authority or proceeds from an unlawful activity.
In calling on the appellant to explain further how he came by the money deposited in his Stanbic Bank account close to the time the 5th accused was making the withdrawals, the learned trial judge is by implication saying that he does not believe the explanation given by the appellant as to his sources of income and how he accumulated the dollars, and why he chose to deposit it in his account at that particular time. This, in the view of this court, is not only tantamount to shifting the burden on the appellant to prove his innocence, but also an indication that the appellant would be found guilty if he fails to offer any better explanation. In Atsu v The Republic [1968] GLR 717 at 719 CA, the Court held as follows:
“As a general rule, evidence from the defence is not taken until the court has held that the prosecution has established a prima facie case. This is based upon the well-known principle that it is the prosecution which has the onus to prove the guilt of the person they accused of an offence, and not an accused who should establish his innocence, the accused should therefore not show his hands until the need arises”.
It is true that an appellate court, in its duty to review the evidence, in coming to a decision whether or not the conclusion originally reached by the trial court should stand, is to act cautiously. If there is however no evidence to support a particular conclusion, or if from a review of the evidence the appellate court is satisfied that there has been an error in manner the lower court applied the law, the appellate court should not hesitate to intervene. From our evaluation of the evidence led before the trial court, and from the submissions made on behalf of the appellant, this court is of the view that the learned trial judge erred in law in calling upon the appellant to open his defence in respect of the charges in counts 3 and 14 when there was no evidence connecting the appellant with the offences and the prosecution’s case did not go beyond the realm of conjecture, and especially more so, when he has not been charged with the offence of stealing or dishonestly receiving. In sum therefore, the appeal succeeds and the ruling of the trial court dated 23rd May 2019, calling on the appellant to open his defence in respect of the charges in counts 3 and 14, is hereby set aside and in its stead, an order upholding the submission of no case entered for the appellant in respect of those counts.
P. B. MENSAH, JA I agree
OFOE, JA
On reading the record of appeal and the judgment of my colleagues I found it necessary to add my thoughts, though few in support of the lead judgment written by my brother Simon Suurbaareh.
I must say that the trial judge acquitted himself creditably in his ruling noting all the current authorities and the principles churned out from these authorities. It is in respect of the 3rd accused Nana Owusu Ensaw that we are being called upon to review the record of appeal whether the trial judge’s refusal to uphold the submission of no case is proper having regard to the evidence on record.
Appellant was charged with 6 counts. At the close of the prosecution’s case he was acquitted on all the counts except 2-Conspiracy to steal under sections 23(1) and 124(1) of Act 29 and Money Laundering under sections I (lc) of the Anti-Money Laundering Act 2007, Act 749. As dilated on by both opinions read by my brethren, for conspiracy
1. There must be two or more persons.
2. There must be agreement to act together
3. The purpose of their agreement to act together is to commit a crime.
The trial judge dealt copiously and commendably with both statutory and case law authorities on conspiracy. The lead judgment has done likewise, I cannot do any better.
What comes out clearly from these authorities is that there should be evidence that the persons involved agreed to act together to commit the offence charged, in our case, conspiracy to steal. No doubt the prosecution has the duty to lead evidence to prove the part each person played in the conspiracy in achieving the planned objective. In the case of Faisal Mohammad Akilu we The RepublicJ3/8/2013 of 5th July 2017 the court stated that conspiracy could be inferred from the act of having taken part in the crime where the crime is actually committed.
In the charge of stealing section 125 defines stealing as follows
“A person steals if he dishonestly appropriates a thing of which he is not the owner”
The case law authorities have dissected this section with the elements as
1. Appropriation of a thing
2. The appropriation must be dishonest and
3. The accused must not be the owner of the thing.
Refer to the cases of Ampah & Another m The Republic (1977) 2 GLR 171, Baah v The Republic (1991) GLR 483, Lucien v The Republic (1977) 1 GLR 351.
In respect to the charge of conspiracy to steal under count 3 under which the appellant was charged we will have to concern ourselves with the laws on conspiracy and stealing as briefly mentioned above. What evidence has the prosecution led to establish that the appellant was involved in a conspiracy to steal this amount $4m?
The other charge for which the appellant was asked by the trial judge to open his defence is that of that money laundering. Section 1(1C) of the Anti-Money Laundering Act 2007, Act 749 defines the offence as follows:
“A person commits the offence of money laundering if the person knows or ought to have known that the property is or forms part of the proceeds of unlawful activity and the person
(a) Converts, conceals, disguises or transfer: the property
(b) Conceal: or disguises the unlawful origin of the property
or
(c) Acquires, uses or takes possession of the property.
In the month of March and May 2016 did the appellant, as stated in the particulars of offence, knowingly take possession of an amount of $550,000 being proceeds of an unlawful activity? Did he know or ought to have known that $500,000 is a subject of a crime or forms part of the proceeds from an unlawful activity? If he knew did he convert, conceal disguise or transfer or conceal the unlawful origin of the property or taken possession of same?
What is not in doubt is that the appellant was not mentioned by any of the accused persons as having been involved in the discussion towards the purchase of Pegasus Equipment. It was after the purchase that he got to know of it. Not only was this clear from the PW6, the investigator of the case, but none of the prosecution witnesses mentioned the appellant concerning this equipment or having played any role in the purchase of this equipment. There was however charged statements from some of the co-accused, accomplices that sought to indicate that appellant was present at a meeting at which monies for the purchase of the Pegasus Equipment was discussed and he was in a way involved in the sharing of part of these monies. The trial judge alluded to the evidential value of these statements and the lead opinion did similarly. I will come back to this issue of the co-accused statement. There was also the amount of $300,000 which was deposited in the appellant’s account about 5 months from the date that the monies for the purchase of the Pegasus equipment got into the hands of the other co-accused, which from the evidence was distributed on the direction of the 1A. It is the view of the prosecution that this $300,000 should be seen as part of the shared monies.
But how did the trial judge address this issue of conspiracy to steal and the money laundry charge? He was brief in his assessment of the evidence of the prosecution after which he called on the appellant to open his defence. I will quote the whole of what he said of the appellant in his ruling and the basis for calling on him to open his defence. He stated (refer to page 212 of the record of appeal vol 2)
“So, is there some independent evidence led to show that at least for now there is sufficient case for A3 to be invited to provide some explanation as to his complicity and the level of his involvement in respect of the offences charged?
There is exhibit DD given by A2 where he stated that A3 was present as chairman of the Finance Committee when the matters were concerning the money was discussed. A2 repeated this claim in exhibit EE.
Prosecution tendered Ex SS being Stanbic Bank Statement of A3 where an amount of $300,000 was deposited into that account on the 2nd November, 2016. The transaction description shows that this $300,000 was a cash deposit. It further shows that on the 30th September 2016, there was another cash deposit of $50,000. This account balance was zero until 22nd September, 2016 when it appears that there was the first cash deposit of $4,000. It is this that prosecution contend that if these deposit in September 2016 and November are matched against withdrawals made from E: ‘QQ’ by .45 from March to August, 2016 when the $4 Million was made into Ex ‘QQ’, it thinks that there is some connection.
The explanation that has been offered A3 is that he is not an impecunious or indigent man as he runs successful businesses including Jacnan Company Ltd and provided Bank Statements and contracts of work done as seen Ex ‘24’ ‘25’ ’26 etc. in Ex 113’ being one of the investigative cautioned statements he gave, that he has been engaged in business construction alongside his medical practice as well as petty trading in sachet water and notes that he had been saving since his days as a medical student. And he had been converting cedis into dollars towards the long held dream and also due to the instability of the cedi and kept the dollars at home. And that he deposited the dollars into his Stanbie Bank account due to the help that he was on the verge of receiving from his America Partners.
The offence of stealing or conspiracy to steal and its symbiotic relationship to the offence of dishonestly receiving under section 147 of Act 29 by virtue of section 156 of Act 30 cannot at his time be lost on the court. Conversely section 148 introduce a dynamic provision which has been called by Justice Twumasi in his work ‘Criminal Law in Ghana’ as the doctrine of recent possession. The section makes it possible for in a charge of an offence of dishonestly receiving where anything which is reasonably suspected of having been stolen or unlawfully obtained in the possession or custody of an accused, and the accused does not give an account, to the satisfaction of the Court, as to how he came by it, the property may be presumed guilty of dishonest receiving in the absence of evidence to the contrary.
The learned author notes that the fact that the person charged is proved to have in his possession any property is evidence from which the court or the jury may but not must, infer guilty knowledge unless the accused gives an explanation in a satisfactory manner as to how he came by that property and must be one that must raise reasonable doubt as to his guilt. See page 359 of the book.
I have noted that A3 is not charged with dishonestly receiving but with the offence of conspiracy to steal and due to section 156 of Act 30, that connects stealing with dishonestly receiving, I deem it necessary that an opportunity be offered A3 to explain further how the $300,000 was obtained and deposited almost contemporaneous to the time that the withdrawals of A5 started. Accordingly, I find prosecution has established prima facie case in respect of Count 3 against A3. With prosecution having made a prima facie case of the commission of the offence under Count 3 against A3, being a predicate offence which yield proceeds, a prima facie case of money laundering has been established and I invite A3 to also open his defence in respect of count 14. I intend to further deal and expand this technical area of the law in the final judgment of the court. I, however, acquit and discharge A3 in respect of counts 1, 2, 7and 17.”
From this quotation the considerations leading to the trial judge calling upon the appellant to open his defence were exhibit DD and EE, sections 147 and 148 of Act 29 and their relationship with section 156 of Act 30 and the appellant’s bank account.
What is in exhibit DD and EE? Exhibit DD is the co-accused statement concerning the appellant. I will quote: “…The National Security sent a request to the National Communications Authority to help fund some equipment to combat counter terrorism and cyber security. The Board gave the go ahead to the help fund the equipment as part of its corporate social responsibility. The National Security secretariat funded the rest through its own resources. I am not really conversant with details of the transaction. I did not benefit financially from the transaction that occurred. The Director of Finance Dr Isaac Ani will have the details of the transaction. The Board chairman Mr Eugene Baffoe Bonnie authorised for the funding to be given to National Security. Alhaji Osman was a Board member who brought in the request from the National Security Secretariat. The Chairman of the Finance Subcommittee Dr Owusu Ensaw was also present at the meeting. I am aware some money was paid to George Oppong the agent for NSO…”
Exhibit BE had the same content All we have in these two statements of the co accused was that the appellant was present. He was present at what meeting? Was it a Board meeting? The case of the prosecution for which it called the Solicitor Secretary of the National Communication Authority to testify and she did was that there was no Board Meeting at which the purchase of the Pegasus equipment was purchased. Which other meeting then, was the appellant present as mentioned in DD? That is not mentioned in the statement. Apart from that it is necessary to make the judiciary enquiry whether the mere presence of the appellant at the scene of a crime or place where the conspiracy was hatched does make the appellant a conspirator. Now what is the evidential value of an unsworn statement from a co-accused, including exhibit DD and EE from the 2nd accused person?
The trial court rightly and accurately read the proceedings and concluded that none of the prosecution witnesses mentioned the appellant in the whole Pegasus equipment purchase issue and that the first time his name was mentioned was in the statement the Al made to the BN1 that all of the accused perso.sn including the appellant benefitted from the purchase and mentioned the amount meant for Appellant. In respect to the value of a co accused statement against another accused the trial judge rightly in my view stated:
“The law is that an out of court statement made by an accused person implicating a co-accused is not binding on the one implicated when the truth of that statement had been rejected by the accused implicated unless prosecution finds corroboration in respect of the claims made against the accused who had rejected the truthfulness of that statement…”
He went on further to quote Taylor J in the case of Lawson m Rep (1977) 1 GLR 63 where His Lordship stated concerning unsworn statements of co-accused:
“If two persons were jointly tried together, unsworn statements made by each were generally only evidence against him who made them. And such an unsworn statement would be inadmissible evidence where (as in the instant case) it was made in the absence of the appellant who denied it at the trial and the co-accused repudiated it when cross examined by the appellant. Even if the unsworn statement had been made in the presence of the appellant, its admissibility would depend on what part of it he expressly or impliedly accepted.”
The trial judge proceeded, relying on the case of Frimpong v The Republic (1980) GLR 574, stated that there must be independent evidence to connect the one who has been mentioned in a statement as connected to a crime for it to be credible evidence against him. And it should be not glossed over that Al himself recanted his statement he gave in exhibit PP series when he subsequently gave exhibit Z taken on the 25Lh of July 2017. He also made another vault face from exhibit PP series when he gave exhibit AA, BB and CC to PW6′ Therefore any co accused statement will generally be of value only if there is an independent evidence to connect the appellant to the crime.
The prosecution appreciated this position of the law as respects the statement 3 of accused when it stated at page36 of its submission thus:
“My Lords the law is that an out of court statement made by an accused person implicating a co-accused is generally not binding on the one implicated when the truth of that statement had been rejected by the accused implicated unless prosecution finds corroboration in respect of the claims made against the accused who had rejected the truthfulness of that statement”
But it is their case that there was independent corroboration of these out of court statements from the fact that the appellant’s bank account was found to have deposited into it $300,000.00 about 5 months from the period the Pegasus equipment monies were being disbursed. This payment of $300,000 issue appears prominent and a very decisive factor in the whole case against the appellant.
The question then is was there any evidence from the prosecution that the appellant received or any of the accused persons gave the appellant any $300,000 from this deal? Is there evidence tracing or connecting this $300,000 to the Pegasus monies? Both prosecution and defence found no such direct evidence. The trial judge did not find any either. What we have is conclusion being drawn by the prosecution that the circumstances of the payment of the amount by the appellant into his account should provide the necessary inference that the $300,000 was appellant’s share of the Pegasus deal. The PW6 who appeared to be the ace witness on the $300,000 said “when the 5A began making personal withdrawals both by cheque and in cash, it was not quite long that the 3A (appellant) also deposited $300,000 into his bank account. So [found out that possibly the personal withdrawals were made by the 5A were giving to other accused persons, and the 3A person deposited his share of the money into his account.” Surely this uncertainty, “possibility” cannot link the $300,000 to the monies, the subject matter of the charges faced by the appellants. But this same witness, PW6, under cross examination at page 123 to 124 was not certain any monies were given to the 3A. He was asked:
“Q. So from the foundation of your case which to exhibit PP, PP1 and PP2, it is nowhere stated that 45 gave monies to any of the other accused persons?
A. That is correct
At page 86 of volume 2 of the record of appeal we have this answer also from the PW6
“Q. So as you sit hens in the box, you do not have any statement or any admission before court that A5 gave any monies to A3?
A. That is correct, there is no statement of any of them indicating that A5 gave money to A3.
So if there is no statement of A1 in any of the statements, PP, PP1 and PP2 that A5 gave any monies to be distributed to any of the accused persons and there is no statement that indeed, the A5 gave any monies to the appellant and any of the other accused persons then the fact of the appellant having received any monies from the transaction which he paid into his account becomes a weaker proposition to develop. It is worth noting that there is no evidence from any of 2nd and 4th or 5th accused person that appellant gave them any monies and they all denied that in their statement.
So at this point evidence from the statement of all the accused persons and the PW6’s answers in cross examination appear not sufficient for a finding that any monies were given to the appellant for the $300,000 to be part of the Pegasus equipment monies.
It would appear from the reasoning of the trial judge and the prosecution that it was the reasons the appellant gave himself as to where he got the $300,000 from and the period of payment into the account that weighed the prosecution’s case in their favour and therefore the need for the appellant to open his defence. The trial judge was not convinced at the explanation given by the appellant he asked that the appellant should open his defence to explain himself more. What was the accused explanation? This is gathered from the answers given by the PW6 in cross examination. The extensive cross examination and answers can be found at pages 85 to 93 of vol 2 of the record of appeal. I will capture a few of them but the conclusion 1 come to is that the appellant is a man of means doing other businesses. The PW6 himself admitted the Appellant was not a man of straw. He runs other contracting businesses with companies including Huawei. He has a subcontract agreement worth $4.8m with this company. He had executed contracts including that worth GHC701, 745.82 with his company and in flows of his company are even more than GHCl0m. These were all admissions the PW6 made based on his investigations of the appellant. In appellant’s dollar account he paid in $4000 on the 22nd September 2016, $50,000 on the 30m September 2016, $300, 000 in 2nd November 2016, $75000 on 28th November 2016, $50,000 and 20th December 2016. Also admitted by the PW6 was that the appellant told him he changes cedis into dollars and keeps them at home, something PW6 admitted is done by several Ghanaians to stabilize their currency. In 2015 appellant got some monies withdrawn and part was changed into dollars and kept in the house. On the 16th September 2016, GHC288, 093 was withdrawn by the appellant. November and December 2016 alone appellant withdrew GHC300, 000.
Asked why he did not believe all what the appellant told him, PW6 said because
1. The appellant did not show him any receipts of the exchange of the cedis to Dollars and
2. The payment into the account of the $300,000 Dollars around the time the Pegasus monies were being shared as alleged by the A1. If I understand the PW6 he was relying on the surrounding circumstances of the c Read Full Story
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