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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT
ACCRA
_____________________________________________________

CORAM: ATUGUBA, JSC (PRESIDING)

ANSAH, JSC
ADINYIRA (MRS), JSC
BAFFOE-BONNIE, JSC
ARYEETEY, JSC

CRIMINAL APPEAL
J3/2/2009
17TH FEBRUARY, 2010

ELLIS TAMAKLOE … APPELLANT

VRS

THE REPUBLIC … RESPONDENT

________________________________________________________

JUDGMENT

ANSAH, JSC:

Each accused was charged with and convicted for the offences of:

“COUNT ONE
STATEMENT OF OFFENCE.
Attempted exportation of Narcotic Drugs without lawful authority contrary to
Sections 56 (a) and 1(1) of the (Narcotic Drugs Control enforcement and
Sanctions) Law, PNDCL 236.

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PARTICULARS OF OFFENCE.
1 ROGER OCLOO 2 ELLIS TAMAKLOE on or about 29th August 2006 at the DHL
Office, Kanda in Accra, in the Greater Accra Region did attempt out of Ghana
without any licence issued by the Minister of Health, a quantity of Cannabis
Sativa a Narcotic Drug, weighing 695g.

COUNT TWO
STATEMENT OF OFFENCE
Possession of Narcotic Drugs without lawful authority contrary to Section 2 of the
Narcotic Drugs (Control Enforcement and Sanctions) Law, 1990, PNDCL) 236.

PARTICULARS OF OFFENCE
1 ROGER OCLOO, 2 ELLIS TAMAKLOE, on or about the 29th August 2006 in Accra
in the Greater Accra Region, without lawful authority, did have in your
possession and under your control a quantity of Cannabis Sativa , a Narcotic
Drug weighing 695 g.”

The accused were found guilty on both counts, convicted and sentenced to the
minimum 10 years jail term on each count to run concurrently.
The prosecution gave evidence through five witnesses and closed its case, after
which the accused persons opened their defence but called no witnesses.

The second accused (hereafter called the appellant) was aggrieved by the
conviction and sentence and appealed to the Court of Appeal, which dismissed
the appeal on both counts. The appellant once again appealed to this court
against the judgment of the Court of Appeal on the grounds that:

1. “The learned Appeal Court judges erred in law on the facts when they
made wrong inferences from the evidence advanced at the trial that
the appellant attempted to export narcotic drugs without lawful
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authority contrary to Section 56(a) and (1) of the Narcotic Drugs Act,
PNDCL 236.

2. The learned Appeal Court occasioned a grave miscarriage of justice

and in the process erred when they held that the appellant had
possession of narcotic drugs without lawful authority contrary to
section 2 of PNDCL 236 when no evidence was adduced to support
that finding.

3. The learned Appeal Court Judges failure to consider the evidence led
at the trial that the parcel originated from one Harry Campbell
occasioned a miscarriage of justice when they concluded that the
parcel originated from the appellant.

4. The learned trial judge and the Appeal Court Judges occasioned a
grave miscarriage of justice and misdirected themselves on the law of
circumstantial evidence when they held that the appellant was guilty of
the offences of attempting to export narcotic drugs without lawful
authority contrary to section 2 of PNDCL 236

5. Further grounds of appeal would be filed upon receipt of the reasons

for the judgment and the Record of proceedings,”

The facts as presented to the trial court and which formed the basis of
prosecution, conviction and sentence of the appellant, were that on 20th August
2006, workers at DHL offices in Accra noticed an unusually large parcel said to
contain documents for posting to the UK. When examined it was found to
contain rather compressed leaves, which tested positive for ‘cannabis sativa’, a
narcotic drug. Further investigations by officials of the Narcotic Control Board
revealed that the first accused, a courier of the company, had brought the parcel
to the office meant for shipment. When questioned the first accused said it was
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the appellant who gave the parcel to him and further denied all knowledge of the
contents of the parcel.

On his part the appellant admitted giving a parcel to the first accused but
asserted it was not the one alleged to contain the drugs.

The grounds of appeal seemed to say and mean one and the same thing
relating to inferences drawn by the trial court and affirmed by the Court of
Appeal with regard to the possession and attempt to export the prohibited drugs
by the appellant. The issue was could the trial court have been right in its
findings and conclusions and could the Court of Appeal have been right in
affirming the judgment of the trial court?

It is not always that there will be direct evidence to prove the commission of an
offence and circumstantial evidence has often been used. The leading case of
The State v Anani Fiadzo [1961] 1 GLR 416-419 the Supreme Court held that:

“A presumption from circumstantial evidence should be drawn against

an accused person only when the presumption follows irresistibly from
the circumstances proved in evidence; and in order to justify the
inference of guilt, the inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation upon any other
reasonable hypothesis than that of guilt.”

In other words, as was held in Duah v The Republic [1987-88] 1 GLR 343-360, it
was only when the guilt of an accused person had necessarily to be inferred from
the facts before the court that it would be safe for a court to act upon
circumstantial evidence. In a recent decision by this court in Logan v The
Republic [2007-2008] Aninakwa JSC re-echoed the law on circumstantial
evidence when he said:

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“… for circumstantial evidence to support a conviction it must be
inconsistent with innocence of the accused. It must lead to irresistible
conclusion not only that the crime had been committed but it was in
fact committed by the persons charged in order to arrive at a definite
conclusion. Conviction based on circumstantial evidence which is not
supported by facts is wrongful.”

I think the trial judge herein was right in her statement on the law of
circumstantial evidence when she said:

“The primary burden on the prosecutor to prove the guilt of the accused
beyond reasonable doubt may not always be discharged by the provision
of direct evidence. As stated in section 18(2) of the Evidence Decree 1975
(N.R.C.D 323), Circumstantial evidence including the acts of the accused
may point to one and only one inference which may be sufficient proof.
The State v Anani Fiadzo [1961] GLR 416 S.C.”

This being a criminal trial, the prosecution bore the onus of proving the offence
beyond reasonable doubts in order to secure the conviction of the appellant. The
ingredients of the offence of possessing narcotic drugs as can be gleaned from
the offence created by section 2 of the Narcotic Drugs Control, Enforcement and
Sanctions Law , 1990 PNDCL 236 which provided that:

“2 Any person who without lawful authority, proof of which shall be on

him, has in his possession or under his control any narcotic drug commits
an offence.”

To secure a conviction of a person charged with the offence of possessing a

narcotic drug under PNDCL 236, the prosecution must prove beyond reasonable
doubts that

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i. “the appellant had custody or control of the drugs;
ii. he knew of the presence of the drugs; and
iii. he knew of the nature of the drugs possessed”:

see Bonsu alias Benjilo v The Republic [2000] SCGLR 112 at 123.

It is not always capable of proving the commissioning of an offence especially,

those dealing with narcotic drugs, by direct evidence considering the
sophistication with which the offence is committed, which is always increasing.
Circumstantial evidence is often resorted to for it is often the best…. Bamford-
Addo could not have been more right when she said at page 123 that:

“The proof of knowledge or mens rea is not capable of direct proof but
same may be inferred from established facts as stated in Section 18 2
of the Evidence Decree, 1975, NRCD 323. s18 2 states as follows: ‘An
inference is a deduction of fact that may logically and reasonably be
drawn from another fact found or otherwise established in the action.”

The case of Republic v Munkaila [1996-97] SCGLR 445 dealt with what
constituted the offence of possession of narcotic Drugs, and decided that:

“A person is said to be in constructive possession or joint possession of

an object if he has control over the other person in physical control of
article at his disposal, control or otherwise. The actual manual
possession or touch of the goods by the prisoner, however, is not
necessary to the completion of the offence. It is sufficient if the
prosecution can prove that the article was in the possession of a
person over whom the defendant or accused had control so that the
article would be forthcoming if he ordered it: see R v Smith Dearsley
and PCC 494; R v Gleed (1917) 12 CR App. R. 32a and Archbold

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Criminal Pleading, Evidence and Practice (36th ed.) at 780 at para
1531”.

What were the facts which the trial judge found as established by the evidence
and from which she inferred the appellant committed the offences in question?

Details of the facts have been given earlier in this opinion and to recapture them
it is that in his defence, the appellant admitted that he received a sealed parcel
from one Harry Campbell but he never opened to see the contents. Harry
Campbell told him the envelope contained catalogues. But what he received was
different from what the prosecution showed him on his arrest. Whether or not
the envelope or parcel the appellant admitted he gave the first accused was
different from what was tendered in evidence was a question of fact to be
determined by evidence before the trial judge. The learned judge found the
appellant admitted giving a parcel to the first accused and further testified that
he had personally written his name and address of the consignee on the airway
bill found attached to the parcel. He had seen that the space for the name of the
consignor had already been indicated wrongly as the Company called Friesland.

Was there any evidence that there was any signature on the parcel and that it
belonged to the appellant? If there had been that proof then the appellant would
have had to explain how that came to be and so was easy and reasonable to
deduce it established an infrangible nexus between the appellant and the parcel.
The appellant appended his signature on the parcel and admitted receiving the
parcel from Harry Campbell. That constituted physical possession thereof; which
possession continued when he also admitted giving it to the first accused even if
that was so constructively. The prosecution succeeded in proving the appellant
had possession of the parcel. The conviction on count one was therefore
supported by evidence.

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Knowledge that what he possessed was Cannabis Sativa a narcotic drug was
largely a matter of inference deduced from the evidence led and it is to that that
I shift my focus now. Quite apart from that the appellant possessed the parcel,
he said he noted the address of the sender on the pre-printed airway bill on the
parcel as having not been his. Harry Campbell had given it to him for postage
and the query is if he knew that Harry gave the parcel to him for postage and he
was doing that when he gave it to the first accused non-appellant why did he not
write either his name or that of Harry as the sender when he saw it was that of
Freisland Company? In his evidence under cross-examination, he said:

“Q Did you give him any shipment details for the parcel?

A. It was on the envelope-the senders address and the Recipient address

Q The first Accused person said you did not give him any senders address for
the parcel you gave him?

A Senders address was on the envelope.

Q Do you remember what it was?

A. I can’t recollect but it was Harry Campbell’s name but the address I
cannot recollect.

Q. You said the first accused gave you an airway bill when you gave the
parcel to him?

A. Yes My lord.

Q. And you filled in some details on the bill?

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A. Yes, my Lord. He showed me where to fill.

Q. Have a look at this. Was that the airway bill you filled on that day?

A. Yes, I believe so.

Q. Do you remember the recipient address?

A I remember my hand writing ( words italicized for emphasis.)

BY COURT: A 2 WAS SHOWN EXHIBIT A.

Q. Was that the airway bill Mr. Ocloo gave you when you gave him the
parcel?

A. Yes I believe so because my hand writing is there (emphasis supplied)

Q. And you said that that bill he gave you was there a portion for senders
address?

A. Yes My Lord.

Q. But?

A. But I realized that it has been filled with a company address.

Q. You did not find any thing strange about that one?

A. I asked him and he said they had run short of airway bill so he will
change it when he gets to the office.
X x x
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Q. After you had filled this form what happened?

A During the filling of the airway bill I realized that the sender’s address side was
filled and he told me that they had run out of blank airway bills so he will go to
the office and put the information on a blank airway bill so there is no need for
me to sign.”

From the evidence, the appellant found it strange that the parcel Harry Campbell
gave him for shipment, had been filled with a company address in the portion for
sender’s address. It was not difficult to find why it was strange to the appellant;
simply put, the company was not the sender of the parcel. Yet that was the
airway bill the appellant signed that day, thereby making it his own. And he gave
it to the first accused non-appellant for shipment. In other words the appellant
physically possessed the parcel. That plainly was manual or physical possession
of the parcel and its contents, thus satisfying a vital ingredient in the offence in
count two.

That alone will not lead to the guilt of the appellant for not only must the
prosecution prove the factum possidendi by the appellant, it must also be proved
he had it coupled with the animus possidendi or the intention to possess it which
constituted the mens rea.

In the English case of Warner v Metropolitan Police Commissioner [1969]2 A.C.

[1969] 2 All E.R. 356, a majority of the House of Lords held that a person could
not b in possession of dangerous drugs unless he was at least aware of the
nature of that which was under his control, although it was (on the preponderant
view within the majority) unnecessary for the prosecution to show that he knew
of its quality. This English view of what was legal possession did not reflect the
Ghanaian view and is not applicable as was explained by Atuguba JSC in Bonsu

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(supra) at page 123. The Ghanaian view was expressed by Ollennu JSC in
Amartey v The State [1964] GLR 256 at 261 that:

“What is the possession proof of which without more makes a person

guilty of an offence under the section 47(1) unless he proved that his
possession was lawful. Upon a proper construction of the section, the
possession must be possession with knowledge of the nature and
quality of the article; that what he possessed awareness that what he
possessed is ‘opium or Indian hemp’, or residue from the smoking of
opium or ‘Indian hemp’. Physical possession without that knowledge is
no offence. Without that knowledge there is no legal possession which
can support the charge. Therefore to succeed on such a charge, the
prosecution must prove legal possession; that is in addition to proving
physical or constructive possession they must go further to lead
evidence which establishes that the defendant had the requisite
knowledge or evidence from which it will be reasonable to presume
that the defendant proved to be in possession well knew or ought to
have known, that the article he possessed was ‘opium or Indian hemp’,
or was ‘residue from smoking of opium or Indian hemp’.” See Amartey
v The State SC [1964] GLR 256; Nyameneba v The State [1965] GLR
723,SC.

The offences in question dealt with the exportation and the prohibition or
possession of narcotic drugs. I have elsewhere in this opinion stated the
ingredients of the offence in count two to be that the appellant in addition to
having physical possession of the prohibited drugs knew actually or ought to
have known that what he possessed was a narcotic drug, to wit cannabis sativa,
or Indian hemp. Such knowledge will constitute the mens rea of the offence
which Lord Morris of Borth-y-Gest said in Sweet v Parsley [1970] A.C. 132 at 152
that:

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“It has frequently been affirmed and should unhesitatingly be
recognized that it is a cardinal principle of our law that mens rea, an
evil intent or a knowledge of the wrongfulness of the act is in all
ordinary cases an essential ingredient of guilt of a criminal offence.”

Proof of such a vital ingredient in the offence is not always capable of direct
proof and facts proved in evidence are often used as such proof. The trial judge
found as such facts as the admission by the appellant giving the parcel to the
first accused a proven DHL courier, in the service of DHL, to send to the U.K. (via
DHL), even though the appellant claimed Harry Campbell gave the parcel to him
for that purpose, his name or that of the appellant did not appear on the parcel
as the sender; instead that of the Friesland company had been there. The falsity
in that was proved by the prosecution beyond all reasonable doubts for the
appellant admitted having written the name of the sender on the parcel. If by his
evidence the name of that company had been written on the parcel as the
sender then by necessary inference he wrote the name which was proved to be
false.

Then he wrote that which was false as the sender. Why did he have to do that if
it was not to avoid detection as to who the real sender was and the contents of
the parcel to be illicit, to wit Sattiva cannabis or Indian hemp. This would on the
whole prove the fact that the appellant knew of the nature and quality of the
substance he possessed actually or constructively, as a narcotic drug. That
meant the prosecution proved the most essential ingredient in the offence to wit
the mens rea, beyond all reasonable doubts by the prosecution beyond all
reasonable doubts as held by the trial judge and rightly affirmed by the appellate
court that the appellant was deeply involved in committing the offences, for he
had physical possession of the parcel, and that was coupled with the presumed
knowledge that what he possessed was sativa cannabis a prohibited drug. On
the evidence he was not who Atuguba JSC called the ‘luckless victim’ but the real
‘criminal recruit’ in the Benjilo case.
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There was evidence that the illicit parcel was to be exported to the U.K. when
the appellant gave it to the first accused a DHL courier. The evidence by the
appellant that he did not know of the contents to have been sativa cannabis was
false, neither was it reasonably true judging from his acts and behaviour.

In the circumstances the lower courts were justified in finding the appellant
guilty of both offences, convicting him accordingly and imposing the sentence on
him. They are further affirmed by this court and the appeal dismissed.

J. ANSAH
JUSTICE OF THE SUPREME COURT

BAFFOE-BONNIE, JSC:

Since the facts of this case have been adequately recounted I will not repeat
them. The appellant was charged, together with one Roger Ocloo, with two
counts as follows:

1. Attempted exportation of narcotic drugs without lawful authority, contrary to

sections 56(a) and 1(1) of the (Narcotics, drugs (Control, Enforcement, and
Sanctions) Law 1990 PNDCL 236

2. Possession of Narcotic Drugs without lawful authority contrary to section 2 of

the Narcotic Drugs (Control, Enforcement and Sanctions) Law 1990 PNDCL 236

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He was tried, convicted and sentenced. His appeal to the Court of Appeal was
dismissed. He has appealed to this Court on the following grounds:

1. The learned Court of Appeal Judges erred in law and on the facts when
they made wrong inferences from the evidence adduced at the trial that
the appellant attempted to export narcotic drugs without lawful authority
contrary to section 56 (a) and (1) of the Narcotic Drug Act, PNDCL 236;

2. The learned Court of Appeal occasioned a grave miscarriage of justice and

in the process erred when they held that the appellant had possession of
narcotic drugs without lawful authority contrary to section 2 of PNDCL 236
when no evidence was adduced to support that finding;

3 The learned Appeal Court Judges’ failure to consider the evidence led at
the trial that the parcel originated from one Harry Campbell occasioned a
miscarriage of justice when they concluded that the parcel originated from
the appellant;

4 The learned trial Judge and Appeal Court Judges occasioned a grave
miscarriage of justice and misdirected themselves on the law of
circumstantial evidence when they held that the appellant was guilty of
offences of attempting to export narcotic drugs without lawful authority
and possession of narcotic drugs without lawful authority contrary to
section 2 of PNDL 236

This appeal raises two fundamental issues as follows:

1 Whether or not the criminal intent of an accused person is a

necessary ingredient for a Court to conclude that there was
possession of a Narcotic substance contrary to Section to 2 of The
Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990.
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2 The proper use of circumstantial evidence in criminal trials.

It is trite learning that for an action or omission to constitute an offence,

there has to be a coincidence of the act or omission with the requisite
intention to commit the offence. This intent can be direct or constructive
since a man is deemed to intend the reasonable consequences of his action
or omission. Every crime contains expressly, or by implication a proposition as
to a state of mind except where the statute expressly excludes the element of
intention thereby making it a strict liability offence. Goddard CJ captured this
position of the law aptly in Brend v. Wood (1946) TLR 462 as follows:

“It is of the utmost importance for the protection of the liberty of the subject
that a Court should always bear in mind that unless a statute, either clearly or
by necessary implication, rules out mens rea a constituent part of a crime,
the Court should not find a man guilty of an offence against the criminal law
unless his mind is guilty”

In determining whether mens rea is an essential ingredient of an offence under a

statute, it is necessary to consider the words of the statute itself and the subject
matter with which it deals. No difficulty arises in determining whether the
legislature intended an offence to be one of a strict liability where in the
definition of the offence expressions like intentionally, fraudulently, knowingly,
dishonestly etc are used because these words indicate a condition of mind. The
difficulty arises where no such expressions are used by the statute. The section
in issue deals with prohibition on possession of narcotic drugs and it provides as
follows:

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1) A person who, without lawful authority, the proof of which lies
on that person, has possession or control of a narcotic drug
commits an offence

Reading the offence creating section It is clear that the accused person’s liability
arises where it has been proven that what he possesses or has control over is a
Narcotic drug or where it will be reasonable to fix him with such knowledge.

In the instant case there is evidence from both the prosecution and the defence
to the effect that it was not possible to look at the sealed parcel in issue from the
outside to know the contents. The Appellant in his evidence said that Harry
Campbell handed him the parcel already sealed, told him it contained catalogues
and instructed him to post it on his behalf. Nowhere has this piece of evidence
been denied by the prosecution. Indeed, during the trial one prosecution witness
PW2, Mr. Djangba, told the Court that the parcel in issue had gone through two
of the three pronged stages the parcels go through at the DHL office successfully
without anybody having any reason to suspect that the parcel contained
substances other than the documents they were alleged to contain. It was only
at the bagging stage that one officer opened the parcel and it was realised that it
did not contain documents. It is important to note that the two stages the parcel
went through successfully were the debriefing stage and the reweighing and
scanning. If at the reweighing and scanning stage the parcel was not detected to
contain prohibited drugs, how can it be said that the Appellant’s mind should
have been put on enquiry when he was handed a sealed parcel for postage by a
friend. It is my candid opinion that this is not a case in which the accused can
reasonably be fixed with knowledge of the contents of the parcel. And without
proof of knowledge legal possession cannot be said to have been made out.

What constitutes possession has been decided by our courts in a number of

cases. In Amartey v. The State [1964] GLR 256, Ollenu JSC posed the
question and answered as follows:
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“What is possession, proof of which, without more, makes a person

guilty of an offence under section 47(1), unless he proved that his
possession is lawful? Upon a proper construction of the section, the
possession must be possession with knowledge of the nature and
quality of the article; awareness that what is possessed is “opium or
Indian hemp” or residue from the smoking of “opium or Indian hemp”.
Physical possession without that knowledge is no offence. Without that
knowledge there is no legal possession which can support the charge.
Therefore to succeed on such a charge, the prosecution must prove
legal possession; that is in addition to proving physical or constructive
possession, they must go further to lead evidence which establishes
that the defendant had the requisite knowledge, or evidence from
which it will be reasonable to presume that the defendant proved to be
in possession well knew, or ought to have known, that the article he
possessed was “opium or Indian hemp” or was “residue from smoking
of opium or Indian hemp”

This statement of the law given in 1964 has not changed. Atuguba JSC in the
case of Bonsu v. The Republic [ 1999-2000]IGLR 199 made this statement
at pgs 225-226.

“Once again, as the memorandum to PNDCL 236 shows: “ The purpose

of this law is to bring under one enactment offences relating to illicit
dealing in narcotic drugs” and to prevent illicit narcotic drug dealers
from benefiting from their crimes” A person who does not even know
the nature and quality of the substance he possesses cannot be said to
engage in illicit dealing in narcotic drugs” but is merely a luckless
victim” whom our legislature, prima facie does not hold to ransom”….
From all the foregoing, I hold that on a charge of possessing a narcotic
drug under PNDCL 236 the prosecution must prove:
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1. Custody or control of the drug by the accused;
2. Knowledge of the presence of the drug by the accused
3. Knowledge of the nature of the drug possessed”

From the accepted evidence on record, and applying this principle and the three
staged test to the current case, I am unable to say that the appellant had legal
possession since his knowledge of the contents of the parcel as containing
narcotic drugs has not been proved to evidential certainty. Once the prosecution
fails on this then the second part of the section which seeks to fix an appellant
with a strict liability of proving the lawfulness of his authority to possess will not
arise. Equally the first count would also fail because a person cannot reasonably
be said to have attempted to export a drug which he did not legally possess.

The second issue, not exactly unconnected with the earlier one, which I will like
to discuss, is the appropriate use of circumstantial evidence in proof of criminal
charges.

Concluding her judgment the learned trial judge noted thus;

“These deliberate acts of concealment point irresistibly to an

awareness of the illegality of the whole enterprise and specifically as
breaching the provisions of the narcotics laws as charged”

From the facts of this case, and as confirmed by the above quoted statement by
the trial judge, there was no direct evidence that the appellant had knowledge
that the parcel he attempted to post contained narcotics. He was convicted
based on all the circumstances put together and imputed with knowledge of the
contents of the parcel. I will concede that it is almost impossible to prove
intention, knowledge, and other such legal requirements by direct evidence. That
is why in most cases knowledge of the existence or non existence of something
is often proved by circumstantial evidence other than direct evidence.
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Adrian Keane in the Modern Law of Evidence, Third Edition at page 10

defined Circumstantial evidence as

“… evidence of relevant facts (facts from which the existence or non-existence of

a fact in issue may be inferred) and contrasted with direct evidence, a term
which is used to mean testimony relating to facts in issue of which a witness has
or claims to have personal knowledge or first hand knowledge.”

Circumstantial evidence may take the form of oral evidence (including

admissible hearsay) or real evidence. In the English case of Teper v. R [1952]
AC 480 at page 489 Lord Normand observed as follows:

“Circumstantial evidence may sometimes be conclusive, but it must

always be narrowly examined, only because evidence of this nature
may be fabricated to cast suspicion on another…It is also necessary
before drawing the inference of the accused’s guilt from circumstantial
evidence to be sure that there are no other co-existing circumstances
which would weaken or destroy the inference.”

The law on circumstantial evidence has been espoused variously by the

Ghanaian Courts in several cases.

In the 1961 case of Anane v. Fiadzo 1961 1 GLR 416 the Supreme court had
laid down the bench mark for the use of circumstantial evidence in criminal trials
as follows

“ a presumption from circumstantial evidence should be drawn against an

accused person only when the presumption follows irresistibly from the
circumstances proved in evidence ; and in order to justify the inference of guilt,
the inculpatory facts must be incompatible with the innocence of the accused
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and incapable of explanation upon any other reasonable hypothesis than that of
guilt.”

The court of appeal later in 1987 put it even more succinctly in the case of Duah
v Republic 1987-88 1 GLR 343 as follows;

“Circumstantial evidence was evidence of surrounding circumstances which by

undesigned coincidence was capable of proving a proposition with the accuracy
of mathematics. In criminal cases, it was sometimes not possible to prove the
crime charged by direct or positive evidence of persons present at the time the
crime was committed. So where the testimony of eye-witnesses was not
available, the jury was entitled, and indeed permitted, to infer from those facts
which the prosecution had proved, other facts necessary either to complete the
elements of guilt or establish innocence. However, before drawing the inference
of the guilt of an accused from circumstantial evidence, it was very important to
make sure that there was no other co-existing circumstance which would destroy
or weaken the inference. Thus, circumstantial evidence had to be closely
examined and acted upon only when the circumstances were such that the guilt
of the accused had of necessity to be inferred and that the facts led to no other
conclusion”

At the trial the appellant put up two defences

1. That the parcel that was intercepted was not the parcel that he had initially
given to the 1st accused person, and
2. He did not know that the parcel he gave to the 1st accused, which had been
given to him by one Harry Campbell for posting, contained any banned or
narcotic drugs.

These are formidable defences separately and collectively, and the prosecution
and the court could not just wish them away by a cursory wave of the hand.
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As an accused person, the only thing that he was required to do through out the
trial was to raise reasonable doubt. He produced evidence to show that the
parcel did not originate from him and that he was only a messenger of Harry
Campbell. Again, he said that he did not refuse to collect the postage receipt or
alter the sender’s address deliberately. According to him, it was the first accused
who gave him a pre-printed airway bill with Friesland Ltd as the sender’s
address. He queried this anomally and the first accused assured him that it was
only because he had ran out of blank airway bills and that he was going to do
the right thing when he got back to the office. Someway, somehow he failed to
do so. The first accused confirmed this story and said that it was not because
they were trying to hide anything but only because he sought to pocket the
postage sum. This evidence was further corroborated by a prosecution witness
from DHL who said that the couriers sometimes engaged in such practices but
when they were found out they were dismissed. This has been the case of the
appellant right from the time of his arrest to now!

In the face of this consistent and weighty evidence this is what the Court of
Appeal said;

“There is no doubt that it was appellant who actually delivered the parcel to
the courier for export. What he sought to do was to show that he did not
know the contents of the envelope which he alleged contained
documents……..The trial judge considered this defence adequately
and rejected it because by his own conduct appellant deliberately
concealed the identity of the real sender, falsified the address and
signature and the route, all in an attempt to escape detection.
These acts were rightly found by the trial court not to be consistent
with the acts of an innocent person. These acts together with the fact
that the appellant personally wrote the name of the consignee at the time
when he had seen the name of the consignee wrongly, indicated as Friesland

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and refusing to take receipt for the payment that he made, further condemn
the appellant.”(emphasis added)

But what exactly did the trial judge say that led the learned Justices of the
Court of Appeal to conclude that she had considered the evidence
adequately and come to a conclusion which they did not feel inclined to
disturb? In her four and a half page judgment this is all that she said about
the evidence on record.

“…..The testimony of the second accused shows that by previous

association, he knew of the correct procedure for remittances
through DHL yet he had acted to the contrary in respect of the
offending parcel. His complicity in using a false address and a false
signature of the sender address on parcel is in my opinion not
innocent acts of omission but rather acts deliberately executed
with the sole purpose of preventing the detection of the real sender
of the parcel. These deliberate acts of concealment point
irresistibly to an awareness of the illegality of the whole enterprise
and specifically as breaching the provisions of the Narcotic laws as
charged.”

Why the Learned Justices of the Court of Appeal, like the Learned Trial Judge,
came to the conclusion that these recounted acts constituted credible
circumstantial evidence to support conviction, I cannot fathom. Suffice it to say
in a criminal trial the appellant was only supposed to raise reasonable doubt to
earn an acquittal. It is my candid opinion that the Appellant succeeded in raising
reasonable doubt in the case of the prosecution to earn an acquittal. Conversely,
the prosecution failed to prove their case beyond reasonable doubt.

Let me end this judgment by quoting what our brother Aninakwa JSC said in
the case of Logan v. The Republic [2007-2008] 1 SCGLR 76

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“..for circumstantial evidence to support a conviction it must be inconsistent with
innocence of the accused. It must lead to irresistible conclusion not only that the
crime had been committed, but it was in fact committed by the persons charged
in order to arrive at a definite conclusion. Conviction based on circumstantial
evidence which is not supported by facts is wrongful”

The evidence on record cannot be said to be one which works by cumulatively

eliminating other possibilities in a geometric progression. The plausibility of the
accused person’s innocence is deafening. It is for the foregoing reasons that I
allow the appeal set aside the conviction and sentence and enter a not guilty
verdict for the appellant on both counts.

P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT

ATUGUBA, JSC:

I agree that the appeal be dismissed.

W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT

ADINYIRA (MRS), JSC:

I had the benefit to read beforehand the opinions of my brothers Ansah and
Baffoe-Bonnie JJSC. I support the conclusion reached by Ansah, JSC that the
appeal be dismissed.

S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT

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ARYEETEY, JSC:

I also agree that the appeal be dismissed.

B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT

COUNSEL:

NENE AMEGATCHER, ESQ. FOR THE APPELLANT.

VALARIE AMARTEY (CSA) FOR THE ATTORNEY GENERAL.

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