Republic v. Baffoe-bonnie and Others [2018] GHASC 40 (7 June 2018)

Material Facts:

In a criminal trial involving five accused persons, the defence lawyers made an oral application requesting the prosecution provide them with the documents it intends to rely on during the summary trial. The prosecution acceded to this request and stated that the documents would be made available to the defence as and when they come into the custody of the prosecution in the course of trial.

Relying on the provision in Article 19(2)(e) and (g) of the 1992 Constitution, an application was made by the defence to the High Court praying that all the evidence of the prosecution be furnished to them. Specifically, the prayed disclosure of a summary of evidence, police witness statements, and all documents discovered by the prosecution, including those that will not be tendered.

Issues:

The High Court satisfied itself that the provisions in Article 19(2)(e) and (g) of the 1992 Constitution were in need of interpretation and referred the following issues to the Supreme Court:

1. Whether on a true and proper interpretation and/or construction of Article 19(2) (e) and (g), an accused person in a summary trial conducted in accordance with Part III of the Criminal and Other Offences Procedure Act, Act 30, was entitled to comprehensive pre-trial disclosures as the accused persons have argued.
2. If the answer is yes, then at what point should prosecution make the disclosures available to the accused person in view of the fact that a summary trial may commence within 48 hours upon arrest and charges being proffered against the accused?
3. Whether on a true and proper interpretation and construction of Article 19(2)(e)(g) of the Constitution, an accused in a summary trial was entitled to full disclosure of documents in the possession of the prosecution that would not even be tendered by the prosecution as exhibits before a trial court.

Arguments of Lawyers of the Accused Persons:

1. That in order to enjoy the full panoply of the right to adequate time and facilities for the preparation of an accused person’s defence, the accused must be furnished with all materials that the prosecution is in possession of, whether inculpatory [evidence that indicates guilt] or exculpatory [evidence that indicates innocence], to ensure equality of arms between the prosecution and the accused.
2. That the constitutional requirement for discovery does not impose any extra burden on the prosecution, as the prosecution already has in its possession documentary evidence, including statements it has obtained from the investigation of the alleged crime and statements that might support the case of the accused.
3. That if the trial were to be a trial under indictment, the prosecution would have given all the documents they are currently requesting. That it will be discriminatory to deny an accused person on summary trial such facilities.
4. That the omission or the absence of a provision in Act 30 to compel the prosecution to furnish the fourth accused person undergoing summary trial with a list of witnesses and documents to be relied on by the prosecution has been cured by the provisions of Article 19(2) (e) and (g).
5. That if evidence of great force is disclosed to an accused, he may plead guilty, which is to the benefit of the administration of justice and of the accused.
6. That in disclosing information to the accused, there should be a disclosure on the list of witnesses, summary of evidence, names of witnesses, documents, and any other relevant material in the possession of the prosecution, whether inculpatory or exculpatory.

Arguments of the Director of Public Prosecutions:

1. That while the Republic is not opposed to disclosure of relevant information reasonably necessary for an accused person in a summary trial, the Republic is opposed to absolute disclosure on the grounds that such may affect the public interest and national security.
2. That the distinct provisions for disclosures in summary trials and trials under indictment are not unconstitutional because even under Article 19, there are distinctions in mode of trial for certain offences and the type of punishment. That these distinctions confer greater rights on accused persons standing trial for some offences, like murder, treason, and high treason.

Holdings:

1. On a true and proper interpretation of Article 19(2)(e) and (g), an accused person in a summary trial is entitled to comprehensive pre-trial disclosures.
2. If the trial commences within 48 hours, the commencement is indicative of the completion of investigations by the prosecution, and the prosecution is obliged to provide copies of the necessary documents to the defence. Also, the obligation to disclose is a continuing obligation, and there must be disclosure whenever additional information is received during trial.
3. On a true and proper interpretation and construction of Article 19(2)(e) and (g) of the Constitution , an accused in a summary trial is entitled to full disclosure of documents in the possession of the prosecution even if those documents will not be tendered by the prosecution as exhibits before a trial court.

Ratio Decidendi (Mainly on the Interpretation of Article 19(2)(e) and (g)):

A. General observations on fair trial:

The provision in Article 19(2)(e) and (g) of the 1992 Constitution forms part of the right to a fair hearing. In the opinion of their lordships,

The right to a fair hearing is a jus cogens, a peremptory norm of general international law, which is defined in Article 53 of the Vienna Convention of the Law of Treaties as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general law having the same character. In Re Effiduase Stool Affairs (No 2), Republic V Oduro Nimapua, President of the National House of Chiefs; Ex Parte Ameyaw II (No. 2) [1998-99] SCGLR 630 at 670 , this Court referred to the right to a fair trial as one of the basic principles of any civilized system of justice. Acquah JSC (as he then was) on behalf of the Supreme Court said as follows:

“For one of the basic principles of any civilized system of justice is that a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a fair trial to both sides is ensured… This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana.”

Currently, in civil cases, there is a requirement for the full disclosure of documents at the pretrial stage. In criminal cases, however, the requirement of pretrial disclosure only exists, to a limited extent, with trials on indictment and is absent in summary trials. This absence, in the opinion of their lordships, maintains the disavowed element of surprise in summary trials, which is concerning because most cases are tried summarily.

Given that the objective of Article 19 is “to ensure, through a broad definition of the concept of fair trial, effective and complete protection of this human right,” limiting the application of Article 19 to trials on indictment will be contrary to its clear wording. Consequently, their lordships will not be constrained by the provisions in the Criminal and Other Offences Procedure Act, 1960 (Act 30) in their interpretation of Article 19(2)(e) and (g).

B. Interpretation of Article 19(2)(e):

Article 19(2)(e) reads:

(2) A person charged with a criminal offence shall—

(e) be given adequate time and facilities for the preparation of his defence;

The word “facilities,” when purposively interpreted, means:

Resources, or means, which makes it easier to achieve a purpose, an unimpeded opportunity of doing something, favourable conditions for the easier performance or doing of something, Its verb ‘to facilitate’ means to render easy or easier the performance of doing something to attain a result, to promote, help forward, assist, aid or lesson the labour of one; to make less difficult; or to free from difficulty or impediment.

The phrase “adequate facilities” as used in Article 19(2)(e) (supra), in the interpretation of their lordships,

Is understood to mean the duty of the prosecution to disclose to the accused materials in his possession to enable the accused prepare his defence, examination of any witnesses called by the prosecution and securing witnesses to testify on his behalf. He should not be denied something the result of which denial will hamper his defence as it is one of the principles of fundamental justice to ensure that the innocent are not convicted.

In accordance with this interpretation, and on the first issue, the prosecution must make disclosures of relevant materials such as statements made to the police by persons who will or may not be called to testify as witnesses for the prosecution, as well as copies of exhibits and documents that are to be offered in evidence for the prosecution. Even if these materials will not be exhibited by the prosecution, they should be disclosed to the defence because they may assist the accused in his defence, such as the discovery of potential witnesses.

Further, the disclosure of these materials should be made within such time and space to enable the accused to prepare for the commencement of the proceedings. It should also be made whenever additional information is obtained by the prosecution in the course of the trial.

Although the duty to disclose relevant materials is essential, to the extent that the defence does not have to formally request a disclosure as the prosecution is simply expected to disclose, it is also not absolute. In the opinion of their lordships,

In some situations, the absolute withholding of information relevant to the defence may be justified on the basis of relevance, admissibility, and witness protection or the existence of a legal privilege which excludes the information from disclosure. Statutory provisions under the Evidence Act, 1975, (Act 323), the Whistleblowers Act, 2006 (Act 720) and other relevant enactments are necessary for the enhancement of democracy and freedoms of all and for the public good and the prosecution has a duty to respect them. Consequently, our view is that these limitations are not over-broad and would not nullify the particular right guaranteed by the constitution.

If the prosecution does not disclose a particular material, its discretion to not disclose is subject to review. Further, the failure of prosecution to disclose material does not automatically nullify a trial or render such material inadmissible; however, such failure should lead to an adjournment to enable the defence to study the material before it is tendered in evidence.

C. Interpretation of Article 19(2)(g):

Article 19(2)(g) reads:

(2) A person charged with a criminal offence shall—

(g) be afforded facilities to examine, in person or by his lawyer, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution.

In interpreting the phrase “facilities to examine” as used in Article 19(2)(g) (supra), the court will adopt the interpretation given by the Human Rights Committee of the United Nations in General Comment No. 32. [CCPR/C/GC 32]. Per this, “facilities to examine” is explained to mean:

Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.

The effect of this is that, like the prosecution, the accused can compel the attendance of witnesses. However, to do so, the accused must disclose the names and addresses of his witnesses to the prosecution to enable subpoenas to be issued on his behalf.