Okorie alias Ozuzu [1974] 2 GLR 272

Material Facts:

The appellants were convicted in the High Court for the murder of one John Appiah, and sentenced to death. In prosecuting the second appellant, the prosecution relied on two confessional statements, exhibits A and K. In exhibit A, the second appellant confessed that he put the murder weapon in the hand of the first appellant and helped the first appellant to drag the dead body into the bush. In exhibit K, the second appellant said that the first appellant alone killed the deceased and forced him (the second appellant) to help in dragging the dead body into a bush.

Procedural History:

When these confession statements were being tendered during the trial, the defence objected on grounds that they were not made voluntarily but under duress. This contention was rejected by the trial court, which believed the statements were made voluntarily. Consequently, the statements were admitted into evidence. The appellants were subsequently convicted.

The appellant appealed to the Court of Appeal on the ground that exhibits A and K ought to have been excluded on the ground that they were made in breach of the appellant’s constitutional right conferred on him by article 15 (2) of the Constitution of the Republic of Ghana, 1969 .

Issues:

1. Whether the second appellant can be deemed to have waived the constitutional safeguard provided for the protection of a suspected person to be told of his right to consult counsel of his choice
2. If he did not waive it, whether exhibit A and exhibit K were thereby rendered inadmissible.

Arguments of the Second Appellant:

That any statement taken from a person in custody in contravention of Article 15 (2) was inadmissible; that the second appellant was not informed of his right to consult counsel of his choice, the two investigatory statements taken from him were inadmissible.

Holding:

1. The second appellant cannot be said to have waived his right to consult counsel of his choice.
2. Exhibits A and K were obtained in violation of Article 15(2) of the 1969 Constitution and are therefore inadmissible.

Ratio Decidendi:

There is currently no case law in Ghana to guide the court on the application of Article 15(2) of the 1969 Constitution, which reads:

Any person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to consult counsel of his own choice

However, this provision is similar to those found in the Sixth Amendment to the United States Constitution. The court will therefore rely on cases decided in the United States to guide its decisions.

In the case of Massiah v. United States, 377 U.S. 201 (1963), for instance, the Supreme Court of the United States noted that there was a guarantee in the Sixth Amendment that “in all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” In the opinion of their lordships, this guarantee required that:

incriminating statements elicited by agents of the government from an accused person, after an indictment has been preferred, and in the absence of counsel, should be excluded.

Similarly, the case of Miranda v. Arizona, 384 U.S. 436 (1965), laid down the rule that not only does the suspect have the right to consult with counsel before interrogation, but that the right extends to having counsel present during the process of “custodial interrogation.”

In light of these decisions, the court is of the opinion that:

The object of the whole provision of article 15 (2), it seems to this court, is, to enable a person, who thinks that he is unlawfully detained or restricted, to apply, or to instruct counsel to apply on his behalf, to the High Court for an order of habeas corpus to secure his release. The Constitution is the fundamental law of the land, and the duty of the court is to ensure its strict observance.

...

The interpretation of the second limb of Article 15 (2) should, therefore, be made consistent with the decisions of the Supreme Court of the United States on the Sixth Amendment, which, though not binding upon this court, are no doubt of persuasive authority in this country. So interpreted, it will mean that a departure from the procedures required by Article 15 (2) would render inadmissible at the resulting trial any confessional statement obtained from a suspect.

Although the second defendant did not object to the admissibility of exhibits A and K on grounds that it violated Article 15(2) (supra), the court is also of the opinion that:

As a general rule, the failure of one party at a trial to object to the admission of inadmissible evidence does not preclude that party from raising the objection on appeal, if the admission of the inadmissible evidence constitutes a breach of a rule of law: see Kojo v. Solaz (1938) 4 W.A.C.A. 191. Here the objection is to the admissibility of evidence in breach of the supreme law of the land, and in the opinion of this court, the point can legitimately be taken at this late stage in this court. An accused person cannot be held to have easily acquiesced in the loss of his fundamental rights, and the prosecution must prove that he knowingly waived those rights.

Principles in Case:

1. Evidence obtained in breach of a constitutionally guaranteed right is not admissible (however, this position has been modified by the Supreme Court in Raphael Cubagee v. Asare and Others [2018] GHASC 14 (28 February 2018)).
2. Where a party fails to object to the admissibility of evidence obtained in violation of the law at the trial court, he may raise the objection on appeal.