Raphael Cubagee v. Asare and Others [2018] GHASC 14 (28 February 2018)
Material Facts:
In a land case before a District Court, the plaintiff sought to tender in evidence an audio recording of a telephone conversation he had with the representative of the third defendant, one John Felix Yeboah. According to the plaintiff, the recorded conversation covered matters that were in contention in the case and an admission by the third defendant of the plaintiff’s case.
Counsel for the defendant objected to the tendering of the recording on grounds that it was a secret recording made without the consent of John Felix Yeboah, was therefore in violation of his rights to privacy under Article 18(2) of the 1992 Constitution, and should consequently not be admitted.
The Magistrate listened to the audio and found that its contents were relevant to the case before him. However, he was of the view that the objection requires an interpretation of Article 18(2) of the 1992 Constitution, and pursuant to Article 130(2), he referred the matter to the Supreme Court.
Issue Referred:
Whether the secret recording of the conversation between the plaintiff and John Felix Yeboah was made in violation of clause (2) of Article 18 of the 1992 Constitution and therefore unconstitutional and inadmissible?
Holding:
Ratio Decidendi:
In the opinion of their lordships, the question that was referred to is divided into two parts. The first part of the question is:
Whether it amounts to a violation of the rights of privacy guaranteed by Article 18(2) of the Constitution for an a person to secretly record a telephone conversation to which he is a party
While what amounts to privacy has not been defined in the Constitution, the right to privacy covers:
an individual's right to be left alone to live his life free from unwanted intrusion, scrutiny and publicity. It is the right of a person to be secluded, secretive and anonymous in society and to have control of intrusions into the sphere of his private life.
Their lordships believe that to record someone without his consent, amounts to a breach of the right to privacy guaranteed by Article 18(2) of the Constitution .
The second part of the question is:
Whether the recording which has just been held to have been obtained in violation of the constitutional rights of John Felix Yeboah ought to be excluded from the evidence being led in the case, despite the fact that its contents are relevant to the matters in contention.
On this question, there are contrary rules established by various courts. The first is the discretionary exclusionary rule, which gives discretion to the court to determine whether to exclude evidence obtained in violation of a human right or admit such evidence. The second rule is the automatic exclusionary rule, by which evidence obtained in violation of a human right must automatically be excluded by the courts. The essential question is which of these rules is applicable under the 1992 Constitution.
In the earlier case of Okorie alias Ozuzu v. The Republic [1974] 2 GLR 272 C.A. , a police officer took two confession statements from an accused person without informing him of his right to consult counsel of his own choice, as required by Article 15(2) of the 1969 Constitution.Relying heavily on the case of Miranda v. Arizona, 384 U.S. 439 (1966) , the Court of Appeal concluded that the confession statements were inadmissible for being in violation of the constitution. In the opinion of their lordships, this decision:
appears to propose an absolute and inflexible rule, admitting no discretion in all cases, both criminal and civil.
Their lordships do not think such an absolute and inflexible rule should apply in Ghana. In their opinion,
Enforcement of human rights is not a one way street since no human right is absolute. There are other policy considerations that have to be taken into account when a court in the course of proceedings is called upon to enforce human rights by excluding evidence ...
The existence of such policy considerations makes it such that the court should have exclusionary discretion instead of being required to automatically exclude evidence obtained in contravention of a right. Also, their lordships are of the opinion that:
The exercise of discretion in the determination of whether to exclude evidence obtained in breach of human rights appears inevitable under our Constitution because even Article 18(2) which is the subject of interpretation in this case states several exceptions to the individual's right to privacy and a court confronted with an objection to evidence on the ground that it was obtained in breach of privacy would need to consider if any of the exceptions are applicable in the circumstances of the case.
In concluding on whether the 1992 Constitution admits of an inflexible exclusionary rule, their lordships believe that it does not. This is because it will be unrealistic to exclude damning evidence of a serious crime on the sole ground that it was obtained in circumstances involving a violation of the human rights of the perpetrator of the crime. Beyond the consideration of the rights of the accused, there needs to be a consideration of the public interests, the rights of competing parties, among others. Therefore,
Where evidence obtained in violation of human rights is sought to be tendered in proceedings, whether criminal or civil, and objection is taken, the court has to exercise a discretion as to whether on the facts of the case the evidence ought to be excluded or admitted. We therefore adopt for Ghana the discretionary rule for the exclusion of evidence obtained in violation of human rights guaranteed under the 1992 Constitution.
Despite holding that the discretionary rule for the exclusion of evidence is what is applicable in Ghana, their lordships agree that when evidence is obtained in violation of human rights guaranteed under the 1992 Constitution, the court should exclude such evidence if it concludes that “the admission of such evidence could bring the administration of justice into disrepute or affect the fairness of the proceedings.” To determine whether an admission would bring the administration of justice into disrepute, the court should consider:
Particularly in criminal cases, the court should admit evidence obtained in contravention of the rights of the accused person if the crime was of a grievous nature, since an exclusion of such evidence will bring the administration of justice into disrepute in the thinking of the public.
In civil cases, if a party sets out with a view of procuring evidence in support of his case and obtains such evidence in violation of the rights of his opponent, admission of such evidence will also bring the administration of justice into disrepute.
In the present case, the plaintiff secretly recorded Felix with a view of using the evidence against him. To allow such deliberate violation of rights would encourage litigants to sidestep the rules of evidence and thereby undermine the integrity of court proceedings and bring the administration of justice into disrepute. The evidence should therefore be excluded.
Principles in Case:
1. Courts have the discretion to exclude or admit evidence obtained in violation of a human right.
2. The courts should, however, exclude evidence obtained in violation of a right if it comes to the conclusion that the admission of such evidence would bring the administration of justice into disrepute or affect the fairness of the proceedings.
3. In criminal cases where the crime is of a grievous nature, it will bring the administration of justice into disrepute if the court excluded evidence in violation of a right.
4. In civil case, it will equally bring the administration of justice into disrepute if the court admits evidence obtained by a litigant who deliberately violates the rights of others in obtaining his evidence.