Bonsu Alias Benjillo v. The Republic [1999-2000] 1 GLR 199 – 236
Material Facts:
A parcel containing narcotics was handed over to the appellant by the third accused. When the appellant was questioned about the parcel by officials of the Narcotics Control Board and the Customs Excise and Preventive Service, he contended that it belonged to one Mohammed, who asked him to receive it from the third accused and keep it until it was collected by the first accused.
The appellants, along with four others, were charged with abetment of crime, unlawful importation of narcotic drugs, and possessing narcotic drugs. The first and fifth accused persons, however, absconded before the commencement of the trial.
At the trial in the Greater Accra Regional Tribunal, cautioned statements (unsworn statements) of the first accused and fifth accused persons incriminating the appellant and citing him as a drug trafficker were admitted into evidence without objection. Also, and despite objection from counsel for the appellant, the prosecution was permitted to cross the appellant in the following prejudicial manner:
"Q. Can you tell the court why it should be you who had to collect the parcel for Mohammed who had relatives in Ghana?
A. It is because a lot of people know Benjillo.
Q. I suggest to you that it is because you are a notorious narcotics dealer that he came to you. (the prejudicial part)
A. It is not true etc.
Procedural History:
The appellant was subsequently convicted, and he appealed to the Court of Appeal and then to the Supreme Court.
Issue:
Whether or not the cautioned statements (unsworn statements) of the first and fifth appellants and the prejudicial cross examination were admissible?
Holding:
The cautioned statements and cross-examination were inadmissible. However, the fact that they were admitted did not lead to a miscarriage of justice.
Ratio Decidendi:
As a general rule, “all relevant evidence is admissible.” However, their lordships noted that:
The court ought to exclude evidence however relevant, if it is prejudicial against an accused. See Section 52 NRCD 323 which provides:
"52. The court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by-
(b) the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues…
In light of this provision, their lordships are of the view that the Greater Accra Regional Tribunal should have disallowed the prejudicial cross-examination of the accused to the effect that he was a drug trafficker, and consequently that evidence, even though denied, would be excluded from consideration of the case against the appellant.
On the issue of the admission of the cautioned statements of the first and fifth accused persons into evidence, their lordships also agree with counsel for the appellant that those statements cannot be used against the appellant. In the case of Lawson v Republic [1977] 1 GLR 63 , it was held that:
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.
Their lordships added that if an unsworn statement is, however, repeated on oath at the trial and the maker of the statement is cross-examined on it, it would be admissible evidence against a co-accused. In the present case, the first and fifth accused absconded and could thus not be made to repeat their statements on oath. Their statements cannot therefore be relied upon against the appellant.
However, there was other evidence that proved the guilt of the appellant beyond reasonable doubt. The appeal is hereby dismissed.
Principles in Case: