ELLIS TAMAKLOE v. THE REPUBLIC

ATUGUBA, J.S.C:

The applicant was convicted by the High Court (Fast Track Division) Accra of two charges of attempted exportation and possession of a narcotic drug, namely Cannabis Sativa weighing 695 grammes and sentenced to a minimum mandatory sentence of 10 years IHL on each count to run concurrently. His appeals to the Court of Appeal and to this court were dismissed.

The applicant now applies for review of this court’s ordinary decision on the grounds that;

“(a) The Supreme Court occasioned a grave miscarriage of justice in its interpretation and application of the nature and quality of circumstantial evidence used in convicting an accused person.

(b) The Supreme Court inadvertently fell into grave error in its consideration of the requisite mental blameworthiness for convictions under Section 2 of the Narcotic Drug (Control Enforcement and Sanctions) Law, 1990 (PNDCL 236), resulting in a grave miscarriage of justice.”

In his supplementary statement of case he identifies the issues raised for review as follows:

“Summary of the Argument

Your Lordships, the gist of our argument is that on all four issues raised above, this Court committed fundamental errors of law that have resulted in a miscarriage of justice in the sense that its verdict, as a whole, undermined the constitutionally guaranteed liberty interest of the Applicant. On the issue of possession, this Court erred fundamentally when it held that the Applicant was in legal possession of a narcotic drug because he engaged in acts that were inconsistent with innocence. We submit that disbelieving the Applicant is not an automatic call to guilt- the defence may be incredible but that is not synonymous with proof beyond reasonable doubt, a burden squarely placed on the prosecution with respect to the offence of possession of a narcotic drug.

With respect to the second issue, Your Lordships, we argue that this Court fundamentally erred in its judgment when it glossed over the critical issue of the reversed burden of proof placed on the Applicant under section 2 of PNDC Law 236, to wit, proof of the lawfulness of the possession of a narcotic drug. The gravamen of our argument on this issue is that this Court should have held the aforesaid reverse onus clause unconstitutional because it is an unreasonable, arbitrary and disproportionate limitation on the right of the Applicant to be presumed innocent until proven guilty and his right to a fair trial under article 19 of the Constitution.

Your L