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March 8, 2023
CIRCUIT COURT
GHANA
CORAM
JUDGMENT
Accused person stands charged before this court on one count each of
conspiracy to commit crime to wit defrauding by false pretence contrary to
section 21(1) and 131 of Criminal Offences Act 1960, Act 29 (hereinafter
referred to as Act 29) and defrauding by false pretence contrary to section 131
of Act 29. Accused person pleaded not guilty to the offence.
Article 19 (2) (c) of the 1992 Constitution of the Republic of Ghana presumes
everyone innocent until the contrary is proved or he/she pleads guilty. In
every criminal prosecution, when an accused person denies an offence,
prosecution assumes a statutory obligation to prove the guilt of the accused
beyond reasonable doubt. Section 11(2) of the Evidence Act, 1975, NR of Act
CD 323 (hereinafter referred to as NRCD 323) with specific reference to
criminal cases reads
“in a criminal action the burden of producing evidence when it is on
the prosecution as to any fact which is essential to guilt, requires the
prosecution to produce sufficient evidence so that on all the evidence a
reasonable mind could find the existence of the fact beyond reasonable
doubt.”
In the case of Tsikata v The Republic [2003-2005] 1 GLR 296 at holding
one, the court held that “…As provided in section 11(2) and (3) of the
Evidence Decree, 1975 (NRCD 323) on the part of the prosecution, the burden of producing evidence required the production
of sufficient evidence so that on all the evidence, a reasonable mind could find the
existence of facts beyond reasonable doubt, whilst on the part of the
accused person, the burden of producing evidence required him to
produce sufficient evidence so that on all the evidence a reasonable mind
could have a reasonable doubt as to his guilt”.
In the case of LT. KELVIN GODWIN AMEGBOR (GH/2988) v. THE
REPUBLIC [13/11/2009] CMNO.1/2007 IN THE COURT OF APPEAL
(CRIMINAL DIVISION) ACCRA–GHANA it was stated that:
‚There is no doubt the burden of proof is on the prosecution and the standard of proof
is proof beyond reasonable doubt and it is the law that, the burden never shifts at any
stage in a criminal trial. It must be emphasized that the duty on the prosecution is
two fold, prosecution carries both a LEGAL and EVIDENTIAL burden to establish
the offence charged beyond a reasonable doubt. Whilst the accused/defence (or the
appellant in this case) carries the evidential burden on any issue in respect of which
he has made a positive assertion capable of proof.
AI Generated Summary
Sitting in the Circuit Court, Her Honour Afia Owusuuaa Appiah tried allegations of conspiracy to commit defrauding by false pretence and separate counts of defrauding by false pretence. The prosecution alleged a gold-sale scheme involving Martin Holm, who advanced payments totaling about GH¢59,020 after a meeting at Achimota Kokdam Hotel, and a visa-procurement scheme under which the accused represented himself as CEO of ATCO Bullmates Technologies and charged fees to obtain Schengen—and later Bulgarian—visas for Holm and others. The court set out the prosecution’s constant burden to prove the essential facts beyond reasonable doubt. On the visa counts, exhibits showed genuine efforts to process Bulgarian visas (communications with Remix Bulgaria Ltd, visa forms, insurance policies, travel tickets), and the applicants’ failure to pay a purported US$5,000 refundable deposit was not verified by the prosecution. For PW2, the evidence showed no direct representation by the accused; for Gloria Osei, no evidence at all was led. The court held the non-performance at most a civil breach of contract, found reasonable doubt across all counts, and acquitted and discharged the accused.