May 28, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Afia Serwah Asare-Botwe J of the High Court (Financial Division “2”, Accra) referred a question under Article 130(2) of the 1992 Constitution to the Supreme Court during the criminal trial in Suit No FT/0012/2017 involving accused persons alleged to have duped foreign complainants through a purported gold sale, facing charges including conspiracy, defrauding by false pretences, money laundering, and uttering forged documents. The prosecution sought to tender electronic evidence: a DVD‑CD ROM extracted from the accuseds’ computers and mobile phones, and CCTV footage from HFC Bank captured on a pen drive. Defence objections by Mr Kwame Boafo Akuffo challenged the lawfulness and integrity of obtaining and tendering that evidence, while Mrs Stella Ohene Appiah for the State maintained disclosure compliance, a court order for the CCTV, and statutory authority under section 93 of Act 30 for searches incident to arrest. Delivering the court’s opinion, Justice G. Pwamang held that no constitutional issue arose on the face of the proceedings; the High Court had jurisdiction to interpret and apply Act 30 and existing Supreme Court evidentiary guidelines (Raphael Cubagee; Abena Pokua), and the reference was a grievous error and was set aside, cautioning judges not to invent constitutional questions under Article 130(2).
PWAMANG, JSC:-
My Lords, this case comes before us upon a reference pursuant to Article 130(2) of the 1992 Constitution by Afia Serwah Asare-Botwe J, sitting in the Financial Division “2” of the High Court, Accra. Before the court is Suit No FT/0012/2017 in which the accused persons stated in the title of the case, at all times material to the reference, were being tried on the offences of conspiracy to commit crime, defrauding by false pretences, money laundering and uttering forged documents, all in relation to a claim by the accused persons that they had gold which they offered to sell to the complainants who are foreigners.
In the course of the trial, the prosecution sought to tender evidence in the form of a DVD-CD Rom which contained information extracted from computers and mobile phones belonging to the accused persons and a pen drive containing footage from a CCTV camera at HFC Bank, Accra, which captured some of the accused persons in circumstances alleged to be related to the commission of the offences for which they were being tried.
In apparent compliance with Rule 67 of the Supreme Court Rules, 1996 (C.I.16), the referring Judge presented us with a case stated but in the summary of the action pursuant to R 67(2)(a), we are not specifically told that there was an objection to the tendering of these pieces of evidence. However, the case stated went ahead to state arguments of counsel which implies that an objection was taken against the tendering by counsel for the accused persons on stated grounds and counsel for the prosecution responded to the grounds of the objection. This is what has been recorded in the case stated by the judge;
“ THE ARGUMENTS OF COUNSEL, IF ANY;
No foundation was laid to the effect that, the prosecution had an order of the court to enter or access the devices of the accused persons and as such they cannot seek to tender the content of the devices.
Mr Akuffo submits that any tampering with electronic devices without the proper and adequate safeguards when it is left alone to the prosecution, can lead to contamination of the evidence. He states that when leave is obtained for the purposes of invading privacy, the court will set parameters to set the supervisory network so they know what they were extracting.
According to Mr Akuffo, it is unsafe for the prosecution of a case of this nature for the police investigator to go to EOCO without the accused persons or their representatives and obtain documentation that has