The right to fair trial is a fundamental human right recognized in all democracies and entrenched in the 1992 Constitution of Ghana. A key component of fair trial is the right against self-incrimination. This principle is applied in two situations: during interrogation by the police and in the course of a trial. In the former scenario, which is the subject matter of this article, legislative measures have been put in place to prevent law enforcement officers from compelling confessions from suspects. Thus, in section 120 of the Evidence Act[i], mandatory guidelines for the taking of confession statements have been provided. These guidelines become more imperative when the law enforcement officers themselves act as independent witnesses in the taking of confessions.
The significance of a confession statement cannot be overemphasized; it can serve as the only basis for a conviction. This legal position has been stated in many cases including Bilah Moshie vrs The Republic[ii]where the Court of Appeal stated that “a conviction could quite properly be based entirely on the evidence of a confession by a prisoner, and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness”.[iii] In the case of G/L/Cpl Ekow Russel v The Republic[iv], the Supreme Court stated that a confession if voluntarily given, by its nature, offers the most reliable piece of evidence upon which to convict the accused.
A confession statement is admissible as an exception to the hearsay rule only when the statement was made voluntarily and in the presence of an independent witness. The law further specifies the capabilities of an independent witness;[v] that the independent witness must be a person who understands the language spoken by the accused and must be able to read and understand the language in which the statement is made. That is where the legislative description of an independent witness ends. The question that arises is who can serve as an independent witness?
In the case of Kwaku Frimpong @ Iboman vs The Republic[vi], the above question was posed to the Supreme Court. The brief facts of the case are that the appellant and his three accomplices armed with a gun and other offensive weapons attacked the residence of the complainants at Lashibi, a suburb of Accra. In addition to other items that they took from the house, the appellant and his group managed to drive away a car belonging to one of the complainants. Investigations led to the arrest of one Daniel Amewu, the 3rd accused who mentioned the names of the appellant and others. Daniel Amewu led the Police to arrest the appellant and a search in the house of the appellant led to the retrieval of one of the items stolen from the house.
During investigations, the appellant admitted and confessed his involvement in the offence and led the Police to retrieve the complainant’s car from his hometown. The confession statements were tendered by the prosecution and admitted in evidence as Exhibits E and E1. The statements were admitted after a mini trial was conducted to determine whether they were given voluntarily and were witnessed by an independent witness. At the end of the trial, the appellant and his accomplices were convicted for conspiracy and robbery. Dissatisfied with the conviction and sentence, the appellants appealed to the Court of Appeal and then to the Supreme Court. Arguments were made in respect of the admissibility of the confession statements, because, in the words of the court, the appellant had in those statements “opened his mouth very loosely as if he was suffering from a mouth diarrhoea”. His conviction was based on his confession.
The apex court defined an independent witness in the following words:
An independent witness is a person who is free from the authority, control or influence, or is not dependent or relying on anybody for direction, and or assistance. Such a witness must not be subordinate to or under the authority, control or influence of the person investigating the crime and for which the independent witness is needed to authenticate the statement that has been given by the declarant. [Emphasis added]
Some further parameters were set out. They are as follows:
· The law does not allow the Police to secure the services of any person for the role of an independent witness.
· The independent witness must however be known to the Police so that when the need arises for a mini trial, the witness can be contacted.
· An independent witness must not be so closely connected to the Police as to make him more or less dependent on the Police.
Another critical factor identified by the court is that the independent witness must not be tied to the apron strings of the Police such as to question his neutrality and independence. In rationalizing this principle, the court indicated that the frequent use of an independent witness by the Police in other cases has the potential to influence the person’s independence.
In respect of the language requirement, the court stated that the independent witness must demonstrate proficiency in the language spoken by the accused and the language in which the statement is read. This applies to the investigator or other person who writes down the statement. It is even more crucial when the accused is illiterate.
The final factor stated by the court is that it is desirable but not mandatory that the certificate on the statement which states that the statement was witnessed must be in the hand of the independent witness.
In the Iboman case, the independent witness stated that he visited a cousin of his, who is a Police Detective Sergeant at the CID Headquarters. It was there that he was invited by the Investigator to witness the taking down of the statement. The court found as a matter of fact that this independent witness was not under the authority, influence or control of the investigator.
The Supreme Court had another opportunity to clarify the position in the Iboman case in the case of G/L/Cpl. Ekow Russel vrs The Republic[vii]. The facts of the case are that appellant was a Police officer attached to the Accra Regional Headquarters. On 27th March 2007 one Maxwell Antwi, a car dealer at Nyamekye, a suburb of Accra was arrested by a Police Detective from CID Headquarters, Accra on suspicion of being in possession of a narcotic drug. Upon interrogation, he mentioned that the substance was part of some nine hundred grams of similar substance that the appellant Ekow Russel gave to him to sell on his behalf.
Maxwell Antwi and Ekow Russel were charged with the offences of possession and supply of narcotic drugs. Maxwell Antwi pleaded guilty and was convicted and sentenced to 10 years imprisonment IHL. The appellant pleaded not guilty and the prosecution opened its case. The prosecution tendered a confession statement of the appellant made on 28th March 2007 which was admitted in evidence and marked as Exhibit F after an objection to its voluntariness was dismissed by the trial court. The prosecution also tendered another confession statement, Exhibit G, but later withdrew it when they were unable to produce the independent witness who certified the statement.
The court relied on Exhibit F to convict the appellant for the offences charged. The appellant was sentenced to 12 years imprisonment IHL. He appealed unsuccessfully to the Court of Appeal against his conviction and sentence. The appellant again appealed to the Supreme Court. Wrongful admission of Exhibit F was one of the grounds of appeal filed by the appellant. To appreciate the determination made by the court, we must consider the vivid conditions under which the statements, Exhibits F and G, were taken.
According to the appellant, Exhibit F was written by one Chief Inspector Addae in his own words and that he did not give any such statement. He further alleged that he was made to sign it while he was in Mr. Adu Amankwah’s office on 28th March 2007 and there was no independent witness present.
In respect of Exhibit G, the prosecution claimed that the independent witness was one Rosemary Asiedu, an aunt of the appellant who had come to visit him on 14th April 2007 during investigations. She was invited by the investigator as a potential independent witness. She gave an Aburi Secondary School address to the police as her address, however when it was time for her to testify, she could not be traced. The appellant also denied making the statement in Exhibit G. As earlier indicated, the prosecution withdrew Exhibit G when they failed to locate the independent witness, Rosemary Asiedu.
The Supreme Court reiterated the principles relating to the selection of an independent witness. In the words of the court:
An independent witness may include any person who qualifies to be a competent witness and has no direct personal interest in the case in issue. Such an independent person must be a person who is disinterested in the matter under investigation. At the official level, the independent person should not be directly under the control and influence of the person investigating the crime nor himself be part of the investigation team.
The Supreme Court further stated emphatically that policemen were not excluded from acting as independent witnesses. It was held that any person, be it a policeman, a soldier, a prison officer, other security investigating apparatus or civilian, who qualifies in terms of being disinterested in the matter under investigation and is not under the direct control and influence of the person investigating the crime, or is not himself part of the investigation team and qualifies to be a competent witness may serve as an independent witness. Below is the breakdown of this judicial pronouncement:
· The person must be a competent witness.[viii] This means that he must be capable of expressing himself in a manner that can be understood and must be capable of understanding the duty to tell the truth.
· The person must not be directly interested in the outcome of the case.
· The person must not be under the direct control and influence of the Investigator.
· The person must not be part of the team investigating the particular case.
In respect of Exhibit G which was witnessed by the Aunty of the appellant, the court held that if she indeed witnessed the confession statement, the problem with it was that she had an interest which was better served by swerving the investigators in order to absolve her relative. And in respect of Exhibit F, the court found as a matter of fact that the statement was witnessed by Constable Christopher Afful who was part of the investigation team and could not be said to be disinterested in the case. It was therefore held that Exhibit F did not meet the criteria in section 120 of NRCD 323 and was expunged. The appeal succeeded and the appellant was acquitted and discharged. The position in the Ekow Russel case has been restated by the apex court in Attah v The Republic [2022] GHASC 17.
Often, people who meet the criteria are reluctant to serve as independent witnesses due to the fear of either dealing in any way with persons accused of heinous crimes or testifying in court. It is therefore understandable that police officers may serve as independent witnesses especially considering the difficulties of immediately getting qualified and willing independent witnesses during interrogations when a suspect is ready to confess. However, the question that keeps coming up is whether police officers, who share camaraderie and sometimes office spaces with each other can be deemed independent in the proper sense of the word.
This question was recently posed to the Court of Appeal in the case of Apor Amoakwah Frederick vrs The Republic[ix]. The appellant in that case, together with four others, were charged with the offences of conspiracy and robbery. The prosecution called three witnesses and tendered confessions statements of four of the accused persons including the appellant which were all witnessed by one D/Sgt. Asamoah Gyamfi. An objection was raised to the tendering of the statements and a mini trial was conducted. The court admitted the confessions and convicted all the accused persons. The appellant was sentenced to 25 years imprisonment. Dissatisfied with his conviction and sentence, the appellant unsuccessfully appealed against his conviction and sentence to the High Court. The appellant further appealed to the Court of Appeal on grounds that the judgment cannot be supported having regard to the evidence on record. Counsel for the appellant urged the court to reject the confession statements relied on by the trial court and to set aside the conviction since it was based solely on the confessions therein. The arguments made against the choice of the independent witness are as follows:
a. That D/Sgt. Asamoah Gyamfi who served as an independent witness for all the accused persons including the appellant worked in the same office as the investigator since he was the administrator of the office and he is informed of what each investigator is doing.
b. That D/Sgt. Asamoah Gyamfi served as independent witness to all the accused persons even though they were arrested on different days over a period of 3 months.
c. That D/Sgt. Asamoah Gyamfi gave false testimony about the age of the first accused in an earlier trial.
The Court of Appeal relied on the principles espoused in the Ekow Russel case to further clarify the issue of police officers serving as independent witnesses. The court held that cogent evidence must be adduced to clearly disqualify a police officer serving at the police station where a suspect is investigated. It was further stated that investigating a case involves the investigator and his superior officers who may have the duty of directing the investigations and fairing the docket for prosecution. Not all persons involved in the building of a docket should be deemed disqualified on the basis of having direct personal interest in the case. According to the court, this will frustrate investigations, especially since there are difficulties in getting not just qualified but also available independent witnesses. This is especially so since more often than not, confession statements are made at police stations where there are predominantly police officers present.
In dealing with the independent witness in the Apor Amoakwah Frederick case, it was held that the position held by D/Sgt. Asamoah Gyamfi was a purely administrative one with no direct interest in the conviction of the appellants. It was also held that his position as administrator and his availability accounted for the fact that he was the investigator’s choice as an independent witness for all the accused persons. In respect of his earlier testimony against the first accused, it was found that it was not the evidence of the witness D/Sgt. Asamoah Gyamfi supporting the prosecution’s case of a contested confession statement that was found untrue, but it related to a different matter, which was the age of the first accused person. The confession statements were found to be compliant with section 120 of NRCD 323 and the convictions based on the confession statements were upheld.
Having regard to the number of mini trials conducted in criminal cases in recent years, it is imperative that law enforcement officers comply with the legal guidelines in the Evidence Act and those established by the law courts for the taking of confession statements. Defence counsels must also pay close attention to, and exercise due diligence in investigating claims by accused persons against their confession statements in order to sustain an objection.
[i] Evidence Act, 1975 (NRCD 323)
[ii] (1977) 2 GLR 418
[iii] See also Gyabaah v The Republic [1984-86] 2 GLR 461, Tiduri v The Republic [1991] 1 GLR 209 and Isaac Amanianpong v The Republic; Suit No: J3/10/2013 dated 28th May 2014 SC
[iv] [2020] CRIM.LR 180 or [2017-2020] 1 SCGLR 469
[v] See section 120(3) of the Evidence Act, 1975 (NRCD 323)
[vi] [2012] 1 SCGLR 297
[vii] [2020] CRIM.LR 180 or [2017-2020] 1 SCGLR 469
[viii] See sections 58 and 59 of NRCD 323
[ix] (Unreported) Criminal Appeal No. H2/27/2021 dated 23rd March 2022