REPUBLIC vs. ACCRA SPECIAL CIRCUIT COURT; EX PARTE AKOSAH [1977]DLHC1412

Date	1977-03-08
Suit No.
Citation No.	[1977]DLHC1412

TAYLOR J.

W. A. N. ADUMUA-BOSSMAN FOR THE APPLICANT.

[1977]DLHC1412
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>ACCRA SPECIAL CIRCUIT COURT; EX PARTE AKOSAH <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977]2 GLR 283<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
8 MARCH 1977<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

W. A. N. ADUMUA-BOSSMAN FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>This is a
motion ex parte for leave to apply for an order of certiorari to bring up to
this court for the purpose of being quashed a ruling in a criminal case at the
Special Circuit Court, Accra, on a submission of no case, by which the
applicant was called upon to enter his defence, The motion further seeks an
order for an interim stay of proceedings in the circuit court in respect of the
pending criminal case, the subject-matter of the motion. No argument of any
sort was advanced however in regard to the request for an order of interim
injunction. I suppose counsel must have reckoned that, if in view of the
procedure in applications for prerogative orders, leave were granted, the
necessity for giving the respondent sufficient notice to enable him to appear
at the substantive hearing may make it inexpedient to continue with the hearing
of the case at the circuit court pending the final hearing and determination of
the certiorari proceedings. In such a situation an interim stay of proceedings
would be inevitable and in the circumstance, there may very well be no need for
an application for such a stay as the justice of the case would dictate the need
for the order to stay, for as is provided in Order 59, r. 2 (4) of the High
Court (Civil Procedure) Rules, 1954 (L.N. 140A):<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
grant of leave . . . to apply for an order of . . . certiorari, shall, if the
Court or a Judge so directs, operate as a stay of the proceedings in question
until the determination of the application, or until the Court or a Judge
otherwise orders.”<o:p></o:p><o:p>&nbsp;</o:p>From the
affidavit filed by the applicant, it is clear that he faced two charges of
possessing Indian hemp and attempting to export Indian hemp. The offence of
possessing Indian hemp is defined by section 47 (1) of the Pharmacy and Drug
Act., 1961 (Act 64), as amended by the Pharmacy and Drugs (Amendment) Act, 1963
(Act 222), and it is as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“No
person shall have in his possession without lawful excuse, proof of which shall
be on him, any opium or Indian hemp of any species or description whatsoever or
any residue from the smoking thereof.”<o:p></o:p><o:p>&nbsp;</o:p>I propose
to decide this application in view of counsel’s submissions by relying on certain
basis assumptions. In the first place the many decisions of our courts typified
by such cases as Amartey v. The State [1964] G.L.R. 256, S.C. and Nyameneba v.
The State [1965] G.L.R. 723, S.C. show that at least as far as the offence of
possession of Indian hemp under section 47 (1) of the Pharmacy and Drugs Act,
1964, is concerned, it is impossible to divorce knowledge of what is possessed
from the mere physical act of possession if a conviction is to be sustained.
Secondly although the prosecution must lead prima facie evidence tending to
establish knowledge or mens rea in order to succeed, it is my view that if such
prima facie evidence of mens rea is neutralised by evidence on a balance of
probabilities that an accused person has no knowledge or mens rea, then such an
accused person was shown lawful excuse and his possession is not caught by
section 47 (1). This second assumption does not do violence to the concept of
knowledge inherent in possession and it is merely dictated by the form in which
the legislature has formulated the offence under section 47 (1) of Act 64. That
formulation is not novel, for as Lord Reid pointed out in Warner v.
Metropolitan Police Commissioner [1969] 2 A.C. 256 at p. 271, H.L.:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“There
are a number of statutes going back for over a century where Parliament in
creating a new offence has transferred the onus of proof so that, once the
facts necessary to constitute the crime have been proved, the accused will be
held to be guilty unless he can prove that he had no mens rea.”<o:p></o:p><o:p>&nbsp;</o:p>I have
drawn attention to this because of the applicant’s complaint that contrary to
law the onus of proof is being shifted to him. In the form in which the
legislature has seen fit to spell out the offence under section 47 (1), it
seems to me that in an appropriate case an onus can be cast and properly cast
on a person accused of crime under section 47 (1) of Act 64 provided that in
discharging the said onus, it is understood that the accused, unlike the
prosecution, succeeds in discharging the said onus merely on a balance of
probabilities and not beyond reasonable doubt.<o:p></o:p>