THE REPUBLIC vs. G/L/CPL EKOW RUSSELL [2011]DLHC7950

Date	2011-03-24
Suit No.	SUIT NO. ACC 18/2007
Citation No.	[2011]DLHC7950

JUSTICE C. J. HONYENUGA J.A. SITTING AS AN ADDITIONAL HIGH COURT JUDGE

[2011]DLHC7950
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>G/L/CPL EKOW RUSSELL<o:p></o:p>[HIGH COURT
(FAST TRACK DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. ACC 18/2007&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH MARCH, 2011<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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JUSTICE
C. J. HONYENUGA J.A. SITTING AS AN ADDITIONAL HIGH COURT JUDGE<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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</div>The accused was charged with possession of
narcotic drugs together with one Maxwell Antwi, (1st accused) now
deceased contrary to section 2 of the Narcotic Drugs (Enforcement and
Sanctions) Law, 1990, PNDCL 236, was charged with Supply of narcotic drug
contrary to section 6(1) of PNDCL 236 and also charged with engaging in a
prohibited business relating to narcotic drugs contrary to section 3(1) of
PNDCL 236.<o:p></o:p>The accused pleaded not guilty to the said charges
while the deceased Maxwell Antwi later pleaded guilty to count one and was
sentenced to 10 years IHL on the 7th day of February 2008.<o:p></o:p>The facts of the case were that Maxwell Antwi now
deceased was a car dealer at Nyamekye, a suburb of Accra while the accused is a
police man attached to the Accra Regional Headquarters.&nbsp; Until he pleaded guilty and was convicted and
sentenced, Maxwell Antwi was arrested by a policeman from the CID Headquarters
on suspicion of having in his possession a narcotic drug.&nbsp; A search conducted on him revealed some
whitish substance suspected to be cocaine.&nbsp;
Upon interrogation, he stated that the substance was part of some 900
grams of similar substances that the accused Ekow Russell gave to him to sell
on his behalf.&nbsp; He further stated that he
had already sold some quantities of the drugs, handed over the money to the
accused and it was while trying to offer the rest for sale that he was
arrested.<o:p></o:p>When the accused was arrested, he confessed that
he gave the substance to Maxwell Antwi to sell for him after he had obtained
same from some Nigerian drug dealers he arrested.&nbsp; That substance which was found on Maxwell
Antwi proved positive for cocaine after laboratory analysis.&nbsp; On the 16th day of January 2007,
investigations further revealed that the accused upon information from some
Nigerians that one Sebastian Ubbah was dealing in drugs, accompanied by the
informant, some Nigerians and some of his colleagues from the Monitors Unit of
the Regional Police Headquarters went to arrest the said Sebastian in his
house.&nbsp; Investigations further revealed
that the accused arrested Sebastian with about 8 slabs of a substance suspected
to be cocaine together with Matthew a brother to Sebastian.&nbsp; The accused however, handed over the suspects
to his colleagues but kept the 8 slabs of cocaine in the vehicle he used with
the Nigerians to effect the arrest of the suspects.&nbsp; While his colleagues sent the suspects to the
Police Station, the accused and the other Nigerians drove in a different
vehicle and headed towards Achimota with the 8 slabs of cocaine.&nbsp; When they got to a portion of the road, the
accused distributed the drugs and gave the Nigerians 5 slabs of cocaine out of
the 8 slabs he had seized from Sebastian.&nbsp;
However, when the accused got to the Regional CID office, he handed over
only one slab of cocaine to his superiors giving the impression that only one
slab was seized from Sebastian.&nbsp; On the
31st day of January 2007 while the suspect Sebastian was in the
custody of the accused, he escaped.&nbsp; The
accused was therefore charged with the offence.<o:p></o:p>I must state that this case was originally heard
by my brother Justice Anim JA (as he then was) for almost a year in 2007 but he
could not conclude the hearing before he retired.&nbsp; Baffoe-Bonnie JA (as he then was) had the
case transferred to him but he could not do much before his elevation to the
Supreme Court.&nbsp; I was then saddled with
the responsibility of hearing this case de novo as an additional High Court.&nbsp; I am glad that I have been able to conclude
this case after having gone through a voire dire or mini trial which actually
took sometime to conclude.<o:p></o:p>It is a cardinal principle of our criminal
jurisprudence that the prosecution must prove the guilt of the accused person
beyond all reasonable doubts.&nbsp; Section
11(2) and 13(1) of the Evidence Act, 1975, NRCD 323 provides:-<o:p></o:p>“2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In a criminal action the burden of producing evidence, when it
is one 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 evidence of the fact beyond all reasonable
doubt”<o:p></o:p>“13(1)&nbsp; In any Civil or Criminal action, the burden of persuasion as to the
commission by a party of a crime which is directly in issue requires proof
beyond a reasonable doubt”.<o:p></o:p>Section 15(1) also required that the prosecution bore
the burden of persuasion.&nbsp; Sections 11(3)
and 11(2) of the Evidence Act, 1975, NRCD 323 required the accused to raise
reasonable doubts essential to his guilt.&nbsp;
Section11(3) provides:-<o:p></o:p>“(3) In a criminal action, the burden of producing
evidence when it is on the accused as to any fact the converse of which is
essential to guilt requires the accused to produce sufficient evidence so that
on all the evidence a reasonable mind could have a reasonable doubt as to
guilt”.<o:p></o:p>