DEXTER EDDIE JOHNSON vs. THE REPUBLIC [2011]DLSC6721

Date	2011-03-19
Suit No.	CRIMINAL APPEAL Suit No: J3/3/2010
Citation No.	[2011]DLSC6721

S.K. DATE-BAH JSC (PRESIDING)

R.C. OWUSU (MS) JSC

J. DOTSE JSC

ANIN-YEBOAH JSC

B.T. ARYEETEY JSC

KWABLA SENANU FOR APPELLANT.

MISS CYNTHIA LAMPTEY CHIEF STATE ATTORNEY FOR THE RESPONDENT.

[2011]DLSC6721
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													<main id="main" class="content" style="min-height: 60rem" >DEXTER EDDIE JOHNSON<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

CRIMINAL APPEAL Suit No:
J3/3/2010&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: 16TH MARCH, 2011<o:p></o:p>

MISS
CYNTHIA LAMPTEY, CHIEF STATE ATTORNEY FOR THE RESPONDENT. <o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DR. DATE-BAH JSC <o:p></o:p>On
the 18th day of June 2008, the appellant was convicted of a grisly murder by a
jury at the Fast Track High Court, Accra.&nbsp;
The appellant appealed against his conviction and against an order by
the High Court forfeiting his Mercedes Benz car.&nbsp; The appellant also filed supplementary grounds
of appeal contending that the death sentence imposed on him violated the
prohibition of inhuman and degrading treatment under article 15(2) of the 1992
Constitution; the right to protection from arbitrary deprivation of life under
article 13(1) of the Constitution; and the right to a fair trial under article
19(1) of the Constitution. The appeal was dismissed by the Court of Appeal,
resulting in the present further appeal to this Court. <o:p></o:p>Before
this Court, the appellant has appealed against both conviction and
sentence.&nbsp; His grounds of appeal are as
follows:<o:p></o:p>"(a) Grounds of appeal against
Conviction: <o:p></o:p>1. The dismissal of the Appellant’s
appeal against conviction for murder is unreasonable or cannot be supported
having regard to the evidence on record. <o:p></o:p>2. The judgment of the Court of Appeal
occasioned a substantial miscarriage of justice as the Trial High Court Judge’s
acquittal of the Appellant on the charge of conspiracy to commit murder
rendered the conviction on murder unsafe. <o:p></o:p>3. The judgment of the Court of Appeal
occasioned a substantial miscarriage of justice due to the complete failure by
the trial High Court Judge to give a proper direction on circumstantial
evidence. <o:p></o:p>4. The Court of Appeal erred in
ignoring the inadmissible hearsay evidence that was admitted by the trial High
Court with severe prejudice for the defence. <o:p></o:p>5. The Court of Appeal should have
quashed the Appellant’s conviction as the toll ticket allegedly recovered from
the appellant’s car was obtained in breach of the rules regarding searches of a
suspect’s property and should not have been admitted. <o:p></o:p>(b)
Grounds of appeal against Sentence: <o:p></o:p>1. As sentencing is a question of law
to be solely determined by the Trial High Court Judge at the jury trial, the
Court of Appeal erred in holding that the challenge to the mandatory death
penalty for murder could only be dealt with on appeal if it was raised as an
issue before the Trial High Court Judge. <o:p></o:p>2. The mandatory imposition of the
death penalty on the Appellant for murder cannot stand since section 46 of the
Criminal Code, 1960 (Act 29) is in utter contravention of Articles 15(2) and
33(5) of the 1992 Constitution that prohibits inhuman and degrading treatment. <o:p></o:p>3. The mandatory imposition of the
death penalty on the Appellant for murder cannot stand since section 46 of the
Criminal Code, 1960 (Act 29) is in violation of Article 13(1) of the 1992
Constitution of Ghana that guarantees protection from arbitrary deprivation of
life. <o:p></o:p>4. The mandatory imposition of the
death penalty on the Appellant for murder cannot stand as section 46 of the
Criminal Code, 1960 (Act 29) is in violation of Article 19(1) of the 1992
Constitution of Ghana that guarantees the right to a fair trial. <o:p></o:p>5. Further grounds of appeal to be
filed upon receipt of the certified true copy of the judgment of the Court of
Appeal." <o:p></o:p>I
will first consider the grounds of appeal against conviction before examining
the issue of the constitutionality of the sentence of death in murder
cases.&nbsp; If the appeal against conviction
succeeds, it will not be necessary to consider the constitutional question. <o:p></o:p>The appeal against conviction <o:p></o:p>The
jury convicted the appellant of the murder of one John Kragness, who was killed
at Salem, near Old Ningo, in the Greater Accra region on 27th May 2004.&nbsp; The conviction was on the basis of the
circumstantial evidence led by the prosecution.&nbsp;
As already mentioned above, the appellant appealed against both sentence
and conviction to the Court of Appeal and then to this Court, when the Court of
Appeal affirmed the decision of the High Court.<o:p></o:p>The
Bill of Indictment against the appellant contained two counts: one was for
conspiracy to commit murder and the second was for murder.&nbsp; After the trial of the app</main>