EDMUND ADDO vs. THE REPUBLIC [2018]DLHC10758

Date	2018-06-20
Suit No.	SUIT NO. CR 233/2018
Citation No.	[2018]DLHC10758

HIS LORDSHIP JUSTICE CHARLES EDWARD EKOW BAIDEN

CLETUS ALENGAH ESQ. WITH REBECCA QUARSHIE (MS

FOR THE APPLICANT STELLA OHENE APPIAH (MRS) FOR THE RESPONDENT

[2018]DLHC10758
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													<main id="main" class="content" style="min-height: 60rem" >EDMUND ADDO<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>CLETUS ALENGAH, ESQ. WITH REBECCA QUARSHIE (MS), FOR THE APPLICANT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

STELLA OHENE APPIAH (MRS),
FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p>HIS LORDSHIP JUSTICE CHARLES EDWARD EKOW BAIDEN<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;Background<o:p></o:p>[1]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This is an application to stay execution
of the orders of the Circuit Court granting the Police authority to access the
contents of an HP Lap Top Computer and a Samsung Mobile Phone (devices) seized
from the Accused-Applicant for forensic examination. The devices are believed
to contain videos and photographs of the Accused-Applicant and a Child-Victim,
taken during sexual encounters between them. From the fact s, the Police
Investigators have reasonable grounds to believe that the devices were used in
uploading the said videos and photographs on to the intenet by the
Accused-Applicant.<o:p></o:p>[2]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The lower court observed that when the
Accused-Applicant was arrested, the devices were seized from him, despite his
protestations. The Police tried assiduously to access the devices but an application
to the Human Rights<o:p></o:p>Division
of the High Court (J-luman Rights Couti) resulted in an injunction against the
Inspector-General of Police (IGP) and the Attorney-General (AG) to deposit the
devices in court. According ·to the&nbsp;
lower court judge, it took the IGP and the AG three months to comply
with the order of the Human Rights Court, after admitting that the devices had
already been accessed.<o:p></o:p>[3]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Before the lower trial judge, Counsel
for the Accused-Applicant argued that having failed to comply with the orders
of the Human Rights Court and the Court having held that the conduct of the
police constituted a breach of the right to privacy and fair trial, the said
devices are inadmissible as same will deprive the Accused-Applicant of the
right to a fair trial. (Emphasis added). Before the trial court, Counsel
for&nbsp; the&nbsp;
Accused-Applicant argued that when evidence is obtained in violation of
a constitutionally guaranteed human right, such evidence is inadmissible
notwithstanding Section 51 of the Evidence Act, 1973 (NRCD 323). (Emphasis
added). In his submissions, Counsel for the Accused-Applicant prayed the lower court to declare
the Prosecution's application to access the&nbsp;
contents of
the devices seized from the Accused-Applicant as incompetent as those devices
had not been tendered in evidence. Counsel further informed the trial court
that the Prosecution is in the habit of disobeying the court and that any act
done to disobey the court is void. It must be stated that the above were the
arguments canvassed before the lower court judge. Since this is not the
substantive appeal, I will refrain from commenting on them.<o:p></o:p>[4]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Be it as it may, the lower court judge
observed in her ruling that in terms of Section 98 of the Electronic
Transactions Act, 2008 (Act 772) there is no evidence to suggest that the
Prosecution seized the devices while executing a warrant. However, considering
the ruling of the Human Rights Court in the case&nbsp; of EDMUND ADDO v THE ATTORNEY GENERAL AND
ANOTHER SUIT NO.<o:p></o:p>HR/0080/2017
which&nbsp; affirmed that&nbsp; a police&nbsp;
officer&nbsp; may seize&nbsp; incriminating items of property and detain
them for purpose of the intended criminal investigation and prosecution, the
trial judge held that it was on&nbsp; purpose
that the Human Rights Court did not release the devices to the
Accused-Applicant, even though that prayer was made. The learned judge further
ruled&nbsp; that contrary to the allegations
of Counsel for the Accused-Applicant, there was no evidence to show that the
Prosecution had already accessed the devices, successfully. Citing Section
99(2} of Act 772, the learned judge formed the view that, it is not proper to
impede the efforts of the prosecution in the gathering of evidence and that the
admissibility or other\vise of the evidence gathered is a matter for future
determination during trial.<o:p></o:p>[S]&nbsp;&nbsp;&nbsp;&nbsp; The application of the Prosecution for an
order to access the&nbsp; contents of<o:p></o:p>the
devices was consequently granted. The court below ordered its Registrar to
record the serial numbers of the devices and release same to the Prosecution in
the presence of the Accused-Applicant. The Registrar was also to accompany the
parties to the Forensic Examiner to hand over the&nbsp; devices. The trial judge ordered that proper
records must be kept by the Prosecution by way of documentation and/or
photographs and lastly, the contents of the devices must be preserved without
any modifications whatsoever.<o:p></o:p>[6]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Aggrieved by this ruling, the
Accused-Applicant has repeated his applica</main>