AUDIT SERVICE STAFF SEMINAR BY JTI- MARCH 2012.

1. AUDIT SERVICE STAFF SEMINAR BY JTI- MARCH 2012. UNDERSTANDING THE RELEVANT RULES OF EVIDENCE IN CRIMINAL AND CIVIL TRIALS AND INCHOATE OFFENCES-BY SAMUEL MARFUL-SAU,JUSTICE OF APPEAL.

2. INTRODUCTION • This presentation is aimed at introducing participants to the basic principles that have shaped our criminal justice system. • It will discuss these principles as enshrined in the 1992 constitution. • The paper will also present the basic rules of evidence in criminal justice as provided by the Evidence Act(NRCD 323) • Finally, the presentation will discuss the various inchoate offences created under the Criminal Offences Act, Act 29.

3. SOURCE OF CRIMINAL LAW • The criminal justice system derive its source from the 1992 Constitution and the Criminal Offences Act of 1960(Act29), which is the principal enactment on crime in Ghana. Besides Act29 there are other statutes creating offences. • The prosecution of criminal offences is regulated by the Criminal and Other Offences Act of 1960 (Act 30).

4. Foundation of Criminal Justice • The criminal justice system is founded on the common law principle that a person is innocent until proved guilty by a competent court. • This principle has shaped the criminal justice system and the courts have enforced it by acquitting accused persons for lack of evidence and convicted where evidence adduced at a trial points to the commission of the crime.

5. What Constitute a Crime? • Crime simply are any act, conduct or omission which is in contravention of the rules of conduct approved by the community and for which sanctions are provided to ensure compliance. • Article 19 (11) of the 1992 Constitution provides that’’ no person shall be convicted of a criminal offence unless the offence is defined and a penalty for it is prescribed in a written law.’’ • This provision is reinforced by article 19(5) of the constitution which states that’’ a person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or commission that did not at the time it took place constitute a crime.’’

6. Basic Principles of Criminal Law. • The common law criminal justice system operates mostly under the concept that a conviction in criminal cases must be secured on the basis of the accused person’s guilty mind, together with the commission of the prohibited act, Hence the concept of mensrea and actusreus. • Mensrea- shows the state of mind of the accused person before and during the commission of the offence. • Actusreus- depicts the commission of the crime itself. It is the physical result of a human conduct.

7. Principles Contd. • Lord Goddard C.J stated the principle thus:-’’ it is of utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules out mensrea as a constituent part of a crime the court should not find a man guilty of an offence against the criminal law unless his mind is guilty.’’ Brend v. Wood(1946) T.L.R 462.

8. Principles Contd. • Generally whether mensrea is essential in proving a crimedepends on the language of the statute creating the offence. • However, when offences are created by statutes using words like intentionally, fraudulently, knowingly, dishonestly, wilfully, then mensrea becomes necessary to prove. Such words represent the state of mind of the accused.

9. WHAT IS EVIDENCE? • Evidence is a fact presented to a court of law on oath and subject to examination by the parties in a case and the court. It is a fact presented to prove a claim or to disprove a claim in a court of law. It can be oral, documentary and material objects. • In criminal cases, for example, it is the duty of the prosecution(the accuser) to produce sufficient evidence to prove the charges levelled against the accused. • The law of evidence therefore is the rules that govern the way facts are proved in a court of law.

10. SOURCES OF LAW OF EVIDENCE. • In Ghana the source of our law of evidence are the 1992 Constitution; Acts of Parliament and Judicial decisions on rule of evidence. • The law that regulate the taking of evidence in our courts is the Evidence Act, NRCD 323 of 1975. • Section 179(1) of the Actdefines evidence to mean oral testimony, writings, material objects or other things presented to the court to prove the existence or non-existence of a fact.

11. TYPES OF EVIDENCE • Evidence to prove a fact could be direct or circumstantial • In a criminal trial direct evidence is a fact presented by an eye- witness to the commission of a crime. • Circumstantial evidence is any fact from which the court may infer the existence of a fact in issue. It is important because without it many claims in criminal law will fail for lack of direct prove. • Circumstantial evidence is different from rumours, suspicion and speculation. It is credible fact from which the disputed facts may be presumed or inferred.

12. TYPES OF EVIDENCE CONTD. • Relevant Evidence:- it is that evidence which makes the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without that evidence. (Section 51 of Evidence Act). • Under the Evidence Actgenerally only relevant evidence is admissible. • Material Evidence:- this is evidence that has material connection that link the accused with the offence committed.

13. PROOF IN CRIMINAL CASES. • The law of evidence require a standard of proof for criminal and civil cases. What this means is that any charge in a criminal case must be proved by evidence , just like all civil claims must be prove by evidence. • The only facts that the law does not require evidential proof are notorious facts and facts whose existence are easily determinable. This is the notion of judicial notice.

14. BURDEN OF PROOF. • The burden of proof impute two burdens, firstly producing credible evidence to a court on a particular issue and secondly is persuading the court that a fact alleged is true or not. • By section 10 of the Evidence Actthe burden of persuasion is the obligation of a party to establish the requisite degree of belief concerning a fact in the mind of a tribunal of fact or the court. • Section 11 of the Evidence Act the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

15. PROOF IN CRIMINAL CASE • Section13(1) of the Evidence Act provides that 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. • This means when the prosecution is to prove a fact, it must produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. • The term beyond reasonable doubt means that the evidence must carry a high degree of probability.

16. Burden of Proof Contd. • Under section 11(3) and section 13(2) of the Evidence Act, when the burden of producing evidence in a criminal case is on the accused to prove any fact the converse of which is essential to guilt, the accused is only required to raise a reasonable doubt as to guilt.

17. PROOF IN CIVIL CASES. • Generally, the standard of proof in civil cases is Preponderance of probabilities or balance of probabilities. • This has been defined by section 12 (2) of the Evidence Act, to mean that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. • What it means is that a party bearing a burden has to submit sufficient evidence so as to make it on balance outweigh the other.

18. INCHOATE CRIMES • These crimes relates to the complicity in the commission of a crime. A person may be solely responsible for the commission of a crime but others may be guilty of complicity. • The common inchoate crimes are:- Abetment, Conspiracy and Attempt. • These offences when preferred against accused person are to be proved just like any substantive criminal charge.

19. ABETMENT • Under section 20 of Act 29:- Any person who directly or indirectly instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging, or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime. • For example A will be convicted for aiding B to opened a bank account under a false name and description, which account was used to dispose of forged cheques. Under section 20(2) of Act 29, a person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime.

20. ATTEMPT • By section 18(1) of Act 29:- a person who attempts to commit a crime by any means shall not be acquitted on ground that, by reason of the imperfection or other condition of the means, or by reason of the circumstances under which they are used, or by reason of any circumstances affecting the person against whom, or thing in respect of which, the crime is intended to be committed, or by reason of the absence of that person or thing, the crime could not be committed according to his intent. • For example, A puts his hand into B’s pocket, with the purpose of stealing. A is guilty of an attempt, although thereis nothing in the pocket.

21. ATTEMPT CONTD. • By section 18 (2) of Act 29- every person who attempts to commit a crime shall be deemed guilty of an attempt, and shall, except as the Act otherwise expressly provided, be punishable in the same manner as if the crime had been completed.

22. CONSPIRACY • By section 23(1) of Act 29 – if two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.

23. CONSPIRACY CONTD • Section 23 (2) of Act 29- a person within the jurisdiction of the courts, can be guilty of conspiracy by agreeing with another person who is beyond the jurisdiction, for the commission of abetment of any crime to be committed by them or either of them, or by any other person, either within or beyond the jurisdiction.

24. The End • Thank you.