Full text of report: Chief Justice’s Committee of Inquiry into cocaine saga

EXECUTIVE SUMMARY REPORT OF COMMITTEE OF INQUIRY INTO THE POLICE CID AND NACOB PETITION TO THE CHIEF JUSTICE OVER “WASHING SODA COCAINE”

INTRODUCTION

The Honourable Lady Chief Justice on 14th December 2011 set up a high-level Committee of Inquiry to investigate circumstances under which 1020 grams of cocaine allegedly received in Circuit Court 1, Accra, as an exhibit in the case of “The Republic Vs. Nana Ama Martins” turned into washing soda. In the 14th December 2011 edition of the Daily Graphic, the newspaper reported that the Accra Circuit Court was puzzled as to how a substance alleged to be cocaine which was seized from an accused person, confirmed by the Police to be cocaine after testing and weighing 1020 grams, later turned out to be sodium carbonate (commonly known as washing soda) after another test by the Ghana Standards Board on the orders of the Court.

Other media reports stated the same. Subsequently, the Criminal Investigations Department of the Ghana Police Service and the Narcotics Control Board held a Press Conference on the matter and petitioned Her Ladyship the Chief Justice to investigate the conduct of the Accra Circuit Court and its trial Judge, His Honour Eric Kyei Baffour over the disappearance of 1020 grams of cocaine exhibit which was kept in the custody of the court.

The Committee of Enquiry is chaired by Justice Agnes Dordzie, a Justice of the Court of Appeal. Other members of the Committee are Justice Abdullah Iddrisu, a Justice of the High Court and Mr. John Bannerman, the Chief Registrar General of the Judicial Service with Mr. Nii Boye Quartey, Deputy Director of Human Resource of the Judicial Service as Secretary to the Committee.

The terms of reference of the Committee are to establish the roles played by the trial Judge and other court officials including the Registrar and the Court Clerk in the matter and other matters related thereto.

The Committee was to sit in public and submit its report within seven (7) days from its first sitting effective 15th December 2011.

The Committee started its sittings from 15th to 20th December 2011 and took evidence
from the following eleven (11) persons in the order their names appear.

1. Thomas Anyekese – 1st Investigator (Ghana Police Service)
2. Joseph Owusu – 2nd Investigator (Ghana Police Service)
3. DSP Kofi Adjei Tuadzra – Head of the Narcotics Unit of Police CID (Ghana Police Service)
4. Stella Arhin – State Attorney (Attorney Generals Department
5. Daniel Nyatsidzi – Court Clerk, Circuit Court, Accra.
6. Seidu Yusif – High Court Registrar, Cocoa Affairs, Accra, Court
7. Frederick Tetteh Kudjonu – Registrar Cocoa Affairs, Accra, Court
8. H/H Eric Kyei Baffour – Circuit Judge, Circuit Court , Accra.
9. Kwabla Senanu – Counsel for the accused person
10. David Agyeman Agyin – Police Forensic Expert (Ghana Police Service)
11. D.S.P. Dery – Police Prosecutor (Ghana Police Service)

SUMMARY OF EVIDENCE THOMAS ANYEKESE (1ST INVESTIGATOR)

The witness Thomas Anyekese told the Committee that on 27th September 2011 he was summoned to appear before the Circuit Court, Accra, which he did and he was asked to tender the report and the substance they received from the Police Forensic Science Laboratory. He said he tendered them and there was no objection and the substance was admitted as exhibit C with the Police seal embossed on it. He said the report which showed that the substance tested positive as cocaine was also marked as an exhibit before the Court. The Court then asked him to open the substance. He did and it was shown to the accused person, her Counsel and the Court. He did not complete his evidence on 27th September 2011 therefore the case was adjourned to 28th September 2011 for continuation. On the 28th September, 2011 during cross examination.

The Court ordered that the exhibit which was in the custody of the court be brought to court, and it was brought to Court and it was then that Defence Counsel raised objection and said that he did not believe the authenticity of the substance. The State Attorney, who was the Prosecutor, vehemently opposed the submission of the Defence Counsel. The Judge however overruled her and gave an Order that the substance be retested.

The assistant Registrar of the Court took sample of the substance and put it in another brown envelope and sealed it with the seal of the Court. The Court Clerk, the Registrar, defence counsel, the accused person and the current Investigator (Joseph Owusu) appended their signatures. The witness said he refused to append his signature.

JOSEPH OWUSU (SECOND INVESTIGATOR)

He told the Committee he took over the case from Thomas Anyekese in 2009 or 2010. At the time the case was handed over to him, investigation was almost complete and the substance was kept with the Unit Commander of the Narcotic Unit of the Police CID.

On 6th September 2011 he was to take the exhibit to Court. He was accompanied by two armed senior police officers and they took the substance to Court but the police investigator was not called that day to give evidence. They therefore sent the substance back to the Unit Commander. On the 13th September 2011 he took the substance back to Court and he was again accompanied by two armed senior police officers.

The investigator Thomas Anyekese could not be called on the 13th September well so they sent the substance back to the Unit Commander 2011.

On the 27th September 2011, he went back to COURT with the substance and again he was accompanied by two senior police officers who were armed.

On the 27th September 2011 Thomas Anyekese was called to give his evidence and therefore the substance was handed over to him. He said he was a witness so he stayed outside the Court room but he learnt the case was adjourned to 28th September 2011 for continuation. He gave evidence before the Court on 3rd October 2011 and tendered the charge statement of the accused person.

DSP KOFI ADJEI TUADZRA (COMMANDER, NACORTIC CONTROL UNIT)

DSP Kofi Adjei Tuadzra said he took over as the Unit Commander of the Narcotic Unit of the police CID on 27th August 2010. He took over from Superintendant Thomas Obah. When he took over he became responsible for all the exhibits in the Unit including the one labelled “The Republic vs. Nana Ama Martins”. He said he checked the seals on all the exhibits including the Nana Ama exhibit and found all of them intact. He was informed by Constable Owusu that the Nana Ama case was on trial. On the 6th of September 2011 he took the Nana Ama exhibit out of the safe to be sent to court. The witness said the cocaine weighed about one Kilogramme and had a market value of about $44,000. He therefore found it necessary to take precautionary measures on who handles the substance. On all the occasions that the substance had to leave his office to the Court he made sure two armed senior officers accompanied Constable Owusu.

He said he was informed by Owusu that the substance was admitted in evidence on the 27th of September 2011 and left in the custody of the court. He enquired whether the seal was broken and the answer was yes. He then enquired whether an order was made for the destruction of the substance the answer was no. He was alarmed and therefore called the state Attorney to find out why there was no such order.

She explained to him that they were going back to court on the following day the 28th of September. She will make the application for the destruction of the substance. He was again informed on the 28th September 2011 that the Court ordered a re-testing of the substance because the defence counsel had challenged the authenticity of the substance that was previously admitted in evidence without objection.
He realised that something had gone wrong. He therefore submitted a written report to his superiors. The written report was tendered in evidence through him as exhibit 1.

STELLA ARHIN (STATE ATTORNEY)

Stella Arhin in her evidence said that the case was assigned to her in 2009 and she prepared the charge sheet for the trial. She said that she realized from the extract of the Police docket that the Police first took it to Justice Dotse for assignment to a Court and it was assigned to Circuit Court 1 for the accused person to be remanded in custody.

She said she prepared a charge sheet for the High Court and called the Investigator to ask him to organize the witnesses and bring them to her office for a conference but that the investigator said he was at a course and would see her after the course. She said she waited for the Investigator but he never came and she had to go on maternity. When she came back from the maternity leave she could not get in touch with the Investigator, Thomas Anyekese.

All her efforts to get the police and witnesses including getting the Greater Accra crime boss involved yielded no result.

She said she went to Circuit Court 1 one day and saw in that Court a docket titled “The Republic vs. Nana Ama Martins”. She made enquiries about which police prosecutor was handling that case in that Court. She was told it was DSP Dery. She contacted him and DSP Dery briefed her on how far they had gone with that case at Circuit Court 1. DSP Dery further connected her to the investigator. All these happened in July 2011. She realised that a lot had gone on in Circuit Court 1 and therefore decided to continue prosecuting the matter at the Circuit Court instead of the High Court where she had instructions to prosecute the matter.

The witness further told the Committee that in the course of the trial the substance was tendered through Thomas Anyekese on 27th September 2011. Defence counsel did not object to the tendering of the exhibit. The test report was accepted as Exhibit ‘B’ and the substance was marked as Exhibit ‘C’. After the exhibits were admitted in evidence the substance was opened in Court, the seals were broken and the drug was brought out of the envelope. Upon the Court orders the cellotape was cut and they all saw the whitish substance with their own eyes.

After this Counsel started his cross examination to a point and prayed for adjournment.

His application was granted and the case was adjourned to the next day 28th
September, 2011 for continuation.

On 28th September, 2011 defence counsel continued his cross examination and getting to the tail end of it he challenged the authenticity of the drug and said it was not cocaine. He also argued that the Police Forensic Lab did not have the authority to test the drug and requested retesting of the drug.

The witness said she objected to the steps the Defence Counsel was taking at that time of the trial. The Judge over ruled her objection and ordered that the substance should be retested at the Ghana Standards Board. The Court also ordered that the Registrar should take sample for the testing.

The testing at Ghana Standards Board turned out that the substance tested negative for cocaine. At the close of the prosecution’s case defence Counsel made a submission of no case. She opposed it but the Court upheld the submission of no case. Ms Arhin, the State Attorney, in her evidence in cross examination confirmed that when the seals were broken on the envelope and the drug taken out on the 27th September 2011, it did not have the usual pungent smell of cocaine.

DANIEL NYATSIDZI (COURT CLERK)

Mr. Daniel Nyatsidzi in his evidence stated that he has been working at the Circuit Court 1 as Court Clerk for four years. He said on the 27th September, 2011, he was in Court as the clerk of the Court during the trial of the case entitled “The Republic VS Nana Ama Martins”. PW4, who was the investigator in the case, that is, Thomas Anyekese, was called to give evidence and in the course of his evidence he applied to the Court to tender the various exhibits they had. Exhibit C was also tendered and he marked it. The Court demanded to know the content of exhibit C. The Investigator was given the envelope containing the substance, which is exhibit C, to open. He opened it and removed the slab-like object which was very hard wrapped with cellotape.

The Investigator was asked to cut a portion. He gave him a scissors to cut the portion and the Investigator showed the exhibit to the Court. The Investigator gave the exhibit back to him and he put it back in the bigger envelope with the label. After cross examination counsel asked him to take back exhibit C from the investigator. He did and stapled the part of the envelope that had been cut and kept exhibit C in the room where he keeps all exhibits. Defence counsel continued with cross examination on the 28th September 2011 and asked him to bring out all the exhibits. He asked him to give exhibit C to Thomas Anyekese and as he was giving it back to Thomas Anyekese. The State Attorney demanded to have a look at it and he gave it to her. A long argument ensued between both counsel. The defence counsel insisted that what the witness was holding in his hand was not cocaine but the witness insisted that it was cocaine. The Court made an order for re-testing and the Judge retired to his chambers.

He went to inform the Registrar that the Court has made an Order so he should come to the Court. The Registrar came immediately. The Defence Counsel, the accused person, the two Investigators, Joseph Owusu and Thomas Anyekese, were all present.

The Registrar asked that Thomas Anyekese should sign the envelope into which the sample would be fetched. He refused so Joseph Owusu signed. The State Attorney signed, the defence counsel signed, the accused person also signed. A sample was fetched from where the investigator had used scissors and brought out the sample.

The Registrar took the sample to his office and said that the following day he will go with the investigator to the Standards Board.

The witness said that at this stage the State Attorney advised him to bring a fresh envelope so he brought the envelope. Upon the advice of the State Attorney he used white cellotape to cover the portion of the substance that was cut open. He put the slab in the envelope that was endorsed by the State Attorney. According to the witness he is the only one that has access to the cabinet were exhibit C was kept. The cabinet was exclusively used for exhibits. When he came to work in that Court he complained to the Registrar on how exhibits are kept and the Registrar obtained a steel cabinet for him to use for exhibits. The witness insisted even in cross examination that he is the only one who has access to the key to the cabinet where he kept the exhibits.

SEIDU YUSIF (HIGH COURT REGISTRAR)

Mr. Seidu Yusif in his evidence stated that on 28th September, 2011 he was called to Circuit Court 1 by the Court Clerk and told that an exhibit which is cocaine needed to be retested because the Court has ordered that, so as a deputy Registrar he went back to inform his senior who gave him instructions, he also gave him the seal and he went to the Court room with the seal and then a sample of the cocaine was taken in the presence of all the stakeholders and it was put in an envelope and sealed. He said the State Attorney, the Investigator Mr. Joseph Owusu, the Defence Counsel and the accused person all signed the edges of the envelope and he also signed and the seal was used in their presence. He went back to his office and waited for the Court to close.

He needed the Record Book from the Court for the order made for the re-testing of the substance to be drawn. The Court however closed late so he had to go to the Standard Board on 29th September, 2011. He said he kept the sample he took in his office until the 29th September 2011 went he sent it to the Standards Board.

On 18th November, 2011 he went for the report from the Analyst of the Standard Board. The analyst came to give evidence and submitted his report on 22nd November, 2011.

The witness said when he presented the sample to the Standard Board a preliminary test was done in the presence of Joseph Owusu, the investigator and the substance tested negative for cocaine.

MR. FREDERICK TETTEH KUDJONU (REGISTRAR, CIRCUIT COURT, COCOA AFFAIRS)

Mr. Fredrick Tetteh Kudjonu informed the Committee that he is the Registrar of the Circuit Court at Cocoa Affairs. He said that when he took over the administration of the Court registry he realized that each Court has been keeping its exhibits mostly in steel or wooden cabinets located in the judge’s chambers. He indicated that after a while he realised that there was the need to have an exhibit room for the Courts.

On the day in question, his assistant came to him that the court had ordered a testing of cocaine and that he needed the Court’s iron seal. He gave the seal to him and the next day he brought an Order for him to sign. After making some corrections in the Order he gave it back to his assistant but he never brought it back for his signature. He said that later his assistant informed him that they had sent the substance for testing.

He also said that he was not aware that cocaine was tendered in the Court. What he knew was that they were sending the substance for testing. He further said that in view of his health condition he had delegated his assistant to do most of the work on his behalf.

HIS HONOUR ERIC KYEI BAFFOUR (CIRCUIT COURT 1 JUDGE)

His Honour Eric Kyei Baffour informed the Committee that he took over Circuit Court 1 in October 2010. When he looked through the cases he inherited he discovered the case of “the Republic V. Nana Ama Martin” He realised that for almost one whole year the case had not been called and that the last time the case was called was in October 2010. Upon enquiries from the Court Clerk he was informed that the accused was admitted to bail and had absconded. He therefore caused the case to be listed and issued Bench Warrant for the arrest of the accused. When the Bond was estreated from the surety, he was put into custody for about three (3) months.

Later the accused person was re-arraigned before him and he gave a date for trial. On 27th September 2011, Thomas Anyekese, the first investigator in the case, took his turn to give evidence before the Court. He tended the Police Laboratory report. He also tended the substance that was allegedly found on the accused and which had tested positive for cocaine, weighing 1,020 grams. He added that the envelope containing the cocaine was opened by Thomas Anyekese. He asked that a scissors be brought and he cut a part of the cellotape and they all saw that it was a whitish substance.

Mr. Kwabla Senanu, Counsel for the accused, raised no objection and said that the exhibit be admitted for what it was worth. After it had been tendered it was admitted and marked Exhibit C and given to the Court Clerk who was responsible for such duties. Mr. Kwabla Senanu thereafter examined the witness for a while and then prayed for an adjournment. The prosecutor did not raise any objection so he adjourned the case to 28th September 2011.

When he got to his chambers on 28th September 2011 at half past six, his Interpreter came to him in his chambers and informed him that one Police Officer called ASP Ananga called him after he left the Court on the 27th September 2011 and asked him whether he the Judge had given an Order for the immediate destruction of the substance the Police tendered. He found that very unusual because the substance had been tendered and cross examination has not yet finished so why should he give an Order for the destruction of the substance. He however brushed the information aside.

By half past eight in the morning of 28th September 2011, Court resumed sitting. PW4, the Investigator in the case, Thomas Anyekese, took the witness box and cross examination by Mr. Kwabla Senanu continued. After a while he asked that the substance, Exhibit C, be produced. He then asked that the substance be given back to the witness. When it was showed to the witness he said “this thing you tendered is not cocaine” but the witness said it was not correct. His Honour Eric Kyei Baffour further told the Committee that Thomas Anyekese added that there are two types of cocaine; the whitish and yellowish type and that he did not add that to his records but just put down “Not correct”.

Then Kwabla Senanu said, “My lord, I do not think this substance the prosecution has tendered is cocaine; and I pray for an Order of the Court for another test to be conducted not at the Police Forensic Laboratory, but this time at the Ghana Standards Board”. Then Ms Stella Arhin, the prosecutor in the case, raised an objection. The basis of the objection was that it was customary upon the arrest of the accused for the substance to be tested at the Police Forensic Laboratory and that there was nothing wrong with that. Furthermore, when the substance was tendered the previous day, Mr. Senanu failed to raise any objection. He then relied on the case of “Juxon Smith vs. KLM Dutch Airlines” and granted Mr. Kwabla Senanu’s application. He ordered the substance to be re-tested by the Ghana Standards Board. He retired to his chambers and resumed sitting after the sample for the test had been taken. The Deputy Registrar reported to him later that when they took the sample to the Ghana Standards Board in the company of the Investigator, Joseph Owusu, a field test was conducted in their presence and the substance tested negative for cocaine.

Subsequently, he had a report that the Analyst at Standards Board had finished the test and that the report was ready. He therefore ordered that the analyst at the standards Board, Mr. Adarkwa Yiadom, as well as the Forensic Analyst who conducted the first test in 2008 should appear before him in Court to testify.

When the analyst from the Ghana Standards Board appeared, the prosecutor, Ms Stella Arhin, prayed the Court to take his evidence in camera. He disagreed with her so the witness gave his evidence in open Court. He told the Court that his analysis of exhibit C proved that the substance was Sodium Carbonate and not cocaine. The State Attorney in her cross examination said that it was the Court that changed the substance. His Honour Eric Kyei Baffour said he took offence at the allegation because she often prosecuted in his Court and knew his reputation as a Judge. So he made her understand that it was by his initiative that the case was brought for trial and that the Prosecutor, the Police and Nacob had done nothing and they had no interest in the case. The State Attorney retracted her statement and apologised. He invited Mr. David Agyeman Agyin of the Police Forensic Lab who testified that in 2008 he conducted the test on the substance and it tested positive for cocaine and he confirmed that if the substance now tested negative for cocaine then it had changed.

The defence Counsel then indicated to the Court that he would file a submission of “no case” which he did and the Judge gave his ruling on 13th December 2011. He tended a copy of his ruling as exhibit 2. His Honour Eric Kyei Baffour further told the Committee that after exhibit C had been marked the Clerk put it back in the envelope in which they brought it. He has no dealings with exhibits but is aware that the exhibits are kept in a cabinet in his chambers and the Court Clerk has the key. If he needed to write a Judgment or a Ruling, what he requests for are the paper exhibits like statements of witnesses and accused persons but not substances like cocaine, cannabis, guns etc so he had nothing whatsoever to do with the handling of the substance.

He also said that on 27th September 2011, he left his chambers around 3.00 pm and never came back till the next day, the 28th September 2011 at 6.00 am. When he came back he didn’t notice any change about the cabinet; he never touched the cabinet at all so if anything had been done to the cabinet, he wouldn’t know. He further informed the Committee that when the accused person was arrested and put before him he was represented by Mr. Quist who prayed the Court that the accused person should be re-admitted to her formal bail. He refused because the offence for which she had been arrested was a non-bailable offence.

KWABLAH SENANU (COUNSEL FOR THE ACCUSED, NANA AMA MARTINS)

He represented Nana Ama Martins from 15th July 2011. He had not been Counsel for her in any proceedings prior to that date. He said that on 27th September 2011 Thomas Anyekese gave evidence in Court and tendered exhibit C, the subject matter of the probe. He indicated that he had had experience in the trial of cocaine cases and that he was involved in notorious cases like the Gorman Case and he had noted from experience that when cocaine is tendered, within two seconds, there is a strong peculiar smell. However, when the substance, exhibit C, was tendered the scent was absent. He also indicated that it was true he did not object to the tendering of the substance but when he went home he was troubled by the matter and he had doubts about the substance being cocaine. In view of this, when he came back the following morning, he decided to have the Court order a retesting of the substance because of the doubts he had as to whether the substance was cocaine or not. He further said that it was not the best practice for the police, the people who had caused the arrest, to test the substance. He felt that an independent body, that is, the Ghana Standards Board analyst should test the substance. The other reason that made him apply for the retesting to be done by an independent authority was the circumstances of the arrest of the accused and how another person who was alleged to be with the accused run away from the taxi they were sitting in. His application was granted. He informed the Committee that after he had raised the objection to the authenticity of the substance and went downstairs, the police, including Thomas Anyekese, came around him and told him that the objection he had raised was going to create a “Tsunami and tremor” at the police headquarters; and from that day, as a practitioner, he has “feelers” and he knows that since his had reason to believe that there was indeed an “earth tremor” because of the results of the objection he raised.

DAVID AGYEMAN AGYIN (POLICE FORENSIC ANALYST)

Mr. David Agyeman Agyin informed the Committee that he received the substance suspected to be cocaine in the case of “The Republic vs. Nana Ama Martins” on 29th August 2008. He took the weight and then a sample of the substance that was brought from the Police CID headquarters. According to their records, it was Thomas Anyekese who submitted the substance for examination. The weight of the substance was 1,430 grams. After taking the sample he resealed the envelope with the forensic laboratory seal. He did the confirmation test on the 6th October 2008 and the substance tested cocaine. He submitted the report to the Chief Superintendent of the Ghana Police Service on 20th October 2008. He also indicated that it was their practice to keep a sample of substances they had worked on so as he speaks the laboratory has a sample of the substance they tested and confirmed to be cocaine. The report they produced
showed that he was very sure that the substance was cocaine. He confirmed that cocaine has a pungent smell in whatever form it is kept. He also said that exhibit C has no smell and he is positive it is not the substance he worked on.

DSP DERY (GHANA POLICE)

He said the case of the Republic vs. Nana Ama Martins was given to him for prosecution in September 2008. Further investigation was to go on in respect of the case. He had to leave the country for a UN mission and therefore one Inspector Nat Cudjoe took over the case from him. He was informed by the investigator that the substance had been sent to the forensic lab for examination and the duplicate docket on the case had been sent to the Attorney General’s office for advice. In March 2009, he left the country for the UN mission. He came back in March 2010 and took over the case. The State Attorney at the time informed him she was to prosecute the case. He handed over the brief to her, briefed her on where they had reached, and connected her to the investigator. He said he was aware of the procedure laid down by the Chief Justice in instituting the prosecution of narcotic cases and he narrated the procedure to the Committee.

FINDINGS

The Committee’s study of the available records show that the accused, Nana Ama Martins together with one Andy were arrested on 22nd August 2008 by the Police and the accused was put before Circuit Court 1, Accra for the offence of possession of narcotic drug.

The accused was first remanded in Police Custody and later Prison Custody by the Circuit Court. At that time the instruction was to the effect that the docket should be put before the Circuit Court. (See Committee Exhibit 1). On 5th November 2009 the accused was granted bail by the High Court presided over by Justice Ofosu Quartey.

Later the accused jumped bail and was re-arrested and put before Circuit Court 1 where the trial Judge vacated the Order of the High Court and remanded the accused person in custody. The accused applied to the High Court for the Order revoking the Order made by the High Court to be quashed on the grounds that the Circuit Court had no jurisdiction to vacate a High Court’s Order. On 15th September 2011, the High Court presided over by Justice Mustapha Logoh quashed the Order of the Circuit Court for lack of jurisdiction to deal with and vacate an Order of the High Court. The Court then admitted Accused/Applicant to bail. The trial of the accused started on 24th August 2011.

The Committee also found that Exhibit ‘C’, which is the subject of the investigation before us, was tendered in Court on 27th September 2011 and on the same day it was opened in Court in the presence of the accused person, her counsel Mr. Kwabla Senanu, the investigator, Mr. Thomas Anyekese, the State Attorney and the Court Clerk.

Evidence before the Committee has established that cocaine has a pungent smell and this evidence has been corroborated by the Analyst and that when it is opened, the scent will be smelt by everybody in whatever form it is, either powdered or compressed.

The State Attorney and the defense counsel who were present in Court on the day that it was opened confirmed that the substance had no such pungent smell. It must be noted that the opening and the observation by those present was done on 27th September 2011 when the seal was broken in open Court for the first time. This pre-supposes that the substance that was opened on the first day when it was tendered did not have the characteristic smell of cocaine which the analyst confirmed is associated with cocaine.

This substance, which was opened on the 27th September 2011, was dented by the scooping of the top to take a sample for re-testing. The Court clerk’s evidence has it that he resealed the top of the exhibit with a white cellotape. Exhibit ‘C’ that was brought before the Committee had the same white cellotape covering the scooped portion of the substance confirming the clerk’s description of what he did to the substance that was scooped on the 27th September 2011.

When the analyst opened the substance in the presence of the Committee the scooping that was done on the top of the substance on the 27th of September 2011 was on it and it was visible. The analyst’s confirmed it; that there was a scooping. It can therefore be reasonably inferred from the forgoing that the substance that had the Police Laboratory seal that was opened in open Court on 27th September 2011 was the same substance that was presented to the Committee on the 19th of December, 2011; and the said substance, it has been confirmed, does not have the characteristic smell of cocaine and it is not the cocaine, and it is not the substance that the Analyst said he worked on 6th October 2008.

It is our conclusion therefore that if there were any swapping of the cocaine with any other substance it was done before the substance was tendered in Court on the 27th September, 2011.

It is our finding from the evidence before us that the substance that was tendered in Court on the 27th of September 2011 was not cocaine.

We became more convinced on our findings as stated above as a result of these and other corroborative evidence that came before us.

• Mr. Senanu, the Defence Counsel testified that after he got the Order for the retesting of the substance, when he got down, the Police including the investigator, Thomas Anyekese, came to him that his request for the re-testing will cause ‘tsunami tremor’ at the Police Headquarters.

• The State Attorney who was prosecuting the case also confirmed that when the substance was opened on the 27th September 2011 in Court, it did not have any pungent smell.

• Again when the investigator Thomas Anyekese was to append his signature on the envelope for the re-testing he refused to do that and it was rather the second investigator, Joseph Owusu who appended his signature.

We further find that directives given by the office of the Chief Justice for the prosecution of this case were flouted by the prosecution.
Committee Exhibit ‘1’ contains the said directives. By the directive the accused, Nana Ama Martins, was to be put before the Circuit Court ‘1’ for the purposes of being remanded in custody. The police were to complete their investigation and submit the duplicate docket to the Attorney General’s office for advice. Thereafter directions would be given as to which court should try the matter.

The State Attorney Ms. Arhin testified that when she received the duplicate docket as the state prosecutor, the directive on it was that she could prosecute the case in any High Court of her choice. She realized that the prosecution had a good case. She did not write the advice as required administratively but decided to go ahead to put the matter before a High Court. She prepared a charge sheet for the High Court and made efforts to get the police investigator and the witnesses for the conferencing. Her efforts did not yield any fruitful results.

DSP Derry who registered the case at Circuit Court ‘1’ in the first instance admitted he is aware of the directives from the Chief Justice’s office on the prosecution of narcotic cases. Yet the case was abandoned in Circuit Court 1 (as it were) after the accused was remanded in custody. For almost two (2) years there was no communication between the police and the Attorney General’s department. It is not surprising that the accused applied for bail at another forum and got her freedom, for the law allows bail (even in non-bailable offences) in a circumstance where the accused is remanded in custody for a long period of time without trial.

As a result of the delay in the prosecution of the case the substance which is now the subject matter of investigation was left in the hands of the police for three long years. This obviously gave room for any possible tampering with the substance. From our analysis of the evidence above the substance that was tendered in court on the 27th September 2011 and admitted in evidence as exhibit ‘C’ and was opened in open court did not have the pungent smell of cocaine and therefore it could not have been cocaine. It follows that if any swapping of the substance took place it was done before it was presented to the Court.

Evidence before us further confirms the fact that the substance that was presented to the Court on the 27th September 2011 was the same substance produced on the 28th September 2011. It is the same substance that came in to the hands of the Committee at its sitting. The Circuit Court Judge and his staff therefore cannot be held responsible for the change that occurred in the substance between 6th October 2008 when the substance was tested to be cocaine and 27th of September 2011 when the prosecution tendered exhibit ‘C’ in Court.

We also found that there were some administrative lapses in the workings of the circuit court.

• The Committee found that the Court Clerk (District Court Registrar) of Circuit Court 1, Daniel Nyatsidzi failed to inform the Registrar of the Court that Exhibit ‘C’ – Cocaine had been tendered in Court and that he was keeping it in the steel cabinet in the Judge’s chambers.

• That Court failed to realise that a substance like cocaine of that kind of weight should be kept in the Judge’s chambers.

• That the deputy Registrar, Mr. Seidu Yusif, who has been assisting the substantive Registrar, did not properly inform the substantive Registrar, Mr. Fredrick Tetteh Kudjornu that the substance had been tendered in Court and it was for re-testing. The deputy Registrar only told the Registrar that the Court had ordered for testing of cocaine and he needed the iron seal.

• The Committee also found that the deputy Registrar has assumed certain responsibilities of his own because of the ill health of the substantive Registrar. For instance, when an order inviting certain persons to appear in court was sent to the substantive Registrar to sign and he made corrections it was not sent back to him for his signature.

• We consider the situation where the Court Clerk is solely in control of an exhibit such as cocaine as being bad practice.

• We also find it inappropriate for a deputy Registrar to hide matters of this nature from his boss.

RECOMMENDATIONS

• It is recommended that the practice of making an order to destroy narcotic substances immediately on the day that it is tendered should be discouraged and rather, the provisions of Act 714 of the Criminal Procedure Code Amendment Act should be complied with.

• It is also recommended that narcotic substances tendered in Court should have field tests in open court on the very day they are tendered.

• Narcotic cases pending before the courts now should all be field tested before trial.

• It is recommended that Circuit Court ‘1’ Accra being a specialized court should be automated.

• There is the need to provide a strong exhibit room for narcotic drugs and arms.

• It is further recommended that the Registry of the Cocoa Affairs Circuit Court should have one Registrar, who should be a Chief Registrar with two deputies with the ranks of Deputy Chief Registrar.

…………………………………………….
JUSTICE AGNES DORDZIE
(CHAIRPERSON)

………………………………………………
JUSTICE ABDULLAH IDDRISU
(MEMBER)

………………………………………………
JOHN K. BANNERMAN
(MEMBER)

………………………………………………
NII BOYE QUARTEY
(SECRETARY)

Source: GNA