I'M CLEAN - Says Trial Judge

By Stephen Kwabena Effah
December 20, 2011

The judge, Eric Kyei Baffour, who tried the case in which 1,020 grammes of cocaine exhibit worth 44,000 dollars mysteriously turned into baking soda, has absolved himself from any wrong doing in the case.

“I must say my lords, throughout this trial, I have acted with honesty, truthfulness, integrity and above all my lords, I have exhibited courage, firmness and conviction,” Mr. Kyei Baffour told the fact-finding committee set up to probe the incident.

In a resolute posture, he continued: “I have no dealings whatsoever with how exhibits from the court are kept. All that I know is, there is a cabinet in my chamber where the clerk keeps all the exhibits and he has the key,” he said at the committee when he took his turn yesterday to give evidence.

Mr. Kyei Baffour said when the substance was tendered in evidence by Cpl. Thomas Ayekase on September 27, it was marked as exhibit ‘C’ and after proceedings, put back in the envelope from which it was taken.

According to him, whenever he is to write a judgment or ruling, what he asks for is paper exhibits such as statements of witnesses and accused persons. “But as to something substantial like cocaine, cannabis, guns… I don’t need them to write my judgement so I have nothing whatsoever to do with those exhibits at all.”

Mr. Kye Baffour, told the four-member committee in his one hour evidence that to the best of his knowledge, the only person who has custody of the key to the cabinet at all material time is his clerk, Daniel Nyartsidzi.

He said on September 27, when the exhibit was tendered in evidence, he could not recall the exact time he closed but it would be about 3:00pm and came back to the court the next day at about 8:30 am.

When he reported for work, he said his interpreter informed him that the police called him to demand whether he gave an order for the immediate destruction of the substance the police tendered as cocaine”.

But the judge told the committee that he brushed that aside “because I thought that was quite unusual”, in that the investigator who tendered the substance, Cpl. Ayekase had not been cross-examined on the substance for him to order for its destruction, adding “it is never done”.

Mr.Kyei Baffour said the substance was brought to open court on September 28, upon a request by the defence counsel in the case, Kwabla Senanu who challenged the investigator under cross examination that the substance was not cocaine.

He said Mr. Senanu at that point prayed for an order for a re-test of the substance but not at the Police forensic laboratory, to which the State Attorney, Ms. Stella Arhin raised an objection which he overruled.

“I must state my lords, that the issue on the 28th of September 2011 as to the substance brought not being cocaine or having been changed, did not arise at all,” he said.

The judge defended his order for the re-test of the substance on the basis of a Supreme Court authority ( Jaxon-Smith versus KLM- SCGLR 438), noting that Mr. Senanu was not looking for the exclusion of that admitted exhibit ‘C’ (the substance) but was raising issues as to the genuineness and authenticity of exhibit ‘C’.

“My lords, I exercise my discretion based on that case and I ordered that I will grant the prayer of Mr. Senanu, for another test to be conducted on the substance,” he said and added that he retired to his chamber to enable the parties and the Deputy Registrar, Yussif Seidu to take a sample for the test.

Mr. Kyei Baffour admitted being angry with the State Attorney on November 22 when she inferred that since the substance was left in the court’s custody overnight, the court could have changed it.

He said his anger was not based on the events of September 28, but on the event of November 22 when the Ghana Standards Board analyst was being cross-examined by the defence counsel.

“First, she was not a stranger in my court and she knows the credibility of that court. Second, at the time she raised her objection on the 28, the issue of whether or not the substance had changed did not come in at all,” he said.

When he took his turn, counsel for Nana Ama Martins from whose custody the substance was retrieved upon her arrest in August 2008, told the committee that it was somewhere in July 2011 that he came into the case to handle only the substantive case.

According to Mr. Senanu his prayer to the trial court for a re-test was not at random but he noticed that when the substance was opened in court, the peculiar pungent scent characteristic of cocaine was absent.

Mr.Senanu who said he appeared before the committee to set the records straight on his role in the matter, told the hearing that “It was the conference I had with Nana Ama which emboldened me to challenge the substance”.

He said he did not object to the substance when it was being tendered and went in for what it is worth because he wanted to take everyone by surprise. “On 27th (September) I didn’t tell anyone I was going to raise an objection…I took them by surprise”.

According to him, immediately he left the courtroom on September 28, one police officer told him: “This objection you have raised is going to bring Tsunami.”

Cross-examined by Mr. Asiama Sampong, counsel for Ms. Arhin, Mr. Senanu said it was not true that he had a police docket in his custody during the trial, adding “ I have not done anything wrong by law”

He disagreed with Mr. Sampong that the pungent scent could only be evaporated when the substance is in a powdery form and not a slab as is the case in the matter.
Mr. Senanu also used the platform to correct what he said is being said that he secured bail for the accused person.

David Agyeman Agyin, the Police Anyalyst who did the initial test at the Police forensic laboratory, told the committee that on August 29, 2008 the substance was brought to them for testing and they took sample after it was weighed.

According to him, at the time it was brought to them the substance weighed 1,430 grammes.
He told the committee that the sample that they used for the test is still in their custody which they are ready to provide upon request, adding “we are positive of the work we did and we are sure the substance was cocaine”.

Under cross-examination, he told the committee that generally cocaine has a pungent smell whether in a powder form or any other form. “I don’t think this is the substance we worked on”, he insisted.

Earlier, Mr. Kofi Adjei-Tuadzrah, Head of the Police Narcotic Unit, who was re-called to be cross-examined on a report his unit wrote on the case on September 28 and another on October 3, told the committee that he had not yet received a response to the letters from his superiors.

He denied the assertion that the police knew the substance was going to prove negative for cocaine for which reason they were worried when the substance was left in the court’s custody overnight without seal.

“We were worried because the chain of custody had broken….I knew definitely something was going to happen,” he said and disagreed with counsel that the police were directly complicit in the swapping of the substance if any.

When asked by the committee whether it was part of the country’s criminal procedure code for the police to write reports on an exhibit tendered in evidence, he replied ‘no’ but said that is what they normally do.

Also when asked why the police appeared worried when after the substance was tendered in evidence and when their liability had ceased, Mr. Tuadzrah said because of previous experience, they decided to do it in a manner that would not create problems, besides the volume of the substance was much.

The committee yesterday completed the hearing of all the 10 witnesses it invited to give evidence.

The committee is charged to establish the role played by the trial judge and other court officials, including the registrar and the court clerk in the matter and other related matters.

It asked the public with relevant information on the matter to come with such information during its sitting today.

The four-member committee, formed by the Chief Justice, Mrs Justice Georgina Theodora Wood, followed an Accra Circuit Court ruling on December 13 which revealed that the substance which initially tested positive for cocaine, later turned into baking soda upon a re-test.

The development led to the discharge of Nana Ama Martins who was being tried for possessing the drug without lawful authority on Tuesday.

The committee chaired by a Court of Appeal judge, Justice Agnes Dordzie , has Justice Abdulla Iddrisu, a High Court judge, Mr Nii Boye Quartey, Deputy Director in charge of Human Resource of the Judicial Service and John Bannerman, Chief Registrar, as members.