Judge Faulted For Ordering Re-test

By Stephen Kwabena Effah
December 17,2011

The judge, Mr. Eric Kyei Baffour on September 28, ordered a re-test of the substance which had been admitted in evidence the previous day as cocaine exhibit, grounding his order on a Supreme Court case (Jaxon-Smith versus KLM- SCGLR 438).

However, Justice Agnes Dordzie who is chairing the four-member panel probing the circumstance that resulted in the cocaine turning into sodium bicarbonate, said the judge’s citing of the Supreme Court (SC) authority in the case was wrong.

This came up at the committee’s sitting yesterday when it sought to find out from the State Attorney who prosecuted the case, Stella Arhin, whether she checked out the SC citation by the judge to see its applicability in the instance case.

Ms Arhin, who testified as the fourth witness before the committee said she did not and could not give reasons why she did not do so.

Ms. Arhin, who gave an account of her role in the case which was tried by the Accra Circuit Court ONE said she had prepared a notice of appeal against the court’s ruling of December 13 which acquitted and discharged Nana Ama Martins from whose custody the substance was retrieved.

The State Attorney told the committee that she has applied for a copy of the Mr. Kyei Baffour’s ruling after which she would file the appeal. She however did not give details of the grounds of the appeal.

Giving an account on how the substance was tendered in evidence on September 27 and subsequent events, she told the committee that when the substance was tendered by Cpl. Thomas Ayekase, there was no objection by the defence counsel.

According to her, the substance which was in a sealed envelope was opened in court for inspection by the defence. It was left in the custody of the court with the seal broken when the case was adjourned at the instance of the defence.

However, on September 28, she said defence counsel, Kwabla Senanu at the tail end of his cross-examination of the Cpl. Ayekase, raised an objection that the substance that was admitted in evidence the previous day was not cocaine, and requested a re-test of the substance.

Ms. Arhin said Mr. Senanu argued that the Police forensic laboratory which tested the substance did not have the authority to test drugs and therefore doubted the result.

But she said she objected to Mr. Senanu’s application on the grounds that the substance tested positive for cocaine, and also that a number of narcotic cases had been tried based on results from the police laboratory.

Another reason for her objection, she said was that Mr. Senanu had the opportunity to raise the objection before the substance was tendered in evidence but failed to do so.

She said the court overruled her objection and ordered a re-test to be done by the Ghana Standards Board. Following that, she said a sample of the substance was taken in court into an envelope on which she signed together with Constable Joseph Owusu and the Deputy Registrar of the Court.

Ms. Arhin also told the committee she was displeased with the trial judge for devoting a page in his ruling to question her professional conduct during the trial, saying “I was very, very displeased about the part he wrote about me”

According to her she was surprised the trial judge left out the defence counsel who she alleged at a point in the trial, insinuated that she had been bribed to bring wrong witnesses in court to testify in the case.

Ms. Arhin said under cross-examination that she did not remind the trial court to order the destruction of the substance on September 27, because she forgot.

According to her it was after proceedings that day that the investigator in the case approached her on the issue and “I said counsel had not finished cross-examination and it could be the reason why the court didn’t order the destruction”

Asked whether it was not from the substance tendered in evidence on September 27 that a sample was taken on September 28 for a re-test, she said: “yes but no specific identification was done by the investigator but we believed it was what we tendered.”

She said the seal was broken so it was probable that anything could happen, adding “I cannot say if somebody tampered with the substance after it was kept in the court custody”.

She disagreed with counsel that a request she made to the court to hear the evidence of the GSB analyst who did the second test in-camera, was to satisfy somebody’s bidding.

Further, Mrs. Arhin told the committee that after the re-test result proved negative for cocaine, she applied to the court to call for another test in court but the judge rejected it on the basis that they had gone past that stage where field test should be done.

The Court Clerk, Daniel Nyatsidzi, who was the second witness to testify, said on September 27, the substance was brought to the court where Cpl. Ayekase tendered it in evidence.

According to him, after the substance was tendered in evidence, he took the substance together with other exhibits which were tendered in evidence to the trial judge’s chamber where it was kept under lock and key.

He said that on September 28, upon the request of the defence, the substance was brought to open court and before the exhibit was handed to Cpl. Ayekase to be cross-examined on, Ms. Arhin took the exhibit and examined it without raising any objection about it.

According to him, when Cpl. Ayekase was asked to sign the envelope in which the sample for re-test was put, he declined because at that time he had ceased to be the investigator in the case.

He said the investigator who took over from him, Constable Joseph Owusu then signed together with Ms.Arhin, Mr.Senanu and the accused person.

Mr. Nyatsidzi told the committee that he was the only one with exclusive entry to the metal safe in which the substance was placed overnight, saying: “I am the only one who has access…nobody broke into the cabinet. What they tendered on September 27 to the court is what I have kept till today.”

Under cross-examination, he said the safe is where all exhibits to the court are kept and that the chamber is accessible to only the judge, the court’s interpreter and himself.

He said there was nothing wrong with the cabinet on September 28, when he went into the judge’s chamber to collect the substance.

Further, he told the committee that when he was transferred to the Circuit Court ONE four years ago, he was not shown any exhibit or strong room where exhibits would be kept. He also said he was not given any training when he assumed the clerical position.

On his part, the Deputy Registrar, Seidu Yussif, who took the sample of the substance to the GSB for the re-test told the committee that the sample was taken in the presence of Ms. Arhin, Constable Owusu, Nana Ama Martins; all of who signed on the envelope that contained the sample.

He said they could not take the sample to the GSB on the September 28 because the court closed late and therefore could not get the order accompanying the sample.

In view of the situation, he said he agreed with Constable Owusu to take the substance to the GSB on September 29, and the sample was thus kept in a safe in his office until Spetember 29 when they went to the GSB in the company of another court staff who drove them to the GSB.

During crossexamintaion, he said the whole of Cocoa Affairs Court has no strong or exhibit room and this has been brought to the attention of the Judicial Service management.

He told the committee that he does not expect any clerk to inform him when exhibits are tendered in evidence but admitted that there is a book in which court clerks are expected to write a summary of the day’s work.

The Chief Registrar at the Cocoa Affairs Court, Frederick Tetteh, also gave evidence as the fourth witness. Hearing resumes on December 19.

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

This development led to the acquittal and 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.

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