Judge was selective in Woyome ruling; our appeal is solid - Ayine

Deputy Attorney General and Minister of Justice, Dr. Dominic Ayine, has punched holes into the verdict that acquitted and discharged businessman Alfred Agbesi Woyome in the Ghc51 million judgment debt scandal.

Justice Ajet-Nassam in a High Court ruling Thursday March 12 freed Mr.Woyome on two counts of defrauding the state by false pretenses and causing financial loss to the state. He said the state had not adduced ample evidence and had done a shoddy job, adding that the accused did not secure the money criminally.

The ruling, which angered the citizenry, also incensed officials at the Ministry of Justice and Attorney-General who have since filed an appeal, with hearing expected to start March 31. Although many have described the decision to appeal as a waste of public resources, the Deputy Attorney-General is convinced the state has a strong case.

Speaking to Kwesi Pratt Junior, the Host of TV3’s Hot Issues on Saturday, the legal luminary in a long analysis suggested that the Judge erred in his ruling. He said the judge was “selective’’ in using the evidence at his disposal to arrive at that decision.

“We have filed an appeal because we disagree vehemently with the High Court. We think that we led sufficient evidence to prove the guilt of Woyome on the two counts of causing financial loss to the state and defrauding by false pretenses.

First of all, the representation that Woyome made that he had engaged in financial engineering and that there was an agreement was a false representation. It was false because prosecution witness number two Hon.Osafo Marfo, then Minister of Education and Sports in his evidence in chief indicated quite clearly that there was no such agreement with the Government of Ghana for him to engage in any financial engineering on behalf of the republic”.

“We also called witnesses from the Ministry of Finance to show that at that point in time, no money flowed into the purse of the government of Ghana as a result of what the accused person allegedly did. And so plainly, on the basis of the evidence, the representation that he had engaged in financial engineering on behalf of Ghana was a false impression. And so it came as a big surprise to us when the Judge said that we had not led evidence to discharge the burden placed on us by the evidence decree”.

Reacting to the failure of the state to call persons who played vital roles in the payment, Dr. Ayeni somewhat conceded that if those officials had given evidence in the matter it may have strengthened the state’s case further. But he was quick to add that the prosecution was cautious because those persons may have ended up aiding the accused person’s case.

“I cannot discount the fact that if they were available to give evidence truthfully, in support of the state it will help the case that we had brought to court. I am not discounting that fact at all. But they have the right under Article 19 of the Constitution not to self-incriminate. At a point in time when we were making decisions about the witnesses to call, we took the view that we didn’t want to put these persons on the stand. The reason being that, both Betty Mould Iddrisu and Ebo Barton-Oduro had publicly made it clear that they supported the case of Woyome. So that meant that if we called them, we then have to treat them as hostile witnesses so the probative value of their evidence from the beginning would have been very low”.

“Then we would have to cross-examine our witnesses instead of leading them in evidence to prove our claim. And if they refuse to talk, the inference that the judge will draw is that the witnesses we brought is supporting the other side, so it would have been much more difficult for us strategically to be able to put forward our case if we had called them”.

The Deputy Attorney General wondered why the Judge would rely solely on the state’s evidence to deliver his verdict and turn around to say their evidence was shoddy.

“As at 20th of April 2014, the state had proven the basic elements of the case that is defrauding by false pretences and willfully causing financial loss to the state. Contrary to conventional judicial practice of judging, the Judge did not even say a word about the defendant’s evidence in that 25 page judgment. In other words, the Judge relied solely on the evidence that we had led up until the 20th of April. So he relied solely on that evidence but that turned out to say our evidence was shoddy”.

“That is utterly shocking because if you call the accused person to open his defense, you have admitted that the prosecution has done a sufficient job to prove the elements of the offense. So to turn around and say the evidence of the prosecution was shoddy, was it based on the same shoddy evidence that you asked the accused to answer? Traditionally, if the evidence is shoddy, you throw it out and sustain the accused person’s submission of no case. But you don’t call upon the accused to answer then subsequently say that the prosecution has done a bad job and so the accused deserves to walk. In fact, the implication of calling the accused person to answer is that, if he does not show through reasonable probability that his story is true, he is going to jail. That is the implication in law; so we were shocked” he stated.

Asked why other state officials who were complicit in the case were not prosecuted alongside Mr. Woyome, the Deputy Attorney-General in a long winding explanation said the discretion of the Attorney-General to sue or not to sue needed to be taken with a lot of circumspection.

He however noted that the decision not to sue those persons had been taken by the former Attorney-General before his current boss; Marietta Brew Appiah-Oppong took over. He added that although they took a critical look at that decision, they have still not taken any decision yet on it. He says those individuals may be sued in the future or left off the hook for posterity to judge them.

Dr. Ayeni said despite attempts to discredit government’s decision to appeal, they are confident the High Court ruling will be overturned.

“It’s surprising how even before people read the judgment, based upon journalistic accounts; some respected eminent juries came to the conclusion that our appeal was dead on arrival. They did not read the judgment itself and have not had the benefit of reviewing the evidence as I have done. I and my boss have been intimately involved in this process. We get briefings from the state attorneys when they return from the court; we have the transcripts of the evidence in chief and the cross-examination so on a regular basis we have been able to assess the chances of succeeding even at the High Court itself. In fact, we were fairly confident that we were going to win this case. So I was reprised that people judged our appeal with phrases such as dead on arrival”.

“Let me tell you something, if you read the judgment, it is very clear that the Judge was very selective in the kind of evidence that he used. As I have said, he ignored all the evidence in chief that we led; he used cross-examination statements that had no direct bearing on the justifiability of the claim and came to the conclusion that those statements justified the claim”.

Dr. Ayeni in proving the above statement gave an example of an incident during the trial, where one Orlandi of Waterville, who was called as a witness for the state, said that Woyome’s claim was independent of Waterville’s claim. This assertion according to Dr. Ayeni, was only a repeat of what Orlandi had heard the then Attorney-General Betty Mould Iddrisu make at a stakeholder’s forum.

But according to Dr. Ayeni, the Judge, Ajet-Nassam, wrongfully inferred Orlandi’s aforementioned assertion to mean that Woyome was entitled to the payment.

“So there was so much selectivity in the evidence. And in conventional judicial reasoning, you take the evidence led in chief and the cross-examination evidence and you ask yourself, was this person contradicting himself under-cross examination. So you put the two together and then you draw a conclusion or an inference. And it will be an irresistible inference that you draw if you look at the pieces of evidence put together. It’s like a puzzle; you put the pieces together and you solve the puzzle and that is what judges do. This Judge did not do that; and so for me, we have a very strong chance of overturning the judgment on appeal. But I won’t go into the merits of our appeal because we just filed the notice. And I wouldn’t want to pre-empt the judgment. But I can only say that having looked at the judgment I am confident that our chances are very strong on appeal.”