Feature Article of Saturday, 21 January 2012
Columnist: Mensah, Isaac Richmond
By Isaac Richmond Mensah
(STUDENT FACULTY OF LAW KNUST)
The purpose of this article is to examine the case against DSP Tehoda from criminal jurisprudence and whether the BNI conclusion was based on rational inferences. The BNI in their report submitted that, there was strong circumstantial evidence to implicate DSP Tehoda and she has a motive to wit; to obstruct the course of justice and listed instances which in their rational thinking justified the conclusion reached.
It is the opinion of this writer that ,the case against DSP Tehoda was weak and the inferences that was concluded was not base on rational determination but probabilities, mere suspicion and conjecture.
The question is what circumstantial evidence is.
The following case law illustrated what circumstantial evidence is.
State v Anani Fiadzo (1961) GLR416 Where the Supreme Court held at page 418 held that; Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the fact may prove the guilt of appellant. A presumption from circumstantial should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion.
In the case of Johnson v R (33GMJ MAY 2011) per Dotse JSC (P.163) lines. 25-35. On the danger in acting in circumstantial evidence; I am equally mindful of the danger in acting on circumstantial evidence. Lord Normand in the case of Lejzor v The Queen (1952) AC 489, stated on circumstantial evidence as follows;
Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined if only because the evidence of this kind may be fabricated to cast suspicious on another. It is also necessary before drawing inferences of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.
In the case of Duah v The Republic (1987-88) Court of Appeal Per Abban(as then was); We think the principles stated by learned counsel as regards circumstantial evidence are quite accurate. Circumstantial evidence is said to be evidence of surrounding circumstances which by undesigned coincidence “is capable of proving a proposition with the accuracy of mathematics." In criminal cases, it is sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eyewitnesses is not available, the jury is entitled and, indeed, permitted to infer from those facts which the prosecution have proved other facts necessary either to complete the elements of guilt or establish innocence. Of course, before drawing the inference of the guilt of an accused from circumstantial evidence, it is very important to make “sure that there are no other co-existing circumstances which would weaken or destroy the inference". see Teper v. R.  A.C. 480 at 489, P.C. per Lord Normand.
Thus circumstantial evidence ought to be closely examined and should be acted upon only when the circumstances are such that the guilt of the accused must of necessity be inferred and that the facts lead to no other conclusion: see Nyame v. The Republic  2 G.L.R. 140, C.A. In Director of Public Prosecutions v. Kilbourne  1 All E.R. 440 at 462, H.L., Lord Simon of Glaisdale defined circumstantial evidence in very simple terms. He said:
"Circumstantial evidence is evidence of facts which, taken with all the other evidence, a reasonable inference is a fact directly in issue. It works by cumulatively, in geometrical progression, eliminating other possibilities."
ZORTOVIE v. THE REPUBLIC [1984-86] 2 GLR 1-12; Motive by itself had never been an ingredient of any offence, nor could motive be a substitute for reliable and credible evidence direct or circumstantial. It had long been recognised that the more heinous the crime the greater there had to be the certainty of the evidence upon which a conviction must be founded. With the evidence of the second prosecution witness so discredited it [p.3] could not be said that the prosecution’s case rested on circumstantial evidence that satisfied the old rule in Hodge’s Case, namely where a charge depended upon circumstantial evidence, it ought not only to be consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.
The BNI in its interim report submitted among others stated that;
(1) The investigation established strong circumstantial evidence that the cocaine was swapped with the active assistance of, and facilitation by, DSP Mrs Gifty Mawunyegah TEHODA, the Deputy Head of the Commercial Crimes Unit, Criminal Investigations Department [CID] Headquarters who had nothing to do with the investigation under review, but took the suspect out of cells on nine occasions under the ruse of "further investigations" and spent, on the average, two  hours
(2) There was evidence that agents of the accused tried unsuccessfully to influence the court officials with an amount of fifty thousand Ghana cedis [GH¢50,000.00], a clear indication of the extent to which the accused and her cohorts were willing to go to secure her escape from the law.
(3) It is in this connection that the conduct of DSP TEHODA fits into the desperate schemes of the accused to influence the course of justice. Swapping the substance was one sure way of achieving that goal. She held nine  meetings without the permission of the investigators and tried to deceive her subordinates in charge of the custody of the accused by indicating in the station diary that she needed her [the accused] for further investigation when she had nothing to do with the matter. Clearly, her motives were not honourable.
(4) Some of the nine  meetings she had with the accused in her office were attended by a friend and agent (name withheld) of the accused who confessed having run errands for the accused including making the attempts to bribe the judge and his officials, and an uncle (name withheld) of the accused who, with the agent earlier referred to, was instrumental in selling off property of the accused in GBAWE, in an effort to raise money to pay legal fees and bribe officials connected with the case. Kwabla SENANU, on three  occasions, took his legal fees from TEHODA in her office. Clearly then TEHODA's keen interest in the freedom of MARTINS provides enough motive for her to do whatever she could to achieve that freedom for her.
The basis of allegation against DSP Tehoda was that;There is strong circumstantial evidence to implicate her and she has the motive.
What rational conclusion can be inferred from the report submitted by the BNI.
If, at all material time the exhibit had been kept in the office of DSP Tehoda , then the reasonable inferences would be that she swapped the cocaine with soda, moreover there was no evidence from the report to suggest that Tehoda has access to the office where the cocaine was kept.
It is submitted that there is nothing wrong on the part of Tehoda to secure a lawyer for Miss Martin, neither it is wrong to sell Martin’s property to raise the necessary funds to pay her legal fees.
What DSP Tehoda did may amount to professional indiscretion and her conduct raised suspicion it cannot be elevated to criminal liability.
DSP Tehoda has been a victim of circumstances and the report of the BNI had been based on probabilities, mere suspicion and conjecture.