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10.01.2007 Crime & Punishment

Court Grants Tsibu Darko Bail

By Daily Graphic
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The Accra Fast Track High Court yesterday granted bail in the sum of ¢1 billion with two sureties to be justified to Prince Tsibu Darko, the Tema-based businessman accused of exporting 3,700 kilogrammes of cocaine to Europe.

The court, presided over by Mr Justice J. Dotse, an Appeal Court judge sitting with additional responsibility as a High Court judge, however, ordered the accused person to surrender his passport and any travel document to the registrar of the court before the execution of the bail.

It further ordered the accused person to report himself to the police investigator at the Criminal Investigations Department (CID) Headquarters of the Ghana Police Service every Wednesday until otherwise directed.

The Medical Director of the Nyaho Clinic, where the accused has been on admission, is also to inform the court whenever the accused is discharged or transferred to another hospital.

The substantive case stands adjourned until January 24, 2007. Darko was admitted to bail following a fresh application filed by his counsel, Mr Gabriel Pwamang, and argued on January 4, 2007, the ruling of which was fixed for yesterday.

Darko is facing one count of engaging in business related to narcotic drugs and, according to the facts of the case, in the middle of 2005 he allegedly exported 3,700 kilogrammes of cocaine to Europe without lawful authority.

Earlier on December 22, 2006, the court had refused him bail after a similar application had been made. It was rejected on the grounds that the defence team did not provide sufficient evidence on the accused person's ill-health to warrant the court to grant him bail.

In dismissing that application, the court held that the defence team should have furnished it with details of the medical report on the accused person and that anything short of that was not sufficient indication to prove that there was a medical emergency for the court to grant bail.

The court, however, gave the defence the chance to support its application with sufficient proof on the accused person's health.

Following that, the defence made the latest application with supporting affidavits and exhibits of medical reports and prayed that the accused person be admitted to bail because his condition was deteriorating, while the prosecution did not have the facts to prosecute the case.

The prosecution did not oppose the application because of the ill-health of the accused and the fact that investigations into the matter had not been completed.

The lead counsel for the accused, Mr Pwamang, said his client had been in detention since August 9, 2006 when he was arrested, at the instance of the prosecution, for the purpose of concluding investigations into the matter.

“While it is lawful, it is taking a toll on the health of the accused person whose health is getting worse,” counsel said, and added that the accused even collapsed in police detention and had to be rushed to the Nyaho Clinic in Accra where he had still been on admission.

Responding, a Senior State Attorney, Mrs Yvonne Attakorah Obuobisa, said the prosecution was not opposed to bail on the grounds that investigations into the matter were going on, coupled with the accused person's ill health.

Mr Justice Dotse reminded the prosecutor that the accused was brought before the court in November last year on very scanty facts, with the explanation that investigations were ongoing, and asked whether the investigations had revealed any new facts.

He asked the prosecutor to confer with the police investigator as to whether some headway had been made but Mrs Obuobisa, after conferring, said the prosecution had had some leads but that most of the information was beyond the territorial borders of the country.

In his ruling yesterday, Mr Justice Dotse said he did not find any legislative support to the effect that when an accused was standing trial and was in custody, he or she should be granted bail because of ill-health, adding that that was inconsistent with provisions of the Criminal Procedure Code. The hospital, he said, was the best place for the accused person.

He was of the view that the Nyaho Clinic was one of the hospitals with the best health facilities and, therefore, it was dangerous to grant bail in such an application, especially in a country like Ghana where it was not difficult to procure fake medical reports.

Mr Justice Dotse, however, referred to a Supreme Court decision that gave the court discretion to handle matters of such nature when there was an authentic medical report, but he declined to grant bail based on that ground.

On the second ground of lack of factual basis for the trial of the accused person, the judge said it was also the court's duty to determine whether the facts of the case supported the charge or not.

From the facts of the case, he ruled that the prosecution was not ready to continue with the case, wondering why if the accused person had been intercepted with the 3,700 kilogrammes of cocaine, the prosecution was not ready to name the country in which the accused person was arrested, the trawler or ship on which the drugs were intercepted and the security officials who effected the arrest.

The judge said in cases where the human rights of people were involved, it was not necessary for the prosecution to always speculate, saying that “if the prosecution cannot provide answers to the questions posed above, then the facts as presented are not well laid and cannot be supported now”.

He said a charge was improperly laid if there was no reasonable evidence to support it and in that instance the court's power to grant bail was not curtailed by the law.

Darko was first remanded by the Fast Track Court on November 23, 2006, almost 72 hours after another High Court, presided over by Mr Justice Anthony Abada, had granted him bail in the sum of ¢5 billion with two sureties.

The High Court, on November 20, 2006, granted the accused person bail after his counsel had made an application to that effect but the prosecution had earlier that day entered a nolle prosequi at the circuit court, resulting in the discharge of the accused person.

He was, however, not released on bail because the prosecution preferred fresh charges against him after entering the nolle prosequi at the circuit court.

Story by Stephen Sah

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