Opuni trial: It's up to trial judge to decide if part-heard case must start afresh but parties free to challenge it — Godfred Dame

Attorney General and Minister of Justice, Godfred Yeboah Dame has admitted that it is the sole prerogative of a trial judge to decide whether or not to adopt previous proceedings.

“The true position of the law is actually up to the trial judge to make that determination. The trial judge makes that determination based on factors that he considers necessary,” he stated.

Mr. Godfred Dame was speaking to journalists after securing a favourable decision, early this month, at the Court of Appeal that overturned a High Court’s ruling directing that the trial of former COCOBOD boss Stephen Opuni and two others should start afresh.

He, however, pointed out that the parties are also at liberty to challenge the decision of the judge when they are aggrieved.

Dr Opuni and businessman Seidu Agongo as well as Agricult Ghana Limited, are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.

The case was transferred to Justice Kwasi Anokye Gyimah following the retirement of former Supreme Court judge Clemence Honyenuga.

The judge declined to adopt the proceedings of Justice Honyenuga.

“If I adopt the proceedings, I am basically adopting every act and decision that has been taken by the previous judge in the matter and I will be saddled with the same suspicions and allegations of unfairness that have been levelled against the current state of the proceedings,” he said in his ruling on April 4, 2023.

Justice Gyimah made reference to section 80(2) (a) of NRCD 323, which states that one of the factors a court is enjoined to look at when assessing the credibility of a witness is the witness’ demeanour.

“Much as that may be the right position, in a criminal trial where the liberty of the accused is at stake and where the accused is by law presumed innocent and also entitled to a fair trial, any factor, however minimal or insignificant its effect, that will enhance the opportunities for the fair trial of an accused person should not be overlooked by the court.”

Justice Kwasi Gyimah has since been transferred from Accra to Kumasi by the newly appointed Chief Justice Gertrude Torkornoo after sitting on the case for only four times, and the matter handed over to another judge to continue from where Justice Honyenuga left off.

According to Mr Dame, the decision by the High Court judge to restart the case was retrogressive.

“It is actually a little bit backward, with all respect, for a trial which has advanced to this stage for an order to be made to start de novo (afresh). It amounts to giving the evidence twice,” he asserted in his interview with the media after the Court of Appeal decision.

Again, the Attorney General has maintained that it was wrong for people to think that it is only in civil cases that proceedings are adopted, noting that there are several cases in which criminal proceedings have been adopted.

“The true position of the law, is actually up to the trial judge to make that determination. The trial judge makes that determination based on factors that he considers necessary.

“Any if the parties are aggrieved by the exercise of that discretion, the party is entitled to launch an appeal, which we did and we felt that the matters that were relied upon by the trial judge were, with all respect to him, quite irrelevant. And, therefore, the proper thing to do, which is actually the most progressive step in the circumstances, calls for the evidence to be adopted and, for us, we won.”

AG’s position in 2021

In 2021, Mr Dame told the Supreme Court, in his argument against the prohibition of Justice Honyenuga from hearing the case, by the same court, that:“We respectfully submit that the order prohibiting the trial judge will work substantial miscarriage of justice in the trial of the accused person. The decision has the effect of placing the case in the hands of a judge who has not had the benefit of the entire trial, observing the demeanour and composure of the various witnesses called by the prosecution in order to assess their credibility".

"It is our contention that, regardless of the course to be adopted by a new judge to whom hearing of the matter is entrusted, the further conduct of the case will suffer,” the statement of claim filed by the Attorney General dated August 18, 2021 posited.

He further stated, “If the new judge orders an adoption of the evidence led so far rather than a commencement ‘de novo’, he would definitely have lost the benefits of the conduct of a full trial by him, – observation of the demeanour, countenance and composure of witnesses, etc.”

He, therefore, justified in that statement that it was “fundamentally wrong for this Court to prohibit the trial judge from further hearing of a case when all he did was to perform a duty placed on him by law”.

Supreme Court’s position in 2023
Writing a decision of the Supreme Court in the Republic vrs High Court (Criminal Division) ex parte Stephen Kwabena Opuni on January 24, 2023, Justice Dotse stated:

“The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part-heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo".

“Perhaps, the time has come for this problem to be reviewed. This is because, if, as a country, we are to make some progress in the prosecution of criminal cases, especially corruption-related cases pursuant to Article 19 of the 1992 Constitution, then the bold step has to be taken to introduce sweeping reforms in this part of our criminal justice. We, therefore, appeal to the Chief Justice to urgently consider reforms in this part of our criminal justice.”

Legal Reforms
After securing the favourable judgement from the Court of Appeal on July 3, 2023, Mr Dame announced his decision to get Parliament to approve a new Bill for Ghanaian judges to adopt proceedings in criminal trials in the event that another judge is unable to conclude a matter before him or her.

Source: classfmonline.com