Dame vs. Ato Forson: Analysis of the major issues in High Court ruling on mistrial, enquiry

The High Court (Financial & Economic Crime Division 2) in Accra, presided over by Justice Afia Serwah Asare-Botwe, has dismissed four applications filed by the first accused, Cassiel Ato Forson, in the ongoing ambulance case.

The ruling, delivered on the applications, addressed various legal issues surrounding the jurisdiction and conduct of the prosecution.

In its comprehensive ruling, the court first provided the history of the case before examining the legal framework governing its jurisdiction in criminal matters. The court emphasized that it could only exercise powers explicitly backed by statute.

"…basically that whatever power that this Court is being called upon to exercise in this case, being a criminal trial, must clearly be backed by statute. There is no room for an “implied jurisdiction”.

Inquiry into Attorney-General's Conduct Rejected

Ato Forson's first application sought an inquiry into the conduct of the Attorney-General. The court denied this request.

“Unfortunately, there is no rule of law or practice which allows such an enquiry to be made in the course of criminal proceedings as this Court is being invited to do, particularly when the alleged misconduct did not take place in the view or to the hearing of the Court.”

The court further held that:

“To conclude under this head, I hold that there is no legal basis for a Court in the course of criminal proceedings to order an enquiry into the conduct of a prosecutor. There may be another forum for such an exercise but these criminal proceedings cannot accommodate it.”

Mistrial Application Denied

The second application by Forson called for a mistrial in the criminal proceedings. The court reviewed the legal framework for declaring mistrials in Ghana, noting that mistrials typically pertain to hung juries in trials by indictment and not to summary trials presided over by a single judge. The court found no legal precedent or substantial evidence to support a mistrial.

Mistrials have, in our law and practice, always and only been relative to hung juries in trials on indictment. There has been no situation where a summary trial being presided over by a single judge has resulted the declaration of a mistrial and an order for retrial to my knowledge.

The court further explained.

"The Applicant has not provided such a precedent in our domestic legal framework either by way of legislation or judicial pronouncement, except to state the broad principles of the Constitution and “inherent jurisdiction”.

Additionally, the court noted.

“In this case, the Applicant has not demonstrated how he has been prejudiced, especially as this Court has already found prima facie evidence that he has a case to answer independent of whatever implication the Attorney-General had allegedly sought to deal him. He has adduced evidence and closed his case. The Court will have to assess the evidence to draw a conclusion one way or the other.”

Injunction and Stay of Proceedings Applications Dismissed

Forson's third application requested an injunction to halt the prosecution until the determination of the mistrial motion. The court ruled against this, highlighting.

“The law is tritely known that injuncting statutory bodies in the performance of their lawful duties should, if at all, be sparingly done…. In the circumstances of this case, I find no exceptional circumstance in the application to injunct the Attorney-General and his office from performing their statutory duty at this late stage of the trial, especially when the Court has ordered A1 to open his defence which he has done.”

The court found no exceptional circumstances warranting an injunction at this stage of the trial.

In the fourth application, Forson sought a stay of proceedings pending an appeal. The court noted the lack of specificity in the notice of appeal and questioned the seriousness of pursuing an appeal. The court concluded.

“I have noted the generic Notice of Appeal which is the foundation for the application to stay proceedings pending appeal. I have noted that even the alleged error of law was not particularized. It seems that there is no real intention or impetus to prosecute any appeal in the foreseeable future.

It also stated.

“I hold that there are no exceptional circumstances to merit the grant of stay of proceedings pending appeal at this late stage of the trial.”

Attorney-General's Involvement Advised Against

The court also addressed the admissibility of Exhibit "CAF 2," which involved a conversation between the Attorney-General and the third accused person outside the courtroom. The court acknowledged that such interactions could undermine public confidence in the judicial process. The court noted.

“Based on the Exhibit CAF 2, the Attorney-General is heard speaking to the 3rd accused person he is prosecuting outside the court and discussing the evidence and even making suggestions as to what the accused should do to obtain an adjournment. That, to my mind may negate the principles of right thought. That said, however, the 3rd Accused cannot by any stretch of imagination be seen to be the one to be procuring new evidence, or cowed by the conversation, but the whole situation could be a source of discomfort and discomfiture.”

Although the court did not pass judgment on the appropriateness of the Attorney-General’s actions, it advised.

"However, to prevent further erosion of the judicial process and uphold the principles of justice, (judicial notice having been taken of what public controversy this may have generated), I am of the considered view that it would be prudent that the Attorney-General be strongly advised not to be directly or personally involved in the further prosecution of this case. This is not in any way, shape or form making a value judgment on whether the Attorney-General was right or wrong in holding a conversation bordering on what was a live case in court with an accused person he was prosecuting, but I am of the respectful view that this is one way of ensuring that the judicial process is protected and to gain public confidence such that it may not be the perception that cases can be dealt with in any other place than in the courtroom.

Court Upholds Dismissal of Applications

Ultimately, the High Court dismissed all four applications filed by Ato Forson. The ruling reinforced the court's commitment to statutory guidelines and underscored the importance of maintaining judicial propriety and public confidence in the legal process.