Accused persons entering the police van after proceedings on Friday.
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Monday December 13, 2010
The prosecution in the case of 15 persons accused of the murder of Ya Na Yakubu Andani II, overlord of Dagbon in 2002 moved its motion to re-open the case to enable them call more witnesses.
After officially closing its case on November 5, 2010, the prosecution returned to the court to say that it had received a secret audio recording of Alhassan Braimah, the sixth (A6) accused person, confessing to killing the Ya Na and therefore wants the court to re-open the case for them to adduce additional evidence.
Even though the case was slated for December 8, 2010, the court could not hear the case because the machine used in recording the proceedings developed faults and the court, presided over by Justice EK Ayebi of the Court of Appeal, adjourned proceedings but since the machine had still not been fixed the judge had no option but to proceed by writing in long hands.
The content of the purported confession statement recorded by Yakubu Mahamadu aka Anafo and handed over to Ben Nsor, an ex security operative which is urging the prosecution to re-open the case is, “Father you trained us…the chief came to kill us and we killed him and cut off his head, among other things.
Moving the motion, Anthony Rexford Wiredu, a Principal State Attorney standing in for Gertrude Aikins, Director of Public Prosecutions (DPP) said the audio recording constitute a material piece of evidence that cannot be ignored by the court, saying “is is relevant to this case since it is the recording of the 6th accused person confessing to killing of the Ya Na and relates to significant contested issues in this case.”
“The probative value of the proffered evidence substantially outweighs any prejudice that may be caused to the defense or the need to ensure a fair trial within a reasonable time if it is tendered in evidence,” he said.
The prosecutor told the packed court that ACP Robert Ayalingo who is supervising the second investigations into the murder of the late king did not get Moses Nsor, the ex-security officer who took possession of the audio recording until November 7, 2010 when the prosecution had closed its case two days earlier before Nsor handed over the tape to the senior police officer even though Nsor’s name kept cropping up during the investigation.
He insisted that defense counsel had taken no further steps since the prosecution closed its case despite the fact that it (defense) indicated to the court that it intended to file a submission of no case, saying “our application will not unreasonably delay this trial.”
Mr. Wiredu cited international cases such as The Prosecutor versus Charles Taylor at the Special Court Sierra Leone and The Prosecutor versus Slobodan Milosevic at the International Court of Justice as cases where the prosecution closed its cases but the court re-opened them for more witnesses to testify.
He said in the case involving Mr. Taylor, the former Liberian leader, the court in The Hague, re-opened the trial for supermodel Naomi Campbell, Mia Farrow and another to testify when it emerged that Mr. Taylor gave special diamonds to Ms. Campbell as gifts in 1997 at a banquet hosted by Nelson Mandela in South Africa.
“The general rule is that even after the defense has closed its case the judge can call witnesses when new matters arise. This is a clear case where judicial discretion ought to be exercised and grant this application in the interest of effective and total justice and for the purposes of determining the matter on its merit once and for all.”
Responding to the application, Phillip Addison, counsel for the accused persons, opposed the motion, saying the prosecution willingly closed its case but wants the court to re-open the trial for them to adduce fresh evidence.
He said initially when the prosecution read the facts of the case; the DPP said they would lead evidence to show that all the accused persons conspired with Zakaria Yakubu aka Zakaria Forest, the seventh accused person to commit the crime but were trying to change their story as far as the tape was concerned.
“They called 12 witnesses before closing their case and were asked several times if indeed they were really closing their case. The fact that they are seeking to re-open this trial is an indication that they are not satisfied with what they have done.”
He argued that according to the affidavit deposed to by ACP Ayalingo, the prosecution at all material times were aware that Nsor was in possession of the tape recording but they (prosecution) were not able to explain why it had become extremely necessary for them to re-open the case and tender the tape.
He said for instance that ACP Ayalingo deposed to the affidavit that he took another voice recording of the sixth accused person to the Linguistics Department of the University of Ghana for analysis as far back as October 2010 to enable the police compare the voice on the tape, long before November 7, 2010 when ACP Ayalingo claimed Nsor brought the original tape, asking “so what did they go to compare at the Linguistic Department when Nsor had not brought the original tape.”
“The statement implies that at least the police was in possession of that evidence long before the prosecution closed its case.”
After sitting for long hours and writing in long hands, the judge adjourned proceedings until today, Monday, December 13, 2010 for defense to conclude its application opposing the prosecution’s attempt to re-open the case to enable them call more witnesses.
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