A seven member Supreme Court panel presided by Justice William Atuguba has by unanimous decision granted an application seeking an order for pre-trial disclosure of all documents the prosecution intend to rely on in prosecuting a former Board Chairman of the National Communication Authority and three others.
Eugene Baffoe-Bonnie, a former Board Chairman of the NCA; William Tetteh Tevie, a former Director General of the NCA; Nana Owusu Ensaw, a former board member of the NCA; Alhaji Salifu Mimina Osman, a former Deputy National Security Coordinator, and Mr George Oppong, a private businessman are standing trial for causing financial loss to the state.
The Supreme Court said, in the case of civil trials, the element of surprise is completely removed because applicants and respondents are given the opportunity to have access to all documents to be used in the case by both sides. However, in criminal trials, the element of surprise still exist as there is no obligation on the part of the prosecution to give to the accused persons all documents they intend to rely on and it is improper.
The court, however, added that the duty of the Prosecution to carry out pre-trial disclosures is not an absolute right of the accused person as any attempt to make pre-trial disclosure absolute could compromise the security of witnesses, investigators, prosecutors and other interested parties in a criminal trial. The right to Pre-trial disclosure should therefore be subject to the relevance of same as well as the dictates of the principle of privilege.
On February 1, 2018, the Commercial High Court, presided over by Mr Justice Eric Kyei-Baffour, suspended proceedings of the trial and referred a constitutional issue raised by the accused persons to the Supreme Court for interpretation.
Counsel for Baffoe-Bonnie and Oppong filed an application seeking the Supreme Court to interpret the true and proper meaning of Article 19 (2) (e) and (g) of the 1992 Constitution which borders on the right to a fair trial.
The lawyers had argued that per Article 19 (2) (e) and (g), their clients were entitled to all the documents the prosecution intended to rely on in the trial, which began on January 16, 2018.
All the accused persons have pleaded not guilty to various counts of causing financial loss of $4 million to the state.
The High Court had granted each accused person a $1-million bail, with three sureties, and directed them to surrender their passports to the registrar of the court.
According to the facts of the case, as presented by the A-G, Baffoe-Bonnie, Tevie, Ensaw and Osman were allegedly aided by Oppong to engage in the criminal act.
It said the previous administration had contracted an Israeli company, NSO Group Technology Limited, to supply a listening equipment at a cost of $6 million to enable the authorities to monitor conversations of persons suspected to be engaged in terror activities.
A local agent, Infraloks Development Limited, charged $2 million to facilitate the transaction, bringing the total sum to $8 million. The facts explained that the National Security did not have the money to fund the transaction and for that reason the NCA, which had supervisory jurisdiction over the use of such equipment, was asked to fund the project.
It said $4 million was withdrawn from the NCA’s account, while $1 million out of the withdrawn amount was deposited into the account of the Israeli company.
The A-G explained that the remaining $3 million was lodged in the account of Oppong, who acted as a representative of the local agents, Infraloks Development Ltd.