Section 120 of the Evidence Decree NRCD 323 of 1975 relate to evidence of a hearsay statement

made by an accused admitting matters which constitute the commission of a crime for which he

is being tried.  Section 120 of the Evidence Decree therefore relates to hearsay admission of guilt

by an accused person in his statement to the police.  In his book “Practice And Procedure In The

Trial Courts And Tribunals of Ghana”, S. A. Brobbey wrote at page 97 paragraph 215 under the

subheading ‘Confessions’ that “As a general rule a confession by an accused person in respect of

a crime by which he is being tried, if made out of court, is hearsay and therefore inadmissible as

evidence against him. Such confession will be admissible only if two conditions exist, namely

that (1) It was made voluntarily or (2) if made while the accused was arrested restricted or

detained, the statement was made in the presence of an independent witness.”   At page 99

paragraph 217 of the same publication the learned author and jurist states that “where the

confession was made at a time when the accused person had been arrested, restricted or detained,

there are two other mandatory provisions to be satisfied in addition to the above, where

applicable, before evidence of such confession shall be admissible.  Firstly, the requirements of

Article 14(2) of the 1992 Constitution should have been satisfied, to wit that the accused should

have been informed in a language that he understands of the reason for his arrest, restriction or

detention and of his right to Counsel of his own choice.  Secondly, the confession should have

been made in the presence of an independent witness who understands the language in which the

accused made the confession and at the same time can read and understand the English

Language. Where the confession is in writing the witness must write on it that the confession

was voluntarily made and further that the accused understood it fully”.
 In Ofori vrs The State (1963) 2 GLR 452, the Supreme Court held that a free and voluntary

confession of guilt by an accused person, if it is direct and positive and is duly made and

satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence.

The real test of the admissibility of a statement, particularly a confession statement, is whether it

is made voluntarily. This principle was laid down in Regina v. Thompson [1893] 2 Q.B. 12 as

approved in Ibrahim v. The King [1914] A.C. 599 and followed by Byrne J. in Regina v. Brass

[1953] 1 Q.B. 680.

This general principle was admirably stated by Lord Sumner in his judgment in Ibrahim v. The

King (supra) as follows:

"It has long been established as a positive rule of English criminal law, that no statement by an

accused is admissible in evidence against him unless it is shewn by the prosecution to have been

a voluntary statement, in the sense that it has not been obtained from him either by fear of

prejudice or hope of advantage exercised or held out by a person in authority. The principle is as

old as Lord Hale."

The point of that passage is that the statement must be a voluntary statement; any statement

which has been extorted by fear of prejudice or induced by hope of advantage held out by a

person in authority is not admissible.

According to the decision of the Court for Crown Cases Reserved in Regina v. Thompson

(supra), a confession of guilt in order to be admissible in criminal proceedings must have been

made voluntarily, and not in response to any threat or to any suggestion of advantage to be

inferred either directly or indirectly from language used by a person in a position of authority in
connection with the prosecution of the person by whom the confession was made. Cave J. in

delivering the judgment of the court, said:

"If these principles and the reasons for them are, as it seems impossible to doubt, well founded,

they afford to magistrates a simple test by which the admissibility of a confession may be

decided. They have to ask, is it proved affirmatively that the confession was free and voluntary

—that is, was it preceded by any inducement to make a statement held out by a person in

authority? If so, and the inducement has not clearly been removed before the statement was

made, evidence of the statement is inadmissible."

As to whether an independent witness must read over the confession of an accused person who is

neither blind nor illiterate, the court in Livingstone Afedzi v The Republic as follows:

“Section 120 (3) and (4) of the Evidence Act, Act 323 states who an independent witness is and

what his duties are. The said sections state as follows120(3) The independent witness must be a

person who—a) Can understand the language spoken by the accused; b) Can read and understand

the language in which the statement is made, and where the statement is in writing the

independent witness must certify in writing that the statement was made voluntarily in his

presence and that the contents were fully understood by the accused.4) Where the accused is

blind or illiterate, the independent witness shall carefully read over and explain to him the

contents of the statement before it is signed or marked by the accused, and shall certify in writing

on the statement that he had so read over and explained its contents to the accused and that the

accused appeared perfectly to understand it before it was signed or marked.”

In respect of the duty of an independent witness, the court in Livingstone Afedzi v The Republic,

supra, the court stated that the duty of an Independent witness is to listen to the statement and
witness that it was accurately documented hence the need for him to understand the language in

which it is given.

In State v. Otchere (1963) 2 GLR, the effect of confessional statement properly taken the court

stated as follows: “Being satisfied that the confession statements in question were properly taken

in the presence of an independent witness, they were not defective and were sufficient on their

own to found a conviction without any independent proof of the offence.”

REFERENCES

S.A Brobbey: Practice and Procedure in the Trial Courts and Tribunals of Ghana: Being the
Practice and Procedure in the District Courts and Community Tribunal

CASES

Ibrahim v. The King [1914] A.C. 599

Livingstone Afedzi @ Chaka V. The Repubic (2013) JELR 64678 (CA)

Ofori vrs The State (1963) 2 GLR 452

Regina v. Brass [1953] 1 Q.B. 680

Regina v. Thompson [1893] 2 Q.B. 12

State v. Otchere (1963) 2 GLR