QUESTION ONE

A. Area of Law

Admissibility of Evidence:

1. Hearsay Evidence

2. Expert opinion evidence

3. Lay opinion evidence

Relevant Authorities:

1. Definition of hearsay evidence- Section 116c of The Evidence Act, 1975 NRCD 323

Hearsay evidence is evidence of a statement, other than a statement made by a witness while

testifying in the action at the trial, offered to prove the truth of the matter stated.

2. Admissibilty of hearsay evidence-Section 117 of NRCD 323

Hearsay evidence is not admissible except as otherwise provided by this Decree or any other

enactment or by agreement of the parties.

3. Condition necessary for the admissibility of hearsay evidence-Section 120 of NRCD 323

(1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter

which constitutes, forms an essential part or taken together with other information already

disclosed by him, is a basis for an inference of the commission of a crime for which he is being

tried in the action, is not admissible against him unless the statement was made voluntarily.

4. Meaning of voluntary- Section 120(5)

For the purposes of this section, a statement that was not made voluntarily includes, but is not

limited to, a statement made by the accused if the accused when making the statement was not

capable, because of a physical or mental condition, of understanding what he said or did.

5. Expert witness- Section 112

If the subject of the testimony is sufficiently beyond the common experience that the opinion or

inference of an expert will assist the court or tribunal of fact in understanding evidence in the

action or in determining any issue, a witness may give testimony in the form of an opinion or

inference concerning any subject on which the witness is qualified to give expert testimony

6. Section 67- Qualification of an expert witness

A person is qualified to testify as an expert if he satisfies the court that he is an expert on the

subject to which his testimony relates by reason of his special skill, experience or training

7. Section 113- Testimony of an expert witness

(1) A witness testifying as an expert may base his opinions or inferences on matters perceived

by him or known to him because of his expertise or on matters assumed by him to be true for the

purpose of giving his opinion or inference.

(2) The matters on which a witness testifying as an expert bases his opinion or inference need not

be admissible in evidence.

8. Section 60(1)- Lay evidence

A witness may not testify to a matter unless sufficient evidence is introduced to support a finding

that he has personal knowledge of the matter.

(1) A witness not testifying as an expert may give testimony in the form of an opinion or

inference only if-

(a) the opinion or inference concerns matters perceived by the witness, and
(b) testimony in the form of an opinion or inference is helpful to the witness in giving a clear

statement or is helpful to the court or tribunal of fact in determining any issue.

9. Inadmissibility of expert witness_

Ebusuapanyin Kweku Assafua and Others v. Regional Secretary, Land Commission Secretariat

and Others Civil Appeal No. J4/17/2013] dated 12th March, 2014 (SC), pp. 12-13.

B. Issues:

ISSUE 1- Whether or not the testimony provided by the Emergency Care Technician(ECT) is

admissible.

ISSUE 2- Whether or not the testimony of ASP Amoah is admissible

ISSUE 3- Whether or not the testimony of Mrs. Ashie is admissible

ISSUE 4- Whether or not Mr. Laryea’s testimony is admissible

ANALYSIS OF ISSUE 1

As stated earlier, Hearsay evidence is evidence of a statement other than a statement made by a

witness while testifying in the action at the trial, offered to prove the truth of the matter stated. In

other words, it is a declaration, statement or utterance made before the current court trial which is

offered to prove the truth of its contents.1

1
Essentials of The Ghana Law of Evidence by Hon. Justice S.A Brobbey, at 343
For want of the opportunity to determine the credibility of hearsay evidence in court, it is wholly

inadmissible unless under a few exceptions stated by NRCD 323.

Confessions as defined by section 120 of NRCD 323 stated above are statements made by an

accused person from which an inference can be made that he indeed committed the crime.

Confessions form part of hearsay evidence as can be seen from the wording of the Act.

According to section 120 of NRCD 323, Confession statements are admissible if they are offered

voluntarily.

Subsection 5 provides that if the statement was made while the accused was not capable of

understanding what he said because of either a mental or physical condition, then the statement

will be regarded as having being made involuntarily.

From the facts of the case, the ECT stated that David told him that he, David, had consumed at

least twelve bottles of beer two hours before the accident. This is a statement made before and

out of court and apparently purporting to constitute a confession made by David. The statement

in question is a hearsay statement because it was made outside the courtroom, with no evidence

as to its credibility and also because the ECT claimed to have heard it from David.

Apart from the fact that hearsay evidence is inadmissible under section 117 of NRCD, the

statement, if indeed it was even made, seemed to have been done involuntarily as David was not

mentally capable of understanding what he was saying partly because of the accident, which

could have affected him in any way and alcohol, if, and only if he had consumed any.
Based on these various conclusions, the testimony of the ECT is inadmissible because it was a

hearsay statement and even if it fell under any of the exceptions for the admissibility of hearsay

statements, it was not made voluntarily by virtue of interpretation from section 120(5)(a) of

NRCD 323.

ANALYSIS OF ISSUE 2

An expert is a person who is skilled in the subject to which his testimony relates.2

According to section 67 stated above, an expert witness is qualified if he satisfies the court that

he is an expert based on his skill, experience or training.

ASP. Amoah claims to have 17 years of experience as a police officer and 10 years of experience

as an accident investigator.

Per section 67(2), an expert witness can prove his expertise through the testimony of he himself.

Thus, statements with regard to how many years of experience ASP Amopah has may be

considered as evidence of his expertise.

From section 112, the conditions needed to be satisfied before an expert witness’ testimony can

be admissible in court is that it must firstly be a subject matter beyond the common experience of

the court, the expertise must be in relation to the subject matter before the court and that his

opinion must be helpful to the court.

The first condition implies that the evidence in question should be beyond the knowlege of the

court. It must be something the court cannot determine based on its competence alone.

2
Essentials of The Ghana Law of Evidence by Hon. Justice S.A Brobbey, at 334
The evidence ASP Amoah offered is evidence regarding technicalities of road usages and this is

something that ordinarily, a court would need assistnce with.

The second condition implies that the evidence must be relevant to the matter in issue. The

evidence ASP Amoah offered is in relation to the safeness of the road at a certain speed and his

observations form the scene of the abccident. From Section 113(1), the expert may base his

opinion on matters assumed by him to be true and that is what ASP Amoah, in stating the

number of hours he believed David was driving, did. Also, subsection 2 mentioned that the

matters on which he bases his expert evidence on need not be admissible. Thus, it does not

matter if it was his opinion or hearsay or any other evidence that may otherwise be inadmissible

in court. What matters is that his testimony must be relevant to the matter in question and since

his evidence is important in determerning if indeed Dvaid was guilty of wrongful death, it

satisfies the second condition.

The final condition is that the evidence must be useful to the court. This condition was explained

in the commentary on the Evidence Act as “Where the expert can supply general technical

background information which might be useful in understanding evidence introduced in the

action…and secondly, the expert might carefully give his opinion based on facts in the case.

As ASP Amoah’s statement can be useful to the court, it goes to suggest that ASP Amoah’s

opinion is admissible in court for the purposes of determinig David’s guilt or otherwise.

ANALYSIS OF ISSUE 3
From section 60(1) stated earlier, the general rule is that witnesses must testify from knowledge

they have themselves seen, heard or experienced. Thus, the general rule is that lay opinion

evidence is inadmissible in both criminal and civil cases.

However, there is an exception to this rule and this has been provided for in section 111(1) stated

above. Thus, the first requirement is that the opinion evidence is only admissible if it concerns

matters perceived by the witness. Mrs. Ashie saw David’s car, albeit in a streak. Thus, because

she perceived the car in motion with her own eyes, the first element has been satisfied.

The second condition is that the evidence must assist the witness in clarifying the account or

description of his testimony in court or that it is helpful to the court in determining the case.

Mrs Ashie’s evidence of seeing the car would be helpful in determining if indeed David is guilty

of wrongful death because she would be able to tell the court whether or not David was driving

within the speed limit, at least per her observation, or if he was speeding, which would be

obvious from the speed of the car.

From the facts, Mrs Ashie saw the car in a streak. A streak means to move very fast in a

specified direction. This goes to prove the fact that David was speeding. Because if he were

driving within the speed limit, Mrs. Ashie would not have seen him in a streak.

Thus, based on the fact that Mrs. Ashie’s testimony meets all the requirements for the

admissibility of lay opinion evidence, the conclusion is that Mrs. Ashie’s testimony is

admissible.

ANALYSIS OF ISSUE 4
Since Mr. Laryea is a highway design engineer, his testimony would be subject to the

requirements for admissibility of an expert witness.

The first consideration is if Mr. Laryea is a qualified expert. Based on section 67, because of his

skills as a result of being a highway design engineer, Mr. Laryea qualifies as an expert to give his

testimony.

The next thing to consider is if the matter to which Mr. Laryea gave his testimony is beyond the

competence of the court. From the facts, Mr. Laryea testified on the presence of roadway signs

necessary to caution drivers plying that particular route.

This is a matter the court can easily determine without any special assistance. In Ebusuapanyin

Kweku Assafa and Others v. Regional Secretary, Land Commission Secretariat and Others, the

plaintiff failed to call expert survey evidence to prove the boundaries of the dispute land. His

Lordship Dose ]SC (as he then was) said: "It should indeed be noted that, in the absence of

verifiable scientific Survey Plans, overt acts of physical features like Anthills, cemeteries, old

settlements, sacred groves, streams, rivers and other features have always been accepted and

used to indicate boundary features between two adjoining lands." Thus, their Lordships relied on

their common experience on issues of land boundaries to determine the boundaries of the

disputed land without resort to expert opinion evidence.

This is the same situation playing out here. Mr. Laryea’s evidence is nothing technical that

would need him to testify in his capacity as a highway design engineer.

Based on this, the conclusion is that Mr. Laryea’s testimony is inadmissible in court.

CONCLUSION
To sum up everything that has been said,

Firstly, the ECT’s evidence is hearsay because he said David told him he drank beer. The ECT

did not witness David drinking with his own eyes. Neither did he infer it based on his experience

as an ECT. All he did is to claim to the court something that David purported to say. Since

hearsay evidence is inadmissible and his evidence does not meet the requirements to fall under

the exceptions, our conclusion is that the evidence of the ECT is inadmissible.

Secondly, ASP Amoah’s testimony is admissible because it satisfies all the requirements for the

admissibility of an expert’s witness and it actually was useful to the court since he was able to

tell the court that David was indeed speeding, by his observation of the scene.

To continue with, Mrs Ashie’s testimony is admissible because although it is lay opinion

evidence, it falls under the exceptions where lay opinion evidence is admissible because she

perceived the events with her own eyes and the her testimony would actually aid the court in

ascertaining collectively with other evidence, with certainty, that David was indeed speeding.

Finally, Mr. Laryea’s testimony is inadmissible despite it being an opinion from an expert and

this is because the testimony would not aid the court in any special way. The information he

offered is one that can be obtained without any difficulty by just a visit to the site.
QUESTION 2

Area of Law

1. Admissibility of Evidence- Hearsay Evidence

2. Cross examination of witnesses

3. Privileges

ISSUE 1- Whether or not Paul’s testimony that John was drunk and seemed confused when

planning his flight is admissible.

Relevant authorities

1. Relevant evidence- Section 51(1) of NRCD 323

2. Hearsay evidence; section 116-of NRCD 323

3. Confession- Section 120(c ) of NRCD 323

ANALYSIS OF ISSUE 1

Per Section 51(1) of NRCD 323, relevant evidence means evidence including evidence relevant

to the credibility of a witness or hearsay declarant, which makes the existence of any fact that is

of consequence to the determination of the action more or less probable than it would be without

the evidence. This definition connotes two principles; firstly, that evidence is relevant when it

tends to prove or disprove a fact in issue. Secondly, that the evidence is relevant when it is

material or has a bearing on or relates to the facts in issue. This simply means the materiality of

the evidence is established where there is some logical connection between the evidence offered

and the issue to be determined (In this case, what actually caused the plane crash leading to

John’s death?). Generally, as stated in Section 51(1) & (3) of NRCD 323, evidence which is

relevant is admissible. It is worthy of mention that, although evidence may be considered as

relevant, certain instances may render such evidence(s) as inadmissible for instance, some rules

on hearsay, some rules on witnesses, etc. Our focus here would be on hearsay. Hearsay

evidence per section 116 (c) of NRCD 323 is evidence of a statement other than a statement

made by a witness while testifying in the action at the trial, offered to prove the truth of the

matter stated. In other words, it is a declaration, statement or utterance made before the current

court trial which is offered to prove the truth of its contents. As generally a hearsay evidence is
inadmissible unless it comes under certain exceptions like under section 117 which provides that

hearsay evidence is not admissible except as otherwise provided by this Decree or any other

enactment or by agreement of the parties. For this provision in section 117, there is a guarantee

for a hearsay evidence to be held admissible pursuant to section 118 (1) of NRCD 323 which

provides that hearsay evidence may be admissible if the hearsay evidence is such that it had been

offered by the declarant during the trial, it would not itself have been hearsay evidence.

From the above provisions in tandem with the facts presented in the question, we notice series of

events taking place before the plane crash of John leading to his death. One event crucial to this

analysis is John’s prior conversation with Paul which out of it, Paul could noticed that John’s

speech was slurred and that John appeared intoxicated. Another event prior to the plane crash

shortly after his conversation with Paul was his subsequent conversation over the phone with his

wife, Cathy during which he disclosed he had several drinks (inferably would be alcohol) on his

way to the airport. Paul’s testimony would be relevant only if the court deems his testimony

relevant or crucial to determining John’s state of mind or capacity to fly the plane safely, and

since this was material in connection with the facts in issue per section 51 of NRCD 323 it is

considered as relevant in order to ascertain the cause of death and such it is admissible.

ISSUE 2: Whether or not Cathy can be cross-examined about her phone conversation with John

Relevant Authorities:

1. Cross examination- section 62 of NRCD 323

2. Marital communications - section 110 of NRCD 323

ANALYSIS OF ISSUE 2

Cathy being able to be cross-examined boils down to relevancy of such examination to the fact in

issue. Questions asked by the opposing party or lawyer of the opposing party is what is termed as

cross-examination. Section 62 of NRCD 323 governs the law on cross-examination. Per section

62, all witnesses are bound to be cross-examined. However, a person has a privilege to refuse to

disclose or prevent others from disclosing a confidential communication made between

themselves and their spouse during their marriage3. For a communication to be considered

confidential, it must not have been intended to be disclosed and must have been made in a

manner reasonably calculated to keep its contents from being disclosed to any third person4.

In the context of Cathy's phone conversation with John, where John informed her about his

drinking and his intention to fly despite his intoxication, this communication would likely be

considered confidential under the law. The conversation was between spouses, made during their

marriage, and was not intended to be disclosed to anyone else. Additionally, the manner in which

the conversation took place (over the phone) would reasonably be considered as not intended to

disclose its contents to any third person.

3
Section 110(1) of NRCD 323
4
Section 110(2) of NRCD 323
Therefore, Cathy can invoke the marital communications privilege to refuse to disclose the

details of her phone conversation with John, including his statements about his drinking and his

decision to fly.

Thus Cathy cannot be cross examined about her phone call with John if only she invoke the

spousal privilege.

ISSUE 3: Whether or not Cathy can be cross-examined about her settlement with Wings

ANALYSIS OF ISSUE 3

As Cathy remains a party to this suit, all her averments are subject to its credibility before the

court. However, per section 105(1)of NRCD 323, a person has a privilege to refuse to disclose

information concerning the furnishing, offering, or accepting of valuable consideration in

compromising a claim. This privilege applies to information related to the compromise

negotiations, including conduct or statements made as part of those negotiations5.

In this case, Cathy settled her lawsuit with Wings, the manufacturer of the plane, for an

undisclosed sum. The settlement agreement likely included terms and conditions regarding the

resolution of the claim. Since the settlement was reached in compromise of the claim against

Wings, Cathy would have a privilege under the law not to disclose the details of the settlement,

including the amount she received.

5
Republic v Bonsu, ex parte Folson
Therefore, Cathy can refuse to disclose information about her settlement with Wings, as it falls

under the privilege provided by the law.It can only be disclosed if only neither she or Wings

intended for their settlement to be disclosed6.

Therefore Cathy cannot be be cross examined about her settlement with Wings.

6
Section 105(2) of NRCD 323