GATHERING THE RELEVANT PIECES OF EVIDENCE INCLUDING EXHIBITS FOR A SUCCESSFUL PROSECUTION OF OFFENCES OF DISHONESTY With Justice Ofori-Atta Justice of the High Court

INTRODUCTION Article 187 Clause 3 of the 4 th Republican Constitution mandates the Auditor General to audit and Report on the public accounts of Ghana and all public offices including the Courts, the central and local government administrations, the universities and public institutions of like nature, and any public corporation or other organization established by an Act of Parliament.

In the performance of this onerous task, the audit officer faces a lot of challenges including the ability to marshall the necessary evidence which enables him to build a strong case for the prosecution of people involved in fraudulent deals with the intent to steal, or cause the loss of, public funds.

This training programme is aimed at equipping the audit officers and thereby enhance their performance when they appear in Court as witnesses in both civil and criminal cases.

BURDEN OF PROOF In our law the onus is always on the prosecution to prove the case against the accused beyond reasonable doubt in order to obtain a conviction. This burden is high indeed. It therefore behoves the audit officer to assemble all sufficient and relevant exhibits including books, receipts, invoices and other documents as well as material witnesses to enable the prosecution prove its case.

RELEVANCY It must be emphasized that for the evidence to be admissible must be relevant to the matter in issue. Otherwise it will not be admitted. The law on relevancy of evidence is provided for in Sections 51 – 58 of the Evidence Act, 1975, NRCD 323. The Act defines “relevant evidence” as evidence including evidence relevant to the credibility of a witness or hearsay ………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.

For example, where A is alleged to have forged the signature of B on B cheque and has succeeded in withdrawing money from B’s account at a bank, the cheque, the comparison of the signature with that of B, a handwriting expert who testifies about the handwriting of B will all be relevant in the determination of the issue whether A indeed forged B’s signature.

Also, where a copy of a writing is being tendered it may be necessary to explain the unavailability of the original: it may be lost, or destroyed or under the control of the opponent. We shall now relate the above principles to the specific offences in our topic. Let us note that to be able to lead evidence successfully as a witness in any of the offences the witness must have a fair knowledge of the nature of the offence in question.

In this delivery I shall limit myself to the following offences: THE OFFENCES A.Issuing of false cheques with intent to defraud – Section 133 of Act 29. This involves cases where a cheque issued is dishonourned by the bank. Under Ghana Law, issuing a cheque is a representation by the drawer that he has an account at a particular bank.

Is a person guilty because the cheque he issued to another had been dishonourned? The answer depends to a large extent on whether or not the person knew that the cheque would be dishonourned at the time he issued it for e.g., the purchase of goods, which the payee of the cheque delivered to him.

The law is that a person who issues a cheque implicitly represents that he has sufficient funds to cover the amount stated on the cheque in his accounts or that he has made arrangements for the cheque to be honourned on presentation.

Two Situations Arise (a)Whether at the time the cheque was issued the drawer knew he had no money in the bank and had no reason to believe that the cheque would be honourned.