A criminal trial in absentia takes place when the trial of a person charged with a criminal offense commences and concludes with a conviction in his or her absence. The accused is considered to have absented him or herself from the trial of the offense for which he or she has been charged. Trials in absentia are rare indeed and must be conducted after careful due diligence and care has been taken to prevent the human rights of persons charged with criminal offense from being infringed upon.
In 2001, the House of Lords in the case of Jones (Anthony) [2003] 1 AC decided that trials in absentia were both part of the common law and compatible with a defendant’s rights. However, ‘the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution’ per Lord Bingham, para 13, ibid.
The Ghanaian law on criminal trial procedure particularly Article 19 of the 1992 Constitution in the Chapter on Fundamental Human Rights states that a person charged with a criminal offense shall be given a fair hearing within a reasonable time by a Court of competent jurisdiction. Article 19 (3) particularly provides further that “ the trial of a person charged with a criminal offence SHALL take place in his presence unless:
(i) he refuses to appear before the court for the trial to be conducted in his presence AFTER HE HAS BEEN DULY NOTIFIED OF THE TRIAL or;
(ii) he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the Court orders him to be removed for the trial to proceed in his absence.
It is clear therefore that a trial in absentia is not alien to the criminal law of Ghana. The Law however requires that it only takes place or occur where the accused person decides to absent himself from the trial or proceedings in Court after he has been DULY NOTIFIED of the trial and he chooses to absent himself or conducts himself or behaves in such a manner as to render the continuation of the proceedings in his presence impracticable. An illustration of this is when the accused is so violent in court such that life and property in the Court room are gravely jeopardized.
It is no exaggeration therefore to opine here that the right to a fair trial of a person charged with a criminal offence and his right to the trial taking place in his presence is jealously guarded by the 1992 Constitution of the Republic of Ghana and the Common Law.
It is in this context that the trial and conviction in absentia of Arvind Kumar Bhatnagar as has been reported in the Thursday June 4, 2015 edition of the Daily Graphic in the criminal case of the Republic versus Daniel Charles Gyimah and Arvind Kumar Bhatnagar should be critically examined.
The key question is “Did the High Court and the Prosecution do the necessary due diligence before the trial of Mr. Arvind Kumar Bhatnagar took place in his absence”?
Mr. Arvind Kumar Bhatnagar left the shores of Ghana in or around January 2007 and the criminal charges that have been brought against him were filed in or around 2010. That is three years before the charges that have been reported were brought against him. It is not clear whether Arvind Kumar Bhatnagar received any formal summons through the Ghana Police Service, Judiciary, or Interpol that required him to answer or appear before a High Court in Ghana.
It must be stated though that the Ghana Police Service and the Judiciary do not have the authority or jurisdiction to serve criminal summons on persons outside the shores of Ghana. That will seriously be in breach of the sacred international principle of sovereignty of States. The only means feasible would be through the International Police or Interpol who are given international powers of arrest under International Law.
Arvind Kumar Bhatnagar may not have absented himself from the trial that purportedly took place in the High Court after notice had been served on him. He was not in Ghana when investigation commenced culminating in the criminal charges against him. He may thus not be a fugitive from justice after all.
Trial in absentia certainly does not mean a trial without notice to the accused person and that fundamental human right principle in our 1992 Constitution has been considered by the Supreme Court of the United States of America in the Case of CROSBY v. UNITED STATES (91-6194), 506 U.S. 255 (1993) decided on the 13th of January 1993.
The U.S. Supreme Court held by a 9-0 unanimous decision that Rule 43 of the Federal Rule of Criminal Procedure (similar to Article 19 (3) of Ghana’s 1992 Constitution) prohibits the trial in absentia of a Defendant who is not present at the beginning of trial. Just like the provisions in the 1992 Constitution of Ghana, Rule 43’s express use of the limiting phrase “except as otherwise provided” clearly indicates that the list of situations in which the trial may proceed without the defendant is exclusive and not left to the conjecture of the Court or prosecution.
The circumstances and facts surrounding the purported conviction may leave room for an action under Article 1 and 2 (1) of the 1992 Constitution before the Supreme Court to quash the trial and conviction for being an act that is inconsistent with or in contravention of article 19 (1) and 19 (3) of the 1992 Constitution.