The Republic Vrs Akrofi Vontier & Anor. [2023] GHACC 109 (27 April 2023)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY, THE 27TH DAY OF APRIL, 2023, BEFORE HER HONOUR AGNES OPOKU-BARNIEH, CIRCUIT COURT JUDGE SUIT NO: D2/23/22 THE REPUBLIC VRS: AKROFI VONTIER TEYE AGBEDAM ACCUSED PERSON PRESENT INSP. EMMANUEL ASANTE FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION FACTS: JUDGMENT The accused person was arraigned before this court on the following charges; Conspiracy to commit crime namely; Robbery contrary to Section 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29) and two counts of robbery contrary to Section 149 of Act 29. The brief facts presented by the prosecution are that the complainants are unemployed and reside at Sege whilst the accused person is a farmer and resides at Toflokpo. The prosecution alleges that on the 5th day of June, 2022 about 7:00pm the accused person and his accomplice, currently at large, were on board a Sanya motorbike in Sege Township and when they saw the complainant Awudi Cynthia Alormefa at Pentecost Church Junction, the accused person pointed a knife at her and snatched her Lenovo mobile phone with her Voters Identity card inside the phone case and sped off. The prosecution further alleges that the accused person and the suspect at large proceeded to Togblokukope where they pointed a knife at Janet Kartey and snatched her Huawei mobile phone. The complainant shouted for help and with the help of neighbours, the accused person was arrested. A search was immediately conducted on the accused person and the Huawei phone and Lenovo mobile phones were found on him and handed over to the police. The complainant Awudi Cynthia Alormefa, heard of the arrest of the accused person, on 6th June, 2022, she went to the Police Station to identify her Lenovo mobile phone snatched from her by the accused and his accomplice on the 5th day of June, 2022 at about 7:00pm. According to the prosecution, during investigations, the accused person mentioned the name of one Teye Agbedam as his accomplice and led the police to the place of abode of his accomplice and met his absence. Efforts are underway to get the accomplice arrested. After investigations, the accused person was charged with the offences and arraigned before this Court. THE PLEA The self-represented accused person pleaded guilty on counts 1 and two and not guilty to count three. When the court enquired from the accused person whether he understood the import of the guilty plea, he stated on record that he committed the offence but he did not use knife as alleged by the prosecution. In view of the equivocal plea of guilty on the first two counts and a plea of not guilty on the third count, the court entered a plea of not guilty on all three counts for the prosecution to prove the guilt of the accused person beyond reasonable doubt. On 7th November, 2022, the prosecution prayed the court to withdraw count three of the charges and same was struck out as withdrawn. The case proceeded to trial on the two remaining charges. BURDEN OF PROOF It is trite learning that a person charged with a criminal offence is presumed innocent until he has pleaded guilty or proven guilty. See Article 19(2)(c) of the 1992 Constitution. The burden and standard of proof required of the prosecution in criminal cases is codified in the Evidence Act, 1975, (NRCD 323), section 11 (2) and 13 (1) which respectively provides as follows: — "11(2) In a criminal action, the burden of producing evidence when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt." Section 13 (1) "13(1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt." In the case of Oteng v. The State [1966] GLR 352 at page 354 -355, the Supreme Court held: “One significant respect in which our criminal law differs from our civil law is that while in civil law a plaintiff may win on a balance of probabilities, in a criminal case, the prosecution cannot obtain conviction upon mere probabilities… The citizen too is entitled to protection against the State and that our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt.” The term "reasonable doubt" as explained by Lord Denning in the case of Miller vs. Minister of Pensions (1947) 2 All ER 372 is as follows; "It needs not reach certainty but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Law would fail to protect the community if it admitted fanciful positions to deflect the course of justice" ANALYSIS Here, the accused person is charged with conspiracy to commit crime; namely robbery, contrary to section 23(1) and 149 of Act 29, and the substantive offence of robbery contrary to section 149 of Act 29. Section 23(1) of Act 29, provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” The essential ingredients of the offence which the prosecution must prove to succeed on as stated by Kyei Baffour JA sitting as an Additional High Court Judge in the case of Republic v. Eugene Baffoe Bonnie (unreported); Suit No. CR/904/2017 delivered on 12th May, 2020, are as follows: i. That there were at least two or more persons ii. That there was an agreement to act together iii. That the sole purpose of the agreement to act together was for a criminal enterprise. In the case of Faisal Mohammed Akilu v. The Republic [2017-2018] SCGLR 444 the Supreme Court per Yaw Appau JSC stated the current Ghanaian Law on Conspiracy as follows; “Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime” For ease of discussion, it is necessary that I set out the law on the substantive offence of robbery. Section 149 (1) of Act 29 as amended by the Criminal Code (Amendment) Act 2003 (Act 646) provides as follows: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction and trial summarily or on indictment, to imprisonment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years”. Section 150 of Act 29 defines robbery as follows: “A person who steals anything commits robbery, a) If in and for the purpose of stealing the thing, that person uses force or causes harm to any other person or b) If that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing’. In the case of Promise Emeka v. The Republic [2020] DLCA, the Court of Appeal Per Opoku-Acheampong JA identified the essential ingredients of a charge of robbery, which the prosecution must prove to succeed as follows; i. ii. That the accused person stole from their victim That in stealing from the victim, the accused persons used force, threat, and criminal assault or caused harm to the victim. iii. That the accused persons did so with the intent to prevent and overcome any resistance from the victim to the stealing of the items. . To prove their case, the prosecution called one witness and tendered in evidence Exhibit “A” and “A1”, photographs of the mobile phones, Exhibit “B’, a photocopy of the Voter I. D. Card of Awudu Cynthia Alormefa The sole prosecution witness, D/Sgt Naazah Nashiru stationed at the Sege Criminal Investigations Department testified that on the 4th day of June, 2022, the accused person was arrested and brought to the station together with a Huawei and Lenovo mobile phones by one Janet Kartey and the town folks that the accused person snatched the complainant’s phone from her whilst on a motorbike with one other. When they conducted a search on the accused person, they found complainant’s phone, a Lenovo phone and a Voter I. D Card bearing the name Awudi Cynthia Alormefa on the accused person. Upon receipt of the complaint, the case was referred to him for investigations. The accused person was re-arrested and detained whilst the Huawei, Lenovo and the Voter’s Identity card were kept for evidential purposes. On 5th June, 2022, Awudi Cynthia Alormefa heard of the arrest of the accused person at the Sege Police Station and she came to identify her Lenovo mobile phone and Voter’s Identity Card that was at the back cover of the said phone the accused person snatched from her when he threatened to stab her with knife with his accomplice. He tendered the photographs of the phones admitted and marked as Exhibit “A” series. A copy of the ID Card bearing the name of Awudi Cynthia Alormefa was admitted and marked as Exhibit B. He also tendered in evidence the investigation caution and charge statements of the accused person admitted and marked as Exhibits “C” and “D respectively. The prosecution did not call the said Cynthia Awudi Alormefa whose Lenovo mobile phone and identity card were allegedly found on the accused person at the time of the arrest to testify that the accused person used knife to overcome her resistance in taking the phone. The evidence of PW1 regarding how the phone was snatched from the said victim is therefore hearsay and the court has a statutory duty to exclude same in evaluating the evidence before the court. The evidence admissible evidence of PW1 is essentially that the accused person was arrested and brought to the police station with a complaint of having robbed two people of their phones and upon a search on him immediately, the phones and the ID card were found on him. The evidence is also that the accused person in his investigation caution statement admitted the offence. In the investigation caution statement, the accused person stated that he is a farmer and resides at Toflokpo. On the 5th day of June 2022, about 7:00pm, one Teye Agbedam and himself were from Battor heading towards Adjurmamikope using a Sanya motorbike. On reaching Sege, the suspect at large, Teye Agbedam asked that they use the Wonya junction rather than Pentecost junction road. When they got to the Pentecost junction, they saw two women standing and one person’s phone light was on. Teye Agbedam who was riding the motorbike stopped and asked him to take the phone from her. He then took the mobile phone from one of them and the women raised an alarm and Teye sped off. On their way going, when they got to Torgbliemikope, Teye saw a woman coming to the roadside and he turned the motorbike, approached her and they took a Huawei phone from her. She shouted for help and people around came with sticks and he was arrested together with the two phones and handed over to the Sege Police. The accused person therefore begged the police for forgiveness. The accused person testified in his defence and called his wife as a witness. The accused person in his testimony denied the charges levelled against him and stated that on the day of the alleged incident, he walked out of his house to the road side to buy something. Before he could buy the thing, a motorbike bypassed him, shortly after that the people raised an alarm and they started beating him. When he asked them of the reasons for the beatings, a man informed him that they are accusing him of being a thief and called the police on phone to come and arrest him. At the police station, some people came claiming that he stole their mobile phones but they did not find anything on him when they arrested him. According to him, at the police station, he gave his statement to the police and after that he was charged and arraigned before the court. Under cross-examination, the accused person denied committing the alleged offence and was insistent that on the day of the alleged incident he was walking alone and that he did not threaten anyone with a knife to snatch their mobile phones until he was arrested and when he was searched the police only found GH¢8.00 on him. The wife of the accused person, Mary Segleme testified that on the day of the alleged incident, she was in the house with the accused person in the evening around 7pm when he informed her that he was going to buy kenkey. When he left, she waited for him and he was not coming so she slept. The following day, she went in search of the accused person and a neighbour informed her that her husband had been arrested by the police. She proceeded to the police station to look for him. When she saw the accused person, he told her that he went out in the evening to buy kenkey and the police arrested him that he was a thief. DW1 under cross-examination by the prosecution testified that the accused person is her husband and that she does not know him to be a thief. She was also insistent that she does not know the friend of the accused person that he allegedly engaged in the robbery with. The statement of the accused person contained in his investigation caution statement; Exhibit “C’ is inconsistent with the defence put up by the accused person. It is trite learning that a person whose testimony on oath is inconsistent with a prior written statement is not worthy of belief. In the case of Yaro & Anor v. The Republic [1979] GLR 10-22, the court held in its holding 2 that: “A previous statement made by a witness to the police which was in distinct conflict with his evidence on oath was always admissible to discredit or contradict him and it would be presumed that the evidence on oath was false unless he gave a satisfactory explanation of the prior inconsistent statement. A witness could not avoid the effect of a prior inconsistent statement by the simple expedient of denial. Where the witness did not distinctly admit that he had made such a statement, proof could be given, as in the instant case, that he had in fact made it.” The statement of the accused person contained in his investigation caution statement is consistent with his statement when he appeared before the court and pleaded guilty in respect of the first and the second counts but explained that he did not use knife. The evidence led by the defence shows that the accused person was indeed at the scene of the crime and at the time the incident is alleged to have happened in the case of State v. Otchere [1963] 2 GLR 463, the court held in its holding 7 that: “A confession made by an accused person of the commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused.” In the case of Billa Moshie v. The Republic [1977] 2 GLR, 418, CA, in its holding 2 stated that: “A conviction could quite properly be based entirely on the evidence of a confession by a prisoner, and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness” In the instant case, the court is satisfied as to the voluntariness of the confession statement given by the accused person at the police station. Throughout the trial, the accused person did not challenge the voluntariness of the confession contained in his statement to the police. The explanation of the accused person as to his reason for pleading guilty simpliciter on the first two counts confirms the statement that he gave to the police and he maintained that he did not use knife in both his statement in Exhibit “C” and what he told the court on record. The accused person was able to recount the role that he and his accomplice played in the commission of the offence. The defence put up by the accused person that he is a victim of circumstances and that he knows nothing about the alleged crime is therefore an afterthought and lacks credibility. On the totality of the evidence led by the prosecution and the defence put up by the accused person, I hold that the prosecution proved their case beyond reasonable doubt that the accused person agreed and acted together with the said Teye Agbedam who is at large to commit robbery and pursuant to that agreement they succeeded in using force to overcome the resistance of Awudi Cynthia Alormefa to dishonestly appropriate her mobile phone and Voter’s ID card. Accordingly, I pronounce the accused person guilty on counts 1 and 2 and convict him of same. SENTENCING In sentencing the accused person, the court takes into consideration his plea in mitigation, the fact that he is a first -time offender, the youthful age of the accused person and the fact that the mobile phone was retrieved was retrieved in good condition. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody is considered. The court also takes into consideration the fact that no physical harm was caused to the complainant and the prosecution failed to prove the use of offensive weapon in the commission of the crime. I therefore sentence the accused person as follows; Count 1: The accused person shall serve a term of imprisonment of ten (10) years in hard labour. Count 2: The accused person shall serve a term of imprisonment of ten (10) years in hard labour. The sentences shall run concurrently. RESTITUTION ORDER In accordance with section 146 of the Criminal Procedure and Other Offences Act, 1960(Act 30), the mobile phone and the Voter’s ID Card retrieved from the accused person should be released to the complainant Cynthia Awudi Alormefa. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 11