Republic Vrs Obalana [2023] GHACC 298 (4 May 2023)

1 IN THE CIRCUIT COURT HELD AT MPRAESO ON THURSDAY 4TH DAY OF MAY 2023 BEFORE HIS HONOUR STEPHEN KUMI ESQ CIRCUIT JUDGE. COURT CASE NO. B7/65/2023. THE REPUBLIC V SAMUEL OBALANA. JUDGMENT: The Accused has been charged with and put before this court on one count of stealing contrary to section 124 ( 1 ) of the Criminal and Other Offence Act, 1960, Act 29, as amended. Per the particulars of offence as contained on the charge sheet, the Accused is alleged to have dishonestly misappropriated a Chevrolet Matiz taxi car with registration number GT 4339-19, the property of Christian Owusu, on 4th day of November, 2022, at Oframanse near Nkawkaw. Upon his arraignment before this court, he pleaded not guilty to the charge. That plea joined issues with the prosecution; which required the prosecution to assume the onus of proof by calling sufficient and credible and admissible evidence to prove the guilt of the Accused beyond reasonable doubt.0 CASE OF THE PROSECUTION: At the ensuing trial, the prosecution called some two ( 2 ) witnesses in their attempt to prove their case against the accused person. The first prosecution witness was Christian Owusu; a driver by trade and resident of Nkawkaw Adoagyiri. He drives a Chevrolet Matiz taxi car with registration number GT 4339-19. He recalled that at about 12:00am on 4th day of November, 2022, he was in charge of his taxi from Oframanse to Nkawkaw, along the main Accra to Kumasi highway. He was hired by the Accused, who asked him to take him to Nkawkaw Central Market from Oframanse. However the PW1 told the court that after about some five minutes into the journey, the Accused asked him to stop, which he obliged. He then saw the Accused walking away without paying for his fare. That compelled him to also alight from the taxi to go after the Accused to demand his fare but without removing the ignition key. According to him, the Accused next suddenly ran into the taxi and locked up all the doors to prevent him from accessing his car. After that, the Accused sped off towards the Accra road. PW1 added that he raised an alarm for assistance and that the Accused upon reaching a section of the road at Nkawanda No. 2 had an accident. A witness who came upon the incident found and arrested the Accused and finally handed him over to the Nkawkaw Divisional police patrol team. The second prosecution witness was Detective Chief Inspector Isaac Opoku of the Nkawkaw Central CID. He testified that on 4th November, 2022, he had been detailed to perform duty at the charge office between 12:o’clock noon to 6:00pm. While there, the Complainant came to the station to lodge a complaint of stealing involving the the Matiz taxi car against the accused. During his investigations, he took statements from the Complainant and another witness by name of Bamfo Collins. The Accused was later brought to the station by the police patrol team. He further told the court that on the same date, he visited the scene of the alleged crime for further investigations and took photographs of the scene in the company and presence of the Accused and the PW1. Meanwhile, the police investigator also tendered into evidence the following documents in support of the case of the prosecution: They were copies of the audit report prepared by the accused and the PW1 as Exhibits A and A1 respectively; while cautioned statement and charge statement of the Accused were Exhibits B and B1 respectively. CASE OF THE ACCUSED PERSON: The court, at the close of the case of the prosecution, was satisfied that the evidence as adduced by the prosecution, had succeeded to establish a prima facie case against the Accused on the count against him. The court therefore called upon and asked the Accused to open his defence on the count in order to avoid a ruling of the court on the sole count against him. This position is statutorily provided for under section 174 of the Criminal Procedure Act, 1960, Act 30, as follows: “ “At the close of the evidence in support of the charge, if it appears to the court that a case is made against the accused sufficiently to require him to make a defence, the court shall call upon him to enter into and shall remind him of the charge and inform he that, if he so desires, he may give evidence himself, or make a statement…” In his sworn defence, he stated that is a graphic designer who lives at Nungua in Accra. According to him, he had gone with some friends of his from Accra to Kumasi for a party and they came to a field in Kumasi where some men who were playing football on the filed gave him some substance to smoke. He explained that unbeknownst to him, the said substance had been mixed with cocaine. He continued to state that after smoking the substance, he could not control himself. He next found a taxi to take him to the Accra station at Nkawkaw. On the way, he asked the driver to stop, which he did. He then entered the driver’s seat to drive the car but did not know what he was doing all that while. According to him, the car ended up in a ditch, after which he came out and stood by the road side and was eventually arrested by the police. Meanwhile, as it is my duty as the trial judge to consider any explanation or defence of the Accused, I also looked at the cautioned and charge statements of the Accused. In the cautioned statement- which the Accused had relied on in his charge statement- the Accused essentially corroborated the version of events given by the PW1 in court. In addition, the Accused did not state anywhere that he had traveled to Kumasi and did not also state that he had committed the act after smoking any substance that had been mixed with cocaine. The Accused did not call any witness. EVALUATION OF EVIDENCE AND APPLICATION OF THE LAW: ISSUE FOR DETERMINATION: On the whole of the evidence before the court at the end of trial, the sole question for determination is whether or not the prosecution succeeded to establish or prove the guilt of the accused person beyond reasonable doubt that he stole the Chevrolet Matiz taxi car on the date and scene in question. ADDRESSING THE ISSUE: In determining the above issue, I will look at the various pieces of evidence as adduced by the prosecution witnesses and indeed on all the evidence including the defence of the accused persons before the court to determine that. Ultimately, I am thus to make a finding or decision whether or not the above crimes were committed by the accused person herein or otherwise. That is in conformity with the duty a trial judge in a contested matter- such as this one- assumes to make findings of fact of primary facts in dispute based on the two versions of the story before it. See the case of Quaye v Mariamu ( 1961 ) GLR 93, SC; where it was held by the Supreme Court of Ghana as follows as to the duty of a trial judge in a contested matter like this one; “To make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only then that this court can properly found or the inference properly drawn or the law properly applied”. As has been said above, the accused person came to the court and pleaded not guilty on the charges. The effect of her plea was as follows in law, especially in a criminal case of this nature: “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. See section 15 of the Evidence Act, 1975, NRCD 323. It may also be important to mention section 11 ( 2 ) of the Evidence Act, NRCD 323, which provides as follows:- “11(2) in any civil or criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt.” Meanwhile, in terms of judicial pronouncements on this burden and standard of proof in criminal trials, in the case of Donkor v The State [1964] GLR 598, SC, it was held inter alia by the Supreme Court of Ghana that in criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused is generally on the prosecution, which burden must be discharged beyond reasonable doubt. This burden of proof that the prosecution must satisfy in the present proceedings was famously captured in the following ipsissima verba of Viscount Sankey, LC in the case of Woolmington v. DPP (1935) AC 462. The learned Lord Chancellor delivered of himself thus; “No matter what the charge or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained….”. In order to satisfy the Constitutional, statutory and Common Law threshold of proof beyond reasonable doubt, the law is that “the prosecution has a duty to prove the essential ingredients of the offence with which the appellant (accused) and the others have been charged…” See the case of Frempong alias Iboman v The Republic [2012] 1 SCGLR 297, SC per Dotse JSC. It is instructive to state that for the purposes of addressing the issue, it is necessary that this court to set out in some reasonable detail the essential ingredients of the offences in question; which will be related to the facts and evidence before the court in this case, based on which would determine to what extent and degree the prosecution was able to prove their case against the Accused on the stealing charge. Section 124 (1) of Act 29/1960 creates the offence of stealing. It states that “a person who steals commits a second degree felony”. However, section 125 of Act 29/1960, defines the offence of stealing under our statute: Stealing is defined under that section as; “A person steals who dishonestly appropriates a thing of which that person is not the owner”. In the case of Brobbey and Others v The Republic [1982-83] GLR 608, Twumasi J ( as he then was ) stated the essential elements of stealing under Ghana laws were stated to be as follows: (i) The person charged must have appropriated the thing allegedly stolen. (ii) The appropriation must be dishonest (iii) The person charged must not be the owner of the thing allegedly stolen. So, the main two (2) conditions that must exist or be established in a case of stealing is dishonesty and appropriation; or dishonest appropriation. In the case of Anang v The Republic [1984-86] 1 GLR 458, dishonesty in the offence of stealing was stated to connote “moral obloquy ……. such a nature as to cast a slur on the character revealing him as a person lacking in integrity or as a plainly dishonest person….” Meanwhile, appropriation is defined under section 122 (1) of Act 29/1960 (supra) to mean “dealing with the thing by the trustee, with the intent of depriving a beneficiary of the benefit of the right or interest in the thing, or in its value or proceeds, or a part of that thing”. I will now look at, scrutinize and evaluate the evidence adduced by the prosecution as well as the evidence adduced by the Accused as well as the exchanges during the cross-examinations and then determine if they proved a case of stealing against the accused beyond reasonable doubt. In doing that, I will take and resolve each of the three ( 3 ) ingredients of the offence of stealing in turn and then determine if the prosecution proved them. It is instructive to note that the failure of the prosecution to prove even one of the above-mentioned ingredients will be fatal to their case against the Accused. So that if the first ingredient is not proved, that would end further consideration of the remaining two ingredients of the offence. See the dictum of Koranteng-Addow J ( as she then was in the case of Antwi and Another v The Republic; Unreported; delivered on 7th April, 1971. I will first deal with the ingredient that the Accused must not be the owner of the property or specifically the amount of money in question. As it has been found from the elements or ingredients of stealing above, the prosecution only has to adduce evidence to show that the property or item in question did not belong to the accused person and that it could have belonged to anyone in this world apart from the accused person herein. In the case of Republic v. Halm and Ayeh-Kumi, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) C. C. 155, the full bench of the Court of Appeal, speaking through Amissah JA ( as he then was ) held inter alia that “The primary relationship for consideration in a charge of stealing is not so much a relationship between the person charged and some other, identified as owner, as a relationship between the person charged and the thing alleged stolen. This is the approach of our law and it is also the approach which influenced the early development of the common law of larceny in England”. It is therefore unnecessary to prove the ownership or value of the thing. Thus, in the criminal case of R v. HALM [1969] CC 155 it was held that a charge of stealing is not founded on a relationship between the accused and an identified owner of the thing allegedly stolen, but rather on the relationship between an accused and the thing alleged to have been stolen. From the facts and evidence adduced at the trial, there is no dispute that the Chevrolet Matiz taxi car in question belongs to and is the property of the PW1. There is no dispute that the Accused is not the owner of the taxi car and by extension. To put it differently, the Accused has not stated that he owns the taxi car or that he was entitled to it. In the light of that, I find and hold that the prosecution succeeded to prove the first ingredient of the offence of stealing; that is that the Chevrolet Matiz taxi car in in question did not belong to the accused person. I now proceed to address the remaining two ingredients of the stealing offence; which are whether or not the accused person appropriated the taxi car of the PW1 and whether the said appropriation, if any, was dishonest. I have decided to resolve the two issues jointly and together as one as they appear to flow from each other, while looking out for their distinctive elements. From the above definitions and ingredient of appropriation and dishonesty, and relating same to the evidence before the court, it is not in dispute that the accused person took or moved the Chevrolet Matiz taxi car of the PW1 or dealt with it, to constitute or suggest appropriation. Section 122 ( 2 ) of the Criminal Offences Act 1960 explains what constitutes an act of appropriation as; (2) An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” The offence of stealing within our jurisprudence requires for the prosecution to adduce credible and admissible and quality evidence beyond reasonable doubt of specific misappropriation to sustain a conviction. In that sense, stealing or appropriation cannot be at large, speculative and presumptuous. In doing that it is useful to remind ourselves about the explanation given in the commentary to section 11 ( 4 ) of the Evidence Act in respect of the burden of producing evidence: “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps the test of sufficiency. It is for this reason that the phrase “ on all the evidence” is included in each of the tests of sufficiency”. The Accused in his own unsworn cautioned statement and sworn statement ( testimony ) in court admitted entering the car of the PW1, locking the doors and moving the car from some distance on the Nkawkaw to Accra road before he was involved in an accident. The taking and movement of the car thus established or satisfied the element of appropriation in the offence of stealing. I hold so. In terms of the element of dishonesty, the court finds that the Accused although initially entered the car with the consent of and agreement with the PW1, however later asked the PW1 to stop the car; and after getting down from the car, then went to sit at the driver’s seat, locked the doors and moved the car alone without the PW1 for some reasonable distance before he had an accident with the car. I find that the Accused moved or dealt with the car without the consent of the PW1 or anyone who had the power to give such a consent and that he also moved or drove the car without any claim of right. Section 120 of the Criminal Offences Act, 1960 Act 29, which defines what constitutes dishonest appropriation is relevant at this juncture; (1) “An appropriation of a thing is dishonest; (a) if it is made with an intent to defraud, or (b) if it is made by a person without a claim of right, and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is trustee or who is owner of the thing or that the appropriation would, if known to the other person, be without the consent of the other person. “ In the opinion of the court, the evidence adduced by the prosecution at the close of their case- including the admissions of the accused person- showed a strong case of appropriation and dishonesty by the accused person in his dealing with the car from the time he entered it, locked the doors, moving the car and driving for some time or distance until the accident. Consequently, it is my considered opinion that the evidential burden had shifted unto the accused person to offer reasonable explanation as to how he dealt with or drove the car; especially in terms of showing that he used the car of the PW1 with the intention that the PW1 may be deprived of the benefit of the ownership of the taxi car, or of the benefit of the right or interest in the taxi, or in its value or proceeds, or part of the taxi car; or to show that he used and dealt with the money with a claim of right, or with the consent of the PW1 or with no intention to defraud the PW1 of the car as provided for under sections 120 and 122 of the Act 29 ( supra ). In other words, for the accused persons to show that he dealt with or moved or used the taxi car devoid of any dishonesty. In the case of Republic v Yiadom ( 2001-, 2002 ) 1 GLR 558, Quaye J ( as he then was ), held as follows which I I believe applies to the facts of this case with equal force; “….. However, where the person charged is established to have specifically misappropriated any money dishonestly, he can appropriately be charged and convicted of stealing. Whenever the prosecution succeeds in showing how the money got missing, the onus would shift onto the accused to offer an explanation. In this case the appellant did not offer any explanation…”. In this case, can it said that the accused person succeeded to not only offer an explanation but more importantly offered reasonable explanations for dealing with or moving the taxi car of the PW1 to raise any reasonable doubt of an intention to defraud ( animus furandi ). At that stage therefore, there was a need for the Accused to give reasonable explanation for his actions. In that regard, as the trial judge, I am to consider the defence or explanations of the Accused; especially after the determination that there is a prima facie case against him. And that I am to answer if the explanation given by the Accused is reasonably probable or reasonably true and by extension if it raises a reasonable doubt in my mind as to her guilt, even if I did not believe the explanation. In the case of THE REPUBLIC v. FRANCIS IKE UYANWUNE [2013] 58 GMJ 162, C. A, it was held per Dennis Adjei J. A that; “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non- production of evidence and/ or non- persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted, and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three- tier test”. Let me begin by saying that the explanation or defence of the accused person appeared to be conflicting or contradictory as the court has observed above within the very context and scope of his unsworn cautioned statement and his sworn evidence-in-chief in court. For while in his unsworn cautioned statement he had admitted or suggested entering the car and moving the car with deceit and without the consent of the PW1 and showed every intention of making away with the car until he was involved in the accident. However in his sworn evidence-in-chief in chief, although he admitted putting up all the above acts without the consent of the PW1, he however raised the defence that he had entered and driven the car unintentionally and specifically under the influence of some substance mixed with cocaine that he had been given by some persons he had earlier on met at a football park in Kumasi. From the above two species of defences or explanations given by the Accused, I hold that some two legal consequences arise. The first is that the conflicting or contradictory statements of the Accused on the same facts or issue at two different points in time- that is at the police station and in court respectively- made him not to be creditworthy and which by extension entitles a court to disregard his evidence. In the case of Gyabaah v. The Republic [1984 – 86] 2 GLR 461 it was held that the law was that a witness whose evidence on oath was contradictory of a previous statement made by him or her, whether sworn or unsworn is not considered to be worthy of credit where he was given the opportunity to explain the contradictory fails to explain. In this case, the Accused failed to offer any reasonable explanation for the inconsistency or conflict between his two statements when he was confronted with them at the trial and before judgment. The second legal effect was that he had asserted as a defence that he had been given some substance mixed with cocaine by some persons in Kumasi and thus did not know what he was doing or had done. That appears to be a defence of intoxication. It has been said that the prosecution generally assumes the burden of proof. However that is not always the case; as the law provides for some specific exceptions to the general rule. Such exceptions under the law- resulting in what is known as onus reversal- include the defences of insanity, intoxication, self- defence, alibi amongst others, which require an accused to assume the evidential burden on them. In this case, the Accused has raised the defence of intoxication based on the above-mentioned claims that he had been given and had ingested some substance mixed with cocaine by some persons in Kumasi. These positive assertions of the Accused for his defence had been roundly denied by the prosecution. At that point therefore, the evidential burden had shifted unto the Accused, who was required to have called evidence to discharge the presumption of guilt against him at the close of case of the prosecution. This was necessary because those facts were not only capable of proof but were facts or matters peculiarly within the knowledge of the Accused, for which he was required to have called corroborative evidence of those positive assertions on the defence of intoxication. From the evidence, Accused is a Nigerian but was ordinarily resident at Nungua in Accra at the time of the incident. However, he had explained that he had traveled to Kumasi with some friends of his for some party and that while there, they had gone to some football park where some men at the park had given him some substance mixed with cocaine that affected his mental state. I find that the burden of proving the said intoxication was on the accused person. The reason for this provision is not far fetched. There is a presumption of sanity in favour of every person. Thus, if an accused person says he was insane at the time of commission of the offence for which he is standing trial, or that he was so intoxicated to such an extent that he was not the master or controller of his senses at the time he committed the offence, the onus of proving these defences is on him. For the law as was held In R v Turner [1816] 5 M and S 206 at 211; per Bailey J ( as he then was) is that; “I am of the same opinion. I have always understood it to be a general rule, that if a negative averment be made by one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative”. Within our Ghanaian criminal jurisprudence, the above principle of law has been famously held in the case of Salifu and Another v The Republic ( 1974 ) 2 GLR 291; where Ata-Bedu J ( as he then was ), held at holding 2 of the case thus; “The law, in cases where knowledge of a fact was peculiarly within the knowledge of an accused person a negative averment was not to be proved by the prosecution but on all the contrary, the affirmative must be proved by the accused as a matter of defence. If the first appellant said he had exhibit B as the written authority from the fourth prosecution witness then the burden of proving this, in the light of the above principle of law, lay on him and it was not for the prosecution to prove the negative…”. In ABODAKPI v. THE REPUBLIC; (Criminal Appeal No. H2/6/2007 dated 20th June 2008), the Court of Appeal, held that; “…It is trite learning that ‘’where knowledge of a fact was peculiarly within the knowledge of the accused person a negative averment was not to be proved by the prosecution but on the contrary the affirmative must be proved by the accused as a matter of defence”. Section 28 of Act 29, which deals with the defence of intoxication under our law provides as follows: “28. (1) Save as provided in this section, intoxication is not a defence to any criminal charge. (2) Intoxication is a defence to a criminal charge if by reason thereof the person charged at the time of the act complained of did not know that the act was wrong or did not know what he was doing and— (a) The state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person, charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act. (3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) the accused person shall be discharged, and in a case falling under paragraph (b) the special verdict provided for by the Criminal Procedure Code, in the case of insanity shall apply. (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.” In the case of Kuma v The Republic ( 1967 ) GLR 732 at 736, Ollenu JA ( as he then was ), held as follows on the defence of intoxication under section 28 of Act 29 ( supra ); “Intoxication is a defence to be established, though the onus of establishing it is very light. And whether or not intoxication exists is a question of fact and based upon the evidence. In the present case the defence of intoxication was not raised; nevertheless, the law is that if there is some evidence, whether led by the prosecution or the defence or both, from which it may appear probable that the appellant might have been intoxicated at the time of the offence, the trial judge would, in law, be bound to address the jury on it; his failure to do so may be fatal to a conviction…”. The subsections of section 28 contemplate two degrees of intoxication: (1) intoxication which is of such a degree of severity as to render a person insane, temporarily or otherwise, and (2) intoxication of a degree and kind which, though it may fall short of insanity, may still be of such a severity as to render a person incapable of forming an intent; where therefore an offence may only be committed with a particular intent, proof that an accused was so drunk as to be incapable of forming the intent for the commission of the particular offence, would warrant acquittal. But in cases where intent is not essential to constitute an offence, proof of intoxication, is immaterial…”. In this case, the Accused failed to adduce or put before the court any credible evidence from which it could have reasonably be inferred that he had taken any substance which was mixed with cocaine and that he had been intoxicated thereby. He failed to call evidence to support that he even took a substance mixed with cocaine. Anybody in the position of the Accused can say that as a defence. The court finds it surreal or unsatisfactory and even not reasonably probable how he knew that the substance was mixed with cocaine of all substances in this world. For if that was the first time he had taken cocaine by whatever means, how was he able to know it was cocaine of all substances in the world? And assuming his assertion is true, he then would have known that the substance he was taking at that time was cocaine and he ought to have known the natural reaction or consequence of taking cocaine to his body. That will suggest that he voluntarily took the substance knowing what it was and its natural or reasonable reaction to his body. That is voluntary intoxication and that cannot be a valid defence for his subsequent actions. Still, the court finds that assuming his story is true, I hold that the mere fact that he took cocaine in Kumasi- which is a couple of hours from the place of the incident- before the incident is not alone enough evidence from which it may be concluded that he was so under the influence of that narcotic substance so as to be incapable of forming the intent to commit a crime at the time of the commission of the offence. In other words, his explanation or evidence cannot be reasonably probable and acceptable when the evidence does not know show the quantity of the drug he ingested, and also the period of time between the ingestion of the said cocaine and when the incident happened and whether or not at the time of the commission of the offence, the said narcotic drug operated on his mind. The defence or explanations of the Accused are total or complete fabrications. Especially, when he did not raise that defence when he gave his cautioned statement on the following day. He waits until the trial and then he brings that up. He had taken cocaine but could find the way to a bus station in Kumasi and he could alight at Oframanse of all places- for someone who lives in Accra- then at Oframanse, have the clarity of mind to hail a taxi to be taken to Nkawkaw Central Market; then ask the driver ( PW1 ) to stop along the way, he alights from the taxi and makes attempt to run away without paying for the fare, then comes back to the car, locks the doors, and then speeds off with the car heading towards Accra, only to be curtailed by an accident and the Accused wants the court to believe that he was not in control of his mental faculty ? In the light of the above, I find the explanation of the Accused not reasonably probable or reasonably true; and further hold that he failed to raise a reasonable doubt in the mind of the court as to his guilt on the one count of stealing. His explanations were in the nature of fanciful possibilities; only meant to deflect the course of justice as warned by Lord Denning in Miller v. Minister of Pensions [1947] 2 All ER 372 In the end, I find that the prosecution succeeded to prove beyond reasonable doubt that the Accused stole the Chevrolet Matiz taxi car of the PW1. The Accused is therefore convicted and found guilty on the count. SENTENCING: In determining the appropriate sentence for the convict herein, I have had to consider the authority of Kwashie v The Republic ( 1971 ) 1 GLR 488, which provides for the factors to be considered by a court before imposing the length of sentence on a convict. In that regard, I have taken into consideration mitigating factors such as the youthful age of the convict and his plea for leniency from the dock. The court has also taken into consideration the about six ( 6 ) months that he has spent in lawful police custody after he failed to meet the bail conditions upon being granted bail. See Article 14 ( 6 ) of the 1992 Constitution Despite that, the court also notes the above extenuating factors that go against the convict; in terms of dishonesty and deceit with which he stole the car from the PW1 in a very daring manner in public. His acts were premeditated and professionally designed; such that it would only have taken a real criminal to have planned and executed that, especially at that time of the day and place. He thus deserves some decent custodial sentence to both reform him and to serve as a deterrent; both to him and to other criminal elements within the jurisdiction. The court notes that such offences and modus operandi are becoming prevalent within this area and there is a need to curb or nip them in the bud. To that end, the convict is hereby sentenced to serve forty ( 40 ) months I. H. L on the count without the option of a fine. The convict is hereby informed of his statutory right of appeal if he so wishes. SGD: H/H STEPHEN KUMI (CIRCUIT JUDGE).. s.k.. 15