REPUBLIC VRS KUMASI (B1/21/22) [2023] GHACC 1028 (20 July 2023)

IN THE CIRCUIT COURT HELD AT TARKWA IN THE WESTERN REGION ON THURSDAY THE 20TH DAY OF JULY, 2023 BEFORE HER HONOUR HATHIA AMA MANU, ESQ., CIRCUIT COURT JUDGE COURT CASE NO. B1/21/22 THE REPUBLIC VRS. 1. 2. 3. 4. RICHARD KUMASI FIAMAHE JERRY JOHN KORBLAVI KUMASI VICTOR DANIEL AFENU 5. MATTHEW GEDIE JUDGMENT Accused Persons – Present. Maara Pelpuo and Kingsley Agyekum for Prosecution. Accused’s Counsel – Augustine Arvo Mensah. All the accused persons stand charge for the following offences of which they pleaded Not guilty. (1) Conspiracy to commit crime to wit undertaking small scale mining without authority contrary to Section 23 (1) of the criminal offences Code 1960 Act 29 and Section 99 (2) (a) Of the Mineral and Mining Act 206, Act 703 as amended by Section 3 of Act 995 of 2019. (2) Undertaking small scale mining without authority contrary to Section 99 (2) (a) of the mineral and mining Act 206, Act 703 as amended by Section 3 of Act 995 of 2019. The facts supporting the charge against the accused persons are to the effect that, the complainant in this case Nana Yaw Baako is the Assembly man of Himan Electoral Area whilst the accused persons are illegal miners residing at Ankobra near Prestea. On 17/08/2021 about 3:00pm, complainant accompanied by five opinion leaders had an information that the accused persons went together to mine with their illegal mining dredge popularly known as “Boat” in the River Ankobra. Base on the information received, the complainants proceeded to the scene at Kpoviadzi village and met the accused persons seriously mining gold in River Ankobra with the dredge machine. They were arrested and the dredge machine was set ablaze. Later, they were handed over to the police, Prestea for investigation. Burden of proof in criminal trials: It is trite learning that in criminal trials the burden of proof against an accused person is on the prosecution. The standard of proof to be executed by prosecution is set as proof beyond reasonable doubt. Section 11 (2) of the Evidence Act 1975 (NRCD 323) enunciates that: “In a 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 a fact beyond a reasonable doubt”. The accused person on the other hand when the burden is shifted is expected to adduce evidence to establish reasonable doubt to prove his innocence. In the case of Miller Vrs. Pensions [1972] 2 All ER 372, Lord Denning explained proof beyond reasonable doubt as: “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 possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. Thus one can boldly state that the standard on prosecution requires that the ingredients of the offence are duly satisfied before the court. Speaking on the burden of proof on the accused person(s) Section 13 (2) of the Evidence Act 1975, NRCD 323 states that: “Except as provided in Section 15 (c) in a criminal action, the burden of persuasion when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt”. See the following cases on the burden of proof on prosecution: 1. Dexter Johnson Vrs. The Republic 2011 2 SGLR 601. 2. Frimpong a.k.a Iboman Vrs. The Republic 2012 1 SCGLR 297. Definition of Conspiracy to commit crime to wit illegal mining and illegal mining. Section 23 (1) of the criminal offence Act, Act 29 states: “Where two or more persons agree to act together with a common purpose or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence” Section 99 (2) of the Mineral and Mining (Amendment) Act 2019, Act 995 provides: a. A person who without a license granted by the minister undertakes a mining operation contrary to a provision of this Act. b. Acts or instigates, commands, counsels, procures, solicits or in any manner purposely aids, facilitates, encourages or promotes any acts in contravention of a provision of this Act in respect of which a penalty has not been specified or. c. Contracts a non-Ghanaian to provide mining support services commits an offence and is liable on summary conviction to a fine of not less than ten thousand penalty units and to a term of imprisonment of not less than fifteen years and not more than twenty- five years. [EVIDENCE OF THE PROSECUTION AGAINST ACCUSED PERSONS]. Prosecution called 3 witnesses and the first witness to present his evidence was the investigative officer. His evidence was that after the case was referred to him, he visited the scene of the crime. That at the scene he was shown were the accused person had their dredge machine also known as boat in the Ankobra river. PW1 presented the court with a photograph of the crime scene as well as the investigative caution statements and charged statements which were marked as Exhibit A and B series. This witness was cross-examined extensively by the accused’s counsel. Some of the questions asked and responses were as follows: Q. Are you aware of the practice of miners sinking their boats in the river Ankobra. A. No my lord. Q. You are not aware. A. No my lord. Q. I put it to you that it is a practice among galamseyers where they sink the boat for safety sake and when they think it is opportune they come to float it. A. It is my first time hearing it. Q. From your statement you were not there when accused were arrested by assemblyman. A. Yes my lord. Q. A. So you cannot say anything in respect of what transpired. Yes my lord. Q. In paragraph 6 of your witness statement (same read out) I am putting it to you the accused persons never pointed out a section of the river as where they were doing their illegal drilling. A. That is not so. Q. Now according to Nana Yaw Baako immediately they arrested them they burnt the boat. A. Yes my lord. Q. A. Q. A. Therefore there was no boat to be found. There was a burnt boat. You saw burnt wood and took it to be boat. No my lord. Q. What did you see. A. Burnt boat. The line of questions asked were to the effect that the accused persons sank their boat when there was an announcement for the halt of all mining activities and on that particular date they had come to move the boat out. PW1 denied this fact and in his responses stated that Exhibit B series which was the investigative caution statements of the accused persons and which were numbered in order of the accused persons thus: B – A1, B1 – A2, B2 – A3, B3 – A4 and B5 have been studied and I find that all statements were duly recorded in the presence of independent witnesses who stated and signed that same was read back to the accused persons. The content of Exhibit B series was not questioned by the accused counsel and neither was any aspect of the exhibits objected to, the photograph was subsequently marked exhibit E. Prosecution’s next witness was the assemblyman who went with some people to arrest the accused persons. This witness gave evidence that he saw the accused persons on the river Ankobrah at 9:00 am on 17/8/21 and informed the MCE and Nana Nteboah Prah IV about same. He stated that he was tasked so he organized some individuals within the community and together with Nana Mutty Ankomah they went and arrested the accused persons herein. PW2 also stated that they burnt the boat after which the accused were sent to the police station to be re-arrested. The evidence of PW2 is direct evidence as he has held himself out as an eyewitness to the acts done by the accused persons which is criminal in law. The accused persons through their counsel exercised their right to cross-examine and asked this question: Q. In your witness statement paragraph 5 you claim to have organized people to arrest the accused, do you stand by that. A. Yes. The evidence of PW2 as to what he observed that day therefore stands undisturbed and I find no reason to dispute same. The final witness who gave evidence in support of prosecution’s case was Nana Mutty Ankomah. PW3 stated that he was part of those that assisted PW2 to arrest the accused persons who were engaged in illegal mining. During cross-examination one of the focal points of accused counsel’s questions was to the effect that the witness’ mind was prejudiced as he set off to check what was happening on river Ankorah. The witness however denied same and responded that he went with a mission to check what was happening on the river and if same was illegal mining apprehend the suspects and take them to the chief. This witness also mentioned that the accused persons even had a substance popularly called black, that same was even handed over to the police although same was never presented as an Exhibit to this court. That notwithstanding there was no question asked for which the witness presented a response which questions the truthfulness of what he witnessed the accused persons doing on the river Ankorah. Prosecution through its witnesses presented the court with eye witnesses as well as pictures of the scene of the crime. The court being satisfied that a case had been made against the accused persons directed that they open their defence. ANALYSIS OF ACCUSED PERSONS DEFENCE: First accused person presented a witness statement to the court and prayed for same to be admitted as his evidence-in-chief. Although he stated in his witness statement that he is a small scale miner he also gave his profession as a farmer. According to this accused person following an announcement on 17/8/2021 for small scale miners to halt work they sank their boat and on the faithful day, they were mistaken for galamseyers when they went to lift their boat. A1 was asked some very straight forward questions by the prosecutor from which he affirmed that he mines gold without license. He also stated that when people use excavator to mine he goes to work in their pit. Again he was asked: Q. Per your paragraph 4 you have stated that there was announcement that all illegal mining should stop so you decided to sink your boat on river Ankobra. Can you tell this court the purpose of the boat and why river Ankobra. A. The boat is used in mining but because of the announcement we went to sink it and as I said when people with excavator mine we go to their pits. It was due to fear that we sank the boat we were not going to mine. Thus A1 admitted having been on the river Ankobra in a boat used for mining on that day but claims he was not mining. After that A1 informed the court he had no witnesses to call. All accused persons had the same evidence which was relied on and same admitted accordingly. Based on the questions asked all accused persons have not denied engaging in mining activities without license. For purposes of emphasis I would repeat some of the question A2 was asked: Q. A. Q. A. Tell the court why you were arrested. Because the government said all small scale mining activities should halt and we went to sink our boat. We were going to remove our boat and that was when the assemblyman said we were going to work on the river. You were going to remove your boat that is why you were arrested. Yes. Q. You agree with A1 when he says the boat is used in illegal mining. A. We were not using the boat for galamsay it is for small scale mining. Q. What do you mean by small scale and galamsay. Can you tell us the difference. A. Small scale mining also known as alluvial mining is when you use the boat to mine in the pit and do not know anything about galamsay mining. Q. How could you tell the court what you are doing is small scale mining if you do not know what galamsay is. A. The one who made me come to Prestea told me it was small scale mining not galamsay. Q. Mr. Jerry John Fiamahe do you have a license to do small scale mining. A. No my lady. When A3 was being cross-examined he admitted that the burnt boat was his property which he bought with his money. However, when the question was put to him again he stated that someone called him to come and work. It means I did not use my own money to buy the boat. He was also asked: Q. A. In your previous answer you said that you used your own money. I meant my brother bought the boat and called me to come and work. A4 after presenting his evidence on oath gave, the following responses to questions asked during cross-examination: Q. What work do you do. A. I am an Okada rider. Q. A. Q. A. Per your witness statement you are also a small scale miner. Yes. Do you have a license to undertake small scale mining. No. Q. Per paragraph 10 of your witness statement you have been charged for small scale mining without license what do you say. A. I have nothing to say. Q. At paragraph 10(A) you have also been charged for doing this small scale mining with other people A1, A2, A3 and A5 what do you say. A. It was five of us doing the small scale mining. Q. You have stated earlier that you did not have a license does any of them have a license. A. No. A5’s after entering his defence also admitted that he was engaged in small scale mining but as he was called to come and work. He does not know whether the person has license or not but admits he does not have any permit. A5’s final question was: Q. At the same paragraph 10 (A) you have also been charged for doing it with other people is that true. A. Yes I was doing with others. From the evidence and responses presented to the court it is an undisputed fact that all accused persons agreed and worked together to engage in mining practices without license. That to facilitate this agenda they procured the dredge which is popularly called boat for this purpose. The accused persons per their responses were engaged in this form of mining even before the president of Ghana made his announcement. Although the accused persons claimed the boat was not serving any purpose, I am not inclined to believe same because indeed if the accused persons were just working in pits dug by others then they had no reason to be on the river Ankobrah. I find that the accused persons defence have done nothing to cast any light or doubts in the mind of the court as to their guilt on the charges preferred against them. Accused persons were found to have acted together and engaged in mining without permit for which reason they were tagged as illegal miners or galamsayers a fact which was well established by prosecution through its witnesses. Accused persons, you are hereby convicted. There is a perception created that some citizens are engaged in illegal mining because of unemployment, although it may be the case for some people the accused persons before me do not fall within the category. They all gave various professions including farming. They have decided to forgo their trained profession and instead resorted to a journey of acquiring wealth at the risk of destroying the environment. Illegal mining activities are contributors to health and environmental problems. I have considered the fact that the accused persons are first time offenders and I have also considered the seriousness of the crime committed by the accused persons as well as how repulsive their actions which have contributed to destroying our beautiful river Ankobra is to the society. There is a saying that “the earth will not continue to offer its harvest except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generation”. Before I sentence you is there something you would like to tell the court by way of mitigation. Mitigation by accused counsel: We pray the sentencing runs concurrently. Accused persons you are hereby convicted as follows: COUNT 1 A1: 5 years imprisonment. A2: 5 years imprisonment. A3: 5 years imprisonment. A4: A5: 5 years imprisonment. 5 years imprisonment. COUNT 2 A1: 10,000 penalty units or in default 5 years imprisonment plus 20 years imprisonment in hard labour. A2: 10,000 penalty units or in default 5 years imprisonment plus 20 years imprisonment in hard labour. A3: 10,000 penalty units or in default 5 years imprisonment plus 20 years imprisonment in hard labour. A4: 10,000 penalty units or in default 5 years imprisonment plus 20 years imprisonment in hard labour. A5: 10,000 penalty units or in default 5 years imprisonment plus 20 years imprisonment in hard labour. The sentencing is to run concurrently. (SGD.) H/H. HATHIA AMA MANU, ESQ. (CIRCUIT COURT JUDGE) 10