REPUBLIC VRS FYNN (B1/20/22) [2023] GHACC 1024 (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. B1/20/22 THE REPUBLIC VRS. 1. 2. 3. GEORGE FYNN @ PAPA KWABENA EFFAH @ LARGE CHRISTIAN @ LARGE JUDGMENT Accused persons – Present. Bright Baiden for Accused Persons. Maara Pelpuo and Kingsley Agyekum for Prosecution. The accused person stands charged for conspiracy to commit crime to wit illegal mining, contrary to Sections 23 (1) of Act 29 and 99 (2) amended by the mineral and mining Act 2019 and illegal mining contrary to Section 99 (2) of Act 2019. The accused person pleaded not guilty to the charges preferred against him. It is prosecution’s case in support of the charge that the accused person and two others at large named as Effah and Christian went to a site which galamseyers had infiltrated to prospect for gold. The said area is a portion of land under the electricity high tension cable at the outskirts of Esuoso. That the chief had cautioned and banned all illegal mining activities there but on 30/8/2021 at 2:30 am the accused person and his two accomplices currently at large went to the said site and dug three new pits at the same portion where the chief of Esuoso had caused to be filled and warned everyone off. It is asserted that people came to the scene and the accused person (A1), A2 and A3 took to their heels but A1 was apprehended and taken to the chief’s palace. The Chief directed the complainant to report the incident to the police and also present the accused. The Supreme Court in the case of Republic Vrs. Eugene Baffoe-Bonnie and 4 Ors. J1/06/2018 (7th June 2018) upheld, “the right of accused person to have access to all documents in the possession of the prosecution irrespective of whether prosecution intends to rely on same or not. The opinion of the court, expressed through the esteemed Sophia Adinyira JSC, the natural interpretation of article 19 (2) (e) can only mean that an accused person in a criminal trial and whose liberty is on the line has to be given all materials which the prosecution intend to use at trial within a reasonable time, to enable the accused to prepare his defence”. As in all criminal trials the accused person is presumed to be innocent until proven otherwise. Thus the prosecution bears the burden of proving the guilt of accused. Article 19 of the 1992 constitution provides that: “A person charged with a criminal offence shall,…… be presumed to be innocent until he is proven guilty or has pleaded guilty”. The expectation of prosecution is further explained by the following provisions in the Evidence Act, NRCD 323: Section 13 (1) of the Evidence Act provides that: 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 issues require proof beyond a reasonable doubt. Section 15 states that, “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. Again section 17 (2) of the Evidence Act provides that, “the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to the fact”. Prosecution presented the court with five witness statements but called four witnesses out of the five. It is crucial to note that in serious crimes of this nature and in fact in all other criminal trials, the court in evaluating evidence presented focuses on the quality of witnesses called and not the quantity of witnesses presented by the prosecution or defence. The Supreme Court speaking through Justice Jones Dotse in the case of Gligah & Another Vrs. The Republic [2010] SCGLR 870, stated in holding 5 thus: “The Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case. In establishing the standard of proof required in a civil or criminal trial, it was not the quantity of witnesses that a party who had the burden of proof, called to testify, that was important but the quality of witnesses called and whether at the end of the day the witnesses called by the party had succeeded in proving the ingredients required in a particular case”. In other words, the evidence led must meet the standard of proof required in a particular case. If it did, then it would be a clear waste of time to call additional witnesses to repeat virtually the same point or seek to corroborate evidence that had already been corroborated. The investigative officer cast the first dice, he gave evidence on oath that the complainants presented the accused to the police. According to PW1 the accused admitted the offence during interrogation and confirmed that he was working with the accused persons at large. PW1 also visited the scene of the crime and took pictures of the crime scene as well as pictures of pickaxe, a pair of footwear and a pullover found at the scene of the crime. These photographs were admitted into evidence as exhibits. PW1 was extensively questioned by accused counsel to raise doubt as to the evidence presented but same was to no avail as PW1 re-instated his investigative findings by way of responses to the questions. Again accused’s counsel questioned the use of a police officer as an independent witness in taking the accused person’s statement. Legally it is known that confession is an acceptance in words by an accused person (then a suspect) in a criminal charge of the truth of the facts or circumstances governing the commission of the offence. Confession statement can be used to secure a conviction against an accused and it is for this reason that Section 120 of the Evidence Act, NRCD 323 has also laid down a criteria which an independent witness must meet to be considered as qualified. Section 120 (12) of the Evidence Act provides: 120 (1): In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which a. Constitutes b. Forms an essential part of or c. Taken together with other information already disclosed by the accused is a basis for an inference of the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily. Section 120 (2) states: “Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the state unless the statement was made in the presence of an independent witness, who a. Can understand the language spoken by the accused. b. Can read and understand the language in which the statement is made and where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused”. As accused’s counsel question on the statement first accused gave to the police was solely on the fact that the independence witness was a police woman, I will restrict my assessment and determination solely on that aspect. In the case of Ekow Russel Vrs. The Republic, J3/5/2014 dated 13th July, 2016, Justice Akamba JSC discussed the issue of police personnels as independent witnesses. The learned Justice quoted J. Ofori Boateng in his book titled “The Ghana Law of evidence, 1993 and stated that same “provides a useful and beneficial definition of an independent witness against the background of the many difficulties encountered in the earlier attempts at disqualifying members of the police and armed forces as independent witnesses and the requirement that the independent witness be approved by the accused. The present state of the law is that policemen and members of the armed forces are not disqualified per se but they must meet the standard test. Thus the standard for determining qualification of the individual who acted as independent witness in the present, case is strictly based on Section 120 (3)”. From the questions and answers given as well as decided principles I am of the view that, based on D/Sgt. Roberta Kanibine although a police officer had no role in the substantive case and was a qualified independent witness in this case. Again accused counsel put it to PW1 that: Q. The investigative caution statement ascribed as accused’s statement is one which you crafted for him without his input. PW1: No my lord it is the accused’s statement which he volunteered. To this end, the evidence of PW1 as to his investigative findings are acknowledged and accepted by the court as unwilted established facts. Provisions of section 120 of the NRCD are aimed at protecting the accused to a large extent and same cannot also be used to disrupt investigative findings by institutions aimed at fighting serious crimes such as this. The statement given by the accused on the 30th day of August 2021 in the presence of D/Sgt. Roberta Kanibire a police officer against whom there is no evidence of having any connection or interest in this case is admitted as relevant evidence constituting a duly executed confession statement. PW1 also tendered into evidence the charged statement of the accused. This charged statement was also made in the presence of a different independent witness. In this charged statement marked as Exhibit A1, the accused statement is in Twi and same was written for him as follows: “Indeed I went to the site where the Chief of Esuoso had filled and banned galamsey, to dig or do galamsey. My colleagues escaped when the people came to arrest us”. In fact this Exhibit A1 was never questioned or attacked by the accused or his counsel and as same was duly given in compliance with Section 120 of the Evidence Act and the court’s conviction that the accused had given a confession statement was further solidified. Prosecution’s second witness was a unit committee member of Esuoso. He presented a witness statement to the court on oath and stated that he was present when Stephen Antwi and Christopher Amofah and some youngmen presented the accused person as being one of the galamseyers digging under the high tension. While being cross- examined he answered in the affirmative to questions on not having seen the accused digging the pits. As his evidence did not state that he saw accused in the act, I find no reason to doubt his credibility about his evidence presented to the court. PW3 was Christopher Amofah, his evidence was the missing key in this case. Because having been presented with a case of this nature an eye witness such as PW3 who can give direct facts and positively identify accused(s) is crucial. According to PW3 galamseyers had been digging close to the electricity high tension cable, that the Chief had caused the pits to be filled and given a warning through announcements but on 30/8/2021 @ 2:30 am, one Stephen Antwi called him about having seen some boys digging at the spot. According to PW3 he organized some men and together with the Stephen Antwi, they went to the scene but the three men fled. After chasing them A1 George Fynn @ Papa Kwabena was apprehended and sent to the Chief’s palace before being sent to the police station to be re-arrested. This witness was cross-examined as follows: Q. A. Q. A. Q. A. Q. A. You claim those who dug the pit started a while back. They started a year ago. You claim before the accused was arrested they started digging 4 months ago. That is so. Those who started 4 months ago and a year ago you did not mention their names. I did not see them I brought the one I found. You were not the one who saw 3 men mining under the high tension. I saw them. Q. In your paragraph 9 you claim on 30/08/2021 2:30 am one Stephen Antwi alerted you, so you did not see them. A. What I said was that he called and we all went to the site. Q. A. Q. A. Q. A. Q. A. There is no light in the area according to you where the ground had been dug. There is light, there are big light set up there. Those who dug the ground the accused person was not one. He was one. We caught him there. I put it to you that Stephen Antwi was going to ease himself. That is not true. He met the accused easing himself too. It is not true. Q. There are bushes around the high tension so people ease themselves there. A. Who goes to ease himself with a shovel and pickaxe. Q. A. Q. A. Q. A. Accused was arrested with toilet rolls not shovel. It is not true. No shovel was retrieved from accused person. He had a shovel with him. Accused person was at the place to ease himself at the wrong time. It is not true. Q. I am suggesting to you that Stephen Antwi pointed out the wrong person to you to arrest. A. That is not so. Q. A. Q. A. Q. A. If 3 people were digging under the high tension you could not catch them. That is so. Yet you claim you were 10 people yet you could not arrest them. They started running when they saw us. The galamsayers run but the accused was not the one hence why you caught him. That is not true. Q. Before the chief the accused said he went to ease himself and not to do galamsay. A. That is not true. Q. According to Nana Attobrah because he was caught he should be sent to the police. A. That is not true. Q. A. The accused never claimed ownership of the shirt and slippers found at the scene. He agreed and even wore it. The witness’s evidence and responses showed his testimony as credible and same solidified the prosecution’s case in establishing/compounding a case against the accused person. PW4 was the witness that called PW3 to inform him of the galamsay activity under the high tension cable. This witness gave evidence to the court that he saw people with touch lights around the area banned for galamsay. That he informed people and organized them so they visited the scene. According to PW4 they (Accused persons) started running upon seeing them but they managed to arrest A1 (George Fynn). PW4 stated that there were four pits dug and items found at the scene included pickaxe, shirt and a pair of slippers. During cross-examination this transpired: Q. A. Q. A. You are not a member of the committee watch dog. Yes, please. I put it to you that on 30/08/2021 2:30 am you went there to ease yourself. No, please. Q. You agree with me that in your witness statement you did not give any reason why you woke up at that time. A. No, my lady. Q. A. Q. A. Q. A. I am putting to you that the accused person at that time went to ease himself. No, please. You see short, slippers and pickaxe are not used for galamsay. Yes that is what they use. Before Nana Akwasi Attobrah, the accused denied going there to do galamsay. It is not true. Accessing PW4’s evidence as against his answers to questions asked during cross- examination I find that the following facts are established without dispute. ✓ That the accused persons were seen under the electricity high tension cable. ✓ That the accused persons run away when he saw the youth approaching. ✓ That PW1’s exhibit B series depicting the newly dug holes and items found at the scene support the evidence adduced against the accused persons. At end of the trial the court found that a prima facie case had been made against the accused person. As the other accused person had absconded the first accused was directed to open his case. Section 10 (1) of the Evidence Act, NRCD 323 requires that the accused whose burden is to raise doubt as to his guilt is to “raise a reasonable doubt concerning the existence or non- existence of a fact or that he establishes the existence or non-existence of a preponderance of probabilities”. The accused clearly is legally saddled with a light load compared to the prosecution. In his defence the accused while giving his evidence on oath stated that on the said day he went to ease himself when he heard a gunshot that caused him to run. The accused person was cross-examined as follows: Q. What work do you do. A. I am a Welder. Q. Where do you stay and where you stay how far is it. A. It is 30 miles. Q. What is your relation between you and A2 and A3. A. A2 and A3 are my friends. Q. So you want this court to believe that when your stomach was hurting you, A2 and A3 had the same problem and came to the place. A. It is not true. When I went there A2 and A3 were working there. Q. A. Q. A. Q. A. Q. A. I thought you said the place was for defecation, what were A2 and A3 doing there. Galamsey. Do you know Nana Attobrah. Yes. You also know Stephen Antwi. Yes. You stay in the same town. Yes. Q. A. Q. A. Q. A. And you want us to believe they would not know if that place is for defecation. Yes but that place is also for galamsey. Look at exhibit B series, what do you see. It is a pickaxe and slipper. So you went to defecate with these items. No, please. Q. Do you want the court to believe that the arresting team cannot tell the difference between someone defecating and one doing galamsey. A. It is because of how I was running. Q. You are aware Nana Akwasi Attobrah has announced that no one should go and do galamsey there. A. Yes. Q. A. You told the police that you went there to do galamsey but your friends got away. It is not true. Q. You gave statement in the presence of Roberta who is independent witness of the happening in this case. A. I do not know her. Q. What is the relationship between you and Christopher Amofa and Stephen Antwi. A. I do not know them. Q. A. So they have no business lying against you. No. Guided by the provisions of Section 11 (3) of the Evidence Act the court accessed the accused’s defence with the expectation that he would adduce sufficient evidence so that on all the evidence a reasonable mind could have some doubt as to the accused person’s guilt. The accused in this case does not deny the following facts and his evidence and responses to questions asked during cross-examination before this court are to the effect that: ✓ Galamsey is banned especially under the electricity high tension cable. ✓ That on the 22/8/2021 @ 2:30am he was at the said place. ✓ Accused acknowledges that A2 and A3 currently at large were engaged in galamsey at the moment. ✓ Accused alleges he was defecating while they work. The nature of offence accused is charged with is one which does not require more than one person before it can be committed. Thus one individual, properly equipped, can engage in illegal mining. Accused admitted knowing the accused persons @ large and as he admits they were together, it was prudent that accused raises doubt about his involvement with the others in the galamsey activity. It is not out of place for first accused to answer on the second offence of conspiracy to commit illegal mining. Accused person’s evidence and responses raised no doubt as to his innocence but rather more questions which intend made his evidence more questionable. Who visits the private under a high electricity tension cable with a pickaxe, most importantly why would your friends who are busily digging the ground prospecting for gold allow you to defecate in the same area. I find that the facts presented to the court by the accused is one which the accused could have affirmatively established but he has failed woefully. See the case of Salifu Vrs. The Republic [1974] 2 GLR 291, the court held that, “whether or not Exhibit B was genuine were peculiarly within the knowledge of accused who relied on it for his defence. It was not, therefore, the duty of prosecution to prove the genuineness of Exhibit B”. The first accused person’s explanation as to why he was at the scene of the crime is unacceptable to the court and created no doubt as to his guilt. I have also considered it is not reasonable for one to move 30 miles from his house to a site where an announcement has been made warning galamseyers to stop digging pit there, just to defecate. Again I have wondered how such an individual could have defecated close to the place being dug by galamseyers (who are known to accused person). Above all what items did the first accused take to the site to ease himself. I find that the defence is not probable and a clear after thought. The accused person presented a witness who asserted that, there are some homes without toilet facilities and this made people defecate especially around the area mentioned. When subjected to cross-examination, the witness affirmed that he had no knowledge of the offence for which the accused person stands charge, thus implying that apart from a general knowledge that most homes have no toilet facilities he could not speak to whether the accused person’s home has a toilet or not or even if on the day in question accused person indeed went to the said area to defecate. A1 all through the trial did not deny being at the scene of the crime with the other two accused person who are at large. It is important to note that it is immaterial that is co-consiperators are on the run. Again first accused witness could not identify the exact place that he claims indigenous of their town defecate. Accused witness’s evidence did next to nothing for the accused person’s defence. If anything, his evidence was to impress upon the court to take judicial notice of the fact that not all homes in Esuoso have toilet facilities, a fact which did nothing to affect prosecution’s claim against the accused who was caught in the act of prospecting for gold illegally. I find that the accused person a welder by profession is guilty of engaging in illegal mining along with two others currently at large. Accused is hereby convicted on one count of conspiracy to wit illegal mining and also one count of illegal mining. Before I sentence you 1st accused is there something you would like to tell the court by way of mitigation. Mitigation (Accused counsel): We only ask for the minimum sentence. Aggravation (Prosecution): No aggravating factor. BY COURT: Accused person is a 20 year old man and a first time offender. I have listened to the mitigating factors put in by accused’s counsel as well as the fact that prosecution has no aggravating factors to add. BY COURT: Accused persons are sentenced as follows: COUNT 1 A1: 5 years imprisonment in Hard Labour. A2: 5 years imprisonment in Hard Labour. A3: 5 years imprisonment in Hard Labour. COUNT 2 A1: 10,000 penalty units or in default 5 years imprisonment plus 15 years imprisonment in hard labour. A2: 10,000 penalty units or in default 5 years imprisonment plus 15 years imprisonment in hard labour. A3: 10,000 penalty units or in default 5 years imprisonment plus 15 years imprisonment in hard labour. Sentencing is to run concurrently. A2 and A3 are hereby declared wanted and prosecution to take the necessary steps. (SGD.) H/H HATHIA AMA MANU, ESQ. (CIRCUIT COURT JUDGE) 13