REPUBLIC VRS MUSAH AWUDU (d1/14/22) [2023] GHACC 862 (20 July 2023)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘B’ OF GHANA HELD AT TEMA ON THURSDAY, 20TH JULY, 2023 SUIT NO. D1/14/22 THE REPUBLIC VRS MUSAH AWUDU --------------------------------------------------------------------------------------------------------------------- ------ JUDGMENT --------------------------------------------------------------------------------------------------------------------- ------ The accused person is before this Court on a charge of abetment of the crime of robbery, contrary to sections 20(1) and 149 of the Criminal Offences Act, 1960 (Act 29). The particulars of offence are that on the 13th day of February, 2022 at Smart Hotel, Community 10, Tema in the Tema municipality and within the jurisdiction of this Court, did aid and abet one Jawal Amadu to commit the crime of robbery. The accused person pleaded not guilty to the charge. By his plea, he had invoked the Constitutional guarantee in Article 19 of the 1992 Constitution, and he stood shielded by the law as per Article 19 (2) (c) of the 1992 Constitution, he is presumed innocent until proven guilty. According to the case of Davis v. U. S. 160 U. S 469(1895) "Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from the evidence". Page 1 of 14 The presumption of innocence guaranteed under the 1992 Constitution, is not cast in historic concrete like King Arthur’s sword. That guarantee is that he is presumed innocent until prosecution has been able to lead evidence to establish his guilt beyond reasonable doubt. That being so, prosecution may lead credible and positive evidence to upset that presumption. A court thus commences a criminal trial where an accused has pleaded not guilty on the rebuttable presumption that the accused person is innocent until proven guilty. The onus lies on prosecution to lead material, relevant and credible evidence to establish a prima facie case against the accused person by the close of their case. It is only then, that prosecution would be deemed, prima facie to have upset the presumption of innocence in favour of the accused and he would in turn be called upon not to prove his innocence, but to raise a reasonable doubt in the mind of the Court as to his guilt. In the case of Gligah & Atiso v. The Republic [2010] SCGLR 870 @ 879 the court held that “Under article 19(2) (c) of the 1992 Constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial, it is the duty of prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person would be called upon to give his side of the story’’. Two witnesses; the complainant and the investigator, testified for the Republic. Page 2 of 14 THE EVIDENCE OF PW1 PW1’s evidence in chief is that on the 13th day of February, 2022, at about 5:30pm, whilst walking, two young men on a motorbike came from behind her and the pillion rider held her two hand bags and started to pull it. That she was holding on to the bags but due to the fact that the motorbike was still in motion, they forcefully pulled it from her and she fell down. Two young men in a Toyota Rav4 vehicle who spotted the young men gave them a hot chase. Another vehicle joined in the chase and not long after, the Toyota RAV4 and a police patrol team came to her and informed her that one of the accused persons was arrested and the other had escaped. One of her bags was returned to her but the the smaller one that contained an amount of Ghs 600 could not be retrieved. Accused person was the one riding the motorbike whilst the pillion rider who has since been convicted, was the one who snatched her bag. That she was issued with a police medical form to attend hospital due to the injuries she sustained from falling on the ground. THE EVIDENCE OF PW2 PW2 is the investigator. He tendered in evidence the investigation caution and charge statement of accused person as EXHIBIT A and B respectively, the endorsed police medical form of PW1 as EXHIBIT C and a pen drive containing the CCTV footage of the incident as EXHIBIT D. He testified that the accused person was arrested together with a black unregistered royal motorbike by the police patrol team and brought to the station together with PW1 Page 3 of 14 with a report that the accused person and another had forcibly snatched two bags of PW1 and sped off. That the accused person and the other were chased by a Toyota Rav4 vehicle to community 10 police station where they abandoned the motorbike and one of the bags and took to their heels. The accused person was wearing a yellow t shirt and a yellow base ball hat and he was arrested but the other one managed to escape. That one of the bags of PW1 was retrieved at the scene. That Smart Hotel furnished him with a CCTV footage of the incident and when same was played to the accused person, he identified himself as the person riding the motorbike used in committing the offence. He continued that in the course of investigations, he received information that the pillion rider who had escaped had been arrested by the Community 4 Police in another snatching incident. That the said pillion rider by name Jawal Amadu was handed to him and after watching the CCTV footage of the incident, confessed that the accused person is his friend and it is with the consent of the accused person that he had snatched PW1’s bags. The said pillion rider; Jawal Amadu and the accused person were arraigned in court and Baba Jamal pleaded guilty to the charge of robbery and was convicted and sentenced. Prosecution closed its case after this. CONSIDERATION BY COURT Section 173 of the Criminal and Other Offences Procedure Code, 1960 (Act 30) provides that; "If at the close of the evidence in support of the charge, it appears to the Court that Page 4 of 14 a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him." According to the Supreme Court in the case of Asamoah & Anor. v. The Republic [2017- 2018] 1 SCGLR, 486, Adinyira JSC speaking for the apex court, stated that ‘’the underlying factor behind the principle of submission of no case to answer is that, an accused person should be relieved of the responsibility of defending himself when there is no evidence upon which he may be convicted. The grounds under which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial by indictment may be restated as follows; a) There had been no evidence to prove an essential element in the crime b) The evidence adduced by the prosecution had been so discredited as a result of cross examination; or c) The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it d) The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt, one with innocence. See the celebrated case of The State v. Ali Kassena [1962] 1 GLR 144 in which the Practice Direction issued by the Queens Bench Division in England [1962] 1 E. R 448 (Lord Parker CJ) was approved of and the case of Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068). See also the case of Sarpong v. The Republic [1978] GLR 790. On the charge of abetment of the crime of robbery, Section 20 (10 of Act 29) defines abetment as ‚a person who directly or indirectly instigates, commands, counsels, procures, solicits or in any other manner purposely aids, facilitates, encourages, or promotes, whether by a personal act or presence or otherwise and a person who does an act for the purposes of aiding, Page 5 of 14 facilitating, encouraging, or promoting the commission of a criminal offence by any other person, whether known or unknown, certain or uncertain commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence’’. Per the circumstances of this case, prosecution’s evidence, must at the close of its case establish that the accused person 1. Directly aided and/or facilitated Jawal Amadu (a convict) in the commission of robbery 2. That the accused person did so by the personal act of carrying Jawal Amadu on his motorbike as a pillion rider and enabling him to rob PW1. Prosecution in proof of its case relied on both testamentary and documentary evidence. I would first focus on the documentary evidence which is a CCTV footage of the incident. This is because it provides direct and real time evidence of the incidence of robbery. PW1 identifies herself in that footage and the accused person also identifies himself in the footage. Learned counsel for the accused person did not raise any objection to the admissibility of the footage as EXHIBIT D and he had cross examined vigorously on same. His cross examination did not challenge the identity of the accused person in the exhibit or the fact that it was the accused person who was riding the motorbike. EXHIBIT D is a 46 second video. For the purposes of prosecution’s case, the footage between the 5th to 13th second is very instructive. It shows PW1 walking on the side of a road and holding some bags. Immediately she passed by what appears to be a junction, a motorbike being ridden by the accused person in a yellow shirt and having Jawal Page 6 of 14 Amadu behind as a pillion rider rode close to her and both accused person and the pillion rider could be seen taking their right foot off the motorbike and unto the ground to slow down the motorbike but not to a stop. Whilst so doing, the pillion rider snatched PW1’s bag. PW1 held on to the bag and because the motorbike was in motion, she was pulled along the floor. Her legs could be seen being dragged on the ground whilst her right arm which was holding the bag was also being dragged by the pillion rider. The steering of the motorbike was moving from side to side due to this dragging and accused person was holding unto it firmly. Eventually, PW1 fell to the ground and let go of the bag and accused person and the pillion rider removed their foot from the ground and the motorbike sped off at a great speed. PW1 attempted to rise from the ground but fell again. The video footage is on all fours with the evidence of PW1 as to how the offence had occurred. I believe her evidence. I also believe the evidence of PW2 as he had obtained the video footage in the course of investigations and shown same to both the accused person and the convict. Although counsel for accused person had tried his utmost best to discredit the evidence of prosecution witnesses, I find that he could not do so as the witnesses stuck to their evidence and spoke to the documentary evidence. By the said EXHIBIT D, it is evident that it was the accused person who rode the motorbike close to PW1 and reduced the speed of the motorbike. That it was by so doing that the convict pulled at the bag of PW1 with such force that it dragged PW1 on the ground and she was dragged on the floor for some seconds before she finally let go. Page 7 of 14 That it was the accused person who immediately then increased the speed of the motorbike and sped off to escape from the scene with the convict. These facts show prima facie that the accused person directly facilitated the commission of the offence of robbery by the convict. That this facilitation was done by the use of a motorbike being ridden by the accused person and which he purposely slowed down to enable the convict to be able to snatch the bags of PW1. That by the use of the motorbike, he facilitated the escape of the convict from the scene. At the close of prosecution’s case, I determined that they had established all the relevant ingredients of the offence of abetment of robbery against the accused person. Prosecution’s evidence has not been discredited in anyway under cross examination, the evidence is manifestly reliable such that a court of competent jurisdiction can convict of same if the accused person elects to remain silent when called upon to open his defence and the evidence at this stage lends itself to only once conclusion; the prima facie guilt of the accused person. Accordingly, accused person was called upon to open his defence if he so desired. DEFENCE Denning J (as he then was) in the celebrated case of Miller v. Minister of Pensions [1947] 1 All ER 372 at 373 held that. ‚The constitutional presumption of innocence of an accused person is that an accused is presumed to be innocent unless he pleads guilty or convicted by a court. The presumption is rebutted when the prosecution establishes a prima facie case against the accused person and the accused shall be called upon to Page 8 of 14 raise a reasonable doubt as to his guilt.‛ See also the dictum of Dennis Adjei JA in the Court of Appeal case of Philip Assibit Akpeena v. The Republic (2020) 163 G. M. J 32. Accused person was called upon to open his defence. An accused person when called upon to open his defence does not have a duty to prove his innocence. His only duty if at all at this stage, is to raise a reasonable doubt in the mind of the court concerning the prima facie case established against him by the prosecution. Where he is able to raise a reasonable doubt in the mind of the court, he must be acquitted and discharged. See Bruce-Konuah v. The Republic [1967] GLR 611 and Section 11(2) and (3) of NRCD 323. In arriving at whether an accused has raised a reasonable doubt, the court must first consider whether his explanation is acceptable i.e whether it believes the explanation given by the accused. If it does not, it must proceed to find out whether the explanation by the accused is reasonably probable. If that fails, then thirdly, the court must consider the whole evidence on record and see if it raises any defence in favour of the accused. In any of these instances, the court must acquit and discharge the accused. If quite apart from the defence's explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict. See the case of Bediako v. The State [1963] 1 GLR 48. In his evidence in chief before this Court, the accused person said that he knows nothing about this offence again and it is a case of mistaken identity. That a young man engaged him to use his motor bike to take him to Tema. The young man told him that he would direct him and without negotiating on a price, said he would also pay him on arrival. Page 9 of 14 That upon reaching Tema, the pillion rider was the one showing him the directions and upon reaching a section of the road, a vehicle behind them was blowing its horn on him and so he decided to cross the road. That he later heard shouts of thief from a black 4*4 and so he applied force on the brakes and the motorbike fell on the ground. That the people in the car were rushing towards them and so he took to his heels for fear of his life. That the people chased him and arrested him but the young man managed to escape. That they accused him of snatching the bag of a woman and he denied same. At the close of accused person’s explanation, I find that I do not believe his explanation and I also do not find it reasonably probable. This is because the video evidence of the incident which clearly identified him, does not bear out his claim. Although accused person insists that he only slowed down the motorbike in order to make way for a vehicle behind him to pass and this was at a junction, the video footage paints a different picture. The video shows the accused person riding directly towards PW1 from behind and slowing down when it got to her side. Immediately, the convict pulled at her bag. The manner in which the accused person had ridden towards PW1 and the swift manner in which the pillion rider had pulled at PW1’s bag leads to an inference that she was targeted by the accused person and the pillion rider. Again, although the accused person insists under cross examination that he had to slow down for the vehicle because it was turning into a junction and it was afterwards that he increased his speed and continued on his journey, there is no junction at the spot where accused person slowed down and the convict snatched PW1’s bags. If at all, a Page 10 of 14 small junction can be seen behind that spot with a sign post mounted thereon. PW1 had walked past that junction and was steps away from it before the accused person rode his motorbike close to her. In the light of clear, incontrovertible and live evidence of accused person’s actions which abetted the convict in the commission of robbery, he still elected to tell lies to this court as his explanation. I accept the principle in the case of Munkaila v. The Republic [1995-96] 1 GLR 367, in which AIKINS JSC reading the judgment of the court held that ‘when an accused person took refuge in telling lies before a trial court, the only inference of his behaviour was that he had a guilty mind and wanted to cover up’’. I neither accept his explanation, nor find it to be reasonably probable. I have combed through the entire evidence on record and it does not raise any defence in favour of the accused person. I thus find at the close of the explanation of accused person that he has failed to raise a reasonable doubt in my mind as to his guilt. After the close of trial and having considered the entire evidence on record and having made findings of fact which I have applied the law to, I hereby find that prosecution has established the guilt of the accused person beyond reasonable doubt on the charge. Consequently, he is convicted of the offence of abetment of crime; namely robbery. PRE SENTENCING According to prosecution, the convict is not known. That the convict gave his date of birth as 1st May, 1999 and so is currently twenty four years. PW1 in her victim impact statement stated that due to the pains she suffered from being dragged on the ground, she was having headaches for about three months and had to visit the hospital. That she has not received the money that was in her bag as at now. Page 11 of 14 In mitigation, convict says that he has a mother a child whom he is responsible for. That the court should consider this in its sentence. That he was in cells before his wife gave birth and he could not take care of her. That the court should also consider the time he has spent in custody. That he is now 22 years old SENTENCE Per section 20 (2) of Act 29, where a person abets the commission of a criminal offence and the offence is actually committed in pursuance of or during the continuance of the abetment, he would be deemed to have committed the offence. The offence the convict abetted is robbery. The robbery was actually committed during the abetment and so convict is deemed to have committed the offence of robbery. Per section 149(1) of Act 29, whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or indictment, to imprisonment for a term of not less than ten years and where the offence was 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 years’’. As this robbery was committed without the use of an offensive weapon, the minimum term of imprisonment that I can sentence the convict to is ten years. In arriving at an appropriate sentence, I must take into account both aggravating and mitigating circumstances in arriving at an appropriate sentence. In aggravation is the fact that the convict took prosecution through a full trial to establish his guilt. This is despite the fact that there was video footage of his Page 12 of 14 commission of the crime. He had taken prosecution through a needless trial to establish his guilt. Again, the commission of the crime he abetted did not only deprive PW1 of her bags and money, but per EXHIBIT C which is PW1’s medical report, as well as in her victim impact statement, she suffered pains as a result of being dragged on the ground by the moving motorbike in the course of the commission of the crime. Indeed, per EXHIBIT D, she had tried to rise from the ground after the convict sped off but had fallen down immediately as it appeared her body could not stand on its own. Further more, the offence of robbery with the use of a motorbike is on the ascendancy among the youth within this jurisdiction. It appears to be an easy means of committing an offence and traumatizing people at the same time. PW1 appears clearly traumatized by this offence. In mitigation is the fact that convict is first time offender and also at the age of 22 or 24 is considered to be a young person. The overarching principle in the reformative element of the criminal justice system is that where young persons have had their first brush with the law, the courts should deal leniently with them and not impose a custodial sentence unless same is mandatory. A custodial sentence is mandatory for this offence. I have also taken into account the claim of convict that he has a young child and is responsible for the maintenance of the said child as well as his mother. Having taken into account both the aggravating and mitigating circumstances, as well as the time spent by the convict in custody pending trial and also the fact that the court sentenced Page 13 of 14 his accomplice to an eleven year term of imprisonment on his own plea of guilt, the convict is hereby sentenced to a fourteen year term of imprisonment. (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) D. S. P JACOB ASAMANI FOR THE REPUBLIC PRESENT PRINCE KWAKU HODO FOR THE CONVICT Page 14 of 14