Republic Vrs Opoku [2023] GHACC 300 (4 July 2023)

JULY 2023 C I R C U I T C O U R T , O L D T A F O COURT CASE NUMBER BCC/60/23 THE REPUBLIC VS. KWAKU OPOKU J U D GME NT His Honour Festus Fovi Nukunu (Circuit Court Judge) The Republic v. Kwaku Opoku IN THE CIRCUIT COURT, OLD TAFO, SITTING ON TUESDAY THE 4TH DAY OF JULY, 2023 BEFORE HIS HONOUR FESTUS FOVI NUKUNU, THE CIRCUIT COURT JUDGE CC/08/23 THE REPUBLIC VS. KWAKU OPOKU JUDGMENT The accused person was charged with unlawful entry, contrary to section 152 the Crim- inal and Other offences Act, 1960 (Act 29) and stealing, contrary to section 124 (1) of the same Act 29. The brief facts of the case The complainant is a trader whilst the accused person is a water tank welder. They both reside at Old Tafo. On the 15/4/2023 at about 3:45am the complainant whilst asleep in his room heard unusual noise and suddenly work up. He saw the accused person inside his bed room. The complainant screamed for help. The accused person took to his heels and was given a hot chase by the complainant but he could not appre- hend him. The complainant returned to his room and detected that the accused person cut his trap door net and put his hand inside and opened the door to get access into the room and made away with his Samsung A12 mobile phone valued GH₵1,800.00, In- finix hot 7 mobile phone valued GH₵1,500.00, IPhone 7 valued GH₵1,00.00, Techno J1 mobile phone valued GH₵800.00, Itel mobile phone valued GH₵200.00 and cash the sum of GH₵5,300.00. The complainant made a report to the Old Tafo police. The ac- cused person was arrested by the complainant from his hideout and handed him over to the police. The accused in his investigation cautioned statement denied the offences. After investigations the accused person was charged with the respective offences and arraigned before this honourable court. The Republic v. Kwaku Opoku Plea of the accused person The accused person pleaded not guilty to the two charges. When the accused person pleaded not guilty to the charges, the onus was on prosecution to lead evidence to es- tablish his guilt. 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 ap- pears 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". The accused person by his plea of not guilty had put in issue all the essential elements necessary to prove that he had committed the offence of unlawful entry and and steal- ing. The prosecution’s case To prove these cases against the accused person, the prosecution called two witnesses, namely Clement Boakye Agyemang (the complainant) and Detective Inspector Isaac Frimpong Boakye (the police investigator). In his sworn testimony, Clement Boakye Agyemang (PW1) said that on 15th April, 2023, whilst asleep in his room, he was awakened by an unusual noise. That when he woke up, he saw the accused person and therefore raised an alarm but the accused person took to his heels. He said he gave the accused person a hot chase but he managed to flee. He said when he returned home, he detected that the accused forced open the trap door and used a cutter to create a hole within his door which gave him the chance to open the main door to gain ingress into his room. He said he later inspected his room and realised that the accused made away his Sam- sung A12 mobile phone valued GH¢ 1,800.00, an Infinix Hot 7mobile phone valued at GH¢ 1,000,00, an Itel mobile phone valued at GH¢ 200.00 and cash the sum of GH¢ 5,300.00. According to PW1, since he was able to make out the identity of the accused at the time he saw him, he described the accused person to his neighbours and gave his name as ‘Coach’. He said he reported the case to the police at Old Tafo. That on 19th April, 2023, he spotted the accused in town and caused his arrest and handed him over to the police. According to PW2 Detective Inspector Isaac Frimpong Boakye stationed at Old Tafo, on 15th April, 2023, a case of unlawful entry and stealing was referred to him for investiga- tions. He said he obtained statement from PW1 and later visited the scene of crime in The Republic v. Kwaku Opoku the house of PW1. He said on inspection, he detected that the trap door of PW1 had been cut with a sharp implement to gain ingress into the kitchen of PW1. He said the culprit also used the same modus operandi to get ingress to the main room of PW1 and took away Samsung A12 mobile phone valued GH¢ 1,800.00, an Infinix Hot 7mobile phone valued at GH¢ 1,000,00, an Itel mobile phone valued at GH¢ 200.00 and cash the sum of GH¢ 5,300.00. He said on 19th April, 2023, PW1 arrested the accused and brought him to Old Tafo police station that he was the one behind the crime and that PW1 told him that the accused person was the very person he spotted in his room on 15th April, 2023. He said he obtained investigation and charged cautioned statements from the accused. She tendered them in evidence and they were admitted and marked EXHIBIT 1 AND EXHIBIT 2, respectively. The prosecution then closed its case. The accused person’s defence The accused denied the charges in his evidence in chief and in his cautioned statement to the police. The accused person denied the charges preferred against him. He said on 14/4/2023, he was sitting behind the house of one America fidgeting with his phone. That the man came to meet him there. He said the man told him when they arrest thieves there, they beat them mercilessly. According to the accused person, he went there again the next day and the same man told him the same thing again. He said he told him he was not there to steal and he had some altercations with the man. He said the man told him he would deal with him. He said he was in his house washing when the complainant (PW1) came with four others to attack him. He said when they came, they could not get me as he ran away. The accused said they reported the matter to the police that he had stolen mobile phones from four people when they were asleep. That he stole their GH₵5,300.00. He said later GH₵5,000 which turned into GH₵10,000.00. He denied the offences. CONSIDERATION BY THE COURT Section 13 of the Evidence Act 1975, NRCD 323, provides that: 13(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt (2) Except as provided in section 15 (3), in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt requires only that the ac- cused raise a reasonable doubt as to guilt. The Republic v. Kwaku Opoku Now, it is a cardinal principle of our criminal jurisprudence that the prosecution must prove the guilt of the accused person beyond all reasonable doubts. See sections 11(2) and 13(1) of the Evidence Act, 1975, NRCD 323 which provides:- “11(2) In a criminal action the burden of producing evidence, when it is on the prosecu- tion as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence at reasonable mind could find the evi- dence of the fact beyond all reasonable doubt. See also Amartey v The State [1964] GLR 256 at 295 SC; Gligah v The Republic [2010] SCGLR 870; Dexter Johnson v The Republic [2011] SCGLR 601 and Frimpong alias Iboman v The Republic (supra) at page 313. Section 15(1) of NRCD 323 also provides that unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue. Section 11(3) and 13(2) only required the accused to raise reasonable doubts essential to guilt when the burden of persuasion shifts on to him. See also C. O. P. v Antwi [1961] GLR 408 SC where it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The burden therefore rests on the prosecution to prove the charges or counts against the accused persons beyond all reasonable doubts. Proof beyond reasonable doubts does not mean proof beyond every shadow of doubt or just any doubt at all. In Miller v Minister of Pensions [1974] 1 ALL ER 372 at 374, Lord Denning stated as follows:- “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to de- flect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course” it is possible but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. The first charge against the accused is unlawful entry which is created by section 152 of Criminal and Other Offences Act, 1960 (Act 29) and it states as follows: “A person who unlawfully enters a building with intention of committing a crimi- nal offence in the building commits a second degree felony”. The Republic v. Kwaku Opoku However it is section 153 which tells what unlawful entry means. It states as follows: “A person unlawfully enters a building if that person enters otherwise than in the exer- cise of a lawful right, or by the consent of any other person able to give the consent for the purposes for which that person enters”. In Kanjarga v The State [1965] GLR 479, the Supreme Court held that to constitute an offence of unlawful entry, “the entry must be made with a purpose or intent to commit a crime”. The essential ingredients of the offence of unlawful entry are: I. II. III. that the accused person entered PW1’s room, that the entry was unlawful, and that the accused entered with an intent to commit crime. The second charge against the accused is stealing. Section 124 (1) of Criminal and Oth- er Offences Act, 1960 (Act 29) as amended by paragraph 4 of NLCD 398 OF 1969 created the offence of stealing. However it was Section 125 of the same Act 29 which tells us what stealing is. It states: ‘A person steals if he dishonestly appropriates a thing of which he is not the owner’. In Ampah v The Republic (1977) 2 GLR 171, CA, the court identified three elements of stealing as (i) dishonesty; (ii) appropriation and (iii) property belonging to another per- son. To sustain conviction on the charge of stealing, the prosecution must prove the follow- ing ingredients beyond reasonable doubt. i. That the accused person appropriated Samsung A12 mobile phone valued GH¢ 1,800.00, an Infinix Hot 7 mobile phone valued at GH¢ 1,000,00, an Itel mo- bile phone valued at GH¢ 200.00 and cash the sum of GH¢ 5,300.00 belonging to PW1. ii. That the said appropriation was dishonest. The prosecution’s case was that the accused entered the room of PW1. According to PW1, whilst he was asleep, he was awakened by unusual noise. He woke up and saw The Republic v. Kwaku Opoku accused person. He raised an alarm and the accused took to his heels. PW1 gave the ac- cused person hot chase but could not catch him. The question is whether it was the accused person who entered the room of PW1? The prosecution wanted the court to believe that it was the accused person who entered PW1’s room to steal his phones and the money. From the record, the only evidence from the prosecution to support their allegation that it was the accused person who entered into PW1’s room was that PW1 said he was able to make out the identity of the accused person at the time he saw him and that he de- scribed the identity of the accused person to his neighbours and they gave the name as ‘Coach’. From the record, the prosecution through PW1 did not tell the court how he described the accused person to his neighbours. From the facts of the case, the unlawful entry was committed around 3:45 am. Clearly the room was dark. When the court wanted to be certain if the light was switched on at the time PW1 allegedly saw the accused person, PW1 answered that the room was dark and that when he woke up the light was on. To my mind, the issue of visibility came to fore. Prosecution has not provided the court with enough evidence to convince the court that the room was lit and that it was the accused person PW1 saw in his room. Again, PW1 said he described the accused person’s identity to his neighbours and they mentioned his name as ‘Coach’. None of these neighbours were called by the prosecu- tion to satisfy the court how they came to the conclusion that it was the accused person whom PW1 had seen in his room and described to them. In the Court of Appeal’s decision in Tsatsu Tsikata v. The Republic [2003-2004] 1 GLR 296, the court held in its holding 4 that: “The question of failing to call a material witness might be properly raised after evidence from both the prosecution and the defence had been heard. Any failure on the prosecution’s part to call such a witness, if that witness’s evidence could settle the matter one way or the other, would re- sult in the failure of their case because they would not have proved their case beyond reasonable doubt. On the authorities, therefore, it was clear that the concept of “material” or “vital wit- ness” as well as the legal consequences that flowed from the prosecution’s failure to call such a witness to give evidence, subject to qualifications and exceptions, was another way of stating and applying the basic legal principle of “burden of proof” or “burden of persuasion” within the The Republic v. Kwaku Opoku meaning of sections 11(2), 13(1) and 15(1) of NRCD 323. Accordingly, the trial court was justi- fied in calling on the defendant to enter into his defence.” In TETTEH V. THE STATE (1965) GLR 670, SC, the court in holding 2 noted that where a material and relevant witness whose help could have helped resolved doubts is not called by the prosecution and there is no evidence on record that prosecution had reasons to believe that the said witness would not speak the truth or that he could not be traced, the case of the prosecution must fail. In the instant case, PW1 said it was his neighbours who told him the person who en- tered his room was one ‘Coach’, the accused person. None of these neighbours was called. The prosecution did not provide any evidence to the effect that the said neigh- bours would not speak the truth when they come to court. The prosecution did not also provide any evidence to court that the said neighbours could not be traced. The failure to call those neighbours as witnesses in this case is detrimental to prosecution’s case. From the above, I hold that prosecution has not proved beyond reasonable doubt that it was the accused person who entered the room of PW1. Since the prosecution failed to prove beyond reasonable doubt that it was the accused person who entered PW1’s room, there is no need to consider other ingredients of the offence of unlawful entry. Flowing from this, there is no need to consider the essential ingredients of the offence of stealing. I therefore found the accused person not guilty of unlawful entry and stealing. He is acquitted and discharged. SGD H/H FESTUS FOVI NUKUNU (CIRCUIT COURT JUDGE) DETECTIVE INSPECTOR S. K. OPPONG FOR THE REPUBLIC PRESENT ACCUSEED WAS SELF – REPRESENTED 7