The Republic Vrs Sackey King & 2 Others [2023] GHACC 343 (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. B1/34/23 THE REPUBLIC VRS. 1. 2. 3. LORD SACKEY KING DE-GRAFT JOHNSON HENRY INKECHUKU (DEALT WITH) JUDGMENT Accused persons – Present. Superintendent Juliana Essel Dadzie for Prosecution. Both accused persons stand charged on two counts comprising of Robbery, Contrary to Section 149 of Act 29 and Conspiracy to commit crime to wit: Robbery, Contrary to Sections 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29). Accused persons pleaded not guilty on both counts. The facts of Prosecution’s case are that on 1st October, 2022 at 5:30am, Complainant was attacked and upon threat by A2 of being stabbed he surrendered his back pack consisting of an ash HP Laptop 17 valued GH₵4,000.00, MTN internet Wifi valued GH₵500.00, FX991 Scientific calculator valued GH₵500.00, Infinix Hot 7 mobile phone valued GH₵1,000.00 with chargers and his hostel keys. This is said to have occurred at Agric Hill around the Umat area heading to William hostel. On the 6th October, 2022 at 5:10am, A1 was apprehended by students of Umat when he was found on the 2nd floor of Kofi Tetteh (KT) hall trying to enter the rooms of one of students. A1 as beaten up by the student mob and had to be admitted at Apinto hospital, Tarkwa. Subsequent investigation revealed the above items were stolen from the Complainant on 1st October, 2022 sold and A2 was given GH₵150.00 of the proceeds, the first accused confessed to same and gave a detailed account of their mode of operation. The Complainant identified the key as the one which was taken from him of 1st October, 2022. In their defence, A1 stated that he went jogging on the Umat Campus and got questioned by one of the students and that just as he was trying to answer their questions, he was confronted by other students and got lynched. A2 in his defence stated that he was arrested in another case and then they said he had been identified as being part of this pending case as well. This being a criminal case, the Prosecution must prove each of the ingredients of the offence beyond a reasonable doubt as required by Section 11(2) of the Evidence Act, 1975 (NRCD 323). The inability of Prosecution to prove any or all of the ingredients of the robbery charge against the accused by the requisite degree will lead to an acquittal. Even with this burden on Prosecution Lord Denning in the case of Miller Vrs. Pensions (1972) All ER 372 explained that the community must be protected and as such the proof needs not be beyond a shadow of doubt. He also stated that; “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”. See the cases of: Tetteh Vrs. The Republic [2001 – 2002] SCGLR 854; Dexter Johnson Vrs. The Republic [2011] 2 SCGLR 601 which all re-instate the fact that what reasonable doubt actually means is “proof of the essential ingredients of the offence charged and not mathematical proof”. Section 150 of Act 29 defines robbery as follows: “A person who steals a thing commits robbery (a) (b) If in, and for the purpose of stealing the thing that person users force or caused harm to any other person or If that person users a threat or criminal assault or harm to any other person with intent to prevent or overcome the resistance of the other person to the stealing of the things”. Section 23 of the Criminal Offences Act 29 states that Conspiracy: (1) Where to or more persons agree to act together with a common purpose for or in committing or abetting a criminal offense, whether with or without any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offense. For the charge to succeed, Prosecution must prove that; (a) The accused stole something (b) The accused used force/threat/criminal/assault or caused harm in his attempt to steal. Prosecution must significant witness in this case was the investigative officer. He held the trump card in this case. When called to testify he stated that the victim of the crime identified the keys which was found on the accused as well as the knife that was used to threaten the victim. In his evidence he gave evidence that 1st accused upon being rescued and while on admission in the hospital was interviewed and he mentioned the individual to whom he sold the items. That A1 also mentioned that his co-conspirator was A2 also known as star boy. Prosecution witness informed the Court that when A1 had recovered fully he was invited to the police station and an identification parade was conducted with the hope of the victim identifying the perpetrators. The victim who also testified in this case identified the 1st and 2nd Accused persons as the one who attached him. The investigative officer who was PW2 in this case, prayed the court to admit into evidence the investigative cautioned and charged statement of the accused persons, statement of the person who dishonestly received the stolen items (dealt with by the court) as well as his own witness statement. Both accused persons who were not represented extensively questioned him with an intention to discredit the evidence presented to no avail. The accused persons put it to PW2 consistently that they have not committed any offence and in responding he maintained that while A1 was caught trying to open one of the rooms in Kofi Tetteh (KT) hall and subsequently subjected to the beating of his life whereas A2 was mentioned by A1 as his accomplice, the victim identified A2 in an identification parade as A2 was on detention at the police station for a similar offence. In their line of question, A1 never put it to PW2 that his claim of having been caught at Kofi Tetteh (KT) hall was not true or that the key and knife was not found with him. Prosecution first witness (PW1) was the victim. He recounted the happenings of the day which led to A2 specifically asking how sure was his involvement. PW1 then explained that his colour, height and even him mannerism fits that of the person who attacked him. PW1 in response to a question asked by A1 stated that his hostel keys were in the back pack which was stolen and same was found on A1 upon his arrest. Studying the exhibits tendered into court by PW2 which included the investigative cautioned statements of A1 and A2, the court found as follows: A1 stated that A2 brought the items listed in the facts of the case to him to sell for him. That he sold the phone to A3 (dealt with) and the laptop and other items were retrieved by the Railways Police Station. Again, A1 stated that A2 was the one who got the items and asked him to sell on his behalf. On the other hand, A2 stated that on the day of the incident around 3:00am, A1 asked him to accompany him patrol the Umat Campus. A2 stated that it was during that time that they saw the victim and robbed him. A2 stated that A1 went to sell the things while he stood at Zoko stores. A2 then stated that A1 gave him GH₵150.00 out of the same. The statement of the person to whom the phone was sold to was that A1 came to his shop and sold the phone which has turned out to have been stolen from him. Section 120(2) of the Evidence Act 1975 (NRCD 323) states that, “evidence of a hearsay statement of an accused which essentially admits the commission of a crime is inadmissible if made by the accused under arrest or restriction by the state, unless it was made in the presence of an independent witness”. Having studied the exhibits, I was satisfied as same was duly executed in compliance with Section 120 (2) of the Evidence Act and as such I admitted them as confession statements. From the facts presented it is safe to say that A1 is on a quest to exonerate himself from the crime. Why would A2 go and steal from someone only to give same to A1 to sell on his behalf, that in the mind of the Court clear show there is an existing relationship between A1 and A2 for which reason even if A2 had acted solely he confided in A1 to sell the booty. It can be inferred from the facts that A1 and A2 have an existing relationship and agreed to act together with the sole aim of committing the offense of robbery. The Court in dismissing an appeal in the case of Doe Vrs. The Republic [1999 – 2002] 2GLR 32, stated, “that although the appellant appeared to have been convicted alone on the charge of conspiracy in particular trial, the similarity in the modus operandi in earlier cases from the same branch of the bank clearly showed that there was a conspiracy in existence. The Court concluded from the facts that the appellant may have conspired with person unknown or even with those who had been arraigned earlier …….” Thus it is not far fetch for this court to make an inference of an agreement to act together from facts presented. [Emphasis mine] Again, in the case of Francis Yirenkyi Vrs. The Republic, C. A. CRIM APPEAL No. H2/15/13; Decided on 10th April, 2014; CORAM: Kanyoke J. A. (Presiding) Aduama Osei, J. A. and Adordzie, (MRS) J. A. The appellant was convicted on conspiracy to steal and stealing. On appeal, the appellant contended that the charge of conspiracy was not made out against him as the prosecution could not establish any link between him and the other accused persons. The Court of Appeal found as a fact that there had been a prior agreement between all the accused persons to execute “the deal” which was found to be the stealing. The Court held that the fact that the appellant may not have taken part in the actual stealing is irrelevant. For the offence of conspiracy is complete on agreement and a later repentance is even not a defence. Legally when directed to open their defence, it is an opportunity to punch holes in Prosecution’s case such that questions are raised as to their guilt. The accused persons’ defence and responses did nothing to satisfy this burden. Their defence rather showed their unrepentance and a blatant attempt especially on the part of A1 to throw dust in the eyes of the Court as to why he was lynched and what he was doing on that day. I hereby convict A1 and A2 accordingly. A2 is remitted to the District Court for sentencing. A2 before I sentence you is there something you would like to tell the Court by way of mitigation? A2: My Lord, I beg you please forgive me. Prosecution: No aggravating factor. BY COURT: In sentencing you, I have averred my mind to the sentencing guidelines. I have also considered your age and the fact that you are a first time offender. A1 you are sentenced to 10 years imprisonment with hard labour for Count 1 and 10 years imprisonment with hard labour for Court 2. The sentencing will run concurrently. (SGD) H/H. HATHIA AMA MANU (MRS.) (CIRCUIT COURT JUDGE) 7