REPUBLIC VRS KWOFIE (B1/3/23) [2023] GHACC 1027 (17 August 2023)

IN THE CIRCUIT COURT HELD AT TARKWA WESTERN REGION ON TUESDAY THE 17TH DAY OF AUGUST, 2023 BEFORE HER HONOUR HATHIA AMA MANU, ESQ. CIRCUIT JUDGE. COURT CASE NO. B1/3/23 THE REPUBLIC VERSUS 1. MICHAEL KWOFIE@ KWADWO 2. KILLER AT LARGE JUDGMENT Accused – Present. C/Insp. Joseph Lartey for Prosecution. Accused pleaded Not Guilty to 3 counts being: Conspiracy to commit crime to wit robbery contrary to Section 23 (1) of the criminal offences Act 1960, robbery contrary to Section 149 of the criminal offences Act, Act 29 and Possession of firearm without lawful authority contrary to Section 11 (1) (a) of the Arms and Ammunition Act 1972 (NRCD 9). First accused person pleaded Not Guilty to the charges. It is prosecution’s case that on 2/7/22 at 7:00pm the complainant and 6 others all victims were attacked by the 1st accused and one other with pump action guns. Prosecution asserts that they were attacked at a rubber plantation near Dadwen and warn shots were fired into the air. That in the cause of the robbery a total sum of GH₵2,893 was taken from the victims. That on 3/7/22 at 8am a formal complaint was made against the accused as he was the one the complainant could identify, at the scene of the crime two empty shells were retrieved. The 1st accused was apprehended by the town folks on the 5/7/2023 and handed over to the police where he assisted in retrieving the gun which was used in giving warning shots. As prosecution in all criminal trials is expected to establish the guilt of the accused beyond reasonable doubt, all disclosures which prosecution intended to rely on in the course of trial in other that we no surprise would be sprung on him. In a bid to satisfy the evidential and persuasive burden imposed on them by law, prosecution filed witness statements for 8 individuals opted to call 4 witnesses after which it closed its case. With the exception of the investigative officer all other witnesses who were victims of the robbery stated that accused and his accomplice robbed them at gun point and even fired warning shots. The only distinction in their evidence was the various amounts taken from each of the victims. The accused person asked all three witnesses the same questions. He asked: Q. A. Q. A. Do you know me. Yes I know you. How do you know me. I know you because you came to rob us. Q. What time did you see me rob you. A. Around 7 – 8pm. Q. A. Did you see me. Yes I saw you. The responses from all accused persons were the same and the accused persons questions did nothing to cause the mind of the court to dispute the evidence presented by the witnesses on the happening of that day. In fact by their responses they all identified the accused person as one of the perpetuators of the crime. In the case of Adu Boahene Vrs. The Republic [1972] 1 GLR 70 @ 73 -74, the court did not mince its words when it stated that, “in every criminal trial it is not only necessary for prosecution to prove the commission of the crime but also to lead evidence to identify the accused as the person who committed the offence”. In this case prosecution’s witnesses are said to have identified the accused person and they further identified him by their responses. The investigations revealed that accused was identified as having robbed the witnesses. This investigative officer conducted no independent finding on his own and just present the court with reported claims. From his evidence empty shells (BB) were found at the scene, but he did not lead evidence to establish that the gun found was recently used. In fact no ballistic report was presented to the court on whether the Atrox pump action gun No. 19X1420 was actual used in committing this crime. This would have helped the court ascertain if the empty BB shells were from the said gun as the analyst would have examined the rifling in the spent BB bullet. Although visiting the scene the investigative officer could not recreate the scene of the crime in the mind of the court. Again the accused questioned this witness on the gun and denied same was the one with which he works, although the investigator insisted that accused initially identified the gun as his own, it is prudent to note that accused was not arrested with the gun in his possession. The gun was found at the work place of the accused, the investigator therefore had a job to satisfy the court that same belonged to the accused and that he had no license to same. From all the facts presented the site has an owner and the found gun is used by all security personels when they assume position therefore a statement could have been obtained from the site owner on who owes the gun and if same is properly licensed. There is no nexus proving the accused owes the gun. The accused did not object to his investigative statement being tendered into evidence and I have studied same. No questions were also asked on this and since the statement was given without duress, the court has admitted it’s content which were to the effect that accused acted on the instructions of his friend called Killer to search the victims and took all the money found on him. Considering the fact that the 1st accused admits being the one who took victim’s money and also the victims who testified identified him as present during the period of the crime the 1st accused person was asked to open his defence. The essence of the accused being directed to open his case was to adduce evidence which will help establish his innocence. According to the accused person he knew nothing of the robbery that he was on his way to report at work when he saw the 2nd accused person pointing a gun at the victims to extort money from them. Accused claimed that after picking the money from the victims he the proceeds with A2 (at large). The first accused also stated that the gun presented to the court was found at the site where he works. Again the accused denied having fired any warning shots from the gun as there was no cartridge in same. The accused opted not to call any witnesses. Valuating and analyzing the evidence as a whole, that prosecution has not adduced any evidence establishing that the accused conspired with A2 (at large). Again the prosecution failed to establish that the gun found at A1’s place of business belonged to him and that same was used in committing the alleged robbery. Section 154 of Act 30 provides that, “When a person is charged with an offence consisting of several particulars, a combination of same which constitutes an offence complete lesser offence, and such combination is proved but the particulars are not proved, he may be convicted of the lesser offence although he was not charged with same”. From the facts of the case and the evidence adduced I hereby convict the accused of the offence of stealing. Before I sentence you is there something you would like to tell the court by way of mitigation. Accused: My lord I beg the court. Prosecution: There is no aggravating factor. BY COURT: Accused how old are you. Accused: I am 20 years. BY COURT: Accused is a first time offender and the court has considered his age as well in sentencing him. Accused is sentenced to one (1) day imprisonment and is to pay a fine of 600 penalty units in default he will serve 7 years imprisonment. (SGD.) H/H HATHIA AMA MANU, ESQ. (CIRCUIT COURT JUDGE)