REPUBLIC VRS OPPONG & ANOTHER (178/2023) [2023] GHACC 1164 (29 November 2023)

IN THE CIRCUIT COURT HELD AT DUAYAW NKWANTA ON WEDNESDAY THE 29TH DAY OF NOVEMBER, 2023 BEFORE H/H AKOSUA ASANTEWAA SARPONG ESQ C/C JUDGE THE REPUBLIC VRS 1. JAMES OPPONG 2. AKWASI AFFUL JOB CCNO. 178/2023 JUDGMENT The Accused person was charged with three counts of conspiracy to commit crime to wit stealing: Contrary to Section 23(1) and 124(1) of the Criminal Offences Act 1960 (Act 29) Unlawful Entry: Contrary to Section 152 of the Criminal Offences Act 1960 (Act 29) Stealing: Contrary to Section 124(1) of the Criminal Offences Act 1960 (Act 29) FACTS: The facts of the case were that the complainant Collins Boadi is a student, A1 James Oppong aka. Kwame Bosompem was dealt with, after pleading guilty A2 Akwasi Afful Job is unemployed all residing at Dwomo. On 24/10/2022 the Complainant went to bed after locking his door. He got up suddenly after hearing some noise in his room about 01:30 am, surprisingly he saw A1 and A2 in his room. Accused persons realizing that the complainant was up, took to their heels. The Complainant later detected theft of his items mentioned on the charge sheet by Accused persons. He made a report to the Police and A1 was arrested. During investigations A1 admitted the offence in his cautioned statement and mentioned A2 as his accomplice. A1 also stated that, they shared the three phones and he had the Huawei and itel mobile phones which were retrieved by the Police while the Techno Spark 7 pro and chargers together with a Gucci slippers are with A2. On 24/05/2023 A2 was arrested on bench warrant and during investigations he denied the offence in his investigation cautioned statement. Accused was charged accordingly to appear before the court. The prosecution in proving their case called 4 witnesses. The evidence of PW1 was that, on 24/10/2022 he locked his door and went to bed and whiles sleeping he heard a strange noise so he got up suddenly and surprisingly saw A1 and A2 in his room. The Accused persons saw he was up and they took to their heels. After they had runaway he detected that his Tecno Spark 7 pro Valued at GH₵ 820, itel keypad phone valued at GH₵ 150, Huawei phone valued at GH₵ 640 together with their chargers and his Gucci Slippers valued at GH₵ 60.00 were stolen. He reported to the Police and A1 was arrested and the Huawei and itel phones were retrieved from him. When he dialed the phone number of the Tecno Spark 7, A2 answered and promised bringing his phone to him but failed. PW2 James Oppong stated that on 24/10/2022 he went to PW1’s house with Akwasi Afful Job (A2) and A2 entered PW1’s room while he waited outside. The Accused returned with three mobile phones namely Tecno Spark 7 pro, Huawei and itel phones with their chargers whiles the Accused had the Tecno Spark 7 pro with its charger and Gucci slippers. He was arrested by the Police and the phones retrieved from him. He stated that it was true that he went to steal PW1’s phones and slippers and shared it with the Accused. PW3 Thomas Oppong stated that on 4/11/22 his son James Oppong aka Kwame Bosompem was arrested by the Police for stealing PW1’s mobile phones. He collected the stolen phone’s number and dialed the number and accused answered. He told the Accused person that his son had been arrested for stealing and as his accomplice, so he should return the mobile phone. Accused told him that he will not return the stolen phone. PW4 No. 50776 G/Cpl. Tuffour Caleb stated that on 24/10/2022 he was on duty at DCID office at Techimantia and a case of conspiracy, unlawful entry and stealing involving James Oppong and Akwasi Afful Job was reported and referred to him for investigations. He arrested A1 whiles A2 was at large, he arraigned A1 before court and secured an arrest warrant for A2. Later on 24/05/2023 A2 was arrested and put before court. He took statements from both A1 and A2 and was instructed to charge them before court. After prosecution’s case the court ruled that there was a prima-facie case against the Accused which he needed to answer. Accused therefore opened his defence on 18/10/2023. The evidence of the Accused was that on the 24/10/2022 in the evening the weather was warm so he came to sleep outside. Whiles sleeping outside at Abass spot, Oppong James came and asked him what he was doing there and he stated that he was passing by and stopped over to chat with him. When they were chatting A1 took out his phone and was playing with it, whiles playing with his phone a man passed by that was Collins Boadi , when Collins Boadi passed by A1 followed him, and he also went into his room. The next day his master sent him money to come to Kumasi. It was whiles he was in Kumasi that A1’s father called him that his son had been arrested for stealing a phone, laptop, bag and money. They cut him with a knife and he became weak and they took him to the Police Station. He was again taken to the Hospital and his statement was taken in respect of the stolen phone and brought to court. The first count against the Accused is Conspiracy to commit crime to wit stealing contrary to Section 23 (1) and 124 (1) of the criminal Offences Act explains conspiracy as “If two or more persons agree to Act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be” as contained in the revised law by the Law Review Commission provides thus: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy or abet the criminal offence”. A case of conspiracy without proving that the persons involved agreed to act together to commit the offence shall fail. It is however not a defence for an accused person who is charged for conspiracy to state that he did not have a prior or previous concert or deliberation with the other accused persons to commit where there is an evidence that they agreed to act together to commit the offence. In this case PW1 stated that whiles he was sleeping in his room, he heard a strange noise and got up and surprisingly saw A1 and A2 in his room. When they realized that he was up they took to their heels. PW1 under cross-examination, A2 asked at page 5 of the record of proceedings. This is what transpired Q. How did you know I was the one when you were sleeping A. The light was on so I saw the faces of A1 and A2 Q. What dress was I wearing when you saw me A. I saw him wearing black top and black trousers, I did not see his shoe Here the Accused A2 did not dispute the fact that PW1 saw him wearing black top and black trousers. This clearly shows that A1 and A2 planned and agreed to steal from PW1 and they indeed succeeded. So here the offence of conspiracy will succeed. The effect of conspiracy, as defined by the court of Appeal is that for conspiracy to be established the persons involved must not only agree to act together, but they must agree to act together for common criminal purposes. The sole ingredient of conspiracy retained now is the existence of an agreement between two or more persons to act together to commit a criminal offence. In the case of AGYAPONG VRS THE REPUBLIC [2015] 84 G. M. J KORBIEH JA, delivering the judgment of the court of Appeal , reasoned as follows at PP. 161- 162 : “My own understanding of the difference between the old and the new one is as follows: Under the old formulation, the prosecution needed to prove only one of two things: one is that the Accused persons agreed to act together; the other is that even without previously agreeing to act together (as in the first instance) they acted together in furtherance of the commission of a crime. But under the new formulation, the prosecution has to prove one thing: that the Accused persons agreed to act together. So under the new formulation it is obligatory for the prosecution to prove that there was a prior agreement to act together in furtherance of the commission of a crime. In other words, under the old law, if the prosecution succeeded in proving that even without a previous agreement to act with a common purpose, the Accused persons nonetheless acted together to commit a crime, then the prosecution had succeeded. Under the new law, the prosecution cannot simply depend on proving that the Accused persons acted together, the prosecution must go further and prove that there was a prior agreement between or among the Accused persons to act together.” The complainant PW1 waking up in the middle of the night to see A1 and A2 in his room simply imply that the two conspired to commit a crime and that was to steal in the room of PW1. PW2 under cross-examination at page 7 of the record of proceedings this is what transpired. Q. Who saw us going to steal on that day? A. Since the two of us made up our mind to go and steal we did not tell anyone about it. Q. You are not my friend so how did we plan to steal A. We have been friends for a long time and we were even in Kumasi together and people are aware of our friendship. We have been friends from childhood. Q. I went to only class one its not true that we went to school together A. We have been friends from childhood , we went to school together and stopped in class 4 at Dwomo Methodist Community and my father took me to Dwomo and got to J. H. S 2 . The two of us were in Kumasi together to steal. The Accused did not deny all these answers given under cross-examination and it clearly established that the two were good friends who conspired to steal from PW1 that night. In the case of COMMISIONER OF POLICE VRS AFARI AND ADDO [1962] 1 GLR 483 the Supreme Court noted that it is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert and so indicating a previous agreement. In establishing conspiracy, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. A conspiracy may be proved by direct evidence, or by circumstances from which the court may presume it. Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done pursuance of an apparent criminal purpose in common between them. Because conspiracies are carried out in secret, direct proof of agreement is rare. Of course, direct evidence of that agreement need not be shown, an agreement can be inferred from the circumstances. The second offence or count is that the Accused was charged with is unlawful entry which is contrary to Section 152 of Criminal Offences Act 1960 Act 29. Unlawful entry is a second degree felony and committed only in relation to buildings. To constitute entry, it must be shown that either the whole or some part of the body of the Accused or an involuntary agent entered the building. In this case the complainant PW1 woke up and saw the Accused persons in his room. Under cross-examination this is what transpired at page 5 of the record of proceedings Q. He said he was in his room when I broke in, when I was breaking in where was he A. I was sleeping in the room Q. When you were sleeping and I was breaking in what did you tell me A. I was sleeping and therefore could not tell him anything Q. How did you know I was there when you were sleeping A. The light was on so I saw the faces of A1&A2. The Accused could not deny any of the answers that was given by PW1 when he cross- examined him. There is no doubt that PW1 saw the Accused and A1 in his room because the lights were on. To constitute entry since it must be shown that the body of the Accused entered the building, then prosecution was able to establish the offence of unlawful entry since A1 and A2 were seen by PW1 inside his room. In the case of KANJARGA VRS THE STATE [1965] GLR 479 AT PAGE 482 Ollennu said “To constitute that offence, the entry must be made with a purpose or intend to commit a crime. It follows that in addition to proven entry, the prosecution, to succeed, must prove that intent to commit a crime in the premises existed at the time of the entry and was the purpose for the making of the entry” Once the accused entered a building without justification, the offence is committed. The accused persons entered PW1’s room with no justification and therefore the prosecution was able to prove the offence of unlawful entry. The third Count against the Accused is Stealing Contrary to Section 124 (1) of the Criminal Offences Act 1960 Act 29. To establish the offence of stealing, three ingredients must be proved namely appropriation (actus reus), dishonesty (intention to steal or animus furandi) and that the Accused was not the owner of the stolen thing. In the case of MENSAH AND OTHERS VRS THE REPUBLIC [1978] GLR 404; the court emphasized the basic ingredients requiring proof in a charge of stealing a thing to be (i) that the person charged must not be the owner of it. (ii) That he must have appropriated it, and (iii) that the appropriation must have been dishonest. The Complainant PW1 after waking up noticed that his Techno Spark Pro, itel keypad phone, Huawei phone together with their chargers and Gucci slippers were stolen. Per the evidence adduced the Accused person wanted the court to believe that he did know A1 that they were not friends to have conspired to steal. Per the evidence of Accused he stated that whiles he was sleeping outside A1 came and they started chatting and this piece of evidence gives him away since someone who is not your friend can not just come and sit by you at that time of the evening to chat with you. PW3 under cross-examination said this at page 8 of the record of proceedings Q. What shows that I was the one who answered the call when you called A. I mentioned his name and he answered and I asked him to give the phone to a Kumasi Car and he said he will not bring it and cut the line Q. Did you call my number or the stolen phone’s number A. I called the stolen phone’s number Q. When you called who knew that I was the one that you called A. My son was there ie. Convict James Oppong aka Kwame Bosompem , Collins Boadi and the uncle of Collins Boadi called Wofa Kay. With all these answers the Accused could not deny any of these answers, there is no doubt that it was the Accused who stole the phone and Gucci with convict James Oppong. Section 11(2) of the Evidence Act NRCD 323 States “ In a criminal action the burden of producing evidence, when it is on the guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt”. Lord Sankey in Woolmington vrs DPP [1935] 25 Cr. App. R 72 at 95 stated “no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” Prosecution was able to prove beyond reasonable doubt that it was the Accused who stole the phones with A1 and the slippers. The Accused is therefore guilty of all the three counts of conspiracy, unlawful entry and stealing. The Accused is therefore convicted on all three counts and sentenced as follows: Accused is sentenced to 3 years IHL on count 1 which is conspiracy to commit crime to wit stealing. Accused is sentenced to 5 years IHL on count 2 which is unlawful entry contrary to Section 152 of criminal offences Act 1960 Act 29 and 5 years IHL for stealing. This is to serve as deterrent to the other members of the society since stealing has become very rampant. The sentences are to run concurrently. SGD H/H AKOSUA ASANTEWAA SARPONG ESQ (CIRCUIT COURT JUDGE) 10