REPUBLIC VRS OWUSU (D2/240/19) [2023] GHACC 1058 (27 November 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON TUESDAY, 27TH OF NOVEMBER, 2023, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE SUIT NO: D2/240/19 THE REPUBLIC VRS. 1. YAW OWUSU 2. COLLINS OTI ACCUSED PERSONS JUDGEMENT ON 22/10/2019, A1 alone was arraigned before the court on one count of attempt to commit crime to with robbery. The charge sheet was amended with A2 added to the charge sheet and the charge of conspiracy to commit crime to wit robbery added as the first count in addition to the charge of robbery. The charge sheets suffered yet other amendments on 11/5/2020 and 17/6/2020. The latter charge sheet brought in another person one Evans Kwabena Asare as third accused person. A3 filed a notice of alibi which checked out after investigations, he was therefore discharged by the court upon prosecution’s submission. Currently only A1 and A2 stands charged on Further Amended Charge Sheet filed on 26/08/2021 with a count of conspiracy to commit crime to wit robbery contrary to Sections 23(1) and 1 and attempt to commit crime to wit robbery contrary to sections 18 (1) and 149 of Act 29. Accused person pleaded not guilty to the charges after same were read and explained to him in Hausa. Facts of the case per the facts sheet are as follows “The complainant is an optometrist at Trust Hospital Osu, residing at North Kaneshie. 1st accused is a porter whilst 2" accused is a trader at Kwame Nkrumah Circle. On the 10th day of October 2019 at about 6:20am, complainant set off to work and on her way to pick a car, she met both accused persons on a Royal motor bike with registration number M- 19 GW 4469 with 1st accused being the pillion rider. They approached the complainant and asked her for directions to Swanlake. After giving the accused persons the directions, the 1st accused armed with an "okapi' knife together with 2d accused asked the complainant to surrender her hand bag containing an Infinix Hot phone, lab coat, ID card, National Service documents, a phone charger, sunglasses and cash the sum of GH¢230.00. The complainant refused to hand over her bag and started running and shouting for help. The 1st accused and his accomplice crossed her with the motorbike and pushed her to the ground. 15 accused held the bag in attempt to snatch it from the complainant and resulted in a struggle between 1st accused and complainant. During the struggle, one Blay Morkeh, a witness in the case in charge of unregistered Hyundai Elantra vehicle with registration number DV 3959-19 driving towards same direction spotted the act and quickly moves to the spot. The accused persons sensing danger the escape abandoned their mission and quickly jumped onto the motorbike to escape. The witness chased the accused persons with the car and crushed them on a fenced wall of a school. 1st accused was arrested at the spot by people around and was handed over to the police. The 2 accused managed to escape. During investigations, 1st accused admitted the offence and mentioned one Kwabena as his accomplice. 1st accused was charged with the offence and put before the court on 22/10/2019 and was remanded to reappear on 7/11/2019. On 7/11/2019, 2nd accused was identified by the complainant at the courtroom as an accomplice to the 1st accused and was arrested outside the court for investigation. During investigations, 2 accused pleaded alibi. Further Investigation did not support the 2nd accused claim of not being within the jurisdiction at the time and date of the crime and was charged with the offence and put before the court”. BURDEN OF PROOF Section 11(2) of the Evidence Act NRCD 323 provides that: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to 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 reasonable doubt” Section 15(1) of NRCD 323 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” In criminal trials, it is the prosecution that initiates the proceeding that has the burden to prove the guilt of the accused person or persons beyond reasonable doubt. The accused person or persons need not prove his or their innocence, the only burden on the accused person(s) whenever the law requires that he makes his defence is to produce sufficient evidence so that on the totality of the evidence produced, a reasonable mind could have a reasonable doubt as to his guilt. This has been codified in Section 13(2) of NRCD 323 that: “Except as provided in Section 15(3), in a criminal action, the burden of persuasion, when it is on the accused as to a fact essential to guilt, requires only that the accused raise a reasonable doubt as to guilt” In the case of Commissioner of Police vrs Isaac Antwi [1961] GLR 408 Korsah CJ stated that: “the fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” His Lordship Dotse JSC stated thus on the burden of the prosecution in criminal trials in the case of Richard Banousin vrs The Republic 2015 1 GNSCLR 439 that: “It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases. A corolary to the above rule is based on the fact that an accused is presumed innocent until he is proven guilty in a court of law. ... What “beyond a reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring the innocence of the accused” Prosecution called three witnesses in proving their case. Complainant, Dr Elsie Emelia Yerbert, Blay Morkeh and investigator Inspector Emmanuel Ashorm testified as PW1, PW2 and PW3 respectively. They all relied on their witness statements filed on the 7th of February, 2022. PW1 tendered in evidence her statement made to the police as exhibit A. PW2 tendered his statement to the police as exhibit B whilst PW3 tendered in evidence the following exhibits i. Investigation Caution Statement of A1 marked exhibit C, C1 ii. iii. iv. v. Investigation Caution Statement of A2 marked exhibit D Charge statement of A1 marked exhibit E Charge sheet of A2 marked exhibit F Photograph of a jackknife marked exhibit G A2 in the middle of the trial failed to appear for the conduct of the matter. His defence to the action was therefore not heard by the court. A1 however testified orally without calling any witnesses in his defence. COUNT ONE CONSPIRACY Having set out the burden of proof on the prosecution I would proceed to deal with the charges. Accused persons are charged with conspiracy to commit crime to wit robbery and attempt to commit robbery Section 23 (1) of Act 29 reads: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet”. In the case of Kwaku Frimpong a.k.a Iboman v The Republic Criminal appeal J3/5/2010, 18th January 2012, the Supreme Court per Brobbey (Presiding), Adinyira, Owusu (Ms) , Dotse and Gbadegbe JJSC held the view that it is important to note that in a charge of Conspiracy, it is sufficient if the prosecution succeed in proving the essential ingredients of the offences of conspiracy to commit robbery and expounded same as follows : i. Agreement to commit the unlawful act of robbery – acting for a common design. There need not be any prior deliberation. ii. Intention on their part to commit that unlawful act – this was manifested in their common pursuit of the robbery agenda. The position of the Supreme has watered down to a large extent the challenge the review posed. The Supreme Court of the land in the recent case of FAISAL MOHAMMED AKILU v THE REPUBLIC [2016-2017] SCGLR 444 per Yaw Appau JSC stated the current Ghanaian law on conspiracy as follows: “From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime. However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”. (Emphasis mine). Accused person is alleged by prosecution to have attempted to commit the crime of robbery. Section 18 of Act 29 provides that a person who attempts to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent by reason of the imperfection or other condition of the means, or by reason of the circumstances under which they are used, or by reason of the circumstances affecting the person against whom, or the thing in respect of which the criminal offence is intended to be committed, or by reason of the absence of that person or thing. Section 149 (1) and (3) of Act 29, respectively provides as follows; “(1) Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is 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. (3) In this section “offensive weapon” means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and “offensive missile” includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown.” Section 150 of Act 29 further defines robbery in the following terms; “A person who steals a thing commits robbery— (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person; or (b) if that person uses 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 thing.” The essential ingredients of the offence that the prosecution must establish to secure conviction as stated by the Supreme Court in the case of Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 at 312, per Dotse JSC are as follows; i. That the accused person stole something from the victim of the robbery of which he is not the owner. ii. That in stealing the thing, the accused person used force, harm or threat of any criminal assault on the victim. iii. That the intention of doing so was to prevent or overcome the resistance of the victim. iv. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in the restrictive sense v. The thing stolen must be in the presence of the person threatened. Stealing is also defined as under section 125 of Act 29. Per this section, a person steals if he dishonestly appropriates a thing of which he is not the owner. Anything of the least value could be a subject matter of stealing. (see section 123 of Act 29). An appropriation of a thing means any moving, taking, obtaining, carrying away or dealing with a thing with the intent that some person may be deprived of the benefit of his ownership or of the benefit of his right or interest in the thing or in its value or proceeds or any part thereof. See section 122 of Act 29. Prosecution is further required to establish that in stealing the thing, force or harm or threat of harm was used by the accused. The force or harm or threat of or harm must be caused either to the person being robbed of the property or any other person whose resistance the force or harm or threat of harm or assault is intended to overcome. The means of assault used by the accused must be either actual bodily harm or threat to cause such harm. A threat of force or harm may be implied as well as expressed. So long as one intends the other to understand, and the other so understand, that force will be used against him if he seeks to prevent the theft, the theft is accomplished by the threat of force or harm. An attempt to commit robbery is an inchoate offence which looks at the mind of accused person i.e mens rea and not necessarily the completion of the act i.e actues rea. Therefore where person make up his/her mind to commit an offence and takes further steps to get the offence committed, the inability to complete “perfect’ the intention is punishable as if the substantive offence had been committed. In this case, the court is to determine whether or not accused had the mens rea to commit the offence of robbery and took steps to execute the said robbery. Pw1, on oath testified that on the 10/10/2019, at about 6.20am whilst on her way to work, she met Accused persons herein at North Kaneshie on an unregistered red motorbike. They asked her for directions to Swanlake and after she had directed them, they suddenly got down from the motorbike and ordered her to surrender her handbag to them. According to her, A1 pulled a jackknife at her. She refused to surrender the bag and started screaming whilst trying to run. Accused persons herein struggled with her over the bag and chased her on their motorbike. Pw2 driving to the scene of the offence saw hat was happening and crushed into the motorbike riding by the accused persons. Accused persons got up to run but luck eluded A1 and he was arrested on the scene by PW2 and another person. PW2 stated further that on 17/11/2019, she identified A2 in the courtroom and he was later arrest. Pw2, corroborated the evidence of PW1. According to him early morning of 10/10/2019, he was running an errand for his boss. On his way, he chanced upon A1 and A2 attacking complainant who was then struggling with them as they tried to snatch her bag from her. He stated that A1 was holding a knife in an attempt to stab PW1. Accused persons upon sensing him approaching with his unregistered Hyundai Elantra vehicle quickly jumped unto their unregistered motorbike and sped off. He chased them with his vehicle until he crushed them into the fence wall of Patson Early Childhood Development School which caused total damage to his vehicle. he later gave his statement to the police. PW3, testified that on 10/10/2019 at about 7.10am, PW1 and PW2 brought A1 who had been placed under civilian arrest to the Kaneshie Police station on a complaint of attempted robbery. The docket was referred to him for investigations. He stated that he immediately took statement from complainant and other witnesses and immediately proceeded to the crime scene with complainant and accused person. Investigations at the scene according to him revealed that A1 on board a motorbike as a pillion rider together with an accomolice attempted to snatch the hand bag of PW1 which contained her infinix Hot Phone, lab coat, ID card, National Service documents, phone Charger, sunglasses and cash sum of GHC230. They were however crushed into a school fence wall at North Kanseshie by PW2 who chanced upon the incidence and A1 was arrested whilst his accomplice managed to escape. He testified further that in the investigation caution statement of A1, he admitted the offence and mentioned one Kwabena as his accomplice. On the 07/11/2019, A2 was identified in the court from as the accomplice of A1 by Pw1. He therefore caused the arrest of A2 and investigated his alibi plea. According to PW3, the plea of alibi of A2 did not check out. Further investigations conducted at DVLA regarding the motorbike disclosed that the motorbike was in the hands of A3 and this led to the arrest of A3. A3 denied the offence and contended he gave the motorbike to a spare rider called “this way” but failed to assist the police to arrest the said person. Prosecution’s evidence establishes that A1 and A2 acting together on the 14/04/2019, at North Kaneshie, attempted to carry away the hand bag of PW1. The evidence further establishes that A1 pulled a knife on PW1 and struggled with her in an attempt to take the said hand bag from PW1 without her consent but same was flawed due to the timely intervention of PW2. It has been held in the case of in the English case of MILLER V MINSTER OF PENSIONS [1947] 2 ALL ER 372 at 373. It was held by Lord Denning J (as he then was) that “… it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt… 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”. Also in the case of Darko v The Republic [1968] GLR 203, holding 2 the court held that: “This presumption therefore places upon the prosecution the burden of proving accused/appellant guilty beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt.” Accused person were therefore called upon by the court to open their defence to the charges established against them at the close of prosecution’s case. Accused in his defence testified that on Thursday 10/10/2019, he was riding a motorbike going home as a pillion rider. Whilst going home a vehicle hit them and they all fell to the ground. According to accused that was the first time he was involved in this incident, he stood at the side when he got up. He then heard people shouting that he was a thief. He was arrested and taken to the Kaneshie Police Station and his statement taken on Saturday. A1 denied the offence and contended that although the police claim that he was holding a knife on the day of the incident, till date he has not seen this knife or cutlass they alleged he as wielding. In considering whether or not the defence of A1 on oath is reasonable, and the statement given to the police by accused and his evidence on oath are inconsistent. In exhibit C, C1, accused person confessed to acting together with one Kwabena to commit the offence of robbery and gave a vivid narration of how the incident occurred on the said date. It has been held in the of State v Otchere supra and BUOR V THE STATE [1965] GLR 1, SC that the evidence of a witness during trial which is found to be contradictory of a previous written statement given by him should not be given much weight. The case of AKOWUAH V COP [1963] 2GLR 390 however held that in such cases, the question of whether any credence should be given to such evidence should be left to the trial court. The confession of accused to the offence of attempt to commit the crime of robbery as contained in exhibit C, C1 has not been contradicted and content of exhibit A corroborate the evidence of both Pw1 and PW2. It has been further held in the case of State v. Otchere, supra that “A confession made by an accused person of the commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused.” Also in the case of Billa Moshie v. The Republic [1977] 2 GLR, 418, CA, in its holding 2 stated: “A conviction could quite properly be based entirely on the evidence of a confession by a prisoner, and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness” Accused having confessed to the offence of attempt to commit crime to with robbery coupled with the evidence of PW1 and PW2, justaposed with the evidence on oath of accused fails to raise reasonable doubt in the mind of the court as to his guilt on count 1 and 2, the court finds that prosecution at the close of the entire case has established beyond reasonable doubt that A1 and A2 acted together to commit the crime of robbery and did attempt to commit the offence of robbery by forcefully and with the use of a jackknife threatening PW1 to surrender her hand bag containing her belongings. But for the timely intervention of PW2, accused persons would have succeeded in carrying away the hand bag of PW1 without her consent with the use of force and weapon. Accused persons are accordingly found guilty on both count one and two and convicted of same forthwith. SENTENCING Per section 149 subsections (1) (3) of Act 29, 1960 as amended by Act 646, 2003 whoever commits robbery is guilty of an offense and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offense is 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. In sentencing accused persons, the court takes into consideration the following mitigation factors; accused being a young man in his prime, accused being a first time offender, items retrieved, accused person’s plea for leniency, accused being a family man with a child, the period of 4 years spent in lawful custody by accused person due to his inability to execute the bail terms as well as the general composure and conduct of accused throughout the trial. The court further takes into account the aggravating factors in the case ie. use of jack knife in the commission of the offence. Juxtaposing the mitigating factors and aggravating factors, ie. age of the accused, the court imposes the minimum sentence for the offence of robbery with the use of weapon as per sections 149 subsections (1) (3) of Act 29 as amended. Accused is sentenced to 15 years imprisonment I. H. L in respect of count 1 and 15 years imprisonment I. H. L in respect of count two forthwith. Sentence to run concurrently. In respect of A2, the court sentences him also to 15 years imprisonment I. H. L in respect of count 1 and 15 years imprisonment I. H. L in respect of count two forthwith. Sentence to run concurrently. A2’s imprisonment sentence shall take effect from the date of his arrest. Warrant for commitment to be endorsed with the date of arrest of A2 for the sentence to take effect from the said date. 1ST ACCUSED PERSON PRESENT SELF REPRESENTED 2ND ACCUSED PERSON ABSENT C/INSPECTOR SAMUEL AHIABOR WITH INSP N. A. BOATEMAA H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 15