REPUBLIC VRS ADOTEY (CC 7/91/22) [2023] GHADC 870 (21 November 2023)

CORAM: IN THE AMASAMAN DISTRICT COURT B HELD ON 21st NOVEMBER, 2023 BEFORE HER WORSHIP ANNETTE SOPHIA ESSEL (MRS.) SITTING AS MAGISTRATE CC 7/91/22 THE REPUBLIC VRS BERNARD AKAN ADOTEY JUDGEMENT In the wise words of Taylor J. in the case of Lanquaye v. The Republic [1976] 1 GLR 1 at p. 13: "the courts have a duty to ensure the integrity of the legal process by ensuring a fair administration of our adversary system of justice." INTRODUCTION: In the instant case the accused Bernard Asante is charged with the offence of Stealing; contrary to Section 124(1) of The Criminal Offences Act 1960 (Act 29) for allegedly appropriating one iPhone 11 Pro Max mobile phone handset the property of Madam Anastacia Koomson on 3rd August, 2020. Accused person pleaded not guilty. FACTS OF THE CASE: The facts of this case as presented by the prosecution verbatim are that Complainant; Anastasia Koomson is a nurse by profession and resident at Tantra Hills whereas the Accused person Benard Akan Adotey is unemployed and lives at Teshie. Complainant on the 3rd say of September, 2020, made a complaint to police to the effect that she is a practicing nurse and works with Urgent Care Hospital located at Petroleum-New Achimota and the early hours of that morning she had closed from night’s shift and walking by the road side heading towards Fidel Pharmacy when the Accused person, who was in charge a Toyota Corona Salon car approached her and asked her for directions and later asked if she knew a vacant room up for rent in the neighborhood, to which the complainant replied in the negative. Complainant further reported that, the Accused person drove on to about a hundred (100) meters, turn and drove slowly towards her and swiftly, whisked her iPhone 11 Pro Max mobile phone valued GH¢7,000.00 away. Police launched a man-hunt for him with the description of the Accused person as well as the vehicle he drove that day but not much information was gathered as the complainant could not readily remember the car’s registration. Fast forwards, on Friday 12th of August, 2022 the Accused who was then driving a blue-colored Hyundai Sonata salon car, came upon complainant at New Achimota, around Jesus and Mary schools Limited while she was on her way to work and played the same old card on her but this time complainant had made him out from their previous encounter and so she started screaming and by the time the help arrived, the Accused person had sped off. Around noon of the same day, while complainant was attending to patients, a lady with fractured arm and bruises on her body walked in and narrated the ordeal she had suffered at hands of a young gentleman in a car fitting the description by Complaint had already stated, who had snatched her mobile phone and while fleeing, had run over the lady’s arm with the car and drag her on the ground. Complainant, on Monday the 15th of August, came over to the station to make a further report on her meeting the Accused in the neighborhood again, met the Accused person in custody over similar modus operandi used on her by the Accused person. She identified the Accused as the one who snatched her mobile phone some 23 months ago. Statement on Caution was taken from the Accused and was as well charged after investigations and arranged before this Honorable Court. ISSUE FOR DETERMINATION: From a careful examination of the charges and the facts presented the court had to determine whether or not the accused person stole the mobile phone handset above-mentioned. BURDEN OF PROOF; It is apt before I proceed to evaluate the evidence led during trial that I set out the burden that prosecution bears in a criminal case of this nature. Section 11(2) of the Evidence Act, 1975 (NRCD 323) states that; “In a criminal action the burden on the prosecution of facts essential to guilt requires the prosecution to produce sufficient evidence so that the court can find the guilt of the accused proved beyond reasonable doubt.” Section 13(1) of the Evidence Act, 1975 (NRCD 323) states as follows: ‘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’. And there seems to be a further emphasis under Section 22 of the Evidence Act 1975 (NRCD 323) which states that: “in a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt…” In the wise words of His Lordship, Eric Kyei Baffour, JA. sitting as an Additional Justice of the High Court in the case of The Republic v Eugene Baffoe Bonnie Suit & 4 Others Suit No. CR/904/2017: “As far as the standard of reasonable doubt is concerned there is no room for an accused to be convicted on the basis that the charges or the allegations against him might be true. If there is such a possibility then what it means is that prosecution has not made out a case or has not proved its case beyond reasonable doubt. There could be a doubt only that the doubt should not affect a reasonable person’s belief regarding the guilt of an accused. It is on that score that Lord Denning notes in Miller v Minister of Pensions [1947] ALL ER 372 @ 373 that it is needless for prosecution to attempt to proof the guilt of the accused beyond a shadow of doubt since that standard will be impossible to attain and were the law to allow that there will be the admission of fanciful possibilities to deflect the course of justice. In effect and in simple language the standard expected of prosecution by reasonable doubt means that by the end of the trial prosecution must prove all the elements of the offences charged and the explanations offered by the accused must be one that is not reasonable probably. See Justice Brobbey in his work Essentials of Ghana Law of Evidence at pages 48-55. Lord Chief Justice of the King’s Bench from 1822 - 1841, Charles Kendal Bushe put what is reasonable doubt in a much more elegant language as follows: ‘‘… the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party, preoccupied by prejudice or subdued by fear’’. Accused however is not under any obligation to prove his innocence as the burden of proof is on the prosecution throughout the trial. All that an accused is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. It is only when the defence raised is not reasonably probable that an accused would be convicted. In the wise words of Her Ladyship Sophia Akuffo (Mrs.) JSC. (as she then was) as she aptly put it in the case of Mallam Ali Yusuf Isah v The Republic [2003-2004] SCGLR 174 that: “The burden of producing evidence and the burden of persuasion are the components of 'the burden of proof.' Thus, although an accused person is not required to prove his innocence, during the course of his trial, he may run a risk of non-production of evidence and/or non-persuasion to the required degree of belief, particularly when he is called upon to mount a defence’’ EVIDENCE ADDUCED BY PROSECUTION: The evidence of the prosecution was advanced by only the investigator in charge of this case; D/PW/INSPR. Priscilla Nkrumah Peprah (PW1) as the complainant failed, refused and neglected to appear before the court to testify. PW1 tendered disclosures and was cross-examined by Accused on same. In her Exhibits B & C which are Accused statements given at the police station he denied ever meeting the complainant what more committing the offence. During cross-examination of PW1, below is a snippet of what transpired in court: Q: A: When the case was referred to me, how did the complainant identify me? The case was reported on 5th September, 2020 during that time, we were unable to arrest accused. In September, 2022 latter part I am not sure of the date, accused who had been arrested for similar offense was brought into our custody. The complainant who had had an encounter with him again on the day this new incident happened fled up to our station to make follow up complaint on her recent encounter with him. It was around the time she had come to the station to make this follow up complaint that she saw and identified accused. Q: Do you have any evidence to the effect that I committed the offense A: Yes, my Lady I gathered evidence from the complainant herself. I fled up to the scene of the incident and spoke with some security men who were on duty on that stretch of road. What I gathered is that the evidence is in my witness statement. DEFENCE OF ACCUSED: In his statements to the police, the accused person denied the charge against him. He strongly maintained that he had never sighted or encountered the accused person what more commit this offence. Again, during trial, he vehemently maintained his previous statements to the Achimota Mile 7 Police Station of not ever encountering the complainant. Below is a snippet of what transpired during cross examination of the accused person: Q: On 3rd September, 2022 in the morning, you met the complainant: Anastacia Koomson at New Achimota near Fidel Pharmacy, is that correct? A: That is not so my Lady. I have never met Anastacia Koomson. Q: You asked her whether she knows of a room which is up for the rent, is that correct? A: As I said earlier on I have never met Anastacia Koomson. Q: Do you agree with me that you approached the Complainant first and asked for directions? A: No, I do not agree. Q: Secondly you asked if she knows of any accommodation up for rent in the neighborhood and that correct. A: No, my Lady I have never seen the complainant before. Q: Do you remember that on that fateful day, you forced the complainant to take your contact number? A: No, my Lady. There is nothing of that sort. Q: I am putting it to you that you forced her to take your contact number and she did it. A: no, my Lady. I have never seen the complainant before. Q: So, you are telling this Honourable Court that you know the complainant. Is that correct? A: My Lady I do not know the complainant. I only saw her at Achimota Mile 7 Police Station. Q: I am putting it to you that you snatched complainant IPhone 11 Pro Max without her consent. A: That is not so. As I said earlier, I do not know complainant. It was only at Mile 7 Police Station, I saw her. ANALYSIS: To quote one of the famous latin maxims in criminal jurisprudence, ‘Nullen crimen nulla poena sine lege’ (there is no crime nor punishment except in accordance with law). This time-honoured practice or rule of procedure is given a voice under Section 173 of Ghana’s Criminal and Other Offences (Procedure) Act, 1960 (Act 30) which provides that: “Where at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused person”. At this stage only evidence that establishes that of the first appearance or prima facie the ingredients of the crime for which accused is standing trial can be considered and not proof beyond reasonable doubt which can only be determined at the end of the whole trial that is the case of the defence and the prosecution put together as held by Modibo Ocran JSC. in Holding 5 of the case of Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068. This means that the prosecution must lead evidence to prove the essential element or ingredients of the charge and secondly that evidence must not be discredited under cross-examination to an extent that no reasonable court can safely base a conviction on it. For this reason, it is important that the essential ingredients of the charge with which accused has been charged is clearly laid out to enable the court assess the evidence produced by the prosecution in support of the essential ingredients and also to determine whether the evidence led by the prosecution has sufficiently established the essential ingredient s of the crime. The English Law Dictionary by P. H. Collin 1986-87 at page 98 defines ‘essential’ as that which is very important while ‘elements’ is defined as the basic parts of something. Section 124(1) of The Criminal Offences Act of 1960, (Act 29) states that stealing is a second, degree felony. It provides as follows: Section 124—Stealing (1) Whoever steals shall be guilty of a second-degree felony. The definition of the offence of stealing can be found under Section 125 of the Criminal Offences Act, 1960 (Act 29) which defines stealing as: “‘the dishonest appropriation of a thing by a person of which that person is not the owner.” Under Section 120 of the Criminal Offences Act, 1960 (Act 29) an appropriation of a thing is dishonest: (a) if it is made with an intent to defraud, or (b) if it is made by a person without a claim of right, and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is trustee or owner of the thing, or that the appropriation would, if known to the other person be without the consent of the other person. An appropriation of thing in any other case means any moving, taking, carrying away or dealing with a thing, with the intent that the person may be deprived of the benefit of the ownership, of the that thing or of the benefit of the right or interest in the thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing. In the case of Ampah v The Republic [1977] 2 GLR 171 the three elements of stealing were identified as dishonesty, appropriation and property belonging to another person. Azu Crabbe CJ stated that: “The offence of stealing is created by section 124 of the Criminal Code, 1960 (Act 29), and in section 125 "stealing" is defined as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner." Therefore, to establish the offence the prosecution are required to prove only the three elements of: (i) dishonesty; (ii) appropriation; and (iii) property belonging to another person.” Also, in the case of Lucien v. The Republic [1977] 1 GLR 351 Taylor J. defined the basic ingredients of stealing as follows: (1) Person charged must not be owner of thing stolen; (2) He must have appropriated it; and (3) The appropriation must have been dishonest In holding two, Taylor J. stated that: “The only basic ingredients requiring proof in a charge of stealing were that: (i) the person charged must not be the owner of the thing stolen (ii) he must have appropriated it and (iii) the appropriation must have been dishonest.” On proof of ownership, the court held that a charge of stealing is founded not on a relationship between the person charged and an identified owner, but on the relationship between the person charged, and thing alleged to have been stolen. Therefore, the law only requires proof that the accused was not the owner of the chattel. From the above ownership of the money is not in doubt. What is in doubt is whether or not accused appropriated the mobile phone handset. The only evidence of the prosecution on this issue is the complainant statement and statements taken from persons present at the crime scene as at the visit of PW1. Beyond what she was told there was no evidence of transfer of ownership of the said item from complainant to accused. Significantly, the complainant whose evidence would have been material to the establishment of appropriation by the accused person was not available to be cross-examined on testimony filed by prosecution. The question as to whether accused appropriated the said item has not been answered by the prosecution as per their exhibits tendered in support of their case. In the absence of any such material evidence, it will be difficult to establish any appropriation, if at all on the part of the accused person. Another crucial element in a charge of stealing to be proven by prosecution in this case was whether the appropriation was dishonest. That an appropriation is dishonest may be proved in a number of ways. Thus, it is explained in Section 120(1) of the Criminal Offences Act,1960 (Act 29) that an appropriation of a thing could be deemed to be dishonest if it is proved that the appropriation was made: (i) with intent to defraud; or (ii) by a person without any claim of right; and (iii) with a knowledge or belief that the appropriation was without the consent of some person for whom he was a trustee or who was the owner of the property appropriated; or (iv) that if the appropriation was known to the trustee or owner of the property, it would be practically objected to. It is stipulated in Section 120 of the Criminal Offences Act, 1960 (Act 29) as follows: Section 120—Explanation as to Dishonest Appropriation. (1) An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent. (2) It is not necessary, in order to constitute a dishonest appropriation of a thing, that the accused person should know who is the owner of the thing, but it suffices if he has reason to know or believe that some other person, whether certain or uncertain, is interested therein or entitled thereto, whether as owner in his own right, or by operation of law, or in any other manner; and any person so interested in or entitled to a thing is an owner thereof for all the purposes of the provisions of this Code relating to criminal misappropriations and frauds. (3) The general provisions of Part I with respect to consent, and with respect to the avoidance thereof by force, duress, incapacity, and otherwise, apply for the purposes of this section, except as is hereafter in this chapter expressly mentioned with respect to deceit. Dishonesty in Section 124 of the Criminal Offences Act, 1960 (Act 29) relates to a state of mind of the person who does the act which amounts to appropriation. Whether an accused person has a particular state of mind is essentially a question of fact which has to be decided by the jury on a trial on indictment, or by the circuit judge or magistrate in summary proceedings. In the case of R. v. Feely [1973] Q. B. 530, C. A. the court held that: "The whole test of dishonesty is the mental element of belief." When one looks at the mental state of an accused person, one looks at it in the light of what he intended or what he believed. It is in each case a question of fact for the court. Sadly, prosecution led no evidence with respect to this element of the above- mentioned offence. This because it is the considered view of the court that merely because the accused person was identified at the Achimota Mile 7 Police Station for committing a similar offence does not amount to a dishonest appropriation unless the contrary is proven by the prosecution. In the case of Miller v Minister of Pensions [1947] 2 ALL ER 372@ 373 Denning J in stating the standard of proof required of the prosecution said inter alia that: “that degree is well settled. It need not reach certainty but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. This would fail to protect the community if admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong 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.” FINDINGS: The Black’s Law Dictionary 8th Edition by Brian A Garner (editor) defines suspicion as: “The apprehension or imagination of the existence of something wrong based only on inconclusive evidence or possibly even no evidence.” Reasonable suspicion is further defined as: “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” It is clear from the above definitions that suspicion no matter how grave and numerous cannot amount to the guilt of an accused person. Evidence is said to be sufficient when it is of such probative force as to convince and which if uncontradicted will justify a conviction. Per Lord Wright in the case of Caswell v Powell Duffryn Associated Collieries Ltd [1940] A. C. 152; [1939] 3 All ER 722: “Where therefore the evidence adduced on behalf of the prosecution fails to take the case out of the realm of conjecture, the evidence is best described as insufficient.” The facts of this case as presented by prosecution amounts to no more than mere suspicion. The evidence against the accused person in this case is completely circumstantial. I think it is settled that where circumstantial evidence has to be considered the law requires a particularly high standard of proof. The main basis of the prosecution’s case is that the accused person was identified by the complainant at the police station as the one who stole her mobile phone handset and no more. This evidence is given by only one prosecution witness; the investigator as the complainant failed, refused and neglected to appear before the court to testify in her own case which charge is denied by the accused person. There is nothing else on the record to indicate which version is the true one. It clearly is not compelling and persuasive enough for a case of stealing to be established against the accused person. In the case of Mali v The State [1965] GLR 710 the Supreme Court held that if at the end of the case for the prosecution the court requires further evidence before it can decide on the issues raised in the case for the prosecution, the irresistible inference is that the prosecution has failed and the accused should be acquitted. Ollenu JSC stated in his erudite judgement that: “If evidence led on behalf of the [p.715] defence makes the court require an independent witness or further evidence to enable it to decide the issues raised in the evidence given by the prosecution, the irresistible inference is that the evidence led on behalf of the defence has created a reasonable doubt in the mind of the court. In that situation the court is under a legal duty to acquit.” DISPOSITION: In conclusion, on the basis of all the above the court hereby acquits and discharges the accused person on grounds that prosecution has not led sufficient evidence to establish the essential ingredients of the offence of Stealing; contrary to Section 124(1) of the Criminal Offences Act, 1960 (Act 29). Accordingly, the accused person is acquitted and discharged. H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE 14