REPUBLIC VRS MILLS (D2/90/22) [2023] GHACC 1052 (20 November 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON 20TH DAY OF NOVEMBER, 2023 BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE SUIT NO: D2/90/22 THE REPUBLIC VRS. 1. LORDFRED HEWARD MILLS 2. LAWRENCE ANSU ASANTE ACCUSED PERSON JUDGMENT Accused persons herein were arraigned before the court on 9/12/2021 on a charge sheet filed on 08/12/2021. Prosecution after amending the charge sheet twice finally settled in the Amended Charge Sheet filed on 29/12/2021 for the trial of the matter. Per this charge sheet, Accused persons stand trial for one count each of Conspiracy to commit crime to wit Uttering of forged documents contrary to section 23 and 169 of Criminal Offences Act, 1960, Act 29, hereinafter referred to as Act 29 and Uttering of forged document contrary to section 169 of Act 29. On 16/01/2022, the plea of accused persons and they pleaded not guilty to all the charges. Facts of the case per the charge sheet is BURDEN OF PROOF In every criminal prosecution, when an accused person denies an offence, prosecution assumes a statutory obligation to prove the guilt of the accused beyond reasonable doubt. Section 11(2) of the Evidence Act, 1975, NRCD 323 (hereinafter referred to as NRCD 323) with specific reference to criminal cases reads “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 13(1) of the Evidence Act 1975 NRCD 323 provides the extent of proof or the burden on the prosecution in a criminal action thus: (1) In a 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 NRCD 323 that provides ‘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 case of TAMAKLOE VS THE REPUBLIC (2011) SCGLR 29 at 46 it has been held that, where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is sine qua non to securing conviction, unless the same statute places a particular burden on the accused. It is also important for this Court to bear in mind that the Constitution 1992 Article 19(2)(c) presumes everyone innocent until the contrary is proven. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution and it is only after a prima facie case has been established by the Prosecution that the accused person is called upon to give his side of the story.” See the case of Gligah & Anr. v The Republic [2010] SCGLR 870 Accused is not obliged to prove his innocence. All that an accused is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. The Supreme Court has held in the case of MALLAM ALI YUSIF 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’’ Prosecution called three witnesses in proving their case. The investigator of the matter, No. 43882, D/Sgt Godfred Asamoah stationed at the Community 18 Police station testified as PW1. He stated that on 23/11/2021, a case of uttering forged documents was referred to him for investigation whilst on duty. As part of his investigations, he obtained ordinary statements from the complainant in the matter in the person of Kwame Daniels, the then Registrar of the Circuit Court Accra and Eric Ansah Agyei and took investigation caution statements from accused persons who had been arrested at the court premises on the instructions of H/H Essandoh of blessed Memory. According to PW1, investigations revealed that A1 and A2 stood as sureties for one Jeffery Wilson Ofori in a criminal case before the Circuit Court 4 Accra and were given an amount of GHc3,500 by Eric Ansah to be paid into court on behalf of the said Jeffery Wilson Ofori. Accused person failed to pay the money into court but rather shared it among themselves and forged a receipt which they gave to Eric Ansah Agyei as proof of the payment of the GHC3,500 into court. Pw1 continued that he wrote to the Judicial Service to ascertain the genuineness or otherwise of the receipt. The response letter from the Judicial Service dated 26/11/2021 confirmed that the receipt and the stamp are not genuine. He accordingly charged accused persons with the offences. PW1 tendered in evidence the investigation caution statement of accused persons dated 24/11/2021 as exhibits A and B; Letter from Ghana Police to the Judicial Service marked exhibit C; Letter from the Circuit court Accra to the Ghana Police dated 26/11/2021 marked exhibit D; Photocopy of Judicial Service receipt dated 11/06/2021 marked exhibit E caution statement of accused persons dated 6/12/2021 marked exhibit G respectively. Kwame Daniels, the then Registrar of the Circuit Court, Accra testified as PW2. According to him, he got to know accused persons when H/H Essandoh deceased, of the Circuit Court 4, Accra ordered for the arrest of accused persons for presenting a fake judicial service receipt before him in a matter of The Rep. v Jeffery Wilson Ofori which was pending before him. He stated that in open court, H/H Essandoh told hi that Eric Ansah Agyei a representative of accused in that case presented a judicial Service receipt with face value Gh3,500 as payment made into court but he suspected same to be fake. The judge therefore tasked him to verify the genuineness of the receipt. He continued that upon going through the records, he found that the receipt was not emanating from the registry of the court as indicated on same. Eric Ansah Agyei identified accused persons ad the people who gave him the fake official judicial service receipt as payment made into court on behalf of Jeffery Wilson. Eric Ansah Agyei, representative of the said accused Jeffery Wilson Ofori testified as PW3. He identified accused persons herein a sureties of Jeffery Wilson Ofori an accused person before the Circuit Court 4, Accra. According to him, in the month of June 2021, Jeffery Wilson gave him an amount of GHC3,500 to pay into court on his behalf. He called accused persons herein that he was coming to court to pay same into court. On reaching the court premises, he met accused persons who told him they were going to inform the prosecutor in the matter since he knew nothing about court processes. After waiting for 4 hours, A2 went to him and told him to go and come back the next day for the payment to be done, which he agreed. The morning of the following day, A1 called him that he was coming over to his house with A2 to collect the money. When he enquired why they were coming to his house for the money instead of him (PW3) depositing the money into court personally, they responded that they had already collected GHc3,500 from someone around the court and had deposited the money on behalf of Jeffery Wilson into court. He continued that accused persons met him at Banyard Nii Opposite Victory Bible Church Awoshie and handed over to him Judicial Service Receipt with the number 1919263336 dated 11/06/2021. He in turn gave them the GHc3,500 believing they had really deposited money at the court. Later he got to know from the court that accused persons did not deposit the money into court but rather forged the Judicial Service receipt. First Accused person after his plea was taken on 16/01/2022 failed to attend trial despite knowing of the pendency of the case. On the authority of article 19 (3) (a), he was tried in absentia. A2 in his defence testified, he never knew A1 anywhere but only signed bailed as a surety with A1 for Jeffery Wilson. A2 denied conspiring with A1 to forge any document. According to him, after signing the bail bond for Jeffery Wilson, he later saw A1 who informed him that Jeffery had sent some money to be paid into court. He stated that A1 asked him to accompany him to one Mr Adjei to collect the money. He stated further that he never knew of any receipt and never saw any receipt until the case was brought to court. Accused persons are alleged to have conspired to commit crime to wit uttering of forged document and uttering of forged document. 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”. Section 169 of Act 29, also provides “A person who, with an intent mentioned in this Chapter, utters or deals with or uses, a document, or a stamp mentioned in this Chapter, knowing it is forged, counterfeited, or falsified, or knowing it is not genuine, commits a criminal offence and is liable to the like punishment as if that person had with that intent, forged counterfeited, or falsified the document or stamp”. From this definition, the essential ingredients of this section are as below; i. ii. a document or stamp must be forged, counterfeited or falsified. Accused must utter, deal or use the forged, counterfeited or falsified document or stamp. iii. Accused must know it is falsified, counterfeited, forged or not genuine. iv. Accused must intend to defraud or cause injury to a person or evade the law by the use of that document. Ingredient one- A document or stamp must be forged, counterfeited or falsified Forgery is defined as follows under section 165 (1) (a) of Act 29 as “A person forges a document if that person makes or alters the document, or a material part of a document with intent to cause it to be believed (a) that the document or the part has been so made (emphasis mine). The evidence of prosecution witnesses are to the effect that exhibit E, a Judicial Service receipt dated 1106/2021 with face value GHc3,500 does not emanate from the service but same is fake. PW2 testified that he was tasked by the judge of the then Circuit Court Four, Accra to ascertain whether or not exhibit E was genuine. Checks from the registry however revealed that same was not from the registry and that the stamp used is not does not emanate from the Judicial Service. PW3 also testified to having received exhibit E as a receipt of payment made into court but later finding out from the court that it is forged. PW3 also as part of his investigations wrote to the Judicial Service for a formal confirmation or otherwise of exhibit E as per exhibit C. A response from the Judicial Service discloses that the receipt is not from the registry neither s the stamp on it emanating from the registry. Accused person does not challenge this evidence in any way. Exhibit E is a Judicial Service receiptwhich in effect is a judicial document. It is therefore established at the close of the case that exhibit E is a forged judicial service document. Ingredient two – Accused must utter, deal or use the forged, counterfeited or falsified document or stamp. Prosecution’s evidence is that accused persons herein gave exhibit E to PW3 which amounts to dealing, using and or uttering the forged document. A2 vehemently denies giving exhibit E to PW3 contending that same was done by A1 at large. P3 in his evidence in chief states that exhibit E was given to him by the accused persons herein as receipt for the payment of GHc3,500 they had collected from someone around the court and paid into court on his behalf. Under cross-examination, he admitted that same was given to him by A1. PW2 on oath testified that A2 never denied the offence in his presence. PW1 also testified that accused persons during interrogations admitted the offence. Assuming without admitting that it was A1 who gave the receipt PW3, same was done in the presence and company of A2. Moreover in contrary to the evidence in chief of A2 that he never saw any receipt until he was arrested, per exhibit A and B, A1 and A2 acknowledged having been issued exhibit E by one Boakye Boateng. This fact is an admission by accused persons that they first received exhibit E before exhibit E found its way into the hands of PW3. It has been held in the case of Buor v The State [1965] 1GLR, SC that if a witness has previously said or written something contrary to what he had testified at trial, his evidence should not be given much weight. The court however may describe such variance as negligible. See the case of EGBETORWOKPOR V THE REP [1975] 1GLR 485 CA. A2’s defence of never seeing, dealing, using or uttered exhibit E is not one that can be said to be negligible. The court therefore finds that exhibit E was used by accused persons herein. Ingredient three and four - Accused must know it is falsified, counterfeited, forged or not genuine. & Accused must intend to defraud or cause injury to a person or evade the law by the use of that document. As found supra, A1 in the company of A2 gave exhibit E to PW3. Exhibit E has been established to be a forged Judicial Service receipt. Despite having found that accused persons herein gave the forged exhibit E to PW3, the mere possession and or uttering, dealing and using a forged document under sections 166 and 169 of Act 29 does not lead to criminal liability. The cardinal point of our criminal jurisprudence i.e mens rea must be present for an action to constitute an offence. In the absence of knowledge that exhibit E or part therefore is forged or not genuine, Accused persons cannot be said to have intended to defraud or injure any person by possession and or uttering or using same. A2 vehemently denies knowledge of the issuance of exhibit E and or that it forged. He contends that he only accompanied A1 to collect the money and did not prepare or see any receipt neither did he hand over any receipt to PW3. The knowledge or otherwise of accused person to the fact that the said exhibit is forged can only be inferred from their conduct. As the saying goes, the intention of man is said not to be known to even the devil. “Intent” is defined under section 11(1) ACT 29 thus: “where a person does an act for the purpose of causing or contributing to cause an event, that person intends to cause that event, within the meaning of this Act, although in fact or in the belief of that person or both in fact and in the belief of that person, the act is unlikely to cause or contribute to cause the event”. The intention or mens rea of the accused persons can only be deduced from their acts and the circumstantial evidence on record. Ollenu JSC in the case of Okpara v Commissioner of Police (1963) 1GLR 31 held that Knowledge of falsity of a document is not always capable of direct proof. He stated that the best way to prove it is to lead evidence of facts from which the only reasonable conclusion to be drawn is that the person having possession of the document must know that the document is false. Knowledge of the genuineness of otherwise of the exhibit E may be inferred from the conduct of accused persons and their dealings with the said document. It is trite learning that, facts in issues can be proved either by direct eyewitness account or the use of circumstantial evidence. Circumstantial evidence is utilized where direct evidence is not available or easy to obtain. Most crimes are proven by the use of circumstantial evidence, which is said to be evidence of surrounding circumstances, which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. In the case of State v Anani Fiadzo [1961] GLR 416 the Supreme Court held at page 418 that: “Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion.” Also in the case of Odupong v Republic (1992-93) GBR 1038 per holding 2, the Court of Appeal held “When a charge was grounded on circumstantial evidence, that evidence must not only be consistent with guilt, but must also be inconsistent or incompatible with any other rational conclusion”. Justice Brobbey in his book Essentials of the Ghana Law of Evidence at page 253 noted thus “Circumstantial evidence is the fact from which may be inferred, presumed or deduced, the existence, non existence or proof of another fact. Circumstantial evidence is not proof of the fact itself. It is the pieces or incidents of facts, considered or put together, which provides the basis for drawing conclusion, inference or deduction of the existence or non existence of a fact.” From the evidence on record, PW3 went to the court premises, met with both A1 and A2 and intimated to them his intention to pay the sum of GHc3,500 into court on behalf of Jeffery Wilson. After accused persons had made him wait for over 4 hours, they asked him to go home and return the next day for the payment to be made. The morning of the next day, instead of Pw3 going to the court to make the payment into court, on the instructions of A1, PW3 met both A1 and A2 at Banyard Nii opposite Victory Bible Church, Aworshie with exhibit E claiming to have collected someone’s money to make the payment into court and exhibit E evidencing the said payment. Based on this representation, Pw3 then gave them the GHc3,500. The conduct of accused person herein i.e asking PW3 who was at the court premises to Pay the said money into court to return home after waiting for four hours, AND SUBSEQUENTLY meeting PW3 outside the court to collect the money and giving him a Judicial Service receipt exhibit E outside of the court contrary to the initial agreement that PW3 would return to the court the next day and make the payment into court leads to the irresistible conclusion that accused persons knew that exhibit E was not genuine receipt FROM the Judicial Service. Further A1 in exhibit F narrates how he called A2 and they went for the cash of GHc3,500 from PW3 and shared same among themselves. He stated that he paid GHC500 to one Boakye Boateng for the judicial Service receipt, gave GHC1,500 to A2 and took GHC1,500 for himself. A2 also in exhibit G acknowledge going to collect the GHc3,500 with A1 and receiving GHc1,500 from this amount. He further stated that A1 told him he got the receipt from one Boakye Boateng but he did not meet the said Boakye Boateng. It has been 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”. The confession statement of accused persons together with their conduct establishes that both A and A2 at all material times had knowledge that exhibit E was not genuine yet they presented same to PW3 causing him to part with the sum of GHC3,500. Conclusion. The defence of A2 against the totality of the evidence on record fanciful and not in the least probable. The court therefore finds proven beyond reasonable doubt at the determination of the case that A1 and A2 acted together to commit and committed the crime of uttering forged document. Accordingly they are found guilty on both counts one and two and convicted on same forthwith. Sentencing The principles upon which sentences are imposed have been stated in the case of Kwashie v The Republic [1971] 1 GLR 488 at 493 where it was stated thus:- “In determining the length of sentence, the factors which the trial Judge is entitled to consider are: i. The intrinsic seriousness of the offence. ii. The degree of revulsion felt by law abiding citizens of the society for the particular crime. iii. The premeditation with which the criminal plan was executed. iv. The prevalence of the crime within the particular locality where the offence took place, or in the country generally. v.the sudden increase in the incidents of the particular crime vi. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” In respect of the current facts of this case, the offence accused persons have been found guilty of is a serious offence. The forged document is a judicial document. Per Section 169 of Act 29, A person who, found guilty of uttering a document commits a criminal offence and is liable to the like punishment as if that person had with that intent, forged counterfeited, or falsified the document or stamp. Under section 158 of Act 29 a person who, with intent to deceive any other person, forges a judicial or an official document, commits a second-degree felony. The court further takes into consideration the audaciousness of accused persons herein standing as sureties for another accused person in a matter pending before a court to not only in collecting, sharing and squandering money meant to be paid into court but further presenting a forged Judicial service receipt as prove of payment in to court. There is a need for deterrent punishment considering that the offence was premeditated. As mitigation factors, the court takes the ages of accused persons i.e 52 and 56 years respectively and both accused persons being family men into consideration and the plea for leniency by their counsel. The court accordingly sentences accused persons as follows; Count One – 6 years imprisonment IHL Count Two - 6 years imprisonment IHL. Sentence to run concurrently. ANCILLARY ORDER Bench warrant is issued together with warrant of commitment of sentence of A1/first convict. Upon his arrest, the arresting officer shall endorse the date of arrest at the back of the warrant and the sentence of imprisonment shall commence from the date of the arrest of convict. 1ST ACCUSED PERSON ABSENT 2ND ACCUSED PERSON PRESENT INSPECTOR WISDOM ALORWO FOR THE REPUBLIC PRESENT MR SAMUEL OFORI FOR 2ND ACCUSED PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT (1) JUDGE 14