REPUBLIC VRS QUARSHIE & 2 OTHERS (D2/380/2023) [2023] GHACC 713 (13 December 2023)

The Republic vrs Florent Nii Otu Quarshie & Others IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA AT CIRCUIT COURT ‘2’ ON WEDNESDAY, 13TH DECEMBER, 2023 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO.: D2/380/2023 THE REPUBLIC VRS 1. FLORENT NII OTU QUARSHIE 2. PATRICK DEH 3. KWABENA APOBA 1ST AND 2ND ACCUSED PERSONS PRESENT CHIEF INSPECTOR JONAS LAWER FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE 1ST & 2ND ACCUSED PERSONS JUDGEMENT Three Accused persons were arraigned before this Court charged with the following offences: i. ii. iii. iv. Conspiracy to commit crime to wit Stealing; Unlawful Entry; Stealing; and Dishonestly Receiving, contrary to sections 23(1), 152, 124(1) and 146. The 1st and 2nd Accused persons were charged together for Counts 1, 2 and 3, whereas the 3rd Accused person was charged with Count 4. THE BRIEF FACTS OF THE CASE The Republic vrs Florent Nii Otu Quarshie & Others On the 19th June, 2023 at about 8:25am, the complainant together with his colleagues reported for work and detected that thief/thieves had entered into their offices and made away with twelve (12) laptop computers. During investigations, police received CCTV footage of the theft that occurred. In the footage, A1 was seen at various entry points to the offices on the basement floor, ground floor and the first floor and he exited through the emergency exit of the building carrying two Ghana Must Go bags. On the 26th July, 2023, police received information that A1 who was also involved in a similar case had been arrested and detained at Nima Police Station. Police proceeded to Nima Police Station and brought in A1. During investigations, A1 admitted to the offences levelled against him and mentioned A2 as his accomplice. A1 further told police that they sent the laptops to Agbogbloshie and sold them to A3 and he got cash of GH¢2,500 as his share of the booty. A1 took police to Agbogbloshie where he claims his accomplice lives but no one was met. A1 led police to the scene of crime where he demonstrated to police their mode of operation. Intelligence later led to the arrest of A2 at Agbogbloshie. A1 during interrogation which was captured on video identified A2 to the police as his accomplice. On the 13th October, 2023, A3 reported himself to police. He was arrested, cautioned and charged. At the trial, the prosecution called three (3) witnesses to testify in support of its case against the Accused persons. PW1 (Peter Amponsah), a driver with Ghana Reinsurance PLC, Accra told the Court that he reported for work on the 19th June, 2023 and realised that their drawers were pulled out and the entire office scattered which wasn’t how they left the office the previous day. He also noticed that the office of their Chief Driver was also scattered. According to PW1, he quickly drew the attention of The Republic vrs Florent Nii Otu Quarshie & Others the security men on duty who also came to look at it. PW1 tendered in evidence three (3) photographs showing some of the scattered offices of the company. PW2 (Kwame Asare Nkansah-Abankwah) worked as the Risk Officer of Ghana Reinsurance PLC. That on the 19th June, 2023, he reported for work at about 6:44am. Upon reaching the premises, he met a colleague, Mrs. Joycelyn Oppong-Addae together with some of the cleaners and two drivers at the main entrance of the office. Joycelyn informed him that the deputy MD had advised that nobody should enter the building because there had been a break-in and the police had been called. After a meeting convened by the Head of Administration, he was asked to go and lodge a complaint with the police on behalf of the company. PW3 (Detective Lance Corporal Alhassan Kande Zaria) stationed at the Ministries Police Station relied on her Witness Statement. PW3 tendered in evidence Cautioned and Charge Statements of the Accused persons. The 1st Accused person objected to the tendering of his Cautioned and Charge Statements on grounds that he was beaten and coerced to admit of the offences. After an extensive Mini Trial, the Cautioned and Charge Statements were admitted into evidence, and the objection accordingly overruled. Also tendered in evidence by PW3 were a CCTV footage and videos on the interrogation of A1 and A2 as well as Photographs of the crime scene. Thereafter, the prosecution announced the closure of its case. At the close of the case of the prosecution, the Court determined that the prosecution has not made out a prima facie case against the 3rd Accused person. Accordingly, the 3rd Accused person was acquitted and discharged. On the other hand, the Court found that the 1st and 2nd Accused persons have a case to answer. In the circumstances, the Court invited them to enter into their defence. The Republic vrs Florent Nii Otu Quarshie & Others THE CASE OF THE DEFENCE In opening their respective defences, the 1st and 2nd Accused persons testified themselves. Neither did the 1st and 2nd Accused persons call any witness(es) nor tender any exhibit(s) in evidence. 1ST ACCUSED PERSON: The 1st Accused person told the Court he does not know the 2nd Accused person and also denied knowing anything about this case. According to the 1st Accused person, he has gone through a lot in the hands of the investigator. 2ND ACCUSED PERSON: The 2nd Accused person in opening his defence also denied knowing anything about this case. He also denied knowing the 1st Accused person. ISSUES FOR DETERMINATION At the end of the trial, the following issues emerged for determination: i. Whether or not the 1st and 2nd Accused persons agreed to act together with a common purpose to steal the twelve (12) laptops. ii. Whether or not the 1st and 2nd Accused persons dishonestly appropriated the twelve (12) laptops. BURDEN OF PROOF The common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2)(c) of the 1992 Constitution which reads: The Republic vrs Florent Nii Otu Quarshie & Others “A person charged with a criminal offence shall ------- (c) be presumed to be innocent until he is proved or has pleaded guilty.” The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in sections 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful. Section 11(2) of the Evidence Act, 1975 (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.” In the case of Republic v. District Magistrate Grade II, Osu; Ex parte Yahaya (supra), Brobbey J. (as he then was) stated and I quote: “One of the cardinal principles of criminal law in this country is that when an accused person pleads not guilty, his conviction must be based on evidence proved beyond reasonable doubt.” THE LAW AND EVALUATION OF THE EVIDENCE Conspiracy to commit crime: Section 23(1) of Act 29 provides: The Republic vrs Florent Nii Otu Quarshie & Others “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 to commit or abet the criminal offence.” The new definition of Conspiracy introduced by the Law Review Commissioner has limited the scope of conspiracy in Ghana. For conspiracy to succeed in Ghana, the prosecution must prove that the persons agreed to act together with the common purpose to commit the offence. 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 the offence where there is evidence that they agreed to act together to commit the offence. Therefore, to found conviction for conspiracy, the prosecution has the duty to establish the following ingredients: 1. That the offence involved two or more persons; 2. That those persons agreed to act together; and 3. That they acted together with a common purpose, i.e. to commit a crime or do an unlawful act or a lawful act by an unlawful means. The Law on Unlawful Entry: Section 152 of Act 29 provides that: “Whoever unlawfully enters any building with the intention of committing crime therein shall be guilty of second degree felony” Section 152 of Act 29 has been explained under section 153 of Act 29 as follows: “A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he enters." The Republic vrs Florent Nii Otu Quarshie & Others In establishing the offence of Unlawful Entry, the prosecution shall prove that the Accused person unlawfully enters a building, he enters with the intention of committing a crime, and the offence is to be committed in the building. In the case of Kanjarga vrs The State [1965] GLR 479-483, Ollennu JSC had this to say: “To constitute the offence of unlawful entry, the entry must be made with a purpose or intent to commit a crime. It follows that in addition to proving entry, the prosecution, to succeed, must prove that intent to commit a crime in the premises existed at the time of entry and was the purpose for the making of the entry”. Stealing: Stealing is defined at Section 125 of Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner”. In the case of The State vs. W. M. Q. Halm and Aryeh Kumi Crim. App Nos. 118/67 and 113/67, 7 August, 1969; (1969) CC155, the Court per Akufo Addo, C. J., Ollennu, Apaloo, Amissah JJ. A. and Archer J stated the three essential ingredients which prove a charge of Stealing under our criminal law as: “(i) That the person charged must not be the owner of the thing allegedly stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” See also Lucien vrs The Republic [1977] 1 GLR 351-359 at holding 2. Throughout the trial, the 1st and 2nd Accused persons denied committing the offences charged. The evidence of the 1st Accused person where he mentioned the name of the 2nd Accused person because he was coerced to do so has not The Republic vrs Florent Nii Otu Quarshie & Others been denied by the prosecution. Under cross examination, the 1st Accused person told the Court that he did not know the 2nd Accused person and vice versa. Also, in the Cautioned and Charge Statements of the 2nd Accused person given to the police on the 10th and 11th August, 2023 respectively, he denied the charges against him. He also denied knowing the 1st Accused person. Apart from the Cautioned and Charge Statements of the 1st Accused person where he mentioned the name of one ‘Patrick’ as his accomplice, there is no evidence on record to link the 2nd Accused person to the commission of the offences charged. The Court also noticed that the Video indicating the alleged Confession of the 1st Accused persons was taken contrary to section 120(4) of NRCD 323. The section reads: “(4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if (a) the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or (b) the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or (c) the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or a person who has a direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person. (Emphasis mine) The Republic vrs Florent Nii Otu Quarshie & Others In the said Confession Statement captured in the video, the 1st and 2nd Accused persons were seen giving statements at the time the left hand of the 1st Accused person and the right hand of the 2nd Accused person had been handcuffed together with one handcuff. It therefore stands to reason that the said confession statements taken from the 1st and 2nd Accused persons were not freely and voluntarily given. What is even surprising is the fact that the 1st and 2nd Accused persons were seated in an office at the time of giving these statements to the police. So, what prevented the police from removing the handcuff whilst the statements were taken? This goes to show that the Cautioned and Charge Statements taken from the 1st Accused person were not voluntarily given. Notwithstanding the fact that the Court admitted the Cautioned and Charge Statements of the 1st Accused person in evidence, section 8 of NRCD 323 can save the situation to exclude it from the evidence. The section reads: “Evidence that would be inadmissible if objected to by a party may be excluded by the Court on its own motion.” See also Republic vrs High Court (Criminal Division 1), Accra; Ex Parte Stephen Kwabena Opuni, Attorney General Interested Party, Civil Motion No. JS/58/2021 dated 28th July, 2021. In the circumstances, the Cautioned and Charge Statements of the 1st Accused person are accordingly rejected and excluded from the evidence. The prosecution also tendered in evidence, a CCTV footage of Ghana Reinsurance Company Limited offices. In the Evidence-In-Chief of PW3 (police investigator), she told the Court that the footage captured the 1st Accused person at various entry points to the offices on the basement floor, ground floor and the first floor and the building carrying two (2) Ghana Must Go bags. I have careful watched the CCTV footage several times, and a careful scrutiny shows that the person captured in the video is not the same person as the 1st The Republic vrs Florent Nii Otu Quarshie & Others Accused person who is standing trial before this Court. The 2nd Accused person was also not captured in the video. Assuming without admitting that it was the 1st Accused person who led police to the crime scene without assistance from the police, then it is possible that he did not enter the building of Ghana Reinsurance Company Limited but stood outside to give information to the person carrying out the operation inside the building. If that was the case, then the 1st Accused person could not be said to have unlawfully entered the building and stolen the twelve (12) laptops. At best, the 1st Accused person could have been charged with the offence of Abetment of crime to wit Stealing. I refer to the case of Sowah & Essel vrs The State [1961] GLR 743-747 where the Supreme Court laid out the three-tier test as follows: “(2) In the instant case the defence put forward by the two accused left the judge with three possible positions, namely (i) if he accepted their explanations he must acquit them; (ii) short of accepting their explanations if he was left in doubt he must also acquit them; and (iii) he must be satisfied of their guilt of the crimes alleged against them only on consideration of the whole evidence adduced in the case ……” I have carefully evaluated the evidence of the prosecution and done same to the evidence of the defence. I am left in doubt as to the guilt of the Accused persons. There is no strong evidence whatsoever on record to convict the Accused persons. This Court will be in error if the 1st and 2nd Accused persons are convicted. In the circumstances, I hold that the prosecution has failed in its bid to prove its case beyond reasonable doubt. In the circumstances, the 1st and 2nd Accused persons are hereby acquitted and discharged. ……...…………………… The Republic vrs Florent Nii Otu Quarshie & Others ISAAC ADDO CIRCUIT COURT JUDGE 13TH DECEMBER, 2023 11