REPUBLIC VRS KASIM & ANOTHER (B1/21/2024) [2023] GHACC 1153 (6 December 2023)

IN THE UPPER WEST CIRCUIT HELD AT WA ON WEDSDAY THE 6TH DAY OF DECEMBER 2023 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B1/21/2024 THE REPUBLIC VRS 1. IBRAHIM KASIM 2. SALIFU DAWUD @ RIDER JUDGMENT Charges The accused persons are charged with conspiracy to commit crime to wit robbery and two counts of robbery all offences contrary to sections 23 and 149 of the Criminal and Other Offences Act 1960, [Act 29]. When the charges were read out and explained to both accused persons, they pleaded not guilty to the charges and thus put prosecution to work. The prosecution proceeded to serve all that they intended using to prove their case against the two accused persons on them thus setting the stage for pre-trial processes and the trial. Summary of facts The summary of the case was that the two complainants are both business woman and man living in the Wa municipality and the 1st accused a weaver and the 2nd accused a motor mechanic. That the second complainant was riding with his family in the month of September and on reaching a filing station close to the Dr. Hilla Liman Technical University, a rider with a pillion rode pass him with a black Aloba motor bike with registration number M-23-UW 8694 and suddenly pounced on him at gun point and took away his infinix smartphone valued at GHC1200 and sped off. On 21st October 2023 at about 7:30pm the lady victim reported that she and a friend were on their way back from Mangu a neighbouring community to Wa on a red haojue motorbike and on reaching a bridge close to the Presby junction, she and her pillion rider spotted two men they suspected to be the accused persons riding a black Aloba motorbike approaching them from the opposite direction, that rode past them and suddenly they two men returned to them. That seeing them take the bend and returning towards them, the lady rider fearing the motor could be taken away from them as he had made up her mind they were being pursued, she switched off the engine of her motorbike and threw the key to the grown and remained on the motorbike waiting for what their assailants were going to do. The two accused persons then pounced on the two ladies snatching a black bag containing an iPhone 11 pro mobile phone, an iPhone 6, an identity card and cash the sum of GHC1,200.00 with the total value of all items being GHC7,200.00 belonging to the pillion rider. The accused persons were said to have then rode away with their booty but Police intelligence later arrested A1 with the said motorbike and investigations revealed that was the motorbike used in the serial robberies within the municipality. EVIDENCE OF PW1 PW1 told the court she was a trader and was known by the name Suleman Zenat living in Wapaani a suburb of Wa. She identified the two accused persons as young men she knew because they all live in the same community. In casting her mind back to the night of the event she told the court she was in Mangu with a friend by name Elizabeth Sakoa and they decided to return to Wa on their red haojue motorbike where she rode with her friend as the pillion rider. That on reaching a bridge close to the Presby junction when entering Wa, she and her pillion rider spotted the two accused persons riding a black Aloba motorbike approaching them from the opposite direction. That the two men rode past them and suddenly returned towards them and at that moment seeing them return they became nervous fearing that their motor bike risk being taken away from them as they were the only people on the road at the early hours of the night. PW1 said she then out of anxiety decided to switch off the engine of the bike and threw the key to the ground and remained on the motorbike seated so the motorbike y will not be snatched from them. The two then returned and pounced on them snatching a black ladies bag containing an iPhone 11 pros mobile phone, an iPhone 6, an identity card and cash the sum of GHC1,200.00 with the total value of all items being GHC7,200.00 belonging to the pillion rider. She said when she attempted assisting her friend, A1 used his hand which she believed had a metal in his palm to knock her on the head and she momentarily was subdued and the two took the bag and bolted from the scene. On confirming the identity of their attackers, PW1 said she suspected A1 but could not vouch he was the one but recollects reporting to the Police with certainty he was the one because she braids her hair at A1’s sister’s shop and knew him so well. PW2 was the Police investigator on the case. He gave his staff number as 53982 D/L/CPL Bismark Frimpong stationed at the Police Intelligence Department. He confirmed being the available investigator the case was assigned to and the complainants were two one of whom was PW1 who gave evidence shortly. PW2 told the motorbike in question he will be tendering soon was a motor bike of interest because several robberies in the municipality described the same make as what has always been used in snatching episodes and so investigations started earnestly on the complaint of PW1 amidst other cases under their radar. He added that the second complainant was contacted and he confirmed the motorbike as that used to robe him to. PW2 then told the court how the witness (PW1) was interrogated and she told Police how she and her friend were attacked by the two accused persons and that she was very confident of who their assailants were. The witness corroborated the account of PW1 as to how the two men approached them and snatched their hand bag with phones and cash in it. On the identify of the two men, PW2 told the court that during interrogation of PW1 that she was certain of who A1 was because she knows him very well as she plates her hair at his sister’s shop and seeing him that early hour of the night she could not have been mistaken him for any other person and so investigations closed on him and got him arrested after which PW1 was invited again to confirm he was the one and after that positive identification caution statements were taken and A1 eventually got charged. The witness however told the court he suspected as neighbors that PW1 was going to be intimidated not to support the charges against the accused person and true to his fears, when later he needed PW1 she declined responding to his calls until he was later able to get the second complainant whose description of the two marched the two accused persons and well as the motorbike. PW2 then told the court that during investigations A1 admitted committing the crime and that he did so with A2 and that they went to Mangu a neighboring community in Wa and on their return they saw PW1 and her friend and decided to snatch their bag from them but unknown to them the pillion rider to PW1 was A2s girlfriend. The investigator also told the court A1 admitted to the content of the bag they snatched but that the phones were immediately sold to a gentleman Police took details but could not trace. PW2 on the second victim which was an incident that happened close to the Wa Technical University, he told the court the victim on that day was ridding with his family when A1 and A2 rode pass them and snatched a bag from the wife the pillion rider. PW2 said the particular description of the attacker’s motorbike used in the robberies was very instructive as it was the same motorbike that was reported as used: a black aloba motorbike with two riders, one a little stout and short and the other bearded and slim. These descriptions according to PW2 matched very well the two accused persons thus making them persons of interest. The intelligence Police detective said they have been particular in observing the reports and when A1 admitted to committing the offence with A2 on their way from Mangu and the motorbike meeting the descriptions of the second complainant the became convinced and proceeded to charge the two for conspiracy and two counts of robbery. On the type of offensive weapon being used, the detective said a sharp cutlass and a short gun was what they two will use according to reports but on this occasion A2 used a sharp cutlass to intimidate the victims in the first instance and gun on the second instance. PW2 went ahead to mention that soon after the report by PW1 she refused to cooperate with the Police and will not pick her calls but when Police got lead that A2 who had then escaped arrest and was reported hiding in Techiman returned to town Police closed in to arrest him and did succeed when he was found in his room with his girlfriend. Seeing the two together Police then understood why PW1 was not cooperating in the matter because her friend’s boyfriend was involved. The investigator went ahead to tender into court the Police investigative caution statement and charge statements, the numbered black aloba motorbike together with another motorbike found with A2, assorted room items including cylinder and clothing, items not incidental to this complaint but Police belief are proceeds of crime. The evidence of PW3 Elizabeth Sakoa the piliion rider to PW1 and the girlfriend to A2 admitted she indeed was the pillion rider to PW1 when the two set off from mangu back into Wa on 21st October 2023 and that the two men who she cannot identify did ride pass them and returned to attack her particularly and took her hand bag away. That A2 appeared to have a metal ring in his fingers and that was what he used to hit hard her head and she released her hand bag she was holding very well in her armpit. PW3 described the items she had on her as an iphone 11 pros mobile phone, an iphone 6, an identity card and cash the sum of GHC1,200.00 with the total value of all items being GHC7,200.00 belonging to her the pillion rider at the time. PW3 concluded her evidence to the court when she gave evidence that soon after her attack she placed a call to her boyfriend who happened to be A2 that she was attacked when she was returning from Mangu with her friend. According to her after she had given the details of the attack to A2 he promised waiting at the very entrance into Wa through that route to see who those perpetrators were and so she got into town with her friend and proceeded to lodge the complaint with the Police after A2 had called her back to have seen no one emerge from there. PW4 is the gentleman who was riding with his wife into Wa from the Technical University side of town. He told the court whilst riding he observed from behind that an aloba motor bike with two gentlemen marching the identity of the two accused were barely trailing him and so he was riding fast to get to a gas station where he could stop to allow them pass but the two rode back to him and pointed a gun at him and took away a bad the wife was holding. That in the process of taking the back that he was the face of A2 and was not in doubt he was his assailant on the day. PW4 said when he lodged the complaint with the police and described the motor bike as being an aloba motor cycle it drew the attention of the police because many more complaints were lodged with similar descriptions of the rider and make of the motor bike. Prima Facie Test Prosecution then closed its case after calling three witnesses arguing that the court upholds their case to have passed the test of prima facie and that the two accused be called upon to open their defense. The court did as well rule in the favour of prosecution because the essential ingredients of the offences were seen as proven and so the two accused persons were asked to open their defence. The Case of the Accused Persons A1 denied the offences earlier and gave his name as Ibrahim Kasim, that he was a weaver and had his shop close to the Odo washing Bay. A1 added that he had two wives and a child and one of the wives was currently pregnant. A1 said when Police arrested him he was not asked to narrate anything and that all that he saw was that he was whisked into the forest by the Police and dealt with by severe and gruesome beating. That the Police forced him to admit to the offences and framed up narrations to suit the offences they were investigating. A1’s case being at great variance with the caution statement he gave the Police then caused the court to have his caution statement pulled out and read again to his hearing because it was earlier read out when the Police investigator spoke to his investigations. In the caution statement, A1 was recorded to have admitted to embarking on the operation with A2 but during his defense he denied the offence and denied ever giving this statement to the Police. A1 also alluded to have signed off the investigative caution statement under duress. A1 added that he recollects PW1 coming to him to ask for forgiveness because she disclosed that she was asked to lie on him but upon second thought she had come to seek forgiveness from him. The cross examination of A1 became eventful because PW1 whilst in the well of the court could be seen to deny the case that she went to him A1 to seek forgiveness. Police however denied torturing A1 in their cross-examination questions to him and proceeded to listen to A2. Evidence of A2 A2 told the Court Salifu Dawud was his name and that he lives in Wapaani a suburb of Wa. He admits knowing A1 but that he was not a friend to him and that he did not embark on any operation with anyone to robe. Whilst appearing to have a pain in his wrist and waist attributed his condition to some lessons from the Police. A2 then listened to the statement he offered the Police to aid his defense and after it was read to his hearing again he admitted to it for which he said PW1 and 3 came to him a day after the robbery incident and expressed suspicion of the involvement of A1 in the attack because one of their attackers looked like him A1. A2 then went on to claim he received a call some days from A1 that he had heard in town of him A2 spreading falsehood that he had carried out this attack on the two ladies and another person together with him and he warned him to desist from the lies but it appeared according to A1 did not relent and gave that untruth to the Police leading to his arrest when he had just returned from a journey. A3 also denied being related to A2 and that the motor bike found with him came to his custody after a patron of his services left it with him for repairs. He however could not tell the court who the client was and that remained an issue he went mute on during cross examination. The defense of the two accused then ended leaving the court to evaluate the evidence and pronounce judgment because the two were denied bail because prosecution informed the court the two were ex-convicts who had found their way out of jail before their sentences expired and will continue to terrorize residents if put on bail. The Position of the law The fundamental rule in criminal practice has been stated in the 1992 Constitution of Ghana as follows; “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty’. See article 19 [2] [c]. Therefore, in this trial, for the prosecution to sustain a conviction and subsequently sentence on both accused persons all three counts the prosecution shall prove that in deed and in fact that A1 & 2 robbed PW1, 2 and 3 of their valuables on those two separate occassions. This in short means that both accused persons have no duty under the law to prove their innocence. Consequently, where the prosecution fails in its case, A1 & 2 shall be entitled to an acquittal and discharge automatically. The evidential burden The evidential burden which is also the obligation to show that A1 & 2 committed these offences lies squarely on the prosecution, that is the burden of proof in the sense or the burden of establishing the guilt of both accused persons is squarely on the prosecution. The proof required of the prosecution in a criminal trial such as the present one is said to be proof beyond reasonable doubt. Section 11 [2] of the Evidence Act 1975 [Act 323] says; “In a criminal trial, 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”. It is not easy to determine what constitutes ‘reasonable doubt’. In the case of Oteng vs The State [1966] GLR 352, the Supreme Court had said; ‘…. the citizen too is entitled to protection against the State and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubts”. Application of the law to the evidence The charges against A1 & 2 are two counts of conspiracy, two counts of robbery and all three victims gave various accounts of how the incidents happened. The court heard the accounts of prosecution and evaluated the evidence to allow the two accuse persons proceed to defend themselves because a prima facie case was made against them. That evaluation meant that assuming the case had ended after the case of prosecution, the court could have grounds to convict the two and so what remained absolutely necessary for the two to secure a conviction was for them to put up a defense that will cast doubt in the case of prosecution. The case of the identity of the two accused persons was central to the case of the prosecution witnesses especially PW1 Now, in proceeding to consider the respective defenses put up by the A1 and A2 to the charges. A1’s account was admittance to the charges of conspiracy because he admits conspiring with A2 and carrying on the robbery attack. A2 on the other hand denies the offence but could not adduce further evidence as to where he was on the day of the robbery if he was not with A1. The identify of A1 was therefore not in doubt because PW1 was convinced he knew him because he occasionally comes to the sister’s shop where she braids her hair. See the discourse in cross examination of PW1: Q- It is true I have a sister who has a shop but she does not braid her Ans- I go to A1’s wife’s shop, it’s a provision shop Q- I do not have anything in common with you. Ans- I go to the shop and I have seen u there. Q- I challenge u that I was not the one Ans- When they passed us, I immediately identified the motor and told my friend that was A1s motor and she also confirmed it. When A2 was given the opportunity to cross examine her he posed just a question and did not deny any further that he was not the one involved in the robbery. Q. I only got to know her through my girlfriend. Ans. I know you well in Wapaani, we all live in the same area but you later left the area. Q. I have no further questions as to who snatched the bag Ans. It was the pillion rider to A1 who did snatch the bag. On A2 his defense was that A1 lied on him and that he did not conspire with him to carry out any robbery the interesting part of that defense too is that PW4 who accuses A2 of snatching the bag from his pillion rider around the Wa Technical University area was very certain that A1 was the rider of the aloba motor bike because they two came very close to him and he could see them to be sure the were the one who attacked him. On the identity of A2 PW4 said he came too close to snatching the bag and so whilst on the motor he saw him point the gun at him and demanded the bag. Being mindful of the fact that there is no onus on A1 and A2 to prove their innocence If there is any at all, but just to raise a reasonable doubt in the case of the prosecution as contained in section 13 [2] of the Evidence Act 1975 [Act 323]. See also the decision of Ansah JA, as he then was, sitting as Additional High Court Judge in the case of the Republic vs Mallam Ali Yusif Issah dated 20/07/2001. To resolve the issue therefore of whether or not A1 & 2 were those who attacked and robbed PW1, 2 & 3 of their motorbikes will require first that their identity as those who carried out the act should not be in doubt and the law as in Dogbe vs The Republic [1975] 1 GLR 118 established that in criminal trials, the identity of the accused person as the one who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which the identity might be inferred by the court. Also, in Adu Boahen vs The Republic [1972] 1 GLR 70, CA, it was decided that where the identity of an accused person is in issue there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused person committing the offence charged. Having heard and observed the demeanor of the two accused persons and observed the strenuous efforts A1 put in to accuse the Police intelligence Department of torture versus the fact of the identification of him A1 and A2 by all three victims I have no doubt in my mind of the involvement of the two in the offence. Though A1 and A2 have denied the offences, I find that there is overwhelming evidence on record to link them to the offences. The law was restated by Dennis Adjei JA in Lord Phidelis Sakah vrs The Republic (unreported) when he referenced the previous decisions in Bediako v The Republic [2010- 2012]1 GLR 566 which requires a court of Law to examine the defense put up by an accused person after the prosecution has proved its case beyond reasonable doubt to ascertain whether the defense is acceptable, where it is acceptable, the accused shall be discharged. Where the defense is unacceptable, the court shall further consider whether the defense is reasonable probable and if it is, the accused shall be acquitted and where it is not reasonable probable, the court is further required to examine the entire records to ascertain whether there are other defense which may inure to the benefit of the accused. I have evaluated the defense of the accused persons and I find that their defenses are not acceptable and so I find them guilty of the offence charged. Plea of mitigation A1 I am pleading seriously with the court not to convict me because I have a pregnant wife. A2 I plead with the court to deal leniently with me because the Police have deformed my wrist. Plea for aggravated sentence My lord both A1 and A2 were sentenced and were serving long sentences in Nsawam prisons but we were surprised they were released and they have come back to continue their stile of robbery and ts be stiff to keep them away from society. BY COURT In sentencing A1 and A2, I have taken into consideration the period both have spent in lawful custody following their arrest and prosecution. I have equally taken into account the fact that they are not new to the criminal architecture of my jurisdiction because A1 & A2 are confirmed ex-convicts. The punishment upon conviction for robbery in the Criminal Code [Amendment] Act 2003 [Act 646] provides as follows; “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 [10] 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 [15] years”. The weaponry used was a machete and a gun both weapons could not be tendered before the court because the two were not arrested immediately and so I find A1 who was sentence earlier than A2 to years for conspiracy and 15 years in hard labour for the offence of robbery and he serves the sentence concurrently meaning he serves the longest which is 15 years IHL. A2 who is sentenced today will also be convicted and sentenced to 5 years for conspiracy and 18 years in hard labour for robbery, he serves the highest which is the 18 years IHL. The proceeds of crime I order that the motor bike belonging to A1;s sister be returned to her, the other motor bike found with A2 be given to whoever the person he allegedly swapped his personal motor bike with. The rest of the items I order be disposed off by the Police Intelligence Unit and put to whatever use. SGD: H/H Jonathan Avogo Circuit Judge, Wa 14