REPUBLIC VRS RAZAK & ANOTHER (BR/SY/CT/120/2024) [2024] GHACC 126 (17 January 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON WEDNESDAY THE 17TH DAY OF JANUARY 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/120/2024 THE REPUBLIC VRS. 1. AWUDU RAZAK 2. KWABENA DENNIS JUDGMENT From the facts proffered by Prosecution, accused persons were allegedly part of a gang of four who descended upon the township of Kenyasi on the 29th of September 2023 with one focus, which was to engage in a stealing spree. They first broke into the house of one Forkuo Alfred and stole his television set, a woofer sound system and an iTel keypad phone while 2nd Accused person alone is alleged to have broken into the shop of one Kwaku Duah from which he stole car wire cables, two car batteries and a car starter. The accused persons subsequently converged at the lorry station at Kenyasi at about 5:30am in possession of these stolen items with the aim of transporting same to Sunyani possibly for onward sale. Unfortunately for accused persons, according to Prosecution, luck eluded them when the Driver of the vehicle they had boarded, drove into a police station due to a tip of the driver earlier had. Two persons amongst the gang of four, managed to escape arrest leaving behind Accused persons herein who were arrested and processed for Court. 1 Upon their arraignment, they faced charges of conspiracy to steal, causing unlawful damage, unlawful entry, stealing and possession of firearm and ammunition. They each pleaded not guilty to the respective charges levelled against them. To secure a conviction Prosecution is by law enjoined to establish its case beyond reasonable doubt as provided in Section 11 (2) of the Evidence Act 1975 (NRCD 323) to the effect 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 a reasonable doubt.” This statutory requirement has been recognized in a myriad of case law such as in Commissioner of Police v. Isaac Antwi [1961] GLR 408 which held that; “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution... it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt.” Also, Lord Sankey in Woolmington vrs. DPP [1935] AC 462 had earlier stated that, "... it is the duty of the prosecution to prove the prisoner's guilt...” With the duty of Prosecution in mind, it must be stated at this point that none of Prosecution’s witnesses actually saw accused persons committing the offences in question thus Prosecution’s evidence was largely circumstantial and it was grounded on the alleged fact that certain items identified as belonging to complainants, were found in the possession of accused persons. 2 Circumstantial evidence is permitted at law and if cogent enough can be used to establish facts in issue, particularly the guilt of an accused person. It is therefore no wonder Lord Hewart LCJ in R v Taylor (1928) 21 CR. App. R. 20 at page 21 opined that; “It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best: it is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial” It is imperative to however note that, circumstantial evidence must lead to the irresistible conclusion that it is the accused person and no other who committed the offence. If circumstantial evidence still leaves a possibility of the innocence of the accused person, he must be acquitted of the offence as observed by Ollennu JSC in the case of Dowuona v. The State [1964] GLR 361 SC as follows; “…a court ought not to convict upon circumstantial evidence; put in another form, there should not be conviction unless guilt is the only inference which can be drawn from the facts. Therefore, where circumstantial evidence is consistent with guilt as well as with innocence, the court must acquit.” In this case, the circumstantial evidence which Prosecution therefore needs to establish are that; i. That certain items belonging to complainants were stolen; and ii. That the said items were found in the possession of accused persons. 3 It is only after these are established beyond reasonable doubt, that the onus would then fall upon accused persons to give a reasonable explanation as to how they came about the items. Kwaku Duah (Pw3) testified to the effect that on the 30th of September 2023 when he went to his shop, he detected that certain items he had were missing, these included two vigour car batteries, quantity of jump wires, alternator, starter and other wires. He alleged that he subsequently proceeded to lodge a complaint with the police only for him to be informed about the arrest of accused persons and the retrieval of the items he mentioned as stolen. The essence of the testimony of Pw3 was that the two vigour car batteries, quantity of jump wires, alternator, starter and other wires which were stolen belonged to him a fact which Accused persons did not dispute owing to their failure to cross examine him on that issue. Likewise, Prosecution’s second witness, Niscostina Forkuo testified to the effect that her Smart Tv which had been stolen was found in possession of accused persons. This was also not challenged by accused persons during cross examination. Owing to accused persons failure in that regard, they are therefore deemed to have admitted the truth of same. The case of Republic vrs. Kwame Amponsah & 6 ORS (2019) JELR 107122 (HC), is instructive on the legal effect of a party’s failure to cross examine on material facts. The Court observed in that case that a “…failure by the defence to cross- examine amounted to an admission by the defence”. In any case, never at any point in time did accused persons allege that the items in question belonged to them. This Court therefore finds that the items did not belong to accused persons. The next issue is to ascertain whether or not these items belonging to complainants were indeed found in the possession of accused persons and in this regard, Pw1, the Investigator in the person of D/Cpl/Patrick Riverson Darko in his evidence indicated that the Police at Kenyasi had information that accused persons had been arrested at Ntotroso and in their possession were found a 32-inch Samsung Tv, a woofer sound system, 5 Itel 4 Keypad phones, 1 itel smart phone. He alleged that the items were shown to complainants who identified them as their properties. This was corroborated by Pw2 and Pw3. With regards to Pw2, she testified that she received a call from a friend at the Kenyasi lorry station to the effect that a group of men were in possession of a smart TV and that she should come to the station to identify same if it belonged to her. She stated however that by the time she got to the Kenyasi lorry station, the group of men had left for Ntotroso so she followed up and met them at the main station in possession of the stolen items which included the television set. She tipped off the Driver who smartly drove the men to the Ntotroso police station unfortunately, two of the men escaped leaving behind the accused persons with the items stolen in their possession. Despite these serious assertions made against accused persons which sought to establish their possession of the items in question, they however failed to challenge or dispute the assertions of Prosecution‟s witnesses with regards to their possession of the items. Accused persons are therefore deemed to have admitted the truth of same. It therefore follows that Prosecution has duly established beyond reasonable doubt that, that the items did not belong to accused persons and that same were found in their possession. How then did accused persons come by the said items? The onus rest upon them to offer some reasonable explanation which would determine whether or not they succeeded in raising a reasonable doubt in the case of Prosecution. A1 however opted not to testify at all while A2 offered an unsworn statement to the effect that on the day of the incident he was going to Sunyani and so went to the lorry station where he met A1 and 3 other boys. However, on their way he noticed that the Driver diverted into a police station and in the process the boys started running away but since he knew nothing about the incident he did not abscond. A2‟s unsworn statement however was not consistent with his statement contained in Exhibit C, his caution statement by which A2 essentially admitted stealing the items in question. Exhibit C was 5 admitted into evidence without objection. The only issue A2 raised to the tendering of his caution statement was that some of the facts stated in his caution statement were not true. A2 however never cross examined Pw1 on the facts he alleged were not true. It is therefore the finding of the Court that, to the extent that Exhibit C was a confession statement, this Court finds that A2 failed to offer a reasonable explanation for his possession of the stolen items. By virtue of the forgoing, the only reasonable explanation is that, on the 29th of September 2023, the accused persons in the company of their counterparts who are at large conspired to steal properties belonging to Complainants who lived in the Kenyasi vicinity, broke into their room and shop thereby causing damage to their locks and stole the items above identified. Consequently, the charges of conspiracy to steal, unlawful damage, unlawful entry and stealing proffered against accused persons are duly established. Count 8 related to the charge of possession of firearm which A1 alone was charged with. This offence is proscribed under Section 11(1) (f) of NRCD 9 as amended provides as follows; (1) Any person who— (f) makes or knowingly has in his possession or control any explosive (including any gunpowder or fuse) under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or control for a lawful object, shall be guilty of an offence and liable on summary conviction to a fine not exceeding ¢5 million or to imprisonment not exceeding five years or to both. [As amended by the Arms and Ammunition (Amendment) Act, 1996 (Act 519), s.2] 6 The Law Reform Commission having completed its work, however consolidated all the laws relating to arms and ammunition and restated the law as follows; “Section 11 Where any firearms, arms of war, munitions of war or ammunition are, without the proper authority, (a) (b) (c) Found in the possession of a person, Kept in a place other than a public warehouse, or Unlawfully kept in a private warehouse, That person or the occupier of that place, or the owner of the place or any other person keeping them, commits an offence unless that person, occupier or owner can prove that they were deposited there without the knowledge or consent of that person, occupier or owner.” The law further provides in Section 26 as follows; 1) A person commits an offence and is liable on summary conviction to a fine not exceeding one thousand penalty units or to a term of imprisonment not exceeding five years or to both the fine and imprisonment, if that person a) contravenes a provision of this Act or a condition or restriction imposed in respect of a permit granted to that person, b) obstructs a member of the Police Service or of the Armed Forces in the performance of a function conferred on that member by this Act, c) willfully makes a false statement in connection with an application under this Act, d) forges, alters or defaces a permit granted under this Act, 7 e) has in that person’s possession, without lawful authority, a permit granted under this Act, f) makes or knowingly has in that person’s possession or control an explosive, including gunpowder or fuses under circumstances which give rise to a reasonable suspicion that that person is not making it, or does not have it in possession or control, for a lawful reason. 2) A person commits a misdemeanour if that person a) contravenes a provision of this Act, or of an instrument made under section 24 or of a condition in a licence or permit, b) does an act with intent to contravene this Act, or an instrument made under section 24 or a condition in a licence or permit, or c) does an act which is, in this Act or in an instrument issued under section 24, declared to be an offence.” Hence the current position of the law is that contained in the Laws of Ghana as revised by the Statute Law Revision Commissioner. It follows therefore that 1st accused person was not properly charged with the offence in question. This error is however not fatal in the light of Section 112(1) and (2) of the Criminal and other Offences (Procedure) Act, 1960 (ACT 30) as the charge sheet provided 1st accused person with „reasonable information‟ regarding the nature of the offence. (See: Republic vrs. Dufa [1976]2 GLR 18 and Dochie v. The State [1965] GLR 208). The offence as indicated in Section 11(a) of NRCD 9 (supra) is one of strict liability in the sense that, all Prosecution has to establish is that ammunition was found in an accused person’s possession, if this is established the onus falls on the accused person to establish that the same was in his possession without his knowledge or consent or that he had a lawful right to possess same. 8 Humphrey J. in delivering a judgment regarding an offence of strict liability in the case of R V CARR – BRAND [1943] K.B 607 held that: Either by statute or common law some matter is presumed against an accused person, unless the contrary is proved. That the burden of proof required is less than that at the hand of prosecution in proving a case beyond a reasonable doubt and that the burden may be discharged by evidence to satisfy the jury of the probability of that which the accused is called upon to establish.” In this case therefore, all Prosecution has to establish are that; a. the item in question falls within the meaning of arms and ammunition as stipulated by law; b. that the arms and ammunition were found in the possession of the accused person. What then is the nature of the item complained about? According to Pw1 the item in question was a locally manufactured pistol and this was corroborated by Pw2. Pw1 further tendered the locally manufactured pistol together with one BB cartridge amongst other items which were marked as Exhibit F. The question however is whether a locally manufactured pistol falls within the ambit of arms and ammunition? This is answered under Section 29 of NRCD 9 which explains “arms” to mean “firearms and offensive weapons of any description, artillery, apparatus for the discharge of any kind of projectiles, explosive or gas-diffusing, flamethrowers, bombs, grenades, machine-guns and riled smallbore breech-loading weapons of any kind and the part of any of those arms”, while “ammunition” is said to include “explosives, munitions of war, and the materials for loading firearms”. From the foregoing explanations therefore, I have no difficulty in holding that the locally manufactured pistol and the BB cartridge are in fact arms and ammunitions with the meaning of the law. 9 The next issue is to ascertain whether the locally manufactured gun, was indeed found in the possession of 1st Accused person. In this regard, Pw2 testified that when A1 attempted to escape, a locally manufactured pistol fell out of his pocket. This fact was not denied or challenged by A1 under cross examination and in fact in Exhibit A, A1 admits possessing same at the time of his arrest. It is therefore the finding of the Court that 1st accused person had in his possession a locally manufactured pistol and a BB cartridge at the time of his arrest. Despite being in possession of the pistol, A1 offered no explanation as to how he came by same save that in his caution statement, Exhibit A, A1 alleged that it was A2 who gave him the locally manufactured pistol. However, this was not established in the course of trial. This Court therefore finds A1 guilty of the offence possessing a fire arm without lawful authority. In summary Prosecution has established its case against accused persons on all counts beyond reasonable doubt. Accused persons are both found guilty on Counts 1, 3, 4, and 6. 1st Accused person alone is found guilty on Count 8 while 2nd Accused person is found guilty on Counts 2, 5 and 7. Sentencing is however reserved till the 7th of February 2024 as Prosecution has informed that Court that while 1st Accused person has previously been convicted on a similar offence the 2nd Accused person managed to escape lawful custody the previous night. Prosecution shall do well to furnish the Court with evidence of the previous conviction of 1st Accused person. Bench warrant is however issued for the arrest of 2nd accused person. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE - GOASO 10 11