REPUBLIC VRS ISSAH (BR/SY/CT/49/2023) [2024] GHACC 125 (9 February 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON FRIDAY THE 9TH DAY OF FEBRUARY 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/49/2023 THE REPUBLIC VRS. ANTHONY ISSAH JUDGMENT It was Prosecution’s case that on the 11th of August 2022, complainant parked his motorbike in his house and retired to bed. The next morning, the motorbike was nowhere to be found. Obviously, no one saw accused person conveying the motorbike away from the premises of complainant, it was however alleged that on the 15th of August 2022 complainant was informed that the motorbike was in the possession of accused person who was offering same for sale. Armed with this information, complainant notified the police and being accompanied by a police officer, complainant proceeded to the location where accused person was allegedly offering the motorbike for sale. According to Prosecution upon sighting the complainant and the police, the accused person fled but his arrested was effected after a hot chase. Consequently, the charge of Stealing was preferred against accused person. 1 Having been arraigned before the Court on the 18th of August 2022, accused pleaded not guilty thereby saddling Prosecution with the onerous burden to establish its case. In fact, 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...” A cursory perusal of Prosecution’s case is indicative of the fact that accused person was not seen in the act of stealing the motorbike, nevertheless Prosecution alleges that the accused person was seen in possession of the motorbike. Consequently, the basis of prosecution’s case was circumstantial and the Court shall seek to ascertain if same met the requisite degree of proof in law. 2 According to Pw1, the Investigator in the person of D/Sgt Nashirudeen Abdulshasheed on the 15th of August 2022 complainant lodged a complaint regarding the theft of his motorbike and led the police to the scene of the incident. That while conducting investigations the police had information that accused person was seen offering the missing motorbike for sale. They rushed to the location ostensibly to arrest accused person, however upon their approach accused person sighted them and abandoned the motorbike in a bid to escape. Fortunately for the police but not so fortunate for accused person, residents in the neighbourhood assisted in apprehending accused person. Based upon the evidence in chief of Pw1 the following facts were proffered by Prosecution in a bid to establish its case; i. ii. iii. iv. That the motorbike in question belonged to complainant. That complainant lodged a complaint about the theft of his motorbike. That accused person was later seen offering for sale the motorbike in question. That accused person fled upon seeing the police. In the light of the above assertions one would expect that accused person would challenge same under cross examination, however, this was not the case. Below is accused person entire cross examination of Pw1; Q. When I was arrested, was I riding the motor bike? A. No. While we were approaching you, you started running away. Q. Where you found the motorbike, was it in my house? A. No it was not in your house. It was at a drinking spot. Q. I know nothing about the charge against me? A. Not true. You are aware of the charge and you stole the motorbike. 3 In essence therefore, accused person did not dispute the following facts; i. ii. that accused person was offering for sale the alleged missing motorbike that accused person fled upon seeing the police approaching. In the case of Republic vrs. Kwame Amponsah & 6 ORS (2019) JELR 107122 (HC), the legal effect of a party’s failure to cross examine on material facts was observed by the Court as follows; “…failure by the defence to cross-examine amounted to an admission by the defence” Hence the failure of accused person to challenge these assertions amounted to an admission on his part. This Court therefore finds that accused person was indeed offering for sale the motorbike of complainant. The question then is, how did accused person come by the motorbike and why did he attempt to escape upon the approach by the police? The onus was upon accused person to offer a reasonable explanation to these questions which he attempted to do in his evidence in chief as follows; “…I know nothing about this case. I do not even know the complainant nor the colour of the motorbike. The motorbike prosecution obtained, I do not even know where they got it from. This is all I know.” Prosecution challenged this assertion under cross examination but accused person insisted he knew nothing about the theft of the motorbike. However, his contention was in clear contradiction with his earlier statement given to the police on the day of his arrest which amounted to a confession of the crime. Accused stated per his caution statement, Exhibit A as follows; 4 “…I have actually stolen the said motorbike from the complainant house, I went the motor was kept near one room in the house locked I managed to break the down the padlock and pushed the motor away from the house. I intended using the motor after stealing it but I have a wife and two children and decided to sell it and send the money to my wife but I was arrested in the course of trying to sell same.” (Sic). The above confession statement actually gives a reasonable explanation as to how accused person had the motorbike in his possession and why he attempted to escape on the day of his arrest and this was that, accused person stole complainant’s motorbike and attempted to sell same but luck unfortunately eluded him. The fact that complainant himself did not testify did not take away the fact that, sufficient evidence had been led by Prosecution to establish the theft of the motorbike by accused person and as such same offered accused person no defence at all. This Court accordingly finds accused person guilty of the offence of stealing and he is accordingly convicted on same. It is essential to note that accused person was standing trial in this Court in two other cases on similar offences. He was however found guilty and convicted in one of the said cases and proceeded to serve his term of imprisonment. Strangely enough, Prosecution failed to procure accused person to Court while he was serving his sentence in order to stand trial in this suit but waited for him to complete his term of imprisonment after which he was brought again to continue the trial of the present suit. The conduct of Prosecution, even though not frowned upon by any law ought not to be encouraged as an accused person is subjected to mental and psychological strain through incessant prosecution. Furthermore, it robs the Court of the opportunity to indicate whether the sentence in one case ought to run concurrently with that in another case involving accused person as per section 301 of Act 30/1960. Prosecution is therefore strongly 5 admonished to complete the prosecution of all cases pending against accused persons prior to their eventual conviction or acquittal to avoid an injustice being perpetrated. In the light of the above this Court deems its only appropriate to sentence accused person to a term of imprisonment on 30 days in hard labour. Accused shall further sign a bond to be of good behaviour for a period of 8 months and in default 15 months imprisonment in hard labour. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE - GOASO 6