THE REPUBLIC VRS AGBEWORNU (B9/04/2024) [2024] GHADC 274 (28 March 2024)

IN THE DISTRICT COURT HELD AT SEGE ON THURSDAY THE 28TH DAY OF MARCH, 2024. BEFORE HER WORSHIP VICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. CASE NO. B9/04/2024 THE REPUBLIC VRS DORNU AGBEWORNU JUDGMENT The accused person herein has been arraigned before this Court on the 22/05/24 charged with the offence of CAUSING UNLAWFUL DAMAGE, UNLAWFUL ENTRY and Stealing contrary to Sections 172,152 and 124(1) of the Criminal & Other Offences Act, 1960 (Act 29) respectively. Accused pleaded Not Guilty to all the charges. With a plea of Not Guilty the accused has in effect disputed the offense charged and it’s the duty of the court to determine whether the prosecution has succeeded by their evidence in proving beyond reasonable doubt the offences in which the accused has been charged. BRIEF FACTS OF THE CASE The complainant in this case is a Phone Repairer whiles the Accused person is a 1 Salt Miner both residing at Sege and Nakomkope respectively. On the 12th day of January, 2024 about 8:00am the complainant closed from work at Sege Wonya junction and used three (3) padlocks to lock his shop and went home. On the 13th day of January, 2024 about 8:00pm the complainant came to his shop and detected that, the door was ajar and the padlocks he used to lock the shop were broken by thieves lying in front of the shop. The complainant entered the shop and check’s in the shop revealed that his seven boxes of android mobile phone screens, eleven pieces of iPhones, eleven Samsung android phones, seven Infinix mobile phones, three android Itel mobile phones, five keypad mobile phones, Oale mobile phone, amazon tablet, Ipad 3 and android mobile phone batteries were stolen from the shop. On the same day complainant lodge complaint to the Sege Police. On the 14th day of January, 2024 about 11:45am information was received that Paul now at large was offering the complainant Tecno pop 4, Samsun J5 and infinix smart 6 mobile phones for sale at Nakomkope. Police immediately proceeded to Nakomkope but could not trace him. Police proceeded to a house at Nakomkope and met the Accused person far asleep on a mat with the girlfriend and the Complainant Oale mobile phone lying by him. Police woke the Accused person up and upon him realizing it was police that woke him up attempted running away. Police immediately go hold of him and the Accused person struggle with police for about fifteen (15) minutes before he was overpowered. A search was conducted in the Accused person’s pocket and one of the complainant’s Tecno phone battery was found on him. The Accused person was arrested to the station for investigation. After investigations the Accused person was provisionally charge and now before this honorable court. After investigation accused was charged with the offence stated on the charge sheet. In proving its case, the Prosecution called four (3) witnesses including the Investigator. PW1 IS ADAMS FUSEINI A PHONE REPAIRER 2 PW1 testified to the effect that on the 13/1/24 he locked his store with three (3) padlocks. The next day when he came, all the three padlocks were all broken into. When he entered the shop all the phones and the phone accessories were all gone. They were iPhone, Android, Screens, batteries. PW1 stated further that he went to lodge a report with the Police. On Sunday, he heard some people were selling some of my phones. Someone sent some pictures to check if they were his phones. When we went to the market, those selling the phones runaway. PW1 said he was told Accused was among the people selling the Phones and the Phone Accessories. Upon receiving the information PW1 went with the Police to Accused person’s house. We found one of the stolen phones and battery in Accused person’s pocket. The phone was an Android phone.PW1 was able to identify the phone with Accused as one of your phones when he called the owner of the phone to identify the phone as his own which he brought to the shop for repairs. PW2 is GLORIA ALIMO: A TRADER of AKPLABANYA PW2 in her evidence in chief stated that on the 19th of January, 2024 she was invited to the Police station to identify a phone she sent to PW1 for repairs. her mother gave her the phone to be given to a repairer. It was in the evening so the repairer told me to come for it the next day. On the next day I went to the repairer in the afternoon. He told me thieves have broken into the shop and stole all the phones. On the 17th January, 2024 the repairer called me to come to the police station. The police asked her the type of phone she took to the Repairer. PW2 added it was Oale. She then took the Sim plate and the charger along to the Police station. The police asked her to identify the phone. She mentioned some marks she used a pen to write at the back of the phone ‘M’. At the Police station when the phone was showed to me. Was the phone showed to her the mark was shaded with blade but you could still see it. PW2 was told it was accused who stole the phone. PW2 was cross examined by accused and discharged. PW3 IS NO. 45654 D1 SGT. NAAZAH NASHRU STATIONED AT SEGE CID. 3 On the 13th January, 2024 PW3 was on duty at the Sege police station CID when a case of causing unlawful damage and stealing was referred to him far investigation. He obtained statement from the Complainant. Later information was received that a group of people were offering the Complainant stolen phones for sale at Nakomkope we proceeded to Nakomkope when we got there, we did not meet any such people. We decided to visit the ghettos. The first ghetto we went, we saw the accused with the girlfriend far asleep on a mat under a mango tree with one of the Complainant’s stolen phone lying between the accused and the girlfriend. When PW3 woke Accused person up and upon him realizing that it was police that woke him up he attempted to escape. PW3 added that he got hold of the accused. Accused threw blows at Constable Bernard when he was hand cuffing him. It took police more than 15 minutes to overpower him. Accused was brought to the station with a Techno battery was found in the pocket of the trouser accused was wearing. During investigation, accused mentioned Dornu who gave the phone to him to charge. Accused and myself made effort to arrest Dornu and one Teye who brought the trousers for him to wear as the battery was found in the pocket of the trousers. All these people were not found anywhere. PW3 went to Teye’s house again with the accused person. We met Teye in the house. When we met Teye, Accused denied he was not the Teye he was referring to. All efforts to trace Dornu was in vain. PW4 tendered the Cautioned and Charged statement of accused. It was admitted and marked EXHIBIT A and B respectively without objection from accused.PW3 further tendered in Evidence the Oale Phone and Techno Battery obtained from the pocket of Accused. It was admitted and marked Exhibit C and C1.PW3 was duly cross examined the PW3 after which he was discharged. ACCUSED IS DORNU DERRICK AGBEWORNU OF NAKOMKOPE A SALT MINER. In opening his defense, Accused maintained he has no knowledge about the Phone and the battery in his pocket. He went to his friend and he gave the phone to him to charge 4 and that was where he was arrested. A person accused of a crime is presumed to be innocent until proven guilty nor pleads guilty. This principle of law is constitutionally stated in Article 19(2) (c) of the 1992 Constitution which provides that: “(2) A person charged with a criminal offence shall be presumed to be innocent until proven guilty”. Flowing from the above constitutional presumption of innocence of an Accused person the settled principle of law is that in criminal matters the burden of proof lies with the prosecution throughout the trial. Hence when a person such as the accused herein are charged with an offence in the instant case the prosecution is under a duty to prove all the elements of the offence. In the case of Richard Banousin v The Republic Criminal Appeal No. J3/2.2014 dated 18th March 2014, the supreme Court held that; “The prosecution has the burden to provide evidence to satisfy all the elements of the offence”. Section 10 (1) of The Evidence Act1975(NRCD 323) which states that; For the purpose of the Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind the tribunal of fact or the court. The legal issue for determination after the end of the trial are as follows: Whether or not the Accused unlawfully entered the Phone shop of Complainant. The cardinal rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution; and the standard of proof required by the prosecution should be proof beyond reasonable doubt. 5 The Evidence Act, 1975 (NRCD 323), formulates this proposition under sections 11(2) as follows “In criminal action, the burden of producing evidence when it is on the prosecution as to any facts which is essential to guilt, requires the prosecution to produce sufficient evidence on all the evidence a reasonable mind could find the existence of facts beyond reasonable doubt. ISSUE 1 Whether prosecution successfully proved the charge of causing unlawful damage Section 172 of Act 29/60 At the close of prosecution’s case, it was unable to lead evidence to prove the elements of the offence of Causing unlawful damage contrary to Section 172 of the criminal Code 1960 (Act 29). The evidence led so far did not make any mention of causing unlawful damage to the property of the Complainant and how and when the Accused person was involved in the act. All prosecution witness failed to state how Accused caused unlawful damage to property. It therefore falls short of the threshold and cannot lead to the conviction of Accused. ISSUE 2 Whether the Accused UNLAWFUL ENTERED THE COMPLAINANT’S PROPERTY CONTRARY TO SECTION 152 OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29). A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second-degree felony. Apart from mentioning that the padlocks to the complainant’s shop was broken into nothing was said in connection with the accused herein to the offence. 6 None of the witnesses provide evidence required in law to establish the guilt of the accused in the offence charged under unlawful entry contrary to 152 of the criminal code 1960 (ACT 29). ISSUE 3 Whether Prosecution succeeded in proving the charge of stealing Complainant’s property. Section 124(1) of Act 29 provides that a person who steals commits a second-degree felony. The offence of stealing has been defined by Act 29 as the dishonest appropriation of a thing which does not belong to the one doing the appropriation: see section 125 of Act 29. The elements of the offence are that (i) the person charged must have appropriated the thing allegedly stolen, (ii) the appropriation must be dishonest, and (iii) the person charged must not be the owner of the thing allegedly stolen: see BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608. The prosecution must establish either through direct or circumstantial evidence that the accused actually appropriated the item. In the instance case, the evidence before the court shows that accused person was not apprehended at the crime scene committing the offence which could have led to his discharge, however putting the pieces of evidence adduced before the court, Prosecution provided enormous evidence to prove the guilt of the Accused. However, the evidence provided was circumstantial evidence but not a direct evidence. Circumstantial evidence is said to be facts as evidence of other facts. It is a fact from which a judge may make an inference from certain facts. That fact alone will not suffice, but one can make an inference from that fact. Some people describe circumstantial evidence as a chain. In other words, each fact on its own may mean nothing, but taken together, they may lead to a logical conclusion. State v. Brobbey and Nipa [1962] 1 GLR 144; 7 “In a case where the evidence is purely circumstantial and establishes nothing more than suspicion, the judge must draw attention to the necessity of some piece of evidence that is more than mere suspicion and which would lead to one conclusion and one conclusion only, that is, to the guilt of the prisoner. One cannot put a multitude of suspicions together and make proof of it. For circumstantial evidence to support a conviction it must be inconsistent with the innocence of the accused, and must lead to the irresistible conclusion not only that the crime charged has been committed, but that it was in fact committed by the person or persons charged and by no other person; in other words the evidence on the whole must exclude the probability that the alleged crime could have been committed by some person or persons other than the person or persons before the court.” State v. Anani-Fiadjoe [1961] GLR 416 at 418; The court held that although there was no direct evidence, there was nevertheless a mass of circumstantial evidence from which the fact could be inferred that the appellant killed the deceased; that the facts in this case point to that conclusion only…. We are of the opinion that such circumstantial evidence as there is in this case is so strong as to point to guilt; we are also satisfied that it is not only consistent with the appellant’s guilt but also inconsistent with any other rational conclusion.” PW3 in his evidence stated the phone OLAE and a phone battery belonging to PW1 which were stolen were found with the Accused person when he was arrested The court will not lose fact that the complainant and the Investigator ad an information that some guys were selling the phones at a market EXCERPTS 8 On the 14th day of January, 2024 about 11:45am information was received that Paul now at large was offering the complainant Tecno pop 4, Samsun J5 and infinix smart mobile phones for sale at Nakomkope. Police immediately proceeded to Nakomkope but could not trace him. PW1 On Sunday, he heard some people were selling some of my phones. Someone sent some pictures to check if they were his phones. When we went to the market, those selling the phones runaway. PW1 said he was told Accused was among the people selling the Phones and the Phone Accessories. PW3 Later information was received that a group of people were offering the Complainant stolen phones for sale at Nakomkope we proceeded to Nakomkope when we got there, we did not meet any such people. We decided to visit the ghettos. The first ghetto we went, we saw the accused with the girlfriend far asleep on a mat under a mango tree with one of the Complainant’s stolen phone lying between the accused and the girlfriend. During cross examination accused said a mentioned one Dornu who gave the phone to charge in a house where there was no light. Accused did not lead the police to where this Dornu was during the investigation nor invited him to testify to prove his innocence if it was true that Dornu asked him to do so. Accused also mentioned one Teye who gave the phone to him. The investigator led him to the said Teyes house for the first time and met the absence of TEYE on the second time when Teye was brought to the station, Accused denied that he was not the TEYE he was referring after leading the prosecution to his house. A logical deduction made from all these inferences leads to one conclusion which is irresistible to the guilt of the accused 9 person. This court has taken judicial notice of the fact that the phones were on sale at Nakomkope and those who were selling the phones were not apprehended. For the benefit of doubt the court could assume that accused was not one of those selling the stolen phones. However, his failure to invited the said DORNU who he alleged gave the phone to him to charge and also the inconsistencies in linking Teye to the case when he made turn that he was not the Teye he was referring to when he led PW3 to his house. On the issue of the phone battery in the pocket of the accused during cross examination by prosecution responded that he never knew of the battery in his pocket. It was obvious the Accused person was not being truthful to the court. The court will not add probative value to the evidence of the Accused. The ingredient for stealing under section 125 of ACT 29/60. A person steals who dis honestly appropriates a thing of which he is not the owner. In the case of AMPAH v THE REPUBLIC. The court identified the elements of stealing as; i. ii. iii. Dishonestly. Appropriation and Property belonging another person. We are of the opinion that such circumstantial evidence as there is in this case is so strong as to point to guilt; we are also satisfied that it is not only consistent with the appellant’s guilt but also inconsistent with any other rational conclusion.” to discharge the standard burden of proof which is proof beyond reasonable doubt. From the evidence adduced before the court and the relevant law explained above, the court is satisfied that the guilt of the Accused has been proved by Prosecution beyond reasonable doubt. 10 Accordingly, I convict the Accused on the offence stealing contrary to S124(1) of Act 29/60. (SGD) H/W VICTORIA AKUA GHANSAH MAGISTRATE 11