REPUBLIC VRS JOHNSON (D21/286/2024) [2024] GHACC 165 (9 May 2024)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON 9TH DAY MAY, 2024 BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) THE CIRCUIT COURT JUDGE. SUIT NO: D21/286/2024 THE REPUBLIC VRS JEFFERY JOHNSON ACCUSED PERSON JUDGEMENT Prosecution’s case per the facts attached to the charge sheet is that on The first complainant Ebenezer Dapaah is a Chef, second complainant Rosemary Akorli is a Kitchen assistant. They work at Papaya food company. The accused person Jeffrey Johnson is a driver's mate and resident of Teshie. On 17/02/2024 between the hours of 1:00am and 1:30am, the accused person with accomplice currently on the run rode their motorbike to the complainant's house and met the first and second complainants who had just returned from work. The accused person and his accomplice attacked the complainants and in the process, the first accused stabbed the first complainant with scissors on his right hand and succeeded in robbing them of one I phone x, one Huawei Y9, and an itel phone all valued at GHC4200.00 and bolted. The complainants raised alarm and the area folks who were around the accused person and his accomplice. Luck eluded the accused and he was arrested but his accomplice managed to escape on the motorbike. The complainants identified the accused person upon his arrest. The accused person was later handed over to the 1 police patrol team that came to the scene. A search conducted on the accused person revealed one itel phone and the scissors the accused used in committing the robbery” After investigation, accused person was charged with one count robbery contrary to section 149 of the Criminal and other offences Act 1960 Act 29 (hereinafter referred to as Act 29) and one count of causing harm contrary to section 69 of Act 29. Accused pleaded not guilty to the offences when his plea was taken on 22/2/2024 in Ga, his preferred language. BURDEN OF PROOF In every criminal prosecution, when an accused person denies an offence, prosecution assumes a statutory obligation to prove the guilt of the accused beyond reasonable doubt. It is important for this Court to bear in mind that the Constitution 1992 Article 19 (2) (c) presumes everyone innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. Section 11(2) of the Evidence Act, 1975, NRCD 323 (hereinafter referred to as NRCD 323) with specific reference to criminal cases reads “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 2 reasonable mind could find the existence of the fact beyond reasonable doubt.” Section 13(1) of the Evidence Act 1975 NRCD 323 provides the extent of proof or the burden on the prosecution in a criminal action thus: (1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. And there seems to be a further emphasis under section 22 of the NRCD 323 that provides ‘in a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt…’ In the case of TAMAKLOE VS THE REPUBLIC (2011) SCGLR 29 at 46 it has been held that, where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is sine qua non to securing conviction, unless the same statute places a particular burden on the accused. It is also important for this Court to bear in mind that the Constitution 1992 Article 19(2)(c) presumes everyone innocent until the contrary is proven. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution and it is only after a prima facie case has been established by the 3 Prosecution that the accused person is called upon to give his side of the story.” See the case of Gligah & Anr. v The Republic [2010] SCGLR 870 Prosecution called four witnesses to establish their case. Pw1 Rosemary Akorli testified that on 17/02/2024, she was returning from work with Ebenezer Dapaah a co-worker at Papaye Food Restaurant between the hours of 1:00am and 1:30am when accused person herein and another at large trailed them on a motor bike and robbed them of their phones. According to her when accused and his accomplice got to the crime of scene, accused person struggled with Ebenezer Dapaah for his bag. She stated that Ebenezer run into her house but accused person herein pursued him there and succeeded in robbing him of his Itel phone. At this time the accomplice of accused got down from the motorbike, punched her in the stomach and robbed her of her iPhone and Huawie phone. PW2, Ebenezer Dapaah a chef at Papaye testified that he had closed from work and was walking home with PW1 around 1/00am and 1:30am on 17/2/2024 when accused and his accomplice at large trailed, attacked and robbed them of their phones. According to him, accused person struggled with him after getting down from the motorbike and struggled with him for his bag which contained an Itel ohone. He stated that he became scare and run into the house of PW1 but accused pursued him into the house and stabbed him with a scissors on his right hand afterwhich he succeeded in taking his bag containing the Itel from him. he stated further that he raised alarm and folks around came out and arrested accused person but his accomplice managed to escape. PW3, Isaac Niiquaye Ashie a welder testified that on the aid 17/2/2024, he was in his room when he heard PW1 shouting him name. when he came out, PW1 pointed out accused who was then running away as having robbed her and 4 pw2 of their phones. He stated they quickly gave accused a hot chase and finally got him arrested around LEKMA in a taxi. When he was searched, the Itel phone and the scissors he used in committing the offence were found on him. Accused was arrested and later handed over to the police. PW4, Detective Inspector Frank Manu testified that on the said day, accused was brought to the station by the police patrol team led by the monitoring officer in-charge Papa 72. A search on his person revealed an Itel phone belonging to PW2 and a scissors. He stated that his investogations revealed accused and his accomplice on the 17/2/2024 attacked and forcibly took away the phones of PW1 and PW2. He stated that the investigations further revealed that accused stabbed PW2 on the right hand and succedded in taking his Itel Phone whilst the accomplice of accused succeeded in taking the iPhone and Huawei phone of PW1. PW4 tendered in evidence the investigation caution statement, Charge statement of accused and well as the photograph of the Itel phone and scissors as exhibit A, B and C respectively. Even though in Criminal trials there is absolutely no burden on the accused to prove his innocence, Section 13(2) of the NRCD 1975 however provides that “Except as provided in section 15 (3), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” See Commissioner of Police v Antwi (1961)GLR 408 SC. The Supreme Court has held in the case of MALLAM ALI YUSIF v THE REPUBLIC [2003-2004] SCGLR 174 that: 5 “the burden of producing evidence and the burden of persuasion are the components of 'the burden of proof.' Thus, although an accused person is not required to prove his innocence, during the course of his trial, he may run a risk of non-production of evidence and/or non-persuasion to the required degree of belief, particularly when he is called upon to mount a defence’’ The court after close of prosecution’s case found a prima facie case established against accused herein on the charge of robbery only and called upon him to open his defence to same. Accused was however acquitted and discharged by the court on count 2 i.e causing unlawful harm Accused in his defence testified that he is a mechanic residing at Teshie. According to him on the said date of the incident, he was from his sister’s place at Labadi. Upon getting to Teshie, Lekma bus stop, a group of people accused him of having stolen their phone and started beating him. a police patrol vehicle passing by stopped the people from beating him and took him to the police station. When I got to the bus stop at Lekma and started walking a group of people said I had stolen their phone and started beating me. During the beating the police patrol came around. They stopped the people from beating and took me to the police station. Section 149 of Act 29 provides the law on robbery. Section 149 of the Criminal Offences Act 1960 Act 29 provides that: “A person who commits robbery commits a first degree felony.” Section 150 Act 29 defines Robbery as: “A person who steals a thing commits robbery 6 (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing His Lordship Dotse JSC in the case of Frimpong @ Iboman v Republic [2012] 1 SCGLR 297 espoused the elements of robbery thus “For the offence of Robbery, it is important to establish the following ingredients:- 1. That the appellant stole something from the victim of the robbery of which he is not the owner. 2. That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims. 3. That the intention of doing so was to prevent or overcome the resistance. 4. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense. 5. The thing stolen must be in the presence of the person threatened. Therefore for prosecution to succeed on a charge of robbery, they have to prove that in stealing the thing, the accused persons herein used force or harm on the victim intented to overcome the resistance of the victim or any other person to the stealing of the thing. 7 Stealing is also defined as under section 125 of Act 29. Per this section, A person steals if he dishonestly appropriates a thing of which he is not the owner. In construing this section, the Court in BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608-616 at page 610 stated that the essential elements of the offence of stealing were; (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.” In respect of the first ingredient of the offence of stealing i.e that the accused person must not be the owner of the thing stolen, it has been held in the case of Republic vrs Halm and Another (1969) CC 155 C.A, where it was held that “ On the issue of ownership… a charge of stealing is founded not on a relationship between the person charged and an identified owner but on the relationship between the person charged, and the thing alleged to have been stolen. Therefore the law only required proof that the accused was not the owner of the chattel.” Prosecution per count one of the charge sheet alleges that the things that one iPhone, one Huawei phone and one Itel phone belonging to PW1 and PW2 were taken with the use of force and harm by accused person herein. Section 123 of the Criminal Offences Act 1960 Act 29 defines what constitutes the thing or subject matter of the theft. It provides that: (1) The criminal offence of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretence can be committed in respect of a thing 8 (a) whether living or dead, and whether fixed to the soil or to a building or fixture, or not so fixed, and (b) whether the thing is a mineral or water, gas, or electricity, or of any other nature, and (c) whether the value of the thing is intrinsic or for the purpose of evidence, or is of value only for a particular purpose or to a particular person, and (d) whether the value of the thing does or does not amount to the value of the lowest denomination of coin. Therefore per Section 123 (1) of Act 29, anything of the least value could be a subject matter of stealing. From the evidence of PW1 and PW2, accused person herein pursued PW2 and succeeded in taking his Itel phone from him whilst the accomplice of accused attacked PW1 and took away her iPhone and Huawei phone. PW4 in his evidence stated that his investigations revealed same. From the evidence of prosecution witnesses. Accused herein took only the Itel phone and not the iPhone and Huawei phone. The court therefore finds only the Itel phone belonging to PW2 as the thing/ subject matter in this charge of robbery against accused person herein. Section 122 of Act 29 dealing with acts which amount to an appropriation provides under subsection (2) that: “An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away or dealing with a thing with the intent that some person may be deprived of the benefit of his ownership or of 9 the benefit of his right or interest in the thing or in its value or proceeds or any part thereof” Act 29 further defines what amounts to dishonest appropriation. Per section 120 (1) of Act 29: " An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent. P.K Twumasi in his book Criminal law in Ghana at page 374 in explaining what amounts to robbery stated “ all that the prosecution has to do is to establish that the accused is not the owner and has no property in the thing taken. But it is necessary for the prosecution to prove that the thing was taken from the custody, or control or possession of the person robbed.” In establishing Force, harm or threat of any criminal assault on the victims, anything short of criminal assault will not suffice. The force or harm or threat of criminal assault must be caused either to the person being robbed of the property or any other person whose resistance the force or harm or threat of harm or assault is intended to overcome. The means of assault used by the accused may result in either actual bodily harm or fear of such harm. A use of force or harm or threat of assault usually results in physical, emotional, Psychological pain. Pw1’s evidence confirmed that Accused person after chasing PW2 into her house stabbed the right hand of PW2 with a scissors and succeeded in taking his Itel phone. PW2 also discloses accused succeeding in taking his Itel Phone 10 from him. Exhibit D shows PW2 with a deep but small cut on his right hand. PW3, in his evidence to the court also testified that after giving accused a hot chase and catching up with him at Lekma, the Itel phone of PW2 was found on accused. These pieces of evidence establish that the attacker whom they contend to be accused person herein took on the Itel phone of PW2 away after the latter had caused harm to him by stabbing his right hand to overpower his resistance on the said date of the incident. Accused in his investigation caution statement and charge statement to the police as well as his evidence on oath denied knowledge of the robbery. In exhibit A, accused person stated that he was returning from his visit to his friends Stone boy and Paa Tee at Labadi when he was accused of stealing by some group of people. Accused relied on the content of exhibit A in exhibit B. On oath, accused contended that he was returning from his sister’s end at labadi when on reaching Lekma, he was accosted by a group of people who accused him of having stolen the phones of PW1. Accused put his identity as the culprit into issue. It has been held in the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, that where the identity of the accused person was in issue there can be no better proof of his identity than the evidence of a witness who swore to have seen the accused committing the offence. Also in the case of Dogbe v R (1975) GLR 118, it was established that in criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct or circumstantial evidence and other relevant facts from which the identity of the accused might be inferred by the court. 11 PW1 and PW2 the two victims of the robbery which occurred on 17/2/2024 both testified and identified accused herein as one of the two attackers. Their evidence on the role of accused in the attack was vivid and not only consistent but same narrative. PW1 and PW2 also appear to be credible witnesses to the court. Assuming without admitting that the identification of accused by PW1 and PW2 was not accurate, there are plethora circumstantial evidence on record that points to accused as the attacker of PW1.according to both PW1 and PW2, the Itel phone of PW2 was taken away by his attacker. PW3’s testified to seeing accused person herein running away from the house of PW1 and upon the arrest of accused person at Lekma bus stop finding the Itel phone of PW2 and a scissors as seen in exhibit C in the possession of accused person. PW4 also confirmed accused having the said Itel and Scissors in his possession when he was brought to the police station by the patrol team. The parameters of circumstantial evidence are well captured in the Ghanaian locus classicus case of State v Anani Fiadzo [1961] GLR 416 where the Supreme Court held at page 418 that: “Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion.” 12 Justice Brobbey in his book Essentials of the Ghana Law of Evidence at page 253 noted that: “Circumstantial evidence is the fact from which may be inferred, presumed or deduced, the existence, non existence or proof of another fact. Circumstantial evidence is not proof of the fact itself. It is the pieces or incidents of facts, considered or put together, which provides the basis for drawing conclusion, inference or deduction of the existence or non existence of a fact.” In the case of Dexter Johnson v The Republic [2011] 2 SCGLR His Lordship Justice Jones Dotse quoted the case of Lejzor vrs the Queen [1952] AC 489 at 489 where it was stated that: “Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined if only because the evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing inferences of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” From the evidence on record, the attacker of PW2 took away the latter’s Itel phone whilst the attacker of PW1 took away her iPhone and Huawei phone. The itel phone of PW2 was found on accused person herein upon his arrest at Lekma bus stop. Pw2 testified to being stabbed with a scissors by his attacker. Accused person’s defence of not being the attacker but only arrested on his way home from visiting his sister and or friends in the light of the above evidence is not in the least probable. The Itel phone was taken away by the attacker of Pw2 along with the scissors used to harm PW2 to overpower his resistance. These items were found on the possession of accused person. Photograph of the Itel phone and the scissors has been tendered in evidence 13 as exhibit C. These pieces of evidence lead to the irresistible conclusion that accused person herein as the attacker of PW2. PW1 and PW2’s evidence and identifying accused as the attacker of PW2 is not the only evidence that establishes accused person herein as the culprit of the attack on PW2. The circumstantial evidence analyses supra further leads to the sole conclusion that accused is the attacker of PW2. The defence of accused person is untrue and same is further not reasonable probable. His defence fails to raise any doubt whatsoever in the mind of the court as to his guilt of the charge of robbery against PW2. Prosecution at close of the entire case has succeeded in establishing the guilt of accused person herein beyond reasonable doubt. Accordingly accused person is convicted on count one i.e charge of robbery forthwith. IN THE CIRCUIT COURT ONE HELD AT ACCRA ON 4TH DAY JUNE, 2024 BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS) THE CIRCUIT COURT JUDGE. SUIT NO: D21/286/2024 THE REPUBLIC VRS JEFFERY JOHNSON ACCUSED PERSON 14 SENTENCING The court on the 9th of May 2024 convicted accused person but deferred sentencing upon an application by the prosecution for adjournment to furnish the court with evidence of past conviction of accused person on a similar charge in support of their submission for enhanced punishment for accused person. Prosecution have till date not filed any evidence of a past conviction of accused person herein on a similar offence. The court shall therefore proceed to sentence accused person based on the facts before it and pre-sentence hearing conducted in the court today. Section 149 of Act 29, 1960 as amended by Act 2003 per sections 149 (1) (3) reads as follows: (1) Whoever commits robbery is guilty of an offense and shall be liable, upon conviction on trial summarily or on indictment to imprisonment for a term of not less than ten years, and (2) where the offense 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 years. And (3) In this section “offensive weapon” means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and “offensive missile” includes a stone, brick, or any article or thing likely to cause harm, damage or injury if thrown” In sentencing accused, the court takes into consideration the following aggravating and mitigating factors; use of a scissors in robbing PW2 of his itel mobile phone, period accused has spent on remand i.e. four months; age of accused i.e. 21 years, being a first time offender, the plea for leniency and mobile phone retrieved. With these factors in consideration as well as the punishment prescribed by law for robbery with the use of offensive weapon 15 as stated above, accused is sentenced to the 16 years imprisonment IHL on the charge of robbery forthwith. ACCUSED PRESENT CHIEF/INSP. WISDOM ALORWU FOR REPUBLIC PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 16