REPUBLIC VRS MENSAH (B7/86/23) [2024] GHADC 296 (8 August 2024)

IN THE DISTRICT COURT TDC TEMA HELD ON THURSDAY THE 8TH DAY OF AUGUST 2024 BEFORE HER WORSHIP BENEDICTA ANTWI DISTRICT COURT MAGISTRATE CASE NO: B7/86/23 THE REPUBLIC VRS ENOCH MENSAH JUDGEMENT The accused herein was arraigned before this court on the 18th May 2023 on three counts of unlawful entry, attempt to commit crime namely stealing and causing unlawful damage as follows; THE CHARGE COUNT ONE STATEMENT OF ACCOUNT UNLAWFUL ENTRY CONTRARY TO SECTIONS 152 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE [Date] 1 ENOCH MENSAH: LABOURER AGE 21 YEARS. On the 15/05/2023 at about 2:15 pm at Castle Mataheko in the Tema District and within the Jurisdiction of this court, unlawfully entered the room of Peter Okai with intent to steal. COUNT TWO STATEMENT OF OFFENCE ATTEMPT TO COMMIT CRIME NAMELY STEALING CONTRARY TO SECTIONS 18(2) & 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE ENOCH MENSAH; LABOURER AGE 21YEARS. On 15/05/2023 at about 2:15 pm at Castle Gate Mataheko in the Tema District and within the jurisdiction of this court, you attempted to steal ¢35,470 worth of electric cables the property of Peter Okai COUNT THREE STATEMENT OF OFFENCE CAUSING UNLAWFUL DAMAGE CONTRARY TO SECTION 172 OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29) PARTICULARS OF OFFENCE ENOCH MENSAH; LABOURER AGE 21 YEARS. On 15/05/2023 at about 2:15pm at Castle Gate Mataheko in the Tema District and within the jurisdiction of this court, intentionally and unlawfully caused damage to the kitchen door and electric cables all valued GH¢ 36,070.00 the property of Peter Okai [Date] 2 The accused pleaded “not guilty” to all the three counts. By his plea, the accused is protected by the constitutional shield in article 19(2) (c ) which provides that a person charged with a criminal offence is presumed innocent until proven guilty. The burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt. CASE OF THE PROSECUTION Both complainant and accused person reside at Castle Gate, a suburb of Mateheko within the jurisdiction of the court. On the 15th May 2023 at about 2:15 pm, the accused with intent to steal, unlawfully entered the four- bedroom building occupied by Nandi Michael, the complainant and caused damage to the kitchen door and electricity cables. When the complainant and his wife detected an intruder in the building, he attempted to open the kitchen door with his key but discovered that the door was damaged. He then detected the presence of an intruder in the ceiling and immediately called the police. The police found the accused hiding under the staircase with a sack full of electric cables and two screw drivers. Some of the electric cables were damaged. The estimated cost of the damage was assessed at GH¢ 35,470.00. They obtained an investigation caution statement from the accused in which he confessed to committing the offence stated in the charge sheet. CASE FOR THE DEFENCE At the end of prosecution’s case, this court suo motu raised and determined whether or not the prosecution had successfully established a prima-facie case warranting the [Date] 3 accused to answer the charges. It was held in Mali v The State (1965) GLR 710, SC that if at the end of the case for the prosecution, the court requires further evidence to enable it to decide issues raised in the case of the prosecution, the irresistible inference would be that the prosecution had not made its case, and the accused ought to be acquitted. On the 29th May 2024, this court after careful consideration of the evidence adduced by the prosecution in support of the charge, called on the accused to open his defense. Accused was reminded of the charges and he testified as on oath as follows; “for count one, it is true that I entered the premises unlawfully. For count two, I have nothing to say about it and for count three I don’t have anything to say.” He was cross-examined by the prosecution and thereafter closed his case without calling any witnesses. As already stated, in a criminal trial, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. There is no burden on the accused person to fill in the gaps of the prosecution’s case. If the accused gives evidence filing in the gaps and omissions in the case of the prosecution, it does not change the legal position of the burden of proof. See Donkor v the State (1964) GLR 598, SC and R v Djormoh (1960) GLR 193. The accused person only needs to raise reasonable doubt as to his guilt if he is called upon to answer the charge. See the case of Gligah &Atiso v. The Republic (2010) SCGLR 870 @879 Such that even if the accused person informs the court that he has nothing to say, as in the instant case, his failure to give evidence will not by itself constitute an [Date] 4 admission of guilt, and the prosecution still assumes the burden of proving the guilt of the accused beyond reasonable doubt. BURDEN OF PROOF The fundamental rule in every criminal case is the presumption of innocence of the accused. The prosecution assumes the burden of proving the guilt of the accused beyond reasonable doubt. The failure to discharge this burden should lead to the acquittal of the accused. See Donkor v The state (1964) GLR 598, SC This principle has been interwoven in our criminal jurisprudence and codified in the Evidence Act of Ghana (1975) ACT 323 as follows: Section 10 - Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court (2) The burden of persuasion may require a party a. To raise a reasonable doubt concerning the existence or non-existence of a fact or b. To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt Section 11 - Burden of producing evidence defined 1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party 2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so [Date] 5 that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. 3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 13 - Proof of crime 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 2. Except as provided in section 15 (c), 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. Section 22 - Effect of certain presumptions in criminal actions; “ 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, and in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed facts” The prosecution will prove its case by leading cogent evidence on all the ingredients of the offences contained in the charge sheet. EVALUATION OF EVIDENCE What does the prosecution need to prove in the charges contained in the charge sheet. [Date] 6 Count one; a person who unlawfully enters a building with the intention of committing criminal offence in the building commits a second-degree felony. Section 153 of the Criminal Offences Act 1960 (Act 29) provides that: “a person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right, or by the consent of any other person able to give the consent for the purposes for which that enters.” The prosecution therefore must prove the following; • That the accused entered the building unlawfully, and without the consent of the person who has the lawful right to give that consent. • That the accused entered the room with the intention to commit a crime. In Kanjarga v. The State (1965) GLR 479, SC it was held on appeal that a servant who broke into his master’s room and made away with his master’s property was not guilty of the offence of unlawful entry as the servant had access to the room for the performance of his lawful duties. The prosecution failed to establish that he entered the room unlawfully with the intention of committing a crime. to constitute an entry, there must be evidence that the whole or some part of the accused person’s own body or an involuntary agent under the control of the accused entered the building. This means that a person who with intent to steal, pushes into a building a stick to be able to steal an object without physically entering the building will be guilty of unlawful entry. [Date] 7 In R V Davis (1823) Russ & Ry 499; 168 ER 917, the accused was found guilty when only his finger entered the house in his attempt to steal. The prosecution before this court must therefore prove that the accused entered the room of the complainant unlawfully with the intention to steal. To prove their case, the prosecution called two witnesses. PW1; Nandi Michael the complainant, testified by relying on her witness statement filed on the 12th June 2023. He testified that he works as a block factory operator and the caretaker of the building. On the 15th May 2023 at about 2:15pm he went to the house to work and detected that someone had tempered with the kitchen door, he pushed the door open and saw the accused person. The accused person had removed electrical cables and caused damage to the main switch. When the police arrived, they arrested the accused with the sack of stolen coiled electric cables and two screw drivers he used to damage the door lock. The value of the damage was estimated at thirty-six thousand, seventy pesewas. ( GH ¢36,070) The accused person declined to cross-examine the witness and the witness thereafter was discharged. This incriminating evidence against the accused was further bolstered by the evidence of the accused person himself when the stated under oath that; “for count one, it is true that I entered the premises unlawfully” PW2 also tendered exhibits “b, c d e” which showed the accused person with the eclectic cables and the screw driver he used to unlawfully gain access to the budling. [Date] 8 For count two, Section 18(2) of the Act provides that; A person who attempts to commit a criminal offense, commits a criminal offense, and except as otherwise provided in this Act, is liable to be convicted and punished as if the Criminal offense has been completed. It is the prosecution’s case that the accused unlawfully entered the building of the complainant in an attempt to steal electricity cables worth GH¢ 36,070.00 The offence of stealing is a second-degree felony and is defined in section 125 of the Act as follows: “a person steals who dishonestly appropriates a thing of which that person is not the owner” In Ampah v The Republic (1977)2 GLR 171, CA the court identified the elements of stealing as: • dishonesty • appropriation • property belonging to another person Prosecution called PW2, Detective Samuel K. Danu- Kumordzi, the investigator who testified by relying on his witness statement filed on the 12th June 2023. He tendered the following exhibits without any objection from accused. Exhibit “A” - investigation caution statement dated the 16th May 2023 Exhibit“B” series – Photographs of electric switch Exhibit “C” - photograph of the house [Date] 9 Exhibit “D” – photograph of accused person standing by the damaged electric swtich Exhibit “E”. – photograph of electric Cables, with the screw drivers and instruments used to remove them. Exhibit “F” – charge statement of accused person dated 17th May 2023. The accused again declined to cross-examine the witness and was discharged. The prosecution thereafter closed it’s case. Again the prosecution was able to establish by credible evidence all the ingredients of the offence under count two. Finally for count 3, Section 172(1) of the Criminal Offences Act 1960, Act 29 provides as follows; “A person who intentionally and unlawfully causes damages to any property a) To a value not exceeding one million cedis, or without a pecuniary value, commits a misdemeanor, b) To a value exceeding one million cedis commits a second-degree felony. The prosecution has the burden of establishing that the accused ▪ had the intention to damage the property and ▪ the damage caused was intentional. [Date] 10 The definition of damage here includes any interruption in the use of the subject matter or an interference with that thing by which the subject matter becomes permanently or temporarily useless. In Asante v The Republic (1972) 2 GLR 177 it was held that on the issue of damage, it was the value of the damage that was material, and not the value of the property that was damaged. It was also necessary for the prosecution to establish that the damage was intentionally and unlawfully caused. Evidence that the damage was caused accidentally or negligently will not suffice. It is the prosecution’s case that the accused intentionally caused damage to the door and electric cables in the house of the complainant. As already stated, the burden is on the prosecution to prove beyond reasonable doubt that the accused intended to damage the door and electric cables. The test for intention is always subjective. However the legal position is that; A man intends the natural and probable cause of this actions Section 11 (3) of the Act provides that “a person who does an act of such a kind or in a manner that, if reasonable caution and observation had been used, it would appear to that person (a) that the act would probably cause or contribute to cause an event or, (b) that there would be great risk of the act causing or contributing to cause an event, intends for the purposes of this section, to cause that event until it is shown that that person believed that the act would probably not cause or contribute to cause the event, or that there was not an intention to cause or contribute to it.” In AKORFUL v. THE STATE (1963) 2 GLR 371,SC it was held that; [Date] 11 “the law presumes that an accused person intended to cause death if it would have appeared to any reasonable person that if he did not use reasonable caution and observation that there would be great risk of his act causing or contributing to cause death. The presumption of intention is rebuttable only if the accused raises a reasonable doubt about his intention” On the ……. 2024, the accused opened his defense and was cross-examined by the prosecution as follows: “Q: Mr Enoch, does it mean all the charges against you are true? A: Yes. Q: Why did you on the 18th May 2023, deny all the charges. A: That time, I was speaking English so I did not understand. Q: That means you are guilty to all the charges. A: Yes. Prosecution: That will be all.” At this stage of the trial, the burden of persuasion has shifted to the accused person to lead evidence to rebut the presumption of guilt raised by the prosecution. As provided in sections 11(1) and 17 of the Evidence Act supra. The burden of proof on the accused at this stage is only that of a reasonable doubt. See COP v Antwi (1961) GLR 408, SC [Date] 12 In the words of Lord Sankey the chancellor in Woolmington v DPP (1935) AC 462; “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” The evidence adduced by PW2 supported the case of the prosecution that the accused was strongly linked to the charge. Exhibit “A” which is a statement given by the accused to the police turned into a confession statement. In exhibit “A” the accused confessed to going into the complaint’s house to steal cables. He stated that he was going to sell the stolen cables. He further confessed that he forced the door open with a screw driver. This confession statement was certified by an independent witness; one Komasi Godfred of house number 072 Newland who stated that the statement was voluntarily given by the accused and same were read over to him before he appended his thumbprint in accordance with section 120 of the Evidence Act 1975, (NRCD 323) the accused relied on his confession statement in exhibit “F” [Date] 13 As a general rule, a confession statement by an accused person made out of court is hearsay and generally inadmissible against him unless the conditions under Section 120(1) of the Evidence Act supra have been complied with. The supreme court in the case of Frimpong alias Iboman v The Republic (2011) set out these conditions as follows: “1. If the declarant of the statement made the statement while arrested, restricted or is detained by the State then the statement is admissible only if: 1. it was made in the presence of an independent witness, who; ▪ understands the language in which the declarant spoke i ▪ can also read and understand the language in which the statement is made. 2. Whenever the statement is in written form, the independent witness shall certify in writing on the statement as follows: “that the statement was voluntarily made in his presence and that the contents were fully understood by the accused.” 3. Where the declarant is illiterate or blind, there are further provisions to protect the declarant by ensuring that the state does not take advantage of his disability by ensuring that ▪ the independent witness shall carefully read over and explain to the declarant the exact contents of the statement before it is marked or signed. [Date] 14 4. the independent witness shall certify on the statement in writing that he had so read over and explained the contents of the statement to the declarant and that he appeared perfectly to understand it before making his mark or signature. Exhibit “A” was certified by an independent witness and same was admitted into evidence without any objection from the accused person. PW2 further tendered photographs of the damaged electric cables and screw drivers found on the accused person on the scene of the crime. The prosecution was able to adduce credible evidence linking the accused to the offences stated in the charge sheet. See the case of Dogbe v The Republic (1975) 1 GLR 118. As already stated, the accused person only needs to raise reasonable doubt as to his guilt as stated in Commissioner of Police v Isaac Antwi (supra) When the accused person’s evidence-in-chief was subjected to cross-examination he admitted to committing offences stated in the charge sheet. I therefore find that the defense of the accused person could not raise any doubt as to the case of the prosecution. In the case of Miller v Minister of pension (1947) 2 ALL ER 372 it was held per Denning J (as he then was) that; “it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” [Date] 15 At page 373-374 he continued that: “if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; “of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt…” After evaluating the totality of the evidence led before the court, I make the following findings. That the evidence points to only one conclusion. That the accused person unlawfully entered the building occupied by the complainant in an attempt to steal the electric cables. The accused person himself confessed to committing these offences. For the forgoing reasons, I hereby pronounce the accused guilty on the following counts; Count one I find the accused Enoch Mensah guilty on the charge of unlawful entry contrary to section 152 of the Criminal Offences Act, 1960 (Act 29) and accordingly convict him of same. Count Two I find the accused Enoch Mensah guilty on the charge of attempt to commit crime namely stealing and accordingly convict him of same. Count three I find the accused Enoch Mensah guilty on the charge of unlawful entry and accordingly convict him of same. MITIGATION [Date] 16 Accused person: I kneel down to beg for forgiveness. This is my first time and I agree that I am guilty. I pray for forgiveness. Q: Prosecution, Is the accused known A: No. He is a first time offender. Q: Were the items retrieved and in good condition? A: Yes but not in good condition. It cannot be reused as they are all damged. SENTENCING I have considered the plea in mitigation that the accused is a first time offender and the fact that the stolen electrical cables were damaged beyond use when discovered in his possession. For the above reasons, I sentence the accused as follows; Count one Accused shall serve a prison term of eighteen (18) months imprisonment IHL Count 2 The accused person shall serve a prison term of twenty (20) months imprisonment in addition to a fine of two hundred (200) penalty units and in default four (4) months imprisonment. Count 3 Accused shall serve a prison term of eighteen (18) months imprisonment IHL. Sentences to run concurrently. RESTITUTION Let the retrieved but damaged electric cables be returned to the complainant. [Date] 17 [SGD] DISTRICT MAGISTRATE BENEDICTA ANTWI PARTIES: Accused person … Present Prosecution …. C/ Inspr. Hilda A. Sarkodee [Date] 18