Republic Vrs Enock and Another [2023] GHACC 295 (20 January 2023)

1 IN THE CIRCUIT COURT HELD AT MPRAESO ON FRIDAY 20TH DAY OF JANUARY 2023 BEFORE HIS HONOUR STEPHEN KUMI ESQ CIRCUIT JUDGE. COURT CASE NO. B1/4/2022.

THE REPUBLIC V KWABENA ENOCH AND ANO. JUDGMENT: The Accused persons herein- Kwabena Enoch and Isaac Kwame Owusu- have been charged with and put before this court on some four ( 4 ) separate counts. Specifically they face one count each of conspiracy to commit crime; namely stealing contrary to sections 23 ( 1 ) and 124 ( 1 ); causing unlawful damage contrary to section 172; unlawful entry contrary to section 152; and stealing contrary to section 124 ( 1 ); all under the Criminal and Other Offence Act, 1960, Act 29, as amended. The brief material facts as supplied by the prosecution are essentially that at about 2:30am on 3rd August, 2021, the Complainant- while asleep in his room- was awoken by some noise at the house only to see the A1 at the house. The Complainant questioned the A1 as to his presence at the house; to which the A1 replied he had come to the house in response to some shouts of “thief, thief” and had thus come to assist in arresting the said criminals. The Complainant checked the house and found two of the doors broken into, which caused him to arrest the A1 to interrogate him and subsequently sent him to the police station, at Bepong. The A1 was re-arrested by the police and interrogated, during which he mentioned the name of the A2 as his accomplice. That also led to the arrest of the A2, who was similarly cautioned to that effect. Police investigations had

revealed that the two accused persons had gone into the house and caused damage to the doors in order to steal some stated items listed by the occupants at the house. The two accused persons, upon their arraignment before this court, pleaded not guilty to all the above- mentioned counts, necessitating the court holding a trial to receive evidence to determine their guilt or otherwise beyond reasonable doubt. CASE OF THE PROSECUTION: The prosecution called some three ( 3 ) witnesses to prove their case against the accused persons. The witnesses testified per their filed witness statements. The first prosecution witness was the Complainant in the case, Alex Ofosu. He testified that at about 2:30am on 3rd August, 2021, while he was asleep at his house at Bronoso, a suburb of Bepong, he overheard and was awoken by some noises at the compound. 2 He went to search inside the house but saw no movement but decided to walk around the house where he came upon the A1, who was standing by a wall at the house. He had observed that the A1 was holding an iron bar, a torchlight and had his slippers on the wall. He confronted the A1 about his presence at the house, to which he replied that he had come in response to shouts of “thief, thief” at the area. He managed to arrest the A1, took him into the compound, where he found that one of the rooms had been broken into. He was later assisted by

some neighbours who came to his aid- following a struggle between him and the A1- and who assisted him to take the A1 to the police. PW1 added that on their way to the police station, the A1 admitted breaking into the room at the house but failed to explain his mission. According to PW1, he subsequently returned to the house and found a second room at the house had been broken into. In the ensuing cross-examination, while the A2 chose not to cross-examine the PW1, the A1 asked some couple of questions to essentially deny the charges. The court next heard one Elizabeth Kwakyewaa as the second witness. She is mother to the PW1. She was in Accra on the date and time of the incident and thus did not personally witness the alleged crimes. However, her testimony was that following the incident, her son- PW1- called her on phone and informed her about it. Subsequently she came down to Bepong and upon entering her room, she detected that her room had been broken into by unknown persons who had made away with the following items: Two pieces of men’s cloth, two pieces of women’s cloth, two pieces of men’s kente cloth; as well as cash the amount of GHC 500.00. It is instructive to state that the two accused persons chose not to cross-examine the PW2 following her testimony. The last but not the least prosecution witness ( PW3 ) was number 36013 Detective Sgt. Samuel Frempong of the Bepong

police station. His testimony was about how he took statements from the complainant; and how he visited the scene of the crime, where he found that the accused persons had broken into two rooms at the house of the Complainant. He also said that he took investigation cautioned statement from the A1, who initially denied the charges but subsequently admitted same and mentioned and identified the A2 as his accomplice; which led to the arrest of the A2 and his being cautioned. According to the police investigator, based on the above investigations and information, the two accused persons were charged with the above offences and put before this court. It must be stated that the Accused did not raise any objections to the tendering or admissibility of their separate cautioned and charge statements after they had been read and interpreted to them in the Twi language during the evidence of the PW3. Meanwhile, the PW3 also tendered into evidence the following documents in support of the case of the prosecution: They were the cautioned statement, further cautioned statement and charge statement of the A1 , marked as Exhibits A, A1 and A2 respectively; while the cautioned and charge statements of the A1 were Exhibits B and B1; and lastly a picture of the broken doors, marked as Exhibit C. CASE OF THE ACCUSED PERSON: 3 The court, at the close of the case of the prosecution, was satisfied

and convinced that the evidence as adduced by the prosecution, had succeeded by a long shot to establish a prima facie case against both the A1 and A2 on all the counts they face. The court therefore called upon and asked them to open their respective defences on all the counts in order to avoid a ruling of the court against them on the issues in dispute. This position is statutorily provided for under section 174 of the Criminal Procedure Act, 1960, Act 30, as follows: “ “At the close of the evidence in support of the charge, if it appears to the court that a case is made against the accused sufficiently to require him to make a defence, the court shall call upon him to enter into and shall remind him of the charge and inform he that, if he so desires, he may give evidence himself, or make a statement…” The A1 in his sworn defence testified to admit to the offences and also mentioned the A2 as his friend and his accomplice: According to him, on the night in question, at about 1:40am, he was on his was to his sister’s house and passed by the house of the A2. He met the A2, who discussed with him that there was money in some nearby house which they should go and take, to which he agreed. According to him, the A2 took him to the house and showed him the specific rooms that contained the money. A1 added that the A2 stood at some distance after directing him to a room where he

would find the money hidden under a mattress on the floor. He went to raise the mattress and found an amount of GHC 700.00, which he went to give to the A2. According to him, it was while he was going to the second room to take other items that he was arrested. He stated that the A2 initially ran away but later returned and pretended not to know him; albeit that the A2 had advised the mob not to beat him up but rather take him to the police station. It is his further evidence that the A2 failed to come to the police station to defend or assist him contrary to their agreement before the crime and it was why he finally mentioned the name of the A2 as his accomplice. He added that even though the house from which they took the money from was not that of the A2, he also did not know the owner of the house. After the evidence and following the cross- examination of the A1, the A2 also cross-examined the A1 to deny knowing him and being his accomplice. The A2- when he had his turn- testified to both deny knowing the A1 and his involvement with the offences. According to him, around 2 to 3:00 am of that night, he heard some noises and got up and followed the direction of the sound. He met the PW1 struggling with the A1. He advised the PW1 to take the A1 to the police station rather than to take the law into his hands, which was accepted by the PW1. That when they got to the police

station, the A1 refused to confess to the crime contrary to his earlier promise to so. According to A2, it was some four days later that the A1 mentioned his name as his accomplice, leading to his arrest by the police. It is his defence that he denied his involvement in the crimes before the police and that even though the police went to his place to search there, nothing incriminating was found. According to him, the charges against him are merely fabricated. It is important to state that even though the A2 informed the court he had some witnesses to call, and the court offered him multiple opportunities in that regard- spanning several months- the A2 could not get them to court and closed his defence. 4 EVALUATION OF EVIDENCE AND APPLICATION OF THE LAW: ISSUE FOR DETERMINATION: On the whole of the evidence before the court at the end of trial, the sole question for determination is whether or not the prosecution succeeded to establish or prove the guilt of the accused persons beyond reasonable doubt. ADDRESSING THE ISSUE: As has been said above, the accused persons came to the court and pleaded not guilty on the charges. The effect of their pleas was as follows in law, especially in a criminal case of this nature: “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. See section 15 of the

Evidence Act, 1975, NRCD 323. It may also be important to mention section 11 ( 2 ) of the Evidence Act, NRCD 323, which provides as follows:- “11(2) in any civil or 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 reasonable doubt.” Meanwhile, in terms of judicial pronouncements on this burden and standard of proof in criminal trials, in the case of Donkor v The State [1964] GLR 598, SC, it was held inter alia by the Supreme Court of Ghana that in criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused is generally on the prosecution, which burden must be discharged beyond reasonable doubt. This burden of proof that the prosecution must satisfy in the present proceedings was famously captured in the following ipsissima verba of Viscount Sankey, LC in the case of Woolmington v. DPP (1935) AC 462. The learned Lord Chancellor delivered of himself thus; “No matter what the charge or what 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….”. In order to satisfy the Constitutional, statutory and

Common Law threshold of proof beyond reasonable doubt, the law is that “the prosecution has a duty to prove the essential ingredients of the offence with which the appellant (accused) and the others have been charged…” See the case of Frempong alias Iboman v The Republic [2012] 1 SCGLR 297, SC per Dotse JSC. So, the natural question to be asked at this juncture is whether the prosecution succeeded to prove the essential ingredients of the offences of conspiracy, causing unlawful damage, unlawful entry and stealing with which the two accused persons have been charged. It is instructive to state that before those issues could be answered by this court, it is necessary that this court sets out in some reasonable detail the essential ingredients of the offences in question. 5 When the essential ingredients are set out and known, then I will relate them to the facts and evidence before the court in this case, and determine to what extent the prosecution proved their case against the accused persons herein. I will start with the offence of conspiracy. It is provided for under section 23 (1) of Act 29/1960 (supra) as amended by the Statute Law Review Commissioner per the Revised Edition Act, 1998, Act 562, as follows: “Where two or more persons agree to act together with a common purpose for or in abetting a criminal offence, whether with or without a previous concert or deliberation,

each of them commits a conspiracy to commit or abet the criminal offence”. See also the case of Republic v Augustina Abu and Others, (Unreported) Criminal Case No. ACC/15/2013; per Marful-Sau J.A, (as he then was). This definition is admittedly different from the old definition of conspiracy which was defined in section 23(1) of the old Criminal Code 1960 (Act 29) as follows: “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation each of them is guilty of conspiracy to commit or abet that crime as the case might be.” In the case of Francis Yirenkyi v The Republic, (Unreported) Criminal Appeal No. J3/7/2015, Dotse JSC held inter alia that the new formulation no doubt reinforces the view that conspiracy is an intentional conduct; observing that under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement. So that the mere acting together of two or more persons in a criminal enterprise is not enough to sustain conviction. The count 2 is causing unlawful damage. The offence of causing unlawful damage is provided for under section 172 (1 ) of the Act 29/1960 ( supra ). That section or provision essentially requires that for a person or an accused to be guilty for that offence, the evidence should show that an accused

caused the damage intentionally and unlawfully. See the case of Yeboah and Another v The Republic (1999-2000 ) 1 GLR 149, CA, per Gbadegbe J (as he then was ). Section 172(1) of Act 29 which creates the offence of unlawful damage provides in subsection (1) (a) that where the value of the damage does not exceed “GHC100 or to no pecuniary value” the offender shall be guilty of a misdemeanour; but where the value exceeds GHC100, the person shall, according to subsection (1) (b), be guilty of a second degree felony. In the instant case, the Accused herein was charged under section 172 without making a distinction, even though the facts and the charge state the value of the door lock to be GHC 60.00. In addition, it is realised that the prosecution, especially through the PW1 and PW2, also failed to lead any evidence as to the value of the two door locks allegedly damaged. However, they testified that it was the A1 who caused damage to the door by forcefully breaking into the rooms. Despite the above deficiencies in the evidence of the prosecution, it is my considered opinion that they cannot be fatal to the case of the prosecution on the charge of causing unlawful damage. This is because section 172(1) of Act 29 creates only one offence of unlawful damage, and only distinguishes between a minor type, i.e. 172(1) (a) and a serious/major type, i.e. 172(1) (b). See the case of Homenya

v The Republic ( 1992 ) 2 GLR 305 ( HC ). 6 In the Homenya v Republic case ( supra ), Acquah J ( as he then was ), held and delivered himself as follows to state and show that even if the prosecution in this case failed to adduce evidence as to the specific value of the damaged door lock, same cannot be fatal and that an accused can appropriately and lawfully be convicted and found guilty on the misdemeanour or minor type of unlawful damage even when the true value of the damage was not proved to the satisfaction of the court: “Furthermore, in respect of the minor type, it is still an offence even if the damaged property has no pecuniary value. Thus where there is no evidence on the value of the damaged property, the appellant could lawfully be convicted under section 172 (1)(a) by virtue of section 154(2) of the Criminal Procedure Code, 1960 (Act 30). In Asante v The Republic ( 1972 ) 2 GLR 177, Anterkyi J., faced with a similar problem, reasoned in the manner I have stated above. He said at 197 of the report: “In the present case there was no evidence with regard to the value of the damage to the trousers. But section 172(1) (a), as to the value of the damage states, ‘to a value not exceeding £100 or to no pecuniary value.’ And it can therefore be inferred from the fact of the value of the damage to the trousers not having been established in evidence that the damage thereto

was of no pecuniary value, and, therefore, such value suffices to secure conviction.” Thus if the conviction of the appellant herein is valid, I can by virtue of section 154 (2) of Act 30 acquit him under section 172(1) (b) and convict and sentence him under section 172(1) (a) of Act 29”. The third charge or count is unlawful entry; which is provided for under section 152 of Act 29/1960 ( supra ) as follows; “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony”. However, the immediately succeeding section 153 explains the offence of unlawful entry thus; “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 consent for the purposes for which that person enters”. From the above provisions, it appears that for the prosecution to succeed at obtaining conviction for the offence of unlawful entry, the prosecution must prove or establish beyond reasonable doubt that a person charged for the offence entered the building or premises not only in the absence of exercise of any lawful right or by the consent of any person able to give consent, but it must also be proved that the person charged entered the room or building with the intention to commit a criminal offence. So that in the case of

Kanjarga v The State ( 1965 ) GLR 479, SC, it happened that a servant who broke into his master’s room and made away with the master’s property, was convicted of stealing and unlawful entry. His appeal against the conviction for unlawful entry was allowed on the grounds that the servant had access to the room in the performance of his servant duties. It was held accordingly that the prosecution had failed to establish that the appellant entered the room with the intention of committing a crime. Meanwhile, section 124 (1) of Act 29/1960 creates the offence of stealing in terms of the count 4. It states that “a person who steals commits a second degree felony”. 7 However, section 125 of Act 29/1960, defines the offence of stealing under our statute: Stealing is defined under that section as; “A person steals who dishonestly appropriates a thing of which that person is not the owner”. In the case of Brobbey and Others v The Republic [1982-83] GLR 608, Twumasi J ( as he then was ) stated the essential elements of stealing under Ghana laws were stated to be as follows: (i) The person charged must have appropriated the thing allegedly stolen. (ii) The appropriation must be dishonest (iii) The person charged must not be the owner of the thing allegedly stolen. So, the main two (2) conditions that must exist or be established in a case of stealing is dishonesty and appropriation; or

dishonest appropriation. In the case of Anang v The Republic [1984-86] 1 GLR 458, dishonesty in the offence of stealing was stated to connote “moral obloquy ……. such a nature as to cast a slur on the character revealing him as a person lacking in integrity or as a plainly dishonest person….” Meanwhile, appropriation is defined under section 12 (1) of Act 29/1960 (supra) to mean “dealing with the thing by the trustee, with the intent of depriving a beneficiary of the benefit of the right or interest in the thing, or in its value or proceeds, or a part of that thing”. Similarly, under section 122 (2) of the same Act 29/1960 (supra), appropriation of a thing in any other case means “any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership, of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing….” On the strength of the little discussion about the nature of the offences in this judgment, and their essential ingredients that the prosecution ought to prove in such cases , I would now go ahead and determine the issues in this case as to whether or not the case of the prosecution succeeded to prove beyond reasonable doubt that the accused persons herein committed the alleged offences. I will thus resolve the identified four main

counts jointly and together as one as they appear to flow from each other. I wish to begin by saying that oftentimes, people charged with a crime are caught “red-handed”; which is popularly or colloquially referred to as “feeli-feeli" ( in flagrante delicto). Therefore in proving the guilt of an accused, the evidence that the prosecution would rely on in such a scenario is the direct evidence of the witnesses who have sworn to have used their eyes seeing an accused commit the stated offence. At the other end of the spectrum however, other times, allegations of criminal wrongdoings may be supported and proved by what authorities may refer to as circumstantial evidence. Yet still, the guilt of an accused person may be proved by the voluntary confession or admission of the offence by the accused. From the evidence adduced by the prosecution and indeed based on the whole of the evidence before the court- as captured above- it can be safely be said and accepted that two of the above-mentioned species of evidence were adduced at the trial. The first was the direct evidence of the PW1 who caught the A1 at the premises at that time of the night. 8 The second specie of evidence was the voluntary confession of the A1 to the crimes. Specifically, the A1 had both in his unsworn statement ( cautioned statement ) and his sworn evidence in the witness box at the trial admitted or even

confessed to the offences. The A1 had also in those separate occasions, mentioned and identified the A2 as his accomplice; albeit the A2 vehemently denied his involvement and knowledge of the A1 and the stated crimes. In the considered opinion of the court, some two different but related legal repercussions or consequences flowed from the above pieces of evidence, especially by the evidence of the A1. The first is that by the confession statement of the A1- whether sworn or unsworn- the A1 accepted or confirmed his guilt and by extension relieved the prosecution of its duty to prove his guilt beyond reasonable doubt. This conclusion is supported by Article 19 (2) (c) of the 1992 Constitution as follows: “(2) A person charged with criminal offence shall (c ) be presumed innocent until he is proved or has pleaded guilty”. Additionally, in the case of Agogrobisah v The Republic ( 1995-96 ) GLR 557, Acquah JA ( as he then was ), held inter alia as follows to illustrate the power of this court convicting and finding the A1 guilty on the counts based on his own confession or admission; “I concede that a free and voluntary confession of guilt by an Accused, whether in court or outside the courtroom, if it is direct and positive, and is duly made and satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence…”. See also the case of Ayobi v The

Republic ( 1992-93 ) 2 GBR 769 at 777, CA, per Amuah JA ( as he then was). On the basis on the foregoing, the court accordingly finds and holds that the prosecution succeeded to prove beyond reasonable doubt the guilt of the A1, Kwabena Enoch, on all the four counts against him. Meanwhile, the second consequence is in respect to the A2. From the evidence, his name was mentioned as an accomplice by the A1 in the latter’s unsworn cautioned statement and sworn evidence in court. The law is that while the unsworn evidence was evidence that only binds the A1 and inadmissible against the A2, however the sworn evidence of the A1 in the witness box is admissible against the A2. In the case of Lawson v. Republic (1977) 1 GLR 63 holding (3) it was held as follows: “… if two persons were jointly tried together, unsworn statements made by each were generally only evidence against him who made them. And such an unsworn statement would be inadmissible evidence where (as in the instant case) it was made in the absence of the Appellant who denied it at the trial, and the co-accused repudiated it when cross-examined by the Appellant. Even if the unsworn statement had been made in the presence of the appellant, its admissibility would depend on what part of it he expressly or impliedly accepted. Dicta of Lord Atkinson in R v. Christie (1914) AC 545 at pp.554 and 555 - 556 PC of Lord Parker

C.J.” However if such a statement was repeated on oath at the trial against an accused and the co-accused is cross examined on it would be admissible evidence against a co-accused. In the case of Francis Yirenkyi v. The Republic, CRA J3/7/2015 delivered on 17th February 2016 (unreported), SC, Akamba JSC ( as he then was ) had occasion to elaborate on the evidential value of confessions made against other accused persons. This is what he stated: 9 “It is trite criminal law that a confession made by an accused person which is admitted in evidence is evidence against him. It is however not evidence against any other person implicated in it (See Rhodes (1954) 44 CR. App. R. 23) unless it is made in the presence of that person and he acknowledges the incriminating parts so as to make them, in effect, his own. This position is in contrast with the evidence on oath of a co-accused in a joint trial, which is evidence for all purposes, including the purpose of being evidence against the accused. (See Rudd 1948 32 Cr. App. R. 138 In applying the above principle to the instant case, the court found the evidence of the A1 on oath as credible and admissible evidence against the A2. The court finds the explanation of the A2 both in his unsworn statement and sworn evidence, as afterthoughts and total fabrications. These are my reasons. From the facts and evidence, the court finds that both

the A1 and A2 stay at Bepong and in the same part of town and they know themselves. The evidence shows that the A2 appeared at the crime scene shortly after the A1 was arrested by the PW1 and some others. The A1 at the time of his arrest and in his sworn evidence in court has consistently identified the A2 as his accomplice. He clearly identified the A2 and even mentioned his nickname at Bepong. In terms of section 80 ( 2 ) of the Evidence Act ( supra ), the A1 really knew what he said about the A2. And it is asked how come of all the persons who were around, it was the A2 that the A1 mentioned as his accomplice some few days later. In the case of Kwaku Frempong v The Republic; Criminal Appeal No. J3/5/2010; delivered on 18th January, 2012, the Supreme Court of Ghana per Dotse JSC, as part of the reasons in dismissing the appeal brought by the appellant on robbery charge, asked a rhetorical question, which I find applies to the instant case against the A2 herein mutatis mutandis, thus; “For instance how come that, out of the many people in Accra, it was only the appellant and his two other friends that the 3rd accused Daniel Amewu pointed out as being part of the robbery gang. This event is significant in many respects. This is because not only was the appellant mentioned, but he led the Police to retrieve the car that was stolen and used to carry the other stolen

items away” The law on the foregoing is that; “where the identity of an accused person is in issue, there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged”. See the case of Adu Boahene v The Republic ( 1972 ) 1 GLR. Accordingly, it is the judgment of this court that the prosecution succeeded to prove beyond reasonable doubt the guilt of the A2 , Isaac Kwame Owusu on all the four ( 4 ) counts against him. He is therefore found guilty on the said counts together with the A1. SENTENCING: In determining the appropriate sentence for the convicts herein, I have had to consider the authority of Kwashie v The Republic ( 1971 ) 1 GLR 488, which provides for the factors to be considered by a court before imposing the length of sentence on a convict. 10 In that regard, I have taken into consideration mitigating factors such as the youthful ages of the convicts and their respective plea for leniency from the dock. The court has also taken into consideration the about 6 to 7 months that they have spent in lawful police custody after the court revoked their bails following the submission of no case ruling. See Article 14 ( 6 ) of the 1992 Constitution Despite that, the court also notes the above aggravating factors that go against the convict; in terms of how they broke into and stole the items from the

rooms of the Complainant. It would only take real criminals to have planned and executed that, especially at that time of the night. They thus deserve some decent custodial sentence to both reform them and to serve as a deterrent; both to them and other criminal elements within the jurisdiction. It is realized that such break-ins- while residents are out in the day time and while asleep at night- are becoming a commonplace in this area and there is a need to curb or nip them in the bud. To that end, each of the convicts are hereby sentenced to serve nine ( 9 ) months I. H. L on the count 1; to serve six ( 6 ) months I. H. L on the count 2; to serve nine ( 9 ) months I. H. L on the count 3; and to serve twenty ( 20 ) months I. H. L on the count 4. The sentences are to run concurrently for the avoidance of doubt. The convicts are informed of his statutory right of appeal if they so desire. SGD: H/H STEPHEN KUMI (CIRCUIT JUDGE).. s.k..