TAWIAH VRS REPUBLIC (H2/10/2021) [2021] GHACA 30 (22 April 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA AD. 2021 CORAM: JUSTICE SENYO DZAMEFE J. A. (PRESIDING) JUSTICE G. SIMON SUURBAAREH J. A. JUSTICE JENNIFER A. DODOO (MRS) J. A. CRIMINAL APPEAL No: H2/10/2021 22nd April, 2021 HARRISON TAWIAH VRS THE REPUBLIC DODOO, JA (MRS) APPELLANT RESPONDENT JUDGMENT The Appellant and 3 others were arraigned before the Circuit court on charges of charges of Conspiracy to Commit Crime and Robbery under Sections 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29). Upon conviction on 9th September, 2013, they were each sentenced to 20 years IHL on the conspiracy charge and 30 years on the robbery charge to run concurrently. An appeal was lodged on Appellant’s behalf at the High Court which proceeded to reduce the sentences to 5 years on the conspiracy charge and 10 years on the robbery charge. A further appeal has been brought to this court against both the conviction and sentence. The grounds of appeal argued on the Appellant’s behalf were as follows: i. The conviction was wrong and unwarranted. ii. The evidence at the trial did not support the conviction 1 | P a g e iii. There was miscarriage of justice iv. The sentence is too harsh, It was the Appellant’s submission that the prosecution failed to lead evidence and to prove beyond reasonable doubt that he and the other convicts actually conspired to commit robbery. He contended that the evidence of the star witness was full of inconsistencies as he had told the court that he had withdrawn money from the bank and had been robbed on 15th April, 2012. However, the evidence showed that the money had been withdrawn on 14th April, 2012. Furthermore, the Complainant had only identified one person, who happened to be the 3rd Accused person, yet the judge had stated in his judgment that the Complainant had positively identified all of them and passed a harsh sentence on them. The Appellant submitted that at the High Court which heard the appeal in the case of Agbeko Manah and Harrison Tawiah vrs. The Republic, the State Attorney had stated the following facts: (a) The Judgment of the trial court cannot be defended because the conviction cannot be supported having regard to the evidence on record. (b) The evidence produced by the prosecution is insufficient to merit the inference of guilt on the part of the Appellants. (c) There exist material inconsistencies on the part of the evidence adduced by the witnesses for the prosecution. 2 | P a g e (d) The trial judge relied on purported inconsistencies on the part of the defence. However, the inconsistencies were not material vis-à-vis the elements of the offence under consideration. The Appellant argued that his conviction was a travesty of justice and prayed for an acquittal. He stated further that the sentence was harsh. It was his contention that as a 32-year- old father of two children and a first-time offender, the lower court ought to have taken these factors into consideration. The Appellant attached to his application and submissions, exhibits 1 and 2 which were the judgments acquitting and discharging the persons who were charged along with him. Also attached to the said submissions was Exhibit 3, the High Court Judgment of 13th August, 2015 which had reduced his original sentence of 20 years and 30 years on each count to 5 years and 10 years respectively. Aside of these exhibits, the record of proceedings and the exhibits tendered at the original trial were not attached as they were missing. The Republic in its submissions argued that the prosecution had been able to prove the Appellant’s guilt beyond reasonable doubt. They argued that the High Court Judgment of 13th August, 2015 had stated that the Appellant in Exhibit D had admitted taking first, second and third accused persons in his car to embark on several robbery operations where they had arrested and robbed people under the pretext of taking them to the police stations. On the ground that the sentence was too harsh, the Republic argued that the court would only interfere with a sentence if it was manifestly excessive, having regard to all the circumstances of the case and referred the court to the case of Apaloo v. The 3 | P a g e Republic (1975) GLR 156. They also argued that the offence of robbery was one for which not only a punitive but a deterrent sentence must be imposed. They cited in support the cases of Kwashie v. The Republic (1971) GLR 488 and Robertson v. The Republic (2015) 80 GMJ 33. This Court notes that the records of the various proceedings in the two lower courts were missing. There is an affidavit of the Registrar on the unavailability of the docket. He has deposed to the fact that all efforts to locate the docket and the proceedings have not been successful. His affidavit reads as follows: 1. That I am the deponent herein 2. That a memo dated 15th October, 2019 was sent to the Director of Archives to furnish the Registry with the above-named docket (Certified True Copy is attached and marked as Exhibit “FKB”. 3. That a Docket Request Form was also sent to the Director of Archives (Certified True Copy is attached) and marked as Exhibit “FKB1” to make the docket available to us, all to no avail. 4. That all our efforts to locate the above-named docket and the proceedings have not been successful. 5. WHEREFORE I swear to this affidavit believing the facts contained herein to be true. In the case of John Bonuah @Eric Blay v The Republic Criminal Appeal No. J3/1/2015, 9th July, 2015, (unreported) the Court speaking through Wood CJ had this to say: 4 | P a g e The first fundamental principle is that an appellant is not entitled to an acquittal on the mere basis of the loss or destruction of the judicial records, notably, trial proceedings. An allegation that court proceedings are lost or destroyed require investigations into three important areas, the veracity of the claim, the quantum or magnitude of the lost, missing or destroyed record and its relevance to the determination of the appeal in question. In the case of Kwame Nkrumah @ Taste v. The Republic Criminal Appeal No. J3/16/2016, 26th July, 2017, (unreported) the Court stated: We will conveniently summarize the relevant factors that must inform an appellate court seised with an incomplete trial proceedings or records, on account of all or a significant segment of the trial records being lost or completely destroyed: 1. An Appellant shall not be at fault, responsible or blamable for the loss or destruction 2. An appellant is not automatically entitled to an acquittal upon the mere proof of lost or destroyed trial proceedings 3. The quantum or magnitude of the missing record- lost or destroyed- and its relevance to the appeal in question shall be determined by the court 4. Where it is proven that the missing record is material to the determination of the appeal it is for the court to determine the viability of a reconstruction of the lost record. 5 | P a g e 5. Where reconstruction is impossible then a retrial may be ordered depending on the circumstances such as the nature of the offence and the length of time spent in custody In the instant case, there is no evidence that the Appellant was the cause of the loss of the previous trial proceedings. On the principles enunciated above, the Appellant is not entitled to an automatic acquittal. From the records currently before this court. He was tried and convicted by the Circuit Court on 9th September, 2013. His appeal lodged in the High Court against conviction was dismissed on 13th August, 2015 but the appeal against sentence was upheld and his sentence of 20 years IHL for Conspiracy to Commit Crime under section 23(1) and 30 years IHL for Robbery was reduced to 5 years and 10 years respectively. Two of the others accused alongside the Appellant were discharged for want of evidence by 2 other High Courts differently constituted. In the Appellant’s case, the appellate High Court Judge dismissed the appeal against the conviction at page 5 of his judgment by quoting the trial judge in the following words: “Regarding the appellant, the learned judge stated: A4 also in Exhibit D admitted having taken A1, A2 and A3 in his car to embark on several operations where they arrested people and robbed them under the pretext of sending them to the police station.” The learned High Court Judge then continued by saying: “The Appellant then was convicted because of the contradictions between his statement to the police and his evidence in box and on his own admission in the witness box. In my view, the learned Judge did correctly apply the law to the 6 | P a g e facts and arrived at the right conclusion. I see no good reason to disturb the conviction. The appeal on that leg will be dismissed.” On the issue of sentencing, the High Court was of the view that the sentences imposed should have been reflective of the role each accused person had played in the commission of the offence. In that regard the Court delivered itself thus: “Appellant can be said to have played only a passive role, driving the others around as opposed to those who actually took the victim’s motor, dragged him into the car and stole the money from a compartment in the motorcycle. The Appellant should then have received a lesser sentence. Secondly, there were no aggravating circumstances in the commission of the offence. No force was employed. The second accused was the only one wielding a weapon, an AK 47 rifle issued to him for the performance of his duty. …. The gun was not used in the facilitation of the offence. The offence committed then was more an act of simple stealing than robbery. In the circumstance of the case the sentence imposed was harsh and excessive. It can be gleaned from the evidence before this court that the 1st appellate court dismissed the appeal against conviction having regards to the record before it. The 1st appellate court had recourse to the evidence and to the exhibit D in which the Appellant is said to have admitted to “having taken A1, A2 and A3 in his car to embark on several operations where they arrested people and robbed them under the pretext of sending them to the police station.” In Achoro v. Akanfella (1996-1997) SCGLR 209, the court held that in an appeal against concurrent findings, the 2nd Appellate Court ought to be slow in reversing the findings 7 | P a g e unless it could be shown that they are not supported by the evidence on record. See also Mohammed Kamil v. The Republic (2011) 1 SCGLR 300 where the court stated … in an appeal against findings of fact to a 2nd appellate court … where the lower appellate court had concurred in the findings of the trial court… this court would not interfere with the concurrent findings of the lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice was apparent in the way in which the lower tribunals had dealt with the facts. The High Court referred to the evidence on record (i.e., Exhibit D) in endorsing the conviction. This court will not interfere with the findings of the High Court. Having dismissed the appeal against conviction, the court is enjoined to find out whether or not the sentence imposed was excessive. In Bosso v. The Republic (2009) SCGLR 430 the Court speaking through Wood CJ said: The rule that Appeals are by way of rehearing is not limited to substantive appeals only but the sentences passed, provided an appeal lies therefrom … Section 149 (1) of the Criminal Offences Act, 1960 (Act 29) states: Whoever commits robbery if guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence 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. The minimum penalty for the offence of Robbery with an offensive weapon is 15 years. In passing sentence, the High Court stated: 8 | P a g e The Appellant also claims that the sentence was excessive. Each of the accused persons received a similar sentence; 20 years IHL for conspiracy and 30 years IHL for robbery. Generally, where two or more people are charged with and convicted at the same offence, the sentences imposed should reflect the role played by each of them in the commission of the offence with those playing a minor or passive role receiving lesser sentences. Appellant can be said to have played only a passive role, driving the others around as opposed to those who actually took the victim’s motor, dragged him into the car and stole the money from a compartment in the motorcycle. The Appellant should have received a lesser sentence. Secondly there were no aggravating circumstances in the commission of the offence. No force was employed. The second accused was the only person wielding a weapon, an AK 47 issued to him for the performance of his duty…… The gun was not used in the commission of the offence. The offence committed then was more an act of simple stealing than robbery. In the circumstances of the case the sentence imposed was harsh and excessive. Appellant’s sentence will accordingly be reduced to five (5) years IHL on the conspiracy charge and ten (10) years IHL on the robbery charge. The court did not substitute the charge of stealing for that of robbery. It confirmed the charge of robbery but varied the sentence to reflect a charge of stealing. In Apaloo v. The Republic (1975) GLR 156 at 191 the court held that it would interfere only when it was of opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle. The sentence of 9 | P a g e 10 years in the teeth of the minimum sentence for robbery with an offensive weapon of 15 years was wrong in principle. This court therefore sets aside the sentence of 10 years imposed by the High Court and in its place substitutes a sentence of 15 years, which is to commence from the date of previous conviction i.e., 9th September 2013 The appeal against conviction and sentence is therefore dismissed. DZAMEFE, JA I agree sgd JENNIFER DODOO (MRS) (JUSTICE OF APPEAL) sgd SENYO DZAMEFE (JUSTICE OF APPEAL) sgd SUURBAAREH, JA I also agree (JUSTICE OF APPEAL) G. S. SUURBAAREH COUNSEL: OSUMAN MOLIADEEN FOR APPELLANT SETH AWERE-OPANYINYENA (PSA) FOR THE REPUBLIC RESPONDENT 10 | P a g e