Frimpong Vrs Republic [2008] GHACA 36 (23 October 2008)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CRIMINAL DIVISION) ACCRA-GHANA ____________________________________________ CORAM: KANYOKE JA. (PRESIDING) YAW APPAU, JA ACQUAYE, JA CRIMINAL APPEAL NO. H2/13/ 07 23RD OCTOBER, 2008 KWAKU FRIMPONG @ IBOMAN … APPELLANT VRS. RESPONDENT THE REPUBLIC ______________________________________________________________ … J U D G ME N T ACQUAYE, JA: The appellant 1st Accused was convicted with three other persons on charges of conspiracy to commit robbery and robbery and sentenced to 65 years I. H. L. He has appealed against the conviction and sentence on five main grounds being. 1. The trial was devoid of fairness in that the trial judge was biased and imported evidence not on record in a summary trial which should have been by jury. The trial court erred by shifting the burden of proof to the appellant. The trial judge was wrong to have held that the appellant was a participis criminis when no one testified that he was seen at the scene of the crime. The conviction was not supported by the evidence adduced at the trial and The sentence was harsh and excessive. 2. 3. 4. 5. The facts proved at the trial were that the 2nd and 3rd accused persons on 23-4-2002 broke into the house of one Albert Mawusi Biga with others. Holding a gun and a crowbar they threatened Biga and another inmate with death if they did not shut up and stole a number of electrical gadgets and a BMW Car. Acting on information the police arrested the 3rd accused who confessed to the crime and named the other accused persons as his accomplices. He led the police to 1st Accused shop who also admitted the offence and led the police to his hometown Domeabra in the Ashanti Region where the care was retrieved. On the first ground of appeal of biasness I have read through the record of appeal but do not trace any evidence of bias on the part of the trial judge. All his findings were based on the evidence adduced at the trial and he did not import anything into the evidence as the trial was conducted in a mechanically recorded court. Robbery is a first degree felony and the mode of trial is left to the discretion of the prosecution. It is only in capital cases where punishment id death that section 245 of out Criminal Code prescribes trial by jury. The first ground of appeal is thus without merit and it is dismissed. On the second ground that the trial judge shifted the burden of persuasion on the appellant, counsel for he appellant failed to make this out in his written submission. His assertion that an independent witness must be able to read and write the language in which he interprets a confession statement is not known to the law. The ground of appeal is not proved and it is dismissed. The third ground of appeal is that no one testified that the 1st Accused was seen at the scene of the crime. This is true but there are many circumstances in the evidence which incriminate the 1st Accused. PW1 and PW2 testified that apart from 2nd and 3rd Accused who entered the house there was someone standing guard at the boys quarters. The statement of A3 that A1 participated in the crime and admission of the part A1 played in the crime. The changing of the number plate at First Light, Dansoman before driving the car to his hometown in the Ashanti Region all point to the active involvement of the appellant in the commission of the robbery. There is thus sufficient evidence on record to support the trial judges finding that 1st Accused was guilty of the offences charged. The last ground of appeal was that the sentence of 65 years I. H. L. was harsh and excessive. I notice from the record of proceedings that the appellant was said to be a first of offender and most of the items stolen were recovered. The evidence on record is that it was the appellant who drove the stolen car from the complainant’s house at Lashibi in Accra to his hometown in the Ashanti Region. To reduce his sentence will be unfair to the other accused persons who are all serving 65 years fail sentence. The appeal against sentence is also dismissed. KANYOKE JA. I agree K. A. ACQUAYE JUSTICE OF THE APPEAL S. E. KANYOKE JUSTICE OF THE APPEAL YAW APPAU I also agree YAW APPAU JUSTICE OF THE APPEAL COUNSEL: MR RAY KAKRABAH-QUARSHIE FOR THE APPELLANT PRESENT MISS CYNTHIA LAMPTEY FOR THE REPUBLIC PRESENT. 3