Republic Vrs Anni and Others [2023] GHADC 526 (5 April 2023)

IN THE DISTRICT COURT, DZODZE HELD ON FRIDAY THE 5TH OF APRIL, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B7/09/23 THE REPUBLIC VRS DESTINY ANNI & 2 OTHERS. JUDGMENT PARTIES COMPLAINANT PRESENT 1ST & 2ND ACCUSED PERSONS PRESENT REPRESENTATION DETECTIVE/CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The first and second accused persons were arraigned before this Court on charges of Conspiracy to steal and stealing contrary to Sections 23(1) and 124(1) of the Criminal Offences Act, 1960 (Act 29). 1 | P a g e The third accused person was charged with dishonestly receiving contrary to section 146 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS In the brief facts attached, the Prosecution stated that the complainant Dotse Selasi is a farmer and a native of Ehi whilst Destiny Anni (A1) is a 21 years old unemployed and Victor Awudi is a 27 years old mason. The Prosecution stated that Alice Atiwodo (A3) is also a trader and a 60-year-old resident of Glitame near Agbozume. . The Prosecution stated that on the 7th of October, 2022 around 6:00pm, the complainant visited his poultry house and while feeding the birds observed A1 and A2 pass by. The Prosecution stated that after feeding the birds the complainant left but returned to the site again around 7:30pm on the same day and detected that thieves have broken into the house and stolen sixty (60) birds comprising chicken and ducks. The Prosecution stated that the complainant through his own investigation found out that A1 and A2 stole the birds and sold them to A3. The Prosecution stated that following the admission of A3 when she was confronted about the incident by the complainant, a report was made to the police and both A1 and A2 were arrested. 2 | P a g e The Prosecution stated that, A1 and A2 admitted the offences in their cautioned statements but A3 informed the police that after buying the birds she disposed of same at the Agbozume market. The prosecution stated that the accused persons were charged and arraigned before the court. PLEA OF ACCUSED PERSONS AND CONVICTION The first and second accused persons pleaded not guilty to both charges when the particulars of offence were read and interpreted to them in the Ewe language and were admitted to bail. A3 however pleaded guilty with explanation. EXPLANATION BY A3 In her explanation, A3 stated that she is a trader who buys and sell poultry. She further stated that she went out and upon her return in the evening on the said date met A1 and A2 in her house with two chicken and a duck which they offered to sell to her. She stated that when she asked them where they got them from A1 informed her that they are for his deceased father which people are now stealing upon his demise so he wants to sell them off. A3 stated that she purchased the birds upon that explanation and paid an amount of GH₵115.00 for all the three birds. 3 | P a g e A3 stated that the complainant later came to her house and stated that she wanted to buy a duck and a chicken but when she showed her the ones she had he said he was not interested and left. A3 stated that the complainant later returned to her house with the police and A1 and immediately upon seeing her A1 started asking her if he had come to sell anything to her and in the presence of the police she responded in the affirmative and insulted A1. A3 stated that she was taken to the police station where she saw that A2 had also been arrested and she was charged with the offence after her statement was obtained. RULING Under section 146 of the Criminal Offences Act, a person who dishonestly receives any property which that person knows has been obtained by a criminal offence commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence. In Salifu & Another v. the Republic [1974] 2 GLR 291 it was held that, “knowledge in reference to the offence of dishonestly receiving refers to knowing that the goods have been stolen at the time the goods were received and not subsequent to that date”. Based on her explanation and the confession by A1 to the court that he told A3 that the birds belong to his father, A3 could not be said to have received dishonestly. A3 was accordingly acquitted and discharged of the offence brought against her under count three (3). Witness statements of witnesses of prosecution were served on A1 and A2 in addition to copies of the cautioned and charge statements for trial on counts one (1) and two (2). 4 | P a g e CASE OF PROSECUTION The Prosecution called as witnesses the complainant, Dotse Selassie and the Police investigator Kingsley Aboagye Darkwah. In his evidence to the court, PW1 stated that he had birds comprising chicken, guinea fowls and ducks numbering more than sixty (60). PW1 stated that on the 7th of October, 2022 at about 6:30 pm he was on site feeding his birds when he spotted A1 around the area. PW1 stated that after feeding the birds he left but when he returned later on the same day, he noticed that the lock to the poultry house had been broken and sixty (60) of the birds had been stolen. PW1 stated that in the cause of his personal investigations, one Mawumelom Kpeli informed him that it was A1 and A2 who stole his birds and that the birds were concealed in a sack and conveyed to Glitame for sale to a certain woman. PW2 stated as part of his evidence that he visited the scene of crime and confirmed that the poultry house had been broken into. He also tendered in evidence the investigation caution statements and charge statements of the accused persons. DEFENCE OF THE FIRST ACCUSED The first accused person stated that on the 11th October, around 6:52am he was in his house when police officers from Ehi came to knock at his door, arrested and took him to the police station. 5 | P a g e A1 stated further that when he was taken to the police station he was beaten up and forcefully made to sign under their statement and was told that fowls of about sixty (60) pieces were stolen from the poultry house of Dotse Selassie. A1 stated that he told the police he did not know anything about the birds but the police beat him up and arraigned him before the court. The evidence given by A1 raised issues that border on the admissibility of the statement he was reported to have made to the police on 11th October, 2022. Section 120(1) of the Evidence Act, 1975 (NRCD 323) provides that, “in a criminal action, evidence of a hearsay statement made by an accused admitting a matter which – a. Constitutes; or b. Forms an essential part of; or c. Taken together with other information already disclosed by him is a basis for an inference of, the commission of crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily. Under section 120(5) of the Evidence Act, a statement established to have been made by an accused person by inducement or infliction of a physical suffering by a public officer or any person who has an interest in the outcome of the case or anybody acting under the direction of a public officer of a person with an interest in the outcome of the case cannot be deemed to have been voluntarily made. However, such statements made by a declarant while arrested, detained or restricted are admissible when made in the presence of an independent witness who can understand the language spoken by the accused, can read and understand the language in which the 6 | P a g e statement is made and where the statement is made in writing he certifies in writing on the statement that he had so read over and explained its contents to the accused and the accused perfectly understood it before it was signed or marked. See section 120 (2) of NRCD 323. In a mini trial conducted on 8th February, 2023 to determine the admissibility of the statement, Fiave Raphael who signed as an independent witness was subpoenaed by the court to give evidence. The witness who identified himself as a Community Police Assistant denied that the accused was compelled to make the statement and stated further that he was present and interpreted the content of the statement to the accused before he signed. The accused in his cross examination of the witness maintained that he did not give the statement voluntarily and that he stated that he will only speak in court. However, the court takes notice that on the 16th of November, 2022 when the plea of the accused persons was taken, A1 voluntarily told the court after he had pleaded not guilty that he deliberately told A3 that the birds belong to his deceased father because they went to her at an odd hour and if he was to tell her the truth she would not have agreed to buy the birds from them. The statement was admitted in evidence by the court in the absence of a compelling evidence to convince the court that the statement was made as a result of inducement of physical suffering inflicted on the accused. DEFENCE OF SECOND ACCUSED 7 | P a g e A2 stated that on the 7th of October, 2022 he was called on the phone by A1 around 7:00pm in the evening to come to his house and when he went he asked that he should accompany him to Glitame to sell his two chickens and a duck. The accused stated that they took a motor bike from the station and went to the house of A1 who went to bring the birds and they proceeded to Glitame where A1 got down and took the birds to a particular house. The accused stated that they waited for some time because A3 was not present but upon her return she bargained with A1 and paid for the birds and they left. The accused stated that around 5:00am the following day he was asleep when his mother woke him up that some people were looking for him and when he came out he saw the police who asked him to report at the station in respect of a report that had been made against him. The accused stated that he was detained upon reaching the police station and after about an hour A1 was also arrested and brought to the station. The accused stated further that he pleaded not guilty to all the charges. THE LAW Burden of Proof 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 8 | P a g e so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt. See Section 11(2) of the Evidence Act, 1975 (NRCD 323) and the cases of Kingsley Amankwah (a.k.a Spider) v. The Republic [2021] DLSC10793 at pages 25-26 per Dotse JSC and Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. In the case of Ali Yussuf Issa (No.2) v. The Republic [2003-2004] SCGLR 174, it was held that the burden of proof has two components, the duty to lead evidence on any fact required to be proved and the duty to provide sufficient evidence to persuade a reasonable mind as to the existence of any such fact. See also Kweku Quaye alias Torgbe vs. The Republic [2021] DLSC10794 at page 9-10 per Prof. Mensa Bonsu, JSC. 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; “In 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”. The extent of the onus on the defence on the other hand is provided by section 13(2) of the evidence Act 1975 which states; “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”. See also the case of COP v. Antwi [1961] GLR 408. Conspiracy Section 23(1) of the Criminal Offences Act, 1960 (Act 29) in defining the offence of conspiracy states that; “where two or more persons agree to act together with a common purpose 9 | P a g e for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence”. In the case of The Republic v Ernest Thompson & Others [2021] DLSC 10174 at page 10174 the court stated that; “under the definition of the offence of conspiracy, a conviction could be secured upon proof of the following ingredients; i. ii. Prior agreement for the commission of a substantive crime; Acting together in the commission of the crime in circumstances which show that there was a common purpose; iii. Previous concert even if there was evidence that there was previous meeting to carry out the criminal conduct” See also the cases of Francis Yirenkyi v The Republic (2016) 99 GMJ 1 SC and Agyapong v The Republic [2015] 84 GMJ, 142, CA. Same elements were stated in the case of Republic v Baffoe Bonnie & Others (Suit No. CR/904/2017) (Unreported) dated 12th May 2020, where the elements of conspiracy were outlined by the court in the words as follows; “For prosecution to be deemed to have established a prima fascie case, the evidence led without more should prove that: a. there were at least two or more persons b. there was an agreement to act together c. the sole purpose for the agreement to act together was for a criminal enterprise”. The effect of the principles in the above authorities is that, persons accused of conspiracy must not only be established to have agreed to act but there must be an agreement to act together for a common purpose to commit crime. 10 | P a g e It is also significant to note that, under the new formulation of the law on conspiracy as defined by the Supreme Court, a person could no longer be guilty of conspiracy in the absence of the evidence of any prior agreement. See KINGSLEY AMANKWA (a.k.a SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 @ page 28 per Dotse JSC. Stealing A person steals who dishonestly appropriates a thing of which that person is not the owner. See section 125 of the Criminal Offences Act, 1960 (Act 29). To successfully prove a case of stealing against a person in our law, three elements have to be established which include the fact that the person is not the owner of the thing allegedly stolen, that he appropriated the thing and that the appropriation was dishonest. ANALYSIS AND EVALUATION OF EVIDENCE For the purposes of Count one in respect of the offence of conspiracy, the prosecution per the elements required as established in the cases of The Republic v. Ernest Thompson & Ors and Republic vs. Baffoe-Bonnie(Supra) had a duty to adduce evidence to establish the fact of a prior agreement between A1 and A2 to act in common purpose towards the commission of the substantive offence or any other offence. The defence of A2 is that he was called by A1 to come and see him and when he went he asked that he accompanies him to go and sell his birds which he did. The evidence suggests that A2 did not have any prior engagement with A1 to go and steal and he did not also know A3 or even took part in the negotiations which led to the eventual sale to her. 11 | P a g e The brief facts attached to the charge sheet by the prosecution indicated that both A1 and A2 were seen by the complainant earlier at the site near his poultry house but in his witness statement to the court, the complainant stated that it was only A1 that he saw at the site. Below are the answers of PW1 under cross examination by A1 on 24th January, 2023; Q. What was I doing when you brought the police to arrest me? A. You were asleep. Q. What is the evidence that I was the one who stole the birds? A. A night before the birds got missing I saw you around the poultry house. I went to A3 and she told me you came to sell some birds to her. The prosecution failed to prove the elements of conspiracy through the witnesses called and the evidence put before the court. In relation to the offence of stealing, the prosecution bears the burden to prove that the accused persons dishonestly appropriated the birds which belong to the complainant. The evidence given by the witnesses for prosecution suggested an entire reliance on the alleged circumstances to prove their case. The inferences could be drawn from the responses of PW2, the investigator questions from A2 during his cross examination on 1st February, 2023. Q. What did your investigation reveal about us and our involvement in the alleged offence? 12 | P a g e A. You informed police that A1 called you on the phone to escort him to Glitame. Both of you went with a motorbike with Mawumelorm Kpeli as the rider. I visited the scene and found out that the poultry house was broken. I noticed A1 stays close to PW1 and PW1 also stated that he saw A1 around the site at bout 6:00pm on the day of the incident. Q. You are saying the motor rider informed you that he saw us with birds. How did you know that the birds belong to PW1? A. The circumstances surrounding the break in and the manner in which the birds were sold to A3 shows you stole from PW1. On 24th January, 2023 PW1 also gave the following responses to questions on how he came to the determination that the accused persons stole his birds; Q. What is the evidence that I was the one who stole the birds? A. A night before the birds were stolen I saw you around the poultry house. I went to A3 and she told me you came to sell some birds to her. Q. Did you see that what was sold to A3 was yours? A. No. They were sold before I went there. Q. What shows that I stole the birds? A. A3 stated that you came to sell the birds to her. 13 | P a g e Q. Are you the only one who has birds in the neighborhood? A. No In the principles of the law of evidence, where direct evidence is difficult to obtain, circumstantial evidence which include pieces or incidents of facts considered or put together can be relied upon as the basis to draw a conclusion or infer the guilt of an accused. However, in evaluating circumstantial evidence the inference must support that; 1. They relate to inferences that support the conclusion that the offence has been committed. 2. They relate to inferences that it was the accused person and no one else who committed the crime charged. 3. They relate to inferences that guilt is the only rational hypothesis or that the inferences are incompatible or inconsistent with the innocence of the accused. See the case of the State v Anani Fiadzo [1961] GLR 416. The position in Ghana regarding the standard of proof based on circumstantial evidence was stated as follows in the case of Collins alias Derby v The Republic [1987-88] 2 GLR 521 (holding 1); “In Ghana the degree of proof required was that the prisoner’s guilt should be established by circumstances that consistently and overwhelmingly imputed guilt and excluded any other rational conclusion”. 14 | P a g e The effect is that, where the evidence against an accused is entirely circumstantial the law required a particularly high standard of proof. See the case of Abbey v The State [1964] GLR 546, SC. In this particular case as already stated above it is essential to provide a sufficient lead that whatever the accused persons were found to allegedly have in their possession came from the stock of the complainant. Both PW1, PW2 and the material witness admitted in their evidence that they did not see what was sold to A3. No evidence was also given by A3 by way of description to suggest that the birds bought by her matches the particular identity of birds owned by the complainant. Portions of the evidence given by the material witness Mawumelorm Kpeli who was subpoenaed upon the application by Prosecution is reproduced below; “ I was at the station when PW1 came to me and said someone told him he saw me carry the two accused persons to a place so where did I take them to. I told him they asked me to take them to Glitame to give something to one Efo Billy. They picked me from the Ehi station to Biasekpota and we picked something from there in a sack but I did not see what was in the sack. From Biasekpota I took them to Glitame and when we got to a place behind a certain house they asked me to stop. A1 entered the house with the sack before A2 followed. They entered the house and were calling somebody but the person was not coming out. 15 | P a g e Whiles waiting, I saw A3 and her husband entering the house. I then heard the clucking of chicken in the house. After, they asked me to bring them back”. At the close of their case, it appears the evidence led by the prosecution may equally be interpreted to lead to the inference of guilt as well as innocence of the accused persons. In that situation, it is held in the case of Domena v Commissioner of Police [1964] GLR 416 that; “Where the whole evidence against the accused was circumstantial, the court should not convict unless the evidence pointed to guilt and nothing else. Since the circumstantial evidence was consistent with guilt as well as with innocence, the court should have acquitted the appellant”. . CONCLUSION In a criminal action, the threshold for the prosecution as established in Section 11(2) of the Evidence Act (supra) is a prove beyond reasonable doubt as to the guilt of the accused. The burden in respect of count one was not sufficiently discharged and in respect of count two, the circumstantial evidence led did not raise inferences to the effect that guilt is the only rational hypothesis or that the inferences are incompatible or inconsistent with the innocence of the accused In the circumstance, the accused persons are acquitted and discharged on both counts. 16 | P a g e NELSON DELASI AWUKU MAGISTRATE 17 | P a g e