REPUBLIC VRS. BROWN (CR/192/2018) [2024] GHAHC 282 (8 May 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 8TH DAY OF MAY 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/192/2018 REPUBLIC VRS ROSALINE OWUSU BROWN JUDGMENT Section 173 of the Criminal and other Offences Procedure Act 1960 Act 30 provides that: “Where at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require the accused to make a defence, the court shall as to that particular charge, acquit the accused” The prosecution charged the accused person with two counts of conspiracy to commit crime namely forgery of official document contrary to Sections 23(1) and 158 of the Criminal Offences Act, 1960 Act 29, and a further two counts of forgery of official document contrary to Section 158 of Act 29. The said charge sheet upon which the accused person was arraigned was filed on the 27th of March 2019. The accused person pleaded not guilty to all the counts after same were read and explained to her in the Twi language. FACTS OF THE CASE 1 According to the prosecution, the complainant Doris Owusu Brown is a trader and resident at East Legon while the accused person Rosaline Owusu Brown is a businesswoman and resident at Dansoman. The prosecution states that the complainant is a widow, whose deceased husband died sometime in the year 2000. The deceased was survived by seven children including the accused person. The deceased died intestate and in his Will appointed two of the complainant’s step children, one Edmund Isaac Owusu Brown and Winifred Owusu Brown, who are both resident in the United Kingdom as his Executors. The prosecution states that during the subsistence of the marriage the deceased gifted to the complainant a landed property at East Legon, which she later developed into a residence. The case of the prosecution continues that sometime in 2012, one Adum Acheampong filed a suit in the High Court against the Complainant in respect of the said residence and among other reliefs sought was a refund of monies paid to the complainant as rent for a room in the complainant’s residence at East Legon. Subsequently, the two named executors, Edmund Isaac Owusu Brown and Winifred Owusu Brown were joined to the said suit as co-defendants. The prosecution states that the accused person who claimed to be representing the two executors in the suit presented to the court a power of attorney as issued jointly by the two executors who are both resident in the United Kingdom. The accused person during the trial again tendered as exhibit a Vesting Assent purportedly signed by the two named executors in respect of landed properties of the deceased. During the pendency of the suit, the complainant who was the 1st Defendant in the suit contacted one of the executors, Edmund Isaac Owusu Brown who indicated that he was oblivious of any pending suit. He also said he did not sign either solely or jointly both the Power of Attorney and the Vesting Assent. 2 The matter was reported to the police, which led to the arrest of the accused person. The prosecution added that investigations revealed that the purported signature of one of the executors, Edmund Isaac Owusu Brown on the power of attorney and also the vesting assent that was tendered in evidence at the High Court during the trial do not bear his true signature. The prosecution’s case is that investigations further revealed that the accused person and one of the executors Winifred Owusu Brown together forged the signature of the other executor, Edmund Owusu Brown. At the trial, the prosecution called four witnesses and upon the close of case of the prosecution on the 15th day of November 2023, Counsel for the accused person applied to file a submission of no case for the accused. Pursuant to the said prayer, Counsel for the accused person on the 25th day of March 2024 filed his submission wherein he seeks to convince the Court to acquit and discharge the accused person. SUBMISSIONS BY COUNSEL FOR THE ACCUSED PERSON In his written submissions filed, after giving the law and evaluating the evidence led by the prosecution, he submitted that the prosecution has failed to prove the essential ingredients of the offence charged. He surmised that “…whereas the power of attorney and vesting assent are legal documents. They are not judicial neither are they official documents. The charges against the Accused persons borders on forgery of official document…whereas an official document is typically one that is issued or endorsed by an authority or organization to serve as a record, proof or communication of certain information with examples birth certificates, passports, academic transcripts, government reports etc, a legal document is one that establishes legal rights, duties, or obligations between parties.” He argued that the accused person is not properly charged before the court and ought to be acquitted and discharged. He asserted further that the prosecution failed to lead any cogent evidence to substantiate how the accused conspired with the said Winifred Owusu Brown to forge 3 the signature of Edmund Owusu-Brown, the other executor of the Will on the Power of attorney and vesting assent. BURDEN OF PROOF As stated by Lord Sankey in the leading case of Woolmington v. Director of Public Prosecutions [1935] A. C. 462; 25 Cr. App. R. 72, “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.” Thus, in a criminal trial and unless a statute otherwise states, the burden of proof is always on the prosecution since it is the prosecution that asserts a wrongdoing on the part of the accused person. Though this is a long standing position of the law, it can be said to be the direct effect of section 15(a) of the Evidence Act, 1975, Act 323 that “Unless it is shifted the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue.” The prosecution in this case thus had the burden to establish the burden of persuasion. In terms of section 13(1) of Act 323, this burden as to the commission by the accused person of a crime which is directly in issue requires proof beyond a reasonable doubt but when it shifts to the accused person, it requires him to just raise a reasonable doubt. What is key to state however is that, the question as to whether the Prosecution has established its case beyond reasonable doubt can only be made at the end of the entire proceedings and not in the middle of the trial or at the close of its case. What the law as per section 173 of Act 30 stated supra requires is that, if at the close of the evidence in support of the charge, (i.e. close of prosecution’s case) it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. The Court’s duty at the close of the prosecution’s case is therefore to determine whether the prosecution has made out a case in sense of having raised a presumption of guilt in 4 the mind of the judge which requires that the accused be required to make a defence. This is also termed as establishing a prima facie case or reaching a prima facie standard. The prosecution is not to have established certainty in the mind of the judge that, the accused is guilty. Thus in TSATSU TSIKATA V THE REPUBLIC [2003-2004] SCGLR 294 the Supreme Court held that:- “The decision as to whether or not the prosecution’s case has been proved beyond reasonable doubt should be made after the end of the entire trial.” This is so because, if the prosecution was required to establish certainty or guilt or prove the guilt of the accused beyond reasonable doubt at the close of its case, then the accused would never be able to raise a reasonable doubt since the case would have been established beyond the reasonable doubt that he could raise. On the contrary, a prima facie standard only creates a rebuttable presumption which leaves room for same to be rebutted by the accused through his defence. It is thus provided respectively by sections 19 and 20 of Act 323 that, 19-“an enactment providing that a fact or group of facts is prima facie evidence of another fact creates a rebuttable presumption”. 20- “A rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact”. In the Supreme Court in the case of Michael Asamoah & anor v the Republic (2017) SCGLR at page 4. The said grounds as stated per Adinyira (Mrs) JSC are that: a). There had been no evidence to prove an essential element in the crime. b). The evidence adduced by the prosecution had been so discredited as a result of cross- examination. c). The evidence was so manifestly unreliable that no tribunal of fact could reasonable convict 5 upon it. d). The evidence was evenly balanced in the sense that it was susceptible to two (2) likely explanations, one consistent with guilt and one with innocence. It is against this background and standard that I proceed to examine the evidence led by the prosecution to determine whether at the close of the prosecution’s case, any or all of the above grounds for upholding a submission of no case existed or had been demonstrated. COUNTS ONE AND TWO: CONSPIRACY TO COMMIT CRIME NAMELY FORGERY OF OFFICIAL DOCUMENT Section 23(1) of the Criminal Offences Act 1960, Act 29 provides that: “Where two or more persons agree to act together with a common purpose for or in committing or 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.” In the case of Republic vrs Ibrahim Adams and 4 ors [28/04/03] No FT/MISC. 2/2000 the court held that “The essence of conspiracy lies in the formation of a scheme or agreement between the parties, not in doing the act or accomplishing the purpose for which the conspiracy is formed nor in attempting to do them, nor in instigating others to do them. Agreement or collaboration is essential. Mere knowledge or even discussion of the plot is not per se enough. The actus reus or external factor of the crime is acting in a co-ordinated fashion by which initial consent to a common purpose is exchanged. To prove the existence of a conspiracy it is not necessary to show that any overt act was done beyond the agreement. It is also not necessary that the means or devices for achieving the purpose of the conspiracy have been agreed. It is the agreement itself which is proscribed and which gives the state an interest to interfere by instituting proceedings.” 6 The case of Rep vrs Kwabena Amaning aka Tagor Suit No ACR 4/ 2007 outlines the essential ingredients of the offence of conspiracy. "The essential ingredients in this offence of criminal conspiracy which the Prosecution must prove beyond reasonable doubt against the accused persons to secure a conviction are:- i. There must be two or more parties to the agreement. ii. The parties must agree or act together. iii. They must do so for a common purpose..." The prosecution in proving this agreement may do so by direct evidence or by proving circumstances from which the court may presume the agreement. Thus in the case of R v Murphy (I 837) 8 C. and P. 297; 173 E.R. the court said that: "Although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have the common design and to pursue it by common purpose, and so to carry it into execution. This is not necessary because in many cases of the most clearly reestablished conspiracies there are no means of proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same objects, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, had they this common design, and did they pursue it by these common means - the design being unlawful?" In the case of FAISAL MOHAMMED AKILU v THE REPUBLIC [2017-2016] SCGLR 444 Yaw Appau JSC stated on conspiracy under the current Ghanaian law as follows: 7 “From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime… However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”. Section 158 of Act 29 provides that: “A person who, with intent to deceive any other person, forges a judicial or an official document commits a second degree felony.” Per Section 164(1) of Act 29/60 (1) A person forges a document if that person makes or alters the document, or a material part of the document, with intent to cause it to be believed— (a) that the document or the part has been so made or altered by a person who did not in fact so make or alter it; or (b) that the document or the part has been so made or altered with the authority or consent of a person who did not in fact give the authority or consent; or (c) that the document or the part has been so made or altered at a time different from that at which it was in fact so made or altered. 8 The ingredients the prosecution must prove therefore are that: 1. The thing alleged to have been forged by the accused and one another is either a judicial or official document 2.That the accused and one another made or altered the whole of a document or any material part thereof 3.That the accused and the other person must have had the intent that the document or any material part thereof so made or altered be believed to have made or altered by any person who did not in fact make or alter it, or cause it to be believed to be what it in fact is not. 4.That the accused and another must have had intent to defraud or injure any person, or with intent to evade the requirements of the law or with intent to deceive. THE THING ALLEGED TO HAVE BEEN FORGED BY THE ACCUSED AND ONE ANOTHER IS EITHER A JUDICIAL OR OFFICIAL DOCUMENT According to P.K Twumasi in his book Criminal Law in Ghana at page 361 “In this respect it could be noted that our law draws a distinction between public and private documents. Judicial and official documents are public documents…” Official document has been defined in Section 163 (3) of Act 29/60. It provides that: “Official document” means a document purporting to be made, used or issued by a public officer for a purpose relating to that public office.” Dominic Dennis Adjei in his book Contemporary Criminal Law in Ghana 2nd Edition page 367 stated that “With respect to what constitutes official documents under Act 29, it has been explained as any document which is purported to be made, used or issued by a public officer 9 for a purpose that relates to the office held by that public officer. It refers to only documents that are made, issued or used by a public officer for a purpose relating to that public office. A public officer working at the Ministry of Finance can issue, make or use a document relating to that office but where such an officer makes or issues a document from another Ministry which does not relate to his/her office and it is forged, it will not constitute forgery …” It is noted per the particulars of offence of count one and two that, the accused person and one other at large with intent to deceive a judicial officer into believing that she had been appointed by one Edmund Isaac Owusu-Brown and Winifred Owusu-Brown did agree to act together to forge a Power of Attorney and in count two, the two with intent to deceive a judicial officer did agree to act together to forge a Vesting Assent of Edmund Owusu-Brown and Winifred Owusu-Brown for the purposes of tendering in evidence. The power of Attorney dated the 18th of June 2012 was tendered into evidence by PW2 Mensah Ashiagbor of the department of Criminal Investigation of the Ghana Police service and same was admitted into evidence as exhibit A. The vesting assent dated the 24th of February 2012 was tendered into evidence by the same PW2 and was also admitted into evidence as Exhibit B. The said power of attorney exhibit A which is alleged to have been executed by PW4 Edmund Owusu Brown and Winifred Owusu Brown was empowering the accused person to “exercise and act for Winifred Owusu Brown and Edmund Owusu Brown” to “stand in our names and represent us and give evidence on our behalf in the suit commenced at the High Court, Accra in Suit No BL 664/2005” PW1 Doris Owusu Brown testified per her witness statement that in the case instituted in the High Court by Adum Acheampong, the executors of her late husband’s Will were joined to the suit as defendants. She said that the accused person represented the executors using the power of attorney Exhibit A and also tendered into evidence a vesting assent exhibit B purportedly issued by the executors. She added that she spoke 10 to Edmund Owusu Brown and he informed her that he was not even aware of the court case against her. She testified further that when the power of attorney Exhibit A and the vesting assent exhibit B were sent to Edmund Owusu Brown in London via DHL, he informed her that the signatures on the documents were not his. Under cross examination she was emphatic that: Q: And it is also your case that it is Winifred Owusu Brown that forged the signature of Edmund Owusu Brown on the power of attorney given to the accused person right? A: Yes my lady” She added that a search revealed that within the period of 1st January 2011 and 31st December 2012 when the suspicious power of attorney and vesting assent were purportedly made, Edmund Owusu Brown never came to Ghana but Winifred Owusu Brown arrived in Ghana within that period on 6th June 2012 and departed on 27th of June 2012. PW4 Edmund Isaac Owusu Brown testified that he did not issue the power of attorney and the vesting assent to the accused for the trial. He added that the signatures on those documents were not his. The first hurdle for the prosecution is to lead evidence to show that the said documents are official documents as that is the focus of the particulars of offence. Per the definition of the law and the particulars of offence, the power of attorney and the vesting assent are not official documents. They are as rightly submitted by counsel for accused person legal documents. In the case of Dzanku vs Afalenu (1968) GLR 792 @ 793 a power of attorney “is described as a formal document whereby one person empowers another to stand in his stead, or to represent him, for certain specific purposes. It may either be a special power, or else a general power. In the 11 case of the latter, the general power, the person unto whom the power is given, the donee, becomes invested with full power to do such periodic acts as carrying on a business or collecting debts belonging to the donor of the power. Where the power is special, however, the donor of the power confines the donee to the doing of certain specified acts.” It is an elementary rule of law that it is the particulars of offence which serves as a pointer to a trial court and the defence as to what the prosecution is alleging, and that is what the prosecution is required to prove beyond a reasonable doubt. As such an accused person who is led on by the prosecution to focus time and resources putting up a defense on the charge of forgery of official documents would suffer much injustice when the court grants the prosecution leave to set up a new case all together against her. In this instance therefore and as noted supra, the offence for which the accused person was informed that she was facing was with respect to forgery of a power of attorney and a vesting assent which are not official or judicial documents. The offence of forgery of judicial and official document is created different from the offence of forgery of other document under section 159 of Act 29. The two offences carry different punishments and are therefore by their definitions and punishment different. While the offence of forgery of judicial and official document is a second degree felony, the offence of forgery of other document is a misdemeanor. Thus, where the evidence led only established that the document which was alleged to have been forged was not an official document, then the prosecution would have failed to prove its case or prove the essential ingredients of the offence of forgery of official document. That being the case, then the prosecution has failed to establish an essential ingredients of the offence charged. The court would therefore not even proceed to consider the rest of the ingredients of the offence. The result of the foregoing is that since the documents the power of attorney and the vesting assent forms the basis of the counts and the court 12 having found that same are not official documents then it would serve no useful purpose to embark on a deliberation or determination of the rest of the ingredients of the offence. The prosecution has therefore failed to prove a prima facie case against the accused person on counts one and two. The third and fourth counts suffers the same fate as same are the substantive offences of counts one and two. The result of the foregoing is that the prosecution has failed to prove a prima facie case against the accused person. The accused person is therefore acquitted and discharged on all the counts. PARTIES: ACCUSED PERSON PRESENT COUNSEL: SELASI KUWORNU (ASA) FOR JASPER DOE FOR THE REPUBLIC PRESENT AUGUSTINE ASARFO-ADJEI FOR ACCUSED PERSON ABSENT MARY M.E YANZUH J. HIGH COURT JUDGE 13