Republic Vrs. Mensah (D4/102/2022) [2023] GHACC 1178 (2 October 2023)

IN THE CIRCUIT COURT (8), ACCRA HELD ON THE 2ND DAY OCTOBER, 2023, BEFORE H/H JOJO AMOAH HAGAN SUIT NO. D4/102/2022

THE REPUBLIC

VRS

SACKEY MENSAH

JUDGMENT Introduction 1. The accused was arraigned before this Court for the offence of stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). The allegations contained in the particulars of the offence are that the accused stole several movables belonging to the complainant with whom he worked. Amongst these items was a drawing board. At the close of the prosecution case, I acquitted the accused on the charge of stealing in respect of the other items on the basis that the accused had no case to answer. But I determined that he had a case to answer in respect of the drawing board and ordered the accused to answer to the charge. Page 1 of 5 The Republic v Sackey Mensah (Suit No. D4/102/2022) 2. According to the first witness for the prosecution [the complainant] the accused worked for her as, inter alia, a cleaner. She observed after engaging the accused to work in her house that her properties started getting missing. After several attempts to apprehend the person behind the loss of her property, her CCTV camera recorded the accused hurriedly carrying some items out of her room. These items include the drawing board in question.

3. The accused did not challenge the witness regarding the allegation that he stole the drawing board. He indeed put it to the witness that he only took the said board and a book.

4. The second witness for the prosecution was the investigator who testified that the accused admitted in his cautioned statement that he stole the drawing board.

5. In his defence, the accused averred that he obtained the consent of the first prosecution witness before he took the drawing board. The prosecution did not challenge this assertion. Instead, he purported to examine the accused on what he believed was a conflict between the testimony of the accused to the effect that he obtained the consent of the first prosecution witness before he took the drawing board and his statement under caution that did not show that he obtained the consent of the said witness. The issue for determination and the burden of persuasion 6. The issue for determination is whether the accused stole the drawing board in question. The prosecution must prove beyond a reasonable doubt that the accused stole the drawing board: Gligah & Atiso v. the Republic [2010] SCGLR 870. Page 2 of 5 The Republic v Sackey Mensah (Suit No. D4/102/2022) Evaluation 7. Section 124(1) of Act 29 provides that a person who steals commits a second degree felony. Under section 125 of Act 29, a person steals who dishonestly appropriates of thing of which that person is not the owner. The elements of the offence of stealing are that (i) the person charged must have appropriated the thing allegedly stolen, (ii) the appropriation must be dishonest, and (iii) the person charged must not be the owner of the thing allegedly stolen: see Republic v Halm (1969) C. C. 155.

8. It is trite that a witness whose evidence on oath is contradictory to a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previously contradictory statement unless he can give a reasonable explanation (emphasis added)— see Gyabaah v. the Republic [1984-86] 2 GLR 461. Put differently, a witness’s credibility cannot be successfully impugned by reason of evidence of a prior inconsistent statement made by the said witness unless he fails to give a reasonable explanation for the inconsistency when he is given the opportunity. This has been enacted in section 76 of the Evidence Act, 1975 (NRCD 323) which provides that [u]nless the Court otherwise determines, extrinsic evidence of a statement made by a witness which is inconsistent with a part of the testimony of the witness at the trial shall be excluded unless, (a) The witness was so examined while testifying as to give the witness an opportunity to explain or deny the statement; or (b) The witness has not been excused from giving further testimony. However, this rule of evidence does not apply when the prior inconsistent extrinsic evidence has been rejected by the Court as inadmissible. Page 3 of 5 The Republic v Sackey Mensah (Suit No. D4/102/2022) 9. The record shows that I rejected the charge caution statement of

the accused dated 15 March 2022 which contained a confession regarding the stealing of the drawing board. It is the confession in this inadmissible evidence that the prosecution sought to use to impeach the credibility of the evidence of the accused by showing that he had made a prior inconsistent statement. Once the said statement has been ruled inadmissible, it has no place in the assessment of the credibility of the accused. Accordingly, the accused did not make a prior consistent statement. However, apart from the cautioned statements of the accused, the investigator tendered video recordings [exhibit A] in support of the case of the prosecution.

10. In the said video recordings the accused was captured frantically prancing about the house of the first prosecution witness with the distinct looks and mannerisms of a thief. Most importantly, he was captured picking up an item from a box which strikingly looked like a drawing board. After picking it up he hurriedly proceeded to conceal it. In my estimation, this is dispositive of the matter. The accused was captured inflagrante delicto and he did not dispute that fact. Accordingly, there is enough corroborative evidence to support the evidence of the prosecution witnesses that the accused stole the drawing board in question. Decision 11. I, therefore, find the accused guilty of the offence of stealing contrary to section 124(1) of Act 29 and convict him accordingly. I sentence the accused to sign a bond to be of good behaviour for three (3) years, in default of which he shall serve three two (2) months’ imprisonment with hard labour. I further order the accused to restore the drawing board to the first prosecution witness, Ms. Ivy Marion Laryea. Page 4 of 5 The Republic v Sackey Mensah (Suit No. D4/102/2022)

JOJO AMOAH HAGAN

CIRCUIT COURT JUDGE Page 5 of 5 The Republic v Sackey Mensah (Suit No. D4/102/2022)