THE REPUBLIC VRS GADUGAH (B1/55/2024) [2024] GHADC 276 (26 February 2024)

IN THE DISTRICT COURT HELD AT SEGE ON MONDAY THE 26TH DAY OF FEBRUARY, 2024. BEFORE HER WORSHIP VICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. CASE NO. B1/55/2024 THE REPUBLIC VRS PROSPER GADUGAH JUDGMENT A. On 11th day of January, 2024 the Accused persons were arraigned before this court on charge of steal and stealing contrary to section 124(1) respectively of the Criminal Offences Act, 1960 (Act 29). The Accused person pleaded not guilty to the charge. B. BRIEF FACTS The complainant in this case was Joseph Agbashie a salt miner residing at Lolonya whiles the A1 was a farmer and resides at Kpotsum Goi. On the 5th day of March, 2023 about 5:00am the complainant woke up and detected that his VGL motorbike with registration number M-13 GR1281 which he parked at his veranda at Lolonya was made away with hence lodging a complaint at Sege police station. On suspicion A1 was arrested to assist with investigation. In the course of investigation, it came 1 to light that the accused persons stole Complainant’s VGL motorbike and A2 now at large sold it to a dishonestly receiver at Ashaiman. On the 2nd day of July, 2023 one Bernard Totimeh the senior brother of A1 brought to the station the stolen motorbike and told police that he has abandoned the said motorbike at Ashaiman hence same was retrieved and kept at the station for evidential purpose. Investigation cautioned statement was obtained from A1 and after investigation he was charged with the offence and put before this Honourable Court while efforts are being made to arrest A2. C. Accused upon his arraignment before this court pleaded not guilty to the count. By this plea Prosper Gadugah put himself in charge of the court, meaning that his guilt has to be proved beyond reasonable doubt. That common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2) (c) of the 1992 Constitution which enacts: “(2) A person charged with a criminal offence shall ------- (c) be presumed to be innocent until he is proved or has pleaded guilty.” The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in Ss 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the Prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. Prosecution in proving their case called three (3) witnesses including the investigator. 2 The Issue before this court was whether the prosecution proved the charge of Accused beyond reasonable doubt. PW1 IS JOSEPH AGBASHIE A SALT MINER AT LOLONYA In his evidence-in-chief PW1 indicated to court he does not know the Accused. That on the 5th day of March 2023 at about 5am he woke and detected that his Motor bike with registration number M-13-JR1281 valued at 16,000 which he parked on his veranda was missing. PW1 added the veranda was without lock. He also did not hear or saw anyone coming for the motor bike. Thereafter he reported the theft to Sege Police command for investigation. After the close of case for PW1 Accused failed to cross examine the witness that he does not know him anywhere so he has no question for him. PW2 was Bernard Totimeh an Artist at Sege. In his evidence in chief PW2 evidence was that the Accused Prosper Gadugah was his nephew. On the 29th day of March 2023 he was informed that the Accused was arrested for the offence of stealing. He followed up to the Police station. Accused initially told PW2 he knows nothing about the stolen motor bike. Later PW2 had information that the motor bike was stolen by one Darkeh from the Complainant’s veranda and handed it over to Accused Prosper to be sent to Ashiaman. PW2 further stated that he confronted Accused and he admitted the offence. On the 1st of July 2023 Accused Prosper Gadugah led him to Ashiaman but they could not trace the motor bike. They again went back to Ashaman on 2nd day of July2023 and they saw a young man riding the bicycle. We approached the rider and he explained to him that the motor bike was a stolen one currently under investigation by Sege Police station. The Rider told them it was one Darke and Dela who sold the motorbike to him at GH2700 so we should refund his money to him and take the motor bike away. It was the case of PW2 that after negotiation with the rider he accepted to take 3 GH1500.00 before the motor bike was released to him. He then brought the motorbike back to the Police at Sege. Accused told the court he has no question for the witness. He again failed to cross examine PW2. PW3 IS NO 46518G/CPL BOATENG ATTRAM STATIONED AT SEGE CID When the report of the stolen buy was made PW1 with the assistance of CPA arrested the Accused PW3 corroborated the story of PW2.In the course of investigation Police had information that the motor bike was stolen from the Complainants veranda and handed to Accused to send to Ashiaman to enable them sell it. In the Cautioned statement of Accused he told Police on the 5thday of March at about 8am he was in the house when Darkeeh brought the motor bike to Ashiaman to him that it belonged to one of his uncles at Lolony so he should ride to Ashiaman to enable them sell it so that his share would be given to him. According to PW3 Accused stated he rode the motor bike to Ashiaman and handed it over to Darkerh. Accused did not cross examine PW3.The court explained to Accused his failure to cross-examine the witness meant an admission of all their evidence-in-chief. Accused told court he admits all that PW3 has stated in court. After the close of the case of the Prosecution witness the court asked Accused to open his defence as a prima facie case has been made against him. ACCUSED IS PROSPER GADUGAH A FARMER AT KPOTSUM One Darkeh came to him one morning about 8:00am. He came along with a motorbike and told him he wanted to go and sell it at Ashaiman. That the motorbike belongs to his uncle. Accused told him before he goes with him to Ashaiman he has to pay him GH¢3,000.00 and Darkerh agreed to that. They left for Ashiaman. When they got to Ashaiman overhead Darkeh said he will continue to ride the motorbike after Accused have ridden from Sege to Ashiaman. When we got there Darkeh made a call. Two men came on a motorbike. Darkeh 4 gave him GH¢20.00 that they were going to sell the motorbike. From that day till now Accused has not heard from him. Accused later heard the motorbike was a stolen one. He had a call that they were looking for him to report at the Sege police station. The police came to arrest him to the station. Accused added that his statement was taken and that he does not know anything about the motorbike. CROSS-EXAMINATION BY PROSECUTOR Q. How well do you know Darkeh. A. He is my school mate. Q. How much was the motorbike. A. I don’t know the price Q. Are you therefore closing your case. A. Yes. Accused was charged with the offence of stealing contrary to Section 124(1) of the criminal and other offences Act 1960 (ACT29). However, the evidence of prosecution witness could not prove that the Accused committed the substantive offence of stealing by directly being connected but rather he facilitated the transportation of the Complainant’s motorbike to Ashiaman for sale. The evidence of Prosecution indicate that the Accused abetted the crime and same confirmed by the Accused. In Section 20 (1)of Act 29 the offence of abetment of a crime is committed where a person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilities, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by any 5 other person, whether known or unknown, certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence. In the case of Boateng v The State [1961] GLR756 at758 the court held that; “The offence of abetment of a crime as defined in section 20(1) of Act 29 may only be committed if the act or omission of another party which is purposely aided, facilitated encouraged or promoted itself constitute a crime” Abetment basically means a secondary offender or criminal; a person who offers support to the primary crime ensuring that the latter is successful with his plan. Abetment deals with an act or omission which commences, facilitates or ensures the success of a crime committed by another person. Abetment can happen in three ways either start a crime, facilitate a crime or ensure the success of a crime. An abettor’s liability is independent of the liability of the criminal. It is not a requirement for the abettor to know the criminal or to understand the nature of his work. In National Coal Board v Gamble [1959] 1QB 11 the court was of the view that; “The offence of abetment requires proof of mens rea of the Accused person the position of the law has been that the offence of abetment of crime requires proof mens rea. It means the intention to aid as well as knowledge of circumstances and the proof of intent of the accused person involves proof of a positive act of assistance voluntarily done.” In an excerpt from cross examination of Accused by Prosecution. Q. It is true that you rode the motorbike to Ashaiman. 6 A. Yes. Q. It is also true that when Darkeh brought the motorbike he told you it belongs to his uncle. A. That is so. Q. So, at that moment you became aware that the motorbike was a stolen one. A. Yes. I know it was a stolen motorbike. Q. Even though you become aware that the motorbike was a stolen one, you agreed to ride to Ashaiman because of the promise of GH¢3,000.00. A. Yes because of the promise of GH¢3,000.00, I drove the bike to Ashaiman. Q. I am putting it to you that on the 5th of March, 2023 you were part of those who went to complaints house to steal his motorbike. A. No. I was not part. Accused admitted he facilitated the movement of the motor bike to Ashiaman but had also denied any knowledge of the stolen motor bike in his statement to the Police and initially to PW2 as well. Accused in his defence stated that he later got to know that the motorbike was a stolen item. He admitted he agreed with Darkeh for a fee of GH3000 to ride the motorbike to Ashiaman. The court is limited in asking for further details because there was no proof by prosecution as to whether Accused took part in the substantive offence of stealing. During cross examination Q. How well do you know Darkeh. A. He is my school mate. 7 Q. Which of his uncles has a motorbike. A. I don’t know any of them. Q. How much was the cost of the motorbike that you alone was promised GH3000.00 for just riding to Ashiaman. A. I don’t know. Q. I put it to you that because you stole the motorbike with your friend that was why you were assured of GH3000.00 not for riding to Ashiaman. A. I did not steal any motor bike but later I got to know the motor bike was stolen. I only agreed to ride the bike to Ashiaman. In section 20 (3) (b) if the crime is committed, the abettor is liable as if he committed the crime. He receives the same punishment as the person who committed the crime. It is immaterial the fact that the person who supposedly committed the crime is held innocent. An abettor can be guilty but the person who committed the crime may be held innocent as was held in Eddie v The Republic. The Accused when he got to Ashiaman he gave the motorbike to Darkeh who sold to it out at Ashiaman. Meaning Darkeh can ride a motor bike. Why then did he engaged Accused at a fee to ride the motorbike to Ashiaman. Prosecution failed to prove the offence of stealing against the Accused but per the evidence before this court it successfully proved that Accused abetted the crime of stealing beyond reasonable doubt. MITIGATION BY COURT Accused is hereby convicted. After pleading for leniency, the court sentenced him to pay a fine of 200 penalty units in default serve a 12 months prison terms. 8 (SGD) H/W VICTORIA AKUA GHANSAH MAGISTRATE 9