REPUBLIC VRS OWUSU (B7/142/2024) [2025] GHAHC 53 (10 February 2025)

1 IN THE CIRCUIT COURT, JUASO HELD ON MONDAY, THE 10TH DAY OF FEBRUARY, 2025, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. CASE: B7/142/2024 THE REPUBLIC VRS OWUSU GIDEON @ FUFUO JUDGEMENT: The accused person herein has been charged with one count of Robbery Contrary to Section 149 of the Criminal Offences Act 1960, Act 29 and one count of Threat of Death Contrary to Section 75 of Act 29. The combined effect of the particulars of the offences are that on the 15th day of April 2024 at Dwease in the Ashanti Circuit and within the jurisdiction of this court the accused person used force to snatch the sum of Fifty Ghana Cedis (GHS 50.00) from Bismark Asiamah (PW1 herein) and when confronted with the issue, he threatened Amoakohene Emmanuel and Fayie Richard (PW2 and PW3 herein) with a cutlass with intent to put them in fear of death. The accused person pleaded not guilty to both counts so prosecution assumed the duty to prove his guilt. In evaluating the evidence led in this case, it is important to bring to fore the burden that the prosecution bears in this trial. The fundamental rule in our criminal justice system as stated in the 1992 Constitution, Article 19 (2) (c) reads: 2 “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic (2012) 41 MLRG 53 at 61-62 per Akuffo JSC as follows: “ …. The citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt.” The above clause means that the accused person herein charged is not guilty of the offence right from the time of his arrest including the time when he is arraigned before the court. It is only after the accused person himself has pleaded guilty that he may be pronounced guilty. However, if the accused person pleads not guilty to the offence, his accuser has to prove that he is guilty. In the instant case the accused person has pleaded not guilty therefore the onus of proving his guilt is on the prosecution. See: Essentials of Ghana Law of Evidence by Justice Brobbey at pages 45-55. Sections 13 (1) and 22 of the Evidence Act, 1975 (NRCD 323) place the burden on the prosecution to prove his/her case beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975 (NRCD 323) provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. Section 22 of the Evidence Act, 1975 (NRCD 323) also provides: 3 “22. in a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” See: Abakah Vrs The Republic (2010) 28 MLRG 111 CA Prosecution has a duty to prove the guilt of the accused person charged beyond reasonable doubt. The burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused person will be called upon to give his side of the story. See: Amartey Vrs The State (1964) GLR 256. Gligah & Another Vrs The Republic (2010) SCGLR 870. Dexter Johnson Vrs The Republic (2011) SCGLR 601. The dictum of Lord Denning in the case of Miller Vrs Minister of Pensions (1974) 2 ALLER 372 at 373 is relevant to our understanding of the phrase “beyond reasonable doubt”. According to Lord Denning: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” In the same case “proof beyond reasonable doubt” was explained as follows: 4 “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” See also: Tetteh vrs The Republic (2001-2002) SCGLR 854 Dexter Johnson vrs The Republic (2011) 2 SCGLR 601 Francis Yirenkyi vrs The Republic (2017-2020) 1 SCGLR 433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 delivered on the 21st day of July 2021 This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof to the hilt. In Abdulai Fuseini vrs The Republic Criminal Appeal No. J3/02/2016 6th June, 2018, the Supreme Court reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means proof of the essential ingredients of the offence charged and not mathematical proof”. It is the duty of the prosecution to prove each and every ingredient of the offence, which is a precondition to securing conviction; unless the same statute places a particular burden on the accused person. The accused person is not under any obligation to prove his innocence. It is only when the defence is not reasonable probable that the accused person would be convicted. 5 In C.O.P Vrs Antwi (1961) GLR 408 SC it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly. The fact that the prosecution has the burden to prove the case beyond reasonable doubt does not change according to the status or disposition of either the accused person or the complainant involved neither do they change according to the charges preferred nor the public perception, concern or reaction in respect of the accused person in question. This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935) AC 462 at 481-482 in the following words: “No matter what the charges or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of our common law of England and no attempt to whittle it down can be entertained.” The import of all the above authorities, statutes and case law is that, it is the prosecution that is to prove the guilt of the accused person. The accused person is not to prove his innocence. In fact, he should not even show up his hands until the need arises. All that the accused person is required to do when invited to open his defence is to raise reasonable doubts regarding his guilt. It is only when the defence raised by the accused person is not one that can exonerate him that he would be convicted. See: Atsu Vrs The Republic (1968) GLR 176 CA. Tsatsu Tsikata v The Republic (2003-2004) SCGLR 1068. 6 Proof by the prosecution can be direct or indirect. It is direct when an accused person is caught in the act or has confessed to the commission of the crime. Thus, where an accused person was not seen committing the offence, his guilt can be proved by inference from surrounding circumstances that indeed the accused person committed the said offence. This type of evidence derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See: Logan Vrs Lavericke (2007-2008) SCGLR 76. Dexter Johnson Vrs The Republic (2011) 2 SCGLR 601 @ 605. State Vrs Anani Fiadzo (1961) GLR 416 SC. Kamil Vrs The Republic (2010) 30 GMJ 1 CA. Tamaklow Vrs The Republic (2000) SCGLR 1 SC. Bosso Vrs The Republic (2009) SCGLR 470. In Kingsley Amankwah (a.k.a. Spider) vrs The Republic supra, the Supreme Court referred to Frimpong @ Iboman vrs the Republic and held that where direct evidence was lacking, but there were bits and pieces of evidence connecting the appellant to his deep involvement in committing the offences with which he had been charged, the court must not shy away from using such strong circumstantial evidence. It must be noted that the standard of proof required in establishing whether or not there is a prima facie case against the accused person is not at the same level of proof beyond reasonable doubt as required at the end of the case. See: Tsatsu Tsikata Vrs The Republic (2003-2004) SCGLR 1068 at 1094-1095. It would therefore be wrong to presume the guilt of an accused person merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie 7 evidence from which the guilt of the accused may be presumed and which therefore calls for explanation by the accused. See: The State Vrs Sowah & Essel (1961) 2GLR 743 at 745 Prosecution in this case called four witnesses in support of his case. The principal witness for the prosecution was Bismarck Asiamah as prosecution’s first witness (PW1), Amoakohene Emmanuel as prosecution’s second witness (PW2), Feyie Richard as prosecution’s third witness (PW3) and No. 51985 CPL Victor Kodua the investigator in this case as prosecution’s fourth witness (PW4). The prosecution also tendered in evidence his exhibits for the case. According to PW1, on the 15th day of April 2024, while selling his loaves of bread, the accused approached and asked him for a loaf of bread for free but he told him that he could not give it to him as they had been counted. The accused forcibly dipped his hand in his pocket, removed an amount of Fifty Ghana Cedis (GHS 50.00) and threatened to harm him if he followed him. Out of fear he decided not to follow him and rather reported the matter to the police. He was subsequently informed that the accused had been arrested so he went to the Police Station to identify him and led the police to the scene of crime. It is the evidence of PW2 (a member of the Unit Committee of Dwease) that after they had been informed of the incident, they spotted the accused and confronted him with the issue. The accused became furious, pulled out a machete that he had concealed in his trousers and threatened to kill anyone who attempted to arrest him. However, the accused was overpowered and arrested together with the machete to the Police Station. Thereafter the members of the Committee led the police to the scene of crime where they were threatened. 8 PW3 corroborated the evidence of PW2. According to the investigator (PW4) herein, he interrogated the accused and the accused admitted the offence of robbery and handed over an amount of Fifty Ghana Cedis (GHS 50.00) being the money he took from PW1 which was tendered in evidence. He took an Investigation Cautioned Statement and a Further Investigation Cautioned Statement which he tendered in evidence. He went on to say that he visited the scene of crime where the accused took the Fifty Ghana Cedis from PW1 and both the accused and PW1 pointed to a spot in front of PW2’s shop as the place where the incident occurred. He also tendered in evidence the Charge Statement of the accused as well as the Machete. The law is settled that at the close of the prosecution’s case the court is to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only when the court is satisfied that all the ingredients have been established by the prosecution that the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See: Kwabina Amaning alias Tagor & anor. vrs The Republic (2009) 23 MLRG 78 CA. A prima facie case is established against an accused when the evidence led by the prosecution is on its face or first appearance without more one that could lead to conviction if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if they hope to secure conviction of the person charged. A person is pronounced guilty only when the evidence led by the prosecution in respect of the charges satisfies the standard of proof required by law and that is proof beyond reasonable doubt. 9 The accused person herein has been charged with one count of Robbery Contrary to Section 149 of the Criminal Offences Act 1960, Act 29 and one count of Threat of Death Contrary to Section 75 of Act 29. Section 149 as amended by the Criminal Code (Amendment) Act 2003, (Act 646) provides “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or on indictment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” Section 150 of Act 29 provides “A person who steals a thing commits robbery (a) If in, and for the purpose of stealing the thing, that person uses force or causes harm to any person, or (b) If that person uses threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing. Thus, for the offence of robbery, it is important for prosecution to establish the following ingredients: a. That the accused person stole something from the victim of the robbery of which he is not the owner. b. That in stealing the accused person used force, harm or threat of any criminal assault on the victim. c. That the intention of doing so was to prevent or overcome the resistance. d. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense. e. The thing stolen must be in the presence of the person threatened. 10 See: Kwaku Frimpong aka Iboman vrs The Republic (2012) GHASC 3 (18th January 2012) Bosso vrs Republic (2009) SCGLR 420. Section 75 provides “A person who threatens any other person with death, with intent to put that person in fear of death, commits a second-degree felony.” In respect of threat of death, the prosecution must establish beyond reasonable doubt the following: 1. That there is evidence of threat to kill issued by the accused person against the life of the complainant. 2. That the accused person intended to put the complainant in fear of death. In the offence of threat of death the actus reus will consists in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will also consist in the realization by the offender that his threats will produce that expectation. See: Behome vrs The Republic (1979) GLR 112-128@123. “Threat has been defined under Section 17 of ACT 29 to include any threat of criminal force or harm. The law under Section 17(3) of Act 29 notes that it is immaterial whether a threat would be executed by the person issuing it or not. The determining factor is whether the victim of the crime feared death when the threat was communicated to him or her or was brought to his or her notice. In the case of R v McCraw and the recent case of R v O’ Brien, the Canadian Supreme Court in both cases laid down two ingredients of threat of death; they are;the utterance or conveyance by the accused person was a threat 11 of death, and the accused has an intent to threaten. To determine whether the words uttered constitute a threat of death, the court is required to look at the plain and ordinary meaning of the words uttered. Where the ordinary meaning of the word uttered constituted threat of death, the court is not required to look for the secondary meaning or any less obvious meaning. The test that is used to determine whether the words spoken or written by the accused constitute threat of death is how a reasonable person will perceive it. The test is an objective one and should be seen from the point of view of a hypothetical reasonable man. Stated differently, the test is how a reasonable person would consider the spoken or written words or sign language used by the accused within the context and the circumstances in which they were uttered. The prosecution in proving the offence of threat of death is not required to prove that the words uttered were brought to the notice of the intended recipient or if he had been intimidated by it or taken it seriously. Mens rea is proved where it is proved that the accused intended the words uttered to intimidate or to be taken seriously.” See: Contemporary Criminal Law in Ghana by Justice Dennis Dominic Adjei @ page 186. It is the evidence of PW1 that the accused person forcibly dipped his hand in his pocket and removed an amount of Fifty Ghana Cedis (GH 50.00) and threatened to harm him if he followed him for the money so out of fear, he could not approach the accused for the money and therefore reported the incident to the Police. PW2 and PW3 stated that when the members of the Unit Committee enquired about the incident from the accused, he became furious and threatened them with a machete that if they tried to arrest him, he would kill them. PW4 tendered in evidence the machete, Fifty Ghana Cedis Note, the Cautioned, Further Cautioned and Charged Statements of the accused person in evidence. In the Cautioned Statement of the accused he gave his name as Mustafa Mohammed and he stated that PW1 indeed told him that the bread had been counted so 12 he could not give him any for free but thereafter PW1’s Fifty Ghana Cedis fell down and he picked it and told him that he was going to use it to buy food if he will not give him one of the breads. In his Further Cautioned Statement, he then gave his name as Gideon Owusu and stated that he does not know where the members of the Unit Committee got the cutlass from. According to PW4, the accused admitted the offence of robbery and handed over the Fifty Ghana Cedis note to him. However, the accused failed to cross examine PW4 on his evidence. From the foregoing, a prima facie case was established against the accused person and he was asked to open his defence. As I stated earlier, all that the accused person is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. It is only when the doubt raised by the accused person is not one that can exonerate him that he would be convicted. According to the accused person, he boarded a vehicle from Konongo to Dwease on the 26th day of September, 2023 and when he got to the station, he heard a noise emanating from the place and a certain man appeared and arrested him claiming that he had stolen an amount of Fifty Ghana Cedis (GHS 50.00) from someone and thereafter he sent him to the Police Station. As stated above the accused person admitted in his cautioned statement that he took the said amount of money from PW1 and the cautioned statement was tendered in evidence without any objection from him and he also failed to cross examine the investigator on his evidence. The accused does not deny that he was arrested by PW2 and PW3 but not the police. From his own showing he was sent straight to the Police Station when he was arrested therefore his evidence that PW2 was the one who brought the cutlass from his house is only an afterthought. I am convinced that the accused indeed had the said cutlass on him which he used to threaten PW2 and PW3 in their attempt to arrest him. 13 PW4 is the investigator in this case who conducted enquiries into the matter. However, the accused person failed to cross examine him living his evidence to stand uncontroverted. The denial of the offences by the accused is only an afterthought calculated at evading justice. The accused has not raised doubts in the case for the prosecution. He is thus found guilty of the offences and accordingly convicted. I have listened to the prayers of prosecution and the convict. I take into consideration that the convict is a first-time offender. I also take into consideration that the convict has been in custody for a period of Nine (9) months and same is hereby deducted from the sentence that follows. The convict is therefore sentenced to Nine Years Imprisonment IHL on count one and count two to run concurrently. SGD. NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) COUNSEL D/C/ INSPECTOR BENJAMIN AINOO FOR PROSECUTION RICHARD ADU DARKO FOR ACCUSED PERSON REFERENCES 14 OKEKE VRS THE REPUBLIC (2012) 41 MLRG 53 ABAKAH VRS THE REPUBLIC (2010) MLRG 111 CA AMARTEY VRS THE STATE (1964) GLR 256. GLIGAH & ANOTHER VRS THE REPUBLIC (2010 SCGLR 870. DEXTER JOHNSON VRS THE REPUBLIC (2011) SCGLR 601. MILLER VRS MINISTER OF PENSIONS (1974) 2 ALL ER 372 TETTEH VRS THE REPUBLIC (2001-2002) SCGLR 854 FRANCIS YIRENKYI VRS THE REPUBLIC (2017-2020) 1 SCGLR 433 KINGSLEY AMANKWAH (A.K.A. SPIDER) VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/04/2019 DELIVERED ON THE 21ST DAY OF JULY 2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.P VRS ANTWI (1961) GLR 408 SC WOOLMINGTON VRS D.P.P (1935) AC 462 AT 481-482 HL ATSU VRS THE REPUBLIC (1968) GLR 176 CA. TSATSU TSIKATA VRS THE REPUBLIC (2003-2004) SCGLR 1068 LOGAN VRS LAVERICKE (2007-2008) SCGLR 76. STATE VRS ANANI FIADZO (1961) GLR 416 SC. KAMIL VRS THE REPUBLIC (2010) 30 GMJ 1 CA. TAMAKLOW VRS THE REPUBLIC (2000) SCGLR 1 SC. BOSSO VRS THE REPUBLIC (2009) SCGLR 470. THE STATE VRS SOWAH & ESSEL (1961) 2GLR 743 AT 745 KWABINA AMANING ALIAS TAGOR & ANOR. VRS THE REPUBLIC (2009) 23 MLRG 78 CA. KWAKU FRIMPONG AKA IBOMAN VRS THE REPUBLIC (2012) GHASC 3 (18TH JANUARY 2012) 15 BEHOME VRS THE REPUBLIC (1979) GLR 112-128 BOOKS ESSENTIALS OF GHANA LAW OF EVIDENCE BY JUSTICE BROBBEY CONTEMPORARY CRIMINAL LAW IN GHANA BY JUSTICE DENNIS DOMINIC ADJEI.