Asamoah v S (CR/0337/2024) [2025] GHAHC 128 (28 January 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 28TH DAY OF JANUARY 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0337/2024 YAW ASAMOAH APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant/A1 herein, Yaw Appiah, John Chinedu and Charles Oduro @ Ayensu were charged with the offence of conspiracy to commit crime to wit robbery and robbery contrary to Sections 23(1) and 149 of the Criminal Offences Act 1960 (Act 29) and were arraigned before the Accra Circuit Court ‘10’ on the 6th of February 2020. The accused persons pleaded not guilty to the offences after same was read and explained in Twi for A1, A2 and A3 and in the English Language for the A4. The charge sheet was amended but the charges were maintained, and the plea of the accused persons retaken on the 24th of February 2020 in the same languages stated above. They pleaded not guilty to the charges. 1 After a full trial, the court found the A4 not guilty of the charges. The A1 the appellant herein, the A2 and A3 were found guilty and convicted and sentenced as follows: “A1, A2 and A3 are hereby sentenced as follows: Count 1- Each accused is sentenced to 15 years imprisonment with hard labour Count 2- Each accused is sentenced to 20 years imprisonment with hard labour. Sentence to run concurrently.” It is against this judgment that the appellant filed the instant petition of appeal on the 11th of June 2024 against the conviction and the sentence praying for the conviction and sentence of the A1/Appellant to be set aside. GROUNDS OF APPEAL The grounds of appeal filed are: a. That the conviction cannot be supported having regard to the evidence on record and same has occasioned a substantial miscarriage of justice. b. That the sentence is harsh under the circumstances and facts of the case FACTS OF THE CASE The facts of the case as given by the prosecution are that the complainants are Policemen stationed at the Regional Police Headquarters, Accra. Al, Yaw Asamoah is a Labourer and resides at Shiashie. A2, Yaw Appiah is a Phone Repairer, A3, John 2 Chinedu is a Trader, both reside at Madina and A4 Charles Oduro @ Ayensu is a Building Contractor and resides at Amasaman. On 30/01/2020, the Regional CID/Accra Operation Team received information that, the accused persons had robbed a taxi driver of his Toyota Vitz car with registration No. GW 9145-19 and were going to sell it to someone at Dansoman. The Police team trailed the said car and intercepted it at Dansoman Roundabout heading towards the Carl Reindolf Park. Al, A2 and A3 and one other identified later as Shortman tried to escape on seeing the Police, got out of the car and took to their heels. The Police managed to arrest Al, A2 and A3. Shortman who was driving the car was shot in the process in an attempt to arrest him. He was rushed to Police Hospital for treatment but was later pronounced dead. During interrogation, the accused persons mentioned Ayensu and Danso as those who gave the car to them at Teshie on 30/01/2020 at about 1:00 am to be given to a buyer at Dansoman. The accused persons failed to assist Police to arrest the said Ayensu and Danso. However, on 03/02/2020, A4 was arrested and he denied having handed over the car to A1, A2 and A3. A Police Wireless Message was sent to all Stations about the retrieval of the Toyota Vitz with registration No. GW 9145-19. On 08/02/2020, Eric Appiah, a taxi driver together with an investigator from Airport Police came to the Regional CID/Accra and Eric Appiah identified the car as his. Investigation revealed that, the four accused persons and the one deceased, on 29/01/2020 at about 11:30 pm hired the taxi driver to take them to Old Chinese Embassy, Airport Residential Area. When they got to a spot near the Old Chinese Embassy, the accused persons asked the driver to stop. They got down and Shortman pretended to be paying Eric Appiah the fare, but all of a sudden, one of them held the neck and they criminally assaulted him mercilessly, until he fell unconscious, tied him up with a rope and bolted with the taxi. After investigations, they were charged with the offences and brought before court. 3 The court gave orders for the filing of written submissions and the learned State Attorney filed her written submissions on the 15th of January 2025 while Counsel for the Appellant filed his written submissions on the 16th of January 2025. DETERMINATION OF THE GROUNDS OF APPEAL GROUND A: That the conviction cannot be supported having regard to the evidence on record and same has occasioned a substantial miscarriage of justice. It is an established fact and same held in a plethora of authorities that where a party files the omnibus ground of appeal, it is a call on the appellate court to evaluate the whole of the evidence to determine that issue. This is in consonance with the principle that an appeal is by way of re-hearing with the appellate court having all the powers of the trial court. The settled principle of law is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, the appellate court does not disturb its judgment. On the other hand, the judgment of the lower court attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A, Apaloo v R (1975) 1 GLR 156 An appeal is in effect a rehearing of the case and as such, an appellate Court is at liberty to sieve through the evidence on record with a view to determining whether the decision the appellant is appealing against can be supported or not. The appellate court is therefore in as much the same position as the trial Court. 4 I would therefore on that background proceed to analyze the entire evidence on record to determine if the evidence on record supports the conviction of the accused person by the trial Circuit Judge. I would therefore be considering the entire record of appeal as well as the written submissions of counsel for the appellant and the respondent. THE LAW ON CONSPIRACY TO COMMIT ROBBERY AND ITS APPLICATION TO THE EVIDENCE LED 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 Francis Yirenkyi vrs the Republic (Criminal Appeal No. J3/7/2015) the Supreme court stated among others that: “The effect of the Revised Edition Act, 1998 (Act 562) on the definition of the conspiracy came into focus. Whereas the old formulation in Section 23(1) of Act 29 required two or more persons to agree or act together for a common purpose, the new formulation requires them to agree to act together for a common purpose…and this new formulation in Section 23(1) of Act 29 is the law on conspiracy in Ghana…” His Lordship Dennis Dominic Adjei in his book Contemporary Criminal Law in Ghana at page 89 in deliberating on the definition of the offence of conspiracy to commit crime stated thus “At present, any charge of conspiracy must indicate that the persons who have been 5 charged with the offence agreed to act together with a common purpose for or in committing or abetting a criminal offence and does not matter whether there was or without a previous concert or deliberation to commit an offence or abet the criminal offence” 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: “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”. It is provided in Section 149 of Act 29/60 that: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment 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, 6 the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” Section 150 Act 29 defines Robbery as: “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 other person, or (b) if that person uses a 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 For the prosecution to succeed in a charge of robbery, they have to prove that in stealing the thing the accused persons herein used force or harm to the victim for the purpose of stealing and the accused persons had the intent to overcome the resistance of the victim or any other person to the stealing of the thing. In the case of Frimpong @ Iboman v Republic [2012] 1 SCGLR 297 His Lordship Dotse JSC stated thus: For the offence of conspiracy to rob, the prosecution must prove “. Agreement to commit the unlawful act of robbery – acting for a common design. There need not be any prior deliberation. ii. Intention on their part to commit that unlawful act – this was manifested in their common pursuit of the robbery agenda. 7 To prove their case, the PW2 the victim testified in his witness statement and stated that on the 29th of January 2020 at about 10:30pm, while working with his Toyota Vitz Cab with registration number GW 9145-19, two men stopped him and requested for his services from Lapaz near Abrantie Spot to the Old Chinese Embassy area. He stated that one of the men sat in the front passenger seat while the other sat at the back seat. He said that when he got to their destination at the Airport residential area, the one in front got down and pretended to be paying him the fare and while he was doing so the one in the back seat who was still seated in the car held his neck and two other persons came from the dark and mercilessly assaulted him till he fell unconscious. He said that when he gained consciousness, he detected that they had taken his car away and they had also tied his hands and legs with a nylon rope. He added that he managed to untie himself and reported to the Airport Police where he lodged a complaint. He identified the appellant as one of the men who emerged from the darkness. He testified that he was able to identify him because the car engine was on and the headlights were also on so he was able to identify him the next time he saw him. He also described the two men who were with him in the car as “That one of these two guys is short and slim, had dressed neatly and had with him a bag, that the second person was taller and had not dress neatly as the short person”. To further prove their case, the prosecution called the PW1 D/CPL Ofori-Afriyie Banahene stationed at the Regional Criminal Investigation Department, Charlie Swat Team Accra. He testified that on the 30th of January 2020, the Charlie Swat Team received a distress call to the effect that a Toyota Vitz car with registration No GW 9145- 19 had been snatched from the driver and was heading towards Dansoman. He stated 8 that he was part of the team that was detailed by the Regional Command to pursue and arrest the culprits. He added that the Police Team pursued the car and intercepted it at Dansoman Roundabout heading towards the Carl Reindolf Park. He said that the team signaled the driver to stop, but he failed to. He added that the culprits upon sensing danger abandoned the car and took to their heels, that the Police managed to arrest the appellant herein, the A2, A3 together with the vehicle. He stated further that in the course of the hot chase, one, of the men referred to as the short one was shot and subsequently died. PW3 the owner of the aforementioned vehicle testified that he is the owner of the said vehicle and gave it to the PW2 to work with and pay the amount involved and that it was on the 30th of January 2020, that he received a distress call from the driver PW2 that about 10:30pm the car was robbed from him. He tendered the DVLA Form A as exhibit A as the documents to the vehicle. The Police investigator PW4 testified that on the 30th of January 2020 the appellant and his accomplices were arrested by the Police Swat Team and brought to his office. He was informed by the Police Regional Operation Team that they had information that a gang of robbers had robbed a taxi driver of his Toyota Vitz vehicle with Registration No GW9145- 19 and were going to sell it to someone at Dansoman whereupon they trailed the said car and intercepted it at Dansoman. The appellant and the other accused persons were identified as occupants of the said vehicle. He said that he sent a Police Wireless Message to all stations about the retrieval of the said vehicle and on the 6th of February 2020, the PW2 together with an investigator from the Airport Police Station and PW3 came and identified the said vehicle as his and the PW2 identified the accused persons as those who attacked him and took the car from him. 9 From the record, there is evidence that for the purposes of stealing the vehicle, four men assaulted the PW2 by holding his neck and assaulted him till he was unconscious. They then proceeded to tie his hands and legs with a nylon rope thereby causing harm to him all for the purpose of stealing and they had the intent to overcome the resistance of the victim to the stealing of the thing. Per Section 1 of the Criminal Offence Act 1960 Act 29, Harm in law, means “any bodily hurt, disease, whether permanent or temporary” According to the PW2, he fell unconscious and in that state, his vehicle was taken away. Per the evidence of the prosecution, the appellant herein was one of those men who robbed the vehicle. The PW2 the driver of the vehicle identified A1/Appellant as one of the men who emerged from the darkness and together with the others assaulted him and robbed the vehicle from him. PW1 the officer from the Swat Team also testified that the appellant herein was one of the occupants of the vehicle some few hours after same was robbed and he was arrested. In a criminal trial the prosecution is obliged to lead evidence to identify the accused as the person who committed the crime for which he/she is charged. Identification may take several forms. It may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics such as age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history including identities of mental qualities, habits and disposition. See IGNATIUS HOWE V THE REPUBLIC, CRIMINAL APPEAL, No J3/3/2013, 22ND MAY 2014 10 In the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, it was held that where the identity of the accused person was in issue there can be no better proof of his identity than the evidence of a witness who swore to have seen the accused committing the offence. Also, in Dogbe v R (1975) GLR 118, it was established that in criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct or circumstantial evidence and other relevant facts from which the identity of the accused might be inferred by the court. Further on the issue of identification in criminal trials, it was held in the case of IBRAHIM RAZAK & ANOR v. THE REPUBLIC [25/04/2012] CRIMINAL APPEAL NO. J3/6/2011 “In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person(s) who committed it. That was of a very crucial importance for a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal. Thus where the ground of appeal bothers on mistaken identity, a trial or appellate court ought to carefully examine the evidence on it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused (appellants in this appeal), the conditions in which the observation was made, whether or not the area or vicinity was lit to make the observation possible, the distance between the witnesses and the appellants, or whether or not the description by the prosecution witnesses agreed with that of the appellant(s). On this see the guidelines by Lord Widgery CJ in R v Turnbull [1977] QB 224. The identification may take various forms. In 'Phipson on Evidence' (10th ed.) p 170 paragraph 1381, it is stated: 'When a party's identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by 11 similarity or dissimilarity of personal characteristics: e.g. age, height, size, hair, complexion, voice, hand-writing, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history.' see Adu Boahene v The Republic [1972] 1 GLR 70 at 74. The PW2 the victim that is the driver was able to identify the appellant and his accomplices as those who robbed him that night. The evidence is also that the appellant herein who emerged from the darkness into the light to aid the others in the robbery was clearly seen by the victim and it was per the evidence also not for a brief moment but a considerable moment of time as the appellant and his accomplices took time to assault him till he fell unconscious. That being the evidence on record, then per the law, the holding of an identification parade was not imperative. Indeed, identification parade has never been regarded as even the best form of identification as same is even resorted to as the last resort where for instance, the identifying witness saw the accused only for the first time for a brief period at the commission of the offence. In IBRAHIM RAZAK & ANOR v. THE REPUBLIC supra, it was held that “Thus, it is fair and reasonable to say that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes. Another may be by proof of personal characteristics or peculiarities like the height of the person given by the oral evidence by prosecution witnesses on oath in court.” 12 The prosecution having led this evidence on record, then even though there is no burden on an accused person to prove his innocence, the law deems it appropriate that he leads evidence sufficient to create a reasonable doubt in the mind of the court. The law is that the only burden on the accused person(s) whenever the law requires that he makes his defence is to produce sufficient evidence so that on the totality of the evidence produced, a reasonable mind could have a reasonable doubt as to his guilt. This is statutorily provided in Section 11(2) and 13(2) of the Evidence Act 1975 NRCD 323 to the effect that: “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 so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt” The case of the Appellant at the trial was that even though they were found in possession of the vehicle around Dansoman on the 30th of January 2020, they had no hand in the robbery. For instance, the appellant herein testified at the trial essentially that a friend of his wanted a vehicle to buy and he contacted one Ben who gave him the number of one Ayensu who was to bring the vehicle from Togo. The said person who he described as a police officer called Banahene asked that they meet him at Dansoman when he gets the vehicle. He continued that the said Ayensu asked him to meet him at Teshie and he suggested Circle but when he got to Circle Ayensu had already gone past Circle and indicated that he was at Dansoman. He therefore asked A2 who is his friend to go with him. He said that when they got to Dansoman he called the said Banahene to find out his location not knowing that the police were in a hideout waiting for them and immediately they got there, he was arrested with the allegation that they had connived to sell 13 someone’s vehicle. He added that when they were approaching where the person had parked the car, the people saw the police and tried to speed up to escape when the police shot one of them. When matters were fresh in the mind of the appellant, he gave a completely different statement about the happenings of the night of the day of the incident to the police. In his statement dated the 30th of January 2020, he told the police that one Ayensu brought the vehicle from Togo and asked him to get him a buyer. He said that he met the other accused persons and met the said Ayensu at Teshie for the vehicle. He said that when they got the vehicle they decided to go and give the car to a certain man at Dansoman. He added that they were going to sell the vehicle at the price of GH¢12,000 and when they got to Dansoman roundabout at about 3am he called the said man who was to buy the car and the said man asked them to park the car and meet him and it was while they were going to meet him that the police intercepted them and got them arrested and “shortman” got shot by the police. Justaxposing the story of the accused person at the police station with the one he gave in court at the trial, it is not lost on anyone that he was being untruthful at the trial and trying all means not to place himself anywhere near the vehicle the subject matter of the robbery on the day of the incident. The law is that a witness whose evidence on oath is contradictory of a previous statement given by him whether sworn or unsworn puts his credibility in doubt unless he is able to offer a reasonable explanation for the contradictions or inconsistencies. 14 Further to that, where the victim PW2 has identified him as being one of the men who assaulted him and PW1 also testifying that he was one of the men who was found in the vehicle which had been reported robbed some hours after it was stolen from the victim, then he needs to give an explanation to the court as to how he came to be in possession of the vehicle. Also having given the name of one Ayensu as the one who gave him the vehicle and the person he identified as Ayensu that is the A4 having denied giving him the vehicle and the notice of alibi investigated which indeed showed that the said Ayensu he identified having given the vehicle to him was not even in Accra on the said date, then he needed to lead more evidence in support of his defence. Section 13(2) of NRCD 323 provides that “Except as provided in Section 15(3) , in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt requires only that the accused raises a reasonable doubt as to his guilt” In the case of Commissioner of Police vrs Isaac Antwi [1961] GLR 408 Korsah CJ stated that: “the fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” 15 Similarly in the case of Isa vrs The Republic (2003-2005) 1 GLR 792 HOLDING (2) it was held that “Taken together, the burden of persuasion and the burden of producing evidence as defined in sections 10 and 11 of the Evidence Decree, 1975 (NRCD 323), respectively were the components of the burden of proof. Thus, although an accused person was not required to prove his innocence, during the course of the trial, he might run a risk of non-production of evidence or non-persuasion to the required degree of belief or both, particularly when he was called upon to mount a defence.” In the case of Tsikata v The Republic [2003-2005] 1 GLR 296 at holding one, the court held that “…As provided in section 11(2) and (3) of the Evidence Decree, 1975 (NRCD 323) on the part of the prosecution, the burden of producing evidence required the production of sufficient evidence so that on all the evidence, a reasonable mind could find the existence of facts beyond reasonable doubt, whilst on the part of the accused person, the burden of producing evidence required him to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to his guilt”. The appellant who indicated at the trial that he was in constant communication with the said person who gave him the vehicle could not produce the said person who gave him the vehicle. That is why the trial judge in her judgment noted that the appellant failed to lead the police to the said Ayensu who he claimed lives at Lapaz and he also did not call the said Ayensu to testify on his behalf especially having found himself in hot waters. 16 The evidence on record is abundantly clear that the appellant, A2, and A3 agreed and acted together to steal the vehicle of the PW2 and they succeeded in doing so after having assaulted him. I must note that the evidence on how the Swat team had wind of the robbery was scanty especially when the PW2 indicated that he was tied up and it was somewhere 5am that he was able to report the matter to the police. The lacuna in that piece of evidence does not detract from the fact that the prosecution was successful in leading evidence that shows that the appellant and his accomplices committed the act of robbery. In saying so, it is not lost on the court that there are many instances that by standers or persons watching crime scene from far off have called the police giving them details or sometimes in cases such as this one that the appellant and his accomplices planned to sell off the vehicle, a person may pose as a buyer and tip off the police. The most important thing is that there should be evidence on record to support the charges against the appellant which I have found to be present. With the above, then the first ground of appeal fails. With regards to sentencing, the law provides that where two or more persons are convicted of the offence of conspiracy to commit an offence and the offence is committed, they are punished for that criminal offence but where the criminal offence is not committed, they are punished as if each had abetted that criminal offence. Section 24(1) of Act 29 provides that: “(1) Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had 17 abetted that criminal offence.” Robbery on the other hand is a first degree felony and the punishment is prescribed in the Criminal (Amendment) Act, 2003 (Act 646). The minimum sentence for the offence is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. It is provided in Section 149 of Act 29/60 that: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment 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 206 (3) defines what an offensive weapon is: “For the purposes of this section (a) “Offensive missile” includes a stone, or a brick likely to cause harm if thrown (b) “Offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for that use by that person”. Per the above, then the appellant was liable to a sentence of 10 years and above. At the trial, the prosecution informed the court that the A1 had already been convicted by the Accra Circuit Court 2 but they did not provide any evidence of that. The record also shows that the appellant was admitted to bail but could not meet the bail conditions and as such remained in custody till the end of the trial. I have also noted that the vehicle was retrieved and handed over to the victim. 18 Considering the mitigating factors above, I set aside the sentence of 20 years for the offence of robbery and substitute same with fifteen (15) years IHL. The sentence of 15 years IHL for the offence of conspiracy to commit the offence of robbery is hereby affirmed. Sentence will run concurrently. The sentence of fifteen (15) years IHL will commence on the 11th of November 2021 when the appellant was sentenced. PARTIES: APPELLANT PRESENT COUNSEL: MOSES ATIIGA FOR THE APPELLANT PRESENT JENNIFER AFRIYIE YENTUMI FOR THE REPUBLIC/RESPONDENT PRESENT (SGD) MARY M.E YANZUH J. HIGH COURT JUDGE 19 20