KLUTSEY VRS. REPUBLIC (CR/0303/2023) [2024] GHAHC 262 (16 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON TUESDAY, 16TH DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT CASE NO.: CR/0303/2023 RICHARD KLUTSEY VRS. THE REPUBLIC ===================================================================== JUDGMENT ===================================================================== This is a judgment pursuant to a Petition of Appeal filed on the 6th July 2023 on behalf of the above-named Appellant pursuant to leave granted to file appeal out of time. The Appeal is against conviction and sentence for the offences of Conspiracy to commit, namely, Robbery and Robbery. The Appellant was sentenced to fifteen (15) years IHL on both counts to run concurrently. He was sentenced by the Circuit Court Accra then presided over by Her Honour Rosemary Baah Tosu (Mrs.) (as she then was). The grounds of appeal were stated as follows: Page 1 of 35 1. The Judge erred in convicting the Appellant for Conspiracy to commit crime, to wit Robbery on the uncorroborated evidence of a single witness. 2. The Appellant raised reasonable doubts on the charge of Conspiracy to Rob and Robbery. 3. The Prosecution failed to investigate the Plea of Alibi put up by the Appellant 4. The sentence of fifteen (15) years IHL was harsh The Appellant therefore sought for the following reliefs: 1. That the said conviction on Conspiracy to commit crime, to wit Robbery to be set aside 2. The sentence of fifteen (15) years IHL to be set aside. Written Submissions were filed on behalf of both the Convict/Appellant and the Republic/Respondent on the 17th May 2024 for the determination of the Appeal. Both submissions have been helpful and consideration have been given to them in the determination of this appeal. THE CHARGE AND ITS ELEMENTS From the records before me, the charges the Appellant faced were the charges of Robbery and Conspiracy to commit crime. Robbery as an offence is created under Section 149 of the Criminal and Other Offences Act, 1960 (Act 29) as follows: “A person who commits Robbery, commits a first-degree felony” This Section as amended by the Criminal Offences (Amendment Act) 1993, Act 2003 reads as follows: “(1) whoever commits Robbery is guilty of an offence and shall be liable upon conviction either summarily or on indictment to imprisonment for a term of not less than ten (10) years and where the offense is committed by the use of an offensive weapon or missile, Page 2 of 35 the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years.” Meanwhile, the offence of Robbery is defined under Section 150 of Act 29 as follows: “A person who steals a thing commits Robbery 1. if in and for the purpose of stealing the thing, that person uses force or causes harm to any other person or 2. If that person uses a threat or criminal assault or harm to any other person with intent to prevent or overcome the resistance of that other person to the stealing of the thing.” A reading of the definition of Robbery therefore indicates that the offence is dependent on the offence of stealing. For it is in stealing a thing, that the offence of Robbery can be committed. The elements of the offence of Robbery, therefore have to be partly founded under the offence of stealing. Section 125 of Act 29 defines the offence of stealing as follows: “A person steals a thing if he dishonestly appropriates a thing of which he is not the owner.” Section 122 (2) of Act 29 further provides clarity to the offence by explaining the word appropriation as follows: “Any moving, taking, obtaining, carrying away or dealing with a thing with intent that some person may be deprived of the benefit, or of his ownership or of the benefit of his right or interest in the thing, or in the value of proceed or any part thereof.” See the case of JOHN COBBINA VS. THE REPUBLIC, CRIM. APP. NO 13/07/2019, DATED 19TH FEBRUARY 2020 CA Page 3 of 35 The elements therefore, that the Prosecution in a criminal charge of Robbery as in this case is expected to prove beyond reasonable doubt are: 1. That the Appellant herein (and his accomplices some of whom were at large) did appropriate a thing or things on the day of the incident. 2. That in appropriating the thing or things they used force, caused harm, or used threat of criminal assault on their victims. 3. That they used such force, harm, or threat in order to overcome the resistance of those persons or person to the appropriation of the thing or things 4. That the appropriation was dishonest such that it aimed to deprive the owner or anyone with interest, benefit or right of claim to the thing appropriated from enjoying it. On the offence of Conspiracy as created under Section 23 of Act 29, it is stated as follows: “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 or abet the criminal offence.” From this definition, the Prosecution must not only prove the element of acting together, but also the element of agreement to act with a common purpose by conspirators to a crime. However, the Prosecution need not prove whether there was a previous concert or deliberation. From the definition of Conspiracy, the following ingredients must be proved: There must be two or more persons 1. The persons must agree to act together, with or without any previous concert or deliberation 2. That they had a common purpose 3. That the common purpose must be either to commit or abet that crime Page 4 of 35 See cases such as FAISAL IBRAHIM @ LEBEZEBE VS. THE REPUBLIC (2017) JELR 65522 CA The Courts have over the years held also that it is almost impossible to prove prior agreement or acting together by conspirators, and have always inferred conspiracy from the mere act of having actually committed the together with a common purpose. See cases such as THE REPUBLIC VS. HAJIA HAWA NINCHEMA & 6 ORS (2021) JELR 109057 HC by Afia Serwaa Asare-Botwe J (as she then was), GEORGE AYITTEY VS. THE REPUBLIC (2021) JELR 92054 CA The learned Jurist and Justice of the Supreme Court, Prof. H.J.A.N Mensa-Bonsu in her book THE GENERAL PART OF CRIMINAL LAW - A GHANAIAN CASEBOOK (VOL 2), explained the offence further when she stated at page 393 thus: “the agreement may be referable to a particular time or place, as when a meeting is organized (Azametsi) it may also take place at different times and places, as when a plan is discussed with several people. There may also be occasions when there is no such previous deliberations at all although the parties are acting in concert. In such situations, it is sufficient for the purposes of this crime that the alleged conspirators have been found acting together for a common unlawful purpose (Kambey). Thus as long as it can be established that the alleged conspirators were united in their intentions to achieve an unlawful purpose, they would be guilty of conspiracy ‘’ In the case of FRANCIS BOAFO @ CUDJOE VS. THE REPUBLIC (2017) JELR 63751 CA, it has been held that: “It is irrelevant whether he never actually met the others physically or whether plans for the commission of the offence had already been set in motion when he became involved. What is important is proof that he and the others came to an agreement to act together to achieve the purpose of executing the robbery in question” Page 5 of 35 From the above explanations and decisions on the offence, it is evident that notwithstanding the new definition of the offence of conspiracy with a requirement of an agreement to act together, it is enough, if the Prosecution is able to prove an acting together with a common purpose, which will also constitute an agreement. APPEAL BY WAY OF REHEARING One of the clearly settled principles of law, which cannot be controverted, is that an Appeal is by way of rehearing. This means that the Appellate Court or body is to examine the entire proceedings or decision that is the subject of the appeal to determine whether the decision can be supported in law or in fact or both. Numerous case law support the principle that is relevant to both civil and criminal appeals. The cases include: TUAKWA VS. BOSOM (2001-2002) SCGLR 61 OPPONG VS. ANERFI (2011) 1 SCGLR 556 KWA KAKRABA VS. KWESI BO (2012) 2 SCGLR 834 DEXTER JOHNSON VS. THE REPUBLIC (2011) SCGLR 601 NAGODE VS. THE REPUBLIC (2011) SCGLR 975 In the case of AMANKWAH VS. THE REPUBLIC (J3/04/2019) (2021) GHASC 27 DATED 21ST JULY 2021, the Supreme Court through Dotse JSC explained the concept as pertains to criminal trials as follows: “…applying the above principle in a criminal appeal might result in the Court embarking upon the following, to analyze the entire Record of Appeal and this must include the Charge Sheet, the Bill of Indictment (where applicable), the witness Page 6 of 35 statements of all witnesses, all documents and exhibits tendered and relied on during the trial, as well as the evidence during testimony and cross examination. To satisfy itself that the Prosecution has succeeded in establishing the key ingredients of the offence charged against the Appellant beyond reasonable doubt. And that the entire trial conformed to settled procedures under the Criminal and Other Offences Procedure Act, (Act 30) and that the acceptable rules of evidence under the Evidence Act (NRCD 323) have been complied with including the Practice Directions issued following the decision in the REPUBLIC VS. BAFFFOE. A duty to evaluate the application of the facts, the law and the evidence at the trial vis-a-vis the decision of the trial Court.” APPEAL ALLOWED ONLY ON SUBSTANTIAL MISCARRIAGE OF JUSTICE By way of statutes, the Courts Act (NRCD 323), regulates the conduct of criminal appeals by its Section 31 when it states: “(1) subject to subsection (2) of this section, an Appellate Court in hearing any appeal before it in a criminal case, shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case, shall dismiss the appeal. (2) The Court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or the point raised in the appeal consists of a technicality or procedural error or a defect in the charge sheet or indictment but there is evidence to support the offence alleged in the statement of offence in the charge or indictment or Page 7 of 35 any other offence of which the caused could have been convicted upon that charge or indictment” THE LAW AND BURDEN ON PROSECUTION The requirement of the law per Article 19 (2) (c) of the 1992 Constitution is that a person charged with a criminal offence is presumed innocent until he is proved guilty or he pleads guilty. The Article reads: “(2) A person charged with a criminal offence shall - (c) be presumed to be innocent until he is proved or has pleaded guilty” The Burden of Proof in a criminal action therefore totally rests on the Prosecution. Section 11 (2) of the Evidence Act, 1975 (NRCD 323) provides that for the Prosecution to succeed in discharging that burden of proof, it must produce evidence as to facts that are essential to the guilt of the Accused person in such a manner that the totality of the evidence would tell a reasonable mind that those facts exist beyond reasonable doubt. Section 11 (2) of NRCD 323 reads: “In a criminal action, the burden of producing evidence, when it is on the Prosecution as to a fact which is essential to guilt, requires the Prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.” Page 8 of 35 Relying on these principles and case law on criminal appeals, I proceed to analyze the present appeal. THE FACTS The facts presented by the Prosecution indicate that the Appellant who was A1 was a taxi driver with his co-accused being a computer engineer, an unemployed and two (2) others who were at large. On the 21st December 2019, at about 9pm, two (2) ladies, Patricia and Sylvia went to a hair dressing salon at New Legon in Accra. Sylvia went first to the salon with Patricia following up later in her Toyota Corolla vehicle with registration number GE 7136-19. At the salon was also the owner and two (2) of her assistants. It is stated that the Appellant and three (2) others armed with locally manufactured pistols and a machete on a robbery spree, entered the salon upon seeing the vehicle parked in front of the salon at that time of the night. They ordered the ladies at the salon to surrender all their monies and other valuables or get harmed or die. The facts state further that the Appellant and his accomplices attacked the victims and in the process the Appellant took the car keys of the Toyota which Patricia had placed on a dressing mirror at the salon. He quickly stepped out of the salon with the keys and started the car, waiting for the others. In the salon, the other accomplices robbed the ladies off four (4) mobile phones and joined the Appellant not long after in the Toyota vehicle of Patricia and they took off. On the 8th January 2020, investigations led to the arrest of one, Roberta Tackie, a girlfriend of the Appellant at Kitase near Aburi in the Eastern region. Upon interrogation, she admitted being in possession of a phone which was found to belong to one of the victims. She told the Police that the phone was given to her by the Appellant for her use. Page 9 of 35 Then on the 12th January 2020, investigations led to the arrest of the Appellant who admitted the offences in his Cautioned Statement and mentioned the names of his accomplices. Further investigations led to the arrest of one, Mustapha Issah who the Appellant had directed to hide a polythene bag containing a locally made pistol, a fact which the said Mustapha claimed he never knew. Mustapha led the Police to retrieve the said pistol. On the 17th February 2020, A2 was arrested and he confirmed committing the offence with the Appellant and others and also informed the Police about who they sold the car to at a price of GHC6,000.00. Identification parades were held involving the Appellant and A2 and two (2) of the victims identified them. The facts state further that pictures were taken of the parades. Later with the arrest of A3, he also confirmed that the robbed vehicle was brought to him by the Appellant and two (2) of the accomplices together with other items such as laptops, television sets and mobile phones which they were offering for sale. He, A3, said he found a buyer, Wofa Yaw who bought all the items from the Appellant and his accomplices including the Toyota Corolla. From the facts, Police found out that A3 was actually one of the robbers, and not just a friend of the Accused, whilst Wofa Yaw, the alleged dishonest receiver was at large. THE PROSECUTION WITNESSES AND THEIR EVIDENCE From the Record of Appeal (ROA), the Prosecution called five (5) witnesses. PW1 was Patricia Nyankson. She provided a witness statement which was later adopted as her evidence in chief. She told the Court that she was one of the clients of the salon who had gone there with her sister Sylvia to have their hair done on the night of 21st December 2019. She said she was in possession of a Toyota Corolla which Page 10 of 35 she drove to the salon and parked in front of it. She told the Court that at about 9pm on that day whilst at the salon, a ‘guy’ entered the salon requesting to know if his sister was at the salon. He was however told his sister was not there and was asked to leave. Then within a few minutes afterwards, A2 armed with a pistol and without his face covered, barged into the salon and ordered the occupants including her to hand over their phones or else they will be shot. Then three (3) other armed men, including the Appellant also entered and not long after, the lights of the salon were then switched off. However, PW1 says she had a good look at the robbers because they had no masks on. She told the Court that as A2 hit her with the side of a cutlass and demanded for her phone, A1, the Appellant also demanded for the keys to her car. She stated that for fear of her life, she pointed to the Appellant the keys to the car which was on a dressing mirror in the salon. PW1 said that the Appellant then quickly took the keys and left the salon, went into the car and turned on the engine. At that time, A2 and the others were still in the salon beating up everyone there and searching their bags and eventually took away their phones and money. According to her, whilst A2 was beating her up to surrender her money and succeeded in grabbing her purse with GhC80.00, two (2) other robbers were beating up Sylvia, the hairdresser and the two (2) apprentices. Then amidst the commotion, one of the robbers accidentally switched on the light and their faces could clearly be seen. She informed Court further, that when the lights came on, the robbers wanted to get the keys to the salon and lock them in but couldn’t find the keys, they therefore asked one of the salon apprentices to bring out the keys but she managed to sneak out of the salon and began shouting for help. Sensing danger the robbers quietly stepped out of the salon, and into the waiting Toyota corolla which the Appellant has already turned on and they drove away. Page 11 of 35 Her evidence continues that soon afterwards they got the Police informed and circulated a picture of the robbed vehicle on social media for information. The Police were informed and investigations led the Police to the Eastern region where a lady was caught using the robbed phone of Sylvia. She was arrested and information led to the arrest of the Appellant. Then on the 20th January 2020, at a Police identification parade, she was able to identify the Appellant among nine (9) suspects paraded. She testified that when she was drawing closer to the Appellant at the parade, he begun to shiver and asked her if she knew him, and she answered in the affirmative, he then said “this is wrong accusation”. According to her, when he spoke, she further confirmed her identification of the Appellant as the robber who demanded for her keys to the car that night. She told the Court that she also identified A2 in another parade held a few days after. Under cross examination by counsel for the Appellant, then A1, PW1 confirmed that though she was traumatized by the robbery but was able to clearly identify the Appellant since there were lights in the salon by the time the Appellant and others entered without any face masks, and the salon was well lit. PW2 was Sylvia Koufie, a student. She also provided a witness statement which was adopted as her Evidence in Chief. She confirmed the story of PW1 that they were sisters and that they were both at a salon at New Legon on the night of 21st December 2020. She further corroborated the story of PW1 as to how a guy entered the salon asking for his sister and the later entering of one of the robbers with a pistol, ordering everyone to lie down or be shot. She further informed the Court that, soon after one robber entered, three (3) others also entered holding guns and a cutlass. She corroborated the story of PW1 that the Appellant was the one who took away the keys to the Toyota Corolla and left the salon with the other robbers still beating them, PW2 also confirmed that the victims of the robbery were herself, PW1, the salon Page 12 of 35 owner and her two (2) apprentices. Again, PW2 corroborated the story of PW1 as to how the robbers tried to obtain the keys to the salon to lock them up without success and how an apprentice managed to sneak out of the salon amidst shouting. PW2 confirmed that after buying a new phone she detected that someone had logged into her Instagram account using her google account. She added that the Police were informed and investigations led to the tracing and arrest of the user of the phone somewhere in the Eastern region who in turn told the Police the phone was gifted to her by the Appellant. PW2 testified that she was called by the Police for identification of her phone which she did. Under cross examination by counsel for A1, she admitted not taking part in the identification parade. No specific questions were asked of her in relation to A1. PW3 was Jessica Offei, a Hair dresser. She caused a witness statement to be filed on her behalf and it was adopted as her Evidence in Chief. In her statement, she stated that PW1 and PW2 are her clients, and she also confirmed the identities of her two apprentices on that day of the incident as Patience and Benedicta. She further corroborates the story of the PW1 and PW2 that at about 9:30pm on the day of the incident, she and her apprentices were dressing the hair of the PW1 and PW2 when a young man who she described as having a gold dyed hair entered her shop asking for his sister, and shortly after he left after being told his sister wasn’t there, a man armed with a pistol entered the salon and ordered everyone in to lie down or risk being shot, and immediately three (3) others also entered and begin asking for phones. Then they turned off the lights at the salon and one of them attacked her, whilst two (2) others went to PW1 with one demanding for her car keys and the other her phone and money. PW3 confirmed PW1’s story that she had the keys of the car on the showcase, or dresser at the salon. Again, she confirmed that the Toyota was taken away by the robbers and that her phone and money as well that of the others were robbed whist Page 13 of 35 being subjected to beatings. She stated that she took part in an identification parade in which she identified A2 among nine (9) suspects, as the one who stole their phones. PW3 was not cross examined by counsel for A1. PW4 was Roberta Tackie. She also relied on her witness statement as her Evidence in Chief. She testified that she was a wife the Appellant and a resident of Kitase in the Eastern region. She said that before Christmas in 2019, the Appellant paid her a visit and gave her a gold Samsung Galaxy C7 phone to use, and when she asked him how he got it, he failed to answer her. However, since she had no phone and needed one she accepted it PW4 confirmed that she downloaded social media apps such as WhatsApp and Instagram and begun to use the phone. PW4 testified that the Police traced her and arrested her for being in possession and using a stolen phone but that she was later granted bail. Her evidence further indicated that on the 12th January 2020, a friend of the Appellant, one, Mustapha came to her and gave her a phone that the Appellant wanted to speak to her and that she was asked by the Appellant to give Mustapha some money for lorry fare. That not long afterwards, the Appellant came home and the Police soon followed afterwards and caused the arrest of the Appellant. Her evidence continues that on the same day, at about 8pm, the Appellant called her on phone to call Mustapha and ask him to come to her, PW4, to pick up a polythene bag and hide it for him, and according to her, the Appellant showed her where the said bag was concealed. She confirmed that Mustapha came for the said bag from her as instructed. Later, she and Mustapha were arrested and she was later told by the Police that the bag had in it a locally manufactured pistol. Under cross examination by counsel for A1, PW4 said that she did not know the contents of the bag that she gave to Mustapha and that the contents were not revealed before Mustapha went away with it. Again, she told the Court that the Samsung Page 14 of 35 Galaxy phone that the Appellant brought to her for use was an old phone and she did not notice any identifiable marks on it. The last witness for the Prosecution was PW5, D/Sgt. Richard Osei. His witness statement was adopted as his Evidence in Chief on the 21st June 2021. His statement revealed that the robbery was reported on the 30th December 2019 and he begun investigations by taking the witness statements of the complainants and all the victims. He corroborated the stories of PW1 and PW2 that the Samsung phone of PW2 was traced to Kitase in the Eastern region where PW4, the user of the phone was arrested. He again confirmed the story of PW4 that she was arrested and brought to the C.I.D Headquarters in Accra and that upon her arrest, she admitted that the phone was given to her by the Appellant, her husband. He said he took a Cautioned Statement from PW4. On the 12th January 2020, he again confirmed the story of PW4 that the Appellant was also arrested in the Eastern region and he initially denied the offences against him. However, per the evidence of PW5, when the Appellant was confronted with the presence of PW4 and the phone and the story of how the phone got to PW4, he then changed his story and admitted the offences. PW5 goes further in his Evidence in Chief to state that he obtained an Investigation Cautioned Statement from the Appellant who explained how the robbery was committed with his accomplices. His evidence suggest that after the arrest of the Appellant, information was received about a polythene bag which contained a gun which the Appellant was trying to hide. He again confirmed the story of the PW4 of how Mustapha obtained and hide the said pistol. He explained also how Mustapha was arrested and how the Police retrieved the pistol with the help of Mustapha. Page 15 of 35 PW5 also provided information on the identification parades conducted on the 20th and 24th January 2020 where some of the victims identified A1 and A2. He said that Mustapha took part in the said parade and since he was not identified, he was released by the Police to go. PW5 indicated further and confirmed the story of PW1 that at the identification parade, A1 begun to shiver when he saw PW1 approaching him. The evidence further stated how the co-accused of the Appellant were all arrested. He tendered into evidence, two (2) Investigation Cautioned Statements and two (2) Charged Cautioned Statements of the Appellant as Exhibits B and G and B1 and H respectively. PW5 also tendered both the witness statement and initial cautioned statements of PW4 as well as four (4) shells, pictures of the identification parade and a picture of the robbed vehicle. Also tendered was a picture of the Samsung robbed phone, the locally manufactured pistol said to have been in the custody of the Appellant with four (4) cartridges. Under cross examination by counsel for the Appellant, he maintained his story and corroborated the evidence of the other witnesses. He confirmed that though A1, the Appellant may have taken only the keys to the vehicle and did not use any weapon, he was able to take the keys and go out simply because his other accomplices were armed with pistols. Again, he confirmed that there was an effective identification parade held and that it was at that parade where the Appellant was identified amongst eight (8) other suspects paraded. He also denied that the Appellant was beaten to provide his statements. The Prosecution closed its case after the evidence of PW5. This can be found at page 114 of the Record of Appeal (ROA). A subsequent filing of a Submission of No Case (pages 117-134) was not relied on by the Court. The trial Court decided that after consideration of the entire evidence of the Page 16 of 35 Prosecution that a prima facie case had been made out against the then Accused now Appellant (page 114-150 of the ROA]. The Appellant opened his defense and mounted the box on the 1st December 2021, this can be found at pages (150-161) of the ROA. The Appellant denied the offences against him and told the Court that on the 21st December 2019, he was with his family at Kitase in the Eastern Region. He also denied any knowledge about the robbery of the Toyota vehicle. On the mobile phone, he explained that he bought the said Samsung Galaxy phone from someone and gave it to his wife, PW4. In the same testimony, he later explained that he swapped the phone with some vendor at the roadside at Madina. Again, the Appellant denied that he asked any Mustapha to hide a pistol. He went on to explain how he was arrested and allegedly beaten by the Police in custody with a cable. On the identification parade, and how he was identified, he told the Court that it was the investigator who prompted on of the witnesses to point him out. He admitted that they were about nine (9) persons on parade. The Appellant further testified that he was made to thumbprint on his statement as a condition to be granted bail. He finally testified that he was not married but had three (3) children with two (2) women and denied ever knowing A2 and A3, his co-accused. Under cross examination by the Prosecution, he denied providing any of the contents of all the Cautioned Statements. He added on the issue of buying the phone that he added an amount of GHC400.00 to swapping his old phone for it. The Appellant however admitted that he knew the PW4 as one (1) of the women he had a child. The Appellant called one (1) witness in support of his case. DW1, his witness under cross examination admitted not having any personal knowledge of happened on the 21st of December 2019. Page 17 of 35 THE ANAYLSIS OF THE EVIDENCE AND CHARGES THE IDENTITY OF THE APPELLANT It has been submitted underground one (1) of Appeal, on behalf of the Appellant, that the trial Court erred in convicting the Appellant on the uncorroborated evidence of a single witness i.e. PW1. From the records, PW1 in her testimony told the Court that she saw the Appellant clearly on the day of the incident as he and the others came in unmasked. She also stated how she heard the voice of the Appellant as he demanded for her car keys from her and confirmed this voice at the identification parade when the Appellant spoke to her. After the incident, she provided information to the Police about the incident and her ability to identify the culprits. It is obviously due to this information that she provided that enabled her to partake in the identification parade. It has been confirmed by all the Prosecution witnesses with the exception of PW4 and has been confirmed by the Appellant himself in his defense that they were as many as nine (9) persons on parade. Out of this number, the PW1 identified only the Appellant. The Appellant in his testimony also testified that only three (3) persons came to identify, that means, not all the victims were able to or called to partake in the parade. It was also confirmed by the Appellant himself that PW1 pointed him out though he alleged that it was the Police investigator who prompted the PW1 to do so. Meanwhile in his cross examination, the Prosecution denies that the said investigator was present at the parade. Of utmost surprise, is the fact that this serious allegation of the Appellant was neither put to the Pw1 or the pw5 in their cross examination. It comes across, to me, therefore as an afterthought which he had a chance to put across when he opened his defense. For the PW1, the identification of the Appellant was not an issue. Page 18 of 35 THE ISSUE OF CORROBORATION Apart from PW1, the records indicate that both PW2 and PW3 also testified that it was the Appellant who took the car keys away after he entered the salon together with the other accomplices, and he took the keys at a time when the and the other victims were being attacked. It is true that PW2 did not identify the Appellant at the parade, however, her story confirms that one (1) of the robbers took the keys away and that robber was the one who drove the car away. That constitutes corroboration enough. It is the law, as codified under Section 7 especially 7 (3) of the Evidence Act (NRCD 323) that though corroboration may be proper, it is not essential to sustain a finding of fact or any verdict. The principle is also that in evaluating evidence in a criminal trial (including ones as serious as robbery) on the proof of an offence, it is not dependent on the quantity of witnesses called but the quality of the evidence produced. See cases such as KWAKU FRIMPONG @ IBOMAN VS. THE REPUBLIC (2015) GHASC 106 GLIGAH AND ANOR. VS. THE REPUBLIC (2010) SCGLR 870 AT HOLDING 5 TETTEY VS. THE REPUBLIC (2001-2002) SCGLR HOLDING 2 DEXTER JOHNSON VS. THE REPUBLIC (2011) SCGLR 601 In the GLIGAH case, the Supreme Court speaking with one voice through Dotse JSC said as follows: “In establishing the Standard of Proof required in a civil or criminal case, it was not the quantity of witnesses that a party who had the burden of proof called to testify, that was important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party had succeeded in a particular case. In other words, the Page 19 of 35 evidence led must meet the standard of proof required in a particular as if it did, it would be a surplusage to call additional witnesses to repeat virtually the same point or seek to corroborate evidence that had already been corroborated.” Counsel for the Appellant has forcefully submitted that Mustapha was a “star witness” who needed to have been called to corroborate the case of the PW4 his own ‘wife’. I however find that, PW4 need not have any corroboration else especially when the case investigator, PW5 confirmed her story. The evidence of PW4 and PW5 on the said pistol was corroborative and credible enough to establish the fact that the Appellants had a locally manufactured gun which he disposed off through one Mustapha. The said pistol was tendered in Court by PW5 linked to the Appellant and no objection was raised. There is no doubt about the credibility of the story of PW4 who was still girlfriend of the Appellant at the time she testified. Assuming even that the story of the pistol and Mustapha were untrue, the story of PW1 and PW2 on the fact that the robbers came in with pistols have been confirmed by the Appellant himself in one of the various statements he gave to the Police dated 15th January 2020 found at page 223 of the ROA. Having been admitted without objection as a confession statement, it was enough to ground conviction. I find as a matter of fact therefore that the evidence of PW1 needed no corroboration to be credible. That in any event, the detailed statement of the Appellant himself was corroborative enough to support the story of the PW1 of his involvement in the crimes. THE ISSUE OF LACK OF A MINI TRIAL Despite all the denials of the Appellant in his testimony about his involvement in the entire robbery, all his statements were tendered into evidence without objection, when he was ably represented by a counsel. The trial judge rightly made this observation at page 209 of the record when she said: Page 20 of 35 “This statement was admitted into evidence without objection even though from day one, 1st accused person had legal representation.’ The Court also found as a fact and stated. Lawyers for both Accused persons cross examined the investigator, PW5 on the 21st June 20201 and 6th July 2020, they did not raise any serious challenge to the statements or request for a mini trial.” Meanwhile, before me is this appeal, counsel for the Appellant at pages 7 and 8 of his submission now boldly states that it was rather the Prosecution that ought to have called for a mini trial or that a mini trial ought to have been held. He states at page 8 that: “Also since A1 denied that the cautioned statement was not written by himself but that he was merely coerced to thumbprint on same one wonders why the Prosecution did not call for a mini trial to clear this hurdle? Can the Court proceed to believe the Prosecution on theses complications arising from the Prosecution treatment of the confession statement and the need for a voir dire but make them relevant issues pertaining to the Prosecution’s case.” With all honesty and with much deference to counsel, I must state that apart from finding this submission of the counsel difficult to understand and appreciate, I do not believe that he understand the whole concept of confession statements, when to tender them and when to raise the necessary objections to their tendering as well as whose duty it is to raise such objections. I will therefore refer counsel to what constitutes a confession statement as under Section 120 (1) of NRCD 323, the conditions for the admissibility of a confession statement, as under Section 120 (2-4) and what constitutes an involuntary statement which can also be found under Section 120 (5) of the NRCD 323. Section 6 of the same Act also states that any objection to the admissibility of evidence offered by a party shall be made at the evidence is offered. This provision has been given the Page 21 of 35 needed clarification and interpretation in the case of THE REPUBLIC VS. HIGH COURT (COMM. DIVISION ACCRA), EX-PARTE: KWABENA DUFFOUR (CIVIL MOTION NO J5/ 05/ 2021) where AMADU JSC stated that: “the statutory provision on objections to evidence says in very certain terms and with clarity that in an action (regardless of whether it is civil or criminal) an at every stage of the action (including case management) an objection to the admissibility of evidence by a party affected by what evidence shall be made at the time the evidence is offered. This without fear of contradiction whatsoever means that the only time when an objection can be taken to the admissibility of evidence is at the time, (not before or after or in between) when the evidence is being offered.” I will therefore urge counsel for the Appellant to acquaint himself with all these provisions I have referred to above. In addition, counsel must appreciate that having led the Appellant to raise allegations of duress and coercion after the statements of the Appellant had long been admitted into evidence, he provided no opportunity for the Appellant to have had the chance of a mini trial. Neither was it the duty of the Court nor the Prosecution to conduct or request for the conduct of a mini trial without any prior objection raised by the Accused or his counsel. On the other hand, I am minded that if the said statement of the Appellant had no independent witness certification, being a confession, it would have gone contrary to statute and would have therefore been inadmissible per se. In that regard, raising an objection to its admissibility on appeal even for the first time, the absence of such a statutory requirement could lead such a document being rejected, but such is not the case, here. In that regard, the submission of counsel that the Appellant did not offer a confession statement and that the admission of his statements were erroneous are baseless. THE IDENTIFICATION OF THE APPELLANT Page 22 of 35 From the entire evidence of PW1, there was no doubt that she was confident about her identification of the Appellant. Indeed she comes across as a credible witness because she and the others were honest enough to deny any knowledge of A3 when the question was posed to them about the non-involvement of the A3. Again apart from the Appellant, the PW1 did not force herself to identify any other suspect at the parade. That shows did believed that the Appellant is the only one she identified was part of the gang. The only reasonable explanation that can be put to the fact that she identified the Appellant alone was that she did actually notice him as on the culprits. The law in the criminal jurisprudence of this country has been, and still is, that there be no better identification of an Accused than the evidence of a witness who swears to have seen or witnessed the Accused committing the offence. The case of ADU BOAHENE VS. THE REPUBLIC (1972) GLR 70, supports this principle and has been affirmed on subsequent cases including the case of IGNATIUS HOWE VS. THE REPUBLIC, CRIM. APP NO J3/3/2013 AND REPORTED IN GHALI AS GHASC 159, 22ND MAY 2014, Akamba JSC. Not only was the above stated principle in ADU BOAHENE affirmed in the HOWE case but the Supreme Court also affirmed the principle that the holding of identification parades and proof of the personal characteristics of the accused are not the only modes by which an identity of a person Accused of a crime can be established. With the PW1 having clearly identified the Appellant as the one who took her car keys from her when the other accomplices were attacking her and the other victims on the night of robbery, and with the evidence not having been discredited under cross examination, I am convinced by the finding of the trial judge at page 212 of the Record of Appeal that the Appellant was one of the robbers who entered the salon and robbed the victims of their monies, phones and the Toyota Camry vehicle on the night of the robbery. Page 23 of 35 There is no doubt that per the ROA, the PW1 testified that she did not see the Appellant uses weapon, but she testified that while A2 was attacking he with the blunt side of a cutlass, the Appellant was demanding for her car keys. She told the Court that for fear of her life, she pointed to the Appellant the keys to her car. The role of the Appellant in the conspiracy was clearly made out in this narration of the PW1. According to the evidence led, there was obviously harm caused to the victims including the PW1 through beating, there was threat of criminal assault as soon as the Appellant and his co-accused entered the salon, and gave them a warning to surrender or get killed as they wielded weapons. All these factors used by the Appellant and his co-accused while in the course of stealing was established and it evident that the victims permitted the stealing of their properties including a car for fear of their lives. PW1 having seen the Appellant come into the salon together with the other Accused wielding guns and other weapons, having noticed that the other victims were being assaulted, why would she have resisted it when she was asked by one of the robbers to hand over her keys? Every reasonable person in her shoes would have known that the Appellant was working in concert with the other robbers. Counsel’s argument therefore that as long as the Appellant did not personally use a weapon on any of the victims but however took the vehicle away, he was not involved in either the robbery or conspiracy, is untenable. All the elements of conspiracy and robbery had been established in the case of the Prosecution through the direct evidence of the victims. There was further circumstantial evidence through PW4 and the found phone as well as the pistol that was found. PW2 and PW3 all gave vivid accounts of each of the role of each robber and who directly acted on them. The role of the Appellant as the one who demanded for the keys, went in to the car and drove off with the other robbers in the robbed Toyota vehicle of PW1 has not been in doubt from my reading of this record. Page 24 of 35 In cross examining all the prosecution witnesses, counsel failed to bring out extensively the strong denial of the Appellant to the charges. As is trite, the role of an examining party in cross examination is to test the credibility of witnesses and their testimony and to put one’s case across. If the Appellant and his counsel failed to do that and a prima facie case had already been made against the Appellant, the trial Court cannot be blamed. The PW1 and other witnesses testified to matters which they had personal knowledge of and the Court had no obligation than to accept especially her testimony as a vital witness with direct evidence in relation to the Appellant. If such testimony was not subjected to good scrutiny by the party against whom it is offered, the Court was only to assess the weight to put on it. The Evidence Act, NRCD 323, Section 80 lays out some criteria for trial Courts to use to determine the credibility of a witness, however, it is obvious by this same sub section that it is through cross examination mainly that the Court can ably make such determination after witnesses has gone through the mill. The determining factors includes, the existence or non-existence of facts testified to by the witness, the capacity of the witness to recollect or perceive the existence or non-existence of matters, the existence of bias, interest or other motive, a statement admitting truthfulness etc. It must be borne in mind and reiterated that under Section 51 of the Evidence Act, 1975 (NRCD 323), all relevant evidence is admissible except as provide under Section 52 which exception can be exercised by a trial judge using his discretion. See Part 11 of the Evidence Act and the decision of the C.A in the case of SELORMEY VS. THE REPUBLIC (2001-2002) 1 GLR 14. The evidence of PW5, the case investigator as well as the exhibits he tendered without objection constituted enough corroborative evidence of the evidence of PW1. The trial Page 25 of 35 judge committed no error when she relied on the exhibits tendered by PW5 and his evidence as well as the one evidence of PW1 as credible evidence. THE PROOF OF OWNERSHIP OF THE ROBBED ITEMS It has also been submitted by counsel for the Appellant at page 7 of his address that none of the witnesses was able to identify or proof ownership of any of the items they claimed were theirs. May I reiterate this point that the offence of Robbery, by reading of its definition indicates that the offence is dependent on the offence of stealing. For it is in stealing a thing, that the offence of robbery can be committed. The elements of the offence of robbery, therefore have to be partly founded under the offence of stealing. The Criminal Offences Act, 1960 (Act 29) under Section 123 (2) provides that Proof of Ownership or value of property are not requirements to establish for an offence of stealing or its big brother, Robbery and others. It is stated as follows: “in any proceedings in respect of any of the crimes mentioned above sub section (1) being the offences of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretenses, is shall not be necessary to prove ownership or value.” This provision has been given some flesh in cases such as EFFAH AND ANOR. VS. THE REPUBLIC (2000) 70001 CA, AMOO–MOONEY JA DATED JULY 2000, REPORTED ONLINE ON JUDYLAW as follows: “the primary relationship for consideration in a charge of stealing is not so much a relationship between the person charged and some other, identified as the owner, as a relationship between the person charged and the thing alleged to have been stolen, for the offence of stealing to be constituted, therefore the relations, act and intention to be proved in connection with ‘the thing’ are: Page 26 of 35 i. That the person charged must not be the owner of it ii. That he must have appropriated it iii. That the appropriation must have been dishonest” The Prosecution witnesses therefore need not have proved with receipts as requires by counsel that they were legal owners of any of the items robbed, it was enough, when they testified that on the day of the incident items they possessed were robbed from them. After all, possession is ownership as stated by Section 48 of the Evidence Act states: “The things which a person possesses are presumed to be owned by him.” The Appellant had the burden of producing evidence to create doubts in the Prosecution’s case by rebutting this presumption. The Appellant by his various contradictory evidence in his statements to the Police, his testimony in Court as against that of PW4, his girlfriend and the lack of support in the evidence of DW1 as to how he obtained the Samsung phone made him a witness not worthy of credit. THE DEFENSE OF THE ACCUSED Deciding on the 2nd ground of Appeal that the Appellant raised reasonable doubts in the case of the Prosecution, it is indeed the law that all that he needed to do by way of producing evidence was to raise a doubt as to his guilt. Under Section 11 (3) of NRCD 323, an Accused has a duty to produce sufficient evidence by way of raising doubts, the converse of which is guilt if a prima facie case has been made out against him. WOOLMINGTON VS. DIRECTOR OF PUBLIC PROSECUTION (1935) AC 462 is the locus classicus on this principle where the Appeal Court of England per Sankey LC expressed the view that: Page 27 of 35 “…while the Prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.” The Appellant did open his defense as captured and called a witness whose evidence was materially not that relevant to the incident and to his defense of alibi. The Appellant though he denied any knowledge of the offences leveled against him, he failed to lead any cogent evidence to support same. All he did was to deny the stories of the Prosecution witnesses and without more. The Appellant from the records did deny being involved in the offence. It must be borne in mind that with his own statement, being a confession and having been tendered into evidence by the Prosecution without any challenge, constituted enough evidence of guilt. It has been held that a voluntary confession statement alone, without more, admitted is enough to ground conviction. See APOR AMOAKWAH FREDERICK VS. THE REPUBLIC (CRIM APP NO H2/ 27/ 2021) CA OFOE JA BILAH MOSHIE VRS THE REP (1977) 2 GLR 418 AYOBI VRS THE REP (1992-193) PT 2 GBR 679 CA It does not matter that in his testimony in Court, he now denied being at the scene of crime. That made his defense not credible as it was a contradiction of his previous statement which had been tendered against him and which was a statement given close to the time of the event. The rule as reiterated by Brobbey JA (as he then was) in the case of ODUPONG VS. THE REPUBLIC (1992-93) VOL 3 GBR 1028 and other cases that: Page 28 of 35 “The law is now well settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn, is not worthy of credit (emphasis mine) and his evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradict” THE PLEA OF ALIBI On ground three of the appeal it was submitted that the Appellant raised a defense of alibi which should have been considered by the Court. An alibi simply put, means the fact of state of the Appellant claiming to have been elsewhere, different from when and where the offence was alleged to have been committed. This plea or defense is governed by Section 131 of Act 30 in these terms: “(1) Where an Accused intends to put forward as a defense a plea of alibi, the Accused shall give notice to the Prosecutor or counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove, prior, in the case of a summary trial, to the examination of the first witness for the Prosecution, and ...” There is no prescribed form for the notice to the Prosecutor for an alibi and an Accused person may give the required notice and particulars in his Investigative Cautioned Statement to the police. The issue here is, did the Appellant properly plead the defense of alibi? Did the Appellant file the necessary notice? Did the failure by the Appellant to file the required notice of alibi have any effect in law? BEDIAKO VS. THE REPUBLIC (1976) GLR 39, deserves consideration. In that case, there was no Notice of Alibi filed by the 3rd Appellant therein and Sarkodee J. did not think the mere mention by the Accused in his statement that he was not at the scene amounted to notice. The learned judge considered that the sum Page 29 of 35 total of the defense was a complete denial of the charge which was considered and rejected by the trial Court. He had earlier held that where the Accused failed to give such notice as was required of him under Section 131 (1) of Act 30, it must appear to the trial Court that there was no defense of alibi properly before Court. (See page 42). The learned judge went on to hold however that nothing stopped the Accused from calling his witnesses, the people he said he was with to confirm his defense if it was true. In this appeal, the Appellant in all of his Cautioned Statements to the Police failed to plead alibi though he denied his involvement in most of his statements. He rather chose to talk about the phone found with his wife, the taxi that his car owner took from him and then the detailed confession statement. In his defense he now stated that he was in the Eastern region when the incident was said to have occurred. He failed to file any such notice when he was ably represented by a lawyer. Nevertheless, he was allowed to call a witness witnesses to support his defense, not of alibi, but to the effect that he did buy phone or swapped it but didn’t not steal it. The trial Court at page 210 of the record aptly stated the less relevant role of DW1 to the case of the Appellant when she said: “Most importantly, on the role Alibi for A1, Klutsey, fell short of telling this Court that he was with A1 on the 21st of December 2019 between the hours of 9:30pm and 10:30 pm.” In criminal law and procedure, if an Accused puts forward an alibi as an answer to a criminal charge, he is simply saying that whoever might have committed the offence, if it was committed at all, it was not him; and to support this he leads evidence that he was elsewhere at the material time. See BEDIAKO V THE STATE (1963) supra. Page 30 of 35 The onus of making good the plea of alibi was on the person asserting in this case, I find that there was no semblance of alibi put forward by the Appellant. All he did was just to state and deny that he was not at the crime scene. The Court has found as a matter of fact that the trial judge did consider the defense of the Appellant in her judgment. What the Court rather did not do, was to accept the story of the Appellant as against that of the Prosecution and that is what the Appellant’s counsel consider as the evident of the Appellant not having been considered. When it comes to the analysis of the defense of an Accused, the Court is guided by the three (3) pronged approach laid down by the Supreme Court in the case of LUTTERODT VS. COMMISSIONER OF POLICE (1963) 2 GLR 429 where the Court in relying on the old case of REGINA VS. ABISA GRUNSHIE (1955) 11 W.A. L.R 36 noted at page 439 of the report as follows: “Where the determination of a case depends upon facts and the Court forms the opinion that a prima facie case has been made, the Court should proceed to examine the case for the defense in three (2) stages: 1. Firstly it should consider whether the explanation of the defense is acceptable, if it is, that provides complete answer, and the Court should acquit the Defendant; 2. If the Court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the Court should acquit the Defendant; and 3. Finally, quite apart from the Defendant’s explanation or the defense taken by itself, the Court should consider the defense such as it is together with the whole case, i.e. Page 31 of 35 Prosecution and defense together and be satisfied of the guilt of the Defendant beyond reasonable doubt before it should convict, if not, it should acquit.” A reading of judgment of the trial Court from pages 199-212 of the ROA, is a basis to find that the trial Court did make use of this approach before disregarding the case of the Applicant. CONCLUSION From the foregoing after carefully evaluating the submissions made by counsel for the Appellant and having dealt with almost all the issues raised and having considered the submissions of the Respondent, studying the record and from the analysis I have made so far, I do not hesitate in stating that the Prosecution adduced sufficient evidence in proof of the charges against the Appellant. I found that there had been no substantial miscarriage of justice caused to the Appellant herein by the trial Court. The trial Court did consider his defense and by use of her discretion, she disbelieved the story of the Appellant as against that of the Prosecution. SENTENCING This Court stands by the age old principle that the only way an Appellate Court can interfere with a sentence is where a wrong principle of evidence was applied in passing the sentence, there Court failed to consider some facts or law or the sentence was excessive or extremely low. In arriving at its decision with regard to sentence, a trial Court is enjoined to consider all the mitigating and aggravating circumstances of the case. Page 32 of 35 In the cases of APALOO VS. THE REPUBLIC (1975) 1 GLR 156, BANDA VS. THE REPUBLIC (1975) 1 GLR 152, SAMUEL AGOE MILLS ROBETSON VS. THE REPUBLIC (2013-2014) SCGLR 1505 AND OTHERS, it has been held that: “The principles upon which the Court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if members of the Court had been trying the Appellant, they might have passed a somewhat different sentence. The Court would interfere only when it was of opinion that the sentence was manifestly excessive or low having regard to the circumstances of the case, or that the sentence was wrong in principle.” Again in the case of SAMUEL AGOE MILLS ROBERTSO VS. THE REPUBLIC (2013-2014) SCGLR 1505, in sentencing a disabled person for the offence of Narcotics, the Apex Court stated inter alia on the principle of sentencing that: “Sentencing is discretionary and where the discretion has been judicially exercised, an Appellate Court has no just cause to interfere with the exercise of discretion. The principles upon which the Court would act upon an appeal, against sentence were that it would not ground that if members of the Court had been trying the Appellant thy might have passed a somewhat different sentence. The Court would interfere only when the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle. Grave offences as in this instant calls for deterrent sentences. But the general principle was that a sentence of imprisonment even though intended specifically as general terms must not be excessive in relation to the facts of the offence.” In this case, I consider from the judgment that the trial Court took into consideration only the factors of mitigation, that is the time spent by the Appellant in custody before and during the trial, the youthful ages of the Appellant and his co-accused and the Page 33 of 35 fact that they were both first time offenders. The Court however failed to consider the aggravating factors as required under law. Such as the fact that the Toyota vehicle of PW1, a young Nurse, which the Appellant robbed was never retrieved nor its value paid for. This was notwithstanding the fact that the Appellant and his co-accused mentioned one, Wofa Yaw to the Police as the receiver of the vehicle and other robbed items but they could not lead the Police to him. The fact also that the Appellant went through a full trial as against pleading guilty and putting the victims and the Prosecution through a full trial cannot be a mitigating factor. The trauma that the victims had to undergo in testifying in Court after going through that robbery episode and having to physically and directly identify the Appellant and his co-accused at an identification parade all constitute emotional trauma which PW1 testified on and was cross examined on. The circumstances under which the robbery occurred, the premeditation with which it was planned, the fact that there was ready market for the robbed items including the vehicle, the physical beatings, the use of weapons and the threats on the victims makes the facts aggravating in nature. The Ghana Sentencing Guidelines of Ghana requires Courts to consider the emotional and physical effect of crimes on victims as well in sentencing. The effect of crimes on the General public and the degree of revulsion felt by citizens against crimes have long been considered by Courts, so also must we consider the direct effects of crimes on the victims themselves. On the offence of robbery (with weapons and with some aggravating factors and some mitigating factors) as in this case, the sentencing guidelines recommend a sentence of between seventeen to twenty (17-20) years. It is my considered opinion that if the trial Court had considered any of the aggravated factors she would not have given the Appellant the minimum of fifteen (15) years. Page 34 of 35 In the circumstance, I will set aside the minimum sentence of fifteen (15) years given to the Appellant and under Section 30 (a) of the Courts Act, 1993 (Act 459), substitute with a sentence of eight (18) years IHL for the Appellant. The sentence takes effect from the day of conviction. The appeal against both conviction and sentence therefore fails and the appeal is accordingly dismissed. JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: JOSEPH KAPONDE FOR THE APPELLANT . ENAM LOH-MENSAH FOR THE REPUBLIC/RESPONDENT. Page 35 of 35