Republic vrs Sam (D21/294/2024) [2025] GHACC 109 (4 June 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON WEDNESDAY THE 4TH DAY OF JUNE 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.) CIRCUIT COURT JUDGE CASE NO: D21/294/2024 THE REPUBLIC VRS JOSEPH SAM JUDGMENT FACTS The accused person was arraigned before the court on the 7th March, 2024 on an amended charge sheet and charged with two (2) counts of offences namely: robbery contrary to section 149 of the Criminal Offences Act, 1960 (Act 29) and assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). The case of the prosecution is as follows: “Complainant, Lucille Andoh is an Events Director and lives at Sakumono. Accused person Joseph Sam is a Vulganizer and resides at Sakumono Estates. On the 20th February, 2024 at about 10:45 p.m. Complainant went to her bathroom to shower. The moment she came out from the bathroom, she saw accused person standing on her corridor. The accused person then warned her not to make noise or raise an alarm else he would stab her to death. Complainant hurriedly entered her bedroom and the accused person also followed her. Immediately the accused entered the room, he struck her with an object, and she collapsed on the ground. The accused person took two (2) IPhone 12 mobile phones, valued at GH¢10,000.00 and a ladies bag containing Ghana Card and Bank Cards. As he was leaving the room with the booty, complainant shouted for help and her brother, Michael Andoh, father Augustine Kwaku Andoh 1 and mother who are witnesses in this case rushed to rescue her. The accused started fighting with them and in the process, hit the abdomen of Michael Andoh with a blow and squeezed his genital. They succeeded in arresting him and the Police emergency number was called and the Sakumono Police Patrol Team rushed to the scene and re-arrested the accused person to the Police Station for further investigation. The complainant’s brother, Michael Andoh, who sustained injuries was issued with a medical form to attend hospital for treatment. After investigation, accused person was charged with the offences and brought before this Honourable Court.” THE CHARGES The charges preferred against the accused person and on the basis of which he stands trial together with the particulars of the offences in this instant case are as follows: “COUNT ONE STATEMENT OF OFFENCE ROBBERY: CONTRARY TO SECTION 149 OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29) PARTICULARS OF OFFENCE JOSEPH SAM, AGED: 28, VULGANIZER: For that you, on the 20th day of February 2024, at Sakumono in the Greater Accra Circuit and within the jurisdiction of this Court, did threaten to stab Lucille Andoh to death thereby putting her in fear and succeeded in taking her two (2) IPhone 12 mobile phones, valued GH¢10,000.00 and one (1) ladies bag, containing Ghana Card and Bank Cards. COUNT TWO STATEMENT OF OFFENCE ASSAULT: CONTRARY TO SECTION 84 OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29) PARTICULARS OF OFFENCE JOSEPH SAM, AGED 28, VULGANIZER: For that you, on the 20th day of February 2024, at Sakumono in the Greater Accra Circuit and within the jurisdiction of this Court, you unlawfully assaulted one Michael Andoh.” 2 THE PLEA The self-represented accused person pleaded not guilty to the charges after they have been read and explained to him in Fante, a language of his choice. The accused person having pleaded not guilty to the charges puts the facts of the prosecution in issue and thereafter, the prosecution assumed the burden to prove the guilt of the accused person. THE BURDEN ON THE PROSECUTION AND THE DEFENCE In our criminal jurisprudence, it has always been the duty and obligation of the prosecution, from the outset of the trial, to prove and substantiate the charge preferred against the accused person to the satisfaction of the Court unless in a few exceptions. Under the Evidence Act, 1975 (NRCD 323), the burden of proof is divided into two parts, that is the burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence. The burden of persuasion is provided for under section 10 (1) of the Evidence Act, 1975 (NRCD 323) as follows: “10 (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. The burden of producing evidence is also provided under section 11(1) of the Evidence Act, 1975 (NRCD 323) thus: “11 (1). For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him in the issue”. Again, in criminal proceedings, what constitutes the facts in issue depends on any relevant presumptions and the allegations involved. Since the prosecution is asserting the above facts constituting the ingredients of the offences preferred against the accused person, it is incumbent on it to establish that belief of the accused person’s 3 guilt in the mind of this Court to the requisite degree prescribed by law. In other words, the prosecution has the burden of persuasion to establish the guilt of the accused person. When the prosecution has adduced the evidence to establish the essential ingredients of the offences preferred against the accused person which will cumulatively prove the guilt of the accused person, the court at the end of the case of the prosecution will have to decide whether the prosecution has discharged the obligation on it to establish the requisite degree of belief in the mind of the court that the accused person in fact and indeed is guilty of the offences preferred against him. Except in few instances, the measuring rod or the standard of proof for determining that the evidence adduced by the prosecution has attained the requisite degree is provided under sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323). Sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323) provide as follows: “10 (2). The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. 22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact”. If this Court decides that the prosecution has failed to prove each essential ingredient of the offences preferred against the accused person beyond reasonable doubt at the end of the prosecution’s case, the accused person will have to be acquitted for he will be deemed to have “no case to answer”. But if this Court decides that each essential ingredient has been proved beyond reasonable doubt, then the accused person will have to be called upon to put up his defence, because there will be an established 4 presumption of guilt (a prima facie case) which he must rebut, if he does not want the presumption to stay, thus rendering him liable for a conviction. To use the language of section 11 (1) of the Evidence Act, 1975 (NRCD 323), the accused person will have on him the burden of introducing sufficient evidence to avoid a ruling against him that he is guilty of the offence charged. In other words, he has the burden of producing evidence. The apex court in the case of Asante No (1) v The Republic [2017-2020] I SCGLR 143- 144 explained the burden on the prosecution as follows: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See: Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408.” However, proof beyond a reasonable doubt does not mean beyond a shadow of doubt as was stated by Lord Denning in the case of Miller vs. Minister of Pensions (1974) 2 ALL ER 372 AT 373 thus: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof beyond every possibility. 5 Lord Justice of the King’s Bench from 1822-1841, Charles Kendal Bushe also explained reasonable doubt thus: “…the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of all the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party; preoccupied by prejudice or subdued by fear.” See also: Osei v. The Republic [2002] 24 MLRG 203, CA Abodakpi v. The Republic [2008] 2 GMJ33 Republic v. Uyanwune [2001-2002] SCGLR 854 Dexter Johnson v. The Republic [2011] 2 SCGLR 601 Frimpong a.k.a. Iboman v. Republic [2012] 1 SCGLR 297 Again, it must be emphasized that the proof by the prosecution can be direct or indirect. It is direct when the accused person is caught in the act or has confessed to the commission of the offences. Thus, where the accused person was not seen committing the offences, his guilt can still be proved by inference from surrounding circumstances that indeed, he committed the said offences. See: Logan vs Lavericke [2007-2008] SCGLR 76 Headnote 4 Dexter Johnson vs The Republic [2011] 2 SCGLR 601 AT 605 State vs Anani Fiadzo (1961) GLR 416 SC Kamil vs The Republic (2010) 30 GMJ 1 CA Tamakloe vs The Republic (2000) SCGLR 1 SC It is very important to note that one fundamental legal principle pertaining to criminal trials in our jurisdiction as contained in paragraph (c) of clause (2) of article 19 of the Constitution is that: “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” 6 The Supreme Court also held on the presumption of innocence in the case of Okeke vs The Republic [2012] 2 SCGLR 1105 at 1122 per Akuffo JSC as follows: “…the citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt.’’ An accused person therefore in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty. Bosso vs The Republic (2009) SCGLR 470 ANALYSIS OF THE CHARGE OF ROBBERY Section 149 of the Criminal Offences Act, 1960 (Act 29) provides as follows: “ A person who commits robbery commits a first degree felony.” Section 150 of the Criminal Offences Act, 1960 (Act 29) further defines robbery in the following terms: “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.” In the case of Behome v The Republic [1979] GLR 112, the court held that “one is only guilty of robbery if in stealing a thing he used force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing.” 7 The essential ingredients of the offence that the prosecution must establish to secure conviction as stated in the Supreme Court in the case of Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 at 312, per Dotse JSC are as follows: i. That the accused person stole something from the victim of the robbery of which he is not the owner. ii. That in stealing the thing, the accused person used force, harm or threat of any criminal assault on the victim. iii. That the intention of doing so was to prevent or overcome the resistance of the victim. iv. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in the restrictive sense. v. The thing stolen must be in the presence of the person threatened. ANALYSIS OF THE CHARGE OF ASSAULT Under section 84 of the Criminal Offences Act, 1960 (Act 29): “A person who unlawfully assaults another person commits a misdemeanour.” Lane CJ quoted in the case of Faulkner v Tolbot (1981) 3 ALL ER 440 CA thus: “An assault is an intentional touching of another person without the consent of that person and without lawful exercise. It need not necessarily be hostile or aggressive, as some of the cases seem to indicate.” From the facts of the case as given by the prosecution, the charge of assault against the accused person is that of assault and battery. Section 86 (1) of the Criminal Offences Act, 1960 (Act 29) defines assault and battery thus: “A person makes an assault and battery on another person if, without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person.” 8 See: R v. Hare (1934-39) 30 Cox CC 64. To constitute assault and battery, it is sufficient if the prosecution proves that without the consent of PW1, and with the intention of causing harm, pain or fear or annoyance to PW1 or exciting him to anger, the accused person forcibly touched him or caused any person to forcibly touch him. See: P. K. Twumasi book on Criminal Law in Ghana, Page 265. Section 87 of the Criminal Offences Act, 1960 (Act 29). Consequently in order to ground a conviction, the prosecution would have to prove beyond reasonable doubt the following: 1. That the accused person forcibly touched PW1. 2. That the touch was without the consent of PW1. 3. That the touch or assault by the accused person on PW1 was with the intention of causing harm, pain, or fear, or annoyance to PW1, or of exciting her to anger. 4. That the touch or assault on PW1 by the accused person was unlawful. ANALYSIS OF THE EVIDENCE TO PROVE THE ELEMENTS OF THE SEPARATE CHARGES OF ROBBERY AND ASSAULT The prosecution called four (4) witnesses in support of its case. The case for the prosecution was presented mainly by the complainant, Lucille Andoh as the third prosecution witness (PW3) and supported largely by Augustine Kweku Andoh as the first prosecution witness (PW1), No. 8975 Corporal Mawunyo Ameyedowo as the second prosecution witness (PW2) and Micheal Ekow Andoh as the fourth prosecution witness (PW4). The prosecution also tendered in evidence several Exhibits namely: the caution statement of the accused person, the charged statement of the accused person, photographs of two iPhone 12 mobile phones, a ladies bag, ECOWAS Identity card and Dubai Islamic Bank card as Exhibits “A”, “B” “C” “D” “E” and “F” respectively. 9 The accused person testified under oath but neither called any witness nor tender in evidence any exhibit. It is the case of the first prosecution witness (PW1) that on the 20th February, 2024 at about 10: 45 p.m., his daughter, Lucille Andoh (PW3) returned home from work and packed her car inside the yard of the house and entered the room. It is further the evidence of PW1 that after some few minutes, PW3 screamed and he came out from his bedroom to see what was going on and he saw the accused person trying to escape so he grabbed him and the accused person started struggling with him. According to PW1, his son also heard the noise and rushed from his bedroom and joined him in the struggle to apprehend the accused person, He continued that in the process of struggling, the accused person held his genital and started squeezing it. Unfortunately, they were not able to arrest the accused person so they called the Police patrol team and they came and took the accused person to the Sakumono Police station. It is the evidence of the second prosecution witness (PW2) that on the 20th February 2024, she was on duty as the available investigator when a case of robbery involving the accused person was referred to her for investigation. She took statements from the complainant (PW3) and a caution statement from the accused person after he was handed over to her by the Police Patrol team. Her investigations revealed that on the 20th of February, 2024 at about 10:45 p.m., PW3 returned from work, parked her car in the yard of their house and went to her room. According to PW2, as PW3 was walking to her room, she noticed that there was someone at the door to the hall of the house so she asked who it was but no one responded. PW2 continued that PW3 decided to look through her bedroom window to see who was there but by the time she realized, the accused person was standing in her bedroom. PW2 stated further that the accused person warned PW3 not to raise an alarm else he would stab her to death and the accused person also used an object to strike PW3 and forcibly took her two iPhone 12 mobile phones and ladies bag containing her Ghana card and bank cards. Her 10 investigation further revealed that after the accused person succeeded in taking PW3’s phones and bag, he tried running away but PW3 raised an alarm and PW1 and PW4 came out from their rooms in the same house to arrest the accused person. It is also the evidence of PW2 that during the process of the struggling, the accused person squeezed the genital of PW1 and also punched Michael Andoh (PW4) in the face but eventually, the accused person was overpowered and arrested and all the items the accused person forcibly took from the complainant were retrieved from him and handed over to her and she took photographs of them. She later charged the accused person for court. The third prosecution witness (PW3) testified that on the 20th February 2024, she returned from work and while she was walking from the bathroom to her bedroom, she noticed the presence of the accused person at the door of their hall. According to PW3, the accused person opened the said door trying to enter so she asked him the person he was looking for but the accused person did not say anything but rather closed the door. It is further the evidence of PW3 that she then went to her bedroom window to ask the accused person again what he was looking for but before she realized, the accused person was standing in her bedroom and at the time, she was naked. PW3 continued that the accused person threw an object at her and forcibly collected her two iPhone 12 mobile phones and her handbag containing her Ghana card and bank card. PW3 continued that after, the accused person warned her not to raise an alarm but she screamed to get the attention of her brother (PW4) and her father (PW1) and they came to her rescue and arrested the accused person. It is the evidence of the fourth prosecution witness (PW4) that on the 20th February, 2024 at about 10:30 p.m., he got home and not long after PW3 also came home and parked her car in the yard of their house and closed the gate. He was on the phone at the time PW3 arrived. According to PW4, few minutes after PW3 entered, he overheard her scream, so he rushed out from his room and saw the accused person coming from PW3’s room holding her bag. He also noticed that PW3 was naked at the 11 time looking traumatized. PW1 also rushed out of his room to see what was happening and PW1 quickly held the accused person. A struggle ensued between them and he also joined PW1 to arrest the accused person but the accused person dropped PW3’s hand bag and punched him in the face and also squeezed PW1’s genital. They managed to arrest the accused person and later the Police patrol team came to take the accused person to the Sakumono police station. In this case, after the court had ruled that, a prima facie case has been made against the accused person, he exercised his option to open his defence. Indeed, the accused person had the burden of producing evidence, sufficient enough in the light of the totality of the evidence to raise a reasonable doubt as to whether he was the one who robbed PW3 and assaulted PW1 on the 20th February 2024, although he is not required to prove his innocence. See: sections 10 (1), 11 (2) and 3 of the Evidence Act, NRCD 323 See also: Ali Yusif (No.2) v The Republic [2003-2004] SCGLR 174 holding (2) The accused person in his defence denied the offences. The accused person in his evidence stated that on the 20th February, 2024, he was standing in front of their house that evening since his father was unwell and he was the one taking care of him. It is further the evidence of the accused person that whilst standing in front of their house, he saw a police vehicle approaching and when they got to where he was, they told him that he was needed at the Sakumono police station and he asked them why and they responded by saying that he will get to know when he gets to the police station. According to the accused person, it was when he got to the police station that the police told him that the complainant in this case (PW3) has reported to the police that he had robbed her and also assaulted her father (PW1) and her brother (PW4). The accused person stated that he told the police that he knew nothing about what they were alleging and that he had not committed such offences and that was when the investigator (PW2) told him that he took PW3’s two IPhone 12 mobile phones and a 12 bag which contained her Ghana Card and bank card and he told the police that he knew nothing about the allegations. The investigator (PW2) then responded that she has issued medical forms to PW1 and PW4 to go to the hospital so she will detain him until they return. The next day in the afternoon around 3:00 p.m., PW2 released him and charged him for court. He then asked PW2 to show him the phones and the bag that they alleged that he had stolen from PW3 because he knew nothing about the case. Upon asking PW2 this question, she got annoyed and she detained him again and he was arraigned before this honourable court. From the above, this case seems to boil down to one of oath against oath. The Supreme Court in the case of Gligah & Atiso v. The Republic [2010] SCGLR 870 at 878 per Dotse JSC stated thus: “The Supreme Court in Amartey v The State (as stated in holding (1) of the headnote to the case) laid down the following test for general application in all criminal cases namely: Where a question boils down to oath against oath, especially in a criminal case, the trial Judge should first consider the version of the prosecution, applying to it all the test and principles governing credibility of witnesses, when satisfied that the prosecution’s witnesses are worthy of belief, consideration should then be given to the credibility of the accused’s story, and if the accused’s case is disbelieved, [page 879] the judge should consider whether, short of believing it, the accused’s story is reasonably probable.” Thus, the law is that a person ought not to be convicted of a charge if in respect of that charge the trial has ended in a situation where the word of the accuser is the only thing standing against the word of the accused person, there is the need for corroboration of the accuser’s word. I am further enjoined by holding (3) in the case of Lutterodt v the Commissioner of Police [1964] 2 GLR 429 SC at 480 to examine the defence of the accused person as follows: 13 “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 defence in three stages: (1) Firstly, it should consider whether the explanation of the defence 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 defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” I now wish to determine whether the accused person is innocent or liable. I have already indicated that, it is the prosecution that is to prove his guilt. It is instructive to note that, the accused person denied ever been around at the place the incident took place and the time the incident is said to have occurred on the 20th February, 2024. He stated that he was in fact in the house taking care of his sick father only to be arrested by the Police patrol team whilst standing in front of their house. Interestingly, in his caution statement (Exhibit “A”) which he gave to the police on the 21st February 2024, a day after the incident occurred when the matter was still fresh in his mind, he admitted that he was indeed at the place where the incident took place and the time the incident is said to have occurred on the 20th February, 2024 and that he indeed entered the house in question to look for an old lady to have a conversation with her about a job she promised to get him and not to steal. He stated further that PW1 and PW4 in fact lured him into their hall and the police patrol team came to arrest him. 14 Excerpts from Exhibit “A” are as follows: “ … Yesterday at about 9:20 p.m., whiles returning from Sakumono Estate Junction, I noticed the complainant was driving her car into the compound. I called her sister and asked her if her mother was around. It was after my second call then she started shouting thief! thief!. I told her to come down that I am not a thief. I was from Sakumono Estate junction after buying some food and eating same there. Whiles going home on reaching a section of the road at the Catholic Church I spotted the car entering the house. I know someone who always come to give us food when I was in detention at the Sakumono cell. Whiles the complainant was shouting and entering the main hall it alert the brother and the father. Later one man who I can identify when seen joined. They lured me into the hall offered me a seat. They said there has ever been a break in so they don’t like intruders, their calling their mother to confirm the story I was saying. All of a sudden, the man holding the stick said they will kill me. He hit my head with the stick and I started defending myself. I am left with bruises on my body. I did not go to steal, I went to look for the old lady… I am in pain. Whiles the Papa 152 team came to bring me to the station to assist in investigation.” It is obvious from the above dialogue that the accused person has contradicted his sworn evidence as against his unsworn statement in Exhibit “A” and the law is that, where a case boils down to facts and credibility of witnesses, if the court takes the view that one side or the other is the truth then the accounts are mutually exclusive of each other. Once the court decides to believe with one side of the story it means the other side is a fabrication. See: Ansah-Sasraku v. The State (1966) GLR 294 at 298 SC. In the case of Kuo Den alias Sobti vrs The Republic (1989-90) GLR 203 at 213 it was held by the Supreme Court that material inconsistencies in defence put up by the accused person have been held to provide sufficient justification for the defence to be rejected. 15 The law is also that a witness whose evidence on oath was contradictory of a previous statement made but him, whether sworn or unsworn was not worthy of credit unless he gave a reasonable explanation. See: section 76 of the Evidence Act, 1975 (NRCD 323). Yaro vrs The Republic [1979] GLR 10 where it was stated by the court thus: “A previous statement which was in distinct conflict with the evidence on oath was always admissible to discredit or contradict him and it would be presumed that the evidence on oath was false unless he gave a satisfactory explanation of his prior inconsistent statement. A witness could not avoid the effect of a prior inconsistent statement by the simple expedient of denial.” See: Bour v The Republic [1965] GLR 1 SC. Gyabaah vrs The Republic [1984-86] 2 GLR 461 CA. State vrs Otchere (supra). In the case of Poku vrs The State [1966] GLR 262, the Supreme Court stated that: “The principle in the must cited case R v Harris [1927] 20 Cr. App. R, 144, is strict but not absolute. In this country it would expose the administration of criminal justice to ridicule if the testimony of the witness on oath were rejected outright because he is alleged to have made a previous unsworn statement which is in conflict with his evidence without carefully considering his account of the circumstances under which any such statement was made.” The court stated further that: “Since the witness in this case was not cross examined by the prosecution to explain why the two statements differed, his sworn statement should not have been ignored, but should have been accepted.” 16 It is instructive to note that the accused person was cross-examined on the contradictions between his evidence-in-chief, answer given under cross-examination and caution statement (Exhibit “A) yet, he could not give this court any satisfactory explanation. In one breath, he was not at the place the incident took place and the time the incident is said to have occurred on the 20th February, 2024. In another breath, he was at the place the incident took place and the time the incident is said to have occurred on the 20th February, 2024. On one hand, he was in the house taking care of his sick father. On another hand, he was returning from Sakumono Estate Junction, when he noticed that PW3 was driving her car into her compound and he called her sister and asked her if her mother was around. In one vein, he was standing in front of their house when the police patrol team came to effect his arrest. In another vein, PW1 and PW4 lured him into the hall, offered him a seat and the Police patrol team arrested him and sent him to the police station. On one leg, he did not go to the said house to steal but he went there to look for an old lady. The accused person’s denial of the content in his caution statement (Exhibit “A”) is an afterthought and same will be taken with a pinch of salt. If indeed, some of the content in his caution statement are not what the accused person told PW2 to write down for him, he would have raised an objection to the tendering of same when same was read out in English language and explained to him in Fante, the language of his choice by the court interpreter in open court. It is now too late for the accused person to say that some of the content in his caution statement are not what he told PW2 to write down for him. The accused person further sought to create the impression in his evidence-in-chief and whilst undergoing cross-examination that, he was not present at the place and time of the incident on the 20th February, 2024. He claimed that he was in the house taking care of his sick father. This court was therefore expecting him to call any of the tenants in their house as a witness to corroborate his story since he claimed that his father is now deceased. Any of the accused person’s co-tenants was a material witness 17 but he failed to call any of them and he did not give this court any reason for failing to do so. The Supreme Court in the case of Gligah v The Republic [2010] SCGLR 870, at holding 5 stated that: “the Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case.” This sound principle of law was re-echoed by the Supreme Court in the case of Frimpong Alias Iboman v The Republic (supra). In the case of Sarpong v. The Republic [1981] GLR 790, it was also held that where a material witness on an issue is not called to give evidence, the party who bears the burden losses on that issue. Having failed to call any of his co-tenants to corroborate his assertion that he was in the house taking care of his sick father at the time the incident occurred makes his defence incomplete and also injures his defence. Granted without admitting that the accused was in the house on the day of the incident taking care of his sick father, he failed to lead a shred of evidence to support his wild allegation in this trial. This court therefore finds the accused person’s assertion that he was in the house taking care of his sick father as an afterthought cleverly calculated to throw dust into the eyes of this court and to avoid the axe of justice upon him and it will be taken with a pinch of salt. Under the Evidence Act, 1975 (Act 323) section 80 (2), the court is entitled to consider statements or conducts consistent or inconsistent with the testimony of witnesses at the trial to prove the credibility of witnesses. See: In State v Otchere [1963]2 GLR 463 Bour v The State [1965] GLR 1 Egbetorwokpor v The Republic [1975] 1 GLR 585, CA 18 In the case of Kyiafi v Wono [1967] GLR 463 at 467 C.A the court per Ollennu J.A. said that: "It must be observed that the questions of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses." A court has to test its impression as to the veracity or truthfulness of oral testimony of a witness against the whole of the evidence of that witness and other evidence on record. See: Ackom v Republic [1975] GLR 419 This court also formed an impression of the behaviour of the accused person in the witness box. From the way the accused person reacted to questions and how he answered questions showed that he was not a witness of truth. He pretended not to hear and understand questions for the purpose of gaining time to consider the effect of his answers. Forgetting facts which he knew will implicate him or would be open to contradictions, minutely remembering others which he knew cannot be disputed and replying evasively. The accused person was very economical with the truth he is therefore not a credible witness. It would be madness to rely on his evidence. The accused person’s evidence is therefore not credit worthy to be relied on and therefore he is not a credible witness of belief. The accused person’s defence is not satisfactory and not reasonable probable. This court therefore finds as a fact the following: i. That on the 20th February, 2024 at about 10:30 p.m., the accused person was in the house of PW3 at Sakumono. ii. That the accused person was arrested by the police patrol team in PW3’s house and not in front of his house. 19 iii. That the accused went to the house of PW3 to steal. The next question to be answered is what the accused person stole from PW3. PW3 stated that the accused person collected her two iPhone 12 mobile phones and her handbag containing her Ghana card and bank card. Whilst PW2 stated under cross- examination that the two iPhone 12 mobile phones, bag and cards were retrieved from the accused person, PW4 who was present at the scene stated on the other hand, that the only item that the accused person dropped in their attempt to arrest him was PW3’s handbag. The following dialogue ensued between the accused person and PW2: “Q. What shows that I took the two iPhones and the hand bag containing the Ghana card and the Dubai Islamic ATM? A. The items were retrieved by the complainant and the witnesses from you and brought to the police station.” Excerpts from PW4’s evidence-in-chief are as follows: “8. That my Dad, Augustine Kwaku Andoh also rushed from his room to see what was happening, quickly he held the Accused person and a struggle ensued between them and I also joined my dad to arrest the Accused person but in the process, he dropped my sister’s hand bag and punched me in the face.” Again, none of the prosecution witnesses testified to the effect that they found the two iPhone 12 mobile phones on the person or in the possession of the accused person when he was apprehended. This court therefore finds as a fact that, that something that the accused person stole from PW3 is her hand bag containing her Ghana card and bank card and nothing more. Did the accused person in stealing PW3’s hand bag containing her Ghana card and bank card use force, harm or threat of any criminal assault on PW3? 20 It is also instructive to note that whilst PW3 claimed that the accused person threw an object at her and forcibly collected her two iPhone 12 mobile phones and a ladies handbag containing her Ghana card and bank card and also gave her a verbal warning not to make any noise on the day of the incident, PW2 and the particulars of the offence of count one (1) state that the accused person did threaten to stab PW3 to death thereby putting fear in her and succeeded in taking her two iPhone 12 mobile phones and ladies bag containing her Ghana card and bank card. The facts as attached to the charge sheet also on the other hand, provides that not only did the accused person warn PW3 not to make noise or raise an alarm else he would stab her to death but also the accused person struck PW3 with an object and she collapsed on the ground after which the accused person took her two iPhone 12 mobile phones and ladies bag containing her Ghana card and bank card. Excerpts from PW3’s evidence-in-chief are as follows: “ 7. That Accused person threw an object at me and forcibly collected my two iPhone 12 mobile phones and my handbag containing Ghana Card and bank Cards. 8. That after he took the items from me, he warned me not to raise an alarm but I screamed to get the attention……” The particulars of the offence of robbery provides thus: “PARTICULARS OF OFFENCE JOSEPH SAM, AGED: 28, VULGANIZER: For that you, on the 20th day of February 2024, at Sakumono in the Greater Accra Circuit and within the jurisdiction of this Court, did threaten to stab Lucille Andoh to death thereby putting her in fear and succeeded in taking her two (2) IPhone 12 mobile phones, valued GH¢10,000.00 and one (1) ladies bag, containing Ghana Card and Bank Cards.” PW2 testified as follows: “8. That the Accused person warned the complainant not to raise an alarm else he would stab her to death.” 21 Excerpts from the brief facts are as follows “BRIEF FACTS:- Complainant, Lucille Andoh is an Events Director and lives at Sakumono. Accused person Joseph Sam is a Vulganizer and resides at Sakumono Estates. On the 20th February, 2024 at about 10:45 p.m. Complainant went to her bathroom to shower. The moment she came out from the bathroom, she saw accused person standing on her corridor. The accused person then warned her not to make noise or raise an alarm else he would stab her to death. Complainant hurriedly entered her bedroom and the accused person also followed her. Immediately the accused entered the room, he struck her with an object, and she collapsed on the ground…” From the above, undoubtedly there is a conflict in the evidence of the prosecution witnesses, the particulars of the offence in respect of count one (1) which is robbery and the facts of the case. I find that there are serious inconsistencies which cannot be treated with a pinch of salt. Which of the prosecution witnesses spoke the truth? There are serious doubts as whether or not the accused person in stealing PW3’s hand bag containing her Ghana card and bank card, used force, harm or threat of any criminal assault on PW3. In one breath, the accused person threw an object at PW3 and forcibly collected her two iPhone 12 mobile phones and a ladies handbag containing her Ghana card and bank card and also gave her a verbal warning not to make any noise on the day of the incident. In another breath, the accused person threaten to stab PW3 to death thereby putting fear in her and succeeded in taking her two iPhone 12 mobile phones and ladies bag containing her Ghana card and bank card. In another vein, the accused person struck PW3 with an object and she collapsed on the ground after which the accused person took her two iPhone 12 mobile phones and ladies bag containing her Ghana card and bank card. In his Criminal Law in Ghana page 128 and 129, P. K. Twumasi explained the law concerning discrepancies in the case of the prosecution in the following words: 22 “Where there are discrepancies (or inconsistencies or contradictions in the testimonies of the prosecution witnesses, it is the duty of the judge to direct himself or the jury or assessors to the discrepancies and to tell them that such discrepancies are not fatal to the prosecution’s case unless they go to the very root of the matter in issue. A discrepancy in the case of the prosecution is fatal only when it cannot be reconciled with the rest of the evidence or when it is material or goes to the root of the matter in issue.” See: Mensah vs The State [1963] 1 GLR 26. In the opinion of this court, the conflict in the evidence of the prosecution witnesses is a crucial or decisive. In this instant case, my examination of the evidence of the prosecution witnesses reveals irreconcilable contradictions. The above contradictions go into the root of the matter in issue that is whether or not the accused person in stealing PW3’s hand bag containing her Ghana card and bank card, used force, harm or threat of any criminal assault on PW3. These inconsistencies in the dates are colourful and the doubt should inure to the benefit of the accused person. Furthermore, the star witness (PW3) stated in her evidence-in-chief that the accused person threw an object at her and forcibly collected her two iPhone 12 mobile phones and her handbag containing her Ghana card and a bank card and further warned her not to raise an alarm. Under cross-examination, the accused person asked PW3 what exactly she claimed he threw at her and whether she showed the said object to the police who came to arrest him and her answers were that she cannot recall and that she also did not show the said object to the police. The following dialogue ensued between the accused person and PW3: “Q. In paragraph 7 of your witness statement, you stated that I threw an object at you. Can you state the object that you claim I threw at you? A. I cannot recall what exactly it was. 23 Q. When the police patrol team came to your house, did you tell the patrol team what I threw at you and did you show them what I threw at you? A. No my lord.” PW2 also testified that the accused person used an object to strike PW3 and forcibly took her two IPhone 12 mobile phones and a bag. In a manner that would further the interests of justice and ensure fairness to the accused person so that he does not suffer any disadvantage, the prosecution had a duty to disclose and tender the said object that the accused person is alleged to have thrown at PW3 in one breath and used to strike PW3 in another breath in evidence. The rule that the prosecution must tender material exhibits therefore becomes an important qualification on the prosecution’s discretion. The court was therefore expecting the prosecution to tender the said object in evidence but they woefully failed to do so. In the opinion of this court the said object is material and vital as it was capable of clearly resolving one way or the other an important and decisive issue of whether or not the accused person in stealing PW3’s hand bag containing her Ghana card and bank used force or harm or threat of any criminal assault on PW3. As it stands now, there is no evidence before this court to prove that the accused person in stealing PW3’s hand bag containing her Ghana card and bank used force or harm or threat of any criminal assault on PW3. PW3’s evidence that the accused person in stealing PW3’s hand bag containing her Ghana card and bank card used force and harm stood uncorroborated. The prosecution who had the burden to prove that the accused person on the 20th February, 2024 in stealing PW3’s hand bag containing her Ghana card and bank card used force, harm or threat of any criminal assault on PW3 failed to prove same in accordance with section 13 of the Evidence Act, 1975 (NRCD 323) which provides as follows: 24 “In a civil action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” In the case of Sabbah v The Republic [2009] SCGLR 728, the Supreme Court in applying sections 11 and 13 of the Evidence Act, NRCD 323; the burden of producing evidence and proof of crime respectively held that a valid conviction shall be premised on grounds that the guilt of the accused person has been proved beyond reasonable doubt and where there is a doubt it shall be resolved in favour of the accused person. The law as decided in Miller v Minister of Pension [1947] 2 AER 373 and now a trite law is that proof beyond reasonable doubt does not amount to proof beyond a shadow of doubt. This court therefore finds and holds that there is no scintilla of evidence on the record to prove that the accused person in stealing PW3’s hand bag containing her Ghana card and bank used force or harm or threat of any criminal assault on PW3. From the totality of the evidence led together with the charge of robbery, facts, applicable laws as enunciated above and the exhibits, this court finds as a fact that the accused person neither used force, threw any object at PW3 nor threaten to stab her with a knife to death on the day of the incident. The prosecution thus failed to prove beyond reasonable doubt that the accused person in stealing PW3’s hand bag containing her Ghana card and bank used force, harm or threat of any criminal assault on PW3. From the totality of the evidence led by the prosecution witnesses together with the defence, the exhibits, and the applicable laws as enunciated above, it is the judgment of this court that the prosecution failed to prove the offence of robbery contrary to section 149 of the Criminal Offences Act, 1960 Act, 29 against the accused person. However, the prosecution was able to prove the offence of stealing against the accused person. Under section 154 (2) of the Criminal and Other Offences (Procedure Act), 1960 (Act 30): 25 “Where a person is charged with an offence and the facts are proved which reduce it to a lesser offence, that person may be convicted of the lesser offence although not charged with it.” Accordingly, the accused person is convicted of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The prosecution further succeeded in proving the following: 1. That the accused person forcibly touched PW1 on the 20th February, 2024 by squeezing his genital. 2. That the touch was without the consent of PW1. 3. That the assault by the accused person on PW1 was with the intention of causing harm and pain to PW1. 4. That the assault on PW1 by the accused person was unlawful. The prosecution thus succeeded in leading sufficient evidence in proving the offence of assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29) against the accused person. Consequently, this Court further finds the accused person guilty of the offence of assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly. SENTENCE In imposing the appropriate sentence, this court considered the following aggravating factors: i. the intrinsic seriousness of the offences charged; ii. the gravity of the offences charged; iii. the degree of revulsion felt by the law-abiding citizens of this country for the crime committed; iv. the premeditation with which the criminal plan was executed; v. the prevalence of the offence within the Accra Metropolitan Assembly and the country generally; 26 vi. the sudden increase in the incidence of this crime; This court also took into consideration in imposing the appropriate sentence, the following mitigating factors: i. the fact that the accused person has had no brush with the law; ii. the accused person’s plea for leniency and mitigation; iii. the fact that the ladies bag containing the bank card and Ghana card were retrieved; and iv. the one (1) year and six (6) days that the accused person spent in lawful custody due to his inability to meet his bail conditions in accordance with clause (6) of article 14 of the Constitution of Ghana, 1992. See the following cases: Frimpong @ Iboman v The Republic [2012] 1 SCGLR 297 Kamil v The Republic [2011] 1 SCGLR 300 Gligah & Atiso v The Republic [2010] SCGLR 870 Kwashie and Another v The Republic (1971)1 GLR 488 CA Asaah Alias Asi vrs The Republic (1978) GLR 1 Accordingly, this court hereby sentences the accused person to six (6) months imprisonment with hard labour (I.H.L) on count one (1) namely: stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The accused person is further sentenced to six (6) months imprisonment with hard labour (I.H.L) on count two (2) namely: assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). The sentences of the accused person are to run concurrently. CHIEF INSPECTOR WISDOM ALORWU FOR THE REPUBLIC PRESENT THE ACCUSED PERSON IS SELF-REPRESENTED ACCUSED PERSON PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) 27 (CIRCUIT COURT JUDGE) 28