REPUBLIC VRS. TETTEH AND ANOTHER (D2/30/20) [2025] GHACC 28 (26 February 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON WEDNESDAY, THE 26TH DAY OF FEBRUARY, 2025, BEFORE HER LADYSHIP AGNES OPOKU- BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: D2/30/20 THE REPUBLIC VRS: 1. SAMUEL TETTEH 2. RICHARD TETTEH FIRST ACCUSED PERSON PRESENT SECOND ACCUSED PERSON ABSENT INSP. EMMANUEL ASANTE FOR PROSECUTION PRESENT ELSIE GAMOR, ESQ. HOLDING THE BRIEF OF VITUS GBANG, ESQ. FOR THE ACCUSED PERSONS PRESENT JUDGMENT FACTS: The accused persons were arraigned before this court on 23rd July 2020 on the following charges; 1. Conspiracy to commit crime namely; robbery contrary to Sections 23 and 149 of the Criminal Offences Act, 1960(Act 29) 2. Robbery contrary to Section 149 of Act 29. 3. Robbery contrary to Section 149 of Act 29. 4. Robbery contrary to Section 149 of Act 29 The brief facts presented by the prosecution are that the complainants, Melchizedek Tekyi Zuta, Moses Amandi and Sarah Amandi are husband, brother-in-law and wife respectively and live at Old Ningo. The prosecution describes the accused persons as 1 natives of Ada residing at Ashaiman. The prosecution alleges that the complainant Melchizedek Tekyi Zuta, is a mobile money merchant operating at Dawhenya and Old Ningo. According to the prosecution, on 5th July, 2020 at about 1:00 am, the accused persons and their three accomplices now at large, broke into the complainants’ apartment by using a cement block to break the main door to gain access. The prosecution further alleges that the second accused person wielded a pump action gun and the other accomplices held locally manufactured pistols and an axe. The case of the prosecution is that upon entering the apartment, one of the accused persons’ accomplices hit the head of Moses Amandi with the butt of his gun, and inflicted injury on him. At gunpoint, the accused persons and their accomplices ransacked the rooms in the apartment and stole the following items; one Apsonic Jaguar motorbike with registration number M-19 GT 3343, one Boxer Motorbike with registration number M-18 GW 5406, one HP Compact laptop computer, six mobile phones, footwear and some clothing and cash of GH¢7,580. After that, they tied the complainants with pieces of cloth, kept them in one room and left with the alleged stolen items. The prosecution further states that the complainants lodged a complaint to the police and during investigations, the police tracked the Apsonic motorbike, which had a tracking device installed on it, to a mechanic shop at Ablekuma, a suburb of Accra where it had been sent for repairs and sale. The prosecution further states that on 8th July 2020, the Accra Regional Police Command feigned interest in purchasing the motorbikes and arrested the second accused person who rushed to the mechanic shop upon hearing that someone had expressed interest in purchasing the motorbikes. The second accused person then led the police to arrest the first accused person and the two motorbikes were subsequently recovered. The mechanic and the other accused persons 2 were later handed over to the Prampram police for investigations and the other suspects are currently at large. THE PLEA The two accused persons pleaded not guilty to the charges after they had been read and explained to them in the Dangbe Language. The case proceeded to trial and the prosecution called four witnesses and tendered in evidence the following exhibits; Exhibit “A’- Investigation Caution Statement of the first accused person, Exhibits ‘B”, “B1’-Investigation Caution Statement of the 2nd accused person and further investigation caution statement, Exhibit C- Charge statement of the first accused person, Exhibit “D”- Charge statement of the second accused person, Exhibit “E” series- Itemised Bills from MTN, Exhibit “F’- Boxer motorbike documents, Exhibit “H”- Photographs of the two motorbikes, Exhibit “J”, Photographs of the crime scene, Exhibit “K”: Medical report in respect of Moses Amandi. At the close of the case for the prosecution, the court in overruling a submission of no case ruled that a prima case was sufficiently made out against each accused person, requiring them to open their defence. The accused persons opened their defence and testified in their defence but called no witnesses. BURDEN OF PROOF Under Article 19(2)(c) of the 1992 Constitution, a person charged with a criminal offence is presumed innocent until proven guilty or has pleaded guilty. This implies that when a person is accused of a criminal offence, it is generally the duty of the 3 prosecution to prove the guilt of the accused person beyond reasonable doubt. This requirement is the essence of Sections 11, 13, and 15 of the Evidence Act, 1975(NRCD 323). In the case of Asante (No.1) v. The Republic (No.1) [2017-2020] I SCGLR 132 at 143 per Pwamang JSC held that: “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 was the accused person 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 his commission of the offence and his complicity in it except where he relies on a statutory or special defence” In the case of Kugblenu vrs. The Republic [1969] CC 160 CA per Ollenu JA stated the law as follows: “It is trite law that the onus upon the prosecution is to prove their case beyond all reasonable doubt. This applies to all material issues and matters, which form the pivot of the case of the prosecution or the pillar or foundation of the case upon which the case rests. If the prosecution leads evidence which creates uncertainty, they have failed and the accused should be acquitted”. Therefore, the prosecution has a statutory duty to prove the essential ingredients of the offences charged against the accused persons beyond reasonable doubt. When the accused persons are called upon to open their defence or voluntarily elect to do so, they are only required to raise a reasonable doubt in the case of the prosecution. The 4 standard of proof of the defence is on a balance of probabilities only. See Section 13(2) of NRCD 323. ANALYSIS The accused persons are charged with one count of conspiracy to commit crime, namely, Robbery contrary to Sections 23(1) and 149 of Act 29 and three counts of Robbery, contrary to Section 149 of Act 29. The current state of the law on conspiracy as formulated by the Statute Law Revision Commission under Section 23(1) of Act 29, is that conspiracy is committed: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” In the case of The Republic V. Augustina Abu & Others (Unreported, Suit No. ACC15/2010 Dated 23rd December 2009) Marful-Sau JA sitting as an additional High Court Judge aptly stated: “The effect of conspiracy as defined by the Criminal Offences Act, is that the persons must not only agree or act, but must agree to act together for common purposes. This to my mind raises the degree and standard of proof for the offence of conspiracy, since by the Criminal Offences Act; the prosecution must establish that the persons agreed to act, rather than just agreeing or acting…. Accordingly to succeed in securing conviction for conspiracy currently, under the Criminal Offences Act, 1960(Act 29), the prosecution must establish that the accused persons agreed to act with a common purpose for or committing or abetting a crime. Conspiracy under the new Criminal Offences Act therefore requires proof of prior agreement.” The essential ingredients of the offence of conspiracy which the prosecution must prove to secure conviction are neatly encapsulated in the decision of Justice Kyei Baffour JA sitting as an additional High Court Judge in the case of the Republic v. 5 Baffoe Bonnie and Others (Suit No. CR/904/2017 (Unreported) dated 12 May 2020 are as follows; 1. That there were at least two or more persons 2. That there was an agreement to act together. 3. That the sole purpose for the agreement to act together was for a criminal enterprise” The Supreme Court in the case Akilu v. The Republic [2017-2018] SCGLR 444 at 451, per Appau JSC concluded that: “The double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime” The substantive offence the two accused persons are alleged to have conspired to commit and succeeded in committing in furtherance of their agreement is robbery, contrary to Section 149 (1), which proscribes robbery provides that: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction and trial summarily or on indictment, to imprisonment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years”. Section 150 of Act 29 defines robbery as follows: “A person who steals anything commits robbery, 6 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’. To succeed on a charge of robbery, the prosecution must prove the following ingredients of the offence as stated by the Supreme Court in the case of Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 at 312, per Dotse JSC (as he then was), 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. The first prosecution witness, Melchizedek Takyi Zutah testified that he is a Sales Agent for Izone of MTN Ghana Ltd and operates a mobile money shop at Old Ningo. According to him, on 5th July 2020, at about 1:00 am whilst he was asleep, he heard a loud noise emanating from the compound. When he woke up, he saw someone pointing a pump action gun at him and ordering him to bring the money. According to him, he thought it was a dream but a slap from one of the accused persons made him conscious of the fact that his house had been invaded by five men wielding an axe, a locally manufactured pistol and a pump action gun. PW1 further testified that two of the 7 robbers who were not carrying weapons were ransacking everywhere in their rooms whilst those with the guns were threatening them to surrender their phones and money. They showed them where they had kept the money in a green container which the robbers took. In the process, they hit the head of his brother-in-law causing him to bleed. The robbers also stuffed his mouth and his brother-in-law's with rags to prevent them from shouting for help. They also tied their mouth, hands at their back and their feet together with pieces of cloth. Additionally, PW1 testified that the robbers interrogated them and moved them from room to room, ordering them to show them where they had kept the money and further demanding the pin codes to their mobile money wallets. During the attack, the robbers took six mobile phones belonging to them and those belonging to his company and mobile money business, an amount of GH¢7,580, a Boxer motorbike, an Apsonic Jaguar motorbike, two laptops and some clothes and shoes. When the robbers finally left the house with the items, it took them about twenty minutes for them to untie themselves, including his pregnant wife. He then went to the Police Station to lodge a complaint at about 2:00 am. During the investigations, he informed the police that one of the motorbikes had a tracker on it. Due to that, they were able to track the motorbike to Accra and with the assistance of 14 armed police officers, they located the motorbike at a mechanic shop at Ablekuma. When the mechanic was arrested, he mentioned the name of the second accused person as the one who brought the motorbike to him for sale. The police officers feigned interest in buying the motorbike. They asked the mechanic to call the second accused person. The police officer then told the mechanic to inform the second accused person to meet them at a Bank where they were going to withdraw money to buy the motorcycle. When the second accused person arrived at the Bank, he identified him to the police as one of the people who robbed them. 8 Under intense cross-examination by Counsel for the accused persons, the first prosecution witness was emphatic that the first and the second accused persons were part of the people who unlawfully invaded their home and robbed them of the items. He described the dress the first accused person was wearing as a yellow T-shirt and the second accused person wore a black jacket and that when the first accused person was arrested by the Greater Accra Regional Command, he identified him as one of the people who allegedly robbed them. The first prosecution witness further maintained that anyone in possession of their motorbikes stolen during the alleged robbery had a case to answer. He further maintained that on the day of the alleged robbery, the robbers were taking orders from the second accused person. The second prosecution witness (PW2), Moses Amandi, PW1’s brother-in-law, corroborated the testimony of PW1 and gave an account of what he witnessed on the day of the alleged robbery. According to him, on 5th July 2020, he was asleep in his room when at about 1:00 am, someone hit him and when he woke, he realised it was robbers pointing a gun at him. One of the robbers told him to lie prostrate whilst demanding him to show them where they had kept the money. Thereafter, the robbers dragged him to another room in the house where they had kept other members of the household. According to him, the robbers were five in number with one wielding a pump action gun, one holding a locally manufactured pistol and another holding an axe. He further states that two of them were masked, whilst the other three were not. The second prosecution witness further says that the robbers requested for the keys to two motorbikes and whilst showing them where the keys had been placed, one of them hit his head with the pistol, leading him to bleed profusely. Again, he testified that he saw PW1 also lying down in the hall and being assaulted by the robbers. PW1 then showed them a green container where the money had been kept but they insisted that the money was more than what they had shown them. They then dragged the two of them from the hall to a room where his pregnant sister and her two-year-old daughter 9 were. They ordered him and PW1 to lie on the floor whilst his sister and her kid were still sitting on the bed and they threatened to cause harm to them if they did not show them where the money was. They ransacked all the rooms and used ropes to tie his hands and that of his brother-in- law's at their backs and they also tied their legs. They tied their mouth with clothes to prevent them from shouting. They then dragged the two of them into another room and locked them, leaving his sister and her kid in the other room. A few minutes later, one of the robbers forced the door open with an axe. Later, when he heard no noise, he untied himself and then untied PW1. When they came out of the room, he saw his sister tied down on the floor around the kitchen and her daughter lying beside her. He also noticed that the robbers took the two motorbikes and their phones. The second prosecution witness under rigorous cross-examination by Counsel for the accused persons, was emphatic that the two accused persons were part of the five people who robbed them and that they could identify these two to the police because they were not masked. The second prosecution witness further testified under cross- examination that because the robbers came in the night and asked him to lie face down, he could not observe their faces, but one of them was wearing a black shirt. He states that the first accused person was wearing a yellow cardigan and the second accused person was wearing a black shirt. He states that it was the first accused person who woke him up from his sleep and pointed a pistol at him and the other robber was holding an axe. The fourth prosecution Sarah Amandi testified as the fourth prosecution witness (PW4). She confirmed the attack on them in their house on Sunday 5th July 2020, at about 1:00 am by five armed robbers. According to her, two of the robbers were masked and the others were unmasked. She further testified to how the robbers ordered her husband to lie down and to bring all the money they had on them. One of them who 10 was wearing a yellow pullover with a mask on came back to the room, pointed his shotgun at her forehead and threatened to kill her if she failed to give him all the money they had. She then told him the money they had was in a green container in the sitting room and the assailant took her phone and left the room. Another person wearing black with an axe also came to the room and requested money and her phone. She told him that his friend had already taken it and then upon hearing this, he also went out. When they demanded more money that they could not get, they tore their curtains and used to tie PW1 and PW2. They then dragged PW1 and PW2 on their bellies to a different room and locked them up. One of the robbers returned to her room and was playing with the baby. He wanted to carry the baby, but she resisted. The others then joined him and one with a long pump action gun asked her to get down from the bed but the one in yellow and another in black with an axe told him to leave her because of the baby and the fact that she was pregnant. He shouted at her and hit her hard on the head which made her get down from the bed with the baby. After lifting the mattress and seeing nothing, he told her they were going to take the two motorbikes, change the number plates and use them in Ningo town. He then took her out of the room to the bathroom corridor and tied her hands behind her with her baby beside her. Later, when the place became quiet, her husband came to untie her. Under cross-examination by Counsel for the accused persons, the fourth prosecution witness described the first accused person as wearing a yellow pullover and holding a small gun and the second accused person as wearing a black shirt and holding a long gun on the day of the alleged incident. The third prosecution witness, the investigator D/Insp. Seidu Abdulai testified that on 5th July 2020 at about 12:30 pm, he was on duty at the Old Ningo Police Station when a case of robbery was referred to him for investigation. He obtained statements from the complainants. On 8th July, 2020, with the assistance of the Accra Regional Police, the accused persons were arrested and he went for them on 10th July 2020. He tendered in evidence the investigation caution statements of the first and second accused persons 11 admitted and marked as Exhibits “A” and “B”, “B1” respectively and the charge statements of the first and second accused persons admitted and marked as Exhibits “C” and “D” respectively. According to his testimony, in the course of investigations, the Prampram District Court granted a Motion for MTN to furnish the police with the itemised bill. When he received the itemised bills, it was revealed that the two accused persons were present in Ningo Prampram from 2nd July, 2020 to 5th July 2020 i.e. the day of the alleged robbery. Further investigations also revealed that the real name of the first accused person is Amartey Samuel and the real name of the second accused person is Adikyere Richard. He tendered in evidence the itemised bills admitted and marked as Exhibit “E” series. Additionally, PW3 testified that investigations disclosed that one of the motorbikes allegedly robbed from the home of the victims had a tracking device. The victims, with the assistance of the Greater Accra Police Patrol team, tracked the said motorbike to a mechanic shop owned by one Odartey Lamptey at Ablekuma. The shop owner, Odartey Lamptey in his written statement mentioned the people who brought the two motorbikes to him. The police mounted surveillance on the accused persons and lured them leading to their arrest as those who brought the motorbikes to his shop. The first prosecution witness produced documents on the two motorbikes which were admitted and marked as Exhibits “F” and “G”. He also tendered photographs of the two motorbikes as an exhibit, admitted and marked as Exhibit “H” and photographs of the scene of the crime as Exhibit “J” series. The third prosecution witness further testified that during investigations, he issued Moses Amandi with a police medical form to attend the hospital. The endorsed medical form was admitted and marked as Exhibit “K”. The investigator withstood rigorous cross-examination by Counsel for the accused persons when he maintained that the accused persons were part of the people who robbed the complainants. He further testified that although the accused persons were not wearing the dresses as described 12 by the witnesses at the time of their arrests, during investigations, they found similar dresses in their photo galleries that they had taken photographs with and when queried, the first accused person stated that he had used the dress as a duster and thrown it away and the second accused person also responded that he could not find the dress. He also states that through the tracking device, the investigations revealed that the motorbikes were in the possession of the accused persons, leading to their arrests. The third prosecution witness further testified under cross-examination by Counsel for the accused persons that since the motorbikes were traced to the accused persons and the witnesses described them as being part of the people who allegedly robbed them coupled with the itemised bill showing their location on the day of the alleged robbery, there was no need to conduct an identification parade. THE DEFENCE OF THE FIRST ACCUSED PERSON The first accused person in his investigation caution statement admitted and marked as Exhibit “A” vehemently denied the offences and stated that one Daniel gave him the motorbikes to sell for him and that he contacted the second accused person to assist him in selling the motorbikes. The second accused person then informed him that he knew of a mechanic who could help. They arranged and sent the motorbikes to the mechanic. On 5th July 2020, at about 11:00 am, he called the second accused person, who told him that he was at Ablekuma. He met him and his friend Evans at Ada. He asked them where they were coming from and he said they were coming from work, but he did not enquire about the work they went to do. The second accused person was wearing a cap, black shirt, white long-sleeved pullover and black trousers, whilst Evans was wearing black trousers and a blue and yellow pullover. He took a picture of them at the roadside and went home. On 10th July, 2020, he was lured to a filling station where he was arrested by the police. 13 The first accused person in his defence, testified on oath that he lives in Manhia in the Greater Accra Region. However, he comes from Ada and currently works at a company that is in the sale of car tyres. According to him, he has known the second accused person since they both hailed from Ada and grew up together until he left and came to Accra. According to the first accused person, he used to be a driver's mate in Ashaiman. Whilst there, he met one Daniel popularly called 'Plato', a native of Old Ningo who was also a driver's mate and a friend. When he left Ashaiman for Accra, he used to communicate with Daniel on the phone once in a while. Later, Daniel bought a motorbike and started doing Okada business at Ada junction and he had been in that business for about three years. The first accused person further testified that on 27th June 2020, at about 11:00 am, he received a phone call from Daniel who informed him that he had a motorbike he was offering for sale and asked if he could help him get a buyer. According to him, he wanted to use the proceeds of the sale to top up money to buy a taxi. He then called the second accused person and informed him about the offer of Daniel's motorbike for sale and inquired if he could assist in getting a buyer. The second accused person later called him back and mentioned that he had a mechanic who repaired his motorbike and that he, the mechanic, could be of help. He relayed the information to Daniel and they agreed to meet and on 28th June, 2020, when Daniel called him to confirm that he was coming with the motorbike, he asked him to call the second accused person for them to meet at a place called Bineyard before he got there at about 3:40 pm. When he got there, he met the second accused person and instead of Daniel, he saw one gentleman he had not met before called Isaac, who had two motorbikes. He was informed that Daniel and Isaac each rode one motorbike to the place and Daniel had to leave for Accra. He then asked the second accused person why two motorbikes were being offered for sale, he could not answer and Daniel told him on the phone that the two motorbikes belonged to him. He then went with the second accused person and Isaac to Ablekuma, where the second accused person handed over the motorbikes to the mechanic and they departed. 14 Additionally, the first accused person states that during the investigations, the complainant indicated that he did not know him and could not identify him. However, the arresting officer impressed upon the complainant to identify him as one of the perpetrators of the alleged crime. The first accused person challenged his statement given at the police station admitted without objection and alleged that he was subjected to beatings, and the statement was not read and explained to him after recording same. According to him, during investigations, he gave the phone number of Daniel to the investigator but was not privy to the discussions between the two. The first accused person therefore vehemently denied the offences and maintained that he was only assisting Daniel to find a buyer for the motorbikes but he failed to enquire from him about the ownership of the motorbikes since he believed he would produce the documents of title to the buyer. Under intense cross-examination by the prosecution, the first accused person testified that he is a driver who plies the Ningo Prampram, Aflao, Sogakope, Adafoh, Sege, Circle and Kaneshie route and that if the itemised bill shows that he was around Ningo Prampram on the 3rd, 4th and 5th of July 2020, it was not connected to the robbery. He also states that the fact that he made a call to the second accused person whilst at Ningo Prampram did not mean that they were engaged in robbery. The first accused person further claimed that he gave the motorbikes to the mechanic on 28th June 2020, when the alleged robbery had not even occurred. DEFENCE OF THE SECOND ACCUSED PERSON The second accused person, also in Exhibit “B”, also denied the charges levelled against him and stated that on the day of the alleged incident on 5th July 2020, whilst in Accra, he called the first accused person, who said he was at Ablekuma. He went there on his motorbike and saw the first accused person and his friend. The first accused person took a photograph of them and he left them at the scene. On Monday, 6th July 2020, the first accused person called to inform him that someone had a motorbike he was offering for sale and that he should look for a buyer. He then contacted a mechanic 15 who asked them to come to his shop. The first accused person then directed him to a junction at Awoshie, and when he got there, he saw the first accused person and his friend there with two motorbikes, and the three of them went to the mechanic with the bike and met him. He gave the mechanic the prices and left the bikes with him. He denied being part of the alleged robbery. He states that he had thrown away the dress he wore when they took the picture on the 5th July 2020 after they sent the motorbikes to the mechanic. On 10th July, 2020, he was arrested after being lured to a location under the pretence that someone had expressed interest in the motorbikes. The second accused person in his defence, testified that he comes from Ada but lives at Kokrobite near Kasoa and works as a trainee mason and a driver's mate. He further testified that the second accused person is a brother and that they have known each other since childhood. He denied informing the Police at the time of his arrest that he lived at Ashaiman, but rather told the Police that he lived at Kokrobite and offered to take them to the place but the Police doubted him. According to his testimony, the first accused person informed him that someone called Plato had informed him that he was selling a motorbike and gave his phone number to him. When Plato called to inform him about the sale of his motorbike, he recommended Odartey Lamptey to him as a mechanic who could assist him in selling the motorbike and they all agreed to meet at Bineyard Traffic light as he was at that time at Kokrobite. On the 28th May, 2020, Plato met him another person who was not known to him, as well as the first accused person. He led them to Ablekuma where two motorbikes were handed over to the mechanic, Odartey Lamptey, who was to sell the motorbikes for GH₵2,800.00 and GH₵2,000.00, respectively. After giving out the motorbikes to the mechanic, they all departed. Sometime around the 7th day of July, 2020, Odartey Lamptey called to inform him that some people had expressed interest in buying the motorbikes and that he wanted him to be present. He in turn called the first accused person to inform him but could not reach him on the phone and he was later arrested after the police had arrested the mechanic. He also testified that it was a police officer 16 who impressed upon the complainant to identify him as one of the people who allegedly robbed them since he was one of the people who sent the motorbikes allegedly robbed from the complainant. The second accused person also alleged for the first time that at the Striking Force Unit of the Ghana Police Service, the Police beat them mercilessly while the Commander took a cutlass and cut off the beard of Odartey Lamptey, the mechanic. He also claimed that the Police did not read the statement to him before he gave his thumbprint. He also gave the telephone number of Plato to the investigator to contact him and when he put it on loudspeaker, the Plato asked him to give the money to the first accused person. When the investigator told him that he would be arrested for the sale of the motorbike, he fled. He also denied that he told the Police that he threw the clothes he was wearing away and vehemently denied the charge levelled against him. EVALUATION OF THE EVIDENCE LED BY THE PROSECUTION AND THE DEFENCE PUT UP BY THE ACCUSED PERSON. From the evidence led by the prosecution and the defence put up by the accused persons, there is ample direct and circumstantial evidence implicating the two accused persons in the crimes charged. Three of the prosecution witnesses who witnessed the robbery positively identified the accused persons as part of the people who robbed them on the day of the alleged incident. In the case of Adu Boahene v. The Republic [1973] G.L.R. 70 at page 75 CA, the court held that: “Where the identity of an accused person is in issue, there can be no better proof of his identity than the evidence of a witness who mounts the witness box and swears that the man in the dock is the one he saw committing the offence, which is the subject- matter of the charge before the court.” In the instant case, there can be no better proof of the identity of the three prosecutions who swore to have seen the accused person perpetuating the alleged robbery on them. 17 The witnesses described the dresses that the accused persons were wearing on the day of the alleged incident and positively identified them as part of the people who invaded their homes in the middle of the night and robbed them of their items. Learned Counsel for the accused persons challenged the investigator during cross-examination of the failure of the police to conduct an identification parade. The investigated replied that since the witnesses positively identified the accused persons, the motorbikes stolen during the robbery were found with them, and the itemised bill tendered in the evidence established that the two accused persons were within Ningo on the date of the alleged robbery, there was no need to conduct an identification parade. It is trite learning that an identification parade is not the only means by which victims of alleged crimes can establish the identity of perpetrators of a crime. On the place of identification parade in criminal trials, the Supreme Court in the case of Razak v. The Republic Criminal Appeal No. J3/6/2011 dated 25th April, 2012, the Supreme Court held that; “In every criminal trial, it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person(s) who committed it. That was of a very crucial importance for a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal. Thus, where the ground of appeal bothers on mistaken identity, a trial or appellate court ought to carefully examine the evidence on it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused (appellants in this appeal), the conditions in which the observation was made, whether or not the area or vicinity was lit to make observation possible, the distance between the witnesses and the appellants, or whether or not the description by the prosecution witnesses agreed with that of the appellant(s). On this see the guidelines by Lord Widgery CJ in R v. Turnbull [1977] QB 224” The Court further stated that; 18 “Thus, it is fair and reasonable to say that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes.” In the instant case, the witnesses stated that some of the perpetrators were masked, but the two accused persons were not masked and described the dresses that they were wearing. The robbery lasted for some time, and the description given by the witnesses matches the photographs taken contemporaneously with the robbery. Thus, the failure to hold an identification parade is not fatal in the circumstances of the case. The direct evidence apart, there is ample circumstantial evidence on record implicating the accused persons in the crime charged. In the case of Logan v. The Republic [2007- 2008] 1 SCGLR 76 at page 90, the Supreme Court per Aninakwah JSC, delivering the judgment of the Court stated that: “For circumstantial evidence to support a conviction, it must be inconsistent with innocence of the accused person. It must lead irresistible to the conclusion not only that the crime charged had been committed, but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence that has no facts supporting it, as in the instant case, is therefore wrong” In the case at bar, the tracking device on the motorbikes led to the Police tracking them to the mechanic, who mentioned the names of the accused persons as the ones who brought the motorbikes to him. When the Police feigned interest in purchasing the motorbikes, then again, it was the first accused person who negotiated and met them for sale, leading to the arrest of the two accused persons. The accused persons mentioned one Daniel, also known as Pilato, as the one who gave the motorbikes to them to assist him in selling them. From their account and the account of the third prosecution witness, the investigator, when the alleged Daniel got wind of the involvement of the Police, he cut all contact with them. Also, from the contact number 19 that the accused persons gave as the contact number of the said Daniel, the itemised bill from MTN shows that the phone number is registered in the name of one Timothy Attipoe, born in 1960. Again, the itemised bill in respect of the first and the second accused persons shows that they were within the jurisdiction at the time of the robbery. The second accused person who denied that he was at Ningo testified under cross-examination by the prosecution as follows; Q: Kindly look at the 3rd of July at about 5:46 and tell the court whether you see your phone number there. A: Yes My Lord. Q: I am putting it to you that the record shows that on 3rd July 2020, you were at Ningo Prampram. A: That is not true. Q: I am putting it to you that on the same itemised bill, on July 4th, 2020, you were at Ningo. A: My Lord, it is not true. I do not have a house at Ningo. Q: I am also putting it to you that you were there on the 4th to lay surveillance on the complainant. A: My Lord, it is not true. I do not have a house at Ningo. Q: I am putting it to you that on the day of the incident on the 6th from the itemised record, you were at Ningo. A: I was not at Ningo. I do not have a sleeping place at Ningo and the time that you are talking about it was a rainy season. The testimony of the second accused person that he was not within Ningo Prampam the period prior and during the robbery strains credulity since it is in sharp contradiction to the documentary evidence tendered by the prosecution as shown in the itemised bill locating him within Ningo Prampram at the time of the alleged robbery. The evidence on record also shows that the two accused persons before the court are friends and the 20 first and second accused persons communicated with each other via phone call at the time that they were within the town where the incident is alleged to have occurred. The accused persons who claimed to have been mercilessly beaten before the statements were taken at the Police Station failed to raise an objection through their Counsel during the trial to enable the court to conduct a mini-trial to determine the admissibility of the statements given at the station. Also, when they raised it when they opened their respective defences, the accused persons did not lead any further to prove that indeed their statements were not voluntarily given. There are no marks of assault on their bodies and no medical report before the court to establish their claims of assault. The oral testimonies of the accused persons, which showed that they were under duress when they gave their statements, are not borne out of the evidence on record. The totality of the evidence led by the prosecution and the defence put up by the accused persons, I hold that the accused persons failed to raise a reasonable doubt in the case of the prosecution and the evidence confirms the assertion of the prosecution that the accused persons herein agreed and acted together with others at large to commit robbery and pursuant to their agreement, they succeeded in robbing the complainants of their belongings including the motorbikes which were tracked to the accused persons during investigations. The court finds the explanation of the accused persons on how the motorbikes came to be in their possession not credible and holds that the prosecution proved their case of robbery against the two accused persons beyond reasonable doubt. I therefore pronounce the accused persons guilty of the charges and I accordingly convict them of same. SENTENCING The factors a trial judge must consider in imposing the length of a sentence as stated in the case of Kwashie v. The Republic [1971] I GLR 488-496, are as follows: “(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law- abiding citizens of the society for the particular crime; (3) the premeditation with 21 which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” The court has considered both the mitigating and aggravating factors urged on the court by the Counsel for the convicts and prosecution, respectively. In sentencing the convicts, the court considered the plea in mitigation of the sentence put forth by Counsel, the fact that they are first-time offenders, and the youthful ages of the convicts, which are 28 years and 25 years, respectively. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody is considered before being granted bail. The aggravating factors the court takes into consideration are the nature of the force used on the victim, the fact that the offence was premeditated from the way the convicts manhandled the pregnant woman in the presence of the 11-month-old baby and the trauma the convicts put the victims through. The court also considered the injury sustained by the second prosecution witness and the fact that the items stolen except the motorbikes, have not been retrieved. The court also considers the weapons used in committing the crime, the injuries sustained by the victim and the need to impose a deterrent sentence. I therefore sentence the convicts as follows; Count 1: Each Convict shall serve a term of imprisonment of Twenty-Five (25)years in hard labour. Count 2: Each Convict shall serve a term of imprisonment of Twenty-Five (25) years in hard labour. Count 3: Each Convict shall serve a term of imprisonment of Twenty-Five (25) years in hard labour. Count 4: Each Convict shall serve a term of imprisonment of Twenty-Five (25) years in hard labour. 22 The sentences shall run concurrently. Consequential Orders A bench warrant shall be issued together with the warrant of commitment for the arrest of the first convict. Upon his arrest, the arresting officer shall endorse the date of arrest at the back of the warrant and the sentence of imprisonment shall commence on the date of his arrest. The Registrar of the Court shall write to the Ghana Immigration Service to place the first convict on the stop list, prevent him from travelling outside the country, and notify the Court of the intention of the convict to leave the country. Ancillary Order In accordance with Section 146 of Act 30, the motorbikes retrieved from the accused persons should be returned to the first complainant SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 23