REPUBLIC VRS. DARKWAH AND ANOTHER (B7/83/2023) [2024] GHACC 353 (20 December 2024)

1 IN THE CIRCUIT COURT, JUASO HELD ON FRIDAY, THE 20TH DAY OF DECEMBER, 2024, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. CASE: B7/83/2023 THE REPUBLIC VRS AKWESI DARKWAH & ANOR JUDGEMENT: The accused person was charged together with another who was acquitted and discharged subsequently because prosecution could not establish a prima facie case against her. The accused has been charged with one count of Stealing Contrary to Section 124(1) of the Criminal Offences Act 1960, Act 29. The combined effect of the particulars of the offence is that on the 14th day of November 2022 at Konongo in the Ashanti Circuit and within the jurisdiction of this court the accused person dishonestly appropriated Ninety-One (91) crates of assorted drinks worth Twelve Thousand, Nine Hundred and Twenty Ghana Cedis (GHS 12,920.00), the property of Yaa Nyarkoa. The accused person pleaded guilty with explanation and after listening to his explanation, a plea of not guilty was entered for him so prosecution assumed the duty to prove his guilt. The fundamental rule in our criminal justice system as stated in the 1992 Constitution, Article 19 (2) (c) reads: 2 “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic (2012) 41 MLRG 53 at 61-62 per Akuffo JSC as follows: “ …. The citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt.” The above clause means that the accused person herein charged is not guilty of the offence right from the time of his arrest including the time when he is arraigned before the court. It is only after the accused person himself has pleaded guilty that he may be pronounced guilty. However, if the accused person pleads not guilty to the offence, his accuser has to prove that he is guilty. In the instant case a plea of not guilty has been entered for the accused person therefore the onus of proving his guilt is on the prosecution. See: Essentials of Ghana Law of Evidence by Justice Brobbey at pages 45-55. Sections 13 (1) and 22 of the Evidence Act, 1975 (NRCD 323) place the burden on the prosecution to prove his/her case beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975 (NRCD 323) provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. 3 Section 22 of the Evidence Act, 1975 (NRCD 323) also provides: “22. in a criminal action a presumption operates against the accused a s to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” See: Abakah Vrs The Republic (2010) 28 MLRG 111 CA Prosecution has a duty to prove the guilt of the accused person charged beyond reasonable doubt. The burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused person will be called upon to give his side of the story. See: Amartey Vrs The State (1964) GLR 256. Gligah & Another Vrs The Republic (2010) SCGLR 870. Dexter Johnson Vrs The Republic (2011) SCGLR 601. The dictum of Lord Denning in the case of Miller Vrs Minister of Pensions (1974) 2 ALLER 372 at 373 is relevant to our understanding of the phrase “beyond reasonable doubt”. According to Lord Denning: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” 4 In the same case, “proof beyond reasonable doubt” was explained as follows: “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” See also: Tetteh vrs The Republic (2001-2002) SCGLR 854 Dexter Johnson vrs The Republic (2011) 2 SCGLR 601 Francis Yirenkyi vrs The Republic (2017-2020) 1 SCGLR 433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 delivered on the 21st day of July 2021 This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof to the hilt. In Abdulai Fuseini vrs The Republic Criminal Appeal No. J3/02/2016 6th June, 2018, the Supreme Court reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means proof of the essential ingredients of the offence charged and not mathematical proof”. It is the duty of the prosecution to prove each and every ingredient of the offence, which is a precondition to securing conviction; unless the same statute places a particular burden on the accused person. The accused person is not under any obligation to prove 5 his innocence. It is only when the defence is not reasonable probable that the accused person would be convicted. In C.O.P Vrs Antwi (1961) GLR 408 SC it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly. The fact that the prosecution has the burden to prove the case beyond reasonable doubt does not change according to the status or disposition of either the accused person or the complainant involved neither does it change according to the charges preferred nor the public perception, concern or reaction in respect of the accused person in question. This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935) AC 462 at 481-482 in the following words: “No matter what the charges or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of our common law of England and no attempt to whittle it down can be entertained.” The import of all the above authorities, statutes and case law is that, it is the prosecution that is to prove the guilt of the accused person. The accused person is not to prove his innocence. In fact, he should not even show up his hands until the need arises. All that the accused person is required to do when invited to open his defence is to raise reasonable doubts regarding his guilt. It is only when the defence raised by the accused person is not one that can exonerate him that he would be convicted. 6 See: Atsu Vrs The Republic (1968) GLR 176 CA. Tsatsu Tsikata Vrs The Republic (2003-2004) SCGLR 1068. Proof by the prosecution can be direct or indirect. It is direct when an accused person is caught in the act or has confessed to the commission of the crime. Thus, where an accused person was not seen committing the offence, his guilt can be proved by inference from surrounding circumstances that indeed the accused person committed the said offence. This type of evidence derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See: Logan Vrs Lavericke (2007-2008) SCGLR 76. Dexter Johnson Vrs The Republic (2011) 2 SCGLR 601 @ 605. State Vrs Anani Fiadzo (1961) GLR 416 SC. Kamil Vrs The Republic (2010) 30 GMJ 1 CA. Tamaklow Vrs The Republic (2000) SCGLR 1 SC. Bosso Vrs The Republic (2009) SCGLR 470. In Kingsley Amankwah (a.k.a. Spider) vrs The Republic supra, the Supreme Court referred to Frimpong @ Iboman vrs the Republic and held that where direct evidence was lacking, but there were bits and pieces of evidence connecting the appellant to his deep involvement in committing the offences with which he had been charged, the court must not shy away from using such strong circumstantial evidence. It must be noted that the standard of proof required in establishing whether or not there is a prima facie case against the accused person is not at the same level of proof beyond reasonable doubt as required at the end of the case. See: Tsatsu Tsikata Vrs The Republic (2003-2004) SCGLR 1068 at 1094-1095. 7 It would therefore be wrong to presume the guilt of an accused person merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed and which therefore calls for explanation by the accused. See: The State Vrs Sowah & Essel (1961) 2GLR 743 at 745 Prosecution in this case called three (3) witnesses in support of his case. The principal witness for the prosecution was Yaa Nyakoa as prosecution’s first witness (PW1), Daniel Fosu as prosecution’s second witness (PW2), and No. 47544 D/Cpl. Raphael Tetteh as prosecution’s third witness (PW3). Prosecution also tendered in evidence his exhibits for the case. According to PW1 she deals in assorted drinks such as Club beer, Gulder, Guiness, Eagle black, Origin among others in both retail and wholesale and her warehouse is in front of her house at the SSNIT area in Konongo where the aforementioned drinks are kept. On the 13th day of November, 2022, she closed work in the night and woke up the following morning to find that ninety-one (91) crates of her drinks had been stolen so she reported it to the Police. Later on, PW2 (Daniel Fosu) informed her that to the accused person was the culprit so she informed the Police. Subsequent to that PW3 told her that the 2nd accused person had been arrested as the person who bought her stolen drinks. She then submitted a statement to the Police and on the 16th day of November, 2022, she went to the Police Station and identified fourteen (14) of her stolen club beer which were retrieved from the 2nd accused person. It is the evidence of PW2 that he knows the accused person as a resident in the area and on the 14th day of November, 2022 at 3:30 a.m., whilst on his way to work, he spotted the 8 accused person at PW1’s warehouse having loaded crates of alcoholic drinks from the warehouse into a motor tricycle commonly called Aboboya. He did not interrupt or say anything to him and proceeded to work. Same day at 12:00pm, when he returned home from work, he heard that someone had stolen PWl’s drinks from her warehouse so he informed PWl that the 1st accused person is the culprit. He then accompanied PWl to the Police Station to lodge a complaint and he also submitted a statement to the police. PW3, the investigator in this case testified that upon interrogation, the accused person admitted having stolen sixty (60) crates of different alcoholic drinks including Club Beer, Gulder, Guiness, Eagle black and Origin from PWl's warehouse at 3:00am and not ninety- one (91) crates as claimed by PWl. The accused person stated that he packed the sixty (60) crates of the aforementioned drinks into a Motor Tricycle to Odumase where he sold them together with their crates to the 2nd accused person at a price of Five Thousand Two Hundred Ghana Cedis (GHc 5,200.00). On the 15th day of November, 2022, he took an Investigation Cautioned Statement from the accused person. Thereafter the accused person led him to Odumase where he identified the 2nd accused person as the one who bought the drinks from him so he arrested her and charged her with the offence of dishonestly receiving. The 2nd accused person admitted in her statement that she bought only fourteen (14) crates of Club beer at a price of Five Thousand Two Hundred Ghana Cedis (GHS 5,200.00) from the accused person so he retrieved the fourteen (14) crates of Club beer from her shop and took photographs of them. He also retrieved photocopies of receipts issued to PWl by Agyei Baffour and Sons Ltd as well as a photograph of PWl's warehouse. The law is settled that at the close of the prosecution’s case the court is to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only when the court is satisfied that all the ingredients have been established by the 9 prosecution that the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See: Kwabina Amaning alias Tagor & anor. vrs The Republic (2009) 23 MLRG 78 CA. A prima facie case is established against an accused when the evidence led by the prosecution is on its face or first appearance without more one that could lead to conviction, if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if they hope to secure conviction of the person charged. A person is pronounced guilty only when the evidence led by the prosecution in respect of the charges satisfies the standard of proof required by law and that is proof beyond reasonable doubt. The accused person has been charged with one count of Stealing Contrary to Section 124(1) of the Criminal Offences Act 1960, Act 29. Section 124 provides “A person who steals commits a second degree felony.” Section 125 provides “A person steals who dishonestly appropriates a thing of which that person is not the owner.” For prosecution to succeed in a charge in respect of Stealing against the 1st accused person, the prosecution must establish beyond reasonable doubt the following: 1. That there has been an appropriation of a thing. 2. That it was dishonest. 3. That the thing belonged to another person. See: Lucien Vrs The Republic (1977) 1GLR 351 Ampah Vrs The Republic (1977) 2 GLR 171 CA. Francis Arthur vrs The Republic (2021) 174 G.M.J. 606 10 Section 122(2) of the Criminal Offences Act 1960, Act 29 provides “An appropriation of a thing in any other case means the moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing. According to PW1 she detected that some of her crates of drinks had gone missing and in the course of her search, PW2 mentioned the accused as the culprit. PW3 arrested the accused who in turn led him to arrest the 2nd accused person. PW3 tendered in evidence the Investigation Cautioned Statement of the accused person in which the accused told the police that he went to inform the 2nd accused that he has a friend who brings drinks to sell and if she was interested, he would get him to sell some to her. Thereafter he woke up one Monday and not knowing how to fend for his family he decided to go to PW1’s warehouse to steal some of her drinks and then presented it to the 2nd accused person as if his friend had delivered them to him. From the foregoing, a prima facie case was established against the accused person and he was asked to open his defence. As I have stated earlier, all that the accused person is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. It is only when the doubt raised by the accused person is not one that can exonerate him that he would be convicted. According to the accused person on the 14th day of November, 2022 while on his way to work, he decided to buy something in a shop close to the District Police Station at Konongo and one of the Police men told him that he was needed at the Police Station. At the Police Station, the Policeman informed him that a case of stealing had been reported against him so he told the police that he was engaged by a friend called Felix who lives 11 at Kumasi to convey some assorted drinks from a location in Konongo SSNIT to his customer at Odumasi. During investigations, he told the Police that he could lead them to the said friend as well as the customer he delivered the drinks to but the Investigator told him that if he would listen to what he had to say he could help him with the case. The investigator then told him to admit to stealing the drinks so that he assists him in court even though he refused. Thereafter he took his cautioned statement, read it to him and he thumb printed same. He subsequently led the Investigator to the person he delivered the drinks to. It must be noted that the accused did not object to the tendering of his cautioned statement by denying the contents therein. In the said cautioned statement, apart from admitting the crime he also stated that he led the police to the 2nd accused person who has also confirmed to the court that it was the 1st accused person who sold the drinks to her. In the cautioned statement, the accused indicated that he approached the 2nd accused person two days before the incident (12th November 2022) to find out if she was willing to buy drinks which she confirmed. Then on the 14th day of November 2022, he went to steal the drinks and went to offer them to the 2nd accused person for sale. This shows that the accused had pre meditated the crime therefore his statement that he stole them because he did not know how to fend for his family the next day is not true. Furthermore, his allegation that it was the investigator who told him to admit to stealing the drinks is not true. The accused person’s defence is only an afterthought. The position of the law is that a party whose evidence on oath is contradictory of previous statement made by him whether sworn or unsworn was not worthy of credit and his evidence could not be regarded as being of any importance, in the light of his previous contradictory statement unless he is able to give reasonable explanation as to the contradictions. It must be appreciated that first statements about an event or a matter made close to the time of 12 occurrence of the event or matter that is subject of enquiry, particularly statements made to a law enforcement officer would attract more credibility than statements made much later in the course of the litigation. See: Emmanuel Kwame Bansah Vrs The Republic (2022) 177 G.M.J @ 153. Republic Vrs High Court (Criminal Division 1), Accra Ex parte: Stephen Kwabena Opuni, Attorney –General (2021) DLSC 10770 at page 20-21 per Pwamang JSC. On the totality of the evidence I find that the accused having sighted the packs of drinks belonging to PW1 decided to steal them and to be able to dispose them of quickly, he first got the 2nd accused person to to agree to purchase same from him. The accused has not raised doubts in the case for the prosecution and he is thus found guilty of the offence and accordingly convicted. I have listened to the prayers of prosecution and the convict. I take into consideration that the convict is a first-time offender and has refunded the sum of Twelve Thousand Nine Hundred and Twenty Ghana Cedis (GH₡12,920.00) to the complainant. I hereby sentence the accused person to Nine months Imprisonment IHL. As the Law does not encourage unjust enrichment, prosecution is to release the fourteen crates of club beer that were retrieved from the 2nd accused to the 1st accused person herein. SGD NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) 13 COUNSEL C/ INSPECTOR DELA AMENUVOR FOR PROSECUTION KAMAL SALIFU FOR ACCUSED PERSON REFERENCES OKEKE VRS THE REPUBLIC (2012) 41 MLRG 53 ABAKAH VRS THE REPUBLIC (2010) MLRG 111 CA AMARTEY VRS THE STATE (1964) GLR 256. GLIGAH & ANOTHER VRS THE REPUBLIC (2010 SCGLR 870. DEXTER JOHNSON VRS THE REPUBLIC (2011) SCGLR 601. MILLER VRS MINISTER OF PENSIONS (1974) 2 ALL ER 372 TETTEH VRS THE REPUBLIC (2001-2002) SCGLR 854 FRANCIS YIRENKYI VRS THE REPUBLIC (2017-2020) 1 SCGLR 433 KINGSLEY AMANKWAH (A.K.A. SPIDER) VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/04/2019 DELIVERED ON THE 21ST DAY OF JULY 2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.P VRS ANTWI (1961) GLR 408 SC WOOLMINGTON VRS D.P.P (1935) AC 462 AT 481-482 HL ATSU VRS THE REPUBLIC (1968) GLR 176 CA. TSATSU TSIKATA VRS THE REPUBLIC (2003-2004) SCGLR 1068 LOGAN VRS LAVERICKE (2007-2008) SCGLR 76. STATE VRS ANANI FIADZO (1961) GLR 416 SC. KAMIL VRS THE REPUBLIC (2010) 30 GMJ 1 CA. 14 TAMAKLOW VRS THE REPUBLIC (2000) SCGLR 1 SC. BOSSO VRS THE REPUBLIC (2009) SCGLR 470. THE STATE VRS SOWAH & ESSEL (1961) 2GLR 743 AT 745 KWABINA AMANING ALIAS TAGOR & ANOR. VRS THE REPUBLIC (2009) 23 MLRG 78 CA. LUCIEN VRS THE REPUBLIC (1977) 1GLR 351 AMPAH VRS THE REPUBLIC (1977) 2 GLR 171 CA. FRANCIS ARTHUR VRS THE REPUBLIC (2021) 174 G.M.J. 606 EMMANUEL KWAME BANSAH VRS THE REPUBLIC (2022) 177 G.M.J REPUBLIC VRS HIGH COURT (CRIMINAL DIVISION 1), ACCRA EX PARTE: STEPHEN KWABENA OPUNI, ATTORNEY –GENERAL (2021) DLSC 10770 BOOKS ESSENTIALS OF GHANA LAW OF EVIDENCE BY JUSTICE BROBBEY CONTEMPORARY CRIMINAL LAW IN GHANA BY JUSTICE DENNIS DOMINIC ADJEI.