THE REPUBLIC V BREMANG (17/23) [2024] GHACC 395 (6 November 2024)

INTHECIRCUITCOURTJUABEN-ASHANTIREGION BEFOREHHROSEMARIEAFUA ASANTE(MRS)HELDON WEDNESDAY 6THNOVEMBER2024 THEREPUBLIC VRS OSEIBREMANG SUITNO.17/23 JUDGMENT The accused is charged with robbery contrary to Section 149 contrary of the Criminal Offences Act 1960, (Act 29). The accused person pleaded not guilty to the charge. According to prosecution,on13thFebruary2023atabout8.00pmtheaccusedpersonwithinthejurisdictionof Bonwire robbed one Philip Acquah of his Samsung Galaxy A6 plus mobile phone valued at Gh1,700.00atknifepoint. EvidenceofProsecutionWitnesses Philip Acquah is the complainant herein referred to PW1 and is a 3rd year student at Bonwire Senior High School. On 13th February 2023 around 7.30 pm PW1 together with his friend PW2, Abdul Razak went to Bonwire lorry Station to withdraw money from a mobile money vendor. After the transaction and upon reaching a section of the road, the accused together with two other accomplices accosted them and warned them to stop. PW2 took to his heels but was 1 chasedbythetwooftheaccusedaccomplice.TheaccusedpersonheldtheshirtofPW1pulleda kitchen knifefrom his pocket andwarned PW1to surrender his mobile phoneor elsehewould harm PW1. The accused out of fear kept quite and the accused himself took PW1’s Samsung GalaxyA6mobilephone.TheaccusedfurtheraskedPW1tounlockthephonewhichhedidand theaccusedfledwiththemobilephone. PW2, Abdul Razak was present with PW1 and corroborated the evidence of PW1. It is his case thatwhen the accused together with his accomplices attacked them,he immediatelytook to his heels and escaped and later met PW1 who informed him that the accused had robbed him of hismobilephone. PW3 is the arresting officer assigned by one G/Constable Boakye Jordan. It is the case of PW1 that he led the complainant to a spot behind the Bonwire’s chief palace and pointed out the accused who was holding a bag. the accused took to his heels and left behind his bag. The accused was arrested and the Samsung A6 mobile phone belonging to PW1 and two other mobilephones,pairofscissorsandalifeBBcartridge. Although,PW4fileda witness statementhewas notpresent incourttotestifyandthereforehis witness statement expunged. Thus PW5 in the person of D/Sgt Yaw Marfo was tasked to investigatethecaseandtookcautionstatementsfromPW1andthistenderedasExhibitA.PW4 also tendered the photographs as Exhibit B series showing the crime scene, photograph of the mobile phone, the pair of scissors and two other mobile phones found on the accused were tenderedinevidence. 2 ElementsofRobbery Inprovingacaseofrobberyprosecutionisboundtoprovetheelementundersection149ofthe CriminaloffencesAct,1960,Act29whicharethat: (a) Theaccusedstolesomethingfromthevictimofwhichheisnottheowner (b) thatinstealingthethingtheaccusedusedforceharmorthreatofanycriminalassault (c) thattheintentionofdoingsowastopreventorovercometheresistance (d) thatoutoffearofviolencepersonallytothepersonrobbedortoanymemberofhishousehold and; (e) thatthestolenthingmustbeinthepresenceofthepersonthreatened. TheaboveelementswasstatedinthecaseofFrimpongaliasIbomanvrsTheRepublic 20121SCGLR297 BurdenofProof Article19(2)ofthe1992Constitutionstatesasfollows:- “Apersonchargedwithacriminaloffenceshallbepresumedtobeinnocentuntilheisprovedorhas pleadedguilty.” “Inacriminalactiontheburdenofproducingevidencewhenitisontheprosecutionastoanyfactwhich isessentialtoguilt,requirestheprosecutiontoproducesufficientevidencesothatonallthe evidenceareasonablemindcouldfindtheexistenceofthefactbeyondreasonabledoubt.” 3 AnalysisofEvidence The accused person stood on his grounds that the accused was the person who robbed him of hisphone.PW1andPW2weretogetherwhentheymettheaccusedandhisaccompliceanditis upon the attack on them that PW2 took to his heels. This was revealed during cross examinationasfollows:- “Q:-Youallegedthattheaccusedtookyourmobilephoneisthatcorrect A:-Yes Q:-Andthetimehewastakingyourphoneasalleged,yourfriendAbdulRazakMohammedwasnotthere A:Hewasthere Q: So are you telling the court that at the time your mobile phone was taken from you the other two accomplicesoftheaccusedpersonswerepresent A:Yestheywerepresent Q: I am putting it to you that per your evidence before this court, your friend Abdul Razak Mohammed wasnotpresentwhentheallegedrobberybytheaccusedtookplace. A:At the time the accused came for my phone, he came with two other friends/accomplice and it was the accusedwhocametoattackmeandmyfriendsandtookmy phoneandmyfriendhittheaccusedwithhis fistandtookto hisheelsandthetwootheraccompliceschasedhimthatismyfriend.” It is not in contention that PW1 and PW2 were together when the accused persons and his accomplice accosted them and it is upon the attack that PW2 took to his heels and therefore both werepresentwhen theaccused person accosted PW1.It is upon thatengagement between 4 them that PW2 took to his heels . Paragraphs 6 and 7 of PW1’s witness statement read as follows: Paragraph6 “On reaching a section of the road, the accused and his two accomplices whose names I do not know emergedaccostedusandwarnedustostop“Emphasismine Paragraph 7 “WitnessAbdulRazakMohammedimmediatelytooktohisheelsandwaschased.” From the evidence they were first accosted before Pw2 took to his heels. More so the accused personwasclearlyidentifiedbyPW1duringcrossexaminationasfollows:- “Q:-In your evidence you said you met the accused person and his two accomplices on the road and you werewarnedtostopandyourfriendthatisAbdul/razakimmediatelytooktohisheels. A:Itistruethattheaccusedpersonwarnedus tostop,itwas thenthattheaccusedcametoholdmychest andforciblytookmy phonefrommypocketandthatwaswhenmyfriendtooktohisheels Q:Iamputtingittoyou thattheaccusedpersonnevertookphonefromyouasyouallege A:Accusedtookmyphone” 5 Clearlytheaccusedhadbeenidentifiedby PW1who claimedthatitwas notall thatdarkatthe crimesceneandthis isbuttressed bythefactthatPW1 was abletoidentifytheaccusedperson togetherwiththearrestingofficeratBonwire. The defence of the accused person as filed in his witness statement is that he was eating somewhereatBonwirewhenhewasarrestedbytheBonwirepoliceandwasledtohismother’s house where in the presence of his mother, a search was conducted by the police and denies thatanyphone was foundin his custody. According tohim, a redcolouredtouch screen phone belonging to his mother was the only phone found on him. The accused also denied admitting the offence in his caution statement. During the trial the caution statement was objected by the accusedongrounds thatwhenhewasarrestedthepoliceofficerneverwrotehisstatement.The accusedcouldnotbebelievedforthesewerehisanswersduringcrossexamination: “Q:-On 13th February investigation statement was taken from you in the presence of an independent witnessthatisExhibitCanditwasaboutapproximatelyafter3weeksyourchargestatementwastaken A:-Whenthepoliceobtainedchargestatementtherewasnoindependentwitness. Q:YouwholeheartedlyreliedonExhibitAwhichwasobtainedfromyouinthe22ndFebruary2023 A: After the police obtained my statement it was not read to me in a language I understood. Again they statedthatitwillbereadtomewhenIcometothecourt” However the accused in another breadth indicated that no statement was taken from him and theseanswerswererevealedduringcrossexaminationasfollows:- “Q:Yourinvestigationcautionstatementwastakenimmediatelyafterthesearch 6 A:-Thatismywitnessstatementbutthepolicedidnotwritemystatement.” Thus in one breadth the statement of the accused was not written at all, in another breadth it was written but was no explained to him in the language he understands. According to him, when the statement was being written there was no independent witness at all. These inconsistencies tilted to the firm case that the prosecution stood grounds on by tendering Exhibit6whichis thebagbelongingtotheaccusedcontainingthestolenmobilephoneandthis wasclearlyadmittedinhiscautionstatementasfollows:- “I held the complainant and forciblyremoved his Samsung galaxy A6 Plus mobile phone from his pocket and flee away with the phone. We were not having any weapon on us and did not use any implement on thecomplainantbeforecollectingthephone.IstillhavepossessionofthemobilehoneasIspeak.” Prosecution tendered before the court Exhibit B3 which is the scissors the accused and Exhibit B5whicharethestolenphonesretrievedfromtheaccusedwhichhedeniedwereretrievedfrom him. In supportof his evidence DW1whois his mother testifiedthathis husbandassaultedher and upon narrating the story to his husband’s nephew Kwaku Boro, who in attempting to stop hisunclefrombeatingher,ratherturnedtobeatherandrenderedherhelpless. From the evidence given by DW1, first of all she was never present at the robbery scene to witness what happened except when the search was conducted by the investigator. She corroborated the evidence of the accused that only a red coloured touch screen phone was foundintheroomof thewitness,howeverthesaidphonewas nevereventenderedinevidence in order to raise suspicion in the trial court. Thus her evidence before this court was after the 7 fact and amounted to hearsay since the witness was not present in court. Prosecution established how PW1, the complainant was accosted together with PW2, sensing danger PW2 who experienced the accosting and sensing danger took to his heels from the crime scene where PW1 was actually robbed. I find thatPW1 was robbed with the scissors and this amounted to threat. The accomplices chased PW2, who managed to escape. He later met PW2 who informed him that his mobile phone was robbed and this was tendered in Evidence as B5. B3 which is a scissors was found on him as well as the bag containing the mobile phone which he left at the crime scene were all tendered in evidence. The accused person was not the owner of the phone and took out without the consent of the owner. Flowing from the above, I hereby convicttheaccused. PleaofMitigation Accused I pray with the court to forgive me of this offence I have two children and their future depends onme,soIpraythecourttobelenientwithmeandtenderjusticewithmercyforthesakeofthe children’sfuture. Prosecution The accusedisnotknown 8 Sentencing Ihaveconsideredthepleaoftheaccusedpersonwhohasshownremorse.Ihaveconsideredthe fact that the mobile phone was found. However, I will aggravate the sentence in that this court not only went into full trial but also conducted a trial within a trial. The spate of robbery of phones is something that is on the increase and therefore I will give a deterrent sentence. The accusedisherebysentencedto17yearsimprisonment. Restitution Order LetthemobilephonebehandedovertothecomplainantPhilipAcquah. …………………SGD……………………….. HHRosemarieAfuaAsante(Mrs) CircuitCourtJudge Juaben-Ashanti 9