Republic vrs Koffie (D4/102/24) [2024] GHACC 423 (31 October 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON THURSDAY, THE 31ST DAY OF OCTOBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D4/102/24 THE REPUBLIC VRS PRINCE ISAAC KOFFIE ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGE The Republic v. Prince Isaac Koffie Page 1 of 13 The accused person was arraigned before this Court on 17th July 2024 charged with the offence of Stealing contrary to Section 124(1) of the Criminal and Other Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty to the charge after same had been read and explained to him in Twi, being his language of choice. The accused person having pleaded not guilty to the charge, the prosecution assumed the burden to prove his guilt beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that the complainant Princess Baah Nyarko is a Pharmacist and lives at Odumase near Ablekuma- Accra. The accused person Prince Isaac Koffie is a loading boy at Lapaz but has no place of abode. On 11th July 2024 at about 8:00pm, complainant was boarding trotro vehicle at Lapaz to her house in front of Las-Palmas restaurant when her iphone 11 mobile phone valued GHS6,000.00 was stolen from her bag. In the process, the driver’s mate was able to identify the accused person to the complainant. Accused person quickly ran away from the scene. Complainant reported the case to the Union members who were present at the scene but could not find the accused. On 13th July 2024 at about 8:30 am, accused person re-surfaced at the lorry station and was arrested by the Union members and sent him to the Lapaz police station for investigation. After investigations, accused was charged with the offence. To discharge their legal burden, the prosecution called two witnesses including the investigator. The Republic v. Prince Isaac Koffie Page 2 of 13 EVIDENCE OF THE PROSECUTION WITNESSES PW1 who is the investigator herein, Detective Chief Inspector Sylvanus Antwi stationed at Lapaz Police Station testified that on 11th July 2024, complainant Princess Baah came to the Police Station and reported a case of stealing for investigation. That the complainant told police that on same day at 8:00 pm, she was boarding trotro vehicle at Lapaz close to the Las Palmas restaurant to her house when someone stole her iPhone 11 valued GHS6,000.00 from her bag. That the driver’s mate who was in charge of the vehicle was able to identify the accused to her as one of the station boys who stole the phone. That the complainant together with other people who were present at the scene decided to pursue the accused person but he ran away from the scene; and the complainant informed the union members at the lorry station who promised to assist the complainant to arrest the accused. That on 13th July 2024 at about 8:00 am accused re-surfaced at the lorry station and he was arrested by the union members and handed same to the police for investigation. That he took cautioned statement from the accused at the police station, complainant was able to identify the accused person as the one who stole her phone. That during investigation, it was established that the accused person is not a member of the union and has no place of abode. That accused person had been severally warned by the union members not to come to the station since he comes there only to steal from the passengers. That after the close of investigation, accused person was charged with the offence before this court. PW1 tendered the cautioned statement and charged statement of the accused person in evidence as exhibits ‘A’ and ‘B’. PW2, who is also the complainant herein testified that she is a Pharmacy Technician residing in Odumase in the Ga North Municipal Assembly. That on 11th July 2024 around 7:00 pm to 8:00 pm, she was rushing, together with other passengers, to board a trotro car The Republic v. Prince Isaac Koffie Page 3 of 13 at Lapaz, in front of Las Palmas restaurant, to her destination, Odumase, when she realized that her bag was being dragged from behind. That it was a rush hour so there were a lot of people there also trying to get car to go home so when the trotro vehicle came around, they were all hurrying to get on board. That when she saw that her bag was being dragged from behind, she also started to pull her bag back towards her and shouted “my bag!” As she did that, she was able to get her bag back and immediately looked through and saw that her iPhone 11, 128gb purple colour was missing from her bag. According to PW2, she then said her phone was stolen and the driver’s mate of the trotro car she was boarding pointed out the accused person, who was one of the loading boys and was with a stick, to her that he saw the accused person picked something from her bag so she should ask for help from others around and confront him for her phone. That she took a very good look at the loading boy to be able to monitor his movement and asked for help from some people around and also tracked the phone. That when the phone was tracked its location was at Las Palmas traffic light where she was standing and the loading boy was also there so the people she asked for help from, asked her to get help from one of the police officers directing traffic nearby to help confront the loading boy. That as she was crossing the road to get the police officer, she saw the accused person looking at her. PW2 continued that she went to the officer and explained everything to him and he accompanied her to where the accused person was. When they got there, the accused person was no longer in sight and the police officer asked for the phone to be tracked again. When the phone was tracked again, it was on the move on the Achimota road so The Republic v. Prince Isaac Koffie Page 4 of 13 the police officer returned to his duty point and she reported the issue to one of the union heads and he took her to the police station to report the case at the Lapaz police station. That the day of the incidence was a Thursday and she was called that, it was until Saturday, 13th July 2024, that the accused person showed up and was arrested to the police station, and they eventually came to court. Thereafter, the prosecution closed its case. The accused person did not give evidence and did not also call witness. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the accused person dishonestly appropriated iPhone 11 valued GHS6,000.00, the ownership of Princess Baah Nyarko. BURDEN AND STANDARD OF PROOF A fundamental principle of our criminal justice system is that a person accused of a crime is presumed innocent until he has pleaded guilty or proven guilty. It is trite learning that in criminal cases, the prosecution bears the burden to prove the guilt of the accused person beyond reasonable doubt. See sections 11(2), 13(1) and 15 of the Evidence Act, 1975, (NRCD 323). In the case of Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person... When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the The Republic v. Prince Isaac Koffie Page 5 of 13 prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. Again, in the case of Kugblenu vrs. The Republic [1969] CC 160 CA, 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 offence charged against the accused person beyond reasonable doubt. ANALYSIS Section 124(1) of Act 29 provides that: “Whoever steals shall be guilty of a second-degree felony.” Section 125 of Act 29 defines Stealing as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner”. Taylor J (as he then was) in the case of Lucien v. The Republic [1977] 1 GLR 351-359 laid out the elements in the offence of stealing as follows: “The only basic ingredients requiring proof in a charge of stealing were that: i. the person charged must not be the owner of the thing stolen, ii. he must have appropriated it and The Republic v. Prince Isaac Koffie Page 6 of 13 iii. the appropriation must have been dishonest”. Section 122 (2) of Act 29 defines Appropriation as follows: “An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof”. PW1 who is the investigator in his evidence told the court what the complainant (PW2) informed him when she made a report at the police station. PW1 added that during investigation, it was established that the accused person is not a member of the union and has no place of abode; and that the accused person had been severally warned by the union members not to come to the station since he comes there only to steal from the passengers. Under cross examination, PW1 answered in the negative when the accused person asked him if he saw any phone on him when he was brought to the station. Below is the cross examination of PW1 by the accused person on 23rd August 2024. “Q: Can you tell me the mate who said I took the sister’s item? A: I do not know the name of the person but it was the mate who was in the vehicle together with the complainant. Q: Since I was working there have you had any report of me that I have stolen someone’s items? A: I do not have that information. The Republic v. Prince Isaac Koffie Page 7 of 13 Q: Can you mention the names of three police stations that have my name there as I am a thief. A: No. Q: When I was brought to the police station did you see any phone on me? A: No, but my investigation disclosed that you were the one who stole the mobile phone from the complainant. Q: Is it because I do not have anybody to talk for me that is why you are not telling the truth about me? A: No my lady. My investigation disclosed that you are the one who stole the phone from the complainant.” PW2 in her evidence told the court that when she was boarding trotro vehicle at Lapaz close to the Las Palmas restaurant to her house, someone stole her iPhone 11 valued GHS6,000.00 from her bag. That the driver’s mate who was in charge of the vehicle was able to identify the accused to her as one of the station boys who stole the phone. Under cross examination of PW2 by the accused, PW2 who is also the complainant testified that she personally did not see the accused person picking the phone from her bag. That it was the driver’s mate who said he saw the accused person picking something from her bag. PW2 further testified under cross examination that she did not see the accused person holding her missing phone when she tracked the phone. The Republic v. Prince Isaac Koffie Page 8 of 13 Below is the relevant part of the cross examination of PW2 by the accused person on 9th September 2024: “Q: When you were boarding the car, you said you saw someone pulling your bag, was it me? A: I personally did not see you pick the phone but when I realized that my bag was being dragged, I shouted my bag and started pulling the bag towards me. I was able to regain the bag and looked through the bag and saw my iPhone 11 was no longer in the bag. So, I said my phone had been stolen and that was when the driver’s mate of the car I boarded said he saw the accused person picking something from my bag so I should get help from others to confront him about it. Q: Can you bring the said mate who said he saw me picking something from your bag and the car number of the car you said you boarded? A: No, I cannot produce the mate because I was in a haste to get people to help me to confront the accused person. Q: When you tracked the phone did you find it on me or see me holding it? A: When the phone was tracked, it showed the location of the phone and not the person holding it. You were at the location where the phone was but I did not see you holding it.” From the above, neither PW1 nor PW2 saw the accused person holding the said missing mobile phone. Hence there is not enough evidence before this court to warrant the The Republic v. Prince Isaac Koffie Page 9 of 13 conclusion that the accused person dishonestly appropriated the said missing mobile phone. The basic element in stealing is that the accused person must have appropriated the thing. This burden, the prosecution could not discharge, as there is not even an iota of evidence before this court to establish that the accused person appropriated the missing mobile phone for the court to further determine whether or not the appropriation was dishonest. The evidence of the prosecution witnesses on record does not suggest that the accused person was seen appropriating the said phone that the complainant later found out to be missing. In the case of State v. Anani Fiadzo [1961] GLR 416, the Supreme Court held at page 418, on the issue of circumstantial evidence as follows: “Presumptive or circumstantial evidence is quite usual, as it is rare to prove an offence by evidence of eye-witnesses, and inferences from the facts proved may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion.” The circumstantial evidence on record is not cogent enough to warrant the conclusion that the accused person is the one who stole the missing phone of the complainant because the phone was not found on the accused person when same was tracked, and the fact that the accused person was at the location of the phone is not conclusive evidence that the phone was stolen by him especially when same was not found in his possession. The Republic v. Prince Isaac Koffie Page 10 of 13 None of the prosecution witnesses testified that they saw the accused person taking the said mobile phone. The suspicion of the prosecution witnesses cannot be concrete evidence of stealing because it is trite law that multiple suspicions do not amount to evidence. In the case of Regina v. Ansere 3 WALR 388, it was held that: “The principle of law is that if there is one witness whose evidence would settle the case one way or another and the prosecution fails to call that witness, their case must fail since in that event they have not proved their case beyond all reasonable doubt”. The said driver’s mate who allegedly saw the accused person picking the phone from the complainant’s bag ought to have been called by the prosecution as a witness to testify on same. Also, the prosecution should have conducted further investigation after the phone was tracked to mount surveillance to find out who was in possession of the said phone. No such evidence was adduced before this court. The Supreme Court in a unanimous decision in the case of Gligah & Anor v The Republic [2010] SCGLR 870, per holding 5, held 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”. From the evidence adduced by the prosecution witnesses it can be gleaned that the prosecution failed to call material witnesses whose evidence would have been very relevant to the determination of the guilt of the accused person. Undoubtedly, there is no evidence on record proving that the accused person is the one who picked the complainant’s phone from her bag. The Republic v. Prince Isaac Koffie Page 11 of 13 In the case of Dexter Johnson v. The Republic [2011] SCGLR 601, Dotse JSC had this to say about the standard of proof in criminal matters: “Our system of criminal justice is predicated on the principle of the prosecution, proving the facts in issue against an accused person beyond all reasonable doubt. This has been held in several cases to mean that, whenever any doubts exist in the mind of the Court which has the potential to result in a substantial miscarriage of justice, those doubts must be resolved in favour of the accused person”. The learned judge continued that: “I believe this principle must have informed William Blackstone’s often quoted statement that ‘Better than ten guilty persons escape than one innocent suffer’ which was quoted and relied upon by me in the unanimous decision of this Court in the case of Republic vrs Acquaye alias Abor Yamoah II, ex-parte Essel and Others [2009] SCGLR 749 @ 750”. The elements of stealing are made very clear in section 125 of Act 29 that a person is guilty of stealing if he "dishonestly appropriates a thing of which he is not the owner." Therefore, if the elements of the offence of stealing are not categorically proven in a criminal case, the accused person cannot be convicted of stealing. As a result, the charge of stealing against the accused person cannot be sustained based on the evidence of the prosecution before this court. In view of the above, the prosecution was not able to prove the elements of stealing as provided in Act 29. For that reason, the charge of stealing against the accused person is hereby dismissed. The Republic v. Prince Isaac Koffie Page 12 of 13 CONCLUSION In the case of Osae v. The Republic [1980] GLR 446-455 @ 455, Taylor J. (as he then was) held that: “…for the prosecution to succeed in a charge there must be no reasonable doubt that the particular charge has been proved.” Also, Crabbe J.SC (as he then was) in the case of The State v. Sowah and Essel [1961] GLR 743-747, S.C. held that “A judge must be satisfied of the guilt of the crimes alleged against an accused person only on consideration of the whole evidence adduced in the case; and only then can he convict”. On the totality of the evidence on record, I am not satisfied of the guilt of the accused person herein as I find that the prosecution has not been able to prove beyond reasonable doubt that the accused person herein is the person who picked the complainant’s phone from her bag. Accordingly, the accused person herein, Prince Isaac Koffie is hereby acquitted and discharged. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Prince Isaac Koffie Page 13 of 13