REPUBLIC VRS. MARFO (D6/109/24) [2024] GHACC 335 (22 October 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 22ND DAY OF OCTOBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/109/24 THE REPUBLIC VRS ISAAC MARFO ACCUSED PERSON PRESENT CHIEF INSPECTOR MABEL ORLEANS-LINDSAY FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGES The Republic v. Isaac Marfo Page 1 of 15 The accused person was arraigned before this Court on 27th June 2024 on the following charges; 1. Attempt to commit crime namely stealing contrary to sections 18 (1) and 124 (1) of the Criminal and Other Offences Act 1960, Act 29. 2. Causing Unlawful Damage contrary to section 172 (1) (b) of the Criminal Offences Act, 1960 (Act 29). 3. Unlawful Entry to commit a crime namely stealing contrary to section 152 and 124 (1) of the Criminal and Other Offences Act 1960, Act 29. THE PLEA He pleaded not guilty to the charges 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 charges, the prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that the complainant is a businessman who lives at Dome CFC Estate, Accra. The accused person is unemployed and also lives at Dome, Accra. The complainant has an uncompleted storey building situated at Dome. The front side of the building is fenced with roofing sheets wall to prevent intruders from stealing building materials from the building. That on 19th June 2024 at about 12:30am the accused visited complainant’s uncompleted building and secretly cut a hole in the fence and entered into the compound. He started lifting some plywood on the compound and attempted throwing them over the fence. Two young men who are staying in the building spotted and arrested him to the Mile 7 Police station. After investigations he was charged with the offence before this Honorable court. The Republic v. Isaac Marfo Page 2 of 15 To discharge their legal burden, the prosecution called four witnesses including the investigator. EVIDENCE OF THE PROSECUTION WITNESSES PW1 who is also the complainant gave his name as Steve Nii Nai Mensah and testified that he lives at Dome CFC Estates, and is a business man. He continued that he has an uncompleted story building situated at Dome. That the front side of the building is fenced with roofing sheet wall to prevent intruders from stealing his building materials from the site. That on the 19th June 2024 around midnight, he received a phone call from his workers that the accused has unlawfully entered into his site. That the accused secretly created a hole in the fence and unlawfully entered into the compound and took some plywood on the compound and attempted throwing it over the fence. That his workers who live in the uncompleted building spotted the accused and got him arrested and this matter was reported to police for assistance. PW1 tendered in evidence photographs of plywood and roofing sheet fence with a hole in it as exhibits ‘A’ and ‘B’ respectively. PW2, the investigator herein Detective Inspector Jonas Opoku, stationed at Mile 7 Police Station testified that on 19th June 2024 about 1:30am, a case of attempt to commit crime to wit stealing was reported against the accused and referred to him for investigation. That investigations revealed that on 19th June 2024 at about 12:30am the accused went to the complainant's uncompleted building at Dome with the intent to steal by creating a hole in the fence wall and unlawfully entered the compound. That when the accused person entered the compound, he crawled to where the plywoods were and began to lift it and throw it over the fence, unfortunately for the accused a witness in the case spotted him and drew the attention of his friends and got him arrested and brought to the police station. That investigations caution statement was obtained from the accused person in the presence of an independent witness and after investigations accused was charged The Republic v. Isaac Marfo Page 3 of 15 with the offences levelled against him. That the accused caused damage to the roofing sheets that was used for the fence wall and photographs were taken as well as the plywood that the accused attempted stealing. PW2 tendered the caution and charge statements of the accused person in evidence as exhibits ‘C’ and ‘D’ respectively. PW3 gave his name as Ekue Abraham Constant; and testified that he lives in the complainant's uncompleted story building at Dome CFC. That on the day in question, he heard some noise in the compound so he woke up to check what was happening in the compound and he saw the accused crawling on the compound in order for people not to notice his presence. According to PW3, when the accused got to where the plywood was, he started walking and took three quarter (4x8) plywood and attempted to throw it over the fence wall and his friends assisted him to get the accused arrested. That he called the complainant and lodged a complaint at the police station. PW4, Robert Mensah Addo also testified to the effect that he lives at CFC Dome where the incident happened. That on the said date at about 12am, he was asleep and his phone started ringing and his brother Constance Ekue told him that someone had entered the compound. So truly when he woke up, he saw the accused person taking the plywood so at that instant he left the plywood down on the ground. So, when they got to where the accused person was standing, he asked him why he was there and he pleaded that he needed the plywood to use for his kiosk. So, he asked accused person why he did not come in the afternoon but rather this night then he pleaded for forgiveness. That he asked the accused person how he entered the compound because the place is all fenced. Then he said there is a hole created in the fence that is where he passed and entered into the compound. That he told the accused that he has been stealing all the missing plywoods that is why he was back to steal again as they have had past incidence of someone stealing their plywood. That the accused person pleaded that this was his first time. That when The Republic v. Isaac Marfo Page 4 of 15 the owner of the house came, he took the accused person to the police station and they went with him to the police station. Thereafter, the prosecution closed its case. After the close of the case of prosecution, the Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then made a finding that the prosecution had made out a prima facie case against the accused person; and he was called upon to enter into his defence. In view of the above, the Court found that the accused person had a case to answer. The court however explained the rights of the accused person to him that he can decide to remain silent, make an unsworn statement from the dock or give evidence on oath. The court also reminded the accused person of the charges against him. The trial was adjourned for the accused person to decide the option to choose. On the next court sitting, the accused person informed the court that he had chosen to remain silent. The accused person did not also call witness. LEGAL ISSUES The legal issue to be determined by this court are as follows: 1. Whether or not the accused person attempted to steal a number of plywoods, from an uncompleted building, the property of Steve Nii Nai Mensah. 2. Whether or not the accused person did cause damage to a section of a roofing sheet fence valued GHS250.00, the property of Steve Nii Nai Mensah. 3. Whether or not the accused person did unlawfully and intentionally enter the compound of an uncompleted building at Dome with the intent to commit crime to wit stealing. The Republic v. Isaac Marfo Page 5 of 15 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 Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held as follows; “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. Refer: Osae v. The Republic [1980] GLR 446 ANALYSIS 1. Whether or not the accused person attempted to steal a number of plywoods, from an uncompleted building, the property of Steve Nii Nai Mensah. The Republic v. Isaac Marfo Page 6 of 15 Section 18(1) of Act 29 on attempt to commit criminal offence provides that: “A person who attempts to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent (a) by reason of the imperfection or other condition of the means, or (b) by reason of the circumstances under which they are used, or (c) by reason of the circumstances affecting the person against whom, or the thing in respect of which the criminal offence is intended to be committed, or (d) by reason of the absence of that person or thing.” Subsection 2 provides as follows: “A person who attempts to commit a criminal offence commits a criminal offence, and except as otherwise provided in this Act, is liable to be convicted and punished as if the criminal offence has been completed”. The accused person has been charged with attempt to commit crime namely Stealing, under stealing 124 (1) of Act 29 and 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”. In the case of Brobbey & Others v The Republic [1982-83] GLR 608-616, Twumasi J. stated as follows: “Three essential elements of the offence of stealing become obvious and they are: 1. That the person charged must have appropriated the thing allegedly stolen. 2. That the appropriation must have been dishonest. 3. That the person charged must not be the owner of the thing allegedly stolen.” From the evidence on record, PW3 testified that he saw the accused person crawling on the compound in order for people not to notice his presence and when the accused got to The Republic v. Isaac Marfo Page 7 of 15 where the plywood was, he walked and took three quarter plywood and attempted to throw it over the fence wall and he was arrested. PW4 also testified that when PW3 called him on phone that someone had entered the compound, he woke up and truly saw the accused person taking the plywood but left the plywood down on the ground when he realized he had been seen. That when he questioned the accused person why he was there, the accused pleaded that he needed plywood to use for his kiosk and that was his first time. In the case of Ameshinu v. The Republic [2010] 34 MLRG 207 @ 215, the Court of Appeal per Apaloo J.A held that: “Where the identity is in issue, there can be no better proof of the identity than the evidence of a witness who swears to have seen the accused person committing the offence charged.” Reference is also made to Regina v. Christie (1914) AC 545 per Viscount Haldane, L.C. From the evidence on record, this court has no cause to doubt the evidence of PW3 and PW4 who testified that they saw the accused person attempting to take the plywoods. The accused person did not raise any doubt in the case of the prosecution concerning these material evidence by PW3 and PW4. Moreover, PW3 and PW4 testified that they actually saw the accused person attempting to take the plywoods at that ungodly hour being 12:30am. The reasonable question is what was the accused person doing in the said compound at that midnight when others were asleep when that place is not his place of abode? The accused person could not answer this question to raise a doubt as to his guilt. The Republic v. Isaac Marfo Page 8 of 15 Flowing from the above undisputed evidence adduced by the prosecution, I find that the prosecution has been able to prove beyond reasonable doubt that the accused person committed the offence under count one being attempt to steal. 2. Whether or not the accused person did cause damage to a section of a roofing sheet fence valued GHS250.00, the property of Steve Nii Nai Mensah. Section 172 (1) (b) of Act 29 provides thus: “(1) A person who intentionally and unlawfully causes damage to property (b) to a value exceeding one million cedis commits a second a degree felony. From the above, the elements of causing unlawful damage are as follows: 1. That damage was caused. 2. That the damage was caused by the accused person. 3. That the damage was intentionally and unlawfully caused. From the evidence of PW1 who is the complainant, he had a call that the accused secretly created a hole in the fence and entered through into his compound. From the evidence of PW2 who is the investigator, his investigations revealed that the accused created a hole in the fence wall. The evidence of PW3 who saw the accused person on the compound and later called PW4 who also saw the accused person on the compound, was silent on the said hole created in the roofing sheet fence. Neither PW3 nor PW4 testified that they saw the accused person creating the said hole in the roofing sheet fence. When the accused person asked PW2 what he was holding to create a hole into the fence, PW2 testified under cross examination that, as at the time the accused was arrested, he was not holding any tool. When the accused further asked PW3 what he used to create The Republic v. Isaac Marfo Page 9 of 15 that hole, PW3 testified under cross examination that he does not know. PW4 testified that the accused said there is a hole created in the fence that is where he passed and entered into the compound. Therefore, there is no cogent evidence on record to establish the allegation that the accused person is the one that created the said hole in the roofing sheet fence when he was not found with any tool, he could have used to create the hole and was not also seen by any of the prosecution witnesses creating that hole and thereby causing unlawful damage to the said roofing sheet. The evidence of the prosecution witnesses does not suggest that they saw the accused person causing damage to the complainant’s roofing sheet fence. Accordingly, the evidence on record is unable to establish the essential elements of the offence under count two. Consequently, same cannot ground a conviction against the accused person on count two. 3. Whether or not the accused person did unlawfully and intentionally enter the compound of an uncompleted building at Dome with the intent to commit crime to wit stealing. Section 152 of Act 29 on unlawful entry provides that: “Whoever unlawfully enters any building with the intention of committing crime therein shall be guilty of second-degree felony.” The elements of the offence of unlawful entry are contained in section 153 of Act 29 and it reads as follows: The Republic v. Isaac Marfo Page 10 of 15 “A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he enters." PW1 told the court that he received a phone call from his workers that the accused has unlawfully entered into his site. That his workers who live in the uncompleted building spotted the accused and got him arrested. PW3 also testified that on that fateful day, he heard some noise in the compound so he woke up to check what was happening in the compound and he saw the accused crawling on the compound in order for people not to notice his presence. PW4 also told the court that PW3 told him that someone had entered the compound and when he woke up, he saw the accused person taking the plywood so at that instant he left the plywood down on the ground. That he asked the accused person how he entered the compound because the place is all fenced. Then he said there is a hole created in the fence that is where he passed and entered into the compound. From the evidence of PW3 and PW4, they saw the accused person on the complainant’s compound. The accused person did not deny that he was found on the premises of the complainant at that ungodly hour at 12.30am in the midnight when that is not his place of abode. The accused person was not able to raise any reasonable doubt in the case of the prosecution about the fact that he was found in the compound of the complainant even though he was given the opportunity to cross examine the prosecution witnesses and also to open his defence. From the evidence on record and the authorities above particularly the case of Ameshinu v. The Republic [supra], I find that the prosecution has been able to prove the elements of the offence of unlawful entry as the evidence on record indicates that the accused The Republic v. Isaac Marfo Page 11 of 15 person unlawfully entered the compound of the complainant herein and made an attempt to steal his plywoods but was caught by the workers of the complainant being PW3 and PW4. I accordingly find that the third count has been proven by the prosecution beyond reasonable doubt. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides that: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” Section 13(2) provides that: “Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution but he could not do so. The accused person did not give evidence to attempt to raise a reasonable doubt in the case of the prosecution. Having carefully considered the evidence on record and relying on the authorities above, I do find that the prosecution has been able to prove that the accused person committed The Republic v. Isaac Marfo Page 12 of 15 the offences under counts one and three. In relation to the offence under count two, there is no sufficient evidence on same therefore it was not proven beyond reasonable doubt that the accused person is the one that caused the said damage to the roofing sheet fence. I support my decision with the dictum of Denning J. (as he then was) in the case of Miller v. Minister of Pensions [1947] 2 All E.R. 372 where he said: "Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. 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.” CONCLUSION For the foregoing reasons, I find that the prosecution has been able to establish beyond reasonable doubt that, indeed the accused person committed the offences under counts one and three. Consequently, I pronounce the accused person herein guilty on counts one and three being the offences of Attempt to Steal and Unlawful Entry; and the accused person herein is convicted on the said counts one and three accordingly. The accused person is however acquitted and discharged on count two being the offence of Causing Unlawful Damage. Pre-Sentencing hearing Q: Any plea in mitigation before sentence is passed? A: I do not have anything to say. Q: Is the accused person known to the police? A: Yes, but we do not have any proof. He was brought to the district court and The Republic v. Isaac Marfo Page 13 of 15 fined but we do not have any proof. SENTENCING In sentencing the accused person, the court takes into consideration the fact that he is a first-time offender as well as his youthful age. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody by the accused person pending trial is considered by the court. However, the court has equally considered the entire evidence on record and the role the accused person played in attempting to steal after unlawfully entering the complainant’s compound at that ungodly hour at 12:30am when occupants of the said house were asleep. The court is of the view that there is a need to impose a deterrent sentence under the circumstances of the instant case to send a signal to the accused person and others with a similar criminal tendency to curb the spate of these such crimes within the jurisdiction for people and businesses to operate under peaceful and secured environment. I consequently sentence the accused person as follows: Count 1: The accused person is sentenced to serve a term of imprisonment of eighteen (18) months in hard labour. In addition, the accused person shall pay a fine of hundred (100) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of six (6) months in hard labour. Count 2: The accused person is acquitted and discharged. Count 3: The accused person is sentenced to serve a term of imprisonment of twelve (12) months in hard labour. The sentences on counts one and three shall run concurrently. The Republic v. Isaac Marfo Page 14 of 15 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Isaac Marfo Page 15 of 15