REPUBLIC VRS. BENSON (D6/018/24) [2024] GHACC 329 (7 October 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON MONDAY, THE 7TH DAY OF OCTOBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/018/24 THE REPUBLIC VRS RICHARD BENSON ACCUSED PERSON ABSENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGE The Republic v. Richard Benson Page 1 of 10 The accused person herein was arraigned before this court charged with Defrauding by False Pretence contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty after the charge had been read to him. The accused person having pleaded not guilty to the charge, 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 Kwesi Boakye Danquah is a business man and lives at Awudome Estate whilst the accused person is a travel agent and lives at Ablekuma. That the complainant contacted the accused to assist him acquire a Canadian visa. The accused demanded and obtained GHS66,000.00 cash from the complainant to assist him to acquire the visa. The accused promised to provide the complainant the visa on or before 11/09/2023, however, the accused went into hiding after receiving the said amount and all effort made to trace him proved futile. A report was made and the accused was arrested. During investigation, the accused admitted the offense and a sum of GHS10,000.00 was retrieved from him. After investigation, the accused person was charged with the offence and put before this honorable court. In proving its case, the prosecution called two (2) witnesses. EVIDENCE OF THE PROSECUTION WITNESSES PW1, Kwasi Boakye Danquah testified that he was introduced to the accused person by a friend when he needed an American visa appointment date. That he met the accused person and he told him he has an offer for Canada within one month. That the accused The Republic v. Richard Benson Page 2 of 10 person, then charged him USD10,000.00 per each person he submitted to secure the visa for him. According to PW1 he discussed with the accused person in respect of ten clients and the accused person told him to make a deposit for him to start the processes. That he gave him a cheque of GHS66,000.00 as he cashed the money on 21st August 2023, and confirmed to him that he has cashed the money. That the accused person however failed to do the job after he succeeded in taking the said amount, and he also refused to answer his calls. He therefore reported him to the police leading to his arrest. PW2, the investigator herein D/C/Inspector Selina Djasah, stationed at Ablekuma Olebu Police station told the court in her evidence that on 6th July 2023, the complainant came to the station and reported a case of defrauding by false pretences against the accused person and same was referred to her for investigation. The accused was arrested same day and a cautioned statement was obtained from him in which he admitted having collected an amount of GHS66,000.00 from the complainant under the pretext of securing him with a Canadian visa. She tendered the caution statement of the accused person in evidence as exhibit ‘A’. PW2 continued that, investigations into the case revealed that the complainant needed someone to assist him get a USA visa appointment and the accused person was introduced to him. That the accused person told the complainant he was in position to secure him a Canadian visa, instead, and subsequently charged the complainant USD10,000.00 and the complainant issued him with a cheque of GHS66,000.00 where the accused person cashed the said amount on 21st August 2023. That after the cheque was cashed, the accused person went into hiding and refused to pick the complainant's calls. That a case was therefore made against him at the police station and he was arrested. That the accused person admitted the offence during investigations and even refunded an amount of GHS10,000.00 to the police which was released to the complainant. That the accused person was then charged with the offence The Republic v. Richard Benson Page 3 of 10 and he volunteered a statement to that effect. PW2 tendered the said charge statement in evidence as exhibit ‘B’. Thereafter, the prosecution closed its case. The accused person did not give evidence and did not also call a witness. LEGAL ISSUE The legal issue to be determined is whether or not the accused person herein did defraud the complainant by falsely representing to him that if he pays GHS66,000.00 to him, he could secure him a Canadian visa, which statement he well knew to be false at the time of making it. BURDEN AND STANDARD OF PROOF The fundamental rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2) and 13(1). 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 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: The Republic v. Richard Benson Page 4 of 10 “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 132 of Act 29 provides: “A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” From the above, the elements of defrauding by false pretences are as follows: 1. The use of false pretence or personation, 2. To obtain the consent of another person, 3. So that the person parts with or transfers the ownership of something. Section 133 of Act 29, in defining defrauding by false pretences, lays out the following ingredients: 1. Representing the existence of a state of fact, 2. Either with the knowledge that such representation is false or without the belief that it is true, 3. The representation should be made with the intention to defraud. The Republic v. Richard Benson Page 5 of 10 After a careful examination of the evidence led at the trial, I made the following findings of facts and observations: From the evidence adduced by the prosecution witnesses, the complainant was introduced to the accused person by a friend when he needed an American visa appointment date. That the accused person told him he has an offer for Canada within one month when he met him, and charged him USD10,000.00 per each person he submitted to secure the visa for him. That he made a payment of GHS66,000.00 to the accused person as he cashed the cheque he gave him on 21st August 2023, and confirmed receipt of the said amount. The evidence led by the prosecution witnesses is also to the effect that after the cheque was cashed, the accused person went into hiding and refused to pick the complainant's calls. So, on 6th July 2023, the complainant reported a case of defrauding by false pretences against the accused person and he was arrested. The date 6th July 2023 that PW2 told the court that the complainant reported the case to the police is inconsistent with the story of PW1 who testified that he made payment to the accused person on 21st August 2023. Therefore, on 6th July 2023, the complainant could not have made any report to the police that the accused person had defrauded him as he had not made any payment to him in the first place as at then. However, the caution and charge statements of the accused person are dated 6th September 2023. Flowing from the date 6th September 2023 when the accused person’s caution and charge statements were obtained by the police; and the date complainant told the court that the accused person cashed the cheque he gave him being 21st August 2023, there is a period of 16 days in between those two dates. Meanwhile PW1 stated in his evidence before this court that when he met the accused person, he told him he has The Republic v. Richard Benson Page 6 of 10 an offer for Canada within one month. Accordingly, I find from the evidence on record that the complainant did not wait for the said one month to elapse as promised him by the accused person and he caused the arrest of the accused person by the police. Under cross examination of PW2 by the accused person, PW2 testified that the accused person is the one who brought the complainant to the police station but neither PW1 or PW2 stated that in their evidence in chief. PW2 also told the court that her investigation revealed that the accused person’s phone was off at the time the complainant was looking for him to retrieve his money and that the accused person went into hiding. However, from the evidence before this court, the one month accused person gave to the complainant was not due at the time the police took his caution and charge statements, therefore it was premature to have concluded that the accused person went into hiding or defrauded the complainant. The accused person should have been given up to the said one month to follow the process of applying for the said visa instead of being made to refund part of the money paid to him by the complainant as PW2 stated in her evidence that during investigations the accused person refunded an amount of GHS10,000.00 to the police which was released to the complainant In his caution statement dated 6th September 2023, the accused person stated as follows: “I am a travel consult I live in Olebu masalachi I collected Mr. Danquah’s money ₵66,000 to obtain a Canadian visa for him due to some few technicalities I was unable to pick his calls however the work is in the pipeline but if he wants his money he should give me time to refund his money because I have used the money for the documentation of the process”. The Republic v. Richard Benson Page 7 of 10 The accused person in his caution statement indicated to the police that the work was in the pipeline therefore considering that at the time he was giving his statement, the one month he promised had not elapsed but it was 16 days since he took the said money, the police should have given him the opportunity for the one month to be due and be sure if he was not in the position to assist the complainant of getting the said visa. The police did not do this but retrieved GHS10,000.00 out of the said money for the complainant and decided to prosecute the accused person. The accused person who also stated that he had used the money for the documentation of the process did not lead any evidence in court when he was given the chance to do so, to confirm that he had evidence (being receipts or other form of evidence) of the usage of the said money for the documentation of the process. Therefore, notwithstanding the fact that there exist some doubts in the mind of the court as to the guilt of the accused person of the offence he has been charged with, he would have to pay the remaining amount of GHS17,000.00 to the complainant as he stated in his caution statement that if the complainant wants his money, he should give him time to refund his money because he has used the money for the documentation of the process. In the case of Asiedu v. The Republic [1968] GLR 1-8, Amissah J.A. stated thus: “An intent to defraud is an essential element of the offence of defrauding by false pretences whether the method of fraud adopted was personation or a false representation”. In the instant case, since the one month the accused person gave to the complainant was not due and he was arrested and charged by the police, it cannot be concluded that he made false representation to the complainant and succeeded in obtaining the said amount from the complainant herein. The Republic v. Richard Benson Page 8 of 10 The prosecution has not been able to prove beyond reasonable doubt from the evidence adduced before this Court that the accused person indeed defrauded the complainant by false pretence. 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”. CONCLUSION Crabbe J.S.C. 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”. The Republic v. Richard Benson Page 9 of 10 On the totality of the evidence on record, I am not satisfied of the guilt of the accused person as I find that the prosecution has not been able to prove beyond reasonable doubt that the accused person actually defrauded the complainant by false pretence. Accordingly, the accused person herein, Richard Benson is hereby acquitted and discharged. Upon consideration from the record of proceedings in this case that the accused person has made a total payment of GHS39,000.00 to the complainant, out of the said GHS66,000.00, he should pay the remaining amount of GHS17,000.00 to the complainant. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Richard Benson Page 10 of 10