The Republic V Asaah (B7/38/2024) [2024] GHACC 314 (18 September 2024)

1 INTHECIRCUITCOURT,JUASOHELDONWEDNESDAY,THE18THDAYOF SEPTEMBER,2024,BEFOREHERHONOURNANAASANTEWAAATTAKORAH CIRCUITCOURTJUDGE. CASE: B7/38/2024 THEREPUBLIC VRS BENJAMINASAAHALIASBENJAMINAWINI JUDGMENT: The accused person herein has been charged with one count of Defrauding by False Pretence ContrarytoSection131oftheCriminalOffencesAct1960,Act29. The combined effect of the particulars of the offence is that in the month of July 2022, at KonongointheAshantiCircuitandwithinthejurisdictionofthis court, withintenttodefraud, the accused person obtained the consent of Joyce Kobia to part with cash the sum of Twenty ThreeThousandGhanaCedis(GH23,000.00) bymeansoffalsepretensestotheeffectthatifthe saidamountisgiventohim,hewouldsecureaUnitedKingdomVisaforheranduponthesaid representation, the accused succeeded in obtaining the above mentioned sum of money from herwhichstatementtheaccusedknewatthetimeofmakingtobefalse. 2 The accused person pleaded not guilty so prosecution assumed the duty to prove his guilt. The fundamental rule in our criminal justicesystem as stated inthe 1992Constitution, Article 19 (2) (c)reads: “19(2)Apersonchargedwithacriminaloffenceshall- (c)bepresumedtobeinnocentuntilheisprovenorhaspleadedguilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic(2012)41MLRG53at61-62perAkuffoJSCasfollows: “ …. The citizen too is entitled to protection against the state and our law is that a person accusedofacrimeispresumedinnocentuntilhisguiltisprovedbeyondreasonabledoubt.” Theaboveclausemeansthattheaccusedpersonhereinchargedisnotguiltyoftheoffenceright 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,iftheaccusedpersonpleadsnotguiltytotheoffence,hisaccuserhastoprovethathe is guilty. In the instant case the accused has pleaded guilty therefore the onus of proving his guiltisontheprosecution. See:EssentialsofGhanaLawofEvidencebyJusticeBrobbeyatpages45-55. 3 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(NRCD323)provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crimewhichisdirectlyinissuerequiresproofbeyondreasonabledoubt”. Section22oftheEvidenceAct,1975(NRCD323)alsoprovides: “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 thepresumedfact.” See: AbakahVrsTheRepublic(2010)28MLRG111CA Theprosecution has aduty toprovetheguiltof theaccused person chargedbeyond reasonable doubt. Theburdenofproofremains ontheprosecutionthroughoutthetrial,anditisonlyafter a prima facie case has been established that the accused person will be called upon to give his sideofthestory. 4 See: AmarteyVrsTheState(1964)GLR256. Gligah&AnotherVrsTheRepublic(2010)SCGLR870. DexterJohnsonVrsTheRepublic(2011)SCGLR601. ThedictumofLordDenninginthecaseofMillerVrsMinisterofPensions(1974)2ALLER372 at373isrelevanttoourunderstandingofthephrase“beyondreasonabledoubt”. According to Lord Denning: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not meanproof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the courseofjustice.” Inthesamecase,“proofbeyondreasonabledoubt”wasexplainedasfollows: “If the evidence is so strong against a man as to leave only a remote possibility in his favour whichcanbedismissedwiththesentence“ofcourseitispossiblebutnotintheleastprobable” thecaseisprovedbeyondreasonabledoubt,butnothingshortofthatwillsuffice.” Seealso:TettehvrsTheRepublic(2001-2002)SCGLR854 DexterJohnsonvrs TheRepublic(2011)2SCGLR601 FrancisYirenkyivrsTheRepublic(2017-2020)1SCGLR433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 deliveredonthe21stdayofJuly2021 5 Thisdictumemphasizesthatproofbeyondreasonabledoubtdoesnotmeanproofbeyondevery shadowofdoubtorprooftothehilt. 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 criminalprosecutioninourcourtsasfollows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standardofproof isproof beyondreasonabledoubt.Proofbeyondreasonabledoubtactually meansproofoftheessentialingredientsoftheoffencechargedandnotmathematicalproof”. 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 his innocence. It is onlywhenthedefenceisnotreasonableprobablethattheaccusedpersonwouldbeconvicted. 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 shiftedevenslightly. 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 6 complainant involved neither do they change according to the charges preferred nor the public perception,concernorreactioninrespectoftheaccusedpersoninquestion. This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935)AC462at481-482inthefollowingwords: “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 downcanbeentertained.” 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,heshouldnotevenshow up his hands until the needarises. All thatthe accusedpersonis requiredtodowheninvitedtoopenhisdefenceistoraisereasonabledoubtsregardinghisguilt. It is only when the defence raised by the accused person is not one that can exonerate him that hewouldbeconvicted. See:AtsuVrsTheRepublic(1968)GLR176CA. TsatsuTsikatavTheRepublic(2003-2004)SCGLR1068. Proofbytheprosecutioncanbedirectorindirect. It isdirectwhenanaccusedpersonis caught intheactor has confessedto thecommission of thecrime. Thus,wherean accusedperson was 7 not seen committing the offence, his guilt can be proved by inference from surrounding circumstancesthatindeedtheaccusedpersoncommittedthesaidoffence.Thistypeofevidence derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See:LoganVrsLavericke(2007-2008)SCGLR76. DexterJohnsonVrsTheRepublic(2011)2SCGLR601@605. StateVrsAnaniFiadzo(1961)GLR416SC. KamilVrsTheRepublic(2010)30GMJ1CA. TamaklowVrsTheRepublic(2000)SCGLR1SC. BossoVrsTheRepublic(2009)SCGLR470. In Kingsley Amankwah(a.k.a. Spider) vrs The Republic supra,theSupremeCourtreferred 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 usingsuchstrongcircumstantialevidence. 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 doubtasrequiredattheendofthecase. See:TsatsuTsikataVrsTheRepublic(2003-2004)SCGLR1068at1094-1095. 8 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 fromwhichtheguiltof theaccusedmaybepresumedandwhichthereforecalls forexplanation bytheaccused. See:TheStateVrsSowah&Essel(1961)2GLR743at745 Prosecution in this case called two witnesses in support of his case. The first prosecution witness (PW1) was Joyce Kobia with D/Sgt. James Asare the investigator in this case as prosecution’s second witness (PW2). Prosecution also tendered in evidence his exhibits for the case. According to PW1, she is a Nurse at the Nsuaem CHP Compound and one Ernest Atuahene AcheampongwhoisaphysicianAssistantintroducedtheAccusedtoherandoneMavisOseiin the month of July 2022 as someone who could help them secure a visa to the United Kingdom becausehe was assisting him in thatregard. She took theAccused person’s number, called him and the accused introduced himself as a military officer and bodyguard of the Member of Parliament for Asante Akyem Central and he requested for her to send her particulars to him. She wenton to say that the Accused person told her that thetotal cost for theprocess was Fifty Thousand Ghana Cedis (GH₵50,000.00) but she could pay half of the amount and pay the balance when the visa is ready. The Accused person gave her an MTN merchant account number 0541438528 bearing the name of PMC Ransford Kessie to make the payment so in the 9 monthofAugust2022,shepaidanamountofFiveThousandGhanaCedis(GH¢5,000.00)tothe accusedperson. On the 16th day of September 2022, together with the said Mavis Osei they met the Accused person at the Achimota Mall Accra where he took her Passport and copies of passport size photographs and on the 20th day of September 2022 and 20th day of October 2022 she sent an amount of Sixteen Thousand Ghana Cedis (GH₵16.000.00) and Two Thousand Ghana Cedis (GH₵2.000.00) respectively to the accused person. In total an amount of Twenty-Three Thousand Ghana Cedis (GH¢23,000.00) was sent to the Accused person. The Accused person hassincenotmadeanyprogressandwhenevershecalledhim,hegaveexcuses soherequested for her Passport and her money but the Accused sent only the passport to her and on the 18th dayofJuly2023hercolleaguescausedthearrestoftheaccusedperson. PW2, the investigator in this case testified that whilst investigating the accused for allegedly defrauding two people, PW1 came to identify him to the police that he had collected money from her to secure a United Kingdom visa and work permit for her but he failed to do so. According to him the accused admitted the offence and he took an Investigation Cautioned Statement from the accused person and chargedhim so he tendered the Cautioned and Charge Statementsoftheaccusedpersoninevidence. 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 whenthecourtissatisfiedthatall theingredients havebeenestablishedbytheprosecutionthat 10 the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See:KwabinaAmaningaliasTagor&anor. vrsTheRepublic(2009)23MLRG78CA. Aprimafaciecaseisestablishedagainstanaccusedwhentheevidenceledbytheprosecutionis 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 he 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 proofrequiredbylawandthatisproofbeyondreasonabledoubt. The accused person herein has been charged with one count of Defrauding by False Pretence ContrarytoSection131oftheCriminalOffencesAct1960,Act29. Section 131 provides “Whoever defrauds any person by any false pretence shall be guilty of a seconddegreefelony. Defraudingbyfalsepretenceisdefinedinsection132oftheCriminalOffencesAct.1960(Act29) asfollows: 11 “132. A person is guilty of defrauding by false pretence if by any false pretence, or by impersonation he obtains the consent of another person to part with or transfer the ownership ofanything. Section 133 (1) A false pretence is a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it istrueandmadewithanintenttodefraud. For prosecution to succeed in respect of defaulting by false pretence, the prosecution must establishbeyondreasonabledoubtthefollowing: 1. That the accused person made a representation either by written or spoken words or any othermeanswhatsoever. 2. Thatthesaidrepresentationwasinregardtotheexistenceofastateoffacts. 3. Thatthesaidrepresentationwasfalseormadewithoutthebeliefthatitwastrue. 4. ThatbythefalserepresentationtheaccusedcausedPW1togivethesaidamountofmoneyto him. See:RepublicvrsSelormey(2001-2002)2GLR424 RepublicvrsWoyome(AlfredAgbesi)SuitNo.H2/17/15 According to PW1, the accused took the sum of Twenty Three Thousand Ghana Cedis (GH¢23,000.00) from her to secure a United Kingdom visa and Work Permit for her but he 12 failed to do so. According to PW2, the accused person admitted having taken the said amount of money from PW1. In the Cautioned Statement of the accusedperson he admits having taken themoneyandaccordingtohimhehasassuredPW1thathewouldrefundittoher. The accused person herein has been charged with one count of Defrauding by False Pretence ContrarytoSection131oftheCriminalOffencesAct1960,Act29. Section 131 provides “Whoever defrauds any person by any false pretence shall be guilty of a second degreefelony. Defraudingbyfalsepretenceisdefinedinsection132oftheCriminalOffencesAct.1960(Act29) asfollows: “132. A person is guilty of defrauding by false pretence if by any false pretence, or by impersonation he obtainstheconsentofanotherpersontopartwithortransfertheownershipofanything. Section 133 (1) A false pretence is a representation of the existence of a state of facts made by a person, either with the knowledge that such representation is false or without the belief that it is true and made withanintenttodefraud. So for the prosecution to succeed in respect of defaulting by false pretence, the prosecution mustestablishbeyondreasonabledoubtthefollowing: 13 1. That the accused person made a representation either by written or spoken words or any othermeanswhatsoever. 2. Thatthesaidrepresentationwasinregardtotheexistenceofastateoffacts. 3. Thatthesaidrepresentationwasfalseormadewithoutthebeliefthatitwastrue. 4. ThatbythefalserepresentationtheaccusedcausedPW1togivethesaidamountofmoneyto him. See:RepublicvrsSelormey(2001-2002)2GLR424 RepublicvrsWoyome(AlfredAgbesi)SuitNo.H2/17/15 According to PW1, the accused took the sum of Twenty-Three Thousand Ghana Cedis (GH¢23,000.00) from her to secure a United Kingdom Visa and Work Permit for her but he failed to do so. According to PW2, the accused person admitted having taken the said amount ofmoneyfromPW1.In theCautionedStatementoftheaccusedperson,headmitshavingtaken the money and according to him he has assured PW1 that he would refund it to her. From the foregoing, a prima facie case was established against the accused person and he was asked to openhisdefence. As I have stated earlier, all that the accused person is required to do when invited to open his defenceis to raisereasonabledoubt regardinghis guilt. Itis onlywhen the doubtraisedbythe accusedpersonisnotonethatcanexoneratehimthathewouldbeconvicted. 14 According to the accused as a businessman he sometimes get opportunities to help people travel abroad and when he got an opportunity, he spoke to one Ernest Atuahene who showed interest and also indicated to him that he will talk to PW1 about the opportunity so he told Ernest Atuahene that it was a friend of his by name Yakubu Mohammed who gave the slot to him. Hewent on to say that the said Ernest Atuahene spoke toPW1who showedinterest sohe toldherthatthetotalcostfortheprocess isFiftyThousandGhanaCedis(GH50,000.00)butshe would have to make an initial deposit of Twenty-Five Thousand Ghana Cedis (GHS 25,000.00) to enable him start the process. PW1 promised to make the initial deposit after two weeks but when the two weeks was due, she told him that she would pay the money as and when the need arose so she made the initial payment through her friend, Mavis Osei Konadu and the process was started. Two weeks after the payment, he requested for her passport and a testimonial from her school. Whiles the process was ongoing, the government placed an embargoontherecruitmentofNursesAbroadsometimeinMarch2023sohisfriendtoldhimto give him up to April, 2023 to resolve the issue and get back to them. PW1 called three weeks laterto informhimthatshewouldliketoexploreotheroptions sosheneededherpassportand he told her that once she had passed her TB Test, they still needed her passport to go on with the process but she told him that she was not quitting the process and that she only wants to exploreotheropportunities. Accordingtohimhetoldhernottoblamehimforanyunfortunate occurrences if she withdraws her passport so he delivered her passport to Ernest Atuahene to be given to her. However, PW1 called him three weeks later and told him that she heard that other people hadbeen approved andthey were travellingso shewants to know why she is not part of those people and he told her that those people applied long before she did and even if 15 shewas partof thosepeople, therewas nowayitcouldworkfor herbecauseshewithdrewher passport. Subsequent to thatconversation with PW1, she called and informedhim that shewas no longer interested in travelling and by that time his friend had also travelled to America so his friend told him that he would return by the 15th of July, 2023 and upon his return, he will refund the money to her but on the 18th day of July, 2023, PW1, her friend and a Policeman arrestedhim. Theaccusedperson’sdefenceisanafterthoughtbecausehenevermentionedtothepolicewhen his caution statement was being taken and when prosecution was proving his case that he contendedthatitwashisfriendwhogavehimtheslotandhepromisedthatuponhisreturnhe would refund PW1’s money to her. This piece of evidence is calculated at making the court think that he was only a middle man and his friend was the one who received the money. According to him his friend said he would return by the 15th of July 2023 which means that his friendshouldbebackinthecountrybynowhoweverhefailedtocallhimtotestify.I amofthe view that if the said friend was indeed involved, the accused would have mentioned it to the policeatthetimeof his arrestand also atthetimeprosecution was provinghis case.According to PW1 the accused told him that he was the bodyguard of the Member of Parliament for Asante Akyem Central but the accused denied this and when PW2 was under cross examination, he stated that the accused told him that due to the close relationship he has with the said member of parliament he has the opportunity to help people to secure jobs which the accused person did not dispute. Thus, at page 8 of the Record of Proceedings the following occurred; 16 Q – Did your investigation prove that I told the complainant that I am the body guard for MemberofParliamentforAsanteAkyemCentral? A–RespectfullymyLadyIfoundoutthattheaccusedmisrepresentedhimselfassuchtoPW1. Q – Did you investigate to find out whether I am indeed thebody guardto thesaidMember of Parliament? A - Respectfully my Lady accused himself told me that because of his close relationship with the Member of Parliament for Asante Akyem Central he had the opportunity to help people securejobsbuthedidnotspecificallytellmethatheishisbodyguard. I am convinced that even if the accused did not tell PW1 thathe was the bodyguard of thesaid member of parliament, he actually made her feel that he has a close relationship with him and throughthatheisabletosecurejobsforpeopleforwhichreasonPW1feltconfidenttopartwith hermoney.Inthecautionedstatementof theaccused,headmittedtakingthesaidamountfrom PW1. There is nothing on record to show that the accused has ever assisted other people to travelabroadorthatheisatravelagentandIholdthatatthetimetheaccusedtoldPW1thathe could assist her to travel outside the country he knew very well that he was not in the position todo so. Theaccusedhas notraiseddoubts in thecasefortheprosecution andheis thus found guiltyoftheoffenceandaccordinglyconvicted. I have listened to the prayers of prosecution and the accused person. I take into consideration that the accused is a first-time offender. I also take into consideration that the accused has not refunded the sum involved to the complainant. I sentence the accused person to thirteen 17 Months Imprisonment IHL. I take into consideration that the accused has been in custody for a period of Eleven Months and hereby subtract same from his sentence. The accused is thus sentenced to Two Months Imprisonment IHL. Section 147B of Act 30 is invoked for the ComplainanttorecoverthesuminvolvedinaCivilCourt. SGD. 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