The Republic v Prince Boateng (B18/76/2022) [2024] GHACC 398 (4 September 2024)

1 INTHECIRCUITCOURT,JUASOHELDONWEDNESDAY,THE4THDAYOF SEPTEMBER,2024,BEFOREHERHONOURNANAASANTEWAAATTAKORAH CIRCUITCOURTJUDGE. CASE: B18/76/2022 THEREPUBLIC VRS PRINCEKOFIBOATENG@ALETSE JUDGMENT: TheaccusedpersonhereinhasbeenchargedwithonecountofRobberyContrarytoSection149 oftheCriminalOffencesAct1960,Act29. Thecombinedeffectof theparticulars of theoffenceis that onthe 17thday of February2022,at Patriensa near Konongo in the Ashanti Circuit and within the jurisdiction of this court, the accusedpersonrobbedMohammedIbrahim(PW1herein)ofhisInfinixSmartPhoneworthOne Thousand,SixHundredGhanaCedis(GHS1,600.00). The accused person pleaded not guilty so prosecution assumed the burden to prove his guilt. Thefundamentalruleinourcriminaljusticesystemasstatedinthe1992Constitution,Article19 (2)(c)reads: 2 “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 a plea of not guilty has been entered for the accused person thereforetheonusofprovinghisguiltisontheprosecution. See:EssentialsofGhanaLawofEvidencebyJusticeBrobbeyatpages45-55. 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”. 3 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. See: AmarteyVrsTheState(1964)GLR256. Gligah&AnotherVrsTheRepublic(2010)SCGLR870. DexterJohnsonVrsTheRepublic(2011)SCGLR601. ThedictumofLordDenninginthecaseofMillerVrsMinisterofPensions(1974)2ALLER372 at373isrelevanttoourunderstandingofthephrase“beyondreasonabledoubt”. 4 AccordingtoLordDenning:“Itneednotreachcertainty,butitmustcarryahighdegreeofprobability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protectthecommunityifitadmittedfancifulpossibilitiestodeflectthecourseofjustice.” Inthesamecase,thejudgeexplainedtheexpression“proofbeyondreasonabledoubt”asfollows: “Iftheevidenceissostrongagainstamanastoleaveonlyaremotepossibilityinhisfavourwhichcanbe dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyondreasonabledoubt,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 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; 5 “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 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: 6 “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. Proof by the prosecution can be direct or indirect. It is direct when an accused person is caught intheactor has confessedto thecommission of thecrime. Thus,wherean accusedperson was 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. 7 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. 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 8 Prosecution in this case called two witnesses in support of his case. The principal witness for the prosecution was Mohammed Ibrahim as prosecution’s first witness (PW1) and No. 45978 D/Cpl. Asumani Godfred (PW2) the investigator in this case as prosecution’s second witness (PW2).Prosecutionalsotenderedinevidencehisexhibitsforthecase. According to PW1, on the 17th day of February, 2022 at about 11:30am, he went to Patriensa to sell cosmetics. The accused person who was in a drinking bar called him into the bar to buy some of his cosmetics but the accused asked him to buy him local gin (akpeteshi) and he told himthatheisaMuslimsohecouldnotdothatandwhilesconversingwiththeaccused,theBar Attendant left the place. The accused took advantage of his absence and attacked him, hit his mouth with a blow and forcibly took his Infinix Smart Phone worth One Thousand Six Hundred Ghana Cedis (GHS 1,600.00) from him. He informed the Bar Attendant and they chased the accusedbut they could notarrest him so he reportedthematter to the Policeandhe wasissuedwithaPoliceMedicalFormtoattendHospitalfortreatment. According to the investigator (PW2) herein, his investigations revealed that on the day of the incident,PW1whodeals incosmetics wenttoPatriensatosellhisproducts andinthecourseof marketing, the accused called him into a Drinking Bar to buy some of his products. However, theAccuseddidnotbuyanyofPW1's productsandratheraskedhimtobuyalocalginforhim but PW1 refused because of his religious belief. When accused realised that the bar attendant had left the bar, he beat PW1 severely and forcibly took his Infinix Mobile Phone worth One Thousand Six Hundred Ghana Cedis (GHS 1,600) from him and bolted. Upon hearing noise 9 emanating from his bar, the bar attendant rushed to the scene and saw blood oozing out of PW1's mouth and the accused holding PW1's phone but the accused bolted with the phone subsequently. He visited the scene of crime with PW1 and the bar attendant and PW1 showed him where the incident occurred. He took a photograph of the scene and issued police medical formtoPW1.Onthe17thdayofMarch,2022,hewasinformedbythePoliceatOdumasithatthe accused had been arrested in a similar case and he was in their custody so he proceeded to the PoliceStationatOdumasewithPW1whereheidentifiedtheaccusedashisassailant. 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 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 they hope to secure conviction of the person charged. A person is pronounced guilty onlywhentheevidenceledbytheprosecutioninrespectofthechargessatisfiesthestandardof proofrequiredbylawandthatisproofbeyondreasonabledoubt. 10 TheaccusedpersonhereinhasbeenchargedwithonecountofRobberyContrarytoSection149 oftheCriminalOffencesAct1960,Act29. Section 149 as amended by the Criminal Code (Amendment) Act 2003, (Act 646) provides “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or on indictment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon convictionbeliabletoimprisonmentforatermofnotlessthanfifteenyears.” Section150ofAct29provides“Apersonwhostealsathingcommitsrobbery (a) If in, and for the purpose of stealing the thing, that person uses force or causes harm to anyperson,or (b) If that person uses threat or criminal assault or harm to any other person, with intent topreventorovercometheresistanceoftheotherpersontothestealingofthething.” Thus, for the offence of robbery, it is important for prosecution to establish the following ingredients: a. That the accused person stole something from the victim of the robbery of which he is nottheowner. b. Thatin stealingtheaccusedpersonusedforce,harmor threatof anycriminal assaulton thevictim. c. Thattheintentionofdoingsowastopreventorovercometheresistance. 11 d. That this fear of violence must either be of personal violence to the person robbed or to anymemberofhishouseholdorfamilyinarestrictivesense. e. Thethingstolenmustbeinthepresenceofthepersonthreatened. See:KwakuFrimpongakaIbomanvrsTheRepublic(2012)SCGLR BossovrsRepublic(2009)SCGLR420. Itis theevidenceof PW1thattheaccusedpersonbeat himup andforcibly took his phone from him and bolted with it. PW2 corroborated his evidence and tendered in evidence a photograph pf the scene of crime and the PoliceMedical Formissued to PW1. He also tenderedin evidence the cautioned statement of the accused person in which the accused told the police that he bought tramadol from PW1 and subsequently realized that it had expired. Few days later he met PW1 and confronted him about it and took his phone from him so PW1 followed him. He then gave his phone back to him after he had given him Forty Ghana Cedis. Under cross examination, PW1 denied that he sells drugs and therefore contended that he never sold anything to the accused and therefore did not give him the sum of Forty Ghana Cedis but the accused forcibly took his phone from him. Thus, at page 5 of the Record of Proceedings the underneathoccurred; Q–Iputittoyouthatyouratherdealindrugslikepainkillersetc. A–Thatisnottrue. Q – I put it to you that I did not forcibly take your phone from you but I took it because you refusedtorepaymoneythatIusedtopurchaseanexpireddrugfromyou. A–Thatisnottrue. 12 Q– I put itto you thatyou laterrefundedFortyGhanaCedis tome soI gavethephonebackto you. A–Thatisnottrue. Q–IputittoyouthatyourphoneisratherTechnoandnotanInfinixsmartphone. A–Thatisnottrue. Thenatpage6oftheRecordofProceedingsthefollowingalsoensued; Q–IputittoyouthatIdidnotrobyou. A–TheAccusedpersonforciblytookmyphonefrommeandthatwaswhyIreportedthecase. Q–Iputittoyouthatyouarenotbeingtruthfultothecourt. A–IhavetoldthetruthandthatwaswhyIsworebytheKoran. PW2 also confirmed the fact that PW1 sells cosmetics and not drugs contrary to the accused person’s contention. When PW2 was under cross examination at page 10 of the Record of Proceedingstheunderneathoccurred; Q – I put it to you that PW1 does not sell cosmetics as you have stated but rather he deals in drugs. A–MyLordinmyinvestigationsIfoundoutthatitiscosmeticsthatthecomplainantsells. Q-Whichkindofcosmeticsdidyourinvestigationsrevealthathesells. A–HesellsdifferentkindsofcosmeticsthatIcannotmention. Q–Iputittoyouthathesoldanexpiredtramadoltome. A–MyLordmyinvestigationsdidnotdisclosethat. 13 Q – I put it to you that I told PW1 to exchange the expired tramadol for me and he refused so I picked his phone from the chair he was sitting on and I told him that I will give the phone to himwhenhegivesmymoneybacktome. A – According to investigations, the accused person subjected PW1 to severe beatings forcibly tookhisInfinixSmartPhoneandboltedawaywithsame. Thenatpage11oftheRecordofProceedingsthefollowingalsotranspired; Q–IputittoyouthatIdidnoteitherbeatortouchPW1inthebar. A – My Lord the accused subjected PW1 to severe beatings because when he reported the case atthepolicestation,therewasacutandbloodonthelips. Q – I put it to you that the accused person followed me and when he gave my money to me, I alsogavehisphonebacktohim.ThephonewasTechnoandnotInfinix. A – My Lord, the accused person has not given complainant’s Infinix phone which he forcibly tookfromhimbacktohim. Q–Iputittoyouthatitisatechnophoneandthatiswhathehasbeenbringingtocourt. A – My Lord the phone the accused took from the complainant is an Infinix phone and not a Technophone. Q–IputittoyouthatIcannotrobsomebodyinabar. A–MyLordtheaccusedpersonrobbedthecomplainantofhisInfinixphoneinthebar. Q–IputittoyouthatIcannotcommitrobberyinmyowntown. A–TheaccusedpersonrobbedthecomplainantofhisInfinixphone. 14 From the foregoing, a prima facie case was established against the accused person and he was asked to open his defence. The accused however chose to jump bail for a period till he was finallyarrestedbythepoliceinconnectionwithacaseinvolvingstealing. 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. According to him, he bought some medication from PW1 who sells painkillers because he had an accident and needed to treat himself. He decided to take the medicine at home from but when he arrived home and checked, the medicine had expired for three months. Three days later, he met PW1 at a bar and he informed him that the medicine had expired so he should change it for him but PW1 refused to do so claiming that he never sold an expired medicine to him.Anargumentensuedbetween themsohetookPW1’s phoneandtoldaskedhimtorefund his money else he will not give his phone back to him. He walked out of the scene and PW1 followed him and gave him an amount of Forty Ghana Cedis in exchange for his phone which he accepted. According to him he was supposed to give PW1 a change of Fifteen Ghana Cedis so he asked him to follow him to a provision shop but he refused and said he should keep all the money and told him to wait and see what would happen to him. He went on to say that he left for work and when he returned home the bar owner informed him that PW1 had brought the police to arrest him because he never returned his phone to him. He was subsequently 15 arrested in respect of another case and that was when PW1 identified him as the person who tookhisphone. The accused person opened his defence on the 15th of April 2024 and the matter was adjourned for him to call his witness. However he gave one excuse after the other and on the 23rd day of July 2024, the court closed his case after satisfying itself that the excuses were calculated at preventingthecourtfrombringingthetrialtoanend. PW2 corroborated the evidence of PW1 through his investigations into the matter confirming thatindeedPW1deals in cosmetics andpainkillers as statedbytheaccused.Healsostated that both the Bar Attendant and PW1 showed him the part of the bar where the incident occurred. Undercrossexamination,theaccusedcontendedthatamedicaldoctoratahospitalheattended prescribedthetramadolforhimandasheknewPW1wassellingit,hedecidedtobuyfromhim. However,hedidnotproducethesaidprescriptionformbeforethecourtneitherdidhemention thenameofthemedicaldoctororthehospitalthatprescribedthesaiddrugforhim. Furthermore,hecontendedthatthepeopleinthecommunityknowthatPW1sellstramadolbut he did not call any member of the community to confirm it. If this was so the accused would have told the police in his cautioned statement especially so when PW1 had intimated to the policethat theaccused called him intothebar to buy someof his cosmetics.As a matter of fact, save putting it to PW1 that he deals in drugs like painkillers, nowhere in the cross examination of PW1 did the accused contend that the people in the community are aware that PW1 deals in drugs. 16 Theaccusedperson’sdefenceisanafterthoughtcalculatedatdistortingwhatactuallyhappened on that day. On the totality of the evidence I find that the accused invited PW1 to the said bar underthepretextofbuyingsomeofhis cosmeticsbutrathertookadvantageandrobbedhimof his phone. The accused has not raised doubts in the case for the prosecution and he is thus foundguiltyoftheoffenceandaccordinglyconvicted. I have listened to the prayers of prosecution and the accused person. I take into consideration thattheaccusedis a firsttime offender andI also takeinto consideration that themobilephone that the accused forcibly took from the Complainant has not been retrieved and sentence the accusedtoTen(10)YearsImprisonmentIHL. SGD. NANAASANTEWAAATTAKORAH (CIRCUITCOURTJUDGE) COUNSEL C/INSPECTORDELAAMENUVORFORPROSECUTION ACCUSEDINPERSON 17 REFERENCES OKEKEVRSTHEREPUBLIC(2012)41MLRG53 ABAKAHVRSTHEREPUBLIC(2010)MLRG111CA AMARTEYVRSTHESTATE(1964)GLR256. GLIGAH&ANOTHERVRSTHEREPUBLIC(2010SCGLR870. DEXTERJOHNSONVRSTHEREPUBLIC(2011)SCGLR601. MILLERVRSMINISTEROFPENSIONS(1974)2ALLER372 TETTEHVRSTHEREPUBLIC(2001-2002)SCGLR854 FRANCISYIRENKYIVRSTHEREPUBLIC(2017-2020)1SCGLR433 KINGSLEYAMANKWAH(A.K.A.SPIDER)VRSTHEREPUBLICCRIMINALAPPEALNO. J3/04/2019DELIVEREDONTHE21STDAYOFJULY2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.PVRSANTWI(1961)GLR408SC WOOLMINGTONVRSD.P.P(1935)AC462AT481-482HL ATSUVRSTHEREPUBLIC(1968)GLR176CA. TSATSUTSIKATAVRSTHEREPUBLIC(2003-2004)SCGLR1068 LOGANVRSLAVERICKE(2007-2008)SCGLR76. STATEVRSANANIFIADZO(1961)GLR416SC. KAMILVRSTHEREPUBLIC(2010)30GMJ1CA. TAMAKLOWVRSTHEREPUBLIC(2000)SCGLR1SC. 18 BOSSOVRSTHEREPUBLIC(2009)SCGLR470. THESTATEVRSSOWAH&ESSEL(1961)2GLR743AT745 KWABINAAMANINGALIASTAGOR&ANOR. VRSTHEREPUBLIC(2009)23MLRG78 CA. KWAKU FRIMPONG AKA IBOMAN VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/5/201018THJANUARY2012. BOSSOVRSREPUBLIC(2009)SCGLR420. BOOKS ESSENTIALSOFGHANALAWOFEVIDENCEBYJUSTICEBROBBEY CONTEMPORARYCRIMINALLAWINGHANABYJUSTICEDENNISDOMINICADJEI.