REPUBLIC VRS ALI (B7/27/2024) [2024] GHACC 273 (24 July 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON FRIDAY THE 24TH DAY OF JULY 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B7/27/2024 THE REPUBLIC VRS TAUFIK ALI JUDGMENT The charges/Plea The accused person was charged along with two others, A2 the dishonest receiver pleaded guilty to the offence because he admits he received the subject matter motorbike from A1 and so was immediately dealt with. A3 an accomplice of A1 was arrested over another offence and was tried by a court in Tamale for which he serving a conviction. A1 however remained the only accused person to stand trial because he pleaded not guilty to the offence of robbery contrary to sections 149 of the Criminal and Other Offences Act 1960 [Act 29]. Summary of facts The facts are that complainant Abdul Rahman Fatawu a resident of Zindeli in Wa and a student gave an account of how he went to visit a female friend around the SSNIT residential area on 13th December 2020 at about 7pm saw A1 who was riding a black Luojia motorbike with a pillion behind. That they rode pass them whilst greeting them but soon after they passed they returned to him and his friend ostensibly putting them under arrest because the showed the two a locally manufactured gun whilst telling them 1 to remain calm else they risked being shot at. That A3 then conducted a search on PW1 and took away an itel keybap mobile phone valued at GHC500.00, an LG6 smart mobile phone also valued at GHC1000 with A1 taking away a tablet valued at GHC800 that the female companion of PW1 had with her. After all this A1 instructed PW1 to hand over the motorbike he was using and indeed had sat on to A3 and the two fled the scene. On 7th June 2024 A1 after sighting A1 at a suburb in Wa reported the matter to the Police Intelligence Directorate and he was eventually arrested on 11th June 2024 where he admitted committing the offence and mentioned A3 as his accomplice and that the items were sold and the amount released shared among them. He particularly mentioned A2 to have bought the stolen motorbike and paid them GHC2500 for it. With these facts on arraignment before the court, prosecution took the charge and assembled three prosecution witnesses to prove the case against A1. EVIDENCE OF PW1 PW1 Abdul Rahman Fatawu gave his account of the night of the attack which was 20th December 2020 when he went visiting a lady friend. That he was by the road side in the neighborhood of the SSNIT residential area in Wa township when they two of them saw A1 and a pillion rider ride pass them and even responded to their greeting when the rode pass. That in a few minutes whilst still by the same spot the duo returned now to them very close and showed a locally manufactured gun to them warning them they risk being shot if they resisted their demands. That A1 did not wear any masking and so he saw him and recognized him immediately. A2 then got down from the back of the motorbike and conducted a search on PW1 and took away two mobile phones and an amount of money he had on him after closing the sales of the day from a hardware business he operates. That A1 also collected an Ipad from the lady companion of PW1 with A3 then collecting the motorbike on which PW1 sat on and the two sped off. PW1 said he was left devasted 2 because he had no dime on him to move and his companion left in fear immediately running back home whilst he left walking into town. That upon arriving home, he made enquiries that led him to a compatriot of A1 and upon describing that a gun was shown to subdue them, the compatriot mentioned A1 because he had brought a gun to him to buy previously. PW1 said, further checks led him to the mother of A1 who informed him he was not at home in Wa but he confirmed from people who knew him A1 was in Wa because the wife had delivered and he was home to christen the child. PW1 ended his evidence by being resolute that A1 together with A3 were those who attacked him on the night and so could not deny it. PW2 the female companion of PW1 gave her name as Patience Sugurunah and that PW1 a female friend of hers visited and they were having a chat by the road side when A1 and another who rode as a pillion came and passed them and greeted them, so they respectfully responded but little did they know they will return in a few minutes. That when they returned A2 got down from the motorbike and walked quietly towards them holding something wrapped with sellotape. The item wrapped was a gun and the two told them to remain calm else if they moved they will disable them with the weapon PW2 said though she could not identify A1 because she did not know her trusted the Police when intelligence led to his arrest after the crime was committed on them. She again painfully narrated how the IPad was taken away from her and her plea to A1 not to because it was used for classes by her niece but that was not convincing to A1 and he snatched it from her and later A2 took the Black Savy motorbike on which A1 sat on and the rode away. PW2 said she was left bewielded but thank her God that they were not hurt and she run home. 3 PW3 was the Police Detective from the Police intelligence Directorate. He identified himself as Cornelius Kpebbesan with Staff ID No. 57992. That as the available investigator assigned the case he moved to the crime scene after he had taken the statement of the complainant. PW3 told the court that though the crime was committed in 2020 A1 left town but when PW1 reported of having sighted him, a swoop was organized and A1 was arrested. During his interrogation he admitted the offence and gave details that the motorbike was sold to A2 at an amount of GHC2500 and the proceeds were shared between him and A3. Prima Facie Determination Prosecution closed its case leaving the court to determine that prima facie was made out against the accused for which he should prepare to defend himself on an adjourned date. The case of accused person When accused took to the witness box and was sworn in, he denied admitting committing the offence but attributed those statements assumed to be admittance to being under duress because the police tortured him to the extend that the carpet in the office of the commander got torn. Accused said he left Wa not because he avoided arrest but that he never participated in the committal of the offence but fell short of responding to why he did not challenge A2 when he admitted the offence when his plea was taken and he mentioned that the motorbike was sold to The relevant law The fundamental rule in criminal practice has been stated in the 1992 Constitution of Ghana as follows; “A person charged with a criminal offence shall be presumed 4 innocent until he is proved or has pleaded guilty’. See article 19 [2] [c]. Therefore, in this trial, for the prosecution to sustain a conviction and subsequently sentence against the accused person, it must prove that in deed and in fact that accused did meet PW1 & 2 and with the aid of a gun put them in a state of fear and dispossessed them of their mobile phones, an Ipad and a motorbike. The accused however in criminal jurisprudence has no duty under the law to prove his innocence but to merely raise a doubt in the case of prosecution to secure an acquittal. In Commissioner of Police vs Antwi [1961] GLR 408, the Supreme Court 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. The evidential burden The evidential burden which is also the obligation to prove that A2, 3 & 4 committed these two offences lies squarely on the prosecution to prove by the standard set to be proof beyond reasonable doubt. Section 11 [2] of the Evidence Act 1975 [Act 323] says; “In a criminal trial, the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt”. It is not easy to determine what constitutes ‘reasonable doubt’. In the case of Oteng vs The State [1966] GLR 352, the Supreme Court had said; ‘…. the citizen too is entitled to protection against the State 5 and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubts”. Proof of identity of the accused Dogbe vs The Republic [1975] 1 GLR 118 established that in criminal trials, the identity of the accused person as the one who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which the identity might be inferred by the court. Also, in Adu Boahen vs The Republic [1972] 1 GLR 70, CA, it was decided that where the identity of an accused person is in issue there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused person committing the offence charged. In this instance, PW1 said he knows A1 very well because he grew up in the zongo as well and that upon his ordeal those he contacted were very close associates of A1 who were very certain that he was the one who attacked them because he had presented a gun to them to buy. Again, PW1 said A1 was not masked and so knowing him he was certain of his identity. The case of Accused in Denial of being the one In try to deny committing the offence A1 said he was not in the region when the offence was been committed, this is a sharp departure from when he was arrested and he admitted the offence, assuming A1 did not participate in the offence why will he present the motorbike to A2 for sale. I have already indicated elsewhere in this judgment that generally speaking, it is the lawful duty of the prosecution to proof the charge against the accused person beyond reasonable doubt and that the accused person has no such duty to prove his innocence until the legal burden is shifted onto him. In this trial, the accused person says that he 6 was nowhere in the region but contrary evidence by prosecution was that he participated in the offence and sold the item involved to someone who admitted dishonestly receiving it. The above, in my view, clearly shows that PW1 really identified A1 as the one who attacked and robbed him that night. I find that there is overwhelming evidence on record to link him to the offence. To this end, I think, I can safely rely on the decision arrived at in Frimpong alias Iboman’s case, and conclude that the prosecution has been able to prove the charges leveled against A1 beyond reasonable doubt. The available evidence is that A2 used a gun to subdue his victims The description of what weapon was used is very important as the law has various jail term depending of the offensive nature of the weapon. Section 149 under which A1 is charged reads; “A person who commits robbery commits a first degree felony’ Section 150 however defines robbery as; “A person who steals a thing commits robbery [a] if, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or [b] if that person uses a threat or criminal assault or harm 7 to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing”. On the issue of the punishment upon conviction, the Criminal Code [Amendment] Act 2003 [Act 646] provides as follows; “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or on indictment, to imprisonment 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 conviction be liable to imprisonment for a term of not less than fifteen [15] years”. Mitigation/Aggravation of sentence A1 remained unyielding and did not have anything to say to mitigate his sentence. Prosecution however could not lay any record to prove that he had a previous conviction and so the court proceeded to convict and sentence accused to 18 years in hard labour. HIS HONOUR JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, WA 8 9