REPUBLIC VRS. JACOB AND OTHERS (GR/KB/CCT/B1/17/2024) [2024] GHACC 366 (19 July 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON FRIDAY 19TH JULY, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/B1/17/2024 THE REPUBLIC VRS ABRAHAM JACOB & 2 OTHERS ACCUSED PERSONS (A1 & A2) PRESENT ACCUSED PERSON (A3) AT LARGE CHIEF INSPECTOR GERSHON TOGBE ACHONDO FOR PROSECUTION PRESENT JUDGMENT Accused persons have been charged with the following offences; i. Count One-Conspiracy to commit crime to wit stealing, contrary to sections 23 and 124 (1) of the Criminal and Other Offences Act, 1960 (Act 29) ii. Count Two-Causing Unlawful Damage, contrary to section 172 (b) of Act 29 iii. Count Three-Unlawful Entry, contrary to section 152 of Act 29 iv. Count Four-Stealing, contrary to section 124 (1) of Act 29 v. Count Five-Having Possession of Stolen Property, contrary to section 148 of Act 29 A1 and A2 pleaded not guilty to all the charges. A3 is at large. INGREDIENTS OF THE OFFENCES: Conspiracy to commit crime, per section 23 of Act 29, is where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation. For the charge of unlawful damage to succeed under section 172 of Act 29, the prosecution must prove the following: i. That damage has been caused to property belonging to the complainant by the accused persons 1 ii. That the damage caused was intentional iii. That the damage caused was unlawful See the case of OKOE v THE REPUBLIC [1979] GLR 119 As regards Unlawful Entry under section 152 of Act 29, the prosecution must prove the following: i. That accused persons entered on the premises of the complainant ii. That the entry was unlawful iii. That the entrance was with the intent to commit a crime See the case of KANJARGA v THE STATE [1965] GLR 479, SC Then, for the charge of stealing to succeed the prosecution must prove the following ingredients of the offence; i. That the accused persons are not the owners of the items alleged to have been stolen ii. That there was appropriation iii. That the appropriation was dishonest (See BROBBEY AND OTHERS V THE REPUBLIC [1982-83] GLR 608) In respect of Having Possession of Stolen Property, under section 148 (1) of Act 29, where a person charged with dishonestly receiving and is proved to have had in possession or under control, anything which is reasonably suspected of having been stolen or unlawfully obtained, and that person does not give an account, to the satisfaction of the Court, as to the possession or control, the Court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to the contrary. BURDEN OF PROOF: Prosecution assumes the burden to prove the guilt of the accused persons beyond reasonable doubt as required by section 11(2) of the Evidence Act, 1975 (NRCD 323). On the other hand, the accused persons are not required to prove their innocence but only to raise a reasonable doubt as to their guilt as required by Section 11(3) of NRCD 323. See also ALI YUSUF ISSA (No. 2) V THE REPUBLIC [2003-2004] SCGLR 174. 2 EVIDENCE OF PROSECUTION Prosecution called two witnesses in an attempt to discharge its burden. PW1- HANNAH QUAYNOR PW1, Hannah Quaynor, was the complainant in the case. In summary, she testified that she had been called by a neighbor to ascertain whether she had sent someone to her house at Kwabenya to remove or work on the air-conditioners. Thus, she quickly rushed to the scene and to her surprise, realised that one of the windows of the hall had been broken into, the whole house having been fully ransacked by thieves with virtually all valuable assets and personal belongings acquired under decades of period gone. Thereafter, she received another call from the son of the neighbor that they had found some of the stolen items from A1 and A2, who were offering same for sale on the streets. PW2-D/C/INSPR DANIEL YENTUMI PW2 was D/C/Inspr Daniel Yentumi, the officer who investigated the case. He tendered the following documents: i. Statement of complainant to the police dated 15th December, 2023- Exhibit „A‟ ii. Statement of Bright Okyere Asare to the police dated 15th December, 2023-Exhibit „B‟ iii. Investigation cautioned statement of the accused person, A1 as Ex „C‟ iv. Charged cautioned statement of the accused person, A1 as Ex „C1‟ v. Investigation cautioned statement of the accused person, A2 as Ex „D‟ vi. Charged cautioned statement of the accused person, A2 as Ex „D1‟ At the close of the case for prosecution, the Court invited the accused persons to open their defence. EVIDENCE OF ACCUSED PERSONS A1 testified that Thomas Abu (A3) who is at large, is his friend and that one day, Bright Asare came to the house looking for A3 that he had run away with his GH¢25,000.00. They started searching for A3 and they found some items in his apartment, which had been stolen by A3. The polythene bag of kente belongs to Bright Asare, who forced it on him on the street. After sometime, Bright Asare asked him to go to the complainant‟s house and watch a CCTV camera. Upon reaching there, he could not find the CCTV camera. He was told that it was stolen and he was arrested. 3 A2‟s evidence is to the effect that A1 accommodated him from October to December 15, 2023 when they were arrested. A1 had other persons living with him, including A3. A2 states that he does not know anything about the theft. According to A2, on the day of their arrest, A1 called him to meet him and he did. He was carrying a polythene bag, which had a satin lace. A1 told him that he was taking it to a tailor but had changed his mind and would rather take it to a lady he owes, if the lady would buy it. They went to the lady who said she liked the material but did not like the colour. It was when they were coming back that they met Bright Asare and some boys, who beat them. According to A2, they searched his phone but did not find any evidence but saw conversation between A1 and A3 and saw some items in the room and on A1‟s phone. They asked A1 about the items and he said they belonged to Thomas Abu (A3). They were then marched to complainant‟s house and she confirmed that all the items belonged to her. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW (i) Conspiracy to Commit Crime to wit Stealing Section 23(1) of Act 29 provides that “If two or more people agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the crime as the case may be.” The elements to be established as stated in REPUBLIC V. BAFFOE BONNIE AND OTHERS (Suit No. CR/904/2017) (unreported) dated 12 May 2020 are that there were at least two or more persons, there was an agreement to act together and the sole purpose for the agreement to act together was for a criminal enterprise. This proof is either by direct evidence or by establishing evidence of overt acts. The overt acts are done to carry out the criminal objective. Upon analysis of the evidence before this Court, I do not find any direct evidence to substantiate conspiracy. Neither do I find overt acts to carry out the criminal objective of stealing, as the items were found in A2‟s house after the crime had been committed. (ii) Causing Unlawful Damage For the offence of Causing Unlawful Damage to succeed, prosecution must prove that damage has been caused to property belonging to the complainant by the accused persons and that the damage caused was intentional and unlawful. 4 The evidence in this case establishes that damage has been caused to the property of PW1, in that one of the windows of the hall of the promises had been broken into. This act is of course, intentional and unlawful. However, prosecution has not been able to prove that the damage was caused by A1 and A2. In as much as prosecution may seem to rely on circumstantial evidence to prove this charge, the circumstances of the case do not point to one any only one fact that it was A1 and A2 who caused damage to the property. (iii) Unlawful Entry Per this charge, prosecution must prove that the accused persons entered on the premises of the complainant, that the entry was unlawful and that the entrance was with the intent to commit a crime. One should be guided by the fact that the person who is said to have brought the items to the apartment of A2 is A3, who is at large. This raises some doubts about the actual person who unlawfully entered the premises, which doubt should inure to the benefit of the accused persons. Accordingly, it would be unjust to find A1 and A2 guilty of the charge of unlawful entry to the premises. (iv) Stealing As stated earlier, prosecution must prove all the three ingredients of stealing, being property of which accused is not the owner, dishonesty and finally appropriation. A1 and A2 were found with items which did not belong to them. According to A2, the items were brought to his house by A3, who is at large. Meanwhile, complainant has identified the items as hers, which have been dishonestly appropriated. The evidence before the Court is that A1 and A2 were arrested with some stolen items and that a search conducted at their place of abode led to the retrieval of more stolen items. In Exhibit „C‟, dated 15th December, 2023, A1 stated that A3 brought the items to the house about two weeks earlier and when he asked him how he came by them, he told him he had broken up with his girlfriend and thus brought the items to A1‟s house. He then asked A3 to keep them in the hall. A1 further stated in that same Exhibit that on 13th December, 2023, A3 informed him that he was going to his hometown and so he A1, took one of the cloth to sew dress and wear. Subsequently, in his defence to the charges in Court, A1 testifies as follows; “The polythene bag of kente belongs to Bright Asare. He forced the polythene bag into my hands on the street.” After 5 sometime, he told me to go to the complainant’s house to go and watch a CCTV camera. I was told it was stolen and I was arrested.” It is also interesting to note that under cross-examination, A1 informed the Court that the kente cloth was given to him by A3 as a gift. I find A1‟s evidence too incoherent to absolve him from liability, particularly when the items were found in his house. These items included a box containing bowls, ceramic bowls, four sets of kente cloth, PS4 game and a ladies bag. I find that A1 dishonestly appropriated the items since his evidence is neither acceptable nor reasonably probable. In respect of A2, he testified that he does not know anything about the theft. A summary of A2‟s evidence is that on the day of their arrest, A1 called him to meet him and he did. He was carrying a polythene bag, which had a satin lace. A2 told him that he was taking it to a tailor but had changed his mind and would rather take it to a lady he owes if the lady would buy it. I wonder why A2 did not ask further questions in respect of the items for sale and thus, do not find his explanation acceptable. The next question then is whether his explanation is reasonably probable? The principle, as stated in AMARTEY V THE STATE [1964] 256-262 is that; “Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider firstly, the version of the prosecution applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant's story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.” Having applied the above three tier test, I find the evidence of A2 reasonably probable and in the circumstance, A2 should be acquitted. 6 (v) Having Possession of Stolen Property Under section 148 (1) of Act 29, where a person charged with dishonestly receiving and is proved to have had in possession or under control, anything which is reasonably suspected of having been stolen or unlawfully obtained, and that person does not give an account, to the satisfaction of the Court, as to the possession or control, the Court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to the contrary. Per the section above, accused persons should be charged with dishonestly receiving for a finding of possession of stolen property to be made, and thus, convicted of dishonestly receiving. However, the charges before this Court do not include dishonestly receiving. Accordingly, the charge is struck out as improper before the Court. DECISION On the totality of the evidence before this Court, A1 and A2 are acquitted of the charges of Conspiracy to Commit Crime to wit Stealing, Causing Unlawful Damage and Unlawful Entry. However, A1 is convicted on the Charge of stealing whilst A2 is acquitted of same. SENTENCE I have considered the age of the accused person (A1) and the fact that he is a first time offender. I have also considered the fact that A1 has been in police custody since 22nd December, 2023. Having also considered the intrinsic seriousness of the offence committed, A1 is sentenced to twenty-four (24) months‟ imprisonment for Count Four. Her Honour Mawusi Bedjrah Circuit Judge 7