REPUBLIC VRS KORLEY (B7/133/2022) [2024] GHACC 271 (18 July 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON THURSDAY THE 18TH DAY OF JULY 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B7/133/2022 THE REPUBLIC VRS ERIC KORLEY -------------------------------------------------------------- JUDGMENT This is a case reported at the Tumu Municipal Police station where a serving Police Detective is charged with three counts of Stealing, threat of death and unlawful possession of narcotic drugs. Because the charges were criminal in nature, no service enquiry was recommended but criminal charges, meaning the accused was interdicted by service regulations and the trial took unusually too long to conclude. The result of this judgment will either see accuse return to work as in re-instatement or be dealt with per service regulations upon conviction. The charges against the accused person The accused person is charged with three counts: stealing, threat of death and unlawful possession of narcotic drugs. The first two offences are contrary to section 124(1) and section 75 and of the Criminal Offences Act, Act 29/1960 and the last offence is contrary to section 37(1) of Act 1019/2020, the Narcotics Control Commission Act. Accused pleaded not guilty to the charges thus putting the onus on prosecution to prove all the ingredients of the offences. This prosecution achieved and the accused went on to defend himself. 1 Summary of Facts The facts supporting the charges are that the complainant is a station officer at the Tumu Police Station where accused is a police corporal with Staff No. 47430 working in the same station and that on 19/09/21 at about 12:00hrs complainant was on his usual supervisory rounds where he arrived at the charge office of the station and noticed that the cell door at the Tumu central police station was at the time left open and further checks at the improvised counter armoury also revealed that a service AK47 riffle with Identification Number 6554 with 190 rounds of ammunition together with two magazines were not in stock. The station officer having made the observation, drew the attention of the Non- Commission Officer One G/Cpl Anyidoho Ametefe with Staff No. 48272 as well as the Station Orderly G/Constable Abdulai Abubakari Guirra with Staff No. 58349 who were on duty at the station at the time. Complainant then went ahead to inspect the cells and noticed a suspect by name Ibrahim Zienni was at the time fast asleep on the cell floor but another inmate supposed to be under detention by name Karim Abdul had escaped. This inmate escape was then reported to the District Commander and an investigation was immediately launched into the situation at the station. Come the 19/09/21, men from the Regional Command – Wa arrived and arrested the accused person Eric Korley then the investigator on the case involving the suspect Karim Abdul who had escaped. On 26/09/21 the suspect found in the cell fast asleep was interrogated and he told the investigators that on 18/09/21 his colleague in detention Karim Abdul opened the cell door at about midnight and escaped and when he decided to equally escape, he saw the accused person entering the charge office at the time and so he retreated and kept an eye on the officer and then noticed that he had walked to where the station’s weaponry was and took away an AK 47 with some quantity of ammunition but when accused was leaving, he notice he had seen him and 2 so he walked up to him and gave him a stern warning to wit “If you dare tell anyone that I came to the police and stole the riffle, I will kill you” Accused was then arrested and brought to the station for detention On 19/09/21 when he Ibrahim Zienni the suspect in detention who had seen accused a day before taking the riffle was still in detention, accused again repeated his threat on him and dared him not to make mention of what he saw to anyone. The suspect in detention who told police this account was emphatic of who he was referring to and could identify accused when brought before him. An identification parade was subsequently conducted on 25/09/21 at about 3:15pm at the offices of the Regional Command in Wa and the suspect who claims to have witnessed accused going for the service riffle identified the accused in three separate rounds of identification. After the identification parade and on 7th September 2021, accused person in the company of the suspect who identified him and the suspect who had earlier escaped and was re-arrested led by police returned to the Tumu police station where the witness demonstrated to the team where accused entered the charge office from, where he headed to and where he stood to issue the threat on his life when he noticed that he had seen him. According to police, the accused looked on when the witness gave his account unchallenged. When further investigations were conducted at the home of the accused, a quantity of leaves suspected to be cannabis were retrieved, another consignment of leaves were also found in a plastic container laced with alcohol and when he was questioned, he mentioned that the container with the suspected substance was given to him by his District Commander one DSP/ Mr. Dieku Gbele Kumpe for safe keeping but the officer denied knowledge of ever giving anything to the accused to keep. The suspected substance was then turned in at the forensic laboratory in Accra for examination when the case was presented in court and the result returned, proved 3 that the suspected leaves and that were laced with alcohol contained cannabis. The trial of the accused then continued after the forensic report. After the accused person was denied bail on first arraignment, he was subsequently granted bail to prepare for his trail as he was led by counsel. At pre-trial conferencing, prosecution indicated of presenting five (5) witnesses including Ibrahim Zienni who was alleged to have seen the accused come into the police station at an odd hour to take way the riffle and in the process is alleged to have issued threats on his life to prevent him from divulging that information to anyone. Prosecution closed its case after calling four of the five witnesses, the fifth was the witness at the centre of count one and two and so counsel for the accused was of the firm believe that prosecution had failed to make a prima facie case for which his client should not be called upon to open his defence and this the court gave both counsel the opportunity to file written submissions to argue their respective cases with counsel for the accused filing a reply after he had read from prosecution. When the court ruled that the submission of no case had failed, counsel eventually got to work and had his client file a witness statement which he guided him to lead evidence on. Trial got completed and the judgment of the court again received industry with written submissions filed for the review of the court though largely what was advocated during the submission of no case. Analysis of the facts and the application of the law To begin with is the charge of stealing, prosecution gave the particulars of offence to be that: ERIC KORLEY, Policeman, 34 years, literate: On or about 19/09/21 at Tumu Police Station in the Upper West Region and within the jurisdiction of this court, you dishonestly appropriated one service AK47 with number 6554 with 190 rounds of ammunition and two magazines, the property of the Republic of Ghana. 4 The applicable law on stealing is that contained in Section 124 (1) of Act 29/60 which provides that whoever steals shall be guilty of a second degree felony. Section 125 of Act 29/60 defines stealing as that; “a person steals if he dishonestly appropriates a thing of which he is not the owner”. In Adams V The Republic (1992) GLR 150, the ingredients of stealing were stated as dishonesty, appropriation and property belonging to some other person than the accused. See also Ampah V The Republic (1977) GLR 171. Having set forth what the law on stealing is, I will situate the evidence of prosecution to obtain whether she was able to prove all the ingredients of the offence as is required by law. Kwamena Amaning @ Tagor and Another vrs The Republic (2009) 23 MLRG 78 the court laid emphasis that: “The paramount consideration in deciding whether a prima facie case has been made or not; whether the prosecution has proved all the essential ingredients or pre-requisites of the offence charged. No prima facie case is made where the prosecution was unable to prove all the essential ingredients. Even if one ingredient is not proved; prosecution fails and no prima facie case is made. The issue therefore is whether or not accused person appropriated the service riffle with the 190 rounds of ammunition together with the two magazines from the counter Armoury with an intention to permanently deny the Police Service of the use of this weapon. Section 125 of Act 29, defines the offence and provides the requisite elements to be established by the prosecution in order to prove a charge of stealing. Per section 125, a person steals if he dishonestly appropriates a thing of which he is not the owner. The actus reus of stealing is the act of appropriation whilst the mens rea required is that of an intention to steal. Thus in order to prove that an accused had stolen a thing, the prosecution bears the onus of establishing these three ingredients; 5 1. that the accused is not the owner of the thing allegedly stolen 2. that the accused appropriated the thing alleged to have been stolen, and 3. that the appropriation was dishonest. On the first element, the case of the Republic v. Halm & Ayeh (1969) C.C. 155 is quite instructive. It held that, starting from the basic proposition that ownership of property is vested in someone, whether known or unknown, there is nothing illogical in saying that the law does not require that proof be given of who owns the property, although it does require proof that the appropriation of it was without the owner's consent or that it would, if known to him, be without his consent. Thus, the prosecution must prove that accused was not the owner of the riffle and must further show that the appropriation was without the consent of the police service. In order to prove the second element of appropriation, the prosecution must go to section 122 (2). According to section 122 (2) An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof. The prosecution must then prove the last element of dishonesty. Thus it is explained in section 120 (1) of the Criminal Code that an appropriation of a thing could be deemed to be dishonest if it is proved that the appropriation was made: (i) with intent to defraud; or (ii) by a person without any claim of right; and (iii) with a knowledge or belief that the appropriation was without the consent of some person for whom he was a trustee or who was the owner of the property appropriated. 6 In reviewing the evidence, prosecution adduced evidence to the fact that a witness then in detention saw the accused walk into the charge office and moved straight to the improvised counter armoury and picked the service AK47 and some quantity of ammunition. To prove the credibility of that assertion, prosecution organised an identification parade to allow the witness to identify the accused among other persons and this the witness did in three rounds of an identification parade. This I find that the case of prosecution is reasonably probable though evidential matters of proof remain to be dealt with when accused opens his defence. I find therefore that accused should be ordered to open his defence on count one to allow for the evidential issues be dealt with than terminating the case at a prima facie level. When the court towed the tangent of upholding the evidence of the identification parade, it was meant to give credibility to Police internal evidence gathering procedures but when the accused challenged the evidence of prosecution especially that the key witness in the first two charges was not available to speak for the alleged eye witness’s accounts of him seeing accused at the counter move the raffle and the several rounds of ammunition away. As a criminal trial, I cannot whisk away the weak links accused lawyer raised else I will be reversed on appeal for not being thorough especially that no inventory was tendered into court to depict the weapon movement prior to the incident. The counter armoury is not stationary left unattended to, but a Police function supervised heavily and accused could not have walked in and moved a service riffle with ammunition as if he was deployed for war. 190 rounds is no mean quantity of bullets and this court tried bringing same to court as part of this decision but could not. In the circumstances of a full trial particularly that counsel for the accused raised some doubts, I refuse to be impressed with the case of prosecution that accused stole a service riffle and some quantity of ammunition and so I decline to find him guilty of stealing on count one. 7 On count two, Section 75 of Act 29/60 provides that a person who threatens any other person with death, with intent to put that person in fear of death, commits a second- degree felony. In Behome V The Republic (1979) GLR 112. It was held, inter alia, that in the offence of threat of death the actus reus would consist in the expectation of death which the offender creates in the mind of the person threatened whilst the mens rea would also consist in the realization by the offender that his threats would produce that expectation. In the entire case of prosecution, the suspect then in custody who was issued the threat stated that accused gave the threat when he came up to him after suspecting he had seen him and again when he was arrested and brought to the cell he was that he repeated the threat on him. This is the case of prosecution and I have no reason to doubt that except that the witness was not available to speak to what he asserted. In criminal prosecution when the state fails to produce a star witness in a case where prove is incumbent on it, the state stands to lose because the evidential burden was not discharged. I therefore cannot receive and agree hook line and sinker that the alleged threats were meted out to the accused when indeed the author is not available to speak to his assertion. On this charge too i have no basis to support or impugn guilt on accused. The third charge being that accused had 792.74 grams of cannabis without lawful authority and this was against section 37(1) of the Narcotics Commission Act which states that – Any person who without lawful authority, proof of which lies on that person, has possession or control of a narcotic drug for use or for trafficking commits an offence. Prosecution led its evidence to the point where the substance was taken for forensic test and the substance was proven as cannabis but as to whether accused used the substance for consumption or trafficking prosecution was silent on that. Though the 8 purpose of the possession remained weak, counsel for the accused calls on the court to find that the essential ingredients were not proven did not find favour with the court because the court wanted the trial to be full and to be understood and cited case of Kwamena Amaning @ Tagor and Another vrs The Republic (2009) 23 MLRG 78 in which Pwamang then at the bar representing the accused got Prof. Modibo Ocran of blessed memory described the submission of no case to have often been mis- appreciated and described . The foreign trained Jurist posited that the search at the submission of no case stage was prima facie evidence to continue or not to do though the general guide on proof remains proof beyond reasonable doubt. The Ghanaian position on proof beyond reasonable doubt is that the evidence of prosecution and that of the accused must all be presented before the court will evaluate to pronounce o the proof beyond reasonable doubt. This was well couched by the learned and respected Justice Atuguba when he said in TSATSU TSIKATA V. THE REPUBLIC that: “To my mind the provision in section 11 (2) of the Evidence Decree (now Evidence Act), 1995 means that, a reasonable mind, applying his powers of reasoning to the evidence led by the prosecution at the close of its case, will end in the conclusion that, if no contrary evidence is led, it could be said that the relevant fact which has to be established by the prosecution has been established beyond reasonable doubt. This certainly calls for an assessment of and not merely a reading of the evidence so led, in a manner consistent with the requisite standard of conviction that must at that stage of the trial be induced in the mind of the reasonable person.” The Court having carefully assessed the evidence after a full trial finds that the substances found with him were indeed cannabis as the forensics declared but were not linked to consumption or trafficking. I find no evidence impugning the accused to 9 be a consumer of such substances and the court will not want to insinuate same since our security services are well trained. An acquittal of the accused here suffices because merely being found with the substance does not discharge the burden on prosecution on proof. On a whole, the accused walks away a free man and should obtain an order of this court through the chambers of his counsel for the staff office of the regional command to process his reinstatement. H/H JONATHAN AVOGO CIRCUIT COURT JUDGE - WA 10