REPUBLIC VRS. FRIMPONG (D21/075/24) [2024] GHACC 384 (20 June 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON THURSDAY, THE 20TH DAY OF JUNE, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D21/075/24 THE REPUBLIC VRS KOFI FRIMPONG ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT The Republic v. Kofi Frimpong Page 1 of 14 THE CHARGE The accused person was arraigned before this court on 9th April 2024 on a charge of Robbery, contrary to section 149 of the Criminal Offences and Other Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty to the charge after it had been read and explained to him in the Twi language, being his language choice. The accused person having pleaded not guilty to the charge put the entire facts of the prosecution in issue and thereafter, the prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. FACTS The brief facts of the case as presented by the prosecution are that complainant Doris Awudi is a House Keeping staff of Marriot Hotel and resides at Lapaz whiles accused person, Kofi Frimpong is a mason laborer and resides at Accra Arts Centre. On 29/03/2023 at about 9:15pm complainant was trekking from Shangri La bus stop along Liberation Road to her office at the Airport City. On reaching a section of the road about 50 meters to the Association Traffic Light, she saw accused pretending to be jogging along the roadside following her, yet she continued her walk. All of a sudden, accused crossed the complainant, held her dress and demanded she handed over her phone to him by force. Complainant refused and struggled with accused and freed herself whiles screaming for help. Complainant began to run for safety but accused booted the complainant and she fell face down on the pavement and became unconscious. A motor rider and a yoghurt The Republic v. Kofi Frimpong Page 2 of 14 seller who were across the road heard the cry and gave accused a hot chase. Accused attempted to jump over a fence but with the help of a security guard, accused was arrested and the phone was retrieved. The case was reported at the Airport Police station and Police medical form was issued to the complainant to seek medical treatment and the medical officer confirmed her injury. During investigation, accused admitted on cautioned that he kicked the complainant, but it was an accident. After investigations, accused is arraigned before this honorable court. To prove their case, the prosecution called three witnesses and tendered in evidence exhibits ‘A’ and ‘B’, being the investigation caution statement and charge statement of the accused person respectively; and exhibit ‘C’ being a medical form dated 29th March 2024. EVIDENCE OF PROSECUTION WITNESSES The first prosecution witness (PW1) who is also the complainant herein gave her name as Doris Awudi. She testified that she is a housekeeping staff at the Mariott Hotel, Airport and lives at Lapaz, Accra. She continued that on 29th March, 2024 at about 9:15pm, she was walking from Shangri-La bus stop through the Association International School traffic lights to work. Few metres to the traffic lights, she saw the accused person running towards to her. That she thought the accused person was jogging so she did not pay attention to him. According to PW1, the accused person suddenly crossed her and demanded she hands over her Tecno Spark 8 mobile phone to him. That she refused and the accused person held her dress in the process and pushed her while she still struggled with him. That she began to shout for help and the accused person then kicked her by his foot and her mobile The Republic v. Kofi Frimpong Page 3 of 14 phone fell on the floor. That she fell as a result of his kicks, face down, hitting her knee and her jaw on the pavement floor and became unconscious. PW1 concluded that witness Alhassan Shansudeen, a motor rider and another male adult selling fan ice heard her call for help and chased the accused person and he was arrested. PW2 gave his name as Alhassan Shamsudeen. That he is a civil servant and lives at Tema. He told the court that on 29th March, 2024 at about 9:20pm, he was returning from work and on reaching a section of the road at the Association International School traffic lights, the traffic lights showed red, so he stopped. He continued that while waiting for the traffic lights to show green for him to move, he saw the accused person running and Doris Awudi also shouting for help. That he chased the accused person together with others. That the accused person attempted to jump a fence wall into a house, and he was arrested with Doris Awudi’s mobile phone. PW3, the investigator herein who is Detective Chief Inspector Patrick Sarkodie, stationed at the Airport Station/CID also told the court in his evidence that he knows the accused person. That on 29th March, 2023 witness Doris Awudi assisted by Alhassan Shamsudeen arrested the accused person to the Airport police station and the witness complained of bodily pains and further reported that same day at about 9:10pm, at the Airport Traffic Lights, the accused person attacked, pushed her down and robbed her of her Tecno Spark 8 mobile phone valued at GH¢900.00 in the presence of witnesses. According to PW3, a medical form was duly prepared and handed over to the Doris Awudi to seek medical treatment. He tendered a copy of the endorsed medical form in evidence. He continued that on 29th March, 2024, investigation caution statement was obtained from the accused person, and he tendered same in evidence. PW3 further The Republic v. Kofi Frimpong Page 4 of 14 testified that on 1st April 2024, he visited the scene of crime near Association International School traffic lights. That investigation was further extended to an adjacent house where witness Prince Amos Donkoh, a security guard in the said house was met. That the said witness told police that he was a security guard in the house at the time of the incident when he heard Doris Awudi shouting thief and calling for assistance. That he came out and observed that one Alhaji who sleeps outside the house with other guys had arrested the accused person. According to PW3, the complainant sustained some injuries on her right knee and jaw. That the accused person was arrested when he ran to jump over a fence wall and the stolen phone was retrieved with its screen broken. That on 2nd April 2024, the accused person was charged with the offence of robbery; he tendered the charge statement in evidence. Thereafter, the prosecution closed its case. After the close of the case of the prosecution, the Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then ruled that a prima facie case had been made and the duty of the accused person was to raise a reasonable doubt in the case of the prosecution. In view of that the accused person was called upon to enter into his defence, after the options available to him as an accused person were explained to him. EVIDENCE OF THE ACCUSED PERSON In opening his defence, the accused person testified in open Court that his name is Kofi Frimpong. That he lives at Accra Arts Centre and is a labourer in a construction work at Accra Race Junction. He continued that he does not know the complainant and the other The Republic v. Kofi Frimpong Page 5 of 14 witnesses. He further testified that on the day of the incident he was doing training, jogging from Spanner Junction to Accra. That in the course of jogging he realized that somebody had crossed him and the person was a female. That when it happened that way, his leg touched her and she fell. So he held her hand to get up and she stood up on her feet. According to the accused person, her phone fell on the ground and he took the phone and gave it to her to take it. Then she started shouting thief, thief. So he left the phone on the ground, and told her he was not a thief but he was doing jogging. That people around started coming after him with sticks so he decided to run for my life. So they arrested him and sent him to the Airport Police Station. At the police station they took his statement and he told them that he is not a thief, and it was the lady’s phone he was taking for her that brought all these. The accused person did not call witness and thereafter closed his defence. LEGAL ISSUE The legal issue to be determined is whether or not the accused person herein did rob the complainant of her Tecno Spark 8 phone valued GH¢900.00. BURDEN AND STANDARD OF PROOF The cardinal rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2), 13(1) and 15. The Republic v. Kofi Frimpong Page 6 of 14 In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held in its holding 1 that: “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence, is proof on a balance of probabilities only. Thus, in the case of Osae v. The Republic [1980] GLR 446, the court held that: “although it was settled law that where the law cast the onus of proof on the accused, the burden on him was lighter than on the prosecutor, and the standard of proof required was the balance of probability, if at any time of the trial, the accused voluntarily assumed the onus of proving his defence or some facts as happened in this case, the standard he had to discharge was on a balance of probabilities.” Significantly, whereas the prosecution carries that burden to prove the guilt of the accused person beyond reasonable doubt as per sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323), there is no such burden on the accused person to prove his The Republic v. Kofi Frimpong Page 7 of 14 innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful. ANALYSIS The accused person is charged with the offence of robbery contrary to section 149 of Act 29. Section 149 of Act 29 as amended by 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 and 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”. Section 150 of Act 29 further defines robbery in the following terms; “A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat or criminal assault or harm to any person, with intent thereby to prevent or overcome the resistance of that or of other person to the stealing of the thing.” In the case of Behome v. The Republic [1979] GLR 112, the court held that The Republic v. Kofi Frimpong Page 8 of 14 “one is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing.” The essential ingredients of the offence that the prosecution must establish to secure conviction as stated by the Supreme Court in the case of Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 at 312, per Dotse JSC are as follows; i. That the accused person stole something from the victim of the robbery of which he is not the owner. ii. That in stealing the thing, the accused person used force, harm or threat of any criminal assault on the victim. iii. That the intention of doing so was to prevent or overcome the resistance of the victim. iv. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in the restrictive sense. v. The thing stolen must be in the presence of the person threatened. From the evidence of the complainant, whilst on her way to work at about 9:15pm on 29th March 2024, she saw the accused person running towards her but she did not pay attention to him because she thought he was jogging. That the accused person suddenly crossed her and demanded she hands over her Tecno Spark 8 mobile phone to him but she refused and the accused person held her dress in the process and pushed her while she struggled with him. She told the court that the accused person then kicked her by his foot and her mobile phone fell on the floor. That she fell as a result of his kicks, hitting her knee and her jaw on the pavement floor and became unconscious. The Republic v. Kofi Frimpong Page 9 of 14 From the evidence before this court, PW1 who is also the complainant maintained under cross examination that the accused person asked her to give him her phone and denied that she crossed the accused person and fell down and that the accused helped her to get up. The complainant also denied the accused person’s story that when she fell down he held her hand and asked her to take her phone. The evidence led in support of the charge indicates that the accused person used force to overcome the complainant’s resistance to steal her phone whilst the accused has denied same and also led evidence to suggest that the incident was an accident, therefore it boils down to the oath of the prosecution witnesses against the oath of the accused person. In the case of Lutterodt v. Commissioner of Police (1963) 2 GLR 427 the Supreme Court in holding 3 stated as follows: "where a decision of a trial court turns upon the oath of prosecution witness against that of a defence witness, it is, incumbent on the trial court to examine the evidence of the said witnesses carefully along with other. If the court prefers the evidence of the prosecution then it must give reasons for the preference, but if it is unable to give any reasons for the preference then that means that there is a reasonable doubt as to which of the versions of the story is true, in which case, the benefit of the doubt must be given to the defence." The accused person in his investigation caution and charge statements, stated inter alia that at about 9:30 pm he was jogging from Spanner Junction to Accra; and on reaching a section of the road, the complainant was ahead of him so as he got closer, she was afraid and crossed her and he crushed her and she fell. That she started shouting thief and some people were coming after him. That he was afraid and decided to run as her phone dropped. That the people chased him and arrested him to the station. That he did not rob her phone and he can replace her phone for her. The Republic v. Kofi Frimpong Page 10 of 14 The accused person in his defence told the court he was taking the complainant’s phone for her after their paths crossed and his leg touched the complainant which made her fall and so her phone fell on the ground and he took the phone and gave it to the complainant. From the evidence of the accused person what happened between him and the complainant was an accident. PW3 in his evidence told the court that his investigation revealed that the accused person was trying to run away where he ran to jump a fence wall but he was arrested by one Alhaji with other guys and the stolen phone was retrieved with its screen broken. The accused person did not cross examine the investigator to attempt to discredit his evidence which includes the above piece of evidence. Exhibit ‘C’ indicates that on 29th March 2024 at around 10:50pm the complainant reported complaints of severe headache and jaw pains after she was alleged to have been assaulted by someone she says is a thief after he tried snatching her bag. That on examination she looked unwell and in some moderate pain. She was given some medication and was to do a head CT scan as well as right knee x-ray for review. From the above evidence in exhibit ‘C’, it suggests that the complainant was indeed assaulted and was seen by a medical officer therefore the accused person’s story that he just bumped into the complainant on accident is an afterthought and untenable because a mere collision into the complainant will not result in the knee and jaw pain complained about by the complainant that made her go to the hospital. From the evidence on record the accused person threw the phone down when he was chased and arrested and this damaged the screen of the phone. Therefore, the question any reasonable person will ask is, why will the accused person run away to the extent of jumping a fence wall where he was arrested if the complainant rather crossed him The Republic v. Kofi Frimpong Page 11 of 14 accidentally and she fell, during that night where he claimed he was jogging from Spanner Junction to Accra? The defence of the accused person is not reasonably probable. I rather believe the evidence of PW1 who is the victim of the accused person’s assault, to steal her phone. The evidence adduced by the prosecution witnesses are sufficient corroboration which confirmed that the accused person actually assaulted the complainant and took her phone from her but was chased and arrested where he threw the phone away and the complainant took it and realized that the screen of the phone was damaged. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was 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. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). However, the defence of the accused person could not raise a reasonable doubt as to his guilt. CONCLUSION On the totality of the evidence on record, I find and hold that the prosecution proved their case beyond reasonable doubt that the accused person with the use of force, to overcome the resistance of PW1 did dishonestly appropriate her mobile phone and threw it down when he was chased and arrested. For the foregoing reasons, I pronounce the accused person herein guilty of the charge against him and accordingly convict him of same. Pre-Sentencing hearing The Republic v. Kofi Frimpong Page 12 of 14 Court: Any plea in mitigation before sentence is passed? Accused: I plead with the Court to be lenient with me. I have children in the house I am taking care of. The mother of the children is deceased so I want the court to give me time to take care of the children. Court : Is the accused person known? Prosecutor: We are not able to bring proof of his previous conviction. The claim that he has children that he is taking care of cannot be true because during cross examination he admitted that he was released from police custody on remand few days before this particular incidence. SENTENCING In sentencing the accused person, the court takes into consideration his plea in mitigation and the fact that he is a first time offender as well as the youthful age of the accused person. In accordance with Article 14(6) of the 1992 Constitution, the time spent by the accused person in custody is considered. The court also takes into consideration the fact that no physical harm was caused to the complainant and the accused person did not use any offensive weapon, save the physical pains the accused person subjected the complainant to. The court has however considered that the complainant is to do head CT Scan and right knee x-ray as a result of the accused person’s attack on her. The court has again considered although the complainant’s phone was retrieved, same was damaged because the accused person threw it on the floor. I consequently sentence the accused person to serve a term of imprisonment of eleven (11) years in hard labour (I.H.L.) The Republic v. Kofi Frimpong Page 13 of 14 Restitution Order On record, upon an application by the prosecutor, the court on 9th April, 2024 ordered for the release of the retrieved mobile phone to the complainant herein. However, the accused person shall pay the cost of the repair of the damaged screen of the phone upon production of receipt of payment of the cost of the repair by the complainant to the accused person. The accused person shall also pay the amount of GH¢300.00 to the complainant being the fee she was charged for the medical report. The accused person is also ordered to pay any further cost of medication which is in relation to the assault he committed on the complainant upon production of receipt of same by the complainant to the accused person. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Kofi Frimpong Page 14 of 14