REPUBLIC VRS. ZIGLE AND ANOTHER (GR/KB/CCT/B7/19/2024) [2024] GHACC 371 (3 June 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON MONDAY THE 3RD DAY OF JUNE 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE GR/KB/CCT/B7/19/2024 THE REPUBLIC VRS 1. ROBERT ZIGLE 2. KWAME ADZAMLE @ RK ACCUSEP PERSONS (A1 & A2) PRESENT CHIEF INSPECTOR MABEL ATSU FOR PROSECUTION PRESENT ACCUSED PERSONS REPRESENT THEMSELVES CHARGES The accused persons (A1 and A2) have been charged with conspiracy to commit crime to wit robbery, contrary to sections 23 and 149 of the Criminal and Other Offences Act of 1960 (Act 29) and two counts of robbery, contrary to section 149 of Act 29. They pleaded not guilty to the charges. FACTS The facts before this Court are that complainant Priscilla Addo, 30 years, is a trader at Kwabenya but resides at Franco Estate whilst Selina Acquah, 18 years, is a trader and resides at Amasaman. First accused person, Robert Zigle, 31 years and second accused, Kwame Adzamli, 24 years, are both commercial motor riders residing at Pokuase Domeabra and Pokuase Bodumase respectively. On 3rd October, 2023, at about 8 p.m, the first accused, on a motorbike being ridden by the second accused, attacked complainant Selina Acquah at Amasaman White House with a knife and robbed her of her Iphone 6S. The two accused persons later went to Franco Estate area around 10:00p.m. They met complainant Priscilla Addo who had closed from work and was on her way home. A1 jumped off the motorbike and attacked her. He pulled her ladies bag containing an amount of GH¢1,000.00 being her sales for the day and handed it over to the second accused who was on the motorbike waiting. He again held her neck and ordered her to hand over her IPhone 11 Pro max she was holding. They both fell on the ground and the complainant managed to raise an alarm, which attracted people from the nearby houses who came to her aid. Second accused sensing danger, rode off with the first complainant’s ladies hand bag. The first accused was arrested and a kitchen 1 knife as well as IPhone 6S were found on him. He was handed over to the police at ACP and the complainant was issued with medical form to attend hospital. The first accused during interrogation mentioned the second accused as his accomplice and led the police to his house at Pokuase but he was not seen. In the course of investigation, police saw a text message on the IPhone 6S retrieved from the first accused. Police contacted the sender of the message on complainant Selina Acquah’s phone who happened to be a boyfriend. She later came to the station and identified the phone as hers and pointed out the first accused as the one who robbed her. On 26th December, 2023, second accused was arrested at his hideout at Pokuase and handed over to the police. He admitted the offence in his cautioned statement and mentioned first accused as his accomplice. They were both charged with the offences and put before this Honourable Court. BURDEN OF PROOF A1 and A2 were brought before this Court where they both pleaded not guilty to the charges against them. Thus, the burden of proving their guilt beyond reasonable doubt was on the prosecution, in accordance with Section 13 (1) of the Evidence Act, 1975, (NRCD 323). It was held in ASARE V. THE REPUBLIC (1978) GLR 193 – 199 that “as a general rule, there was no burden on the accused to establish his innocence. Rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt.” Prosecution would have to discharge this burden by leading evidence satisfactorily to prove that the accused persons committed the offences they have been charged with as held in DEXTER JOHNSON V. THE REPUBLIC [2011]33 GMJ 68 S.C. EVIDENCE OF PROSECUTION Prosecution called two witnesses. PW1 was the complainant, Priscilla Addo. Essentially, she told the Court that on the day of the incident, at about 10:20 p.m. she closed from work and was coming home. On reaching a section of the road at Cheny Field Area, she saw two youngmen on a motorbike coming towards her and she stopped for them to pass. Suddenly, the pillion rider, A1, jumped from the said motorbike and came to her. A1 then forcibly ordered her to handover her lady’s handbag which contained an amount of GH¢1,000.00 which was her sales for that day. He then threw it to A2 and held her neck and struggled with her to take away her Iphone 11 promax which she was holding in her hand and they both fell on the ground. She tendered the following documents in evidence; i. Photographs showing the harm A1 caused to her as Exhibit ‘A’ series ii. Photograph of the damaged phone as Exhibit ‘B’ 2 PW2 was Detective Chief Inspector Dinah Quainoo stationed at Kwabenya A.C.P, the investigator in the case. She tendered the following additional documents in evidence; i. Photograph of the knife and the phone retrieved from A1 as Exhibit ‘C’ ii. Police Medical Report Form issued to complainant to attend hospital as Exhibit ‘D’ iii. Statement of complainant Priscilla Addo to the police dated 4th October, 2023 as Exhibit ‘E’ iv. Photograph of the scene of crime in respect of complainant Priscilla Addo as Exhibit ‘F’ v. Statement of witness Aaron Donkor Agyapong dated 4th October, 2023 as Exhibit ‘G’ vi. Investigation cautioned statement of A1 dated 4th October, 2023 as Exhibit ‘H’ vii. Statement of Selina Acquah dated 5th October, 2023 as Exhibit ‘J’ viii. Photograph of the scene of crime in respect of Selina Acquah at Amasaman as Exhibit ‘K’ ix. Statement of witness Anim Teye Phalandah Gaspa dated 5th October, 2023 as Exhibit ‘L’ x. Statement of witness Benjamin Agyapong Donkor dated 5th October, 2023 as Exhibit ‘M’ xi. Charged Cautioned Statement of A1 dated 5th October, 2023 as Exhibit ‘N’ xii. Investigation cautioned statement of A2 dated 26th December, 2023 as Exhibit ‘Q’ xiii. Charged cautioned statement of A1 dated 27th December, 2023 as Exhibit ‘S’ xiv. Charged cautioned statement of A2 dated 27th December, 2023 as Exhibit ‘T’ At the end of the case for prosecution, the Court found that a prima facie case had been established against the accused persons and asked them to open their defence. EVIDENCE OF ACCUSED PERSONS A1’s evidence is that on the day of the incident, he was with A2 at the station and he used A2’s motorbike to pick up his customers. The lady he picked paid him GH¢15.00 and he gave it to A2, who him GH¢5.00 out of it. After he gave him the GH¢5.00, he asked him to escort him to barrier. He did not tell him the reason why they were going to barrier. On their way to barrier, A2 gave him the iPhone 6s. Also, they passed through John Teye before getting to Franco Estates. It was at Franco Estates that they saw the complainant, who was ahead of them and her back to them. A2 was the one riding the motor bike and used it to press the complainant against the wall on the path. He then got off the motor bike and A2 turned the motorbike to face the complainant and A2 called him to sit on the motor bike so 3 that they could leave. Whilst standing, the complainant started shouting ‘thief’, ‘thief’. He did not know what A2 had collected from complainant. A2’s evidence is that A1 came to him that he should take him to his girlfriend at ACP. He charged GH¢20.00 and A1 directed him to a school, which name he does not know. After they passed by the school, A1 asked him to pass by a fence wall and he did. Whilst they were going, they met the complainant, Priscilla Addo. A1 told him that the complainant was his girlfriend and so he should stop. By then, Priscilla was ahead of them and he went to face Priscilla. A1 got off the motor bike to meet Priscilla and so he gave them some distance. All he heard was give it to me, I will not give it to you. Then he saw Priscilla lying on the floor with A1 on top of her. He told A1 to stop what he was doing but he refused and that if he had planned with A1 to rob the complainant, he would have parked the motor bike and assisted A1 to rob her. When he asked A1 to stop and he refused, he left him behind. It was at the police station that he heard that A1 was in possession of a knife and a mobile phone and that he did not receive any bag from A1. ANALYSIS COUNT 1 – CONSPIRACY TO COMMIT ROBBERY 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. P.K Twumasi in his book “Criminal Law in Ghana”, Ghana Publishing Corporation, 1985 at page 111 to page 112 states that “… the legal position is that a conspiracy may be proved in one of two ways. The first mode of proof is by direct evidence which admittedly is very rare to obtain. Such evidence may be offered by a person who may have concurred in the conspiracy for the sole aim of detecting and punishing the actual conspirators or by the confession statements of some of the conspirators themselves, or by any eyewitness account. The second and the most regular mode of proof is by establishing evidence of overt acts. The overt acts are done to carry out the criminal objective.” The evidence before the Court is that there were two young men on a motorbike coming towards complainant and she stopped for them to pass. However, the pillion rider, A1, jumped from the said motorbike and forcibly ordered her to handover her ladies handbag, 4 which contained an amount of GH¢1,000.00, being her sales for that day. He then threw it to A2 and held her neck and struggled with her to take away her Iphone 11 promax which she was holding in her hand and they both fell on the ground. I have noted various inconsistencies in the accounts of the accused persons, which include the following; i. Per Exhibit ‘H’ and A1’s evidence, it was A1’s friend, A2, who came with his motor bike and asked that he escorted him to Pokuase town and gave him a phone in a green cover to hold for him. However, A2 states that it was at the police station that he heard that A1 was in possession of a knife and iPhone 6S. Meanwhile, in Exhibit ‘Q’, it is A1, A2’s friend, who came to A2 to carry him to ACP Estates to see a friend. ii. A1 stated in his defence that it was A2 who used the motor to press the complainant against the wall on the path and that he did not know what A2 had collected from the complainant. Meanwhile, A1 stated in Exhibit ‘H’ that “It was my friend who collected the bag and sped off.” It is thus interesting that under cross-examination, A1 informed the court that A2 is not his friend and that he only got to know him at the police station. iii. It is also interesting to note that the complainant did not identify A1 as his boyfriend when A1 and A2 got to her. Further, when the complainant and A1 ended up struggling on the floor, A2 did not see the need to separate them but rather sped off. This is what ensued during the cross-examination of A2; “Q: It is your evidence that you saw A1 struggling with the 2nd victim. Is that not so? A: Yes my Lord Q: It is your case also that you distanced yourself from them because A1 alleged that the 2nd victim was his girlfriend. Not so? A: Yes my Lord Q: You agree with me that if the victim was a friend to A1, A1 would not have treated her that way. Not so? A: That is so my Lord Q: At the scene, you overheard the 2nd victim saying ‘thief’ ‘thief’. Not so? A: Yes my Lord Q: Her calling for assistance drew people to the scene. Not so? A: Yes my Lord Q: I am putting it to you that when the neighbours started coming, you sensed danger and sped off 5 A: That is so my Lord.” I find from the evidence that A1 and A2 acted together and the sole purpose for the agreement to act together was for a criminal enterprise, being robbery. A1 and A2 were at the scene of the incident as identified. The various inconsistencies in their statements and defence are to the effect that they are not truthful to the court. They thus, could not raise a reasonable doubt in prosecution’s case. COUNTS 2 & 3- ROBBERY Accused persons have been charged with two counts of robbery. Section 149 (1) of Act 29 provides that “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 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 years.” Section 150 of Act 29 defines robbery and provides that “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 person or of another person to the stealing of the thing.” It was held in FRIMPONG ALIAS IBOMAN VS THE REPUBLIC [2012] 1 SCGLR 297, that in order to prove the offence of robbery, the prosecution must establish: (i) that the accused person had stolen something from the victim of the robbery; (ii) in stealing the thing, the accused had used force, harm or threat of any criminal assault on the victim; (iii) the intention of doing so was to prevent or overcome any resistance; (iv) the fear of violence must be either of a personal violence to the person robbed or to any member of his household or family in a restrictive sense; and (v) the theft must have been in the presence of the person threatened. Evidence led in the court established that PW1’s money was taken from her without her consent. In a further attempt to take PW1’s phone, A1 attacked her by holding her neck and struggled with her, whilst A2 looked on until people started coming to the scene. That was when A2 asked A1 to leave PW1 and when he was not yielding, he sped off. A1 stole PW1’s handbag containing money with the connivance of A2. In stealing the handbag and to further steal PW1’s phone, A1 used force and harmed the victim, per Exhibits ‘A’ series. The intention of doing so was to prevent or overcome any resistance from PW1, thus the holding of her neck and the struggle. This evidence substantiates robbery, as defined supra. It is worthy to note that robbery was established only in respect of Count Two since prosecution did not lead evidence in respect of Count Three. 6 I find that prosecution has succeeded in proving the charge of robbery against A1, having considered the totality of the evidence and defence. On the part of A2, he connived with A1 in that regard and actually facilitated the robbery. SENTENCE A1 and A2 are convicted on Count One and A1 is convicted on Count Two. In sentencing the accused persons, I have taken into consideration the nature of the offences committed and the way they were committed. I have taken into consideration their plea for mitigation and the fact that they are first time offenders. I have also considered the time that the accused persons have spent in lawful custody pending the determination of this case. A1 and A2 are sentenced to serve a prison term of ten (10) years in hard labour for Count One. A1 is further sentenced to a term of imprisonment of 10 years for Count Two, both counts to run concurrently. Her Honour Mawusi Bedjrah Circuit Judge 7