REPUBLIC VRS. BEDIAKO (D6/203/2023) [2024] GHACC 170 (27 May 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON MONDAY, 27TH MAY, 2024 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D6/203/2023 THE REPUBLIC VRS EMMANUEL GYINA BEDIAKO ACCUSED PERSON PRESENT ASP SETH FRIMPONG WITH ABIGAIL MENSAH, ESQ. FOR THE REPUBLIC PRESENT DERRICK ADU GYAMFI, ESQ. FOR THE ACCUSED PERSON ABSENT JUDGEMENT The Accused person was first arraigned before this Court on the 22nd March, 2023 charged with the following offences: i. Stealing contrary to section 124(1) of Criminal Offences Act, 1960 (Act 29), and ii. Issue of False Cheque contrary to section 313(A)(b) of Act 29. 1 The Accused person pleaded Not Guilty to the charges when same were read and explained to him. FACTS OF THE CASE The complainant is a businessman and domicile in Canada. The Accused person is a businessman residing at Spintex Road, Accra. Between the year 2020 and 2022, the complainant purchased eleven assorted cars valued at USD 36,055 and shipped same to Ghana for the Accused person to sell for him. the complainant paid additional USD 14,200 for the duty and minor repairs on all the vehicles which the Accused person acknowledged having received same. The Accused person sold all the eleven cars to the tune of GH¢596,000.00 but failed to account for GH¢396,000 and issued Ecobank cheque number 000009 to be drawn on account number 1441002125948 with the face value of GH¢200,000.00 to Daniel Nimako Boateng, the complainant’s representative as a refund of part of the complainant’s money to be drawn at Spintex Road branch on the 7th June, 2022 but the cheque was dishonoured upon presentation. The Accused person cut communication with the complainant and the latter lodged a complaint with the police. PW2 (Detective Sergeant Ebenezer Mensah) investigated the case. PW2 relied on his Witness Statement. Thereafter, the prosecution closed its case. After the close of the case of the prosecution, the Court determined that a prima facie case had been made out against the Accused person. Accordingly, the Court invited him to enter into his defence. THE CASE OF THE DEFENCE In opening his defence, the Accused person testified himself and called one witness who testified by a subpoena (a psychiatrist) to tender the medical report. In his 2 Evidence-In-Chief, the Accused person relied on his Witness Statement, and told the court that at the time he issued the cheque, he was not of sound mind. According to the Accused person, he was going through severe mental challenge. That the complainant pressured him to issue the cheque without his will, and so he had no option than to issue the cheque. DW1 (Dr. Joel Agorinya) testified as a psychiatrist of the Accra Psychiatric Hospital. DW1 tendered in evidence the medical report on the Accused person authored by Dr. J.C.A. Klenam Ahlijah. i. Whether or not the Accused person dishonestly appropriated cash the sum of GH¢396,000.00. ii. Whether or not the Accused person issued the cheque to the complainant at the time that he had no sufficient funds in his account. iii. Whether or not the Accused person was mentally challenged at the time he issued the cheque. BURDEN OF PROOF The common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2)(c) of the 1992 Constitution which provides that a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in sections 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the prosecution carries that burden to prove the 3 guilt of the Accused beyond reasonable doubt, there is no such burden on her to prove her innocence. At best she can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. In Republic vrs Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. THE LAW AND EVALUATION OF THE EVIDENCE Whether or not the Accused person dishonestly appropriated cash, the sum of GH¢396,000.00 Stealing is defined at Section 125 of Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner”. The definition of stealing therefore requires the prosecution to prove the essential elements of the offence. In the case of The State vs. W. M. Q. Halm and Aryeh Kumi Crim. App Nos. 118/67 and 113/67, 7 August, 1969; (1969) CC155, the Court per Akufo Addo, C.J., Ollennu, Apaloo, Amissah JJ.A and Archer J stated the three essential ingredients which prove a charge of Stealing under our criminal law as: “(i) That the person charged must not be the owner of the thing allegedly 4 stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” See also Lucien vrs The Republic [1977] 1 GLR 351-359 at holding 2. The evidence of PW1 did not touch on the issue of stealing the sum of GH¢396,000.00 by the Accused person. On the part of PW2, the only point he mentioned stealing can be seen at paragraph 11 of his Witness Statement. It reads: “……………… Accused also did not dispute dishonest appropriation of GH¢302,000.00 being proceeds from vehicles shipped to the accused by complainant, Philip Ayensu Asante.” Issue of False Cheque Section 313A (1)(b) of Act 29 provides: A person who issues a cheque in respect of an account with a bank when that person does not have a reasonable ground, the proof of which lies on that person, to believe that there are funds or adequate funds in the account to pay the amount specified on the cheque within the normal course of banking business commits a criminal offence and is liable to a fine not exceeding two hundred and fifty penalty units or to a term of imprisonment; not exceeding twelve months or to both the fine and the imprisonment, and in the case of a subsequent criminal offence to a fine not exceeding one thousand penalty units or to a term of imprisonment not exceeding five years.” The Accused person has not denied the fact that he issued the cheque to PW1. He has also not denied the fact that he did not have sufficient funds in that particular account. Per Exhibit ‘J23’, as at the time the cheque was issued, the balance standing in the account of the Accused person was GH¢30.00. On the face of the cheque, the amount 5 stated is GH¢200,000.00. So, it is clear that the Accused person issued the cheque without sufficient funds in the account. The only defence of the Accused person is one of insanity. Whether or not the Accused person was mentally unsound at the time he issued the cheque The burden of proof in any case or litigation helps us to determine the eventual outcome of a case because it helps us to determine who should lose if no evidence is produced. If you plead insanity, then you must prove your insanity. The presumption is always that each person is sane until proven otherwise. The law will make an allowance that you may one day not be sane. Section 15(c) of the Evidence Act, 1975 (NRCD 323) provides: Unless it is shifted, the party claiming that a person including that party is or was insane or of unsound mind has the burden of persuasion on that issue. Therefore, an accused person who relies on insanity as a defense is required by rules of evidence to assume a legal burden on issue of insanity as well as the evidential burden. You must show that at the time of committing the alleged offence, the person was insane. If the accused fails to provide sufficient evidence, then it can be said that the evidential burden has not been discharged and therefore fails on that submission. As Denning said in the case of Bratty vrs AG of Northern Ireland [1963] AC 386: “Whilst the ultimate burden rests on the Crown of proving every element essential to the crime, nevertheless, in order to prove that the act was voluntary act, the Crown is entitled to rely on the presumption that every man has a sufficient mental capacity to be responsible for his crimes. 6 And that if the defence wish to displace the presumption, they must give some evidence from which contrary decision reasonably may be inferred. That a drunken man is presumed to have the capacity to form the specific intent necessary to constitute a crime unless evidence is given from which it can reasonably be inferred that he is incapable of forming the intention.” The mere fact that the accused fails on the question/issue of insanity does not make the accused guilty automatically because he carries persuasive burden only on the issue of insanity. From the Medical Report, i.e., Exhibit ‘1’, the Accused person was first seen at the Accra Psychiatric Hospital on the 18th June, 2018 and managed for Bipolar Affective Disorder, and his last review was on the 1st March, 2022. Per Exhibit ‘1’, the Accused person was not seen again until he presented himself on the 20th April, 2023 requesting the hospital to furnish his lawyer with his medical report. At page 2 of Exhibit ‘1’, this is what the psychiatrist stated: “Even though there is a court case against him, we are unable to comment on it as we did not have the opportunity to evaluate him at the time of the alleged offence. However, the description of events provided by client and his wife are consistent with risky behaviours associated with manic episodes of Bipolar Affective Disorder.” Under cross examination of DW1 by the prosecution on the 3rd April, 2024, the psychiatrist told the court that he was unable to tell the court the mental state of the Accused person on the 7th June, 2022. The following is part of what transpired: Q. Can you tell the court the mental state of the accused person on the 7th June, 2022? 7 A. Since his last review was on the 1st March, 2022, we cannot comment on his mental state on the 7th June, 2022. Q. I put it to you that the accused person never experienced any mental challenge on the 7th June, 2022 because there is no evidence before the court on that? A. I can neither confirm nor deny that. Q. I put it to you that on the 7th June, 2022, the accused person executed all his obligations including signing and endorsing cheque without committing a single error. A. Since we hadn’t seen him after 1st March, 2022, I am not able to tell the events after whether they were directly related to his mental illness or not. It is obvious that there is no evidence whatsoever to establish that on the 7th June, 2022 when the Accused person issued the cheque, he was mentally unsound. The defence of the Accused person is an afterthought. The Accused person has not been able to discharge the persuasive burden placed on him to establish that on the 7th June, 2022 when he issued the cheque, he was mentally challenged. In conclusion, I acquit and discharge the Accused person on the charge of Stealing. However, the Court finds the Accused person guilty of the offence of Issue of False Cheque, and he is accordingly convicted. BY COURT: In sentencing the Accused person, I take into consideration of the plea of mitigation made by his counsel. The Accused is a first-time offender and a young man. However, looking at the nature of the case and the fact that the Accused person has not shown remorse when he was given the opportunity to make a plea for mitigation, the court will pass a fairly deterrent sentence on him. In the Circumstances, the Accused person is sentenced to serve a prison term of Twenty-One (21) days In Hard Labour, and in 8 addition, he will pay a fine of Two Hundred (200) Penalty Units and in default serve a prison term of Six (6) months. I cannot end this judgement without commenting on the failure of defence counsel, Derrick Adu Gyamfi to file a written address. At the end of the trial, the defence counsel intimated to the court that he was going to file a written address. As a result of that, the court ordered the defence counsel to file his written address to reach this court not later than 20th May, 2024 for Judgement today, 27th May, 2024. As at the time of delivering this judgement, no process from the defence counsel was seen on the docket as filed. That notwithstanding, the court proceeded to deliver the judgement. ISAAC ADDO CIRCUIT COURT JUDGE 27TH MAY, 2024 9