REPUBLIC VRS SHERIF (B7/19/2024) [2024] GHACC 269 (10 April 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 10TH DAY OF APRIL 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B7/19/2024 THE REPUBLIC VRS ISSAH SHERIF JUDGMENT The accused person is charged with one count of stealing contrary to sections 124 [1] of the Criminal and Other Offences Act, 1960 [Act 29]. He pleaded not guilty when the charge was read out and explained to him. However, in the course of the proceedings accused kept admitting to having committed the offence but trial proceeded to the end. The facts of the case are that the complainant is a trader and a national of Niger whilst accused is a vulcanizer. That complaint left his wears in his room stocked to the veranda with sandals and left to Jirapa and upon his return he noticed a portion of the burglar proof to the veranda was cut and an ingress made into the veranda and a sack full of rubber sandals containing 16 pairs valued at GHC1,600 we taken a way. Complainant said he made enquiries and it turned out that accused was the suspect of the break in on the 04 - 04 – 24. That on the 09 - 04 – 24 complainant spotted accused at noon at the Wa Kajetia market area and upon seeing complainant accused tried escaping but complainant grabbed him by the hand to prevent him from running away and in the process tore the complainant’s breast pocket and took out a pair of scissors from his back pocket to stab the complainant. 1 Complainant said he was able to knock off the scissors and other traders came to his aid and accused was arrested and given to the police who arrived later. Accused during police interrogation appeared to have admitted the offence because he told police that he could not put the booty stolen to good use because the sack he stole contained sandals of the same pair. At the trial, the prosecution invited Ibrahima Abdul Rahman and Alfred K. Agbeveade of the Divisional CID as its witnesses. PW1’s evidence to the court was that he does see accused person around the market and that when he returned from a market trip he undertook to Jirapa, he noticed his burglar proof to his veranda where some of his wears were packed. According to him, a colleague has a CCTV camera installed and so he asked to have a review of the coverage and so saw the image of the one who cut the burglar proofing to be accused and so he made enquiries as to whereabout but was told he has stopped coming around as he will usually do. Complainant said he kept surveillance and on the 09 – 04 – 24 he saw accused at about noon walk pass into the station and so he rushed to him to enquire as to the whereabouts of his wears. According to PW1 when he got close to him, accused walked away briskly but he pursued and got up with him but when he attempted asking him of the whereabouts of the wears, accused got furious and hit the chest of PW1 and in the ensuing melee accused tore the breast pocket of PW1 a shirt he wore to court that day. That whilst warding off the resistance of accused he quickly removed a pair of scissors he had in his back pocket and attempted using it on PW1 but seeing that he knocked the wrist of accused and the scissors thankfully feel unto the ground. 2 That at that point accused told him to go to the rain gutter behind the market to retrieve his wears because he did not find them useful because they were the same pair of sandals. PW2 told the court he mobilized and got accused arrested and delivered up to the police. The investigator on the case told the court that when he was on duty a case of stealing was reported and he went to the scene of crime and re-arrested accused. PW2 told the court that during the interrogation of accused he admitted offence and added that he could not put the sandals to any use because what he took was of the same pair. Thereafter, the prosecution closed its case and the court immediately returned a ruling that a prima facie case was established against the accused on the charge he was standing trial and ordered him to put up a defense if he was ready and indeed accused mounted the witness box and admitted the offence making the work of prosecution pretty easy. He told the court he came to the market area and a friend asked him to pick the sandals because they we his and so he took the sack full of sandals of the same foot away. Accused added that when he was approached by PW1 when he arrived at the market, he felt attacked and to had to defend himself and in the process his fingers went into the breast pocket of PW2 and got his pocket torn he however denied wielding scissors that he tried using to harm PW2. During the cross examination of accused the following discourse ensued: Q- I put it to you that you broke into the veranda of PW2 and made away with his sack of sandals Ans. The sandals I had were given to me by a friend Q. When you were arrested, did you tell police someone other than you stole the sandals Ans. It was my friend who gave me the sandals 3 Q. You told the investigator that the sandal you took away were of the same foot and you disposed them off because you could not make use of them. Ans. That is true. Generally, speaking, in a criminal matter such as the instant one, the law is that the prosecution carries the onerous legal obligation or duty to prove its case or the charge(s) preferred against the accused person and must proof that beyond reasonable doubt. See section 11 [2] of the Evidence Act 1975 [NRCD 323]. The law is that when the evidential burden is on the prosecution, the law requires the prosecution to show sufficient evidence for a ruling on the existence or non-existence of a fact. If the prosecution desires a pronouncement of the accused person guilty of the offences charged, then they must lead cogent, credible and convincing evidence on the charges. Otherwise there would be no basis for the court to make that pronouncement in favour of the prosecution. This is because, by the provisions in article 19 [2] of the 1992 Constitution of Ghana; “A person charged with a criminal offence shall be presumed innocent until he is proved or he has pleaded guilty”. Consequently, in this case, for the prosecution to sustain conviction of the accused persons on all the charges herein, the prosecution must prove the guilt of the accused persons with the requisite degree of evidence. It must be emphasized that the burden of introducing evidence shifts onto the accused person only if at the end of the case for the prosecution, an explanation from the accused person is called. See the decision of the Supreme Court in COP v Antwi [1961] GLR 408. In this case, it was held that an accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. 4 In the case before me accused is charged with one count stealing contrary to the section 124(1) as amended of the Criminal and other Offences Act 1960 Act 29], In section 125 of Act 29, supra, stealing is; “A person steals who dishonestly appropriates a thing of which he is not the owner”. Therefore in Ampah v The Republic [1977] 2 GLR 171, CA, where the appellant appropriated sums of money belonging to his employers and was accordingly convicted, the Court of Appeal set out the essential elements of the offence as follows; [1] dishonesty [2] appropriation and [3] property belonging to another person. Consequently, to succeed on this charge, the law is that the prosecution must prove that A1 dishonestly appropriated the said sack containing the sandals and that he was not the owner. Quite fortunately for the prosecution, A1 is not claiming ownership of the items which he eventually released back to PW1 the owner. By so doing, accused now assumed the duty to prove how the items came into his custody. The legal burden is no longer on the prosecution but on accused who has the duty to merely raise a doubt in the prosecution’s case. Unfortunately accused could not explain away how he came by the sack containing the sandals. The reasonable conclusion or inference to be drawn is that he unlawfully entered PW1’s veranda and made away with the sack. 5 As read from the facts accused ended up admitting that the sandals were indeed not his but were found with him thus the evidence of PW1 that accused broke into his veranda was reasonably probable and so I find accused guilty and convict him of the offence of stealing. Plea of mitigation by accused I plead with you that my wife died and left me a two-year-old son and I am his only source of livelihood and so u should not sentence me to a long custodial term. Statement by prosecution in aggravation Milord since accused has caused the loss of the sandals he should not be left off the hook. BY COURT Indeed, I have heard the accused person and thought he will have pleaded guilty earlier to save everyone’s time but since he pleaded guilty and went through trial I have heard his comments in mitigation and will not keep him away from his son for long. I therefore convict and sentence him to six months imprisonment. SGD: HIS HONOUR JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, WA 6