THE REPUBLIC VRS AMPATE (B7/12/20) [2024] GHACC 240 (14 March 2024)

IN THE CIRCUIT COURT OF JUDICATURE HELD AT KUMAWU IN THE ASHANTI REGION ON THURSDAY THE 14TH DAY OF MARCH, 2024 BEFORE HIS HONOUR JONATHAN ODARTEY, CIRCUIT COURT JUDGE. COURT CASE NO. B7/12/20 THE REPUBLIC VRS DANIEL AMPATE JUDGMENT INTRODUCTION The accused person herein was charged on two counts before this honourable court: Count One Stealing contrary to section 124(1) of criminal and other offences Act 1960 (Act 29). Count Two Stealing contrary to section 124(1) of criminal and other offences Act 1960 (Act 29). The respective particulars of the offences as set out in the charge sheet are as follows: Count One Daniel Ampate, accountant for that during the month of April, 2018 at Besoro in the Sekyere Kumawu District and within the jurisdiction of this court you did dishonestly appropriates Money the sum of ₵15,000. Belonging to Nana Konadu Yiadom Count Two Page 1 of 14 Daniel Ampate, accountant for that during the month of April, 2018 at Besoro in the Sekyere Kumawu District and within the jurisdiction of this court you did dishonestly appropriates Money the sum of ₵217,659 Belonging to Nana Konadu Yiadom. These two charges were again read and explained to the accused to which the accused pleaded not guilty to both counts. The facts of the case were subsequently read and explained to the accused and granted bail. The facts of the case are as follows: FACTS The complainant Nana Konadu Yiadom is the queen mother of Besoro whilst the accused was an accountant at the Mortuary at Besoro between 1st November, 2016 and 25th September, 2019. During April 2018, the complainant gave the accused an amount of GH₵15,000.00 to be used in paying of the light bill of the mortuary. The accused directed the money to his personal use and bought a taxi out of the stolen money for commercial purpose. Complainant detected that the light bill was not paid. Accused admitted not paying the light bill but could not produce the money. External auditors were brought and in a haste to prevent the complainant from auditing him, wrote a confession letter indicating that apart from the GH₵15,000.00 stolen, he also diverted mortuary funds amounting to GH₵40,000.00 for his personal use and promised to pay back the money in three (3) months’ time using his 4 cars and a 5 bedroom house as guarantee. The accused paid GH₵3,000.00 to one Nana Obeng Darko to be given to the complainant. The accused also sent his 2 taxi vehicles and a private car including documents of 2 vehicles as well as documents of the five bedroom house to the complainant urging her to discontinue the case. An external audit firm audited the mortuary account and stated that an amount of GH₵217,659 could not be accounted for by the accused. Page 2 of 14 THE CASE OF PROSECUTION During the trial of the matter, prosecution called six (6) witnesses and made a case that the accused dishonestly appropriated the sum of ₵15,000 and ₵217,658 respectively which was for the complainant whom the accused worked for her facility as an accountant. Prosecution supported this claim with a confession document which was not objected to by accused when it was admitted in evidence. This documentary proof was an agreement between the accused and the complainant indicating a scheduled payment for the amount which could not be accounted for by the accused, Further to this, an audit report dated 11th February 2020 indicting the accused for his inability to account for an amount of ₵217,658 during his tenure as the accountant of the complaint’s facility was also tendered as exhibit which was adopted by this court. Prosecution gave evidence through PW1 who informed the court on oath that the accused wrote a letter to PW1 that he had spent GH40,000 being the facility’s fund and promised to pay same. The accused again used his five bedroom house, three taxi cabs and a private car as guarantee for the repayment of the 40,000. In support of the evidence by PW1, PW4 bolstered this assertion through his evidence in chief that the father of the accused and a cousin of PW4 came to him that the accused has dishonestly appropriated some funds belonging to complainant’s facility and requested PW4 to accompany them to the complainant to plead on accused’s behalf which PW4, his cousin and the accused’s father did same. Their proposal to the complainant was to use the five bedroom and the vehicles of the accused to set off the money the accused was unable to account for which the complainant refused resulting in the matter before this court. This same testimony was corroborated by PW3 where PW3 gave evidence that this time there was a pastor from the Christ apostolic church who accompanied them to the complainant to plead on behalf of the accused for the unaccounted funds of the facility. PW6 who is the police officer investigating the matter also informed the court through his evidence that he was instructed to institute an Page 3 of 14 action against the accused. When a prima facie case was established against the accused, the accused parents, sub chiefs and some elders and pastors came pleading for settlement which couldn’t materialise. THE CASE OF THE ACCUSED Conversely, accused made a case that he was not in charge of financial administration of the facility as claimed by prosecution and that he cannot be responsible for the unaccounted funds as stated by the auditors engaged by the facility. The accused rather asserted in his defense that the undertakings which the accused executed to pay the GH₵15,000.00 and GH₵40,000.00 and which bear his mark as exhibited by prosecution were discharged under duress. The Law It is pedestrian learning that under Article 19(2) (c) of the 1992 Constitution, every one charged with a criminal offence is presumed innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person will be called upon to give his side of the story. See Gligah & Atiso vrs. The Republic [2010] SCGLR 870. This requirement of the law per Article 19 (2) (c) of the 1992 Constitution as stated supra is to the effect that a person charged with a criminal offence is presumed innocent until he is proved guilty or he pleads guilty. Section 11 (2) of the Evidence Act, 1975 NRCD 323 provides that, for the prosecution to succeed in discharging that burden of proof, it must produce evidence as to facts that are Page 4 of 14 essential to the guilt of the accused person in such a manner that the totality of the evidence would tell a reasonable mind that those facts exist beyond reasonable doubt. Page 5 of 14 The charge of stealing Stealing is defined by section 125 of the Criminal Offences Act, 1960 Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner.” The essential ingredients of the crime of stealing which the prosecution ought to prove beyond reasonable doubt therefore are: The Oxford Advanced Learner’s Dictionary defines appropriation as “the act of taking something which belongs to somebody else, especially without permission”. Section 122 (2) of the Criminal Offences Act 1960, Act 29 explains what constitutes an act of appropriation. Acts which amount to an appropriation (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 a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” The prosecution’s task therefore is to adduce evidence beyond reasonable doubt that the accused herein appropriated the sums of money in question. Further to this, accused raised the issue of admissibility of documentary evidence produced by prosecution in proving its case. It is likewise important that the law on the inadmissibility of evidence in the determination of a matter is explained, Inadmissible Evidence Evidence may be inadmissible under two main circumstances. 1. The evidence is irrelevant 2. The evidence is relevant but is inadmissible by law. 1. Irrelevant Evidence The first step in assessing the issue of admissibility is considering whether the evidence is relevant. Section 51(3) of the NRCD 323 provides that “no evidence is admissible Page 6 of 14 except relevant evidence.” This means that irrelevant evidence is not admissible. This raises the important question: how does the law define relevance? Section 51(1) of NRCD 323 defines relevant evidence as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, which makes the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence”. In other words, the evidence must have the potential to impact the outcome of the case. This statute is applied in Republic v. Accra Circuit Court; Ex Parte Appiah [1982 – 83] 2 GLR 276, where the Court stated in relation to relevance and admissibility that “...in connection with relevance, i.e. does the evidence offered make the existence of the fact to be proved more or less probable? This question will turn on the application of reason to facts in evidence and facts known in the light of human understanding and experience. The evidence does not need to be conclusive on the fact to be proved; it need not even be persuasive. It is enough that the evidence has some effect on the probability of the existence of the fact to be proved. To be relevant the evidence need not be sufficient to support a finding of fact...to be relevant, the evidence need only constitute a part and not the whole of what is needed.” From the above, it is clear that if a piece of evidence affects the probability of the existence or non-existence of a fact in issue, it is relevant. Evidence which does not meet this minimum threshold cannot be admitted in any proceedings. While meeting this threshold is necessary for proving relevance, it is not sufficient. The relevance of a piece of evidence is further affected by its authenticity and whether the facts to which it is being applied to are pleaded or unpleaded. A) Authenticity In determining the relevance of a piece of evidence, the issue of authenticity may be raised. A document which is not authentic cannot be relevant. In the case of Abed Nortey V. African Institute of Journalism & Communication [2014] 77 G.M.J. 1, the Page 7 of 14 Supreme Court stated that “a document or a writing needed as evidence must be relevant to the issue in trial. Such document cannot be relevant unless it is genuine or authentic.” When a doubt is cast about the authenticity of a piece of evidence, the party offering that evidence must prove its authenticity. Section 136 of NRCD 323 provides that “where the relevancy of evidence depends on its authenticity or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.” In the Abed Nortey case (supra), the Supreme Court listed the acceptable or permissive means of authentication to include authentication by testimony of a witness with knowledge; authentication by admission; authentication by non-expert opinion on writing or authentication by comparison by court or witness. A party whose evidence has been challenged on grounds of authenticity may prove the authenticity by testimony of a witness with knowledge supporting what a party is claiming; by admission when a party has acted upon it and treated it as authentic; by comparison by a court or witness, before the evidence may be relevant and admissible. Section 116 of NRCD 323 makes a duplicate of a writing admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or the duplicate, or if in the circumstances, it would be unfair to admit the duplicate in lieu of the original. ANALYSIS Page 8 of 14 To start with, it is important to note that this matter travelled to the High court in Kumasi on appeal after this court had dismissed the application for submission of no case by counsel for the accused. It was established by the appellate court that there is a prima facie case established by prosecution after the close of prosecution’s case even though accused in his submission filed before this court indicated that prosecution is not required to prove its case beyond reasonable doubt after the close of its case and that the standard of proof beyond reasonable doubt is applied only after the accused has closed its case which means that the dismissal of the accused’s appeal did not mean that the prosecution has proven the guilt of the accused beyond reasonable doubt. The court will now look at each count and ascertain whether or not the offences of steeling in the two circumstances could be sustained and established against the accused or otherwise. From the evidence on record with regards to the first count of stealing of GH₵15,000.00 as charged by prosecution, it will not be out of place for the court to avert is attention to the Oxford leaners dictionary’s definition of stealing. This pithily states that stealing means “to take something from a person, shop etc without permission and without intending to return it or pay for”. The law as explained supra further put flesh around the meat of the act of stealing by stating what constitutes stealing in law. The particulars of offense for the first count made it clear to the court that the complainant gave the said GH₵15,000.00 to the accused to be used for the payment of electricity bill for the facility which the accused failed to pay same therefore constituting stealing. The charge of stealing of GH₵15,000.00 by the accused as proffered by prosecution the explanation aforementioned fails to meet the elements for the offence of stealing and will not in any way be able to sustain such charge. In fact, in simple terms, the facts of the case does not support the charge of stealing and this is premised on the occurrence that the complainant gave the said GH₵15,000.00 to the accused for a purpose, accused however Page 9 of 14 botched to use the said monies for the purpose and that cannot constitute the offence of stealing. The court will now direct its attention to the second offence of stealing as prosecution alleges. From the above explanation of the responsibility of the prosecution the onus is on the prosecution to prove the guilty of other wise of the accused. From the evidence on record it is time-honored that the accused was the accountant of the facility during the period for which the audit covered. It is important to note that during the trial PW 6 tendered an agreement between the complainant and the accused which was to the effect that the accused had admitted that he indeed appropriated money which did not belong to him and went further to plead for time to enable him pay the said money by using some belongings of his as guarantee. This piece of evidence is decisive in the determination or otherwise of the charge of stealing brought against the accused by prosecution through the report of the audit. In the submission of the accused, he has raised the issues of admissibility of the evidence which prosecution used in supporting its case before this court. The court therefore has no alternative than to avert its mind to the issue of the law on the admissibility of evidence. Again, per the explanation on the admissibility of evidence with regards to the undertaking which bears the mark of the accused confessing for the commission of the crime and the audit report, the court is mindful of the fact that these documents as tendered by prosecution was used for the determination or otherwise of the offense of stealing as proffered against the accused by prosecution because the laws on the admissibility of evidence was grounded in prosecution’s case as articulated above. After analysing the documents as tendered by prosecution in support of its case and establishing that the said documents are admissible and establishes the guilty action of the accused in this endeavour, the court will now look at what constitute stealing as Page 10 of 14 explained supra. Stealing is defined by section 125 of the Criminal Offences Act, 1960 Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner.” The essential ingredients of the crime of stealing which the prosecution ought to prove beyond reasonable doubt therefore are: The subject matter which is money was the property of one Nana Konadu Yiadom. There is no dispute about the fact that these items were not for the accused. There is no dispute about the fact that the monies, subject matter of the crime belong to the complainant’s facility and per the admit report the accused was not able to account for the identified losses belonging to the facility. The accused being in charge of the said facility as accountant had some responsibilities to discharge for the smooth running of the facility. The Oxford Advanced Learner’s Dictionary defines appropriation as “the act of taking something which belongs to somebody else, especially without permission” Without limiting the analysis to the above explanation of the law on stealing and evidence in general it is imperative that some forms of evidence which could be termed circumstantial are accepted by the courts. There are circumstantial evidence that could indirectly link the accused to the crime. This is premised on the evidence provided by PW1. PW3, PW5 and PW6 before this court. All the accounts these witnesses provided during the trial of this matter before the court were lucid as the degree of evenness was not in doubt. Circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses; thus inferences from the facts proved might prove the guilt of the accused. A presumption from circumstantial evidence should however be drawn against the accused only when the presumption would follow irresistibly from the circumstances provided in evidence; and in order to justify the inference of guilt, the inculpatory facts, meaning facts implying guilt, must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt (see Dexter Johnson vrs The Republic [2011] 2 SCGLR 601; Logan & Laverick Page 11 of 14 vrs The Republic [2007-2008] SCGLR 76). In my view, there is enough circumstantial evidence as adduced at the trial in coming to the conclusion that the Prosecution had proved the guilt of the accused beyond reasonable doubt on the second count of stealing. Conversely, the second offence would suffice taking into consideration the ingredients of stealing as explained above. It is therefore important to note that prosecution has been able to prove beyond reasonable doubt that the accused indeed stole ₵217,659.00. This is amply buoyed by the evidence on record and the witnesses who gave evidence during the trial. The prosecution supported the oral evidence of its witnesses with copious documentary evidence of audited account during the period which the accused was in employment as the accountant of the facility. On the part of the defence that is the accused, all that he needs to do by way of producing evidence is to raise a doubt as to his guilt. Woolmington v Director of Public Prosecution [1935] AC 462 is the locus classicus on this principle where the Appeal Court of England per Sankey LC expressed the view that “….while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.” From studying the record and from the analysis I have made so far I do not hesitate in stating that the prosecution adduced sufficient evidence in proof of the second charges against the accused. Once the guilt of an accused person has been established in a criminal trial, using the accepted standard and/or burden of proof, the issue of punishment must be considered using different criteria. That is because, in imposing sentence on a convicted person, the courts normally take into consideration factors such as whether the sentence is of a Page 12 of 14 deterrent, reformative or retributive nature. Sometimes the criminal and previous antecedents of the accused are taken into consideration. (see Gligah & Atiso vrs. The Republic [2010] SCGLR 870. The law is that in determining the appropriate sentence to impose, the Court must take into consideration the seriousness of the offence, how the citizens consider that type of offence, the manner in which the crime was committed and whether the crime is on the ascendency in the area. The court is also bound to consider the mitigating and aggregating circumstances of the offence. In the case of Kamil vrs The Republic [2011] 1 SCGLR 300, the Supreme Court provided guidelines for both trial and appellate courts on matters that should be taken into consideration before an appropriate sentence could be imposed. From the evidence on record, some of the money stolen by the accused had not been retrieved from him. The accused is a first time offender and as such this should serve as a warning to him and would be offenders I have therefore considered the facts of the instant case and the term of imprisonment as stated by the law in section 296(5) of the criminal and other offences Act (procedure) Act 1960 Act 30. This provision is to the effect that an offence under section 124 of Act 29 is liable to a term of imprisonment not exceeding twenty five (25) years. Nevertheless, there are other potential offenders who are also expected to learn from the decision of this court and desist from embarking on same trajectory, especially in the instant situation where this court has witnessed similar cases before it. From the above account of the facts and factors enumerated herein the accused is thereby convicted on the second count as per the charge and sentenced to a term of two (2) years imprisonment on the second count. Finally, This court in the case of Booso v The Republic [2009] 420 considered the issue as to how this court could determine whether this constitutional provision in article 14(6) of the 1992 Constitution had been complied with or not and came to the conclusion that the Page 13 of 14 compliance of this constitutional provision should be clear on the face of the record. The Court per Wood CJ held: “This clear constitutional provision enjoins judges, when passing sentence, to take any period spent in lawful custody before the conclusion of the trial into account. From the records, the accused has been on bail from the onset and therefore the sentence is to take effect from the day of sentencing. RESTITUTION ORDER UNDER SECTION 146 OF THE CRIMINAL AND OTHER OFFENCES (PROCEDURE) ACT, 1960 (ACT 30) After listening to prosecution’s oral application praying this court for a restitution order to enable the facility retrieve the unaccounted funds which the accused has been convicted for and the response from counsel for the accused opposing the application, the court will avert its mind to what the law says with regards to a restitution orders as hallowed in section 146 of Act 30. This law is to the effect that this court has convicted the accused on the second charge of stealing and therefore In accordance with Section 146 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the accused person shall refund an amount of GH¢140,000 to PW1’s facility. This is because the accused has been punished already by this court and as such will suffer some losses. It is also ordered that any money paid to the police by the Convict be released to the Complainant’s facility. SGD H/H JONATHAN ODARTEY ESQ. CIRCUIT COURT JUDGE KUMAWU - ASHANTI Page 14 of 14