REPUBLIC VRS NSOR (BR/SY/CT/195/2024) [2024] GHACC 140 (8 March 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON FRIDAY THE 8TH DAY OF MARCH 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/195/2024 THE REPUBLIC VRS. EMMANUEL NSOR JUDGMENT Section 146 of Act 29/1960 provides that, “whoever dishonestly receives any property which he knows to have been obtained or appropriated by any offence punishable under this Chapter shall be liable to the same punishment as if he had committed that offence.” Section 147 (1) further explains the offence as follows, “a person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner.” The above is the offence accused person has been charged with and the facts given rise to same are that on the 19th of October 2023 complainant came home to find that his house had been broken into by unknown persons and several items belonging to him stolen. Complainant subsequently, reported the matter to the police who commenced investigations. On the 21st of November 2023, the police received information that some of the items were in accused person’s 1 possession. A search conducted in the premises of accused person confirmed the presence of some of the items stolen. According to Prosecution, accused person indicated that the items were given to him by his brother one Paul Nsor who could however not be arrested. Consequently, Prosecution charged accused person with the offence above stated. In order for Prosecution to secure conviction in a charge of dishonestly receiving, Prosecution must establish its case beyond reasonable doubt as enjoined in Section 11(2) of the Evidence Act 1975 (NRCD 323) which provides; “In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.” The elements of the offence were identified in the case of The Republic v. Bright [1974] 2 GLR 12, in which the Court observed that, where an accused person is charged with the crime of dishonestly receiving unless the doctrine of recent possession can be invoked, the burden lies on the prosecution throughout to prove beyond all reasonable doubt the following elements: i. That the subject-matter of the prosecution was stolen. ii. Again it is the duty of the prosecution to prove affirmatively that the accused was either in physical or constructive possession of the subject- matter of the prosecution. iii. It must also be proved by the prosecution that the accused knew or ought to have known from the particular circumstances of the case that 2 the goods had been stolen. [See: Republic v. Bayford (1973) 2 GLR 321 and Augustine Osei V. The Republic (2017) JELR 67260 (CA)]. It is must borne in mind that should Prosecution fail in proving any of the above listed elements, the case of Prosecution must fail. In the instant suit, the items which Prosecution alleges were dishonestly received were listed in the particulars of offence to include two (2) street lights, One bed-sheet, two camo shorts and two sandals. Were the above identified items stolen? This was answer in the affirmative by Bugase Godfred (Pw1) who testified that on the 18th of October 2023 when he came home he detected that the window to his room was damaged as well as the lock of his door. That upon managing to enter his room, he realized that two street lights, one bed sheet, two camo and two sandals which were in his possession had been stolen. The fact that these items were stolen were neither denied nor challenged by accused person under cross examination. His failure to challenge this assertion meant that he had admitted the truth of same. (See:Fori v. Ayirebi [1966] GLR 627, SC). In fact, accused person’s line of questioning sought to indicate that the items were indeed stolen but not by him personally but his brother, for he questioned Pw1 as follows; Q. I suggest to you that the items in question were brought to my room by my brother? A. I do not know. This Court accordingly finds that, the items identified and as listed in the particulars of offence were indeed stolen from the premises of complainant. Having resolved the first issue, it ought to be ascertained whether or not accused person was either in physical or constructive possession of the stolen items and in this regard Pw1 alleged that upon the arrest of accused person he noticed that accused person was wearing a boxer short belonging to him (complainant). The investigator in the person of D/C/Insp. Emmanuel Yao Deku also testified to the effect that when the room of accused person was searched 3 the found the stolen items in the room of accused person and later complainant identified his boxer shorts being worn by the accused person. Pictures of the items retrieved from the custody of accused person were tendered and marked as Exhibits C, C1 and C2 respectively. The accused person once again did not deny that the identified items were indeed found in his possession. In fact, accused person in his unsworn statement, conceded that the items were found in his room by the police during the search. He further did not deny the fact that he was wearing complainant’s boxer shorts neither did he offer any explanation for doing so. By the admission of accused person, possession of the stolen items was duly established by Prosecution. This determination leads to the resolution of the last element of the offence which is to ascertain whether or not the accused knew or ought to have known that the goods had been stolen. No one can know the state of mind of a person at the time he received stolen property however, his state of mind can be deduced by assessing the surrounding circumstances of the case. In this case the facts as established by prosecution are as follows; i. On the day of the incident the items listed in the charge sheet and belonging to complainant were stolen. ii. These items were stolen by the brother of accused person. iii. The stolen items were not only kept in the room of accused person but accused started using the items personally as he was seen wearing the boxer shorts of complainant. Clearly, accused person knew that the items did not belong to his brother yet he decided not only to harbour them in his room, but to use them for his own benefit. He had no intention to return them to its owner or in the very least send them to the nearest police station. He wanted to enjoy the benefits from the unlawful conduct of his brother to the detriment of the true owner, the 4 complainant. In his defence accused person’s explanation given in his unsworn statement offered no reprieve to him. In fact, his statement given under caution revealed accused person’s knowledge of the fact that the items were obtained unlawfully. He stated as follows; “It was true the items…were found in my room but I was not the one who stole them…” The above statement confirms the fact that accused person knew that the items were stolen yet he failed to take steps to return them to their rightful owner. Consequently, it is the holding of the Court that Prosecution duly established the last element of the offence beyond reasonable doubt. On the whole, Prosecution has duly established its case against accused person. Accused is accordingly found guilty of the offence and hereby convicted. Prosecution indicates that accused person has a previous conviction and has duly furnished the Court with a copy of a warrant of commitment with suit number BR/SY/CT/428/2022 dated the 25th of April 2022. According to the warrant of commitment accused person was convicted and sentenced on a charge of stealing to serve a term of imprisonment of 10 months in hard labour. Having perused the said warrant, this Court is satisfied that the previous conviction of accused person has been duly established and accused is therefore liable to increased punishment in accordance with Section 300 of Act 30/1960. Accused is accordingly sentenced to serve a term of imprisonment of fourteen (14) years imprisonment in hard labour. The items retrieved shall be released to the complainant forthwith. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE – GOASO 5 6