REPUBLIC VRS KPIENYENG (132/2023) [2024] GHACC 104 (15 February 2024)

IN THE CIRCUIT COURT HELD AT TECHIMAN ON THURSDAY 15TH FEBRUARY, 2024 BEFORE H/H SAMUEL DJANIE KOTEY ESQ. SITTING AS A CIRCUIT COURT JUDGE CC: 132/2023 THE REPUBLIC VRS FOSTINO KWABENA KPIENYENG JUDGMENT Accused person has been charged with stealing a sheep said be the property of Pastor Emmanuel Nawaa contrary to the section 124 of the Criminal Offences Act, 1960 (Act 29). According to the facts of the prosecution in support of the charge against the accused person, the accused person was once seen with a sheep belonging to the complainant and was reported to the police. According to the prosecution, the accused person confided in his pastor that he had stolen a sheep belonging to the complainant. As a matter of fact, the entire case of the prosecution was based on this alleged confession by the accused to this witness as well as an alleged confession statement of the accused to the police. At the trial, the accused pleaded not guilty to the charge against him. The burden was cast on the prosecution to prove the guilt of the accused person beyond reasonable doubt. In other words, the evidence that the prosecution provides at the trial, must rise above all reasonable doubts that may arise from the evidence adduced by the prosecution. In the case of KWAKU FRIMPONG @ IBOMAN Vrs THE REPUBLIC (J3/5/2010) [2012] GHASC 3 (18 January 2012) JONES DOTSE JSC shared his thoughts on proof beyond reasonable doubts as follows: “The prosecution have a duty to prove the essential ingredients of the offence with which the appellant and the others have been charged beyond any reasonable doubt. The burden of proof remains on the prosecution throughout and it is only after a prima facie case has been established i.e. a story sufficient enough to link the appellant and the others to the commissioning of the offences charged that the appellant, therein accused is called upon to give his side of the story.” This duty imposed on the prosecution is also found in sections 11(2) and 13 of the Evidence Act, 1975 (NRCD 323). The question in this case is whether that burden which the prosecution claims to have discharged is to the requisite degree. To determine this question, I will first set out the ingredients of the offence the accused has been charged with and then consider the evidence adduced by the prosecution. I will thereafter evaluate the evidence before me from both the prosecution and the accused with the view to determining whether or not the guilt of the accused has been proved beyond reasonable doubt. Ingredients of the offence The offence of stealing requires proof by the prosecution that: a. Accused person dishonestly appropriated a thing; b. That the accused person is not the owner of the thing he dishonestly appropriated Evidence adduced before the court The prosecution’s case was presented through the testimonies of three witnesses including the investigator. The first prosecution witness who also happens to be the complainant in the case was the first to testify. Then there was Pastor Stephen Owusu who testified as second prosecution witness. The last prosecution witness was the investigator in the case. The accused person testified in his case. He did not invite any witness to come and testify in his defence. The evidence of the first prosecution witness was that the accused person stole the sheep of his neighbour and was arrested and upon his release, he confided in his pastor that he had stolen the complainant sheep. The evidence of the second witness was also that the accused person did steal the sheep of a man whose settlement was close to his church premises and sold same and was found out. He says that whiles he was advising the accused person, the latter confessed to him that he has been stealing the complainant’s sheep but did not mention the number he had stolen. The investigator’s testimony is just a summary of what he had compiled from the first two witnesses. Perhaps the only important contribution of the investigator to the case of the prosecution is the statements of the accused person to the police which he tendered in evidence. If there is a way they can tender those statements without the apology of evidence they present in most cases, that would be welcoming to the members of the bench. And here, I speak for a large number judges and magistrates at the lower courts. Often times, the evidence presented by investigators at the trial are not based on independent investigation findings into the cases they investigation. Their testimonies are just a combination of all the previous witnesses who have already testified ahead of them. It is advised that investigators in Ghana take time and make the needed effort to conduct serious and painstaking inquiries into cases that are placed under their consideration and present the results of their investigations as evidence before the court. That way, the court is able to match their independent findings with what the other witnesses have said in court to see if they corroborate each other. There are too many arm-chair investigations into cases by investigators. Police investigators in Ghana have become too predictable with their investigations. They often start with an arrest, taking down of investigation cautioned statement, visitation of the scene of the crime to take pictures which they don’t end up analysing. The visitation to the scene often does not result in the confirmation of the offence because there are no prints or samples taken which are analysed. They then visit the room of the accused and conduct a search usually without a warrant. After that they bring back the accused person and dump him in custody or take him through some discomfort hoping that he makes a confession statement. If the accused person makes a confession statement, then that becomes their eureka moment. They forget that the accused can reject the statement when it is offered in evidence. When the statement is taken through mini trial and is rejected, the whole case of the prosecution often comes crumbling. Later, they take down the charge statement of the accused when they decide to bring him to court. This is the routine that police investigators embark upon in every case. When often they are asked under investigations what their independent investigations revealed in their so called investigations, they have nothing useful to offer the court. This attitude must change. Moving on to the case of the accused person. The accused person also testified at the close of case of the prosecution rebuffing and refuting all allegations against him. He told the court in his evidence-in-chief that he never confided in PW2 that he had stolen the sheep or livestock of the complainant. He also told the court that the alleged confession statement offered in evidence against him was taken from him under duress and was not voluntary. Evaluation of the evidence The case of the prosecution was sufficiently based on an alleged confession by the accused person made extra judicial. The confession was said to have first been made to the PW2 and then to the police when the accused was arrested. Those confession as said were made outside of the court or court proceedings. The law is that confessions to a crime allegedly made by an accused extra judicial are to be treated with suspicion by the court when they form the basis of a charge against an accused person. Confessions made extra judicial unlike those made before the court or in the course of court proceedings may have been made by the declarant under duress or under circumstances where the person may not have been permitted to exercise all of his liberties. A confession made in court or in the course of proceedings in court are those which the court can rely upon without much suspicion. The law is that confessions made extra judicial are to be corroborated at the trial by evidence from other sources. In the case of STATE V. OWUSU AND ANO [1967]GLR 114, it was held that “an extra judicial confession by an accused that a crime has been committed by him did not necessarily absolve the prosecution of its duty to establish that a crime had actually been committed by the accused. It is desirable to have, outside the confession, some evidence, be it slight, of circumstances which made it probable that his confession was true.” In this case, the alleged confession by the accused was said to have been made to the second witness for the prosecution. There is the need for other pieces of evidence from other places or persons to corroborate this alleged confession. The complainant only told us what the second witness had told him about the alleged confession of the accused to the crime. There was no other person who could testify to this confession aside the second prosecution witness. The only piece of evidence that corroborated this confession statement is the investigation cautioned statement of the accused offered in evidence as exhibit A. This confession statement has also been challenged by the accused in his testimony to the court as having been made under duress. Although the objection to the confession statement was rather late, thereby denying the court from investigating into the truth or otherwise of the allegation that the statement was obtained from the accused under duress, that claim puts the confession statement under serious stress. It raises some doubts to the conditions under which the statement was obtained. But that aside, the use of the investigation cautioned statement to corroborate the alleged confession made by the accused to the 2nd prosecution witness is itself quite incestuous. They are from the same side. The corroboration that the law seeks as was held in the above stated case of State v Owusu, is one based on other circumstances which confirms the confession statement. The prosecution is only relying on two alleged confession statements of the accused as evidence that the accused committed the offence: one is from its second witness and the other is from the third witness. There was no other evidence which taken together with the confession statements will lead the court to conclude that the accused did actually commit the offence. Evidence such as testimonies from the persons at the Techiman livestock market to whom accused is alleged to have gone to sell the animals he allegedly stole would have corroborated the evidence of confession by the accused. Those persons were not invited. The reason uncorroborated confession statements are not accepted as the only proof of guilt of the confessor is that where the confessor denies making the confession, it becomes the statement against his word on oath. Where the statement not made on oath is compared with one made on oath by the same person, the court will prefer the one made on oath. In this case, the alleged confessions by the accused person were not made on oath. The accused person on oath in court gave another statement contradicting the one he is alleged to have made. First of all, he negates the earlier one he is alleged to have made which was not on oath and then he sets out to make a new statement on oath on pain of perjury. The court will prefer the statement the accused has made on oath on pain of perjury to the one he is alleged to have made extra judicial. The denial by the accused person that he did not confessed and the evidence from him that he is not guilty as charged creates doubts in the mind of the court that the accused did confess to the crime. Since the confession is the only evidence from which the prosecution is accusing the accused, then the finding that there is no evidence supporting this confession will inure to the benefit of the accused. The benefit to the accused is that there is doubt in the mind of the court about the case of the prosecution against the accused. The court cannot convict the accused whiles still in doubt that the accused indeed stole the sheep. The law as I explained earlier in the case is that the prosecution must prove its case against the accused beyond reasonable doubt. The doubts about the making of the confession statement which is the only evidence by the prosecution to prove the guilt of the accused results in an acquittal of the accused. From the evidence before me therefore, I find the accused person not guilty of the offence of stealing as charged. He is hereby acquitted and discharged. SGD HH S.D. KOTEY