REPUBLIC VRS IDAN & 2 OTHERS (247/2023) [2024] GHACC 200 (7 February 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON WEDNESSDAY 7TH DAY OF FEBRUARY, 2024 BEFORE H/H DORINDA SMITH ARTHUR, CIRCUIT COURT JUDGE. SUIT NO. 247/2023 THE REPUBLIC VRS 1. SAMUEL IDAN @ ABONKO 2. EMMANUEL AGGREY @ KOJO SASAN @ OWOR 3. RICHARD ASSAN @ COW ________________________________________________________ JUDGMENT _______________________________________________________ “Whoever is a partner with a thief hates his own life; He swears to tell the truth, but reveals nothing.” Proverbs 29:24 I. INTRODUCTION [1] The Accused persons were arraigned before this Court on April 19, 2023 for the offences of conspiracy to commit robbery, attempt to commit the offence of Robbery, and Causing Harm Contrary to Sections 23(1) and 149, 18 and 149, and 69 of Act 29,1690. Page 1 of 36 [2] The accused persons pleaded not guilty to the charges preferred against them for which reason the prosecution assumed the burden of proof and must prove the charges against the accused persons beyond reasonable doubt in accordance with Section 11(2) of the Evidence Act 1975 NRCD 323 which states that; 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 will find the existence of the facts beyond reasonable doubt. Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of ASANTE V. THE REPUBLIC [2017-2018] 1 SCGLR 394 AMPABENG VRS REPUBLIC [1977] 2 GLR 171 CA The prosecution in order to discharge the burden placed upon them called three witnesses and tendered in evidence eight exhibits. II. THE PROSECUTION CASE [3] A summary of prosecution witnesses’ evidence are that Victor Kwesi Amissah is the complainant (PW1) and on 18/02/2023 at 1.30am returned home at Low-cost Winneba and parked his unregistered Toyota Rav 4 with trade plate number DV 8049 B-23 in front of his house. He Page 2 of 36 entered the house but returned shortly after to pick an item from the car. When he got near the vehicle, and 1st accused (A1) appeared suddenly from the dark and pointed a gun at him then demanded for the car key. He refused to hand over the key because he realised the gun was fake. [4] Then A1 attacked him and a struggle ensued between them for the car key, then A1 pulled out a knife and stabbed PW1 multiple times on his head, arm, chest, and stomach. A1 then overpowered PW1 and took the car key from him and entered the car. Then 2nd accused (A2) joined him in the front seat of the car and A1 turned on the ignition and attempted to move the car but PW1 stood behind the car to prevent them from moving. A1 reversed the car and hit PW1 so fell to the ground and he ended up under the car. [5] According to PW1, there were some cement blocks on the ground and A1 drove into them which got the car stuck and prevented him from moving the car. When A1 realised he was unable to move the vehicle, he and A2 alighted from the vehicle and bolted from the scene. [6] PW1 stated that he screamed for help until a neighbour, Benneth Coffie, (PW2) came around to help him. When he was getting up from the floor with the assistance of PW2, he saw that A1 had dropped his phone, the knife and his slippers at the scene. They picked the items and reported the matter at the police station and handed over the items to them. PW1 Page 3 of 36 was given a medical form to attend hospital for treatment which he did at Trauma and Specialist Hospital where he was treated. [7] PW2 is a neighbour to PW1 and on 18/02/2023, at about 1.30am he was riding his bicycle towards his house when he heard someone screaming for help. He said the person was screaming and saying “they are killing me! They are killing me! He stopped for a while because he did not know what was happening but decided to continue towards his house. On his way, he met a man running towards him and asked for directions leading to the junction so he directed the man and continued towards his house. [8] On reaching his house, he saw PW1 lying in front of the gate and then he realised he was bleeding profusely on the head and his body was covered in blood. He rushed to help him and asked him what had happened. PW1 narrated what had happened to him so he decided to convey him to the hospital. He removed the concrete blocks under the vehicle and moved it from its stuck postion, put PW1 into the car and drove him to Winneba police station to report the matter and from there he took PW1 to the hospital. It was later he realised that the one who asked him for directions was one of the assailants. [9] PW3 is D/Insp Francis Tettey of Ntakotam police station and he stated that on 18/01/2023, a case of attempted robbery and causing harm was reported by PW1 at the station and it was referred to him for Page 4 of 36 investigations. He obtained statement from him and issued a medical form for him to attend hospital. He said PW1 handed over an iphone 7plus, a knife, and slipper belonging to A1. He visited PW1 at the hospital and found him responding to treatment and he took photographs of him. He went to the crime scene and took photographs of the scene. He noticed some broken cement block in a pile at the frontage of PW1’s residence. He also took custody of PW1’s vehicle. He took the iPhone 7 plus to the Regional CID for investigations and later transferred the case to the Regional CID for continuation. [10] PW4 is C/Insp Mawusi Stanley Kofi and he continued with the investigations from PW3. He took the iPhone to Police Intelligence Directorate, Accra to aid investigations and to help track the whereabouts of the accused persons. On 12/02/2023, the regional CID received a signal from the police intelligence Directorate that the iPhone has been tracked to Biriwa near Saltpond. They pinpointed the location of A1 and a team of police officers proceeded to Biriwa and arrested A1. He stated that during interrogation A1 admitted taking part in the attempt to rob PW1 and mentioned A2 and A3 as his accomplices. A1 led police to the residence of his A2 at Oguakrom and A2 also led police to Gomoa Buduburam camp where A3 was arrested. He obtained investigation caution and charged from accused persons and he tendered in evidence the statements. He tendered in evidence also photograph of the knife, iPhone, a pair of Page 5 of 36 slippers, photograph of the victim, medical report, photograph of the crime scene and photographs of the Toyota Rav 4. III. THE DEFENCE [11] A1 testified that he is a bulganiser and stays at Apewosika near UCC. He said he knows A2 and A3 and that A3 has been his friend for years. He continued that he was visiting his wife at Kasoa so he called A3 who said he was at Breku. He got to Breko and met A3 at a police post around 3 to 4 PM. They discussed many things and A3 said he was going to Winneba for a meeting and he knows a man at Winneba called W.O so he called W.O. He went with A3 to W.O at Winneba junction and after a discussion, they went with W.O to his house. When they went to W.O’s house, A2 was already there. It was getting late so they left and A2 joined them in their car as he said he was going to Winneba junction. [12] When they got to Winneba junction, A3 said he was going for a meeting and will return after 20 min so they should wait for him. A2 left for food and upon his return, he said he would stay with A1 to wait for A3. He saw one Abu coming from a beer bar and he said a certain man owes him so they should go with him to the man. Abu wanted to make a call but he did not have credit so he requested for A1’s phone. They went with him and Abu knocked on the gate of a house and a person opened the door and Abu exchanged words and the man threw his hand and A2 asked them to stop as they were fighting and A1 tried to separate them. Page 6 of 36 [13] He said he left them and when he was returning to where they left, he lost his way and he asked someone for direction to Winneba junction. When he got to Winneba junction he tried calling A3 but because he does not have his Vodafone number he did not answer. He said he has two mobile phones but he had only one on him at that time. Later A3 answered that he has waited for him for long so he had proceeded to his place. They agree for A1 to meet A3 half way as he convinced him he had Ghc4800. He did not tell A3 when he boarded the car what had happened and went to his wife’s place. [14] The next morning, he met A3 who told asked him why he has not been responding to his MTN number. His wife tried to call the number but nobody answered. He stayed at Kasoa for four days before returning to Cape Coast. He tried to reach Abu without success. He said it was his girlfriend who used her Ghana card to register his phone for him so he made the girl friend get another number for him. So one Sunday, he went to visit his father at Biriwa and the next day a woman called that she knows him and wants to meet him. [15] He agreed but he sent his boy instead and he was arrested. The boy came with the police to his house and he was arrested. They asked him where he stays and he responded he said Biriwa. They searched him and took his iPhone12 pro max and home theatre. His wife did not know he had that iPhone so it brought misunderstanding between them. The police brought him to UCC police station and questioned him about the people Page 7 of 36 he went to Winneba with so he mentioned A2 and A3 and also that he went with Abu and A2 to the complainant’s house. He took the police to A3’s house but they did not meet him and later A3 was arrested in court as he has another case here. He said A3 knows nothing about the case. [16] A2 testified that he is from Gomoa Oguakrom and a farmer. He said he did not know A1 and A3 until Old Solder, W.O, introduced them to him. He said W.O owns a hotel and he went to him that he wanted to buy books for his children and he was there with him when A1 and A3 came for a discussion. After the discussion, W.O told them to take him along for him to go and buy his things. He went with them and left to buy his things. Upon his return A1 was still there so he joined them and A3 left them. He continued that A1 said A3 had not returned so they should wait for him. [17] According to him it was getting late so he told A1 he wanted to leave as he will go to work but A1 asked him to wait as his friend Abu is coming so that they can see him off. He said he did not know Abu. When Abu came, he asked them to escort him. They went and Abu pointed to a man that he is the one and they started chatting. He was in a hurry to leave so he asked them to calm down and left the place. [18] A3 testified that he lives at Awuku Breku and an electrician. He knows A1 and got to know A2 through A1. He said he had closed from work when A1 called him he was coming to his wife at Kasoa so A1 Page 8 of 36 alighted at Breku and called him. When he came, A1 agreed to go with him to Winneba Junction. A1 told him that W.O had invited them to his house but he told A1 that he has a meeting. They went to W.O’s place and A1 had a discussion with him outside. They left W.O’s house with A2 and A1 alighted with A2 at Winneba Junction. [19] According to him he wanted A1 to go with him and asked him but A1 said he has to do something at Winneba. He left them and when he was done with his meeting he called A1 but he did not respond. He went to where he dropped them but he was not there as he had informed A1 he will pick him at that place. He decided to leave and when he reached Gomoa he saw a different line him so he picked the call and it was A1. He asked him his whereabouts and he told him to return and pick him. A1 met him with a taxi and he picked him around Winneba junction where the police normally have their barrier. [20] When they got to Awutu Breku he dropped him and went home. The next morning A1 came to his work place and said his phone is with someone and he knows he will get it from him. A3 said he travelled to Afloa and returned the next day. IV. EVALUATION OF EVIDENCE, FINDINGS OF FACT AND APPLICATION OF LAW [21] 1. CONSPIRACY TO COMMIT THE OFFENCE OF ROBBERY Page 9 of 36 Conspiracy is defined under Section 23 (i) of the Criminal Offences Act, 1960. It states as follows: If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be. The Prosecution was thus expected to establish the following ingredients: 1. That there must be two or more persons. 2. That the persons must either agree or act together. 3. That they held a common purpose and; 4. That the common purpose must be either to commit or abet a crime. [22] To satisfy the ingredients, the Prosecution led evidence through the PW1, PW2 and PW3 whose testimony established that A1, A2 and A3 in common purpose acted together and attacked PW1 then bolted away when they could not drive the Toyota Rav 4 car away but left him bleeding profusely from being stabbed with a knife and injured. [23] The accused persons are three and the three are all charged by prosecution for conspiracy to commit robbery. Ostensibly, the first element can be said to have been met as the accused persons are more Page 10 of 36 than one. But prosecution must prove that they agreed or acted together for a common purpose and that common purpose is the offence levelled against them. [24] In the case of FRANCIS YIRENKYI V. THE REPUBLIC [2017- 2018] 1 SCGLR 433, the Supreme Court held that conviction could be obtained by the establishment of any of the three ingredients under Section 23(1) of Act 29 and reiterated as follows: “However, under the new formulation, the offence of conspiracy could be established by only one ingredient namely the agreement to act to commit a substantive crime, to commit or abet that crime. The effect therefore was that the person must not only agree or act, but must agree to act together for common purposes.” On the ingredient that the persons must act together, PW1 in his evidence narrated that it was A1 and A2 who were came to his house that night. He gave evidence of the role each one played. That it was A1 who appeared initially with a gun and ordered him to hand over the car key to him. PW1 saw A1 clearly and that it was after the struggle where A1 was able to overpower PW1 that A2 appeared and sat in the car with him. [25] From the account of PW1, he saw only A1 and A2 but he did not see A3. However, from the entire evidence, the court can safely infer that all accused persons were together when they went to Winneba. It was A3 Page 11 of 36 who drove A1 and A2 to Winneba junction. It was A3 who returned and picked A1 from Winneba junction when A1 bolted from the house of PW1. [26] During cross examination of PW1, it became clear that A3 is well known by PW1 so it is more likely why he did not go with A2 and A3. Even though the accused persons tried to throw dust into the court’s eye, the court could safely infer from the circumstantial evidence that all three agreed to take away the Toyota Rav 4 from PW1. It is A3 who lived at Winneba and he knows the terrain well. He is known well by PW1 by name and by face. A1 stated that he was going to Kasoa to visit his wife and yet he stopped at Bereku to meet with A3. [27] It is noted that from Cape Coast to Kasoa, one will have to pass Winneba, Gomoa, Bereku before he gets to Kasoa and yet not only did he stop at Bereku but he left with A3 to Winneba on a reverse journey. It is more possible that A3 dropped A1 and A2 at Winneba junction and was to meet them at the same place after the act. This is deduced from the evidence of PW4 adn A2. [28] A2 under cross examination mentioned that he was waiting to for A1 so that he could be dropped at his place. This is a case where A1 and the alleged Abu did not have a car. The only inference the court could make was that A3 was involved but he was waiting for them so that he could drop A2 home since he is the only one with a means of a vehicle among the three accused persons as he was identified by him. Page 12 of 36 [29] However, PW1 and PW2 did not see A3 in the house and neither did they see the car of A3 around the vicinity. It may be probable that A3 had agreed with A1 and A2 for the commission of the crime, but he was not seen by any of the prosecution witnesses and prosecution did not provide the court with any other extraneous evidence for the court to rely on and conclude that A3 though he went with them to Winneba, was with them when they went to the house of PW1 or that he agreed to pick them up after the crime is committed thereby making him an accomplice. [30] It is noted that PW1 under cross examination answered that he knows A3 very well by name and by face before the case came to court. This means that he could have identified him if he went to the house that is why he did not go with A1 and A2 to the house. [31] Therefore, prosecution could successfully prove the charge of conspiracy to commit robbery beyond reasonable doubt against all the accused persons beyond reasonable doubt that they agreed to act together to commit the crime of robbery. 3. ROBBERY [32] Section 149 of the Criminal Offences Act, Act 29, 1960 states that: (1) Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by Page 13 of 36 the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years. (3) In this section "offensive weapon" means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and "offensive missile" includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown. [As substituted by the Criminal Code (Amendment) Act, 2003 (Act 646)]. [33] There are two types of robbery, where we have robbery simpliciter and robbery with the use of offensive weapon and each one has it respective sentence. Section 150 of Act 29 Supra defines robbery as; 1. A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he causes any harm to any person, or if he uses any threat or criminal assault or harm any person, with intent thereby to prevent or overcome the resistance of that or of other person to the stealing of the thing. [34] In his book, CRIMINAL LAW IN GHANA at page 372, P.K Twumasi wrote inter alia that; “Robbery is basically stealing...” Page 14 of 36 [35] In fact, all the ingredients of stealing must be present in a charge of robbery. However, there are distinctive features that makes stealing assume a different character. Those distinctive features may be regarded as the ingredients of the offence of robbery. They are: a. The Accused Person must have used force or caused harm or used threat of criminal assault or harm to any person in or for the purpose of stealing a thing. b. That he must have intent thereby to prevent or overcome the resistance of that or any other person to the stealing of a thing. [36] Thus it is clear from the definition of robbery as provided by Section 150 of Act 29 that the essential ingredients that the Prosecution needs to prove in order to establish a charge of robbery are: i. That the subject or matter of the theft is a thing. ii. That the Accused is not the owner of the thing. iii. That the Accused appropriated the thing. iv. That the appropriation is dishonest. v. That the appropriation was preceded with force, threat of criminal assault or harm to any person with intent thereby to prevent or overcome the resistance of that person to the stealing of the thing. Page 15 of 36 vi. That the Accused is responsible for the robbery. See FRIMPONG ALIAS IBOMAN V. THE REPUBLIC [2012] 45 GMJ 1 SC @31. [37] The definition of robbery as provided in Section 150 of Act 29 shows that a charge of robbery could be proved where one uses force or causes harm to any person in his effort to steal something or the person who is stealing must have used threat or assault or harm to any person with intent to prevent or overcome the resistance of the other person to the stealing. [38] The Prosecution is thus expected to establish that accused persons conspired to steal the Toyota Rav 4 belonging to PW1 from him and to do so with the use of force. [39] To satisfy the ingredients, the Prosecution led evidence through the Complainant, PW1 and two other witnesses who testified that A1 initially used a gun but PW1 noticed it was a toy gun so he did not obliged him when he was ordered to hand over the car keys to A1. [40] He struggled with A1 and A1 used a knife he had on him to stab him severally on his head and other parts of his body till he overpowered PW1. It was then that A2 appeared and entered the car with A1 attempting to drive the car away. Page 16 of 36 [41] According to prosecution witnesses, A1 and A2 could not leave with the car due to the cement blocks that obstructed the tyres from moving. From the answer of PW1 under cross examination, he stood behind the car because the car cannot leave without firstly backing up or reversing. He stood behind the car to prevent them from leaving maybe hoping that accused persons’ conscience might prevent them from hitting him in order to reverse. But they hit him and he fell under the car but by so doing drove over the cement blocks making it difficult for them to drive the car away. It is noted that accused persons’ counsel could not discredit the evidence of prosecution witnesses under cross examination but rather the questions threw more light on the case. [42] For the purposes of understanding what appropriation means, the court refers to Section 122(6) of Act 29/60 which defines appropriation as: 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. [43] Here, there must be moving, taking, obtaining, carrying away but with the intention of depriving someone who owns or has an interest in the thing. Page 17 of 36 [44] PW1 testified that he owns the Toyota Rav 4 and that he parked his car in his house. When A1 and A2 got inside the car, they were driving away the car but could not because of the cement blocks that obstructed them. From prosecution evidence, the court can safely infer that A1 and A2 agreed to take away or deprive PW1 of the benefit of his ownership of the car and they went ahead and acted upon their agreement. [45] I therefore find that A1 and A2 conspired to appropriate the Toyota Rav 4 from PW1 dishonestly and that they acted with force and with a weapon stabbing PW1 on the head and other parts of his body. PW1 had no choice but to see A1 and A2 taking away the car but his resilience nature made him stand behind the car. He was knocked down by the car but the cement blocks stopped them from leaving or taking away the car which belongs to PW1. [46] In the case of BEHOME V. THE REPUBLIC (1979) GLR 112 it was held that one was guilty of robbery if there is evidence that in stealing, he used force or caused any harm to the person with intent to prevent or overcome resistance of that or any other person in the stealing of the thing. [47] And in Black’s Law Dictionary, 8th Edition, Robbery is defined as; Page 18 of 36 “The illegal taking of a property from the person of another or in the person’s presence by violence or intimidation - aggravated larceny...” [48] Then in “Criminal Law” by Rollin M. Perkins & Ronald N. Boyce (3rd ed 1982) Robbery is defined as: “Robbery is larceny from a person by violence or intimidation. It is a felony both at common law and under modern statutes. Under some of the new penal codes robbery does not require the actual taking of property. If force or intimidation is used in the attempt to commit theft this is sufficient.” [49] Here, PW1 testified that A1 used a knife which is in evidence to stab him on his head and other parts of his body. Photographs of the scene and PW1 were tendered in evidence to show the state of PW1 after he had been attacked. [50] Also, the medical report, Exhibit D corroborate further that PW1 was stabbed and injured. The medical doctor, Dr. Philip Edem Agbo, stated that A1 “sustained multiple lacerations over his scalp, chest, and back which was bleeding and abrasion over his back. Lacerations were sutured and wounds dressed.” Page 19 of 36 [51] Hence, the exhibits corroborated the evidence of prosecution witnesses and show clearly the use of force and weapon that was used to overcome resistance of PW1. [52] The evidence of PW1 and PW2 were coherent and without any contradictions and the court accepts their evidence as credible. In the like manner the evidence of PW3 and PW4 are accepted as credible as accused persons through their counsel could not discredit their evidence through cross examination. [53] Therefore, prosecution was able to prove all the elements of conspiracy to commit robbery against A1 and A2 beyond reasonable doubt. I then move to the next charge which is attempt to commit the offence of robbery. 4. ATTEMPT TO COMMIT ROBBERY [54] Section 18 of the Criminal and other offences Act, 1960 Act 29 provides that: A person who attempts to commit a crime by any means shall not be acquitted on the ground that, by reason of the imperfection or other condition of the means, or by reason of the circumstances under which they are used, or by reason of any circumstances affecting the person against whom, or the thing in respect of which the crime is intended to Page 20 of 36 be committed or by reason of the absence of that person or thing, the crime could not be committed to his intent. (2) Every person who attempts to commit a crime shall, be deemed guilty of an attempt, and shall, except as in this Code otherwise expressly provided, be punishable in the same manner as if the crime had been completed. [55] I have already determined that A1 and A2 agreed to act together to commit robbery. They went ahead and carried out their plans only that they could not complete the purpose for which they went to the house of PW1 at Winneba low cost. They wanted to take away the Toyoto Rav 4 from PW1 and they attempted but they could not take away the vehicle due so the cement blocks’ obstruction. [56] They managed to be in the car, tried to move the car, hit the complainant in the process but could not complete the action of taking away the car. Meanwhile, PW1 had been stabbed with a knife bleeding and lying on the floor. [57] Thus, they intended to commit the crime of robbery and went and carried out their intentions as stated above only that they could not carry away the car from the house. Hence, the court accepts fully the evidence of prosecution against A1 and A2 that they attempted to commit robbery. This is because A1 successfully subjected PW1 to a terrible harm by Page 21 of 36 attacking PW1 with a knife and stabbing him multiple times on his scalp and other parts of his body. [58] A1 and A2 forcibly took the car from PW1 and was bolting with it only that they could not take it away from the house. If they had taken away the car it would have been robbery but because they could not take away the car it has become attempt to commit robbery. [59] Here, it is enough if the victim is threatened with criminal harm or assault with the intent of putting fear of such assault in the victim. See R VRS MENUAH AND DADE (1957) 2 W.A.L.R. 348. In the instant case, PW1 was attacked with a knife causing him to bleed profusely. [60] Therefore, the court can safely infer that A1 and A2 used force to steal from PW1 and harmed him but they could not take away what they stole. [61] The photographs and medical report corroborate prosecution’s evidence that PW1 was attacked and subjected to harm by the accused persons. In BAHOME VRS THE REPUBLIC supra at holding 5 thereof the court stated in dictum that: Under section 150 of Act 29, A. would only be guilty of robbery if in stealing a thing he used any force or caused harm or used any threat of assault to B with intent thereby to prevent or overcome Page 22 of 36 the resistance of B. or C. to the stealing of the thing.--------- And the thing stolen must be from the person of the one threatened or in his presence, if the property was under his immediate and personal care and protection. [62] It is not in dispute that until the attack, the car was under the immediate possession and control of PWI the victim. So in order for the accused persons to have control and possession they had to apply force on PW1 for him to relinquish his control and possession to them. [63] It is noted that accused persons were not able to discredit the evidence of prosecution but prosecution was able to prove all the elements of robbery though attempt against the accused persons and thus the evidence of prosecution is accepted wholly as credible. From the prosecution evidence the A1 used a knife to attack PW1 multiple times. [64] Section 149(3) of Act 29 gives the meaning of offensive weapon as any article adapted for use to cause injury to the person. Here, a knife is an article that can cause injury or damage. The medical report mentioned that PW1 had multiple lacerations and abrasion on his back and that some of the lacerations were sutured and the other wounds dressed. I therefore find that A1 caused damage to PW1 through an offensive weapon whilst A2 looked on waiting for the car to be taken from PW1. Page 23 of 36 Having so held, I turn to the last charge which is causing unlawful harm. 5. CAUSING UNLAWFUL HARM [65] Section 69 of Act 29, Criminal offences 1960 provides that: “a person who intentionally and unlawfully causes harm to any other person commits a second degree felony. In order to ground a conviction, the prosecution would have to lead sufficient evidence beyond reasonable doubt that the accused persons; ➢ Intentionally caused harm to PW1. ➢ That the act was unlawful [66] What then is harm? Harm is defined under the interpretation Section of Act 29, 1960 Section 1 to be; "harm” means any bodily hurt, disease, or disorder, whether permanent or temporary.” [67]Here, prosecution is to prove beyond reasonable doubt that whatever happened to PW1 was harm which can be any bodily hurt, disease, disorder whether permanent or temporary [68] Here, a burden is cast upon the prosecution to prove each and every one of the above two ingredients beyond a reasonable doubt that the accused persons with intent to harm PW1 went to his house at that Page 24 of 36 ungodly hour, used a toy gun to put fear in him, struggled with him, and used a knife to attack him, stabbing him multiple times on his body and scalp. [69] The photographs and medical report all corroborate the evidence that PW1 was harmed. The extent of harm can even be ascertained by just looking at the photographs. [70] I hereby find as a fact that PW1 was touched by accused persons without his consent and caused bodily harmed to him making him bleed profusely. Further, prosecution is to prove that the harm caused to PW1 was done intentionally by accused persons. [71] The provisions relating to intent is given under Section 11 of Act 29/1960. Subsection (1) provides that: (1) If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this Code, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event. [72] Also, the learned author P.K. Twumasi in his book Criminal Law in Ghana p77 stated that: Page 25 of 36 “The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common law which has been accepted as an important principle of our criminal law.” [73] Here, intention can only be inferred from the proven facts where prosecution has to prove that the accused person’s actions caused harm to PW1 whether they believed or not that their actions would cause such harm. [74] It is noted that accused persons harmed PW1 because they wanted him to release to them the Toyota Rav 4 car. Here, the intentions of accused persons are so clear as the unlawful harm occurred because of accused persons intention to rob PW1. [75] Was the harm reasonably foreseeable by the accused persons? Any reasonable man can come to but one conclusion that if a knife is used to stab a person multiple times on his scalp and other parts of the body, that person will be hurt or harmed. Accused persons also in the car reversed and hit PWI making him to fall down under the car. This is corroborated by the medical report that he had abrasions on his back. This presupposes that accused persons knew that their actions can cause harm to PW1 to enable them rob him successfully. Page 26 of 36 I therefore find as a fact that A1and A2 reasonably foresaw the harm they caused to PW1. [76] The next issue is whether or not the act was unlawful. This indicates the availability of defences of justification such as self-defence and consent of the complainant of that harm. Section 76 of Act 29 Criminal offences Act 1960 defines unlawful harm as: “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter one of this part.” [77] At this stage, the evidence of defence is determined by the court to see whether it satisfies any of the justifications mentioned in the Act or whether the evidence adduced by accused persons and the witness raise a reasonable doubt in prosecution’s case. [78] Under the Evidence Act supra what is generally called the burden of proof has two elements. They are the burden of persuasion and the burden of producing evidence. Here, the two are not the same. The burden of persuasion as provided in Section 10 of the Act involves the establishment of a requisite degree of belief concerning a fact in the mind of the court; or that the party raises a reasonable doubt concerning the existence or non-existence of a fact, or that the party establishes the Page 27 of 36 existence or non-existence of a fact. This burden is on both the prosecution and the defence. [79] In TSATSU TSIKTA V. THE REPUBLIC [2003-2005] 1 GLR 296, the court held that “the standard of proof of the prosecution must be attained at the close of its case in order to warrant an accused person to be called upon to make a defence was not proof beyond reasonable doubt because that was the ultimate burden that the prosecution assume in the entire case. [80] This burden of introducing evidence was shifted to the accused person when they were called to open their defence or to raise a reasonable doubt and this is emphatically covered under Section 17 of the Evidence Act NRCD 323. See also COMMISSIONER OF POLICE VRS ANTWI (1961) GLR 408. [81] Moreover in the case of ALI YUSIF ISSA (NO.2) VRS THE REPUBLIC [2003-2004] SCGLR 174 where it was held that; “…even though an accused person was not required to prove his innocence during the course of the trial he might risk of non-production of evidence and or non-persuasion to the required degree of belief particularly when he was called upon to open his defence.” [82] In LUTERRODT V COMMISSIONER OF POLICE [1963] 2 GLR 429, the court held that “where the determination of a case depends upon Page 28 of 36 facts and the court forms the opinion that a prima facie case has been made, the court shall proceed to examine the case for the defence in three stages: 1. If the explanation of the defence is acceptable, then the accused should be acquitted. 2. If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, it is should find it to be, the court should acquit the defendant and 3. Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case i.e prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not it should acquit.” [83] Here, A1 testified that he was. Under cross examination of the accused he answered among others the following questions: Under cross examination A1 answered among others the following questions: Q. It was a house at Winneba that you claim a struggle occurred with a man. Page 29 of 36 A. That is so. Q. You heard PW1 in his testimony before the court that he picked a phone on the crime scene and handed it over to police. A. Yes Q. And that phone was your iPhone 7plus A. Yes, it is mine. Q. So it is the case that it was PW1’s house that you went with A2 and another. A. Yes, I went with A2 and Abu. Q. It is also your case that you went to Winneba with A2 and A3 where A3 was driving his own car. A. Yes. Then later: Q. Did you leave your slippers at the crime scene? A. No, I was wearing a blue and white snickers. Q. Please kindly wear these slippers for the court to see. A. Yes. He wears the slippers and it fits perfectly Page 30 of 36 [84] The cross examination revealed that A1 is the very person who went to the house, the iphone found there belong to him as well as the slippers. He could not discredit the evidence of prosecution that he attempted to rob PW1 with A2 and A3. [85] A2 also testified among others that it was getting late so he told A1 he wanted to leave as he will go to work but A1 asked him to wait as his friend Abu is coming so that they can see him off. He said he did not know Abu. When Abu came, he asked them to escort him. They went and Abu pointed to a man that he is the one and they started chatting. He was in a hurry to leave so he asked them to calm down and left the place [86] Under cross examination A2 answered among others the following questions; Q. And it was the house of PW1 at Winneba low cost that you went to A. Yes. Later: Q. You went to PW1’s house because you personally knew A1 and A3 way before that day. A. I do not know them anywhere. Q. So A1 met you at W.O’s place right? A. Yes Page 31 of 36 Q. W.O’s place is not where you live. Right? A. Yes, I do not live there. I live at the next town. Q. A1 was able to bring the police to the next town where you live to arrest because he knows you. A. A1 knows that W.O is my friend so he knew how to get. Later on: Q. What time did you join A1 and A3 in the car? A. It was around 10.00pm Q. And you were going to buy books for your children at 10.00pm? A. Yes. Q. So from Winneba junction to low cost how many minutes did it take you? A. About one hour. Q. And you walked for more than one hour after you had gone to buy your books and waited for A3 to return until Abu came. A. Yes Page 32 of 36 Q. So what made you wait with A1 for a long time and then when the alleged Abu came you joined them to walk to low cost when you are saying you had to return to your house which is further away. A. I wanted them to drop me. Q. But this Abu did not come with a car? A Yes, he did not come with a car [87] Furthermore, accused person is seen as not been credible as his testimony was discredited by prosecution. He had earlier stated in his evidence in chief that he does not know A1 at all which was discredited. His entire evidence was so discredited that it was difficult and painful listening to him. [88] Also, the answers he gave contradicted his own caution statement even though his caution and charge statements were unsworn evidence. [89] In STATE V OTHER (1963) 2GLR 463, it was held that “a witness whose evidence on oath is contradictory of a previous statement made by him whether sown or unsworn, is not worthy of credit.” [90] Also in the case of BUOR V THE STATE (1965) GLR 1,SC it was held that if a witness has previously said or written something contrary to Page 33 of 36 what he testifies at the trial his evidence should not be given much weight. [91] The court therefore does not put much weight on the evidence of accused person and find his evidence not credible because of all the inconsistencies and contradictions. [92] I have considered accused persons caution statement, charge statement and testimony and find that accused person failed to discharge the burden of persuasion placed on them and he was not able to raise a reasonable doubt as to his guilt as required of him under Section 13(2) and 14 of NRCD 323 supra. 6. DISPOSITION/HOLDING [93] I therefore find as a fact that A1 did attempt to rob PW1 of his Toyota Rav 4 with an offensive weapon a gun and a knife and also conspired with A2 and A3 to rob PWI. [94] The Accused Persons are thus found guilty of the offences of Conspiracy to commit Robbery, attempt to commit Robbery and Causing Harm Contrary to Sections 23(1), 149 and 69 of Act 29, 1960 and I hereby convict them. Page 34 of 36 PRESENTENCING HEARING [95] I have considered that accused persons are known for similar offences especially A1 and A3 from Circuit Court 2. I have also considered the pleas of mitigation as prayed by counsel for accused persons and accessed persons themselves that they are sorry and are bread winners of their home and will not commit such offences. [96] I have also considered the response from prosecution that accused person should be given the maximum sentences as robbery is prevalent in the community and that they are part of a syndicate of robbers terrorising the people of Winneba and its environs. However, I have considered accused persons were in custody throughout the hearing. I hereby sentence A2 for count one and two Eighteen years IHL. A1 is sentence for count one thirty years, count two thirty years and for count three ten years. A3 is sentenced to count one and two twenty-four years IHL. Sentence to run concurrently. H/H DORINDA SMITH ARTHUR CIRCUIT COURT JUDGE ACCUSED PERSONS PRESENT. Page 35 of 36 PROSECUTOR: MIRIAM GYASIWAA SARPONG ASA PRESENT. DAVID BENTIL ESQ. FOR ACCUSED PERSONS PRESENT Page 36 of 36