The Republic vrs Bismark Kwame Idan (D21/45/2023) [2024] GHACC 129 (7 February 2024)

IN THE CIRCUIT COURT HELD AT AKROPONG ON WEDNESDAY THE 7TH DAY OF FEBRUARY, 2024 BEFORE H/H NANA ADWOA SERWAA DUA-ADONTENG SITTING AS THE JUDGE CASE NO. D21/45/2023 THE REPUBLIC VRS BISMARK KWAME IDAN FINAL JUDGMENT Prosecution represented by: D/I Alexander Agbekpornu Accused person is self-represented CHARGE The Accused person is charged with Robbery contrary to Section 149 of the Criminal Offences Act 1960 (Act 29), that on the 11th day of November, 2022 at Atwima Koforidua in the Ashanti region and within the jurisdiction of this court, did steal stool land receipt book, Ecowas card, voter’s ID card and other documents, one infinix touch phone valued Ghs1,500, one Nokia keypad phone valued Ghs120, one Casio calculator valued Ghs200 and cash of Ghs4,500 from Nicholas Darkwa for the purpose of stealing the items, you threatened him with a knife in order to prevent or overcome his resistance to the stealing. FACTS The complainant in this case is a revenue collector having his office at Mamponteng while the accused person is a driver’s mate residing at Atwima Koforidua. On 3/11/2022 about 4am the complainant was on his way to work and met the accused, in front of his house and he pointed a sharp knife at the complainant to surrender his belongings. Complainant who feared for his life quickly handed over his bag. Complainant who feared for his life quickly handed over his bag to the accused person. On 22/01/2023 about 6.15am, the complainant had information that a thief had been arrested. The complainant quickly rushed to the place and found out it was the same accused person who robbed him of his belongings some weeks ago. The accused was brought to the Akropong police and during investigation, he admitted and led police to where he kept the bag and the bag was retrieved. The accused further told the police that he had sold the phones and spent the money, he was however charged and put before the court. PLEA The court explained the pleas available to the accused and the consequences of each plea. The accused person took his plea in Twi Language, he pleaded Not Guilty to the charge of Robbery. APPLICABLE LAW The well-known rule of evidence is that a party who bears the burden of proof must produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. Again, in the case of Zabrama V Segbedzi (1991)2 GLR 223, CA, the court held, “…The correct proposition is that a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and gentile evidence from which the facts or facts, the assets can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden…” In Ackah v. Pergah Transport Limited and Others, [2010] SCGLR 728 @ page 736: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.” It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Act, to that effect the Evidence Act, 1975 provides in Section 10 as follows: “For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court”. The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact, or to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Again, in the case of Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176, SC, it was held at holding (2) as follows: “The onus of proof in civil cases depends on the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof”. Another aspect of the evidential burden that has to be met by parties to a civil action also finds expression in section 14 of the Evidence Act, 1975 (NRCD 323): “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. This principle of the law was aptly stated by Adjei J.A. in the case of The Republic v Francis Ike Uyanwune [2013] 58 GMJ 162 at 177 in the following terms: “The law is that an accused person is presumed innocent until his guilt is proved beyond reasonable doubt and it is the duty of this court to satisfy itself that all the ingredients of the offence were proved.” The courts on the burden of proof have held that “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would belief beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408. However, beyond reasonable doubt does not mean beyond a shadow of doubt. The guilt of an accused person is sufficiently proved if the tribunal of fact is convinced that he committed the offence though there remains a lingering possibility that he is not guilty. See Oteng v The State [1966] GLR 352.” Section 150 of the Criminal Offences Act of 1960 [Act 29] which states that: “A person who steals a thin commits robbery. (a) if, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person; or (b) if that person uses a threat or criminal assault or harm to any person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing.” To ascertain whether or not accused did indeed commit the offence of robbery, I shall refer to the case of Kwaku Frimpong @ Iboman Vs Republic [2012] I SCGLR 297 where the court explained that for a charge of robbery to hold, the prosecution has to prove the following: 1. The accused stole something from the victim of the offence 2. In stealing the thing the accused used force, harm or criminal assault or threat thereof 3. The intention of doing so was to prevent or overcome any resistance. Animus furandi which is a prerequisite to all charges involving stealing. Behome Vs. the Republic [1978] DLHC1133 The essence of robbery is the taking of property by violence or by threat of violence to a person with the intent that the resistance of that person or any other person will be prevented or overcome to the stealing of the thing. A mere idle show or threat of violence excited can hardly satisfy the test. It is, however, enough if money is demanded and the fact be attended with such circumstances of violence or threats, as, in common experience, are likely to create an apprehension of danger and induce a person or a member of his family to part with the money. From the authorities explaining robbery at common law (upon whose principles section 150 of Act 29 is framed) the fear may be either of personal violence to the person robbed, or to a member of his family: see R. v. Donnally (1779) 1 Leach 193. Family here is, of course, applied in the restrictive sense of a man, his wife and children. Again, the thing stolen must be from the person of the one threatened, or in his presence, if the property is under his immediate and personal care and protection: see R. v. Fallows (1832) 5 C. & P. 508 and R. v. Selway and Wynn (1859) 8 Cox C.C. 235. Reane’s case (1794) 2 Leach 616 went on the principle that in a crime of robbery the property must be parted with from an immediate apprehension of present danger. Prosecution’s Case The prosecution called two witnesses; the complainant and the investigator respectively. It was the testimony of the complainant, PW1 that he is a revenue collector who resides at Atwima Koforidua. On 3/11/2022 at about 4.38am when he was going to work, he was accosted by the accused wielding a knife. Fearing for his life, PWI testified that he surrendered his bag containing both work and personal items and an amount of Ghs4,5000. After he had been robbed, he rushed to a nearby house and shouted for help that he had just been robbed. He continued that one of the occupants of the house after narrating what he had just endured showed a video to him and in the video was accused whom he admitted had just robbed him. Sergeant Abigail Abbey of Akropong police testified next as PW2. Her testimony was that PW1 reported an incident of robbery against him on 3/11/22. She followed up with a visit to the crime scene after obtaining a statement from the complainant. While investigations were still going on, the complainant with the help of others arrested the accused person on 22/7/23 and brought him to the Akropong police station. She proceeded to take the accused’s statement and said statement, accused admitted to robbing the complainant and in the company of the police went to Atwima Koforidua where he kept the bag after robbing the complainant and thereafter sent him to the hospital for medical attention. Coincidentally, at the location, the complainant’s bag was retrieved and the items recovered less the money. She tendered the investigation caution statement which prosecution intended to rely on as a confession statement into evidence. Accused’s case When called upon to open his defence, the accused refused to make any statement either from the dock or being sworn on oath and testify from the witness box. Despite the court explaining to the accused that he had a right to be heard but could not be compelled to testify, he insisted on not testifying. He however called his mother to testify as his witness. It was the testimony of DW1, accused’s mother and sole witness that she had no personal knowledge of the case but was in court to testify because she was informed the accused wanted her to testify on his behalf. Analysis Section 120 of the Evidence Act, 1975 Act 323 requires that as a general rule, a confession by an accused made outside of the court is hearsay and therefore inadmissible evidence unless the same was made voluntarily and while arrested or detained, in the presence of an independent witness. In Duah v the Republic [1987-88] 1 GLR 343, the Court held that confession statements will be inadmissible if found to have been made involuntarily. In State v Banful (1965) GLR 433 which is relevant to this case, the Supreme Court determined that where the confession was given under duress exerted by or at the instance of a public official, the statement given was inadmissible. The fulcrum of the prosecution’s case is hinged on the investigation caution statement in which the accused purportedly confessed to robbing the complainant of his bag and its contents and thereafter ditching the bag under a plantain tree opposite Cedar church building. He also confessed that he was caught by a crowd when he tried to snatch a woman’s bag on 22/01/23 and was beaten by the crowd. It is important to say here that, as trivial as the part of the supposed confession about being beaten is, it squarely corroborates the testimony of the PW2 that she took the accused to the hospital to seek medical attention. In analyzing the testimony from the defence, I find myself quite short changed because there is nothing that was proffered to satisfying the accused’s burden of persuading the court against a guilty verdict bearing in mind the duty of proof lies on the prosecution first. Having said that, I proceed on the equally limited testimony of the prosecution witnesses save the confession statement. Do I find the confession statement worthy of admissibility? Was it given voluntarily by the accused? There is no objection by the accused that it was not. Was there an independent witness present when the statement was made? The statement is signed and endorsed by the witness as having read and explained the content to the accused person and he appeared to understand and approve of the same. Without any testimony to the contrary from the accused or his witness, I am giving no other option than to rely on the evidence presented to the court and proceed on the same. By reason of the above analysis, I find that the prosecution witnesses lent themselves as credible witnesses and therefore the prosecution was able to achieve the duty of proving to the court that the accused robbed Nicholas Darkwa, who is the complainant and PW1. In this regard, I find the accused Guilty as charged and accordingly Convict him for robbing Nicholas Darkwa on 3/11/22 at Atwima Koforidua. SENTENCING In the case of Kwashie v the Republic [1971] 1 GLR 488-496 where it was held that In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; or in the country generally;(5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” AGGRAVATING FACTORS Greater force used – the knife was pointed at the complainant but not used on him. Greater injury – no injury Vulnerable victim (old, female, young, disabled) – complainant is an able bodied middle aged man. Planned offence – prosecution did not provide evidence that the offence was planned. Breaking of trust – No position of trust. The Accused person is a stranger to the complainant. After dark – occurred at 4am Group / Gang – Single Offender Remote/isolated location – isolated place due to hire of offence. Degrading, dehumanizing factors – none presented to the court that the complainant was treated in a degrading or dehumanizing manner. Primary considerations Level of violence Extent of injury – no physical injury was suffered by the complainant but he testified to feel anxious and fearful for his life (emotional distress) Extent of fear – complainant was threatened to give the bag out of fear. Gender – able bodied male who could have bantered with the accused with the accused was unarmed. Age of victim – middle aged man, physically abled. Kind of weapon used – gun, knife, blunt instrument no information whether sharp or blunt. Secondary considerations Amount taken – ₵4,500 cash and electronic gadgets valued at Ghs1820 Value to victim – there were documents which the complainant used at work. The documents were retrieved but in a very damaged state. His personal identification cards were also retrieved in a good state. Breach of trust – None exist MITIGATION FACTORS Less force used – the knife was not used to harm the complainant Less/no injury – no injuries were sustained by the complainant. Young offender – accused person is 24 years. Spur of the moment - offence was premeditated Low mental capacity - no record of non compus mentis on the part of the accused and he seemed to fully understand the proceedings before the court and was able to articulate his thought well enough to be understood by the court ALLOCUTION BY ACCUSED PERSON Accused pleaded as follows: “I will first thank you for giving me the opportunity to talk. I beg you to please reduce the sentence because of the child and woman I am leaving behind. I will not go back and repeat the offence.” SENTENCE The Accused Person is sentenced to 10 (ten) years in prison. The stolen items retrieved from the Accused person are to be released to the victim whom the court finds to be the complainant. H/H NANA ADWOA SERWAA DUA-ADONTENG OFORI CIRCUIT COURT - AKROPONG