REPUBLIC VRS. AGBENKEY (B7/11/2024) [2025] GHADC 45 (27 March 2025)

IN THE DISTRICT COURT TDC TEMA HELD ON WEDNESDAY THE 27TH DAY OF MARCH 2025 BEFORE HER WORSHIP BENEDICTA ANTWI DISTRICT COURT MAGISTRATE CASE NO: B7/11/2024 THE REPUBLIC VRS THOMAS AGBENKEY JUDGEMENT _______________________________________________________________________ The accused person was committed to stand trial before this court on the 3rd of November 2023 He was charged with one counts of attempt to commit crime namely stealing contrary to sections 18 and 124 (1) of the criminal offences Act (1960) Act 29. Below are the particulars of the charge. STATEMENT OF OFFENCE ATTEMPT TO COMMIT CRIME NAMELY STEALING: Contrary to sections 18 and 124(1) of the Criminal Offences Act 1960 (ACT 29) STATEMENT OF OFFENCE THOMAS AGBENKEY, AGE 36 YEARS, Forklift operator: On the 20th of Novemebr 2023 at Community 12, Tema and within the jurisdiction of this Court, you attempted to dishonestly appropriate six (6) vehicle starters valued GH¢ 49,485.60 the property of Tanink Ghana Limited. The accused pleaded “not guilty” to the charge. He was granted bail and the case proceeded to trial. The 1992 constitution per article 19(2)((c )) provides that the accused is presumed innocent until proven guilty. Under sections 11(2) and 13 (1) of the Evidence Act, 1975 (ACT 323) this proof must be beyond reasonable doubt. CASE OF PROSECUTION The complainant works at Tanink Ghana Limited as a security coordinator and the accused is a forklift operator. On the 20th November 2023, about 3:00am, the security guards namely: Gabriel Adezakpah and Famous Nanewortor, who were detailed to perform night duty at the aforementioned company saw the accused person within the company premises removing the starter of one Dongfeng truck. Upon seeing the security men, the accused took to his heels. He was perused and arrested at community 12, Tema and handed over to the police. All the six (6) starters were retrieved from the accused person. Prosecution called four (4) witnesses to prove their case and thereafter closed their case. EVIDENCE OF PW1 PW1; Stephen Azalekor testified by relying on his witness statement filed on the 13th December 2023. He testified that he is the security coordinator of Tanink Ghana Limited and knows the complainant in this case. On the 20th November 2023, two security guards; Gabriel Adzakpah and Famous Nanewortor reported to him that they had seen the accused person on the premises and they chased and arrested him. They checked the vehicles and discovered that, twelve (12) of the tipper truck starters were missing. When the accused was arrested, they found six (6) of the starters with him. He brought the accused to the police station and submitted his statement. The accused person briefly cross-examined the witness and he was discharged thereafter. EVIDENCE OF PW2 PW2; the Gabriel Adzakpah testified that on the 10th April 2024 by relying on his witness statement filed on the 13th December 2023 as his evidence- in-chief. He testified that he was on duty on the day of the incident with one Famous Nanewutor. Whilst on patrol, he saw the accused carrying two (2) Dong Feng tipper starters. When the accused saw him, he placed the starters in a gutter near him and took to his heals. He called his colleague and the perused the accused till he was arrested at community 12, Tema between Star Oil filling station and ICGC church. They brought the accused back to the company yard. They searched the yard and found four (4) dong feng starters hidden under one of the tipper trucks in the premises of the company and two (2) starters in the gutter where the accused was first sighted. They informed the complainant about the incident and he reported the matter to the police. The witness was cross-examined by the accused person and discharged. EVIDENCE OF PW3 On the 13th June 2024, PW3; Famous Nanewortor corroborated the evidence of PW2 by relying on his witness statement filed on the 13th December 2023. He was cross- examined by the accused and thereafter, discharged. Below is the entirety of the cross- examination;; Q: where did u see me with the starters ? A: I saw you at the Tanink Ghana company limited. Q: Where is the evidence to show that you saw me A: The evidence is that you came to the company Q: where is evidence that shows that you saw with the starter? A: you came into the yard. Q: why did you not inform the Police that it was 12 starters but you said 6? A: we informed the police that it was 12 starters that got missing. Q: How many minutes or hours did you patrol your yard? A: 15 minutes Q: At the time I removed the starters did you hear any noise or see me? A: there is a distance. I saw you when I was patrolling the yard. Q: can you tell this court, how many hours it will take a person to remove 12 starters from 12 tipper trucks? A: I don’t know. Q: what evidence do you have that I entered into the yard and stole the starters. A: The evidence is that you entered the yard and we wanted to arrest you but you escaped. END OF CROSS-EXAMINATION. EVIDENCE OF PW4 PW4; the investigator also testified on the 23rd July 2024 by relying on his witness statement filed on the 20th November 2023. He tendered the following exhibits; Exhibit “A” – caution statement of Accused person dated 20th November 2023 Exhibit “B” – photograph of truck starters Exhibit “C” – Charge statement of accused dated 21st November 2023. In exhibit “A” the accused stated that he was on his way to have fun on the day of the incident when the PW2 and PW3 accosted and arrested him at community 12, Tema. They took him to the Tannik yard and informed him that he was under arrest. He relied on this caution statement in his charge statement. Below is an excerpt of the cross-examination by the accused person himself. Q: According to the complainant and the witness, it was (12) starters that got missing but on the charge sheet you said six (6) were missing and retrieved. A: the complainant made me aware that six (6) starters were stolen. Q: Where were the other six (6) starters. A: The complainant only made me aware that six (6) starters were stolen. Q: there are CCTV cameras on the store in front of the yard, why hasn’t it been checked? A: it was not functioning. Q: according to PW2, he said he saw me dropping two (2) starters into the gutter but on the charge you stated that you saw the remaining starters. A: PW 2 made me aware that two (2) starters were retrieved from the gutter and the other four (4) from the car parked on the premises. Q: Do you have evidence that I dumped the two (2) starters? A: no. Q: that will be all for the witness. At the end of prosecution’s case, the court considered the evidence led by the prosecution in respect of the elements of the charge and concluded that the prosecution has been able to establish a prima facie case against the accused person warranting the accused to answer the charge. The accused was remined of the charge and of his right to give evidence as prescribed by section 175 of the Criminal Offenses Act (1960) ACT 30 An accused person called upon to open his defense only needs to raise reasonable doubt as to the case of prosecution. This principle is codified in Section 13(2) the Evidence Act NRCD 323 as follows; “except as provided in section 15 (3) in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt requires only that the accused raise a reasonable doubt as to guilt” The burden on the accused person was explained by Korsah CJ in the case of Commissioner of Police v Antwi (1961) GLR 408 when the court expressed itself as thus; “ the fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything. If he can merely raise a reasonable doubt as to his guilt, he must be acquitted.” DEFENCE OF ACCUSED PERSON. On the 30th October 2024, the accused person testified that on the date of the incident, he and his girlfriend went to a club at community 18 near Ashaiman to have fun. They left the club at about 3:25 a.m. he ordered an uber for his girlfriend and alighted on the way. It was when he alighted from the uber that he was arrested by some anonymous persons on suspicion of haven stolen car batteries. He followed them to the yard and they took photos of him with the batteries bedside him. Accused was cross-examined by the police prosecutor as follows; Q: on the 20th November 2023, what were you doing on the premises of Tanink A: I was not on the premises. I was using a path far away from the premises. Q: I am putting it to you that on 20th November 2023, you were on the premises of Tanink Ghana Limited. A: Not true. Q: I put it to you that you were spotted on Gabriel Adzekpah, a security guard at Tanink Ghana Ltd removing starters of the truck. A: That is not true. They spotted me far away from the company. Q: That upon seeing the security guards, you placed two (2) of the starters in the gutter near you. I put it to you. A: Not true. The starters the police used was not at the police station because they were too heavy to carry. Prosecution later asked; “ Q: per exhibit “B” the staters are not heavy and you can pick them A: it is the picture that is making it small. I said I cannot pick 2 not 1.” ANALYSIS It is the duty of the court to determine the credibility of witnesses especially when there are conflicting evidence on record. What are the elements of a charge of attempt to commit crime namely stealing. Section 18 of Act 29 provides as follows; “A person who attempts to commit a criminal offense shall not be acquitted on the ground that, the criminal offense could not be committed according to the intent. (a) By reason of the imperfection or other condition of the means, or (b) By reason the circumstances under which they are used, or (c) By reason of the circumstances affecting the person against whom, or the thing in respect of which the criminal offence is intended to be committed, or (d) By reason of the absence of that person or thing (2) a person who attempts to commit a criminal offense, commits a criminal offense, and except as otherwise provided in this Act, is liable to be convicted and punished as if the criminal offense has been completed. (3) Where any act amounts to a complete criminal offense, as defined by a provision of this Act, and is also an attempt to commit any other criminal offense, a person who does the act commits a criminal offence and is liable to be convicted and punished under either provision or under this section. The definition section of the charge found at section 125 of Act 29 states that as follows; “a person steals who dishonestly appropriates a thing of which that person is not the owner” The ingredients therefore are; a. That the act was dishonest b. That there was appropriation c. That the property belonged to another person Section 18 of the Act 29 provides that for a person charged with the offence of attempting to commit a criminal offense shall not be acquitted on the ground that, the criminal offense could not be committed according to the intent. A person who attempts to commit an offence is liable to be convicted and punished as if the criminal offense has been completed, Republic v. Shivpuri (1987) AC 1, Dua v. The State (1963) 2 GLR 385, SC, Republic v Darko (1971) 2 GLR 227 cited. In Republic V. Darko (supra) the accused person attempted to shoot and kill another, but the gun failed to fire. It was held that the act was an attempted murder. In accused person’s investigation caution statement, tended without objection as exhibit “A” he stated that on the date of the incident i.e 19th November 2023, he went to club 18 located on the Ashaiman road. On the next day at about 3:00 am he decided to go home. However, when he crossed the street on the motorway to community 12, two men accosted him and took him to Tannik yard where they accused him of stealing starters in their vehicle. He repeated this in his charged statement. When the accused was called upon to answer the charge after close of prosecution’s case, his testimony changed. He testified that on the 19th November 2023, he did not go out alone, rather, he went out with his girlfriend to have fun. From his evidence- in-chief, this unamend girlfriend was with him at his supposed place where they went to have fun and could have been called to corroborate the story of the accused person. The accused however informed the court, he does not have any witnesses to testify on his behalf. A witness whose evidence on oath is contradictory to a previous statement made by him, whether sworn or unsworn is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement. Gyabah v The Republic 9 1984-86) GLR 461 cited. And Sate v Otchere (1963) 2GLR 463, Akowuah v Commissioner of Police (1963) 2 GLR 390 Therefore if a witness gives evidence contrary to his own prior written statement, his evidence should not be given much weight unless he offers an explanation as to the reason for the conflict. Upon these authorities, I find his claim of stepping out with a girlfriend to be an afterthought. As it contradicts his previous statement given to the police. In Ayidichawu v The State (1963) 2 GLR 297 at 298 holding 3 it was held that in evaluating the credibility of witnesses, the court’s duty is to determine “by reference to other evidence on record, mainly from that adduced by prosecution and in lesser degree that adduced by the defense.” This court is therefore under a duty to consider the evidence of prosecution by first subjecting it to all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the story of prosecution is credible that it should move on to the story of the defense; that whether short of believing it, the accused person’s story is reasonably probable.- see the case of Amartey v The State (1964) GLR 256 SC Such that at the end of the trial, if the case of prosecution and defense are equally balanced, it means that the prosecution has failed to prove its case beyond reasonable doubt and the accused should be acquitted. I have considered the evidence led by the prosecution particularly that of PW2, an eye-witness who testified that he saw the accused from a distance removing starters from the truck and raised an alarm. He also gave the accused a hot chase. When the accused was arrested, they found six of the starters on him, some of which had been placed in the gutter near the place they accosted the accused. The accused was given the opportunity to cross-examine PW2 but he focused only on the number of starters missing. He questioned pw2 on why they stated tin their witness statement that 12 starters were missing but could only find six (6) on him. The evidence of PW2 was corroborated in material particular by PW3 also testified that he joined in the chase of the accused and saw the accused dump the starters in the gutter. When the accused person was arrested, six (6) of the truck starters were found on him. All the prosecution witnesses were subjected to cross-examination by the accused person. The accused did not dispute that he attempted to steal the starters form the truck, he rather asked the witnesses to provided video recordings of him committing the offence. The accused person seemed to be under the impression that prosecution was required to provide evidence of him in flagrant delicto to be able to surmount the burden of proving his guilt beyond reasonable doubt. The requirement that the guilt of the accused must be proved beyond reasonable doubt does not mean proof beyond a shadow of doubt. Lord Denning J’s pronouncement on this in the case of Miller v Minister of pension (1947) 2 ALL ER 372 has been a guiding light in criminal jurisprudence. Below is how he puts it: “it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” At page 373-374 he continued that: “if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; “of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt…” The entirety of accused person’s cross-examination however yielded no positive results for the accused as the evidence of prosecution was not discredited under cross- examination. From the above reasoning, I find that the accused has not been able to raise any reasonable doubt as to the case of prosecution. CONCLUSION From the totality of the evidence on record, I find the story of prosecution believable as they have been able to prove the elements of the charge beyond reasonable doubt. The accused on the other hand was given the opportunity to subject prosecution evidence to cross-examination but could not discredit same. I therefore hold that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt. I hereby find the accused person guilty of the charge and accordingly convict him of same. PRE-SENTENCE HEARING Accused person: I plead with the court to have mercy on me. Prosecution: He is a first-time offender. SENTENCING: SECTION 18 (2) provides that “ a person who attempts to commit a criminal offense, commits a criminal offense, and except as otherwise provided in this Act, is liable to be convicted and punished as if the criminal offense has been completed.” Therefore, an accused convicted for the offense of attempt to steal, will be punished as if he completed the act of stealing. I hereby upon consideration of the prayer in mitigation of the accused, and the sentencing guidelines sentence the accused to 18 months imprisonment IHL. The right of the accused to appeal both the conviction and the sentence is explained to him. [SGD] BENEDICTA ANTWI DISTRICT MAGISTRATE ACCUSED --PRESENT PROSECUTION – INSP HANNAH TANOR