S v Acolatse (B7/13/2023) [2025] GHADC 205 (19 March 2025)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA, ON WEDNESDAY, THE 19TH DAY OF MARCH, 2025. ----------------------------------------------------------------------------------------------------------- SUIT NO. B7/13/2023 THE REPUBLIC VRS. BERTHA ACOLATSE ----------------------------------------------------------------------------------------------------------- Time: 8:05 am. Accused Person present Complainant present Legal Representation: D/Inspr. Luke Taylor for the Republic JUDGMENT The Accused Person has been charged with stealing contrary to Section 124 (1) of Criminal Offences Act, 1960, Act 29. The facts of the case, that were read out by Prosecution and according to Prosecution at the commencement of the trial, are that Complainant Love Larnor and accused Bertha Acolatse are all traders at Kantamamto. On 10th August, 2022 at about 3.00pm complainant went to Accused's shop to buy panties. Complainant was holding two polythene bags in both hands and a school bag hang on her chest when she entered into Accused's shop. Accused Person collected the polythene bags and placed them beside her for the complainant to be able to make selection of the panties. Complainant 1 after making her selections from the shop now asked the Accused Person to give her the polythene bags she kept in her custody to take her purse from it and pay her. Accused Person turned to pick the polythene bags but the polythene bag was nowhere to be found. The complainant then told the Accused Person that the polythene bag contains a purse which also contains cash the sum GH¢850.00, Samsung Galaxy A32 mobile phone which valued GH¢1,300.00, ECOWAS card, and voters ID card. According to her also, the polythene bag contained, food stuffs value GH¢32.00; eight pieces of used ladies straight dress and nine pieces of ladies tops also value GH¢130.00. All make the total of GH¢2,312.00. On 11th August, 2022 the complainant came to the Police station lodged a complainant and Accused Person was arrested. During investigation, Accused Person admitted taking the polythene bag from the complainant and keeping it at her selling place for safe custody. Accused Person was later charged with the offence and brought before this court. Accused Person pleaded not guilty and disclosures were served on her; Prosecution proceeded to make its case. At the end of prosecution’s case, Accused Person was made to open her defence and was cross examined accordingly after the court found that a prima facie case had been made against her. It must be noted that Accused Person was self-represented. THE BURDEN OF PROOF THE LAW AND THE EVIDENCE REQUIRED When it comes to criminal offences, the standard of proof is stipulated in the Evidence Act (NRCD 323) in at least three sections; Sections 11(2), 13(1) and 22 as follows; “11(2) 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 reasonable doubt.” 2 “13(1) (1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” “22 In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon, in the case of a rebuttable presumption, the Accused Person need only raise a reasonable doubt as to the existence of the presumed fact.” In the case of THE REPUBLIC v. RICHARD APPIAH (2017) JELR 107131 (HC) with reference also to the book Essentials of The Ghana Law of Evidence by S.A Brobbey, the standard of proof is extensively discussed as follows; “Proof beyond reasonable doubt does not mean that there should be no doubt whatsoever in the case presented by the prosecution. It means that by the end of the trial, the prosecution must prove every element of the offence or the charge (but not all the facts) and show that the defence is not reasonable…The consideration for the principle of proof beyond reasonable doubt can be illustrated this way: If there is any element of the charge which is essential for the accused to be convicted, that element should be established to the satisfaction of the trier of facts in such a manner that a reasonable mind could conclude that the accused is guilty of the offence or that the existence of the facts constituting the charge is more probable than its non- existence.” In the case of OSEI v. THE REPUBLIC [2009]24 MLRG 203, C.A; it was held, that “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Court would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible, but not at all probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 3 The evidence is assessed by applying, the three-tier test to each of the elements of a crime. In the case of THE REPUBLIC v. FRANCIS IKE UYANWUNE [2013] 58 GMJ 162, C.A, it was held that; “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the Accused Person to open his defence and in so doing, he may run the risk of non- production of evidence and/ or non- persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the Accused Person should be acquitted, and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the Accused Person should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the Accused Person is guilty of the offence, the court must convict him. This test is usually referred to as the three- tier test.” APPLICATION AND ANALYSIS In applying the above authorities, the burden of proof shifted upon the Accused Person, upon being called to answer to the charges. However, the burden carries a lower standard than that of the prosecution, that is, of only raising reasonable doubt. To prove the charge of stealing the following elements must be proved beyond reasonable doubt as found in its definition in Section 125 of Act 29: 125. A person steals who dishonestly appropriates a thing of which that person is not the owner. Therefore, for Prosecution to prove the offence of stealing, the case of AMPAH V. THE REPUBLIC (1977) JELR 67423 (CA) held as follows: 4 “Therefore, to establish the offence the prosecution are required to prove only the three elements of: (i) dishonesty; (ii) appropriation; and (iii) property belonging to another person: see Republic v. Halm and Ayeh-Kumi, Court of Appeal (full bench), 7th August 1969, unreported; digested in (1969) C.C. 155 and also Ampah v. The Republic [1976] 1 G.L.R. 403.” Again, Abban J in the case of Ampah v. The Republic [1976] 1 G.L.R. 403 held: “If these three essential elements are proved to the satisfaction of the court, the court will be bound to convict unless the accused is able to put forward some defence or explanation which ‘can cast a reasonable doubt’ on the case for the prosecution.” On the facts, there is no doubt that prosecution led evidence to establish the three elements. That is, a prima facie case was established looking at the caution and charged statements, the evidence given by PW1 and PW2. The question though is, has the Accused Person succeeded in raising a reasonable doubt? The complainant stated in her witness statement that upon coaxing from the Accused Person, she gave her, her polythene bag which contained assorted items including her Samsung phone, some money and some other items to put down for her, for her to freely move about and select what was needed. Under cross examination of PW1, Accused Person asked the following questions: Q: Do you remember you came to my shop, you came there in the morning around 9:00am, then 11:00am and later in the afternoon, you came there at 3:00pm? A: Yes there were instances that she saw me three times. The first time I saw the items that you were selling. So I told you I will come back and purchase and I left. the market has been divided into sheds so I went around in circles and bumped into you again and you asked me if l have come and 1 told you l am lost so I will come back and so I left to take care of the main reason why I was in the market so I bought few stuff and I remembered to go back there to your shop but I couldn't locate it so I asked one woman and she assisted me and brought me to your shop after I described you to her. The first instance when I got there I had my back pack in front of me with my purse inside but when I came to your shop finally my backpack was at my back and so when I ... you wanted to take my stuff from me but I 5 didn't want to give them to you but you insisted and so I gave in and gave you two (2) bags but took one bag back later and then saw you pass the back of your stall and I assumed you were carrying the bag for safe keeping like you said. I realized you didn't have much so I picked a few things which were panties. I looked through the bag I had and couldn't see my purse so I asked you to give me the other bag and you stood there looking at me that you couldn't find my bag. Q. Do you know Kantamanto? A. Yes, I know portions but I don't know your side. Q. the way Kantamanso is structured and the sleds are arranged where did I pass with your bag? A. I don't know where you passed. You are the best person to find it. At the police station you denied and when they pestered you, you admitted that you personally took it from me. The complainant’s witness statement and statement to the police did not include this crucial detail of the Accused Person leaving the store to take the bag somewhere. When pressed further on this the following was asked: Q: Did I move because we were both there and I didn’t move? I want to ask you. A: She moved. You made a move to go and keep the bag safe by passing. When called to open her case, the Accused Person said as follows: A: It was that Wednesday morning after I have displayed my wares the complainant said she wanted to buy some panties and wanted to go and sell it so I should reduce the price for her. After speaking with her, the complainant said she will go and come back. Between 11:00 am and 12 noon the complainant came again, again the complainant said that she will come back later. Around 3:00 pm the complainant came again and there was a back pack at her back and was holding a polythene bag. She came with another woman who appeared to be leading complainant to my place. She told me she has now come and I directed her to where to select the items. So she selected six panties and I asked that you said you are going to sell it so is it only six that you are going to sell. So I then told the 6 complainant that if it is only six panties she will buy then I cannot reduce the price for her. Then suddenly she said her polythene bag, I told her that you are sitting on a chair so how come that you can’t find your polythene bag then she told me I should not worry because the polythene bag contains watermelon and other foodstuffs. So I told her that nobody steals from this shop because there is another woman close to me and nobody steals from here our place is so tight.… When cross examined she said as follows: Q: In your caution statement you stated that the Complainant came to your shop for window shopping three times is that so? A: Yes that is so. Q: The third time that the Complainant came to your shop you collected her polythene bag that you want to keep it for her is that so? A: That is not so. Q: I am referring you to your caution statement (read out). A: It is so but I have an explanation: I did not collect the bag to keep it somewhere for the third time she came I offered her a seat with her handbag on her lap and the polythene bag beside where she was sitting. The Accused Person has consistently denied ever keeping the polythene bag somewhere other than merely setting it down. Considering the fact that the complainant and Accused Person were together during the entire period of the transaction, I am doubtful that it was Accused Person who stole the said polythene bag. I am also doubtful because complainant never mentioned Accused Person left the stall in her statement to the police. In conclusion, Accused Person has successfully raised a reasonable doubt in this court’s mind as to her guilt or lack thereof in this case of theft. For this reason, I find Accused Person innocent and is thus acquitted and discharged. 7 (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS) (DISTRICT MAGISTRATE) 8