S v Sheers (B7/42/2024) [2024] GHADC 744 (16 December 2024)

IN THE DISTRICT COURT HELD AT BAATSONAA ON MONDAY, THE 16TH DAY OF DECEMBER, 2024 BEFORE HER WORSHIP MABEL N. L. AHELE, DISTRICT COURT MAGISTRATE C/C NO: B7/42/2024 THE REPUBLIC VS YAW SHEERS ________________________________________________________________ ACCUSED PERSON - ABSENT PROSECUTION – INSP. PATIENCE NTREH HOLDING BRIEF FOR CHIEF INSP. JOYCE NINSON FOR PROSECUTION - PRESENT. COUNSEL FOR THE ACCUSED - SOLOMON KWARTEI QUARTEY, ESQ. - PRESENT JUDGMENT 1. The Accused person was arraigned before the Court on two charges of offence. 2. Count One Statement of Offence Unlawful Entry contrary to Section 152 of the Criminal and other Offences Act 1960 (Act 29). Particulars of offence: for that you on the 24th day of August, 2024 at Collins Dauda area, Baatsonaa in the Greater Accra Region and within the jurisdiction of this Court, you unlawfully entered the building premises of one K. Ofori with the intent to commit crime. 1 16-12-2024 THE REPUBLIC VS YAW SHEERS 3. Count Two Statement of Offence Attempt to Commit Crime to wit stealing contrary to Section 18(1) & 124 of the Criminal Offences Act 1960 (Act 29). Particulars of offence: for that you on the 24th day of August, 2024 at Collins Dauda area, Baatsonaa in the Greater Accra Region and within the jurisdiction of this court, did attempt to commit crime to wit; stealing. 4. BRIEF FACTS The facts of the case as stated by the prosecution are that, the Complainant, Nicholas Otu, is a tiler and lives at Okpoi Gonno. Accused Yaw Sheers is a steel bender and lives at Collins Dauda area, Baatsonaa. The complainant is currently working at an apartment under construction belonging to K. Ofori. For some time now, the complainant and other workers has been experiencing theft of their tools and personal belonging at the apartment which they did not know the people behind it. The workers did not report the incident to the Police. Due to the series of the theft at the apartment, the owner of the place employed night security to be taking care of the apartment. On 28/08/2024 at dawn around 1:50 am, whilst the security was at post, the Accused jumped over the fenced wall, entered the yard and attempted to steal and electrical cable from the security room and was arrested. The complainant was called on phone by the workers and together they escorted the accused to the station and a report was made. The accused in his cautioned statement admitted entering into the apartment but denied the attempted stealing. After investigation. He was charged with the offence and brought before this Honourable Court. 5. THE CASE Before I proceed, I must state onset that the Accused, when first arraigned before the Court, was unrepresented. After his right was read out and 2 16-12-2024 THE REPUBLIC VS YAW SHEERS explained to him, he pleaded “not guilty” hence, the trial. In the course of the trial, when the Prosecution was to call its last witness, Counsel volunteered to represent the accused on pro bono basis. 6. May I cease this opportunity to commend Counsel for the Accused, Mr. Solomon Kwatei Quartey Esq., for a wonderful service he rendered on a clear unadulterated pure heart pro-bono basis to ensure that the wheel of justice does not grant to a halt. It is indeed beyond mountains of legal authorities to state that, Lawyers are required to perform such pro-bono cases in special circumstances such as we had in this case. The Ghana Bar Association’s code of conduct for lawyers as well as the L.I. 2324 being the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 are legal guide to regulate such services. However, many Lawyers feel reluctant to take up such matters, which understandably so, come at a cost to them; but the blessings one receives from the prayers of such persons cannot be quantified in monetary terms. I therefore, encourage every lawyer to emulate the good example set by Mr. Solomon Kwatei Quartey Esq. in this case in such special circumstances in order that the wheel of justice is not fouled. Now to the determination of the case. 7. The issues are; a) Whether or not the accused unlawfully entered the building. b) Whether or not the accused attempted to steal 8. EVIDENTIAL BURDEN It is a trite learning under Article 19(2) (c) of the 1992 Constitution, every one charged with a criminal offence is presumed innocent until the contrary is proved or he has pleaded guilty. In other words, whenever an Accused person is arraigned before any Court in any criminal trial, it is the duty of the 3 16-12-2024 THE REPUBLIC VS YAW SHEERS prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The presumption of innocence serves to emphasize that the prosecution has the obligation to prove each element of the offence beyond reasonable doubt and the accused bears no burden of proof. 9. Section 11(2) of the Evidence Act, 1972 (NRCD 323) states that, in a criminal action the burden on the prosecution of facts essential to the guilt requires the prosecution to produce sufficient evidence so that the Court can find the guilt of the Accused proved beyond reasonable doubt. It is further stated under Section 13(1) of the Evidence Act, 1972 (NRCD 323) that; “In any civil or criminal action the burden of persuasion as to the commission by the party of a crime which is directly in issue requires proof beyond a reasonable doubt.” 10. In the case of GLIGAH & ATISO V THE REPUBLIC [2010] SCGLR 870, it was held that “whenever an Accused person is arraigned before any Court in a criminal trial, it is the duty of the prosecution to prove essential ingredients of the offence charged against the Accused person beyond any reasonable doubt. see RAHIM IBRAHIM & 3 OR, V THE REPUBLIC (CRIMINAL APPEAL NO, H2/2/201, DATED 18TH JULY,2017. 11. INGREDIENTS OF THE OFFENCE OF UNLAWFUL ENTERY Sections 152 and 153 of the Criminal Offences Act, 1960 (Act 29) provides; s. 152. Unlawful Entry “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second-degree felony”. s. 153. Explanation as to Unlawful entry 4 16-12-2024 THE REPUBLIC VS YAW SHEERS “A person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right, or by the consent of any other person able to give the consent for the purposes of which that person enters”. 12. Therefore, under section 152 of the Criminal Act, 1960 (Act 29) for the Prosecution to succeed in proving the offence of unlawful entry, they are required by law to prove the following: (1). That the Accused entered the building, and (2). He did enter the building without the exercise of his own right or a consent given to him by a person who had authority to give consent 13. INGREDIENTS OF THE OFFENCE OF ATTEMPT TO COMMIT A CRIME Sections 18(1) and 124(1) of the Criminal Offences Act, 1960 (Act 29) provides; s. 18. (1) “A person who attempts to commit offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent (a) By reason of the imperfection or other condition of the means, or (b) By reason of 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. 14. Prosecution, to succeed in proving the offence of attempt to steal, is required to prove that: (1). The Accused intended to steal, and 5 16-12-2024 THE REPUBLIC VS YAW SHEERS (2). The Accused took certain steps towards the commission of the offence of stealing. 15. SUMMARY OF TESTIMONIES OF PROSECUTION’S WITNESSES Prosecution in proving its case called three (3) witnesses. 16. PW1 (complainant) testified that he works as a tiler in the building the Accused entered. He further testified that at about 1:50am, he was called by PW3 on phone to come over when PW3 arrested the Accused. According to him, when he questioned the Accused why he was in the building, the Accused responded that he came to see one of the workers in the building but could not mention that person’s name. He testified under cross-examination that the Accused does not work in the building. 17. PW2 is the investigator, D/Insp Desmond Akweteh Olongo. He testified that on 24th August 2024, PW1 and PW3 brought the Accused person along with electrical cables and made a report that the Accused entered the apartment and attempted to steal the cables. His investigations revealed that the Accused person once worked with a master as a steel bender during the start of the construction of the building. His further investigations also revealed that the Accused lives in the same area where the building is located. 18. PW3 is the security man deployed as a night guard of the building. It was his testimony that around 1:30 am, he heard some footsteps on the compound. He then followed the person and saw the Accused person entering the security room and trying to untie the electrical cables in the room. According to him, he arrested the Accused and called PW1 to come over if he could identify him as one of the workers. When PW1 could not identify him as such, they reported the matter to the police. 19. Prosecution tendered in the following Exhibits in support its case; 6 16-12-2024 THE REPUBLIC VS YAW SHEERS Exhibit ‘A’ – Written statements of PW1 given to the Police. Exhibit ‘B’ - Investigation caution statement of the Accused person. Exhibit ‘C’ - Charge statement of the Accused person. Exhibit ‘D’ – Written statements of PW3 given to the Police. 20. THE DEFENCE OF THE ACCUSED Upon a prima facie case made against the Accused, he was called upon to open his defence. The Accused elected to make a statement from the dock and was not cross-examined on his evidence as provided by section 174 of Act 30 and sections 63 (2) and 96 (1) of the Evidence Act, (NRCD 323). He called no witness. His explanation was that, he did not enter the building and had no intention to steal. According to him, he works in the building but that night he stood outside the building and called one of the workers to come out when he was apprehended by PW3 and later handed over to the police. 21. Now the question is, does the defence of the Accused raise a reasonable doubt to prosecution case to secure him acquittal? 22. EVALUATION OF EVIDENCE 23. It was Prosecution’s case that the Accused entered the building unlawfully and attempted to steal. It was their case that the Accused was seen trying to untie the electrical cables in the building when he was apprehended by the night security guard and subsequently brought to the Police. In the case of Kanjarga v. The State [1965] GLR 479-483, per Ollennu JSC: “To constitute the offence of unlawful entry, the entry must be made with a purpose or intent to commit a crime. It follows that in addition to proving entry, the prosecution, to succeed, must prove that intent to commit a crime in the premises existed at the time of entry and was the purpose for the making of the entry”. 7 16-12-2024 THE REPUBLIC VS YAW SHEERS 24. Clearly, the Prosecution has merely displaced the presumption of innocence but the guilt of the Accused is not put in beyond reasonable doubt until the accused’s evidence has been considered. See the Supreme Court of the State v Sowah and Essel [1961] GLR (Pt II) 743. 25. The Accused in his defence stated that he did not enter the building and had no intention to steal from the building. According to him, he works in the building and only passed by to collect the contact number of his master. So, he stood outside the building to call out one of the workers. PW2 testified that, his investigations revealed that the accused worked in the building and also stays neighbourhood where the said building is located. 26. As a means of verification of the explanation by accused, I have carefully perused the statements of the accused on caution given to the Police contained in Exhibit ‘B’ of Prosecution. The statement therein was virtually consistent with the explanation given by him from the dock. Thus, he stated in Exhibit ‘B’ of Prosecution that, on that night, he was on his way home from town and decided to pass by the building to collect the phone number of his master. The other workers pulled him to the yard and started beating him up but later, he was handed over to the Police. 27. Inconsistencies of Prosecution’s evidence According to the Prosecution, the building in which the accused entered contained in it electrical cables. Accused was seen by PW3 untying the cables when he was apprehended by PW3 who then called PW1 to come over. PW3 however testified under cross- examination that he was not the one who called PW1 but one of his “children”. Again, in Exhibit “D” of Prosecution, PW3 stated therein that he, together with PW1, brought the accused to the Police station with electrical cables. He however, contradicted himself as well as the testimony of PW2, the Investigator, when he stated under cross-examination 8 16-12-2024 THE REPUBLIC VS YAW SHEERS that no electrical cables were brought to the Police station when the accused was handed over to the Police. 28. I find PW3 testimony not worthy of credit to safely rely on. It was held BUOR V THE STATE [1965] GLR 1, SC, that if a witness has previously said or written something contrary to what he had testified at the trial, his evidence should not be given much weight. 29. Graciously, the Supreme Court has settled on three stages that every court had to go through in determining the guilt of an accused at the close of a criminal trial. Appau, JSC in the case of FAISAL MOHAMMED AKILU V THE REPUBLIC, CRIMINAL APPEAL No. J3/8/2013 dated 5th July, 2017 restated the law as held in the case of LUTTERODT v C.O.P [1963] GLR 429 as follows: “Where the determination of a case depends upon facts and the court forms an opinion that a prima facie case has been made, the court should proceed to examine the case for defence in three stages; i. Firstly, it should consider whether the explanation of the defendant is acceptable. If it is, that provides a complete answer and the court should then acquit the defendant; ii. 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; if it should find it to be, the court should acquit the defendant; and iii. 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. the 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”. 9 16-12-2024 THE REPUBLIC VS YAW SHEERS 30. I have considered the explanation of the Accused, including the statement given to the Police on caution, together with Prosecution’s case and I am not satisfied that the guilt of the Accused has been established beyond reasonable as required by law. 31. On the totality of the evidence adduced at the trial, the accused has successfully created a doubt in the prosecution’s case as required of him by the provisions under sections 11(1) and 17 of the Evidence Act, 1975 (NRCD 323). 32. I find that Prosecution has failed to establish beyond reasonable doubt the guilt of the accused. 33. With such a doubt created in the prosecution’s case, I find the accused person not guilty of the offences charged and therefore on the principle restated in FAISAL MOHAMMED AKILU V THE REPUBLIC, (supra), the accused person is accordingly acquitted and discharged on both charges. SGD H/W MABEL N. L. AHELE (MAGISTRATE) 16/12/2024 10 16-12-2024 THE REPUBLIC VS YAW SHEERS