S v Acheampong and Another (B1/01/2024) [2024] GHADC 782 (5 December 2024)

INTHE DISTRICTCOURTB, SITTINGATKOFORIDUAONTHURSDAYTHE 5TH DAYOFDECEMBER, 2024,BEFOREHERWORSHIPYVONNE NELLYAMA ADJADI. CC. NO. B1/01/2024 TIME: 11:28HRS THE REPUBLIC VRS. 1. KWABENAACHEAMPONG@KAKAAKU 2.BORTEYALABIRICHMOND 3.RAUF(ATLARGE) Parties: 1st and 2nd Accused Persons Present. 3rd Accused Person at Large. Complainant Present JUDGMENT This matter commenced with the filing of a charge sheet by the Prosecution on the 28th of November, 2023. The two accused persons were charged with one count of conspiracy to commit crime, to wit stealing contrary to section 23(1) of the Criminal OffencesAct, 1960 (Act 29) and one count of stealing contrary to section 124(1) of the CriminalOffencesAct, 1960(Act 29). A1andA2 were arraigned before this court differently constituted on30th November, 2023. A3 has been at large since the commencement of the matter before the court. Judgment was due to be delivered on 15th July 2024 by the judge who presided over the hearing of the matter. Before that could happen, the venerable judge, Her HonourYvonne Gbenakuor Wussahwascalled aboveto the heavenlycourt. In the case of The Republic vs. Stephen Opuni & 2Ors(H2/25/2023) [2023] GHACA 120 (3 July 2023) the Court of Appeal ruled and this ruling was affirmed by the Supreme Court that a criminal trial must not be started de novo at all cost, the trial 1|Page judge has a discretion to either adopt or not to adopt proceedings for continuation, depending on the nature and status the case has reached and the peculiar circumstances of the case. On the authority of that case, proceedings were accordingly adopted on the 14th of November, 2024 because the trial had already ended and therewas nosignamiscarriage ofjustice will be occasioned by doing so. A1 andA2 pleaded guilty to the offence of conspiracy to steal and were convicted on their own plea, the courthoweverdeferred sentencing.A1 andA2 pleaded not guilty to the charge of stealing, and the prosecution opened its case against A1 and A2 on 25thMarch, 2024. This decision of the Court is therefore based on count two of the charges preferred against the Accused Persons which is stealing contrary to Section 124(1) of the CriminalOffencesAct, 1960(Act 29). The factsof the case aspresented by the prosecution are that on22nd November,2023, the three accused persons who are scrap dealers went to the shop of the complainant at Nsukwa, a surburb of Koforidua to sell scrap metals to him. In the course of the transaction, the complainant noticed the sack of scrap metals offered by A2 for sale contained foreign materials and so he rejected it. He however acceptedA1’s sack and paid for it. A3 who stood a distance away observing, took notice of where the complainant took out money to payA1 for his goods.A3 thenasked the complainant to return the sacks to them for reuse. It was at this point that A3 entered the room where the money was kept and made away with the amount of GHS 3,200 under the watch ofA1 andA2. The accused persons bolted and subsequently shared the booty amongst themselvesbeforeA1andA2 werearrested. BURDENOF PROOF In a criminal trial, whenever an accused person is arraigned before any court, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond any reasonable doubt. The burden of proof is therefore 2|Page on the prosecution and it is only after a prima facie case has been established by the prosecutionthat the accused personis called upontogive his side ofthe story. Section11(2) oftheEvidenceAct NRCD323provides 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 could find the existence of the fact beyond reasonable doubt”. In the case of Commissioner of Police vrs Isaac Antwi [1961] GLR 408 Korsah CJ stated that: “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 the 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 merelyraise a reasonable doubt as to hisguilt, he mustbe acquitted”. Section13(1) oftheEvidenceAct NRCD323also provides that: In any civil or criminal action, the burden of persuasion as to the commission of by a partyofacrime which is directly in issue requires proofbeyond areasonable doubt. InBanousin v. The Republic [2014] GHASC 10 (18thMarch 2014), it was decided that discharging this burden of persuasion is a serious business and should not be taken lightly. What beyond reasonable doubt means is that the prosecution must overcome all reasonable inferences favouring innocence of the accused. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond a reasonable doubt can thusbe formulated: 3|Page “An accused person in a criminal trial or action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt, he is entitled to a verdict of not guilty” The above is in relation to Article 19(2) (c) of the 1992 Constitution which says an accused personis presumed tobe innocent until he is proved or haspleaded guilty. Section 13(2) of NRCD 323 states that except otherwise 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 astoguilt. I now proceed to discuss the charge as preferred against the Accused Persons. Section 124(1) ofAct 29 provides that a person who steals commits a second- degree felony. Section 125 of Act 29 states the definition for stealing thus; a person steals who dishonestly appropriatesathing ofwhich the personis notthe owner. In Brobbey and others vs. the Republic [1982-83] GLR 608, the essential elements of stealing asdefined by Section125ofAct 29followsthat; i) The personcharged must haveappropriated thething allegedlystolen. ii) The appropriation must be dishonest. and iii) The personcharged must notbe theowner ofthething allegedly stolen. Prosecution called two witnesses. PW1 was the Complainant, Alhassan Shaibu. Under cross-examination by A1 on the 25th of March 2024, the following exchange ensued: Q: I put it to you that I was not the one who took your money or entered your roomtostealthe money.Ido notknowwhere yourmoney was. A: I am telling you that you went to where I put my money, you held the gate and I asked you what you wanted and you said you are just standing there, so I put it toyouthatyouarethe one who stolemy money. On that same day, when A2 took his turn to cross-examine PWI and the following exchange transpired: 4|Page Q: Did you see me entering your room to steal your money or was I present when the incident occurred? A: Yes, Isaw you. Q: I put it to you that you are not being truthful to the Court because you earlier stated that when you weighed my scraps and did not want it, I left the place, so why are yousaying again that yousaw me entering yourroom? A: When I rejected your goods, you said you will not leave because you are with your friends so you were waiting for them, when I entered the shop to go and bring thesack, youhaddone theoperation already. Q: I put it to you that you are being untruthful to the Court because you earlier stated that it was A1 who entered your room to steal the money but now you aresaying that I wastheone who enteredyour room. A: When I went to bring the sack, both of you entered the room and you saw me and you started running. So, I went inside to check the money there and you startedrunning. Q: I put it to you that you are being untruthful to the Court again because after paying forthe goodsyouweighed, we allleft but did notrun. A: When I paid your colleagues their money and they asked for the sack, while returning I saw that you were coming out of my room and you run away so I maintain what I said. Now in the witness statement of PW1 which was filed on 12th December, 2023, all the facts he recounted under cross-examination about A1 and A2 stealing the money individually aremissing. PW2 was Detective Inspector Patrick Amoako. He testified on the 8th of April, 2024. A2 elected not to cross-examine him while A1’s cross-examination consisted of questionsenquiring the whereaboutsofA3. 5|Page During the trial theprosecution tenderedthe following documents: 1. InvestigationCautioned Statement ofA1dated 23rdNovember,2023. markedas ExhibitA. 2. Investigation Cautioned Statement of A2 dated 24th November, 2023 marked asExhibit B. 3. ChargeStatement ofA1 dated25th November,2023marked asExhibit C. 4. ChargeStatement ofA2 dated25th November,2023marked asExhibit D. When Prosecution closed its case on 8th April, 2024, the Court determined that a prima facie case had been established against A1 and A2. The accused persons were thencalled upon toopentheir defence on7th May,2024. A1 and A2 elected to rely on their statements made to the police as their version of events as they happened. In the case of A1 this was Exhibit A and for A2 this was Exhibit Bastendered bythe prosecution. The statement of A1 narrates that after he sold his sack of scrap, he left A2 and A3 behind in the complainant’s shop. But this was not before A3 had complained of thirst and entered the room of the complainant in search of water to drink. Later,A2 and A3 joined him at Obey Spot in Asokore where A3 brought out an amount of GHS 634 and gave A1 and A2 GHS 200 each. He recounted that A3 informed them he took this money when he went into complainant’s roomand did not want to leave themoutso gavethemtheir share. A2’s narration of events was similar to that of A1 except instead of Obey Spot, the money was shared at Effiduase Community Centre and the amount given toA1 and A2was GHS165each. In Amoah v. The Republic [1989-90] 1 GLR 260, it was held that the mere presence of a person at a crime scene did not render him guilty of the crime or make him an accomplice. Even after a prima facie case was made against A1 and A2 at the close of prosecution’s case, the burden of proof did not swing from the prosecution to the 6|Page accused persons. The onus was on the prosecution to establish the elements of stealing discussed supra; The prosecution failed to prove beyond reasonable doubt that A1 and A2 appropriated GHS 3,200, which is the first element in the charge of stealing. It must be noted that all the elements quoted above to make up the charge of stealing must be proved. Failure to provetheseis fataltothe prosecution ofsame. Fromthe totality of the evidence on record and the authorities cited supra, I find that the prosecution has been unable to prove the guilt of A1 and A2 beyond reasonable doubt in respect ofcount two.I therefore acquit and dischargethem. They were convicted on their own plea on count one. The court hereby sentencesA1 and A2 to a fine of 125 penalty units, in default of which they are to serve 8 months inprisonwithtime spent in custody considered astime served. H/WYVONNE NELLYAMA ADJADI MAGISTRATE 7|Page