S v Nyarko (B7/134/2024) [2024] GHADC 773 (18 November 2024)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) DISTRICT MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA ON MONDAY THE 18TH DAY OF NOVEMBER, 2024. ------------------------------------------------------------------------------------------------------------------ SUIT NO. B7/134/2024 THE REPUBLIC VRS. BISMARK NYARKO ------------------------------------------------------------------------------------------------------------------ Time: 8:07am. Accused Person: Present. Complainant: absent. Sgt. Kofi Karikari 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 Ahmed Braimah, Businessman resident of Osu-Re, Accra whilst Accused Person is a driver and resident of Circle, Accra. On 27th April, 1 2024 Accused Bismark Nyarko was recruited from Bola Help Agency Company located at Teshie, Accra as a house help by the complainant and had worked with the complainant for one week. On 5th May, 2024 Accused sought permission to attend a church service and left. Complainant also left for church service with his wife. Upon their return, complainant detected theft of his Diesel Generator and a 17-plate car Battery valued at Fifteen Thousand Ghana Cedis (GH¢15,000.00) and Eight Hundred Ghana Cedis (GH¢800.00) respectively. Complainant highly suspected the Accused and made a formal complaint to Bola Help Agency. On 11th June, 2024 at 12:20pm, complainant together with his wife saw accused at Tudu, thereafter arrested him to Central Police Station. During interrogation and in his Cautioned Statement, Accused Person admitted the offence and told Police that he did steal the said items and sold them to one Mohammed who is at large. After investigation Accused Person was charged and put before this Honourable Court. Accused Person pleaded not guilty and disclosures were served on him and Prosecution proceeded to make its case. At the end of prosecution’s case, Accused Person was made to open his defence and was cross examined accordingly after the court found that a prima facie case had been made against him. 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.” “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.” 2 “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 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.” 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 3 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 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 should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the Accused 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 upon 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: “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), 7 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.” 4 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 statement, the evidence given by PW1 and PW2. The question though is, has the Accused Person succeeded in raising a reasonable doubt? Under cross examination of PW1, Accused Person tried to put his case across by stating that the Complainant did sell the generator and battery to one Mohammed. This is because the said generator was not in working order and was to be sold as scrap. From the evidence Accused Person was in the employ of Complainant for under a month. In his Evidence-in- chief Accused Person stated that he did not steal the generator but actually the said generator was sold to one Mohammed for GH₵ 1000 which rather than handover to the complainant sent the said money to his sick child’s mother for care of the said child. His exact testimony is reproduced below: “On 19th May, 2024 I was then with complainant. On 18th May, 2024 complainant informed me of a faulty generator to sell. The buyer to come who told him he will not be available. Complainant told buyer to come on 19th May, 2024. Complainant told me he was going to church if buyer comes I should receive GH¢1,000.00 from him which I did. At the time my child was ill so I decided to send the money for my child's care and inform complainant on his return from church. Before then I had told complainant that my child was ill but he asked me to wait till end of month when my salary is paid so I send money for my child's care. When I informed complainant on his return that I have sent the money he said he would cause my arrest. I was afraid when he said that so I decided to look for a job and settle the debt. I had a car to work with and had an amount of GH¢300.00 which I brought to complainant but he refused to accept it. The complainant then asked me to sit in his car to come to town and when we got to town he handed me over to Police. Not that I stole the machine but it was the money I used. That is the end of my defence.” Under cross examination, the following ensued (the relevant portions are reproduced below); Q. Kindly take a look at exhibit 'A". In your Caution Statement you admitted to the offence in the presence of an independent witness? 5 A. It is not true because it was not read to me and I am illiterate. Q. I put it to you that the statement was read to you and you appended your signature? A. Yes, I gave my statement but what I told him is not what was written. From the records, the Accused Person is challenging the validity of his caution statement. He denies that he admitted to the offence and that the statement was not read to him. In the charge statement, he stated that he relied on the statement he previously gave in the caution statement. To put this situation to rest the court ordered a mini trial on 21st October, 2024. The mini trial showed that the Accused Person did not deny that a statement was made but rather challenged the accuracy of the said statement which is a question of fact and not law see Asare alias Fanti vrs. The State [1964] GLR 70, SC. The Accused Person’s caution statement following this was maintained in evidence. In determining therefore whether a reasonable doubt has been raised, I shall evaluate the testimony of the complainant, the investigator and Accused Person and consider all other relevant details such as the demeanour of the witnesses and their appearances which is very relevant to this case. The Accused Person when cross examining the complainant said as follows: Q: I put it to you that I carried the generator with you on 18th May, 2024 to my room and you offered to sell it to the buyer for GH¢1,000.00? A: It is not true, 2 of us could not have carried the generator down. The generator cost about GH¢15,000.00 now so it does not make sense for me to sell it for GH¢1,000.00. In observing the appearances of the Complainant, I saw that his gait was rather lopsided and he is blind in one eye. I found it difficult to imagine that the complainant could carry anything of considerable weight at all even with the help of someone else. Another thing that struck me was that the Accused Person claims that he did not steal the generator but rather sent the proceeds from the sale of the generator to his sick child. Assuming that Accused Person’s version of events is accurate, that does not absolve him from the charge of stealing. In section 125 supra stealing is simply appropriating something of which you are not the owner. To simplify a long story, the Accused Person admitted to stealing money from the 6 complainant. However, since Accused Person denied confessing to stealing the generator in his caution statement, which statement was taken on 12th June, 2024, why then did he rely on the said statement in his charge statement taken on 16th June, 2024? I would like to think that a reasonable person, whose statement was not read out to him would like to have same read out again before relying on same. Again, it seems to me that the Accused Person carefully planned the whole event and gave his testimony in court as a back-up plan knowing there was a possibility of being found out. From the outset he knew exactly what he was doing, and concocted the story about his child being ill. Having brought that up he could have had whoever received the money for his child’s wellness to be his witness but no such offer by him came through. On the sum of the evidence before me, I find that the evidence-in -chief of the Accused Person was an afterthought and he has not successfully raised a doubt in prosecution’s case. If anything at all, he has made his situation worse. He has tried to claim that it was the money he stole and not the generator per se. Perhaps the value of the generator compared to the amount he claims to have stolen is larger and the amount is more affordable. I do not know what difference he assumed this would make except to mitigate the sentence. In conclusion, on the sum of the evidence, the Accused Person has not been successful in discharging the burden of raising a reasonable doubt in the prosecution’s case. I find the Accused Person guilty of stealing the generator and thus convict him accordingly. I have considered the following in passing the sentence: a. How long Accused Person has been in custody b. The fact that he is a first-time offender c. The value of the generator d. The fact that stealing is rampant in the Ghanaian society e. The fact that the theft was well thought out and successfully executed Considering all these factors, I hereby sentence the Accused Person to 365 days in prison custody. Accused Person is to restore the generator or the value thereof to complainant upon his release. 7 (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) (DISTRICT MAGISTRATE) 8