REPUBLIC VRS. ASHIADEY (CC/15/2024) [2024] GHADC 661 (24 October 2024)

IN THE DISTRICT COURT HELD AT ANLOGA IN THE VOLTA REGION ON THURSDAY THE 24TH DAY OF OCTOBER, 2024. BEFORE HER WORSHIP REJOICE ASEYE GADAGOE, DISTRICT MAGISTRATE CASE NO.: CC/15/2024. THE REPUBLIC VRS RICHARD ASHIADEY JUDGMENT: STATEMENT OF OFFENCE: The Accused was arraigned before this Honourable Court on 10/01/2024; and was charged with the offences stated below: 1. Unlawful entry contrary to SECTION 152 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29). 2. Stealing contrary to SECTION 124 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) AS AMENDEDBY PARA. 4 OF NLCD 398 OF 1969. PLEA OF ACCUSED: Accused, MR. RICHARD ASHIADEY, pleaded NOT GUILTY to the Counts, which necessitated a trial. Trial eventually commenced on 21/02/2024. CASE OF THE PROSECUTION: The facts as presented by the Prosecution are that, the Complainant (PW1), MADAM VICTORIA ESINAM DZIDZIENYO, is a trader and resides at Kportorgbe, Anloga. Accused, Richard Ashiadey, is a corn mill operator and also resides at Kportorgbe, a suburb of Anloga. On 13/12/2023 at 10:30pm, the Complainant was in her bedroom when she heard some footsteps in the hall. The Complainant quickly picked torchlight and reflected it in the direction of the noise and there, she saw the Accused person carrying her electric blender. Out of fear and 1 fright, the Complainant raised alarm and Accused upon sensing danger carried the electric blender and took to his heels leaving behind his pair of slippers. Few minutes later, the Complainant went out of the room and saw the Accused on top of her fence wall. Thus, the Complainant raised alarm and her neighbours, including the Assemblyman of the area, Hon. Senanu Bekli, came to her aid. Incidentally, a man by name GAMELI corroborated the Complainant’s story, and informed Police that the Accused by-passed him on the Accused’s way home from the crime scene. Hon. Senanu Bekli, took the Complainant to the Police Station, Anloga, where she lodged a formal complaint. On 15/12/2023 around 1:00pm, youth of Anloga arrested and brought Accused to the Police Station and he was detained for investigation. According to Police, the Accused is notorious for stealing. On one occasion, his own brother packed his looted items in a sack and brought the Accused together with the stolen items to the Police station. Strangely, accused never got convicted. DEFENCE OF THE ACCUSED: Prosecution closed their case on 5/03/2024; and Accused was called upon to open his defence. Accused eventually filed his witness statement on 6/07/2024. In his defence, Accused stated that he was in his house on the night of the incident. That the Complainant has heard he is a thief and so wanted to make a scape-goat out of him. Accused attempted to educate the Court that the best way to catch a thief, is to grab him. He stated in his witness statement as follows; “A thief must be caught red-handed. I did not steal the Complainant’s blender. Complainant just used me as scape-goat, had me arrested, detained and wasted my productive months in the police cells which I should use to work and make money to feed my wife and children”. Accused denied ownership of his slippers which was exhibited by the Police. He claimed the slippers were not manufactured for him alone. By some coincidence, the Accused confirmed that he was arrested by Kpoyo in the market with the aid of other youth; and they took the Accused to the Police station. 2 EVALUATION OF THE EVIDENCE: This is the third appearance of Accused before this Honourable Court. The first instance was in case number: B7/17/2023. Same charges were filed against the Accused. Accused was arraigned before this Court on 25/01/2023. In the course of proceedings, the Complainant lost her husband, and declared she was no longer interested in prosecuting the case. Her retrieved items were however restored to her, and Accused actually thanked her. Then Accused was somehow discharged on 2/03/2023 for want of prosecution. The 2nd case numbered: CC/16/2023; was also filed on 26/07/2023. On that occasion, the prosecution withdrew the charges against the Accused under bizarre circumstances. Accused appeared excited and thanked the Complainant again. Accused was discharged on 21/02/ 2024, for want of prosecution without even executing a Bond because trial did not conclude.. In LUTTERODT v C.O.P. [1963] GLR 429– SC; the honourable Court laid down on three stages that every court had to go through in determining the guilt of an accused at the close of a criminal trial. The Court held that: “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 the defence in three stages;  Firstly, it should consider whether the explanation of the defendant is acceptable. If it is, that provides complete answer and the court should then acquit the defendant;  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,  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.” 3 SECTION 10 OF THE EVIDENCE DECREE, 1975 (NRCD 323), defines the burden of persuasion as follows: "(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of probabilities or by proof beyond a reasonable doubt." SECTION 11 (3) OF THE EVIDENCE DECREE, 1975 (NRCD 323), states as follows: "(3) In a criminal action, the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt." The ingredients of unlawful entry have been provided in SECTION 152 OF THE CRIMINAL OFFENCES ACT, 1960 (Act 29); as follows: “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.” Stealing has also been defined in SECTIONS 124 (1) AND 125 OF THE CRIMINAL OFFENCES ACT, 1960 (Act 29) as amended. The law provide thus: “124(1): A person who steals commits a second-degree felony.” “125: A person steals who dishonestly appropriates a thing of which that person is not the owner.” 4 The Honourable Court did not find the Accused education useful. Not all thieves are caught red-handed. Some in rare cases are even convicted based on circumstantial evidence. CONVICTION: Accused has been found guilty as charged on both Counts. SENTENCES: Count One:  THE CONVICT HAS BEEN SENTENCED TO SIX (6) MONTHS IN PRISON. Count Two:  THE CONVICT HAS BEEN SENTENCED TO TWELVE (12) MONTHS IN PRISON. THE SENTENCES SHALL RUN CONCURRENTLY. SGD. HW REJOICE ASEYE GADAGOE DISTRICT MAGISTRATE 24/10/2024.  Representation: - DETECTIVE CHIEF INSPECTOR RANSFORD KWATEI PROSECUTED FOR THE REPUBLIC. - ACCUSED NOT REPRESENTED. 5