REPUBLIC VRS ILIASU (NR/BB/DC/B/07/2024) [2024] GHADC 415 (18 September 2024)

IN THE DISTRICT COURT HELD ON THURSDAY THE 18TH DAY OF SEPTEMBER, 2024 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. CCNO.NR/BB/DC/B/07/2024 THE REPUBLIC VRS DOKURUGU ILIASU INTRODUCTION FACTS 1. The brief facts of the case are that the Accused Person, Dokurugu Iliasu who resides in Bimbilla in the same house with the Complainant, Alhassan Hardi on the 20th day of August, 2024 was arraigned before this court on the charge of Stealing: contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). It was alleged that Apsonic Aloba motor bike with registration number M-22- GD 8034 which belonged to Alhassan Hardi had been stolen from complainant’s verandah. The complainant then broke the news of his stolen motor bike to all occupants of the house. As such, the landlord confirmed to have spotted the Accused person at 1:00 am the same day in the compound when there was power outage in Bimbilla Township. But the Accused claimed he was only there to drive away stray goats from the compound. Upon suspicion the Accused was arrested and handed over to the police for investigation. Subsequently, the Accused was charged with the offence of stealing and arraigned before this Honourable Court. 1 | P a ge STATEMENT OF OFFENCE 2. Stealing: contrary to section 124(1) of the Criminal Offences Act, 1960(Act 29). PARTICULARS OF OFFENCE. 3. DOKURUGU ILIASU, aged 25 years, Mason. For that you on 13rd day of August, 2024 at about 1:00 am in Bimbilla in the Bimbilla Magisterial District and within the jurisdiction of this court, did dishonestly appropriate one Apsonic Aloba motor bike with registration No. M-22-GD 8034 valued at GHȼ11,000.00 the property of Alhassan Hardi. 4. Accused pleaded not guilty to the charge preferred against him when his plea was taken, amounting to total denial of the allegations leveled against the Accused Person. This plea of not guilty by the Accused casts a burden on the prosecution to prove beyond reasonable doubt that the Accused Person really stole the complainant’s Apsonic motor bike from the complainant’s verandah or at least establish a prima facie case against the Accused to warrant him being called upon to open his defence at the close of the prosecution’s case. BURDEN OF PROOF IN CRIMINAL CASES 5. Section 11 (2) of NRCD 323 states 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. 2 | P a ge 6. Also, section 15 (1) of the Evidence Act, 1975 (NRCD 323) provides that “unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue.” 7. Section 22 of the Evidence Act, 1975 (NRCD 323) states that: “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…” 8. In holding 13 of the case of KWABENA AMANING TAGOR V THE REPUBLIC, SUIT NO. ACR 4/2007 the court said: “Prima facie evidence is nothing other than evidence that can lead to the conviction of the accused if the accused leads no evidence to rebut the presumptions raised in it. The standard required in establishing a prima facie case is therefore not lesser than the standard required in establishing or proving a case beyond reasonable doubt... Prima facie evidence is evidence, which on its face or first appearance without more could lead to a conviction if the accused fails to give reasonable explanation to rebut it. It is the evidence that the prosecution is obliged to lead if it hopes to secure conviction of the person charged.” 9. In the case of COMMISSIONER OF POLICE VRS. ISAAC ANTWI [1961] GLR 408 where 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 of the prosecution, an explanation, of circumstances peculiarly within the knowledge of the accused is called for. 3 | P a ge The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted.” 10. Section 173 of the criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides that: “Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit the accused.” 11. Then Section 174(1) of Act 30 provides that: "At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call upon the accused to make defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement." 12. The cumulative effect of sections 173 and 174(1) of Act 30 is that if at the close of the prosecution’s case, the prosecution is unable to lead prima facie evidence to prove the elements of the offence then the court is under a mandatory duty to relieve the accused person from opening his defence, and acquit and discharge the accused person. The accused person will only be called upon to open his defence if the evidence led by the prosecution at the close of its case, prima facie proves all the elements of the offence. EVALUATION AND ANALYSIS. 13. The law on stealing as postulated in Act 29 defines stealing in section 125 as follows: 4 | P a ge “A person who steals dishonestly appropriates a thing of which that person is not the owner.” 14. The Republican Constitution, 1992 of Ghana under Article 19(2) (c) states that: “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.” 15. As such for the prosecution to succeed in establishing a prima facie case of the crime of stealing against the Accused as in the instant case, the prosecution shall prove that the Accused, Dokurugu Iliasu stole the Apsonic motor bike, Dishonestly appropriated the bike without the consent of the owner (Alhassan Hardi) and that the Accused is not the owner of the bike. 16. The above constitute three main ingredients of the offence of stealing preferred against the Accused that the prosecution shall establish each ingredient to enable them make a prima facie case against the Accused. The failure of prosecution to prove at least one of such ingredients of the offence of stealing will lead to the acquittal and discharge of the Accused. 17. The prosecution called three witnesses who testified in support of prosecution’s case against the Accused. These witnesses include the Complainant, Alhassan Hardi (PW1), the landlord, Shahadu Abukari (PW2) and the investigator, No.48652 D/CPL Prince Minadzi (PW3). 18. It is the case of the prosecution that on 13/08/2024 at about 1:00 am the Accused dishonestly appropriated one Apsonic motor bike with registration No. M-22-GD 8034 valued at GHȼ11,000.00 the property of Alhassan Hardi (Complainant 5 | P a ge herein). The Accused is highly suspected to be the person who stole the motor bike because Accused was spotted at about the hour of 1:00 am by his landlord (PW2) in the compound of the house where the complainant, PW2 and the Accused live when there was power outage in Bimbilla. 19. The totality of evidence put up by the prosecution is premised on Circumstantial Evidence and Confession Statement which evidence point to the Accused person as the person who stole PW1’s motor bike. 20. In the book Practice & Procedure in the Trial Courts & Tribunals of Ghana at page 168 Justice S. A. Brobbey (Rtd. Justice of the Supreme Court) explained circumstantial evidence as follows: “Circumstantial evidence means evidence not of the real facts to be proved, but of other facts from which the disputed facts may be presumed or referred.” 21. In the instant case the Accused was not caught with the Apsonic motor bike. No other person has been seen with the motor bike let alone to arrest and charge that person with the offence of Dishonestly Receiving under section 146 of the Criminal Offence Act, 1960 (Act 29). 22. What other facts or circumstances that point to the Accused and the stolen motor bike? PW1 in his Witness Statement testified that on 13/08/2024 he came out of his room and did not find his motor bike which he parked in his verandah. PW1 quickly informed PW2 of the missing motor bike. This possibly means that the motor bike had been stolen. And as at the time of scripting this judgment the said stolen Apsonic motor bike with registration No. M-22-GD 8034 has not been retrieved. 6 | P a ge 23. The testimony of PW2 is that on the same day, and prior to the complaint made by PW1 to him, he (PW2) saw the Accused person at 1:00 am in the compound of the house when there was power outage. When PW2 asked what Accused was doing, Accused told PW2 that a friend came to him and he escorted him. When PW2 was not convinced of the explanation given by the Accused, after PW1 had reported of the theft of his motor bike, PW2, in the presence of all the occupants of the house, called the Accused and questioned him but Accused said he was out of the house at that moment only to drive out stray goats. Further, PW2 testified that Accused confessed to them for stealing the complainant’s motor bike and mentioned his friend ‘Fresh G’ as his accomplice. 24. The last prosecution witness is the investigator (PW3) testified by relying on his Witness Statement filed on 02/09/2024. Also, PW3 tendered in evidence the following documents which are marked as exhibits ‘A’, ‘B’, ‘C’, ‘C1’, ‘D’ and ‘E’, respectively: (i) Investigation Caution Statement of the Accused dated 14/08/2024. (ii) Charge Statement of the Accused dated 20/08/2024. (iii) Apsonic motor bike document issued by DVLA (Form C). (iv) Apsonic motor bike document issued by DVLA (Form A). (v) Change of ownership document to DVLA. (vi) Ghana Revenue Authority documents. 25. In Exhibit ‘A’ which is the Caution Statement of the Accused, he confessed stealing the motor bike and mentioned two of his accomplices. Subsequently, when the Accused was charged for court and in his Charge Statement (Exhibit ‘B’) he again made a confession statement and exonerated the other suspects he mentioned as his accomplices. This is what Accused told PW3 in Exhibit ‘B’: 7 | P a ge “I want to state further that my earlier story to the police given on 14/08/2024 in which I mentioned the third suspect Pasta as my accomplice is not true. It was a friend of mine by name Yahuza from Yendi who came to visit me 2 days prior to the day of the crime and whilst he was with me in the house, he spotted the Complainant’s motor bike parked in his verandah and told me that he needed it so I should assist him to steal same. On the very night when the lights went off, I came out with Yahuza and asked him to stand out of the house gate. I then dragged the Complainant’s motor bike outside the house for Yahuza and he went away with it. I have no idea of the whereabout of Yahuza nor the stolen motor bike and therefore want to inform the police that Pasta has no hand in the crime neither was he involved in it in any way. It was someone who told me to mention his name.” 26. At the close of prosecution’s case which established a prima facie case against the Accused, hence the Accused was called upon to open his defence. The only defence put up by the Accused when Accused crossed examined prosecution witnesses is whether PW1 and PW2 saw him (Accused) stealing the motor bike. The Accused asked PW1 and PW2 this same questions on 10/09/2024 in cross examinations as follows: Q. Did you see me taking your motor bike? Ans. I did not see you. But it was suspicion and what happened that very night. 27. On the same date when Accused cross examined PW2 this is the defence Accused put up in his first question: 8 | P a ge Q. When you came out that night did you see me taking the motor bike? Ans. I did not see you taking the motor bike. You told me that the friend who came to you said you should take the motor bike away. But the Accused said he does not belong to the house to enable him steal the motor bike. Accused said his friend insisted that they should take the motor bike and go away with it. Accused told me that as at the time I saw him in the house if I had come outside the gate I would have seen the motor bike outside there. 28. The above response from PW2 corroborates the confession statement of the Accused in Exhibit ‘B’. Confession statement alone has been established by decided cases to be sufficient to secure conviction provided the court dutifully and carefully inquire into the circumstances of the confession. In the case of BILLA MOSHIE V. THE REPUBLIC [1977] 2 GLR 418, CA @ holding (2) held that: “A conviction could quite properly be based entirely on the evidence of a confession by a prisoner, and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness…” 29. The Accused in his response to questions when he was under cross examination answered in the affirmative relating to his investigative caution statement and charge statement. This is part of what ensued between the prosecutor and the Accused on 11/09/2024: Q. You also stated that the mob told you to tell the police or confess to police so that the matter would be resolved, is that correct? A. Yes, my Lord. 9 | P a ge Q. Put: that you are not telling the court the truth. A. This is what I know about this matter. Q. Put: that you are not the only person arrested to the police station over in this case? A. Yes, I was not the only one arrested. Q. Put: that you were arrested together with Natogmah Mohammed @ Fresh G. A. Yes,… Q. You also mentioned Ussif Ibrahim @ Pasta as your accomplice, is that correct? A. I mentioned his name but I have a reason. It was the complainant who told me to mention Ussif Ibrahim’s name that if I do that he can get the motor bike for the complainant… Q. In your caution statement given to police you explained and exonerated the 2nd suspect, is that correct, per Exh. ‘A’? A. Yes. Q. You admitted in your Caution Statement as well as your Charge Statement to have committed the crime. A. I told police that because of the pressure Dassana put on me in the house. Q. You admitted at a point in the police station when there was no pressure on you. A. I told the police that but not on pressure as I was told earlier by the people. I did not want the mob to send me back to the bush to maltreat me. 30. On the basis of Exhibits ‘A’ and ‘B’ and the responses from the Accused, it indicates that at the Police Station the Accused voluntarily gave the statements and exonerated those he mentioned as his accomplices. 31. Assuming without admitting that the statements in Exhibits ‘A’ and ‘B’ were taken when Accused was not in his right state of mind since he alleged of receiving some beatings from the mob, and upon a call from someone at the Police 10 | P a ge Station Accused was sent to hospital for treatment, there are traces of facts that link the Accused to the stolen motor bike which belonged to PW1. 32. Generally, when direct evidence is unavailable and there are bits and pieces of circumstantial evidence, it is admitted and when put together they can make stronger, corroborative and convincing evidence just as direct evidence. 33. In the case at hand, the following pieces of evidence undoubtedly make very strong circumstantial evidence against the Accused person. These pieces of evidence or facts include the following: i. That PW2 spotted the Accused at 1:00 am on 13/08/2024 in the compound of the house when there was power outage in Bimbilla Township. ii. PW2 came out of his room and questioned the Accused as to what the Accused was doing in the compound at 1:00 am. iii. Accused initially told PW2 that a friend came to him and he escorted him. iv. When Accused was questioned again in the presence of all the occupants of the house he responded by saying he only came out to drive stray goats out of the compound. 34. I am unable to accept the defence by the Accused which does not raised any doubt to nonexistence of his guilt. In the case of the State V. Brobbey and Nipah [1962] 2 GLR 101 @103 it was held thus: “In a case where the evidence is purely circumstantial and establishes nothing more than suspicion, the judge must draw attention to the necessity of some piece of evidence that is more than mere suspicion and which would lead to one conclusion and one conclusion only, that is, to the guilt of the prisoner…” 11 | P a ge 35. Under the circumstance, and given the findings above, as well as those contained in Exhibits ‘A’ and ‘B’, the circumstantial evidence and the defence put up by way of cross examination by the Accused that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt on the charge of stealing. 36. Accordingly, the Accused is convicted on the charge of Stealing: contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). SGD HIS WORSHIP PETER KOBBLAH AMETSOWU. 12 | P a ge