|
Criminal Law - Evidence -
inconsistencies -
contradictions - Untruthful
witness.-Burden
of proof - Whether
Court of Appeal was right in
affirming the decision of the
trial High Court -
Whether or not
sentence imposed was not harsh
and excessive -
HEADNOTES
On or about 5th October
2003 at about 1:00am at Old
Water Works near Akuse on the
Kpong- Tema Motorway, the
appellant and four other persons
armed with guns and cutlasses
robbed one Teye Ameko. They made
away with a shot gun valued at
1.5 million cedis (old cedis) ,
one packet BB Cartridge valued
at eight hundred thousand old
cedis (800,000) and cash the sum
of one hundred and Forty four
million, eight hundred thousand
(old cedis) (144,800,000) all
belonging to the said Teye Ameko(
hereinafter called the victim).
In the process, the victim was
slashed with a cutlass by the
first and fifth accused persons
and was severely injured with a
deep cut at the left hip of his
spinal cord and his shoulder.
The accused persons left the
victim, who bled profusely until
he was rescued by two of his
children. Upon finding their
father in such a critical state
with his intestines gushing out,
the children rushed him to the
Akuse Government Hospital where
he was also referred to
Narh-Bita Hospital in Tema.
On 7th October 2003, two
days after the incident, the
Police acting upon a tip off
arrested the accused persons at
a drinking spot in Akuse. The
fifth accused person however
evaded arrest and was
subsequently arrested at
Ashiaman Lorry Station. An
identification parade was
conducted where all accused
persons including the appellant
were identified by witnesses.
The trial court was of the
opinion that the prosecution had
proved their case beyond
reasonable doubt and that all
the ingredients of the
conspiracy and robbery had been
established. In respect of the
appellant, the trial judge, per
the facts and evidence before
the court, found inconsistencies
in the appellant's testimony
given during the trial and his
caution statement taken upon
arrest, when the events were
still fresh in his memory. The
court therefore found the
appellant as an untruthful and
unfaithful witness, whose
testimony under oath was, to the
court, an afterthought and thus
could not be relied on.-
HELD :-
In our view, the Court of Appeal
was right in affirming the
decision of the trial High Court
in the imposition of the
sentence having taken into
consideration the period spent
by the appellant in custody
before his conviction and
sentence. In our evaluation of
the record, the prosecution has
duly discharged their burden of
proof beyond reasonable doubt
considering the evidence adduced
and thus the judgment of both
the trial court and the Court of
Appeal should be upheld, Under
the circumstances, we find no
merit whatsoever in this appeal.
The appeal herein against
conviction therefore fails in
its entirety and by necessary
implication that against
sentence as well.
STATUTES REFERRED TO IN JUDGMENT
Criminal and other Offences Act,
1960 Act 29 as amended by Act
646 of 2003. section 23 (1) and
149
Evidence
Act 1975 (NRCD 323) Section
11(2)
CASES REFERRED TO IN JUDGMENT
Miller v Pensions (1972)2 ALL ER
372
Tetteh v The Republic
[2001-2002] SCGLR 854
Dexter Johnson v The Republic
[2011] 2 SCGLR 601
Frimpong a.k.a Iboman v Republic
[2012] 1 SCGLR 297
Adu Boahene v The Republic
[1972] 1 GLR 70 CA
R V Williams (1912) 8 Cr.
App. R. 84 CCA
Agyiri v Commissioner for
Police [1963] 2 GLR 380 SC
Karim v The Republic
[2003-2004] SCGLR 812
Kwashie v The Republic (1971) 1
GLR 488,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:-
COUNSEL
AHUMAH OCANSEY FOR THE 3RD
ACCUSED/APPELLANT/APPELLANT.
ELIZABETH SACKEYFIO,
SENIOR STATE ATTORNEY FOR THE
RESPONDENT
DOTSE JSC:-
This appeal is at the
instance of the 3rd
Accused/Appellant/Appellant,
(hereafter referred to as
Appellant) against the judgment
of the Court of Appeal dated 28th
May 2015. By their judgment, the
Court of Appeal coram:
Marful-Sau, Acquaye and Gertrude
Torkornoo (Mrs) JJA of even
date, considered an appeal
lodged by the Appellant herein
against his conviction and
sentence of 20 years by the High
Court, Accra on the 20th
July, 2010 in respect of two
counts of conspiracy to commit
robbery and robbery contrary to
section 23 (1) and 149 of the
Criminal and other Offences Act,
1960 Act 29 as amended by Act
646 of 2003.
FACTS
On or about 5th
October 2003 at about 1:00am
at Old Water Works near Akuse on
the Kpong- Tema Motorway, the
appellant and four other persons
armed with guns and cutlasses
robbed one Teye Ameko. They made
away with a shot gun valued at
1.5 million cedis (old cedis) ,
one packet BB Cartridge valued
at eight hundred thousand old
cedis (800,000) and cash the sum
of one hundred and Forty four
million, eight hundred thousand
(old cedis) (144,800,000) all
belonging to the said Teye
Ameko( hereinafter called the
victim). In the process, the
victim was slashed with a
cutlass by the first and fifth
accused persons and was severely
injured with a deep cut at the
left hip of his spinal cord and
his shoulder. The accused
persons left the victim, who
bled profusely until he was
rescued by two of his children.
Upon finding their father in
such a critical state with his
intestines gushing out, the
children rushed him to the Akuse
Government Hospital where he was
also referred to Narh-Bita
Hospital in Tema.
On 7th October 2003, two days
after the incident, the Police
acting upon a tip off arrested
the accused persons at a
drinking spot in Akuse. The
fifth accused person however
evaded arrest and was
subsequently arrested at
Ashiaman Lorry Station. An
identification parade was
conducted where all accused
persons including the appellant
were identified by witnesses.
DECISION AT THE TRIAL COURT
On the 20th of July
2010, His Lordship Kusi Appiah
JA sitting as an additional
Justice of the High Court (Fast
Track Division) found all
accused persons including the
appellant guilty of all the
charges, convicted and sentenced
all of them to 20 years IHL.
The trial court was of the
opinion that the prosecution had
proved their case beyond
reasonable doubt and that all
the ingredients of the
conspiracy and robbery had been
established. In respect of the
appellant, the trial judge, per
the facts and evidence before
the court, found inconsistencies
in the appellant's testimony
given during the trial and his
caution statement taken upon
arrest, when the events were
still fresh in his memory. The
court therefore found the
appellant as an untruthful and
unfaithful witness, whose
testimony under oath was, to the
court, an afterthought and thus
could not be relied on. At page
20 of the Record of Appeal, the
learned judge stated:
" I find the story of the 3rd
accused under oath as an
afterthought. The apparent
inconsistencies, contradictions,
ambiguities and lingering doubts
in the evidence of the 3rd
accused destroy his credibility
and make him an untruthful
witness. I therefore accept
the evidence of PW1, PW2 and PW3
that the 3rd Accused was among
those who acting together robbed
PW1 on the date above
mentioned." Emphasis
We have verified the above
conclusions of the learned trial
Judge and found them to be
consistent with the record of
appeal. We therefore accept them
as credible findings and
conclusions.
COURT OF APPEAL
The appellant, dissatisfied with
the decision of the High Court,
appealed against the decision of
the Court of Appeal.
DECISION OF THE COURT OF APPEAL
The Court of Appeal however on
the 25th day of May 2015 by a
unanimous decision dismissed the
appeal filed by the appellant.
The Court of Appeal held that
from the evidence adduced by the
prosecution, per the record of
appeal, the prosecution had
discharged their burden of proof
beyond reasonable doubt. The
court held at page 108 of the
record of appeal thus:
" At this point the other
accused persons including the
appellant fired their guns to
scare anybody from coming to the
scene. Later the 1st
and 5th accused
joined the rest including the
appellant in ransacking the
victim's room and took away the
amount of 144,800,000.00. This
was after they had inflicted the
cutlass wounds on the victim.
From this narration how can it
be argued that the appellant
played a minor role in the
robbery and for that matter he
should be dealt with differently
from the others particularly,
the 1st and 5th accused persons.
From the undisputed evidence on
record the appellant was part in
beating the victim and he was
among those who were firing
shots to scare people from
coming to the rescue of the
victim and his family.
The record revealed that when
the Police visited the crime
scene, sixteen empty shells of
BB Cartridge were found at the
scene." Emphasis
The Court of Appeal finally
concluded that, "having
examined the record of appeal
and also noting the
circumstances under which the
convicts executed the crime, the
sentence imposed by the trial
court was not harsh and
excessive". Emphasis
APPEAL TO SUPREME COURT AND
GROUNDS OF APPEAL
Still undaunted and
dissatisfied with the decision
of the Court of Appeal, the
Appellant herein on the 30th
day of June 2015 appealed
against the said judgment and
filed the following as the
grounds of appeal.
1. The judgment of
the Court of Appeal occasioned
miscarriage of injustice by
failing to appreciate that, from
the totality of evidence of the
records, the appellant deserved
a lesser sentence.
2. The judgment of
the Court of Appeal occasioned
miscarriage of injustice by
failing to appreciate that from
the totality of evidence of the
records, the standard of proof
for criminal conviction was
doubtful to sustain the
conviction and, suo motu, they
could have acquitted and
discharged the appellant.
However, pursuant to leave
granted by this court, the
appellant filed an amended
Notice of Appeal on the 12th
day of May 2017 with the
following one ground of appeal
which reads as follows:-
“The judgment of the Court of
Appeal occasioned miscarriage of
justice as appellant’s
conviction was against the
weight of evidence.”
We have read the written
statement of case of learned
Counsel for the Appellant,
Ahumah Ocansey. Indeed, from
this statement of case, he
sought to justify why the
judgment of the Court of Appeal
should not be allowed to stand,
and by necessary inference, that
of the trial court.
We have also read the
written statement of case of
Elizabeth Sackeyfio (Mrs)
learned Senior State Attorney
for the Republic/Respondent who
not only submitted that the
conviction of the appellant was
in order, but also urged on this
court to maintain the sentence
in order to serve as a
deterrence to others.
For the purpose of
brevity, we will consider all
the grounds of appeal together.
BURDEN OF PROOF IN CRIMINAL
TRIALS
The first issue we want to
discuss is the principle that,
in criminal trials, the burden
of proof against an accused
person is on the prosecution.
The standard of proof is proof
beyond reasonable doubt. Section
11(2) of the Evidence Act 1975
(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 a fact beyond a
reasonable doubt."
The standard of proof beyond
reasonable doubt was explained
by Lord Denning in the case of
Miller v Pensions (1972)2 ALL
ER 372 as follows:
"Proof beyond reasonable doubt
does not mean proof beyond a
shadow of doubt. The law would
fail to protect the community if
it admitted fanciful
possibilities to deflect the
course of justice. If the
evidence is strong against a man
as to leave a remote possibility
in his favour which can be
dismissed with the sentence of
course it is possible but not
the least probable, the case is
proved beyond reasonable doubt,
but nothing short of that will
suffice". Emphasis
See cases like the following,
which all illustrate the fact
that what proof beyond
reasonable doubt actually means
is “proof of the essential
ingredients of the offence
charged and not mathematical
proof.”
1. Tetteh v The Republic
[2001-2002] SCGLR 854
2. Dexter Johnson v The
Republic [2011] 2 SCGLR 601
3. Frimpong a.k.a Iboman
v Republic [2012] 1 SCGLR 297
just to mention a few of the
relevant cases.
DEFINITION OF ROBBERY
Section 150 of Act 29 defines
robbery as follows:
“A person who steals
a thing commits robbery
(a) if in, and for the purpose
of stealing the thing, that
person uses force or causes harm
to any other person, or
(b) if that person uses a threat
or criminal assault or harm to
any other person with intent to
prevent or overcome the
resistance of the other person
to the stealing of the things.”
At the trial, the learned Judge,
having analysed the law on
robbery found as a fact that the
offence of robbery had been
committed by the accused
persons. At page 26-27 of the
record of appeal, the learned
trial judge stated that:
" There is overwhelming evidence
which I find credible from PW1,
Teye Ameko MacCarthy, PW2, Happy
MacCarthy and PW3, Jacob Yao
MacCarthy as to how some amount
of money totaling up to
144,800.00 cedis were taken away
from the victim by the accused
persons”
This statement has also been
verified and found to be
credible.
There was evidence, by PW2, whom
the court deemed a credible
witness, that the accused
persons fired shots to scare
neighbors away. Also the
disfigurement of the victim is
also proof that harm was caused
to him by the accused persons in
the process. There is evidence
that the accused persons used
the butt of their gun to hit the
victim several times on the eyes
and other parts of the body till
he became weak and could not
struggle with them anymore.
There is also unchallenged
evidence that the 1st
and 5th accused
persons slashed the victim with
a cutlass on his left hip and
shoulder.
IDENTIFICATION OF THE APPELLANT
In this appeal however,
learned counsel for the
appellant, Ahumah Ocansey, has
confined his arguments in the
statement of case on the
identification of the appellant
during the identification parade
that was conducted in which the
prosecution witnesses identified
the appellant, among others.
The crux of the arguments
of learned counsel for the
appellant on this issue can be
summarised briefly as follows:-
That because the robbery
incident took place at midnight,
it was presumably dark and for
that reason, the PW2 could not
have truly identified the
appellant to have made him out
during the identification
parade. This is irrespective of
the fact that witness stated
that there was moonlight.
Secondly, learned counsel
also referred to the fact that
since the PW2, referred to the
dress of the appellant as black
and once appellant, was not
wearing black attire during the
identification parade, it meant
that the witness was untruthful.
Thirdly, learned counsel
argued that, from the position
of the witness, (who stated that
he hid himself in his room) and
had ocular vision through small
holes from the room, this meant
that, PW2 did not have adequate
opportunity to have been able to
identify the appellant if he was
really present.
The facts in the record of
appeal however does not support
these reasons stated by learned
counsel for the appellant.
It must be noted that, PW2
was quite forthright in his
evidence. The witness was
emphatic that, even though he
did not know the appellant
before the robbery attack on his
father, he was able to make him
out and therefore recognised him
as a participis criminis during
the robbery attack.
Furthermore, it should be
noted that, even though the
robbery incident took place on
the 5th of October
2003, at midnight or thereabout,
it was not until the 7th
day of October 2003, that the
accused persons, including the
appellant were arrested at a
drinking spot at Akuse. The
subsequent identification parade
at the Akuse Polce Station was
conducted on the 9th
October 2002. The appellant and
the others could not have been
in the same dress since
5/10/2003.
It should therefore be
further noted that, from the 5th
of October, 2003 up to 7th
October, 2003 when the appellant
and his accomplices were
arrested, was sufficient for
them to have gone to wherever
they came from, changed their
dresses before re-surfacing.
On this point, the case of
Adu Boahene v The Republic
[1972] 1 GLR 70 CA which was
relied on by the appellant
rather supports the case of the
prosecution. This is because the
witness creditably stated that
he saw the appellant among the
group and he committed the
offence charged.
Furthermore, the Defence,
in this case the appellant has
not succeeded in casting any
irregularities on the way and
manner the identification parade
was conducted. As a matter of
fact, the witness was emphatic
that he identified the appellant
and the other accused persons
during the identification
parade. This is irrespective of
where he was at the material
time.
Finally, it is a fact
that, there was moonlight during
that time of the season, and
this fact has not been denied.
It is therefore our view and
conviction that the witness
could have indeed identified the
appellant properly during the
identification parade as someone
who took part in the robbery.
Also, it must be noted that, the
appellant herein did not
cross-examine PW4, the
Investigator who took over the
conduct of the case on all the
material evidence that he led on
this case.
With the above rendition
of the facts as they appear in
the record of appeal being put
in proper perspective, it is our
opinion that, the reliance by
the appellant on this issue of
identification is a red herring
with no substance. The reference
to and reliance on the many
legal authorities such as the
following are therefore
irrelevant and out of context
and not applicable to the
circumstances of this appeal.
See cases like
1. R V Williams (1912) 8
Cr. App. R. 84 CCA
2. Agyiri v Commissioner
for Police [1963] 2 GLR 380 SC
3. Karim v The Republic
[2003-2004] SCGLR 812 just to
mention a few.
The facts and ratio of the
above cases are entirely
inapplicable to the
circumstances of the instant
appeal and therefore does not
deserve any meritorious
consideration.
ISSUE OF SENTENCE
The second issue we want to deal
with briefly is whether the
sentence imposed on the
appellant is harsh and or
excessive.
Section 149(1) of the Criminal
Offences Act 1960(Act 29) as
amended provides as follows:
“Whoever commits robbery is
guilty of an offence and shall
be liable, upon conviction on
trial summarily or on
indictment, to imprisonment for
a term of not less than 10
years, and where the offence is
committed by the use of an
offensive weapon or offensive
missile, the offender shall upon
conviction be liable to
imprisonment for a term of not
less than 15 years."
In Kwashie v The Republic
(1971) 1 GLR 488, the court
in dealing with sentencing power
of the court had this to say:
"In determining the length of
sentence, the factors which the
trial judge is entitled to
consider are: (1) the intrinsic
seriousness of the offence; (2)
the degree of revulsion felt by
law-abiding citizens of the
society for the particular
crime; (3) the premeditation
with which the criminal plan was
executed; (4) the prevalence of
the crime within the particular
locality where the offence took
place; or in the country
generally; (5) the sudden
increase in the incidence of the
particular crime; and (6)
mitigating or aggravating
circumstances such as extreme
youth, good character and the
violent manner in which the
offence was committed"
See also the cases of
Frimpong @Iboman v Republic
supra, Adu-Boahene v The
Republic [1972] 1 GLR 70, CA and
Kamil v The Republic [2011]
SCGLR 300.
The crime committed by the
appellant and the four other
accused persons was a serious
one; which left the victim
bleeding profusely with his
intestines gushing out. It took
his children, who had to push
his intestines with a cloth, to
rescue their father from dying.
Also, the appellant and two
other accused persons fired
shots to scare neighbours away.
The argument of the appellant
that the role he played was a
lesser one and thus deserved a
lesser sentence is untenable.
Punishment is justifiable as a
deterrent not only to the
criminal himself, but also, to
those who may have similar
criminal propensity.
Looking at the violent manner in
which the crime was committed
and the gruesome way the
appellant and the four others
left the victim, the learned
trial judge was right in
imposing such a sentence on
them.
Section 149(1) of Act 29 is
clear on the minimum sentence to
be imposed when robbery is
committed with an offensive
weapon, that is; 15 years. From
the facts and the evidence at
trial, the accused persons were
armed with cutlasses and guns.
The police on their visit to the
crime scene found sixteen empty
shells of BB Cartridge. The
learned trial judge in imposing
the sentence on the appellant
rightly stated thus:-
“I have taken into consideration
the plea of mitigation put in by
counsel for the 1st and 5th
accused persons and for that
matter all the accused persons
in this case. But having
regard to the gravity of the
offence, the violent manner in
which the offence was committed
which almost led to the death of
the victim, leaving him with
permanent disability and
disfigurement, I am satisfied
that the sentence of the accused
persons should be punitive,
deterrent and above all to
safeguard the entire country
from the menace of armed
robbery. However, taking
into account that the accused
persons have been in custody
since their arrest on 7th
October 2003 and pursuant to
Article 14(6) of the
Constitution, 1992, I sentence
the accused persons as follows:-
"All the accused persons are
sentenced to 20 years IHL each
on each of their respective
counts. I order that all
sentences are to run
concurrently for each of the
accused persons.” Emphasis
In our view, the Court of Appeal
was right in affirming the
decision of the trial High Court
in the imposition of the
sentence having taken into
consideration the period spent
by the appellant in custody
before his conviction and
sentence.
CONCLUSION
In our evaluation of the record,
the prosecution has duly
discharged their burden of proof
beyond reasonable doubt
considering the evidence adduced
and thus the judgment of both
the trial court and the Court of
Appeal should be upheld.
In his brief but incisive
judgment, Marful-Sau JA,
speaking for the Court of Appeal
stated as follows:-
“In conclusion, having
examined the record of appeal
and noting the circumstances
under which the convicts
executed the crime, I do not
consider the 20 years IHL
sentence imposed on the
appellant by the trial court
harsh and excessive. The appeal
is accordingly dismissed.”
Emphasis
We find the above statement very
apt and we accordingly endorse
same. Under the circumstances,
we find no merit whatsoever in
this appeal. The appeal herein
against conviction therefore
fails in its entirety and by
necessary implication that
against sentence as well.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AHUMAH OCANSEY FOR THE 3RD
ACCUSED/APPELLANT/APPELLANT.
ELIZABETH SACKEYFIO,
SENIOR STATE ATTORNEY FOR THE
RESPONDENT.
|
