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Criminal law - Conspiracy to rob
- Sections 23 (1) and 149 of Act
29/60 - Whether
trial court and the Court of
Appeal did not comply with the
principles laid down by Court -
Whether a person could be
charged with the offence even if
he did not partake in the
accomplishment of the said crime
- Whether mere presence at the
scene of a crime without more is
not proof of guilt.
HEADNOTES
The brief facts of this case are
that the appellant and three
other friends chartered a
taxi-cab to Nyaho Clinic area
for one of them to collect money
from someone. On the way, it was
alleged an attempt was made by
the appellant and his friends to
snatch the taxi-cab in which
they were, from the driver. In
the process, they took an amount
of GHc40.00 from the driver but
could not drive away the car. A
military officer, who ventured
onto the scene, assisted the
driver of the taxi cab to arrest
one of the accused persons while
the others, including the
appellant who was the 2nddefendant
at the trial, managed to escape.
They were later arrested with
the exception of one person who
was tried in absentia with the
others on charges of conspiracy
to rob and robbery contrary to
sections 23 (1) and 149 of Act
29/60. Appellant and the others
were convicted by the trial High
court and each sentenced to 15
years IHL on each of the counts
to run concurrently. The
appellant appealed against his
conviction and sentence to the
Court of Appeal but the court
dismissed the appeal and
affirmed the judgment of the
trial court.-
HELD :-
We admit that the evidence
led by the prosecution in proof
of the charges against the
appellant did not meet the
requisite standard of proof,
which is; proof beyond
reasonable doubt. We therefore
quash the conviction and
sentence of the appellant on the
two charges of conspiracy to rob
and attempted robbery.
STATUTES
REFERRED TO IN JUDGMENT
Act 29/60.sections 23 (1) and
149
CASES REFERRED TO IN JUDGMENT
AMARTEY V THE STATE [1964] GLR
256
R v ABISA GRUNSHIE [1955] 1
WALR 36
R v ANSERE [1958] 3 WALR 385– CA
DARKO v THE REPUBLIC [1968] GLR
203- CA;
KWESI v THE REPUBLIC [1977] 1
GLR 448- CA
LUTTERODT v C.O.P. [1963] GLR
429– SC.
LOGAN v THE REPUBLIC [2007-2008]
SCGLR 76
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
COUNSEL.
NII AKWEI BRUCE-THOMPSON FOR THE
2ND ACCUSED/APPELLANT/APPELLANT.
YVONNE ATAKORA OBUOBISA (MRS),
ACTING DIRECTOR OF PUBLIC
PROSECUTION FOR THE
RESPONDENT/RESPONDENT/RESPONDENT.
ญญญญญญญญญญญญญญญญญญญ
JUDGMENT
APPAU, JSC:-
The appellant is before us
on a second appeal against the
majority decision of the first
appellate court which affirmed
his conviction and sentence by
the trial High court. The brief
facts of this case are that the
appellant and three other
friends chartered a taxi-cab to
Nyaho Clinic area for one of
them to collect money from
someone. On the way, it was
alleged an attempt was made by
the appellant and his friends to
snatch the taxi-cab in which
they were, from the driver. In
the process, they took an amount
of GHc40.00 from the driver but
could not drive away the car. A
military officer, who ventured
onto the scene, assisted the
driver of the taxi cab to arrest
one of the accused persons while
the others, including the
appellant who was the 2nd
defendant at the trial, managed
to escape. They were later
arrested with the exception of
one person who was tried in
absentia with the others on
charges of conspiracy to rob and
robbery contrary to sections 23
(1) and 149 of Act 29/60.
Appellant and the others
were convicted by the trial High
court and each sentenced to 15
years IHL on each of the counts
to run concurrently. The
appellant appealed against his
conviction and sentence to the
Court of Appeal but the court
dismissed the appeal and
affirmed the judgment of the
trial court. The only eye
witness account of the alleged
attempted robbery that the
prosecution gave at the trial
was the testimony of the victim
who testified as P.W.1. The
appellant consistently denied
his involvement in the crime. He
denied the charges against him
in his investigation caution
statements and in his evidence
in court. The question for
determination was therefore to
be settled on the oath of the
victim as against that of the
appellant.
Though the appellant lined
up as many as eight (8) grounds
of appeal for determination by
this Court, the main contention
in this appeal was that both the
trial court and the first
appellate court did not give any
consideration at all to the
defence of the appellant before
finding him guilty on the two
counts of conspiracy and
attempted robbery. The
appellant’s case is that both
the trial court and the Court of
Appeal did not comply with the
principles laid down by this
Court in the Amartey case
(infra) before convicting him on
the charges.
In the celebrated case of
AMARTEY V THE STATE [1964]
GLR 256, this Court held
that; “where a question boils
down to oath against oath,
especially in a criminal case,
the trial judge should first
consider the version of the
prosecution, applying to it all
the tests and principles
governing credibility of
witnesses; when satisfied that
the prosecution’s witnesses are
worthy of belief, consideration
should then be given to the
credibility of the accused’s
story, and if the accused’s case
is disbelieved, the judge should
consider whether, short of
believing it, the accused’s
story is reasonably probable”.
The decision in the
Amartey case quoted supra,
re-stated the principle laid
down by the West African Court
of Appeal in the case of R v
ABISA GRUNSHIE [1955] 1 WALR 36-
WACA. The principle is that;
in a criminal trial, where a
court does not believe the story
or an explanation of an accused
person, the court should
nevertheless go ahead to
consider whether that
explanation is reasonably
probable when considered
together with the evidence on
record as a whole before
deciding on the guilt of the
accused. This principle has been
applied in several cases
including; R v ANSERE [1958]
3 WALR 385– CA; DARKO v THE
REPUBLIC [1968] GLR 203- CA;
KWESI v THE REPUBLIC [1977] 1
GLR 448- CA and LUTTERODT
v C.O.P. [1963] GLR 429– SC.
In the Lutterodt case
supra, this Court settled 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;
i.
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;
ii.
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
iii.
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.”
The question is; did the
trial court and later the first
appellate court, which was
obliged to determine the appeal
as if it was hearing the case
afresh, subject the evidence
from both the prosecution and
the defence, to the ‘Oath
against Oath’ test or the test
laid down in the Lutterodt case
supra?
On the first count of
conspiracy to commit crime to
wit; robbery, the particulars
were that appellant and the
three others did act together to
rob P.W.1, whilst on the
substantive charge under count
two, they were said to have
robbed the said driver of cash
the sum of GHc40.00 and his car.
The trial court, as affirmed by
the Court of Appeal, found the
appellant and the others guilty
of conspiracy to rob and
attempted robbery but not
robbery.
From the definition of
conspiracy as provided under
section 23(1) of Act 29/60, a
person could be charged with the
offence even if he did not
partake in the accomplishment of
the said crime, where it is
found that prior to the actual
committal of the crime, he
agreed with another or others
with a common purpose for or in
committing or abetting that
crime. In such a situation, the
particulars of the charge
normally read: “he agreed
together with another or others
with a common purpose for or in
committing or abetting the
crime”. However, where there is
evidence that the person did in
fact, take part in committing
the crime, the particulars of
the conspiracy charge would
read; “he acted together with
another or others with a common
purpose for or in committing or
abetting the crime”. This
double-edged definition of
conspiracy arises from the
undeniable fact that it is
almost always difficult if not
impossible, to prove previous
agreement or concert in
conspiracy cases. Conspiracy
could therefore be inferred from
the mere act of having taken
part in the crime where the
crime was actually committed.
Where the conspiracy charge is
hinged on an alleged acting
together or in concert, the
prosecution is tasked with the
duty to prove or establish the
role each of the alleged
conspirators played in
accomplishing the crime.
In the instant case before
us, the only evidence against
the appellant in the alleged
attempted robbery was that he
was in the taxi-cab at the time
the attempt was made to rob
P.W.1 of the car. The primary
witness called by the
prosecution was the victim
(P.W.1). He gave an account of
the role played by each of the
accused persons. He said it was
the 1st accused who
snatched the ignition key from
him when he stopped the vehicle
while the 3rd accused
pointed a gun at the back of his
head. When asked what the
appellant did, his answer in sum
was that; he did
nothing…however; he was among
the others in the car. This was
the only evidence of the part
appellant was alleged to have
played in the attempted robbery
claim.
In his statement to the
police and testimony in court,
the appellant had been
consistent all along as to how
he came to be in the car with
the others. He denied strongly
that he had knowledge of any
plan by his friends to rob P.W.1
of his car. The victim himself
corroborated the testimony of
the appellant that when the
others struggled with him over
his ignition key, the appellant
did nothing. The appellant got
out of the car and ran away. On
why he had to run away,
appellant said he was afraid
that was why he ran away. He
said further that on the
following day in the morning, he
confronted one of his friends as
to why they did not tell him of
their plan to rob P.W.1 of his
taxi. This testimony was not
challenged by the prosecution.
Some of the questions that
should necessarily have come to
the mind of the trial court in
determining appellant’s
involvement are;
(i)
which were the subsequent
acts done in concert with the
other accused persons to suggest
that appellant planned with the
others to steal the taxi-cab?
(ii)
Is it not possible that
the only agenda the appellant
knew of on the night in question
was that they were going to
Nyaho Clinic area for the 4th
accused to collect money from a
friend as he was told when he
was requested to join them in
the taxi?
As was held by this Court
in LOGAN v THE REPUBLIC
[2007-2008] SCGLR 76 @
78,
in conspiracy charges where
there is no direct evidence, “the
conspiracy is a matter of
inference, deduced from the
certain criminal acts of the
persons accused, done in
pursuance of an apparent
criminal purpose in common
between them”.
Though it could be said
that sitting together with the
others in the taxi-cab when the
incident happened was an element
of acting in concert, that alone
is not conclusive on the point.
There must be further proof
that, being in the taxi-cab with
the others was for a common
purpose; i.e. to rob the driver
of the car in which they were
being conveyed or simply to rob.
This could be inferred from the
conduct or the acts of the
appellant at the time he joined
the others in the taxi-cab up to
the time of the attempted
robbery. However, the testimony
of the victim of the crime P.W.1
was that appellant did nothing
apart from his mere presence in
the car. This evidence
corroborates the testimony of
the appellant throughout the
trial that he knew nothing about
the conspiracy and that he was
unfortunate to be in the car at
the time. It also corroborates
that of the other accused
persons that the appellant did
nothing to support what they
were doing.
This Court held further in
the Logan case (supra) that mere
presence at the scene of a crime
without more is not proof of
guilt. As the appellant rightly
contended in his written
statement of case, the trial
judge and the learned majority
justices of the first appellate
court should have asked
themselves whether it was not
possible for an innocent person
to be among evil doers, be in
their company and yet have no
knowledge of their intentions.
Clearly, the record before us
suggests overwhelmingly that
both the trial judge and the
first appellate justices in the
majority did not give any
consideration at all to the
evidence of and for the
appellant. The two lower courts
completely failed to subject the
explanation or story of the
appellant to the three-stage
test propounded by this Court in
the Lutterodt and Amartey cases
supra, which every court is
obliged to do before pronouncing
the guilt of an accused person.
We want to lay emphasis on the
principle in criminal trials
that; all reasonable doubts that
make the mind of the court
uncertain about the guilt of the
accused are always resolved in
favour of the accused. By
reasonable doubt is not meant
mere shadow of doubt. Where,
from the totality of the
evidence before a trial court, a
soliloquy of; ‘should I
convict’, or ‘should I acquit’
takes control of the mind of the
court, then a reasonable doubt
has been raised about the guilt
of the accused. The appropriate
thing to do, in such a
situation, is to acquit, as
required by law.
We agree with the minority
decision of the Court of Appeal
that the trial judge and the
majority in the first appellate
court did not adequately
consider the defence of the
appellant before finding him
guilty on the two counts. The
appellant’s explanation that he
knew nothing about the plan of
the other accused persons and
that he did not take part in
what they did, was not only
reasonably probable but was, in
our view, more probable than
not, judging from the totality
of the evidence on record.
Having failed to attract
adequate consideration at the
trial level, the Court of
Appeal, from the grounds of
appeal before it, was obliged to
give the defence that adequate
consideration as spelt out by
the authorities. Unfortunately,
the Court of Appeal failed to do
this. The court, per its
majority decision, lumped up all
the accused persons together
instead of considering the role
each played in the alleged
committal of the offences,
thereby making wrong deductions
from the evidence on record as
to the guilt of each of them to
the charges. Nowhere in the
judgment did the majority in the
first appeal, just like the
trial court, give a thought to
the case of the appellant. The
Court of Appeal was under an
obligation to consider
separately the defence put up by
each of the accused persons to
determine how they coordinated
each other in the commission of
the offences as alleged by the
prosecution. The minority
decision was that the majority
did not do this. Her view was
that even if the defence of the
appellant was not believable, it
was reasonably probable judging
from the particular
circumstances of the case, which
she enumerated. We fully share
this view. We admit that the
evidence led by the prosecution
in proof of the charges against
the appellant did not meet the
requisite standard of proof,
which is; proof beyond
reasonable doubt. We therefore
quash the conviction and
sentence of the appellant on the
two charges of conspiracy to rob
and attempted robbery.
With regard to the other
leg of the appeal that the
appellant was a juvenile so the
trial court should have referred
him to the Juvenile Court for
the imposition of sentence, we
think it would be superfluous to
waste time on that ground.
Having admitted that the trial
High Court had the authority to
try him in the circumstances he
found himself, his conviction by
the trial court whether rightly
or wrongly done, was proper.
There would therefore be no need
to go into the sentence when the
conviction, which is the
foundation of the sentence, has
crumbled. We therefore refrain
from discussing that issue.
Y. APPAU
(JUSTICE OF
THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
ANIN
YEBOAH
(JUSTICE OF
THE SUPREME COURT)
V.
AKOTO-BAMFO (MRS)
(JUSTICE OF
THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
NII AKWEI BRUCE-THOMPSON
FOR THE 2ND
ACCUSED/APPELLANT/APPELLANT.
YVONNE ATAKORA OBUOBISA
(MRS), ACTING DIRECTOR OF PUBLIC
PROSECUTION FOR THE
RESPONDENT/RESPONDENT/RESPONDENT.
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