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Criminal law
– Robbery - Identification
parade – Whether or not the
witnesses were able to identify
the accused person - Whether or
not the prosecution met the
standard of proof in this case -
- Whether or not the prosecution
by their evidence sufficiently
and adequately identified the
appellant as one of the robbers
– Whether or not the sentence
of forty five (45) years
affirmed by the Court of Appeal
is excessive.
HEADNOTES
The Appellant
was charged before the High
Court, Cape Coast with the
offence of Robbery. He was
convicted on 21st May
2007 and sentenced to a term of
forty-five (45) years
imprisonment with hard labour.
He appealed to the Court of
Appeal against his conviction
and sentence. The appellate
court on 2nd December
2007 dismissed the appeal.
HELD
Thus weighing
the aggravating factors against
the mitigating factors, the
courts below dealt adequately in
the sentence meted out to the
accused. This is the more so
because the offence of robbery
attracts a minimum sentence of
fifteen years when the offence
is committed by the use of an
offensive weapon as per Act 646
the Criminal Code Amendment Act,
2003. In this context we are not
determining how we would have
exercised our discretion in the
given situation. We are
considering whether given the
wide spectrum of the discretion
at the trial judge’s disposal he
exercised it within the
parameters of the law. We are
satisfied that the exercise was
properly conducted and would in
the circumstance affirm the
sentence of forty-five (45)
years IHL. In the event the
appeal is dismissed in its
entirety for lack of merit.
DISSENTING
OPINION ON SENTENCE
I am of the
considered view that the
sentence of 45 years is too
harsh, excessive and will be
counter productive to the aims
and or purposes of punishment
outlined above. , I am still of
the view that a sentence of 30
years imprisonment with hard
labour be substituted for the 45
years. Even though am aware that
this opinion is a dissenting one
and will not affect the fortunes
of the appellant in anyway, I
hope the opportunity will soon
be created for me to deal with
this issue of long prison
sentences that have become the
rule rather than the exception.
The above are the reasons why I
departed from my brothers and
sister on the 45 years prison
sentence and in turn impose 30
years instead.
STATUTES
REFERRED TO IN JUDGMENT
Criminal and
Other Offences (Procedure) Act,
1960 ACT 30
CASES
REFERRED TO IN JUDGMENT
Karim v The
Republic (2003-2004) 2 SCGLR 812
Adu Boahene v
The Republic (1972) GLR 70
R v Turnbull
(1977) Q.B.224
R v Breslin
(1985) 80 Cr App R 226)
Nagode vs The
Republic (2011) 2 SCGLR 975
Frimpong
alias Iboman v The Republic
[2012] 1 SCGLR 297
BOOKS
REFERRED TO IN JUDGMENT
Phipson on
Evidence 10th
edition,
Evidence: Law
and Practice, 2nd
edition, Eric Cowsill and John
Clegg
Criminal
Procedure in Ghana by
A.N.E.Amissah, 1982
DELIVERING
THE LEADING JUDGMENT
AKAMBA, JSC
DISSENTING
OPINION ON SENTENCE
DOTSE JSC
COUNSEL
NII AKWEI
BRUCE- THOMPSON ESQ. FOR THE
APPELLANT.
YVONNE
ATTAKORA OBUOBISA (CSA) FOR THE
REPUBLIC
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
--------------------------------------------------------------------------------------------------------------------
AKAMBA, JSC
The Appellant
was charged before the High
Court, Cape Coast with the
offence of Robbery. He was
convicted on 21st May
2007 and sentenced to a term of
forty-five (45) years
imprisonment with hard labour.
He appealed to the Court of
Appeal against his conviction
and sentence. The appellate
court on 2nd December
2007 dismissed the appeal. He
has appealed to this court on as
many as eight grounds. These
are:
(I)
Their
Lordships of the Court of Appeal
erred in law in refusing to
apply the principle on
identification in the case of
Karim v The Republic (2003-2004)
2 SCGLR 812 to the facts of
the case.
(II)
Their
Lordships of the Court of Appeal
erred in holding that the
identification parade was not
flawed.
(III)
The
judgment and conviction cannot
be supported having regard to
the evidence on record.
(IV)
The
Court of Appeal misdirected
itself when it speculated that
the witnesses were able to
identify the accused person
‘maybe the mask fell off his
face’ and so occasioned a
miscarriage of justice.
(V)
The
sentence of 45 years affirmed by
the Court of Appeal was
excessive.
(VI)
The
learned judges of the Court of
Appeal erred when they held that
the prosecution met the standard
of proof in this case.
(VII)
The
learned judges of the Court of
Appeal erred in not upholding
the submission of no case, which
had been dismissed by the trial
judge.
(VIII)
The
Court of Appeal erred in finding
that the appellant was among the
robbers
In this court
the appellant argued grounds
(i), (iii), (vi) and (viii)
together. We would include
ground (ii) to this list because
it impugns the Court of Appeal’s
determination on the
identification parade as flawed.
These grounds together raise for
consideration whether the
prosecution by their evidence
sufficiently and adequately
identified the appellant as one
of the robbers and also met the
evidential burden of proof
beyond reasonable doubt on the
issue of identity. We would
equally determine these grounds
together. The appellant placed a
great deal of premium on the
case of Karim v The Repulic
2003-2004 SCGLR 812.
In that case the issue that came
up for determination pertained
to in-dock identification which
the court deprecated as
generally undesirable. However
evidence of in-dock
identification is not
inadmissible but raises issues
of what weight to be attached or
accorded such evidence. We think
in all fairness that the
appellant counsel’s reliance on
the Karim case is
unhelpful since we are not
called upon to decide on in-dock
identification.
The issue of
identification is one of fact to
be determined by the court.
Hence in a criminal trial the
prosecution is obliged to lead
evidence to identify the accused
as the person who committed the
crime for which he/she is
charged. Identification may take
several forms. It may be proved
or disproved not only by direct
testimony, or opinion evidence,
but presumptively by similarity
or dissimilarity of personal
characteristics such as age,
height, size, hair, complexion,
voice, handwriting, manner,
dress, distinctive marks,
faculties or peculiarities
including blood group, as well
as of residence, occupation,
family relationship, education,
travel, religion, knowledge of
particular people, places, or
facts, and other details of
personal history including
identities of mental qualities,
habits and disposition. (See
Phipson on Evidence 10th
edition, p. 170, para 1381). We
approve the Court of Appeal
decision in the case of Adu
Boahene v The Republic (1972)
GLR 70 relying on Phipson
(summarized supra) when they
stated that the holding of an
identification parade and proof
of the personal characteristics
of the accused are not the only
modes by which the identity of a
person accused of a crime can be
established. The court pointed
out that where the identifying
witness had known the accused
for some time prior to the
commission of the crime and had
led the police to the house then
it would be pointless to hold an
identification parade. But where
the identifying witness saw the
accused only for the first time
for a brief period at the
commission of the offence then
the failure to hold an
identification parade or to
prove his personal
characteristics would detract
from the weight to be attached
to the evidence of
identification.
In the
instant appeal the prosecution
complied with regulation 195 of
the Ghana Police Service which
guides the conduct of
identification parades. Exhibit
D was tendered by the
prosecution on 26/4/2006 to
prove that the identification
parade was carried out during
investigations into this case.
The exhibit (D) clearly shows
that thirteen persons including
the appellant participated in
the exercise. The Ghana Police
regulation 195 recommends a
minimum of eight persons in an
identification parade. This
regulation for the conduct of
identification parades accords
with the guidelines in the
English case of R v Turnbull
(1977) Q.B.224 in which the
Court of Appeal first laid down
the requirement to guide the
conduct of identification
parades. The import of the
requirement is succinctly
captured by Eric Cowsill and
John Clegg in their book
entitled Evidence: Law and
Practice, 2nd edition
as follows:
“Whenever a
case depends wholly or
substantially on the correctness
of identification evidence which
is disputed, the judge should
himself assess the quality of
the evidence of identification
and decide whether the evidence
is good enough to be left to the
jury….. In any case where
disputed identification evidence
is to be left to the jury, the
judge should direct the jury
very carefully as to special
need for caution before
convicting in reliance upon it
and should refer to the
possibility of a witness or even
a number of witnesses making an
honest mistake. Provided that
such a warning is given, the
trial judge is entitled to
direct the jury that an
identification by one witness
could provide support for the
identification by another (R v
Breslin (1985) 80 Cr App R 226).
The judge
should then direct the jury to
examine closely the
circumstances in which the
original observation was made:
(1)
Over
what period?
(2)
In
what conditions?
(3)
In
what light?
(4)
At
what distance?
(5)
Was
the witness recognizing someone
he already knew?
(6)
Was he
identifying a stranger?
(7)
Does
the description given to the
police match the appearance of
the accused?”
In the
instant appeal the evidence of
identification comes from the
testimonies of PWs 1, 2 and 4.
Counsel for the appellant makes
capital of the number of persons
who participated in the
identification parade. According
to him the figure thirteen that
participated in the exercise is
a derogation from the rules.
That argument is puerile because
the regulation simply prescribes
a minimum figure of eight hence
any figure above eight is
acceptable. The regulation
further recommends that as far
as possible the participants
should be of similar age,
height, general appearance and
class of life as the suspect. We
find nothing irregular about the
manner in which the
identification parade was
conducted. The prosecution
witnesses were kept in a room
away from where the parade took
place and called one after the
other to undertake the exercise.
Upon completion of the exercise
the witness did not return to
the room reserved for witnesses
awaiting their turn. It is
evident from the record before
us that the identification
parade accorded with the
prescribed regulation. (See page
306 of Criminal Procedure in
Ghana by A.N.E.Amissah, 1982)
The next
crucial determination is what
premium to place on the outcome
of the identification made by
the two prosecution witnesses.
This must be determined by
scrutinizing the evidence of
both PWs 1 and 2 under the
questions posed above i.e. over
what period did the witness
observe the person identified,
under what conditions, in what
light and at what distance etc.
It is instructive to recount the
testimony of PW1 first: “As soon
as I got to the kitchen I saw
accused who was wearing a mask
but the face was quite visible.
And I also took note of his
structure. He held me by the
neck and I heard one of them
saying they have sent them to
come and kill me. And another
asked where was the money? And I
answered by saying that the
money is in the wardrobe. So I
tried to raise my head, one of
them hit me with a stick and the
mark is on my head.”
The
perpetrators engagement with the
PW1 was close and long enough
for him to identify key features
of the accused person in
particular such as the face,
complexion and physique. This
certainly was possible because
the witness (PW1) said the
accused held him by his neck. No
wonder that despite suffering so
much trauma and ordeal from the
perpetrators the PW1 identified
the accused as he did at the
parade organized by the Police.
The PW2 also
witnessed the events of 22nd
June 2005 at about 1 to 2 am.
The significant account by this
witness runs thus: “So we all
run to our daddy’s bedroom where
the toilet is. So my father went
to face the robbers. We were
there when we heard my father
calling my mother. And my father
said ‘I am dying, I am dying’.
He said they should open the
door and they came to my
father’s room and opened the
toilet door. When he opened the
door, a stone fell on my back
and so I looked up at him and he
said I should put my face down.
He slapped my mother three times
and ordered us to kneel down but
my mother could not as she has
stroke.” Here again the
witness PW2 had more than enough
encounter with the accused while
in his father PW1’s room to be
able to identify him as he did
at the parade, having earlier
spotted him the next day
following the event. As we
stated in Nagode vs The
Republic (2011) 2 SCGLR 975 at
977 holding 1, “the issue of
the appellant’s identification
was one of fact for a judge
sitting without a jury in every
summary trial. The learned trial
judge after evaluation of the
rival testimonies gave adequate
reasons for believing the
evidence of the first
prosecution witness who swore to
have seen the appellant as one
of the robbers.” Unfortunately
the appellant has not
demonstrated to us that the
trial judge and the first
appellate court have failed to
adequately consider any evidence
that would have enured to his
benefit in this appeal. The
appellant’s attempt to rely on
alibi at the trial court equally
failed miserably. We find no
merit in these combined grounds
of appeal and accordingly
dismiss same.
The grounds
of appeal remaining are grounds
(iv), (v) and (vii).
The Court of
Appeal misdirected itself when
it speculated that the witnesses
were able to identify the
accused person ‘maybe the mask
fell off his face’ and so
occasioned a miscarriage of
justice.
The learned
judges of the Court of Appeal
erred when they held that the
prosecution met the standard of
proof in this case.
The learned
judges of the Court of Appeal
erred in not upholding the
submission of no case, which had
been dismissed by the trial
judge.
The Court of
Appeal erred in finding that the
appellant was among the robbers
We would
consider the above grounds
together. While it is correct to
state that the Court of Appeal
did speculate that the mask must
have fallen during the hurried
and brisk activity, this
speculation about what must have
happened to the mask was not the
reason for identifying the
accused as one of the robbers.
Both the trial court and the
Court of Appeal adequately dwelt
on the substantial testimonies
of the two witnesses (PWs 1 and
2’s) who had close encounters
with the perpetrators as to be
able to identify the accused as
they did at the identification
parade which was conducted in
accordance with proper
procedure. There were sufficient
reasons for arriving at the
conclusion that the PWs 1 and 2
were truthful witnesses and
correctly identified the accused
as one of the robbers. The
appellant has not given any
ground for disbelieving these
witnesses. This ground of appeal
fails and is dismissed.
In the light
of our determination on the
crucial issue of the identity of
the accused having been proved
beyond reasonable doubt it goes
to no issue to determine a
failure by the Court of Appeal
to uphold a submission of no
case. In other words, we are
satisfied that the prosecution
had proved each ingredient of
the charge of robbery beyond
reasonable doubt at the close of
their case that no submission of
no case could be sustained under
the circumstance. There cannot
be any error on the part of the
Court of Appeal in the finding
that the accused was part of the
robbers following the acceptance
that the identity of the accused
in these events had been proved
beyond reasonable doubt. This
ground also fails.
The last
ground for our consideration is
the ground that the sentence of
forty five (45) years affirmed
by the Court of Appeal is
excessive. In the written
submission by counsel for the
appellant the failure by the
trial judge to give reasons for
his harsh decision is the reason
for appealing against same.
Counsel is also unhappy that no
record was made that the trial
judge considered any mitigating
factors. An appeal is by way of
rehearing. We have the whole
record of proceeding before us
and will consider every bit to
arrive at a conclusion on
sentence. In determining
appropriate sentence to impose,
a court of law is obliged to
weigh all the aggravating
factors as against whatever
mitigating factors brought to
the court’s attention. The
aggravating factors include: the
amount of force used by the
accused or perpetrator, the
amount of injury inflicted upon
the victim/s, whether or not the
victim falls within a category
of vulnerable persons such as
old age or sickness, whether
this was a planned offence, time
of the offence such as night,
group or gang attack,
dehumanizing actions. The
possible mitigating factors
include: less use of force, less
injury, young offender, low
mental capacity, spur of the
moment, daylight, and single
offender. The prosecution
tendered exhibits A1 to A9 which
clearly attest to the level of
vandalism deployed by the
accused and his co-
perpetrators. Exhibit A10 to A12
attests to the injuries
inflicted on PW1 to warrant his
admission to hospital. The
medical report on PW1 was in
evidence as exhibit G. It
confirmed that he was admitted
for almost a forth night i.e.
from 22nd June 2005
and was discharged on 5th July
2005. The exhibit G catalogues
bullet wounds and abrasions as
well as a left thigh with
pellets shown by X-ray. Also in
evidence is the account of the
three slaps administered to
PW2’s mother (See page 12 of ROA),
a woman who was suffering from
stroke. Last but not least, the
threats and fear put into PW2
and the siblings to kneel down
or be killed. Thus weighing the
aggravating factors against the
mitigating factors, the courts
below dealt adequately in the
sentence meted out to the
accused. This is the more so
because the offence of robbery
attracts a minimum sentence of
fifteen years when the offence
is committed by the use of an
offensive weapon as per Act 646
the Criminal Code Amendment Act,
2003. In this context we are not
determining how we would have
exercised our discretion in the
given situation. We are
considering whether given the
wide spectrum of the discretion
at the trial judge’s disposal he
exercised it within the
parameters of the law. We are
satisfied that the exercise was
properly conducted and would in
the circumstance affirm the
sentence of forty-five (45)
years IHL. In the event the
appeal is dismissed in its
entirety for lack of merit.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD) R. C. OWUSU
(MS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
DISSENTING
OPINION ON SENTENCE
DOTSE JSC;-
I have been
privileged to have read the
erudite judgment of my respected
brother, Akamba JSC. Even though
I am in complete agreement that
the appeal against conviction
must fail, I disagree that the
sentence of 45 years should be
affirmed.
I am not
unaware of the fact that the
appellant herein was tried and
convicted for an offence of
robbery with violence which is
one of the very serious crimes
that has plagued this country
for quite sometime now.
There have
been varied views that
imposition of harsh, long and
excessive prison sentences on
convicted persons accused of
robbery will not only keep away
these dangerous persons from
society for a long time, but
also serve as a deterrence to
others.
This it is
hoped, will prevent like minded
persons from committing similar
offences in future. The question
I want to pose here is, does
this phenomenon always achieve
this desired result? I do not
think so. This is because of
the alacrity with which these
crimes, especially robbery with
violence continue to be
committed in all parts of the
country makes me feel that,
perhaps the time has come for
the administrators of the
Criminal justice in Ghana to
re-think their policies and re-
strategise.
I am of the
candid view that, if we do not
quickly reform our criminal
justice system, then in the not
too distant future, as a country
we may be faced with the option
of using all our very scarce
resources to build more prison
facilities as well as cater for
the inmates of the prisons. This
is because of the apparent
breakdown of the criminal
justice system.
This is
because, the number of convicts
who are sentenced on a daily
basis to prison terms such as 40
years and above will create no
more space in the prison leading
to overcrowding and hence the
need to find additional space
and resources.
What should
be done under these
circumstances?
I am of the
view that, we need to revise and
reform our criminal justice
system such that section 294 of
the Criminal and Other Offences
(Procedure) Act, 1960 should be
amended to include more
effective ways of punishment
that will reduce the number of
years inmates spend under
custodial sentence.
It is
generally understood and
accepted that, the following are
the main aims for the imposition
of punishment:
1.
Retribution
2.
Deterrence
3.
Prevention
4.
Reformative
5.
Rehabilitation and
6.
Justice
By the
conviction and imposition of
punishment, the aim of
retribution would be deemed to
have been met anytime punishment
is imposed on convicts. However,
it is not certain what level of
retribution would be
satisfactory to the victim of
the crime. So this alone is not
a useful guide.
As I have
already stated, these harsh
sentences are not achieving the
desired deterrent effect. This
is possibly due to the manner in
which these sentences are
executed. It may be useful for
accused persons to serve their
prison sentences in their own
communities so that their peers
will realise that it does not
pay to engage in crime.
See the case
of Frimpong alias Iboman v
The Republic [2012] 1 SCGLR 297
holdings 7 and 8 thereof where I
espoused similar views.
By far,
prevention of crime is what any
serious criminal justice system
must seek to promote in exacting
punishments. It does appear that
as a nation we have not
succeeded in preventing crime by
the nature of punishment imposed
by the courts.
Reformation
and rehabilitation are twin
principles and are very critical
to the sustainability of any
criminal justice system
Unfortunately, this is where the
system has broken down because
of the collapse of the Social
Welfare and Community
Development Departments. To
succeed as a country, we need to
re-introduce the social welfare
concepts such that there will be
constant monitoring of
discharged prisoners, and if the
laws are amended, then with the
introduction of parole and or
suspended sentences, benefits
will be enjoyed by inmates and
there will then be shorter
custodial sentences that are
actually served, the rest will
be suspended and monitored.
Finally, with
all the above in place, justice
will be the fulcrum of any
punishment since all the
imbalances in the system will be
removed.
Bringing the
above scenario to the instant
appeal, I am of the considered
view that the sentence of 45
years is too harsh, excessive
and will be counter productive
to the aims and or purposes of
punishment outlined above.
In this
respect, considering all the
aggravating and mitigating
factors so expertly analyzed and
dealt with by my respected
brother Akamba JSC, I am still
of the view that a sentence of
30 years imprisonment with hard
labour be substituted for the 45
years.
Even though
am aware that this opinion is a
dissenting one and will not
affect the fortunes of the
appellant in anyway, I hope the
opportunity will soon be created
for me to deal with this issue
of long prison sentences that
have become the rule rather than
the exception.
The above are
the reasons why I departed from
my brothers and sister on the 45
years prison sentence and in
turn impose 30 years instead.
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
COUNSEL
NII AKWEI
BRUCE- THOMPSON ESQ. FOR THE
APPELLANT.
YVONNE
ATTAKORA OBUOBISA (CSA) FOR
THE REPUBLIC. |
