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Criminal law - Robbery –
Eye-witness to - Threat of force
or harm - Records of trial
court cannot be found - Right to
fair trial within a reasonable
time - Whether or not a that a
prima face case was made against
the appellant to warrant the
appellant to open his defence -
Whether or not the prosecution
proved their case beyond
reasonable doubt and the
conviction and sentence passed
was right - Whether or not the
sentence passed was too harsh in
the light of the fact that the
Appellant is a first offender
HEADNOTES
At about 1 a.m. on 9th
February 2002, some intruders
invaded the residence in Cape
Coast, of an Anglican Priest,
who was also an employee of
University of Cape Coast. Their
arrival at the premises was
heralded by gunfire and loud
noise. They were armed with guns
and cutlasses and numbered about
seven or eight. The purpose of
their intrusion was to steal
some money that had been given
to the priest to purchase a plot
of land for another Anglican
Church at Tema. The intruders
first went to the Outhouse (Boys
Quarters) occupied by the house
help of the Priest, threatened
him with cutlasses, and was so
put in fear of his life, that he
screamed for help from the
Priest. The Priest and other
occupants of the main house who
had been woken up by the noise,
also started screaming for
assistance from the neighbours,
but no help came The intruders
broke down the door of the
building by smashing it with
cement blocks, and then three of
the intruders entered fired two
shots at the priest, wounding
him in both thighs. Those
outside shouted back that they
were not to kill the priest but
to only take the money. In the
course of these events, the
priest heard the person who shot
him being referred to by the
name ‘Togbe’. He was then made
to lead them to his bedroom,
which the robbers ransacked for
the money, as well as other
items. When leaving, the robber,
who had fired the two shots,
fired a third shot at his
stomach. He fell down, groaned
and played dead Later that same
morning of 9th
February, and upon a tip-off,
the police visited a house known
to be occupied by certain
persons associated with criminal
activities and arrested three
suspects. The priest was
requested to attend at the
police station. Upon his arrival
at the Police Station, and
without any prompting, he
immediately pointed out one
person in a cell as the intruder
who was not masked, and who had
fired the three shots at him,
and was called ‘Togbe’ After
further investigation by the
Police, the accused was charged
with the offence of robbery.
Four other persons were later
arrested at different locations
in Cape Coast, but were released
for lack of evidence. At the end
of the trial, the High Court
sentenced the accused to 45
years (IHL). On appeal to the
Court of Appeal, the conviction
was affirmed, but having regard
to the fact that the accused was
a first offender, reduced the
sentence to 40 years.
HELD
However, the full meaning of
that principle is that one’s
home is more than a sleeping
place. It is also a place of
safety and security. Therefore,
where an intruder, by acts of
violence overcomes a man’s
ability to protect the sense of
safety and security that his
home must offer, the
psychological scars left on the
victim are immeasurable.
Despite
all these considerations above,
however, the sentence of 40
years is somewhat harsh, and a
sentence of 30 years
imprisonment in hard labour
should certainly be adequate
punishment for the crime he
committed. Therefore, in
consonance with the sentence
imposed by the Supreme Court on
Kwame Nkrumah @Taste, and
the dicta of Dotse JSC in
Frimpong alias Iboman
(supra), we would reduce the
sentence of 40 years and
substitute 30 years in hard
labour, from the date of
conviction.
The appeal against conviction
fails in its entirety but the
appeal against sentence
succeeds.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Criminal Offences Act, 1960 (Act
29)
Evidence Act, 1975 (NRCD 323)
CASES REFERRED TO IN JUDGMENT
Bonuah alias Blay v. The
Republic [2015-2016] 2 SCGLR
1494
Kwame Nkrumah @Taste v The
Republic [2020] Criminal Law
Report of Ghana
Behome v. The Republic [1979]
GLR 112
Tsatsu Tsikata v The Republic
[2003-2004] SCGLR 1068
Miller v Minister of Pensions
[1947] 2 All ER 372
Abdulai Fuseini v The Republic
[2020] Criminal Law Reports
Gligah & Atiso v The Republic
[2010] SCGLR 870
Kwashie v The Republic [1971]
GLR 488,
Kamil v The Republic [2011]
1SCGLR 300,
Frimpong alias Iboman v The
Republic [2012] 1SCGLR 297
Owusu Banahene v The Republic
[2017-2020] SCGLR 606
Semayne’s Case (1604) 5 Co Rep.
91; 77 ER 195
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary
Essentials of
The Ghana Law Of Evidence by
S.A. Brobbey
DELIVERING THE LEADING JUDGMENT
PROF. MENSA-BONSU (MRS.) JSC:-
COUNSEL
DANIEL ARTHUR ESQ. FOR THE
APPELLANT.
BEN ANSAH AGYEMFRA (SENIOR STATE
ATTORNEY) FOR THE RESPONDENT
PROF. MENSA-BONSU (MRS.) JSC:-
This is an appeal against
conviction, and in the
alternative, against sentence,
for a crime of robbery committed
in February 2002. The High
Court, Cape Coast, tried and
convicted the appellant on 27th
July, 2005 and sentenced the
accused to 45 years imprisonment
with hard labour. An appeal to
the Court of Appeal some nine
years later affirmed the
conviction by the High Court on
24th May, 2016, but
reduced the 45-year sentence
imposed to 40 years.
FACTS
At about 1 a.m. on 9th
February 2002, some intruders
invaded the residence in Cape
Coast, of an Anglican Priest,
who was also an employee of
University of Cape Coast. Their
arrival at the premises was
heralded by gunfire and loud
noise. They were armed with guns
and cutlasses and numbered about
seven or eight. The purpose of
their intrusion was to steal
some money that had been given
to the priest to purchase a plot
of land for another Anglican
Church at Tema. The intruders
first went to the Outhouse (Boys
Quarters) occupied by the house
help of the Priest, threatened
him with cutlasses, and was so
put in fear of his life, that he
screamed for help from the
Priest. The Priest and other
occupants of the main house who
had been woken up by the noise,
also started screaming for
assistance from the neighbours,
but no help came. They scrambled
for hiding places in the house,
and so some took refuge in the
toilet. The intruders broke down
the door of the building by
smashing it with cement blocks,
and then three of the intruders
entered. Two wore mask, but one,
who was dressed in military
“camouflage” shorts, a black Tee
shirt, boots and cap, was not
masked. He carried a pistol and
torch. One of the masked ones
kicked the priest from behind
and asked “Where is the money,
where is the money?” The robber,
who was not masked, fired two
shots at the priest, wounding
him in both thighs. Those
outside shouted back that they
were not to kill the priest but
to only take the money. In the
course of these events, the
priest heard the person who shot
him being referred to by the
name ‘Togbe’. He was then made
to lead them to his bedroom,
which the robbers ransacked for
the money, as well as other
items. When leaving, the robber,
who had fired the two shots,
fired a third shot at his
stomach. He fell down, groaned
and played dead. The robbers
then left, taking with them the
following items:
1.
18 Million cedis
2.
$100 note
3.
$5 note
4.
One wrist watch
5.
A bottle of perfume
6.
One radio
7.
One office bag.
After the attackers left, help
came, and the priest was rushed
to the hospital for medical
treatment. He was treated and
discharged. A report was also
made to the police.
Later that same morning of 9th
February, and upon a tip-off,
the police visited a house known
to be occupied by certain
persons associated with criminal
activities and arrested three
suspects. The priest was
requested to attend at the
police station. Upon his arrival
at the Police Station, and
without any prompting, he
immediately pointed out one
person in a cell as the intruder
who was not masked, and who had
fired the three shots at him,
and was called ‘Togbe’. The
suspect, now the appellant in
the instant case, was still
wearing the ‘camouflage’ shorts
but without Tee Shirt or cap.
Two days later, the priest was
called again to the Police
Station, this time, to identity
the Tee Shirt and cap; which he
positively identified as what
‘Togbe’ was wearing.
After further investigation by
the Police, the accused was
charged with the offence of
robbery. Four other persons were
later arrested at different
locations in Cape Coast, but
were released for lack of
evidence. At the end of the
trial, the High Court sentenced
the accused to 45 years (IHL).
On appeal to the Court of
Appeal, the conviction was
affirmed, but having regard to
the fact that the accused was a
first offender, reduced the
sentence to 40 years. This is
the appeal that has arrived at
this honourable court.
GROUNDS OF APPEAL
“a. The Learned Justices
of the Court of Appeal
respectfully erred when they
held that the learned Trial
Justice was right in ruling that
a prima face case was made
against the appellant to warrant
the appellant to open his
defence.
b. The Learned Justices
of the Court of Appeal erred
when they held that the
prosecution proved their case
beyond reasonable doubt and the
conviction and sentence passed
on him by the trial judge was
right.
c. In the unlikely
event, without admitting same
that the conviction was
sustainable, the sentence of 40
years (Imprisonment with Hard
Labour) imposed by the Court of
Appeal, is yet too harsh in the
light of the fact that the
Appellant is a first offender”.
CASE FOR THE APPELLANT
The appellant contends first
that the judgment of the High
court was not included on the
record of Appeal because it
could not be found. He further
contended that the prosecution
presented only two witnesses and
out of the two only one, the
priest (PW1) testified as an
eye-witness to the robbery,
and that his testimony was
vehemently challenged by the
appellant that he was not the
“unmasked man” who “allegedly
shot PW1 during the alleged
robbery”. Appellant now insists
in his statement of case that
“From the testimony of PW1, at
the time of the alleged robbery,
he was not alone but was with
other persons including a
houseboy who also witnessed the
same event. Indeed, according to
PW1, it was this house [sic] who
was first attacked by the
robbers and who shouted PW1’s
name for help…. My Lords, it is
clear from PW1’s testimony that
the houseboy had a close
encounter with the alleged armed
robbers and stood in a better
position to corroborate the
testimony of PW1 that the
appellant was one of the alleged
robbers.”
The issues in this case, then,
are that the appellant is
challenging his conviction upon
procedural and substantive
grounds. On the procedural
front, he suggests that there is
a concern that the judgment of
the trial court was not
available to the Court of
Appeal; and also contends that
although the prosecution failed
to make a prima facie case
against him, the trial court did
not call upon counsel to make a
submission of no case. On the
substantive evidence upon which
he was convicted, appellant is
challenging the process of his
identification; and contends
that since it was on the
evidence of only one witness
that he was convicted, there was
no corroboration. Further, that
there were other “eye-witnesses”
to the event who could have been
called to testify, but were not
called. He is, by this,
suggesting that his conviction
was unsafe, and ought to have
been set aside. Appellant
further argues in ground c of
his appeal that in the event
that this court is minded to
affirm his conviction, the
sentence of 40 years imposed by
the Court of Appeal should be
reviewed downwards in light of
the fact that as he was a first
offender.
As grounds a and b
were argued together the same
mode will be applied in the
instant appeal.
The appellant, in his statement
of case, merely remarked that
the trial court’s judgment was
not on the record of appeal.
Although this was not a ground
of appeal to the Supreme Court,
the fact that it had been
mentioned in the Statement of
Case is sufficient reason to
address the matter of what an
appellate court must do when
vital
records of a trial court cannot
be found. This fact was
acknowledged at the Court of
Appeal when some of the records
of the trial court, in
particular, the court’s
judgment, could not be found.
This issue of lost records
confronted the Supreme Court in
Bonuah
alias Blay v. The
Republic [2015-2016] 2 SCGLR
1494, and the court took the
opportunity to lay down the law
in respect of when appellate
courts confront a problem of
lost or destroyed trial records.
Bonuah alias Blay was a
case in which the accused had
been convicted of conspiracy to
commit robbery and robbery by
the High Court, Sunyani in
February, 2002, and sentenced to
life imprisonment. He appealed
against the sentence, contending
that it was harsh and excessive,
considering the fact that
although the offence was
committed by use of offensive
weapon, there had been no death,
which might have justified such
harsh punishment. The Court of
Appeal declined to interfere on
jurisdictional grounds since
life imprisonment was the
minimum sentence under the
prevailing law at the time of
his conviction. After many
years, he applied for, and was
granted, leave to appeal to the
Supreme Court out of time.
At the hearing of the appeal at
the Court of Appeal, it became
clear that a substantial part of
the records of the trial court
could not be located, thereby
disabling the appellate court
from conducting a re-hearing of
the case. The Court of Appeal
affirmed the judgment of the
High Court. On appeal to the
Supreme Court it transpired that
“the entire testimony and
evidence of nine prosecution
witnesses, as well as the
appellant’s, could not be
traced,” but the Court of
Appeal had gone ahead and heard
the appeal anyway. This issue of
lost trial records caused the
court to examine the
jurisprudence on lost or
destroyed judicial proceedings.
At p. 1502, Georgina Wood C.J.,
grounding the basis in every
person’s
right to fair trial within a
reasonable time, as
enshrined in article 19(1) of
the 1992
Constitution, stated the law
as follows:
“Generally, the responsibility
of keeping court records in safe
and proper custody and producing
them on demand rests on the
Registrar of the relevant
court…. This right, on demand
and subject to the fulfilment of
all necessary legal and
administrative requirements,
includes an untrammeled access
to the full record of the trial
proceedings. We state this as
the standard rule, as clearly,
this right may be lost or
curtailed through an appellant’s
own criminal actions; the
clearest example being where an
appellant conspires with others
to have all his trial records
destroyed. But, an appellant’s
inability, through no fault of
his, to fully access the trial
records, for purposes of
obtaining a merit-based
determination of his appeal, is
a clear violation of his
constitutional right to fair
hearing. In this instant case,
the only available judicial
records were the statement of
offence, the facts of the case,
the bill of indictment, the
appellant’s cautioned
statements, the summing up and
the sentencing and consequential
orders of the trial court.”
The learned Chief Justice
surveyed a number of
jurisdictions, some of which had
statutes on the subject, and
others which only had judicial
authorities on the point. She
found that there was a common
thread of practice running
through the two distinct
positions. At p. 1510 she stated
thus:
“The clearly distinct
jurisprudence which emerges from
a comparative analysis of the
governing principles in both
statutory and non-statutory
jurisdictions alike is this: an
appellant is not automatically
entitled to acquittal upon the
mere proof of lost or destroyed
trial proceedings. The quantum
or magnitude of the missing
record, lost or destroyed and
the centrality to the resolution
of the appeal is the first
criterion that merits attention.
Thus, it is not every missing
part of a trial record that
would prejudice a merit-based
determination of an appeal but
only that which is vital to its
fair, just and conclusive
determination…”
Further rules were enunciated on
this subject to guide appellate
courts on such occasions, as
appropriate.
The loss of records also became
an issue in
Kwame
Nkrumah @Taste v The
Republic [2020] Criminal Law
Report of Ghana p.294. This
case was decided as the instant
appeal, in the same High Court
in Cape Coast; in the same week
(one on 27th July,
2005, and the other on 28th
July 2005); and whose records
could not be found for
ostensibly the same reasons –
the death of the trial judge.
The uncanny resemblance of the
facts pertaining to the loss of
records in both cases bears
noting. The facts of Kwame
Nkrumah @Taste were that
there had been a robbery attack
on a hotel in Dunkwa-On-Offin in
the Central Region. The
appellant had been identified by
some of the victims of the
crime, and so he and his
co-accused were tried by the
High Court, Cape Coast, on two
counts of conspiracy to commit
robbery, and robbery. They were
convicted and sentenced to 20
years imprisonment each, on the
charge of conspiracy, and 45
years imprisonment in hard
labour for robbery. Both
sentences were to run
concurrently.
Six years after conviction he
appealed against his
conviction. Although some of
the judicial records could not
be found. The Court of Appeal
affirmed the conviction. The
appellant brought this appeal
contending, inter alia, that the
Court of Appeal erred in hearing
the appeal without a full record
of the trial court proceedings.
The judgment of the Court of
Appeal noted the following:
“The charge sheet, caution
statement of the appellant which
the appellant relied upon during
trial, and the … judgment of the
trial court were missing. The
Registrar of the trial court was
ordered to rectify the record
but was unable to do so with the
explanation that: “I have been
informed by the Court Clerk of
the late Justice Nana Gyamera
Tawiah that after he delivered a
lot of judgments he took away
some record books, judgments and
proceedings. The court
therefore finds it difficult to
lay hands on a lot of records
required for
[sic]”.
It then went ahead to re-hear
the case and dismiss the appeal.
On further appeal to the Supreme
Court, the Court, speaking
through Sophia Adinyira JSC at
p.301 said
“We have examined the available
record and we find a certified
true copy of the day-to-day
proceedings of the trial
obviously obtained from the
record book… We have examined
the grounds of appeal in the
light of the available record of
proceedings and we are of the
firm belief that the part of the
record which is missing is not
material to a determination of
the appeal and it would not
occasion any miscarriage of
justice. After all an appeal is
by way of rehearing and the
Court of Appeal was under a duty
to examine the evidence on the
record to ascertain whether
there was sufficient evidence to
support the conviction.”
The trajectory of the instant
appeal is almost on all fours
with the Kwame Nkrumah @Taste
case. In the instant case, the
Court of Appeal, apprised of the
situation, sought to find out
whether it would be possible to
re-hear the case, despite the
loss or unavailability of the
record. This was because counsel
for the appellant had sought to
use the loss of trial records as
the basis for seeking bail
pending appeal; and to request a
trial de novo, ten years after
the appellant was convicted. On
24th November, 2015,
the Court of Appeal ordered the
Registrar of the High Court,
Cape Coast to reconstruct the
record of proceedings with
whatever materials he had at his
disposal, so that the case could
proceed. This was done, and on
25th January, 2016 ,
when enough of the record had
been reconstructed, counsel for
appellant, was ordered to file
his submissions within 21 days,
and he obliged. Presumably he
was satisfied with the
reconstructed record and that
was why he abandoned his quest
for a trial de novo, and
the appeal was able to proceed
to a conclusion. It is true that
the reconstructed record did not
include the judgment of the
trial court and medical report
exhibits. However, on the
reconstructed record, the
reports from the Medical Officer
on the extent of the victim’s
injuries were tendered without
objection and admitted into
evidence by the trial court as
Exhibits. Therefore, the absence
of those documents
notwithstanding, no miscarriage
of justice had been occasioned
to the appellant. It therefore
sounds strange for counsel in
the instant appeal to continue
to complain that the judgment of
the trial court was not on the
record, when it was not a
critical component for a
successful re-hearing of the
case by the Court of Appeal.
Ground a of this appeal
complains of the fact that a
prima facie case had not been
made before the accused was
called upon to open his defence.
What, then, is a prima facie
case?
Black’s Law Dictionary
defines “prima facie case” thus:
“A party’s production of
enough evidence to allow the
fact trier to infer the fact at
issue and rule in the party’s
favour”. Thus, the trial
court was required to come to a
particular conclusion if enough
evidence had been produced to
allow the court to “infer the
fact at issue and rule in the
party’s favour”. What was the
evidence to be led by the
prosecution in the instant
appeal for the trial court to be
able to make such inference? The
offence of robbery is defined
under section 150 of the
Criminal
Offences Act, 1960 (Act 29)
thus:
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 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
thing.
In
Behome v. The Republic
[1979] GLR 112, it was held
that
“One is only guilty of robbery
if in stealing a thing he used
any force or caused any harm or
used any threat of criminal
assault with intent thereby to
prevent or overcome the
resistance of his victims, to
the stealing of the thing.”
In its turn, the offence of
stealing, which lies at the core
of the offence of robbery, is
defined in section 125 of Act 29
as “A person steals who
dishonestly appropriates a thing
of which that person is not the
owner.” Therefore, the
elements of the offence of
robbery are:
1. The accused dishonestly
appropriated a thing not owned
by him or her, and in the care
or custody of the victim;
2. The accused used force or
harm or threat of force on the
victim or on the person of
another;
3. The force or
threat of
force or harm was intended
to prevent or overcome any
resistance to the stealing.
When these elements of the
offence of robbery have been
proved by the evidence, a prima
facie case would have been made
against the accused. It would
then require the accused person
to lead evidence to create
reasonable doubt as to his
guilt. Such evidence was led by
the prosecution. The Court of
Appeal rightly held that
“It is our finding and
holding that the evidence of PW1
and PW2 proved the offence of
robbery and therefore a prima
facie case was made. The learned
trial judge was therefore right
in ruling that a prima facie
case was made against the
appellant to warrant the
appellant to open his defence. …
the prosecution was required to
prove all the ingredients of the
offence of robbery at least not
beyond reasonable doubt when
considering whether a prima
facie case was made by the
prosecution for the accused to
be called upon to open his
defence.”
The Court of Appeal rested its
decision on the Supreme Court
decision of
Tsatsu
Tsikata v The Republic
[2003-2004] SCGLR 1068 on
the standard of proof that would
suffice as satisfying the
requirement of ‘prima facie
case’, for an accused to be
called upon to open his or her
defence. At pp. 1094-95, the
Supreme Court per Prof Ocran,
JSC stated that the standard of
proof at that stage could not be
at the same level of ‘proof
beyond reasonable doubt’ as
required at the end of the case.
“Indeed, if the submission of no
case is made just at the close
of the prosecution’s case and
cross-examination of its
witnesses, how could one
seriously speak of proof beyond
reasonable doubt when the
defence has not had a full
chance of punching holes in the
prosecution’s case to possibly
raise doubt in the mind of the
trier of facts by calling its
own witnesses and presenting
counsel’s address? It seems as
if we have to look for a lower
standard of proof at this
preliminary stage in the
criminal proceedings.”
Therefore, concluded the Court
of Appeal,
“the decision as to whether
or not the prosecution’s case
has been proved beyond
reasonable doubt should be made
after the end of the entire
trial after the consideration of
the prosecution’s case and that
of the defence”.
On this exposition of the law,
we cannot fault the conclusion
of the Court of Appeal that a
prima facie case was, indeed,
made against the appellant.
Ground b
The appellant has also attacked
the conviction on the ground
that the Court of appeal was
wrong in holding that the
prosecution proved its case
beyond reasonable doubt. On this
score the appellant questioned
the identification of the
perpetrator by PW1; the
credibility of PW1 as a single
witness without corroboration;
and the failure of the
prosecution to call a material
witness, as all tending to
undermine the discharge of the
prosecution’s burden as to the
standard of proof.
It is trite law that the burden
of proof in criminal cases rests
on the prosecution and that the
standard is “proof beyond
reasonable doubt”. Section 11(2)
of
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 burden thus has two aspects:
the duty to lead evidence on any
fact required to be proved; and
the duty to provide sufficient
evidence to persuade a
reasonable mind as to existence
of any such fact otherwise known
in American criminal
jurisprudence as ‘the burden of
going forward’; and ‘the burden
of persuasion’. To satisfy the
burden of persuasion, the
standard of ‘proof beyond
reasonable doubt’ must be met.
The meaning of this hallowed
phrase of ‘proof beyond
reasonable doubt’ has been the
subject of many decisions. The
most cited of these is by Lord
Denning in
Miller
v Minister of Pensions
[1947] 2 All ER 372 when he
explained the standard of proof
at p.373 thus:
“It need not reach certainty,
but it must carry a high degree
of probability. Proof beyond
reasonable doubt does not mean
proof beyond the shadow of a
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 in
a sentence of course it is
possible but not the least
probable, the case is proved
beyond reasonable doubt, but
nothing short will suffice.”
This is a very high standard
indeed. What was the evidence
produced against this appellant?
The appellant had denied
involvement in the crime and
questioned the mode of
identification of his person by
PW1, as the intruder who was not
masked, and who shot him. On
this score, the Court of Appeal
analysed the evidence into some
detail. The evidence showed that
the priest described the attire
of the intruder who was not
masked, and who was addressed by
his co-operatives as ‘Togbe’, in
succinct detail. In any case,
according to the witness, “All
the lights in the house were
on”. What difficulty would there
be for an adult of sound mind to
meet a person without a mask
when “all lights are on”, and
who is wearing military
“camouflage” shorts, a black Tee
Shirt and a cap, to be able to
give a vivid description of the
person’s attire at the material
time and to identify that person
later? In
Abdulai Fuseini v The
Republic [2020] Criminal Law
Reports 331, the appellant,
who together with four others,
had been charged with, and
convicted of conspiracy to rob
and robbery appealed to the
Supreme Court after the Court of
Appeal affirmed his conviction.
He contended that since the
event took place at midnight, he
could not have been properly
identified by the prosecution
witness. The evidence, however,
showed that it was a moonlit
night so it was not impenetrably
dark. The Supreme Court,
speaking through Dotse JSC,
agreed with the Court of Appeal
that his challenge could not be
upheld because it was possible
for a person seen under
moonlight to be recognized
later. In the instant case the
appellant was seen under the
full glare of electric lights so
there should be no surprise if
the witness was able to identify
him by day. Consequently, PW1
had reason to be emphatic in his
testimony under
cross-examination, when he
stated, “My Lord he shot me
and I saw him.” Was it also
by coincidence that the
appellant was arrested while
wearing shorts identical to
those worn by the attacker a few
hours earlier? PW1 maintained
that when he saw and identified
appellant at the police station,
he was without the Tee shirt and
cap, so his mention of those
items of clothing and subsequent
identification of them as
Exhibits are instructive of how
well he observed his attacker.
Was it also a coincidence that
the police found in the
appellant’s possession a cap and
black Tee shirt matching the
exact description, which were
then identified and admitted
into evidence without objection?
The excuse that those items
could be bought by anyone at a
second-hand clothes market
qualifies as the “fanciful
possibilities” of which Lord
Denning spoke, in Miller’s
case. Was it also by coincidence
that one who owned the exact
same items of clothing
identified by PW1 also happened
to answer to the name ‘Togbe’,
which PW1 had heard used, to
call him? PW1 had led evidence
which was not challenged under
cross-examination. In PW1’s
testimony, he stated that they
took the money, and after
‘Togbe’ fired another shot at
him in the stomach, he played
dead in order to let them go
away. The robbers went outside
and he heard them say, “Cpl
Togbe, we said you should not
kill him.” This was not
challenged on cross-examination.
What clearer evidence could
there be that the person who
fired the “unnecessary shot”
after they had taken the money
and other items was ‘Cpl.
Togbe’? Was there not an
irresistible inference that
killing the victim was contrary
to the group’s plans for the
robbery, hence their displeasure
at ‘Cpl Togbe’ for what he had
done? Under cross-examination,
when asked whether he was
“called ‘Togbe’ by the armed
robbers at the premises of PW1,
his response was an obtuse “that
is not exact”, and yet he had
been responding confidently to
every question “That is not
true”. Was the “that is not
exact” answer a denial that he
was, or was not ‘Togbe’ or ‘Cpl
Togbe’? Does a man who is asked
to confirm or deny a certain
name as his, raise a reasonable
doubt with a “that is not exact”
answer?
Again, in respect of the
identification, he alleged that
the shorts he wore when he was
arrested were bought in open
market in Accra, so anyone could
acquire such second-hand
clothes. There was evidence that
PW1 identified him at the Police
Station as his attacker.
However, under
cross-examination, he claimed “I
am not an armed robber and
secondly I don’t know him
anywhere” Yet, on the evidence
his positive identification at
the police station was by PW1.
In sum, all his denials could
not create a reasonable doubt in
anyone’s mind that he was not
the attacker that night.
The appellant has also
complained about having been
convicted without calling a
material witness. The Appellant
claimed that he was with one
Peter Eshun, and that if they
were together as he claimed, why
had Peter Eshun not been called
as a witness; and why was he the
only one charged? One can make
short shrift of this complaint.
The appellant had denied having
participated in the attack. He
claimed he was with his wife
when the Police broke down his
door and arrested him and
wondered why she had not been
called to testify. However, in a
statement given on 10th
February, the day after the
event, he alleged that when he
saw many policemen outside his
door he ran away. Faced with two
inconsistent accounts of the
location of his arrest only a
day earlier, the judge sought
clarification:
Accused. “I was arrested
in the vicinity
Judge. Not in your
room?
Accused. When I was
arrested in my room they
released me”.
Asked to reconcile the two
statements he gave as to the
location of his arrest, he
claimed both were true. He even
had a third account of having
been arrested while on his way
to his wife’s place. He stated
that he did not believe there
was sufficient evidence linking
him to the case; and that had he
been guilty of the offence he
would have run away to Togo
where he comes from, and not
wait to be arrested a few hours
later while en route to
visit his wife. Having already
stated earlier that he and his
family, (his wife included)
lived with him where he had been
arrested, he had something
different to say about where his
wife lived. These three
accounts did not clear the doubt
as to where he was arrested, but
only compounded the confusion
and showed his testimony up as
not credible. How, then, could
the wife be a material witness,
when even the issue of whether
or not they were together at the
time of his arrest could not be
conclusively established?
Again, the appellant did not
call any witness in his defence.
He could have done so as he was
required under section 10(1) of
NRCD 323 when the burden of
persuasion shifted to him after
a prima facie case had been made
against him. Section 10(1)
provides that his burden of
persuasion required him
“to raise a reasonable doubt
concerning the existence or
non-existence of a fact or that
he establishes the existence or
non-existence of a fact by a
preponderance of probabilities…”
With a much lighter burden than
that of the prosecution’s,
section 11(3) provides that
“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
his guilt.
The appellant was therefore not
prohibited from calling any
witnesses, but he did not do so.
The appellant has also
complained that he alone had
been charged with the offence of
robbery, when he was with his
business partner Peter Eshun’ at
the material time.
Unfortunately for the appellant,
the offence with which he was
charged was not one that
required a plurality of minds,
such as conspiracy. He was
charged with robbery, which is
capable of being committed by a
solo act of one person.
Therefore, even though on the
evidence there were many other
people, who could not be
identified because they were
masked, that fact does not
affect the liability of
appellant in any way. It is
perfectly possible for a person
to be liable for an offence even
when his associates are unknown,
or cannot be found. Section
13(3) of the Criminal Offences
Act, 1960 (Act 29) provides as
follows:
“Where an event is caused by
acts of several persons acting
jointly or independently,
each of those persons who
intentionally or negligently
contributed to cause the event
has, for the purposes of this
Act, … caused the event;”(emphasis
supplied.)
The law is thus clear that one
person can alone answer for an
offence committed by him and
other persons. Therefore, the
prosecution in the instant
appeal did no wrong by
prosecuting the appellant alone
for the offence, since the
others could not be identified
by the victim.
The appellant further complains
that he was convicted on the
uncorroborated testimony of a
single witness. The response to
this complaint is in the dictum
of Dotse JSC in
Gligah
& Atiso v The Republic
[2010] SCGLR 870. At p.
887 he stated:
We have always held the view
that in establishing the
standard of proof required in a
civil or criminal trial, it is
not the quantity of witnesses
that a party upon whom the
burden of proof rests, calls to
testify that is important, but
the quality of the witnesses
called and whether at the end of
the day the witnesses called by
the party have succeeded in
proving the ingredients required
in a particular case. In other
words, does the evidence led
meet the standard of proof
required in a particular case?
If it does, then it would be a
surplusage to call additional
witnesses to repeat virtually
the same point or seek to
corroborate evidence that has
already been corroborated.
This position has also been
supported and relied on by
Sophia Adinyira JSC in Kwame
Nkrumah @Taste (supra).
Dotse JSC went on further and
said that if the witness was
going to give any evidence that
had already been corroborated,
nothing had been lost by not
calling the person. As the Court
of Appeal in the instant case,
rightly noted that,
“Any other witness like the
house help would only repeat the
evidence led by PW1 [the
priest]… The testimony of PW1
together with that of PW2 were
credible and established all the
ingredients of robbery.
Consequently, the failure by the
prosecution to call the houseboy
had not resulted into a
miscarriage of justice against
the appellant.”
We do agree with this conclusion
of the Court of Appeal. In any
case, on the evidence on record,
the house help was not in the
main house, whose door was
smashed with cement blocks by
the intruders. He remained
outside, with the rest of the
four or so other attackers who
had threatened him and got him
to come out of the Boys Quarters
[Outer house]. How was he going
to be able to testify to the
events that occurred in the room
of the main house when he was
not there? In his evidence on 22nd
June, 2005, PW1 testified thus:
“We all retreated, some went to
the toilet and locked themselves
in and I came out and the one
holding the pistol shot me: this
young man standing here (they
called him Togbe) shot me on the
right thigh and the left thigh
and I was bleeding. One of them
who was wearing a mask kicked me
from behind and they were saying
“where is the money, where is
the money” and those outside
were shouting: “don’t kill him
take the money, don’t kill him
and they led me to my room”
From this evidence, which stood
unchallenged under
cross-examination, there was no
other real eye-witness to the
entire sequence of events that
occurred inside the house,
because the other occupants had
taken refuge in the toilet, and
other locations to escape the
attackers. Fortunately, as
Justice
S.A. Brobbey observes in his
book, ‘Essentials
Of The Ghana Law Of
Evidence –Datro Publications
Accra, Ghana 2014, p.86, “the
position of the law is that a
case can be decided on the
evidence of one witness”. On
both grounds a and b
the appeal fails.
Gound c
c. In the unlikely
event, without admitting same
that the conviction was
sustainable, the sentence of 40
years (Imprisonment with Hard
Labour) imposed by the Court of
Appeal, is yet too harsh in the
light of the fact that the
Appellant is a first offender”.
This ground of appeal raises
issues of the application of
principles of sentencing. The
appellant complains that the
sentence is harsh because he is
a first offender. During
sentence, Counsel who was
denying that the accused was
involved at all said:
“My Lord at this stage we would
like to ask the court to have
the greatest mercy in terms of
sentence on the accused person.
He is a young man and his first
brush with the law is just this
one and I believe the bench
would have sympathy on him”.
The appellant appears to think
that being a first offender or
being young gives one an
entitlement to lighter
punishment than would otherwise
be imposed. Nothing could be
farther from the truth. It is
important to highlight the fact
that these are only two of the
many factors that the court
considers in imposing punishment
Any examination of a list of the
factors would put the
seriousness of the offence first
before mitigating factors that
the court could consider at its
discretion. There is no
entitlement since it is at the
discretion of the court. A long
line of cases, such as
Kwashie v The Republic
[1971] GLR 488, Gligah &
Atiso v The Republic
[2010] SCGLR 870; Kamil v
The Republic [2011]
1SCGLR 300, and Frimpong
alias Iboman v The Republic
[2012] 1SCGLR 297, provide a
list of the factors a court may
consider during sentencing.
However, the list is not an
exhaustive one, and the courts
continue to add to it as
appropriate.
In
Owusu Banahene v The
Republic [2017-2020] SCGLR
606, the Supreme Court per
Sophia Adinyira JSC at p. 608
restated the factors that a
court could consider in
determining the length of
sentence to include:
1. Any period of time spent
in lawful custody in respect of
that offence before the
completion of his trial [Article
14 (4) of the Constitution,1992]
2. The intrinsic seriousness
of the offence.
3. The degree of revulsion
felt by law abiding citizens of
the society for the particular
crime.
4. The premeditation with
which the crime was convicted.
5. The prevalence of the
crime within the particular
locality where the offence took
place, or in the country
generally.
6. The sudden increase in the
incidence of the particular
crime.
7. Mitigating circumstances
such as the extreme youth, good
character, remorse and
reparation
8. Aggravating circumstances
such the violence or the manner
in which the crime was
committed.
A consideration of these factors
clearly indicate that the
youthfulness or inexperience of
the accused are only two of the
important factors for
consideration. To the contrary,
a consideration of the
“aggravating circumstances such
the violence or the manner in
which the crime was committed”,
does not operate in this
appellant’s favour. In the
instant case, the evidence of
PW1, which stood unchallenged,
was that the robbers believed he
was dead, as he pretended to be,
and allegedly criticised their
partner-in-crime that he should
have just taken the money, and
not killed the Priest. Knowing
that a dead body was bound to
bring the law onto their tracks
very quickly, they were unhappy
with what he had done. On the
evidence, firing a third shot at
a man already immobilized by two
shots to both his thighs and
bleeding was needless cruelty,
even for his co-robbers.
Counsel for respondent observed
in the statement of case that
there was nothing about
appellant’s behaviour that
showed that he was a first
offender. The notion of “first
offender” usually means that it
is the first time the person has
been caught in the net of the
law, and not necessarily that it
is the first time he has
indulged in that activity.
What the appellant did was very
grave. To attack a man in his
own home, and in his own bedroom
is a grievous act. Sir Edward
Coke stated in
Semayne’s
Case (1604) 5 Co Rep. 91; 77 ER
195, “That the house of every
one is to him as his …castle and
fortress, as well for his
defence against injury and
violence, as for his repose.”
This has been restated in the
now-hallowed principle at common
law as, “A man’s house is his
Castle”. However, the full
meaning of that principle is
that one’s home is more than a
sleeping place. It is also a
place of safety and security.
Therefore, where an intruder, by
acts of violence overcomes a
man’s ability to protect the
sense of safety and security
that his home must offer, the
psychological scars left on the
victim are immeasurable.
Despite all these considerations
above, however, the sentence of
40 years is somewhat harsh, and
a sentence of 30 years
imprisonment in hard labour
should certainly be adequate
punishment for the crime he
committed. Therefore, in
consonance with the sentence
imposed by the Supreme Court on
Kwame Nkrumah @Taste, and
the dicta of Dotse JSC in
Frimpong alias Iboman
(supra), we would reduce the
sentence of 40 years and
substitute 30 years in hard
labour, from the date of
conviction.
The appeal against conviction
fails in its entirety but the
appeal against sentence
succeeds.
PROF.
H. J. A. N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME
COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME COURT)
A.
LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE
SUPREME COURT)
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
DANIEL ARTHUR ESQ. FOR THE
APPELLANT.
BEN ANSAH AGYEMFRA (SENIOR STATE
ATTORNEY) FOR THE RESPONDENT |
