DZAMEFE, JA

The appellant Atta Bonsu was charged with the following offences: -

COUNT 1

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT ROBBERY CONTRARY TO SECTION 23 (1) andSECTION149 of Act 29/60 as amended by Act 646 of 2003.

PARTICULARS OF OFFENCE

ATTA BONSU, a trader MOSES AWUAH a carpenter on the 4th day of January 2010 at Santase round about, Kumasi in the Ashanti Region and within the jurisdiction of this court did agree with one Moses Awuah to commit robbery.

COUNT 2

STATEMENT OF OFFENCE

ROBBERY CONTRARY TO SECTION 149 OF ACT 29/60 AS AMENDED BY ACT 646 OF 2003.

PARTICULARS OF OFFENCE

ATTA BONSU, A TRADERMOSES AWUAH a carpenter on the 4th day of January 2010 at Santase round about, Kumasi in the Ashanti Region and within the jurisdiction of this court broke into the church premises and made away with a set of musical instruments valued at Gh¢30,000 cedis.

PLEA                          

Plea of accused persons:                              

COUNT ONE (1)   -                             A1      -           NOT GUILTY

                                                              A2      -           NOT GUILTY

COUNT TWO (2)   -                             A1      -           GUILTY WITH EXPLANATION

                                                              A2      -           NOT GUILTY

 Facts

The complainant in this case was married to prophetess Hammond Osei of the Strong Tower Global Church at Santasi Round about. At dawn of 4thJanuary 2010 the 2nd Accused broke into the Church premises and made away with a set of musical instrument; one guitar, two hand speakers, four equalizers, four comfier and one combo, one compressor and one trumpet. All these are value at Gh¢30,000. The 2nd accused finding it difficult to cart the booty away divided them into two and had one part in the shop of one Yaw Owusu - a witness. Having returned to cart the items from Yaw Owusu’s shop they met some persons gathered at the vicinity to enable them take possession of the items, one of the two gave warning shots (i.e. one of the accused persons gave warning shot). This forced those gathered there to flee and quickly the two managed to cart the booty away. The two later returned to Yaw Owusu’s shop to deny the allegation. It was at this point that Yaw Owusu asked why they fired the warning shot before collecting their own property. The 2ndaccusedpleaded with the witness to keep it a secret for a handsome reward. The witness then disclosed to them that he was not the only person who saw them and mentioned other such as Maxwell Ayoo, Anaba and some others and therefore it would be difficult to prevent that piece of information from being leaked to the public. Accused again approached Maxwell Ayoo to plead for secrecy. The information got to the police and eventually the accused were arrested. Police have so far returned all the stolen items.

Explanation of A2 to Count 2

A2 states that it is true that the items were collected by us; myself and A1 understood to do this. But as far as the firing of gun shots were concerned we know nothing about it.

A2 inform court that wishes to change his plea.

BY COURT: - Plea be taken afresh for 1st accused.

COUNT ONE (1)        ….       A1        --          Guilty

COUNT TWO (2)       ….       A2        --          Guilty

BY COURT: - A1 is convicted on his own plea by pleading guilty to the two counts simpliciter. The court convicts him on the two counts.

BY COURT: - What has 1st accused to say by way of mitigation. 1st accused person pleads for leniency. That in remind prison he fell sick.

BY COURT: - A1 is sentenced to serve twenty (20) years on each count to run concurrently.

2nd Accused person is convicted on count two (2) in spite of his explanation which I found to amount to guilty.

He asks for leniency.

BY COURT: He is sentenced to twenty (20) years IHL on count two (2). He however discharged on count one (1).

The trial court convicted the appellant Atta Bonsu on his own plea on both counts of conspiracy to commit Robbery contrary to Section 23 (1) and 149 of Act 29/60 as amended by Act 646 of 2003 and Robbery contrary to Section 149 of Act 29/60 on amended by Act 646 of 2003. He was sentenced to 20 years IHL on each count to run concurrently.

The appellant dissatisfied with the conviction and sentences filed this appeal on the following grounds: -

1. Judgment cannot be supported having regards to the facts presented to the court.

2. Mitigation of sentence.

3. The court erred when it convicted the appellant where the facts in the case did not make reference to him.

4. Additional grounds would be filed upon the receipt of the record.

SUBMISSIONS

Counts 1& 3

Counsel for the appellant submits that the leaned trial judge did not assess the facts presented by Prosecution to scrutinize their basis of the accusation and the conviction and sentence of the appellant. The trial judge erred in accepting the facts which did not mention the appellant.

Counsel submits further that the 2nd plea of the appellant taken by the court was not valid in light of Section 17(1) of Act 30 and as such rendered the whole trial null and void. He referred this court to the case of Mensuo vrs

The Republic [1965] GLR 28 where the court held:

“Notwithstanding the mandatory provision of Section 324 (3) of Act 30 in cases where a plea of guilty has been recorded the appellate tribunal can entertain and hear an appeal against conviction if it appears on the fact of the record that:

a. The appellant who was not represented at the trial did not understand or appreciate the nature of the charges or did not intend to admit that he was guilty.

b. Upon the admitted facts he could not in law have been convicted of the offence charged especially as in the instant case where some statutory condition which has to be performed the charge laid had not been complied with”.

It is counsel’s submission that the appellant never requested that his plea be changed yet the court took his plea afresh.

Counsel concedes that after an accused pleads guilty no further proof of the case is necessary. However, the law is that a court must not take an accused to have admitted guilt unless he does so in unmistakable terms as stipulated in Section 199 of Act 30 which states: -

“Where the accused pleads guilty to a charge, the court before accepting the plea shall, if the accused is not represented by counsel, explain to the accused the nature of the charge and the procedure which follows the acceptance of guilt”.

Counsel submits that the failure by the court to explain to the accused the nature of the charge and procedure that follows has occasioned a miscarriage of justice.

It is the appellants’ case that the facts of the case do not disclose any information concerning the appellant’s agreement nor acting together with the 2nd accused to rob the complainants. The facts never mentioned the appellant, it was 2nd accused who mentioned the appellant in his explanation to the court.

Counsel said prosecution need prove by evidence the fact that the accused persons did conspire to rob but there was nothing like that in the facts presented to the court. See Republic vrs Baba [1944] WACA 10.

Counsel argued that the unsworn, uncorroborated and unexamined testimony of 2nd accused against the appellant was not sufficient to secure a conviction of the appellant.

Counsel submit finally that since the trial judge changed the appellants’ plea of not guilty to guilty without discharging the statutory duty imposed on him by law and also for the facts not disclosing any reasonable information against the appellant; he prayed this court to acquit and discharge him.

Ground II – Mitigation of Sentence

Counsel submits that in the unlikely event that the appeal does not succeed the sentence be set aside as same is too harsh. The 20 years IHL for the offences convicted upon were two excessive having regard to the fact that the appellant was not mentioned in the facts. Again, there is no evidence on record that the learned trial judge averted his mind to any mitigating factors whatsoever.

The respondent in response said they were not opposed to the appellant’s appeal. “This is because after studying the record of appeal, we believe that the conviction cannot be supported having regard to the evidence on record”.

Counsel for the respondent submit that in our criminal jurisprudence, the ingredients of the offence with which one is charged ought to be conclusively established, the identity of the accused and the role played ought to point to no one than the person charged with the offence. All these boil down to the proving of the case by the prosecution.

In the instant appeal, though the appellant pleaded guilty to the offences, the trial judge should have taken judicial thought of the case considering the fact that the accused was unrepresented and would not have known the consequences of his plea and also that the facts do not support the charge.

Counsel asked whether the trial judge can gloss over the fact that the admitted facts as presented by the prosecution does not disclose the ingredients of the offence with which the appellant was charged.

Counsel submits further that the trial judge erred when he accepted the plea of the appellant, convicted and sentenced him to 20years when the very facts presented clearly did not show that there was any element of conspiracy between the appellant and the 2nd accused Moses Awuah. It did not relay the fact of them having agreed to act together as required of conspirators and that the agreement to act together was for a common purpose to rob the church of its musical instruments.

Counsel concluded saying “respectfully my lords, the facts as presented was too vague to support the charge with which the appellant was charge”. That the trial judge before accepting, recording and convicting an accused person must ensure that there was a factual basis for accepting the plea of the accused and that the facts as presented support the charge. Dakurugu vrs The Republic [1989/9] 1 GLR 308.

Counsel submits the trial judge in the instant appeal failed to discharge the statutory duty imposed on him by the law to try the appellant.

Counsel for the Respondent stated “We concede that the Fundamental Human Rights, particularly appellants’ personal liberty guaranteed under Chapter 5 of the 1992 Constitution of the Republic of Ghana specifically Article 14 (1) has been violated as he has spent a substantial time from April 2010 in unlawful incarceration because the due process of law was not followed and has been wrongly convicted and sentenced to 20 years. We pray the appellate court not exercise its discretion to order a retrial in respect of the appellants’ case. Since the respondent has a duty to assist the court to administer justice, we wish to submit that in the interest of justice the conviction and sentence of appellant cannot be supported and same must be set aside”.

Before going into the merits of the instant appeal, we shall first examine the trial procedure.

From the records before us, on Monday 12th April 2010 before, His Lordship Justice R.C.A. Azumah, High Court Kumasi, when the case was called the two accused persons were present in court but unrepresented by counsel. The state was represented by Miss Odame Darkwa Esq. The accused persons were charged with two counts of (1) Conspiracy to commit robbery; Contrary to Section 23(1) and Section 149 of Act 29/60 as Amended by Act 646 of 2003 and (2) Robbery: Contrary to Section 149 of Act 29/60 as Amended by Act 646 of 2003.On count 1, the 1st accused who is the appellant herein pleaded “Not Guilty”. On count 2 he pleaded “Guilty with Explanation”. The facts were presented by the Prosecution.

After the facts we see “Explanation of 2ndAccused to count 2”. There is nothing on record as to what occasioned the 2ndaccused’s explanation to count 2 since he pleaded Guilty to that count. There is no mention of whether 2nd accused asked the court to do so or was asked by the court suo motu. The trial judge failed to record the circumstances under which 2nd accused did that. There is also the recording that “2nd accused informed court that wishes to change plea (sic)”

BY COURT: Plea be taken afresh from 1st accused.

While the records say 2nd accused informed the court that he wishes to change his plea, then we see “BYCOURT”, plea be taken afresh from the 1st accused.

From the records it is the 2nd accused who prayed the court to change his plea and not the 1st accused, (the appellant). However, 1st accused’s plea was taken again on count one and he pleaded guilty. On count two, 2ndaccusedpleadedguilty.

Then BY COURT – “1st accused is convicted on his own plea by pleading guilty to the two counts simpliciter. The court convicts him on the two counts”.

The 1st accused initially pleaded not guilty to count 1 and guilty with explanation to count 2. When the pleas were taken again, even though there is no such indication from the record of proceedings as to how it happened, he now pleaded guilty to count 1.

The 1staccused’soriginal plea of “guilty with explanation” to count 2 still stands not changed. There is nothing in the record of proceedings stating his explanation to the count. If he gave any explanation at all, the trial judge failed to record same.

It is trite learning that when an accused pleads “guilty with explanation” whether represented or not, even though there is no such plea in our laws, it is incumbent on the trial judge to listen and record his explanation and from that the trial judge then decides whether to enter a plea of “not guilty” for him so as to let prosecution establish his guilt.

In the instant appeal, the appellant was unrepresented and that makes it more imperative on the trial judge to explain the consequences of their plea to them and to record his explanation. There is nothing on record to show the trial judge did these.

It must also be recorded that even though the accused persons were not represented at the trial they did perfectly understand and appreciate the nature of the charges and did intend or not to admit they were guilty. See Section 171(1) of Act 30/1960.

There is also no record in the proceedings to tell the language in which the charges were read to the accused persons. Whether it is in English and they understand and appreciated the charges or whether it was in the local dialect they understand and speak. Whether the charge was read and explained to them in the language they understand and seem to perfectly understand and appreciate the charges was missing. All these information are missing from the record of proceedings. It is incumbent on the trial judge to record the language in which the charges were read and whether it was explained to the accused in the language of their choice which they seem to perfectly understand.

Whether the trial judge explained the consequences of their plea of guilty to them, that by that plea there would be no trial and they will be convicted on their own plea and sentenced is also missing. Whether the accused persons were influenced, coerced or promised to plead guilty for a favour or leniency is also lost to us.

The records then shows: -

BY COURT: - 1st accused is convicted on his own plea by pleading guilty to the two counts simpliciter. The court convicts him on the two counts.

This, with the greatest respect to the learned trial judge, is not the factual situation. Initially the 1st accused pleaded not guilty to count 1 and guilty with explanation to count 2. When, by whatever reason, his plea was taken again he pleaded guilty to count 1 alone. His plea of “guilty with explanation” to count 2 still stands. It is therefore wrong for the trial judge to conclude he pleaded guilty simpliciter to the two counts. That conclusion of the trial judge is factually wrong. The trial judge should have asked for his explanation, record same and then decide whether from the explanation the court should accept his plea of guilty or enter a plea of not guilty for him. The trial judge must enter a plea of not guilty if the explanation shows he does not think he is guilty or the court suo motu thinks he is not guilty for the prosecution to lead evidence to establish his guilt. Even if the court is of the opinion the explanation is not reasonable and so would not change the plea would still have to record same in the proceedings for the appellate court to know the explanation offered by the accused person. This is a criminal trial and all these procedural flaws by the learned trial judge are grounds for appeal

The law is settled that sentences take effect from date of sentence but it is still incumbent on the trial judge to announce and record same for the avoidance of any doubts since a lot of people erroneously think sentences take effect from date of arrest or incarceration in lawful custody pending trial. The trial judge erred in not making that pronouncement after the sentence.

On the merits of the case itself we need to find out whether the conviction and sentences are supported by the evidence on record.

We first need to know the definition and the ingredients of the charges of the conspiracy and robbery.

Section 23(1) of our Act defines conspiracy as:

“If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”

The constituent elements of the crime are: -

i. Plurality of minds, i.e. two or more persons

ii. Agreeing to act together with a common purpose and

iii. Acting together for a common unlawful purpose.

This requirement of two minds, or acting together in circumstances which show that the parties at all material times, shared a common mental state, lie at the very heart of the essence of this crime. Owing to this two-person requirement, one person only cannot be guilty of conspiracy – see Blay vrs. The Republic [1968] GLR 1040.There must also be agreement between the two minds. It is not enough to prove that information was transmitted from one mind to the other. The mere fact of having been given information concerning a crime without more does not make me a conspirator. The agreement may be referable to a particular time or place as when a meeting is organized – Azametsi V. The Republic [1974] 1 GLR 228 CA. It is not always easy to prove agreement by positive evidence, but this can be inferred from the conduct and statements made by the accused. A conspiracy consists not merely in the intentions of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a decision rests in intention only, it is not indictable – Republic vrs. Mulcahy [1868] CR-3H 306.

From the facts in the instant appeal as given by prosecution there is no mention of the two convicts ever meeting to deliberate nor agree to commit this crime charged nor any other. The facts said the 2nd accused by dawn of 4th January, 2010 broke into the Strong Tower Global Church at Santasi to steal musical instruments. The 2nd accused mentioned 1st accused’s name after he pleaded guilty to the charge and was telling his side of the story to the court. The appellant’s name was never mentioned in the facts presented to the court by the prosecution. At that stage the court suo motu should have acquitted and discharged the appellant for lack of evidence.

The appellant pleaded guilty with explanation. The court never gave them the opportunity for a trial and therefore was wrong for the trial judge to convict the appellant based on what the 1st accused said about him in his explanation. The court never gave the opportunity to the appellant to be heard since there was no trial. If there was, the court would have had the opportunity of hearing his side of the story and also the opportunity of cross-examining the 2ndaccused on what he said about the appellant. In that case the court could have convicted the2ndaccused who pleaded guilty simpliciter to both counts as it happened and then used him as a witness against the appellant. That would have offered the opportunity to the trial court to listen to the appellant’s case.

The trial court had two options opened to it. First can suo motu acquit and discharge the appellant after the plea and the facts since his name was never mentioned in the facts. Secondly, since his name was not mentioned in the facts but by the 2nd accused, coupled with appellant’s plea of guilty with explanation, the trial court should have entered a plea of not guilty for him for a full trial. In that case the court should have convicted the 2nd accused but withhold his sentence and used him as a witness against the appellant.

From the facts there is no evidence of the accused persons conspiring to commit this nor any crime. The trial judge erred when he convicted the two accused persons for conspiracy. This is not supported by the evidence on record and as such same is quashed. Both accused persons are not guilty of conspiracy and both are acquitted and discharged since one person cannot be guilty of conspiracy in such circumstances.

Robbery: -A person is guilty of robbery if he steals and immediately before or at the time of stealing and in order to steal, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force – Osborn’s Concise Law Dictionary 8th Edition.

Section 150, Act 29/60 as Amended by Act 849 defines robbery as “A person who steal 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 thing.”

From the facts as given by prosecution to the trial court, the 2nd accused want to steal the listed musical instruments in the chapel. There is no evidence before the court that he met any human being while stealing the items. There is also no evidence he used force, caused harm nor criminal assault to anyone while stealing the items. The charge of robbery cannot stand and the conviction and sentence are hereby quashed. Both accused persons are acquitted and discharged on the count of robbery. In effect, the appellant as well as the 2nd accused are both not guilty of the two counts of conspiracy and robbery and both are acquitted and discharged same.

However, from the facts the 2nd accused is guilty of stealing the musical instruments from the church. The facts as presented do not support the charge of robbery but stealing. The court has power to convict for a lessor offence for an aggravated offence like robbery to stealing when the evidence so allow though not the other way round. The trial court suo motu could have substituted stealing for the charge of robbery against 2nd accused which it failed to do.

Appeal is by way of rehearing and that enables this court to do what the trial court failed to do – Twakwa vrs. Bossom [2001/2] SC GLR 61, Djin vrs Musah Baako [2007/8] SC GLR 686. Though the 2nd accused has not appealed against the judgment, an appeal is by way of re-hearing as stated earlier and this court has power to arrive at its own conclusions based on the evidence before it.

This court upon the facts presented finds the 2nd accused not guilty of robbery but finds him guilty of stealing and accordingly convicts him for that. He is sentenced to 5 years IHL. Since he has served 7 years of the former sentence, he is immediately discharged from prison custody.

We recommend that the appellant be compensated by the State for his 7 years wrongful imprisonment.

SGD

SENYO DZAMEFE

[JUSTICE OF APPEAL]

SGD

I AGREE                                                               K. N. ADUAMA OSEI

[JUSTICE OF APPEAL]

{PRESIDING}

SGD

I ALSO AGREE                                                    MARGARET WELBOURNE (MRS.)

[JUSTICE OF APPEAL]