IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
IBRAHIM ISSAH -(Applicant)
THE REPUBLIC -(Respondent)
DATE: 27TH JUNE, 2018
CRIMINAL APPEAL NO: H2/4/2017
JUDGES: IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A) ANGELINA M., DOMAKYAAREH MRS.( J.A)
MICHAEL MONNIE ESQ.- FOR THE APPELLANT
BETTY DANQUAH-SMITH ASSISTANT STATE ATTORNEY - FOR THE REPUBLIC /RESPONDENT
Irene Charity Larbi (Mrs.) J.A.
This is an appeal against the decision of the High Court, Sekondi dated 19th March, 2008.
The fact of the case are as follows:-
In the early hours of 31st July, 2007 at about 1.00a.m, the accused persons and others now at large, armed with pistols and other implements, blocked a section of the Agona Nkwanta-Half Assini Highway near Apimanim junction with logs.
They then ordered motorists and passengers who were travelling on the road to lie face down, subjected them to severe beatings and at gun point took away monies, mobile phones and other items from them.
Upon the approach of a taxi with Policemen on board, the accused and their accomplices fled into a nearby bush. A patrol team was informed but by the time they arrived on the scene the robbers had left. The Patrol team mounted a check on the highway and around 5.00a.m, a Hyundai Grace Bus with Registration Number GE.9135-X travelling from Agona Nkwanta towards Takoradi arrived at Apremdo Police barrier.
All the passengers were instructed to come down for a search. As the passengers alighted, the accused persons who were passengers on board and had mud on their bodies and looked dirty, were arrested. The 1st accused took to his heels but was chased and arrested by the police. A search on the other accused persons also produced an amount of ₡3,543,000.00 a black bag which was left in the bus by the accused persons was also found to contain three mobile phones, four wrist watches, bracelets, a talisman and cash ₡3,700,000.00.
The accused were charged with conspiracy to commit robbery and robbery. After trial, they were convicted and sentenced as follows:-
A1 50 years IHL, A2 40 years IHL, A3 50 years IHL and A4 60 years IHL.
The Appellant herein was the second accused (A2) in the case.
The instant appeal is against both the conviction and sentence.
The Grounds of Appeal are:
1. The conviction and sentence of the Appellant is unreasonable and cannot be supported having regard to the evidence on record.
2. The sentence of 40 years IHL is harsh and excessive.
Section 11(2) of the Evidence Decree NRCD 323 provides:-
“In 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 provide sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact beyond all reasonable doubt”.
Conspiracy is defined in Section 23(1) of the Criminal Code, Act 29 as follows:-
“23(1)If two or more persons agree to act together with a common purpose 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”.
In the instant case a scrutiny of the charge sheet indicates that the accused persons were charged with acting or agreeing together with a common purposes to commit a crime to wit robbery.
In the locus classicus case of AZAMATI & OTHERS VRS. THE REPUBLIC 1 GLR 228, Holding (2), the Court of Appeal held thus:-
“The crime of conspiracy consists in an agreement or acting together by two or more persons with or without any previous concert of abetting a crime whether with or without any previous concert or deliberation. It was not easy to prove agreement by evidence, but it could be inferred from the conduct or the statements made by the accused persons. So the two ingredients needed to be proved were (i) that two or more persons (ii) acting together or agreeing together with a common purpose”.
In the instant case, the accused persons are four and so satisfies the first ingredient. With regards to the second ingredients, the trial High Court Judge held that there was sufficient evidence from the prosecution witnesses that all the four accused persons and others at large acted or agreed together by blocking the Apimanin motor road and armed with pistols succeeded in stealing various amounts of money from their victims.
Counsel for the Appellant in arguing the grounds of appeal together did not agree with the findings of the trial High Court. Counsel contended that on the contrary, the prosecution woefully failed to discharge the burden of proof of the guilt of the Appellant beyond all reasonable doubt.
Counsel for the Appellant argued further that not only did the Appellant deny taking part in the robbery but he denied knowing any of the accused persons standing trial with him. He argued again that all the prosecution witnesses failed to specifically identify Appellant as part of the gang of robbers who attacked them. Counsel referred to the evidence of PW2 as very revealing because he testified that the persons who robbed them wore masks and the place the robbery occurred was very dark. He questioned how an accused person can be identified when a place is dark and the person is masked. Counsel stated further that during cross-examination of A1 by the Appellant, A1 denied knowing the Appellant which evidence corroborated the story of the Appellant that he was not part of robbery. To buttress his argument counsel referred to pieces of the testimony of some of the prosecution witnesses especially PW2 which is captured at page 17 of the record of appeal as follows:-
“It was dark and the accused persons covered their faces with masks so I could not identify those who wielded the pistols and those who guarded us”.
Counsel for the Appellant again referred to page 19 of the record, where the Appellant during the trial asked PW2;
“Q: Can you point out those who ordered you to lie down and who also robbed you?
A: Where you robbed was very dark”.
On the evidence of the prosecution that the Appellant at the time of his arrest was dirty and wore different slippers, counsel for the Appellant contended that these evidence equally lacked basis for conviction having regard to the entire evidence on record. He argued that as explained by the Appellant, he mistakenly wore someone’s slippers after prayers at the mosque.
Counsel for the Appellant contended further that although the prosecution alleged that the accused persons together with the Appellant did rob with a pistol and implements, not a single evidence was led to corroborate same save the mere allegations made by the witnesses. This is because the police upon arrest of the Appellant and the other accused persons did not find any pistol and or weapon on any of them. Additionally nothing was found on the Appellant save his money.
Counsel argued further that none of the witnesses identified any portion of the money as belonging to them and the prosecution equally failed to link any of the items found on the Appellant personally to warrant his conviction and sentence.
On the ground that the conviction was unreasonably and not supported by the evidence, the Chief State Attorney for Respondent argued that on the contrary there was enough evidence which linked the Appellant to the offence. She argued further that PW1 testified that at the time the 2nd accused was arrested, he wore a pair of different coloured bathroom slippers, and was dirty. She contended that after the offence was committed, the accused persons run into the bush upon sighting a policeman on board an approaching taxi.
Counsel for the Respondent argued further that PW3 Simon Agyeman under cross-examination by the Appellant, told the court he saw the Appellant robbing him and he informed the police. He also said he pointed the Appellant to the police as the one who robbed him. Again PW7 Alexander Obeng also maintained under cross-examination from the Appellant that he got to know the Appellant the very day the incident happened and he identified him to the Police. PW9, Sgt. Benjamin Baah, the Police Investigator told the court that before the accused persons were taken to the Regional Police Headquarters, they had already been identified by the witnesses.
Counsel for the Respondent argued further that the Appellant admitted under cross-examination that he was carrying a black polythene bag containing his clothings and at the time he alighted, he left it on the vehicle and the polythene bag was tendered as Exhibit ‘G’.
The Chief State Attorney submitted that in view of the totality of the evidence, the identity of the Appellant was not in doubt just like the other accused persons who were identified by the victims at the Police Station and in court.
Under Article 19(2)(c) of the 1992 Constitution an accused person is presumed to be innocent until he is proved or has pleaded guilty.
The burden of proof in criminal cases is at all material times on the prosecution and it is only after the discharge of that burden by the prosecution that the accused is called upon to give his side of the case proferred against him.
In the instant case, the Appellant and the others were charged with conspiracy to rob and robbery contrary to Section 23(1) and Section 149 of Act 29/60 as amended by Act 646 of 2003 respectively.
It is therefore the duty of the prosecution to prove the essential ingredients of the offence charged beyond reasonable doubt.
In FRIMPONG alias IBOMAN VRS. THE REPUBLIC  I SC GLR 297 at 312-313, the Supreme Court, speaking through Dotse JSC stated that;
“As is well known, it is trite law that in criminal cases, the duty on the prosecution is to prove the allegations against the Appellants beyond all reasonable doubt. The prosecution have a duty to prove the essential ingredients of the offence with which the Appellants and the others has been charged beyond any reasonable doubt.
The burden of proof remains on the prosecution throughout and it is only after a prima facie case has been established, i.e. a story sufficient enough to link the Appellant and others to the commission of the offences charged, that the Appellant, therein accused is called upon to give his side of the story”
See; AMARTEY VRS. THE STATE  GLR 256 at 295, SC GLIGAH VRS. THE REPUBLIC  SC GLR 870.
The ingredients to prove in robbery are:
(i) That the accused had stolen something from the victim.
(ii) The accused used force, harm or assault on the victim to steal the thing.
(iii) The intention of using force, harm threat etc. on the victim was to prevent or overcome any resistance.
(iv) The fear or violence must be on the victim personally or on his family or household and
(v) The theft must have happened in the presence of the victim.
In the instant case, the prosecution in our, opinion led credible and cogent evidence to support the offence charged. Evidence was led by the prosecution in support of the fact of the robbery having occurred. The prosecution witnesses especially PW3 and PW7 who were victims of the robbery identified the Appellant not only as one of the persons who took part in the robbery but as the one who robbed them.
The fact that the robbers were armed and put fear in their victims is also not in doubt. PW2, Kofi Appiah in his evidence told the Court that when their driver stopped because the road was blocked with wood, the robbers who were wielding pistols asked the passengers to alight and lie down on the road. PW3 Simon Agyeman collaborated the evidence of PW2 that the persons who stopped and robbed them carried guns. PW5 Benjamin Ackaah also had this to say in his testimony, “Suddenly somebody came from the front of the Kia Truck, came to my side, pointed a gun at me and asked me to surrender my money and my mobile phone”. PW6 Isaac Amoesi in narrating the event stated that he saw two men carrying guns. Finally PW7 also a victim in his testimony stated that “We stopped to come down by the accused persons. The persons suddenly came out of the bush to the road block. Five persons came from the bush. The first accused was holding a gun, at first I thought we could fight them. I then told my driver to stop and we got down”.
From PW7’s evidence, it was the guns that prevented them from resisting the robbers. From the testimonies of the prosecution witnesses it is clear that the robbers were armed therefore the fact that the guns or pistols were not found is irrelevant. The only inference that could be drawn is that either the accused might have disposed of the gun they used in the robbery or they were taken away by the others who managed to escape and are still at large.
All the victims gave details of the monies and items the robbers took from them. From PW8, the Police upon searching the accused found about ₡2,500,000.00 with the accused persons. When the bags which the robbers left in the car was searched the police found ₡3,700,000.00, four wrist watches, three mobile phones and a Talisman. The other bag also contained money.
The evidence of PW8 Inspector Francis Agyei Amoani must be put and understood in its proper context. This is because there are bids and pieces of his evidence connecting the Appellant and the others arrested to the commission of the offence with which they were charged. However counsel for the Appellant urges this court to trivialize them as carrying no convincing weight.
PW8 was not at the scene of the robbery and therefore could not and did not attempt to identify the accused as a direct witness. He got involved in the matter after the robbery had occurred as a police officer on duty at the Police barrier at Apremdo between 30th and 31st July 2007. His testimony was that whilst on duty, they got information that some people had mounted road block at Apimanim on the Axim road. A patrol team sent to the scene came back to report that the persons who mounted the road block ran into the bush leaving the logs used to block the road. He then detailed his men to search every vehicle that would come from Agona Nkwanta or Axim direction. For a better appreciation of his evidence, I will quote excerpts of it.
“We searched all on-coming vehicles until 5a.m. when a Hyundai Grace pulled up and the mate came down. Immediately the mate came down for the search, the second, third and fourth accused wanted to come down immediately the second accused (Appellant herein) came down, I noticed that he was wearing different coloured bath room sandals, he looked dirty and he had some weeds on his pair of trousers. I told my men to arrest him and they took him to our small room. I was waiting there when the third and fourth accused were also brought with dirt on their feet and their dresses. Upon their arrest, we were alert and before I could hear the passengers shouted that one of them was running away and so I ordered my men to chase him and with the aid of some civilians the fifth accused was arrested having run at top speed”.
Similarly PW9-No.3976 Detective Sergeant Benjamin Baah stationed at Regional C.I.D. Sekondi who conducted the investigations testified in respect of the Appellant that although the Appellant claimed he was travelling from Abidjan where he had spent ten (10) days, he did not possess any travelling document. He also did not possess a CFA currency. When he led the Appellant to Agona Nkwanta taxi rank where he alleged he spent the night on a table, close to the GPRTU Office, the Lorry Station Master refuted the Appellants claim.
The question is how come that out of all the passengers who were in the Hyundai Grace bus, the police only isolated the Appellant and the other accused persons to step aside. The inference to be drawn here is that the police by their training are able to identify suspected criminals by their behavior, appearance and answers to initial questions asked. These and many more are what is referred to as circumstantial evidence because of inferences that can be drawn from circumstances under consideration.
Dotse JSC put it more clearly in the Frimpong alias Iboman case supra as follows:-
“However, during the investigating the police are able to put together strings of activities and draw the necessary inferences and conclusions; some of the evidence might be direct and therefore quite conclusive; but others might be indirect and would thus be referred to as circumstantial. Some crimes are investigated based solely upon circumstantial evidence; as apart from the accused, there might not be any eye-witness of the crime. But court of law will not throw their hands in despair only because there is no other eye witness account of the crime. This is the relevance and importance of circumstantial evidence which can be used to put together a very strong credible case capable of securing conviction for the prosecution”.
See: State VRS. ANANI FIADZO  GLR 416 at 418; RV. ONUFREJCZHY  1 QB.388; BOSSO VRS. THE REPUBLIC  SC GLR; DEXTER JOHNSON VRS. THE REPUBLIC  SC GLR 601 AND DOGBE VRS. THE REPUBLIC  1 GLR 118 (HOLDING 1).
Under cross-examination the Appellant stated that he mistakenly put his feet into somebody’s bathroom sandals when he went to the Mosque to pray. So how come upon his arrest the Appellant who would have the court believe had gone through the ceremonial act of washing part of the body (ablution) as a Muslim had muddy feet and dirty clothes with weeds stuck on them at the time of his arrest?
On his failure to possess any travelling document on him, the Appellant responded to a question under cross-examination that “I bribed my way out” at the entry point between Ghana and Ivory Coast as if he was expecting the court to applaud him for that criminal act. The Appellant again under cross-examination admitted he left a polythene bag containing his clothings in the vehicle he boarded which the Trial Court found to be consistent with Exhibit ‘G’ tendered in evidence.
Finally on circumstantial evidence the learned trial judge relied also on circumstances (though not stated as such) to draw an inference that the prosecution had succeeded in proving the charge of conspiracy against the accused persons. The Caution Statement were not included in the record of appeal. The inference was drawn from the caution statements of the accused persons. The court stated that the 1st accused in his Caution Statement stated that he lived in a village near Kumasi in Exhibit ‘L’ and the 2nd accused stated in Exhibit ‘M’ that he lived in Kumasi. The 3rd accused stated in his statement Exhibit ‘N’ that he is a herdsman to one Alhaji Ali of Nkawkaw while the 4th accused stated in Exhibit ‘O’ that he lived in Nkawkaw as a herdsman. The Trial Court inferred that by the proximity of their residences it was very easy for them to agree or act together in furtherance of the commission of the robbery. It is thus clear from the totality of the evidence on the record that the prosecution made a cogent case from both direct and circumstantial evidence to prove its case beyond reasonable doubt. We are therefore unable to set aside the conclusions the Trial Court arrived at to convict the Appellant.
We will now proceed to consider the ground that the sentence of forty (40) years I.H.L is harsh and excessive. Counsel for the Appellant on this ground argued that the court in punishing a person accused of a crime do so with the consideration of a number of facts peculiar to the case. This includes the motive of the accused, age, past criminal record of the accused among other factors. He argued further that the sentence of the Appellant to (40) years I.H.L no doubt is a deterrent sentence and the Trial Court ought to have looked at circumstances which tend to mitigate the deterrent sentence. Counsel was of the view that the Trial Court having indicated that the role played by the Appellant was not aggravated, ought to have been swayed to mete a lesser sentence instead of the 40 years I.H.L which is very harsh and excessive.
The minimum sentence under Section 149 of the Criminal and other offences Act, 1960 (Act 29), as amended by the Criminal Amendment Act, 2003 (Act 646), for robbery is ten (10) years and in cases where offensive weapons have been used, the minimum has been fixed at fifteen (15) years imprisonment. Being a first degree felony means the legislature has categorized the offence of robbery as a grave one.
In the instant case the Appellant and his accomplices used pistols and other implements in attacking their victims.
In KAMIL VRS. THE REPUBLIC  I SC GLR at 300 and also in FRIMPONG ALIAS IBOMAN case (supra), the Supreme Court affirmed the principles and or factors to be considered in imposing sentences upon a convicted person namely:-
1. The intrinsic seriousness of the offence.
2. The degree of revulsion felt by law abiding citizens of the society.
3. The premeditation with which the criminal plan was executed.
4. The prevalence of the crime within the particular locality where the offence took place or in the country generally.
5. The sudden increase in the incidence of the particular crime and
6. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.
In the instant case, the prosecution did not indicate that the Appellant had any brush with the law or “known” as it were and had a previous conviction. The general principle is that a first time offender should be treated leniently when sentence was being imposed but the court should also consider whether the first offender had acted as such by looking at the circumstances under which the crime was committed and casualties if any.
In the instant case, the learned Trial Judge before sentencing the Appellant held that:-
“The second accused although an active participant played a role that could not be considered aggravated”.
The court further found that there was no casualties involved in the robbery and four (4) mobile phones, three (3) wrist watches and the amount of Gh ₡620.43.00 which were taking from the victims robbed were retrieved and Restitution order was made by the court for the items and monies retrieved to be given to their owners.
In FRIMPONG ALIAS IBOMAN case (supra), the Supreme Court at Holding (9) of the report stated as follows:-
“It appeared that the sentence of Sixty-five (65) years imprison imposed on the Appellant for the offence of robbery was punitive enough and might deter others who were right thinking; and that such long sentence would appease society and safeguard them from criminal conduct”.
The Supreme Court however was of the view that a different approach must be adopted if the purpose of long sentences are to really deter other from committing such crimes. The Supreme Court advocated for a scheme of sentence where the length of sentence whilst being commensurate to an extent with the gravity of the crime, revulsion which law abiding citizens felt toward the crime, would also be such that the peers and younger persons of the society would have the opportunity to observe the life of the convict after his release and hopefully defer them from committing crimes.
The Supreme Court further expressed that:-
“The time has perhaps come for more reformative methods of punishment to be fashioned out by the State for example it is not desirable to consign convicted robber to lengthy terms……………without taking into account the social effect it will have on the social fabric of society generally. This is because if, as is happening, the lengthy prison sentences have failed to defer people and the resultant effect is that many more young people are sentenced to long prison terms, then what type of society are we building.
In no time, most of the productive young men and women will be behind bars and this, no doubt, will have a negative effect on the country”.
It is for these reasons that we think there is the need to look at the sentence of the Appellant again vis-à-vis the mitigating factors hoping that the Appellant as a first time offender will be given opportunity to come out of prison reformed and become a useful law-abiding citizen.
Accordingly, we would substitute a sentence of Thirty (30) years I.H.L for each count in place of the Forty (40) years I.H.L in respect of the eight counts of conspiracy to commit robbery and robbery contrary to Sections 23(1) and 149 respectively of the Criminal and other offences Act 1960 (Act 29) as amended by Act 646 of 2003.
The sentences are to run concurrently.