IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
OSEI EMMANUEL @ EMMA - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 22ND FEBRUARY 2018
SUIT NO: H2/10/2017
JUDGES: VICTOR OFOE J.A. (PRESIDING), IRENE CHARITY LARBI (MRS) J.A, HENRY A. KWOFIE J.A.
AUGUSTINE GYAMFI FOR THE APPELLANT
JASPER DOE (SSA) FOR THE RESPONDENT
HENRY KWOFIE J.A.
The appellant and 2 other persons were charged with conspiracy to commit robbery contrary to section 23 (1) of Act 29 and 149 of Act 29 as amended by Act 646. The appellant and one other person were also charged with robbery contrary to section 149 of Act 29 as amended by Act 646. They were arraigned before the High Court Accra. All the accused persons including the appellant pleaded not guilty to the charge. The trial High Court heard the matter to its conclusion, convicted the appellant on both counts and on the 5th of December 2013 sentenced him to a term of 25 years I. H. L. on each counts, the sentences were to run concurrently. It is against his conviction and sentence that the appellant filed the instant appeal. The facts of the case as presented by the prosecution at the trial High Court was that the complainant, a computer software engineer is resident at the SSNIT Flats Dome.
On the 23rd of September, 2012 at about 1:00am, the complainant together with one Patience Owusu were in the complainant’s Toyota Hilux vehicle with registration number GW 4787 Y returning to Dome from a programme at the Banquet Hall of Parliament House. The complainant who was then driving the vehicle, upon reaching the main gate to his house, alighted from the vehicle to open the gate as it was locked.
A1 and A2 together with two other suspects now at large all armed with pistols and cutlasses suddenly alighted from a saloon car which they had used to trail the complainant to his house, threatened the complainant with their weapons and robbed him and his fiancé of his Toyota Hilux vehicle with registration number GW 4787 Y, one i-pad, two i-phones, one blackberry phone, the complainant’s credit cards and cash in the sum of GHC400.
The police acting upon intelligence traced A1 and A2 to Neoplan Station at Kwame Nkrumah Circle, Accra. They were consequently arrested on board a Kumasi bound vehicle. A search conducted on them revealed the i-pad that was stolen during the robbery. Upon interrogation, A1 and A2 admitted the offence and led the police to the house of A3 who admitted receiving the complainant’s stolen vehicle which he had quickly driven together with A4 to Togo to sell. A1 and A2 further told the police that prior to the robbery they had met A3 at his residence at Sowutuom Agenda where A3 tasked them to go and rob a Toyota Hilux Vehicle and that A3 provided the details of the Toyota Hilux Vehicle with which they trailed the complainant on the night of the robbery.
A3 led the police to Aflao where A4 was arrested. The fourth accused upon his arrest, admitted that he together with A3 had sent the stolen Toyota Hilux vehicle belonging to the complainant to Togo for sale. The Aflao police in collaboration with the Togolese Security apparatus were able to trace and retrieve the stolen vehicle at a village called Adidogomo in Togo.
The appellant being aggrieved by the conviction and sentence filed an appeal based on the following grounds:
1. That the learned judge erred in law by convicting and sentencing the appellant on robbery when indeed the prosecution failed to do in-depth investigation on his assertion that he came to Accra to trade.
2. The learned trial judge erred in law when he failed to consider the critical evidence that the appellant was not identified at the point of arrest by the complainant; however the prosecution included him because he was on the same seat with the 1st accused person at the Neoplan Station.
3. The learned trial judge erred in law when he convicted the appellant of robbery, when no sufficient evidence was led by the prosecution at the trial to warrant the determination and conviction.
4. The sentence of 25 years was too harsh.
At the trial, the prosecution called 3 witnesses whilst the appellant also gave evidence.
As stated earlier, the appellant filed four (4) grounds of appeal but it seems to me that apart from ground 4 which stated that the sentence of 25 years I.H.L. was harsh the other 3 grounds of appeal could be dealt with together.
In arguing the appeal, counsel for the appellant referred to section 15 (1) of the Evidence Act 1975 (NRCD 323) and Domena Vrs The Republic (1964) GLR 568 and submitted that by bringing a person before the Court on a criminal charge, the prosecution takes on the onus of proving all the elements that constitute the offence to establish the guilt of the accused beyond reasonable doubt. Counsel asserted that the prosecution failed to investigate the appellant’s assertion that he was just a passenger on the bus and was just unfortunate to be on the same seat with the first accused when he came to Accra to buy shoes as a trader. The failure of the prosecution to investigate that assertion has occasioned a great miscarriage of justice on the appellant.
Counsel further argued that the trial judge failed to consider the critical evidence that the appellant was not identified at the point of the arrest by the complainant but was charged with the others because he was on the same seat with the 1st accused person at the Neoplan Station. Counsel asserted that the identification of the appellant should be looked at critically and the evidence surrounding the identity of the appellant should have been examined critically during the trial as the records do not point out the role of the 1st accused in the commission of the crime.
Finally, counsel submitted that the sentence of 25 years I.H.L. imposed on the appellant was harsh and excessive and prayed for a reduction in the section. He submitted that the appellant was a first offender and a youthful person who had learnt great lesson from his incarceration. He asserted that no harm was caused to the complainants in the course of the commission of the crime and prayed that the sentence of the appellant be reduced if this Court takes the view that the conviction was proper.
Responding to these submissions counsel for the Respondent who has taken the view that the appeal is basically against sentence stated that he was not opposed to the appellants plea for a reduction of his sentence. Counsel referred to the principles a court is entitled to consider in determining the length of sentence and said the sentence of 25 years imposed on the appellant could be considered harsh and he was therefore not opposed to the appellant being given a second chance but left the issue of the sentence to the discretion of the court.
It is trite law that an appeal is by way of re-hearing and I am required to look at the evidence in the record of appeal and come to a conclusion both on the facts and the law – See the case of Tuakwa Vs. Bosom (2001-2002) SCGLR 61 and Oppong Vs. Anarfi (2011) 1 SCGLR 556.
Sections 11 and 13 of the Evidence Act 1975 (NRCD 323) provide that the burden of proof in a criminal trial rests entirely on the prosecution and the prosecution is required to prove its case beyond reasonable doubt.
Section 11(2) and 13(1) of the Evidence Act 1975 NRCD 323 provides as follows:
“11(2) In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, required the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact beyond a reasonable doubt.
13(1) In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”
Cases such as COP Vs. Antwi (1961) GLR 406 holding 1 and Frimpong @ Iboman Vs. The Republic (2012) 1 SCGLR 297 at 313 and other legal authorities discuss this at length. As already stated the appellant and the 2 other persons were charged with conspiracy to commit robbery contrary to section 23(1) and 149 of the Criminal Offences Act 1960 as amended by Act 646 and Robbery contrary to Section 149 of Act 29/60 as amended by Act 646 of 2003.
Section 23(1) of the Criminal Offences Act 1960 dealing with the Offence of Conspiracy provides:
“S23(1) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them commits conspiracy to commit or abet the criminal offence”.
Section 149 and 150 of the Criminal Offences Act 1960 as amended by Act 646 provides:
“149. A person who commits robbery commits a first degree felony.
150. 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 other person or
b) if that person uses a threat or criminal assault or harm to any person with intent to prevent or overcome the resistance of the other person to the stealing of the thing”.
It is very essential in order for the prosecution to succeed in a charge of conspiracy for the prosecution to prove one of the following:
That is to say, the prosecution must prove that the accused persons agreed together with a common purpose for or in committing or abetting the crime; on the other hand, the prosecution may prove that the accused persons acted together with a common purpose for or in committing or abetting a crime. Thus the accused persons may agree or act together with a common purpose for or in committing or abetting a crime.
In the case of COP Vs. Afari and Addo (1962) 1 GLR 483 the Supreme Court explained the offence of conspiracy as provided under Section 23 of Act 29 where it held at page 485 that:
“The law of conspiracy as contained in section 23(1) of the Criminal Code 1960 is broader in scope and in content than the English law on the subject. It consists not only in the criminal agreement between two minds, but also acting together in furtherance of a common criminal objective”.
Also see the cases of Azametsi Vs. The Repbulic (1974) 1 GLR 228 C.A; Frimpong alias Iboman Vs.
The Republic (Supra) at page 312.
As provided in section 150 of the Criminal Offences Act, in order for the prosecution to succeed on a charge of robbery against an accused person, the prosecution must first prove that the accused person has stolen a thing. Secondly, the prosecution must prove that in and for the purpose of stealing the thing, the accused person either used force or caused harm to any person with any threat or criminal assault or harm to any person. Thirdly, the prosecution must prove that the accused person used the force or the threat or criminal assault or harm to any person with the intent to prevent or overcome the resistance of any person at all to the stealing of the thing.
In Behome Vs. The Republic (1979) GLR 112 the Court held that:
“Under Section 150 of Act 29, A would only be guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault to B with intent thereby to prevent or overcome the resistance of B or C to the stealing of the thing. The fear might be either of personal violence to the person robbed or to a member of this family in the restrictive sense of a man, his wife or children. And the thing stolen must be from the person of the one threatened or in his presence, if the property was under his immediate personal care and protection”.
In proof of the offence of conspiracy the PW1 Derrick Hope Gidzi testified and identified the appellant in Court that on the night of 22nd September 2012 he and his fiancé one Patience Owusu (the PW2) left the house to attend a programme at the State House. Subsequently they proceeded to Osu to buy some items and thereafter at around 1:00am they drove to the house at Dome. When he parked at the gate with the intention of getting out of the vehicle to open the gate, a vehicle suddenly parked behind their vehicle and four men jumped out of that car. The PW1 identified the appellant and two (2) other accused persons as being among the 4 persons. The appellant and the other persons were holding guns, machete and threatened them and dragged them out of the car. They took their bags, one I-pad, two I-phones, one blackberry phone a bag containing his personal documents and other items. The appellant and the other persons then drove his Toyota Hilux Pick up vehicle away together with the car they (the appellant and the others) had brought. He and the PW2 got a taxi and went to the Mile 7 police station and lodged a complaint. According to the PW1 he told the Police inspector that the gadgets that the appellant and the others had taken away had tracking devices on them so they used a laptop to track the movement of the gadgets using the internet. Finally they saw from the tracking device that the gadgets had been taken to the Neoplan Station. The police officers went to the Neoplan Station and were able to arrest the 1st and 2nd accused persons, and the I-pad was found on them.
The PW2 Patience Owusu amply corroborated the evidence of the PW1 in every material particular. She said that when she and the PW1 pulled up at the gate of their house a car stopped behind them, 4 young men came out of the vehicle. She specifically said that it was the appellant and the 1st convict who came to her side of the vehicle and pulled her out of the vehicle. She said in her evidence at page 47 of the Record of Appeal that:
“The 1st and 2nd accused persons were the one’s who were on my side and pulled me out and my bag was snatched from me and I was pushed aside and I saw that they had machetes, guns and sticks and they drove off with our vehicle, my bag. I had two I-phones, an IPAD one Blackberry and everything in my bag, my passport and personal items in the bag…………..
We got a taxi from the junction and went to the Mile 7 Police Station to make a complaint and it was there that the CID on duty assisted my fiancé to track them using the GPRS mobile tracking device. Around 4am we were still at the Police Station so the CID and one of the Policemen called us to come to the VIP bus station around 4am…….. I identified the 1st and 2nd accused persons on the VIP Bus at the Station at Circle………….
At the Station, they asked me to use my password to unlock the IPAD to make sure it was my mine and they asked me to identify the two people they had arrested……”.
The evidence of the Police investigator the PW3 shows that at the Neoplan Station when a search was conducted on the appellant the PW2’s IPAD was found on him. The evidence also shows that after the arrest of the appellant and the 1st convict they led the Police to the house of the 3rd accused who they had sent the PW1’s vehicle to. The 3rd accused admitted having received the vehicle but stated that he had sent it to the 4th accused in Aflao. He went with the police to Aflao where the 4th accused was also arrested. Eventually the 4th accused led the Ghana Police in collaboration with the Togolese Police to enter Togo and retrieved the PW1’s Toyota Hilux vehicle.
The appellant in his evidence in Court denied having been involved in the robbery. He said he came to Accra from Kumasi to buy second-hand clothing to sell in Kumasi. He boarded a Kumasi-bound vehicle and a gentleman left his luggage with him in the vehicle. About five minutes later the gentleman came back with 2 policemen to collect the luggage and left with the policemen. About 15 minutes later the 2 policemen returned and asked him (the appellant) to go along with them. When he asked why they wanted to see him, the policemen said he was the gentleman’s accomplice. He denied being an accomplice but the policemen searched his pocket and searched his goods as well. After they had found GH¢10,000 in his pocket, they took his mobile phone and his digital camera and took him to the police station where he was interrogated. He was subsequently taken to the Circuit Court and later to the High Court.
Although the appellant denied at the trial that he was involved in the conspiracy this was not borne out by the record of appeal. The Record of Appeal shows that the appellant was clearly deeply involved in the planning and execution of the robbery. He was identified by both the PW1 and PW2 as being among the four persons who attacked them that early morning. They were not wearing masks and the PW2 was very certain that it was the appellant and the 1st accused person who opened her side of the vehicle and dragged her out. The PW1 also identified the appellant and the 1st accused at the VIP station at Circle around 4 am that morning.
In the case of Adu Boahene Vs. The Republic (1972) 1 GLR 70 the Court of Appeal held that: “Where the identity of an accused person is in issue, there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged”.
When the appellant and the 1st accused were arrested together at the VIP station, the complainant’s IPAD which was among the items taken away together with the vehicle by the robbers was found on the appellant. Subsequently the 1st accused led the police to arrest the 3rd accused who then led the police to arrest the 4th accused at Aflao. Eventually the 4th accused led the Ghana Police to Togo were the PW1’s Toyota Hilux vehicle was retrieved from Togo. These events put together could not be a coincidence. In his judgment, the trial judge after evaluating the evidence led in the course of the trial stated as follows at page 259 to 260 of the Record of Appeal:
“ Thus from the direct evidence given by the PW1 and the PW2 of the description of the accused persons, the tracing of the first and second accused persons to the VIP Bus Station at Circle, Accra, the discovery of the PW1’s IPAD with the second accused person, the arrest of the third accused person who led the police to arrest the fourth accused person at Aflao and the retrieval of PW1’s Toyota Hilux from Lome, Togo leads irresistibly to the conclusion that it was the first, second and third accused persons who robbed PW1 and PW2 of the Toyota Hilux pickup on the night of 23/09/2012. In the instant case PW1 and PW2 were able to give detailed testimony that linked the first, second and third accused persons to the robbery that occurred in front of PW1’s house at SSNIT Flats, Dome Accra”
Looking at the evidence led at the trial as a whole, this conclusion of the trial judge cannot be faulted. The prosecution in my view led credible evidence to prove the ingredients of the offences of conspiracy to commit crime to wit Robbery and Robbery. The evidence shows clearly that the robbers who attacked the PW1 and PW2 on the 23rd of September 2012 at around 1am were armed with a gun and cutlass and sticks. The purpose of the cutlass and gun was obviously to put the PW1 and PW2 in fear of violence and threat of death with intent to overcome any resistance they were minded to put up. The PW1 and PW2 were dragged out of the vehicle and the vehicle together with the items of the PW1 and PW2 were taken away. When the gadgets were tracked using the GPRS tracking device, it led to the arrest of the appellant and the 1st accused and the PW1’s IPAD was found on them.
Through the appellant and the 1st convict, the 3rd accused was arrested and eventually the 4th accused was also arrested at Aflao and the PW1’s pickup was eventually retrieved in Togo. In my view, the prosecution led credible evidence to prove beyond reasonable doubt that the appellant and the other accused persons were involved in the robbery. It is my view that the conviction of the appellant by the trial judge was amply supported by the evidence on record. Grounds 1, 2, and 3 of the appeal fail and are accordingly dismissed.
The last ground of appeal is that the sentence of 25 years imposed on the appellant was harsh. I have already referred to the submissions of counsel for the appellant and the Respondent in respect of this ground. As I have earlier stated the conviction of the appellant was in the light of the evidence proper. I would therefore examine the principles and factors determining the length of sentence.
In the case of Kwashie and Another Vs. the Republic (1971) 1 GLR 488 at 493 where Azu Crabbe J.A. as he then was stated:
“In determining the length of sentence, the factors which a trial judge is entitled to consider are: -
1. The intrinsic seriousness of the offence
2. The degree of revulsion felt by law abiding citizens of the society for the particular crime.
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 incidents of the particular crime.
6. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed”
See also the cases of Adu-Boahene Vs. The Republic (1972) 1 GLR 70; Kamil Vs. The Republic (2011) SCGLR 300 and Frimpong alias Iboman Vs. The Republic (2012) 1 SCGLR 297 holding 8.
In passing the sentence, the trial judge did not indicate whether he had taken into account all aggravating factors on one hand and any mitigating factors on the other. But I think that trial judge must have taken the view that the appellant and the other accused persons should be given harsh sentences to serve as a deterrent to others. However, it is important to note that the appellant is quite young aged 29 years at the time of the commission of the crime in 2012. Section 149(1) of Act 29 as amended by the Criminal Code (Amendment) Act 2003 Act 646 stipulates that a sentence upon conviction in a summary trial for robbery shall not be less than ten (10) years. However, where the offence of robbery is committed by the use of an offensive weapon the sentence shall not be less than 15 years. There is no doubt that the robbery in this case was committed with offensive weapons including guns and cutlasses. This Court is however minded to interfere with the sentence looking at the appellant and his youthful age at the time of the commission of the crime.
We would therefore set aside the sentence of 25 years and substitute a sentence of 20 years I.H.L. The last ground of appeal is accordingly allowed in part.
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I AGREE VICTOR OFOE J.A. (PRESIDING)
(JUSTICE OF THE COURT OF APPEAL)
I ALSO AGREE IRENE CHARITY LARBI (MRS)
(JUSTICE OF THE COURT OF APPEAL)