IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ROGER AGBADI - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 25 TH OCTOBER, 2018
CRIMINAL APPEAL NO: H2/4/18
JUDGES: KUSI-APPIAH JA (PRESIDING), C. J. HONYENUGA JA, DENNIS ADJEI JA
MR. JASPER DOE, (SSA) FOR THE RESPONDENT
MR. WILFRED BABA AVIO FOR APPELLANTS
The appellant and three others were convicted by the Circuit Court Accra on the 4th day of April, 2014 on the offences of conspiracy to commit crime to wit robbery contrary to Sections 23(1) and 149 of the Criminal Offences Act, 1960 as amended by the Criminal Offences (Amendment) Act, 2003, Act 646. They were also convicted on the substantive offence of robbery contrary to section 149 of the Criminal Offences Act, 1960 as amended by Act 646 for having robbed their victim of one Toyota Camry car, 2 pieces of jewelry, 4 Laptops, 5 Mobile phones, 3 Digital Cameras, 2 Cameras, One portal storage disk drive, three children watches, three ladies Tissot watches, one Toshiba flat screen Television, two DVD players, one DSTV Decoder box, one ladies blouse, two torches, one Moet Champagne, one Large suitcase, 38 CDS all to the total value of GH¢639,964.50. The trial judge sentenced the appellant and three others each to ten years with hard labour on the conspiracy charge but sentenced each convict to twenty years with hard labour. The sentences were to run concurrently.
The facts of this appeal were that on the 18th day of March 2010, at about 11am, the Regional Police Headquarters, Accra acting upon a tip off that a group of four young men suspected to be robbers were offering one Toyota Camry vehicle Number GT 844 X for sale. A team of Police detectives then went to the scene where they arrested the appellant, the second and fourth convicts and retrieved the said Toyota Camry vehicle. Upon interrogation, the convicts mentioned the third convict, a house boy to one Aku Orleons-Lindsay, the complainant in House Number 6, Monrovia road, East Legon as the one who led them to the said house. The third convict was subsequently arrested.
A search conducted in the house of the second convict located at Sowutuom led to the retrieval of all the items listed on the charge sheet including a toy pistol, one hammer, one spanner, one chisel, one plier, one screw driver, one kitchen knife and one scissors. The complainant later in the day reported to the Police that at about 9am that morning, she had a call from her housemaid, Janet Afful that about 8.30am, a group of robbers entered her house and armed with a pistol, tied her up with rope and stole all the items listed in the charge sheet. The housemaid later identified the appellant and others as those who entered the house and robbed. The complainant identified all the items retrieved from the second convict’s house as hers.
Upon hearing the case to its logical conclusion, the learned Circuit Court Judge on the 25th April, 2012 convicted and sentenced the appellant and others to 10 years IHL on the Conspiracy charge but sentenced them on the substantive offence of robbery to 20 years IHL. The sentences were to run concurrently. Not satisfied with the conviction and sentence, the appellant appealed to the High Court. On the 4th day of April 2014, the learned High Court Judge upheld the convictions but allowed the appeal against sentence and reduced the sentence on the robbery from 20 years to 15 years IHL. The appellant was in addition bonded to be of good behaviour for 5 years.
The appellant being aggrieved against the judgment of the High Court appealed to this court on the following grounds:-
“a. The trial Circuit Judge and the High Court Judge failed to adequately consider the case of the appellant.
b. The High Court Judge erred when he confirmed the conviction of the appellant by the trial Circuit Court based on the evidence of PW1 that the appellant was among the robbers.
c. The sentence is harsh and excessive.
d. Further grounds may be filed upon receipt of the record”.
It is noted that the appellant did not file further grounds of appeal and they are considered abandoned.
Arguing the appeal, the learned counsel for the appellant’s main submission is that the appellant’s explanation was reasonably probable and ought to have been accepted by both the trial court and the High Court and therefore the identity of the appellant was not positively proved by the prosecution beyond reasonable doubt. His last submission was that the appellant was not charged with the use of offensive weapon in the commission of the offence and therefore the minimum sentence upon conviction should have been ten years.
The learned Senior State Attorney on the other hand submitted that the identity of the appellant in the commission of the robbery has been proved beyond reasonable doubt and the conviction must stand. On sentence, the learned Senior State Attorney submits that the appellant is unrepentant and has not shown any remorse and therefore does not deserve the sentence imposed by the trial court and reduced by the High Court.
We would first deal with grounds (a) and (b) of the grounds of appeal. Now, it is well-settled in our jurisprudence that it is not permissible for a second appellate court to interfere with concurrent findings of fact by lower courts unless such findings were not supported by evidence so as to make the findings unreasonable and thus by no means perverse. These principles are well espoused in several decisions including Achoro v Akanfella [1996-97] SCGLR 209 holding (2) of the headnote, the Supreme Court held that:-
“In an appeal against findings of facts to a second appellate court …. Where the lower appellate court had concurred in the findings of the trial court, especially in a dispute … this court would not interfere with the concurrent findings of the lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower tribunals had dealt with the facts”.
Clearly, it must be demonstrated that the judgment of the lower courts are clearly wrong. See Kamil v The Republic  1 SCGLR 300 Holding (3); Frabina v Shell Ghana Ltd.  1 SCGLR 429 Holding (3); Awuku Sao v Ghana Supply Commission  SCGLR 710 and others.
In the instant appeal, can it be said that the findings by the lower courts (that is by the trial Circuit Court and the High Court) were supported by the evidence on record? It is trite that in our Criminal jurisprudence, the burden of proof is on the prosecution which must be proved beyond reasonable doubt – see C.O.P. V Antwi  GLR 408. Section 11(2) and (3) of the Evidence Act, 1975 (NRCD 323) amplifies it thus:-
“(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 requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt.
(3) 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 guilt”.
Section 11(3) means that if there is any burden of proof on the accused during a criminal trial, that proof will be discharged if he is able to raise only a reasonable doubt.
However, the standard of proof beyond reasonable doubt was explained in Miller v Minister of Pensions  2 All ER 372 as follows:-
“Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. They 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 with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice”.
Further, proof beyond reasonable doubt mean “proof of the essential ingredients of the offence charged and not mathematical proof”. See Tetteh v The Republic [2001-2002] SCGLR 854; Dexter Johnson v The Republic  2 SCGLR 601; Frimpong a.k.a. Iboman v The Republic  1 SCGLR 297 and other relevant legal authorities.
It is provided by section 149 and 150 of the Criminal and Other Offences Act, 1960 (Act 29) as amended by the Criminal Code (Amendment) Act, 2003 (Act 646) respectively thus:-
“149(1) Whoever commits robbery is guilty of an offence and shall be liable upon conviction on a trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by the use of offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.
(2) For the purposes of subsection (1) the Attorney-General shall in all cases determine whether the offence shall be tried summarily or on indictment.
(3) In this section, ‘offensive weapons’ means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and ‘offensive missile’ includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown”.
The definition of robbery is defined in section 150 of Act 29 as follows:-
“A person who steals a thing commits robbery
(a) If in, and for the purposes of stealing the thing, that person uses force or cause harm to any person, or
(b) If that person uses a threat or criminal assault or harm to other person with intent to prevent or overcome the resistance of the other person to the stealing of the thing”.
Section 23(1) of the Criminal Act 29 provides:
“(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 a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”.
There is no dearth of authority on conspiracy and the trial judge duly cited some in support of the evidence on record.
At the trial, the learned trial judge after analyzing the law on conspiracy to rob and on robbery found as a fact that the offence of conspiracy to commit robbery and robbery had been committed by the appellant and others. Ag pages 60 to 61 of the record of appeal, the learned trial judge clearly stated thus:-
“It is now trite law that it is needless for the prosecution to lead evidence of the agreement or the planning since it is almost impossible and evidence of subsequent overt acts done together by accused persons gives rise to an inference that they have agreed to so act. Evidence was led by prosecution that all the accused persons were in the house of PW2 and played various roles towards the commission of robbery. That A1 was the one who ordered PW1 not to shout as A2 covered her face and was tied with a rope. Acting together in that manner are enough to constitute conspiracy and the prosecution has established that against the accused persons”.
Indeed, there was sufficient evidence from PW1 who was a clear eye witness to the conspiracy to commit robbery clearly saw and identified the appellant, the second convict and the fourth convict as the persons who acted together in the commission of the offence. There is evidence on record that the appellant wielded a pistol, grabbed PW1 and warned her not to shout or risk being shot. PW1 led all the convicts to the electricity meter they claimed they had by pretence came to inspect in order to act together to commit the robbery. There is also evidence in Exhibit ‘A’ the caution statement that, it was the third convict who sold the idea to the appellant and solicited the assistance of the second and fourth convicts by which a toy pistol was purchased. PW6 also corroborated the evidence that the appellant solicited the assistance of the second and fourth convicts. PW4 also clearly stated in cross-examination as follows:-
“Q. You know A1?
A. Yes my Lord.
Q. How did you get to know him?
A. He was arrested in connection with a robbery at East Legon and was handed over to me to investigate.
Q. Was he alone?
A. No my Lord, with three others.
Q. You took A1’s statement?
A. Yes he admitted the offence.
Q. I suggest to you A1 denied the offence.
A. No my Lord.
Q. A1 told you he was met by others when he was alone.
A. No. He solicited the help of the others”.
The learned trial judge upheld the conviction of the appellant also. We have no doubt in our mind that the prosecution succeeded in proving the conspiracy charge beyond reasonable doubt against the appellant and the learned trial judge and the appellate High Court were right because there is sufficient evidence on record to support it.
On robbery, the learned Circuit Judge further found that the appellant and others committed the robbery and at page 61 of the record of appeal, he stated as follows:-
“The totality of the evidence adduced on record weighs heavily against them and applying the test set out in the case of LUTTERODT V C. O. P.  2 GLR 1 find that the prosecution has proved all the ingredients against the accused beyond a reasonable doubt and the court finds them guilty”.
The ingredients of the offence of robbery which the prosecution must prove to succeed are succinctly stated in Frimpong alias Iboman v The Republic  1 SCGLR 297 Holding 2 as follows:-
“(i) that the accused had stolen something from the victim of the robbery; (ii) in stealing the thing, the accused used force, harm or threat of any criminal assault on the victims; (iii) the intention of doing so was to prevent or overcome any resistance; (iv) the fear of violence must be either or a personal violence to the person robbed or to any member of his household or family in a restrictive sense; and (v) the theft must have been in the presence of the person threatened”.
In the instant appeal, the High Court Judge upheld the appellant’s conviction. From the evidence on record, it is clear that the finding of the trial and the appellate courts were supported by the evidence on record. PW1 testified creditably that she saw the appellant and others in the house who knocked on the entrance and when she opened the door, they pretended that they were workers from Electricity Company and she led them to check the meter. They did show an identification card. While standing by them, the second convict suddenly covered her face and held her and took her through the kitchen door. She was warned by the appellant not to shout as he had a pistol pointed at her. She also saw the third convict who was ordered to lie down and a knife pointed at him. She was tied down and took her to the Boys Quarters. Later she heard the vehicle driven out of the gate and heard the noise of the vehicle. At that juncture they were gone and so she untied herself and also untied the 3rd convict and later made a report to the Police. PW2 the owner of the items corroborated the evidence of PW1 that PW1 called her but was hysterical. PW2 was earlier informed of the robbery by the third convict her houseboy who turned to be the architect of the crime. PW2 stated that the car and the other items were recovered. PW3 a Police Officer upon tip off that PW2’s car was being sold went with others to arrest the appellant and the second and fourth convicts. He took them to the Police Station. PW4 another Police Officer who was in the team, arrested the appellant who led them to arrest the second and fourth convicts. The second convict led the Police to retrieve the Toyota Camry car belonging to PW2.
PW4’s testimony corroborates that of PW3 and PW5 all Police Officers. PW6 the Police Investigator corroborated the evidence of PWs 1, 2, 3, 4 and 5. PW6 tendered Exhibit “A” the confession statement of the appellant. He also corroborated the evidence of PW2 that the car and the items stolen were hers. He tendered Exhibit G, a toy pistol, Exhibit H, a rope used for the robbery, Exhibit J, two pliers found with the second convict and Exhibit K, a picture of the Toyota Camry vehicle. We agree with the trial judge when he found as a fact that robbery was committed.
Indeed all the ingredients of the offence of robbery could be found from the evidence of PW1, PW2, PW3, PW4, PW5 and PW6. The prosecution witnesses testified to the threat of harm or violence by which the appellant pointed a pistol and also that PW1 was tied with a rope and forced into another room. The use of a pistol constituted the use of an offensive weapon from the definition of robbery all aimed at putting the fear of violence into PW1 in order to steal the items. Indeed the appellant and others succeeded in stealing the items stated on the charge sheet including the Toyota Camry car. The findings of fact of the trial judge and for that matter the appellate High Court are supported by the evidence on record.
Further, the appellant in his defence denied the offence and denied that he never went to the house of PW2. Counsel for the appellant complained that both the Circuit and High Courts failed to consider the case of the appellant when they evaluated his defence. The law is that in a criminal trial or appeal, the fact that the conclusion reached by the trial or appellate court was inconsistent with the defence of the accused, should not be construed as the failure of the court to consider the case put forward by the accused. See Frimpong alias Iboman v The Republic (supra) Holding (6).
In the instant appeal, there is evidence on record that the Circuit Court Judge considered the case of the appellant before reaching his conclusion that the appellant was present in the house and partook in the robbery. We therefore agree with the trial judge in rejecting the defence of the appellant and others that:-
“The court rejects the cock and bull story put up by the accused persons that they were not the ones that went to the house of PW2 and find as a fact that their identity was positively proved by the prosecution beyond reasonable doubt”.
We would now consider the issue of identification which learned counsel for the appellant made heavy weather of. Counsel contended that the only positive evidence which seem to connect the appellant to the offence came from the testimony of PW1 who testified that the appellant was among the robbers who came to the house. It must be noted the PW1 was emphatic that she responded to the bell of the house that rang and opened the door and they showed an Identification Card and she led them to the Electricity meter to check it. She stood there with them while the second convict and the appellant and the fourth convict pretended to squat to check the meters. The second convict covered her face and held her and later the appellant told her not to should and he pointed a pistol at her. She was tied down well and could not move. She took all the time to have seen and studied the appellant and his gang well including the time the vehicle in issue was driven out.
PW4 a Police officer also testified that there was an Identification parade where nine people were lined up including the appellant and others and the appellant and others were identified by PW1. On identification the case of Adu Boahene v The Republic  1 GLR 70 CA which was cited by counsel for the appellant rather supports the case of the prosecution. It was held in holding (3) of the headnote in the Adu Boahene case that, where the identity of an accused 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. PW1 had sworn on oath that the appellant was among the robbers by which she vividly described the scene. PW4, a Police officer also testified on oath that PW1 pointed out the appellant and the other convicts at the identification parade. From the facts in the record of appeal involving the testimony of PW1 and PW4, it is our opinion that, the reliance by the appellant on the issue of identification has no substance. With our opinion having been expressly stated, ground (a) and (b) of the written submissions fail.
The last ground to be considered is ground (c) that the sentence is harsh and excessive. We refer to section 149(1) as amended by the Criminal Code (Amendment) Act, 2003 (Act 646) that a person is guilty of robbery and shall be liable upon conviction to not less than 10 years imprisonment and where the offence was committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction serve not less than 15 years imprisonment.
In Kwashie v The Republic  1 GLR 488 CA, the Court stated the sentencing principles as follows:-
“In determining the length of sentence, the factors which the 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 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”.
See also Frimpong @ Iboman v The Republic (supra); Adu-Boahene v The Republic (supra) and Kamil v The Republic  SCGLR 300.
In the instant appeal, the offence committed by the appellant and the others is serious. The appellant wielded a pistol and threatened PW1 with it and others wielded knives, tied down PW1, took her to a different room and succeed in stealing all the properties of PW2 who was PW1’s mistress including driving away PW2’s Toyota Camry car. Had it not been for the prudence of the Police the said car would have been lost forever.
Although the items were retrieved, the offence of robbery is still a serious crime. The argument of counsel for the appellant that the lesser sentence should have been imposed is untenable. Counsel is lucky that the High Court had reduced the sentence to the barest minimum of fifteen years otherwise we would have enhanced it. The appellant and the others robbed by use of offensive weapons and therefore deserve the minimum sentence of fifteen years imposed by the High Court. In any case, the appellant ought to appreciate that punishment was supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease society and to be a safeguard to the country.
Section 149(1) of Act 29 stated the minimum sentence when robbery is committed with an offensive weapon and that is 15 years. From the evidence on record the appellant and others were armed with a pistol and knives. The offence is a grave one and is on the increase in the country.
Having examined the record of appeal and having noted the manner that the appellant and others committed the grave offence of robbery, we are of the opinion that the minimum sentence of 15 years imposed by the High Court was not harsh and excessive. The appeal is hereby dismissed.
In conclusion, the prosecution succeeded in proving the case beyond reasonable doubt and the 15 years sentence imposed on the appellant is the minimum and fair considering the dangerous and unlawful venture he and the others decided to undertake.
The judgment of the Circuit Court dated the 25th April 2012 and that of the High Court dated the 4th day of April 2014 are upheld. The conviction and sentence imposed by the High Court is also upheld. The appeal against the conviction and sentence accordingly fails.
C. J. HONYENUGA
(JUSTICE OF APPEAL)
F. KUSI-APPIAH, J. A. I agree F. KUSI-APPIAH
(JUSTICE OF APPEAL)
DENNIS ADJEI, J. A. I also agree DENNIS ADJEI
(JUSTICE OF APPEAL)