RICHARD COBBINA - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 8 TH FEBRUARY, 2018
CRIMINAL APPEAL NO: H2/13/2017
JUDGES: KUSI-APPIAH JA (PRESIDING), HONYENUGA JA, KWOFIE JA
MR. JOSEPH KAPONDE FOR THE APPELLANT
MS. ELIZABETH SACKEYFIO, SSA FOR THE RESPONDENT
The appellant and others were convicted of conspiracy to commit robbery and Robbery by the High Court, Accra on the 11th day of October, 2013 and sentenced to Fifteen (15) years imprisonment on each count to run concurrently. It is against his conviction and sentence that the appellant filed this appeal.
The facts of this appeal as presented by the prosecution at the trial High Court was that the complainant is a businessman and resident at Baatsona. The fourth convict is a draughtsman residing at Teshie in Accra. At about midnight on 12th June 2009, the fourth convict and others in masks broke into the house of the complainant, attacked him and his household with guns and knives. They beat them up and robbed the complainant of an amount of One Hundred and Fifty Ghana Cedis (GH¢150.00) and five Laptop Computers made up of Dell, Toshiba, Acer and HP models. The convicts also took away the car key of the complainant’s vehicle and bolted away. The complainant later used the duplicate key of the vehicle to chase up the convicts. He later found them boarding a taxi cab.
Upon seeing the complainant, the convicts took to their heels but the fourth convict was overpowered and arrested. The convict was handed over to the Police together with three (3) live cartridges found in his pocket and a hand-bag containing three of the laptops. On the 11th day of July 2010, the 3rd convict was arrested by the Regional Police Headquarters, Accra in a different Robbery case at Dansoman. Upon interrogation before the Regional Crime Officer, Accra, the 3rd convict confessed to have participated in a series of robberies together with others where they took place with the different groups of people he went with.
In the instant robbery, the 3rd convict further confessed and mentioned the names of the first and 2nd and 4th convicts including one Gladstone who is at large as an accomplice. The 3rd convict assisted the police to arrest the 1st convict and the appellant herein at Nungua on the 18th day of August, 2010. During interrogation, the two convicts also admitted the offences in their cautioned statements to the police. The learned trial judge after hearing the case to its logical conclusion delivered his judgment on the 11th day of October 2013, convicted and sentenced them to fifteen (15) years on each count to run concurrently.
The appellant being aggrieved by his conviction and sentence filed an appeal based on two grounds as follows:-
“a. The applicant raised reasonable doubt to secure his acquittal and discharged from the charges of conspiracy to rob and robbery.
b. The sentence of 15 years IHL was harsh.
c. Further grounds of appeal may be filed upon receipt of the record of proceedings”.
Arguing the first ground of appeal, learned counsel for the appellant cited Woolmington v Director of Public Prosecutions  AC 462 HL, Akosa v C.O.P.  3 WACA 43, R. V. Ojojo  GLR 207 CA, Gligah & Aliso v The Republic  SCGLR 870, Section 13(1) of NRCD 323 and other legal authorities on the burden of proof on the prosecution to prove their case beyond reasonable doubts. He stated that it is sufficient when the accused raises a doubt as to his guilt. Learned counsel referred to the evidence adduced at the trial and submitted that since the evidence of the appellant cannot be traced, the appellant should not suffer for the anomaly, particularly when an affidavit sworn to by the Registrar of the trial court confirmed this. Counsel further submitted further that the appellant adduced sufficient evidence to cast reasonable doubt as to his guilt and subsequent acquittal. Counsel contended that the only reason for the arrest and prosecution of the appellant was that PW4 (should read 4th convict) mentioned him as an accomplice in the robbery event. Counsel also further contented that reliance on the first convict’s confession statement to the police (Exhibit ‘B’) to convict the appellant was therefore wrong in law. Counsel therefore submitted that there is reasonable doubt as to the commission of the acts of conspiracy to rob and robbery by the appellant.
It is trite law that an appeal is by way of re-hearing of a case. See Dexter Johnson v The Republic  SCGLR 60, Yirenkyi v Republic  99 GMJ 1, and Agyeiwa v P & T Corporation [2007-2008] 2 SCGLR 985 where Georgina Wood CJ stated succinctly as follows:-
“The well-established rule of law is that an appeal is by way of rehearing, and an appellate court is therefore entitled to look at the entire evidence and come to the conclusions on both the facts and the law”.
See also Tuakwa v Bosom [2001-2002] SCGLR 61, Oppong v Anarfi  1 SCGLR 556 and a host of other respectable decisions. In this vein, I am enjoined to look at the entire evidence in the record of appeal and come to conclusions both on the facts and the law. This means that I would examine the evidence led by the prosecution and juxtapose same with the submissions of learned counsel for the parties.
Now, it is a cardinal principle of our criminal jurisprudence that the burden of proof in a criminal matter rests entirely upon the prosecution to prove its case beyond reasonable doubt. The prosecution must produce the evidence to meet the requirements of Section 11(2) of the Evidence Act, NRCD 323, 1975 which provides that:-
“In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, 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”.
See also section 13(1) which provides:-
“In any civil or criminal action, the burden of persuasion as to the commission by the party of a crime which is directly in issue requires proof beyond reasonable doubt as to guilt”.
For section 13(2) requires the accused to raise only reasonable doubt as to guilt as follows:-
“(2) Except as provided in section 15(c) in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse or which is essential to guilt requires only that the accused raised a reasonable doubt as to guilt”.
See also section 11(3) of NRCD 323.
The rules and principles on the burden of proof has been laid down in several cases. In Woolmington v DPP  262, 25 CR APP. R 72. HL per Lord Viscount Sankey stated in this locus classicus that:-
“Throughout the web of English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt …. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.
Furthermore, in an earlier decision in COP v Antwi  GLR 408, the Supreme Court in holding (1) of the headnote held that:-
“The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything if he can merely raise a reasonable doubt as to his guilt he must be acquitted”.
See also Amartey v Repulbic  GLR 256 at 295 SC, COP v Antwi (supra), Gligah & Atiso v The
Republic  SCGLR 870 Holding (2), Frimpong alias Iboman v Republic  1 SCGLR 297 at 313 and other legal authorities.
Before I consider the evidence as contained in the record of appeal, I would first address the submission of counsel for the appellant that certain portions of the evidence in the record of appeal cannot be traced and that the Registrar of the trial court has sworn to an affidavit attached. Counsel further submitted that since the cross-examination of the appellant cannot be traced to the appellant, it must inure to his benefit. The question to be asked is in a criminal appeal against conviction and/or sentence what judicial outcomes are open to an appellate court seized with an incomplete proceedings or records on account of all or a significant segment of the trial records being lost or completely destroyed? This problem confronted the Supreme Court in John Bonuah alias Eric Annor Blay v The Republic, Criminal Appeal No. J3/1/2015 dated 9th July 2015 (unreported). The facts of that case were that on the 28th February 2002, the appellant therein and one Billy who was at large, were tried and convicted by the Sunyani High Court of the offences of conspiracy to commit robbery contrary to section 23 and robbery contrary to section 149 of Act 29/60 and sentenced to life imprisonment on each count to run concurrently. The appellant unsuccessfully appealed against the sentence on grounds of its harshness and excessiveness, as he contended “given the circumstance of the case”. He lost the appeal at the Court of Appeal on jurisdictional ground that:-
“Appellant committed this offence in 2002. At that time the minimum sentence for robbery with small arms where there was no death, was life imprisonment. Even though the law has been amended with regard to sentencing, we do not have jurisdiction to interfere with the sentence lawfully imposed on the appellant in 2002”.
The appellant then with leave of the Supreme Court appealed against his conviction on the grounds inter alia that the Court of Appeal made serious error of law for refusing to look at the appeal against conviction because (a) the record of proceedings from the High Court, Sunyani produced by the Registrar was incomplete due to the non-availability of the other relevant records. The appellant reeling under irrevocable sentence of life imprisonment must not suffer as a result of incompetence of the record of proceedings. At the hearing of the appeal, to the chagrin of Supreme Court, a substantial segment of the Criminal trial record made up of the entire evidence of the nine prosecution witnesses, as well as the appellant’s could not be traced. On account of that the Supreme Court ordered the Registrar of the High Court, Sunyani to produce certified true copies of the full record of proceedings within one month and have them served on all the parties and the court, failing which the Registrar was to file an affidavit making full disclosure on the whereabouts of the record. The Registrar complied with these orders, filed an affidavit disclosing that in spite of diligent search, the record of proceedings could not be traced. The Supreme Court proceeded to hear the matter based on the limited record at their disposal. Due to unavailability of judicial precedent in this area of the law, the Supreme Court had to resort to foreign case law to guide it in formulating relevant legal principles. Delivering the judgment of the Court, Georgina Wood (Mrs.) CJ, chose two examples of codified principles from the United States and the Philippines and also from the jurisprudence of countries without specific statutory rules such as South Africa, Kenya and Nigeria. Wood CJ laid down the following general legal principles which was adopted after considering enlightened approaches that run through the decisions of the jurisdictions at pages 15 to 16 of the judgment that:-
“The first fundamental principle is that an appellant is not entitled to an acquittal on the mere basis of the loss or destruction of the judicial records, notably, trial proceedings. An allegation that court proceedings are lost or destroyed required investigations into three important areas, the veracity of the claim, the quantum or magnitude of the loss, missing or destroyed record and its relevance to the determination of the appeal in question.
Next, what or who caused the loss or destruction? Who stands to benefit? Depending on the finding a reconstruction may be ordered from a variety or sources depending on the availability of contemporaneous and reliable material from which to reconstruct, with the parties, their counsel and finally the court being satisfied beyond reasonable doubt about the accuracy of the reconstructed record.
If appellant is not blamable for the loss or destruction, or if reconstruction is impossible, then a retrial may, depending on the circumstances, be ordered and genuine efforts made to trace the witnesses.
In the event of the prosecutions clearly inability to secure witnesses, ultimate order of conditional or unconditional discharge must inure to the benefit of an innocent appellant. But this extreme order must be made sparingly. It must apply in those exceptional cases, where the evidence points beyond reasonable doubt to the innocence of the appellant in relation to the missing records, the nature of the offence the appellant was charged with and the length of time spent in custody etc.
In all this, accountability principles ought to be rigorously enforced, for all persons, officer etc. found culpable for the loss or destruction appropriately being sanctioned, in order to preserve the integrity of the criminal justice system and save it from total collapse. But, we would at the same time, strongly advocate the adoption of safe and secure recording and archival systems for court records”.
The Supreme Court then held that:
“On balance, we think the appellant having spent as many as thirteen (13) years in prison, believe justice would be best served to both parties if we grant him a conditional discharge for a period of five years during which period the prosecution may prosecute the case afresh when they are able to trace the witnesses. The appellant shall be entitled to a complete discharge if not prosecuted within the specified year period”.
In the instant appeal, it should be noted that it was the appellant who complained about the state of the record in his written submissions. A perusal of the record of appeal indicates that it is impossible to reconstruct the record of appeal and retrial is out of the way. A discharge is only possible if the record available points beyond reasonable doubts to the innocence of the appellant.
Further, it is strange that the appellant’s evidence-in-chief and part of his cross-examination were missing from the record and considering the speed with which the Registrar swore to an affidavit in support of the missing records by usurping the powers of this court, can one trust that part of the record were genuinely missing? It is doubtful as to why the veracity of the loss could not be blamed on the appellant. This case is different from the John Bonuah case (supra) in which the Supreme Court conditionally discharged the appellant against conviction on the ground that the entire evidence of all the nine prosecution witnesses were missing as well as that of the accused persons were missing from the record. In that appeal, the Supreme Court had no record properly speaking to rely upon in determining the appeal and a miscarriage of justice would have been occasioned. The facts and the circumstances of the instant appeal is different. It is therefore the considered view of this court that the absence of part of the evidence of the appellant did not affect the evidence as a whole such that a miscarriage of justice would occasion if the appeal is determined on it. The submission of the appellant would therefore not inure to his benefit because the available evidence did not point to his innocence and also the nature of the charge is a first degree felony with the minimum sentence being 15 years. Further, the appellant has been in prison for about four years.
What was the evidence proffered in the trial court in proof of the offences charged that led to the conviction of the appellant? As earlier stated, the appellant and others were charged with conspiracy to commit robbery contrary to sections 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29) as amended by Act 646 and Robbery contrary to section 149 of Act 29 (1960) as amended by Act 646 (2003). For avoidance of doubt, I would reproduce the charges against the appellant and others as follows:-
STATEMENT OF OFFENCE
CONSPIRACY to commit crime namely: robbery contrary to sections 23(1) and 149 of the Criminal Offences Act, 1960 (Act 29) as amended by the Criminal Offences (Amendment) Act, 2003, Act 646.
PARTICULARS OF OFFENCE
WISE GREY @ BIGGY (Clearing Gent), (2) RICHARD COBBINA @ SHAKA ZULU, (3) ABBASS BABA @ BIGGY (Trader), (4) PAUL OWUSU @ SCHOOL FEES (Draughtsman), on or about the 12th of June 2009, at Baatsona in the Greater Accra Circuit and within the jurisdiction of this Court did act together with a common purpose to commit crime namely, robbery.
STATEMENT OF OFFENCE
ROBBERY contrary to section 149 of Act 29 (1960) as amended by Act 646 (2003).
PARTICULARS OF OFFENCE
WISE GREY @ BIGGY (Clearing Gent), (2) RICHARD COBBINA @ SHAKA ZULU (Boxer/Private Security), (3) ABBASS BABA RICHARD, (4) PAUL OWUSU @ SCHOOL FEES”
Section 23(1) of the Criminal Offences Act 1960 provides:-
“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”.
Sections 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”.
I would first deal with the offence of conspiracy as charged. To secure a conviction for the offence of conspiracy, the prosecution must prove the following:-
“(i) agreement to commit the unlawful act of robbery – acting for a common design. There need not be any prior deliberation; and
(ii) intention on their part to commit that unlawful act as manifested in their common pursuit of the robber agenda”
See Frimpong alias Iboman v The Republic  1 GLR 297 at page 312. See also Behome v Republic  GLR 112; State v Boahene  2 GLR 554, State v Otchere  2 GLR 463; Azametsi v The Republic  1 GLR 228 CA.
In Behome v Republic  GLR 112, the trial court held in Holding (1) on conspiracy to commit crime under section 23(1) as follows:-
“(1) The trial judge was wrong in suggesting that proof of mens rea was not essential in conspiracy cases. In order to secure conviction on the charge of conspiracy, the prosecutions were under a duty to prove that the appellant and those charged with him did not only agree to commit the unlawful act of unlawful entry but that they also had the intention to that unlawful act”.
For the offence of robbery, the following ingredients would suffice for a conviction:-
“(i) that the appellant stole something from the victim of the robbery of which he is not the owner;
(ii) that in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims;
(iii) that the intention of doing so was to prevent or overcome the resistance;
(iv) that this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense; and
(v) the thing stolen must be in the presence of the person threatened”.
See Frimpong alias Iboman v The Republic (supra), and Behome v Republic (supra) where the court in holding (5) of the headnote 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 his victims to the stealing of the thing”.
For the conspiracy, PW1 testified and identified the 4th convict in court that on 12th June 2009, he was in his house at Baatsona Spintex road with a total of seven persons when two men including the 4th convict forcibly took money from him. PW1 stated that six of his laptops were stolen. He further stated that the two men held guns and a knife and in the process they destroyed his back door and the toilet door. He testified that he used his car to knock down the 4th convict by the roadside and succeeded in retrieving three of his laptops, two phones and one cartridge from him. It is to be noted that in the course of his evidence PW1 never mentioned or identified the appellant as one of those who attacked him and stole his property.
PW2 the Police Investigator testified and tendered Exhibit ‘B’ and ‘B1’, the caution and charged statements of the 1st convict, Exhibits ‘C’ and ‘C1’, the caution and charged statements of the appellant. Exhibits ‘D’ and ‘D1’ the caution and charged statement of the 3rd convict and finally Exhibit ‘E’ and ‘E1’ the caution and charged statement of the 4th convict. In cross-examination at page 21 of the record of appeal, counsel sought to show that the appellant was not in the house of PW1 and that his statement was procured unlawfully. Counsel also cast doubt on the existence of the independent witness to the statement of the appellant. However it is noted that counsel was not bold enough to have objected to the tendering of the statement in order that a mini trial be ordered. Indeed, the caution statement of the appellant is a confession statement.
As already stated, the evidence in chief and part of the cross-examination of the appellant form part of the defence of the appellant and strangely missing from the record of appeal while the defence of the other convicts are intact in the record. However, from the cross-examination conducted on his behalf, the appellant denied the offence. Was there sufficient evidence adduced in support of the conspiracy charge?
Indeed, the proof of the conspiracy hinges on the confession statement of the appellant and the convicts. Counsel for the appellant’s complaint is that the 1st convict denied his statement in court in which he implicated the appellant and therefore the charge of conspiracy was not proved beyond reasonable doubt. With regard to the issues raised by counsel, it is noted that no objection was raised when the prosecution sought to tender those statements at the trial. The Evidence Act, 1975 expressly sets out the procedure for objecting to inadmissible evidence. Section 6(1) and (2) of NRCD 323 provides:-
“6(1) In an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by the evidence shall be made at the time the evidence is offered.
(2) An objection to the admissibility of evidence shall be recorded and ruled upon by the court as a matter of course”.
The appellant in his written submissions submitted that the judgment of the trial court was based on the caution statement of the 1st convict which mentioned the appellant. Indeed, no objection was raised to the tendering of the 1st, 3rd convicts and the appellant’s statement or that of the appellant and therefore the appellant cannot now be heard complaining. The caution statement of the 1st convict Exhibit ‘B’ states:
“Within the year 2009, I was in my house when I received a telephone call from one Gladstone to meet him at suspect Abbass Richard boutique at Nungua. I duly went there and met suspect Abbass Baba Richard and Gladstone @ Stone, suspect Gladstone then told me that he worked with some Nigerians doing Internet Fraud activities at Spintex road, near Lashibi and that they had cheated him of his share of the monies they had. Because of that we should go and attack them to get some of the monies. We then planned to attack them the following day but before then we all went to the complainant house to survey the place. Then the following day at about 11pm, all of us namely myself, Abbass, Cobbina, Paul Owusu @School Fees together with Gladstone met at Nungua and we footed to the place. In the house we attacked them and robbed them of five laptop computers together with some small monies. On our way back a vehicle hit suspect Paul Owusu who was carrying two laptops. We also shared the remainder between us”.
The caution statement of the 3rd convict Abbass Baba Richard Exhibit ‘D’ also confirmed the statement of the 1st convict as to their having acted together to commit the robbery. The caution statement of the appellant Exhibit ‘C’ stated as follows:-
“Within the year 2009, a friend of mine called Gladstone @ Stone came to me and informed me that he and some Nigerians are involved in Internet Fraud activities but when they get monies they fail to give him his due share but they always cheat him instead and that we should go and attack them to collect some of the monies. The two of us went to Abbass suspect Boutique store at Nungua. We met him at his store. We then discuss it but because we were not having weapon, Abbass invited suspect Wise Grey @ Biggy and one Paul Owusu @ Old School to the store. They came and we agreed to go and attack them. After our planning we all took a taxi to the complainant house at Spintex road area to survey the place. Then the following day we all met at Nungua and footed to the place. At the house the gate was locked so suspect Wise jumped the wall into the house and opened the main gate for us. We all entered the house through the back door. Suspect Wise pulled one pistol and ordered the house occupants to lay on the floor. We took two laptops whilst another member of our gang the slim one also took one laptop and we left the house. Then on our way the slim boy called Old School was knocked down by a vehicle. Suspect Grey the black guy gave two laptops to Abbass as our share and further gave the cash sum of GH¢30.00 as my share. The following day I and Abbass wen and sold the laptops at Circle and we share the monies. The reason why I got involved in this robbery attack was that my wife was pregnant and I had no money on me. I have only done one robbery operation with the gang and nothing else”.
The confession statement of the appellant is on all fours with that of the 1st convict. A confession statement made by an accused person is admissible against him provided it is voluntarily made. In State v Otchere  2 GLR 463, the court held in holding 3 of the headnote that a confession made by an accused person in respect of a crime for which he is tried is admissible against him provided it is shown by the prosecution that it was made voluntarily and that the accused was not induced to make it by any promise or favour or menaces or undue terror.
Further in Ofori v The State  2 GLR 452 SC, the Supreme Court held that a free and voluntary confession of guilt by an accused person, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence.
In effect, the confession statement made by the appellant herein is evidence against him and a conviction, provided it satisfies the dictates of section 120(1-4) of the Evidence Act, 1975, NRCD 32 which the Supreme Court in Frimpong alias Iboman v The Republic  1 SCGLR 297 Holding in the headnote held that:
“Based on the provisions in sub-sections 1 – 4 of section 120 of the Evidence Act, 1975 (NRCD 323) the following procedure must be complied with to give validity to a confession statement and make it admissible in law: If the declarant of the statement made the statement while arrested, restricted or was detained by the state, then the statement would be admissible only if: (i) It was made in the presence of an independent witness; (ii) the independent witness must understand the language in which the declarant, i.e. the appellant in the instant case had spoken; (iii) the independent witness could also read and understand the language in which the statement had been made; (iv) whenever the statement was in written form, the independent witness should certify in writing on the statement as follows:- “that the statement was voluntarily made in his presence and that the contents were fully understood by the accused”; (v) where the declarant was illiterate or blind, the independent witness should carefully read over and explain to the accused the contents of the statement before it was signed or marked by the accused. That would ensure that the state did not take advantage of the disability of the accused; and (vi) the independent witness should certify on the statement in writing that he had read over and explained the contents of the statement in writing that he had so read over and explained the contents of the statement to the declarant and that he appeared perfectly to understand it before making his mark or signature”.
Applying the legal principles as enshrined in section 120 and the decision of the Supreme Court, it is my considered opinion that the confession statements Exhibits B, B1 and C and C1 were voluntarily made and therefore admissible against the appellant. There was an independent witness who certified the statement after reading and understanding the language in which it was written.
Furthermore, it is trite criminal law that a confession made by an accused person if admitted into evidence is evidence against him. In Francis Yirenkyi v The Republic  102 GMJ 1 SC at page 56, Akamba JSC (as he then was) stated the law succinctly that:-
“It is trite criminal law that a confession made by an accused person which is admitted in evidence is evidence against him”.
In the light of this Supreme Court decisions, the appellant’s confession statement Exhibit C is evidence against him. A perusal of Exhibit C indicates that all the ingredients of conspiracy that is that the appellant acted together with the other convicts for a common purpose to commit the crime of robbery could all be found therein. The meeting, the agreement to go and rob and the robbery itself are clearly contained therein.
Although the appellant and the 1st convict denied at the trial that they were involved in the conspiracy, this cannot be borne out by the record of appeal. The appellant was deeply involved in the planning and execution of the robbery. The appellant’s denial only goes to undermine his credibility as rightly cited by the learned Senior State Attorney. Section 80(1)(g) of the Evidence Act, NRCD 323 which provides:-
“(1) Except as otherwise provided by this Decree the court or jury may in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of the testimony at the trial.
(2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the follows a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial”.
The law is that a witness whose evidence is on oath is contradictory of a previous statement made by him whether sworn or not is not worthy of credit. In Gyabaah v The Republic [1984-86] 2 GLR 345 CA, this court held in holding (2) of the headnote that a witness whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn was not worthy of credit and his evidence could not be regarded as being of any importance in the light of his previous contradictory statement unless he was able to give a reasonable explanation for the contradiction.
In the instant appeal, although the appellant and the other convicts gave caution statements indicating how they acted together for a common purpose in committing the robbery, they changed their case completely and denied their own previous statement in court offering no reasonable explanation in court. The appellant cannot be a reliable and truthful witness in the light of his contradictory statements. Exhibit C is a confession statement which did not offend section 120 of NRCD 323 and therefore the appellant’s conviction on the conspiracy charge by the learned trial judge was right.
On the substantive charge of robbery, I have enumerated the ingredients of the offence supra as espoused in the Frimpong alias Iboman v The Republic (supra). I have referred to section 150 of the Criminal Offences Act, Act 29, 1960 (supra) which defined what constituted robbery and also cited Behome v The Republic (supra) in support. In the instant case, PW1 testified that the 4th convict and another person came to his house, took money from him and destroyed his back and toilet doors. He also saw the two persons; one armed with a gun and the other with a knife. He also testified that six (6) laptops were stolen from him but upon a chase he retrieved three (3) laptops, two phones and one cartridge from the 4th convict. PW2 the Police Investigator testified and tendered the caution and charged statements including that of the appellant’s Exhibit C his caution statement. The appellant’s caution statement is a confession statement. I have quoted Exhibit C but I would still refer to the relevant part with respect to the robbery as follows:-
“At the house the gate was locked so suspect Wise jumped the wall into the house and opened the main gate for us. We all entered the house through the back door. Suspect Wise pulled one pistol and ordered the house occupants to lay on the floor. We took two laptops whilst another member of our gang the Slim one also took one laptop and we left the house. Then on our way the Slim boy called Old School was knocked down by a vehicle. Suspect Gray the black guy gave two laptops to Abbass as our share and he further gave me cash the sum of GH¢30.00 as my share. The following day I and robbers went and sold the laptops at Circle and we share the monies. The reason why I got involved in this robbery was that my wife was pregnant and I had no money on me. I have only done one robbery operation with the gang and nothing …”.
In cross-examination at page 23 of the record of appeal, counsel asked PW2 as follows:-
“Q. Did you find out the allegation in the 2nd accused statement that he (sic) also part of a robbery case in 1990?
A. My Lord, he admitted and even led us to the house of the 3rd accused to arrest him.
Q. I am talking about 1990 did you find out about the details of the allege robbery?
A. My Lord, is 2009 not 1990.
Q. You said he had been in another robbery in 1990 ….. read it.
A, He said I have only done one robbery operation with the gang and nothing else. So this is the particular robbery he is talking about but not any robbery.
Q. Did you find out whether the accused person …..
A. My Lord our investigation disclosed that it is true his wife was pregnant”.
Exhibit C and the cross-examination satisfied the ingredients of robbery and that the appellant partook in the robbery. During investigations his wife was confirmed to be indeed pregnant as stated in Exhibit ‘C’. Despite these evidence, it is trite that the prosecution had a duty to prove the allegations against the appellant beyond reasonable doubt. The burden of proof also remains on the prosecution throughout and it is only after a prima facie case has been made that the accused is called upon to open his defence. See Amartey v The State  GLR 256, at 295, SC; Gligah v The Republic  SCGLR 870. Considering the evidence of the prosecution as led by PW1, PW2 and Exhibit C, the confession statement, it is clear that the prosecution has established the burden of proof as required in a criminal case. For, the prosecution in my considered view, have led credible evidence to support the ingredients of the offence of robbery. For instance, it is not in doubt that the robbery occurred on 12th June 2009 in the house of PW1. Further, at least one of the robbers was armed with a pistol and a knife and put the inmates of the house in fear of violence and threat of death to overcome their resistance is also not in doubt. The appellant and others stole the property of PW1. Moreover, the fact that during the investigations into the case the appellant was mentioned. The theft was in the presence of PW1. Finally, the role and importance of the evidence given by the investigative officer during the trial of the appellant and other convicts cannot be underestimated. It was the investigative officer, PW2 who obtained the caution statement Exhibit C which turned out to be a confession statement. This confession statement did not violate the law as espoused in section 120 of the Evidence Act NRCD 323. The statement led to the arrest of the appellant and the other convicts which assisted in uncovering the robbery. It is also noteworthy that the confession statement of the 3rd convict and that of the appellant indicated that the appellant was instrumental in the commission of the robbery.
Furthermore, counsel for the appellant contended that an identification parade was conducted and only the 4th convict was identified among the four persons arrested. The contention is wholly untrue.
On page 39 of the record of appeal, counsel for the 3rd convict cross-examined PW2, the Investigator as follows:-
“Q. Now did you hold any identification parade upon the arrest of A3?
A. My Lord because I was on …. It was one policeman who …. I never did any identification.
Q. Listen to the question? You never did any identification parade? A. Yes my lord”.
It is thus clear that no identification parade was held during the investigations into the case.
Indeed counsel also criticized the learned trial judge for his reliance on the 1st convict’s statement Exhibit B, to convict the appellant. It is trite that a confession statement from an accused which is admitted into evidence is evidence against him. See Yirenkyi v The Republic (supra). In this vein the confession statements made in Exhibits B and C by the first convict and the appellant respectively is evidence against them. It is noted that the appellant confessed the crime in Exhibit C and therefore it is evidence against him. It is also trite that a confession statement which is admitted into evidence is admission of the offence charged and a court can convict on that statement. See State v Otchere (supra).
It is also strange that counsel for the appellant should submit that the appellant raised reasonable doubt to secure his acquittal and discharged. It is strange because the record of appeal did not include the evidence in chief and part of his cross-examination. I fail to see how the appellant could adduce evidence to raise reasonable doubt to merit an acquittal. For avoidance of doubt, the appellant’s confession statement in Exhibit ‘C’ is sufficient to convict him. My opinion is that the prosecution proved the guilt of the appellant beyond reasonable doubt. It is my considered opinion that this ground of appeal fails and ought to be dismissed. It is accordingly dismissed.
The last ground of appeal is that the sentence of 15 years was harsh. Learned counsel for the appellant has prayed that there was no direct incidence of stealing by threat of any form by the appellant against PW1. Counsel contended that the appellant is a youngman in his prime with dependents to cater for and his continued incarceration is visiting untold hardship on his family as he was the breadwinner. Counsel submitted that the appellant has spent about four (4) years in prison and has learnt lessons which would deter him from involving himself in any unlawful acts. I must state emphatically that there is evidence on record that the 1st convict agreed and acted together with the appellant and others to commit the robbery and in the process a pistol and a knife was used in overcoming the resistance of the victims. In the light of this I would examine the principles for imposing sentences upon a convicted person, namely in determining the length of sentence as stated in Frimpong alias Iboman v The Republic  1 SCGLR 297 holding (8) of the headnote where the Supreme Court delivered itself as follows:-
“(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 society totality where the offence took place; or in the country generally; (5) the sudden increase in the incidence of the particular crime; and mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. And where the court found an offence to be grave, it must not only impose a deterrent sentence, the good record of the accused would be irrelevant. Furthermore, on a complaint by an appellant as to the harshness of a sentence, he ought to appreciate that every sentence was supposed to serve a fivefold purpose to deter others, to reform the offender, to appease the society and to be a safeguard to the country. Kwashie v The Republic  1 GLR 488 at 493 CA; Adu-Boahene v The Republic  1 GLR 70 CA; and Kamil v The Republic  SCGLR 300 cited”.
In the instant appeal, the appellant and others were charged under sections 149 of the Criminal and Others Offences Act, 1960 (Act 29) as amended by the Criminal Code (Amendment) Act, 2003 (Act 646). Section 149(1) of Act 29 as amended stipulated that a conviction upon a summary trial for robbery is not less than ten (10) years. However, where the offence of robbery is committed by the use of an offensive weapon, the offender upon conviction shall be liable for a term of not less than fifteen (15) years.
Section 149 as amended defined ‘offensive weapon’ to mean any article made or adopted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use to 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. In the instant appeal, there is evidence that a gun and a knife were used intended to cause injury or damage. There is sufficient evidence on record that a pistol and knife were used during the robbery and the minimum sentence upon conviction is fifteen years. The learned trial judge was right in imposing the minimum sentence of fifteen (15) years imprisonment after a consideration of all the factors on sentence.
I have considered the factors necessary when an appellant complains that a sentence is harsh. These factors are five-fold namely punitive calculated to deter others, to reform the offender, to appease the society and to be a safeguard to the country. Upon a consideration of those factors and to address the submission of counsel, I think that the appellant deserves no reduction in sentence since the offence of robbery is on the ascendancy and the country needs to be safeguarded. Further, it is my considered opinion that the minimum sentence would be deterrent enough to deter like-minded persons. The sentence of fifteen (15) years would be sustained. This means that this ground of appeal also fails and it is hereby dismissed.
In conclusion, the appeal is dismissed and the conviction and sentence imposed by the High Court, Accra is hereby affirmed.
C. J. HONYENUGA
(JUSTICE OF APPEAL)
KUSI-APPIAH, J.A. I agree F. KUSI-APPIAH
(JUSTICE OF APPEAL)
KWOFIE, J. A. I also agree HENRY KWOFIE
(JUSTICE OF APPEAL)