YAW MARFO vs THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2018
YAW MARFO - (Defendant/Respondent/Appellant)
THE REPUBLIC - (Defendant/Respondent/Appellant)

DATE:  21 ST MAY, 2018
CRIMINAL APPEAL SUIT NO:  H2/10/12
JUDGES:  ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
LAWYERS: 
JUDGMENT

DZAMEFE, JA

The appellants and others were charged with the following offences: Conspiracy to commit Robbery and Robbery contrary to Sections 23(1) and 149 of Act 29/60 as Amended by Act 646/2003

 

COUNT 1

 

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT ROBBERY; CONTRARY TO SECTIONS 23(1) AND 149 OF ACT 29/60 AS AMENDED BY ACT 646/2003.

 

PARTICULARS OF OFFENCE

1.  YAW  MARFO:  APPRENTICE  WELDER,  2.  AKWASI  THOMAS  ALIAS  2-FACE:SHOEMAKER, 3. KWAME ASUO (AT LARGE): For that you on the 26th day of January, 2006 at about 2.30am at Amakom Abrotia in the Ashanti Region and within the jurisdiction of this Court, did act together with a common purpose to commit crime to wit Robbery.

 

COUNT 2

STATEMENT OF OFFENCE

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

 

PARTICULARS OF OFFENCE

1.  YAW  MARFO:  APPRENTICE  WELDER,  2.  AKWASI  THOMAS  ALIAS  2-FACE:SHOEMAKER, 3. KWAME ASUO (AT LARGE): For that you on the 26th day of January, 2006 at about 2.30am at Amakom Abrotia in the Ashanti Region and within the jurisdiction of this Court, did rob one MAXWELL WIREDU of his cash, an amount of four hundred thousand cedis (¢400,000.00).

 

COUNT 3

 

STATEMENT OF OFFENCE

 

ABETMENT OF ROBBERY: CONTRARY TO SECTIONS 20 (10 AND 149 OF ACT 29/60 AS AMENDED BY ACT 646/2003).

 

PARTICULARS OF OFFENCE

KASIM OLDMAN AZANA ALIAS 50 CENT: BUTCHER: For that you on the 25th day of January, 2006 in Kumasi in the Ashanti Region and within the jurisdiction of this Court, did facilitate the commission of Robbery by providing Yaw Marfo and Akwasi Thomas with a gun.

 

COUNT 4

STATEMENT OF OFFENCE

POSSESSION OF FIREARM WITHOUT AUTHORITY: CONTRARY TO SECTIONS 1 AND 11 OF ARMS AND MMUNITION DECREE, 1972 (NRCD 9) AS AMENDED BY ARMS AND AMMUNITION (AMENDMENT) ACT 1996.

 

PARTICULARS OF OFFENCE

KASIM OLDMAN AZANA ALIAS 50 CENT: BUTCHER: For that you on the 25th day of January, 2006 in Kumasi in the Ashanti Region and within the jurisdiction of this Court, did possess firearm without lawful authority.

 

FACTS

The complainant is a taxi driver in charge of KIA PRIDE number AS 4760W and he lives at Atonsu in Kumasi. On 26/01/2006 at about 2.30am. The complainant was hired by A1, A2 and A3 now at large to take them to Amakom Abrotia for which the complainant charged ¢15,000.00 and later reduced it to ¢10,000.00. A1 sat in front of the vehicle while A2 and A3 sat at the back. At a place in front of Abrotia JSS, the accused asked the complainant to stop. Then the complainant stopped. A1 pulled out a pistol and pointed it to the complainant. They forced the complainant out of the car and collected from him ¢400,000.00. The complainant raised an alarm and the accused person who attempted to drive the car away abandoned that idea and rather took to their heels. At about 7.00am the complainant was narrating the incident to his car owner and others at Asafo Labour when he saw A1, A2 and A3 near the Mobil filling Station at Asafo. A2 was then carrying a blue black sport bag. Upon the alarm raised by the complainant, A1, A2 were arrested by a mob while A3 managed to escape. The complainant went to make a report at the Zongo Police Station. The police came to rescue A1 and A2 who were about to be lynched by the mob. In the sport bag was found a pistol and live cartridge. In their caution statements, A1 and A2 admitted having robbed the complainant earlier at 2.30am. they mentioned the name of A4 as the one who supplied them with the gun and the cartridge on 25/01/2006 in the presence of one Kojo Ketewa Asante. A1 and A2 led the police to the house of A4 and he was arrested. A4 denied ownership of the gun.

 

The complainant Maxwell Wiredu told the court on 26th January 2006, at about 2.30am while driving his Kia taxi with registration number AS 4760 W, 1st accused, 2nd accused and a lady hired him to send them to Asafo Abrotia.

 

On reaching Asafo Abrotia, the 1st accused turned off the ignition key and when he asked why he pulled a gun on him. They attempted driving the car away but he shouted and with some assistance the accused abandoned the taxi and took to their heels and escaped.

 

The following day he saw the 1st and 2nd accused in the company of one Shorkor.            He confronted 1st accused and gave him a blow and he was later arrested together with 2nd accused. A report was made to the Zongo police and four officers came to effect their arrest. He said the robbers robbed him of Gh¢400.00 and the ignition key.

 

Sgt. Adjavon, stationed at Zongo Police station, Kumasi told the court these case was referred to him for investigation. A blue black bag containing a pistol and live cartridges, a tape found on 2nd accused was also given to him which he tendered into evidence. He took Investigation Caution Statements from the accused persons which he tendered into evidence without objection. He said the 1st and 2nd accused led police to the house of the 3rd and 4th accused persons to effect their arrest after mentioning their names in their Investigation Cation Statements. He also collected Charged Statements from them which he tendered into evidence without objection.

 

Prosecution closed their case and the court was of the opinion that a prima facie case had been established against the accused persons and called upon them to open their defence.

 

DEFENCE

The 1st accused (appellant herein) in his defence said he is an electric welder living at Asafo Kumasi. He said on 25/01/06 in the evening at Labour, the complainant in this case confronted him and said he was one of those who robbed him and he was beaten up by the mob and eventually arrested by the police. He denied the charges levelled against him. In cross examination he said he does not know the other accused persons and that 2nd accused is not his friend neither does he know him. In course of the trial the 2nd accused passed on and his name was struck out of the case. 3rd accused is also at large but was not tried in absentia.

 

The 4th accused in his testimony denied the charges.  He denied ever giving a gun to the accused persons for the robbery. The 1st and 4th accused informed the court they do not intend calling any witnesses.

 

The court in its judgment found the 1st accused person guilty of the charges of conspiracy and robbery and accordingly convicted. The 4th accused was acquitted and discharged by the court of possessing firearm and abetment of crime as charged. A bench warrant was issued for the arrest of 3rd accused who was still at large.

 

The 1st accused, after his plea for mercy, was sentenced to 25 years IHL each on counts 1 and 2 and both sentences to run concurrently. The 1st accused dissatisfied with the conviction and sentence filed this appeal on the following grounds: -

 

The learned judge erred in law in admitting the purported confession statement of the 1st accused (i.e. the appellant herein) without having a mini-trial to determine whether he indeed made the confession statement and whether it was voluntary.

 

It was wrong in law to convict the 1st accused (i.e. the appellant herein) on count one i.e. the conspiracy charge, and more so, when the other accused persons were acquitted and discharged on that count.

 

The judge failed to make a finding of fact on crucial matters, and this occasioned a substantial miscarriage of justice.

 

The appellant was not offered a fair opportunity to put up his defence, and this occasioned a substantial miscarriage of justice.

 

The sentence was harsh and excessive and, having regard to the maximum sentence of 25 years imprisonment imposed on the accused, the judge was duty bound to give reasons for his decision.

 

 SUBMISSION

Counsel informed the court will argue grounds 2,3, and 4 together likewise 1 and 5.

 

GROUND 1 AND 5

These grounds are about the authencity of the confession statement of the appellant and the sentence. Counsel submit that the appellant said the confession statement was not his deed and he knew nothing about the content of the statement as he was made to thumbprint it by the police. He further contended that there was no independent witness when the alleged confession statement was taken. There is therefore an issue with the authorship and voluntariness of the confession statement, Exhibit F.

 

Counsel referred this court to the following cases: -

 

RUSSSEL VRS. THE REP [2016] 102 GMJ124 and SAGAH AGBOZAVU VRS THE REP [2016] 96 GMJ 45

Counsel submit further that another issue is whether the appellant indeed really appreciated and understood the content of the statement as there was no indication as to the language in which the said exhibit was explained and or interpreted to the appellant. Counsel contends that the failure of the prosecution to prove that the alleged confession statement of the appellant was taken in accordance with Section 120 of the Evidence Act was fatal to their case. Further, they contend the refusal of the Prosecution to call the alleged independent witness as a witness to give evidence as to the circumstances of the taking of the confession statement is so crucial especially when the appellant has denied the content and or authorship of same. It is their submission that the learned judge erred in law in admitting and or relying on the purported confession statement of the appellant especially so when he has denied the content or authorship of same.

 

The respondent in answer to this ground of appeal stated

“Respectfully, in the light of the fact that the appellant was unrepresented, it is humbly submitted that the trial court did not act in a fair manner when in spite of the fact that he did not appreciate the necessity of raising timeous objections, he allowed a statement he was very much opposed to its tendering to go in. He subsequently raised an objection during cross-examination, it is submitted that fairness dictated that the appellant’s objection though not timeous, was to have been heard and a mini trial undertaken to determine the voluntariness or otherwise of the statement.

Consequently, it is humbly submitted that this procedural error committed by the court did occasion a substantial miscarriage of justice in that the confession statement of the appellant was wrongly admitted taking into consideration that the fact that the appellant was unrepresented and he did not appreciate the legalities involved in the trial particularly with regards to raising a timeous so objection”.

 

 A confession is a criminal suspect’s oral or written acknowledgment of guilt often including details about the crime. Black’s Law Dictionary.

 

 A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. The distinction between admissions in criminal cases and confessions by the accused is the distinction in effect between admissions of fact from which the guilt of the accused may be inferred by the jury and the express admission of guilt itself. – William Richardson [ The Law of Evidence 3rd edition].

 

 A voluntary confession is confession given freely, without any benefit or punishment promised, threatened without any benefit or punishment promised, threatened or expected.

 

Section 120 of the Evidence Act on Confession states:

 

In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which

a. constitutes, or

b. forms an essential part of, or

c. taken together with other information already disclosed by the accused is a basis for an inference of, the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily.

 

Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who

a. can understand the language spoken by the accused,

b. can read and understand the language in which the statement is made, and where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused.

 

Where the accused is blind or illiterate, the independent witness

a. shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and

b. shall certify in writing on the statement that the independent witness had so read over the explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked.

 

 For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if

a. the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or

b. the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or

c. the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or a person who has a direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person.

 

In the instant appeal, PW2 the investigator in course of his testimony, asked leave of the court to tender the Investigation Caution Statements he collected from the accused persons. The accused never raised any objection to this plea and their statements were tendered as exhibit ‘F’.

 

The record on page 11 of the record of appeal shows;

 

BY PW2: - I took statements from the accused persons.  I wish to tender in evidence, the statement by A1. (No objection by 1st accused. Statement made by 1st accused is admitted in evidence and marked exhibit ‘F’. read in court).

 

In cross examination, 1st accused asked PW2 [page 12 ROA]

Q -Was there anybody present when you recorded my statement?

A -Yes there was an independent witness

Q -What did I say was my trade?

A -You said you were an electric welder

Q -You did not write everything I told you

A -I wrote down just what you said

Q -Did you allow me to read over the statement?

A -After the statement, it was read over to you by the independent witness.

Q -I put it to you that you took down my name and after you wrote down something which you told me to thumbprint?

A -That is not true

 

From the cross examination the appellant never disputed the presence of an independent witness. He never asked any further question to rebut same. If he did may have created some doubt but he failed to ask any further question on that.

 

About his trade, the witness said he said he was an electric welder. Here as well the appellant never denied same. The appellant then went on to say the investigator did not write everything he told him. That clearly shows that the accused offered a statement. If the investigator failed to write all the accused told him meant the accused at least volunteered a statement.

 

In one of my judgements at the High Court bench I tried to make a distinction between these two situations. The first situation is where the accused person alleged he gave a statement to the police but they failed to write exactly what he told them and the second situation is where the accused person alleged he never gave any statement at all and that the police forced one on him and asked to sign or thumbprint same.

 

When the first situation arises, that is giving a statement but denying the content or alleging the content is different, the trial judge is never under any obligation to order a mini-trial. It is in the second situation where the accused alleged he made no statement at all to police by himself but was imposed on him that the trial judge is bound to order a mini-trial (voir dire). That second situation makes that statement an involuntary statement.

 

In the instant appeal the appellant himself in cross examination said police never wrote everything he told them meaning he told them something. In other words, the made a statement to police. In the exhibit itself, the accused’s hometown, age, trade, house number were all there. How will the police get all this information if the appellant never volunteered them?

 

This statement was made the very day of his arrest when there was no time for police to go fish for these information from outside. He mentioned Akwasi Thomas (2nd accused) even before his arrest. He also mentioned Kwame Asuo (3rd accused) who is at large. He also mentioned Kasim Oldman to police. Infact all those names he mentioned to police are living human beings in Kumasi and all were subsequently arrested. If he did not volunteer a statement to police how did the police conjure all these names and rightly match living human beings in Kumasi? Appellant told police the 2nd accused carried a blue black polythene bag which in fact was seen and confiscated by police. How will police know of all these if appellant never volunteered this information to them. How could police force this information on them and will turn out to be true? The sequence of events: and the statements are so consistent and cannot be made up by the investigator. An appeal is by way of re-hearing and we are of the opinion that the appellant volunteered his statement to the police.

 

With the greatest respect to learned counsel for the appellant and the State Attorney, the fact that an accused person raised an objection at whatever time, about his statement does not necessary mean the trial judge is bound to order a mini trial. He was bound to do so had the accused said he never made any statement at all to police yet one was tendered. The appellant herein never disputed that he made the confession statement or that the statement was not his deed or he did not understand the language which will raise the defence of non-est-factam as alleged by counsel. That would have necessitated a mini-trial to determine whether it was voluntarily made or even though it was signed or thumb printed by the accused it was not his deed.

 

In the instant appeal the appellant admitted making one but that police did not record everything. In that case a mini-trial was not necessary and its absence occasioned no miscarriage of justice let alone substantial as counsel on both sides contend. In that situation what was incumbent on the accused person was to establish his allegation in his cross-examination so as to create a doubt as to whether in fact he offered a statement but the police failed to record all he said or they recorded certain things he never told them. The trial court will then assess and make its own findings on the issue of the voluntariness or otherwise of the statement.

 

I see the Jurat of the independent witness on page 30 of the record of appeal. One Kwaku Duah signed the jurat that he was present when the suspect Yaw Marfo gave his statement to police voluntarily. That he read over and explained the contents to the suspect and he appeared perfectly to understand it before he thumb-printed. The statement was made in twi as recorded by the investigator but written in English. The Jurat left the word ‘twi’ out but emphasis was on the fact that it was read and explained to the accused and he appeared perfectly to understand same before thumb printing. The omission of the word ‘Twi’ is not fatal to the prosecution’s case. If it was read over to the accused in a language, he never understood would not have thumb printed or would have raised that in his cross examination. There is however no objection raised to that effect. Appellant never denied the presence of an independent witness or not reading statement over to him.

 

On the totality of the evidence before us we are of the opinion and rightly hold so that the statement exhibit “F’ was voluntarily made by the appellant and there was a need for a mini-trial. Section 120 of evidence Act was complied with. The trial judge was not in any error for not ordering one. That ground of appeal fails and same is dismissed.

 

Ground 5

Counsel contends that the maximum sentence of 25 years IHL was extremely harsh and excessive especially so when no reason was offered for such imposition of the maximum sentence for such offence. Counsel said there were no injuries nor any aggregating factors warranting such imposition. Counsel submits the trial judge was duty bound to give reasons why he chose to impose the maximum sentence of 25 years IHL instead of the minimum in respect of robbery.

 

Counsel contends further that the trial courts failure to give reasons for its decision to convict the appellant as well as failure to state that the prosecution has proven the case beyond reasonable doubt has occasioned a miscarriage of justice which judgment of the trial court ought to be set aside. Counsel referred this court to Article 14(6) of the 1992 Constitution that provides as follows: -

“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before his trial shall be taken into account in improving the term of imprisonment”.

 

Counsel contends the accused being a first offender and having no criminal record the sentence was two hash. That the imposition of 25 years IHL on the appellant and sending him to prison custody instead of a correctional center were done contrary to the law especially so when the appellant was a young person, for that matter a young offender. Counsel submit Section 60 of the Juvenile Justice Act, 2003 (Act 653) defined young offender and young person. Young person means a person who is eighteen years or above eighteen years but under twenty-one.

 

In answer counsel for the respondent submit the Criminal Code (Amendment) Act 2003 (Act 646) provides for a minimum of 15 years imprisonment where the offence was committed with a weapon but discloses no maximum. Counsel for respondent submits that when the Juvenile Justice Act comes into the picture then the 25 years IHL appears too harsh against a 19-year-old offender who has committed a serious offence per the said Act. The Act only permits a maximum of 3 years for the young offender.

 

I shall first deal with Article 14(6) of the 1992 Constitution (supra). It is unfortunate a lot of our courts as well as Counsel misinterprete that Article to mean in sentencing a convict the court must back-date or make the sentence take retrospective effect for example from date of arrest. Sentences take effect from the date of pronouncement.

 

What the constitution seeks to do is to remind the trial judge that the convict had been in lawful custody for some period and he is to take that into consideration when giving custodial sentence. It is however incumbent on the trial judge to state explicitly that he considered the period of time such convict was in lawful custody before announcing the years. For example, “I have considered the fact that the convict was in lawful custody for 2 years during the trial, I shall therefore impose 15 years IHL”. With this the trial judge had satisfied that constitutional provision. The law is not saying pronounce 15 years IHL and then say because you had been in lawful custody for 2 years so you do 13 years or it takes 2 years’ retrospective effect.

 

That fact that the convict had been in custody for 2 years must be acknowledged and recognized before the sentence is pronounced and not after the sentence. My view is amply supported by the Supreme Court decision in the case of Bosso vrs The Republic [2009] SC GLR 420 also quoted by Counsel for the appellant. It states: -

“The provision in article 14 (6) of the 1992 Constitution enjoined judges, when passing sentence, to take any period spent in lawful custody before the conclusion of the trial into account. A legitimate question which might arise in any given case and which did, indeed, arise for consideration in the instant appeal, was how the court was to conclude that, that constitutional mandate had been complied with? Such conclusion was discernible from the record. The Supreme Court would not attempt to lay down any hard and fast rules as to the form, manner or language in which the compliances should be stated, but the fact of compliance must either explicitly or implicitly be clear on the face of the record. Admittedly, the more explicitly the court expressed the position that it had taken into account the said period, the better it would be for everyone as it placed the question beyond every controversy and left no room for doubt. Nonetheless, any reference to the period spent in custody before the conclusion of the trial in a manner that suggested that it had weighted on the judges’ mind before deciding on the sentence should be sufficient. In the instant case, the record of appeal spoke for itself. Neither the Appellant nor the Court of Appeal made the slightest reference whatsoever to the period the Appellant had spent in custody before the trial was concluded. There was also no reference to the constitutional position in article 16(6) or words, express or implied, to the effect that it had weighted on the minds of the Justices of the Court of Appeal. The only just conclusion in the circumstances of the instant case was that the justices had failed to take article 14 (6) into account before settling on the term of fifteen years’ imprisonment”.

 

In a typical example, the trial judge will say: - “I have taken into consideration the 2 years, as the case may be, the convict had been in lawful custody before arriving at this sentence of 10 years IHL”. He has thus satisfied the requirement in Article 14 (6) of the 1992 Constitution. The meaning is that but for the two years in lawful custody he would have given more than what he gave.

 

From the evidence before us the investigator in his Evidence-in-Chief told the court “the rooms of A1 and A2 were searched. In the room of A1 we found two car tapes. A1 explained that he got the two tapes from two previous robbery he committed. I have the two tapes and I wish to tender them into evidence.” – [page of 11 ROA]

 

When 1st accused was cross-examined by prosecution on the crime, this transpired:

Q. The police searched your room

A. That is true

Q. The police retrieved two car tapes from your room

A. No. They were not taken in my room

Q. You claimed ownership of the tapes and told the police that you got that from previous robbery

A. Those tapes were given by somebody to the police who alleged that I stole them

Q. I put it to you that nobody brought the tapes to police

A. What I say is the truth – [page 18 ROA]

 

The appellant denied that the tapes were found in his room but prosecution failed to lead any further evidence to establish same. They never called anyone to corroborate that allegation against the appellant, and it was therefore his word against prosecution’s. I brought this out to suggest maybe it is this piece of uncorroborated evidence that influenced the trial Judge to give an enhanced sentence of 25 years.

 

Assuming it is even true, prosecution had a duty to officially announce or inform the court that the convict is known to the law. This information should be made known to the court after the conviction of the accused but before sentence is pronounced. Never before conviction or else there is the possibility of influencing the court. In the instant appeal, there is no evidence on record that prosecution officially informed the court the accused is known to the law else would have been recorded in the proceedings for the day sentence was pronounced. We take it that the appellant is not known to the law.

 

Counsel for the appellant described the appellant as a “young offender”. That is a “young person” who has been convicted of an offence for which the court has power to impose a sentence of imprisonment for one month or upwards with the option of a fine. The Juvenile Justice Act, 2003 (Act 653) defined a “young person” as “a person who is eighteen years or above eighteen years but is under twenty-one.”

 

Section 46 of the Act (Act 653) states:

1. Where a Juvenile or young offender is ordered to be sent to a centre, the detention order shall be the authority for the detention and the period shall not exceed;

a. three months for a juvenile offender under the age of sixteen years,

b. six months for a juvenile offender of or above sixteen years but under eighteen years

c. twenty-four months for a young offender of or above the age of eighteen years, or

d. three years for a serious offence.

2. A juvenile offender under the age of eighteen years shall be detained in a junior correctional centre.

3. A young offender above the age eighteen years shall be detained in a senior correctional centre.

4. A juvenile offender under the age of fifteen years who has been convicted of a serious offence shall be detained in a senior correctional centre.

5. Before a detention order is made, the court shall satisfy itself that a suitable place is available for the juvenile offender or young offender at a centre.

6. Where a juvenile or young offender is remanded in custody prior to the order of detention, the period spent on the remand shall be taken into consideration when making the detention order.

7. A juvenile or young offender shall not be detained in an adult prison

8. The following offences are considered to be serious offences:

a. Murder;

b. Rape;

c. Defilement;

d. Indecent assault involving unlawful harm;

e. Robbery with aggravated circumstances;

f. Drug offences; and

g. Offences related to forearms.”

 

With the greatest respect to learned counsel for the appellant and the respected State Attorney, the appellant in the instant appeal was not tried under the Juvenile Justice Act. He was charged and tried under Criminal Offences Act, Act 29/60 as amended by Act 646/2003. In that case even though the court had the discretion to take into consideration his age as a mitigating factor, the court was not bound to go by the Juvenile Justice Act.

 

Was the sentence of 25 years harsh as the appellant contends? Counsel argued that the appellant is a young offender of 19 years and a first offender. Sentencing is a matter entirely within the discretion of the trial judge or the appellate court and the two factors to be considered in determining the length of sentence include but not limited to aggravating or mitigating circumstances such as extreme youth and good character – see Kamil vrs. The Republic [2011] 30 GMJ 1 Supreme Court. The courts are allowed to impose stiff sentences where it finds an offence to be very grave. The court must impose punitive sentences which should also act as a deterrent and exemplary one so as to indicate the disapproval and abhorrence of society of that offence. The trial Judge must take into consideration the prevailing wave of the particular crime in the country before imposing such deterrent sentence. See also Adu Boahene vrs. The Republic [1972] 1 GLR 70.

 

This court in the case of Kwashie vrs. The Republic [1971] 1 GLR 488 at 493 listed the factors a court would consider in determining length of sentences:

i. The intrinsic seriousness of the offence

ii. The degree of revulsion felt by law abiding citizens of the society from that particular crime.

iii. The pre-meditation with which the criminal plan was executed.

iv. The prevalence of the crime in the locality or country as a whole.

v. The sudden increase in the incidence of that particular crime

vi. Mitigating or aggravating circumstances of youth, good character and violent manner the crime was committed.

 

Counsel for the appellant for his convenience dwelt only on the last factor leaving all others out. The judge, I think in passing sentence has three very important factors to consider; the offence, the offender and the interest of society as a whole. How do we balance all these factors in the instant appeal? The offence is armed robbery. Robbing a taxi driver off his taxi and other valuables at gun point. The offender is a young offender of 19 years. What does society feel about armed robbery especially with guns? The facts of the instant appeal is a mixture of mitigating as well as aggravating factors. The appellant being a youth vis-à-vis the violent manner the crime was committed.

 

 Albeit, I am of the opinion the trial Judge having no official information that the accused is known to the law, the fact that he is a young and first offender and finally failing to record why he went for the enhanced sentence, was very harsh in the circumstances. I shall therefore partially grant that ground of appeal. Partially because the trial Judge never erred in the sentence except it was harsh. I shall therefore reduce the sentence from 25 years IHL to 15 years IHL which is the minimum by law when a weapon is used in a robbery. The sentence of 25 years IHL is hereby quashed.

 

Ground 2, 3 and 4:

That it was wrong in law to convict the 1st accused (appellant herein) on count 1 of conspiracy, when the other accused persons were acquitted and discharged on that count.

 

Even though counsel for the appellant failed to make any submissions on this ground of appeal, I shall deal with it for sake of the development of the law. The definition of conspiracy as contained in the Revised Law by the Law Review commissioner provides thus: -

“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”.

 

For conspiracy to succeed now in our jurisdiction, the Prosecution must prove that the persons agreed to act together with the common purpose to commit the offence – See Rep vrs Augustine Abu Suit No. ACC 15/2010 dated 23rd December 2009 (unreported).

 

Any charge of conspiracy must indicate that the persons who have been charged with the offence agreed to act together with a common purpose for or in committing or abetting a criminal offence and does not matter whether there was or without previous concert or deliberation to commit an offence or abet the criminal offence. Therefore, a case of conspiracy without proving that the persons involved agreed to act together to commit the offence shall fail.

 

Coming to the instant appeal, counsel contends that the appellant should not have been convicted for the charge when the other accomplices were all acquitted and discharged on same. Looking at the charge sheet, the appellant, Akwesi Thomas and Kwame Asuo were all charged with the offence of conspiracy, that they did act together with a common purpose to commit crime to wit robbery. From the record of appeal, the 2nd accused passed on during the trial and his name struck out of the charge sheet while 3rd accused was on the run. 3rd accused was not tried in absentia though.

 

It is trite that when conspiracy against another person fails and it is left with one person he should be acquitted on the offence of conspiracy unless there is evidence to prove against him to the effect that they conspired with another person who was not mentioned on the charge sheet. In effect where there is evidence that the accused person conspired with other person(s) who was not mentioned on the charge sheet he could be convicted. Conspiracy as an offence does not lie against one person and at any point in time must be committed by two or more persons. – See Rep vrs Bossman [1968] GLR 595.

 

In the instant appeal, the appellant and two others were charged with the offence of conspiracy. 2nd accused died in course of the trial and 3rd accused on the run. 2nd accused was never acquitted and discharged of the offence likewise 3rd accused.

 

Despite the fact that 2nd accused and 3rd accused were not physically present during the trial, the charge can still be laid and proven against the 1st accused who stood trial alone.

 

Once prosecution was able to establish the ingredients of the offence against them beyond reasonable doubt and to the satisfaction of the court they have proven the charge against them. The physical absence of 2nd and 3rd accused does not mean the charge cannot be established against them. Let us not forget the offence of conspiracy was committed before the commission of the crime itself and the arrest. The prosecution in the instant appeal were able to prove the charge of conspiracy against the three accused persons. The intervening or subsequent acts of death and escape of the other accused person’s does not change the fact that they committed the offence charged.

 

With the greatest respect the counsel for the appellant, the other accused persons were not acquitted discharged of the offence as he contends.

 

It is trite learning that one person can be arraigned before court on the charge of conspiracy if indeed there is evidence he conspired with others but who cannot be arrested and brought before court or at large or died in course of investigation, arrest or even during trial as in the instant appeal. The trial judge never erred in convicting the appellant on that charge just because he stood trial alone. That ground of appeal is dismissed.

 

The crux of the other grounds of appeal that prosecution failed to establish the case against the accused person beyond reasonable doubts. It is the contention of counsel that the judgment of the trial court was firmly based on the facts as presented by the prosecution, without the trial judge evaluating them against that of the appellant’s case as whether the prosecution has proven their case beyond reasonable doubts. Counsel asked, “how can conspiracy charge suffice when there is no indication as to how the accused person conspired and or acted together in that respect especially so when his co-conspirator have not been connected to the offence or have been discharged”. He referred this court to Article 19 (2) (c) of the 1992 Constitution which provides that:

(2) A person charged with a criminal offence shall

c. be presumed innocent until he is proved or has pleaded guilty.

 

Counsel admits that the duty of prosecution is criminal trials is to prove the case against the accused beyond reasonable doubts and the duty on the accused is to raise doubts in the evidence provided by the prosecution.

 

I agree into with counsel on this submission. The law is succinct that the prosecution in criminal trials have a duty to prove all the essential ingredients of the offence with which the appellant and the others have been charged beyond any reasonable doubts. The burden of proof remains with the prosecution throughout. Counsel contends that the trial judge in the instant appeal’s, failure to state that the prosecution has proven the case beyond reasonable doubt in his judgment buttresses their contention that he relied wholly on the prosecution’s case to find the appellant’s conviction and failed to examine the defence put up by the appellant at the trial.

 

 The law is that at the end of prosecution’s case in all criminal trials, the trial judge has to evaluate all the evidence by the prosecution to see if it has at the end of their case established a prima facie case against the accused. By this, the prosecution is to establish all the ingredients of the offence charged. The moment an ingredient of a charge is not established the court suo motu must acquit and discharge the accused on that count.

 

If a prima facie case is established, then the accused is called upon to open his defence. Failure to do this the trial Judge shall acquit and discharge the accused suo motu or upon a submission of no case. If the accused is called upon to open a defence the trial Judge shall evaluate his case against the facts of the prosecution and the law. The defence of the accused may sound unacceptable “foolish or stupid” or anything but the legal duty incumbent on the trial judge is to ask himself if the accused’s defence is “reasonably probable”. If his answer is yes, even remotely, then he is under a duty to acquit and discharge him. See Amartey vrs The State [1964] GLR 256 SC.

 

We are not oblivious of the caution given us by Lord Denning in the meaning of “reasonable doubt”. See Republic vrs. ………………. It is also trite that when an accused in the course of making a statement to police makes a confession, that confession is hearsay evidence because it is not a statement made on oath but only a statement of intention not to contest the charge. That is the reason even when an accused person makes a confession statement like in the instant appeal, prosecution still has to establish the case against him, except he did so in court on oath. In the instant appeal, even though Exhibit ‘F’ a confession statement was admitted into evidence, prosecution called a witness and the investigator to establish their case.

 

One may ask why only one witness but the answer is trite, not the quantity but the quality of the evidence that matters to the court. A court can convict on the evidence of a single witness based on the credibility of the evidence.

 

Proof was no more than credible evidence of a fact in issue. It did not matter that the evidence was given by one or several witnesses, the important thing was the quality of the evidence – see Akrofi vrs. Oteng & Anor. [1989/90] 2 GLR 244 Supreme Court.

 

This court can only set aside judgments of the trial court if it considers the verdict or conviction unreasonable or cannot be supported having regard to the evidence or that the judgment ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice – see Section 31 (1) of the Courts Act (413) Act 459.

 

The trial judge in the instant appeal in his judgment, though terse, said I found the charges proved against 1st accused and I find him guilty and convict him on the conspiracy (Section 23 (1) of Act 29) and robbery (Section 149 of Act 29).

 

This court in a previous decision said it is desirable for trial Judges to give more detailed reasons for their judgments but in the same vein we are not advocating for long literary essays. See Section 177 (1) of the Criminal and Other Offences Procedure Act 1960 (Act 30). The section states: “The court, having heard the totality of the evidence shall consider and determine the whole matter and may convict the accused and pass sentence on, or make an order against the accused according to law or acquit the accused, and the Court shall give its decision in the form of an oral judgment and shall record the decision briefly together with the reason for it, where necessary”.

 

The trial judge said he “found the charged proved against the 1st accused”. To my mind, he is saying he finds that prosecution has proven the charges. That is his finding. You cannot make a finding if you do not analyze the facts and the evidence before you and matching it with the law.

 

I hold that the trial judge analyzed all the evidence before him, both prosecution and defence before arriving at his findings. He believes the prosecution has established the case beyond reasonable doubt against the accused based on the evidence in court and Exhibit ‘F’ and also not finding the accused’s explanation reasonably probable.

 

That ground of appeal is hereby dismissed.

 

On the totality of evidence before me, I partially uphold the appeal.

 

The conviction is sustained since I feel it is supported by the evidence on record. The sentence however is set aside and substituted with 15 years IHL.