IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
AUGUSTINE OSEI - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 30TH NOVEMBER, 2017
CRIMINAL APPEAL NO: H2/08/2015
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A, A. M. DOMAKYAAREH (MRS) J.A.
ISAAC OWUSU ANSAH FOR THE APPELLANT
ATTORNEY FOR THE RESPONDENT
E. K. AYEBI, J. A.
The trial court in this appeal is the Circuit Court, Kumasi. Initially the appellant and ten others who were at large, were charged with three counts of conspiracy to rob contrary to Section 23(1) and 149 of Act 29/60 and robbery contrary to Section 149 of Act 29/60. The appellant pleaded not guilty to the charges. After the first prosecution witness gave evidence, the charges were withdrawn and the appellant alone was charged with one count of dishonestly receiving contrary to Section 146 of Act 29/60. Appellant pleaded not guilty to this charge too.
But after full trial, the Circuit Judge in a well laid out and reasoned judgment, found him guilty and convicted him on 17th October, 2013. Dissatisfied with the conviction, appellant appealed to the High Court on six grounds. The High Court as a function of re-hearing, reviewed the evidence on record and dismissed the appeal against both conviction and sentence on 13th February 2014.
The appeal to this court is the second by the appellant. The grounds of appeal filed and argued are that:
1. The court erred when it affirmed the decision of the trial Circuit Court that the subject matter of the theft (sic) was obtained by means of robbery when no evidence was led to establish robbery against the accused person or any other person.
2. The High Court erred when it refused to affirm that the conviction of the accused by the trial court was wrong in law thereby causing miscarriage of justice.
3. The sentence was excessive and harsh (mitigation of sentence)
4. The High Court erred when it refused to admit that the trial court erred when it admitted a question which was based on a document that was not in evidence.
No additional ground was filed as indicated.
From perusal of the record, the grounds of appeal herein are the same grounds of appeal raised in the High Court. Except for ground (4) which the trial judge addressed in his judgment, but the appellate High Court omitted to address it. Generally, therefore, the findings of the High Court judge were concurrent with the findings of the trial court. In Kamil vrs the Republic (2011) SCGLR 300, the principle is stated that unless:
(a) the lower courts had clearly erred in the face of a crucial documentary evidence, or
(b) failed to apply a principle of evidence properly; or
(c) the findings were so based on an erroneous proposition of law that if that proposition be corrected, the findings would disappear, it is not permissible for a second appellate court to interfere with the concurrent findings of the lower courts.
And in Section 31(2) of the Court Act, 1993 (Act 459) on appeal in criminal matters, it is enacted that:
“The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment”.
That being so for the appellant to succeed in this court, he has to demonstrate to our satisfaction that any of the situations listed in the Kamil case (supra) has occurred and therefore his conviction and sentence amounted to a substantial miscarriage of justice.
The facts of the case are not in dispute. On 8th October 2012 about 10.00pm, the complainant was returning from Maase to Bomso near the Kwame Nkrumah University of Science and Technology (KNUST) on his Qlink 125 motor bike, with his girlfriend as the pillion rider. On reaching Tafo Nhyiaeso section of the road, they met a group of young men numbering about 10, all masked and armed with offensive weapons including cutlasses and axes.
The young men attacked them and succeeded in taking away the motor bike, four mobile phones, blue tooth ear phone and cash of Gh⊄ 70.00.00. Three of the armed men took away the pillion rider Fati Mohammed to a washing bay and sexually assaulted her. Three days later, the complainant went out on another moto bike; to the washing bay. While waiting there, he spotted the appellant ride in on his motor bike which was taken away from him. He raised alarm and with the help of others around, appellant was arrested and taken to the police station with the motor bike.
At the trial, before the charges of conspiracy to commit robbery and robbery were withdrawn and substituted with the charge of dishonestly receiving, the pillion rider Fati Mohammed had given evidence as PW1. Rather than expunge the evidence after the substitution of the charges, the trial judge preserved it and indeed used it as part of the prosecution’s evidence against the appellant on the charge of dishonestly receiving. That was clearly a procedural blunder which the appellate High Court judge rightly corrected.
So on the record, apart from the evidence of the complainant, who was described as PW2 because of the preserved evidence of PW1, the police investigator gave evidence as PW3. No other witness was called by the prosecution against the appellant on the charge. In ground one of the appeal Counsel for the appellant has contended strongly that the High Court erred when it affirmed the finding of the trial court that the motorbike was obtained by robbery. Counsel contended that the appellant was charged with dishonestly receiving and that is what must be proved against him. Nobody was charged with robbery at the trial and so there was nobody to resist the evidence of the prosecution that robbery took place and the motor bike was obtained by robbery. It was therefore wrong for the trial court to hold that the offence of robbery has been proved beyond reasonable doubt.
The submission with all due respect to Counsel, was oblivious of the ingredients of the charge of dishonestly receiving and therefore a misconception of the judgment of the trial court. For at page 92 of the Record of Appeal the trial judge did not convict appellant of robbery but dishonestly receiving property obtained by robbery. The offence of dishonestly receiving is created in section 146 of Act 29/60 as amended as:
“A person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offence punishable under this chapter commits a criminal offence and is liable to the same punishment as if the person had committed that criminal offence”.
Then Section 147(1) of Act 29/60 defines dishonestly receiving as follows:
“A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner”.
Flowing from that definition, the trial judge quoted the case of the Republic vrs Bayford (1973) 2 GLR 321which distilled the ingredients of the offence. The court held that for an accused person to be guilty of dishonestly receiving stolen goods, it was essential for the prosecution to adduce sufficient evidence to establish that:
(i) the property was in such a condition as to be under the dominion of the accused to the exclusion of the person who obtained or appropriated it by an offence. It was not necessary that the accused had physical or manual possession, but it had to be shown that the property was under his control.
(ii) that the accused received the property, that is to say, that the accused took possession of the goods, actual or constructive. It had to be shown sufficiently that the accused and the person who obtained or appropriated the property by an offence did not both have possession at the same time;
(iii) at the time the property was received by the accused it had actually been obtained or appropriated by an offence; and
(iv) guilty knowledge which was largely a matter of inference.
Of these four ingredients, all except (ii) are very prominent in the evidence of PW2 and the appellant himself. What the trial judge did was to discuss the third ingredient first. He stated it clearly that it was necessary to determine that at the time Qlink 125 motor bike was received by the appellant it was obtained or appropriated by an offence. In doing so, he analysed the evidence of PW2, the complainant. It is the evidence of PW2 that all the men were wearing masks and carried weapons including cutlasses and axes, they searched him and took away his money and phone.
Further they pushed him off the motor bike although he removed the ignition key. But the one who sat on the motor chased him with a cutlass. Unfortunately, he slipped while running and his feet got stucked and so he threw the key at him. This evidence of PW2 is basis for the finding that PW2 was indeed robbed of his motor bike. The finding was not made against the appellant because PW2 stated that he could not identify his attackers. It was made against the motor bike which appellant took away from some area boys.
It is noted that the appellant’ own evidence on how he came to possess the motor bike shows that he knew that it was obtained or appropriated by crime. He said his dog led him to a sport where he saw three boys standing near the motor bike quarrelling. When he threw the torch-light on them, they fled and left the motor bike behind. This was dead in the night. He said he took the motor bike home in order to inform the Assemblyman of the area. And yet he was found using the motor bike since he took it home.
The fact that the boys fled leaving the motor bike behind and that the appellant intended to inform the Assemblyman about the motor bike is ample evidence that he knew that the boys appropriated it by crime. But whether it was appropriated by theft, robbery, fraud or sakawa, appellant did not know or could not have known. That is the reason why the court believed or had to believe the evidence of PW2, who claimed ownership of the motor bike that he was robbed of it.
From the definition of the offence of dishonestly receiving, the foundation for the charge to be laid properly is the evidence that the property received was obtained or appropriated through a crime. If this third ingredient as determined by the trial court does not exist, the charge would have been inappropriately laid against the appellant or any other. So proof that the Qlink 125 motor bike found in possession of the appellant was obtained or appropriated through robbery is a condition precedent to the charge of dishonestly receiving. Therefore, the finding of the trial court that Qlink 125 motor found in appellant’s possession was obtained through robbery is supported by the evidence on record. The High Court properly affirmed that finding. We accordingly dismiss ground one of the appeal.
On ground (2) of the appeal, the submission of Counsel is varied. The submission basically attacked the sentence of the appellant to a term of ten (10) years IHL. According to the submission, the High Court failed to consider whether or not the motor bike was obtained by robbery. Again, the High Court having expunged the evidence of PW1, relied solely on the evidence of PW2 whose evidence on the robbery stood uncorroborated. Counsel cited the case of Forkuo & Ors. vr The Republic (1997 – 1998) 1GLR 1, C.A which held that an uncontroverted evidence was not necessarily conclusive of the fact in issue unless there was no evidence from the opponent on the issue. It is Counsel’s submission that since nobody was charged to resist the evidence of PW2 on the issue of robbery, PW2 could have just told a story.
The submission also attributed to the High Court based on the authority of Santuoh vrs The Republic (1976)1 GLR 44 as having said that as long as the appellant had in his possession the stolen property, the appellant could be convicted of the offence of dishonestly receiving. I did not glean that conclusion from the judgment of the High Court. Just being found in possession of stolen property cannot be a ground for conviction for the offence of dishonestly receiving if guilty knowledge or knowledge that the property was obtained by crime is absent or was not proved.
All the submissions on ground (2) of the appeal by Counsel in my view are not supported by any well-known authority and statute. The prosecution did not charge anybody with the offence of robbery in this matter. There mere fact that there was no defendant or accused to challenge the evidence of robbery of PW2 does not mean that he could not have been challenged. If the appellant’s
Counsel disbelieved PW2’s evidence on the robbery, he should have discredited him under cross-examination. This appellant failed to do. In any case it was held in Santuoh vrs The Republic (1976)1GLR 44 that:
“the survival of the dishonesty charge did not depend solely on the conviction of the stealing charge. For assuming that the other accused persons had been acquitted on the stealing charge, the appellant could nevertheless have been convicted of having possession of stolen property contrary to Section 148(1) of the Criminal Code, 1960 (Act 29).”
The text of S. 148(1) of Act 29/60 is that:
“Where a person is charged with dishonest receiving and is proved to have had in his possession or under his control, anything which is reasonably suspected of having been stolen or unlawfully obtained and he does not give an account, to the satisfaction of the court, as to how he came by it, the property may be presumed to have been stolen or unlawfully obtained and the accused may be presumed guilty of dishonest receiving in the absence of evidence to the contrary”.
The case of the prosecution against the appellant is that the boys he said fled on seeing him were his partners in-crime and because he was in the habit of buying stolen goods from them, they actually brought the motorbike to him to buy. The appellant knows the boys because he mentioned their names in his cautioned statement. And with the evidence of PW2 that he was the owner of the motor bike, and it was robbed from him, there was no need to presume the mode of appropriation or the guilty knowledge of the appellant.
Again apart from a statutory requirements, there is no rule of law which states that the charge of robbery cannot be established by the evidence of a single witness or the trial court cannot rely on the evidence of single witness and convict if he finds that single witness credible. This is so because by the provisions of Section 7(3) of the Evidence Act, 1975 (NRCD 323) corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict. We do not therefore find ground two of the appeal and the submissions made thereunder tenable. It is dismissed.
In ground (3) of the appeal, appellant complained that the sentence is harsh and excessive. At page 126 of the record of appeal in the last two paragraphs and page 127, the High Court judge adequately dealt with this ground of appeal which is repeated in this court. The new twist to the submission on the ground is that “if there is no evidence that the motor bike was obtained by means of robbery, then the obvious conclusion was that the motor bike would have been stolen. In that case the sentence of ten (10) years would have been excessive and harsh”.
It is very clear to me from the submissions of Counsel that the finding that the motor bike which was found in possession of the appellant was obtained by robbery is his grievance. Counsel would have had the two lower courts to hold that the motorbike was just stolen in which case the sentence imposed on the appellant would have been lesser. But where on the record is the evidence that the motor bike was just stolen or might have been stolen? Counsel could not point to any because there is none.
The evidence on record by the owner of the motor bike, PW2, is that he was robbed of it in the night of 8th November 2012. It is trite learning that courts decide cases based on facts and not on speculation. We reject outright this submission based on “ifs” and “would have been” which is speculative and not the reality. Ground (3) is dismissed.
The last and 4th ground of appeal is that, the High Court erred when it refused to admit that the trial court erred when it admitted a question which was based on a document that was not in evidence. Indeed, at page 42 of the record of appeal appellant was questioned about a statement he made. Counsel objected to the question because the statement was not in evidence. The trial judge overruled the objection and explained in the judgment that he overruled the objection because the question neither referred to an oral nor written statement. At the High Court, the learned State Attorney asked the court to dismiss the objection and for matter that the ground of appeal. This is because according to Section 74(1) of the Evidence Act 1975 (NRCD 323) the statement of the appellant need not be tendered before he is asked questions on it. But then Counsel for the appellant had the right to ask to have a look at the statement, a right he did not exercise.
During trials in our courts, the usual practice is to tender a document in evidence before a question is asked on it. The practice does not seem to be supported by the current law but by an abandoned English practice before 1820 – reference the Commentary on the Evidence Decree at page 54 on Section 74-Examination as to writings. The section provides that:
“(1) In examining a witness concerning a writing it is not necessary to show, read or disclose to him any part of the writing.
(2) If the witness is not a party, all parties to the action shall be given an opportunity if they choose to inspect the writing before any questions concerning it may be asked of the witness”.
The rationale for this provision, it is explained, that because purpose of cross-examination is to elicit the truth from the witness, it must have in it some element of surprise. Subsection (1) of Section 74 maintains that rational. But if a statement in a document is to be accepted as the truth of the matter or to be used as evidence attacking the credibility of a witness, fairness demands that the witness is given the opportunity to explain or deny the statement. And that is provided for in Section 76 of the Act.
It would appear that in our courts, we are used to seeing the practice directed in Subsection (2) and not Subsection (1) of Section, 74, hence the complaint in this appeal when Counsel was overruled. But as I have demonstrated above, the objection has no basis in the law. In any case the refusal by the trial judge to sustain the objection is not shown to have occasioned any miscarriage of justice to the appellant. This ground of appeal is dismissed.
As I have noted earlier on the only grievance of the appellant against the judgments of the two lower courts is their concurrent findings that the motor bike was obtained or appropriated through robbery. It is implied in that single complaint that the appellant accepted the evidence that he knew that the motor bike was obtained or appropriated by crime and yet he took it, kept it with no intention to restore it to the owner or find the owner. The appellant’s own evidence or explanation of how he came by the motor bike and his usage of it supports that position.
As regards the finding that the motor bike was appropriated through robbery I have demonstrated that there is sufficient evidence in support of that finding. Therefore, the sentence of ten (10) years IHL which is the statutory minimum for the conviction for robbery was imposed in accordance with S. 146 of the Act 29/60.
It is our view that the conviction and sentence of the appellant has not occasioned any miscarriage of justice to him. This is because the evidence on record supports all the findings of the trial court as confirmed by the High Court. The appellant we hold, has failed to make a case as directed in the Kamil case (supra) to compel us interfere in the concurrent findings of the two lower courts. Appeal is therefore dismissed.
E. K. Ayebi
(JUSTICE OF APPEAL)
G. Torkornoo (Mrs.) JA I agree G. Torkornoo (Mrs)
(JUSTICE OF APPEAL)
A. M. Domakyaareh (Mrs.) I agree Angelina M. Domakyaareh (Mrs)
(JUSTICE OF APPEAL)