IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
FRANCIS BOAFO @ CUDJOE - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 4TH MAY, 2017
SUIT NO: H3/9/2013
JUDGES: MARIAMA OWUSU J.A (PRESIDING), AVRIL LOVELACE-JOHNSON J.A, CECILIA SOWAH J.A
OLIVER ATSU ABADA FOR APPELLANT
OSAFO SAMPONG (CHIEF STATE ATTORNEY) FOR RESPONDENT
AVRIL LOVELACE-JOHNSON (J.A)
The Appellant and seven others were charged with the offences of conspiracy to commit robbery and robbery and tried. He was convicted of the offence of conspiracy to commit crime to wit robbery contrary to sections 23(1) and 149 of The Criminal Offences Act 1960, Act 29, on 17th January 2007 and sentenced to fifty years imprisonment with hard labour.
Being aggrieved by both his conviction and sentence, he has launched the present appeal on the following grounds
1. That the conviction of the 6th Convict/Appellant on the charge of conspiracy ought to be set aside on the ground that same is not supported by the evidence adduced at the trial
2. That the learned trial judge erred in convicting the 6th Convict/Appellant when there was no evidence of any conspiracy between either the 1st Convict or the 3rd Convict or any of the other convicts herein subsequent to the commission of the offence
3. That the sentence of 50 years IHL imposed on the 6th Convict/Appellant in respect of one count of conspiracy to commit robbery is excessive and harsh in the circumstances
The case of the Prosecution, briefly stated, was that, upon the commission of an armed robbery which resulted in the stealing of an amount of one hundred and twenty million cedis (now twelve thousand Ghana cedis) the Appellant and the 5th and 7th convicts were arrested. Upon interrogation they also mentioned the names of the 1st, 2nd and 3rd convicts and they were also arrested. Upon all of them admitting the offences of robbery and conspiracy in their confession statements, they were charged and successfully tried and convicted.
The evidence led by the Prosecution showed that the Appellant did not take part in the actual robbery but it was contended that he took part in its planning hence the charge of conspiracy to commit the crime of robbery.
The position of the Appellant is that
“…the basis of his conviction and the sentence imposed on him is wrong in law since the prosecution did not discharge the burden placed on it which is proof beyond all reasonable doubt, to warrant his conviction in the first place as a participant in the alleged robbery let alone to have merited the sentence, fifty years sentence in hard labour imposed on him on the charge of conspiracy to rob” Emphasis mine
The standard of proof in criminal cases as stated in section 13 (1) of the Evidence Act 1975, Act 323 is proof beyond a reasonable doubt and not proof beyond all reasonable doubt as counsel for the Appellant submits in his written submissions.
I will now consider the first two grounds of appeal together since a finding on the first ground that the conviction of the Appellant is not supported by the evidence adduced at the trial will partly determine the second ground that the judge erred in convicting the Appellant (wrongly described as the 2nd convict) when there was no evidence of any conspiracy between “either the 1st convict or the 3rd convict or any of the other convicts herein subsequent to the commission of the offence”
A summary of Counsel for the Appellant’s submissions on these two grounds are that
None of the other convicts mentioned the Appellant either in statements given to the police or oral testimony given in court
Appellant was neither involved in the deliberations for the robbery nor participated in the actual robbery so his act of receiving “booty” from the crime did not satisfy the ingredients of the charge of Conspiracy under section 23 (1) the Criminal Offences Act, Act 29.
Counsel for the Respondent on the other hand takes the position that although none of the other Accused persons mentioned the name of the Appellant as having participated in the commission of the offences, evidence on record especially that of the Investigator and the Appellant’s own confession statement clearly show that he was part of those who planned the robbery.
Is the evidence referred to above sufficient to found the offence of conspiracy to commit robbery for which the Appellant was convicted? I will examine this evidence in line with the ingredients of the offence of conspiracy to commit the crime of robbery and determine the answer to the question asked above.
Conspiracy has been defined by section 23 (1) of the Criminal Offences Act, 1960 Act 29, as follows:
Where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be
In short it has to be proved that the Appellant agreed with the other Accused persons to act together to commit the robbery or that he abetted the commission of the robbery. It is irrelevant whether he never actually met the others physically or whether plans for the commission of the offence had already been set in motion when he became involved. What is important is proof that he and the others came to an agreement to act together to achieve the purpose of executing the robbery in question.
It is not in dispute that the Appellant was not mentioned by any of the other convicts as a participant. It was the investigator PW2 who stated in his examination in chief that after the robbery, upon a tip off, he arrested the Appellant who made a confession and led him to his house where he handed over an amount of ₵1,875,000.00 which he said was the remainder of the money he was given.
See page 27 of the Record of Appeal (ROA).
He also mentioned one Awuley Lartey @ Dada as one of his collaborators so he had him arrested too. This person was never charged because he escaped from lawful custody. No statement given by him was used by the prosecution during the course of the trial.
The Appellant gave a statement upon his arrest which the trial court found to have been properly obtained after holding a mini trial. Nowhere in the said statement does he admit to having participated in the planning of the robbery although he admits to having been given some of the proceeds of the robbery to hush him up. Throughout the cross examination of PW2, the prosecutor, it is clear that he holds a firm opinion that the Appellant partook in the planning of the robbery. He is unfortunately unable to support this firm opinion with any evidence. A portion of his cross examination is reproduced hereunder
Q. In your evidence in chief on the 5th July, 2005 you told this Court that 6th accused person was the 1st person you arrested is that right.
A. That is correct
Q. When you arrested him, he told you that he did not know anything about the robbery
A That is correct
Q. He told you that in his statement he got to know about the robbery after it had occurred isn’t it.
A. That is what he said
Q. You will also agree with me, that none of the accused persons mentioned ever discussed the robbery with him, isn’t it
A. The accused persons present in court here never mentioned him but the one I said escaped from custody mentioned him that he, him and others planned it
Q. From your investigations, you got to know that the said Awuley Lartey only went to 6th Accused person to hire his vehicle for that day, and not to discuss the robbery.
A. That is not correct
Q. You also agree with me that 6th accused person himself gave you some account that he came to consult him, he is a taxi driver, he came and asked him to use his Taxi and he told him that his taxi has broken down and he went away, that is what he told you.
A. That is not the only thing he said
Q. In his statement which is the investigation caution statement, he told you clearly that he only got to know of this incident when he heard the news that the complainant was robbed, isn’t it
A. That was the claim he made, but he further said he got some booty he was given some of the money.
Q. He told you he was given part of the money because he got to know that the robbery was perpetrated by the accused person and he was given the money to shut him up but not a co-conspirator
A. That is what he implied
Q. Can I give you the statement to read? A Yes you can
A. Look at paragraph 3, the last paragraph (Read in Court) so he told you that during your investigations.
A. Yes he said so. This is what he said
Q. That is also what you found out from your investigations.
A That is not so.
Q. Did you find out any other thing?
A. In my investigations I was convinced enough that he was a conspirator
Q. What is the basis of your conviction?
A. That he, Dada and Akrofi with Steven Adzo the one on the run sat and discussed the idea of going on to rob the complainant and then they were seeking the assistance of some people who were to execute the deal itself, that brought in the last accused person, who also led them to 1st accused person and his men Q. If you read the statement of the said Awuley Lartey you are saying nothing of the sort as you are trying to place before the Court was said in his statement
Q. I do not have Awuley’s statement with me here
A. I am putting it to you that Awuley never told you anything about this Awuley said so
Q. You never took a statement from Awuley before he run away from you
A. That is not correct
Q. Where is that statement?
A. I did take statement and it is on the docket
Q. I am saying that Awuley never told you that he planned this robbery with 6th Accused person and others
A. He said so and it is on record
Q. I am putting it to you that what you are saying about the planning of the robbery is not true
A. It is the truth I am saying
The court stated in its judgment that the confession statement of all the Accused persons detailed the involvement of each of them and the role they each played. With respect to the learned trial Judge this is not true of the Appellant’s statement regarding the charge laid against him. He states in his statement that one Dada asked him for his car for some operation and on further probing he was given further details. He did not provide a vehicle for the said operation. He states that it was when he heard of the robbery the following Monday that he went to see Dada and questioned him and he was given some hush money in addition to what was owed him for a tape he had earlier sold.
Can an agreement with the other Ac persons to commit robbery be inferred from this? Clearly this evidence does not meet the standard laid down by the Evidence Act 1975, Act 323 that is proof beyond a reasonable doubt. Certainly the Appellant’s actions are suspicious but are they inconsistent with his innocence? Are they incapable of any other implication than that of guilt? Does it lead to the irresistible conclusion that the Appellant agreed with others for the commission of the crime of robbery? I think not. See the cases of
State v Brobbey and Nipah 1962 2 GLR 101
Dexter Johnson v The Republic  2 SCGLR 601 cited by counsel for the Republic.
Further, the Appellant’s story that he was given part of the proceeds from the robbery to keep him quiet so he would not blow the whistle on the participants is reasonably probable.
A court is duty bound to ask itself whether a defence put up by an Accused person is reasonably probable and where it so finds is usually required to acquit and discharge.
I am of the considered opinion that the prosecution failed to successfully prove the charge of conspiracy to commit robbery laid against the Appellant beyond reasonable doubt. The said charge is not supported by the evidence adduced at the trial. I find that the trial Judge erred in convicting him on that charge
Counsel for the Appellant has stated in his submissions-and this court agrees with him-that the proper charge which should have been laid against him is one dishonestly receiving. Section 147 (1) of the Criminal Offences Act explains dishonestly receiving as follows:
A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by a 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
There is no doubt that the Appellant’s actions amount to the offence above explained.
There is also section 146 of the Criminal Offences Act,1960 Act 29 which states as follows:
Whoever dishonestly receives any property which he knows to have been obtained or appropriated by an offence punishable under this chapter shall be liable to the same punishment as if he committed that offence
The offence of Robbery is one of those listed in the chapter. This means that because the “hush” money the Appellant accepted was proceeds of a robbery-to his knowledge-he shall be punished as though he participated in the robbery.
By section 149 above quoted, a person who commits robbery is liable to be sentenced to a minimum of ten years and where an offensive weapon is used the minimum sentence is fifteen years.
The facts of the case state that the complainant was attacked by men with a gun.PW1, Gladys Quao testified that shots were fired into the air by the men who attacked them. The condition of use of an offensive weapon is thus met.
The import of all this is that had the Appellant been charged with the offence of dishonestly receiving in the circumstances of this case, he would have been convicted and then punished as though he had actually participated in the conspiracy to commit robbery.
Not having been charged with the correct offence where does that leave the Appellant? Section 31 (2) of the Courts Act 1993, Act 459 states as follows
(2) 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 charge or 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.
From all the discussion above I am satisfied, as is counsel, that the evidence led supports the charge of dishonestly receiving which in the circumstances of this case calls for punishment meted out for the offence of conspiracy to commit robbery with which he was wrongly charged. That being so by virtue of the power vested in this court by the section immediately quoted above, the appeal against conviction is dismissed since no substantial miscarriage of justice has occurred.
The last ground of appeal is that the sentence of 50 years IHL imposed on the Appellant is excessive and harsh. Counsel asks that we set the said sentence aside. The trial court asked the Appellant what he had to say before sentence was passed. He stated that he had already been in custody for five years, he was really tired and was asking the court for mercy.
The Supreme court case of Ignatius Howe v The Republic  80 GMJ page 220 @ 229 lists some of the aggravating factors to be taken into consideration when determining the appropriate sentence to impose as the amount of force used by an Accused person, injury inflicted on the victim, whether the attack was a planned one, whether it was a group/gang attack and whether the actions of the Accused persons were dehumanizing. The case also listed possible mitigating factors to include less use of force, less injury, whether Accused is a young or single offender and whether the offence was committed on the spur of the moment.
In that case the victims were shot at. A woman who was already suffering from a stroke was slapped and some of the victims were threatened with death if they did not kneel down. The Supreme court after considering all these factors confirmed the sentence of 45 IHL imposed by the trial court.
The court stated that it was not determining how it would have exercised its discretion but rather considering “….whether given the wide spectrum of the discretion at the trial Judge’s disposal he exercised it within the parameters of the law”.
In this case the offence now being one of dishonestly receiving in the circumstances earlier discussed, it is my considered opinion that the sentence of 50 years IHL be reduced to one of 25 IHL. This ground of appeal succeeds but for the reasons given by this court.
In conclusion, this appeal succeeds in part to the extent that the sentence imposed on the Appellant has been varied.