ITALO GERVASIO ROSERO CASTILLO vs. THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2017
ITALO GERVASIO ROSERO CASTILLO - (Appellant)
THE REPUBLIC - (Respondent)

DATE:  6TH APRIL, 2017
CIVIL APPEAL NO:  H1/141/2016
JUDGES:  KUSI-APPIAH (J.A). – PRESIDING, KORBIEH (J.A.),AGYEMANG (J.A.)
LAWYERS:  MR. AUGUSTINE OBOUR FOR THE APPELLANT
MR. K. ASIAMA-SAMPONG (CHIEF STATE ATTORNEY) FOR THE RESPONDENT
JUDGMENT

KUSI-APPIAH, ( J.A.):

 The appellant ITALO GERVASIO ROSERO CASTILLO was charged and tried jointly with two others, i.e. JOEL MEJIA DUARTE MOISES (A1) and VASQUEZ GERARDO DUARTE DAVID (A3) at large on three counts:

1. Conspiracy to import Narcotic Drugs without license issued by the Minister of Health contrary to Section 23(1) of Act 29/60 and Section 1(1) of PNDCL 236

2. Importation of Narcotic Drugs without lawful authority contrary to Section 1(1) of the Narcotic Drugs (Control Enforcement and Sanctions) Act, 1990, PNDCL 236.

3. Conspiracy to commit crime namely possessing Narcotic Drugs contrary to Section 23(1) of the Criminal Code, Act 29, 1960 and Section 2 of PNDCL 236.

 

The facts of the case as can be gleaned from the evidence are simply stated that: Acting on a tip-off, a team of police detectives from the C.I.D. Headquarters on 24th November, 2005, led by Superindent Edward Tabiri (PW1) went to H/No. 348 at Mempeasem near Legon and condoned it off. They gained entry into the house initially by scaling the fence wall before the main gate was opened from inside. In the house, police announced their presence. Thereupon, A1 was seen upstairs and at the invitation of police, A1 came down to open the door downstairs. The police arrested him there and asked him to lead the way to his room which he complied.

 

During a search in the room, the following items were found:

a. Three bottles of ammonia used as a precursor to turn cocaine into crack.

b. One henkelman vacuum machine used in compressing the cocaine into compact slabs/tablets.

c. Thirteen pieces of hand gloves used to protect hands during the processing of the drug.

d. A quantity of white polythene wrappers used to wrap the cocaine after it has been compressed into tablets.

e. Royal Dutch Airline (KLM) cargo stickers used to stick the boxes after the cocaine had been packed.

f. Brown cellotapes that are used to wrap the drug in order to isolate itfrom air and to prevent detection by the security.

g. A fitting bottle that is used for testing and sniffing of cocaine

h. Exercise books including shorthand note book showing record of sale of drugs to individuals and

i. Two Nokia cell phones showing contact names and other related information.

 

The record shows that opposite A1’s room are two rooms, one leading to the other. Police saw cartons in the first room and asked A1 to open it. But he said he did not have the keys. Police broke opened the door and found a number of compressed and wrapped substances which tested positive for cocaine later. But then, PW8, Chief Inspector Frimpong, the investigator in this case found a bunch of keys in A1’s bedside locker. One of the keys inserted into the lock of the broken door opened it. A1 at that juncture confessed that he knew of the presence of the drugs but said the drugs belonged to a Blackman called Shamo or Charmo. This Shamo, he said invited him to Ghana.

 

Voluntarily, A1 led police to the next room where more of the drugs were stored. This second room appears to be the processing room. Some pieces of the substances on the floor were wet. When police gathered them, A1 by gesture and pidgin English told them not to mix them. This is because when the wet substances get into contact with dry one, the latter will melt. A1 is said to have demonstrated how the henkelman machine as well as all the other items found in his room were used. Thereafter, police asked A1 to call Shamo to come to his aid on his mobile phone and he did.

 

But when he started speaking Spanish with the person at the other end, PW1, leader of the team quickly seized the phone from A1. PW1 then told the receiver to come and bail A1 out. The receiver promised to come. After some thirty minutes, A2 was seen by police who were downstairs entering the house. But when he saw police in the house, he tried to retreat but he was arrested and sent upstairs. His cell phone was seized and when scrolled his contacts were found to contain Bude which also appeared on A1’s cell phone. This Bude was identified to be the same as Shamo also called Vasquez who is A3.

 

On the same day (24/11/2005), A1 and A2 as well as the drugs and the items were taken to the police CID Headquarters. The following day, 25th November, 2005, statements were taken from A1 and A2 with the assistance of Anthony Osei (PW7), the Spanish Interpreter. According to the prosecution, before then, A3 got his girlfriend Grace Asibele, a Director and Shareholder in a Company to rent the Mempeasem house at $800.00 per month for a year. Evidence on record indicates that A1 on arrival in the country was put in Mempeasem house by A3. So also was A2 until their arrest on 24th November, 2005.

 

For his part, A2 described himself as a businessman but came to Ghana on 20th November, 2005 as a tourist with $2,000.00. Before his arrest on 24th November, 2005, A2 said he was living in a hotel at Achimota. According to A2, on the day of his arrest, he was walking in front of Mempeasem house on the street of East Legon in the company of a lady and a male friend he called Marko. One Commey, a policeman who is PW4 in this case, called him and told him he was under arrest and took him into Mempeasem house. He testified that in the house, he saw a lot of policemen. He denied that he lived in that house and for that matter denied any knowledge of the presence of A1 there and the cocaine found in the house. He however disclosed that he knew A1 in Venezuela but not Vasquez, A3. The effect of A2’s testimony is that A3 did not bring him into the country.

 

After hearing evidence from the parties including witnesses, the three accused persons were all convicted and sentenced on various charges. The appellant was sentenced to 20 years I.H.L. on counts 1, 2 and 3 while A1 and A3 were sentenced to 25 years I.H.L. each on counts 1, 2 and 3 with sentences to run concurrently.

 

The appellant ITALO (A2) who was not satisfied with his conviction and sentence appealed to this court on the following grounds:

“1.The learned trial Judge erred when he invited the appellant to open his defence since no prima facie case was made by the prosecution against the appellant.

2. The learned trial Judge erred when he convicted the appellant even though the prosecution failed to prove its case against the appellant.

3. The learned trial Judge erred when he found that the appellant later joined business with the other convicts(A1 and A3).

4. The learned trial Judge erred when he failed to consider the defence of the appellant adequately as he preferred a challenge by the prosecution to facts presented by the appellant.

5. The sentence is excessive in the light of the evidence on record.”

 

 

I propose to deal with grounds 1, 2, 3 and 4 together as they seem in the main, to deal with the same issue(s). These grounds allege that the trial Judge erred:

“1. When he invited the appellant to open his defence since no prima facie case was made by prosecution against the appellant.

2. When he convicted the appellant when the prosecution failed to prove its case against the appellant.

3. When he found that the appellant later joined business with the other convicts (A1 and A3).

4. When he failed to adequately and properly consider the defence of the appellant thus occasioning a miscarriage of justice.”

 

Section 173 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) provides that:

“Where at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require the accused to make a defence, the court shall, as to that particular charge, acquit the accused.”

 

The trial Judge has a duty to determine at the close of the case for the prosecution whether or not a case has been made out to warrant the accused person being called upon to open his defence as the case may be. The trial Judge exercised his discretion in this case by calling upon the appellant to open his defence, which exercise the appellant is dissatisfied with. The appellant is however, to show what he is in particular dissatisfied about in the exercise of that discretion.

 

Viscount Simon, L. C. stated the position in Blunt Vs. Blunt [1943] A. C. 513 H. L as follows:

“An appeal against the exercise of the courts discretion can only succeed on the ground that the discretion was exercised on wrong or inadequate materials in the sense that it can be shown that the court acted under a misapprehension of facts in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account.”

 

The appellant has given, as his reason that the evidence led by the prosecution did not measure up to the standard of proof as required by law. He also contended that there was neither any direct nor circumstantial evidence against the appellant to support the case for the prosecution. The Evidence Act, 1975 (NRCD 323) by its Section 11 (2) and 13 (1) have set down the statutory degree required in proof of a criminal charge in the following words:

 

“11(2)  In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence, a reasonable mind could find the existence of the fact beyond a reasonable doubt.

 

13(1)    In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.”

 

The question now is; how is a case proved beyond reasonable doubt? In the Nigerian case of Adio and Anor. Vs. The State [1986] All Nigerian Law Report 357 Vol. 1, Part 1, Oputa (JSC) at page 367 answered the question posed thus:

“A case can be proved by direct oral evidence. If the testimony of witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. Circumstantial evidence can prove a case beyond reasonable doubt. The local case of Joseph Ogunbayode & Ors. Vrs. The Queen [1954] 14 WACA 458 (otherwise known as the Apalara case) is an excellent example of proof beyond reasonable doubt based purely on inferences from circumstantial evidence. It is often said that witnesses can lie but circumstances do not, so in that sense, circumstantial evidence affords better proof beyond reasonable doubt. But far and above these two methods of proof is the voluntary confession of the accused himself. A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt.”

 

What is important in proof in court is the quality of the evidence and not the preponderance of it. Adade (JSC) underscored this fact in Akrofi Vs. Otenge & Anor. [1989-90] 2 GLR 244 @ 247 SC when he stated thus:

“After all, what is proof: It is no more than credible evidence of fact in issue. This may be given by one witness, or by several witnesses, what matters is the quality of the evidence.”

 

In the instant appeal, the conviction of the appellant was based upon circumstantial evidence. Since the appellant is dissatisfied with the trial Judge’s conclusions, he is obliged to show what is in the trial Judge’s conclusion that does not stand the test of proof. The appellant has merely recaptured the testimonies of PW1 to PW9 albeit to show that nothing incriminating emanating from them to warrant the conclusions of the court.

 

From the evidence that was laid before the court, it was clear that when the police raided Mempeasem house in East Legon, they met A1 therein and upon discovery of narcotic drugs in two rooms upstairs they arrested A1. The prosecution had led evidence to show that when A1 confessed that the offending drugs belonged to one Bude or Shamo, police allowed A1 a phone call to the said Bude or Shamo to come to his aid. PW1 also spoke to Bude and asked him to come immediately to the rescue of A1 who was in their grips. Not quite long, the appellant (A2) entered the house and was also arrested. The prosecutor’s evidence was that all these events did not just occur, they were orchestrated.

 

The defence of the appellant had been that he came into the country on 20th November, 2005 as a tourist with $2,000.00. Before his arrest on 24th November, 2005, he was living in a hotel at Achimota. The appellant testified in his defence that on the day of his arrest, he was walking in front of Mempeasem house on the street of East Legon in the company of a lady and a male friend, called Marko, when a policeman called him and told him that he was under arrest and then took him into the Mempeasem house.

 

The prosecution proved beyond reasonable doubt that the appellant came to Mempeasem house in response to a distress call by A1 on his cell phone to rescue him and the offending drugs from the grips of his assailant. PW1, PW2 and PW3 corroborated the evidence of the prosecution. The prosecution having led credible evidence on how the appellant (A2) was arrested on 24th November, 2004, there could have been no reasonable grounds for disbelieving it.

 

In any case, the issue whether or not the appellant was arrested at Mempeasem house by police in response to a phone call by A1 to one Bude to rescue him or was arrested while walking in front of the house on the street of East Legon, is a question of fact to be decided by the court. Like all questions on facts, they are resolved on the strength of the evidence led by both sides. It is a matter of which of the witnesses is to be believed. See Republic Vrs. Mallam Ali Yusuif Issah, Suit No: FT/Misc.1/2000, unreported judgment dated 20th July, 2001.

 

Some of the matters which are relevant to prove or disprove the truthfulness or credibility or otherwise of a person’s testimony at a trial are provided for in Section 80 (2) of the Evidence Act, 1975 (NRCD 323). It reads:

“2. Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to:

a. The demeanour of the witness

b. The substance of the testimony

c. The existence or non-existence of a fact testified to by the witness,

d. The capacity and opportunity of the witness to perceive, recollect or relate a matter about which the witness testifies

e. The existence or non-existence of bias, interest or any other motive

f. The character of the witness as to traits of honesty or truthfulness or their opposites

g. A statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial

h. The statement of the witness admitting untruthfulness or asserting truthfulness.”

 

In the case of Republic Vs. Mallam Issah (supra), the Fast Track High Court Accra, held inter alia that the evidence of a witness may be true or otherwise due to its contents and not because the witness said that it was true, no, not even when he gave evidence on oath.

 

It is significant to note that the appellant (A2), in his caution statement to the police, Exhibit 1D one, dated 25th November, 2005, said he did not know A1 anywhere until he met him in handcuffs in Mempeasem house. The appellant also told police in Exhibit 1D one that he was lodging in a hotel at Achimota and not in the Mempeasem house but did not know the name of the hotel. However, the appellant (A2) in his evidence-in-chief said he knew A1 because his house is 10km away from his in Venezuela.

 

So the question is: Why should the appellant flatly deny knowing A1 in his caution statement when he knew very well that both of them are Venezuelans and that A1’s house is 10km away from his in Venezuela? Why the inconsistencies and contradictions in the evidence of the appellant on A1?

 

Worse still, if the appellant was lodging in a hotel in Achimota from 20th to 24th November, 2005 as he indicated in his caution statement, why did he refuse to take the police to the said hotel when police so requested.

 

It is my candid opinion that the appellant (A2) is not a witness of truth. In the case of Munkaila Vs.

The Republic [1996-97] SCGLR 445, the Supreme Court observed that:

“Surely, when an accused person takes a refuge in telling lies before a trial court, the only inference of his behavior is that he has a guilty mind and wants to cover up.”

 

The claim by the appellant in his caution statement that he was lodging at a hotel in Achimota and did not know the first accused (A1) anywhere was a cover up in his involvement with A1 and A3 in the drug business. Equally so, the contention of the appellant that he was arrested while walking infront of Mempeasem house on the street of East Legon by a policeman was also a cover up otherwise he could have called his male friend called Marko or the lady he was walking with to give evidence.

 

Theories of Conspiracy

In looking at criminal conspiracy, the authorities have based themselves mainly on two theories.

These are:

1. The chain theory

2. The wheel theory

 

1. The Chain Theory

It involves a scheme whereby each of the accused persons be it two, three, four, etc, acts as a link in a common chain, each essential to the ultimate task of facilitating a common goal. The parties knew or must have known that others unknown to them were sharing in their common design.

 

2. The Wheel Theory

In this theory, the pattern of their behavior (conspirators) look like many spokes of a wheel with a common centre or rim which the rest of the conspirators revolve.

 

In both theories, there is interdependence or communication among the group and they depend on one another for their individual success. There is also division of labour or other cooperation that facilitate a common goal. Thus everyone could be found to have embarked on a common venture whose success depended on the participation of all. I must say that characterizing the group as a wheel with (or without) a rim or as a chain help provide a picture of the actors and their roles.

 

In this appeal, the appellant and A1 in their written address filed through their counsel at the trial court at page 229 of the record submitted that A3 (Vasquez) imported the 588kg of narcotic drugs into the country using Compinchex Company (owned by three persons, i.e. A3, his girlfriend Asibele and Vicente Cruz, a Dutch National) as a front. The appellant and A1(now a convicted prisoner) further submitted that through Asibele, A3 rented the Mempeasem house, East Legon, Accra, which the offending matter was stored.

 

The crucial question is, how did the appellant and A1 come by all these vital and sensitive information about A3’s involvement in the narcotic drug? It is obvious that if A1 and the appellant were not engaged in the narcotic business with A3, they would not have known the involvement of A3 in the instant case. The assertion of A1 and the appellant that A3 owned, imported and rented the Mempeasem house to store the narcotic drug corroborated the case of the prosecution in material particular that A1 and the appellant (then A2) acted as a link in a common chain with A3 in the narcotic drug.

 

I therefore find that the A3 (Vasquez) was the spokes at the center of the wheel around which the rest of the conspirators, including A1 and the appellant revolve in the narcotic business. It follows that the appellant came to Mempeasem house on 24th November, 2005 by design and not by chance or accident as he was not only living in that house but was also involved in the narcotic drug.

 

From the foregoing reasons, the appellant has failed to show that the trial Judge wrongly exercised his discretion at the close of the case for the prosecution by calling upon the appellant and other accused to open their defence. Equally so, the appellant has not shown anything to the effect that the trial Judge failed to consider the defence adequately or erred when he convicted the appellant.

 

I find no merit in these grounds of appeal and they are dismissed.

 

Next to consider is ground 5 of the appeal. In this ground, the appellant contends that the sentence imposed on him is harsh and excessive. The gist of the arguments by counsel for the appellant is that the twenty years (20 years IHL) imposed on the appellant on each of the three counts is without legal basis since the conviction is not based on law. Counsel submitted that there is no evidence as to the role played by the appellant in committing the crime.

 

I am at a loss as to what informed the appellant’s contention that his conviction was not based on law and invited the court to set aside his conviction and sentence and ipso facto acquit and discharge him.

 

I must say that evidence on record indicates that the trial Judge after examining the evidence before him from the parties (i.e. prosecution and defence/accused), including drawing up inferences and deductions from the conduct of the appellant, convicted the appellant and two others on circumstantial evidence and imposed the sentence as stated above. The trial Judge did not err when he convicted the appellant on the circumstantial evidence. See Kamil Vs. The Republic [2011] 1 SCGLR 300.

 

It is trite learning that the question of sentence is a matter of discretion with all courts of justice. In the case of Haruna Vs. The Republic [1980] GLR 189-192, it was held that:

“The question of sentence was a matter of discretion with all courts of justice. However, the discretion was exercisable on well-known principles. In awarding sentence, particularly when the court set out to award a deterrent sentence, all the circumstances must be considered. If there were circumstances tending to mitigate the application of the deterrent principle, the reason must be given why those circumstances must be ignored if a deterrent sentence was imposed. If that was not done, then the discretion has not been properly exercised and an appellate court could interfere with the said exercise of discretion.

 

If, however, all the circumstances relevant to the question of the appropriate sentence have been adequately considered, the exercise of discretion by a lower court ought not to be impugned by an appellate court.”

 

Guided by the above principle of law, the court would interfere only when the court is of the opinion that the sentence was manifestly excessive or wrong in principle.

 

In the instant case, the trial Judge assigned reasons for imposing the 20 years IHL on the appellant on each of the 3 counts. The trial Judge considered the prevalence of narcotic offences in the country, the abhorrence of this crimes by the society and the adverse effects that the drug trafficking bring to the Ghanaian economy and the image of the country.

 

It is my view that the trial Judge assigned very good reasons for the exercise of his discretion to impose the deterrent sentence on the appellant. The trial Judge satisfied the principle that a party was entitled to know the reasons or grounds on which the court’s discretion was exercised or the court’s conclusion was drawn. In Musa Vs. Lima-Wulana [1975] 2 GLR 290 C. A.¸this court held inter alia that discretion exercised on no ground was no legal exercise of discretion.

 

This principle cuts across the criminal/civil cases divide as amply buttressed by Article 296 (b) of the 1992 Constitution which states:

 

“Where this constitution or in any other law discretionary power is vested in any person or authority;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law…”

 

In this appeal, nothing convincing has been urged to warrant interfering or disturbing that sentence which was imposed for stated cogent reasons.

 

I accordingly find no merit in this ground and the same is hereby dismissed.

 

In the result, the appeal is dismissed in its entirety. The judgment of the trial court dated 22nd December, 2009 including the conviction and sentence of the appellant herein is accordingly affirmed.

 

 

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