IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
JOSHUA OTI ACHAMFOUR - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 30TH NOVEMBER, 2017
CRIMINAL APPEAL NO: H2/11/2016
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) THEJ.A., A. M. DOMAKYAAREH (MRS) J.A.
LAWYERS: ISAAC OWUSU ANSAH FOR THE APPELLANT
DOMAKYAAREH (MRS), J. A.
1. This appeal is against the judgment of the Kumasi High Court, dated 19th October 2009. In the said judgment, the appellant, was convicted of Conspiracy to commit Robbery contrary to Sections 23(1) and 149 of Act 29/60 and Attempt to commit Robbery contrary to Sections 18(2) and 149 of Act 29/60. The appellant was then sentenced to 15 years Imprisonment with Hard Labour (IHL) on each count with the sentences to run concurrently.
2. There were five accused persons. The appellant was A2 the second accused. The prosecution subsequently entered a Nolle Prosequi in respect of the 3rd and 4th accused persons and they were accordingly discharged. A1 and A5 were convicted of the respective offences for which they were charged but they have not appealed.
The facts of the case are that the complainant is a businessman resident at Patase and is the uncle of the 1st and 5th accused, now convicts. They live at Pankrono. They had previously stayed with the complainant, their uncle for periods of up to ten years each. The 2nd accused, the appellant herein, is a son of a friend to the complainant. In December 2008, the 1st and 5th accused, nephews of the complainant planned to rob the complainant. In furtherance of the plan, the 1st accused contracted the 4th accused to assist in procuring persons who would commit the robbery. The 4th accused in turn informed the 3rd accused and later told them that he knew of an armed robber who had served sentence on the offence. The 3rd accused assured the 1st and 4th accused that he would get the assistance of the said ex-convict who became an informant to the Police by feigned interest. On 29th December 2008, the 1st, 3rd and 4th accused went to Abrepo junction where they met the ex-convict. There, the 1st accused formally engaged the ex-convict to assist them in the robbery. The 1st accused further asked the ex-convict to procure a gun to carry out the robbery. On 31st December 2008 the 1st and 2nd accused persons sat in the ex-convict informant’s taxi cab and went to survey. 12th January 2009 was fixed as the day on which the operation would take place knowing very well that the complainant would be bringing huge sums of money to the house. After everything had been planned, the informant went to the Police and informed them. The Police asked him to continue to feign interest so as to have the details of the operations. The Police informed the complainant about the plan but asked him to keep mute about it.
3. On the D-day, that is 12th January 2009, the Police joined the complainant in his car to his house. On arrival at the cemetery at Patasi, the 1st and 2nd accused who were then in the company of the informant in his taxi cab, charged at and crossed the complainant’s car. At gun point, they ordered the complainant to surrender the moneys on him. The complainant complied and pointed to a box in his car where an amount of GH⊄5,800.00 was kept. When the 2nd accused made for the money, the Police who were in the complainant’s car came out from the car. Upon seeing the Police, the 2nd accused managed to escape. The 1st accused was however arrested and he confessed to the offence and mentioned the names of the others. The 2nd accused mentioned the 5th accused as the one who hatched the plan. Further investigations led to the arrest of the other four accused persons.
While the 4th accused confessed to the part he played in the scheme, the 2nd 3rd and 5th accused persons denied their involvement. After the Police investigations, they were charged with the offences as indicated above. After full trial, the appellant herein was convicted on the two counts and sentenced as indicated.
4. The appellant, being dissatisfied with his conviction on both counts, mounted the instant appeal per his Notice (sic) (Petition) of Appeal filed on 4th January 2012 pursuant to leave granted on 22nd December 2011. The grounds of appeal, three in number are:
1. The judgment cannot be supported having regard to the evidence on record.
2. The High Court, Kumasi failed and/or refused to adequately consider the case for the Defence or at all
3. The trial judge erred in convicting the appellant as the prosecution has failed to prove his guilt beyond reasonable doubt.
The Notice of appeal erroneously stated the date of conviction as 4th March, 2009 instead of 19th October, 2009. From the Record of Appeal, the appellant’s plea was taken on 4th March, 2009.
The import of the three grounds of appeal is that the judgment of the High Court is wrong. No doubt Counsel for the appellant argued all the three grounds together for the respective counts of Conspiracy to commit Robbery and Attempt to commit Robbery. Counsel for the respondent also responded accordingly and we shall follow suit in like manner in evaluating same.
5. COUNT 1: CONSPIRACY TO COMMIT ROBBERY CONTRARY TO SECTIONS 23(1) AND 149 OF ACT 29/60
The said S. 23(1) provides thus:
“If two or more persons agree or 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.”
The appellant’s argument is that the prosecution failed to prove the ingredients of this offence beyond reasonable doubt as per ground 3 of the grounds of appeal; and a fortiori, there is no evidence in the Record of Appeal to support the findings and judgment of the High Court on same as per ground 1 of the grounds of appeal. He also complains that the learned High Court judge refused or failed to adequately consider the defence put up by the appellant per ground 2. Counsel submitted that from the evidence of PW1 at page 7 of the ROA, A2, the appellant herein was never present at the meeting at which the alleged robbery was hatched; that the appellant denied his involvement in his Caution Statement as well as his testimony before the court. Counsel complained about the judgment being fraught with opinion, conjectures and unsupported conclusions as to amount to a lowering of the standard of proof in a criminal case. Counsel contended that if the trial judge had adequately considered the defence put up by the defendant, even if he disbelieved the story of the accused, he would have come to the conclusion that his story was reasonably probable which would have been enough to turn the judgment in favour of the appellant. He cited the well-known case of AMARTEY V THE STATE (1964) GLR 256 at 259 in support. At page 259, Ollennu JSC (as he then was) posited thus: -
“Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider firstly, the version of the prosecution applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant's story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.”
6. We must right away say that we reject the submissions of Counsel in their entirely as they only demonstrate excellence in selective reading of the Record of Appeal. We were assisted in this regard by Counsel for the respondent who pointed out the glaring and cogent pieces of evidence in the Record of Appeal which prove the essential ingredients of Conspiracy to commit Robbery beyond reasonable doubt.
As stated in the STATE V OTCHERE & ORS. (1963) 2 GLR 463 “conspiracy is a matter of inference deduced from certain criminal acts of the parties accused done in pursuance of an apparent criminal purpose in common between them” Again, in THE STATE v BOAHENE. (1963) 2 GLR 112, it was held that: -
“Conspiracy consists not merely in the intention of two or more persons, but also in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. To constitute an indictable conspiracy there must be an agreement between the conspirators to do some common thing. Whether they had met each other or not, does not matter in the slightest degree so long as they are working for the same common object. They need not know whether a conspiracy was already in existence. The test is whether or not there was a community of design or a common purpose. In order to find out whether or not there is a common design the court must not only look at what the accused persons say in court or elsewhere, but also at what the overt acts are, that is to say, any act of conspiracy, conferring or consulting with, advising, persuading, counselling, commanding or inciting words can be an overt act”.
7. The appellant is relying on the evidence-in-chief of PW1the informant at page 7 of the Record of Appeal where there was a meeting on 29th December 2008 at Abrepo Junction at 8pm to plan the robbery. At that meeting only the informant, A1, A3 and A4 were present. However, on 31st December, 2008, there was another meeting at Abrepo Junction at 9pm to fine tune the operation. This meeting was attended by the informant, A1 and A2 the appellant herein. At page 8 of the Record of Appeal, the evidence-in-chief of PW1 continues as follows:
“On the D-day that is 31st December 2008, first, (sic) 3rd accused called me on phone to say I should meet 1st accused at Abrepo Junction. So at about 9pm I proceeded to Abrepo Junction. At Abrepo Junction, I met 1st and 2nd accused persons. During this meeting, 1st accused told us that there is a new watchman in the house and further said that I could not accompany them to the house because the new watchman would not have him in the house. And that as a result of the new watchman, his presence to open the uncle’s verandah door was no more possible. 1st accused asked us to proceed near the Patasi Cemetery because the said uncle takes that route. That my duty was to drive my taxi to cross the vehicle in which the uncle rides, so that they would be blocked. 1st and 2nd accused persons asked me to secure a gun for the operation. So I release (sic) one locally manufactured pistol. As a matter of fact, the CID man understood everything about the said operation. So I took the pistol to show to 1st and 2nd accused persons. But I returned the pistol to the CID man. … The operation was to take place on 10th January 2009. This was agreed between myself and 1st and 2nd accused persons”.
8. In the instant case, there is no need to rely on any inferences because there was direct evidence on the conspiracy. Here is direct patent and cogent evidence of 3 persons, including the appellant herein, who held a meeting, fine-tuned their plan and agreed to commit the crime of robbery. The prosecution does not need any further evidence to prove conspiracy to commit robbery beyond reasonable doubt against the appellant. This evidence was not denied by the appellant and the evidence definitely supports the finding of conspiracy. Besides, Exhibits ‘A’ and ‘E’, the Caution and Charge Statements respectively of ‘A1’ all implicated the appellant in planning the robbery and the attempted robbery. All these exhibits were admitted into evidence without objection. At pages 55 – 56 of the Record of Appeal, the trial judge extensively considered the defence put up by the appellant and came to the conclusion that the account of the appellant inculpates him. We agree with the trial judge.
9. COUNT 2: ATTEMPT TO COMMIT ROBBERY CONTRARY TO SECTIONS 18(2) AND
OF ACT 29/60
S. 18(2) of Act 29/60 provides as follows:
“(2) Every person who attempts to commit a crime shall, be deemed guilty of an attempt, and shall, except as in this Code otherwise expressly provided, be punishable in the same manner as if the crime had been completed.”
He was not charged under S.18(3) as contended by Counsel for the appellant at page 10 of his Written Submission.
Section 149 of act 29/60 also provides as follows:
“(1) Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.
(2) For the purposes of subsection (1) the Attorney-General shall in all cases determine whether the offence shall be tried summarily or on indictment.
(3) In this section "offensive weapon" means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and "offensive missile" includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown. [As substituted by the Criminal Code (Amendment) Act, 2003 (Act 646)].”
Section 150 of Act 29/60 provides the definition of Robbery.
Section 150—Definition of Robbery.
“A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat or criminal assault or harm to any person, with intent thereby to prevent or overcome the resistance of that or of other person to the stealing of the thing.”
10. Thus, for the offence of Robbery, as stated in the case of KWAKU FRIMPONG @ IBOMAN V THE REPUBLIC (2012) 1 SCGLR 297, it is important to establish the following ingredients: -
1. That the appellant stole something from the victim of the robbery of which he is not the owner.
2. That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims.
3. That the intention of doing so was to prevent or overcome the resistance.
4. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense.
5. The thing stolen must be in the presence of the person threatened.
Counsel for the appellant submitted that the prosecution ought to prove the ingredients of robbery beyond reasonable doubt to sustain the charge of attempt to commit robbery. Counsel repeated his contention that the prosecution could not discharge that obligation and for that matter there was no sufficient evidence to sustain the conviction for attempted robbery; and that again, the trial judge did not adequately consider the defence put up by the appellant.
11. In addition to making a categorical denial that there is any evidence on record of any act that bears semblance of an attempt to commit Robbery on the part of the appellant, Counsel itemized what he considers as inconsistencies as to what happened at the alleged robbery scene according to the prosecution witnesses who were supposed to be eye-witnesses: these are worth quoting in extenso for their full effect.
PW1 (the informant) at page 9 of the Record of Appeal
“2nd accused person came out of my taxi and approached the uncle’s vehicle. He opened the uncle’s side of the door and demanded the uncle’s money. There were two police officers in the uncle’s vehicle (according to police). The Police Officers attempted to arrest 2nd accused but he escaped”
PW2 (the complainant) at page 12 of Record of Appeal
“then all of a sudden the driver of the taxi pulled out a gun and asked me to produce all the money on me so I raised my hands and asked him to come for the money. I had with me Gh¢5,800.00. Then I saw another person approaching from the other side intent on coming to collect the money. When he attempted to open my door the police officer in my van fired warning shots. The person coming to collect the money fled”.
PW4 (District (sic) Detective Chief Inspector and friend of the complainant who accompanied him to the Police Station for the Police to inform the complainant about the plot to rob him) at pages 25 -26 of
Record of Appeal. He was one of the two ununiformed police men who hid in a bush at the Patasi Cemetery to alert the other police officers in the complainant’s car and also provide cover for them)
“when the taxi crossed the complainant’s vehicle, the informant and one other came out with a gun and asked the complainant to come out and surrender all he had on him. The complainant told
them the money was in the car in front. 2nd accused was going for the money. There the police in
the complainant’s vehicle came out. When the 2nd accused saw the police, he run into the bush.
The police fired”.
PW5 (the Police Investigator who was one of the police officers on board the complainant’s vehicle on the D-day) at page 31 of Record of Appeal
“Around 7pm, we emerged on the road leading to the complainant’s house at a spot near the public cemetery at Patasi. As the complainant moved towards where the taxi cab was parked, the said taxi cab moved to cross the complainant’s vehicle. Two young men alighted from the taxi. One had a locally manufactured pistol. They got hold of the complainant and the complainant pulled off a box at the front seat of the vehicle and told them the money was in that box and as such they should reach for it. The 2nd accused person moved to the passenger section intent to collect the box. The police alighted from the vehicle. One of the two went for the box. We got down and arrested the informant. We attempted to arrest 2nd accused but he escaped” (emphasis all added).
12. Counsel submitted that from these different accounts, there is real doubt as to whether the appellant indeed approached the van of the complainant or whether the appellant indeed opened the door of the complainant. He submitted that the inconsistencies showed that the evidence was concocted and should have been disregarded to the extent of the inconsistencies.
We disagree with the assessment of Counsel for the appellant. It is not difficult to see that the above pieces of evidence are saying the same thing in different words. The common thread in them as can be seen from the emphasized portions, is that it was the 2nd accused who moved to collect the money and that when the Police tried to arrest him, he escaped. The logical and inevitable inference and conclusion is that he attempted to rob the complainant and was a part of the team that attempted the robbery. The Supreme Court has directed that minor, immaterial inconsistences in evidence is to be overlooked. See the case of EFFISAH V ANSAH (2005 – 2006) SC GLR 943 at 960 where Georgina Wood JSC (as she then was) put it thus: -
“In the real world, evidence led at any trial which turns principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence are clearly reconcilable and there is a critical mass of evidence or corroborative evidence on crucial or vital matters, the court would be right to gloss over these inconsistencies.”
13. The appellant in his evidence-in-chief at pages 36 -38 of the ROA admitted that he was in the taxi, that he sat in-front of the taxi whilst 1st accused sat behind and that he took off on his heels when he heard gun shots from the Police. The only conclusion from this state of affairs is that but for the timely intervention of the Police the accused persons would have robbed the complainant. The use of the gun with threats were intended to overcome any resistance the complainant would put up to the stealing of his money. It does not matter whether the appellant was the one who wielded the gun or not because they were acting together as a team. In KWAKU FRIMPONG @ IBOMAN V THE REPUBLIC cited supra, it was held Per Curiam at holding 2 that:
“Even though robbery might be a one-off event, series of events before, during and after the event can be used to effectively nail an accused person to the offence of conspiracy and robbery itself. However, the fact that it was the appellant who had driven the MBW car from the scene of the robbery, meant that he was present at the scene. Whether he took part in the actual threat on the inmates or not is immaterial. The transaction is a-one-whole event, any person who engages in any part of the transaction is liable for the offence. The person who keeps watch whilst the inmates of the house are subjected to torture and threat is as guilty as the person who threatens”.
They attempted to snatch the money from the complainant in his presence. Therefore, all the essential ingredients of robbery were established beyond reasonable doubt.
In the same IBOMAN’S case, Dotse JSC cautioned appellants and indeed all in these words at page
‘What must be noted is that in a criminal trial or appeal, the fact that the conclusion reached by a trial court or an appellate court is inconsistent with the defence of the accused or the appellant, should not be construed as the failure of the court to consider the case put forward by the accused or the appellant. It is enough, if in the judgment, the court makes references to the defence story, considers same and gives reasons why that story or defence cannot be believed”. As already pointed out, the trial judge considered the defence put up by the appellant, and analysed same at pages 55 – 56 of the ROA. He came to the conclusion that his defence virtually amounted to throwing in the towel. We agree with the trial judge.
14. The long and short of this appeal is that all the three grounds of appeal are dismissed as they lack substance and merit. The appellant was properly convicted by the trial court. Consequently, the appeal is dismissed in its entirety and the judgment of the High Court, Kumasi dated 19th October 2009 is affirmed.