The accused persons herein have been charged on two counts of conspiracy to commit robbery and Robbery contrary to sections 23(1) and 149 of the Criminal and Other Offences Act 1960, Act 29. The particulars of offence are that on 23/06/2014 at about 1am, they agreed or acted together and robbed one Kwame Asenso of his Mercedes Benz with Registration number As 4117-11 valued at GH¢ 35,000.00; two mobile phones valued GH¢8000; one Samsung laptop valued at GH¢1500.00 and cash of GH¢6,000.00. Each accused person pleaded not guilty to these charges. Hence, the instant trial.

The Facts which led to the instant trial are that the accused person and four others at large attacked the complainant who is a lotto agent in his house on 23/06/2014. They fired indiscriminately and in the process injured the Complainant's son by name Daniel Asenso. The accused persons made away with a Mercedes Benz car, two mobile phones, one laptop and cash of GH¢6,000.00. Upon a description by the Complainant, A1 and others were arrested on 30/06/2014. Upon a search, the police found one locally manufactured pistol and a military jacket on A2. A toy pistol and a quantity of leaves suspected to be Indian hemp were found from A1. Subsequently, the Police conducted an identification parade at the Police Regional Headquarters, Kumasi, where A1 and A2 were identified by the witnesses as some of the robbers who robbed the complainants.

The ingredients of the offences leveled against the accused persons are contained in section 23(1) and 150 of Act 29 thus:

Section 23 (1):

"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 pervious concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence."

Section 150:

“A person who steals a things is guilty of robbery if and for the purpose of stealing he uses force or causes harm to any other person, or if he uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing."

This being a criminal case, the Prosecution is enjoined by sections 11(2) and 13(1) of the Evidence Act, 1975 N.R.C.D. 323 to prove the ingredients of these offences beyond every reasonable doubt. In other words, the Prosecution must establish the guilt of the accused persons beyond reasonable doubt so as to secure their conviction.

In all, the prosecution called five witnesses. Kwame Asenso who is the Complainant was the first prosecution witness (PW1). He gave a vivid description of the events of 23/06/2014. He said at about 1:30am, his son (Eric Sarfo) woke him up and said he had seen thieves opening the burglar proof to gain access into their house. PW1 said he woke up and saw what his son had described to him and that he heard indiscriminate gun shots. He then instructed his children to take cover in his room; he locked the burglar proof with a padlock and hid behind a refrigerator. Yet, the attackers cut through the burglar proof, entered his room and under the threat of death, they demanded to see him. At that point, PW1 said he came out from his hide out and saw three persons, but he could identify A1 who then had a rasta hair. Continuing, PW1 told the court that A1 ordered him to give him "the money" and he gave him a bag containing GH¢1,000.00. A1 said they had not come there because of GH¢1000 and that the person who sent them said the money was more than that. PW1 then added GH¢ 5000 but they demanded for more money. Eventually, he gave them a bag containing his "daily sales" estimated to be about GH¢26,000.00. The robbers also made away with his Mercedes Benz car, phone, Laptop and watches. When the robbers left the scene, PW1 said he saw his son in a pool of blood and sent him to the hospital. Whilst at the hospital, PW1 indicated he received a phone call that his car had been found and later he identified A1 at an identification parade held at the Regional Police Headquarters, Kumasi. When Defence Counsel sought to discredit his evidence in cross-examination, PW1 maintained that he could identify A1 because of his unique features and not because he knew him prior to the incident. This is how the cross-examination went:

Q. So at that that time you did not see the suspects as you claim?

A. When they entered the room, I saw A1.

Q. Were they not in mask?

A. They were in mask but A1 had a unique rasta hairdo and I could also identify him by the colour of his skin. When I looked at him and I was able to identify him, I kept looking down.

Q. You said you knew A1 already and even when your head is down, you could identify him.

A. I looked at him before identifying him.

The next witness for the prosecution is a brother of PW1. He gave his name as Kwame Agyekum and said he was sleeping with his wife in the house of PW1 at the time of the robbery. He gave a detailed account of how the attackers broke into the house amid gun shots and insults and demanded for money. PW2 further testified that A2 who was in the lead held a double barrel gun and headed him.

According to him, another person in the gang was holding a machete which he used to hit his back several times and ordered him to disclose the location of his brother, the lotto agent (PW1). PW2 told the court that A2 and the others marched him naked and he pointed at his brother's room and they used cement blocks to force the door open. However, he was not allowed to enter his brother's room. PW2 also confirmed that there was an identification parade where he was able to identify A2 and a photograph of the two were taken (exhibit B). Whilst under cross-examination, PW2 was emphatic that there was light in the room, A2 was not 01masked and that was how he could identify him. He also rebuffed counsel's suggestions that he identified A2 at the identification parade because he previously knew A2 and insisted that A2 took part in the robbery.

A niece of the Complainant took the case of the prosecution to another level. She gave her name as Osei Yeboah Lydia (PW3) and said she was in the Complainant's house when the robbery took place. Prior to the incident, PW3 said she had met A1 in Agona and had some interaction with him. The following part of her evidence is very vital and I will reproduce it for emphasis:

“... In the evening, I heard Mr. Asenso's son shouting that we should wake up because armed robbers had come there. We all went into Mr. Asenso's bedroom. When we were there, the armed robbers came in. I saw one guy who pointed a gun at me and told me to bring my father's gun. I told him I was a new comer and knew nothing about any gun. The person looked like the same person I had met at Agona i.e. A1. Mr. Asenso's son was shot. The next day, I went to the hospital. When I was passing by, A1 called me to be careful. I asked him why. He said if I am not careful, I will die... He said he did not want to use a gun to shoot me so I should keep quiet..." During cross-examination, PW3 said she could identify A1 because he was not wearing a mask.

Detective Chief Inspector Emmanuel Nyamekye was detailed to investigate the robbery case in Agona. He testified that as part of his investigations, he visited the crime scene at Jamasi and also visited the injured persons including the son of the Complainant at the SDA hospital, Asamang Ashanti. According to him, the crime management team was invited from the Police Regional Headquarters, Kumasi to assist in the investigations. During investigations, some names came up. Thus, the police arrested six persons including the accused persons herein. Upon a search in their respective rooms, a toy gun was found from A1 (exhibit D); a pistol and a military rain coat were found in A2's room (exhibits E and F). PW4 tendered the investigation cautioned statements obtained from A1 and A2 as exhibits G and H respectively. Similarly, he tendered their charge cautioned statements as exhibits L and M.

Afterwards, PW4 handed over the accused persons to the Regional CID and Detective Inspector Eric Ofori (PW5) continued the investigations. In his evidence, PW5 stated both in his evidence and under cross-examination that in line with police standard procedures, he conducted an identification parade where A1 and A2 were identified as part of the six armed men who attacked the complainant in his house. He also tendered in evidence seven empty cartridges which PW4 found on the crime scene as exhibit J.

Counsel for the accused persons sought to discredit the evidence linking them to the robbery by suggesting that no finger prints were taken from the crime scene as well as on the Mercedes Benz car which was subsequently retrieved by the police. Again, he challenged the evidence of PW5 that he failed to follow the police standard procedure in conducting the identification parade. These suggestions were denied by PW5 who maintained that even though finger prints were taken, it takes so long to get the results from the forensic laboratory and that A1 and A2 were identified out of the nine (9) people lined up.

For the accused persons, counsel submitted that by virtue of Article 19(2) (c) of the 1992 Constitution, they are presumed to be innocent until their guilt is proved and that they are not under any obligation to prove their innocence. I agree with Counsel on this submission. To this end, Counsel stressed that the prosecution must prove the guilt of the accused persons beyond every reasonable doubt and he relied on Tsatsu Tsikata V The Republic (2003/2004) 2 SCGLR 1068. In relation to the ingredients of Robbery, Counsel cited and relied on Kwaku Frimpong v The Republic (2012) 45 GMJ 1 at 30 SC.

Having outlined the law and authorities on the charges herein, Counsel invited the court to analyze the evidence adduced by the prosecution witnesses. On his part, Counsel summarized the evidence of these witnesses and some portions of what transpired under cross-examination. In evaluating the evidence, Counsel submitted that all the prosecution witnesses have failed to adduce credible evidence against the accused to show that there was any conspiracy between them or could link them to the crime. In his view, there were serious contradictions in the statements. For example, whilst PW1 indicated the money taken by the alleged robbers, the charge sheet speaks of something very different. Again, Counsel pointed out that whilst PW1 and PW2 claimed they saw A1, PW3 insisted it was A2 who was unmasked and headed him and also ordered him to show his brother's room. This cannot be true because it was PW2 who said A2 headed him. Rather, PW1 and PW3 made out A1. Another inconsistency pointed out by counsel is that while PW4 claims A1 only sells toiletries and toffees in his shop, PW3 who usually spend time with A1 in his shop claims A1 sells toy guns and games. How significant is this? Every store is likely to have a variety of items and it is not unusual in the real world for someone who is not the owner to leave out some stock-in-trade when he or she is asked questions about them. Also, as and when purchases are made, the stock on any particular day may differ. Besides these inconsistencies, Counsel wondered why the prosecution failed to take finger prints from the crime scene and items in a crime of this magnitude when it was expedient to do so. Further Counsel submitted that A2's pregnant wife came out clearly that she spent the night of 23/06/14 with her husband in his house. As regards A1, Counsel argued that the fact that a person wears a hairstyle identified as familiar to a supposed criminal is not conclusive to the identity of another person. Concluding, Counsel argued that none of the stolen items could be discovered with the accused or any of their relations. He invited the court to find that the prosecution has failed to prove the guilt of the accused persons beyond every reasonable doubt to merit a conviction.

Indeed, the case of Kwaku Frimpong v The Republic which Counsel for the accused persons cited did state the ingredients of robbery accurately. It is as follows:

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.

Also, in the case of Behome v Republic [1979] GLR 112 it was held that:

“One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with the intent thereby to prevent or overcome the resistance of his victims to the stealing of the thing.”

As stated earlier, the burden of proof remains on the prosecution until a case sufficient enough to link the accused to the offences has been made. At that point, the accused will be invited to tell his side of the story. See Amartey v The State (1964) GLR 256 at 295 and Gligah & Anor v The Republic (2010) SCGLR 870.

It appears to me that the best piece of evidence which the prosecution seeks to rely on is the description and identification of A1 and A2 by PW1, PW2 and PW3. I have had no cause to doubt the credibility of PW3. She appeared terrified as she sat in the witness box with A1 staring at her face! Her evidence that she had had an encounter with A1 before and after the event in issue cannot be faulted, particularly, the fact that A1 had previously proposed to her in Agona and that the person who pointed the gun at her looked like the same person she had met at Agona. And, a day after the robbery, she met A1 at Agona where A1 told her to be careful else she will die. PW3 readily pointed A1 out at the identification parade conducted by the police. I will at this point look at the case of Dogbe v The Republic (1975) 1 GLR 118 (holding 1) where the court held thus:

"In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. Thus, opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity."

In the instant case, PW3 had a clear mental picture of who her attacker was and she became more convinced about the identity of this person when A1 cautioned her to be careful or she will die. This happened the next day when PW3 was paying a hospital visit to her cousin who suffered injuries during the robbery. This piece of circumstantial evidence linking A1 to the offence of robbery cannot be ignored by the court.

When exhibits A, B and C are put together, it is obvious from the apparel and faces of those captured that several people were lined up during the identification parade but the photographer failed to capture all these persons in one shot. Ideally, all the persons lined up should have been captured in one shot but no injustice has been occasioned by the failure to do so.

Was the identification parade necessary in the case before me? I will answer this question in the affirmative because the victims appeared to have a mental picture of some of their attackers. Generally, identification parade is conducted when it appears necessary to identify an accused or suspected person by giving a potential witness the opportunity to pick him from a number of persons who have been lined up. See A.N.E. Amissah (1982) CRIMINAL PROCEDURE IN GHANA, Sedco Publishing Ltd, page 41. As the Learned author noted, an identification parade is very useful when the witness has a mental picture of the suspect. It is one of several means of identifying a suspect. The identification may take various forms. In ’Phipson On Evidence’ (10^th ed.) p 170 paragraph 1381, it is stated:

‘When a party’s identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics: e.g. age, height, size, hair, complexion, voice, hand-writing, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history.’

In Ibrahim Razak & Anor v The Rep. (Unreported) Criminal Appeal No J3/6/2011 25th April, 2012, the appellate Court re-affirmed the position that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes.(emphasis)

In the instant case, PW3 had previously seen and interacted with A1 who then had a peculiar "rasta" hair style. She told the court that as A1 ordered her about, he appeared to her like the man she had previously met in Agona. After the event, she told the court that this man he had previously met in Agona cautioned her to be careful or she will die. From thesesequence of events, PW3 could not have made any mistake in her identification of A1. Incidentally, PW1 could also identify A1 because of his "unique" hair style and skin colour. As regards the identification of A2, the evidence of PW2 says it all. He said among other things that there was light in the room; A2 was no masked; A2 headed him and that was how he could identify him. Here again, Counsel for the accused persons challenged the manner in which the identification parade was conducted. Hence, I will spend some time to discuss the requirements of a proper identification parade by the Police. Police Service Instruction 195 governs the conduct of identification Parades, photographs, among others. It is worth reproducing the relevant part and I proceed to do so now:

SERVICE INSTRUCTION 195

When it is required to identify an accused or suspected person by means of an identification parade, the following instructions shall be observed:-

a. The Officer in charge of the case may be present, but shall not take part in the proceedings

b. The identification parade shall be conducted, whenever possible, by a Senior Officer to whom shall be handed a list of witnesses who will attend

c. The officer in charge of the parade shall act in precise accordance with the instructions contained in this Service Instruction.

2. (a) The suspected person shall be informed that he may have his lawyer or a friend present at the parade, but must understand that such person may not in any way interfere with proceedings.

Persons who have no business to be resent shall be excluded.

(b) The parade shall consist of at least eight persons as far as possible of similar age, height, general appearance and class of life as the suspect. The suspect shall be asked whether he has any objection to any of the persons forming the parade, or to the arrangements made, he shall be informed that he may take any position in the parade he chooses and if he so desires, change his position after each identifying witness has left.

(c) The persons assembled for the parade shall; if possible be unaware as to which of their number is the suspect.

(d) Should a suspect suffer from any physical deformity special arrangements shall be made (e.g.) in the case of a one-legged man; all persons taking part in the parade shall sit at a table with their legs concealed with a cloth or blanket. Police are not to be utilized for this purpose unless, of course, the suspect is himself a Policeman;

(e) Where two or more suspects are involved in the same offence and it is necessary to hold an identification parade with a view to identifying all or some of them, all those whom it is desired to have identified shall be together in the same parade. Where the number of suspects to be identified exceed eight, every effort shall be made to include in the same parade as many suitable persons, as laid down in 2(b) above, as there are suspects. In all parades held in accordance with the provisions of this sub-paragraph, the instructions contained in this service instruction shall be rigidly enforced.

3. (a) Witnesses shall not be assisted by any verbal or written description of the suspect and they shall not see the suspect or any photograph of him before the parade. After they have attended the parade and, until the proceedings are completed, witnesses are not allowed to communicate with each other.

(b) Prior to seeing the parade each witness shall be told that he will see a group of people who may include the suspected persons, and that , should he recognize anyone, he should indicate him to the officer in charge the parade. Each witness shall be introduced one by one and shall be told to touch or otherwise conclusively indicate the person he identifies. In no circumstances whatsoever shall a witness be given more than one opportunity to identify a suspect

(c) Should a witness desire to see the parade walk, hear them speak, see them with their hats on or off, this may be done, but the whole parade shall comply with any such request.

4. (a)No member of the Service or person present at, or taking part in an identification parade shall be used for the purpose of summoning a witness to the proceedings;

(b) When there are a number of witnesses the officer in charge of the parade shall make out a card for each witness with his name written thereon. These shall be handed to the Police officer in charge of the witnesses who on receiving a signal, such as a blast or on a Police Whistle shall dispatch any of the witnesses, together with his card, to the officer in charge of the parade.

(5) Before each witness leaves the parade a note shall be made recording whether the witness has identified any person, and other circumstances, such as a resemblance noted between the suspect and any person present at the parade. When a witness fails to recognize the suspect, the fact shall be recorded as carefully as when he is identified, the names, addresses and occupations of those who fail to identify being taken down. Any statement made by the suspect shall be recorded at once and read over to the officer in charge of the case in the suspect's hearing, the suspect being invited to sign such statements.

6. Whenever possible the parade shall be photographed, preferably before the witnesses have visited it

7. The parade shall be carried out in a well-lighted place unless the recognition, etc. of the suspect in half-light, at dusk, by moonlight or artificial light is desired.

8. A full record, giving particulars of the parade, its composition, description, etc. of the members shall be drawn up by the officer in charge and signed by him at the earliest possible moment before leaving the vicinity.

9. Witnesses and persons who form the parade shall be treated with as much consideration as possible, with due regard to their comfort, and with as little loss to them of their time as possible.

10. Any member of the Service who fails to comply with the provisions of this order shall be required to explain in full the     reason for his non-compliance.

What really went wrong at the identification parade which counsel for the accused persons seeks to make capital of? Apart from "suggesting" and "putting" to the police investigators that the standard procedure was not followed, Counsel failed to point out the flaws in what the police did as will soon be demonstrated. Indeed, during cross-examination, PW5 who had all along maintained that the right procedure was followed said the following:

Q. You told the court that you conducted an identification parade?

A. That is so.

Q. Can you tell the court how you conducted the parade?

A. I arranged nine suspects including the accused persons, supervised by ASP Freeman Tetteh at the Police CID Regional Headquarters. Accused persons and other suspects were lined up with identification numbers hanged on their neck. The complainant, other witnesses and victims were hiding on top of the storey building. They were called one by one to identify whoever has attacked him or her. And the accused persons were identified to police by PW1, PW2 and PW3. Police photographer took photographs.

Q. I suppose the police you have your standard procedure for conducting identification parade?

A. That is so as I have already stated that the identification parade will be supervised by a Senior police Officer.

Q. I put it to you that you did not follow your own standard procedure

A. That was what we did.

Further in cross-examination, Counsel for the accused persons challenged the number of suspects lined up, because, according to him, exhibits A, B and C depict five people or less. To this line of questioning, PW5 explained that the whole parade was not photographed. Instead, a photograph of the witnesses touching each accused person was taken.

I have examined the photographs taken during the identification parade where the accused persons were pointed out and i find as credible the evidence of PW5 that nine people were lined up but the photographs captured the point where the accused persons were identified by the witnesses. Comparing what PW5 did in relation to Police Service Instruction 195, it is my considered opinion that the right procedure was followed in identifying the accused persons herein. There is no factual basis for Counsel's suggestions that the people which PW5 said were lined up for the identification were less than nine when the witness has given credible evidence to that effect. The insignificant inconsistencies pointed out by Counsel cannot in any way whittle down the overwhelming evidence adduced on behalf of the prosecution.

What is more, the accused persons were first arraigned before the circuit court in July, 2014. If it is their case that they are victims of a mistaken identity and that they were nowhere near the crime scene, did they register their protest in any manner in view of the fact that they are represented by Counsel? They never raised any such question which would have been a probable defence in any of their cautioned statements given to the police voluntarily.

Counsel for the accused persons also raised issues as regards the failure of the police to take the finger prints of the suspects who were arrested. In my opinion, the purpose of taking finger prints is essentially for identification. The accused persons were easily identified at an identification parade properly conducted by the police. Those who identified the two accused persons are victims of the unfortunate incident who had a mental picture of their attackers. Considering the manner in which the victims were attacked as per the evidence of PW1, PW2 and PW3, there are bound to be slight differences in their accounts. For instance, PW2 was in a different room and what he saw could not have been exactly what PW1 and PW3 saw. Again, PW3 saw the robbers before PW1 came out from "behind his refrigerator". It is entirely possible that PW3 witnessed something which PW1 did not see. What is of the essence, and which the prosecution has proved is that PW1 and PW3 identified A1 and PW2 identified A2.

Have the accused persons been able to raise any reasonable doubt as to their guilt? A1 testified that in the night of 23/06/2014, he was asleep in his house; went to work in the morning and knows nothing about the crime. A1 also told the court that his classmate at Jamasi Ambassador School by name Kwaku Duah introduced PW3 to him as his girlfriend. Subsequently, PW3 paid visits to him and they had friendly chats. He also said in his evidence that A2 relocated from Tafo to Agona about a year before their arrest and they became friends. Concerning the toy gun, he testified that it is an MP3 player which he uses to play music. Concluding, he told the court that he lives with his grandmother, Maame Fatima, his uncle and his uncle's wife in the same house and these persons were in the house with him at the time the prosecution said the robbery took place. Quite strangely, he said he could not remember the name of his uncle's wife who is a member of his household!

The mother of A1 gave evidence as to his character and the fact that he was nowhere near the crime scene. She was the first defence witness (DW1). First, she said from the night of 22/06/2014 to the morning of 23/06/2014, her son was in the house and could not have committed any crime with any gang. What is more, he slept in the same room with his son by name Xavier. She confirmed the names of the occupants of the house where A1 said he lived and the fact that the MP3 player was used to play music. Under cross-examination, DW1 stressed that A1's usual sleeping time is 9pm; that the gate to their house is locked at night and the key is kept in the room of Maame Fati with whom she spent the night in issue. Under cross-examination, DW1 admitted that she cannot monitor her son always even though she usually monitors him but there is no way A1 can sneak out without her knowledge.

A2 also opened his defence and denied any knowledge of the offence. He said he slept with his pregnant wife in the night of 22/06/2014 and is sister Naomi Agyeiwaa and nephew Kwadwo were also in the house. Then he went to work at Magazine, Kumasi in the morning of 23/06/2014 and worked under his master by name Francis Atta. Concerning the military raincoat, exhibit E, and the pistol (exhibit F) A2 explained as follows:

"The raincoat which the police found in the boot of one of the cars parked in my house belongs to my nephew Sammy. Sammy sometimes borrowed my car to run his errands. He came for my car and travelled to Mampong with it. He phoned me that he could not start the car. I told him to leave the car at Mampong and bring the keys to me so that I go to check on it after work. He brought the key to me. The following day, I went to Mampong and the engine was faulty. I towed the car to my house and exhibit E was in the car. The pistol (exhibit F) belongs to my in-law by name "Holy Boy". Holy boy died in 1996. His eldest child by name Forster Ofori brought the gun to me and said since I work at Magazine, I should try to find a repairer to repair it. Since it was of no use to me, I just kept it and could not find anyone to repair it."

Whilst being cross-examined, A2 said he told his nephew to come for exhibit E but he travelled during the period. He also denied that it was A1 who told him about the robbery and this contradicts his investigation cautioned statement.

His evidence as regards exhibits E and F are contradictory to what he told the investigator in exhibits

H and M. In exhibit H, A2 stated thus:

"... On the robbery incident I only heard of it on Tuesday 24/06/2014 when I visited suspect Kwabena Gyasi at his shop. It was suspect who informed me that some persons have robbed a certain lotto agent. I asked Junior why a whole lotto agent will be robbed like that. Did he not have a gun. Junior stated that he called the police but they did not respond and I stated that maybe he did not settle the police. The locally manufactured gun came to my possession since 1996 when ...Holy Boy who is my brother-in-law died. However, i have not used it before. I do not have the cartridges. The military uniform belongs to my nephew Sammy who was a soldier in Ghana. He is now in the US and when he was leaving, I collected the said uniform from him because it is a type of rain coat. I used it whenever it rained and decided to go out with it."

In exhibit M, A2 changed his story in relation to the pistol thus:

"...The unserviceable pistol which was found in my room belongs to my late brother-in-law by name Hope. I wish to say that he did not give it to me but i found it in his room after his death. Suspect Kwabena Gyasi is my intimate friend but the other suspects are unknown to me."

So, at which point did the supposed "Holy Boy" change his name to “Hope"? Did he really exist? Did A2 request for the raincoat from his alleged brother who was in the Ghana army or the said brother left it in a car he had borrowed from A2? Unauthorized persons who have in their possession pistols and military paraphernalia are more likely to use them for criminal activities. In the circumstances of this case, A2 who has already being identified as one of the robbery gang has so contradicted himself as regards the pistol and military gear in his possession and i do not find him as a person worthy of credit. Moreover, A1 also contradicted the statement of A2 that he informed A2 about the robbery.

Considering the material inconsistencies in the accused persons statements given to the police and their evidence in court, I find that they have merely embarked on a journey to as it were, twist the truth so as to extricate themselves. Indeed in the case of Gyabaah v The Republic (1984-86) 2 GLR 461, the courtstated inter alia (holding 2):

"... For the law was that a witness whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence could not be regarded as being of any importance in the light of his previous contradictory statement unless he was able to give a reasonable explanation for the contradiction."

One Hilda Appiah a.k.a. Awuraa Adwoa who described himself as the wife of A2 testified as DW2 and her evidence was to the effect that in the night of 22/06/2014, she spent the night in the same house with her husband and their four children. Again, she said A2 was very sick that night. She also said she had not seen any of the alleged stolen items in their house. Concerning exhibit F, DW2 said a relative of A2 gave it to him but she had never seen it being used.

This was indeed the statement A2 earlier gave to the police but he later changed his story and said he rather found the pistol in his brother-in-law's room after his death as in exhibit M. Here again, the unsavory contradictions have popped up! So between husband and wife, whose evidence must the court believe? Like any loving wife, DW2 will do anything to save her husband from the grips of the law but on this occasion, her testimony is doubtful and i will not rely on it.

Master Francis Appiah whom A2 made reference to in his evidence also testified on his behalf as DW3. He corroborated the evidence of A2 that he came to work at his auto mechanic workshop both on 22/06/2014 and 23/06/2014. Even though DW3 had testified that A2 is of good character, he admitted under cross-examination that he did not know where A2 lived prior to his arrest and would not know what happened in the robbery which happened in Agona.

The last defence witness (DW4) said he is a nephew of A2 and he also gave evidence of good character in addition to the fact that A2 slept in the same house as he did in the night of 22/06/2014.

In view of the testimonies of all the defence witnesses, I am compelled to take a critical look at section 131 of the Criminal Procedure Act, Act 30. It reads:

131. Alibi (1) Where an accused intends to put forward as a defence a plea of alibi, the accused shall give notice of the alibi, to the prosecutor or counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove,

(a) prior, in the case of a summary trial, to the examination of the first witness for the prosecution, and

(b) prior, in the case of trial on indictment, to the sitting of the trial Court on the date to which the case of trial has been committed for trial.

(2) Where the notice is given the Court may, on the application of the prosecution, grant a reasonable adjournment.

(3) Where the accused puts forward a defence of alibi without having given notice, the Court shall call on the accused to give notice to the prosecution of the particulars mentioned in subsection (1) forthwith or within the time allowed by the Court and after the notice has been given shall, if the prosecution so desires, adjourn the case.

(4) Where the accused refuses to furnish the particulars as required the case shall proceed but evidence in support of a plea of alibi is not admissible in evidence.

In the case before me, the accused persons had legal representation before the commencement of the trial. Their lawyer did not file any notice of Alibi with particulars as required by law. After the facts of the case had been read out in court, Counsel had an opportunity to make a statement. He requested to be given the statements of the accused persons and after he had read them, he did not indicate to the court that his clients will put forward a defence of Alibi to enable the court exercise its duty under Section 131(4) of Act 30 to make an order for particulars to be given in accordance with Section 131 (1) of the Act. That defence was not apparent on the face of the accused persons cautioned statements which have been tendered in this trial and it comes as no surprise that counsel did not give any particulars of Alibi before calling the defence witnesses.

In Darkwa v The Republic (1973) 1 GLR 431, one of the questions which the High Court had to decide on appeal was whether the statement made to the police amounted to such notice of alibi under section 131 of Act 30 so as to compel the prosecution to investigate the movements of the appellants. It was held (dismissing the appeal) (head note 1)thus:

"on a construction of section 131 of Act 30, the statements made by the appellants to the police did not constitute notice of alibi because they were not addressed to the prosecution with particulars as to the time, the place and any witnesses by whom the alibi was to be proved. Failure to give notice of alibi as required by section 131 of Act 30 was a good ground for suspecting it to be untrue. And the appellants having failed to substantiate their defence of alibi, they could not complain about the failure of the prosecution to investigate their movements, particularly where they had been represented at the trial by counsel whose attention had been adverted to the requirements of section 131"

Another case worth considering is Akowuah v COP (1963) 2 GLR 390 where one of the grounds of Appeal was that the charge was too vague and wide in that no specific date was given in November as the date on which the alleged offence was committed and as such it made it impossible for the appellant to plead the defence of alibi in accordance with section 131 (3) of the Criminal Procedure Code, 1960 (Act 30), which imposed a duty on the court to request the defence to give particulars of alibi; counsel therefore argued that the court failed to discharge that duty and this failure worked adversely on the defence. The view expressed by the High Court was that (holding 4):

"The non-compliance by the court with section 131 (3) of the Criminal Procedure Code, 1960 (Act 30), rather operated in favour of the appellant as it enabled him to plead and call evidence to substantiate his defence of alibi without giving the statutory notice to the prosecution."

The Akowuah case referred to supra weighs on my mind as opposed to Darkwa case also referred to above. Even though the statutory notice of Alibi was not given with particulars and the Defence of Alibi was also not raised at the commencement of the trial or before the examination of PW1, i am compelled by the circumstances of this case and in the interest of justice to consider the evidence of the Defence witnesses who gave evidence as to the whereabouts of the accused persons in the night the robbery occurred. I must stress again that if the particulars as to time and place had been given to the prosecution, a thorough investigation would have been conducted. I am thus limited to what the defence witnesses said in court.

In Bediako v The Republic 1976) 1 GLR 39, the court had this to say in relation to substantiating a plea of Alibi:

"It was not the duty of the appellant to prove his alibi, but before the prosecution could be called upon to displace a defence of alibi, that defence must have been properly brought to the notice of the prosecution or there had to be evidence of it before the trial court, and the notice should contain such particulars as would enable the prosecution to conduct proper investigations into the movement of the appellant."

DW2, DW3 and DW4 have all said that A2 slept at home but none of them said he or she stayed up all night to monitor the movement of the accused person. From the eye witness accounts of PW1, PW2 and PW3, the robbery could not have lasted for more than an hour. Even if A2 was in the house to their knowledge, he could have sneaked out for a couple of hours in the night without their knowledge. The same reasoning applies to the evidence of DW1. Indeed, the prosecution has led credible evidence to establish the fact that A1 and A2 were on the crime scene and took part in the robbery and they were subsequently identified at an identification parade. I have assessed the evidence of the defence witnesses as regards the movement of the accused persons on 22/06/2014 and 23/06/2014. In my opinion, the evidence is no credible as the accused persons would want the court to believe.

Also, the fact that none of the stolen items could be found in the possession of the accused persons is not an indication of their innocence. I have already said that after the accused persons had been properly identified, even if finger prints had been taken, that would have merely corroborated their identification which is no longer in doubt. The accused persons have not succeeded in raising any reasonable doubt as to their guilt.

On the totality of the evidence adduced by the prosecution witnesses, it has been proved beyond reasonable doubt that between 1:00am and 1:30am on 23/06/2014, the two accused persons and others who are on the run and could not be identified acted together and forcibly entered the house owned by PW1; that after they had gained entry, members of the gang fired indiscriminately; that PW1'son was injured in the process; the gang acted together and put the occupants of the house including PW1,PW2 and PW3 in a state of fear of death; having so overpowered the occupants of the house, A2 ordered PW2 to bring "the money" and A1 also succeeded in collecting a total of GH¢ 6,000.00, one laptop computer from PW1 and at gun point; a member of the gang collected A1's ignition key to his Mercedes Benz car in which the robbers bolted.

Even though only two of the robbers are standing trial, there is sufficient evidence that they acted together to commit the crime. Accordingly, I find A1 and A2 guilty of the offences of conspiracy to rob and robbery, contrary to sections 23(1) and 149 of the Criminal and other offences Act, 1960 Act 30. They are accordingly convicted.

SENTENCE

It is common knowledge that armed robbers have become a social nuisance. They attack their innocent victims without showing any mercy and destroy the lives of people. The humiliation suffered by the victims of the instant robbery, particularly PW2, who was paraded in the house naked whilst others looked at him will forever remain in his mind. The robbers will be punished in a manner that will deter would- be offenders and it is my hope that the sentence will be short enough to reform them at the end of the day. The ages of the accused persons as indicated in their cautioned statements are 27 and 35 years respectively. A2 is married with four children and A1 has one child. These notwithstanding, the robbery was committed with the use of offensive weapons and PW1’s son was severely injured. In accordance with the Ghana Sentencing Guidelines, each accused person is sentenced to 18 years imprisonment in Counts 1 and 2. The sentences are to run concurrently and shall take effect from the date they were first remanded in prison custody.