IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
THE REPUBLIC - (Plaintiff)
KYEREMEH HARRISON - (Defendant)
DATE: 8TH MAY, 2015
CASE NO: 309/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
"... Justice is inverted when those engines of the law, instead of pinching vicious men, keep honest ones in awe.." Daniel Defoe (1889).
It appears to me that the prosecution in this case are desirous of securing the conviction of the accused person who stand charged with the offences of conspiracy to commit crime, to wit robbery, and robbery, contrary to sections 23(1) and 149 of The Criminal Offences Act, 1960, Act 29. The particulars of the offences are that Kyeremeh Harrison ( A1) and one Seidu ( at large) agreed and acted together to rob one Francis Nantwi of his Pontiac Vibe Taxi cab with registration number AW 8489- 14 on 23/11/2014.
A1 pleaded not guilty to these charges, hence, the instant trial. The facts on which the prosecution rely are that on 23/11/2014 at about 1:30pm, the complainant was in charge Pontiac Vibe with registration number AW 8489- 14 at Adum, Kumasi. The accused persons hired his services to take them to Abrakaso, near Agona, to pick up a herbalist to treat his sick mother in Kumasi. On their return journey to Kumasi, A1 suddenly pulled the handbrake of the taxi cab and it stopped. He pulled a pistol and pointed it at the driver and A2 also pulled a knife and asked the driver whether he wanted to live or die. These two accused persons allegedly pulled the complainant from the vehicle and sped off with the car towards Agona direction with the complainant's cell phones, wallet, driver's licence and cash the sum of GHS 210.00. At Abrakaso junction, they were involved in an accident. In the process, A1 was arrested but A2 managed to escape with the pistol. A1 admitted the offence in his investigation cautioned statement and mentioned A2 as his accomplice.
At this juncture, the prosecution are required to discharge the burden of proof placed on them by law. That is, proof beyond reasonable doubt as provided under sections 11(2) and 13(1) of the Evidence Act, 1975 N.R.C.D. 323. This basic requirement of proof in criminal cases was expounded by Ollenu JSC in Oteng v The State (1966) GLR 352 . At page 355 of the report, his Lordship stated:
... the citizen too is entitled to protection against the state and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt".
The ingredients of these offences can be gathered from the sections 23(1) and 150 of Act 29/60 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."
“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."
The above definition was explained in R v Dawson (1977) 64 CAR 170 where it was held that when a person is charged with robbery, the sole question is whether he used force on any person in order to steal. Also, in Behome v The Republic ( 1979) GLR 112, the court was of the view that one is guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing.
Thus, the prosecution in the case before me must establish beyond reasonable doubt that the accused person agreed or acted together with Seidu who is at large and used force, threat of harm or caused harm to the taxi cab driver in question and took away his taxi cab.
In discharging this onerous burden, the prosecution called four witnesses. The driver who was in charge taxi cab testified as PW1. He gave evidence to the effect that on 23/11/2014, A1 and one other person hired his Pontiac Vibe taxi cab from Pampaso to Agona Abrakaso. He described the said vehicle as yellow and silver in colour. After negotiations, PW1 said they agreed on GHS 80.00 as the round trip fare to bring a herbalist from Agona Brakaso to Kumasi to treat their sick mother. PW1 managed to take these men to Brakaso where A2 alighted and had a conversation with an elderly man for about fifteen minutes a few metres away. He returned to the car and said the herbalist had asked them to come back the following morning so they started their return journey. On reaching a section of the road with many teak trees, A1 who sat on the front passenger seat , pulled the hand brake. The vehicle came to a abrupt stop. A1 pulled a pistol and A2 pulled a knife. Continuing, PW1 said A2 asked him whether he wanted to live or die. A1 hurriedly moved to the driver's side, pulled PW1 down, took his two mobile phones, driver's license, voter ID card, cash of GHS 210.00 and together with A2, he sped off. PW1 said he started running after the vehicle and in the process learnt that a certain vehicle had been involved in an accident ahead of him. On reaching the spot, he identified the accident vehicle as his taxi cab which had been snatched at gun point. He alerted the men who had come to the scene to assist the accident victims that the said taxi cab had been snatched from him at gun point by A1 and one other person. In cross-examination, A1 denied being privy to the discussion between Seidu and PW1 and stated that he had merely accompanied Seidu who had told him that his brother had bought a car for him and PW1. He also denied being in possession of a pistol.
One of the men who were at the accident scene to assist the accident victims testified as PW2. According to PW2, A1 was still in the accident car but the other person had escaped. A1 also run away from the scene. When this happened, PW2 said it dawned on those present that the accident victims might be thieves so they chased them. A1 entered a well but he was eventually arrested. A1 declined to cross-examine PW2.
PW3, a police detective took the prosecution's case to another level. When the report on the robbery was received by the Agona District Police , PW3 said he went to the crime scene with A1 and PW1 where they pointed out where the car was smashed. He tendered in evidence the investigation cautioned statement of A1 which he volunteered in the presence of an independent witness as exhibit A. Photographs of the said vehicle which PW3 took were also put in evidence as exhibit B, B1 and B2. Subsequently, A1 was brought to the Regional CID, Kumasi and another investigator took over the case. The second investigator testified as PW4. He was instructed to charge the accused persons with the offences on the charge sheet which he did. He tendered in evidence the charge caution statement volunteered by A1 as exhibit D. Apart from denying that he was not the person who drove the taxi cab away, A1 did not raise a finger at the evidence of PW3. Neither did he cross-examine PW4.
In exhibit A, A1 stated among other things as follows:
Suspect Seidu is my friend and also a driver and resident in Kumasi. I am a taxi driver in Sunyani. I got to know suspect Seidu in Sunyani somewhere last year. Somewhere last week, I told suspect Seidu that I wanted an articulator truck to drive. Yesterday 23/11/2014, whilst in Sunyani, suspect Seidu called me to come to Kumasi. I arrived at about 12 noon and met suspect Seidu at Sunyani lorry station, Kejetia. When I met suspect at Kumasi, he told me that his father had brought a car (taxi cab) for him and his brother and that his brother wanted to take ownership of the taxi and that he will take the taxi. Suspect told me that we should wait for the vehicle to come. At about 3.00pm, when the Pontiac Vibe taxi cab with registration number AW 8489-14 was seen coming, suspect told me that was the father's car... Suspect later told me to join the car that we were going to Abrakaso and that the mother was sick and there is a fetish priest at the said Abrakaso and we will pick the said man. I told suspect that I personally needed spiritual powers to support myself so I was happy of the trip..."
Exhibit A continued thus:
“We turned and we were coming back. On descending a hill suspect told the driver to pull over and hand over all his belongings. The driver then gave us his cell phone. I then took the said taxi cab and on reaching the main Kumasi junction, the taxi was involved in an accident. I got up and attempted to run away but I was arrested and handed over to the police."
A1 relied on the statement contained in exhibit A in his charge cautioned statement (exhibit D).
A court is enjoined to look at the statements volunteered by an accused person to see if it raises any defence in law. see Nagode v Republic (2011) SCGLR 975. Indeed, exhibit A, which the accused person relied on in exhibit D, does not raise any known defence in law in my opinion. Rather, they confirm the prosecution's case that the accused persons acted together to rob the Pontiac Vibe in issue.
The prosecution have established the following facts beyond reasonable doubt: that A1 had agreed with one Seidu to take the vehicle in issue away from its driver; that at the time A1 boarded the vehicle from Adum Pampaso, he knew that it was in furtherance of their prior agreement to forcibly take the vehicle from the driver in charge which they eventually did; A1 who occupied the front passenger seat was armed with a pistol which he used to threaten PW1, he over powered PW1,brought the car to a stop, pulled him out and eventually drove the car away in the company of the said Seidu.
I have looked at the defence put up by A1. He did not deny that he and Seidu forcibly took possession of the taxi cab in issue. His version is that it was A2 who drove the vehicle away and that he reasonably believed that the vehicle belonged to A2 and his other sibling who was asserting ownership of the same. If A1 had such an honest believe, why did he take to his heels upon seeing people coming to the accident scene? Why would he abandon the taxi cab at that point? This action defies common sense! PW2 saw A1 in the driver's seat. Yet, when he testified, A1 elected not to cross-examine him. Again, when his statements were read out in court, he merely denied that he was not the person driving the car. It can therefore be reasonably inferred that A1 admitted the contents of his cautioned statements given to the police. In these statements, he admitted the offences leveled against him. Indeed, whilst in the witness box, A1 knelt down and begged for forgiveness. I have taken note of his remorse but that alone is not a mitigating factor.
There is evidence on record beyond reasonable doubt that A1 and one Seidu (at large) agreed to take the taxi cab in issue by the use of criminal assault i.e. use of threatening words whilst A1 was armed with a pistol. Accordingly, A1 is convicted on both counts.
The provisions of section 149 of Act 29 define the scope of punishment for the offence of robbery thus
Section 149 (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 on conviction be liable to imprisonment for a term of not less than 15 years."
Section 149 (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."
A1 is aged 32. There is no doubt that this criminal operation was carefully planned by the accused persons and they executed the same with extreme bravery and without fear for the consequences thereof. A1 took the taxi cab at gun point. The evidence shows that he was ready to kill PW1 when he pointed the pistol at him and asked whether he wanted to live or die. Even though PW1 did not sustain any injuries, he was put in the fear of death. The fear of death created in a person cannot be underestimated. Robbery is a social menace and such offenders need to be dealt with severely to serve as a deterrent to would be offenders. The good news in this case is that the vehicle was retrieved and handed over to the owner. In the circumstance, the sentence will be long enough to punish A1 and short enough to reform him. He is sentenced to 18 years imprisonment with hard labour on each count. The sentences are to run concurrently.