“Our world is utterly saturated with fear... we fear being injured, robbed or attacked..." Brenden Myers. And, I add, robbery victims are no exception to this web of fear! What is the genesis of this case?

The complainant is said to be an epileptic patient, abandoned to his fate and sleeping in the open. Yet, he was attacked by armed men! That shows the high level of crime in our society and the courts have a duty to bring such monstrous crimes under control.

There are two counts on the charge sheet against the accused persons herein; conspiracy to commit crime to wit robbery and robbery, contrary to sections 23(1) and 149 of the Criminal Offences Act, 1960, Act 29. Only the first accused person (A1) is standing trial, the others are at large.

The facts of the case are that the complainant is an epileptic patient, with no specific place of abode and comes to the Adum Kejetia area to beg for alms. On 12/07/2014, the complainant passed the night in front of a store near the railway station in Adum. Whilst sleeping at about 2:30 am, he felt a sharp movement in his pocket. He suddenly woke up to find that A1 and the others at large had cut his pocket and had taken cash the sum of GH¢180.00, a nokia mobile phone worth GH¢90.00 and his personal belongings worth GH¢230.00. The victim held A1 and demanded the return of his money but A1 inflicted a sharp wound on his neck. A1 then passed on the money, mobile phone and luggage to his accomplices and they all took to their heels. The victim raised an alarm and witnesses chased and arrested A1 but the others escaped. They collected the knife from A1. The accused person denied the offence in his cautioned statement but later volunteered a statement admitting the offence.

It is important to set identify the ingredients of the offences leveled against the accused. These can be found 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."

To be able to get the accused convicted, the prosecution must establish his guilt by proving these ingredients beyond reasonable doubt. The statutory provisions for this legal burden are sections 11(2) and 13(1) of the Evidence Act, 1975 N.R.C.D. 323 which state:

Sec 11(2)

“ In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt"

Sec 13(1)

“ In any 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."

As regards the offence of "conspiracy to commit robbery", the burden which lay on the prosecution is to establish beyond reasonable doubt that A1 agreed or acted together with some other people at large to commit the offence of robbery. It is immaterial whether or not they had any previous agreement or deliberation. And in relation to the robbery charge, the prosecution must also establish that the accused used force, harm or threat of harm to steal the victim's property as discussed above.

At the commencement of the trial, the prosecutor informed the court that the complainant left Ghana for his home country, Togo, after the attack and his since not returned. In view of this, only the investigator was available to testify. PW1 is not the detective who originally investigated the case. Being familiar with the handwriting of the original investigator, DPW L/Cpl Esther Lawer (now on UN Peace Keeping), PW1 tendered in evidence her statement (exhibit A) as well as the investigation and further investigation cautioned statements of A1 (exhibits B and C). The cutlass which was retrieved from A1 was also tendered as exhibit D. In cross-examination, A1 denied being arrested with a knife even though the said knife was put in evidence by the prosecution. He also denied giving any statements to the police even though he could identify his thumbprint when the same was shown to him. A cutlass which was retrieved from A1 was put in evidence as exhibit D.

In the investigation cautioned statement of A1 (exhibit B), he stated thus:

"... I am a petty trader and reside at Afari a suburb in the Ashanti Region. On 13/07/14 at about 3:00am my friend known as Chinki and I were going to Asafo. On our way, we saw the complainant who is now a victim in this case lying in front of a store. My friend attacked him and cut his pocket to take the money and phone in it. The complainant got up and held my friend but my friend cut him with a blade and we took to our heels. A security man who saw me running threw a cutlass. Unfortunately, I was caught by the victim and some other guys who then brought us to central police station. Hence my statement."

A day after the above statement had been volunteered, A1 gave the following confession statement as in exhibit C:

“ Suspect stated in Twi language and same recorded down in English in the presence of Richard Opoku from Konongo as follows: I am a petty trader at Adum and reside at Afari a suburb in Kumasi. It is not true that I didn't inflict the cutlass wound on the complainant's neck and more so the cutlass is mine. In fact the cutlass belongs to me and I use it to frighten people in order to take or collect their money and belongings. I was the one that cut the complainant's pocket and took his money and mobile phone passed it to my friend known as Chinki to run away. Complainant got up, held me and I used blade to cut his neck. I was the one who inflicted the cut on him. It was not my friend. Even though the cutlass was in my pocket I didn't use it to cut the neck. It was a blade I used. I am sorry for my actions. This is the whole truth of the matter. To be frank I don't know my friend's house. I only met him at Kejetia near the Public Toilet area and planned that operation."

In the presence of an independent witness, A1 relied on the above statement in exhibit F, his charged cautioned statement.

Is the confession statement given by A1 in exhibit C admissible against him? I have perused exhibits C and F. These are the further investigation cautioned statement and charge cautioned statement of A1. Both statements were taken in the presence on an independent witness, namely, Richard Opoku of house number Plt 22 Blk A, Adoato, Kumasi. On the face of exhibits C and F, A1 voluntarily gave those statements to the investigator. He was told of his right to consult counsel of his choice before the statements were taken. Whilst in court, A1 spoke in Twi language. In exhibits C and F, A1 spoke in Twi before the same was translated into English and then he thumb printed. There is nothing to show that he was coerced to give these statements. Apart from his denial that he gave a statement to the police, he identified his mark on these statements. Thereafter, he did not object to the tendering of exhibits B, C and F. Obviously, A1 could not have been charged and arraigned before court before this court if statements had not been taken from him. His denial of having given any statement to the police is just an attempt to throw dust in the eyes of the court. On the totality of the evidence, I find that the confession statements as in exhibits C and F are in consonance with the provisions of section 120 (1) and (2) of the Evidence Act, 1975 N.R.C.D. 323 and are admissible against the accused as proof of his guilt. The relevant provisions are stated below:

Section 120     CONFESSIONS

(1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which

(a) constitutes, or

(b) forms an essential part of , or

(c) taken together with other information already disclosed by the accused is a basis for an inference of,

the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement is made voluntarily."

(2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant whilst arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who

(a) can understand the language spoken by the accused'

(b) can read and understand the language in which the statement is made.

and where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused."

There are a host of decided cases to the effect that a court can rely solely on a confession statement made by an accused person to found a conviction. In Tiduri v The Republic (1991) 1 GLR 209, one of the questions to be decided on appeal was whether the trial judge had erred in relying solely on the accused person's own statement to convict him. In dismissing the appeal, the appellate court held (holding 2):

“The Learned trial magistrate was right in placing reliance on the caution statement of the accused, and he could even have convicted him solely on his own statement because the statement was admissible (having been voluntarily made in conformity with the requirements of section 120 of the Evidence decree 1975 (N.R.C.D. 323), was tendered in evidence as part of the prosecution's case without objection. Accordingly, by the provisions of section 6(1) of N.R.C.D. 323, the court could consider it."

Section 6(1) of N.R.C.D. 323 referred to above reads:

“In an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence is offered."

Again, in Ayobi v The Republic (1992-93) 2 GBR 769 at 777, the court of Appeal, per Amuah JA, was of the view that the trial judge was perfectly justified to admit the statement made by the accused which he relied on in his confession statement as the same was freely and voluntarily made. The decision in State v Otchere (1963) 2 GLR 463 is not different. In that case, the court held among other things that " a confession made by an accused of the commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused. See also R v Sullivan (1887) 16 Cox CC 347.

On the totality of the evidence adduced by the prosecution, particularly, exhibits C and F, i find that the accused used an offensive weapon, i.e. a cutlass on the complainant in the process of stealing his money from his pocket. There is also evidence of common purpose and prior agreement by the accused and others at large to commit the offence of robbery against the complainant herein. The prosecution have proved the charges against the accused person beyond reasonable doubt.

Has the accused raised any reasonable doubt as to his guilt? I have looked at the evidence adduced by the accused. He did not deny his presence around the scene of crime on the day in issue. He stated that he was on his way to buy coconuts to sell at that time., specifically 3am; he heard people shouting ' thieves , thieves' and some boys who had gathered around arrested him as some of the thieves. Later, he said the victim of the robbery identified him in police cells.

Inasmuch as coconuts may be sold on "wholesale" basis quite early in the day, 3am is such an unholy hour for such trading activities to take place. Moreover, after confessing to the crime in exhibits C and F, the accused has turned round to deny the offence. With these sharp contradictions, his evidence is not worthy of credit in terms of section 80 of NRCD 323 which deals with credibility of witnesses.

Having proved the case against the accused person beyond reasonable doubt, he is accordingly convicted on counts 1 and 2.

SENTENCE

The provisions of section 149 of Act 29 define the ambit of punishment for the offence of robbery as stated below:

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."

In the instant case, a cutlass was used in the robbery and this fits into the definition of "offensive weapon" under section 149 (3) of Act 29.

In sentencing the accused, I have adverted my mind to the fact that he was 18 years at the time of his arrest. He is now about 19 years. This is a mitigating factor. However, he used excessive force to steal the complainant's property and inflicted injuries on him. Even though the complainant has left the jurisdiction to his home country, Togo, the convict must pay for his crime. Having considered the applicable provisions in the Ghana Sentencing Guidelines, I sentence the accused (A1) to 15 years imprisonment with hard labour on each count to run concurrently.