KUMASI - A.D 2015

DATE:  22ND APRIL, 2015
CASE NO:  680/13

Michael Quartey, the first accused person herein, and one Dawuda (at large) are alleged to be partners of crime. Specifically, they have been charged with conspiracy to commit crime to wit stealing, contrary to sections 23(1) and 124 (1)of the Criminal Offences Act, 1960, Act 29 and stealing, contrary to sections 124(1) of Act 29/60 as amended by paragraph 4 of NLDC 398 of 1969.


A2 escaped arrest. When A1 was arraigned before this court, the charges were read, interpreted and explained to him in Twi language. He pleaded not guilty to both counts.


The facts of the case as presented by the prosecutor are that both the complainant and A1 reside in Aburaso, Kumasi. On 01/06/2013. a witness in this case saw A1 and A2 in an uncompleted building of which the complainant is a caretaker. The witness who suspected the accused persons to be criminals, called other people's attention and raised an alarm. On sensing danger, the accused persons jumped over the wall and run away. The witness followed up to A1's house and met him. The father of A1 was informed about the incident and together with the witness, they went to the scene where a sack containing electrical wires and air condition pipes which had been removed from the building were found. A1 was subsequently arrested and during investigations, he mentioned A2 as his accomplice. The prosecution added that even though A1 pleaded not guilty, his father had a meeting with the complainant who gave the value of the items as GH¢10,400.00 of which A1's father paid GH¢ 3000.00.


The accused person has denied the charges leveled against him. This being a criminal case, the prosecution bears the onerous burden of proving the guilt of the accused person. The standard required is proof beyond reasonable doubt as spelt out under sections 11(2) 13(1) of the Evidence Act, 1975 NRCD 323. The provisions are stated below:


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 he commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt."


A case in point is Oteng v The State ( 1966) GLR 352 . At page 355 of the report, the supreme Court, per Ollenu JSC 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".


Denning J in Miller v Minister of Pensions ( 1947) 2 All ER 372 at pages 373-374 explained what amounts to a reasonable doubt in these words:


" If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible', but not in the least probable,' the case is proved beyond reasonable doubt."


The burden of introducing evidence shifts to the accused person if at the end of the prosecution's case an explanation is called for. Unlike the onerous burden on the prosecution, when the burden of persuasion shifts onto the accused person, he is only required to raise a reasonable doubt as to his guilt. This position of the law is clearly spelt out under section 11(3) and section 13(2) of N.R.C.D. 323. On the same principle, Sankey LC in the case of Woolmington v Director of Public Prosecutions ( 1935) AC 462 at 481 had this to say:


" While the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a reasonable doubt as to his guilt." This was applied in COP v Antwi ( 1961) GLR 408.


The prosecution explained to the court that they will be able to produce one witness which is the investigator. Indeed, this investigator testified as PW1. He gave evidence to the effect that on 01/06/2013, the complainant and some other witnesses brought the accused person to the Police Striking Force unit, Kumasi, together with a sack containing electrical cables. A case of stealing was made against the accused person. Accused person volunteered and wrote his own statement when he was re-arrested and cautioned. The said statement was tendered as exhibit A. Continuing, PW1 said the complainant led him together with the accused person to the scene of crime. The complainant took the police around the building and showed where the electrical cables were removed and where he picked the sack containing the said cables. Accused also showed the police where he was sitting before the complainant and the other witnesses chased him. The accused person was brought back to the police station where he mentioned A2 as his accomplice and added that A2 works at Suame magazine. However, PW1 said when he was about to take A1 to Suame magazine, he told the police that he would not be able to locate A2 . The only information provided by A1 at that point was that A2 , who goes by the name Dawuda, is a scrap dealer and works around the Total filling Station at Suame. He added that if A2 sees him, he will run away. With this information, PW1 said he went to the area around the two Total filling Stations at Suame but there was no scrap dealer by name Dawuda. Consequently, the accused was charged and he volunteered two statements (exhibits B and C).


In exhibit A, which was read by PW1, A1 stated that on that fateful day, he was walking home at about 3:45pm when he felt like "easing" himself. He rushed into a nearby bush in front of an uncompleted house. After easing himself, he walked to another uncompleted house behind the place he had eased himself and banged into a guy who claimed to be a scrap dealer. He interrogated this guy and both of them sat there chatting for about five minutes. Upon hearing an alarm being raised,


A1 said he took to his heels to save his life. He went straight home and within three minutes, the inhabitants came there and complained to his father. A1 also said in exhibit A that when he came out, the inhabitants subjected him to beatings even though he denied the offence leveled against him and he was taken to the police station.


Moved with pity, Michael Atta Agyei Esq. , acting as a friend of the court, volunteered to cross-examine PW1 on behalf of the accused person. The accused person's counsel, Mrs. Lizzy-Pearl Addison was not in court. In cross-examination, Mr. Atta Agyei suggested to PW1 that it is probable that the accused whose house was a bit far from the alleged scene of crime entered the bush to ease himself. To this question, PW1 answered that it had not rained that day but when they went to the scene, no human excreta was found. Counsel also asked that because the accused was not caught in the act of stealing, he cannot be so charged. Even though PW1 admitted that A1 was not caught in the act, the circumstances indicate that he went to the magazine to see the scrap dealer purposely for this scrap he stole. Counsel tried to pin down PW1 by asking various questions which suggested that PW1 did "arm chair" investigations" but PW1 stood his ground that the case was properly investigated.


Exhibit C, which A1 wrote in his own hand writing on 05/06/2013 i.e. four days after the alleged act, reads:


“The guy I met there said his name was Dawuda and he works at Suame. He gave me the directions to his shop at magazine. I visited a friend at Suame three months ago and met him packing some scraps into a particular shop near the total filling station".


I have scrutinized the evidence adduced by the prosecution. The complainant did not come to testify. Neither did any of the inhabitants who saw and chased the accused person from the uncompleted structure to his house. A1 has not denied his presence at the place and the fact that he took to his heels upon hearing the inhabitants shouting "thief, thief". He has also not denied that the sack containing some stolen items (exhibit D), was found at the same place barely a few minutes after his arrest. Thus, the inability of the prosecution to call these persons as witnesses is not fatal to their case.


Judicial notice has been taken of the fact that Suame magazine is not close to the place where the cables were removed and subsequently placed in a sack. Consider the sequence of events: A1 met A2 approximately three months prior to his arrest; A1 went to magazine and saw A2 busily working with scrap; A1 is a university student; three months down the line, A1 and A2 were found in an uncompleted building which is in the vicinity of A1's house , but far from Suame magazine; A1 and A2 took to their heals when they heard people shouting " thief, thief", and a sack containing electrical cables and some other items was found at the same place where A1 and A2 were sitting. The question is, why will an innocent man flee upon hearing an alarm being raised? What brought the duo from different parts of Kumasi to this uncompleted structure with bushes around it and at about the same time? How did the cables enter the sack? Could the alleged fecal matter disappear within a matter of hours in the absence of rain? Did A1 actually go there to empty his bowels ? why did A1 refuse to lead the police to the scrap shop where he had met A2 three months earlier? These questions call for explanations from A1.


When A1 mounted the witness box, he elected to give a sworn testimony. His evidence was very concise and worth reproducing:


“On 01/06/2013, I went to Agric Nzema to purchase one or two foodstuffs. On my return back home, I felt to ease myself. I went into a nearby bush which has an uncompleted building. After easing myself, I saw a scrap dealer packing some electric wires. I asked him 'what are you doing here'? He said he purchases them from the owners. He said his name is called Dawuda. In less than five minutes , I heard some of the inhabitants shouting "thief", "thief" towards where I was talking to the guy. So I run quickly to the house. As I was in the house, I heard some people knocking at our gate. One said he saw me at the back of the building so we should go to the place so that I explain to them what I was doing there. As I got there, some of the inhabitants started to beat me. One of the tenants told them to stop. And the care taker placed me in a taxi and brought me to the police station. That is all."


Under cross-examination, A1 told the court that his house is about six minutes walk from the place where the uncompleted structure is located. When asked about the foodstuffs he allegedly bought, he told the court that he left them at the place where he had emptied his bowels. He further said in cross-examination that after easing himself, he saw A2 packing some things in a sack and that he had dug a hole to ease himself in. I wonder why a University undergraduate whose house is only six minutes away and in the absence of proof that he had any medical condition, would enter into the bush to ease himself. If, indeed, he could not wait for six minutes to get to his house, how could he get time to dig a hole? What prevented A1 from identifying the alleged hole to the investigator (PW1) at the scene of crime? A1 has not explained these matters to the satisfaction of the court. A1 further admitted in cross-examination that he jumped bail and was subsequently arrested in Accra. The prosecution also established that A1's father refused to stand as surety for his bail when he was re-arrested from Accra and that accounted for his continuous stay in prison.


The definition of stealing is provided for under section 125of Act 29/60. It states:


“A person steals who dishonestly appropriates a thing of which that person is not the owner."


What amounts to conspiracy is stated under section 23(1) of act 29/60 as follows:


“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."


In State v Boahene ( 1963) 2 GLR 554, the accused persons entered into negotiations for the purpose of purchasing a printing machine to print counterfeit Ghana currency. They were charged, inter alia, with conspiracy. The court held that the test was whether the parties had a common purpose and not whether they were acquainted with each other. The court further held that the existence of a common design could be inferred from their subsequent overt acts.


On the facts of the instant case and the evidence adduced on behalf of the prosecution, the accused persons were not caught cutting the cables. However, there is abundant evidence which link A1 to the cables in the sack. A1 has failed to adequately explain his presence at the place where he, A2 and the electrical cables were found. His evidence that he went to the premises to ease himself is a fabrication which does not exonerate him. The circumstantial evidence against him is overwhelming. It shows that he and A2 went to the premises in question with a common purpose to remove electrical cables and fittings which were tendered as exhibit D. As regards the air condition pipes, these were not retrieved from the scene of crime and the prosecution has failed to demonstrate that A2 run away with those cables. The evidence on record is to the effect that the accused persons run away and left the sack behind.


In Kamil v The Republic (2011) 1 SCGLR 300 at 301 (holding 2), the court held:


' Guilty knowledge was largely a matter of inference from the circumstance and on the merits of a particular case; the nature of the property was important. And it was not derogatory of evidence to say that it was circumstantial; It was often the best. It was evidence of surrounding circumstances; which by undersigned coincidence was capable of proving a proposition with the accuracy of mathematics..."


Another case worth considering is Logan v The Republic ( 2007-2008) SCGLR 76 at 78 where the supreme court held:


" Circumstantial evidence relied on by the prosecution to support a conviction, must be inconsistent with the innocence   of the accused. It must lead to irresistible conclusion not only that the crime charged had been committed , but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which is not supported by the facts is wrongful..."


In the case before me, the prosecution have proved beyond reasonable doubt that A1 (together with A2 who is at large), went to the premises in issue with the common purpose of stealing and did steal electrical cables as tendered in exhibit D. Air-condition pipes might have been removed but there is no evidence beyond reasonable doubt that these accused persons removed those pipes.


The explanation given by A1 is not consistent with innocence. He has failed to raise a reasonable doubt as to his guilt in terms of sections 11(3) and 13(2) of N.R.C.D. 323. I find him guilty of the offences of conspiracy to steal and stealing of electrical cables. Accordingly, A1 is convicted on counts 1 and 2.



In passing sentence, I have adverted my mind to the fact that A1 has been on remand since 8th April, 2014. This was after he had been rearrested and his surety had withdrawn and he could not find another surety. He is a university student of about 21 years. It is true that he has committed a second degree felony but of what benefit will his continuous incarceration be for society? He has been behind bars, secluded from free men, for over twelve months. The conditions at the remand prison cells alone must be deterrent enough. I believe he has since leant his lesson such that when he gains his freedom, he will pick up the pieces and turn over a new leaf. The exhibits retrieved from the crime scene which were tendered as exhibit D are not commensurate with the value put on them by the prosecution. There are no aggravating factors in this case. Besides, the complainant is said to have received an amount of GH¢3,000.00 from the convict's father.


From the foregoing, the accused person is sentenced to a fine of 50 penalty units on each count or in default 1 day imprisonment without hard labour. The sentences are to run concurrently.


The exhibits retrieved from the scene of crime are to be returned to the complainant.