IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
URMAR ABDUL WADU & ORS AT LARGE
DATE: 5TH MAY, 2015
CASE NO: 1105/14
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
The accused in this case is standing trial for two offences under the Criminal Offences Act, 1960, Act 29, namely: I) Conspiracy to commit crime to wit robbery and robbery, contrary to sections 23(1) and 149 of the Act. Three others whose names appear on the charge sheet are said to be at large. To each of the three counts on the charge sheet, Accused pleaded not guilty, necessitating the instant trial.
A summary of the facts leading to the instant case are that the Accused together with others now at large attacked and robbed the complainants herein with sharp knives and made away with their cash and mobile phones. With the intervention of some volunteers, Accused was arrested at a notorious drug base at Atonsu. The 2nd complainant's bag containing an apron and a purse were retrieved from A1.
Under our laws, the offences of conspiracy and robbery are defined under section 23(1) and 150 of Act 29 in the following manner:
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 previous 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 ingredients of the offences which the prosecution must prove beyond reasonable doubt under sections 11(2) and 13(1) of the Evidence Act, 1975 N.R.C.D. 323 can be gleaned for the above quoted sections of the law. In respect of the conspiracy charge, there must be an agreement or common purpose to commit the act in issue. It is immaterial whether the act itself was actually committed or not. As regards the robbery charge, the requisite ingredients are: the use of force threat of criminal harm or causing harm with or without an offensive weapon to steal a person's property.
Three witnesses testified for the prosecution in this case. PW1, the first complainant herein, testified that at about 5:30am on 24/05/2014, he and his girlfriend, The second complainant were attacked at Atonsu S-line by a group of knife- wielding boys, including A1.One of those boys collected the second complainant's bag which contained an amount of GHS 300.00 and one of the accused persons slapped her. PW1 further told the court that these attackers collected their mobile phones as well. Continuing, PW1 said he rushed home to take money for second complainant to use for her transportation and whilst returning, he saw four men at the S-line so he called some boys from that area and narrated his ordeal to them. They escorted him to the base of the accused persons and even though many people were present, PW1 said he could only identify A1. A1 showed them where the bag was and its contents had been emptied. From there, the witness said A1 led them to search for his master but he could not be traced.
PW2, Akwasi Tawiah Bright is the Atonsu S-Line resident who escorted PW1 to the area where A1 was found. According to him, A1 mentioned the name of another boy who took part in the act and who had taken the items away.PW2 said A1 took them round for four hours but failed to locate his so called accomplice. Later, PW2 said A1 told him two boys who were seen at the base where he was arrested took part in the act. In cross-examination, A1 asked PW2 whether he saw any knife on him. PW2 answered thus"
A. No. We asked you whether you knew PW1. You said yes and that you were "keeping the gate" whilst the other three robbed him.
PW2 explained that A1 said he was looking out for the other three who did the act.
PW3 is the detective who investigated the case. He visited the crime scene. He told the court that A1 and PW1 described how the robbery took place. He received instructions to charge A1 and the others at large . And having done so, A1 volunteered statements to him. The investigation and charge cautioned statements of A1 and the bag belonging to the 2nd Complainant which was retrieved were tendered in evidence as exhibits A, B and C.
A1 in cross-examination sought to distance himself from the alleged robbery. However, PW1 maintained that he was one of the people who robbed him at knife point. PW2 and PW3 also emphasized that A1 admitted before them that he attacked PW1 with a knife. In the words of PW3, A1 even described how he attacked PW1.
In the investigation cautioned statement of A1 (exhibit B) which A1 also relied on in his charge cautioned statement (exhibit C), he stated thus:
"... I am a machine operator at Anloga staying at Oforikrom. On 23-05-14 at about 9:30am I accompanied suspects Tijani, Awilo and Arsenal to a wake keeping at Atonsu. On the next day 24-05-14 at about 4:00am suspect Tijani asked the three suspects to follow him to a location at Atonsu S-Line near a bridge which I followed and stood at a wall. I was not of myself. I saw suspect Tijani threatening the complainant with his girl friend with a sharp knife while Suspect Awilo Snatched a hand bag and took to his heels accompanied by suspects which I also followed up to a location. I was later arrested by one Fifty accompanied by the complainant took me to look for my accomplices but not able to get them and I was brought to the Asokwa Police Station for my offence..."
When the evidence of PW1 is read together with exhibits B and C, it can be reasonably inferred that even though A1 was among the knife wielding men who agreed to follow Tijani to the spot where the robbery took place, he was not the one who actually snatched the 2nd Complainant's bag and their phones. Indeed, in PW1's own evidence, he said one of the armed boys collected the 2nd Complainant's bag and another slapped him. He could not pin point A1 as the one who did any of these acts even though he was present and also held a knife.
The evidence of A1 in court is inconsistent with his statement given to the police in exhibits B and C. He gave evidence to the effect that on the fateful day, he was on his way to work when he met three men and decided to walk with them since they were all moving towards the same direction. A1 said those three men slowed down and he was ahead of them . Then he heard people shouting "thief, thief" only to realize that the three men were being chased. When he inquired, the three men told him a gentleman was coming towards them and so they attacked him and collected his money. Later, A1 said PW1 and PW2 came to him; PW1 identified him as one of the alleged robbers and he led them to look for Tijani ( A2) but could not find him. Under cross-examination, A1 admitted that on the day in question, he was found with the three other suspects.
Under section 80 of the Evidence Act, NRCD 323, matters which the court may take into consideration in determining the credibility of a witness include a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial. The inconsistencies in exhibits B , C and the evidence of A1 in court lead to the irresistible conclusion that he is not a credible person and his evidence is to be taken with a pinch of salt.
All that the prosecution must do to sustain the conspiracy charge is to establish that A1 and the others at large agreed to commit the offence of robbery and that they carried out their agreement..
In R v Mulcahy (1868) L.R. 3H. 306 HL, Willes J said at page 317 thus:
“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means..." see also State v Otchere (1963) 2 GLR 463 per Korsah CJ.
Again, in Azametsi & Ors v The Republic ( 1974) 1 GLR 228 CA, the 1st Appellant was the head of a fishing group that decided to offer human sacrifice to the sea- god for a bumper catch. A member of the group was subsequently killed in the house of the 1st Appellant. The killing was witnessed by the 1st appellant and his wife. Subsequently, the 1st Appellant together with the other Appellants made arrangements for the disposal of the body. In an appeal against the 1st Appellant's conviction for conspiracy to commit murder, the court held that there was enough evidence of a common purpose and therefore he was guilty of the offence of conspiracy.
From the evidence adduced by the prosecution, PW1 and one other complainant were robbed on 24/05/2014. A1 has been identified as acting together with other persons who actually collected the property of the victims. By the evidence, he played the "gate keeper" who looked out for the others whilst they robbed their victims. The intention of A1 to commit a crime can be gathered from his going to the bridge at Atonsu S- Line at dawn with the other accused persons now at large. They agreed and moved to the bridge area with a common purpose i.e. to rob unsuspecting victims. I find from the evidence of the prosecution witnesses that A1 and the others carried their agreement into effect when some members of the gang attacked the complainants in this case.
In my opinion, the prosecution have established beyond reasonable doubt that A1 and others at large agreed and acted together to rob the complainants of their phones, money and bag respectively. It is immaterial that the persons he conspired with are now on the run. On the other hand, the charge of robbery against A1 has not been proved to the requisite degree under sections 11(2) and 13(1) of NRCD 323. Accordingly, A1 is convicted for conspiracy to commit robbery contrary to section 23(1) and 149 of the Criminal Offences Act , Act 29. He is however acquitted of the robbery charge in count two.
The punishment for conspiracy has been provided for under section 24(1) of Act 29. It states:
" Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence."
In the instant case, the actual robbery took place. A1 was present when it took place. He was also holding a knife but was not the person who snatched the complainants' property. PW1 and one other are the victims. The punishment for robbery is embodied in section 149 of Act 29 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."
The factors a court would consider in determining the length of sentence are stated in Kwashie v The Republic  1 GLR 488, CA as follows:
‘(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally;(5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. Thus a judge in passing sentence may consider the offence and the offender as well as the interest of society.”
These considerations are also found in the Ghana Sentencing Guidelines and I have adverted my mind to the specific provisions on passing sentences in Robbery cases.
In the instant case, apart from threatening the victims with knives, no excessive force was used; none of the victims suffered any injury and the accused person (now convicted) was 19 years at the time of his arrest in May, 2014. There is no evidence of his prior conviction for a similar offence. These are mitigating factors. Under the circumstance, I sentence him to 10 years imprisonment with hard labour.