IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
RICHARD NORVOR - (Appellant)
THE REPUBLIC - (Prosecution)
DATE: 28 TH MAY, 2018
SUIT NO: F22/23/18
JUDGES: (SGD) N. C. A. AGBEVOR JUSTICE OF THE APPEAL COURT.
MR. ADATSI AND MS. AMEKE FOR PROSECUTION
MR. KPORHA FOR APPELLANT
The Appellant Richard Norvor was charged with:
ROBBERY - contrary to Section 149 of the Criminal Offences Act 1960 (Act 29) as amended by Act 646 of 2003 and
ROBBERY - contrary to Section 149 of the Criminal Offences Act 1960 (Act 29) as amended by Act 646 of 2003.
The Accused was tried by the Circuit Court, Ho convicted and sentenced to 22 years on each count to run concurrently.
Dissatisfied with the conviction and sentences Accused has since lodged the instant appeal. The grounds upon which the appeal is filed are:
The conviction and sentence are wrong in law.
The other grounds may be filed upon the receipt of the record of proceedings.
The prosecution opposed this appeal. The facts upon which the Appellant was tried and convicted are on the 29th day of November, 2016 at about 9:30 p.m. the Complainants both nurses closed from work and were going home form the Regional Hospital through a bush path behind the Volta Regional Hospital leading to the Medical Village.
On their way, a young man ordered them to stop and to surrender their possessions to him else he will shoot them. The attacker removed something like a hammer from his pocket and hit Emmanuel the male in this case on his forehead and took his Samsung Galaxy A9 Mobile phone valued at GH¢1750.00 and cash of GH¢1,000.00. The attacker then attacked Victoria caused harm to her and took her Samsung Galaxy A9 phone also valued at GH¢1,750.00.
The Complainants managed to run from the scene into the Regional Hospital where they were admitted and treated. The matter was reported to police and during interrogation the victims told police that they can identify their attacker. On the 29th January, 2017 at about 10:40 a.m. 1st Complainant went to the Emergency Unit of the Hospital and saw the Accused receiving treatment he identified him as their attacker and quickly called and informed the police. The police went to the hospital where the 1st Complainant identified the accused to the police as - their attacker. Accused was arrested and charged with the two counts of the offence.
The Accused pleaded not guilty and was tried, convicted and sentenced.
In this appeal, Counsel for Appellant raised what he stated was a “non-jurisdictional error" by the Circuit Court when it heard and determined a robber case, which was in violation of Section 2(4) of Act 30 which provides -
“(4) subject to the limitations on the jurisdiction of the Court.
a). The High Court or a Circuit Court is the venue for a trial on indictment.
b). The High Court, a Circuit Court or a Court of summary jurisdiction is the venue for a summary trial.
Then Section 149 of Act 29 states:
“149 – A person who commits robbery commits a first degree felony".
Counsel for Appellant contended that the facts presented by the prosecution did not state that the case docket was referred to the Attorney General's Office for an advise before the Accused was charged with the offence of robbery and tried as required by Section 2(2) of Act 30. This provision also states:
“2 An Offence shall be tried on indictment if:
a) It is punishable by death or it is an offence declared by an enactment to be a first degree felony: or
b) The enactment creating the offence provides that the mode of trial is on indictment.
Counsel submitted that since the trial on the facts was a nullity both the conviction and sentence cannot stand on a nullity proceeding. Citing BEHONE VRS. THE REPUBLIC (1979) GLR 112.
Counsel further stated that Act 646, the Criminal Code (Amendment) Act 2003 prescribed the sentence for robbery as follows:
“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 (10) years and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years”.
Counsel submits Section 149 of Act 29 is amended by Act 646 but robbery is still a first degree felony when the offence is committed by the use of an offensive weapon. Citing FRIMPONG alias OBOMAN VRS. THE REPUBLIC (2012) SCGLR 297. It is Counsel's submission that even though a circuit Court has jurisdiction to try robbery cases summarily, it can only do so upon the advice of the Attorney General being a first degree felony. Thus the forum to try robbery cases either in the Circuit or High Court is determinable by the Attorney General. The trial of this Accused person without the advice from the law office was a nullity by virtue of the provisions of Section 2(2) of Act 30 and Act 646.
Counsel for the Appellant also prayed this Court to consider the proof of identity of the Appellant, and submitted that the conviction of the Accused person was wrong in law. He contended that the instant case bothered on the identity of the Appellant which the evidence led has to prove the identity of the Accused who committed the offence. Citing RAZAK YAMOAH VRS THE REPUBLIC (2012) 2 SCGLR 750 that a proven case of mistaken identity is a good ground for reversing a conviction. Counsel also prayed this Court to consider the TURNBULL GUIDEUNES by Lord Widgery C. J. in the case REPUBLIC VRS. TURNBULL (1977) QB 224 CA at. pages 228-30 and Ofori Boateng JA in his book “The Ghana Law of Evidence” 2nd edition at page 53 where the learned Judge stated:-,
“.............before I consider the ingredients to be proved and determine whether they have been proved beyond reasonable doubt or not, I will like to consider one important issue. And that issue is the identity of the Accused person. Accused throughout his defence to the charges leveled against him and even in his investigation and charge statement raised the issue of his identity"
It is Counsel's further submission that the area where the robbery took place on 29/11/16was such that no proper identification of the attacker could be made referring to the Court witness's report to the Court on the visit to the locus by the Court at page 30 of the record of appeal. Counsel in support of his contention also referred to the case of REPUBLIC VRS. JOHNSON (1995) 2 CR Appeal Rev 4 that;
"when it comes to the identification of the Accused person, the hallmark evidence should go beyond mere co-incidence to link the accused with the crime charged”.
Counsel distinguished this case from the case ADU BUAHENE VRS. THE REPUBLIC (1972) GLR 70 which held that;
“when the identity of an Accused person is in issue or is in doubt, there can be no better proof of his identity than the evidence of a witness who swears to have seen the Accused person committing the offence”.
The prosecution on its part stated that the Appellant's case was that the conviction and sentence were wrong in law and that the trial was a nullity because it was based on a non-jurisdictional error that is the trial of the offence committed with the use of offensive weapon was without the advice of the Attorney General Contrary to Section 2(4) of Act 30. The prosecution Contends that this view is erroneous and misleading. It is their case that the Attorney General has expressly authorized the police under column 1 of the schedule to the Public Prosecutors Instrument 1976 (614) to prosecute criminal causes in the District or Circuit Courts. See Section 56 of Act 30 and the Court of Appeal in ISSAH VRS. THE REPUBLIC (1999/2000) 2 GLR 45.
The prosecution also states that the Appellant disagreed with the trial Judge on the proof of his identity citing the case of IBRAHIM RAZAK & ANOR. VRS. THE REPUBLIC (2012) SSCGLR 750. The Appellant is said to have misunderstood this authority which referred to “Phipson on Evidence” (10th ed) p 170 para 138. The prosecution referred to ratio in the ADU BUAHENE VRS. THE REPUBLIC. Also on alibi, the trial Court disbelieved the plea of the accused and rejected it. See the case BEDIAKO VRS. THE STATE (1963) 1 GLR 46 S.C.
The instant appeal is premised on two grounds one on a legal fact the other on identification of Accused.
Appellant submits that the conviction and sentence are wrong in law.
Counsel submits an attack on the mode of trial i.e. that on the charge of robbery (with offensive weapon) the advice of the Attorney General was not obtained contrary to Section 2(4) of Act 30 and 149 of Act 29 when the offence was charged under Section 2(2) of Act 30.
Section 2(4) of Act 30 provides:
A trial on indictment shall be by the High Court or a Circuit Court.
A summary trial shall be by a Court of summary jurisdiction or by a High Court of summary jurisdiction or by a High Court or Circuit Court.
Section 149 of Act 29 as amended provides;
"a person who commits robbery commits a first degree felony”.
Counsel also submits that Act 646 stipulates:
“Whoever commits robbery in 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 (10) years and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years.
What Counsel for Appellant has omitted to state is the provision under which his objection relates that is Section 149(2) which provides:
“(2) For the purposes of Subsection (1) the Attorney - General shall in all cases determine whether the offence shall be tried summarily or on indictment. The Courts have avoided affirmation if this provision in R VRS. AIYEOLA 1948 12(WACA) 324 no consent was obtained at the preliminary enquiry the advice of the Attorney General though the Attorney General had filed the indictment for the prosecution. The Court held that the proceedings were instituted when the case was brought before the magistrate for the preliminary enquiry and that there being no consent of law officer at that time all that followed was a nullity. Failure to obtain the consent of the Attorney General before the institution of the proceedings is not the same as not putting the consent in evidence. The AIYEOLA case is a trial on indictment.
In R VRS. VAL-VANNIS (1949) 12 WACA 414 the same West African Court of Appeal held that to take on appeal the point that the Attorney General's consent was not formally proved at the trial was a pure formality. The consent had not been made part of the record of appeal. The objection was summarily disposed of by the Court because no objection had been raised by the Appellant at the trial. In HANSEN VRS. C.O. P (1963) 2 GLR the Supreme Court held that whether a trial is on indictment or a summary trial the lodging of the Attorney General's consent with the Court is a necessary pre condition of the validity of the trial. The consent to prosecute must be clear and unequivocal.
SECTION 31 (2) of the Courts Act, 1993 it is provided that:
“31(2) The Appellant Court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted on that charge or indictment.
In my opinion there is sufficient evidence on record to warrant the conviction of the Accused even in midst of a legal technicality as set out in Section 31(2) of Act 459. I. accordingly dismiss that ground of appeal.
The Appellant in his second ground of appeal claims that he is not the person who committed the offence. The law is clear that it is the burden of the prosecution to prove beyond reasonable doubt that it is the Appellant who committed the robbery. See RAZAK YAMOAH VRS THE REPUBLIC (2012) 2 SCGLR 750. It is Counsels submission that the Complainants' statements to police on the identity of the Accused was not in evidence for the Court to ascertain what description the Complainants state of Accused. Also Counsel submitted that the lighting at the scene of the crime was hampered by the distance of light and also the existence of a mango tree where the light was to shine through to enable the Complainant make a proper identification of the Accused.
In the RAZAK YAMOAH case the Supreme Court tressed the need of a Judge to guide himself by considering the factors as to light at the time of the observation and the crime and the description of the Accused given to police. The investigator agrees that “yes there was no light pole nearer to the scene apart from the one at the premises of the Regional Hospital”. Also the investigator stated in his cross examination that the light pole was about 150 meters away" from the crime scene and agrees that the light could not shine at the crime scene to enable one identify a person.
I have considered the guidelines on the need to prove the identity of an Accused and I have come to the conclusion that the Accused can be acquitted on the doubts in proof of his identity. Accordingly, Accused is acquitted and discharged.