IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
STEPHEN ANDERSON - (Plaintiff)
THE REPUBLIC - (Defendant)
DATE: 26TH JANUARY, 2016
SUIT NO: D15/177/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
EMMANUEL ABOAGYE FOR APPELLANT
EMMANUEL LAWRENCE OTOO-BOISON FOR REPUBLIC
The Appellant herein, Stephen Anderson alias Fanti was arraigned with two other convicts before the Circuit Court, Kumasi on the following Charges:
STATEMENT OF OFFENCE:
Conspiracy to commit Robbery contrary to section 23(1) and 149(1) of Criminal Offences Act, 1960 (Act 29).
PARTICULARS OF OFFENCE
ABU MOHAMMED, 2. MAXWELL ACQUAH, 3. STEPHEN ANDERSON, on or about the 13th day of August 2012, at Ampayo in the Ashnati Region and within the jurisdiction of this court, with the use of guns acted together with a common purpose of stealing Michael Osei Bio's Iphone, a Samsung mobile phone, a Sony Ericson mobile phone, a laptop, seven wrist watches, a decoder, belts, clothes and cash amounts of $ 1000 and GH¢50.
STATEMENT OF OFFENCE:
Robbery contrary to section 149(1) of Criminal Offences Act, 1960 ((Act 29).
PARTICULARS OF OFFENCE:
1. ABU MOHAMMED, 2. MAXWELL ACQUAH, 3. STEPHEN ANDERSON, on or about the 13th day of August 2012, at Ampayo in the Ashnati Region and within the jurisdiction of this court, did attack Michael Osei Bio and with the use of guns stole his Iphone, a Blackberry touch phone, a Samsung mobile phone, a Sony Ericson mobile phone, a laptop, seven wrist watches, a decoder, belts, clothes and cash amounts of $ 1000 and GH¢50.
The complainant, a businessman, was attacked at about 1:00am on 13/08/2012 by the appellant and two others at his residence. At gun point, he was robbed of the items listed on the charge sheet. Upon a complaint lodged by the victim, coupled with further police investigations , the three persons were arrested, tried, convicted and sentenced to 40 years imprisonment on each count to run concurrently.
Dissatisfied with the conviction and sentence, the Appellant herein brought the instant appeal.
GROUNDS OF APPEAL
The judge erred when he placed the burden of proof of innocence on the accused.
The judge erred in relying heavily on the evidence of a purported witness in convicting the accused
The Honourable Judge erred when he depended on inadequate evidence in passing sentence on the accused.
The sentence of 40 years I.H.L. is very harsh and excessive.
The conviction cannot be supported by the evidence on record.
SUBMISSIONS BY COUNSEL FOR THE APPELLANT.
Counsel failed to argue the first and second grounds of appeal and he is deemed to have abandoned them. He however made extensive submissions in respect of the fifth (or additional ground), namely, the conviction cannot be supported by evidence on record.
First, counsel submitted that the prosecution failed to prove the guilt of A3 (now Appellant), beyond all reasonable doubt as required by law.
Counsel referred to page 5 of the record of proceedings where , according to PW1, he travelled to China on 15/08/2012 after the robbery incident on 13/08/2012. In Counsel's view, PW1 returned to the jurisdiction on 15/02/2013, and through technology installed on his phone in China, the accused persons were arrested. Yet, the record shows that the Appellant and 2 others had been arrested earlier and indeed, exhibit E shows that the Appellant submitted his investigation cautioned statement to the police on 22/11/12.
Arguing further, Counsel stressed that the evidence of PW1 on the arrest of the Appellant and others cannot be reconciled with other pieces of evidence presented by the prosecution, particularly, the period of arrest and the technology which aided the arrest. He invited the Court to take judicial notice of the challenges in identifying locations in Ghana because of poor house addresses. Yet, PW1 told the court that whilst in China, a technology installed on his Iphone caused a house at Breman, Kumasi, together with the house number to pop up.
Continuing, Counsel argued that granted that such a technology even existed, the Iphone which was traced to a house at Breman was not, and could not have been the same as the BlackBerry touch Phone which PW2 claimed he bought from A1 and A2. He again pointed out that whereas PW1 told the court the tracking device was installed on the IPhone, PW3 said it was installed on the Blackberry touch phone.
I am of the opinion that the inconsistency in the description of phones with tracking device given by PW1 and PW3 alone was not sufficient to discredit their evidence. Both phones were listed as items stolen by the gang that robbed PW1. I also take judicial notice of the fact that Iphones and Blackberry Touch phones can have tracking devices installed on them. In the case at hand, the police went ahead to tender the Blackberry phone which was retrieved with the assistance of the tracking device remotely installed on the said phone. The evidence of PW3 shows that the said phone was retrieved from a house at Breman and traced to PW2 as the seller which he did not dispute, but said it was A1 and A2 who sold same to him and that A3 also sold three wrist watches and a laptop to him at a different time.
A3 did not object to the tendering of the wrist watches (exhibits B series) which the evidence shows he sold to PW2. Again, at page 17 of the record of proceedings, A3 did not challenge the evidence of PW3 linking him to the sale of the said wrist watches and a laptop to PW2.
It can also be gathered from page 12 of the record of proceedings that A3 could not discredit the evidence of PW2 linking him to the stolen watches during cross-examination. This is what transpired:
Q. I do not know you?
A. I know you.
Q. How come you know me?
A. You sold three wrist watches to me.
Q. Where did i sell same to you?
Q. I know nothing about the case?
A. You sold the items to me.
On the identification of A3, Counsel for the Appellant argued that A3 was nowhere near the crime scene and that it was the duty of the court and prosecution to draw his attention to the fact that a defence of Alibi was open to him because A3 is illiterate and had no legal representation. He also added that it was impossible for PW1 to have identified the voice of A3 after a period of six months.
A3 gave a rather terse investigation cautioned statement to the police on 22/11/2012 in the following words:
I am a driver's mate resident at Skoai near Atwima Akropong but currently stay with a friend at Asafo market. I do not know anything about what the police are alleging. Moreover, i have never sold any Ipod phone to suspect David Ayabu.
I do not think the learned trial judge can be faulted for not requesting A3 to file any notice of or give particulars of Alibi. This is because even though A3 flatly denied the charges, the prosecution was able to link him to the stealing of the items in issue from PW1 through the use of force. I do not think in the circumstances of this case, the defence of Alibi was open to A3.
The Learned trial judge adequately considered the law on conspiracy and robbery under sections 23(1) and 149 (1) of Act 29. Counsel for the Appellant did the same in his written submissions and I do not intend to belabour that point.
In the instant case, the Complainant said A3 uttered some words and he took a mental notice of his voice such that when A3 was subsequently arrested, he was able to identify him through his voice. The trial judge had the opportunity to observe these witnesses at first hand and he believed the evidence of the complainant (PW1).
It is not out of place for a person with a unique voice to be always identified when heard. In the circumstance, I cannot rely on the bare arguments of Counsel for the Appellant that it was impossible for PW1 to identify A3 through his voice six months after the robbery incident to overturn the finding of the trial Judge on that fact. Those arguments are thus flawed.
From the totality of the evidence of PW1,PW2 and PW3 contained in pages 2 to 22 of the record of proceedings, the trial judge's finding and conclusion that A3 agreed with A1 and A2 and acted together to commit the crime of Robbery can be adequately supported. Put differently, the conviction on the conspiracy charge against A3 is adequately supported by the evidence on record.
Be that as it may, it can be reasonably inferred from the evidence of PW1 that A3 was not in possession of any gun and he was not the person who uttered the threatening words to put him in fear of imminent harm or danger. A3 merely kept watch whilst the robbery took place and absconded with his gang after the incident. That being the case, A3 could not have been convicted and sentenced for the actual robbery.
For the above reasons, I will set aside the conviction and sentence of A3 in respect of the Robbery Charge in count 2. However, I affirm the conviction of A3 in respect of the charge of conspiracy to commit robbery.
THE SENTENCE IS HARSH AND EXCESSIVE.
In sum, the arguments of Counsel are that the Appellant was a minor at the time of his arrest and taking into consideration his extreme youth, the trial judge ought to have dealt leniently with him. He cited and relied on the case of Torto v The Republic ( 1971) 1 GLR 342 at 347 where the Supreme Court took into consideration the extreme youth of the offender and gravity of the offence and reduced his sentence of manslaughter to 4 years.
I have taken a close look at the charge sheet which appears on page 1 of the record of proceedings. The ages of the accused persons were not indicated thereon. But, A3's age as given on exhibit E is 18 years. In that light, the trial judge could not have dealt with him as a minor.
That notwithstanding, his youthful age and the absence of any past record of conviction for a similar offence should have operated on the mind of the trial judge in passing sentence.
No useful purpose will be served in keeping an 18 year old boy in prison for 40 years.
Section 24 of Act 29 provides for the punishment for the offence of conspiracy. It reads:
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.
It flows from the above that where the substantive offence is actually committed, each of the co-conspirators is to be punished as if he had actually committed the offence. The minimum punishment for the offence of robbery where no death occurs is 10 years imprisonment with hard labour.
Having considered the extreme youth of the Appellant, the absence of a record of past conviction and all the circumstances of this case, I will reduce his sentence of 40 years IHL on the conspiracy charge to 10 years imprisonment with hard labour.
Conviction on Count 1 affirmed. Sentence of 40 years IHL is reduced to 10 years imprisonment with hard labour.
Appeal against conviction and sentence on Count 2 allowed.
Before I sign off, I wish to state that the Republic was duly served with the notice of appeal and record of proceedings but failed to contest the appeal.