Republic Vrs Adamu and Another [2022] GHACC 166 (7 December 2022)

1 IN THE CIRCUIT COURT HELD AT MPRAESO WEDNESDAY 7TH DAY OF DECEMBER 2022 BEFORE HIS HONOUR STEPHEN KUMI ESQ, CIRCUIT JUDGE. C. C. NO. B1/15/2021. THE REPUBLIC V IDDRISU ADAMU AND ANOTHER. JUDGMENT: BACKGROUND The accused persons herein- Iddrisu Adamu and Ibrahim Issaka- have been charged with and arraigned before this court on some separate counts. Specifically, per the charge sheet, the two accused persons jointly face one count each of conspiracy to commit crime, to wit: robbery; contrary to sections 23 (1) and 149 of the Criminal Offences Act, 1960, Act 29; and robbery contrary to section 149 of Act 29/1960. Meanwhile, the accused persons upon their arraignment before this court, denied both charges against them by pleading not guilty to the said charges. Without doubt, the obvious legal effect of his pleas- which joined issues on all the counts with the prosecution - resulted in the prosecution assuming the burden of proving their guilt on the counts against them beyond reasonable doubt in a criminal proceedings of this form, nature and hue. This is in fidelity to the following Constitutional provision, which is Article 19 (2 ) ( c ) of the 1992 Constitution, which creates a presumption of innocence in favour of the Accused upon pleading not guilty; “Article (2) ( c ) A person charged with a criminal offence shall…. be presumed innocent until he is proved or has pleaded guilty”. BRIEF MATERIAL FACTS The brief material facts of this case as supplied by the prosecution and read to the court at the commencement of the trial may be stated as follows: The Complainant in this case is Alhaji Tahidu Abdulai, is a cattle farmer and resides at Nkawkaw, who has a kraal at Kwahu Tafo , off the Kwahu- Tafo Adawso road. He had employed the services of one Awudu Abdulai as herdsman at the kraal. The A1, Iddrisu Adamu, is a Fulani herdsman, a resident of Kpohadzi in the Volta Region; while the A2, Ibrahim Issaka, is also herdsman but a resident of Nketepa, which is within the jurisdiction of this court. The A1 previously lived and worked at Nsare village, near Abetifi and through cattle trading, got to know and became friends with the A2. The prosecution alleges that at about 12:00 noon on 15th October, 2017, while the alleged victim- Awudu Abdulai- was with about sixty the named accused persons together with some three others- and armed with guns and sticks, attacked him; with the A1 particularly beating up the victim with some sticks. In the process, a mask the A1 wore fell down, which enabled the victim to see the face of the A1. The prosecution further allege that the Accused persons put the victim down, as they drove the entire 60 cattle away from the kraal on gun point. The victim made efforts to find the accused persons but to no avail; based on which he called the Complainant to inform him about the development. Complainant in turn organized his brother and some others to the scene in addition to sending messages around to nearby communities to be on the lockout for the accused persons. The prosecution further alleges that at about the same time, the two accused persons rode on a royal sport motorbike with registration number M-16-AS-1866 to Ekye Amanfrom to Maame Krobo and then back to Ekye Amanfrom in order to convey the stolen cattle but the truck earmarked for that did not show up. It happened that on 16th October, 2017, at about 5:40am, the two accused persons while on their way from Adawso to join the other in the bushes were however arrested at Asuboni Odumase by some persons. A search revealed an SMG rifle which had been wrapped up in a mat on the carrier of the motorbike. It is instructive to add that while Sulley, Issaka and Mohammed- the alleged accomplices of the accused persons managed to escape- the Complainant and the search party found and retrieved about fifty two ( 52 ) of the cattle. Upon completion of police investigations, the accused persons herein were charged and arraigned before this court to answer to the above-mentioned charges. Both accused persons pleaded not guilty on the counts; thereby joining issues with the prosecution on the charges. In the following paragraphs, I will state and capture as much as I can the nature and substance of the evidence adduced by the prosecution in support of their case against the accused persons. CASE/EVIDENCE OF THE PROSECUTION: The prosecution called a number of witnesses in their bid or attempt to proving the guilt of the accused person. The first prosecution witness ( PW1 ) was Alhaji Tahiru Abdulai. He identified himself as a herdsman and doubles as the Complainant in this case. The other witnesses called by the prosecution are listed as follows: • Emmanuel; a resident of Agbadzida and a vulcanizer by trade as PW2. • Daniel Vasco Ahaletor, who resident of Asuboni Odumase as PW3 • Anthony Ablor, also of Asuboni Odumase as PW4. • Azumah Robert, a resident of Adawso-Kwahu as the PW5. • Detective Chief Inspector Francis Johnson, the police investigator, as PW6. Their relevant parts of their separate and cumulative pieces of evidence or testimonies would- where necessary- be referred to in the determination of the issues below. They testified per their filed witness statements. In the case of the police investigator, he also tendered into evidence the following documents or exhibits in support of the case of the prosecution: Exhibits A and A1 were the cautioned and charge statements of the A1 respectively; while Exhibits B and B1 were the cautioned and charge statements of the A2: Exhibits C and C1 comprised some two pictures of the two accused persons standing by the motorbike in question showing the mat and gun. In addition, Exhibits D and D1 were some pictures of the alleged crime scene; while Exhibit E was the witness statement of the alleged victim, Abdulai Awudu. At the close of the case of the prosecution, the court determined that the prosecution had, by their evidence, made out a prima facie case against the accused persons on all the counts warranting them to open their defence to avoid a ruling of the court on the issues against them. See section 174 of the Criminal Procedure Act, 1960, Act 30. CASE/EVIDENCE OF THE FIRST ACCUSED PERSON, IBRAHIM MOHAMMED. The accused persons in their separate sworn defence denied the offences against them. In the case of the A1, he identified himself as a resident of Donkorkrom and that he buys and sells cattle. He recalled that he was arrested by the police at a river bank. He was told that the cattle of a certain Alhaji Yahaya was missing. He stated that at the time of his arrest, nothing was found on him; adding that his statement was taken by the police some two days after his arrest and detention. In responding to the substantive offences, he told the court that he was not found with a gun; but that after his arrest by the police and while he was in detention, he was brought of the cells to stand in front of the police station, where he was asked to pose with the motorbike and gun for the pictures. He also denied robbing the victim in the case. His version was that on that day, he travelled from Donkorkrom and upon reaching Ekye Amanfrom, the ferry had left and thus had to join a boat to Adawso, and that while there, some group of Fulani people came to confront him and accused him of stealing their cattle, which he denied. He was however taken to the police station. He added that he was the only person arrested and taken to the police station by the said Fulani people. According to him, he does not know the A2 from anywhere until the day of his arrest. He also denied ownership of the motorbike. The A1 closed his defence without calling any witness. Meanwhile, in the case of the A2, his version was that he is a resident of Nketepa and that on the 15th day of October, 2017, he was involved in a motor accident and was at the Nkawkaw Roman Hospital from 4:30 pm of that day until he was discharged the following day of 16th October, 2017.. He went for his motorbike and set off for Nketepa. However, when he got to Adawso, he came across the A1 who stopped him and begged to convey him to Asuboni, a request he obliged. When they reached Asuboni, A1 went his way. He went to a nearby eatery to eat and while he was walking towards his motorbike, he was confronted and accosted by some three Fulani me, who asked him of his relationship with the A1, whom they suspected to have stolen their cattle. He was arrested and taken to the police station, where he was detained. He added that it was some two days after his detention when he gave his statement. The police investigator brought the gun in question to him, but he denied knowledge or ownership of it. He also stated for his defence that the gun in question belonged to a different Issaka whose name appeared in the cautioned statement of the A1. He was subsequently taken outside to stand by the motorbike and a picture of the scene was taken. His explanation that he had been discharged from the hospital that same day to the police investigator was dismissed. Just as in the case of the A1, the A2 also closed his defence without calling any witness. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW: Before I evaluate the evidence as adduced by both the prosecution and the two accused persons so as to determine if the prosecution succeeded to prove their guilt beyond reasonable doubt on the above- mentioned charges or counts, I have found it necessary to discuss in some reasonable detail the burden of proof that the prosecution assumes in this case. Ordinarily, in criminal proceedings, the received learning is that it is the prosecution- upon a plea of not guilty by an accused- that assumes the burden of proof, which they must establish beyond reasonable doubt. In the popular English case of Woolmington v DPP (1935) AC 462; where Lord Sankey (as he then was) held thus; “Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to…. the defence of insanity and subject also to any statutory exception….. No matter the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”. The above Common Law principle has enjoyed both statutory and case law blessings in Ghana. Under the statute, sections 11 ( 2 ) and 13 ( 2 ) of the Evidence Act, 1975, NRCD 323, state of the burden of proof on the prosecution as follows: “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 reasonable doubt.” “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 reasonable doubt.” It is also statutorily provided that; “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. See section 15 of the Evidence Act, 1975, NRCD 323. Similarly, in the case of Donkor v The State [1964] GLR 598, SC, it was held inter alia by the Supreme Court of Ghana that in criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused is generally on the prosecution or The Republic. But what does proof beyond reasonable doubt really mean? The answer would be found in the following authorities. Both local and foreign decisions would come in handy in that regard. In the case of Osei v The Republic [2009] 24 MLRG 203, C. A; it was held to endorse the established common law view that “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Court would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible, but not at all probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. See also the case of Miller v Minister of Pensions ( 1947) 2 ALL ER 372 at 373; per Denning J ( as he then was ). So that is the burden the prosecution assumes in the case. However, the law is generally that an accused person in a criminal trial does not assume any burden of proof. He has no duty to prove his innocence or disprove anything. At worst, an accused only has to lead evidence to raise a reasonable doubt as to his guilt. And even with that the standard is lower- on the balance of probabilities. See sections 11 ( 3 ) and 13 ( 2 ) of the NRCD 323 ( supra ). The above statutory provisions tie in with and are in undoubted fidelity to the requirement and duty of the courts to consider any explanations or defence that an accused gives and which favours his or her case on the contested issues. In the case of Attah v Commissioner of Police ( 1963 ) 2 GLR 460, SC, the judgment of the trial district court even though confirmed by the High Court, was however quashed on appeal to the Supreme Court because the judgment of the trial court failed to consider the defence fully in that it did not consider the accused statement on caution or even the evidence of his witnesses. This court at Mpraeso-Kwahu is thus minded not to repeat that mistake or error in this judgment in relation to the case or defence of the accused persons. Therefore in assessing or evaluating the evidence in this judgment, the Court would have to apply what is known as the three-tier test to each of the elements of a crime, which would involve the court giving full consideration to the defence of the two accused persons in terms of what they stated in their cautioned and charge statements to the police; as well as their sworn evidence-in-chief in court Reference is thus appropriately made to the case of The Republic v Francis Ike Uyanwune [2013] 58 GMJ 162, C. A, where it was held per Dennis Adjei J. A that; “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non-production of evidence and/ or non- persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted, and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three- tier test”. In order to satisfy the Constitutional, statutory and Common Law threshold of proof beyond reasonable doubt, the law is that “the prosecution has a duty to prove the essential ingredients of the offence with which the appellant (accused) and the others have been charged…” See the case of Frempong alias Iboman v The Republic [2012] 1 SCGLR 297, SC per Dotse JSC. In the same vein, in the case of Homenya v The Republic (1992) 2 GLR 305, Acquah J ( as he then was ), sitting at the High Court, Ho, held and reiterated the position of the law thus; “…the first and mandatory duty of a trial judge in a criminal trial is to examine the case of the prosecution so as to determine whether the prosecution had established all the essential ingredients of the charge leveled against the accused person…”. In expressing his opinion on the foregoing discussion on the various burdens of proof that prosecution and accused assume in the course of criminal proceedings/trials as is the case in the instant case, the erudite Dotse JSC, in the case of Richard Banousin v. The Republic; No. J3/2/2014, dated 18th March 2014, S. C. (Unreported); in his inimitably lucid fashion, held as follows, which I find applicable to the instate case mutatis mutandis; “It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases. A corollary to the above rule is based on the fact that an accused is presumed innocent until he is proven guilty in a court of law. This the prosecution can only do if they proffer enough evidence to convince the Judge or jury that the accused is guilty of the ingredients of the offence charged. The Prosecution has the burden to provide evidence to satisfy all the elements of the offence charged – in this case rape. The burden the prosecution has to prove is the accused person’s guilt, and this is proof beyond a reasonable doubt. This is the highest burden the law can impose and it is in contra distinction to the burden a plaintiff has in a civil case which is proof on a preponderance of the evidence. What “beyond a reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring innocence of the accused. Discharging this burden is a serious business and should not be taken lightly. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond a reasonable doubt, can thus be formulated thus:- “An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.” See article 19 (2) (c) of the Constitution, 1992 See cases like the following: 1. Frimpong @ Iboman v. Republic [2012] 1 SCGLR 297 2. Gligah&Anr. v. The Republic [2010] SCGLR 870 3. Amartey v. The State [1964] GLR 256 S. C 4. Darko v. The Republic [1968] GLR 203, especially holding 2 This presumption therefore places upon the prosecution the burden of proving accused/appellant guilty beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt”. As a necessary corollary to the above discussion- in terms of the need for and the bounden duty of the court or judge to do justice by taking a fair and holistic assessment of the evidence before them- in the case of Dabla v The Republic ( 1980 ) GLR 501, Taylor J ( as he then was ) held that in a criminal trial, there are generally three types of facts that may emerge at various stages of the proceedings. There are; a. The facts which the prosecution may give before the commencement of the actual trial, indicating the material they intend to prove by admissible evidence. b. The facts which the accused person, may, if he chooses, lead in evidence in his defence; and c. The facts which on the consideration of the respective facts of the prosecution and accused/defence mentioned above, the presiding judge or magistrate finds as representing in his opinion the actual facts ( emphasis mine ). My understanding of Taylor J ( as he then was ) in the Dabla v The Republic is that as a judge in criminal proceedings, I should not be fixated with and be swayed just based on the facts of the case given by the prosecution; and vice versa. But that to do justice, I should judiciously sift through thoroughly the competing facts and positions from the prosecution and the defence to arrive at the actual or even reasonably probable facts of the case before me. In fidelity to the above guidelines, in resolving the instant charges, I will accordingly discuss what the elements of the offences are and then determine whether on the evidence as adduced by the prosecution as well as on the competing facts, the respective charges have been established or proven against the accused persons. In doing that, the court has distilled from the whole of the evidence, the following as the main issues for determination in this judgment: 1. Whether or not the A1 conspired with the A2 to rob the victim of the cattle of the PW1. 2. Whether or not the two accused persons were the ones together with some other accomplices who robbed the victim of the cattle of the PW1. I need to indicate that just for the sake of convenience, I will resolve the issues 1 and 2 jointly or simultaneously as one as they are inextricably linked together and flow from the other; albeit while looking out for the distinctive or independent evidence in proof of the separate charges. COUNTS 1 TO 3. The offence of conspiracy is provided for under section 23 (1) of Act 29/1960 (supra) as amended by the Statute Law Review Commissioner per the Revised Edition Act, 1998, Act 562, as follows: “Where two or more persons agree to act together with a common purpose for or in 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”. See also the case of Republic v Augustina Abu and Others, (Unreported) Criminal Case No. ACC/15/2013; per Marful-Sau J. A, (as he then was). This definition is admittedly different from the old definition of conspiracy which was defined in section 23(1) of the old Criminal Code 1960 (Act 29) as follows: “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation each of them is guilty of conspiracy to commit or abet that crime as the case might be.” In the case of Francis Yirenkyi v The Republic, (Unreported) Criminal Appeal No. J3/7/2015, Dotse JSC held inter alia that the new formulation no doubt reinforces the view that conspiracy is an intentional conduct; observing that under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement. So that the mere acting together of two or more persons in a criminal enterprise is not enough to sustain conviction. Beyond that, there must be proof that the accused persons agreed to act together to commit the crime. In effect, the definitions of and positions on conspiracy based on previous decisions have failed to be good law. For example in the case of Commissioner of Police v Afari and Addo ( 1962 ) 1 GLR 483, it was held inter alia that law on conspiracy in Ghana was wider in scope and content than the English law on that subject; consisting not only in the criminal agreement between two minds but also acting together in furtherance of a common criminal objective. In simple terms, a court could convict and punish an accused person just on the evidence that he and some co-accused persons acted to commit a criminal offence. Suffice it to say that, evidence of prior or previous agreement by the accused persons to commit the offence was not required to be proved to obtain conviction. Therefore, in the case of State v Otchere and Others ( 1963 ) 2 GLR 463, the position of the law was that; “A person who joins or participates in the execution of a conspiracy which had been previously planned would be equally as guilty as the planners even though he did not take part in the formulation of the plan or did not know when or who originated the conspiracy…”. However, as has been stated above, there is a new formulation on the law of conspiracy in Ghana now. It is now an intentional conduct, and that there must be evidence that the accused persons had a prior agreement to commit the crime or offence. See the Francis Yirenkyi v The Republic case ( supra ). Therefore, the prosecution in order to prove the guilt of the two accused persons before the court on the allegation that they conspired to rob the victim of the cattle of the Complainant, would only succeed if there is evidence of not only that they acted together but more importantly evidence that prior to acting together, they had a prior agreement to steal. The prevailing position of the law is thus that a charge of conspiracy without proving that the accused persons involved agreed to act together to commit the offence shall fail. It is however not a defence for an accused person who is charged for conspiracy to state that he did not have prior or previous concert or deliberation with the other accused persons to commit the offence where there is evidence that they agreed to act together to commit the offence, even if just before the commission of the substantive offences. See Dennis Dominic Adjei: “Contemporary Criminal Law in Ghana” at page 89; as well as the case of The Republic v Kwame Amponsah and 6 Ors; Unreported; CC. No. FT/0066/2016; delivered on 18th April, 2019; per Asare-Botwe J. It is instructive to state also that even on the authorities that applied the old formulation of conspiracy- where they agreed or acted together to commit the substantive offence- the law still required separate and independent evidence of conspiracy which constituted and concerned with conspiracy from the main and actual substantive offence in question. In the case of The State v Agyekum and Amofa ( 1962 ) 1 GLR 442, Djabanor J ( as he then was ), in acquitting and discharging the accused persons on the conspiracy charge, quoted and applied the following dictum of Van Lare, Ag. CJ in the case of C. O. P v Dimbie ( 1959 ) GLR 202 @ 203 thus; “…. conspiracy to commit a criminal offence is by itself a criminal offence, whether the offence contemplated is or is not committed. It follows, therefore, that where there is a specific charge of conspiracy, that is to say in addition to the offence itself, there must be some evidence directed and confined to the facts which constitute or are concerned with the conspiracy…”. Meanwhile, to the offence of robbery, which is the sole substantive offence in this case. The offence of robbery under the Act 29/1960 ( supra ), is provided for or created under section 149. It reads as follows: “ A person who commits robbery commits a first degree felony: However, robbery is defined under the section 150 of Act 29/1960 (supra) as follows; “ A person who steals a thing commits robbery, a. If, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or b. If that person 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. In the case of Behome v The Republic (1979) GLR 112, Osei-Hwere J(as he then was) sitting at the High Court, Sunyani, held inter alia as follows to describe what robbery is; “One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing”. See also the case of R v Dawson (1977) 64 CAR 170, where it was held that when a person is charged with robbery, the sole question is whether he used force on any person in order to steal. I now proceed to address the two issues identified in the judgment. Now, the twin issues to be determined in this judgment is whether or not the prosecution succeeded to prove their case against the accused persons that they conspired to rob the victim and whether they succeeded in robbing the victim of the cattle of the PW1. In determining that, I will look at the various pieces of evidence as adduced by the prosecution witnesses and indeed on all the evidence before the court to determine that. Ultimately, I am thus to make a finding or decision whether or not the above crimes were committed by the accused persons or otherwise. That is in conformity with the duty a trial judge in a contested matter- such as this one- assumes to make findings of fact of primary facts in dispute based on the two versions of the story before it. See the case of Quaye v Mariamu ( 1961 ) GLR 93, SC; where it was held by the Supreme Court of Ghana as follows as to the duty of a trial judge in a contested matter like this one; “To make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only then that this court can properly found or the inference properly drawn or the law properly applied”. On the evidence before me, it appears that there are some different species of evidence adduced by the prosecution and indeed by the parties for that matter. It is a mixed bag of evidence essentially. For example, there is the direct evidence of the victim as contained in the Exhibit E, tendered into evidence without any objection through the police station ( PW6 ). There is also circumstantial evidence which was given mainly by the PW2 to the PW5. In addition, there are the statutory statements of the accused persons ( their respective cautioned and charge statements ). In terms of the Exhibit E, it was a statement that the alleged victim, Abdulai Awudu, had given to the police following the incident on 17th October, 2017. That being the case, it was in every form and hue, a hearsay evidence and thus generally inadmissible to prove the matters in dispute. What is hearsay evidence? Under Part VIII of the Evidence Act, definition of hearsay is given under section 116 (c) as follows: “(c) ‘hearsay evidence’ is evidence of a statement, other than a statement made by a witness while testifying in the action at the trial, offered to prove the truth of the matter stated”. Generally, hearsay evidence is inadmissible per section 117 of NRCD 323 thus: “Hearsay evidence is not admissible except as otherwise provided by this Decree or any other enactment or by agreement of the parties.” Nonetheless, the Exhibit E was admitted into evidence as an exception to the hearsay rule under section 118 ( 1 ) ( a ) and ( b ) of the NRCD 323. The court had been satisfied with the explanation by the learned State Attorney that the alleged victim could not be brought to come to court to testify in person, thereby bringing him within the meaning of “ unavailable witness” within the provision or intendment of section 116 ( e ) ( v ) of the NRCD 323. “Evidence of a hearsay statement is not made inadmissible by section 117 if— (a) the statement made by the declarant would be admissible had it been made while testifying in the action and would not itself be hearsay evidence, and (b) the declarant is: (i) unavailable as a witness…” As I have said above, besides the Exhibit E satisfying the requirements of the NRCD 323, same was admitted into evidence without any objection from the learned Counsel of the accused persons. In the Exhibit E, the Abdulai Awudu, amongst others stated that he was attacked by some five persons who were masked and armed with guns and sticks while he was with the cattle. He stated that he saw the A1, Iddrisu Adamu, as one of them. He was able to see the face of the A1 because while he had been put on the ground and the A1 was beating him with the sticks, his mask fell down, which enabled him to identify the A1. The law on such a situation is this: It is that; “where the identity of an accused is in issue, there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged”. See the case of Adu Boahene v The Republic (1972 ) 1 GLR 70 at 74. There were also the cautioned and charge statements of the two accused persons, in which they had admitted to have committed the above-mentioned offences. In the cautioned statement of the A1, he had amongst others admitted agreeing with Sulley, Issaka and Mohammed to come to the crime scene to catch or steal some cattle; and also admitted to have called the A2, Ibrahim Issaka, on phone to come and assist him, who came on a motorbike. They had seen the other accomplices moved the cattle to the bushes where they went to give some food to. After the truck from Kumasi earmarked to convey the cows to failed to turn up, they joined a boat from Ekye Amanfrom to Adawso only to be arrested at Asuboni. He admitted having possession of the gun with it wrapped to the motorbike, albeit that the gun belonged to the other Issaka, and that they were to give the gun to the driver of the truck who would in turn deliver same to the said Issaka. For the A2, he admitted knowing the A1, being called by the A1 to meet him at Adawso. The A1 had told him he and some other accomplices were coming to the area for the sole purpose of stealing some cattle which did not belong to them. He rode to the area on his motorbike; and admitted meeting the A1 and the other accomplices and saw one of the accomplices come with something wrapped in a mat which the A1 later attacked to the carrier of his motorbike. He admitted being confronted by some persons at Asuboni; and that they were arrested after they tried to run away after being questioned about the item attached to the carrier of his motorbike, only for it to be unwrapped to reveal the gun. The cautioned and charge statements of the accused persons were admitted into evidence without any objection by the accused persons through their Counsel. Based on the above, the authorities would show that the accused persons, just based on his statements in the Exhibits A and A1 and B and B1 respectively have relieved the prosecution of its duty to prove the charges against them. A legal effect or consequence flows from that: In the case of Agogrobisah v The Republic ( 1995-96 ) GLR 557, Acquah JA ( as he then was ), held inter alia thus; “I concede that a free and voluntary confession of guilt by an Accused, whether in court or outside the courtroom, if it is direct and positive, and is duly made and satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence…”. See also the case of Ayobi v The Republic ( 1992-93 ) 2 GBR 769 at 777, CA, per Amuah JA ( as he then was). The explanation given in the commentary to section 11 ( 4 ) of the Evidence Act in respect of the burden of producing evidence appears to entitle the prosecution to benefit from the statements of the two accused persons in discharging the legal burden of proving the guilt of the accused persons beyond reasonable doubt; “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps the test of sufficiency. It is for this reason that the phrase “ on all the evidence” is included in each of the tests of sufficiency”. In the case of Tiduri v The Republic ( 1991 ) 1 GLR 209, it was held inter alia that the trial magistrate was right in placing reliance on the cautioned statement of the accused and he could even have convicted him solely on the statement as the statement which was admissible was tendered as part of the prosecution’s case without any objection. Nonetheless, it has been held in the case of State v Owusu and Another ( 1967 ) GLR 114, that an extra judicial confession by an accused that a crime had been committed by him did not necessarily absolve the prosecution of its duty to establish that the crime had actually been committed by the accused and that it was desirable for the prosecution to have, outside of the confession statement, be it slight, circumstances which made it probable that the confession was true. Ostensibly mindful of that, the prosecution adduced some circumstantial evidence to support the probability of the commission of the offences by the accused persons. Specifically, from the evidence of the PW2 to the PW5, it is clear that they did not see the two accused persons commit the above offences directly. Rather the sum of their separate evidence was that on the following morning after the alleged robbery- that is on 16th October, 2017- they had seen the two accused persons at Asuboni Odumase by a motorbike and upon confrontation of the accused persons and examination of the motorbike, they had seen a gun wrapped in a mat attached to the carrier of the said motorbike. The accused persons had attempted to run away but they were pursued and arrested by the youth of the town. It may be asked what is circumstantial evidence? In the case of R v Taylor ( 1928 ) 21 CR. App. R. 20 @ 21, Lord Hewart LCJ (as he then was) explained the nature of circumstantial evidence as follows: “It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best. It is evidence of the surrounding circumstances which by undersigned co-incidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial ”. See the also the case of Duah v The Republic [1987-88] 1GLR 343; A typical example of circumstantial evidence is afforded by a statement of a witness at a murder trial that he saw the accused carrying a bloodstained knife at the door of the house of the victim. On even the case of the existence of the accused’s fingerprints at the scene of the crime or on the murder weapon. Despite the importance of circumstantial evidence in criminal proceedings, it is not without its own frailties and limitations. In the case of State v. Anane Fiadzo [1961] GLR 416 at 417, Sarkodee-Adoo, JSC (as he then was ) delivering the judgment of the Supreme Court said: “Presumptive or circumstantial evidence is quite usual, as it is rare to prove an offence by evidence of eye-witnesses, and inferences from the facts proved may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion…” From the above circumstantial evidence of the prosecution, the court found them tellingly significant for the court to consider in arriving at the decision that there was prima facie case against the accused persons. In that, the fact that the victim identified the A1 as one of the assailants or robbers who attacked him with guns and sticks on the afternoon of 15th October, 2017, at Kwahu Tafo and for the two accused persons to be found and arrested around the area with a motorbike with a gun wrapped in a mat the following morning and their attempt to run away before they were arrested served as a reasonable basis to infer the guilt the guilt of the accused persons. In the case of Dogbe v The Republic (1975 ) 1 GLR 118 ( holding 1 ), the court held as follows: “In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court….”. As I have said above, in all this, I had a bounden duty to have considered the defence or explanations of the accused persons even in the face of the above pieces of evidence that strongly linked them to the crimes in question: To assess if their respective explanations or defence were at least reasonably probable or reasonably true. See the case of Mahamadu Lagos v Commissioner of Police ( 1961 ) GLR 181, SC. Upon consideration of the said explanations of the accused persons, it is the judgment of the court that apart from them being not believable, they were also not reasonably true or reasonably probable. But why do I hold so? It is mainly because of the material inconsistencies in their explanations as to the events of 16th October, 2017. For the A1, he was confronted and accosted by some Fulani people who accused him of having stolen their cattle; after which they sent him to the police station. He emphasized that he was arrested alone and taken to the police station alone and that it was at the police station that he came across or met the A2. The reasonable and necessary inference is that he never met the A2 anywhere and never joined the motorbike of the A2 at any point in time. However, that is materially different from the evidence of the A2, who testified to have met the A1 at Adawso- at the Asuboni junction- who asked to join his motorbike to Asuboni Odumase, which he agreed to and conveyed the A1 to Asuboni after which the A1 went his separate way until their arrest. So for the A2 he did not only meet and dealt with the A1 before their arrest, but that they were arrested together and taken to the police station together! The court finds it strange how the two accused persons on the same matter will give different versions for the events of 16th October, 2017. For these are material inconsistencies which the court cannot gloss over and which only revealed the accused persons as dishonest and their explanations or versions as total fabrications! In addition- and specifically with respect to the A2 alone- he had alleged he had been involved in a motor accident for which he went to the Roman Hospital at Nkawkaw at about 4:30 pm on 15th October, 2017, for treatment until his discharge from the hospital at about 7:30 am on 16th October, 2016. These were positive assertions or averments as part of his defence that the prosecution had challenged. He therefore assumed the evidential burden to have called satisfactory evidence to prove that as they were facts capable of proof; either by a police report or medical report. Inasmuch as I concede that that their proof would not have been fully and automatically exculpatory, however their proofs would have raised some reasonable doubt in the mind of the court on the conspiracy charge in the minimum showing that he did not know the A1 before the date of the incident and that they accidentally met, removing the probability of a prior agreement to commit the robbery. In the light of the above- based on the strong pieces of evidence adduced by the prosecution and the failure of the accused persons to either individually or cumulatively to offer reasonably probable or reasonably true, the court accordingly makes the following findings of fact: That the two accused persons met and planned or agreed to go to Kwahu Tafo together with some other accomplices at large to steal the cattle of the PW1 which were under the custody of the victim Awudu Abdulai. The court finds that the two accused persons together with the others at large attacked and assaulted and threatened the victim in order to steal the cattle from him. The court finds and holds that in the process, the mask of the A1, Iddrisu Adamu, fell down, which enabled the victim to see and identify the A1, especially as it was a close range encounter and it was in the afternoon when the sun was out and the place was reasonably lit to enable recognition. The court finds that while the other accomplices moved the cattle away to the bushes outside Kwahu Tafo, the A1 and A2 were tasked to meet a truck at Ekye Amanfrom to convey the stolen cattle, which did not arrive and that it was while they were on their way to Adawso that they were arrested together at Asuboni Odumase in possession of the motorbike with a gun wrapped in a mat. Accordingly, the court resolves the two issues as follows: 1. That the prosecution succeeded to prove beyond reasonable doubt that the A1 and A2 together with some accomplices at large conspired to rob the victim of the cattle belonging to the PW1 at Kwahu Tafo. 2. That the two accused persons together with some others at large succeeded in robbing the victim of the cattle belonging to the PW1 at Kwahu Tafo on 16th October, 2017. In making the above findings of fact and decisions, I must state without any tinge of equivocation that the court had observed and considered that none of the cattle in question was found with the two accused persons. A specious argument may be advanced that the accused persons could not have committed the robbery as some others at large drove and took the cattle away. Touché’! However, even if the cattle were not found on the A1 and A2, the facts and evidence show that they had gone with the others at large including Sulley and Mohammed to steal the cattle of the PW1. With that understanding, then the basic principle of law is that the mere presence of a person at the scene of crime did not render him guilty of the crime or make him an accomplice. To qualify him as an accomplice, the presence of the person must at least have encouraged the accused in the commission of the crime. See the case of Amoah v The Republic ( 1980- 90 ) 1 GLR 266, per Kpegah J ( as he then was ). Similarly, in the case of R v. Gray (1917) 12 Cr. App. R. 244, C. C. A, which had been quoted and relied on in the Amoah v The Republic ( supra ), His Lordship the Chief Justice ( as he was then ) had delivered of himself at 246 as follows which I hold applies to the instant case against the A1 and A2 mutatis mutandis; “It is not necessary that a man, to be guilty of murder, should actually have taken part in a physical act in connection with the crime. If he has participated in the crime—that is to say, if he is a confederate—he is guilty, although he has no hand in striking the fatal blow. Equally it must be born in mind that the mere fact of standing by when the act is committed is not sufficient. A man, to become amenable to the law, must take such a part in the commission of the crime as must be the result of a concerted design to commit the offence.” In applying the above authorities to the instant case, I find and hold that the A1 and A2 jointly robbed the above-mentioned cattle of the PW1 from the victim in the bushes of Kwahu Tafo following the attack on him. As the evidence above has been enough to establish the conspiracy charge against the A1 and A2, then in my opinion it did not really matter that it was the Sulley, Mohammed and Issaka etc. who actually moved and dealt with the cattle. For as long as and once the robbery of the items was committed and achieved in furtherance to and in fulfillment of their conspiracy, the two accused persons were equally guilty. In that their involvement, responsibility culpability and guilt was complete the very moment they had agreed with the others at large to come down to Kwahu Tafo to attack and forcefully steal from the victim, and it does not matter in law that they may not have actually taken or stolen or enjoyed the cattle or their proceeds. See the cases of State v Otchere and Others ( 1963 ) 2 GLR 463 at 467; and Isaac Amaniampong v The Republic; Criminal Appeal No: J3/10/2013; delivered on 28th May, 2014; per Rose Owusu JSC ( as she then was ). For the A1 and A2 by their presence and conduct prior to and on the date in question assisted, aided and facilitated the commission of the robbery of the cattle of the PW1 under the control of the victim. Each of the A1 and A2 is thus hereby found guilty on the one count each of conspiracy to commit robbery and robbery. They are convicted accordingly. SENTENCING The punishment for conspiracy is provided for under section 24 (1 ) of Act 29/1960 ( supra ) as follows: “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”. Meanwhile, the punishment for the substantive offence of robbery is also statutorily provided per section 149 ( 1 ) of Act 29/1960, thus; “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 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 fifteen years”. In the light of the above, the court hereby sentences each of the convicts to serve eighteen ( 18 ) years imprisonment I. H. L on each of the two counts respectively without the option of a fine. The sentences are to run concurrently. In passing the sentence, the A1 and A2, per the facts and on the evidence, are first offenders. They have also spent some more than one year in lawful police custody due to their failure to find sureties. See Article 14 ( 6 ) of the Constitution, 1992. They are also young men. Nonetheless, the court however needed to impose the above sentences to serve as a deterrent to the A1 and A2 as well other criminal elements within the jurisdiction; and also as an unequivocal expression of the court’s censure and utmost condemnation of the unspeakable conduct of the A1 and A2 and their accomplices at large and the very circumstances under which they committed the crimes against the innocent victims. The court also considered the fact the offences in question have become prevalent within the jurisdiction of this court that need to be curtailed and reined in. It is de rigueur. SGD: STEPHEN KUMI, ESQ CIRCUIT JUDGE. LEGAL REPRESENTATION: Prosecution: Akpene Motey, Principal State Attorney, for the Republic present. Osumanu Mohadeen, Esq, Counsel for the Accused persons. s.k.