REPUBLIC VRS FIDAWSU MOHAMMED & ANOR. (D4/93/2020) [2022] GHACC 352 (12 October 2022)

IN THE CIRCUIT COURT HELD IN ACCRA ON 12TH DAY OF OCTOBER, 2022 BEFORE HIS HONOUR SAMUEL BRIGHT ACQUAH, CIRCUIT COURT JUDGE ========================================================= CASE NO. D4/93/2020 THE REPUBLIC VS FIDAWSU MOHAMMMED AHIANYO KWAKU GODFRED RULING ON SUBMISSION OF NO CASE The second accused person is charged with the offence of abetment of a crime contrary to Section 20(1) of the Criminal Offences Act, 1960 (Act 29) and was arraigned before this court. At the close of prosecution’s case, counsel for the second accused person made a submission of no case. This ruling is in respect of the submission made by counsel for the second accused. In criminal trials, the prosecution is obliged to prove the guilt of the accused beyond reasonable doubt whereas the accused only has to raise a reasonable doubt to his guilt. This is stated in Section 11(2) and (3) of the Evidence Act, 1975 (NRCD 373) as follows (2)In a criminal action, the burden of providing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. (3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt. In order to secure a conviction of the accused, the prosecution must have duly discharged this burden at the end of the trial, it is expected that the prosecution should have at least established a prima facie case against the accused at the close of prosecution’s case. Section 173 of the Criminal and other Offences Procedure Act,1960 (Act 30) is to the effect of that an accused person must be acquitted if at the close of the prosecution’s case, it appears to the court that there is no case made out by the prosecution which warrants a defence from the accused person. Section 173 states as follows; If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require him to make a defense, the Court shall, as to that particular charge, acquit him. The decision to discontinue the trial and acquit the accused may be made pursuant to an application for a submission of no case made by counsel for the accused or the court may suo motu make that decision. In the case of The State v Ali Kassena[1962] 1 GLR 144 laid down the test for determining a submission of no case which will be upheld by the court. The court is tasked to consider the following things on a submission of no case. 1. Where there has been no evidence to prove an essential element in the alleged offence. 2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination. 3. When the evidence adduced by the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict on it. In the case of Nyarko and Others v. The State [1963] 2 GLR 59-65, the court stated the importance of establishing essential elements of the crime which the accused has been charged when it comes to establishing a prima facie case against the accused. In this case the judge had ruled against a submission of no case made by the accused persons, continued with the trial and subsequently convicted the accused persons. On appeal, the conviction was reversed and the court stated that the trial court had erroneously continued with the trial when the prosecution failed to establish essential elements of the charge. Mills-Odoi J. S. C (as he then was) made the following pronouncements in his judgment. “We have already indicated, in the instant case, that the prosecution failed to establish against the second and third appellants an essential element in the charge, vis., that both or either of them ever had possession of the 46.6 grams of the Indian hemp-exhibit B. The fact that both were called upon to make their defence presupposes that the learned circuit judge was of the opinion that a prima facie case had been made against them. This in effect amounts to an error in law” The accused in this case has been charged with the offence of abetment of a crime. The prosecution alleges that the second accused person abetted the first accused to unlawfully cash out money with the ID card of one Alfred Sowah Ablorh. Section 20 of the Criminal Offences Act, 1960 (Act 29) defines abetment as follows; (1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does not act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime, and of abetting the other person in respect of that crime. To secure a conviction, the prosecution has to prove that the second accused either instigated, commanded, counselled, procured, solicited, or in any manner purposely aided, facilitated, encouraged, or promoted the commission of the offence by the first accused. The lawyer for the second accused rightly made reference to the case of COP v Sarpey and Amakye [1961] GLR 756-760. In this case the court in overturning a ruling of the trial court which had previously convicted the appellant of the crime of abetment had this to say about the offence of abetment; In order to convict a person of aiding and abetting it is incumbent on the prosecution to prove that the accused did any one of the acts mentioned in subsection (1) of section 20. Under subsection (2) a person who abets a crime shall be guilty if the crime is actually committed. (a)In pursuance of abetment, that is to say, before the commission and in the presence or absence of the abetment of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and circumstances with the commission of the offence. In our view, an act constituting an abetment in law must precede or it must be done at the very time when the offence is committed On the evidence as a whole we are of opinion that although the conduct and acts of the appellant were suspicious, the charge was not proved and in the result we hold that the learned trial judge erred in law by convicting the appellant of the offence charged, and the ground of appeal that the verdict is unreasonable and cannot be supported having regard to the evidence must be maintained and upheld. The appeal is allowed and the conviction and sentence quashed. The import of this statement by the court is that a person’s behavior may be suspicious or even borderline careless but that suspicion is not enough to convict an accused person of the offence of abetment. PROSECUTIONS CASE The prosecution based its charge on investigations that had been conducted by the bank and on a CCTV footage from the bank. The prosecution alleged that the CCTV footage contained evidence of negotiations between the first and second accused with the second accused agreeing to take sum of GHS 1000.00 out of the total sum of GHS 12,363.00. This footage would have played a major role in establishing the guilt of the accused intentionally facilitated the commission of the offence by the first accused. This very important video was unfortunately never played and cross examined in court. This means that the prosecution only had to rely on circumstantial evidence to prove their case. For circumstantial evidence to support a conviction, it 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. The prosecutions has failed to live up to this benchmark as it has not led to the irresistible conclusion that the accused is guilty. The prosecution has further failed to establish that the second accused instigated, commanded, counselled, procured, solicited, or in any manner purposely aided, facilitated, encouraged, or promoted the commission of the offence by the first accused, These words constitute an essential element of the offence of abetment and failure to establish either of them is detrimental to the prosecution’s case. CONCLUSION As has already been stated in the case of Nyarko and others v The State (supra), failure to establish essential elements of a crime means that a prima facie has not been made against the accused which warrants a defence from him. I am not convinced that the prosecution has duly established a prima facie case against the second accused person. I therefore grant the application of submission of no case and acquit the second accused on the charge of abetment accordingly. (SGD) H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 6