AGBESJOE VRS REPUBLIC (H2/12/2020) [2021] GHACA 33 (19 July 2021)

IN THE SUPERIOR COURT FO JUDICATURE IN THE COURT OF APPEAL CRIMINAL DIVISION ACCRA AD 2021 SUIT NO H2/12/2020 29th JULY, 2021 CORAM : SENYO DZAMEFE JA PRESIDING BRIGHT MENSAH JA NOVISI ARYENE JA GEORGE AGBEKO AGBESHIE APPELLANT VRS THE REPUBLIC RESPONDENT ========================================================== JUDGMENT ========================================================== ARYENE, (MRS) JA It is provided under section 150 of the Criminal Offences Act, 1960, Act 29, that “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, 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.” Section 31 (1) of the Courts Act, 1993, Act 459, also provides that “Subject to subsection (2) of this section, an appellate court on hearing any appeal before it in a criminal case shall allow the appeal if it considers; a) that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or b) that the judgment in question ought to be set aside as a wrong decision on a question of law or fact, or c) that there was a miscarriage of justice, And in any other case shall dismiss the appeal. (2) The appellate 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 in support of 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.” It is within this context of the law that the appellant has approached this court seeking relief. Events culminating in the instant appeal are that Appellant and his accomplices were charged with the offence of robbery before the trial Circuit Court. They were each convicted and sentenced to twenty-five years imprisonment in hard labour on 24th May 2010. Dissatisfied, appellant appealed to the High Court against conviction and sentence. In its judgment delivered on 24th of October 2016, the High Court dismissed the appeal. This is a further appeal to this court, for an order to nullify the conviction and a prayer for mitigation of sentence. Having reviewed the judgment and read the written submissions filed by both parties, we are of the view that the appellant deserves a favourable ruling. The facts presented by the Prosecution at the trial are that the complainant and the accused persons reside at Community 25, New Dawhenya, Accra. On the night of 11th of August 2008, between the hours of 11pm and 12 midnight, while the complainant and his wife were asleep, appellant and his accomplices broke into their home. After subjecting the couple to severe beatings, amid threats of rape and death, they made away with cash of GHc150.00, a DVD player, 3 mobile phones, jewelry, including wedding rings and other valuables. A report was made to the Police leading to the arrest of the three accused persons. They denied the offence, however after investigations, they were charged with Robbery contrary to Section 149 of the Criminal Offences Act, 1960, Act 29. All three accused persons pleaded not guilty to the charge and after a full trial, they were found guilty and convicted. An appeal against conviction and sentence by the appellant to the High Court was dismissed. Aggrieved by the decision, the appellant is before us, challenging the judgment under two main grounds: 1. Wrongful conviction 2. Mitigation of sentence The following issues were discussed under wrongful conviction: a) That the judgment is against the weight of the evidence since the prosecution failed in proving the guilt of the appellant beyond reasonable doubt. b) That the purpose for which the identification parade was conducted cannot be served since the victims PW1, PW 2 and PW 3 saw the appellant and others when they were arrested. c) That it is of the view that the prosecution witnesses could not identify those who robbed them on that fateful night since they did not disclose their identity to anyone, not even the Police who did the investigations. d) That PW 3 said she identified appellant as one of the robbers however, she did not inform the police and those who came to their rescue that she recognized any of them until she came to testify in court, therefore such evidence is unworthy in criminal justice system. e) The learned trial judge convicted the appellant on clear belief and speculation which has no place in the laws. Issues argued under mitigation of sentence include the following: 1. That the learned trial judge failed to consider all the mitigating factors in sentencing the convict/appellant. 2. That it is not on record, the appellant has any previous convictions and he is therefore not known to the court. 3. That the appellant has children and they have become destitute due to his incarceration, hence pleading for mitigation of sentence. 4. That appellant though did not commit the said offence, has learnt some vital lessons over the periods served so far and will therefore keep himself away from any unlawful act in future. 5. That under poor conditions of detention, appellant has over the years serving imprisonment with hard labour working at the Blacksmith shop as steel bender and labourer at “T-Roll” production factory in the prison. 6. That the state of the appellant before his incarceration was not the best but he has now demonstrated lot of remorse out of sincere regret and vows to keep himself far from any lawlessness. GROUND (a) WRONGFUL CONVICTION Arguing this ground of the appeal, it was submitted that the judgment is against the weight of the evidence since the prosecution failed in proving the guilt of the appellant beyond reasonable doubt. We appreciate the fact that the Notice of Appeal was filed without the input of a lawyer. However, this being a criminal matter, this sub-ground of appeal is rephrased by this court to read “The judgment cannot be supported by the evidence on record.” Having contended that the Prosecution failed to discharge the burden of proof, it is necessary at this stage of the judgment, to address the burden imposed by law on the Prosecution in a criminal trial. It is a truism that there is a presumption of innocence in favour of any person who is charged with an offence. See Article 19(2) (c) of the 1992 Constitution which provides “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.” The burden on the prosecution to proof the guilt of the accused beyond reasonable doubt is codified under sections 11(1), (2) and (3), 13(1) 15 (1) and 22 of the Evidence Act, 1975, (NRCD 323). In effect, both the burden of persuasion and the burden of producing evidence to sustain the charge, lie on the prosecution. Section 11(2) provides “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.” Section 13(1) provides “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.” Section 22 “In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” In his book the Essentials of the Ghana Law of Evidence, the learned author, SA Brobbey stated at page 51 that, the expression “proof beyond reasonable doubt” connotes “the notion that at the end of the trial, no reasonable explanation is possible on the facts than that the offence was committed and that the accused was the one who committed it.” The standard required of the prosecution to prove the case “beyond reasonable doubt”, has been explained to mean that the proof must make the jury or the trier of facts, “almost certain of the conviction of the accused.” Appellant’s contention that the Prosecution failed to discharge the burden of proof, is anchored on the submission that the judgment cannot be supported by the evidence on record. This ground is an invitation to this court to review and evaluate the totality of evidence adduced at the trial, to ascertain whether the guilt of the appellant is supported by evidence on record. See Dexter Johnson v The Republic [2011] 2 SCGLR 601, where the Supreme Court per holding 3 ruled “What was meant by an appeal being by way of a re-hearing was that the appellate court had the powers to either maintain the conviction and sentence, or set it aside and acquit and discharge, or increase the sentence.” It was held that it was the duty of the appellate court to consider the appeal record in its entirety and substitute itself as the trial court. See also Nagode v Republic [2011] 2 SCGLR 975 at 981 where the Supreme Court affirmed the position of the law that as a second appellate court, it behoves on the court to review the evidence adduced at the trial to ascertain whether the evidence led by the prosecution was sufficient to warrant the conviction of the appellant. Arguing that the Prosecution failed to discharge the burden of proof, counsel for appellant referred us to the testimony of the five Prosecution Witnesses. It was submitted that the complainant, PW 1, PW 2 and PW 3, who claimed that they saw the accused persons on the scene of the crime, were not truthful to the court because although they claim they knew the three robbers and recognized them during the robbery, they failed to inform the Police of their identity. Counsel argued that the issue for the consideration was not whether the complainant and his witnesses knew the appellant, but whether appellant was one of the persons who committed the offence. According to appellant, the identification parade was a ploy to get the complainants to point out some people as the robbers. Counsel cited the case of the State v Affenuvour [1961] GLR 655 and submitted that the standard of proof on the prosecution, should not be merely satisfactory but beyond reasonable doubt. He concluded his submission by contending that the Prosecution failed to prove the ingredients of the offence of robbery and also failed to link the appellant to the robbery. And that the trial court failed to evaluate all the evidence on record and overlooked several inconsistencies in the prosecution’s case, which ought to have inured to the benefit of the accused persons. It was further submitted that, had the trial judge properly evaluated the evidence, she would not have convicted the appellant. In response, counsel for the State also relied on the evidence of the five prosecution witnesses particularly, that of PW 1 and PW 3 as narrated in their evidence in chief. Relying on case law and statute and of course evidence adduced at the trial, it was submitted on behalf of the respondent that the prosecution discharged the burden of proof. Counsel prayed for the appeal against conviction to be dismissed In our view the evidence of PW 5, the Police Investigator, puts to rest the fact that the offence of robbery was committed that night at the residence of the complainant. PW 5 told the court that at the scene of the crime, it was revealed that the premises had been ransacked. He also saw a mask and pieces of blocks which the robbers used to break into the house. It is in evidence that the robbers stole the sum of Ghc4,15.00, a DVD player, a headphone, 3 mobile phones, wedding rings and other valuables. It is also in evidence that in stealing the items aforementioned, both PW 1 and PW 3 were subjected to sever beatings. The couple testified to the horror they encountered at the hands of the intruders amid threats of rape and death. PW 5 also testified that on arriving at the scene of the crime, he observed that the house had been ransacked and the victims beaten and traumatized. There is no doubt in our minds that the victims were robbed. But as the Supreme Court cautioned, in Dexter Johnson v Republic (supra) in a criminal trial, it is not enough for the Prosecution to prove that an offence has been committed. There must be further evidence to connect the accused with the commission of the crime. The issue we are called upon to address in this appeal, is whether the appellant before us was one of the culprits, or whether his conviction was wrongful. In re-hearing the instant appeal, we are mindful of the principle that generally, an appellate court would not set aside conviction, if from the record, there was sufficient evidence to support it. See Hodgson v the Republic [2009] SCGLR 642, holding 6 thereof. As a second appellate court, we are also guided by the principle that where a first appellate court had confirmed the findings of the trial court, the second appellate court would not interfere with the concurrent findings unless it was established with the absolute clearness that some blunder or error, resulting in a miscarriage of justice, was apparent in the way in which the lower courts dealt with the facts. See Nagode v Republic [2011] 2 SCGLR 975, where the court speaking through Anin-Yeboah JSC (as he then was) stated that as a second appellate court, the Supreme Court shall not reverse the findings of the trial court which were supported by evidence on record. Going by the legal burden imposed on the Prosecution as hereinbefore discussed, since the identity of the appellant is in issue, our primary consideration is whether there is sufficient evidence on record to proof that appellant was one of the persons who committed the crime. Prosecution relied on the testimony of five prosecution witnesses at the trial. Narrating their ordeal, PW 1 told the court in cross examination that not all the robbers were masked, and that the three accused persons were not masked, and that he recognized 1st and 2nd accused because he knew them. He said he knew the 3rd accused prior to the robbery and that he lived a distance behind his house. And that on one occasion, 3rd accused helped him push his car. Asked whether that night he led the Police to the house of the accused, he said the Police did not ask him to lead them to their house. And that he did not lead the Police to the house of the 3rd accused that night because he wanted them to do their work. And that he went to the house of the 3rd accused a day after his arrest. He said he did not mention the names of the accused to the Police because he did not know their names. PW 2 told the court that when he heard gunshots from the direction of the complainant’s house, he wanted to go to the aid of the victims but he saw the accused persons coming out of the house. He said he hid in a nearby farm, close to the victims’ house, from where he saw the three accused persons. He told the court that he knew the accused very well and that they live in the vicinity and are construction workers to whom he occasionally gave jobs. He said because of the streetlight, he recognized them by their stature when they emerged from the complainant’ house. He told the court that that night, they went to the house of the accused persons but they were not there. The next morning they made a report to the Police. Later 2nd accused confronted him for informing the Police that they were responsible for the robbery. He was later arrested and sent to the Police station. The following day, 1st accused went to his house and confronted PW 4 and threatened to kill her and her children if he (PW 2) failed to ensure the release of 2nd accused. The following ensued during cross examination of PW 2: Q Further I am putting it to you that you have pointed these accused to Police because they came and confronted you for mentioning their names. Before then, you had never mentioned their names. None of them confronted me. It is not true. You told this court that the 2nd accused met you in a bar and wanted to beat you up yes Put that it was because of that confrontation you carried out the arrest of the 2nd A Q A Q accused. A No With respect to the testimony of PW 3, wife of PW 1 (and victim of the robbery), her testimony was that she recognized the appellant although he was masked. She said she knew appellant very well, so she recognized him by his voice. She said on one occasion, she intervened in a quarrel between appellant and a lady and that since then, each time he (appellant) saw her, he called her. Appellant admitted in cross examination that he knew PW 3 very well. The following evidence elicited from the witness in cross examination raises some doubt as to whether the witness was certain on the identity of the appellant: Q A Did you recognize all the four? I recognized the 1st accused. I knew him and knew his voice. With the others I did not because they were moving about. Cross examination continued: Q So at what stage were you able to recognize the three people who came into your house? A It was after, when my husband had led the Police to arrest the other two that I realized they were among those who came to rob us. It is significant to note that the evidence shows that it was 2nd accused who was arrested first, so reference by PW 3 above, to the “other two” is in respect of appellant. A necessary inference is that it was only after his arrest that PW 3 could confirm the identity of the appellant. As to why she did not inform PW 1, PW 2 or the Police that she recognized the appellant until after his arrest, she said she did not tell her husband because she was not well and her Blood Pressure was high. She did not tell the Police or PW 2 because she did not want the information to leak, fearing the accused would escape. On how the accused persons were arrested, PW 5 testified that a group of vigilante youth in the area caused the arrest of the 1st and 2nd accused persons. On tip off, the 3rd accused was also arrested by the Police. During the investigations, an identification parade was organized where PW 1 and PW 3 identified the three accused persons. PW 5 admitted in cross examination that it was after the identification parade that the complainant and his wife disclosed that they knew the accused persons. It is not in dispute that the trial court grounded the conviction of appellant on the testimony of PW 3, who testified that she knew him very well, and hence identified him by his voice. Addressing the issue whether it was the accused persons who robbed the complainant, the trial judge placed a great deal of premium on the voice identification by PW 3. She delivered herself thus at page 84 of the ROA, “Since PW 3 knew 1st accused very well, she was able to identify 1st accused immediately he spoke.” The learned trial judge continued at page 86 of the ROA as follows “I believe PW 3 when she says that it was 1st accused she saw in her room the day of the robbery. Out of the many people she knows and out of the many voices she heard, why would she recognize the voice of the one who held her and attempted to rape her, only as the voice of the 1st accused?” The trial judge cited the case of Adu Boahene v The Republic [1972] 1 GLR 70, in support of her finding that the voice identification was sufficient evidence to link appellant to the crime. She ruled at page 142 that she believed the testimony of PW 3 that she recognized appellant by his voice, on account of the fact that she witnessed the commission of the crime. On appeal, the learned High Court judge affirmed the Judgment of the trial court. At page 147 of the ROA, he rejected the testimony of the appellant and gave reasons why he believed the testimony of the Prosecution. He delivered himself thus “I have adverted my mind to the testimonies of the 1st and 2nd accused persons which were generally bare denials of their identities as culprits. When juxtaposed against the accounts of PW 1, PW 2 and PW 3 in particular and indeed the generality of the evidence adduced by the Prosecution, I find sufficient evidence supporting the trial judge’s conclusion that the 1st and 2nd accused persons were part of those who committed the crime of robbery.” Commenting on failure of PW 3 to inform the Police that she recognized appellant at the scene of the crime, the learned trial judge stated at page 142 of the ROA, “In other words although PW 3’s silence does not evince good reasoning, it does not take away the fact that she knew and recognized the 1st accused. I therefore agree with the trial judge’s finding that the PW 3 knew and recognized the 1st accused as one of the robbers during the attack.” As evident from the ROA, the trial judge based the conviction of the appellant, and the appellate High Court, its affirmation of the conviction, on the voice identification by PW 3 and the testimony of PW 2, who claimed he recognized the accused (including the appellant) by their stature. Both counsel in their written submissions before this court, (and indeed the trial judge in her judgment), relied on the case of Adu Boahene v the Republic (supra), where it was held that in proving the identity of the accused, the victim who testified on oath to have seen the accused committing the crime was sufficient. We are of the view that the Adu Boahene case is distinguishable. In that case, the complainant, the owner of a Petrol Filling Station, took the Police to the house of the appellant whom he identified as one of the three persons who robbed him. He testified that he had known the appellant at the filling station for about two years, and had seen him at the petrol station, less than an hour before the attack. He said the appellant frequently visited the station and was a friend of the employees. One of the prosecution witnesses, Clement Osae Asiedu also testified that he had known the appellant for two years and had seen him often at the Petrol Station. And that on the night the complainant was attacked, he heard shouts of “Thief!! Thief” when he came out of his house, he saw appellant board a vehicle and disappear. A complaint was made to the Police and the complainant and Clement Osae Asiedu led the Police to the appellant’s house where both of them identified the appellant as one of the robbers. The appellant denied the allegation and said he was not at the Petrol Station at the time, and that the complainant and his witnesses were mistaken. The issue that fell for determination at the trial (as indeed the instant appeal), was whether or not the appellant was one of the robbers. The appellant was convicted and sentenced. He appealed on grounds that there was insufficient evidence of his identity, and that there was no identification parade and no evidence of his personal characteristics to link him to the crime. The Court of Appeal observed that in view of the defence of mistaken identity mounted by the appellant, the sole issue for trial was whether the appellant was identified as participating in the robbery. It was held that where the identity of an accused person was in issue, there was no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged. In effect where the prosecution witnesses claim they knew the accused persons prior to the commission of the offence, there was no need for the identification parade. Applying the ratio in the Adu Boahene case to the facts of the instant case, we do not hesitate to conclude that the testimony of PW 3 to the effect that although she knew the appellant and recognized him by his voice during the robbery, she did not disclose his identity to the Police because she was waiting to identify him at an identification parade, cannot ground a conviction in law and we so hold. Although the trial court did not base its conclusions on the identification parade, it is our opinion that the organization of the identification parade raises doubts about the evidence of the prosecution witnesses. Unlike the Adu Boahene case, PW 1 and PW 3, (victims of the crime, who testified that they knew the accused persons), failed to inform the Police that they recognized the accused persons during the robbery. Neither did they indicate so in their statement to the Police. In our respectful view, failure of the prosecution witnesses to disclose the identity of the accused to the Police, raises doubt as to whether they were sure of the identity of the persons who robbed them and leaves so many questions unanswered. Why would 3rd accused, who was known to the complainant, enter the house of PW 1 unmasked? Again, why would appellant, who is very well known to PW 3, conceal his identity by wearing a mask, only to speak so much during the robbery as to give himself away? We have also considered the traumatic experience of the couple at the hands of their assailants, which in our view, could impair their judgment, and rule that the couple did not disclose the identity of the robbers at the first opportunity, because they did not know who their assailants were. Their suspicions on the identity of their assailants, were strengthened by the botched visual identification parade. This doubt is reinforced by the inconsistencies in the testimony of the victims of the attack. In Brempong II v The Republic [1995-96] 1 GLR 350, this court held that for conflicts and inconsistencies in evidence to influence a decision of the court, they must be material and of the nature that destroy proof of an element of the offence or totally discredit the witnesses so as to make their testimony unreliable. The courts should consider materiality of the conflicts in light of the issue which such evidence was sought to prove and decide whether it made proof of the issue, if relevant in the case, highly unacceptable or unreasonable to accept. Where the conflicts and the inconsistencies did not affect the main issue before the court, or proof of the elements of the crime, then the court could only consider that in the light of the witnesses’ credibility. The identity of the accused persons was material, accordingly, where the prosecution witnesses presented conflicting testimonies as to whether they were masked or not, that to our view is critical. In the instant case while the complainant testified that the robbers were not masked, his wife, PW3, said they were masked. The following evidence elicited from PW 1 in cross examination, clearly raises some doubt as to whether his testimony on the identity of the appellant was reliable. Q A You also said you saw one of the robbers going for the bag Yes Q Which of the robbers went for the bag A Q In that state of condition, I could not figure which of them But you want this court to believe that in that state you were able to recognize the three accused persons. Q Yes. The incident happened when I was not asleep. When the door was forced open, I saw their faces. Some were in masks, others not in masks. During the assault in the room, at the time the 1st accused wanted to rape my wife, I saw the accused person. Q Were these three accused part of those who were masked. A I cannot identify whether they were masked or not We are also of the view that if the testimony of the Prosecution witnesses on the identity of the accused persons is anything to go by, then their conduct immediately after the occurrence of the event, is critical in determining whether it was the appellant they saw at the scene of the crime. As earlier discussed, the victims of the crime who alleged that they recognized the appellant at the scene of the crime failed to inform the Police. Neither did PW 3 mention in her statement to the Police that she recognized the appellant. It is in evidence that PW 2 was one of the people who went to the scene immediately after the incident. Following a report to the Police, PW 5 also went to the scene. It is our view that a statement by PW 3 to PW 2, that she recognized the appellant would have formed part of the res gestae, thereby strengthening the case of the Prosecution. A statement made contemporaneously with the occurrence of the event into which the court was inquiring was admissible in evidence because it throws light on the fact in issue by reason of proximity in time, place or circumstances. Such a piece of evidence which was relevant on account of its contemporaneity with matters under investigation by the tribunal of fact, forms part of the res gestae. The doctrine of res gestae is explained at page 352 of “The Modern Law of Evidence” (supra), as a statement of fact or opinion which is so closely associated in time, place and circumstances with some act event or state of affairs which is in issue that, it can be said to form a part of the same transaction as the act or event in issue. On when a statement was admissible as part of the res gestae, the author of Essentials of the Ghana Law of Evidence (supra) stated at page 361 that the recognized criteria from decided cases was: whether the spontaneity or contemporaneity is such as to rule out any possibility of fabrication or concoction; whether there was opportunity for the declarant to have fabricated or concocted the statement; whether the utterances were the instinctive reactions of a stressed or distressed person in such a state of mind totally deprived of any opportunity to reflect or plan what to utter or to do in the peculiar circumstances in which he found himself; whether the period from the happening of the event to the making of the statement was such that the declarant could have had sufficient time to have reflected on the reasons to have made the utterance or to have thought out the appropriate reaction which would have been expected to colour his utterances to suit the necessity for admitting the statement; whether the declarant’s mind was dominated by the event at the material time he made the statement; whether there were special, startling, dramatic or unusual features of the event such as the location or its peculiar subject matter that make the particular statement relevant to the event. Asked in cross examination how she expected the Police to arrest the suspects when they did not know their names, PW 3 who had earlier testified that she recognized only the appellant at the scene of the crime, told the court that she was waiting for the Police to finish with their investigation and then she would go and identify them. See page 34 of the ROA. She also said she did not tell her husband that she recognized the appellant because her blood pressure had gone up. In our view if the couple had indeed recognized the appellant during the robbery as alleged, they would have discussed it together and would also have informed the Police at the first. In our view, opportunity the assertion by PW 1 that they wanted the Police to do their work and the assertion by PW 3 that she feared the accused would abscond, is a mere afterthought which raises doubts in the case of the prosecution which should inure to the benefit of the accused. We also find bizarre and unconvincing, the testimony of PW 1, to the effect that he did not disclose to the Police that he knew the 3rd accused and where he lived because the Police did not ask him to lead them to the house of the accused. And that having reported the robbery to the Police, they have to do their work. Both PW 2 and PW 3 testified that they recognized appellant because they knew him very well. But as earlier discussed in this judgment, knowing the appellant does not absolve the Prosecution of the burden of linking the appellant to the crime. In considering the weight to attach to the testimony of the Prosecution witnesses on the identification of the appellant, we refer to the case of Nagode vs The Republic (2011) 2 SCGLR 975 at 977 holding 1, for guidance. The Supreme Court ruled “the issue of the appellant’s identification was one of fact for a judge sitting without a jury in every summary trial. The learned trial judge after evaluation of the rival testimonies gave adequate reasons for believing the evidence of the first prosecution witness who swore to have seen the appellant as one of the robbers. Unfortunately the appellant has not demonstrated to us that the trial judge and the first appellate court have failed to adequately consider any evidence that would have inured to his benefit in this appeal.” We shall now consider the reasons given by the trial judge for accepting the testimony of PW 3 on the identity of appellant herein. At page 86 of the ROA, the trial judge delivered herself thus “out of the many people she knows, and out of the many voices she heard, why she would recognize the voice of the one who held her and attempted to rape her only as the voice of the 1st accused?” It is obvious from this statement that the witness’s prior knowledge of the appellant, weighed heavily on the mind of the court and accounts for the acceptance of the testimony of PW 3 that she recognized the appellant. It is trite that voice identification is one of the modes of identification. See Ignatius Howe V The Republic Criminal Appeal No. J3/3/2013, dated 22nd May 2014, where the Apex Court cited with approval the following pronouncement in Adu Boahene case (supra); that the identity of a person “may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity or personal characteristics such as age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts,, and other details of personal history including identities of mental qualities, habits and disposition.” It is worth mentioning that in the Adu Boahene case, their lordships cautioned at page 77 that, “It has been said that identification can be mistaken, and when the only evidence consist of identification, however positive, it is right to look at the matter with great care.” If this caution is anything to go by, then the court should be slow in convicting an accused person solely on voice identification. In Adrian Keane’s “The Modern Law of Evidence 7th Edition, the learned author writing on Voice Identification at page 245, stated that, “Unlike visual identification, in the case of aural or voice identification, little judicial thought has been given to the danger of mistakes being made or to the safeguards necessary to lessen the danger”. In R v Hersey [1998] Crim. LR 281, CA, two men robbed a shop wearing balaclava helmets. During the fifteen minutes robbery, there was so much speech on the part of the robbers and the shop owner recognized the voice of one of them as a long standing customer. At a voice identification parade, the accused was identified as one of the culprits. On appeal, it was held that in directing the jury, a judge must deal with the strengths and weaknesses in the identification evidence. And that, it was vital that the judge spelt out to the jury the risk of mistaken identification, and the reason why a witness may be mistaken. The judge must also point out to the jury that a truthful witness may yet be mistaken. In R v Roberts [2000] Crim. LR, 183 CA, the court acknowledged that voice identification was more difficult than visual identification especially in the case of a stranger, and should therefore attract more stringent warning than that given for visual identification. See also R v Gummerson and Steadman [1999] Crim. LR 680, CA. The courts have observed that voice identification may be unreliable though persuasive and impressive. And that a witness may give evidence of identification, honestly and sincerely believing same to be true but in actual fact, be in error. Because of the dangers inherent in voice identification, it has been held that special caution is necessary in accepting voice identification as a sole ground for conviction. And that the trial judge must be alert to the many factors that may affect the reliability of the testimony. In view of the inconsistencies in the testimony of the prosecution witnesses as earlier discussed, in evaluating the evidence as to whether the witness recognized the voice of the accused at the time of the robbery, and determining the weight it should attract, the court must remind itself of the dangers inherent in voice identification and the likelihood of mistake by taking into consideration the circumstances in which the witness recognized the voice; the possibility that the speech occurred in circumstances of extreme stress, such as during the commission of a violent crime as in the instant case. In an article in the Howard Journal of Criminal Justice titled “Mistaken Identification: Where Law Meets Psychology Head On,” published in August 1996, it was stated that psychologists have recognized that voice identification is less reliable than visual identification. And that because voice identification is prone to error, it should not be relied upon for a conviction unless some other supporting and confirming evidence (circumstantial evidence) was available linking the accused to the crime. In our view, the fact that it was only after the arrest of the appellant that PW 3 identified him, also raises doubts as to the reliability of her testimony on the identity of the accused. The final nail in the coffin of the prosecution’s case, is that regardless of the fact that PW 1, PW 2 and PW 3 knew the accused persons, it took an identification parade to strengthen their claim as to their identity. In our respectful view, the holding of the identification parade confirms the case of the appellant that the complainant did not know the persons who committed the crime. Counsel for the State cited the case of Dogbe v The Republic [1975] 1 GLR 118 in support of weight given to the testimony of PW 3 by the trial court. It was held in that case that “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.” Counsel submitted that in the instant case, the victims PW 1 and PW 3 gave direct testimony of the identity of the accused persons. With all due respect to learned counsel, we do not agree with this submission. Having ruled earlier in this judgment that the prosecution witnesses did not know who their assailants were, hence the identification parade, it is our view that the testimony of PW 3 on the identity of appellant, does not qualify as direct evidence. Neither does the testimony of PW 2 (which is based on the stature of the accused persons), measure up to the definition of direct evidence. As a second appellate court, evaluating the evidence on record, we have no hesitation in concluding that the conviction was based on mere suspicion and cannot stand. Applying the law on voice identification as hereinbefore discussed, to the facts of the instant case, we hold the view that given the circumstances, the trial judge, and indeed the first appellate court, attached too much weight to the voice identification by PW 3. In accepting the voice identification, the trial court failed to consider the entire evidence before it, and more particularly the circumstances of the crime and also the possibility that PW 3 could be mistaken. We hold the view that in the circumstances, the trial court ought to have looked for other pieces of evidence, which if juxtaposed on the voice recognition, would place the appellant squarely at the scene of the crime. The reason advanced by the trial judge that “out of the many people she knows, and out of the many voices she heard, why would she recognize the voice of the one who held her and attempted to rape her only as the voice of the 1st accused” without more, is in our view, undeserving of the weight attached to it by the court. The testimony falls short of the standard of proof required to secure a conviction in a criminal trial. As a second appellate court, in evaluating the evidence before us, we are guided by the standard of proof in criminal cases, which is proof beyond reasonable doubt. We are also mindful of the principle encapsulated in the English maxim that it is better for ten guilty men to escape rather than one innocent man to suffer. In the absence of other supporting and confirming evidence linking the appellant to the crime, we do not think that the identification of appellant, which rested wholly on the alleged voice recognition by PW2, attracts enough weight for us to uphold the conviction. Neither does the alleged recognition by PW 3 which is based on stature of the accused, present this court with sufficient evidence to discharge the burden imposed on the prosecution to proof the identity of the appellant beyond reasonable doubt. In the circumstances, the doubt inures to the benefit of the appellant. Consequently, the conviction is hereby quashed. The appeal succeeds and we set aside the conviction and sentence. I AGREE NOVISI ARYENE (MRS.) JUSTICE OF APPEAL SENYO DZAMEFE (JUSTICE OF APPEAL) I ALSO AGREE P. BRIGHT MENSAH (JUSTICE OF APPEAL) COUNSEL MERCY ARTHUR (PSA) FOR THE RESPONDENT SAANI RASHID FOR THE APPELLANT 23