Morkporkpor Vrs The Republic [2022] GHAHC 93 (7 December 2022)

Page 1 of 7 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON WEDNESDAY 7 DEC. 2022 BEFORE JUSTICE GEORGE BUADI J. SAMPSON ZOGLI MORKPORKPOR } ……….. APPELLANT CASE NO. F22/08/2022 VRS THE REPUBLIC } ………… RESPONDENT JUDGMENT ON CRIMINAL APPEAL This a criminal appeal which upon leave of the Court dated 11 October 2022, the appellant filed the notice thereof a day thereafter, that is, 12 October 2022. The appeal is just for the mitigation of the 50-year sentence that the Circuit Cout, Kpando on 21 November 2019 presided then by His Honour Nana Brew, Esq. passed on the appellant upon his conviction of having committed the offence of conspiracy and abetment of robbery contrary to law – the Criminal Offences Act, 1960 (Act 29) sections 23(1) and 149, and 20(1). In the notice of appeal, the grounds for the appeal for the mitigation of the 50 years sentence are: 2 That I am a first-time offender. That the 50 years sentence is very harsh and excessive. That I did not actively take part in the said robbery. 1 | P a g e Page 2 of 7 The appellant does not seem to be appealing against his conviction but rather the 50-year sentence. The State, represented by the learned Assistant State Attorney Ms Nana Konadu Frempong is not opposed to the appeal, indeed suggesting in the conclusion of her written submission that “for the reasons stated above [w]e humbly submit that the Appellant’s conviction should be quashed … and be discharged …” Whilst the appellant is seeking mitigation of the 50-year sentence, indeed reduction of that sentence, the learned state attorney is calling upon the court for the conviction to be set aside. I considered the grounds of the learned state attorney in her submission for the setting aside of the conviction of the appellant. I have also, indeed compelled to look and read critically the judgment of the learned trial circuit court judge, the basic record I find on the appeal record. I found clearly that the learned state attorney counsel is correct in her submission. Sadly, I found that there was no legitimate basis in law for the learned trial judge in finding that the prosecution has discharged proof of the charge against the appellant in accordance with law. The facts of the case, simply are that three accused persons including the appellant with a gun robbed the complainant of his motorbike, money, and mobile phone and also inflicted body injuries on the complainant during the commission of the offence. As argued by the learned state counsel, in a criminal trial the prosecution must prove ingredients that it was the accused and no one else that committed the 2 | P a g e offence, in this instance robbery to secure a conviction of robbery. Indeed for the conviction of robbery to lie, the prosecution has to establish the following: Page 3 of 7 2 4 The accused has stolen something from the victim of robbery of which he is not the owner For the purpose of stealing, the accused person used force or caused harm to any person; The force or the threat of criminal assault or harm used must be with the intent to prevent or overcome the resistance of any person to the stealing of the thing; The thing stolen must be in the presence of the person threatened I have looked at the judgement of the learned trial judge, and my conclusion is that the judge, unfortunately, relied on the police fact sheet, not on the evidence presented at the court in coming to the conclusion he came up with. A judge is not supposed to rely on [police factsheet in convicting an accused person as police fact sheets are not evidence. All the same, even with the police fact sheet, the closing link of the appellant to the charge was that after commission of the crime: [T]he accused persons took the motorbike and sped off. They then picked [the appellant] at Kudzra road who was planted there to spy for them and headed towards Ho through Sovie Kudzra. The evidence of the complainant PW1 in court does not even support the police factsheet let alone the charge and the required elements of proof of the charge. In his evidence as to whether the appellant was part of the people who robbed him 3 | P a g e this is what the complainant (PW1) said in answer to just one question the appellant posed to PW1: Page 4 of 7 Qn Those who robbed you, am I part of them Ans You were not among them but the day we arrested A1 and A2 you were found among them. At the close of PW2’s evidence in chief, A2 posed this question to PW2 under cross- examination: Qn The day you arrested me I told you I called A3 but [the purpose for the call] was not meant for robbery Ans Yes he said so The appellant did not bother himself to cross-examine PW2. In his evidence in chief, A2, stated “[w]e picked [the appellant] and he asked who owned this motorbike but I said ‘when we get down I will tell you”. A2 stated further in his evidence that “I must say that [the appellant] was not at the scene where we collected the motor from the complainant [PW1]”. In his evidence in chief, it is clear that the appellant was picked on a mission that the appellant understood to be one not for any criminal purpose but for masonry work. He stated in his evidence that “[w]hilst we were going I asked whether we were not going to do the work. A2 told me they will tell me later”. I deem it needful to reproduce the entire appellant’s evidence under cross-examination by the police prosecutor: 4 | P a g e Qn What is the relationship between A1 and A2 and A3? Ans A1 is a driver and A2 is a driver and we know ourselves as we are Page 5 of 7 drivers Qn On that fateful [day] where were you? Ans I was at the durbar ground Qn Where were A1 and A2 Ans They told me they have gone to the site and that they were coming Qn Did they come on a motorbike Ans On a motorbike Qn I am putting it to you that you are a spy Ans It is not true; there was no plan Qn I put it to you that you are the link between A1 and A2 for the robbery Ans It is not true; it is not something we planned to do Qn You conspired and robbed the motorbike Ans It is not true. This is the totality of the evidence that was adduced at the trial. Indeed the learned judge recounted them all. This is because they were just brief pieces of evidence. The judge stated in his final judgment that: [A]lthough [the appellant] was not present [at the robbery scene] he was in charge of spying for A1 and A2 and … he was arrested in their company after they have taken the motorbike, phones and money. The prosecution has been to prove their case beyond [a] reasonable doubt. I find the accused persons guilty and I convict them accordingly. 5 | P a g e Page 6 of 7 An appeal is by way of rehearing. It is not by calling back the witnesses to hear the case all over again. Rather, it is by looking and reviewing the records of proceedings to ascertain whether conclusions drawn by the trial court reasonably flow from the evidence on record. By the evidence on record including their reproduction thereof by the trial judge, I find no proven evidence of the agreement of minds of the appellant with the other accused persons crucially required under the charge for the offence of conspiracy to lay. Besides, there is overwhelming evidence on record per A2 as well as the complainant (PW1) that the appellant was not around when the robbery was committed. The appellant cannot suffer the penalty of an offence he had not committed, indeed unproven to have committed. The Couts Act, 1992 (Act 459) s.31 provides: Section 31—Appeal in Criminal Matters Allowed on Substantial Miscarriage of Justice. (1) 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 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 that the judgment in question ought to be set aside. Though the appeal is for mitigation of the 50-year sentence, under the combined force sections 30, and 31 of Act 459, I shall reverse the conviction, acquit and discharge the appellant as having wrongfully and unjustifiably been convicted. 6 | P a g e Appeal upheld, indeed the conviction of the appellant set aside. I order for the immediate release of the appellant from prison custody. Page 7 of 7 Ordered accordingly.1 (Sgd.) George Buadi, J. High Court (1) Ho Lawyers: Ms. Nana Konadu Frempong (Assistant State Attorney) for the Republic. The end of the judgment in this criminal appeal – Sampson Z. Morkporkporv The Rep (Case No. F22/08/2023) 7 | P a g e