The Republic Vrs Asante [2022] GHADC 125 (6 December 2022)

IN IN THE DISTRICT COURT HELD AT WASA AKROPONG ON FRIDAY THE 6TH DAY OF DECEMBER, 2022, BEFORE HIS WORSHIP MR. BRIGHT A. AKOANDE ESQ, THE DISTRICT MAGISTRATE COURT CASES NO. 21/2023 THE REPUBLIC VRS: GILBERT ASANTE No legal representation for the accused. Inspector Abraham Ayertey for the Republic. JUDGMENT The accused has been charged with two offences, namely, unlawful entry, contrary to section152 of the Criminal Offences Act, Act 29 of 1960 and stealing, contrary to section 124(1) of Act 29. The accused, having denied the offences, the burden is put on the prosecution to adduce sufficient admissible evidence to establish the respective ingredients of the two offences. The guilt of the accused must be proved beyond reasonable doubt; see Miller V Minister of Pensions [1942] 2 ALL ER 372 per the indomitable Lord Denning. Also, see sections 11(2) and 13(1) of the Evidence Act, 1975(Act 323). The accused for his part only has to introduce evidence which creates a reasonable doubt in the mind of the court regarding the prosecution’s case. The allegation against the accused who is a motor mechanic apprentice, is that he broke in to the complainant’s room through the roof at Amajaro, a suburb of Wasa Akropong in the month of September, 2022 and made away with a chargeable light lamp, a standing fan, a 32 inches NASCO TV set, a pair of shoes and clothing belonging to the complainant. The value of the alleged stolen items is not known. The prosecution called three witnesses who testified in proof of the offences. Count one is unlawful entry, contrary to section 152 of Act 29. Section 152 of Act 29 provides that whoever unlawfully enters any building with the intention of committing a crime therein shall be guilty of second degree felony. For the prosecution to secure conviction, it must prove that the accused entered the room of the complainant with the intention of committing a crime; see Kanjarga V The State [1965] 1GLR 479. Count two is stealing, contrary to section 124 (1) of Act 29. Section 124(1) of Act 29 provides that a person who steals commits a second degree felony. Section 125 of Act 29 defines stealing. It provides that a person steals who dishonestly appropriates a thing of which that person is not the owner. The essential elements of the offence of stealing are 1. The person charged must have appropriated the thing allegedly stolen, 2 the appropriation must be dishonest and 3 the person charged must not be the owner of the thing allegedly stolen; see Ampah V The Republic [1977] 2 GLR 171. Section 173 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) also provides that 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 defence, the court shall as to that particular charge, acquit him. Under section 173 of Act 30, at the close or end of the prosecution’s case, an accused person will be acquitted and discharged of the offence if in the view of the court, the evidence adduced by the prosecution is incapable of substantiating or founding a conviction because the prosecution has not led any evidence to prove any essential element or ingredient of the charge or the evidence adduced by the prosecution is so contradictory or so discredited as a result of cross-examination or so manifestly unreliable that no reasonable court could safely rely on it, see State V Annan [1965] 1 GLR 600. What is essential is that if the prosecution at the close of its case fails to make a prima facie case against the accused, the court will suo moto or on application acquit and discharge the accused of the offence. The prosecution does not necessarily need to prove its case beyond reasonable doubt at this stage. The prosecution only needs to make a prima facie case against the accused at this stage for a decision as to whether or not the prosecution’s case has been proved beyond reasonable doubt can only be made after the entire trial, that is after the consideration of the prosecution’s case and that of the defence; see Tsatsu Tsikata V The Republic [2003 -2004] 15 CGLR 1068. What evidence did the prosecution lead in its attempt to make a prima facie case against the accused? PW1who is also the complainant, stated in his evidence that he was not at home at that material time that his room was broken in to. He admitted that he never saw the accused with the alleged stolen items. The only relevant part of his evidence is the fact that it was his room that was broken into and the items mentioned above stolen. The evidence of P. W1 does not link the accused to the offences in any way. Thus, the evidence of PW1 lacks probative value. The relevant portion of the evidence of PW2 is that around the material time that the room of the complainant was broken into, he saw the accused holding a black polythene bag with things in it. The accused completely denied that he was seen by PW2, holding a polythene bag with things in it. When PW2 was cross-examined, he admitted that he never saw the accused at the complainant’s house. The following exchanges between the accused and PW2 when the latter was cross-examined by the former show the evidential deficit of the prosecution’s case: Q” What were some of the things in the polythene bag that I was allegedly carrying on that fateful day? A. I do not know. Q. Why did you then allow me to take it away? A. I did not see you very well? Q. Did you ever see me at the complainant’s house? A. No. Q. Why are you then alleging that I stole the complainant’s items? A. I never saw you before. The above exchanges between the accused and PW2 only reveal the pathetic nature of the prosecution’s case. Even, assuming without admitting that PW2 saw the accused around that material time carrying a polythene bag of items near the complainant’s house, his evidence in this regard is circumstantial evidence. Circumstantial evidence is evidence of surrounding circumstances which is capable of proving a proposition with mathematical accuracy. For circumstantial evidence to support a conviction, it must be inconsistent with the innocence of the accused and must lead to the irresistible conclusion not only that the crime charged has been committed but that it was in fact committed by the person or persons charged and by no other person; see State v Brobbey and Nipah [1962] 2 GLR 101. In the instant case, the so-called circumstantial evidence led by PW2 does not lead to an irresistible conclusion that it was the accused and not any other person who committed the offences. PW2 does not even know the accused. He did not also see or know the things that the accused was alleged to have carried in the black polythene bag. PW2 even admitted that he never saw the accused at the complainant’s house. His evidence does not have probative value whatsoever. PW3 is the police investigator. He narrated how he investigated the case. He tendered in evidence the caution statement and charge statement of the accused. The accused has strongly denied the offences in his said statements. PW3 also admitted that the alleged stolen items were not found with the accused. The prosecution did not also produce finger print evidence to link the person who allegedly broke into the complainant’s house and committed the offences. The prosecution’s case simply suffers from a huge evidential deficit. For the reasons given above, I am of the considered opinion that the prosecution has not made out a case against the accused to require him to open his defence in respect of the two offences. Accordingly, I hereby acquit and discharge the accused. DISTRICT MAGISTRATE (SGD) BRIGHT A. AKOANDE