AUGUSTINE ADDO AGYEI vs. THE REPUBLIC [2011]DLCA7875

Date	2011-12-22
Suit No.	APPEAL CASE NO. H2/38/2011
Citation No.	[2011]DLCA7875

YAW APPAU J.A. (PRESIDING)

OFOE J.A.

ACQUAYE J.A.

[2011]DLCA7875
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													<main id="main" class="content" style="min-height: 60rem" >AUGUSTINE ADDO
AGYEI<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

APPEAL
CASE NO. H2/38/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 22ND DECEMBER, 2011<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

YAW
APPAU J.A. (PRESIDING), OFOE J.A., ACQUAYE J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>YAW APPAU, J.A.<o:p></o:p>The
appellant in this case was charged together with three (3) others on two counts
of Conspiracy to commit the offence of robbery and robbery; contrary to
sections 23 and 149 of the Criminal Offences Act, 1960 [Act 29] as amended. He,
like the others charged with him, pleaded not guilty to the charges, thus
placing a burden on the prosecution to prove the charges against them. The
prosecution called four witnesses while the appellant and the others testified
separately when called upon by the trial court to do so at the close of the
prosecution’s case. The appellant did not call any witness in support of his
defence.<o:p></o:p>At
the close of proceedings, the trial court found the appellant and two out of
the three others guilty of the charges and convicted them accordingly. They
were each sentenced to 20 years IHL on each count to run concurrently. The
fourth person who was listed as ‘4th accused’ on the charge sheet
was, however, acquitted and discharged for lack of evidence. This was on the 15th
day of September 2008 but the trial court deferred its reasons, which it later
read in open court on 2nd February 2009. The only reason the trial
court gave for convicting the appellant on the charges was that he admitted the
offences. The trial court did not indicate in the judgment how the appellant
admitted the offences because the appellant pleaded not guilty to the offences
and insisted throughout the trial that he did not take part in the robbery he
was accused of. <o:p></o:p>The
appellant who felt aggrieved by the decision of the trial court has invoked our
appellate jurisdiction to re-examine the case on the main ground that the
conviction was an error in law having regard to the evidence on record. We
understand this ground to mean that the totality of the evidence on record does
not support the conviction of the appellant on the offences for which he was
charged, so the trial court erred in convicting him. <o:p></o:p>Appellant
again appealed against the sentence which he said was extremely harsh, granted
he did commit the offences, which he denied ever committing anyway. He,
however, made no submissions in support of the second ground on the harshness
of the sentence but concentrated on the main ground that his conviction was
wrong as it was not supported by the evidence on record.<o:p></o:p>Appellant
re-called the Court’s attention to the ingredients of the offences of
conspiracy and robbery, which I do not want to repeat here. He then referred to
the prosecution’s case, which he said fell short of proof of the offences
charged against him. Of particular mention was the testimony of the victim of
the crime who lodged the complaint that led to the arrest and prosecution of
appellant and the others. He testified as P.W.1. <o:p></o:p>Appellant
contended that P.W.1 never mentioned him as one of those who robbed him on the
day stated on the charge sheet for which he was arrested, charged and
convicted. It was therefore wrong for the trial court to convict him on the
basis of an alleged confession statement which was exacted from him after
subjecting him to severe beatings and torture. The appellant, who said he was
picked from his school (i.e. Asoum Secondary School) when he was attending
computer classes, gave a harrowing experience of the torture he went through
after he had been taken to the police station in his evidence in defence. This
was what transpired between appellant and his counsel when led in his evidence
in-chief:<o:p></o:p>“OBENG (Counsel): Tell the court what happened at the
police station.<o:p></o:p>2ND ACC: They asked about my name and told me
that some robbery had taken place and they suspected that I have knowledge of
it and I told them I had no knowledge of it. When he asked about it again, I
told him I knew nothing about it. The people who were at the place came to
where I have been handcuffed. They said if I actually knew nothing about it
where was the mobile phone that I was using and I told them I had none.<o:p></o:p>OBENG: So what happened thereafter?<o:p></o:p>2ND ACC: They asked me whether I wanted them
to believe that I actually knew nothing about the robbery that took place and I
told them I knew nothing about it. They said someone had mentioned my name as
having gone to steal.<o:p></o:p>OBENG: Were you told about the person who mentioned your
name?<o:p></o:p>2ND ACC: I was not told about the one who
allegedly mentioned my name. I told them that if possible they should bring
that person who mentioned my name for me to know him or her. And they said I
wanted to prove naughty because I was in secondary school. They started beating
and slapping me and I told them I did not know anything about the matter so
they should bring the one who had mentioned my name. They told me that if I
insist that I knew nothing about it I will see and that day they beat me
properly and my face got swollen. They brought out some wire from their drawer.
One policeman was standing behind and was beating me with it.<o:p></o:p>OBENG: The mark at your back was the result of the
beatings.<o:p></o:p>2ND ACC: All that I realised was that my
school uniform was soaked with blood. Because of the beatings I told them that
what they have said was true so as to make them stop beating me.” {Please,
see pages 70 &amp; 71 of the record}<o:p></o:p>The
appellant again rubbished the a</main>