THE REPUBLIC vs. KWAME YAWSIM [2015]DLHC3563

Date	2015-05-05
Suit No.	CASE NO.1/15
Citation No.	[2015]DLHC3563

HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

[2015]DLHC3563
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>KWAME YAWSIM<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CASE NO.1/15&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 5TH MAY, 2015<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;
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HER
LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<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;
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</div>&nbsp;“The fear of burglars is not only the fear of
being robbed, but also the fear of a sudden and unexpected clutch out of the
darkness" Elias Canetti.&nbsp; <o:p></o:p>Like all victims of
robbery, this frail complainant in the instant case must have gone through a
lot and now his alleged attacker is before the court to be tried.&nbsp;&nbsp; <o:p></o:p>The accused person herein
was arraigned before this court on one count of Robbery, contrary to section
149 of the Criminal Offences Act, 1960, Act 29. The particulars of the offence
are that on 18/06/2014, he robbed one madam Yaa Owusua of a cash sum of GH¢
60.00.<o:p></o:p>The relevant facts of the
case are that on 11/06/2014, the complainant had engaged the accused person and
one other to weed her farm and a part payment of GH¢20.00 had been made to
them. The accused person pocketed half of the amount but refused to weed the
farm. The complainant demanded payment from him and on 15/06/2015, the accused
refunded the money to her in her house. Then, at about 12:30am on 18/06/2014
when the complainant was fast asleep, the accused person broke into her room
and ordered her to surrender all money or else he would kill her. Complainant
obliged and gave her GH¢ 60.00.&nbsp; The
complainant immediately informed one Yaw Wiredu and they traced the foot prints
of the accused&nbsp; person which headed
towards the direction of his house but they lost the foot prints somewhere
along the line because it had rained and the ground was wet. After the act, the
accused person run to a friend of his in a nearby village called Dromankoma. When
the accused was eventually arrested, he gave a statement to the effect that he
had gone to visit Issah Yaw and his wife a day prior to the incident. However,
the statements given to the police by Issah Yaw and his wife proved otherwise.<o:p></o:p>The accused person pleaded
not guilty to the charge and thereby placing a duty on the prosecution to prove
his guilt. As in all criminal cases, the required standard of proof is “Proof
Beyond reasonable Doubt". &nbsp;All that
the prosecution must prove is that the accused used force or threat of criminal
force, with or without an offensive weapon to steal the complainant's property
as spelt out under section 149 of Act 29/60. The statutory provisions for this
standard of proof&nbsp; are sections 11(2) and
13(1) of the Evidence Act, 1975 N.R.C.D. 323 as stated below:<o:p></o:p>Sec 11(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>"
In a criminal action the burden of producing 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 all the evidence a reasonable mind
could find the existence of the fact beyond a reasonable doubt"<o:p></o:p>Sec 13(1)<o:p></o:p>"
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 a
reasonable doubt."<o:p></o:p>&nbsp;The case of Oteng v The State (1966) GLR 352
clearly demonstrates this point. At page 355 of the report, the supreme Court,
per Ollenu&nbsp; JSC stated:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; " ... the citizen too is entitled to protection
against the state and that our law is that a person accused of a crime is
presumed to be innocent until his guilt is proved beyond reasonable doubt as
distinct from fanciful doubt".<o:p></o:p>Denning J in Miller v Minister
of Pensions (1947) 2 All ER 372 at pages 373-374
explained what amounts to a reasonable doubt in these words:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; " If the evidence is so strong against a man as to
leave only a &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; remote
possibility in his favour which can be dismissed with &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the sentence 'of course it is possible', but not in the least &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; probable,' the case is proved beyond
reasonable doubt."<o:p></o:p>The prosecution relied on
the evidence of three witnesses to prove their case. First to testify was the
victim (PW1). She gave a detailed account of the accused person's refusal to
weed her farm after collecting his half share of the part payment of GH¢20.00.
PW1 said the accused person refunded the GH¢10.00 on a Saturday.&nbsp;&nbsp; At about midnight on Wednesday, PW1 said she
heard someone opening her door with a torch light in that person's hand. She
added that it was raining. Further, the witness told the court that she
screamed and slammed the door and embraced the person who turned out to be the
accused person, Kwame.&nbsp; The accused
person pushed her off and demanded that she surrendered all her money whilst
wielding a knife. At this point, PW1 said she was terrified because of the
knife and so she handed over GH¢60.00 cash to the accused person who also
forcibly had sex with her. After the act, PW1 continued that the accused</main>