MAWULI ALIAS SHORTIE vs. THE REPUBLIC [2021]DLCA11786

Date	2021-12-09
Suit No.	SUIT NO. H2/23/2020
Citation No.	[2021]DLCA11786

WELBOURNE (MRS)

J.A. (PRESIDING)

RYENE (MRS)

J.A.

BAAH

SEFAKOR BATSE (PSA) FOR RESPONDENT

[2021]DLCA11786
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													<main id="main" class="content" style="min-height: 60rem" >MAWULI ALIAS SHORTIE<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p>[COURT
OF APPEAL , ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT
NO. H2/23/2020&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:
9TH DECEMBER 2021<o:p></o:p>

</div>COUNSEL<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM<o:p></o:p>WELBOURNE
(MRS), J.A. (PRESIDING), ARYENE (MRS), J.A., BAAH, J.A.<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

JUDGMENT<o:p></o:p>

</div>BAAH,
J.A<o:p></o:p>BACKGROUND<o:p></o:p>Appellant
was the third of five accused persons charged before the High Court, Accra, on
18 August 2010, with two offences namely, conspiracy to commit the crime of
robbery, contrary to Sections 23(1) and 149 of the Criminal Offences
Act,1960 (Act 2) and robbery, contrary to Section 149, Act 29. The
Charge Sheet indicated that the 4th accused was at large. Even
though all the four accused persons were recorded as being present, only the
pleas of 1st, 2nd and 3rd accused persons
appear at page 2 of the Record of Appeal. All three accused persons pleaded not
guilty to both counts.<o:p></o:p>A
plenary trial ensued after which the court in its judgment of 29th
July 2014, convicted the accused on both counts and sentenced each to a prison
term of 30 years imprisonment, with the sentences running concurrently.<o:p></o:p>The
instant appeal was filed by Appellant who was the 3rd accused at the
trial. The appeal is against conviction and sentence. The date of filing the
petition is not legible. In its submission, counsel for the Republic explained
that Appellant was granted leave on 24 July 2019 to file the appeal out of
time, and yet filed the appeal long after the given time. He explained that
since Appellant is self-represented, the state was not raising the irregularity
in filing the petition out of time. This court decided to apply Rule 63 of the Court
of Appeal Rules, 1997 (C. I.19) to waive Appellant’s noncompliance
by failing to file his appeal within the time extended for him to do so. The
reasons for our decision are that he is self-represented (pro se) and
faced several constraints by reason of his confinement.<o:p></o:p>Appellant
contends that the conviction and sentence cannot be by the law. He placed
before this court, eight grounds of appeal which in sum are to the effect that
by reason of the unprofessional nature of the trial and the deficient record of
appeal, the prosecution could not have been adjudged to have proven beyond
reasonable doubt, the offences of conspiracy and robbery. On that account, he
prayed the court to uphold the appeal and set aside the judgment.<o:p></o:p>In
an act of candour, and in the best traditions of the legal profession, counsel
for the Republic in its written submission, conceded to the unsustainability of
the judgment. <o:p></o:p>The
rules of advocacy require a prosecutor to reveal to the court, all mitigating
circumstances that inure to the benefit of the accused. He should not attempt
to obtain conviction at all costs. He should not regard himself as appearing
for a party. He should place before the court all facts which undermines the
case of the prosecution and should assist the court with the relevant statutory
and case law applicable to the case, see: Advocacy, Avrom Sherr, 1993,
Blackstone, London, Pages 17-18.<o:p></o:p>The
firm view of counsel for the Republic in its written submission is that the
evidence on record could not establish the ingredients of the charges levelled
against Appellant. Counsel for the Republic supplied the court with relevant
statutory provisions and case law and did extensive analysis of the evidence on
record in support of the contention of Appellant that the judgment cannot be
supported by the law.<o:p></o:p>While
commending counsel for the Republic for discharging its professional
responsibilities, it remained the duty of the court to conduct an enquiry into
the evidence and the law and come to its own conclusion as to whether the
judgment is supported by the law. Our enquiry begins with the standards the
prosecution had to meet to prove its case.<o:p></o:p>BURDEN
OF PROOF<o:p></o:p>Sections
10-17 of the Evidence Act, 1975 (NRCD 323) provides us with specific
rules on the duty of a Plaintiff in proving allegations laid against a
Defendant or an accused. In a criminal trial, the burden of persuasion, per
(Sections 10) 11 (2) and 15 (1), requires the prosecution to establish the
requisite degree of belief in the facts constituting the charges. The requisite
degree of belief per Section 13, is proof beyond a reasonable doubt. On the
part of the accused, the duty as per Sections 10 (2) and 13 (2) only requires
the raising of a reasonable doubt as to guilt. <o:p></o:p>In Woolmington
vrs DPP [1935] AC 452, Viscount Sankey expatiated on the requirement of
proof beyond a reasonable doubt as follows:<o:p></o:p>“Throughout
the web of the English criminal law one golden thread is always to be seen,
that it is the duty of the prosecution to prove the prisoner’s guilt… No matter
what the charge or where the trial, the principle that the prosecution must
prove the quilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained.”<o:p></o:p>The
primacy of the rule which has been statutarised in this commonwealth in
Secyions 11 (2) and 13 (1) of NRCD323, led to the British decision in the case
of Hobson (1823) 1 Lew CC 261) that:<o:p></o:p>“It
is a maxim of English law that ten g</main>