REPUBLIC VRS BONSU (BR/SY/CT/99/2024) [2024] GHACC 146 (5 March 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON TUESDAY THE 5TH DAY OF MARCH 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ.CIRCUIT COURT JUDGE BR/SY/CT/99/2024 THE REPUBLIC VRS. KOFI BONSU JUDGMENT Accused person has been charged with two offences namely unlawful entry and stealing. The facts which gave birth to the above charges are quite interesting given Prosecution's grounds for hauling accused person before this Court. Per its facts, Prosecution contends that on the 31st of May 2023 complainant withdrew from his bank account and mobile money account, a total amount of GH¢26,700.00 which they alleged were all in GH¢200.00 denominations. Complainant took this money home, placed it in his brown hand bag and hung it in his bedroom. He then left his room unattended for some hours and when he returned, he failed to check the integrity of his money bag. The next morning greeted complainant with a surprise. This surprise was the fact that a whopping sum of GH¢21,300.00 had been stolen from his money bag leaving an amount of GH¢5,400.00. Complainant promptly reported the incident to the police who proceeded to pick up accused person since 1 according to the police they had intelligence that accused person had just returned from prison and lived within the vicinity. Again, it was alleged that within the period of the theft, accused person had purchased items such as a motorbike, woofer and a flat screen television set which raised suspicion against accused person. Furthermore, when a search was conducted in the room of accused person, the police retrieved a passbook which had in it a recorded transaction to the effect that on the 1st of June 2023 an amount of GHC10,600.00 was deposited into an account which accused person held at the Asutifi Rural Bank. The Police extended investigations to the said Bank and it was revealed that the monies accused person deposited were in fact GHC200.00 denominations. Based on these facts, Prosecution strongly felt that the theft must have been committed by accused person. Prosecution further alleged that, accused person offered no reasonable explanation for his recent financial windfall. This was the gamut of Prosecution's case leading to accused person being charged with the above identified offences for which he pleaded not guilty. Having denied the offence, Prosecution began its onerous task of proving its case beyond reasonable doubt in accordance with Section 11(2) of the Evidence Act 1975 (NRCD 323) which provides as follows; ”In a criminal action the burden of producing evidence, when it is on the prosecution as to any 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”. Prosecution proceeded to call complainant (Pw1) who testified to the effect that on the 31st of May 2023, he withdrew an amount of GHC17,000.00 from his account 2 which he held with the Ahafo Community Bank at Dadiesoaba and on the same day withdrew GHC9,700.00 from his mobile money account making the total sum he withdrew on the day in question, GHC26,700.00. Pw1 averred that, he took the money home, placed it in his brown hand bag, hung it in his room and left for town. He returned a few hours later but since it was late, he did not check the contents of his bag till the following morning when upon checking he realized that an amount of GHC21,300.00 had been stolen causing him to lodge a complaint with the police. One observes from the evidence in chief of Pw1 that he makes no mention of accused person as being the culprit. It was under cross examination that he however sought to link accused to the crime when he was questioned as follows; Q. Why did you cause my arrest? A. I caused your arrest because I suspect that you stole my money and used same to purchase items. Q. What evidence do you have to establish your alleged suspicion? A. Investigations by the police revealed that you stole the money. Again when the money got stolen you purchased various items within the period. It thus became clear that Pw1 caused the arrest of accused person based on the suspicion that the theft was perpetrated by the accused person and the basis for his suspicion were that accused person had purchased various items within the period of the theft, an amount of money was found deposited into accused person's account on the 1st of June 2023, accused person's previous character and the inconsistent statement given by accused person to the police upon is arrest. Pw1 however led no evidence to substantiate the suspicions he enumerated during his cross examination. His assertions thus were mere suspicions and as held in the case 3 of State v. Ali Kassena [1962] 1 GLR 144 a multitude of suspicions put together cannot constitute proof. The testimony of the Investigator, D/Insp. Richard Nartey Djiku (Pw2) was however, a bit more detailed as he added a bit more flesh to the bones Pw1 had earlier conjured. In his evidence in chief, Pw2 confirmed that indeed monies belonging to complainant had been stolen and that the sum left un-stolen amounted to GHC5,400.00 which were in GHC200.00 denominations. He proceeded to enumerate why he believed that the crime was perpetrated by accused person. Firstly, that a search conducted in the room of accused person revealed a passbook emanating from the Asutifi Rural Bank which indicated that on the 1st of June 2023, an amount of GHC10,600.00 had been deposited into accused person's account. This passbook was tendered and marked as Exhibit K. A follow up at the Asutifi Rural Bank confirmed the fact that accused person had deposited an amount of GHC10,600.00 into his account on the 1st of June 2023 and that the monies accused deposited were in GHC200.00 denominations. This was confirmed by Exhibit H and H1. Secondly, Pw2 alleged that accused person made certain statements which were not only inconsistent but further checks revealed same to be false. This statement related to explanations given by accused person as to how he came by the amount of GHC10,600.00 which was deposited into his account. According to Pw2 accused person initially alleged that he withdrew an amount of GHC8,000.00 from is mobile money account in the month of May 2023 and when he added his personal earnings same amounted to the sum he had deposited. In his further statement however, accused alleged that his mother who lives in Nigeria gave one Vivian an amount of GHC10,000.00 to be given to him and that he added an amount of GHC600.00 and subsequently made the said deposit. These statements were captured in accused person's caution statement 4 and further caution statement tendered and marked as Exhibits A and B. Thirdly, Pw2 indicated that, he managed to obtain the mobile money account statement of accused person which indicated that no such withdrawal had taken place as alleged by accused person. It was based on the above discoveries obtained during investigations that caused Pw2 to strongly believe that accused person had a hand in the offence and hence proceeded to charge him. No doubt the above allegations raise reasonable suspicion which point to accused person as having obtained the monies through suspicious means. It is thus no wonder that accused person sought to disassociate himself from the statements attributed to him. Indeed, these allegations if established amount to circumstantial evidence which may very well nail accused person to the commission of the crime. Circumstantial evidence is permitted at law and if cogent enough can be used to establish facts in issue, particularly the guilt of an accused person. The presumptive or circumstantial evidence relied on must be conclusive of guilt and incompatible with the innocence of the accused person. [See: Noble Adu Gyamfi V. The Republic (2015) JELR 66821 (SC)]. The essence of circumstantial evidence cannot be downplayed. Lord Hewart LCJ described it as the best evidence in the case of R v Taylor 1928) 21 CR. App.R.20 where he opined that; “It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best: it is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial” It is imperative to however note that, circumstantial evidence must lead to the irresistible conclusion that it is the accused person and no other who committed 5 the offence. If circumstantial evidence still leaves a possibility of the innocence of the accused person, he must be acquitted of the offence as observed by Ollennu JSC in the case of Dowuona v. The State [1964] GLR 361 SC as follows; “...a court ought not to convict upon circumstantial evidence; put in another form, there should not be conviction unless guilt is the only inference which can be drawn from the facts. Therefore, where circumstantial evidence is consistent with guilt as well as with innocence, the court must acquit”. Based on the testimony of Pw2, the circumstantial evidence which Prosecution seeks to rely upon in proof of the offences against accused person can be enumerated as follows; 1. accused person deposited an amount of GHC10,600.00 into his bank account just a day after the theft of Plaintiff's money. 2. The monies accused person deposited were in GHC200.00 denominations similar to the remaining denominations left unstolen which were in the custody of complainant. 3. Accused person gave conflicting statements as to how he came by the money he deposited into his account. 4. The veracity of his statement regarding the withdrawal of an amount of GHC8,000.00 from his mobile money account turned out to be false. Based on the above, Prosecution urges the Court to find accused person guilty of the offence of stealing and this Court tends to agree with Prosecution by virtue of the findings hereinafter discussed. It will be recalled that in the facts, it was indicated that accused person had recently been released from prison after serving a term of imprisonment. Even though none 6 of the witnesses specifically alluded to this fact, accused person in his caution statement Exhibit A, indicated that he returned from serving a term of imprisonment just about four to five months prior to the incident in question. It was further found that an amount of GHC10,600.00 was deposited into the account of accused person which he holds with the Asutifi Rural Bank on the 1st day of June 2023 which is just a day of the incident took place. The question which naturally arises therefore is, how did accused person come by that amount of money within four to five months after he gained his freedom. Accused person was not bound in any way to answer that question during investigations, since the onus was upon Prosecution to establish its case beyond reasonable doubt, however accused person opted to answer this question which in the view of the Court amounted to him shooting himself in the foot. His explanations as to how he came by the GHC10,600.00 were not only inconsistent but failed to meet the test of verification. Accused person stated in Exhibit A that he is a timber loading boy and has been so since the year 2020. That by virtue of this job he managed to save monies amounting to GHC8,000.00 in his bank account. However, prior to his two years' incarceration, he managed to transfer the GHC8,000.00 into his mobile money account which number was 0556653649. According to him upon his release about four to five months prior to the incident, he worked with some fishermen at Yeji and was engaged in small scale mining and through that made an amount of GHÇ2,000.00. He alleged that he then withdrew the earlier GHC8,000.00 from his mobile money account and added it to the GHC2,000.00 with another GHC600.00 he earned from working and deposited everything into his bank account. This explanation is certainly reasonable however it all turned out to be false as shall be seen. Firstly, since accused person alleged that he had initially deposited an amount of GHC8,000.00 into his mobile money account prior to his incarceration 7 about two years ago, there ought to have been a record such deposit. Furthermore, when he later withdrew the said GHC8,000.00 there would have been another record of this transaction. Strangely however, no such recorded transaction could be found in the alleged mobile money account he gave Prosecution. The absence of this transaction is established by Exhibits J and J1 which are the statement of account of the mobile number 0556653649. In fact, Exhibit J and J1 revealed that the number given by accused person to the police was registered in the year 2020, however it was not registered to any user and there were no recorded mobile money transactions. Furthermore, if accused person had indeed been saving gradually since 2020 in his bank account, which savings eventually amounted to GHC8,000.00, there ought to have been a record of these periodic savings. A perusal of the passbooks of accused person which were tendered and marked as Exhibits L and K revealed no such savings as he alleged. In fact according to Exhibit L which is the passbook to accused person's account he holds with Ahafo Community Bank Limited, as at the 29th of February 2021 accused had no money standing to his credit. The history of the deposits he made into the account revealed paltry sums of monies the total of which never amounts to GHC8,000.00. Strangely however in Exhibit L, on the 2nd of June 2023, which was two days after the incident, accused person deposits an amount of GHC1,000.00 into his account which is the highest amount he had ever deposited. With regards to Exhibit K, which is the passbook to accused person's account he holds with the Asutifi Rural Bank, there is no GHC8,000.00 standing to the credit of accused person prior to the 1st of June 2023. Prior to that date, the highest amount ever deposited by accused person into that account was GHC100.00 but strangely, on the 1st of June 2023 accused person deposits a whopping GHC10,600.00 into the said account. The history of the recorded transactions captured in both passbooks (Exhibit L and K) 8 which date back to 2021, do not confirm accused person's explanation that he got the money through any savings he was making into the respective accounts. In a bizarre twist, and for reasons best known to him, accused person makes a classic u-turn by alleging that upon his release from prison, his mother who lived in Nigeria sent an amount of GH¢10,000.00 to be given to him through one Vivian. He alleged that he travelled all the way to Accra to receive the said money from Vivian, added an amount of GHC600.00 to it and deposited the total into his account on the 1st of June 2023. This assertion was not corroborated by accused person himself when opted to make an unsworn statement neither did he call any witnesses to confirm his assertion. If the said Vivian, had been called, this would have gone a long way to corroborate accused person's contention since she was a material witness. This was however not done thus making the contents of Exhibit B unproven. It appears accused person knew he had committed grave blunders by making earlier inconsistent, false and unprovable statements and as such attempted to distance himself from his own statements he had earlier made to the police during trial. During the tendering of the said statements, accused person alleged that there was no independent witness when he made that statement. However, after embarking upon a voir dire, this Court ruled on the 29th of November 2023 as follows; “the Court finds that the caution statement and further statement of accused person were made in the presence of an independent witness by name constable Osafo Priscilla…” 9 By virtue of the said ruling, the Court in effect found that Exhibits A and B were procured in compliance with the dictates of Section 120 of the Evidence Act 1975 (NRCD 323) and hence were obtained voluntarily. It has been observed that the essence of the presence of an Independent Witness is to make sure the accused person’s statement was voluntarily given and not obtained under duress or threat etc. [See: Joseph Awunor. V. The Republic (2013) JELR 65477(CA)]. Consequently, this Court finds that Exhibit A and B were made by accused person voluntarily and it does not now lie in his mouth that he never made the contents therein. This Court accordingly finds the following circumstantial evidence established; i. Accused person who worked as a timber loading boy never made any savings, over the years, up to the tune of GHC8,000.00. In fact, as at the 29th February 2021 accused had no monies in his Ahafo Community Bank account as evidenced in Exhibit L while in his Asutifi Rural Bank account accused person had only GHC20.00 as at the 29th May 2023 as evidenced in Exhibit K. ii. Despite the above, on the 1st of June 2023 and 2nd of June 2023 accused person deposits an amount of GHC10,600.00 in his Asutifi Bank Account and GHC1,000.00 in his Ahafo Community Bank account respectively. iii. There were no recorded mobile money transactions in MTN number 0556653649 contrary to accused person's assertion. iv. As a timber loading boy there was no way accused person could have made an amount of GHc10,600.00 within short a space of four to five months prior to the incident, taking into judicial notice of the fact that such labourers are not paid sufficiently. 10 v. The deposits made by accused person were so sudden and too close in time to the theft that the only plausible explanation was that accused person sought to launder his ill gotten money. vi. The manager of the Asutifi Rural Bank by his letter Exhibit H indicated that, accused person on the 1st of June 2023,deposited 53 quantities of GHC200.00 notes which were surprisingly in the same denominations as the monies left in complainant's custody as evidenced in Exhibit F. vii. In any case, it is quite curious that accused person would have obtained 53 quantities of GHC200.00 from his job as timber loading boy. It is the considered opinion of the Court that monies/denominations paid for such work done would certainly have varied over time over a four-to-five-month period, which is the period accused returned from prison. The above circumstantial evidence, in the view of the Court, point only to one irresistible conclusion that it was accused person and no other who stole the monies belonging to complainant. This Court accordingly finds that, based on the evidence adduced, Prosecution had established the charge of stealing beyond reasonable doubt against accused person. Accused is accordingly found guilty on Count Two and hereby convicted. By virtue of accused persons conviction on the charge of stealing, it follows therefore that the charge of unlawful entry is also founded. The only means by which accused person could have stolen the monies belonging to complainant was for him to have entered the room complainant on that eventful day. Pw2 indicated that the window of complainant was such that, a person from outside could open it without necessarily causing damage to it as it was a bit defective. Given the fact that; 11 a. Complainant kept a quantity of GHC200.00 amounting to GHC26,700.00 in his money bag; b. The money bag was kept in the room of complainant; and c. Accused person stole the money which was kept in the room of complainant; by logical deduction and inference one can conclude that it was accused person who entered the room of complainant and he did so without the prior consent and/or knowledge of complainant. This Court therefore finds accused guilty on Count One as well and he is hereby convicted. In summary, the accused person is found guilty on the offence of unlawful entry (count one) and stealing (count two) and duly convicted on same. Prosecution has requested that sentencing be stayed in order to furnish the Court with evidence of accused person’s previous conviction. For this reason, the matter is adjourned to the 8th of March 2024 for sentencing. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE – GOASO 12