The Republic Vrs Sonabom & Another At Large [2023] GHACC 339 (9 June 2023)

IN THE CIRCUIT COURT HELD AT TARKWA IN THE WESTERN REGION FRIDAY THE 9TH DAY OF JUNE, 2023 BEFORE HER HONOUR, HATHIA AMA MANU, ESQ., CIRCUIT COURT JUDGE COURT CASE NO. B1/67/22 THE REPUBLIC VRS: 1. 2. JOHN SONABOM @ ONE BLOOD/VANDAME OSEI AT LARGE JUDGMENT 1st Accused – Present. 2nd Accused – Absent. C/Insp. Joseph Lartey – Prosecution. The accused persons stand charged for two (2) counts being Conspiracy to commit crime to wit: Robbery and Robbery Contrary to sections 23(1) and section 149 of the Criminal Offences Code 1960, Act 29 as amended by Criminal Offences Act 2003, Act 646. Section 150 of Act 29 defines robbery as when a person who steals a thing commits robbery: (a) if in and for the purpose of stealing the thing that person uses force or causes harm to any person or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing. In all criminal matters, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person(s) beyond any reasonable doubt. Article 19 of the 1992 Constitution stipulates that all accused persons are presumed innocent until proven otherwise. Although the burden of persuasion remains on the prosecution throughout the trial, the evidential burden shifts to the accused when a prima facie case has been made against him/them at the close of prosecution’s case. See section 15 of the evidence Act, NRCD 332. Prosecution’s case is premised on the fact that accused persons and another who is deceased agreed and planned on 8th June, 2022 to rob the complainant. That on 12th June 2022, the three accused persons attacked the complainant armed with pistol. During the robbery the complainant resisted and in process A1 shot at him at his right thigh after which they fled with cash the sum of GH₵9,000.00 and IPhone 11 valued GH₵3,000.00. A2 who is at large was the one who was planted outside the complainant’s frontage to watch guard. The accused person fled and they were pursued by the Bondaye Community but they managed to escape. However, as the community members did not relent in their search of the accused persons, A1 and deceased suspect resurfaced along the Bondaye-Prestea road and some youth caught them. A1 managed to escape but deceased suspect was lynched to death. On the same day and 10:00pm, A1 was spotted at Bogoso where he was apprehended and sent to the police station. The complainant/victim’s phone was found in his possession. In satisfying the legal burden in its case, prosecution filed witness statements and disclosures which they intend to rely on but prosecution failed to call the Unit Committee Chairman of Bondaye and for that reason for purposes of writing this judgment his witness statement was expunged and not used. PW1 was the complainant in the case, he recounted how A1 came into the shop where he works with the deceased suspect. According to PW1 the moment he recognised the deceased suspect he pointed a pistol at him and asked him to keep quiet, that after given the robbers an amount of GH₵9,000.00 and his IPhone 11, they asked him to kneel down but he refused. PW1 gave evidence on oath that A1 shot at his thigh when he refused to kneel down. That when they run out he shouted out for help and some people came to his aid and sent him to the hospital. PW1 gave a statement to the police and same was attached to the witness statement for the Court’s perusal. The statements made was exactly as repeated in the witness statement. During cross-examination of PW1, the accused asked why the phone was found with him when the late Baboo is the one who allegedly collected the money and IPhone II from him. PW1 responded that the IPhone 11 was found on A1 at the police station and that they came together. In my candid view, prosecution alleged the robbery was a collaborative work hence only individual who were part of the said robbery would have access to the items stolen to this end. PW1’s response re-instated the prosecution’s claim that A1 was part of those who attacked and robbed PW1. The fact that PW1 stated that A1 was paraded with three (3) others but he identified A1 as one of the robbers further establishes prosecution’s case against A1 as having been present at the scene and also having shot the complainant/victim. PW2 is the actual owner of the shop. According to PW2, he was in the house when one Isaac came to inform him that PW1 had been shot in the shop. He claims he rushed to the shop and found PW1 bleeding from his right thigh. PW2 claims PW1 was rushed to the hospital but he mentioned that Baboo and another came to the shop to rob him. A1 questioned this witness extensively. He asked: Q. What picture do you have to show I am part? A. Q. A. The police have pictures. Does the pictures show I went to steal the things? No I was not there, the shirt you wore to rob us is with the police. All through the trial this is the first time that this evidence of A1 leaving his shirt coming to the Court’s knowledge. Without any evidence before this Court of an existing shirt I find myself unable to talk about same. The investigative officer was PW3 and I must state that his work entailed reproducing the witness evidence and facts attached to the charge sheet back to the Court. Even a picture of the accused upon arrest was not taken, neither did he photograph the bag found on accused with its contents. The investigative work done was arm chair based but from the evidence of the complainant, victim, accused’s statement and evidence of the complainant, accused’s statement and the IPhone 11 found on the accused the evidential burden have shifted on the accused. To establish/satisfy the ingredients of robbery it was prudent that prosecution establish that a crime of stealing had occurred and force or harm was used in committing the crime. PW3 however brought the mobile phone that was retrieved and prayed for same to be admitted and marked along with the investigative and charged statement of the accused, photograph of the scene and photograph of the injured PW1. Among the exhibits tendered was the medical report of PW1 which was duly endorsed and stated that PW1 was bleeding and had multiple punctured wound on his right high thigh. The report also stated that said wounds were from an alleged shooting. From the accused’s investigative/charged statement the accused clearly has an established relationship with the deceased suspect. Satisfied that a prima facie case has been made against the accused, the court directed the accused to open his defence. See Gligah & Atiso Vrs. The Republic [2010] SCGLR 870. In entering a defence, it is expected that the accused will adduce evidence that will cast doubt on the prosecution’s case thus if the accused person’s defence raises more questions in the prosecution’s claims and evidence then the court must acquit the accused. The Supreme Court in the case of MICHAEL ASAMOAH & ANOR. VRS. THE REPUBLIC (Criminal Appeal No: 13/4/2017 dated 26th July, 2017) outlined 4 grounds which a trial court must consider in determining whether a case has been made against an accused as follows: (a) (b) There had been no evidence to prove an essential element in the crime. the evidence adduced by the prosecution had been so discredited as a result of cross-examination or (c) The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it. (d) The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt and one with innocence. See the cases of Tsatsu Tsikata Vrs. The Republic [2003 – 2004] SCGLR and Kofi alias Buggalo Vrs. The Republic [1987 – 88] 1GLR 250. The accused person gave evidence on oath that the deceased accused called him to come and stay with him. The 1st accused claimed he showed him where his house keys were but 3 days after staying there someone told him Baboo had been shot while in a robbery so it would be better if he left the house. Accused claimed he had no money to pay for his transport so the driver and mate arrested him and sent him to the police station. The accused stated that he was beaten up and accused of the crime of robbery. During cross-examination by prosecution, he was asked: Q. Do you know Baboo? A. Yes, he gave me a place to stay. Q. How long have you known him? A. I have known him for 4 days. Q. Which places did he send you; how did you know him? A. He gave me a place to stay; he did not send me anywhere in particular. All through the accused person’s responses to questions asked under cross- examination, the accused maintained that he did not have a long stand relationship with the deceased suspect. Accessing the evidence the court was left to ponder on the following questions. Would a reasonable person meet you for the first time and invite you to live with him? Also if your roommate is said to have been killed in a robbery why must you run away? These questions and the fact that accused had initially said Baboo (deceased/suspect) called him and showed him where his keys were implies an existing relationship before the two’s presence in Prestea. At the end of the day the accused person’s evidence and responses punches more holes into his defence. From the totality of evidence presented, apart from the identification parade during which the accused was pointed out, there is also some circumstantial evidence at play in this case. The accused per the finding of prosecution was staying with the deceased/suspect in his house. That on the same day the deceased/suspect was lynched, who happened to be his roommate he decided to run from the town. Thus from the 1st accused reaction, it can be inferred that he knew the deceased suspect because his act of robbery did not surprise him but rather scared him. The normal reaction of an innocent roommate in this instance would have been to be sad and mourn his friend and not to take off because he heard of a robbery claim against him. Again, the driver of the car that sent accused to the police station might have observed that something was not right with the A1’s behaviour but because he was not presented to the court, the court can only say that if one board any means of transport and has no money it is a known fact that you may be made to alight from the car, it is highly unusual that a driver will change his travelling route and head to the police station just to drop the accused person for not having transportation fare. I find that the circumstantial evidence against the accused as well as the direct evidence has aided the prosecution in establishing the guilt of the accused beyond all reasonable doubt. The final blow in accused’s case was the phone of PW1 which was found on him. If the accused had not been in contact with the deceased/suspect, it will have been impossible for the phone to be found on him especially as the deceased/suspect died when lynched by the mob after the crime. The evidence presented as a defence was so porous. Accused sought to convince the court that someone he just meet took him into his house and let him stay there. Initially, he said deceased/suspect called him and showed him where the keys were then he changed his claim to having met him and being offered a place to stay. The accused defence did not raise any doubt in the mind of the court as to his guilt. See the case of Dexter Eddie Johnson Vrs. The Republic, Criminal Appeal J3/3/2010 dated 16th March, 2011. I hereby convict 1st accused on the charge of robbery. It is a fact that one person cannot conspire to work together. A2 has been at large all through the trial. As his trial has been held in absentia, he is bound to the same faith as A1. In imposing a sentence on this accused person the court is seeking to impose a deterrent one. The accused person in this case is on bail from the Obuasi District Court in respect of a murder charge and was yet to be committed. I have taken this into consideration as the previous antecedents are considered during sentences. 1st Accused and 2nd Accused are hereby sentenced to fifteen (15) years imprisonment with Hard Labour on each count. A2 when found is to be considered as a convict person and is also sentenced to 15 years imprisonment on each count. The sentencing is to run concurrently. (SGD.) H/H. HATHIA AMA MANU, ESQ. (CIRCUIT COURT JUDGE) 8