LUTTERODT VRS REPUBLIC (F/CRA/AHC/27/2024) [2025] GHAHC 38 (20 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE AND IN THE HIGH COURT OF JUSTICE, AMASAMAN, ACCRA IN THE GREATER ACCRA REGION HELD BEFORE HIS LORDSHIP JUSTICE ALEXANDER GRAHAM (J) JUDGMENT GIVEN; ON MONDAY, THE 20TH DAY OF JANUARY, 2025. SUIT NO: F/CRA/AHC/27/2024 RICHMOND KWEKU LUTTERODT - APPELLANT VS THE REPUBLIC - RESPONDENT JUDGMENT __________________________________________________________________ 1. INTRODUCTION This an appeal against the decision of Her Honour Dora G.A. Inkumsah sitting as a Circuit Court judge dated the 4th May, 2023. The Appellant, Richmond Kweku Lutterodt was arraigned before the child-friendly Circuit Court Dovvsu Headquarters, Accra. STATEMENT OF OFFENCE Engaging in domestic violence to wit: Physical abuse contrary to Sections 1(b)(i) and 3(2) of the Domestic Violence Act 2007 (Act 732). PARTICULARS OF OFFENCE Page 1 of 12 RICHMOND KWEKU LUTTERODT: A SOLDIER: In the month of September 2021, at Teshie Camp in the Greater Accra Region and within the jurisdiction of this Court, you beat up SUSUANA AGGREY LUTTERRODT. your wife using your hands. BRIEF FACTS The facts of the case as presented by the Prosecution are that the Complainant, Sussana Aggrey Lutterodt is a musician and lives at Kasoa. The complainant and the Appellant are a married couple who have lived together for six years without a child. Sometime in September 2021, the complainant alleged that one Francis Atasi came to inform her that, the Appellant promised to recruit him into the Ghana Army and the process was delaying so she should relay the information to the Appellant. When the Appellant returned home and the complainant delivered the message to him, the Appellant took offence and beat up the complainant. PLEA AND SENTENCE The Appellant pleaded ‘NOT GUILTY’ to the charge. The trial court on 13/03/2024 found the Appellant guilty of the offence and sentenced him to a term of one and a half years imprisonment in hard labour and to pay 450 penalty units (GH¢ 5400) or in default serve a term of six months imprisonment. GROUNDS OF APPEAL The trajectory of the instant appeal falls on two main grounds: (a) The Judgment of the Court cannot be supported having regard to the evidence on record. (b) The sentence is harsh and excessive having regard to the circumstances of the commission of the alleged crime. LAWS ON APPEALS Page 2 of 12 An Appeal is by way of rehearing. In explaining this principle, the Supreme Court in OBENG GYEBI V THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2021 dated 26th May 2021 stated as follows: "This does not mean that the appeal is a complete re-hearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him. Criminal appeals are governed primarily by the Courts Act, 1993 (Act 459) and Section 326 of the Criminal Procedure Act, Act 30, 1960; Section 326 of Act 30 states as follows: (1) Every appeal shall be made in the form of a petition in writing presented by the appellant or his counsel, and every such petition shall (unless the High Court otherwise directs) be accompanied by a copy of the judgment or order appealed against. (2) Where the appellant is represented by counsel the petition shall contain particulars of any alleged error of law or of fact on which the appellant relies. Section 31(1) of Act 459 states clearly that, an appellate court shall allow an appeal if the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment in question was wrong or that there has been a miscarriage of justice Section 31(2) of the Courts Act, 1993 gives this honourable court the power to dismiss an appeal in a criminal matter where no substantial miscarriage of justice has occurred against the appellant. This Court is clothed with the power of appellate jurisdiction to reverse the findings and sentence of an accused, acquit or discharge them as the case may be or order for retrial by a Court of competent jurisdiction or commit him for trial. Page 3 of 12 THE PARTICULARS OF ERRORS COMPLAINED OF. a) The trial Judge failed to consider that the Appellant was a first-time offender b) The trial Judge failed to consider that the Appellant was the breadwinner of two minors. c) The trial Judge failed to consider that the Appellant had custody of two minors. d) The trial Judge erred in law by placing the burden of proof on the Appellant thereby occasioning a grave miscarriage of justice. e) The trial Judge erred when she stated that the only issue for the trial was whether the Appellant had raised a reasonable doubt. f) The trial Judge failed to consider that in criminal matters the burden of proof rests on the prosecution. g) The trial Judge erred by relying on irrelevant evidence to convict and sentence the Appellant thereby occasioning a grave miscarriage of justice h) The trial Judge relied on alleged other unprosecuted offences such as threats to kill and cause harm, and emotional and verbal abuse not borne out of the charge sheet i) The trial Judge relied on evidence of alleged abuses in June. July, and August 2021 whose particulars were not given in the charge sheet. as follows: MEANING OF DOMESTIC VIOLENCE Domestic violence means engaging in the following within the context of a previous or existing domestic relationship: (b) Specific acts, threats to commit, or acts likely to result in (i) physical abuse, namely physical assault or use of physical force against another person including the forcible confinement or detention of another person and the deprivation of Page 4 of 12 another person of access to adequate food, water, clothing, shelter, rest, or subjecting another person to torture or other cruel, inhuman or degrading treatment or punishment; PROHIBITION OF DOMESTIC VIOLENCE (2) A person in a domestic relationship who engages in domestic violence commits an offence and is liable on summary conviction to a fine of not more than five hundred penalty units or to a term of imprisonment of not more than two years or to both. ELEMENTS OF DOMESTIC VIOLENCE From the above sections of the Domestic Violence Act, the elements of the offence can be stated as follows a) The Appellant and the complainant are in a domestic relationship b) The Appellant committed acts that resulted in physical assault or the use of physical force against the complainant c) The Appellant threatened to commit acts that would result in physical assault or the use of physical force against the complainant d) Appellant committed acts likely to result in physical assault or the use of physical force against the complainant e) The Appellant forcibly confined or detained the complainant f) The Appellant deprived the complainant of access to adequate food, water clothing, shelter or rest. g) The Appellant subjected the complainant to torture or other cruel inhuman or degrading treatment or punishment. GROUND ONE The case of the Appellant is that his conviction by the trial Court cannot be supported by the evidence on record. The Appellant is also aggrieved on the grounds the trial Circuit Court placed the burden of proof on him thereby occasioning a grave miscarriage of justice. Page 5 of 12 Article 19 (2) of the Constitution 1992 provides that a person charged with a criminal offence shall be presumed innocent until he is proven or has pleaded guilty. The effect of this constitutional provision is that the onus of proof is on the Prosecution. This Constitutional provision has been applied in a plethora of cases in our Ghanaian Criminal jurisprudence. In WOOLMINGTON V DPP (1935) 25 CR. APP R 72 Lord Sankey stated the position of the law as follows: "No Matter what the charge or where the trial. The principle that the prosecution must prove the gullt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained". Korsah CJ buttressed the point in WOOLMINGTON V DPP (SUPRA) and stated the law in COMMISSIONER OF POLICE V ISAAC ANTWI [1961] GLR 408 thus: "The law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything but to raise a reasonable doubt". The Evidence Act 1975 NRCD 323 also provides under sections 11 (1), (2) and 15 (1) as follows; S.11(1) "For the purposes of this Decree, the burden of producing evidence means the obligation of a party to produce sufficient evidence to avoid a ruling against him on that issue". (2) "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 reasonable doubt". Emphasis supplied 15(1) "Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue" Page 6 of 12 In light of the above-cited authorities, the Prosecution who asserts that an accused person has committed a crime bore the onus to produce enough evidence to convince the trier of fact beyond reasonable doubt that the accused committed the crime. To succeed in this task, the Prosecution must be able to produce sufficient and credible evidence to prove the existence of all the essential ingredients that make up the crime beyond a reasonable doubt. In an attempt to prove these elements of the offence, the prosecution relied on the evidence of; PWI- SUSUANA AGGREY LUTTERODT PW2- NO.5151 DPW/SGT EUNICE KUMI PW3- DR. PATRICK BEDIAKO PWI testified that one Francis called her to inform her that the Appellant had taken his money and promised to recruit him into the Ghana Army, but the process was delaying. PWI further stated that when the Appellant returned from work and she informed him about it, the Appellant took offence and beat her. This according to PWl happened in September 2021. PW1 further stated in paragraph 4 of her Witness Statement that she dislocated her neck as a result of the assault. This court noted that PW1 did not call any witness to the said assault. PW2 testified that on 08/02/2022, PW1 came to the unit to report a case of assault against the Appellant and the case was referred to her. PW2 stated that her investigations revealed that in September 2022 the Appellant came back from work and physically assaulted the complainant. PW2 did not mention any eyewitness to the alleged assault that she spoke of. The particulars of the offence as captured in the charge sheet indicate that the alleged offence occurred in the month of September 2021. The prosecution was required under law to provide sufficient evidence to show that in the month of September 2021, the Appellant assaulted PW1. Page 7 of 12 PWI under cross-examination on 29th June 2023 testified as follows: Q. I want to know the exact date you claim I assaulted you? A. My Lord it was in June 2021. Q. My Lord I want to ask her the reason why you reported that I assaulted her mercilessly in September 2021 but the police medical report is dated 23rd August 2021 and the doctor saw her on 6 January 2022. A. The reason is, I've been seeking money to go to hospital to sign my police form. I even called him to give me money to care for me at Military hospital – he insulted me…. It is noted that while PW1 empathetically stated under cross- examination that the alleged offence took place in June 2021, PW2 on her part stated that the alleged offence referred to her for investigations took place in September 2022. This court makes a finding of fact that none of the witnesses was able to provide direct evidence that the Appellant committed the offence in September 2021. When the Appellant questioned PWI as to how he could not assault her in September 2021 when the police medical form is dated 23rd August 2021, PWI could not provide any cogent reason. It is therefore evident that the Appellant did not commit any assault on PW1 in September 2021 as captured in the particulars of the offence. There are a number of cases in the law reports which have held that an omission of particulars or an averment which is a sine qua non or constitutes the gravamen of the offence is fatal to the charge and cannot be cured by the evidence. The correct law is as stated in ANDOH V THE REPUBLIC (1970) CC 42, CA and STATE V LAWMANN [1961] GLR (PT11) 698, SC. The holdings are consistent with the provisions of Act 261, which amended sections 112 and 202 of Act 30. See also Act 459, s 31. Simply stated, the correct law is that it is sufficient for the charge to contain particulars necessary to give reasonable information to the accused as to the nature of the charge he faces. This requirement is not inconsistent with the constitutional provision that a person Page 8 of 12 charged with a criminal offence shall “be informed immediately in a language that he understands, and in detail, of the nature of the offence charged”: SEE THE 1992 CONSTITUTION, ART 19(2)(D). In THE REPUBLIC, VRS ERNEST THOMPSON & 24 ORS, CRIMINAL APPEAL NO. H2/18/2019 delivered on 3rd April 2020, the Court of Appeal relying on the Supreme Court case of JOHN DAVID LOGAN VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/1/2006 delivered 7th February, 2007 stated the law as follows: The Supreme Court, in the case of 1. JOHN DAVID LOGAN 2. FRANK DAVID LAVERICK VRS THE REPUBLIC [SUPRA] stated the importance of particulars of offence that whatever evidence that was led in support of a charge should directly concern and be in line with the particulars of the offence as given by the prosecution. The Supreme Court, after reciting in detail the facts of the case said: "These are the facts as given by the prosecution, and in support of which evidence was led to prove the prosecution's case against the accused person. And whatever evidence was led in support should directly concern and be in line with the particulars of the offence as given by the prosecution. This admonishing becomes necessary when particulars of Al and A4's travels from Spain to Ghana and Brazil and continued to Venezuela, then to Calabar in Nigeria and Mallegu in Equatorial Guinea are given. These places mentioned in the facts of the case do not form part of the particulars of the offences given by the prosecution and therefore should not have any place in the scheme of reckoning in this case. Any attempt to connect any of the accused persons to these places mentioned would amount to the importation of evidence not forming part of the case, and which if relied upon would amount to miscarriage of justice.” See also the recent Court of Appeal case of CASSIEL ATO FORSON AND 2 ORS VRS THE REPUBLIC SUIT NO. H2/22/2023 DELIVERED 30TH JULY 2024. Page 9 of 12 The above authorities highlight the importance of the particulars of offence in our criminal jurisprudence and the need for the Prosecution to lead evidence that is directly related to the particulars of offence. Any evidence therefore, not related to the particulars of the offence if admitted will amount to the importation of evidence not forming part of the case and if relied upon would amount to a grave miscarriage of justice which also springs a surprise on the accused person. Under cross-examination, PWI testified that the accused person assaulted her rampantly in June, July and August 2021. The above statement relied upon by the trial Court amounts to an importation of evidence not directly linked to the particulars of the offence. The particulars of the offence stated that the alleged offence the Appellant was charged with occurred in September 2021 which the Prosecution failed to prove. The burden on the Prosecution was to lead enough evidence to show that the accused committed the alleged offence in September 2021 as stated in the particulars of the offence and the Prosecution failed to discharge this burden. This court makes a further finding of fact that the trial Circuit Judge erred by admitting extraneous evidence not directly linked to the particulars of the offence and thereafter erroneously relied upon the same to convict and sentence the Appellant. PWI was referred to the neurosurgeon and orthopaedic surgeon for the operation for cervical spondylosis which she developed due to the many beatings the accused person has subjected her to. However, there was no scintilla of evidence to support the above statement made by the trial Circuit Court. PW3, the medical doctor stated that PWI was already in cervical collar when she came to the hospital. It must also be noted that the PW1 reported to the doctor sometime on 6th January, 2022 with a medical form issued to her from the police in August 2021. Page 10 of 12 PW3 testified that cervical spondylosis has many causes including old age and trauma. On page 49 of the ROA, PW3 in response to a question asked by the trial Court testified as follows: Q. Please can you tell us the meaning of cervical spondylosis? A.Per my research, cervical spondylosis contributes to severe cheek and neck pains associated with tingling sensation. It is in Exhibit B. A "Cervical spondylosis is when there is extra bone spur in a part of the bone with varied causes of which age is one, trauma is one". PW3 never stated anywhere that the cervical spondylosis suffered by PWI was a result of many beatings by the Appellant. The medical form issued to the complainant was dated 23rd August, 2021. The alleged offence could not have happened in September 2021 when the medical form issued to PWI was dated in August 2021. This casts a doubt on the case of the Prosecution. The trial Circuit Court fell into grave error of law when she relied on what she considered to be unprosecuted offences like threat to kill, threat to cause etc. found in page 94 of the ROA. These alleged unprosecuted offences were not included in the charge sheet and it was wrong on the part of the trial Court to rely on those allegations to convict the Appellant. What this suggests is the trial Judge was prosecuting the other alleged unprosecuted offences without adequately giving the Appellant the means to appropriately mount a defence against them. Having relied on these unprosecuted offences to convict the Appellant, this court is of the opinion that the trial Court occasioned a grave miscarriage of justice. Having found from the analysis above that there has been a miscarriage of justice on the part of the trial court, the second leg of the grounds of appeal is therefore otiose. Appellant is hereby acquitted and discharged. (SGD) H/L ALEXANDER GRAHAM (J) Page 11 of 12 (JUSTICE OF THE HIGH COURT) PARTIES : APPELLANT PRESENT COUNSEL : NANA MOKOA DES-BORDES ESQ.FOR THE APPELLANT - PRESENT JESSIE TAGOE-KORLI ESQ. FOR REPUBLIC / RESPONDENT – ABSENT Page 12 of 12