REPUBLIC VRS. OFOSU (B3/21/2024) [2024] GHACC 351 (9 December 2024)

1 IN THE CIRCUIT COURT, JUASO HELD ON MONDAY, THE 9TH DAY OF DECEMBER, 2024, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. CASE: B3/21/2024 THE REPUBLIC VRS JOHNSON OFOSU JUDGMENT: The accused person herein has been charged with one count of Threat of Death Contrary to Section 75 of the Criminal Offences Act 1960, Act 29. The combined effect of the particulars of the offence is that on the 5th day of March 2024 at Akronwe in the Ashanti Circuit and within the jurisdiction of this court the accused person threatened Balley Bartey (PW1 herein) with the following words “you wait and see what will happen to you, we shall meet at the cottage, I will poison your drinking water to kill you and all your fowls, I will hide dynamite under your coal pot to explode to kill you when you set fire to the coal pot” with intent to put PW1 in fear of death. The accused person pleaded not guilty so prosecution assumed the duty to prove his guilt. The fundamental rule in our criminal justice system as stated in the 1992 Constitution, Article 19 (2) (c) reads: “19 (2) A person charged with a criminal offence shall- 2 (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic (2012) 41 MLRG 53 at 61-62 per Akuffo JSC as follows: “ …. The citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt.” The above clause means that the accused person herein charged is not guilty of the offence right from the time of his arrest including the time when he is arraigned before the court. It is only after the accused person himself has pleaded guilty that he may be pronounced guilty. However, if the accused person pleads not guilty to the offence, his accuser has to prove that he is guilty. In the instant the accused person has pleaded not guilty so the onus of proving his guilt is on the prosecution. See: Essentials of Ghana Law of Evidence by Justice Brobbey at pages 45-55. Sections 13 (1) and 22 of the Evidence Act, 1975 (NRCD 323) place the burden on the prosecution to prove his/her case beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975 (NRCD 323) provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. Section 22 of the Evidence Act, 1975 (NRCD 323) also provides: 3 “22. in a criminal action a presumption operates against the accused a s to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” See: Abakah Vrs The Republic (2010) 28 MLRG 111 CA The prosecution has a duty to prove the guilt of the accused person charged beyond reasonable doubt. The burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused person will be called upon to give his side of the story. See: Amartey Vrs The State (1964) GLR 256. Gligah & Another Vrs The Republic (2010) SCGLR 870. Dexter Johnson Vrs The Republic (2011) SCGLR 601. The dictum of Lord Denning in the case of Miller Vrs Minister of Pensions (1974) 2 ALLER 372 at 373 is relevant to our understanding of the phrase “beyond reasonable doubt”. According to Lord Denning: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” In the same case “proof beyond reasonable doubt” was explained as follows: 4 “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” See also: Tetteh vrs The Republic (2001-2002) SCGLR 854 Dexter Johnson vrs The Republic (2011) 2 SCGLR 601 Francis Yirenkyi vrs The Republic (2017-2020) 1 SCGLR 433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 delivered on the 21st day of July 2021 This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof to the hilt. In Abdulai Fuseini vrs The Republic Criminal Appeal No. J3/02/2016 6th June, 2018, the Supreme Court reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means proof of the essential ingredients of the offence charged and not mathematical proof”. It is the duty of the prosecution to prove each and every ingredient of the offence, which is a precondition to securing conviction; unless the same statute places a particular burden on the accused person. The accused person is not under any obligation to prove his innocence. It is only when the defence is not reasonable probable that the accused person would be convicted. 5 In C.O.P Vrs Antwi (1961) GLR 408 SC it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly. The fact that the prosecution has the burden to prove the case beyond reasonable doubt does not change according to the status or disposition of either the accused person or the complainant involved neither do they change according to the charges preferred nor the public perception, concern or reaction in respect of the accused person in question. This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935) AC 462 at 481-482 in the following words: “No matter what the charges or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of our common law of England and no attempt to whittle it down can be entertained.” The import of all the above authorities, statutes and case law is that, it is the prosecution that is to prove the guilt of the accused person. The accused person is not to prove his innocence. In fact, he should not even show up his hands until the need arises. All that the accused person is required to do when invited to open his defence is to raise reasonable doubts regarding his guilt. It is only when the defence raised by the accused person is not one that can exonerate him that he would be convicted. See: Atsu Vrs The Republic (1968) GLR 176 CA. Tsatsu Tsikata v The Republic (2003-2004) SCGLR 1068. 6 Proof by the prosecution can be direct or indirect. It is direct when an accused person is caught in the act or has confessed to the commission of the crime. Thus, where an accused person was not seen committing the offence, his guilt can be proved by inference from surrounding circumstances that indeed the accused person committed the said offence. This type of evidence derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See: Logan Vrs Lavericke (2007-2008) SCGLR 76. Dexter Johnson Vrs The Republic (2011) 2 SCGLR 601 @ 605. State Vrs Anani Fiadzo (1961) GLR 416 SC. Kamil Vrs The Republic (2010) 30 GMJ 1 CA. Tamaklow Vrs The Republic (2000) SCGLR 1 SC. Bosso Vrs The Republic (2009) SCGLR 470. In Kingsley Amankwah (a.k.a. Spider) vrs The Republic supra, the Supreme Court referred to Frimpong @ Iboman vrs the Republic and held that where direct evidence was lacking, but there were bits and pieces of evidence connecting the appellant to his deep involvement in committing the offences with which he had been charged, the court must not shy away from using such strong circumstantial evidence. It must be noted that the standard of proof required in establishing whether or not there is a prima facie case against the accused person is not at the same level of proof beyond reasonable doubt as required at the end of the case. See: Tsatsu Tsikata Vrs The Republic (2003-2004) SCGLR 1068 at 1094-1095. It would therefore be wrong to presume the guilt of an accused person merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie 7 evidence from which the guilt of the accused may be presumed and which therefore calls for explanation by the accused. See: The State Vrs Sowah & Essel (1961) 2GLR 743 at 745 Prosecution in this case called three witnesses in support of his case. Barley Bartey was prosecution’s first witness (PW1), Kwabena Yeboah as prosecution’s second witness (PW2) and No. 45978 D/Sgt. Asumani Godfred the investigator in this case as prosecution’s third witness (PW3). Prosecution also tendered in evidence his exhibits for the case. According to PW1, on the 5th day of March 2024, at about 2:00pm, he went to Bimma town to grind corn and entered a nearby drinking bar to buy sachet water where he met accused person and his friend. Immediately accused person saw him, he started raining insults on him with the following words "stupid Dagaati man who inflicted cutlass wound on me and in Court he claims he doesn't understand twi language, you are a donkey and a slave" but he did not utter a word and accused spat on him. One Kwabena Yeboah who was inside the bar confronted the accused and the accused slapped him. The Accused then threatened him with words to wit "you wait and see what will happen to you, we shall meet at the cottage, I will poison your drinking water to kill you and all your fowls, I will also hide dynamite under your coal pot to explode and kill you when you set fire to cook". Thereafter the bar owner gave him water to wash the saliva and he later reported the case to the Police at Patriensa and accused was arrested. It is the evidence of PW2 that he was in one Ama Kwaane's drinking bar with others including accused person on the day of the incident. Whiles in the bar, PW1 entered to buy sachet water and the accused started to rain insults on him with the words "stupid Dagaati man, northerner like you, you are a slave" and other abusive words. He then 8 confronted accused person to put a stop to the insults but he slapped him. Accused person spat on PW1 but he did not utter a word and he went on to threaten PW1 with the words "I will poison your drinking water to kill you and all your fowls, I will hide dynamite under your coal pot to kill you". Thereafter, he accompanied PW1 to the Police Station at Patriensa to lodge a complaint. According to the investigator in this case, he invited the accused person to the Police Station the same day and took an investigation cautioned statement from him in the presence of an independent witness. He visited the scene of crime with both PW1 and the accused person and met the bar owner Ama Kwaane who confirmed to Police that she heard the accused insulting the complainant. The bar owner again stated that accused spat on PW1 and she gave him water to wash the saliva but she declined to give a Statement to the Police. He took a photograph of the drinking bar where the incident crime occurred and charged the accused. The law is settled that at the close of the prosecution’s case the court is to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only when the court is satisfied that all the ingredients have been established by the prosecution that the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See: Kwabina Amaning alias Tagor & anor. vrs The Republic (2009) 23 MLRG 78 CA. A prima facie case is established against an accused when the evidence led by the prosecution is on its face or first appearance without more one that could lead to conviction, if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if they hope to secure conviction of the person charged. A person is pronounced guilty only when the evidence led by the prosecution 9 in respect of the charges satisfies the standard of proof required by law and that is proof beyond reasonable doubt. The accused person herein has been charged with one count of threat of death contrary to Section 75 of the Criminal Offences Act 1960, Act 29. Section 75 provides “A person who threatens any other person with death, with intent to put that person in fear of death, commits a second degree felony.” For prosecution to succeed on a charge in respect of threat of death, the prosecution must establish beyond reasonable doubt the following: 1. That there is evidence of threat to kill issued by the accused person against the life of the complainant. 2. That the accused person intended to put the complainant in fear of death. In the offence of threat of death, the actus reus will consist in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will also consist in the realization by the offender that his threats will produce that expectation. See: Behome vrs The Republic (1979) GLR 112-128@123. “Threat has been defined under Section 17 of ACT 29 to include any threat of criminal force or harm. The law under Section 17(3) of Act 29 notes that it is immaterial whether a threat would be executed by the person issuing it or not. The determining factor is whether the victim of the crime feared death when the threat was communicated to him or her or was brought to his or her notice. In the case of R v McCraw and the recent case 10 of R v O’ Brien, the Canadian Supreme Court in both cases laid down two ingredients of threat of death; they are; the utterance or conveyance by the accused person was a threat of death, and the accused has an intent to threaten. To determine whether the words uttered constitute a threat of death, the court is required to look at the plain and ordinary meaning of the words uttered. Where the ordinary meaning of the word uttered constituted threat of death, the court is not required to look for the secondary meaning or any less obvious meaning. The test that is used to determine whether the words spoken or written by the accused constitute threat of death is how a reasonable person will perceive it. The test is an objective one and should be seen from the point of view of a hypothetical reasonable man. Stated differently, the test is how a reasonable person would consider the spoken or written words or sign language used by the accused within the context and the circumstances in which they were uttered. The prosecution in proving the offence of threat of death is not required to prove that the words uttered were brought to the notice of the intended recipient or if he had been intimidated by it or taken it seriously. Mens rea is proved where it is proved that the accused intended the words uttered to intimidate or to be taken seriously.” See: Contemporary Criminal Law in Ghana by Justice Dennis Dominic Adjei @ page 186. According to PW1 the accused threatened him that he will poison his drinking water to kill him as well as all his fowls and also hide a dynamite under his coal pot to explode and kill him when he lights fire to cook. PW2 corroborated his evidence and under cross examination, PW2 added that the accused intimated that he will get the dynamite from a galamsey site that he works at. According to PW3, he visited the said Drinking Bar and the owner of the bar confirmed that the accused insulted PW1 and even spat on him so she was the one who gave him water to wash the saliva off but she declined to give a statement. Under cross examination PW3 explained the reason why the Bar owner 11 refused to give a Statement to the police. According to him, she is known as Ama Kwani and she told him that he is afraid of the behaviour of the accused in the town so she cannot give a statement to the police as the accused will attack her. Thus, at page 16 of the Record of Proceedings the underneath transpired; Q. You have stated in paragraph 7 that the owner of the bar confirmed to the police that she heard the accused insulting PW1. If that were the case, why did you not use the bar owner as a witness? A. It is because of the accused person’s conduct in the town. The bar owner whose name is Ama Kwanin was afraid to come to the station to testify against you that you might come back and attack her. PW3 also tendered a photograph of the scene of crime in evidence. From the foregoing, a prima facie case was established against the accused person and he was asked to open his defence. As I have stated earlier, all that the accused person is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. It is only when the doubt raised by the accused person is not one that can exonerate him that he would be convicted. According to the accused person, on the 5th day of March, 2024, he decided to go to Konongo to shop and when he got to Bimma, he entered a Drinking Spot and as the place was very hot he lifted his T-shirt and a gentleman noticed the scar on his stomach and remarked that indeed the Complainant (PW1 herein) nearly killed him so he responded by saying that he is alive by the Grace of God and the case is still in court because PW1 12 indicated to the Court that he does not understand the Twi Language. He went on to say that whilst talking, a nephew of PW1 started to hurl insults at him so he also insulted him back and stepped out of the Spot but the said nephew followed him and tried to attack him but an Elder of the Church of Pentecost intervened. When he got to Konongo and was buying some agro chemicals for his farm, he received a call from the Station Officer to come to the Police Station and when he arrived, he was informed that a case of threat of death had been reported against him. The accused person in his defence does not mention PW1 at all and gives the impression that it was only the nephew of PW1 who was present at the Drinking Spot. However, in his cautioned statement he told the police that when the exchange of words was going on between PW1’s nephew and him, PW1 was present but he did not talk to him. This is obviously contradictory. The accuse was brought together with the complainant in respect of another case in which they had fought with the accused sustaining an injury. I have also observed the behaviour of the accused in court and I am convinced that indeed he threatened PW1 herein. His denial of the offence is only calculated at evading justice. All that he has done is to state that the witnesses have connived with his mother and siblings to level this charge against him. The accused has not raised doubts in the case for the prosecution and he is thus found guilty of the offence and accordingly convicted. I have listened to the prayers of prosecution and the accused person. I take into consideration that the accused is a first-time offender. The period the accused has spent in custody is hereby deducted from the sentence that follows. The accused is hereby sentenced to Seven months Imprisonment IHL. 13 SGD. NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) COUNSEL INSP. YARPHET YEBOAH FOR PROSECUTION ACCUSED IN PERSON REFERENCES OKEKE VRS THE REPUBLIC (2012) 41 MLRG 53 ABAKAH VRS THE REPUBLIC (2010) MLRG 111 CA AMARTEY VRS THE STATE (1964) GLR 256. GLIGAH & ANOTHER VRS THE REPUBLIC (2010 SCGLR 870. DEXTER JOHNSON VRS THE REPUBLIC (2011) SCGLR 601. MILLER VRS MINISTER OF PENSIONS (1974) 2 ALL ER 372 TETTEH VRS THE REPUBLIC (2001-2002) SCGLR 854 FRANCIS YIRENKYI VRS THE REPUBLIC (2017-2020) 1 SCGLR 433 KINGSLEY AMANKWAH (A.K.A. SPIDER) VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/04/2019 DELIVERED ON THE 21ST DAY OF JULY 2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.P VRS ANTWI (1961) GLR 408 SC WOOLMINGTON VRS D.P.P (1935) AC 462 AT 481-482 HL ATSU VRS THE REPUBLIC (1968) GLR 176 CA. 14 TSATSU TSIKATA VRS THE REPUBLIC (2003-2004) SCGLR 1068 LOGAN VRS LAVERICKE (2007-2008) SCGLR 76. STATE VRS ANANI FIADZO (1961) GLR 416 SC. KAMIL VRS THE REPUBLIC (2010) 30 GMJ 1 CA. TAMAKLOW VRS THE REPUBLIC (2000) SCGLR 1 SC. BOSSO VRS THE REPUBLIC (2009) SCGLR 470. THE STATE VRS SOWAH & ESSEL (1961) 2GLR 743 AT 745 KWABINA AMANING ALIAS TAGOR & ANOR. VRS THE REPUBLIC (2009) 23 MLRG 78 CA. BEHOME VRS THE REPUBLIC (1979) GLR 112-128 BOOKS ESSENTIALS OF GHANA LAW OF EVIDENCE BY JUSTICE BROBBEY CONTEMPORARY CRIMINAL LAW IN GHANA BY JUSTICE DENNIS DOMINIC ADJEI.