Republic vrs Afotey Otu (D8/14/2024) [2024] GHACC 426 (26 October 2024)

IN THE CIRCUIT COURT ‘5’ HELD IN ACCRA ON MONDAY THE 14TH DAY OF OCTOBER, 2024 BEFORE HER HONOUR MRS. CHRISTINA EYIAH- DONKOR CANN CIRCUIT COURT JUDGE SUIT NO: D8/14/2024 THE REPUBLIC VRS JEREMIAH AFOTEY OTU JUDGMENT FACTS The accused person Jeremiah Afotey Otu was arraigned before this court on the 10th January 2024 per an amended charge sheet and charged with one count of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29). The case for the prosecution is as follows: “Complainant and the victim in this case are among scrap dealers at Logotwenshie La. The accused person is unemployed and resides at La Wireless. On the 14th December, 2023 at about 9:30 a.m., the accused person and others numbering about 20 arrested and escorted one Enoch whom they claimed to have stolen a 32 inches Nasco Television set belonging to a lady known to the accused person and his group to the complainant and the victim’s work place with cutlasses and other offensive weapons asking the said Enoch to point out whom he sold the TV set to but he could not point out any one from amongst the scrap dealers. Enoch’s inability to point any one provoked the accused person and his colleagues who forcibly seized one Royal 125 motor bike belonging to one of the scrap dealers sending same away to be released after they retrieved the TV set. Complainant and the victim together with other scrap dealers followed them for the motor bike. This resulted into a misunderstanding between both parties during which a police officer met and advised them to go to the Police station for 1 assistance. On their way, on reaching La Apapa, the accused person slashed the victim on his both arms with the cutlass he was holding and fled from the scene. On 24th December 2023, the accused person was arrested from his hideout at Osu Beach. After investigations, he was charged and brought before the Honourable court.” THE CHARGE The statement and the particulars of the charge that was preferred against the accused person read as follows: “STATEMENT OF OFFENCE CAUSING UNLAWFUL HARM: CONTRARY TO SECTION 69 OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29). PARTICULARS OF OFFENCE JEREMIAH AFOTEY OTU: Age 34 years, Unemployed: That on 14/12/2023 at La Apapa in the Greater Accra District and within the jurisdiction of this court, you intentionally and unlawfully caused harm to Fuseini Alhassan by inflicting the victim with multiple cutlass wounds on his left arm.” THE PLEA The self-represented accused person pleaded not guilty to the charge preferred against him. Therefore, the prosecution assumed the burden of proving the guilt of the accused person. THE BURDEN ON THE PROSECUTION AND THE DEFENCE Before I proceed to evaluate the evidence led in this case, I will endeavour to set out the burden that the prosecution bears in this trial. In our criminal jurisprudence, it has always been the duty and obligation of the prosecution, from the outset of the 2 trial, to prove and substantiate the charge preferred against the accused person to the satisfaction of the Court unless in a few exceptions. Under the Evidence Act, 1975 (NRCD 323), the burden of proof is divided into two parts: burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence. The burden of persuasion is provided for under Section 10 (1) of the Evidence Act, 1975 (NRCD 323) as follows: “10 (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. The burden of producing evidence is also provided under section 11(1) of the Evidence Act, 1975 (NRCD 323) thus: “11 (1). For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him in the issue”. Again, in criminal proceedings, what constitutes the facts in issue depends on any relevant presumptions and the allegations involved. In the present case for example where the accused is charged with causing harm, the allegation may be that the accused intentionally and unlawfully caused harm to the complainant. The ingredients of such charge are that, the accused person caused harm to the complainant, that the harm was caused to the complainant was intentionally and the harm caused to the complainant was also unlawful. Since the prosecution is asserting these facts constituting the ingredients of the offence, it is incumbent on it to establish that belief of the accused person’s guilt in the mind of this Court to the requisite degree prescribed by law. In other words, the prosecution has the burden of persuasion to establish the guilt of the accused person. 3 When the prosecution had adduced the evidence to establish the essential ingredients which will cumulatively prove the guilt of the accused of the charge of causing harm preferred against him, the court at the end of the case of the prosecution will have to decide whether the prosecution has discharged the obligation on it to establish the requisite degree of belief in the mind of the court that the accused in fact and indeed is guilty of the offence of causing harm. Except in few instances, the measuring rod or the standard of proof for determining that the evidence adduced by the prosecution has attained the requisite degree is provided under sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 232). Sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323) provide as follows: “10 (2). The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt”. “22. In a criminal action a presumption operates against the accused as 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 a 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”. If this Court decides that the prosecution has failed to prove each essential ingredient of the offence of causing harm beyond reasonable doubt at the end of the prosecution’s case, the accused will have to be acquitted for he will be deemed to have “no case to answer”. But if this Court decides that each essential ingredient has been proved beyond reasonable doubt, then the accused will have to be called upon to put up his defence, because there will be an established presumption of guilt (a prima facie case) which he must rebut, if he does not want the presumption to stay, thus rendering him liable for a conviction. To use the language of section 11 (1) of the Evidence Act, 1975 (NRCD 323), the accused will have on him the burden of 4 introducing sufficient evidence to avoid a ruling against him that he is guilty of the offence charged. In other words, he has the burden of producing evidence. The apex court in the case of Asante No (1) vrs The Republic [2017-2020] I SCGLR 143-144 explained the burden on the prosecution as follows: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408.” However, proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt as was stated by Lord Denning in the case of Miller vs. Minister of Pensions (1974) 2 ALL ER 372 AT 373 thus: “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.” This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof beyond every possibility. 5 Lord Justice of the King’s Bench from 1822-1841, Charles Kendal Bushe also explained reasonable doubt thus: “…the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of all the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party; preoccupied by prejudice or subdued by fear.” See also: Osei vs. The Republic [2002] 24 MLRG 203, CA. Abodakpi vs. The Republic [2008]2 GMJ33. Republic vs. Uyanwune [2001-2002] SCGLR 854. Dexter Johnson vs. The Republic [2011] 2 SCGLR 601. Frimpong A.K.A. Iboman vs. Republic [2012] 1 SCGLR 297. The guilt of the accused person is sufficiently proved if the tribunal of fact is convinced that he committed the offence though there remains a lingering possibility that he is not guilty. The above is the general law on burden of proof on the prosecution as provided for in the Evidence Act, 1975 (NRCD 323). When the prosecution has established a prima facie case against the accused person, the accused person assumes the burden of producing evidence. This burden as indicated is different from the burden of proving the issue, which is on the prosecution. The difference between the burden on the prosecution and the burden on the accused is mainly in the standard of proof. Whereas the prosecution has to prove the essentials of the crime to a standard beyond reasonable doubt, the accused only has the burden of adducing evidence to create a reasonable doubt in the mind of the court regarding the prosecution’s case which is deemed prima facie to have 6 been established beyond reasonable doubt. Once this doubt had been created, the accused will be considered as having discharged his burden of producing evidence to the appropriate standard of proof. Having established the requisite burden that the prosecution ought to discharge and the burden on the accused person, it is very important to note that one fundamental legal principle pertaining to criminal trials in our jurisdiction as contained in Article 19 (2) (c) of the 1992 Constitution is that: “19 (2) A person charged with a criminal offence shall- (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 vs The Republic (2012) 2 SCGLR 1105 at 1122 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 as distinct from fanciful doubt.’’ An accused person therefore in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty. Again, it must be emphasized that the proof by the prosecution can be direct or indirect. It is direct when the accused person is caught in the act or has confessed to the commission of the crime. Thus, where an accused was not seen committing the offence, his guilt can still be proved by inference from surrounding circumstances that indeed the accused committed the said offence. See: Logan vs Lavericke [2007-2008] SCGLR 76 Head note 4. Dexter Johnson vs The Republic [2011] 2 SCGLR 601 AT 605. 7 State vs Anani Fiadzo (1961) GLR 416 SC. Kamil vs The Republic (2010) 30 GMJ 1 CA. Tamakloe vs The Republic (2000) SCGLR 1 SC. Bosso vs. The Republic (2009) SCGLR 470. ANALYSIS OF THE OFFENCE OF CAUSING HARM Under section 69 of the Criminal Offences Act, 1960 (Act 29): “A person who intentionally and unlawfully causes harm to any other person commits a second degree.” Part 1 of the Criminal Offences Act, 1960 Act 29 also defines harm as follows: “harm” means a bodily hurt, disease, or disorder whether permanent or temporary; To succeed in their case, the prosecution must establish beyond reasonable doubt each of the following three essential elements: 1. That the accused person caused harm to PW3. 2. That the harm caused to PW3 was intentionally. 3. That the harm caused to PW3 was unlawful. See: Brobbey & Ors v The Republic [1982-83] GLR 608. ANALYSIS OF THE EVIDENCE TO PROVE THE ELEMENTS OF THE CHARGE OF CAUSING HARM The prosecution in its bid to discharge the burden placed upon it called five (5) witnesses. The case for the prosecution was presented mainly by Fuseini Alhassan the victim in this case as the third prosecution witness (PW3) and supported largely by No 50218 General Corporal Eric Ackah as the first prosecution witness (PW1), No. 56805 General Constable Lariko Firdaws as the second prosecution witness 8 (PW2), Mohammed Yidana as the fourth prosecution witness (PW4) and Abdulai Yusif as the fifth prosecution witness (PW5). The prosecution also tendered in evidence various exhibits namely: the police medical report of the victim as Exhibit “A”, photograph of the cutlass and helmet as Exhibit “B”, photograph of the victim showing the wounds inflicted on his hand as Exhibits “C”, “C1” “C2” and “C3”, investigation cautioned statement of the accused person as Exhibit “D”, further investigation cautioned statement of the accused person as Exhibit “E” and the charged statement of the accused person as Exhibit “F” respectively. The accused person also testified under oath but did not call any witness. At this juncture, I will deal with the issue of whether or not the accused person caused harm to the victim (PW3). PW1 a corporal stationed at the La District Motor Traffic and Transport Department (MTTD) of the Ghana Police service stated that on the 14th December, 2023 at about 9:50 a.m., whilst he was on duty, he had a call from the Control Room that someone needed Police assistance and he was directed to La Apaapa. Upon reaching the place, he met a group of men who were engaged in an argument with some of them holding cutlasses, stones and sticks over some motor bike but they were not fighting, exchanging blows or physically attacking anyone. He told them to take whatever issue they had to the police station for assistance. On the way going, the accused person suddenly pulled a cutlass and cut the victim on his two arms. He tried to arrest him but he managed to escape so he rushed the victim to the La Polyclinic for treatment. PW2 a Constable stationed at La station C.I.D and the investigator in this case testified that on the 14th December, 2023 at about 11:20 am, whilst on duty, the complainant and the victim came to report a case of causing harm against the accused person and same was referred to him for investigation. The victim was 9 issued with a police medical report form and same was duly signed by the Medical Officer. He was led by Detective Inspector Bashiru Abubakari and together with the complainant, they visited the scene of crime at La Apaapa near the Tik Tok Pub where the cutlass used to cut the victim and the helmet he was wearing with blood stains and marks of cutlass on it were retrieved and kept for evidential purposes. He also visited the victim at Ridge Hospital. The victim was in a good condition and he obtained a statement from him. He took photographs of the victim showing the wounds with blood oozing from them. Efforts were made leading to the arrest of the accused person from his hideout at Osu Beach on 24th December, 2023, and the accused person was identified by victim as the one who caused harm to him. On the 24th December, 2023 he obtained an investigation cautioned statement from the accused person in which he denied the offence. On the 2nd January, 2024, the accused person volunteered a further caution statement in which he admitted having caused harm to the victim on both arms because the complainant injured him. It is the evidence of PW3, the victim in this case that on the 14th of December, 2023, at about 9:30 am, he was at work with his colleagues doing their usual business when a mob numbering about twenty (20) including the accused came with a suspected thief whom he later got to know as Enoch. According to PW3, the mob alleged that Enoch stole a 32 inches Nasco Television belonging to a lady and sold same to them and hence Enoch should point out whom he sold the television to but Enoch could not point out any one from amongst them but Enoch told them the buyer wasn’t in their midst and they left. It is further the evidence of PW3 that few minutes later, the mob numbering about forty (40) came back holding cutlasses, stones, and sticks and forcibly seized one Royal 125 motor bike belonging to them and told them that they are sending same away and that it will be released to them after they retrieve the television. According to PW3, the mob threatened to cut them with the cutlass if they try to prevent them from taking the motor bike away. Together with his colleagues numbering about five, they followed the accused person and his group told them 10 that they should all proceed to the La police station for assistance. On their way to the police station and upon reaching La Apaapa, a police officer appeared at the scene and told a member of the accused person’s group to ride the motor bike to the police station whilst they proceed to the police station. On their way going, the accused person suddenly pulled a cutlass to cut his head so he raised both arms and the cutlass cut them. The police officer tried to arrest the accused person but he escaped. After that the officer rushed him to La Poly clinic where he was referred to Ridge hospital for further treatment where he was finally treated. The fourth prosecution witness (PW4) testified that on the 14th of December, 2023 at about 9:30 a.m., he was at work with his colleagues doing their usual business when a mob numbering about twenty (20) including the accused person came with a suspected thief whom he later got to know as Enoch. According to PW4, prior to that, the said Enoch came to their place with someone to sell a television to them but they refused to buy same. According to PW4, members of the mob alleged that Enoch stole the 32 inches Nasco television belonging to a lady and sold same to them hence Enoch should point out whom he sold the television to but he could not point out any one from amongst them and further told them that the buyer wasn’t amongst them and they left. It is further the evidence of PW4 that few minutes later, the mob numbering about forty (40) came back holding cutlasses, stones, sticks and forcibly seized one Royal 125 motor bike belonging to them stressing that it will only be released after they retrieve the television set. PW4 stated further that his colleagues numbering about six followed the accused person and his group for the motor bike. After some time when they were not coming, he followed up and met them at La Apaapa with the policeman on the scene who advised them to take the motorbike to the police station for assistance. In the process, one man from the group slashed the victim Fuseini Alhassan’s hand with a cutlass. The police officer tried to arrest him but he escaped. After that the officer rushed Fuseini Alhassan to 11 the La Poly clinic and they all followed. Fuseini Alhassan was later referred to Ridge Hospital for further treatment. According to PW5, on the 14th December 2023, at about 9:30 a.m., he was at work with his colleagues doing their usual business when a mob numbering about twenty (20) including the accused person holding cutlasses and other offensive weapons came with a suspected thief whom he later got to know as Enoch. It is the evidence of PW5 that prior to that, the said Enoch came to their place with another person to sell a television to them but they refused to buy same. PW5 continued that the mob alleged that Enoch stole a 32 inches Nasco television belonging to a lady and sold same to them hence Enoch should point out whom he sold the television to but Enoch could not point out any one from amongst them but he told them the buyer was not amongst them and they left. Few minutes later, the mob came back numbering about forty (40) holding cutlasses, stones, sticks and forcibly seized one Royal 125 motor bike belonging to them stating that it will only be released to them after they retrieve the television set. He joined his colleagues numbering about five and together they followed the accused person telling them that they should all proceed to the La Police Station .On their way going and upon reaching La Apaapa, a police officer appeared at the scene and told them to go to the police station with the motor bike for assistance On their way, the accused person suddenly pulled a cutlass and cut the victim’s hand. The police officer tried to arrest him but he escaped. After that, the officer rushed the victim to the La poly clinic and they all followed. The victim was later referred to Ridge Hospital for further treatment. In this case, after the court had ruled that, a prima facie case has been made against the accused person, he exercised his option to open his defence. Indeed, the accused person had the burden of producing evidence, sufficient enough in the light of the totality of the evidence to raise a reasonable doubt as to whether he was the one who intentionally and unlawfully caused harm to PW3 on the 14th February, 2023. 12 See: sections 10 (1), 11 (2) and 3 of the Evidence Act, NRCD 323. See also: Ali Yusif (No.2) v The Republic [2003-2004] SCGLR 174 holding (2). It is the defence of the accused person that on the 14th December, he was sitting at a pub called Kumasi base pub when one Adjetey Stone came there and informed all of them that one Enoch Jonky has stolen a television from his wife and he said he has heard that Enoch usually sits at the Kumasi pub and he told him that he has not seen Enoch that morning. After talking to Adjetey, he went to take his bath at home. According to the accused person, Enoch had been caught when he returned home and they were beating him naked. He told the people gathered that from the time Enoch stole the television and the time he was caught is not too long so they should ask Enoch where he sold or took the television to. Enoch took them to a place where he claimed he took the television to, to sell and pointed out one young man as the one he wanted to sell the television to but the said man refused to buy. Enoch took them to another person and that person told them that he told Enoch that he does not buy serviceable televisions. According to the accused person, they pleaded with that said young man and told him that the television was a stolen property and so he should give them the number of the person he directed Enoch to go to so that they can call him but the said man said he does not know the person so they decided to take Enoch to the police station. On their way to the police station, they met some people at Katomito and they asked him what was happening and he informed them of what had happened. Whiles telling the people what had transpired, he saw some of the people going back to where they took Enoch to and they came back with a motorbike belonging to the people Enoch claimed he sold the television to. On his way going, he saw a policemen and he spoke to him and the policeman informed him that he had been contacted at the control room that a thief had been caught at Apaapa and he took him to the scene. When they got to the scene, the people told the policeman that his people had come for their motorbike and the policeman asked him to take him to his area at Kumasi pub and he did so. Upon their arrival, they 13 met a crowd and just a few minutes later, the scrape dealers arrived at the scene on their motorbikes holding a cutlass and a motor chain. One David pulled out a cutlass when he saw the scrap dealers. He quickly took the cutlass from him and told him that a policeman is involved so nobody should take any action. The policeman told them to push the motorbike to the police station. On their way to the police station and upon reaching Burkina near Tik Tok, other people related to the scrap dealers rushed on them and attacked them. He was even slapped from behind but he did not see the person who slapped him. When he turned around, he saw three people standing behind him including the victim and the victim gave him a blow on his mouth. They started beating him with the knives they were holding and they even cut his right hand with the knife. Looking at the scene and where he was standing, he could easily fall into a gutter and he got scared of what will happen to him so he intended to use the cutlass he took from David to scare them off and accidentally it cut the arms of the victim. It was not his intention to hurt anyone. They had already injured some of his people. They broke Paa Raa’s jaw and he decided to report at the police station but he was arrested instead. He did not run after this incident. He went to the beach one day with his friends and he was arrested. The prosecution in its bid to prove that the accused person caused harm to PW3, tendered in evidence as Exhibit ‘A’, the Police Medical Report. The relevant portions of the medical report, Exhibit ‘A’, read as follows: “Mr. Alhassan Fuseini a 29 year old male was rushed in this morning with multiple wounds on both arms after was allegedly stabbed with a knife by one of a group of people with whom they had an encounter with. Upon arrival client was bleeding profusely evidence by soaked cloth used around affected area. Examination of both upper extremities reveals a deep laceration upon the front part of the left elbow which is actively bleeding with one in the right elbow as well. 14 Patient was given 100mg of tramadol intravenous and then wound dressed to control bleeding. He has been referred to Ridge Hospital…” With regard to proof of the first element which is whether or not the accused person caused harm to PW3, the evidence on this point is so overwhelming. In the opinion of this court, the evidence of PW3 that the accused person caused harm to him was materially corroborated by the medical report which stated that PW3 presented at the hospital bleeding profusely evidence by soaked cloth used around affected area with deep laceration upon the front part of the left elbow on both upper extremities actively bleeding with one in the right elbow as well as being given 100mg of tramadol intravenous and then wound dressed to control bleeding. The effect of this is that harm has been caused to PW3 and that is not in doubt. The prosecution also in its bid to prove that the accused person caused harm to PW3 tendered in evidence as Exhibits “C”, “C1”, “C2” and “C3” photographs of the deep opened wounds sustained by PW3, and PW3 sitting on a hospital bed with treated wounds in bandages. Exhibits “C”, “C1” “C2”and “C3” also confirm that harm has been caused to PW3. Also, the fact that PW3 presented at the hospital bleeding profusely evidence by soaked cloth used to around affected area with deep laceration upon the front part of the left elbow on both upper extremities actively bleeding with one in the right elbow as well given 100mg of tramadol intravenous and then wound dressed to control bleeding coupled with Exhibits “C”, “C1” and “C2” beyond reasonable doubt discharged the burden of proof required from the prosecution. The totality of the evidence adduced by the prosecution witnesses and the defence at this trial together with Exhibits ‘A’, “C”, “C1” “C2” and “C3” point to one and only one fact that harm has been caused to PW3. This court is therefore convinced that the prosecution has proved beyond reasonable doubt that on the 14th December, 2023, the accused person caused harm to PW3 by 15 cutting both of his arms with a cutlass. The prosecution thus led sufficient evidence to prove beyond reasonable doubt that the accused person caused harm to PW3. I will now examine the issue of whether or not the accused person intentionally caused harm to PW3. The accused person alleged in his evidence-in-chief that on their way to the police station and upon reaching Burkina near Tik Tok, other people related to the scrap dealers rushed on them and attacked them. He was even slapped from behind but he did not see the person who slapped him. When he turned around, he saw three people were standing behind him including the one he assaulted and he gave him a blow on his mouth. They started beating him with the knives they were holding and they even cut his right hand with the knife. Looking at the scene and where he was standing, he could easily fall into a gutter and he got scared of what will happen to him so he intended to use the cutlass he took from David to scare them off and accidentally it cut the arms of the victim. It was not his intention to hurt anyone. Meaning that he did not intentionally cause harm to PW3. I am now enjoined by holding (3) in the case of Lutterodt v the Commissioner of Police [1964] 2 GLR 429 SC at 480 to examine the defence of the accused person as follows: “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (1) Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and 16 (3) Finally, quite apart from the defendant's explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” The learned author P.K. Twumasi in his book Criminal Law in Ghana at page 77 stated: “The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common law which has been accepted as an important principle of our criminal law.” Firstly, the accused person in his cautioned statement (Exhibit “D”) stated that he did not use the cutlass he snatched from David to cut anyone and that he just threw it away. Surprisingly, in his further cautioned statement given to the police (Exhibit “E”), he stated that out of provocation he used a cutlass he was holding to slash both arms of the complainant. Excerpts from Exhibit “D” are as follows: “… On our way to the police station in the company with the policeman, there was a boy holding a cutlass and I snatched it from him. Though a fight ensued between the scrap dealers and us but I did not use it to butcher anyone. I only threw the cutlass away.”” Excerpts from Exhibit “E” are as follows: “On our way to the police station, fight ensued between the scrap dealers and us. I was slapped from behind and injured on the hand by the complainant. Out of provocation I used a cutlass I was holding to slash both arms of the complainant.” Secondly, in the accused person’s further caution statement given to the police on the 2nd January, 2024 (Exhibit “E”) few days after the incident when the matter was fresh in his mind, he stated that he used the cutlass to cut both arms of PW3 out of provocation. Interestingly, in his evidence-in-chief and answers given under cross- examination, he sought to create the impression that he collected the cutlass from David to use it to scare PW3 and his people and it accidentally cut PW3 arms. 17 Thirdly, in the accused person’s evidence-in-chief, he created the impression that when the scrap dealers rushed on them, attacked them, someone slapped him from behind, PW3 also punched his mouth after which they started beating him with the knives they were holding and that they even cut his right hand with the knife. Strangely, whilst cross-examining PW3, he stated that PW3 punched his head rather. Excerpts from the accused person’s evidence-in-chief are as follows: “When we got to Tik Tok other people related to the scrap dealers came rushing on us and came attacking us. I was even slapped from behind but I couldn’t see who slapped me. When I turned around three people were standing behind me including the one I assaulted and he punched my mouth. They started beating me with the knives they were holding and cut my right hand with the knife.” The following dialogue ensued between the accused person and PW3: “Q . You are not being truthful, you in particular pulled out an orange knife to cause injury on my hand and you also bartered my head? A. No I didn’t remove any knife Q. Are you telling the court that the 3 of you who rushed on me and I almost fell into a gutter is not true? A. Nobody rushed on you.” Fourthly, the accused person in his evidence-in-chief stated that PW3 and two others attacked him, started beating him with the knives that they were holding and that PW3 even cut his hand with an orange knife. Interestingly, whilst answering questions under cross-examination, he shifted the goal post and stated that PW3 and three others rather started hitting him with a cutlass and that PW3 was holding an orange knife with the intention to stab him (meaning that PW3 did not even cut him with the cutlass) and since he was already in possession of Davis’s cutlass, he raised the cutlass and it cut PW3’s hand. The accused person answered the following questions under cross-examination: “Q. Can you demonstrate to the court what you did to scare the people? 18 A. Yes my lady. The one I wounded was standing in front of me with two other friends so they were beating me with the cutlass. So the one that I wounded was holding an orange knife with the intention to stab me. I was already in possession of David’s cutlass. The people were beating me with their cutlass so I raised my cutlass and it cut the complainant and I took to my heels.” The accused person on the 14th December, 2023 at about 9:30 a.m., together with others numbering about 20 arrested and escorted one Enoch whom they claimed to have stolen a 32 inches Nasco Television set belonging to a lady known to the accused person and his group to PW3 and PW4’s work place with cutlasses and other offensive weapons asking the said Enoch to point out whom he sold the television to but Enoch could not point out any one from amongst the scrap dealers. The accused person and his group left PW3 and PW4’s workplace. One would have thought that the accused would let sleeping dogs lie. Surprisingly, the accused person and his group return to PW3 and PW4’s workplace and forcibly seized one Royal 125 motor bike belonging to one of the scrap dealers to be released after they retrieved the television which was not a prudent thing to do. PW3 and PW4 together with other scrap dealers followed them for the motor bike. This resulted into a misunderstanding between both parties during which a police officer met and advised them to go to the Police station for assistance. One would have thought that the accused person and his group will go to the police station and seek assistance as they were advised to do. He however, collects a cutlass from one of his group members’ cuts PW3 on both arms knowing very well that was not the prudent thing to do considering that his temper was already high and flees from the scene. I do not believe the defence of the accused person that he took the cutlass from David to defend himself and it accidentally cut the victim. This assertion of the accused person is unconvincing, wishy washy and lacked substance and merit. It is infantile and inconsistent with normal acceptable behaviour and conduct and same is rejected. 19 Under the Evidence Act, 1975 (NRCD 323), section 80 (2), the court is entitled to consider statements or conducts consistent or inconsistent with the testimony of the witness at the trial to prove the credibility of witnesses. The accused person’s evidence is unworthy of credit; much weight will not be attached to it and it is also negligible. See: In State v Otchere [1963]2 GLR 463. Bour v The State [1965] GLR 1 Egbetorwokpor v The Republic [1975] 1 GLR 585, CA. The accused person’s evidence is therefore not credit worthy to be relied on and therefore he is not a credible witness of belief. The accused person’s defence is not satisfactory and not reasonable probable. What the accused person should have done when the policeman advised them to go to the police station with the motor bike for assistance was to just do that and not take the law into his own arms and caused harm to PW3. The use of the cutlass by the accused person shows his intent to cause serious injury to PW3. From the foregoing, this court finds as a fact that the intention of the accused in collecting the cutlass from David’s arms which resulted in his now famous: “looking at the scene and where I was standing, I could easily fall into a gutter and I was scared of what will happen so I intended to use the cutlass I took from David to scare them off and I accidentally injured the arms of the victim.” was to cause serious injuries to PW3 as a show of force and also to put the fear of God into him. Again, the accused person’s assertions that when they got to Tik Tok, other people related to the scrap dealers came rushing on them, attacked them, slapped him from behind but he could not see the person who slapped him, that when he turned around three people were standing behind him including PW3 who punched him on his mouth, started beating him with the knives they were holding and even cut his 20 right hand with the knife and looking at the scene and where he was standing, he could easily fall into a gutter and he was scared of what will happen so he intended to use the cutlass he took from David to scare them off and he accidentally cut the arms of PW3 are all afterthoughts calculated to throw dust into the eyes of this court and to avoid the wrath of justice upon him and they are rejected by this court. It can reasonably be inferred that the intention of the accused was to cause harm to PW3 and this court holds same. This court therefore finds as a fact that the harm caused by the accused person to PW3 was intentional and it holds same. This Court is therefore convinced by the evidence led by the prosecution beyond reasonable doubt that the accused person intentionally caused harm to PW3. I will now deal with the issue of whether or not the harm caused to PW3 by the accused person was unlawful. Can the justification for the use of force under section 31 of the Criminal Offences Act, 1960 (Act 29) avail the accused person? Now, to the instant case before me, the accused person alleged that the scrap dealers started beating him with the knives they were holding and even cut his right hand with the knife. So looking at the scene and where he was standing, he could easily fall into a gutter and he was scared of what will happen so he intended to use the cutlass he took from David to scare them off and he accidentally cut the arms of PW3 thereby putting forward a justification for the harm that he caused to PW3. Section 31 of the Criminal Offences Act, 1960 (Act 29) provides the grounds for the justification for the use of force as follows: “31. Force may be justified in the case and in the manner, and subject to the conditions, provided for in this Chapter, on the grounds a) of express authority given by an enactment; or b) of authority to execute the lawful sentence or order of a Court; or 21 c) of the authority of an officer to keep the peace or of a Court to preserve order; or d) of an authority to arrest and detain for felony; or e) of an authority to arrest, detain, or search a person otherwise than for felony; or f) of a necessity for the prevention of or defence against a criminal offence; or g) of a necessity for defence of property or possession or for overcoming the obstruction to the h) exercise of lawful rights; or i) of a necessity for preserving order on board a vessel; or j) of an authority to correct a child, servant, or other similar person, for misconduct; or k) of the consent of the person against whom the force is used.” The general position of the law is that where force is used as a justification to cause harm to a person, it shall be used within the limits prescribed by law. Where the force used extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used, it cannot be justified anymore. See: Section 32 (a) (b) of the Criminal Offences Act, 1960 (Act 29). See also Yeboah v The State [1967] GLR 512 In the case of Sabbah v The Republic [2009] SCGLR 728, the apex court of the land stated that what is reasonably necessary in the circumstances to justify the use of force is determined by the facts of the case and that it is the duty of the court to consider whether the force used or harm caused to the victim by the accused person was reasonably necessary in the circumstances. The accused person in his defence stated that looking at the scene and where he was standing, he could easily fall into a gutter and he was scared of what will happen so he intended to use the cutlass he took from David to scare them off and it accidentally cut the arms of PW3. From the accused person’s own testimony, PW3 22 did not attack him so there was therefore no need for him to have allegedly take a cutlass from David and use same to cut PW3’s arms. Granted without admitting that PW3 and his group attacked the accused person, cut him with a knife to the extent that he was about to fall into a gutter and the accused person also took a cutlass from David to defend himself, there was no evidence on the record to prove that PW3 did attack the accused person with any offensive weapon to necessitate the accused person allegedly picking a cutlass to defend himself. There is no evidence on the record to also prove that the attack was in progress and therefore there was no reasonable cause for the accused person defending himself in the manner in which he did. His conduct is considered as one of a revenge because it was not done to prevent danger to himself. The accused person cannot justify the use of force because picking a cutlass to defend himself was not proportionate because from his own evidence, PW3 was in the possession of any offensive weapon. The force used by the accused person was excessive considering the circumstances. The accused person had the opportunity to leave the scene but instead he used a cutlass to cut PW3 on both arms. The accused therefore failed the test of reasonableness and necessity. I therefore consider the purported act of defence invoked by the accused person as an afterthought cleverly designed to avoid the axe of justice. The accused person’s defence is therefore not satisfactory and not reasonable probable. I therefore hold that the harm on PW3 by the accused person was unlawful and further hold that the justification for the use of force cannot avail the accused person. The force used by the accused person was not commensurate with the nature of the force allegedly used by PW3 if any. This court is therefore satisfied beyond reasonable doubt that the prosecution established that the accused person unlawfully caused harm to PW3. This Court has considered the evidenced adduced by both the prosecution witnesses and the defence, the exhibits and the applicable laws and it is satisfied that the prosecution per the evidence led proved beyond reasonable doubt the offence of 23 causing harm contrary to section 69 of the Criminal Offences Act, 1960, (Act 29) against the accused person. This Court therefore finds the accused person guilty of the offence of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly. SENTENCE In imposing the appropriate sentence, this court considered the following aggravating factors: i. The intrinsic seriousness of the offence charged. ii. The gravity of the offence charged. iii. The degree of revulsion felt by the law abiding citizens of this country for the crime committed. iv. The premeditation with which the criminal plan was executed. v. The prevalence of the crimes within the Accra Metropolitan Assembly and the country generally. vi. The sudden increase in the incidence of this crime. vii. The seriousness of the bodily injury sustained by the complainant on both arms. viii. The trauma the complainant has gone and is going through. ix. The accused person’s lack of show of genuine remorse or regrets for committing the offence. This court also took into consideration in imposing the appropriate sentence, the following mitigating factors: i. The fact that the accused person has had no brush with the law. ii. The accused person’s plea for leniency. iii. The ten (10) months the accused person spent in lawful custody in accordance with clause (6) of article 14 of the Constitution of Ghana, 1992. See the following cases: Frimpong @ Iboman v The Republic [2012] 1 SCGLR 297. 24 Kamil v The Republic [2011] 1 SCGLR 300. Gligah & Atiso v The Republic [2010] SCGLR 870 Kwashie and Another v The Republic (1971)1 GLR 488 CA. Asaah Alias Asi vrs The Republic (1978) GLR 1. Every day the news report yet another story of injury or fatality related to crimes with the use of offensive weapons like the cutlass in this case. It is an endemic threatening our society which is sadly becoming the norm. Undoubtedly, there is the need for a concerted effort to remove and destroy these dangerous menaces from our society and the country as a whole and this makes it imperative for all and sundry, especially the law enforcement agencies like the courts to be at the forefront of this crusade. The accused person seriously injured the complainant. From Exhibit “C” series, the wounds on the complainant’s left arm were very deep and per the medical evidence on the record there were bleeding. The complainant lost a great deal of blood and had to be referred to Ridge Hospital. The cutlass could have easily damaged a vital organ of the complainant or could have resulted in a permanent disfiguration of his arms. The complainant suffered more than a slight prick with a cutlass or a flesh wound. The injury was so severe that there was the possibility that the complainant could have died or suffered an extended physical impairment. The accused person with indifference to human life and with intent to cause serious physical injury to PW3 used a cutlass to cut him on both arms. The accused person is a callous homo sapiens, he is a threat to humanity and he needs to be put away. Furthermore, it is mind boggling and pathetic that the accused person could do to someone. The accused person had no mercy on the complainant and as such court will also not show him any mercy as it was stated in the Bible in Matthew 5:7 that mercy is shown to those who deserve mercy. The court shows its zeal to protect human life and to prevent the menace of causing seriously bodily injuries to people with offensive weapons and its revulsion for such 25 indifference to human and reckless conducts by imposing a harsh sentence to serve as a deterrent to like-minded persons. Today justice will not only be done, it will also be seen to be done. The accused person is accordingly sentenced to five (5) years imprisonment with hard labour (I.H.L). The accused person is ordered to compensate the complainant Alhassan Fuseini with Ten Thousand Ghana cedis (GH¢10,000.00) for his medical expenses. CHIEF INSPECTOR STANLEY FIOTSO FOR THE REPUBLIC PRESENT THE ACCUSED PERSON IS SELF-REPRESENTED (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 26