THE REPUBLIC V WIAFE (B3/10/2024) [2024] GHACC 292 (2 September 2024)

1 INTHECIRCUITCOURT,JUASOHELDONMONDAY,THE 2NDDAYOFSEPTEMBER, 2024,BEFOREHERHONOURNANAASANTEWAAATTAKORAHCIRCUITCOURT JUDGE. CASE: B3/10/2024 THEREPUBLIC -VRS- KWADWOWIAFE ----------------------------------------------------------------------------------------------- RULING ------------------------------------------------------------------------------------------------ The accused person herein has been charged with one count of Causing Harm Contrary to Section69oftheCriminalOffencesAct1960,Act29. Thefactsarethatonthe26thdayofSeptember,2023Complainantwenttovisithissickfriendby name Kwaku Kyei who is also the uncle of the accused person. While the Complainant was in theroom with his friend, the accused armed with a machete cameand tried to attackhis friend but the Complainant intervenes and, in the process, the accused directed his anger at him and inflictedmachetewounds on theleftarmof the Complainant. Complainant reportedthematter andtheaccusedwasarrested. 2 Thefundamentalruleinourcriminaljusticesystemasstatedinthe1992Constitution,Article19 (2)(c)reads: “19(2)Apersonchargedwithacriminaloffenceshall- (c)bepresumedtobeinnocentuntilheisprovenorhaspleadedguilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic(2012)41MLRG53at61-62perAkuffoJSCasfollows: “ …. The citizen too is entitled to protection against the state and our law is that a person accusedofacrimeispresumedinnocentuntilhisguiltisprovedbeyondreasonabledoubt.” Theaboveclausemeansthattheaccusedpersonhereinchargedisnotguiltyoftheoffenceright 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 theaccusedperson pleads not guiltyto the offence, his accuser has to provethathe is guilty. In the instant case the accused person has pleaded not guilty therefore the onus of provinghisguiltisontheprosecution. See:EssentialsofGhanaLawofEvidencebyJusticeBrobbeyatpages45-55. 3 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(NRCD323)provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crimewhichisdirectlyinissuerequiresproofbeyondreasonabledoubt”. Section22oftheEvidenceAct,1975(NRCD323)alsoprovides: “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 thepresumedfact.” See: AbakahVrsTheRepublic(2010)28MLRG111CA Theprosecution has aduty toprovetheguiltof theaccused person chargedbeyond reasonable doubt. Theburdenofproofremains ontheprosecutionthroughoutthetrial,anditisonlyafter a prima facie case has been established that the accused person will be called upon to give his sideofthestory. 4 See: AmarteyVrsTheState(1964)GLR256. Gligah&AnotherVrsTheRepublic(2010)SCGLR870. DexterJohnsonVrsTheRepublic(2011)SCGLR601. ThedictumofLordDenninginthecaseofMillerVrsMinisterofPensions(1974)2ALLER372 at373isrelevanttoourunderstandingofthephrase“beyondreasonabledoubt”. AccordingtoLordDenning:“Itneednotreachcertainty,butitmustcarryahighdegreeofprobability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protectthecommunityifitadmittedfancifulpossibilitiestodeflectthecourseofjustice.” Inthesamecase,“proofbeyondreasonabledoubt”wasexplainedasfollows: “Iftheevidenceissostrongagainstamanastoleaveonlyaremotepossibilityinhisfavourwhichcanbe dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyondreasonabledoubt,butnothingshortofthatwillsuffice.” Seealso:TettehvrsTheRepublic(2001-2002)SCGLR854 DexterJohnsonvrs TheRepublic(2011)2SCGLR601 FrancisYirenkyivrsTheRepublic(2017-2020)1SCGLR433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 deliveredonthe21stdayofJuly2021 Thisdictumemphasizesthatproofbeyondreasonabledoubtdoesnotmeanproofbeyondevery shadowofdoubtorprooftothehilt. 5 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 criminalprosecutioninourcourtsasfollows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standardofproof isproof beyondreasonabledoubt.Proofbeyondreasonabledoubtactually meansproofoftheessentialingredientsoftheoffencechargedandnotmathematicalproof”. 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 onlywhenthedefenceisnotreasonableprobablethattheaccusedpersonwouldbeconvicted. 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 shiftedevenslightly. 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,concernorreactioninrespectoftheaccusedpersoninquestion. 6 This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935)AC462at481-482inthefollowingwords: “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 downcanbeentertained.” 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,heshouldnotevenshow up his hands until the needarises. All thatthe accusedpersonis requiredtodowheninvitedtoopenhisdefenceistoraisereasonabledoubtsregardinghisguilt. It is only when the defence raised by the accused person is not one that can exonerate him that hewouldbeconvicted. See:AtsuVrsTheRepublic(1968)GLR176CA. TsatsuTsikatavTheRepublic(2003-2004)SCGLR1068. Proofbytheprosecutioncanbedirectorindirect. It isdirectwhenanaccusedpersonis 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 circumstancesthatindeedtheaccusedpersoncommittedthesaidoffence.Thistypeofevidence 7 derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See:LoganVrsLavericke(2007-2008)SCGLR76. DexterJohnsonVrsTheRepublic(2011)2SCGLR601@605. StateVrsAnaniFiadzo(1961)GLR416SC. KamilVrsTheRepublic(2010)30GMJ1CA. TamaklowVrsTheRepublic(2000)SCGLR1SC. BossoVrsTheRepublic(2009)SCGLR470. In Kingsley Amankwah(a.k.a. Spider) vrs The Republic supra,theSupremeCourtreferred 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 usingsuchstrongcircumstantialevidence. 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 doubtasrequiredattheendofthecase. See:TsatsuTsikataVrsTheRepublic(2003-2004)SCGLR1068at1094-1095. 8 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 evidence fromwhichtheguiltof theaccusedmaybepresumedandwhichthereforecalls forexplanation bytheaccused. See:TheStateVrsSowah&Essel(1961)2GLR743at745 Prosecution in this case called four witnesses in support of his case. Kwabena Asare was prosecution’s first witness (PW1), Kwaku Kyei as prosecution’s second witness (PW2), D/Insp. Collins A. Kumi the investigator in this case as prosecution’s third witness (PW3) and Okyere Gemima as prosecution’s fourth witness (PW4). Prosecution also tendered in evidence his exhibitsforthecase. AccordingtoPW1,on the28thdayof September,2023atabout10:00amhewaswithPW2inhis roomwhen all of a sudden,he heard a knockat the door but PW2 was asleep so heopened the doorandsaw theaccused.HethoughttheaccusedpersonneededmoneyfromPW2so hegave himFiveGhanaCedis(GHS5.00)butherefusedtocollectitandattemptedtoforcehiswayinto the room and when he resisted, the accused person hit him with a blow. The accused person heldhisdress andcontinuedtobeathimsoheheardPW4shoutingforhelpandPW2whowas asleep heard it and rushed to the scene. The accused person picked a cutlass which had its tip chopped off from the kitchen which and whiles on the ground he saw the accused person raise the cutlass in an attempt to slash PW2 because he helped him. He tried to stop the accused but he slashed him with the cutlass twice on his left arm and he sustained a very deep cut so he 9 started bleeding profusely. He and PW2 went to inform the Assemblyman of Adomfe about it and he caused the arrest of the accused person. He was given a Police Medical Form to attend hospitalfortreatment. It is the evidence of PW2 that the accused is his nephew and they have been living in the same house. For some time now, the accused person has been pestering him with threat of death anytime he sets eyes on him so he reported it to the Ankobeahene of Adomfe, their head of family, but anytime they advise the accused person he does not listen. He also reported the conductof theaccusedperson totheAssemblyman of the areabutstilltheaccusedpersonkept harassing and issuing words of threat of death at him. On the 26th day of September,2023 at about 10:00am, he visited a public toilet and whiles there, the accused person came there, picked a stone and threatened to hit him with it. He was afraid so he quickly dressed up and went home to inform PW1 who accommodated him. On the 28th day of September, 2023 he heard a knock on PW2’s door so he asked PW1 to check who it was.He overheard exchange of words at the entrance so he woke up and checked and saw blood flowing profusely from the leftarmof PW1.PW1toldhimthattheaccusedpersonarmedhimselfwithacutlass,attempted to force his way into the room to slash him with it but PW1 blocked the accused person and in the process the accused cut his arm with the cutlass so they informed the Assemblyman in the area,andhecausethearrestoftheaccusedperson. According to the investigator, he took an investigation cautioned statement from the accused person and visited the scene of crime with a team of Police investigators at Adomfe together withtheaccruedpersonandtheAssemblymanofAdomfe.Atthescene,itwasrevealedthatfor 10 some time now the accused person has been harassing and attacking PW2 without any reason andPW3hadsentseriesofcomplaintstotheirheadofthefamily,theassemblyman,otherstake holders and elderly people in the Adomfe township but to no avail. Investigations further revealedthattheactionsoftheaccusedpersonhaveputfearinthosewholivearoundtheentire neighbourhood. He corroborated the evidence of PW1 and PW2 and added that he took a photograph of the cutlass that the accused person used to cause harm to PW1 and after investigationsaccusedpersonwaschargedwiththeoffence. PW4corroboratedtheevidenceofPW1andPW2. 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 whenthecourtissatisfiedthatall theingredients havebeenestablishedbytheprosecutionthat the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See:KwabinaAmaningaliasTagor&anor. vrsTheRepublic(2009)23MLRG78CA. Aprimafaciecaseisestablishedagainstanaccusedwhentheevidenceledbytheprosecutionis onitsfaceorfirstappearancewithoutmoreonethatcouldleadtoconvictioniftheaccusedfails togivereasonableexplanationtorebutit. Itisevidencethattheprosecutionisobligedtoleadif he/she hope to secure conviction of the person charged. A person is pronounced guilty only 11 when the evidence led by the prosecution in respect of the charges satisfies the standard of proofrequiredbylawandthatisproofbeyondreasonabledoubt. Section 173 of the Criminal and Other Offences (Procedure) Act 1960 (Act 30) provides that whereat thecloseof theevidence insupportof thecharge,itappears to thecourtthat,a caseis not made out against the accused person sufficiently to require the accused to make a defence; the court shall as to that particular charge acquit the accused. The provision means that at the close of the prosecution’s case, it is within the court’s discretion to decide whether a case has been made against the accused person in respect of the offence tried. If the court finds that the prosecution has not made out a sufficient case to warrant calling on the accused to open his defence in respect of all or any of the charges, the charge or charges may be dismissed and the accusedacquittedanddischarged. Thecourtwillreachtheconclusionthatnocasehasbeenmadeagainsttheaccusedpersonif: a. Therehasbeennoevidencetoproveanessentialelementofthecrimechargedor; b. That the evidence in support of the prosecution’s case has been discredited in cross examinationor; c. If the evidence is manifestly unreliable that no reasonable tribunal or court could safely convictonitor; 12 d. The evidence adduced by the prosecution is evenly balanced, that is the evidence on recordissusceptibletotwolikelyexplanationsandwhileoneisconsistentwithguiltthe other is consistent with innocence, then the prosecution has not made a case against accusedpersonandtheaccusedpersonshouldbeacquittedanddischarged. See: TsatsuTsikatavTheRepublic(2003-2004)SCGLR1068. TheStatevAliKassena(1962)1GLR144SC. MoshievTheRepublic(1977)1GLR287CA. DadievTheRepublic(1977)1GLR287CA. Before I give my opinion in respect of whether or not a prima facie case has been established against the accused person, I will state the law on the offence preferred against him and the evidencethattheprosecutionledtoprovetheircaseagainsthim. The accused person herein has been charged with one count of Causing Harm Contrary to Section69oftheCriminalOffencesAct1960,Act29. Section 69 provides “A person who intentionally and unlawfully causes harm to any person commitsaseconddegreefelony.” 13 Section 79 is the definitive section of unlawful harm and it is as follows; “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in chapteroneofthispart.” “There are three types or situations under which a person may be said to have caused harm to another. The two popular types of causing harm are the ones caused either intentionally or negligentlybya personto anotherperson.Thethirdonewhich is causingharmby an omission is where harm is caused as a result of that person’s omission to perform a duty which would havepreventedtheharmfromoccurringtoanotherperson.Thefirstgroundunderwhichharm issaidtohavebeencausedbyanaccusedpersontoanotherpersoniswheretheactthatcaused the harm was intentionally caused by the accused person without justification. Under such circumstances,theprosecutionisrequiredtoprovethattheaccusedpersonintentionallycaused unlawful harm to the victim without any justification in law. The second instance under which an accused person would be deemed to have caused harm to another person is where the accusedpersonnegligentlycausedharmtothesaidpersonwithoutjustificationunderlaw.The prosecution is required to prove that an accused person has unlawfully caused harm to the victimthroughthenegligenceoftheaccusedpersonwithoutjustificationinlaw.” See:ContemporaryCriminalLawinGhana,JusticeDennisDominicAdjei@188. So for the prosecution to succeed on a charge of unlawful harm, the prosecution must establish beyond reasonable doubt the ingredients for any of the three situations where a person may be deemedtohavecausedharmwithoutjustification. 14 According toPW1theaccusedperson triedto forcehimself intohis roomandwhen heresisted, he beat him up and then used a cutlass to slash him twice on his left arm. PW2 and PW4 corroborated his evidence. According to PW4 the accused person took the cutlass he used from their kitchen. It is also the case of PW3 that investigations revealed that the accused person has been threatening people in the community and the incident occurred after PW1 called the accused to advise him about his behaviour. He also tendered in evidence the investigation cautionedstatementoftheaccusedinwhichtheaccusedtoldthepolicethatPW1hithimwitha stick and attempted to hit him a second time but he held it with his right hand and in the processaringhehadonhisforefingerinjuredPW1. From the evidence on record, I am of the view that there is a prima facie case against the accusedperson. Heisthereforecalledtoopenhisdefence. (SGD) H/HNANAASANTEWAAATTAKORAH (CIRCUITCOURTJUDGE) COUNSEL: C/INSPECTORGODFREDDARKWAFORPROSECUTION ACCUSEDINPERSON 15 REFERENCES OKEKEVRSTHEREPUBLIC(2012)41MLRG53 ABAKAHVRSTHEREPUBLIC(2010)MLRG111CA AMARTEYVRSTHESTATE(1964)GLR256. GLIGAH&ANOTHERVRSTHEREPUBLIC(2010SCGLR870. DEXTERJOHNSONVRSTHEREPUBLIC(2011)SCGLR601. MILLERVRSMINISTEROFPENSIONS(1974)2ALLER372 TETTEHVRSTHEREPUBLIC(2001-2002)SCGLR854 FRANCISYIRENKYIVRSTHEREPUBLIC(2017-2020)1SCGLR433 KINGSLEYAMANKWAH(A.K.A.SPIDER)VRSTHEREPUBLICCRIMINALAPPEALNO. J3/04/2019DELIVEREDONTHE21STDAYOFJULY2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.PVRSANTWI(1961)GLR408SC WOOLMINGTONVRSD.P.P(1935)AC462 ATSUVRSTHEREPUBLIC(1968)GLR176CA. TSATSUTSIKATAVRSTHEREPUBLIC(2003-2004)SCGLR1068 LOGANVRSLAVERICKE(2007-2008)SCGLR76. 16 STATEVRSANANIFIADZO(1961)GLR416SC. KAMILVRSTHEREPUBLIC(2010)30GMJ1CA. TAMAKLOWVRSTHEREPUBLIC(2000)SCGLR1SC. BOSSOVRSTHEREPUBLIC(2009)SCGLR470. THESTATEVRSSOWAH&ESSEL(1961)2GLR743 KWABINAAMANINGALIASTAGOR&ANOR. VRSTHEREPUBLIC(2009)23MLRG78 CA. THESTATEVRSALIKASSENA(1962)1GLR144SC. MOSHIEVRSTHEREPUBLIC(1977)1GLR287CA. DADIEVRSTHEREPUBLIC(1977)1GLR287CA. BOOKS ESSENTIALSOFGHANALAWOFEVIDENCEBYJUSTICEBROBBEY CONTEMPORARYCRIMINALLAWINGHANABYJUSTICEDENNISDOMINICADJEI.