REPUBLIC VRS. ASANTE & ANOTHER (70/2023) [2024] GHACC 281 (25 June 2024)

IN THE CIRCUIT COURT HELD AT DUAYAW NKWANTA ON MONDAY THE 25TH DAY OF JUNE, 2024 BEFORE H/HAKOSUA ASANTEWAA SARPONG ESQ CIRCIUT COURT JUDGE CC NO. 70/2023 THE REPUBLIC VRS. 1. ASANTE BOATENG JONES 2. SAMUEL ATTA KWADWO APRAKU JUDGMENT The complainant in this case Helena Berma is a trader and resides at Yamfo. 1st Accused is a tailor and resides at Wenchi whiles 2nd Accused is a building contractor and resides at Techiman. On the 1/11/2022 at about 6:30am, the complainant called at the police station and reported a case of stealing which 1st Accused was involved. 1st accused who arrived at Yamfo from Wenchi to attend a family meeting was invited by the police to Yamfo police station of which he honoured the invitation. 1st Accused arrived in the company of some family members amongst which were 2nd Accused and one Stephen Opoku Agyemang a friend of the complainant, whiles entering the premises of the Yamfo police station a quarrel ensued between the complainant and the accused persons with those who were in their company. In the course of the quarrel or exchanges, 1st Accused instructed 2nd Accused to slap complainant which he obliged and went ahead to slap complainant in the presence of the said Stephen Opoku Agyemang a witness in this case. Accused persons after committing the crime vanished from Yamfo Township. Accused persons were arrested and investigation caution statements obtained from them. They 1 were however charged with the offences as stated on the charge sheet and put before this Honourable court to stand trial. The accused persons were arraigned before court and they pleaded not guilty to the offences being levelled against them. A2 was charged with the offence of Assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29) which he pleaded not guilty. A1 was charged with the offence of Abetment of crime contrary to section 20 of the Criminal Offences Act 1960 (Act 29) which he pleaded not guilty. Section 84 of Act 29 states “whoever unlawfully assault any person is guilty of a misdemeanor. Section 86 (1) gives the definition of Assault as “A person makes an assault and battery upon another person, if without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting him to anger, he forcibly touches the other person, or causes any person, animal, or matter to forcibly touch him.” To constitute assault it must be established by the prosecution that without the consent of the other person, and with the intention of causing harm, pain, or fear or annoyance to the other person, or exciting him to anger, the accused forcibly touched that other person. In the case of assault or battery, it must be with the intention of causing harm, pain or fear, or annoyance to the person assaulted or exciting him to anger. The prosecution in establishing their case called three witnesses. The first to be called was PW1 that is the complainant. In her evidence in-chief to the court she stated that she runs a wholesale assorted drink business from her room in her family house at Yamfo and this led to a dispute between her family and herself and her family is insisting that she relocates her business. Her family being led by A1 instituted a civil suit against her and a few days later she detected that some of her crates of minerals had been stolen. On the 1/11/2022 at about 8:00am complainant made a stealing case against A1 to Yamfo Police and he was subsequently 2 invited to the Yamfo Police station by the Police. A1 arrived in the company of A2 and other family members. PW1 stated that when they were in a queue to enter the charge office, A1 instructed A2 to slap her for leading police to arrest him and A2 obliged and slapped her in the presence of one Stephen Opoku Agyemang. A2 was arrested by the police and she lodged an assault case against the accused persons. She was issued a police medical report form to attend any government hospital and report back after treatment which she did. She later submitted her statement to the police. PW2 Stephen Opoku Agyemang also stated that on the 1/11/2022 at about 7:00am he received a call from PW1 that A1 had stolen her crates of minerals that he should meet her at Yamfo police station. He stated that he met PW1 and the accused persons together with family members at the entrance of the Police station and as they were entering the charge office a quarrel ensued between PW1 and the Accused persons. He stated that he heard A1 instructing A2 saying “slap her” and A2 did as he was told and he was arrested by the Police. He later went to the police station and submitted his statement. The last prosecution witness was No. 55921 G/CONT. Samuel Opare Duodu, a General police constable stationed at Yamfo and attached to the station C.I.D. He stated that on the 1/11/2022 he was the investigator on duty. Whilst on duty, at about 8:05am, PW1 called at the station and lodged a complaint of assault against Accused persons and they were subsequently arrested. The case was referred to him for investigations. He issued police medical report form to the complainant to attend any Government hospital and report back after treatment and the complainant later submitted the medical report form duly endorsed by a medical officer. The complainant submitted her statement. He stated that he received instructions from the Yamfo District Commander ASP Mr. Isaac Kwame Loh to charge Accused persons with the offences of Abetment of crime and Assault respectively. He stated that he obtained caution statements from the Accused persons then after investigations he proceeded against them 3 with offences of Assault and Abetment of crime to wit: Assault by obtaining caution statement from them and putting them before the honourable court. After the prosecution had put across their case, the court determined that a prima facie case had been made against the accused persons and that they had to open their defence. A1 in opening his defence stated that on the 1/11/2022 the police invited him to the police station and when he got there, he was told that his niece had lodged a complaint against him. The complaint was that he had stolen her drinks. He stated that he told the police that he had not stolen her drinks and that the matter was in court. He continued by saying that he was in court with the complainant at the Sunyani High Court on 7/12/2022 when the police came there to arrest him. He indicated that he told the police that he had a matter at the Court so when he finished, he went to police station and he was told that he instructed A2 to slap PW1. He told the police that he had no idea about what she said. The police took his statement and told him that the matter would be brought to court. A1 called two witnesses Achiaa Janet and Agyemang Badu. Achiaa stated that on the 1/11/2022 she was at the police station when A2 asked the complainant why she said that A1 had stolen her drinks. When A2 was asking the complainant this A1 was not there. She stated that it was never true that A1 told A2 to slap the complainant. She stated that it was rather the complainant who went to hold the collar of A2. When A2 was freeing himself from her grip his hand touched her cheek and she said that A1 had instructed A2 to slap her. A1 was not around, he did not tell A2 to slap her as she claims. Agyemang Badu the 2nd witness of A1 stated that on the 1/11/2022 he was outside the police station with A2 when he asked complainant why she was worrying A1. A1 was not outside the police station he was inside the inspector’s office. PW1 held A2’s collar and said you are also coming to involve yourself in the case. PW1 stated that A1 instructed A2 to slap her but it is never true. A2 also opened his defence and stated that PW1 caused the arrest of A1 and he followed up to the police station. He stated that he saw PW1 and asked her why she had caused the arrest of A1. Suddenly 4 PW1 attacked him by holding his collar and whiles he was freeing himself people came to separate them. He stated that he did not notice that he had slapped her and that if he had slapped her he would have been arrested there and then. After the incident he was put at the counter back at the police station and the inspector advised them. He stated that he left and went home and he was arrested later by the police that PW1 said he had slapped her. He said he did not slap her. He further indicated to the court that at the time of the exchanges A1 was inside the police station. He only came out when he heard the noise outside. He further stated that it was Agyemang Badu and Janet Achiaa who were out there with him. A2 after his evidence called Comfort Addai Amankwah his witness to testify on his behalf. The witness of A2 stated that on the day of the incident she was at the police station when A2 confronted PW1 why she had brought A1 to the police station. PW1 held the collar of A2 and said “are you also going to talk about this issue”. A2 released himself and asked PW1 to heave him and she left him and they went home. Later complainant went to arrest A2 that he had slapped her. She further stated that it was not true A2 did not slap PW1. For the prosecution to be able to prove the offence of assault they have to establish that all the ingredients needed to establish the offence of the assault is present. The essential feature of assault is that it takes place against the victim’s will. It must be established by the prosecution that without the consent of the other person, and with the intention of causing harm, pain or fear or annoyance to the other person, animal, or matter to touch that other person. In the case of COMFORT VRS THE REPUBLIC [1974] 2 GLR 1, The High Court held that the alleged assault was done with the full consent of the victims and also that the appellants were not actuated by malice or hostile intention. Per the evidence adduced by the prosecution, PW1 stated that she had been slapped by A2. PW1 testified that she had been slapped by A2. The witness of PW1 Stephen Opoku Agyemang also stated that A1 asked A2 to slap PW1which A2 did. The prosecution 5 tendered Exhibit B which was a medical form that was endorsed by the Principal Physician Assistant. Where it was stated that the PW1 had sustained an injury in the eye (Bleeding at the back of the cornea). Which was evidence that she had been slapped. Exhibit C which was the investigation cautioned statement of A2 which hesitated that PW1 held the collar of his shirt that infuriated him and he slapped her in an attempt to block her from poking his eyes. In the investigation cautioned statement of the A2 which he gave right after the incident occurred he stated that he slapped her because PW1 infuriated him and also she was going to poke his eyes. After the investigation cautioned statement was given there was an independent witness who certified in writing that A2 gave the statement voluntarily. This statement by A2 is a confession statement which meets the requirement in section 120 of the Evidence Act. In the case of FRANCIS ARTHUR VRS THE REPUBLIC [2019] 145 G.M. J. 22 C.A. The issue was whether a person can be convicted solely on his confession without corroborative evidence per Agyemang (Mrs) J A. “Often, (especially where the confession does not establish the corpus delicti) the court requires some corroborative evidence to demonstrate that the matters admitted by the accused did actually occur. Appau J.A (as he then was) in his concurring opinion in The Republic Vrs Kwabena Amaning alias Tagor suit No ACR 4/2007 delivered on 24th July 2008, was concerned with the lack of a corpus delicti which would confirm the existence of a crime regarding which a confession had allegedly been made. IN KWAKU OFORI VRS THE STATE [1963] 2 G L R 452 it was held that an accused person may be convicted solely on his own subsequently retracted confession statement if the statement is sufficiently corroborated by other independent evidence. Likewise, in State Vrs Owusu and Ors [1967] G L R 114, it was held that. “an extra-judicial confession by an accused that a crime had been committed by him did not necessarily absolve the prosecution of its duty to establish that a crime had actually been 6 committed by the accused. It was desirable to have, outside the confession, some evidence, be it slight, of circumstances which made it probable that the confession was true. From the evidence adduced in the instant case, there was sufficient corroboration which confirmed that the confession of each accused was true”. Considering the evidence adduced by the prosecution and the investigation cautioned statement as well as the medical report these are surrounding circumstances which indicate that A2 slapped PW1. A1 was charged with the offence of Abetment. Section 20 (1) of Act 29 states “Every person who, directly or indirectly instigates, commands, counsel, procures, solicit or in any manner purposely aids, facilitates encourages, or promotes whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime and of abetting the other person in respect of that crime” The essentials of abetment were discussed by the supreme court in the case of COMMISSIONER OF POLICE IN THE SARPEY AND NYAMEKYE [1961] GLR 756 @ 758 thus: In order to convict a person of aiding and abetting it is incumbent on the prosecution to prove that the accused did any of the acts mentioned in subsection (1) of section 20(of Act 29). Under subsection (2) a person who abets a crime shall be guilty if the crime is actually committed (a) In pursuance of abetment, that is to say, before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and circumstance with the commission of the offence. In our view, an act constituting and abetment in law must precede or it must be done at the very time when the offence is committed. The offence of abetment requires proof of mens rea of the accused person. The position of the law has been that the offence of abetment of crime requires proof of mens rea. It 7 means the intention to aid as well as knowledge of circumstances and the proof of the intent of the accused person involves proof of a positive act of assistance voluntarily done. A person may commit abetment by personal act of presence at the crime scene. It is not disputed that mere presence at the scene of a crime is not in itself, sufficient to establishing aiding or abetting the commission of an offence. IN the case of AMOAH VRS THE REPUBLIC [1989 – 90] 1 G L R 266, KPEGAH J. (as he then was ) put the principle this way at P 272: “ It may here be opportune to recall the law that mere presence of a person at the scene of crime does not render him guilty of the crime to make him an accomplice. To qualify him an accomplice, the presence of the person, must at least have encouraged the accused in the commission of the crime”. In another case of R VRS HOGGAN (1965), 47 C.R. 256 AT 260. Johnson J. A. concluded “There are two things that must be proved before an accused can be convicted of being a party by aiding and abetting. It must be proved that he had knowledge that the principal intended to commit the offence and that the accused aided and abetted him. Where there is no knowledge that an offence is to be committed, the presence of an accused at the scene of the crime cannot be circumstance which could be evidence of aiding and abetting” In the case of FERGUSON VRS WEAVING [1951] 1 K B 814 decided that knowledge of the abettor of the principal’s intention to commit the substantive crime is necessary to make the abettor liable. In this present case the prosecution could not prove that A1 had knowledge of the intention of A2. A2 in his own evidence in chief stated that A1 did not tell him to slap complainant. The established principle is that the presumption of innocence places on the prosecution the onus to prove its case beyond reasonable doubt. 8 Per the evidence adduced so far it can be stated that the prosecution could not prove that A1 instructed or abetted A2 to slap the complainant. The prosecution on the other hand could prove beyond reasonable doubt that A2 indeed slapped PW1. Per the evidence-in-chief of A2 he stated that PW1 held his shirt collar and whiles he was freeing himself people came to separate them and that he did not notice that he had slapped her. The medical report that was tendered in evidence showed that indeed PW1 had been assaulted. The investigation cautioned statement was give right after the incident and it was fresh in the mind of A2 and that was exactly what A2 wrote. In his evidence-in-chief when he stated that he did not notice that he had not slapped PW1 cannot be true. Therefore prosecution was able to prove beyond reasonable doubt that A2 slapped PW1. A2 is convicted and would be sentenced to pay a fine of fifty (50) penalty units in default one month imprisonment. A1 is acquitted and discharge. The sentence of A2 is to serve as deterent to other members of the society not to take the law into their hands. SGD. H/H AKOSUA ASANTEWAA SARPONG ESQ (CIRCUIT COURT JUDGE) 9