REPUBLIC VRS SULLEY (B7/16/2024) [2024] GHACC 274 (23 May 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 23RD DAY OF MAY 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B7/16/2024 THE REPUBLIC VRS EMMANUEL SULLEY JUDGMENT INTRODUCTION The accused has been charged with two counts of Dangerous Driving contrary to section 1(1C) of the Road Traffic Act, 2004 (Act 683) as amended by SECTION 1(A) of the ROAD TRAFFIC (AMENDMENT) Act, 2008 (ACT 761). According to prosecution the accused is a professional driver, whilst the victim now deceased was a 72-year-old pensioner. That on the 2nd Day of August 2022 at about 3pm the accused was driving a Toyota Land Cruiser V8 vehicle with Registration Number GB 2525- 12 from Wa towards Nandom direction. That on reaching the Wa Airport Entrance, a point where police men from the Motor Traffic Department were stationed on duty observed that accused was driving the said vehicle without due care and attention to other road users and so he was signaled to stop but accused ignored the police personnel and sped off north. That upon zooming away, accused then drove unto a speed ramp at a place call water village close to the Regional Hospital where he lost control of the steering of the vehicle 1 and run into a Haojue 125 motorcycle with Registration Number M-17-NR 5082 then being ridden by the elderly man now deceased. The deceased at the time was advancing from the opposite direction of the V8. The accused ended up crashing his vehicle into an Intelligent Video Surveillance (IVS) Pole a property of the National Signal Bureau causing extensive damage to the pole and its fittings with an estimated damage value of GHC16,300.00. The accident victim was said to have been quickly rushed to the Wa Regional Hospital a few meters away from the crush scene but was pronounced dead on arrival. Police then followed up for the accident scene examination and later got both vehicle and motorcycle examined leading to the arraignment of the accused before the appropriate forum upon the advice of the office of the Attorney General in the Region. At accused persons arraignment at the Circuit Court, Wa, he pleaded not guilty to the charges and disclosures were ordered and served on accused for case management conference (CMC). At the CMC overtures were made by the accused’s person’s lawyer but that did not materialize and a trial was ordered. At the resumption of the trial and earlier at the CMC prosecution indicated it will call four witnesses and did do so and below is a summary of their account of events leading to the accident and the report of the examination of the cadaver of the deceased by the medical officer. Evidence of PW1: On 23rd February, 2023 PW1 a police officer stationed at Wa got his witness statement filed and during hearing it was adopted as his evidence in chief on 20th March, 2023. He testified that on 21st August, 2022 at about 1:20pm he was detailed to direct traffic at the main entrance of Wa Airport. Whilst directing traffic, he noticed a White Land Cruiser with Registration Number GB 2525-12 drive at top speed away from the Wa direction and towardS Nadowli Kaleo. That seeing the vehicle zoom towards his direction he 2 signaled by raising his palm for the driver who happens to be the accused person at the time to stop but he ignored the prompting and continued at the gory speed he was driving. That, a few minutes later, he was informed that the vehicle had ran unto a speed ramp and killed a rider on a motor bike. The elderly police officer remained consistent and responded to questions in cross examination with details emphasizing the dangerous driving the accused was charged with whilst subtly registering his displeasure for the accused’s failure to respect road traffic prompting to stop when he was ordered with a signal. PW1 then added that after the vehicle hit the elderly man, it stumbled and hit a pole destroying the IVS Pole belonging to the National Signal Bureau. Evidence of PW2 PW2 is the Officer in charge of the Camera System Unit of the National Signal Bureau. His witness statement got filed on 23rd February, 2023 and adopted as his evidence in chief on 27th November, 2023. He told the court he received information an Intelligent Video Surveillance (IVS) Pole had been knocked down by a vehicle and proceeded to access the damage and reported to the headquarters with a figure of GHS16,300.00 as the cost of replacement. Evidence of PW3 PW3 is the investigator in the case, he got his Witness Statement filed on 23rd February, 2023 and adopted as his evidence in chief on 15th January, 2024. He testified that, per his investigation, there was an accident involving a Toyota Land Cruiser with Registration Number GB 2525-12. The said accident he told the court occurred around the main 3 junction leading to the Upper West Regional Hospital and that at the time of the accident, the land cruiser was being driven by the accused. He described the accused person to have ran into a Haojue Motorcycle with registration number M-17-NR5082 ridden by the deceased one Ambrose Domozoro killing him instantly and further colliding and destroying an Intelligent Vide Surveillance Pole installed along the road by the National Signal Bureau. PW3 then went ahead to tender the investigation caution statement and a charged caution statement from the accused person with statements from one Diara Sekou Kolokani, a Malian truck driver, who witnessed the incident. Photographs of the deceased, sketch of the scene of the accident, the vehicle examination reports of the vehicle and the motor bike and a correspondence from the National Signal Bureau which were variously marked as Exhibits “A” to “L”. The witnessed appeared well trained as he demonstrated good knowledge of evidence gathering and on that note prosecution conveniently closed their case. Determination of prima facie case. When prosecution closed its case counsel for the accused was not in court and so the court proceeded to order the accused to prepare to open his defence with the aid of counsel and that if the need arose for the last prosecution witness to be recalled, the court was not opposed to same but counsel did not explore that opportunity and proceeded to lead his client in defense of the charges. The Defense of the Accused The duty on the accused person just as in all criminal cases is to raise a reasonable doubt in the case established by prosecution. Section 13(2) of the Evidence Act 1975 (NRCD 323) provides that ‘Except as provided in section 15 (c), in a criminal action, the burden of persuasion, 4 when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.’ With this, counsel I belief prepared his client and proceeded to lead him in evidence where the summary of his defense was that that the deceased was riding behind the vehicle he was driving and that it was rather the deceased who ran into his vehicle at the fender of the back of the car at the time he driven unto a speed ramp where he burst a tyre and lost control. Accused denied speeding on the day and alluded to the fact of the president being in town on the day to have been a reason he could not drive at the speed described by the prosecution. Accused led by counsel denied driving dangerously and was not signaled by any peace officer to either slow down or completely stop. Interestingly, accused did not address the issue of the destruction of the IVS pole but could not whisk that away in cross examination. The issues of Exhibit “E” the sketch of the accident scene took center stage when accused sought to paint the picture the deceased was driving behind him. This was refuted by prosecution because the sketch which accused himself appended his signature indicated the deceased was riding opposite the V8 accused was in control of. Exhibit D series also challenged accused that the rider could not have cause damage to portions of the vehicle because he was not close to the back fender and the right back door, front and back bumper of the accused person’s car. The defense of the accused was hugely discredited and described by prosecution as unacceptable and in disbelief. Accused called no witness to his case leaving the court to review than listen to written submission on an adjourned date when the law office kept to the schedule and filed an address. At this stage where the court is evaluate the evidence and to apply the appropriate law, I wish to state that the address of the law office was useful especially that it was filed in time. All the same counsel for the accused filed his and the court looked for the doubts 5 he sought to raise. I will begin the evaluation by making findings of fact from the evidence from what Regulation 165(2) OF (e) of L.I. 2180, Road Traffic Regulations, 2012, which states that “a person driving a motor vehicle shall drive at a safe and appropriate speed when “special hazards exist with respect to pedestrians or other traffic or by reason of weather or road conditions” i- Flowing from the above I make a findings of fact that accused drove on a speed ramp at a speed that disallowed him from having absolute control over the steering of the Toyota Land Cruiser he was in charge of at the time of the incident. ii- I do make another finding of fact that accused was untruthful when he sought to present the picture that the deceased rode at his back and so run into him. This is not only disingenuous but lack comprehension that a motor cycle could make impact with an 8-cylinder 4 x 4 vehicle and have the potential to dislocate the car to the extent that it burst a tyre. iii- Thirdly, the damage to the vehicle and the evaluation of the accident scene sketch was indicative to the fact that the impact was head on with the motor bike when accused met and crushed into the motor bike leading to his eventual running into the IVS pole way of to the right of the accident inoact area as described in the accident scene sketch. iv- I do also find corroboration with the evidence of PW1 that accused drove at a dangerous speed and so could not have controlled the steering leading to his collision and destruction of the IVS pole. 6 Having made these findings of fact which the analysis of the evidence will proof in my ensuing aevaluation, I proceed to present the relevant law to obtain if the accused drove below the standard required of a reasonable road user. Section 1 (1) (C) of the Road Traffic Act, 2004 (Act 683) as amended by Act 761 of 2008 provides that, ‘A person who drives a motor vehicle dangerously on a road commits an offence and is liable on summary conviction, where death occurs, to a term of imprisonment of not less than three years and not more than seven years.’ Section 1 (1) (d) Act 683 as amended by Act 761 of 2008 further provides that, ‘A person who drives a motor vehicle dangerously on a road commits an offence and is liable on summary conviction, where there is damage to state property, to a fine not less than ten penalty units and payment for the damage caused in an amount determined by the court.’ These two sections I have particularized to cater for count one and two of the charges against the accused, one causing death and the other causing damage to state property. Section 2 of the same act defines dangerous driving to mean; 1.For the purposes of subsection 1, a person drives dangerously if a) the way that a person drives falls below what is expected of a competent and careful driver, or, b) it is obvious to a competent and careful driver that it would be dangerous driving the vehicle: i. in that manner, or ii.in its current state 7 2. In determining what is expected of, or obvious to, a competent and careful driver in any particular case, regard shall be had to a) the circumstances of which the accused could be expected to be aware, b) any circumstances shown to have been within the knowledge of the accused, and c) the conditions of the road at the relevant time 3) In determining for the purposes of subsection (1) the state of a motor vehicle, regard may be had to anything attached to or carried on or in it and the manner in which it is attached or carried. From the requirements of the law and in order for prosecution to prove its case, it must demonstrate the following; 1. The way that the accused drove fell below what is expected of a competent and careful driver; 2. Any competent and careful driver ought to know that it would be dangerous driving the car in that manner, and/or 3. It would be dangerous driving the car in that state 4. The said state or manner of driving caused the death of someone other than the driver of the vehicle. This being a criminal suit, the law certainly on the burden of proof on prosecution dwells well on Section 11(2) of the Evidence Act 1975 (NRCD 323) which reads: 8 “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond a reasonable doubt." However, the standard of proof beyond reasonable doubt is usually not that measured with so much precision as was determined by legendary Lord Denning in the case of Miller v Pensions (1972)2 ALL ER 372 where the dictum was: "Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice". I agree with counsel from the law office therefore when she references the case of Frimpong v the Republic [2012] 1 SCGLR 297 where the burden on prosecution was well explained to be that ‘As is well known, it is trite law that in criminal cases, the duty on the prosecution is to prove the allegations against the appellant beyond all reasonable doubt. The prosecution has a duty to prove the essential ingredients of the offence with which the appellant and the others have been charged beyond any reasonable doubt. The burden of proof remains on the prosecution throughout and it is only after a prima facie case has been established i.e. a story sufficient enough to link the appellant and the others to the commissioning of the offences charged that the appellant, therein accused is called upon to give his side of the story.’ In the bid of prosecution to prove that the accused drove dangerously, it presented a number of witnesses and I will painstakingly reference appropriate extracts to determine the omnibus issue of whether or not accused drove below the standard of a professional 9 driver thus causing the death of death of victim Ambrose Domozoro and extensive damage to an IVS pole. PW1 when he took his turn to assist prove the guilt of the accused, and as a police officer with road traffic training capable of deciphering speed, he responded to cross examination questions re-emphasizing that accused was driving dangerously because he was on top speed a position accused counsel will not accept. Appreciate the discourse below: Q: However, your statement you gave to the police said so (read the entire statement) I put it to you that you did not spot the accused person drive at top speed. A: I spotted the accused person drive at top speed with hazard lights on so knowing the speed was bad to other road users, I raised my hand and he ignored me and sped on and 5 minutes later, the news came that he had run into a motorbike. Further in the cross-examination counsel for the accused sought to suggest that there was heavy traffic in and around town flowing to the accident scene area on the day of the accident and so the accused could not have driven at any appreciable speed let alone describe it as top speed. The witness however refuted that position as the road traffic personnel on the ground detailing what happened in the following words; ‘No, I disagree, the traffic moved well away before the accused came. The Regional Minister’s entourage moved past minutes and entered into the airport yard before I saw the accused coming.’ The demeanor and conviction of speech of the first prosecution witness leaves the court to belief that he had no malice against accused and was merely describing the events of the day that convinces the court that accused’s speed was not normal and was not appropriate for other road users to contain the road especially that there was a huge 10 health facility along the route where relatives of patients cross the road to transact business and so a speed ramp to reduce speed of road usrers. Earlier in my findings of fact, I did observe that the accused drove unto a speed ramp and that was when the loss of control of the vehicle started. The law on dangerous driving in section 2 (2) demands the following: In determining what is expected of, or obvious to, a competent and careful driver in any particular case, regard shall be had to a) the circumstances of which the accused could be expected to be aware, b) any circumstances shown to have been within the knowledge of the accused, and c) the conditions of the road at the relevant time Further in Regulation 165(2) of the Road Traffic Regulations 2012 (LI 2180) it provides that, A person driving a motor vehicle shall drive at a safe and appropriate speed when (a) approaching and crossing an intersection or railroad grade crossing; (b) approaching and going around a curve; (c) approaching a hil1crest; (d) travelling on a narrow bridge or narrow winding road; or (e) special hazards exist with respect to pedestrians or other traffic or by reason of weather or road conditions. 11 This the accused blatantly refused to observe. Again, further to the above is the expectation that all motorists should have an obligation under Regulation 168 f LI 2180 to obey directions of police officers on the road. The evidence that PW1 observed the advancing speed to be too much and raised his hand, this call if the accused had observed could have averted the accident and a life will not be lost. Clearly, the accused being a public servant and uses the road very often and must have known that with a hospital around the vicinity of the accident road, speed ramps were present to reduce vehicular speed towards the hospital entrance and to have reneged on the observation should certainly be interpreted to be that he drove dangerously and below what is expected of a competent and careful driver. Drawing from the findings of fact to appreciate the evidence and to allow for the law to be adequately applied, the evidence of the accused when he sought to present the picture that it was accused who advanced from his rear side to run into his vehicle was a sad statement to make because it flies against the of the sketch of the accident scene that accused himself signed. The rhetorical question posed in the address of counsel for the accused positing if the accused was driving in reverse gear is one that he needs corroboration to support his case than ask the court. The presentation of the case of accused is not well calculated but a broad day attempt to throw dust into the eyes of the court in view of the evidence presented before it. It is disingenuous to the extent that when the accused gave his evidence to the police in Exhibit “A”, the investigation cautioned statement which he admitted without objection during trial, in Exhibit “A”, he told police that, on the day of the accident, he attempted to swerve the articulator truck with force and in the process the back of vehicle went into the middle of the road. Having earlier told police this, why will accused rephrase his 12 earlier reasoning for the rear of his car to be on the road to mean that deceased was coming from Wa when indeed he was not. Counsel who has love for cars should know that a motor cycle cannot cause a V8 vehicle to move upon impact let alone dislocate it from its coordinates. The law remains that, when an accused person takes refuge in telling lies before a trial court, the only inference of his behaviour was that he had a guilty mind and wanted to cover up. See Gorman vrs. The Republic (2009) 21 MLRG 139 CA. Munkaila vrs. The Republic (1995-96) 1 GLR 367 SC. This I belief the accused person embarked on as a defense which did not find favor with the court. This judgment will not be exhaustive if it does not address the issue of the defense of the accuse which I have described supra as disingenuous, the law requires in the case of Lutterodt V Commisioner of Police (1963) 2 GLR 429 rightly cited by counsel for the accused that a Court after forming an opinion that a prima facie case has been made on accused person should proceed to do the following: (a) if the explanation of accused is acceptable, the accused should be acquitted. (b) if the explanation of accused is not acceptable but reasonably probable then accused should be acquitted. (c) if quite apart from the defense explanation the Court is satisfied on a consideration of the whole evidence that the accused is guilty it must convict. Having reviewed the entire evidence, I find that the explanation of accused is neither acceptable nor reasonably probable that a motor cycle could crush into a land cruiser to move it destroy an IVS pole. The law again which I belief was a recent appreciation of the Lutterodt case cited above was given a legal rendition by Dennis Adjei JA in Lord Phidelis Sakah vrs The Republic (unreported) when he referenced the previous 13 decisions in Bediako v The Republic [2010-2012]1 GLR 566 which requires a court of law to examine the defense put up by an accused person after the prosecution has proved its case beyond reasonable doubt to ascertain whether the defense is acceptable, where it is acceptable, the accused shall be discharged. Where the defense is unacceptable, the court shall further consider whether the defense is reasonably probable and if it is, the accused shall be acquitted and where it is not reasonably probable, the court is further required to examine the entire records to ascertain whether there were other defense other pieces of evidence which may inure to the benefit of the accused. Indeed, I have done an extensive review of the evidence of the accused and fine none to support that he did not drive dangerously leading to the death of the 72-year-old and the destruction amounting to GH16,300 on the IVS pole. I will therefore agree with prosecution that, from the evidence adduced at trial, a strong, credible case of dangerous driving has been established against the accused person which must secure the law office a conviction of the accused. For the reasons above I find that prosecution has been able to prove beyond reasonable doubt that the accused drove dangerously and crashed the elderly 72-year-old who lost his life in the process. I therefore find accused guilty on count one which reads: Section 1 (1) (C) of the Road Traffic Act, 2004 (Act 683) as amended by Act 761 of 2008 provides that, ‘A person who drives a motor vehicle dangerously on a road commits an offence and is liable on summary conviction, where death occurs, to a term of imprisonment of not less than three years and not more than seven years.’ Since death occurred, accused will be sentenced to the minimum sentence of three years 14 On count two: Section 1 (1) (d) Act 683 as amended by Act 761 of 2008 further provides that, ‘A person who drives a motor vehicle dangerously on a road commits an offence and is liable on summary conviction, where there is damage to state property, to a fine not less than ten penalty units and payment for the damage caused in an amount determined by the court. I convict and sentence him to 100 penalty units and order that he pays a for the restoration of the IVS pole which I have enhanced to cater for inflation to a figure of GHC22,000. Since accused did not challenge the causation of the damage to the IVS pole to be from the accident, I order that the restoration of the pole be paid for if accused decides to appeal count one of his conviction and sentence to a custodial jail term. HIS HONOUR JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, Wa 15