S v Dameh (GR/SG/DC/B3/12/2025) [2025] GHADC 181 (22 July 2025)

IN THE DISTRICT COURT HELD AT SEGE ON TUESDAY, THE 22ND DAY OF JULY, 2025. BEFORE HER WORSHIPVICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. CC: GR/SG/DC/B3/12/2025 THE REPUBLIC VRS JERRY ANDREWS ANIM DAMEH JUDGMENT The accused person herein has been arraigned before this Court charged with the following offence of THREAT OF HARM: CONTRARY TO SECTION 74 OF THE CRIMINAL OFFENCES ACT 1960, (ACT 29). Accused persons pleaded not guilty to the charge. The court therefore set the matter down for trial. By this plea it means that their guilt has to be proved by Prosecution beyond reasonable doubt. That common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2) (c) of the 1992 Constitution which enacts: (2) “A person charged with a criminal offence shall ------- (c) be presumed to be innocent until he is proved or has pleaded guilty.” The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in Ss. 13 and 15 of the Evidence Act, 1975 (NRCD 323). 1 Significantly, whereas the Prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. Prosecution in proving their case called four witnesses including the investigator. The statements of these witnesses; Investigative cautioned statement (EXHIBIT A) Investigative charged statement (EXHIBIT B) Photograph of a cutlass (EXHIBIT C) Pendrive containing a video recording of Accused welding a cutlass (EXHIBIT D) and other documents for Case Management Conference (CMC) were filed on the 24th day of January 2025. Hearing commenced on the 28/02/25. In Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. PROSECTION’S CASE The complainant in this case Daniel Amartey Tetteh a.k.a Otukotse is a retired typist whiles accused person is a mason all residing at Sege within the same vicinity. On the 22nd November, 2024 at 7:30am, Complainant was sitting in front of his house when accused 2 whose house is about five (5) metres from the complainant’s house brought out cutlass with black head from his room and walked towards where the complainant was sitting and threatened him to wit “Otukotse I will cut you into pieces with the cutlass am holding” out of fear, the complainant left the house. On Saturday the 23rd of November, 2024 at about 6:30pm, complainant was again sitting in front of his house and without any reasonable cause, accused again brought out cutlass from his room and repeated the same threatening words to the Complainant. Witnesses who were around tried to stop accused but he dares to inflict cutlass wound on them should they come to him. Investigation revealed that the accused person was put before this Honourable Court and was made to sign bond to be of good behaviour for two years for same offence. During investigation, complainant furnished Police with a video of accused holding cutlass issuing the threat words to him. In his caution statement, he denied knowing the complainant. After investigation, accused was charged with the offence and put before this Honourable Court. PW1 in his evidence-in-chief confirmed the brief facts of the case. After which Accused failed to cross examine him and he was duly discharged. After the evidence-in-chief by PW2 Accused failed to cross examine him and he was duly dis charged. After the evidence-in-chief of PW3 Accused again failed to cross examine the witness who the court was duly discharged. PW4 is the investigator. Accused again failed to cross examine PW4 and he was duly discharged. Generally, cross examination is subject to the rule against the admissibility of evidence. As much as possible, when material facts are deposed to in examination in chief which is disputed by a party cross examining, it must be challenged on cross examination by the cross examiner while at the same time putting his case across for the witness to deny or admit that fact. It has been held in our courts that failure to cross examine on such vital issues must be taken to be an admission by the party on whose behalf the cross examination. 3 Failure to cross examine a witness especially on material issues can have significant consequences potentially leading to the acceptance of the witness testimony as correct and potentially impacting the outcome of a case. In Re JOHNSON DECEASED DONKOR v PREMPEH [1975] 2 GLR182-192 When material facts are deposed to in evidence-in-chief which is disputed by a party, it must be challenged on cross examination. In the case of Billa v Salifu [1971]2 GLR 87; the court held that “the failure of the Appellant to challenge this evidence was in effect an admission of the allegation. It was also stated in Lanquaye v the Republic [1976] 1 GLR 1 the failure of prosecution to challenge the appellants evidence …implied acceptance of the truth of the evidence Accused in his defence denied threatening PW1 During cross examination; Q. You have been charged with the offence of threat of Harm. What do you have to say in defence. A. I did not threaten anyone. I have nothing to say about it. Q. Do you know the Complainant. A. I do not know him. Q. Do you live next to each other. A. I live close to many people. If Complainant is also there, I can accept him. Q. I am putting it to you that you live close to each other. A. I can’t answer. Q. I am putting it to you that the complainant in the matter is your aunt’s husband. 4 A. Since I was born, I live in a family house so I cannot tell. Q. It is true that on the day in question, you were holding a cutlass. A. I cannot tell. Q. When you were captured holding the cutlass can you tell the Court what you were saying. A. I was not doing any video with anyone for him to capture me in the video. Q. What were you saying when you were captured holding the cutlass. A. I am not doing any movie with someone that we are not taking pictures so I will not answer the question. Q. Do you know Mr. Dameh Peter. A. He is my father. Q. So your father was part of the people who arrested you to the Police station. A. He held my hand. I did not notice about anything. Q. I am putting it to you that your father saw you threatening the complainant that was why he assisted in arresting you to the Police station. A. It was my grandmother who took care of me. My father did not take care of me. Q. On the 23/11/24 you threatened the complainant with a cutlass to kill him. A. I did not even notice the day. Is he the only person living in the area. What does the complainant want from me. 5 I will accordingly discuss what the elements of the offences are and then determine whether on the evidence as adduced by the prosecution as well as on the competing facts, the respective charge have been established or proven against the accused person. In doing that, the court has distilled from the whole of the evidence, the following as the main issues for determination in this judgment: 1. Whether or not the accused person threatened to harm the complainant? Section 74 of the Criminal and the other offences Act 1960 [Act 29] states; “a person who threatens any other person with harm with intent to put that person in fear of unlawful harm commits a misdemeanor”. In order to succeed in a conviction, the prosecution would have to establish that: • The accused threatened the Complainant with harm. • The threat was with the intention of putting the complainant in fear of impending harm. Threat is defined by the JC Smith in his book Criminal law, international student edition (10h Edition) page 767 paragraph 3 writing on threatening, abusive or insulting said among others. “The words threatening abusive or insulting are to be given their ordinary meaning. It is not helpful to seek to explain them by the use of synonyms or dictionary definitions because an ordinary sensible person knows an insult when he sees or hears it and whether a particular conduct is threatening or not is a question of fact” The threat to commit harm to another person may be enough as long as it is made to overcome resistance. The threat can be made orally, in writing or by actions as provided in section 17(3) and (4) of Act 29. Naturally the threat of harm must occasion a reasonable apprehension of danger. 6 The case in point is Behome v The Republic the accused caught the wife in harmony with another man and seized them. He assaulted them and threaten to kill the man. He was convicted for conspiracy to commit unlawful entry, robbery and threat of death contrary to section 75. The court in relation to the conspiracy held; “Where one was charged with the threat of harm the threat must be harm and nothing else”. These offences will lie in situations where there is a reasonable expectation of the conduct of the threat. PW1 was present when the alleged threats were issued in his presence by the Accused. This made PW1 to capture the accused in a footage which was played in court. Accused person was seen in the video wielding a cutlass in a very angry mood where he dared PW1 to go and bring the Police. From the facts presented, the court is certain that Accused was seen and heard in the footage as the one who uttered the threatening words in Dangme; “I am here go and call the Police to come.” “You said you went and come I am also here” in Dangme. When court asked Accused whether he was the one in the video he responded; Q. Are you the one in the video. A. I cannot tell. If someone capture me, I did not ask the person to capture me.’ Accused refused to answer questions in the video presented to Court by Prosecution because he did not ask the complainant to take a video of him. This is a verbal threat of harm. It is criminalized and defined in section 74 of Act 29. 7 The punishment is one of a misdemeanor. The court is convinced in its mind that PW1 was threatened by Accused whilst wielding a cutlass with the words “I am here go and call the police” facing PW1 to the extent that he was able to capture in the video was enough evidence of his words of threat. It is specific and genuine as Accused has the means and motivation to harm PW1 with the cutlass he was holding whilst facing PW1 few steps away from him and further daring him to call the police. From that time PW1 now feels nervous and affects his quality of life and even more evidence that this verbal threat is also criminal. The situation was a one in an apprehension of eminent fear of attack. Accused succeeded in threatening the life of PW1 with fear of harm. Accused is found guilty on the offence of threat of harm and convict accordingly. MITIGATION Accused pleaded with the court to deal leniently with him and award a minimal sentence. BY COURT Is the accused known. BY PROSECUTION The Accused in a case B3/42/2022 was convicted on the 04/05/2022, was by this court on the charge of threat of harm contrary to section 74 of Act 29/60. He was made to sign a bond to be of good behavior for 24 months in default serve 12 months prison terms I.H.L. This bond is to expire on the 4th of May 2025. The accused has repeated same offence of threat of harm in the instance case which is within the bond period. The court has convicted him for sentencing however his sentence for the default of the bond signed will be applied under the circumstance. 8 The court has also taken judicial notice of the Accused in the habit of not respecting his neighbors in the community. The sentence is to serve as a deterrent to other prospective offenders. (SGD) VICTORIA A. GHANSAH (MAGISTRATE) 9