REPUBLIC VRS. SHITOR (CC /03/2025) [2025] GHADC 24 (9 January 2025)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON THURSDAY 9TH JANUARY, 2025 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. CASE NO: CC 03/2025 THE REPUBLIC VRS. KWAME SHITOR JUDGMENT 1. This judgment is in relation to the offence of causing harm. 2. The accused person was first arraigned before this court on 17th October, 2024 for the offence of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29) to which he pleaded not guilty. 3. The facts as presented by the prosecution are that in the month of July 2024, complainant Thomas Bosompem, a farmer and resident of Adansi Kwame Agyei, allocated a portion of his farmland to one Kwadwo Obeng a friend to Kwame Shitor the accused person herein to cultivate rice at Adansi-Kwame Agyei. The complainant and Kwadwo Obeng agreed to share the rice after the harvesting period. The rice was harvested by Kwadwo Obeng but the complainant did not receive his share. As a result, he warned Kwadwo Obeng not to step foot on the farm again. Thereafter, the accused person would insult the complainant whenever he saw him. On 2nd September, 2024 at about 3:00pm, the complainant was standing beside his cocoa mat at Adansi-Kwame Agyei when the accused Page 1 of 12 person passed by him. Without any word of provocation, the accused person began insulting the complainant calling him "useless man, stupid man" but the complainant did not respond. The accused person then threatened to fight with the complainant if he dared to respond to his insult. The complainant asked the accused person to leave the scene as he was not ready to have any scuffle with him. True to his words the accused person picked a stone and hit the complainant on the mouth causing his incisor to break. The complainant also sustained injuries on his forehead and elbow. He rushed to the police station to report the case. He was issued with a police medical report which he later returned on the same day duly endorsed. The accused person was accordingly arrested by the police to assist police investigation. In his cautioned statement, the accused denied the offence and stated that the complainant got wounded because of the fight that ensued between them. After the close of police investigation, the accused was charged with the offence of causing harm. 4. The fundamental rule of our criminal jurisprudence is that an accused person is presumed to be innocent until proven guilty by a court of competent jurisdiction. This is enshrined in Article 19(2)(c) of the Constitution, 1992 as follows: “(2) a person charged with a criminal offence shall… (c) be presumed innocent until he is proved guilty or has pleaded guilty.” 5. The presumption of innocence has been interpreted to mean that a person accused of a crime does not bear the burden of proving his innocence. Rather it is the responsibility of the prosecution to prove his guilt. In the case of Bruce-Kouah v. The Republic [1967] GLR 611, the court held that: “…An accused is under no obligation to prove his innocence. The burden of the accused person’s guilt is on the prosecution…” Page 2 of 12 6. Again, in the case of The State v. Sowah and Essel [1961] GLR 743 the court quoted with approval the holding of the case of Woolmington v. DPP thus, “…at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt.” 7. Thus, the burden of proving the commission of a crime in every criminal trial lies on the prosecution. This burden remains on the prosecution throughout the trial. The only burden the accused would assume is the evidential burden, which shifts from the prosecution to the accused if at the end of the case of the prosecution an explanation is required of him. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408, the court held thus: “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case of the prosecution an explanation for circumstances particularly within the knowledge of the accused is called for. The accused is not required to prove anything, if he can merely raise reasonable doubt as to his guilt, he must be acquitted.” 8. The Evidence Act, 1975 (NRCD 323) provides the mode by which the above burden ought to be discharged, and that is by the production of sufficient evidence to establish the guilt of the accused person beyond a reasonable doubt. Section 11(2) of NRCD 323 provides that: “In a criminal action the burden of producing evidence when 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 the fact beyond a reasonable doubt.” Page 3 of 12 9. Sufficient evidence has been defined to mean evidence from which the guilt of the accused can be inferred. Thus, the evidence of one credible witness is enough to convict an accused person: Boakye v. The Republic [1999-2000] 1 GLR 740. So long as the rules of admissibility in NRCD 323 are complied with, evidence adduced by the prosecution will be deemed sufficient if it meets the standard of proof required by the law. 10. The standard of proof required in all criminal cases is proof beyond a reasonable doubt. Section 13(1) of NRCD 323 provides that: “In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” In the case of Miller v. Minister of Pension (1947) 2 AER 372 Lord Denning J (as he then was) explained proof beyond reasonable doubt as follows: "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." 11. Reasonable doubt has been defined to mean the duty of the prosecution to ensure that sufficient evidence has been adduced to establish the ingredients of the offence for which an accused person has been charged so that on the totality of the evidence the court would be satisfied that the accused person has in fact committed the offence with which he has been charged. Page 4 of 12 12. The prosecution called two witnesses, the complainant and the investigator in charge of the case. According to the first prosecution witness Thomas Bosompem, he is a farmer residing at Kwame-Agyei. In the month of July 2024, he allocated a portion of his farmland to one Kwadwo Obeng who is a friend to the accused person to cultivate rice at Kwame-Agyei. It was agreed the paddy rice will be shared between them after the harvesting period. The rice was later harvested but he did not receive his share as earlier agreed. He therefore warned Kwadwo Obeng not to step foot on the land again. This incurred the wrath of the accused person, who would insult him every time he saw him. On 2nd September, 2024 at about 3:00pm, he was standing beside a cocoa mat at Adansi Kwame-Agyei when the accused person passed by him. Without any word of insult, the accused person called him a stupid and useless man. Even though he was annoyed, he did not respond to him. The accused person then threatened to fight with him if he responds to his insults. He asked the accused to leave his premise because he was not ready to have any scuffle with him. The accused person became offended, picked a stone and hit his mouth. His incisor got broken and he started bleeding from his mouth. He rushed to the police station to report the case. He was issued with a police medical report form to attend hospital for treatment. He later returned the police medical report form to the police and gave a statement to the police. He did not fight with the accused person as he is alleging. The accused person intentionally caused harm to him. 13. The evidence of the second prosecution witness Pw/L/Cpl. Florence Opoku is that on 2nd September, 2024 at about 5:30pm, she was the investigator on duty when the first prosecution witness came to the charge office with a broken incisor, a cut on the forehead and elbow and reported that the accused person had caused harm to him at Adansi Kwame-Agyei. According to the first prosecution witness, the Page 5 of 12 accused person insulted him evertime he saw him at Adansi Kwame-Agyei. He warned the accused person to stop insulting him, but the accused person failed to adhere to his warnings. On 2nd September, 2024 at about 5:00pm, he was standing beside his cocoa drying mat when the accused person passed by and started insulting him to wit “you stupid man, foolish man.” He was annoyed but did not respond in like manner to the accused person but rather warned him to leave his presence to avoid any scuffle. The accused person became offended and hit his mouth with a stone, breaking his incisor. He sustained a cut on his forehead and elbow. 14. She took a statement from the first prosecution witness and issued to him a police medical report form to attend hospital for treatment and endorsement. The complainant later returned the police medical report form duly endorsed by a doctor from the New Edubiase government hospital. She arrested the accused person to assist in investigation. She took an investigation cautioned statement from the accused person for the offence of causing harm. In his statement, he denied causing him to the complainant and stated that the complainant was wounded because of the fight that ensued between them. She asked the complainant to produce a witness to assist investigation, but he failed to do so. According to him, the witness felt reluctant to give a statement. After her investigation, she was instructed to charge the accused with the offence stated on the charge sheet. 15. She tendered into evidence the following exhibits: a. Exhibit A - the investigation cautioned statement of the accused dated 22nd September, 2024 Page 6 of 12 b. Exhibit B - the charge statement of the accused person dated 15th October, 2024 c. Exhibit C - the endorsed police medical report form dated 2nd September, 2024 d. Exhibit D, D1, and D2 - photographs of the injured complainant. 16. At the close of the case of the prosecution, the court found a prima facie case had been established against the accused requiring him to answer. The court explained the four options available and their consequences to the accused, namely that a. he could give evidence on oath and call other witnesses to give evidence on oath on his behalf, in which case he and his witnesses would be cross- examined by the prosecution, b. he could abstain from giving evidence on oath but call witnesses to give evidence on oath on his behalf, in which case his witnesses would be cross- examined by the prosecution, c. he could give a statement from the dock, in which case he would not be cross-examined by the prosecution, but his statement would be taken into consideration by the court in its judgment, and d. he could choose to remain silent and not give evidence, in which case the court would adjourn the case for judgment. 17. The accused person elected to remain silent and not call any witnesses. The case was subsequently adjourned for judgment. The above notwithstanding, the principle of the presumption of innocence remains. The accused person is not bound to prove his innocence. That duty lies on the prosecution who have accused him of a crime. In the case of The State v. Sowah and Essel [1961] GLR 743 the court held that Page 7 of 12 “In a criminal case… there is in general no presumption against an accused, and an accused person is not bound to give evidence. It is wrong to therefore presume the guilt of an accused merely from the facts proved by the prosecution…” 18. The above notwithstanding, the law is also clear that a party who disables himself from being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice: The Republic v. Automated Fast Track High Court No. 4 (Accra), Ex-parte State Housing Co. Ltd (No.2) Koranten-Amoako Interested Party [2009] SCGLR 185. 19. Section 69 of Act 29 provides for the offence of causing harm as follows, “A person who intentionally and unlawfully causes harm to any other person commits a second degree felony.” 20. From the above provision, the elements which require prove are: a. That harm has been caused to a person b. That the harm was caused by the accused person c. That the harm was caused intentionally d. That the harm was unlawful 21. It is the case of the prosecution harm has been caused to a person, namely Thomas Bosompem. Harm is defined in section 1 of Act 29 as “bodily hurt, disease, or disorder whether permanent or temporary.” In the instant case, the first prosecution witness testified that he sustained injuries on his forehead and elbow, and had a tooth broken when the accused hit him on the mouth with a stone. The second prosecution witness also testified that on the day the first prosecution witness Page 8 of 12 came to report the case, he had a broken incisor and a cut on his forehead and elbow. 22. Exhibit C indicates the left teeth of the complainant is freshly broken. He had a deep laceration on the left elbow, and painful areas around the body, suggesting assault with offensive object. Exhibit D series show the complainant with a broken tooth, blood on the lower lip, a cut on his forehead and elbow. 23. The prosecution’s case is that the harm caused to Thomas Bosompen was caused by the accused person. The first prosecution witness testified that the accused person was the one who injured him with a stone. The evidence of second witness is that the first prosecution witness was injured by the accused person. The accused person denied injuring the complainant without provocation. During cross-examination of the complainant, he asserted that the complainant sustained the injuries because of a fight, instigated by the complainant. This is what he said, “Q: You were the one that instigated a fight with me. We fought, fell on stones, and your teeth got broken. Both of us were injured. I am putting this to you. A: It is not true. You came from your house to my house. I was in the process of bagging dried cocoa beans. All I heard was “it is you. I will harm you.” When I lifted my head, you were holding two stone, one in each hand. You hit my mouth, my forehead, both sides of my head, my chest, and my left elbow with the stones. I became angry and decided to retaliate. One of the stones you were holding fell and I decided to pick it up. As I was picking it, one Kwasi Addei or brother Paul took the stone from me, held me and told me not to hit you. You went home and came back with a cutlass to harm me. Page 9 of 12 Kwasi Addei took a bamboo stick and used it to block you. That is how I was able to escape and report the matter to the police.” 24. It is the case of the prosecution that the harm caused to the complainant by the accused person was intentional. The law is that a man intends the natural and probable consequences of his act. Section 11(1) of Act 29 provides that “If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this Code, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event.” 25. While intent cannot be proved by direct or positive proof, it can be inferred from the circumstances of a case. In the case of Bruce v. Commissioner of Police [1963] 1 GLR 36 the court held that “… But intention not being capable of positive proof is generally implied from overt acts. On the basis of the principle that every person is presumed to intend the natural and probable consequences of his own acts, the prosecution may succeed in securing a verdict of guilty if they can prove that the acts of the accused person and the circumstances connected therewith lead to a certain natural result.” 26. The accused person denied the assertion of the prosecution during cross- examination and claimed that the accused person was rather the one who instigated a fight with him, resulting in both sustaining injuries to various parts of their bodies. Fights are not instigated in a vacuum. It is the result of misunderstandings and anger. There is no evidence before me that the complainant and the accused person have had any misunderstanding. The only Page 10 of 12 evidence on recrod is that the accused person was angry with the complainant because he took his farm from his friend by name Kwadwo Obeng. 27. The law on the use of force or harm is provided in sections 30 to 45 of Act 29. The law as stated in these provisions is that harm is unlawful where the harm caused is not justified within the set limits enumerated in the law. Where a ground for justification of harm exists, the harm would be deemed unlawful if more force is applied than was reasonably necessary in the circumstances of the case. The relevant sections are provided below. 28. Section 76 of Act 29 provides that “Harm is unlawful which is intentionally or negligently caused without any of the justification mentioned in chapter One of this Part.” Section 30 of Act 29 provides as follows: “(1) For the purposes of this Act, force or harm is justifiable which is used or caused in pursuance of a matter of justification, and within the limits that are provided for in this Chapter.” 29. Section 31 provides as follows: “Force may be justified in the case and 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 (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 criminal offence; or (g)of a necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights; or (h) of a necessity for preserving order on board a vessel; or Page 11 of 12 (i) of an authority to correct a child, servant, or other similar person, for misconduct; or (j) of the consent of the person against whom the force is used. 30. Section 32 of Act 29 provides that “Although there may exist a matter of justification for its use, force cannot be justified as having been used in pursuance of that matter a. which is in excess of the limits prescribed in the section of this Chapter relating to that matter, or b. which extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used.” 31. In the instant case, the evidence led by the prosecution indicate that the accused person hit the complainant on his mouth, forehead and elbow with a stone without any provocation whatsoever from the complainant. There is no evidence on record which supports any of the justifications provided by the law in favour of the accused person. While the accused person during cross-examination claimed the complainant was the one who instigated a fight with him, resulting in both sustaining injuries to various parts of their bodies, he failed to lead evidence in support of this. 32. On the totality of the evidence before me, I find that on 2nd September 2024 Kwame Shitor intentionally and unlawfully caused harm to Thomas Bosompem. He is therefore convicted for the offence of causing harm. HW ANASTACIA Y.A. KARIMU ESQ. [MAGISTRATE] Page 12 of 12