REPUBLIC VRS. ATTAH (CC /02/2025) [2024] GHADC 590 (30 December 2024)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON MONDAY 30TH DECEMBER 2024 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. CASE NO: CC 02/2025 THE REPUBLIC VRS. ATTAH FRANCIS @TO WO NSA JUDGMENT 1. This is a judgment regarding 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 the complainant Kwaw Nana and the accused person Attah Francis are siblings and farmers who live in the same house at Nkranfo Nkwanta near New Edubiase. On 25th September 2024, at about 9:00pm, the complainant fetched water into a bucket to take a bath. Whiles he was preparing to bath, the accused person, armed with a pair of scissors and without any provocation from the complainant, poured out the water from the bucket. The complainant approached the accused person politely to demand a reason for his behavior. The accused person responded by stabbing the complainant's right arm with a pair of scissors. The complainant shouted for help but before the arrival of Page 1 of 12 some neighbors to his aid he collapsed. Sensing danger, the accused person fled the scene. Some of members of the community came to the scene and managed to revive the complainant while others pursued the accused person and succeeded in apprehending him in spite of fierce resistance he put up. The accused person was handed over to the Assembly member for Nkranfo Nkwanta electoral area who along with the complainant and others escorted him to the Atobiase Police Station, handed him over to Police and lodged a formal complaint. A police medical report form was issued to the complainant to attend hospital for treatment and endorsement. Upon completion of investigations the accused person was charged with the offence on the charge sheet and put before this court. 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…” 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 Page 2 of 12 “…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.” 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 Page 3 of 12 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. 12. To do this, the prosecution called four witnesses; the victim, the one who attended to the victim after he was stabbed, the complainant, and the investigator in charge of the case. Page 4 of 12 13. According to the first prosecution witness Kwaw Nana, he is a farmer and the brother of the accused person, with whom he lives in the same house at Nkrankese. On 25th September 2024 at about 7:00pm, he took a bucket full of water to take a bath. The accused person poured out the water from the bucket and took same. He approached the accused person who was holding a pair of scissors he uses to cut Indian hemp for an explanation. The accused person responded by stabbing him with the scissors. He fainted and the accused person fled. However, some members of the community apprehended the accused person and took him to the assembly man's house for his safety since others wanted to beat him. Before he was stabbed, he neither touched the accused nor hit him. 14. In his evidence, the second prosecution witness Isaac Boakye stated that on 25th September 2024, at about 8:30pm he had fetched water and was going to take a bath when he heard an unusual noise from a nearby house. He went to the said house and found the accused person holding a pair of scissors which he had used to stab Kwaw Nana's arm. The complainant was bleeding from the wound on his arm. He shouted, "Men should come to Kwaw Nana's aid." Scores of people begun to make their way to the scene. The accused person fled when he saw the crowd approaching. However, some of the people chased the accused person and arrested him. When he arrived at the scene there was no injury on the accused person. 15. The third prosecution witness Fella Bismark testified that he is a farmer and an Assembly member for the Nkranfo Nkwanta electoral area. On 25th September 2024, at about 9:00pm, he was at home when Nana Boakye (PW2) together with the accused person and some members of the community came to report that the Page 5 of 12 accused person has stabbed Kwaw Nana (PW1) with a pair of scissors. Nana Boakye informed him that he brought the accused person to him because those who arrested him wanted to beat him. He therefore took the accused person, hid him in his room and later escorted him together with the first prosecution witness to the Atobiase Police Station where a formal complaint was lodged. 16. The evidence of the fourth prosecution witness D/C/Insp. Owen Adokwei Addo is that on 25th September 2024, a case of causing harm reported by the first prosecution witness against the accused person was referred to him for investigations. As part of his investigations, he took the pair of scissors the accused person is said to have committed the crime with, obtained a statement from the first prosecution witness after he was treated and discharged, and issued a police medical report form to the first prosecution witness to attend hospital for treatment, and took an investigation cautioned statement from the accused person. In addition to the above, he took statements from the second and third prosecution witness and visited the crime scene at Nkrankese. Upon conclusion of his investigations, he formally charged the accused person with the offence of causing harm. 17. He tendered the following documents into evidence: a. Exhibit A - The investigation cautioned statement of the accused dated 26th September 2024 b. Exhibit B - The charge statement of the accused dated 16th October 2024 c. Exhibit C – the endorsed medical form of the victim and complainant dated 28th September 2024 d. Exhibit D – a red pair of scissors. Page 6 of 12 18. 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 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 choose to 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 close his case and adjourn the case for judgment. 19. The accused person elected to remain silent and not call any witnesses. 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. 20. The above notwithstanding, the principle of the presumption of innocence remains. This means the accused person is not bound to give evidence in his trial. Neither is he bound to establish his innocence. It is still the duty of the prosecution at this stage to establish his guilt beyond reasonable doubt. In the case of The State v. Sowah and Essel(supra) 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…” 21. 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.” 22. From this 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 23. The first element requiring proof by the prosecution is that harm has been caused to a person. 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 suffered bodily hurt when the accused stabbed him with a red pair of scissors without provocation. He bled so much from the wound that he collapsed. This is what he stated in his evidence-in-chief “I approached accused person who was holding a pair of scissors he uses to cut his Indian hemp for an explanation, but he stabbed me with same… I did not touch him neither hit him.” The accused person in exhibit A admitted to stabbing the complainant, but said it was done in self- defence. This is what he stated “On 26th September 2024 in the morning, I was in my room when my junior brother Kwaw Nana entered my room with a cutlass. Without any provocation, he used [the] cutlass to assault me. I picked a scissors which was in my room and used it to stab his arm.” Page 8 of 12 24. The second, third and fourth prosecution witnesses also testified that the victim suffered bodily hurt, namely that he was stabbed with a pair of red scissors. The second prosecution witness testified that “I went to the said house and to my surprise the accused person was holding a pair of scissors and had stabbed Kwaw Nana's arm with same with blood oozing from the wound.” 25. Exhibit C indicates that the complainant had a deep laceration anterior part of his right arm which was dressed and stitched. There is thus sufficient evidence on record to show that the complainant was harmed by a person. 26. The second element which must be proved is that the harm was caused by the accused person. In this case there is evidence from the first and second prosecution witnesses, especially the first prosecution witness that the accused person was the one who stabbed him with a red pair of scissors. The evidence of these witnesses was not displaced by the accused person during cross-examination. I therefore find as a fact that the accused person was the one who caused harm to the complainant. 27. The third element is that the harm was caused intentionally. The law is well settled 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.” Page 9 of 12 Thus, an accused person cannot say that he did not intend a certain result if that result is the natural and probable consequence of his act. 28. It is equally settled that intent cannot be proved by direct or positive proof but is inferred from proven facts of the 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.” 29. In the instant case, the facts on record are that the accused person stabbed his brother the complainant without provocation. According to the evidence of the second prosecution witness, the accused person fled when he began to call for members of the community to assist him to take the first prosecution witness to the hospital. The accused person is the older brother of the complainant. Why would he flee when the second prosecution witness shouted for help, instead of staying to assist him to take his brother to the hospital? Why would he flee if he was not the cause of the harm? The only plausible explanation is that he was the cause of the harm. I find that the accused person was the one who intentionally harmed the first prosecution witness. 30. Finally, the prosecution must prove that the harm was unlawful. 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 Page 10 of 12 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. 31. 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.” 32. 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 (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. 33. 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 Page 11 of 12 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.” 34. In the instant case, none of the above justifications avails the accused person. While the accused person during cross-examination claimed that he stabbed the complainant because same attacked him with a cutlass, he failed to lead evidence in support of this claim when he was called upon to open his defence. He also claimed that his children were present on the day of the incident, and yet he failed to call them to testify on his behalf. Hence the only conclusion this court can infer is that no such act occurred, and no such children exist. 35. On the totality of the evidence before me, I find that on 25th September 2024 Attah Francis intentionally and unlawfully caused harm to Kwaw Nana. He is accordingly convicted. HW ANASTACIA Y.A. KARIMU ESQ. [MAGISTRATE] Page 12 of 12