REPUBLIC VRS. ANAI (B1/14/2024) [2024] GHADC 567 (28 November 2024)

IN THE DISTRICT COURT HELD AT PRESTEA ON THURSDAY THE 28TH DAY OF NOVEMBER, 2024, BEFORE HIS WORSHIP IDDI ADAMA ESQ., SITTING AS THE DISTRICT MAGISTRATE COURT CASE NO.:B1/14/2024 THE REPUBLIC VS: ELIZABETH ANAI JUDGEMENT The Accused person Elizabeth Anai was charged with one count of Assault contrary to Section 84 of Act 29. The charge sheet was filed on the 13/6/2024. The plea of the accused was taken pursuant to Section 171 of Act 30 to which the accused pleaded not guilty to the charge preferred against her per the charge sheet. This is reproduced for ease of reference. STATEMENT OF OFFENCE Assault: Contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Elizabeth Anai, Trader, on the 1st day of June, 2024 at Washing Bay/Prestea in the Western Magisterial District and within the jurisdiction of this Court, you unlawfully attacked and assaulted Dominic Owusu by beating him with a piece of wood severally. [1] The accused was admitted to bail with two sureties and on the 3/7/2024 the Prosecution served the following disclosures on her. 1. The Charged Sheet marked as Exhibit ‘A’. 2. The facts of the Prosecution’s case, marked as Exhibit ‘B’. 3. Investigation Cautioned Statement of accused Elizabeth Anai marked as Exhibit ‘C’. 4. Charge Cautioned Statement of accused Elizabeth Anai marked as Exhibit ‘D’. 5. Witness Statements of the following persons a. Dominic Owusu marked as Exhibit ‘E1’ and ‘E2’. b. No. 51904 D/Cpl Naah Tasii marked as Exhibit ‘F’. 6. Police medical Report Form endorsed by Dr. Kwasi Acheampong of Prestea Government Hospital marked as Exhibit ‘G’. 7. Photograph of Pestle marked as Exhibit ‘H’. A brief fact of the case is that the Complainant Dominic Owusu, aged 62 years and unemployed is a neighbour to the accused and they all stay at Washing Bay/Prestea. The Complainant applied weedicide on his plot of land through a labourer and he share a common boundary with accused. On the 1/6/2024 about 8:00 am the accused confronted the Complainant as having trespassed into her land, and according to the Complainant, the accused subsequently subjected him to beatings with a piece of wood. The Complainant further indicated that the accused left and returned with a pestle and again subjected him to beatings till he managed to run into his room for safety. [2] The accused was arrested on the 8/6/2024 after a complaint was made and police medical from was issued for Complainant to seek medical treatment and same was done and endorsed by the medical officer of Prestea Government Hospital. When the Prosecution opened its case they called two witnesses who in turns testified under oath and were cross examined by the defence (Accused person). Witness statements tendered and admitted in evidence by the Court were from Dominic Owusu, the Complainant marked as Exhibit ‘E1’ and ‘E2’ (PW1) and that of No. 51904 D/Cpl Naah Tasii, the investigator marked as Exhibit ‘F’ (PW2). PW1 stated in his witness statement marked as Exhibit ‘E1’ that he resides at Washing Bay/Prestea and the accused is the neighbour sharing common boundary. PW1 further indicated that in the year 2023 accused pleaded and PW1 agreed for her to put up a temporal hencoop on portions of PW1’s land. That months later without his consent and knowledge accused erected a temporal bathhouse at the same location. It is the case PW1 that some days later the accused started erecting a toilet facility on his land and PW1 resisted of which some pastors intervened and accused agreed to remove same. PW1 stated that three weeks prior to the assault, PW1 applied weedicide on his land through a labourer. On the 01/06/2024 at about 8:30am PW1 indicated that accused angrily came to his house wielding a piece of wood and enquired from him why he had applied weedicide on the land. To this according to PW1 accused used the piece of wood to hit him severally and only to retreat and returned with a pestle and subjected him to another beating and he had to run to his room for safety. It is the position of PW1 that on the 7/6/2024 he lodged a complaint with the Prestea District Police and a medical form was issued and he was treated at the Prestea Government Hospital and the police medical form duly endorsed by a medical officer. The Complainant repeated the same statement to the Police marked as Exhibit ‘E2’. In support of its case the Prosecution attached as [3] Exhibit ‘G’ and ‘H’ the police medical form and a picture of the Pestle allegedly used by the accused to assault the Complainant. The medical report was dated 06/06/2024 and endorsed by P.A. Pearl Anapo for Dr. Arnold Y. Nyamoah, medical officer. A critical scrutiny of the form indicates according to the medical officer that the Complainant walked into the hospital limping though unaided with gait and that and I quote: “There is generalized bodily tenderness which might be due to trauma from the alleged assault. There is marked pain on the right upper limb region that might be due to trauma” “There were no other obvious significant findings in the rest of the examination. Patient walked out of the hospital premises clinically stable looking and unaided” PW2, No. 51904 D/Cpl Naah Tasii in his witness statement marked as Exhibit ‘F’ stated that on the 6/6/2024 at about 8:30am a case of assault was referred to him when on duty for investigation. He issued a police medical form to the Complainant for medical examination which was dully returned and endorsed by a medical officer of Prestea Government Hospital. PW2 obtained investigation witness statement from Dominic Owusu and Joyce Duku. The accused was then arrested on 8/6/2024 and obtained investigation cautioned statement from the accused and upon instructions the accused was granted police enquiry bail. The pestle marked as Exhibit ‘H’ was retrieved and retained for evidence and the accused was charged on the 10/6/2024. After CMC was conducted the Prosecution opened its case by calling PW1 to be cross examined by the accused. It was revealed that the Complainant and the accused are acquainted to each other. It was further revealed that the bone of contention was the weeding of a portion of land which allegedly belonged to the Complainant. It is further noted that there has been a long standing quarrel between the Complainant and the accused which was sent to Nsuekyir Ahenfie and settled. It is further [4] ascertained that the accused picked a pestle and went to the Complainant’s house, the following interaction is instructive and I quote on page 9 of Record of Proceedings; “Q. I want to put it to you that because you threatened me with a cutlass that is why I also picked the pestle in your own house that if you slash me with the cutlass, I will also hit you with the pestle. A. It is not true because my right hand is not working because of stroke so I cannot use it to pull cutlass to threaten you.” The above interactions depose to the fact that the accused actually confronted the Complainant in his own house. When PW2 was cross examined by the accused it was the case that the Complainant did not go to the police station with the pestle. In exercising my discretion the medical officer who endorsed the medical report was subpoenaed to testify since the authenticity of the report was doubted by the accused. The medical officer proved the authenticity of the signature and the stamp on the medical report. Further to this when accused was called upon to cross examine CW, the medical officer indicated the procedure in making his findings. The Court took cognizance of Patient/Doctor privileges. It is trite learning that accused is presumed innocent and the Prosecution needs to prove its case against the accused beyond reasonable doubt. Section 11(2)(4) and 17 of Evidence Act NRCD 323 states: “(2) In a criminal action, the burden of producing evidence when it is on the Prosecution as a fact which is essential to guilt requires the Prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind find existence of the fact beyond reasonable doubt. [5] (4) In other circumstance the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” Section 17 of Act 323 further states that the allocation of burden of producing evidence and Section 10(1) and 2(b) of Act 323 defines burden of persuasion as “10(1) for the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (b) To establish the existence or non-existence of a fact by preponderance of probabilities or beyond reasonable doubt” This is to state that the onus is on the prosecution to prove its case sufficiently to warrant the order of the accused to open her defence. The Prosecution, in other words is to establish a prima facie case for the accused to be called upon to explain herself. The underlying rule here is that an accused person should not be called to defend herself by way of evidence upon which he may be convicted where the Prosecution has not establish a prima facie case. I will consider the above in dealing with this instant case, the position of the law when the Prosecution has closed its case is stated in the case of Atsu v The Republic (1988) GLR 717 where the Court at page 719 states: “As a general rule evidence from the defence is not taken until the Court has held that the Prosecution has established a prima facie case. This is based upon the well-known principle that it is the Prosecution which has the onus to prove the guilt of the person [6] they accused of an offence and not an accused should establish his innocence the accused should therefore not to show his hand until need arises” It requires the Prosecution to provide sufficient evidence pursuant to Section 11(2) 7 NRCD 323 quoted supra to the extent that the evidence is capable of convicting the accused if he does not offer any explanation. Where evidence is adduced by the Prosecution to support the charge as laid, the Court must hold that a prima facie case has been made out and that the accused is entitled to open his defence. Not only should all the element of the offence be proved but also the evidence adduced should be reliable and should not have been so discredited through cross examination that no reasonable tribunal can safely convict on it. See Michael Asamoah & Ors. v The Republic Civil Appeal No. H1/53/16 Adinyira JSC. When Prosecution closed its case. In analysing the fact as presented by the Prosecution, the accused is charged with the offence of Assault Contrary to Section 84 of Criminal Offences Act 1960 (Act 29) which is a misdemeanor and it states: A person who unlawfully assaults another person commits a misdemeanor. Section 85 depicts different kinds of assault without an actual definition “(1) For the purposes of Section 84 “assault” includes (a) Assault and battery (b) Assault without actual battery, and (c) imprisonment” It is however clear from Section 86 Sub section (1) under illustration that the offence so charged falls under Section 85 (1) (a) assault and battery. It is instructive to state the illustration as given [7] ‘1. A strikes B or spit upon B, or causes a dog to bite B’ or in any manner cause B to fall or be thrown on the ground. Here if A’s intention was to cause harm, pain, fear or annoyance to B, or to excite B’s anger, A commits an assault and battery. The elements peculiar to this charge and deduced from the illustration is that 1. A Strikes B 2. If A’s intention was to cause harm, pain, fear or annoyance to B. 3. A commits an assault and battery. The Prosecution must prove these elements to the satisfaction of the Court and the Court is bound to convict unless accused is able to put forth some defence or explanation which can cast a reasonable doubt on the case of the Prosecution. It is the evidence of the Prosecution and evidence adduced during cross examination of PW1 has establish that on the 01/06/2024 at about 8:30am accused invaded the premises of PW1 and there was a misunderstanding and during the altercation that ensued accused used a piece of wood to hit PW1 severally and later followed up with a pestle and subjected PW1 to additional beatings until PW1 run into his room for safety. Attached and marked as Exhibit ‘H’ filed on the 3/7/2024 indicates photograph of a pestle for pounding fufu which was retrieved from the accused. Further to this is a police medical form marked and Exhibit ‘G’ and dated 6/6/2024 in the name of Dominic Owusu of Washing Bay, Prestea. The observation of the doctor by one P.A Pearl Anapo for Dr. Arnold Y. Nyamoah deposes to the fact that they observed “a generalized bodily tenderness which might be due to trauma from the alleged assault”. It was further observed that “there is marked pain on the right upper limb region that might be due to assault.” [8] The above evidence by way of Exhibit ‘H’ and ‘G’ though not conclusive fulfills the element that the strike may be from the fufu pounding stick marked Exhibit ‘H’ and that the resultant effect is observed by the medical report and marked as Exhibit ‘G’. In order to establish the link between Exhibits ‘H’ and ‘G’ the following interactions between the accused and PW1 is instructive: “Q. Is it not you that pulled a cutlass to drive me out from your house? A. It is not true because my right hand is not working because of stroke. Q. When I assaulted you with a pestle where did I leave it? A. You did not leave it in my house. Q. I want to put it to you that because you threatened me with a cutlass that is why I also picked the pestle in your own house that if you slash me with the cutlass, I will also hit you with the pestle.” It is obvious that the accused person confronted PW1 in PW1’s house with a pestle and the resultant effect is as indicated per Exhibit ‘G’ the medical report from the hospital. Section 126 of Act 323 states: “(1) Evidence of a hearsay statement contained in a writing made as a record of an act event or condition is not made inadmissible by Section 117 if (a) The writing was made by and within the scope of duty of a public official. (b) The writing was made at or near the time the act or event occurred or the condition existed; and (c) The source of information and method and time of preparation were such as to indicate that the statement contained in writing is reasonably trustworthy.” [9] I therefore have no doubt Exhibit ‘G’ is admissible. After the Prosecution has closed its case, the Court ruled that a prima facie case has been made against the accused person. A reasoned ruling is hereby given above. The accused was asked to open her defence. Before the accused was called upon to open her defence, she raised doubt as to the authenticity of the police medical report upon which the Court subpoenaed the medical doctor who issued the medical report on the 6/6/2024 at Prestea Government Hospital. One Pearl Anapo for Dr. Arnold Y. Nyamoah to testify. The medical officer being a Court witness deposed to the manner the examination was carried out and testified that the medical report was carried out based on medically sanctioned procedure. The Court was mindful of Patient/Doctor Privileges as to divulging certain medical information about patient. Accused opened her defence and testified under oath. That she says at Prestea Washing Bay and stated that she realised some strange occurrences around her house. That she subsequently went around her house and realised that her dandelion and Kontomire has been tainted with some blackish and yellowish substance. That upon enquiry, she was informed by her children that it was their neighbour in the company of another person who sprayed some substance on the land. That upon advice she rescinded going to the police station to lodge a complaint. It is the case of the accused person that five days later, she was invited to the police station for assaulting someone with a pestle. When cross examined by Prosecution, accused denied having any boundary issue with the Complainant (PW1) but acknowledged that her children told her it was PW1 who sprayed some substance on her crops. The accused admitted that she carried a stick at PW1’s house and I quote: [10] “Q. Do you remember that in your witness statement to the police you admitted carrying a stick. A. I told the CID that when I went to the Complainant’s house I took a stick at the Complainant’s house but I did not go with a stick to the Complainant’s house.” Though accused admitted going to the house of the PW1 with a stick the accused denied same later and admitted rather going to the house of PW1 with a pestle, when a portion of Exhibit ‘C’ the investigation cautioned statement was read to her and this is instructive and I quote: “A. Yes I remember I wrote that in my statement but I rather went for a pestle and not stick. Q. So I want to put it to you that there was confrontation with a stick in Complainant’s house alone is assault. A. Yes I agree with you.” It is hereby a fact that the accused went to the house of PW1 with a pestle being marked as Exhibit ‘H’ and there was a misunderstanding between accused and PW1. It is further a fact that the medical report indicates that there was a strike of an object which evidentially is Exhibit ‘H’ was used on PW1 and the resultant effect is Exhibit ‘G’ a medical report indicating trauma to the person of PW1. This has the effect of causing harm, pain, and fear. The act alone of the accused picking a pestle and proceeding to the abode or home of the Complainant is clothed with intent. It is hereof instructive to state that Section 84 states that “A person who unlawfully assault another person commits a misdemeanor. [11] The definition of assault is not defined by law but illustrated. Section 85 of Act 29 depose to different kinds of assault under our laws and I quote “(1) For the purpose of Section 84 “Assault” includes: (a) Assault and battery (b) Assault without actual battery, and (c) Imprisonment. It is further clear from Section 86 Sub-section (1) under illustration that the offence charged falls on all fours under Section 85(1)(a) assault and battery as illustrated under Section 86 Sub-section (1) and I quote: “(1) A Strikes ‘B’ or spit upon ‘B’ or causes a dog to bite ‘B’ or in any manner causes ‘B’ to fall or be thrown on the ground. Here if ‘A’s intention was to cause harm, pain, fear or annoyance to ‘B’ or to excite anger, A commits an assault and battery” Where statute creates an offence, it is the duty of the Prosecution to prove each and every element of the offence which is equal to securing a conviction until it is shifted under statute, the basic and cardinal principle as to the criminal burden of proof on the Prosecution should not be shifted even slightly. See Tamakloe v The Republic [2011] SC GLR 29. Section 11(2) of NRCD 323 and Section 13(1) of NRCD 323 quoted supra is instructive. The effect of the above is that the Prosecution has to prove the guilt of the accused. The 1992 constitution Article 19(2)(c) is to the effect that an accused is presumed innocent until he guilt is proven or has pleaded guilty. It must be emphasized that the proof by the Prosecution can either be direct or indirect. It is direct were the accused is caught in the act or has confessed to the crime. Where an accused was not seen [12] committing the offence or has not confessed, her guilt can still be proven by inference from the surrounding circumstance. See The State v Brobbey (1962) 2 GLR 101 at 106. In this respect the Prosecution tendered many document in evidence. Among such documents are statements from accused person being Exhibits ‘C’ and ‘D’, Investigative Cautioned Statement and Charge Cautioned Statement given on the 8/6/2024 and 10/6/2024. This was taken in the presence of independent witness Scott Teye who certified it. No force statements were made per the records. The legal inference deduced from Exhibit ‘C’ and ‘D’ indicates that the accused went into the home of PW1 with an object which she later confessed it to be the pestle, which is photographed and marked as Exhibit ‘G’. The indirect inference of the fact that the accused went into the home of Complainant with the pestle as exhibited as Exhibit ‘G’ and was not seen committing the offence of assault or has confessed to same, her guilt of the offence is still proven by inferences of the surrounding circumstances. The circumstances being the misunderstanding and the medical report marked Exhibit ‘H’ being the resultant effect of the confrontation. I hereby without an iota of doubt state that the Prosecution has proved their case by both direct and indirect circumstantial evidence. The evidence of the accused person has not creates any doubt in the mind of the Court. I therefore find the accused person guilty as charged and proceed to convict her. I am of the view that society must live in harmony with each other especially when they are neighbours because good neighbours make peace and this is not the case here. I would hereby impose a reformative sentence which would serves as a lesson within her immediate community and society at large. I further take into consideration the advanced age of the accused person. From the records, the Court has taken notice of the aggressive nature of the accused person as it depose to the bitterness in her. [13] Accordingly, the accused is sentenced to 250 Penalty Unit in default serve six (6) months in prison custody. The accused is further ordered to sign a bond of good behaviour for one (1) year or in default serve an additional six (6) months in prison custody. All sentence run concurrently. As a consequential and restorative order I hereby order the accused person to refund all medical expenses incurred in the treatment of PW1 at the Prestea Government Hospital. I order accordingly. H/W. IDDI ADAMA ESQ. (DISTRICT MAGISTRATE) [14]