Republic Vrs Awarube [2023] GHADC 481 (20 April 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT N.A.M.A. NSAWAM ON 20TH APRIL 2023 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH

MAGISTRATE CASE NO: B1/14/20

THE REPUBLIC

VRS

HANNAH AWARUBE

ACCUSED PERSON ABSENT PROSECUTION: CHIEF INSPECTOR AKAPAME FOR THE PROSECUTION PRESENT.

JUDGMENT The Accused Person herein was arraigned before this Court charged with the offence of Assault contrary to Section 84 of the Criminal and Other Offences Act, 1960 (Act 29). She pleaded not guilty after the charge had been read out and explained to her. In the 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”.

THE CASE OF THE PROSECUTION Page 1 of 9 It is Prosecution’s case that on the 10th April 2020, the Accused assaulted and verbally abused the Complainant following a confrontation that ensued between the Complainant and one Alex Awarube, who happens to be the husband of both the Accused and the Complainant. The Complainant, who sustained injuries, reported the matter to the Police following which the Accused was arrested and charged with the Offence stated supra after Accused admitted to the offence in her caution statement. PW 1 PW 1, the Complainant in this case, averred that, the Accused assaulted, bit her finger and threatened to kill her after the Accused joined in an argument between the Complainant and their husband. PW 2 PW 2 explained that, PW 1 and her husband exchanged words on the 10th February, 2020 following which the Accused joined in and assaulted PW 1 leading to the arrest of the Accused after the matter was reported to the Police. PW 3 PW 3, the Investor, stated that on the 10th of February, 2020, the matter was reported to the Police and the Complainant was issued with a Police medical form to attend hospital for treatment. PW 3 added that, the medical report endorsed was exhibited along with the necessary statements following which the Accused was charged with the offence and arraigned before Court. Page 2 of 9

THE CASE OF THE DEFENCE The Accused opened her defence by stating that, she and the Complainant are married to the same man. The Accused continued that, the Complainant had been accusing and insulting her for stealing her soap and this led the Accused to beat the Complainant. The Accused added that, on the 12th of February, 2020, the Police arrested her for assaulting the Complainant but maintains that the Complainant provoked her and so prays the Court to acquit and discharge her accordingly. After the trial it became the duty of the Court to determine whether or not the Accused Person assaulted the Complainant. Section 86(1) of Act 29 defines Assault as follows: “A person makes an assault and battery upon another person if, without the other person’s consent and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting him to anger, he forcibly touches the other person or causes any person, animal or matter to forcibly touch him.” From the above section, the elements of assault are as follows: 1. Forcibly touching or causing any person, animal or matter to forcibly touch that person; Without that person’s consent; With the intention of causing harm, pain, fear or annoyance …. 2.

3. In Bruce-Konuah v. The Republic [1967] GLR 611-617, where the Prosecution sought to prove the elements of assault, the learned judge Amissah also stated as follows: Page 3 of 9 “This definition is made subject to the provision that ‘It is not necessary that an actual assault and battery should be intended…” And upon such a charge it is open to the prosecution to lead evidence which would support either one or the other type of assault. If the Court finds one particular type proved then it has to convict.” The Accused Person initially denied assaulting the Complainant. However, she admitted beating the Complainant in her unsworn statement to the Court. Accused Person stated as follows: “6. The Complainant also insulted me for no justifiable reasons and this angered me and I beat her.

8. I say that I acted as result of the provocations of the Complainant and that it was the Complainant who initiated an attack on me and I could not control my anger and ended up beating her.” Also, in Exhibit “B” which is Accused Person’s cautioned statement she confessed to beating the Complainant. And it is the same statement that she relied on as her charged statement as per Exhibit “C”. In the case of State v. Otchere and Others [1963] 2GLR 463-531, the Court held that: “A confession made by an Accused Person in respect of a crime for which he is being tried is admissible against him provided it is shown by the prosecution that it was made voluntarily and that the accused was not induced to make it by any promise or favour, or menaces, or undue terror.” Page 4 of 9 Exhibits “B” and “C” were admitted into evidence without any objection from the Accused Person and Accused Person voluntarily filed her own unsworn statement from the dock. These statements made by the Accused Person may accordingly be accepted by the Court as an admission that Accused Person indeed did beat up the Complainant. This notwithstanding, Accused Person seems to be raising a Defense of provocation. Section 39 of Act 29 establishes the elements of provocation in Ghana. It states that: "a person is not guilty of a crime if his conduct is due to extreme provocation caused by another person who either

intended to cause such provocation or ought to reasonably have expected it to be caused." the elements of provocation include: 1) the accused must have been subject to extreme provocation by another person; 2) the actions taken by the accused must be a direct result of the provocation; and 3) the accused's behaviour must be objectively reasonable in the circumstances. An Accused Person can raise the defence of provocation if they can prove that their actions were the result of provocation by another person. They must also demonstrate that, the provocation caused them to act in the way that they did, and that the actions were reasonable in the circumstances. Although Accused Person seemed to allude to a provocation by the Complainant, she did not do more than just stating it. Accused did not lead further evidence to establish her claim that Complainant provoked her. The Accused Person failed to adduce Page 5 of 9 evidence to establish the particulars and the form which the purported provocation actually took. The Defendant had the burden to prove this to the Court. In the case of Lamptey alias Nkpa v. Fanyie & Others [1989-90] 1 GLR pg 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to

tip the scale in his favour” This is a typical case where the burden had properly shifted to the Accused Person to lead evidence on her claim. To discharge this burden, Accused Person should have adduced evidence to enable the Court to answer the following questions: What was the nature of the provocation What form did the provocation take What are the specific particulars of the provocation. As it stands the Court finds it impossible to answer these questions. It goes without saying that, the Accused Person has failed to discharge this burden. Accused Person failed to prove by her evidence that Complainant indeed provoked her. It was not enough to simply state it; Accused ought to have proved same to the Court. Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides as follows: Page 6 of 9 “Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or nonexistence of which is essential to the claim or defence he is asserting”. As noted supra the Accused Person has confessed to beating the Complainant. And that although Accused Person sought to raise the defence of provocation; she failed to prove this to the Court. Having failed at her defence, the Court shall consider her confession. In Billa Moshie V. The Republic [1977] 2GLR 418, CA the

Court held that: “A conviction could quite properly be based entirely on the evidence of a confession by a prisoner, and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness.” Also, in the case of Ofori v. the State [1963] 2GLR 452, SC, the Supreme Court held that: “A free and voluntary confession of guilt by an Accused Person, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any evidence.” In the present case, Accused Person’s statement was made freely and voluntarily. The Court accordingly accepts the confession of the Accused Person as her admission of guilt. I have considered the whole of the evidence adduced in the case and I find that the evidence supports all the ingredients of the charge of assault brought against the Page 7 of 9 Accused Person, I therefore find the Accused Person Hannah Awarube guilty of the offence of assault and convict her accordingly. COURT: Since Accused Person is not present, the Court shall issue a Bench Warrant for Accused Person’s arrest. Case adjourned to 11th May, 2023. Accused Person is hereby remanded into Police custody today. IN THE DISTRICT MAGISTRATE COURT HELD AT N.A.M.A. NSAWAM ON 27TH APRIL 2023 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH

MAGISTRATE Accused Person: Present. Prosecution: Chief Inspector Akapame for Prosecution Present. COURT: The matter was adjourned for sentencing because judgment was read and Accused Person was convicted when Accused Person chose to be absent without any just cause known to the Court. Q: Any plea in mitigation before sentence is passed? A: I was bereaved that is why I was absent in Court. I have nothing to say. All I am saying is that I am pleading with the Court to be lenient with me. Page 8 of 9 Q: Is the Accused Person known to the police? Prosecution: No. Final Orders: Accused Person is sentenced to a fine of 50 penalty units and in default 90 days imprisonment. Accused Person is ordered to pay the sum of GH¢500.00 to the Complainant as Compensation. ………...………………………………… H/W SARAH NYARKOA NKANSAH

MAGISTRATE 27/04/2023 Page 9 of 9