REPUBLIC VRS AGEDE (D18//25/21) [2023] GHACC 798 (29 November 2023)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON WEDNESDAY, THE 29TH DAY OF NOVEMBER, 2023, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO: D18//25/21 THE REPUBLIC VRS: SAMUEL AGEDE ACCUSED PERSON PRESENT INSP. EMMANUEL ASANTE FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION FACTS: JUDGMENT The accused person was charged and arraigned before this court on the advise of the Attorney-General on the following charges; (1) Careless and Inconsiderate Driving contrary to Section 3 of the Road Traffic Act, 2004 (Act 683) as amended by the Road Traffic Amendment Act, 2008, Act 761. (2) Negligently Causing Harm contrary to Section 72 of the Criminal Offences Act, 1960, Act 29. The brief facts presented by the prosecution are that on 9th May, 2019 at about 10:30am, the accused person, a driver accompanied one Noah Soh, the substantive driver of Daf Articulator truck with registration No. AS3964-11 and his mate Confidence Azamesu, aged 23 years old to the premises of Dunamis shipping warehouse at the Tema Community 9 Heavy Industrial area to convey bags of cashew nuts. The prosecution avers that during the loading process, Noah Soh noticed a fault at the off-side hippo section of the truck and subsequently went beneath the truck with Confidence Azamesu to fix the fault. Whilst Noah Soh and Confidence Azamesu were underneath the truck, the accused person driver ignited the truck without ensuring the state of the truck's gear. The prosecution states that the accused person’s failure to place the gear in a neutral position before igniting it caused the truck to lurch forward and run over Confidence Azamesu who sustained chest injury. He was taken to the Tema General Hospital but was pronounced dead on arrival by a medical doctor and the body was deposited at the hospital's mortuary for autopsy. Subsequently, a report was made to the Police for investigation. During investigations, the accident scene was visited, measurements were taken and a sketch drawn. Post-mortem was also performed on the body of the deceased and thereafter released to the family for burial. The accident truck was tested by a DVLA Technical officer who submitted his written report. After investigations, a duplicate docket was prepared and forwarded to Attorney General's Office for advice. On receipt of the advice, the accused was charged with the offences to appear before court. THE PLEA The self-represented accused person pleaded not guilty to the charges after the charges had been read and explained to the accused person in the Ewe language. The prosecution therefore assumed the burden to prove the guilt of the accused person beyond reasonable doubt. BURDEN OF PROOF Under Article 19(2)(c) of the 1992 Constitution of Ghana, a person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty. See also Sections 11, 13 and 15 of the Evidence Act, 1975 NRCD (323). Thus, in criminal cases, where the accused person pleads not guilty to the charge(s), the prosecution assumes the onerous burden to prove the guilt of the accused person beyond reasonable doubt. In the case of C. O. P V. Antwi [1961] G. L. R 408, the court in espousing on the burden of proof in criminal cases held as follows: “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 for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” COUNT 1 On count 1, the accused person is charged with Careless and Inconsiderate driving contrary to Section 3 of the Road Traffic Act 2004, (Act 683) as amended by the Road Traffic (Amendment) Act, 2008 (Act 761). Section 3 of the Road Traffic Act provides that: “A person who drives a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road, commits an offence and is liable on summary conviction to a fine not exceeding two hundred penalty units or to a term of imprisonment not exceeding forty months or to both the fine and the imprisonment.” In the case of Mahama v. The State [1964] GLR 569 at page 571, the court held that: “That definition shows that the mere occurrence of an accident in the course of driving a motor vehicle does not of itself constitute the offence of careless driving. To establish that offence, the essential particulars set out in the section must be proved; that is, evidence must be led from which it will appear that the driver drove the vehicle in a manner “without due care and attention or without reasonable consideration for other persons using the road.” Further to that, in the case of Oteng v. The Sate [1966] GLR 352, the court, in accentuating the need for the prosecution to prove the cause of the accident beyond reasonable doubt stated that: “on the issue of careless driving and negligently causing harm it could not be supposed that merely because an accident had happened and somebody had been injured and succumbed to his injuries, carelessness and negligence had in that sense arisen and it must follow that the accused drove without due care and attention or that he negligently caused harm.” Therefore, to succeed, the prosecution must prove the following essential ingredients of the crime charged; 1. That the accused person drove a motor vehicle on a road. 2. That the accused person drove the said motor vehicle without due care and attention, or 3. That the accused person drove the vehicle without consideration for other road users. The first prosecution witness, Noah Soh testified that he is a driver by profession and in charge of Daf XF 95 articulator truck with registration number AS 3964-11. On 9th May, 2019 between the hours of 10:00am and 11:00am, he went to the premises of Dunamis Shipping Company's warehouse located at the Tema Industrial Area, Community 9, to load bags of cashew nuts meant for export, in the company of the accused person and one Confidence Azamesu now deceased who was his driver’s mate. According to his testimony, whilst the truck was being loaded, he noticed a fault at the offside hippo section of the truck on one of the tyres. He then went under the truck with the deceased to fix the problem. He lied at the rear side of the tyre whilst his mate lied at the front section of the same tyre. They continued fixing the problem until the accused person informed him that the labourers were done loading the truck. He asked the accused person to ignite the engine since he knew him to be a licence holder. He then heard the accused person igniting the truck and saw it moved forward a bit. He shouted to alert him that he was under the truck with his mate but before he could end his statement, the truck moved forward and ran over his driver’s mate. He further stated that the mate was in pain so he ran out of the warehouse to the side of the road and got a taxi cab and they rushed him to the Tema General Hospital for treatment. The second prosecution witness, inspector Kingsley Addo, stationed at the Tema Regional Motor Traffic and Transport Department of the Ghana Police Service testified that on 19th May, 2019, at about 1:40pm, he received a complaint from James Owusu, a Kumasi based Transporter that, his Daf XF 95 articulated truck with registration number AS 3964-11 which was hired by the Dunamis Shipping Company to transport cashew nuts had been involved in a motor accident within the premises of the said Company at the Heavy Industrial Area, Tema Community 9. The complainant went further to state that, the mate on the truck got injured and had been rushed to the Tema General Hospital. He moved immediately with a colleague to the company's premises with the complainant. On their way to the Tema Heavy Industrial Area, the complainant saw the accident truck and pointed it out to him. He immediately intercepted it and met PW1 as the one driving it, arrested PW1 and visited the premises with him. PW2 further testified that at the scene, he saw a lot of labourers bagging cashew nuts. PW1 pointed to a pool of blood at a cemented field of the warehouse and explained to him that, that was the spot the injured mate was ran over by the truck. He took measurements of the accident scene after identifying all the vantage points at the scene. PW1 told him that though he was the substantive driver of the truck and was there when the incident occurred; he was not the one in charge when the incident occurred. PW1 further informed him that, the accused driver who was in charge of the truck was the one who transported the injured mate to the Hospital. He went to the Accident & Trauma Center of the Tema General Hospital in the company of his colleague, the complainant and PW1 but the accused driver was not met at the Hospital. According to PW2, enquiries at the Center revealed that, a case of an injured person was brought in by the accused person but was pronounced dead on arrival and the body was deposited at the Hospital's morgue. He received a Coroner's Request form issued by the Hospital and bearing the name of the deceased, aged 23. He went to the mortuary and saw the deceased’s body with marks of vehicular tyres on his chest. After that, he brought PW1 and the accident truck to the Police station for further action. On the same day, the accused person reported himself at the Police station to assist investigation and he got him arrested immediately. He tendered in evidence the investigation caution statement obtained from the accused person admitted and marked as Exhibit “A”. The second prosecution witness further testified that on 10th May, 2019, the accused person was released on Police enquiry bail and he visited the scene of crime with the accused person where he confirmed the earlier sketch of the scene he had drawn and the accused person counter signed. He tendered in evidence the sketch of the scene admitted and marked as Exhibit “C”. He also tendered in evidence autopsy report on the deceased body admitted and marked as Exhibit “D”. He also submitted the testing officer officer’s report on the accident truck admitted and marked as Exhibit “E”. Additionally, PW2 testified that a careful investigation revealed that, the accused person on 9th May, 2019 accompanied PW1, the substantive driver of a Daf 95 XF articulated truck with registration number AS 3964-11 and his mate Azamasu Confidence to the premises of Dunamis Shipping Warehouse located at Community 9, Tema Heavy Industrial Area to convey bags of cashew nuts. During the loading process, PW1 noticed a fault at the offside hippo of the truck and subsequently went underneath it together with Confidence Azamasu to fix the fault. Whilst PW1 and Confidence Azamasu were underneath the truck, the accused person ignited the vehicle which was in a gear causing it to lurch forward and ran over Confidence Azamasu who was pronounced dead upon arrival at the hospital. After investigation, a duplicate of the case docket was prepared and sent to the Attorney General's office for advice and the accused person was charged based on the advice of the Attorney-General. The charge statement of the accused person was admitted and marked as Exhibit “F”. The accused person in his investigation caution statement admitted and marked as Exhibit “A”, and in his defence sated that he went with PW1 and the deceased to load cashew nuts and whilst the truck was being loaded, the three of them ate together under the stationery truck and he was asked to go and wash the bowls. He left the scene with his brother and the deceased still under the truck. Before eating, PW1 saw a fault at the opposite side of the hippo tyre of the truck so after the eating he remained there to fix the problem. He then asked him to spark the truck to accumulate enough air before they leave the truck. He entered the front seat upon seeing his brother coming out from beneath the truck. He saw the hand in active position before sparking. After sparking, he heard some shouts and decided to come off the truck and in the course of doing so, the truck moved forward and the ignition went off. He came off to see the driver’s mate lying under the truck with injuries and he carried him to the Tema General Hospital but was pronounced dead. The accused person in his testimony on oath repeated his statement to the police that when he saw PW1, he did not know that the deceased was still under the truck. The accused person further maintained that when PW1 instructed him to start the ignition, he did not know that it was not in a neutral position, which caused the truck to run over the deceased. From the evidence led by the prosecution and the defence put up by the accused person, can it be said that the accused person was driving a motor vehicle on a road? On the evidence, the car was faulty which PW1 and the deceased were busily fixing and the accused person was only to start the ignition to test the vehicle. The accused person was not driving on a road since the term “road' is defined to include a street, highway and any other road or public place which the public has access by vehicle or cycle and the bridges over which a road passes. See 133 of the Road Traffic Act, 2004 (Act 684). At the time of the accident, the vehicle was parked on the premises of the warehouse and the accused person was not driving on a road. The deceased who was also under the truck fixing the truck with PW1 and the accused person and he cannot be deemed to be a road user since they were neither using a road nor passengers on a vehicle which the accused person was driving. On the totality of the evidence led by the prosecution and the defence put up by the accused person, I find that the prosecution failed to prove their case that the accused person drove a motor vehicle on a road without due care and attention, or without reasonable consideration to other road users. I therefore pronounce the accused person not guilty on count 1 and accordingly acquit and discharge him on a charge of careless and inconsiderate driving contrary to Section 3 Act 683 as amended. COUNT TWO (2) On Count 2, the accused person is charged with Negligently Causing Harm contrary to Section 172 of the Criminal Offences Act, 1960 (Act 29). The section provides that a person who negligently and unlawfully causes harm to any other person commits a misdemeanour. P. K. Twumasi in his book Criminal Law in Ghana defines negligence as “any conduct which is wanting in the skill and care as are reasonably necessary under the circumstances”. The learned author states at page 604 states that: “ the essence of liability for negligence is failure to do what is reasonably expected in the circumstances.. An event is pure accident if it occurs unexpectedly and without apparent cause; therefore, a person charged with negligent act who intends to put up the defence of accident must adduce evidence which is true or reasonably probable to show that he did not cause or contribute to cause the vent by any act or omission which amounted to negligence, but that the vent occurred unexpectedly and without apparent cause” From the discussion on count 1, supra, the court finds as fact that the accused person failed to ensure that the vehicle was in a neutral position before starting the ignition. The accused person admits under cross-examination by the prosecution that as a competent driver, it was incumbent on him to ensure that the vehicle was a neutral position but maintains that he only acted under the instructions of the first prosecution witness. Under cross-examination by the prosecution, the following ensued: Q: You will agree with me that you are a licensed driver, is that correct? A: Yes, My Lord. Q: You will agree with me that Noah Soh asked you to start the engine of DAF articulator truck with registration No. AS 3964-11 because he knows you are a licensed driver. A: Yes My Lord. Q: You will also agree with me that Noah Soh, your brother asked you to start the engine of the said truck but not to move it? A: Yes, My Lord. Q: Can you tell the court in brief as a licensed driver the things you needed to do or ensure were in place before starting the car? A: Yes My Lord. Before you start the engine of a vehicle, you have to ensure the vehicle’s gear is in a neutral position and because my brother did not inform me whether the vehicle was in a neutral position or not, I did not check before starting the engine and that was the mistake I made. Q: I am putting it to you that the said truck was in first gear when you started the engine and that was the reason why it moved. A: Yes My Lord. Q: I am putting it to you that, as a licensed driver, you ought to have known that a truck will move when you start it. A: That is correct, My Lord. Q: I am also putting to you that when your brother asked you to start the engine on the said articulator truck, he was beneath the said truck with his mate Confidence Azamesu fixing a fault. Is that not correct? A: My Lord, that is correct but I have an explanation. Noah in his evidence to the court stated that they did not finish fixing the fault under the vehicle before instructing me to start the vehicle. Q: I am putting it to you that you did not consider the lives beneath the truck before starting the engine of the said truck. A; That is correct My Lord, but I did not start the engine on my own. It was an instruction given to me by Noah. The above reproduced excerpts of the cross-examination conducted by the prosecution of the accused person shows that the accused person was a licensed and competent driver who knew what to do before starting a vehicle but he failed to do so. The defence put up by the accused person that he was only acting on the instructions of PW1 is untenable since as a competent driver, it was incumbent on him to ensure that the vehicle was properly in a neutral position before staring the ignition and to ensure that the car was free from all obstructions before attempting to start knowing fully well that there were two people under the truck fixing same. This should have put him on notice to be extra careful in attempting to start a vehicle with a fault and two people under the vehicle trying to fix the fault. In the circumstances of this case, I find that the accused person, a skilled and competent driver was negligent when he started the ignition of a vehicle without ensuring that the gear was in a neutral position leading to the death of the Confidence Azamesu. A little diligence and carefulness on the part of the accused person would have saved a precious soul from needless death. On the totality of the evidence led, I find that the accused person was negligent when he started the ignition of a faulty vehicle with human beings beneath fixing fault without ensuring that the gears were in a safe position and thereby causing harm to the deceased and leading to his death. I therefore pronounce the accused person guilty of the offence and I accordingly convict him of same. SENTENCING In sentencing the Convict, the court takes into consideration his plea in mitigation, the fact that he is a first time offender, the remorse shown by the accused person, the fact that the offence was not premeditated and the conduct of the accused person after the accident in sending the victim to the hospital and reporting himself at the police station, the reparation made to the family of the deceased by assisting the family to give the deceased a befitting burial. The court also takes into consideration the fact that the charge against the accused person though a misdemeanour, the accident resulted in the loss of human life. I therefore sentence the accused person to serve a term of imprisonment of six (6) months in hard labour. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 11