Republic Vrs Francis [2023] GHADC 448 (19 July 2023)

IN THE DISTRICT COURT SITTIN HELD AT ASAMANKESE ON THE 19TH DAY OF JULY, 2023. BEFORE HIS WORSHIP GEORGE DAVIS KWASI OFORI – DISTRICT MAGISTRATE CASE No: B14/22/23

THE REPUBLIC VRS.

AWUTEY FRANCIS

INSPECTOR LIVINGSTONE TETTEY FOR PROSECUTION

J U D G E M E N T

CHARGE 1. CARELESS AND INCONSIDERATE DRIVING CONTRARY TO SECTION 3 OF ACT 683/2004, AS AMENDED BY ACT 761/2008.

2. NEGLIGENTLY CAUSING HARM CONTRARY TO SECTION 72 OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29) AS AMENDED.

3. NEGLIGENTLY CAUSING HARM CONTRARY TO SECTION 72 OF THE CRIMINAL OFFECES ACT (SUPRA). SUMMARY OF PROSECUTION’S EVIDENCE: It is their case that on the 12th day of November, 2021, the accused who was driving a taxi cab with Registration No: GR 4954-10 drove the said vehicle carelessly and caused Harm or Injuries to two passengers namely Francis Kotoka and Kumi Richard. That without due care, he drove the car carelessly and hit the back of a backhoe machine which was then being used to construct the road, but which had developed 1 | P a g e a fault and left on the shoulder of the road. That measurement of the accident scene were taken (Exhibit ’E’) and a report of the testing officer from DVLA also attached (Exhibit ‘F’). What prosecution failed to attach were pictures of the accident scene. SUMMARY OF THE ACCUSED PERSON’S EVIDENCE: It is his case that, on the 12th day of November, 2021 between the hours of 6:30 p.m to 7:p.m, he was driving a taxi cab with Registration No: GR 4954-10 with four passengers on board, from Asamankese towards Ammako. That at that time, the road from Ammako to Brekumanso was under construction and was dusty. That unknown to him, a backhoe machine being used for the construction had been abandoned in the middle of the road. That he accidently run into the back of the machine due to poor visibility because of the dusty nature of the road, and

also because there was no warning that a machine had developed fault and had been left in the middle of the road, and also because it was duck. That the accident occurred at a place after negotiating a bend or a curve and descending. That before the impact, three vehicles and a motor bike were from the opposite direction, hence the poor visibility caused by dust and dark. That, he together with some of the passengers sustained injuries and were taken to the Asamankese Government Hospital, and that while still receiving treatment at the hospital, the owner of the machine had gone to take it away from the accident scene. Again, he was absent when the investigator took measurements at the accident scene. 2 | P a g e That about a month later, the foreman of Maripoma Company which was constructing the road came to apologise to him that it was the machine they left on the road that caused the accident. That the Company negotiated with his car owner and paid him Gh¢3,000.00 to be used to repair the car. That it was the negligence of Maripoma Company through the driver of the backhoe machine that caused the accident and not him. The accused called 2 witnesses and also attached exhibits 1, 2, and 3 as part of his evidence. ISSUES FOR DETERMINATION: From all the evidence before me, the issues that came up for determination are; a) Whether or not the prosecution was able to prove that the

accused drove his car carelessly without due care and consideration for other road users and thereby causing injuries or harm to passengers on board his vehicle, and; b) Whether or not what happened that day was an accident caused by the driver of the back hoe machine through negligence and dereliction of duty. To succeed the onus lies on the prosecution to prove beyond reasonable doubt both the actus reus of the offences charged and the mens rea (intent) of the accused in committing the offence, because an act alone would not constitute an offence unless it is committed with a Criminal intent. See Section 10 and 11(2) of the Evidence Act 1975 (NRCD 323). 3 | P a g e The ingredients of the offences charged needed to be proven by the prosecution are that, first the accused drove the car carelessly. second that he drove without due care and consideration for other road users. Third, that due to his carelessness, he caused an avoidance accident with intent to cause injury to the passengers and fourth, that the injury has caused the victims harm and pain. It is obvious from the evidence that the police was not at the scene of crime when the incident occurred on the 12th day of November, 2021. It was not until the 18th day of November, 2021 (according to the prosecution) that the scene was visited and measurement taken, (exhibit ‘E’). From Exhibit “E”, it is clear that the accident

occurred within the lane supposed to be used by the accused driver’s car or taxi cab, not exactly in the middle of the road as the accused put it, and not on the shoulder of the road as the prosecution put it. Prosecution did not attached any pictorial evidence (pictures taken of the accident scene) to assist the Court. I therefore visited the scene of crime and observed that the point of the impact as agreed by both the investigator and the accused was within the rightful lane being used by the accused driver at the time of the accident/impact. I also observed that the point of impact was not far from a bend when descending a hill towards Ammako. 4 | P a g e Evidence on record that is not controverted by either party is that the road was then under construction. Being a road under construction, anytime a vehicle passes, dust would be generated, no matter how reasonably show the vehicle is travelling. The prosecution did not cross examine the accused on his evidence that three vehicles and a motor bike passed him in the opposite direct before the impact, which failure I take to be an admission. Being passed by other vehicles would definitely generate dust and affect visibility I take judicial notice of how fast some driver’s drive on roads under construction in this Country, especially when the graded portion becomes quite motorable. In my opinion, the dust generated by the

vehicles in the opposite direction possibly affected the view of the accused driver who hit the backhoe machine left on the path/lane of the accused driver, hence the impact. According to the accused, there was no sign or warning that a machine had been abandoned on the road, but the prosecution did not cross-examine him on that, which I again take to be an admission. In my opinion, if the accused had been driving faster than he did on that day, the impact would have been more serious and even fatalities could have occurred. In my opinion therefore, what happened that day was an accident not caused by the accused but by the driver of the backhoe machine who negligently abandoned same on the road without any sign/warning to other road users at a place right after a curve on a descending hill on a dustry road. 5 | P a g e It is that driver who should have been in the dock for prosecution and not the accused. It is therefore not supervising that the contractor, Mr. Kwame Ernest made an agreement with the car owner of the accused and paid him an amount of Gh¢3,000.00 to be used to repair the damaged taxi cab (see exhibit ‘3’) which the prosecution failed to cross-examine the accused on. Again, prosecution failed to cross examine the accused on exhibits ‘1’ and ‘2’ which are conversation between one Emmanuel Awutey car owner and the Company. All these point to the fact that they accepted responsibility. In my opinion therefore, the prosecution failed to prove the guilt of the accused person beyond reasonable doubt. Accordingly, I acquit and discharge him. (SGD) H/W GEORGE DAVIS KWASI OFORI (MR) (MAGISTRATE) 19/7/23 6 | P a g e