Republic Vrs Leticia Akoto [2022] GHACC 159 (16 September 2022)

IN THE CIRCUIT COURT ‘1’, ADENTAN, ACCRA, BEFORE HER HONOUR JUDGE DORA G. A. INKUMSAH ESHUN (MRS.) SITTING ON TUESDAY THE 16TH DAY OF SEPTEMBER 2022 SUIT NO: D3/46/2021 THE REPUBLIC V. LETICIA AKOTO VERDICT The accused person was arraigned before the court on 14th April 2021 on a charge of causing unlawful harm to Deborah Kugblenu by pouring boiling water on her breasts, on 10th March 2021 at Adenta, contrary to section 69 of the Criminal and Other Offences Act, 1960 (Act 29). She pleaded “not guilty” and was granted bail in the amount of GH¢10,000 with two sureties to be known to the police. The accused person was unrepresented throughout the trial. The brief facts are that, the complainant and accused person are co-tenants in a house at Adenta village and share a common bathroom. It was alleged that, the accused person has been permitting outsiders to use the bathroom “without recourse to its cleanliness”. On 10th March 2021 at about 7:30 pm, the complainant “…spotted one Janet Lame alias Ataa Maame an outsider, using the bathroom and confronted her as to who authorized her to use the facility”. The complainant was informed it was the accused person and confronted her. While they exchanged words, the accused person fetched boiling water from a cooking pot on the fire and poured it on the complainant’s chest, causing severe burns on both breasts. A complaint was lodged, the complainant was issued with a medical form to attend the hospital and the accused was arrested and put before court after investigations. On March 29th, 2022, the court ruled under section 174(1) of the Criminal and Other Offences Procedure Act, 1960 (Act 30) that the accused had caused harm to PW1 by pouring hot water on her breasts and had raised a plea of self-defence. The accused person was ordered to open her case. When the accused opened her case on 13th May 2022, she informed the court that she had two witnesses. However, after several adjournments, they were unable to appear in court to testify and the court closed the case of the defence on 17th August 2022 to avoid further delay in the trial. Under section 177(1) of the Criminal and Other Offences Procedure Act, 1960 (Act 30), “The court, having heard the totality of the evidence shall consider and determine the whole matter and may, (a) convict the accused and pass sentence on, or make an order against the accused according to law, or (b) acquit the accused, and the Court shall give its decision in the form of an oral judgment, and shall record the decision briefly together with the reasons for it, where necessary.” [Comfort and Another v. The Republic [1974] 2 GLR 1]. “A person who intentionally and unlawfully causes harm to any person commits a second-degree felony” [section 69 of Act 29]. The elements of this offence are that: 1. The accused person unlawfully caused harm to the complainant or victim, and 2. The accused person intentionally caused harm to the complainant or victim. After finding from the evidence of the prosecution that the accused did pour boiling water on the complainant’s breasts, the issue to be determined is whether or not the harm caused by the accused is justified in law – that is, whether the accused caused the harm to the complainant in self-defence. The standard of proof in a criminal trial includes the burden of persuasion and the burden of producing evidence [sections 10 and 11 of the Evidence Act, 1975 (NRCD 323)]. The burden of persuasion is 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 [section 10(1) of NRCD 323]. It requires a party in a criminal trial to raise a reasonable doubt concerning the existence or non-existence of a fact or to establish the existence or non-existence of a fact by proof beyond a reasonable doubt [sections 10(2) of NRCD 323]. The burden of persuasion in a civil or criminal action “…as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt” [section 13(1) of NRCD 323]. “In a criminal action, the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence, a reasonable mind could have a reasonable doubt as to guilt” [section 11(3) of NRCD 323]. In Ali Yusuf Issa (No. 2) v. The Republic [2003 – 2004] SCGLR 174, the Supreme Court held that the burden of producing evidence and the burden of persuasion are the components of “the burden of proof”. The prosecution produced two witnesses – Deborah Kugblenu, the complainant (PW1) and the investigator, Detective P. W. Inspector Florence Kwashie (PW2). In her witness statement, PW1 testified that on 10th March 2021 at about 7:30pm, she spotted Madam Janet Lame alias Ataa Maame bathing in the house she shares with the accused person and confronted her as to who authorized her to use the facility. She then confronted the accused when her name was mentioned – as to why she authorized Janet Lame an outsider, to use the facility since she has no recourse to the facility. While she and the accused person exchanged words, the accused person fetched boiling water from a cooking pot on the fire and poured it on both her breasts and she sustained injuries. She lodged a complaint at the Adenta police station, submitted her statement and took the police to the scene of the crime – where she demonstrated how the incident occurred. Under cross-examination, the accused person put it to PW1 that she did not ask her why Janet Lame was bathing in their bathroom, but rather “rushed” on her, which PW1 denied. The accused then put it to PW1 that, when she rushed to confront her, she did not ask her any question – PW1 “rushed on” her, squeezed her neck and forced her face into the bucket of hot water she had fetched to bath her child with. PW1 denied this and said she did not get near the accused. She said, when she asked the accused, “Leticia, Ataa Maame said you are the one who permitted her to bath here, is it true?” the accused, who had just mixed one palmful of akple powder with hot water on the fire, picked up the pot of akple powder and water and poured it on PW1. The accused denied PW1’s testimony. These were her words, “Please she is lying about everything. There is no truth in what she is saying. It was not akple water. Rather, there was water I fetched to bathe my son. It was late, around 6:30pm. After the sister bathed and left, it was not 5 minutes later, another woman in the house called Auntie Yaa went to tell Sister Deborah that I had allowed someone to bathe in the bathhouse. So, Sister Deborah rushed while she was wearing a knicker. She had not finished wearing it. She confronted me and asked me what right I had to allow someone to bathe in our bathhouse. Please my lord [bowing each time she says my lord], she immediately pulled the mesh in my hair and squeezed my neck and pulled my face into the bucket with the hot water. The bucket was next to me before she rushed on me. As she squeezed my neck into the water, there was a cup in the bucket. I used the cup to fetch some of the water and poured it on her while she was squeezing my neck.” PW1 denied the accused person’s account and insisted that the accused poured akple water on her at 7pm. The accused also insisted that she bathes her son at 6:30pm and that is when the incident happened. PW2, the investigator, testified in her witness statement that on 10th March 2021 at about 7:25pm, while she was on duty, the case was referred to her for investigation. The complainant’s statement was taken, and she told the police the accused poured boiling water from a cooking pot on the fire on both her breasts. PW2 visited the scene where the complainant demonstrated how the act occurred. She took a witness statement from Janet Lame and the accused person was arrested. PW2 took an investigation caution statement from the accused and charged her with the offence. PW2 tendered the investigation caution statement of the accused dated 12th March 2021 (Exhibit A), the charged caution statement of the accused dated 7th April 2021 (Exhibit A1), a picture of PW1 showing injuries to her breasts (Exhibit B), a medical form for PW1 issued on 10th March 2022 (Exhibit B1) and a medical form for “Belinda Akoto” issued on 18th February 2021. The accused person put it to PW2 that the water was fetched from the bucket she was going to use to bathe her child and not the cooking pot. PW2 responded that the complainant told her that the accused fetched the water from the pot. This contradicts PW2’s witness statement in which she averred that, the complainant told her when the case was referred to her that the accused poured boiling water on her. The accused person also denied telling the police the statement in her investigation caution statement that she told PW1 during their confrontation that if she did not go back, she would pour water on her. When asked by the court whether she investigated PW1’s statement that the water was fetched from the bucket and not the cooking pot, PW2 said that in her investigation, PW1 told her that it was water in a pot but when she cautioned the accused, the accused said she was by a coal pot from which she fetched water into a bucket that was standing beside her. PW2 then admitted that the water was hot water. The court finds from the evidence adduced that, it is more probable that the incident occurred around 6:30pm as stated by the accused person, rather than 7pm as stated by PW1 or 7:25-7:30pm as stated by PW2 in her testimony and in the facts attached to the charge sheet. The timing of the incident as testified to by PW1 and PW2 is virtually the same time that PW2 received the complaint at the police station. It is not possible for the incident to have occurred at the same time that it was reported. Therefore, the accused’s account of the timing of the incident is more probable. The court finds that PW1, whose testimony that the accused poured “banku/akple water” on her was contradicted by both the investigator and accused person, was not a credible witness under sections 80(b), (c) and (f) of the Evidence Act, 1975 (NRCD 323). The prosecution did not enter the statement taken from Madam Janet Lame into evidence. Neither did they call Madam Janet or Auntie Yaa as witnesses to clarify the matter. In Exhibit B1, Dr. Abigail Ofori-Yeboah at the Madina Polyclinic Kekele stated that PW1 was seen on 19th March 2021 at 12:23 pm with complaints of burn wounds on her breasts inflicted by her co-tenant. “According to her, on 10th March 2021 at about 7pm, she went to ask the said co-tenant why she allows outsiders to bath in their shared bathroom. According to patient, said tenant poured hot water on her before she could even ask her the question.” On examination, there were burn wounds on both breasts, but the right breast was most infected. There were ulcerations with discharging fluids but no actual bleeding with rough borders. The diagnosis was second degree burns and the patient was given medication and ordered to dress her wounds twice daily. PW2 explained that PW1 returned the form on 19th March 2022 because she said she had no money to have the form endorsed when she went to the hospital. She was initially attended to by nurses and saw a doctor who endorsed the form nine days later. In Exhibit B2, issued on 18th February 2021, the patient (accused person) was alleged to have been assaulted by someone the evening before she saw the doctor on 11th March 2021. She complained of bloody discharges from the nose, neckache, waist pains, headache, fever, chills and body pains. No external injury was seen. She was treated with Diclofenac and Amoksiklav. PW2 confirmed that the accused person is also called Belinda Akoto. The accused person stated that “Belinda Akoto” is the name on her hospital card. PW2 testified under cross-examination that when she cautioned the accused person after arresting her for the incident on 10th March 2021, the accused person told her PW1 had also assaulted her previously, so she had filed a case at the Adenta Housing Down Police Station. The accused also told PW2 that PW1 assaulted her on the date of the incident. She reported the matter to the Adenta Housing Down Police Station and was given a medical form to attend hospital. PW2 asked her to go to the hospital and when she returned, she came back with a medical form that was issued to her in February this year. These details were not recorded in Exhibit A, the accused person’s investigation caution statement or PW2’s witness statement. The court finds from the accused’s statement that Exhibit B1 was given to her by the police upon her reporting that PW1 had previously assaulted her in February 2021. PW2’s testimony that the accused had that form filled out after she said PW1 assaulted her on March 10, 2021, is also probable considering the doctor’s report and the date written on Exhibit B2. When she opened her defence, the accused person tendered the following exhibits in evidence: (a) An orange Logg shirt torn in several places – Exhibit 1 (b) A green sleeveless top with a cut out back with bloodstains on it – Exhibit 2 (c) Hair braid extensions – Exhibit 3 (d) A Police Medical Form for Elvis (Don) Nanfuri Yeamoah (the child) dated 18th February 2021 – Exhibits 4 and 4A The accused person testified that her name is Belinda Leticia Akoto Dankwah. She lives at Adenta village and sells bananas as a hawker. She and the man she had a child with, had a quarrel and he took away her child for 5 days. She reported the matter to DOVVSU at Adenta Housing Down. When the man was called to bring the child, he appeared at the station first, with the complainant, Madam Deborah Kugblenu (PW1) and the accused was called to go for her child. When she saw PW1 sitting at the station, she asked her what she was doing there and PW1 answered that she had come to escort the accused’s husband. The accused then asked her on what grounds she had come to escort the man. After that, the accused went to sit down and began chatting with another lady. Suddenly, PW1 got up with anger and bluster but the accused ignored her as she did not know what was happening over there. PW1 asked the accused’s child’s father for money to take a car home and left. According to the accused, when she got home with the child around 7:30pm, “It was then she [PW1] wore a knicker and rushed on me while my child was strapped on my back. With force, she held me and slapped me and the child fell down. This is the top I was wearing on the 8th of February, the day this incident occurred. I want to tender it in as evidence.” [with reference to Exhibit A)]. The prosecutor’s objection to exclude the evidence of the prior incident between the complainant (PW1) and the accused was overruled as the court found that the details of an alleged previous assault on the accused by the complainant was relevant within the context of the case, given the accused’s right to be heard on the charges laid against her under section 174(2) of Act 30. The accused continued to testify that after the child fell down, she went back to report the matter to DOVVSU and she was given a medical form for herself and the child. However, they could not go to the hospital because they had no money, and it was difficult to eat that day. She went to buy medicines to ease the child’s pain and put the medical form down. On the 10th of March 2022, a woman who lives opposite their home came to ask the accused permission to use their bathroom. When she finished bathing and was leaving, a woman called Auntie Yaa run to “Madam Deborah” (PW1) to tell her that the accused had allowed someone to come to bathe in the bathroom. Suddenly, PW1 rushed on the accused wearing only a brassiere and knicker shorts. The accused had bent down to fetch water from the pot on the fire into a bucket to use in bathing her child. PW1 held the accused’s hair from the back and the accused’s neck as she was giving her blows (punching her). The parties were separated by people in the area; however, the accused did not know that PW1 was still behind her. PW1 came back and started pressing the head of the accused person into the hot water she had fetched into the bucket, close to the fire. As PW1 was pressing her head into the bucket of hot water, the accused took a cup in the bucket, fetched some of the water and poured it on her. The accused person continued to testify that she went back to DOVVSU with her bloody clothes, where she was told that she had already been given a medical form so she should use the same medical form from the 18th of February 2021 to attend the hospital. The accused tendered in the shirt she was wearing with the bloodstains on it (Exhibit 2) and pieces of the hair braid extensions she had in her hair that were torn out by PW1 during the assault (Exhibit 3). The accused submitted the medical form to Madam Florence, the investigator (PW2), who told her she would not take it because there were no wounds on the accused person – it was PW1 who had injuries on her. The accused explained to the court that the bloodstains were from blood coming from her ears and nose during the assault on her by PW1 in March 2022. Under cross-examination, the accused testified that she lived in the house for 5 years and moved in before PW1. The prosecutor put it to the accused person that it was not true that the accused reported the alleged first assault by PW1 on her and her child to the police, otherwise, the accused would have been given a medical form for her child to be examined by a medical officer. The accused promptly brought out Exhibits 4 and 4A – the child’s medical form which was torn, and prayed to admit it in evidence, whereupon the prosecutor objected to it being admitted because it was part of the previous case. The objection was overruled as it was the prosecutor who asked the accused whether she had the child’s medical form, bringing it into evidence. The court found that, having proved that the accused had the medical form for her child, it would constitute a miscarriage of justice to reject it as evidence. The court also found that, the circumstances of the previous case between the accused and complainant, referred to by the accused and prosecutor, are relevant to this case as they involve the same parties, subject-matter and form a very relevant and cogent background to this case under section 51 of NRCD 323. The accused confirmed under cross-examination that the investigator refused to take Exhibits 3, 4 and 4A because there were no injuries on her or her son. She showed the investigator Exhibit 2 with the bloodstains but did not show her Exhibit 1. The accused said she would call the people who separated the parties on 18th February 2021 as witnesses, but they were unable to appear. The accused denied that she had “some ill- feeling” towards PW1 because she saw her with her husband at DOVVSU and testified that she had seen PW1 go out with her child’s father several times, so she was not bothered by it. She also denied the prosecutor’s assertion that she is the recalcitrant type that does whatever she likes in the house because she is not the caretaker in the absence of the landlady. The accused explained that when their bathhouse got damaged, her husband fixed it. Then the bathhouse of the lady who asked permission got damaged so one woman and her child came to use their bathroom once. She stuck by her testimony about PW1 attacking her after PW1 was informed the accused had let someone use their bathroom. The accused gave more details, stating that PW1 held her “mesh” – long rasta braids – with one hand and used the other hand to punch the accused’s face with blows. The accused testified, “From the way things were going, she was squeezing my neck into the bucket of hot water, so I fetched some water from the bucket and poured it on her”. The accused said PW1 went home and she realized PW1 had sustained a little injury on her breasts. However, PW1 started advancing towards her again while she was carrying the hot water in the bucket to her room. The accused then told her she was holding hot water so she shouldn’t come near her. Some people pushed the accused into her room and locked the door. When the prosecutor put it to the accused person that her evidence in court was different from her statements in her investigation caution statement, the accused testified that she said many things at the police station, but the police refused to write them down. Whenever she spoke, they would tell her to keep quiet because she had not sustained any injury. She showed them the bloodstains, however, the police said they would not take it because they did not see any injury on her. The court notes, that the investigation caution statement of the accused was taken by the investigator who also signed as an independent witness – the court therefore finds that the investigation and charged caution statements of the illiterate accused person hold no probative value as they were taken and made contrary to section 120 of NRCD 323. The grounds for justifiable force or harm in criminal law include “of a necessity for the prevention of or defence against a criminal offence” in section 31(f) of Act 29. Self-defence is a fundamental human right, guaranteed even to the extent of depriving another person of their life. In article 13(2)(a) of the 1992 Constitution of Ghana; “A person shall not be held to have deprived another person of his life in contravention of clause (1) of this article if that other person dies as the result of a lawful act of war, or if that other person dies as the result of the use of force to such an extent as is reasonably justifiable in the particular circumstances – for the defence of any person from violence or for the defence of property”. The Constitutional provision is reflected in section 37 of Act 29 as follows: “For the prevention of, or for personal defence or the defence of any other person against a criminal offence, or for the suppression or dispersion of a riotous or an unlawful assembly, a person may justify the use of force or harm which is reasonably necessary extending in case of extreme necessity even to killing.” In Palmer v. R [1971] AC 814, Lord Morris held that self-defence is a relatively simple defence based on law and common sense. It either applies or does not apply. The jury should consider whether in a moment of unexpected anguish, a person attacked, had only done what they honestly and instinctively thought was necessary, as the most potent evidence that only a reasonably defensive action had been taken. In The State v. Ampomah [1960] GLR 262, SC, the Court of Appeal held that a person is entitled to strike in self-defence, even unto death. The court finds that the evidence of the prosecution was contradictory on major points such as the timing of the events, the type of water that the complainant was harmed with and the narration of the facts. PW1 and PW2 are found not to be credible witnesses as PW1 gave contradictory evidence and PW2 deliberately excluded relevant evidence from her investigation which distorted the evidence placed before the court in favour of the complainant. It is the duty of the police to conduct a thorough investigation into cases brought to them to ensure justice is achieved and not to favour the party who first makes a report at a police station or who appears to be the most injured. The court finds that the accused person has satisfied the burden of persuasion and burden of producing evidence that she poured hot water on the complainant’s breast instinctively and “in a moment of unexpected anguish”, to defend herself when the complainant rained blows on her and then proceeded to force her head into the bucket of hot water she had beside her for her child, after the accused pounced on her for permitting another mother and child to use the bathroom in their dwelling place. Considering that the complainant had previously assaulted the accused while her child was on her back, causing the little child to fall to the ground, it is reasonable that the accused feared for her life and safety when she was being attacked by the complainant and employed the only means available to her – the hot water and cup in the bucket her head was being forcefully pushed into by the complainant – to defend herself. For these reasons, the accused person is acquitted and discharged of the charge of causing unlawful harm to Deborah Kugblenu by pouring boiling water on her breasts, contrary to section 69 of the Criminal and Other Offences Act, 1960 (Act 29). (SGD) DORA G. A. INKUMSAH ESHUN CIRCUIT JUDGE 12