The Republic Vrs Mensah Snr & Another [2022] GHACC 183 (5 October 2022)

IN THE CIRCUIT COURT HELD AT TARKWA IN THE WESTERN REGION FRIDAY THE 5TH DAY OF OCTOBER, 2022 BEFORE HER HONOUR, HATHIA AMA MANU, ESQ., CIRCUIT COURT JUDGE COURT CASE NO. B3/28/22 THE REPUBLIC VRS: MICHAEL MENSAH SNR. @ KOJO ATTA PANYIN 1. 2. MICHAEL MENSAH @ KOJO ATTA KAKRA JUDGMENT Accused Persons – Present. DSP Juliana Dadzie for Prosecution. The accused persons in this case were presented to the court on charges of causing unlawful harm and abetment of crime wit causing unlawful harm to the victim contrary to Section 20 and 69 of the criminal offences Act 1960, Act 29. The accused persons are siblings and stand charged for pouring a substance suspected to have similar properties as acid on the face of the victim. Prosecution asserts that the victim tried to save a young man whom the accused persons had subjected to beatings for being a thief, that the victim told them to leave him alone as they were also thieves. Prosecution presented four witnesses to the court in a bid to prove their claim against the accused persons. In criminal cases the accused is deemed innocent until evidence to the contrary is presented to the court. And prosecution is expected to adduce evidence to prove this claim on an alleged crime beyond all reasonable doubt. Section 11 (2) of NRCD 323 provides that, in all criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt. Section 13 (1) of the Evidence Act, NRCD 323 states: In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. The Supreme Court per Ollenu JSC in the case of Oteng Vrs. The State mentioned at Page 355 that, the citizen too is entitled to protection against the state and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt. The above mentioned provisions formulate the legal burden bestowed by law on prosecution in adducing evidence as well as trying to persuade the court. Prosecution’s first witness was the victim, he presented the court with a witness statement in which he had stated that the accused persons were beating someone they claimed was a thief. The victim/complainant claims he asked them to stop because when A1 stole his brother’s phone he was not beaten but the accused persons got angry and rained insults on him. The complainant asserts that while they were exchanging words A2 removed a bottled substance to A1 who in turn poured it on him. Complainant was rushed to the hospital as he felt burning and pains in his face. The accused persons after the witness statements were read in English and explained in Twi to them, put it to the complainant that they never poured anything on him. Afterwards they asked him if he knows their mother and father. None of the questions asked during cross-examination affected the value or the substance of complainant’s evidence. PW2 was a witness to the happening of that day. According to PW2 the complainant was on his way to work but stopped to intervene and save the young man that the accused persons were beating. This witness stated that while the victim and accused persons were arguing, A1 smashed something in the victim’s face that caused him to start screaming. PW2 stated in his witness statement that he was among those who took the victim to the hospital when the incident occurred. PW2 also stated that he saw A2 given the substance to A1. This witness was asked one question by A1: Q. Where is your witness that I gave the acid to my brother, where is he. A. He is here. A2 on the other hand as at this time had failed and refused to come to court and was therefore unavailable to question the witness for prosecution. An expert witness was called by prosecution to give evidence on the extent of injuries incurred by the accused persons alleged act. Although the expert witness’ evidence is more of a recommendation same is crucial in detecting the extent of injury (in any) and the causative substance of the said injury. The medical officer’s report however was not very detailed and indicated the diagnosis as well as management without specifying the exact substance allegedly powered on the accused. According to PW3’s report the victim had burns on his left facials, chest walls and abdomen. The preceptal cellulites of the victims left eye also suffered burns. A1 and A2 refused to cross-examine the expert witness on his report of the victim health at the time of reporting to the hospital. A2 was apprehended on bench warrant and was available when PW3 (expert witness) concluded his evidence. The court was presented with the investigative officer as prosecution’s last witness. This witness presented the court with witness statements stating the investigative process followed and the exhibits attached. The exhibits were admitted and marked as Exhibits A series, Exhibit B series (B, B1) and Exhibit C series. Exhibit A series are photographs of the victim which on admission at the hospital, Exhibit B series are the investigation caution statement of the accused person whereas Exhibit C series is the charged caution statement of the accused person. The investigative officer presented his findings and was questioned by the accused persons. The accused person asked why the victim’s face was not scared if indeed it was acid that was thrown on the victim’s face. The witness stated that as he was not a medical officer he was not properly equipped to respond to same. After the close of prosecution’s case, the accused persons were asked to open their defence. In their defence both accused claimed they caught someone who stole from them and the victim/complainant pulled a knife and said even they had caught thieves. According to the accused persons as the thief was rescued they proceeded to the police station to report the case but they were asked to get nose mask only to be arrested upon returning. During cross-examination of A2 some interesting responses were received on questions asked: Q. A. Q. A. Q. It is not true that you were taken the victim to the hospital. It is true. It is not true the victim came with a matchet. It is true. I put it to you that he was on his way to work as a security man not because of your case. A. Where it happened does not lead to his work. Q. Because he said don’t beat the thief you were not happy. A. We did not touch the thief. Q. A. I put it to you that complainant saved the person. He did not save the person. Q. When he came you both beat him mercilessly. A. Q. A. Q. A. It is not true. You A2 gave a liquid substance to your brother to pour on him. I did not. Due to that his face was hurting so he screamed for someone to help him. It is not true. From this one can detect that A2 even claimed that he was aiding the victim to be sent to the hospital although they are also alleging that he approached them with a machete in his hand. I have studied the evidence of both of both accused persons as well as their responses to questions asked and I find that is not in dispute that they indeed poured dangerous substance on the victim which caused him pain and harm to his person. Prosecution has presented the court with witnesses who witnessed the incidence and their evidence is not in dispute. As prosecution duly satisfied their legal burden and convinced the court of the atrocity perpetuated by the accused persons, I hereby convict A1 and A2 accordingly. Before I sentence you is there anything you would like to tell the court by way of mitigation. A1 – I pray for leniency. A2 – I pray for leniency. It was a mistake. BY COURT: The victim suffered damage to his left eye and incurred cost of GH₵5,000.00. I hereby sentence the accused as follows: A1: 9 years imprisonment with Hard Labour. A2: 10 years imprisonment with Hard Labour. The victim is to be compensated with GH₵10,000.00 which is to be paid in equal parts by accused persons. SGD. H/ H HATHIA AMA MANU, ESQ. CIRCUIT COURT JUDGE