Republic Vrs Razak [2022] GHADC 249 (8 December 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT N. A. M. A. NSAWAM ON 8TH DECEMBER, 2022 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH CASE NO: B3/36/20 THE REPUBLIC VRS ABUDU RAZAK ACCUSED PERSON: PRESENT. PROSECUTION: CHIEF INSPECTOR AHLIJAH FOR PROSECUTION PRESENT. JUDGEMENT The Accused Person is charged with Causing Unlawful Harm under Section 69 (1) of the Criminal and Other Offences Act, 1960 (Act 29). The Accused Person pleaded not guilty to the charge against her for which reason the prosecution assumed the burden of proof and must prove the charge against the Accused Person beyond reasonable doubt. PROSECUTION’S CASE It is the case of the Prosecution that the Accused together with his accomplices who are now at large, attacked and kidnapped the Complainant in this case under an alleged belief that the Complainant knew the hideout of a missing 13 years old girl. The prosecution detailed further that, the Accused and his accomplices captured the Complainant unto a motorbike with his mouth and hand tied and rode in to a forest at Page 1 of 8 Signboard Near Ntoaso where they inflicted knife wounds on both legs of the Complainant. The Prosecution maintained that, the Accused Person and his accomplices physically assaulted the Complainant leading to blood spots in his eyes and left him to his fate in the forest. The Prosecution averred that, the Complainant managed to get to the roadside and later proceeded to the Police station to make a report. The Prosecution asserted that, a Police Medical Report Form was issued to the Complainant to attend hospital for treatment. The Prosecution concluded that the Accused later was arrested, charged and arraigned before this honourable Court whiles efforts are being made to arrest the remaining suspects. THE CASE OF THE DEFENCE The Accused opened his Defence by opting to give an unsworn statement from the dock and did not call any witness. The Accused Person told the Court from the dock that he knows nothing about the charges levelled against him. He added that he had undergone surgery and so he cannot do any hard work. Thereafter, the defence closed its case. The legal issue to be determined by this Court is; whether or not the Accused Person caused unlawful harm to the complainant. The general principle of law in every criminal case as stated in the case of Asare v. The Republic [1978] GLR 193-199, per Anin J. A. reading the Court of Appeal decision is that: Page 2 of 8 “There was no burden on the Accused to establish his innocence, rather it was the prosecution that was required to prove the guilt of the Accused beyond all reasonable doubt.” The learned judge continued to state that; “The Accused is presumed innocent until his guilt is established beyond reasonable doubt; that the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt…. The judge or magistrate must on a consideration of the whole evidence, be satisfied of the guilt of the Accused before he may convict” Section 69 (1) of Act 29 provides as follows: A Person who intentionally and unlawfully causes harm to any Person commits a second degree felony. The Prosecution in view of the above, has the burden to prove the following elements of causing harm: 1. That harm was caused to a Person. 2. That the harm was caused by the Accused Person. 3. That the harm was intentionally and unlawfully caused. The Accused Person in the present case has vehemently denied committing the offense that he has been charged with. As noted supra he denied same in his unsworn statement from the dock, he challenged prosecution witnesses by his cross-examination and insisted that he did not commit the offense and even in his cautioned statement which Page 3 of 8 was tendered as Exhibit “B”, Accused Person stated therein that, the allegations levelled against him are false. The case of the Prosecution on the other hand is that the Accused Person together with some other Persons caused unlawful harm to the complainant. It is clear from the evidence on record that, both parties did not change their positions at the trial, they remained vehemently opposed to each other in the presentation of their cases to the Court. However, it is to be noted that it is the prosecution who bears the burden to prove the guilt of the Accused beyond reasonable doubt. The Accused on the other hand has no burden to prove his innocence. The general principle of law in every criminal case as stated in the case of Asare v. The Republic [1978] GLR 193-199, per Anin J. A. is that: “There was no burden on the Accused to establish his innocence, rather it was the prosecution that was required to prove the guilt of the Accused beyond all reasonable doubt.” Throughout and even before the trial as evidenced by Accused Person’s Caution Statement and Charged Statement, the Accused Person has maintained one position and it is that; he knows nothing about the offence that he has been charged with. It is this same case that, Accused Person put to Prosecution witnesses by way of cross- examination. Accused Person did not call any witness to corroborate his version but this is not to say that corroboration is required. I have to however say that the consistency which marks Accused Person’s case has given some weight to his version of the story. Page 4 of 8 An examination of the evidence adduced by prosecution witnesses and Accused Person therefore presents a case of oath against oath In the case of Lutterodt V Commissioner of Police [1963] 2 GLR 429, SC, it was held that; “Where a decision of a trial Court turns on the oath of a prosecution witness against that of a defence witness, it is incumbent on the trial Court to examine the evidence of the said witnesses carefully along with other evidence adduced at the trial before preferring one to the other. If the Court prefers the evidence of the prosecution, then it must give reasons for the preference; but if it is unable to give any reason for the preference, then that means that there is a reasonable doubt as to which of the versions of the story is true, in which case, the benefit of the doubt must be given to the defence.” Also in the case of Amartey V The State[1964] GLR 256 at 259, SC the Court held that; “Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the Judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the Court is under a duty to consider firstly, the version of the prosecution, applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.” In the present case, even if the Court disbelieves the Accused Person, it is also the case that his clarity and strong Consistency gives the Court cause to consider that his story is reasonably probable. A reasonable doubt has thereby been created in the mind of the Court. Page 5 of 8 Justice S. A. Brobbey, the learned writer and retired Supreme Court judge has stated as follows in the last paragraph of paragraph 335 of his book Practice and Procedure in the Trial Court and Tribunals in Ghana, Second Edition. “At the end of the trial, if the cases of the Prosecution and defence are equally balanced, it merits that the prosecution has failed….” The Court in the present case finds that the cases of the prosecution and defence are equally balanced. It is clear on the face of the record that, the investigator that is PW2 did not give additional information by his evidence. PW2 practically just repeated the evidence that had been led by PW1. In fact, both Prosecution witnesses failed to link the Accused Person to the offence. The substance of PW2’s evidence practically repeated in essence of what PW1 had already told the Court. Pw2’s evidence would have been more relevant if being an investigator he had by his investigation established a strong link between the Accused Person and the offence that he was charged with. Even where the investigator had failed to do so, the Prosecution had another opportunity to probably establish this link by calling PW1’s mother and sister. According to Complainant (PW1) as per Exhibit ‘A’ ( Complainant’s Statement to the Police) his sister and mother named therein directly witnessed Accused Person harming him. The relevant portion of exhibit ‘A’ is reproduced as follows: “Because of the way they were beating me, my sister by name Eunice Amadi also a witness tried to make a phone call but one slapped and took the phone away from her. My mother by name Rose Damoa also a witness rushed to recue me but she was also beaten and her phone was taken away, Page 6 of 8 a passerby who was also on phone was attacked and her phone was taken by the guys.” Emphasis mine. The testimony of any of these direct witnesses of the incident would have been material in assisting the Court to resolve the doubt which has been occasioned by the equal balance in the cases of the parties at present. Gligah & Anor v. The Republic [2010] SCGLR 870, per holding 5, held that: “The Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case”. In the case of Regina v. Ansere 3 WALR 388, it was held that: “The principle of law is that if there is one witness whose evidence would settle the case one way or another and the prosecution fails to call that witness, their case must fail since in that event they have not proved their case beyond all reasonable doubt”. It is clear from the record that PW1’s mother, sister and the passerby would have been material witnesses in the present case. It would probably have been challenging to call the passerby to testify. On the other hand, however, there is no reason or difficulty obvious to the Court which could have prevented Prosecution if they so wished to call PW1’s mother and sister to testify in the case. It is the opinion of the Court that, Prosecution had ample opportunity to call Complainant’s mother and sister who were direct witnesses to the incident and can accordingly be considered material witnesses. Prosecution’s failure to call such material witnesses would inevitably be to the detriment of their case. Page 7 of 8 In Dexter Johnson v. The Republic [2011] SCGLR 601, Dotse JSC had this to say about the standard of proof in criminal matters and I quote: “Our system of criminal justice is predicated on the principle of the prosecution, proving the facts in issue against an Accused Person beyond all reasonable doubt. This has been held in several cases to mean that, whenever any doubts exist in the mind of the Court which has the potential to result in a substantial miscarriage of justice, those doubts must be resolved in favour of the Accused Person”. The learned judge continued and I quote: “I believe this principle must have informed William Blackstone’s often quoted statement that ‘Better than ten guilty Persons escape than one innocent suffer’ which was quoted and relied upon by me in the unanimous decision of this Court in the case of Republic vrs Acquaye alias Abor Yamoah II, ex-parte Essel and Others [2009] SCGLR 749 @ 750”. I am not satisfied of the guilt of the Accused as I find the prosecution has not been able to prove same beyond reasonable doubt. In view of same, the Accused Person herein, ABUDU RAZAK is consequently acquitted and discharged. ………..…………………………………… H/W SARAH NYARKOA NKANSAH MAGISTRATE 08/12/2022. Page 8 of 8