Republic Vrs Donkor [2023] GHADC 303 (16 June 2023)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2023 BEFORE HIS HONOUR ISAAC APEATU Court Case No 204/2023 16th June, 2023 THE REPUBLIC Versus DORIS DONKOR JUDGMENT The accused person herein was arraigned before this Court, charged with two counts of Assault contrary to section 84 of the Criminal Code, 1960 (Act 29) and Causing Unlawful Damage contrary to section 172 the Criminal Code, 1960 (Act 29. She pleaded not guilty to the charges. The facts of the case per the charge sheet and as presented by the prosecution are that on 02/08/22, the complainant came to the station and made a case of assault and causing damage against the accused. Police medical form was issued to the complainant to attend hospital for treatment and returned same well endorsed by the medical officer. Police visited the scene of crime and took photographs of the damaged items for evidential purposes. Police made multiples efforts to get the accused arrested but to no avail. On 27/09/22 accused was arrested and investigation established that the complainant bought quantities of mango from the accused on credit. The complainant gradually paid for the items leaving a balance of GH¢60.00. On 02/08/22, the accused person visited the complainant at home for the rest of the money and the complainant gave her GH¢10.00. The accused became offended and held the shirts of the complainant after collecting the money. Complainant struggled to free herself from the accused person and in the process, the accused person pushed the complainant. The complainant fell on her two plastic chairs together with two mini radio and three bottles of locally manufactured medicines leading to the damages caused by the accused. Investigation cautioned statement was obtained from the accused. After investigation, the accused person was charged with the offences as stated on the charge sheet and arraigned before this court. The prosecution called two witnesses in a bid to prove the charges as stated above. Those called were Elizabeth Mensah the complainant as PW1 and the investigator as PW2 respectively. I have considered in detail the evidences of all the witnesses for the prosecution and I do not deem it fit to relay extensively their evidence. I shall however, make references to them in the course of my analysis of the evidence. When the prosecution closed its case, the accused was invited to open her defence. Accused gave evidence in her defence and called one other witness. Her evidence was largely a denial of the allegation of assault and unlawful damage levelled against her. She stated to the effect that even though she went to PW1 to demand her money, she never assaulted her as she claims. The law has long been settled in our jurisdiction that an accused person is presumed innocent until proven guilty or has pleaded guilty. This is a constitutional injunction provided for by Article 19(2) (c) of the 1992 Constitution. The burden of proof in a criminal case therefore is on the prosecution to establish the guilt of the accused. It has been held that the failure to discharge that burden should lead to the acquittal of the accused. And this proof required of the prosecution is said to be proof beyond reasonable doubt. See Oteng v The State [1966] GLR 352. In the converse, the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. See Commissioner of Police v Antwi [1961] GLR 408. It has also been held that it is not enough for the court to hold that it does not believe the defence of the accused and then proceed to convict him. Short of disbelieving the defence, the court has a duty to consider whether the defence is reasonably true or reasonably probable. The issues raised for determination in this case are: 1. Whether or not accused forcibly touched the bodies of PW1 i.e. by slapping and shoving aggressively respectively. 2. Whether or not the touch was made with the consent of PW1. 3. Whether or not the accused intended to cause harm, pain or fear by her touch of PW1. 4. Whether or not the accused caused damage to two mini radio, three plastic chairs and three bottles of local herbal medicine. 5. Whether or not the prosecution was able to prove the charges beyond reasonable doubt. The prosecution laid two charges against the accused. The first was laid under section 84 of Act 29. I shall determine the first charge before going on to the second charge. The offence of Assault is provided for under Section 86(1) of the Criminal Code, 1960 (Act 29) which reads: (1) A person makes an assault and battery on another person, if without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person. (2) (c) any the slightest actual touch suffices for an assault and a battery, if the intention is an intention as is required by this section; (d) a person is touched, within the meaning of this section, if the body is touched, or if the clothes or any other thing in contact with the body or with the clothes on the body are or is touched, although the body is not actually touched; and (e) for the purpose of this section, with respect to intention to cause harm, pain, fear or annoyance, it is immaterial whether the intention is to cause the harm, pain, fear, or annoyance by the force or manner of the touch itself or to forcibly expose the person, or cause that person to be exposed, to harm, pain, fear, or annoyance from any other cause. I would now proceed to resolve the first two issues together viz, whether or not accused forcibly touched the person of PW1 and pushed her and whether or not the touch, if any, was made with the consent of PW1. According to the prosecution, PW1 owed the accused some money. Accused went to demand repayment of the money. PW1 could onlu give her GH¢10 out of the GH¢60 owed. This infuriated the accused who demanded that PW1 paid the full sum of money owed. PW1 made an attempt to leave the scene. Accused then held the shirt of PW1. As PW1 struggled to free herself from her grips, she fell onto her plastic chairs and caused damage to them. This is the whole case of the prosecution for which they have charged the accused herein. It is instructive to note that the accused on the other hand denied the charge in its entirety. As I stated above, she claimed that went to demand the repayment of her money. That when PW1 refused to give her the full sum, she never assaulted her. I have read the evidence with some measure of interest. I have also given consideration to the testimonies of the witnesses called by the prosecution and the accused’s testimony. I have come to the conclusion based on the evidence that the accused herein assaulted PW1. It is worth noting that the prosecution had the onus of proof at all material times. They had the onus to prove the guilt of the accused person and their burden became even more tenuous after the accused denied the substance of their charge in her testimony in court. The facts of the case as narrated by the prosecution appears to be quite different in substance from the evidence they produced through PW1 in proof of the facts. They are quite at par. While the facts claim that accused held the shirt of PW1 and pushed her onto the chairs causing damage to them, PW1 on the other hand sought to say that accused pounced on her and beat her severely. These were conflicting pieces of narrative coming from the prosecution. Ordinarily, the accused would have been given the benefit of the doubt as this case was one of the oaths of the prosecution witnesses against the oaths of the accused. However, accused appears to have shot herself in the foot earlier at the onset of the case. In her caution statement which was given to the police on the 27th day of September 2022 the accused had stated that she visited the complainant for her money. Complainant told her that she did not have any money to give to her. That PW1 gave her GH¢10. When she asked when she should come for the rest of the money, PW1 did not mind her and wanted to walk away from her. She then got hold of her dress. In the process she spat some fluid in her eyes and she then pushed her into the chair. The principle of law is that a previous statement made by a witness to the police which was in distinct conflict with her evidence on oath was always admissible to discredit or contradict her and it would be presumed that the evidence on oath was false unless she gave a satisfactory explanation of the prior inconsistent statement. Thus, a witness could not avoid the effect of a prior inconsistent statement by the simple expedient of denial. Where the witness did not distinctly admit that she had made such a statement, proof could be given that she had in fact made it. This was the law espoused in the case of Yaro & Another v The Republic [1979] GLR 10. This rule had earlier been applied in the case of Poku v. The State [1966] G. L. R. 262, S. C. See also the dictum of Lord Morris of Borth-y-Gest in Bratty v. Attorney-General for Northern Ireland [1961] 3 All E. R. 523 at p. 537, H. L. Accused did not raise any issue regarding her authorship of the statement. It was her statement given freely without coercion. Having given the statement without coercion, could that statement be considered to determine the case of the accused? The confession statement was admitted in evidence as part of prosecution’s evidence. It was marked in evidence as Exhibit C. In the case of Francis Yirenkyi v The Republic, CRA J3/7/2015 delivered on 17th February 2016 (unreported), SC, it was held as trite criminal law that a confession made by an accused person which was admitted in evidence was evidence against her. As I stated above, there has not been any suggestion that the accused was compelled to make the statement. I believe that she made it freely without any duress. In the case of Amukyi v Republic [1982-83] GLR 1010 at 1015, the Court held that a police statement made by an accused person which was a confession statement admitted in evidence, could be taken as part of the prosecution’s case. It being a confession statement admitting that she held the shirt of PW1 and pushed her onto the chair, and same having been admitted in evidence without objection, it is within the court’s remit to rely on it in determining this matter. That statement of the accused person is a confession statement which on the authority of State v Otchere and Others (1963) 2 GLR 465 SC is sufficient to be relied on in determining her guilt. Now, did the touch by accused carry the criminal intent required by Section 86 of Act 29 to qualify for an assault? As stated above, Section 86 which defines the requisite level of intent demands that the touch must have been accompanied by an intention to cause harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger. Whether or not a touch is intended to cause these effects is a question of fact to be determined from the circumstances of each case. So in this case, was the touch one accompanied by the requisite intent? It has been held in a number of cases that whether an act is intended to cause a desired effect or not touches on the state of mind of the person who does the act. Whether an accused person has a particular state of mind is essentially a question of fact which has to be decided based on the circumstances of each case. But in some cases, a man's previous intentions are judged by his subsequent conduct. So it is said that the law takes cognisance of the intention with which an act was done by reference to the subsequent act of the person concerned. But note must also be taken of the principle of law that the nature or manner of the touch is immaterial to a finding of the intention behind it. Whether it was a soft or hard touch is immaterial. A touch is a touch however gentle or fierce it is. Accused admitted that she held PW1’s shirt. She thereby made contact with the shirt of PW1. One would argue that since accused did not touch the person of PW1, she commits no offence of assault. After all, it was just the shirt she held not PW1 herself. That thinking is flawed and may not save the accused from being charged with assault. From the wording of section 86 (2)(d) of Act 29, a person is touched, within the meaning of the section, if the body is touched, or if the clothes or any other thing in contact with the body or with the clothes on the body are or is touched, although the body is not actually touched. So that even if the body is not actually touched, it suffices if any other thing that is in contact with the body is touched. In this case, accused stated in her statement that she got hold of PW1’s shirt as she attempted to walk away from her and pushed her. Once the accused held the shirt of PW1, she had made contact with the person of PW1. Clearly, accused cannot be heard to deny that she intended to hold the person of PW1. It did not end there. She pushed PW1 too. I think that she intended to cause harm, pain, fear and annoyance to PW1 by her actions. Now I shall venture to resolve the other charge levelled against the accused. The second charge was levelled against the accused for Causing Unlawful Damage contrary to section 172(1) of the Criminal Code, 1960 (Act 29). Section 172(1) (a) of Act 29 under which the charge was laid against the accused reads: “Whoever intentionally and unlawfully causes damage to any property by any means whatsoever...shall be guilty of a misdemeanour.” There have been a plethora of judicial pronouncement on the ambit and scope of the offence of Causing Unlawful damage. In the case of Homenya v The Republic [1992] GLR 305 it was held in holding 1 of the report that: “An accused could only be liable on a charge of unlawful damage to property under section 172(1) of the Criminal Code, 1960 (Act 29) where the prosecution was able to establish not only that the accused caused the damage intentionally but also that the damage was caused unlawfully”. The ingredients to be proved therefore are that of intention and unlawful damage. Thus both elements of intention to cause the damage and unlawfulness of the damage must be present and proved together before the offence can be made out. From the above statement, the prosecution tasked with proving the charge of unlawful damage as in this case, must establish that: i. ii. The accused pushed PW1 into the chair and in the process broke the three plastic chairs, mini radios and the bottles. The damage caused to the three plastic chairs, mini radios and the bottles was intentional and unlawful iii. The accused had no justification in law to have broken the three plastic chairs, mini radios and the bottles. To put it in other words, the prosecution had to prove that the accused broke the three plastic chairs, mini radios and the bottles in bad faith and without any belief that she was entitled to do so. The court in the case of Okoe v Republic [1979] GLR 137, summed up the whole law when it stated that: “…the appellant’s act could only be punishable if it was done intentionally and unlawfully and he did not believe in good faith that he was entitled to demolish the building. To succeed in a prosecution it was first necessary to establish that the building was lawfully on the land, for if it was not lawfully there (as in the instant case), removing it would be lawful.” See also Asante v The Republic [1972] 2 G. L. R. 177. The prosecution’s case in this case as summed up above is that accused caused damage to three plastic chairs, two mini radios and medicine bottles as she pushed PW1. I have already held above that the accused pushed PW1. My task now is to find out whether the accused intended that her push should cause the damage to the three plastic chairs, mini radios and the bottles. The accused denied causing the damage to the three plastic chairs, mini radios and the bottles since according to her, she did not even touch PW1. I have found that denial untenable above. The Prosecution had shown by Exhibit B and B1 the three plastic chairs, mini radios and the bottles which they allege were damaged by the accused. It is admitted that the accused pushed PW1 into the chair. The prosecution has shown the damage as stated above. However, did the accused intend to cause the damage to the items? It is important to note that the accused did not take hold of the chairs and the other items and smashed them. The damage to the items were not the result of the direct act of the accused. She was in a struggle with PW1 as she demanded her money from her. She then pushed PW1 into the chair. I do not think that she intended to break the chairs and the other items mentioned above. Even though there is a presumption in law that a man is presumed to intend the probable consequences of his actions (see section 11 of Act 29), it is only a rebuttable presumption. I think that that presumption has been dislodged by the circumstances of this case. So that even though it is admitted that the accused held PW1’s shirt and pushed her, the damage to the items cannot be deemed to have been intended by her. To conclude otherwise would be to hold every event following the push, however remote, as having been intended by the accused. I do not think that is the intendment of the law. I hold then that the accused did not intend to cause damage to the items. On the totality of the evidence, the prosecution successfully proved the charge of assault against the accused person beyond reasonable doubt. The accused person is therefore convicted on the charge of Assault contrary to section 84 of Act 29. She is guilty of the offence of assault as charged. I have decided to take into account the antecedents of events in passing a sentence on the accused. I have already held that the accused lacked justification to have assaulted PW1. However, I find that the actions of PW1 contributed to a large extent to the melee that ensued between them. PW1 had bought accused’s items. From the facts generally, she had failed to pay the accused over a long period of time. When the accused finally decided to go to demand the money from her, PW1 did not pay her the full sum. She appeared nonchalant regarding payment of her debt. This attitude appears to have fuelled the accused’s anger leading to the touch on her person. I reason that if PW1 had paid off the accused in time or had found some palatable and soothing words to say to her, nothing of what happened would have happened. Be that as it may, accused was not justified to have held onto the shirt of PW1 resulting in the scuffle and eventual push. That was uncalled for. I take account of the fact that accused is a woman and a first time offender who, but for this incident, had had no brush with the law. The scuffle between the two did not lead to any injuries. Nothing of that nature is certified by the medical report. Taking into account the circumstances of the case, I do not think that the offence warrants the passage of a sentence on the accused. I think that a caution will be sufficient. I hereby caution the accused and order her to sign a bond to be of good behaviour for the next six months or in default, serve three months’ imprisonment. Even though the accused cannot be deemed to have intended to cause the damage to the items, I think that it is fair that she restitutes the items. The items alleged to have been damaged are given above. However, the veracity of the damage to the said two mini radio is doubted as it is not shown in the exhibit. It is only the three plastic chairs that are shown therein. I shall therefore order the accused to provide three similar, (but new) white plastic chairs as shown in Exhibit B within 30 days from today failing which she shall pay the sum of GH¢120 being the value of the three chairs. (SGD) HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE