Republic Vrs Kpesese and Another [2023] GHADC 530 (15 June 2023)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 15TH OF JUNE, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B1/23/22 THE REPUBLIC VRS GRACE KPESESE & ANOTHER JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PERSONS PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused persons were arraigned before this Court on 26th April, 2022 on charges of Conspiracy to commit crime to wit assault, Assault and Causing Harm contrary to Sections 23(1), 84 and 69 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS 1 | P a g e The facts as read by Prosecution stated that the complainant Korsi Dotsey age 57 years old is the brother of the second accused Robert Dotsey 47 years old. The first accused Grace Kpesese is a trader and the wife of the second accused. The Prosecution stated that on 29th November, 2021 at about 11:00am, the complainant visited his compound and while standing under a coconut tree, A1 and A2 without any provocation attacked him with sticks and assaulted him till he fell unconscious on the ground. The Prosecution stated that A1 in the cause of the attack hit the head of the complainant with a stick which resulted in an injury that caused the complainant to be rushed to the hospital for treatment. The prosecution stated that the complainant later reported the matter to the police and the accused persons were arrested. The prosecution stated that A1 admitted the offence in her investigation caution statement to the police but A2 denied his involvement. Both accused persons were charged with the offences and arraigned before the court. PLEA OF ACCUSED PERSONS A2 pleaded not guilty to the offences when the charges and particulars were read and interpreted to him. A plea of not guilty was entered for A1 after her explanations. Both accused persons were admitted to bail. Witness statements of witnesses of prosecution together with charge statements and investigation caution statements of the accused persons were filed by the prosecution 2 | P a g e together with a medical report of complainant and served on the accused persons for trial. THE CASE OF PROSECUTION The prosecution relied on the evidence of the complainant as his first witness and called as additional witnesses Afi Dotsey as PW2 and the police investigator D/Inspector Bright Quarshie as PW3. In his evidence to the Court, the complainant, first prosecution witness stated that, he is a farmer and a native of Vume but currently resides in Afife and goes to farm at Vume. PW1 stated that on the 29th of November, 2021 at about 8:00am he was on his compound on a normal visit and realized someone had put a trip of sand on his portion of the land. PW1 stated further that whiles standing under a coconut tree on the compound, A2 came from behind armed with a stick and hit him on the head which caused him to fall on the ground unconscious. PW1 stated that A2 later joined A1 with a stick and they both beat him on the ground after which they left him and some people around took him to the hospital. PW1 stated that he sustained cuts on his head as a result of the assault by the accused persons and denied causing damage to any property or assaulting A1. In her evidence in support, PW2 confirmed that PW1 and A2 are brothers and that A1 is the sister in law of PW1. 3 | P a g e PW2 stated that on the 29th November, 2021 at about 9:30am PW1 who resides in Afife came to Vume on a usual visit. PW2 stated that whiles on her mother’s compound, she heard someone shouting for help and when she rushed to the scene saw residents numbering about ten but cannot recollect their names. PW2 stated that she saw A1 and A2 with sticks beating PW1 on the ground causing him to bleed from the head. PW2 stated that as soon as A1 and A2 saw her, they absconded so she and her brother Kwabla Dotsey rushed PW1 to the hospital for treatment. PW3 gave evidence as the investigator and tendered in evidence the cautioned and charge statements of the accused persons as well as the endorsed medical form of the complainant and photographs showing the injured state of the complainant. The documents were adopted and marked Exhibits A, B, C, D, E F, F1 and F2. DEFENCE OF FIRST ACCUSED A1 stated that on the 25th of November, 2021 she was in the house when the complainant came looking for her husband, A2. A1 stated that when she informed the complainant that her husband was not home he told her to tell him if he returns that, if he had met him in the house, he would have killed him like a pig. A1 stated that he called his husband to inform him about what his brother had come to tell her and because she was afraid asked him not to come home. 4 | P a g e A1 stated that on the 26th of November, 2021 the complainant came to the house again in the absence of her husband and upon noticing that A2 was absent raised his voice and forcefully opened their kitchen door, entered and started destroying all food items there in addition to her kitchen table, bowls and plates. A1 stated that when she noticed the complainant was destroying their things she asked the complainant to stop but the complainant pushed her to the floor and started assaulting her so she also used firewood to hit his head. A1 stated that her husband was not at home when all these things happened but upon his return they went to report the incident at the Tadzewu Police Station where she was given a medical form to attend hospital which was later returned to the police duly endorsed. A1 also stated that the police visited the scene of the incident to confirm the damages caused by the complainant. A1 denied the charges against her. DEFENCE OF THE SECOND ACCUSED The second accused stated that, on the 25th of November, 2021 he was not at home but was informed by A1 that the complainant came to their house and threatened to kill him like a pig for causing a trip of sand to be deposited on his land. A2 stated that he was informed that the complainant returned to their house again on 26th November, 2021 when he was again not around but upon his return noticed their kitchen door was broken into by the complainant. 5 | P a g e A2 stated that the complainant destroyed food items in their kitchen and also damaged their kitchen table, bowls and plates. A2 stated that whiles the complainant was destroying the items his wife A1 requested him to stop but he assaulted her and A1 used firewood to hit his head. A2 stated that he took A1 to the police station at Tadzewu to report the incident and she was issued with a medical form to attend hospital. A2 stated further that the police visited the scene of the incident to confirm the damages. THE LAW Burden of Proof In a 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 will find the existence of the facts beyond reasonable doubt. In the case of Abdulai Fuseini v the Republic, reported in [2020] Crim LR, page 331, the Supreme Court reiterated the basic principle underpinning criminal prosecution in our courts as follows; “Proof beyond reasonable doubt is actually proof of the essential ingredients of the offence charged and not mathematical proof”. See also Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. 6 | P a g e Section 11(2) of the Evidence Act, 1975 (NRCD 323) provides as follows; “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt required the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt”. The accused persons in this case are charged with the offences of conspiracy to commit crime namely assault contrary to sections 23 and 84, Assault contrary to section 84 and Causing Harm contrary to section 69 and of the Criminal Offences Act, 1960 (Act 29). Conspiracy Section 23(1) of the Criminal Offences Act, 1960 (Act 29) in defining the offence of conspiracy states that; “where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence”. In the case of The Republic v Ernest Thompson & Others [2021] DLSC 10174 at page 10174 the court stated that; “under the definition of the offence of conspiracy, a conviction could be secured upon proof of the following ingredients; i. ii. Prior agreement for the commission of a substantive crime; Acting together in the commission of the crime in circumstances which show that there was a common purpose; iii. Previous concert even if there was evidence that there was previous meeting to carry out the criminal conduct” 7 | P a g e See also the cases of Francis Yirenkyi v The Republic (2016) 99 GMJ 1 SC and Agyapong v The Republic [2015] 84 GMJ, 142, CA. Same elements were stated in the case of Republic v Baffoe Bonnie & Others (Suit No. CR/904/2017) (Unreported) dated 12th May 2020, where the elements of conspiracy were outlined by the court as follows; “For prosecution to be deemed to have established a prima fascie case, the evidence led without more should prove that: a. there were at least two or more persons b. there was an agreement to act together c. the sole purpose for the agreement to act together was for a criminal enterprise”. The effect of the principles in the above authorities is that, persons accused of conspiracy must not only be established to have agreed to act but there must be an agreement to act together for a common purpose to commit crime. It is also significant to note that, under the new formulation of the law on conspiracy as defined by the Supreme Court, a person could no longer be guilty of conspiracy in the absence of the evidence of any prior agreement. See KINGSLEY AMANKWA (a.k.a SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 @ page 28 per Dotse JSC. Assault 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 him to anger, that person forcibly touches the other person. Section 86 of the Criminal Offences Act, 1960 (Act 29). Causing Harm 8 | P a g e Harm within the meaning of Section 1 of the Criminal Offences Act is “any bodily hurt, disease or disorder whether permanent or temporary”. A person who intentionally and unlawfully causes harm to any other person commits a second degree felony. Section 69 of the Criminal Offences Act, 1960 (Act 29). Under Section 76 of Act 29, harm is stated to be unlawful which is intentionally or negligently caused without any of the justifications mentioned in chapter one of the Act. ANALYSIS AND EVALUATION OF EVIDENCE For the purposes of Count one in respect of the offence of conspiracy, the prosecution had a duty to adduce evidence to establish the fact that there was a prior agreement between the accused persons to act in common purpose towards the commission of the substantive offence or any other offence. It is the case of PW1 that on the 29th of November,2021 whiles on a visit to his land, he was without provocation hit from behind with a stick by A2 and he fell on the ground unconscious. The accused persons having denied the allegations, the veracity of the complainant’s claim could only be ascertained through direct evidence or the circumstances and manner in which the alleged act was executed. The witness called to speak to the issues and to corroborate his claims on what actually happened was PW2. The evidence of PW2 admits that she was not privy to the entire incident. 9 | P a g e She stated in paragraph 4 and 5 of her witness statement that she was on her mother’s compound and later rushed to the scene when she heard someone shouting for help and saw other residents numbering about ten at the scene when she got there. Her narration does not give any basis to affirm conspiracy and the entire evidence of prosecution did not provide the grounds to infer the existence of a prior agreement by the accused persons to commit the offence. In respect of count two and three on assault and causing harm, the prosecution attached a medical report evidencing that PW1 reported at the hospital with multiple scalp and facial laceration and musculoskeletal pain. Copies of photographs confirming the injury sustained by PW1 were also tendered and adopted in evidence as Exhibits F, F1 and F2. In their respective witness statements, A1 and A2 mentioned the date of the occurrence of the incident as 26th November, 2021 contrary to the 29th November, 2021 date as stated by the complainant. The court was convinced that the date mentioned in the witness statements of accused persons was a product of an error because in their caution statements earlier given to the police they referenced 29th November, 2021 as the date of occurrence. The dates on the medical report and the caution statement also gave credence to the 29th November, 2021 as the actual date. For the offences of assault and causing harm the elements to be established are; a. Whether or not the complainant was forcibly touched by the accused persons? b. Whether or not the complainant suffered any bodily hurt attributable to the assault by the accused persons? c. Whether the actions of the accused persons if proved could be justified in law. 10 | P a g e The case of the complainant which was corroborated by PW2 is that, he was attacked by A1 and A2 on the said day with a stick as a result of which he sustained injury and fell unconscious. A1 admitted in her evidence that she used firewood to hit the complainant but stated that it was in self defence after the complainant had earlier assaulted her when she sought to prevent him from causing damage to their property and food items. Paragraphs 13, 14 and 15 of her witness statement filed on 9th March, 2023 are reproduced below; “13. When the complainant noticed that A2 was not home he started talking on top of his voice and moved to the kitchen and used his leg to hit the kitchen door and opened it and began to destroy all the food items in the kitchen. 14. The complainant destroyed all the food items in the kitchen and even damaged my kitchen table, bowls and plates. 15. When I noticed the complainant was destroying things I asked the complainant to stop and upon saying that the complainant then assaulted me by putting me on the floor and began to beat me and for self defence I also used a firewood to hit the complainant’s head”. Self defence as a justification for the use of force is provided under Section 37 of the Criminal Offences Act, 1960 (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 11 | P a g e justify the use of force or harm which is reasonably necessary extending in case of extreme necessity even to killing”. Both A1 and A2 in their evidence alluded to the fact that they also made a complaint to the police at Tadzewu following the incident and A1 was issued with a medical form. They also claimed that the scene of the incident was visited by the police to ascertain the damages. These were matters capable of prove in confirmation of their side of the narration. PW3 under cross examination by A1 on 13th February, 2023 admitted to her claims but added that A1 took the law into her hands by her reaction. The responses of PW3 under cross examination are reproduced as follows; Q. When you visited the scene and you saw the damage caused to my kitchen did your investigation reveal that I am the one who offended the complainant? A. It is true PW1 caused damage to your property. That is also a subject of a different charge before the court but you took the law into your own hands and caused harm to him. Q. Do you remember I was also injured and you issued me with a medical form which I returned to you duly endorsed? A. It is true. You returned the endorsed medical form. That is the subject of another case. PW2 as earlier stated admitted that she was not initially at the scene so was not privy to the prior incident that might have given rise to what she later alleged to have witnessed. 12 | P a g e The confirmation by prosecution’s own witness, PW3 of the damages caused to the property of the accused and the admission that she was also a victim of assault on the said day corroborated her story and rendered the provisions of section 37 of the Criminal Offences Act available to the accused in justification of her action. The defence of A2 was that he was not present on the day of the alleged incident and that it was when he returned later that A1 informed him about the development and they went to make a complaint with police. PW1 however, stated that A2 is the one who hit him from behind and he fell unconscious to the ground. PW1 did not say that he saw A2 anywhere around at the site earlier and his evidence does not also establish any previous issues between himself and A2 from which it could be inferred would have been the reason to cause A2 to act in the alleged manner apart from stating that they are not in talking terms. Apart from the sand that the complainant alleges was poured on his land, the facts and evidence before the court does not suggest the existence of any prior issues that may have caused the accused persons without any provocation to just strike complainant with a stick and further assault him in the manner alleged. PW2 stated in evidence that upon arriving at the scene she saw A1 and A2 holding sticks and assaulting PW1 on the ground. It is rather curious that prosecution could not tell the court what role the people numbering about ten who PW2 alleged were at the scene before she got there were doing when she arrived. 13 | P a g e The question is, were the people just looking on while PW1 was being assaulted with the sticks and why was none of them including Kwabla Dotsey who PW2 stated helped her to take PW1 to the hospital not called to give evidence. Having admitted in her evidence that she was also not in talking terms with the accused persons, a further evidence from any of the neutral parties who are alleged to have witnessed the incident in corroboration of the assertions of PW2 would have enhanced its credence. The defence put up by A2 that he was not available on the day of the incident is in the nature of alibi but he failed to give the necessary notice. In the case of Afwireng v. the Republic [1972] 1 GLR 270 it was held that, “where a magistrate does not call upon an accused person to give a notice of alibi when such defence is raised, and the prosecution also does not call the attention of the court to the requirement and does not apply for the particulars of the defence to be given, such failure does not exclude the evidence of alibi”. Under Section 131 (3) of Act 30, where the accused puts forward a defence of alibi without having given notice the court shall call on the accused to give notice to the prosecution of the particulars forthwith or within the time allowed by the court and after the notice has been given shall if the prosecution so desires adjourn the case. Given the opportunity, A2 failed to call any witness but as a general rule, an accused has no burden to prove his innocence or call any witness. Where the prosecution is unable to call witnesses who could put an issue beyond reasonable doubt, it is not the duty of the accused to remedy that defect. See the case of Bruce-Konuah v. the Republic [1967] 611. CONCLUSION 14 | P a g e In sum, the prosecution failed to prove the elements of conspiracy against the accused persons on count one. With the claims of the first accused on damages caused to their property and assault on her being confirmed by prosecution’s witness own witness, her claim stood corroborated and by the effect of that rendered the provisions under section 37 of the Criminal Offences Act available to her in her claim of self defence. On its entirety, the narration by witnesses of prosecution contained gabs and lacked the necessary connections based on which reasonable inferences could be drawn. The whole prosecution failed to prove beyond reasonable doubt that the version of the incident as narrated by the complainant is what actually transpired and their failure to call any of the additional witnesses besides PW2 weakened their case. In the circumstance, the accused persons are acquitted and discharged on all counts. NELSON DELASI AWUKU MAGISTRATE 15 | P a g e