Republic Vrs Asante and Others [2023] GHACC 189 (8 June 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 08THJUNE 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B1/23/2022 THE REPUBLIC VS 1. KOFI ASANTE @ KOFI MOLLEY 2. SAMUEL AMPAABENG KYEREMEH @ BOOSU 3. KWABENA ATEETEE (at large) 4. KECHE @ POZO (at large) 5. ATONGO (at large) 1ST ACCUSED PERSON PRESENT 2ND ACCUSED PERSON PRESENT DETECTIVE CHIEF INSPECTOR SOLOMON SAKYIAMAH FOR PROSECUTION, PRESENT Section 69 of the Criminal Offences Act, 1960(Act 29) states: JUDGMENT Whoever intentionally and unlawfully causes harm to any person shall be guilty of second degree felony. The police charged the second Accused person(A2) herein under the above law and arraigned him before this court together with the first Accused person(A1). For the first Accused, the charge he is facing is that he and three others namely third, fourth and fifth Accused persons abetted A2 to cause harm to the victim herein. Section 20 of Act 29 states: (1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime. (2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime. There must be the basis for charging accused persons. The basis must be expressed in words to let the court and an accused person know what culminated in this criminal case before the court. The police expressed themselves in the following words as in the facts upon which they charged Accused persons: “Victim Innusah[sic] Adamu is a Private security guard at a small scale mining site at Denkyira Akwaboso near Diaso, whilst A1, Kofi Asante @ Molley, aged 25 is a welder, A2, Samuel Ampaabeng Kyeremeh @ Boosu, aged 27 is a trader, A3, Kwabena Ateete (at large), A4 Keche @ Pozo (at large) and A5. Atongo (at large) all residents of Denkyira- Akwaboso near Diaso. On 27/05/2021 at about 11:00pm whilst the victim was at his post taking charge of their small scale mining equipment in the house at Denkyira Akwaboso near Diaso, he sighted a group of young men who are errand boys of A3, including A1 violently attacking an old man from A3’s drinking bar towards his duty post. The victim upon seeing the reactions of A1 and his group, rescued the old man and inquired from the group why the attack. Nobody was able to explain the reason of the attack to the victim. Due to that victim asked A1 and his group to go and invite A3 to come for them to sort things out amicably. Few minutes later, A1 and the remaining accused persons violently emerged at the victim’s duty post. Accused persons on arrival at the duty post surrounded the victim. When the victim attempted to move out from their midst, a scuffle ensued between them. In the course, A2, A3, A4, and A5 instigated and commanded A1 to stab the victim on his left rib. The victim cried for help and the accused persons bolted leaving him in a pool of blood. Victim’s cry attracted some of his co-workers to the scene and [they] attended to him. On their arrival [they] met the victim in a pool of blood with some of his intestines floating out[sic]. They managed to cover the rib with a piece of cloth to prevent further float[sic] and rushed him to Subin Health Centre for treatment where he was later referred to Dunkwa-On-Offin and was admitted at St. Mark Hospital and was discharged on 2/06/2021. Same day, A1 and A2 were arrested for investigation. During investigation, they both denied their respective offence in their investigation caution[sic] statement. After careful investigation A1 and A2 were charged with the offences as contained on[sic] the charge sheet and arraigned in[sic] the honourable court.” There is contradiction between the charges and the facts. It is A2 that has been charged with causing harm but in the facts A1 is said to have been the one who stabbed the victim. For this reason, in analyzing the evidence adduced at the trial, I would start with the evidence of A2. According to A2, on 27th May 2021 at about 11:00pm, he was in a pub he owns at Denkyira Akwaboso. Nothing happened there concerning this case. But earlier that day i.e. between 7:00pm and 8:00pm, he went to a drinking spot belonging to the third Accused person herein(A3) to collect his phones from A3. After collecting the phones, A2 sat down with A3 in front of A3’s bar for a while. Whilst the two were there, the fourth Accused person herein(A4) came there. A4 was the personnel in charge of another drinking spot owned by A3. A4 asked them to go and see what the victim herein i.e. PW1 was doing in the drinking spot that he(A4) operated. A4 further told them that PW1 had snatched someone’s mobile phone and that had resulted in a quarrel in that pub and that people around had pounced on PW1 and were beating him and that if A3 and A2 did not go to that pub to restore order something nasty might happen. A3 pleaded with A2 that since they were into similar business of operating pubs, A2 should accompany him for them to observe what was happening and deal with the situation. A3 in the company of A2 proceeded to the place referred to by A4. When they arrived there, A2 saw PW1 being beaten by many people and PW1 was not humbling himself to be disciplined by those people. A2 and A3 tried to calm PW1 down telling him to cool down. PW1 then turned his anger on A2 and A3. All of a sudden, PW1’s co-workers joined him to struggle with the other people. That strengthened PW1 to continue to fight his attackers. The struggle between PW1 and his attackers happened in front of A3’s second pub. Whilst the commotion was going on, someone by name Jayso advised A2 to move away from where that struggle was taking place because there was a long standing dispute between PW1’s group and A3’s group. So A2 went inside A3’s drinking bar. Few minutes later, A2 saw people running away from the scene of the struggle. Somebody running away from that scene came into the bar and said somebody had stabbed PW1. Later A1 also came to confirm that. A2 did not go to the scene to observe what had happened; so that he(A2) would not be incriminated. A2 subsequently used another way from the bar he was in then and went back into the drinking bar he owned. A2 concluded his evidence that he did not stab PW1 and that he is innocent of the charge against him. I ask the question is it a wrong charge that A2 is facing? A2’s story is a blatant denial of the charge against him. However, A2 mentioned that A1 ran from the scene of confusion and commotion to say that PW1 had been stabbed. Is it the case that it is A1 who stabbed PW1 as the facts suggest. Should it have been A1 who should have been charged with the offence of causing harm. At this juncture, I would like to refer to the statement given by A2 to the police for the purpose of investigations. It is in evidence as Exhibit C. The statement the prosecution attribute to A2 reads: “It is not true that I was the one who stabbed the complainant/victim with knife as alleged. I do not know who stabbed the victim. On 27/5/21 at about 10:00pm, I had an[sic] information that someone was offering for sale a BlackBurry[sic] classic mobile phone that I was accused of stealing, so I went and informed Kwabena Atetee to go and spy for me. One itel smartphone.[sic] Kwabena Atetee returned and informed me that he has[sic] retrieved all the two mobile phones. So I should come for them. When I went for the mobile phones, I decided to sit with Kwabena Atetee in his spot for a while. Whilst we were there, one Keche ran to inform Atetee that the victim was harrassing[sic] his customers at one of Kwabena Atetee’s drinking spot at Akwaboso threatening them with cutlass or knife to give him their monies and mobile phones, so if care was not taken the victim will[sic] collapse the drinking spot. On receipt of the information I followed Kwabena Atetee and other young men to the drinking spot. When we got there, we met the victim struggling with a group of young men. The victim was drunk by then. We calmed the situation down and took the victim from the spot to a distance where we left him. When we got to the distance, a boy called DJ Show met me, and held my hand and took me from the place advising me never to involve myself in issues involving the victim’s group and that [of] Atetee. He held me back to the drinking spot where the incident occurred. Few minutes later, whilst I was still in the drinking spot, I saw people were running helter-skelter before I was told that someone has[sic] stabbed the victim with a knife. I did not bother myself to go there to see whether there was truth in what I heard or otherwise to avoid being incriminated. I am not the one who stabbed the victim nor know the person who did that.” Section 80 of the evidence act NRCD 323 states: (1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial. (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following:(a) the demeanour of the witness; (b) the substance of the testimony; (c) the existence or non-existence of any fact testified to by the witness; (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; (e) the existence or non-existence of bias, interest or other motive; (f) the character of the witness as to traits of honesty or truthfulness or their opposites; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) the statement of the witness admitting untruthfulness or asserting truthfulness. It was held in Ntiri v. Essien [2001-2002] SCGLR 451 that the trial judge has the duty to ascertain credibility of a witness. Before I make any pronouncement on the credibility or otherwise of A2 as a witness, let me turn my attention to the cross-examination of A2 by the Prosecutor herein. Inter alia, the following came up during that cross-examination: “... Q. You stated in your evidence-in-chief that A4 came to inform you and A3 that PW1 had collected somebody’s phone in A3’s drinking spot. Tell the Court whose phone PW1 collected. A. I do not know the person. It is A4 that gave us the information. Q. So when you followed A3 to his said drinking spot, did you meet the person that A4 said PW1 had collected his phone. A. No. Q. I put it to you that PW1 never harassed or collected anybody’s phone in that drinking spot as you are alleging. A. PW1 harassed people in that drinking spot and collected somebody’s phone; that is why when I and A3 got to that drinking spot, people were beating PW1 up. Q. When you and A3 got to that drinking spot of A3 and you saw that PW1 was harassing A3’s customers, did you or A3 make any report to the police. A. No. Because there was no police station in the area. The nearest police station was at Diaso. So I and A3 decided to go and ensure that there was order at the place. Q. Is there Unit Committee at Akwaboso. A. Yes. Q. Did you or A3 report the conduct of PW1 to the Unit Committee. A. No. Q. I put it to you that PW1 never harassed or had any quarrel with anyone at A3’s drinking spot but rather you and the other persons herein attacked PW1 at his duty post when he(PW1) tried to stop you and the other Accused persons from attacking an old man. A. It is not true. Q. And that when you and the other Accused persons got to the duty post of PW1 at that time, you i.e. A2 were wielding a knife and you used the knife on PW1. A. It is not true. Q. Do you know PW2 herein i.e. Asamoah Nyamekye Vincent. A. Yes. Q. When you and A3 met at that drinking spot of A3, did you retrieve any phone from PW1. A. No.” By and large, considering the evidence-in-chief of A2 and the cross-examination he faced, in the light of section 80 of NRCD 323 supra, I find A2 to be credible as a witness. Be that as it may, corroboration is necessary when one wants to convince a court that his side of the story is to be believed. Section 7(1) of NRCD 323 states: Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. A2 called one witness who was referred to at the hearing as DW1. DW1’s evidence appeared to have have thrown light on the evidence of A2. According to DW1, on 27th May 2021 at about 11:00pm, he(DW1) was at his workplace – drinking spot owned by A2 at Akwaboso. Whilst he was there, A2 came to tell him that his(A2’s) two mobile phones had got missing and he had had information that some two boys were selling phones in a nearby bar owned by A3. So, DW1 and A2 proceeded to A3. They met A3. A2 told A3 about his missing phones and further told A3 that he had gathered that phones were being sold in his(A3’s) bar. A3 then told A2 that the young men in the town had gone to work at various sites and so A2 should wait for them to return in the evening. In the evening of that day, A2 informed DW1 that A3 had called him to inform him that he had retrieved the phones and so DW1 and A2 went back to A3. A3 gave the phones to A2. Afterwards, DW1 and A2 sought to get themselves some food to eat in front of A3’s bar. Before they could get the food, A4 came to inform A3 that PW1 was in another drinking bar and that PW1 was wielding a cutlass and he was collecting people’s phones and so A3 should go to the scene and stop PW1 from doing that. A3 asked A2 to accompany him to that bar. So A1, A5 and others who were present when A4 came to deliver the information joined A2 and A3 and went to the bar A4 referred to. DW1 also went with them. When they got there, PW1 was struggling with some people. A3 then told PW1 to move away from the frontage of his bar as what PW1 was doing would drive customers away and that might collapse his business. A2 also appealed to PW1 to stop that behaviour. PW1 pushed A2 and A2 lost his half pair of footwear. DW1 and a sales girl in A3’s bar intervened and pulled A2 into A3’s bar and placed him behind the counter. A2 then requested his missing half pair of footwear. So DW1 and a DJ in A3’s bar went to pick it up. As DW1 was going to give it to A2, he saw PW1 remove his shirt and shout at the top of his voice that anyone who claimed to be man enough should approach him. At that time, PW1 was drunk as he had consumed a lot of alcohol. That attracted a lot of people to where PW1 was. DW1 took A2’s half pair of footwear to him behind that counter in A3’s bar. A2 then requested a drink to be given him to cool him down. He was given a drink. Shortly after A2 had started drinking that drink, a crowd of people started rushing inside the bar where DW1 and A2 were then. People were shouting: “Thunder has got injured! Somebody has stabbed Thunder!”. DW1 then advised A2 that he(DW1) and A2 should leave the bar immediately. So DW1 and A2 got out of the bar and went their way. The evidence of DW1 was not spared cross-examination; it received a barrage fire of questions from the Prosecutor herein. There were some interesting answers given – check out the last answer of DW1 under cross-examination. The following, inter alia, is the cross-examination of DW1 by Prosecution: “… Q. When you met Thunder, did you see him holding a cutlass as you claim Keche came to tell Ateetee. A. When we got there, there was a fight going on and so my eyes did not see any cutlass. Q. When you got to the scene, did you meet those Thunder was collecting the phones from. A. When I got to the scene I only saw a fight going on and some people trying to stop the fight. I had been in the town barely three days; I had not been there for week. I was almost a stranger; so I did not know people in the town let alone to be able to identify anybody. … Q. You stated that Thunder was heavily drunk; did you see him drinking. A. Yes. Q. Can you tell this Court, the type of drink he was taking. A. When the struggle was going on, I saw empty bottles of alcoholic drinks and empty sachets of alcoholic drinks on the ground and also Thunder had some sachet full of alcoholic drinks and also I smelt alcohol in Thunder’s mouth and so I concluded that he had taken alcohol. Q. Did you see Thunder drinking. A. Yes. Q. I put it to you that A2 did cause harm to Thunder. A. It is not true. I swear to that. I can even use Offin River to swear to that. Q. All that you have told this Court is not true. A. What I have told the Court is true. It is not A2 who who caused harm to Thunder. The town folks have been saying it is one Kofi Mole who caused harm to Thunder. If it is A2 who caused the harm to Thunder, I swear that Offin River should take me away.” The prosecution ended the cross-examination of DW1 at the last answer of DW1 as above and did not probe DW1 further. I ask the question again: Is it a wrong charge for A2. I also ask: should it have been A1 that should have been charged with the offence in count two. It is worth noting that DW1 stated that there were rumours in the town that it was one Kofi Mole who caused that harm to the said Thunder. Is that Kofi Mole A1 herein. A1 did not appear in court so that he might cross- examine DW1 on that issue DW1 raised about him. Section 62(1) of NRCD 323 states: At the trial of an action, a witness can testify only if he is subject to the examination of all parties to the action, if they choose to attend and examine. Also A1 was not in court to testify in his defence in this matter to assist the court to factor his side of the story into the analysis of the case. There is this principle that was pronounced in the case Barimah Gyamfi v. Ama Badu [1963] 2GLR 596 @ 598 per Ollennu JSC, to wit: “It must be observed from the outset that there is no onus upon the defendant to disprove a claim made by a plaintiff, so that, however, conflicting or unsatisfactory his evidence may be, the same cannot avail the plaintiff; evidence given by the defence only becomes important in a case either where it can upset the balance of probabilities which the plaintiff's evidence might have created in the plaintiff's favour, or where it tends to corroborate evidence of the plaintiff, or tends to show that evidence led on behalf of the plaintiff is true.” Though that case was a civil case, I find that principle befitting in the circumstances as regards the evidence of DW1 as regards his last answer under cross-examination. It is appears that that statement by DW1 corroborates the prosecution’s assertion in the facts attached to the charge sheet that it was A1 who caused harm to PW1. In Commissioner of Police v. Isaac Antwi[1961] GLR 408 SC, Korsah CJ stated: “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.” The learned judge continued, referring to Archbold's Criminal Pleading, (34th ed.) at p. 371, para. 1001, that: "Where the prosecution gives prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them.". A2 was asked by the prosecutor whether he knew PW2 and A2’s answer was in the affirmative. At this juncture, I would like to journey through the evidence of PW2. The following is the content of the witness statement of the said Asamoah Nyamekye Vincent who appeared in court to testify in this matter and there was metamorphosis of his witness statement into his evidence-in-chief: 1. My name is Asamoah Nyamekye Vincent. 2. I am a Private Security guard at a Small Scale Mining site at Denkyira Akwaboso. 3. I know the accused persons and all the witnesses in this case. 4. Victim is my co-worker. 5. On 27/5/2021 at about 10:47pm, I went out to buy drink from a store behind my house. 6. Whilst I was buying the drink I heard an unusual noise ahead and out of curiosity, went to see what was going on there. 7. Whilst I was getting closer I heard A3, now at large saying that “we will kill you tonight, if you don’t know.” 8. I then realized it was a mob attack on someone. 9. I ran into the mob and confronted A3. 10. Because the place was very dark I did not recognise the victim earlier until I heard his voice as my co-worker. 11. Upon hearing his voice I went to him and met him struggling with A2 and I tried and separated them. 12. In the course of the separation I felt something like an implement in A2’s jacket. 13. After separating victim and A2, A3 also went to attack the victim but I managed to pull and engaged him in a confrontation. 14. In the course of my confrontation with A3, a[sic] sighted the victim falling down and I rushed to his rescue. 15. On reaching there I realized that victim has[sic] been stabbed on the left rib by the accused persons and his intestines floating[sic] out. 16. I tight[sic] my dress around his ribs to prevent the intestines from floating out. 17. I raised an alarm which attracted our other co-workers to the scene. 18. Our employer released one of his vehicles for us to rush the victim to Subin Health Centre for treatment but was later referred to Dunkwa-On-Offin. 19. We sent him to the St. Mark Hospital, Dunkwa where he was admitted to undergo treatment. 20. On 02/06/2021, victim was treated and discharged. 21. I also submitted my statement to the Police.” PW2 stated that he realized that the accused persons had stabbed PW1. Which of them stabbed PW1. If PW2 felt an implement on A2; what is that implement. Was it an implement that can be used to cause harm. Did PW2 see A2 using that object whatsoever to cause harm to PW1. Answers to the foregoing questions cannot to be gathered from the evidence-in-chief of PW2. But some interesting revelations were made by PW2 when he was cross-examined by A1. It must be said that A2 was absent in court when PW2 testified and the court proceeded to take the evidence of PW2 in accordance with Article 19(3)(a) of the Constitution, 1992, which states: (3) The trial of a person charged with a criminal offence shall take place in his presence unless (a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; The cross-examination of PW2 by A1 is as follows: Q. I put it to you that I know nothing about this case. I was at home and you came to arrest me. A. You know something about this case. Because when we the security personnel in the company by our investigations, it was revealed that you were among the perpetrators of this crime and more so you were among the ring leaders and when I gave my statement I mentioned your name as being among those who perpetrated that crime. Q. When you came to meet A2 and A3 at the scene, you did not see me there, why then did you mention me to the police as one of the attackers. A. Upon our investigations as security personal of the company, we arrested A2 and when we interrogated him, A2 said that it was you A1, that stabbed the victim. Q. I put it to you that you arrested me before you arrested A2. A. It is true. But before we arrested you, we had interacted with A2 and he told us that he(A2) was not the one who stabbed the victim but it was you(A1) that stabbed the victim. When we as security personnel of the company sought to arrest those we gathered that committed the crime, the others escaped and we were able to arrest you.” If A2 told the security personnel of the company that it was A1 that stabbed PW1 then why are we where we are that A2 has been charged with the offence of causing harm. Was that established by the investigations of the police. According to PW1, on 27th May 2021 at about 11:30pm, he was sitting at the frontage of his duty post. Whilst there, he saw A1 and a group of young men who were errand boys of A3 verbally attacking an old man who was coming from A3’s drinking bar. So, PW1 rushed to rescue the old man. PW1 asked why they were verbally attacking the old man but none of the young men including A1 was able to give any explanation. PW1 asked them to invite their master i.e. A3 since the old man was coming out of A3’s bar at the time of the verbal assault. Few minutes later, A3 and the other accused persons came to PW1 and surrounded him. When PW1 tried to come out of their midst there was a scuffle between PW1 and the others and in the course of the scuffle, A2 stabbed PW1’s left rib with a knife and PW1’s intestines came out. PW1 cried for help and Accused persons bolted. The cry of PW1 attracted the co- workers of PW1 to the scene. PW1’s co-workers rushed PW1 to Subin Health Centre for treatment and he was referred to Dunkwa-On-Offin. The controversy about a possible wrongful charge makes me wonder whether PW1 when he mentioned A2 actually meant A1. In the criminal jurisprudence of Ghana, the system is adversarial in nature as towards an accused and that is why the Constitution of the land has given so much facility to an accused to defend himself. In this system, the investigative team conducts investigations into a matter they find to be a criminal matter and when they arrive at a conclusion that a suspect in the case is culpable, they charge that person. In actual fact the investigator passes judgment on the accused but as the prosecutorial authorities do not have the powers to punish a person that has been accused of a crime, they are enjoined by law to arraign that person before a court of competent jurisdiction for the court to apply the requisite procedure to determine the accused’s fate with due regard to the applicable substantive laws. The investigator’s inquiries into the case must therefore be thorough and apt. It must be clear and should not admit of ambiguities that may be fatal to the prosecution’s case. My appraisal of the investigator’s work is that no proper investigation was done. I look at the investigator’s evidence before this court and I find shoddy work at its best. For the avoidance of doubt and for the sake of clarity on my pronouncements on the investigative piece as above, I produce verbatim the content of the witness statement of PW3 herein i.e. the investigator herein: 1. I am D/Inspr Emmanuel Gamor stationed at Diaso District Police Headquarters. 2. I know all the parties in this case. 3. On 28/05/2021 a case of causing harm involving the accused persons was referred to me for investigation. 4. I visited the victim who was on admission at the St. Mark Hospital, Dunkwa-On- Offin. 5. I obtained statement from him and stated that.[sic] 6. He knows A1 and A2 as electric welder and trader respectively and lives in the same town with them. 7. That victim is a security guard at a small scale mimining site at Denkyira-Akwaboso. 8. That on 27/05/2021 at about 9:30pm, whilst victim was on guard duty at their residency had an encounter with the accused persons and three others now at large. 9. In the course, A2 stabbed the victim with a knife at his rib and some of his intestines floating out. 10. That victim cried for help which attracted his co-workers to the scene but the accused persons and their accomplices had bolted. 11. That victim’s co-workers rushed him to Subin Health Centre for treatment but was referred to Dunkwa. 12. Police medical form was issued to the victim for endorsement. 13. Police visited the scene. 14. Accused persons were arrested for investigations. 15. On 2/06/2021 victim returned the medical form duly endorsed at the St Mark Hospital and reported having been treated and discharged. 16. I took investigation caution statements from the accused persons. 17. Accused persons denied the offences in their caution statements. 18. I obtained a charged caution[sic] statements from the accused persons separately.” PW3 tendered in evidence the endorsed medical report and photographs of PW1 to indicate the injury suffered by PW1. PW3, apart from A2’s investigation cautioned statement, also tendered A1’s investigation cautioned statement in evidence – Exhibit D. The statement the police attribute to A1 as contained in Exhibit D reads: “It is never true that I was among those who attacked the complainant and victim before he was stabbed as alleged. Instead on 26/5/2021 at about 6:00pm, I met the victim heavily drunk and was collecting people’s personal belongings such as mobile phones and cash. When I met [him], I rebuked him by say[sic] what he was doing did not to befit him. The victim warned me not to involve myself, or else he will[sic] beat me. He attacked me and torn[sic] my shirt. I also threatened that if he did not replace the shirt for me, I will[sic] not let it go. Immediately, one of his co-workers by name Smith intervened and gave me an amount of GH¢100.00 to replace my torn shirt and that was the end. The following day, I was not among those who attacked him as alleged. The victim is just trying to incriminate me due to the earlier incident that occurred on the previous day between him and I. On the day of the incident, I was walking with one Taifa when we got the news that the victim has stabbed. I did not bother myself to go to the scene so as not to be incriminated due to the previous incident between two of us.” When the police visited the scene what did they find or what did they observe as part of their investigations into this matter. How does merely telling the court that you visited the scene help us to know the investigations you did at the scene. The following came up during cross-examination of PW3 by A2: Q. I put it to you that I did not stab the victim. A. It was the complainant i.e. victim Adamu Innusah who made the police aware that you stabbed him. Q. it is not true that the complainant was attached and subsequently stabbed whilst he was at his duty post. A. According to complainants i.e. PW1 and PW2, PW1 was at his duty post when he was attacked and stabbed. Q. I put it to you that the complainant was stabbed right in front of the drinking spot. A. Not true. Because according to you, you were not at the scene and that it was after the incident you were informed and so for you to emphatically say that the victim was stabbed in front of the drinking bar, I don’t believe you. Q. I put it to you that it was right in front of the drinking bar that the confusion happened and I even helped in calming things down and left. Later I was informed that complainant was stabbed at the same place where I helped calm down that confusion. A. It is not true. Q. It is not true that co-workers of the victim were attracted to the scene when the victim cried for help rather these alleged co-workers of the victim were with the victim during the melee and they aided the victim in the melee. A. It is not true. When I went to the scene, I observed that the house where thee victim was a security man was fenced with roofing sheets. So when the confusion was happening, the co-workers of the victim were inside the house whilst the victim was outside. Q. Are you the one who authorized PW2, one Smith and others who were fully armed to come and arrest me. A. No.” PW3 in answer to one of the questions posed by A2 sought to give a description of an observation he made at the scene. Why must PW3, an officer of the state, wait for him to be questioned by the opposite party before he will let us know what he observed. We then ask the question: what more did PW3 observe. I hold that efforts put in this case by PW3 is below the belt. Section 10(1) of NRCD 323 defines ‘Burden of Persuasion’ and it states: For the purposes of this Decree, the burden of persuasion means 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(2) of the Evidence Act adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non- existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 defines ‘Burden of Producing Evidence’ and states further as follows: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (2) 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 could find the existence of the fact beyond a reasonable doubt. (3) 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. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Ackah v. Pergah Transport Limited and Others[2010] SCGLR 728; Sophia Adinyira JSC stated at page 736 that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable[sic] than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree[sic].” Earlier in time, in the case Majolagbe v. Larbi [1959] GLR 190, Ollennu J(as he then was) made reference to a dictum he earlier gave in Khoury and Anor. v. Richter in a judgment he delivered on 08th December, 1958 on a question of proof in law. I find that statement to be sacrosanct and a good guideline on proving cases in court. The said dictum is: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” That dictum was referred to with approval in some cases decided in later years such as Klutse v. Nelson (1965)GLR 537 @ 542 and Baah Ltd v. Saleh Brothers [1971] 1GLR 119 @ 122. Section 14 of NRCD 323 allocates the Burden of Persuasion as: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. Section 15(1) of NRCD 323 states: Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue. Section 17 of NRCD 323 allocates the Burden of Producing Evidence as: (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. (2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. Section 22 of NRCD 323 states: In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact. In Oteng v The State[1966] GLR 352@ 354, SC, Ollennu JSC stated: “One significant respect in which our criminal law differs from our civil law is that, while in civil law a plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain conviction upon mere probabilities.” This principle found space in the Evidence Act of 1975 i.e. NRCD 323, in section 13(1), to wit: 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. See also Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 138 and Fenuku v John-Teye [2001-2002] SCGLR 985 I hold that the prosecution has failed to establish the guilt of the second Accused person on Count Two as there are doubts lingering on the charge against him as well as the evidence adduced against him. In Dexter Johnson v. The Republic [2011] 2 SCGLR 601 @ 663 Dotse JSC referred to Lord viscount Sankey’s statement in Woolmington v. DPP [1935] AC 462, as follows: “Throughout the web of the English Criminal law, the golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…if at the end of, and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” A2 is hereby acquitted and discharged. However, though A1 was charged with abetment of the crime of causing harm, the evidence suggests that he could be the one who stabbed PW1; that could not be established succinctly. However, there are indications that A1 was present at the scene and his actions vis-a-vis the actions of others culminated in the injury suffered by PW1. I therefore pronounce A1 guilty on Count One(1) and convict him accordingly. In sentencing him, I have considered that he disrespected the court by not appearing before the court at some points in time during the trial. I have also considered the extent of injury caused to PW1. I have also considered the poor show by the investigative team which took a lot of colour and shine from the prosecution’s case. First Accused(A1) is sentenced to six(6) months imprisonment in hard labour. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 08/06/2023 (SGD) 24