Republic Vrs Quenin (B3/14/2023) [2023] GHACC 968 (6 September 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 06TH SEPTEMBER 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B3/14/2023 THE REPUBLIC VS EMMANUEL QUENIN @ KOFI ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION, PRESENT JUDGMENT Accused was arraigned before this Court having been charged as follows: STATEMENT OF OFFENCE CAUSING HARM, CONTRARY TO SECTION 69 OF THE CRIMINAL OFFENCES ACT, 1960(ACT 29) PARTICULARS OF OFFENCE EMMANUEL QUENIN @ KOFI, AGED 18 YEARS; APPRENTICE TAILOR: For that you on the 28th day of April, 2023 at Denkyira Obuasi near Diaso, in the Central Circuit and within the jurisdiction of this Court, caused harm to one Patrick Ola Anane. According to the police, their investigations revealed the following facts based on which they charged Accused with the above offence: 1. Complainant is a student and a resident of Dunkwa-On-Offin. 2. Accused is resident of Denkyira Obuasi. 3. In the month of February 2023, Complainant went to Denkyira Obuasi for a funeral with two mobile phones, Samsung S9 plus Android phone and iPhone 7 plus valued GH¢2,700.00 and GH¢2,100.00 respectively. 4. The following day all the two mobile phones were stolen from his room. 5. Complainant highly suspected Accused of having stolen the phones and so he went to Accused and pleaded with him to assist him to search for the phones. 6. Accused agreed and promised to assist Complainant to search for the phones. 7. Three days after, Complainant had not heard from Accused and so he approached Accused and Accused told him that he had not heard any information about Complainant’s missing phones. 8. Accused then told Complainant that he(Accused) had a Samsung S9 plus mobile phone that he was offering for sale. 9. Complainant showed interest in buying the phone Accused was offering for sale and the two agreed on GH¢2000.00 as the price for the said phone. 10. Complainant asked Accused to bring the phone and get paid; Accused brought the phone and the complainant asked Accused to let them go to the house in which Complainant lived so that he would take the money for the payment of the phone from his(Complainant’s) mother and pay him. 11. When the two got to Complainant’s house, the complainant told the accused that the phone was one of his missing mobile phones and for that reason he would not pay the GH¢2000.00 they had agreed on. 12. Complainant took the phone to Dunkwa-On-Offin. 13. Accused complained about the conduct of Complainant to the father of Complainant and Complainant’s father took the phone from Complainant and gave it to to Accused. 14. On 28th April 2023, Complainant again went to Denkyira Obuasi for a funeral; at about 09:00pm Accused attacked him with a cutlass and inflicted cutlass wounds on his head and neck for removing his network sim card from the phone before returning it to him. 15. On 29th April 2023 at about 2:00pm, Accused was arrested; upon interrogation of Accused, he stated that Complainant’s father returned the phone without the Sim card and so when he(Accused) met Complainant at Denkyira Obuasi at the funeral grounds, he demanded his sim card from Complainant and that Complainant became offended, pushed him down, pounced on him and assaulted him mercilessly and in the course, he(Accused) laid his hand on a piece of wood on the ground with nails in it and hit same on Complainant several times. The prosecution called three(3) witnesses to seek to lead evidence on the above facts to seek to establish the guilt of the accused. Complainant testified first and he was followed by a boy who gave his age as twelve(12) years; they were referred to as PW1 and PW2 respectively. PW1 confirmed the aspects of the facts that relate to him; he stated further in his witness statement that: “11. On 28/04/2023, I went for funeral at Denkyira Obuasi, whilst I was at the funeral grounds at about 3:00pm with Benjamin Amankwah, the accused told me my father brought his mobile phone back to him without his network sim card and demands[sic] for the sim card angrily. 12. Benjamin pulled me and we left the funeral to the house. 13. The same day at about 9:00pm, I was sitting on a wall at the funeral grounds when the accused came and attacked me with a knife, slash[sic] me on the neck and head. 14. I sustained a deep cut on my head and the neck.” According to PW2, on 28th April 2023 at about 09:00pm, PW1 came to New Obuasi for a funeral. PW1 went to sit on a certain wall. Whilst there, Accused and some others came to where PW1 was seated. Exchange of words ensued between Accused and PW1. PW2 was then standing close to where Accused and PW1 and the others were, at a higher altitude than where they were. PW2 then saw Accused give a signal to one Lareba who then pulled a jack knife and went very close to Accused. Lareba then gave the jack knife to Accused. PW2 then shouted saying: “Help, help he has given the knife to him” in Twi. Whilst PW2 was shouting, he saw blood oozing from PW1. Soon after PW2 saw Accused give the knife back to Lareba and Lareba went away with the knife. People around confronted Accused asking him what he had used to injure PW1. At that moment, Accused and the three other people he came with including Lareba attempted to beat PW2’s mother who was among the people who were inquiring what was used to injure PW1. It must be said that PW2 added on to the facts presented to court in support of the charge by seeking to provide further and better particulars on the events in this case that prosecution say took place on 28th April 2023. 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. Accused exercised his right of cross-examination on PW2 and the following came up: Q. I put it to you that Lareba was not present at the seen when the fight took place. A. Lareba was present then; he even confronted PW1 and asked: “What do you mean”. Q. Apart from Lareba that you mentioned, who are the other two, who you said were with me. A. Kwaatta and Daadi. Q. I put it to you that Daadi was also not present at the scene. A. Daadi was present; he was even wearing a scarf on his head and had a cap on top of it. Q. if you have been able to describe the dressing of Daadi, then what was I wearing. A. I did not take note of that because my attention was not on the attire you were wearing. Q. I put it to that Lareba did not give me any knife. A. Lareba gave you a knife. Q. Do you remember that PW1 was sitting with his friends at that time. A. Yes. Q. I therefore suggest to you that it could not have been possible for me to just walk to PW1 to attack him with a knife; I and PW1 had a misunderstanding culminating in a fight between us. A. I do not agree with you. I find PW2’s evidence to be strong and damning on Accused. However, Accused failed to pull the muscle to discredit PW2. Section 80 of 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. According to PW2, one Lareba played a key role in the events that culminated in the injury sustained by PW1. Accused put it to PW2 that the said Lareba was not present at the scene and PW2 denied that assertion by Accused. Accused did not probe PW2 further on the issue of whether the Lareba was at the scene or not. Interestingly, in cross-examination of PW2, Accused alluded that the said Lareba did not give him any knife. The statement PW2 made that a certain Lareba gave a knife to Accused is very weighty as far as this case is concerned and so if the Lareba was not present at the scene then a cross-examiner should seek to draw the witness’s attention to certain facts to seek to prove to the witness that the Lareba was not present or seek to convince the court that the Lareba was not present at the scene. Rather Accused sought to challenge PW2 saying that the Lareba who he(Accused) said was not at the scene, did not give him(Accused) any knife. Ollennu J(as he then was) in Majolagbe v. Larbi [1959] GLR 190 made reference to a dictim he gave earlier in Khoury and Anor v Richter which judgment was delivered on 8th December, 1958, as regards proof in law. That dictum has been referred to with approval in Klutse v. Nelson (1965) GLR 537 @ 542 and also Baah Ltd v. Saleh Brothers [1971] 1GLR 119. It 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'." With all that PW1 said against Accused, the following is all the cross-examination Accused did of PW1: Q. When you told me that your Samsung Galaxy S9 had got missing was I holding any phone. A. No. I did not see you holding any phone. Q. Do you remember that when I came to you at about 09:00pm on 28th April 2023, you pushed me and I fell down. A. No. I did not push you. Q. I put it to you that you pushed me and I fell down and I lay hands on a piece of wood with nails in it and hit you with it as you were lying on me and I was struggling to free myself. A. It is not true. Accused left it at that and did not probe PW1 further. An issue arises, to wit: whether Accused used a knife to cut PW1. In Commissioner of Police v. Isaac Antwi , 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." Before I talk about what Accused said in his defence, let me take a look at that the investigator’s evidence before this court. The facts the police presented to the court in support of the charge, essentially captures the evidence-in-chief of PW3 – the investigator herein who testified third for the prosecution. PW3 tendered in evidence the statement he said he took from Accused for the purpose of investigations. The statement PW3 read in Court as: “During the month February 2023, Patrick came to informed[sic] me that his iphone and ziggle mobile phone has[sic] been stolen in their[sic], that as far as I am in Denkyira Obuasi, township, I should assist him with any information I will[sic] get about their missing mobile phones. The following[sic] he confronted[sic] whether I have[sic] had any information about his missing iphone which I said No and told him I have[sic] a Samsung android S9 plus for sale which he consented and we agreed at[sic] the price of GH¢2000.00, by then I was at Denkyira Nkwantanum so I took motor bike to Denkyira Obuasi with my two friends Owura and Canter and we sent the said phone to him and he said we should fellow[sic] him to their[sic] and collect money from his mother and pay me, but when we got to their house, he told his mother he has[sic] seize[sic] my phone I offered to him to buyer[sic]. So it turned into a scuffle between us and we left their house. I went and informed her aunti – Akos about what Patrick did to me and asked her to called[sic] Patrick[sic] father on phone for me. I went to Akos on several occasions before she called Patrick’s father for me. His father promise[sic] to collect my phone back[sic] to me but it took two weeks before I[sic] he took the phone for me but the phone was fresh[sic] and my simcard that in[sic] the phone was also removed. On 28-04-2023 around 8:00 pm, I met Patrick at a funeral – grounds in Denkyira Obuasi and asked him of [my] simcard, he became offended, pushed me to the ground, sat on me and was beating me mercelessly[sic], so I also found a stick which there was[sic] nails on it and also hit[sic] with it anyhow. On 29-04-2023 at about 2:00 pm, I came to Jameso-Nkwanta to buyer(sic) pork and was arrested by Diaso Police.” Section 37 of Act 29 states: For the prevention of, or for the defence of himself or any other person against any crime, or for the suppression or dispersion of a riotous or unlawful assembly, a person may justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing. The medical report as endorsed was tendered in evidence and marked Exhibit D. The endorsement of the medical officer reads, inter alia: “The client reported to the facility at the said date and time and claimed to have been slashed in the head and neck by a group of 3 guy. The said incidence[sic] occurred in Denkyira Obuasi at about 9:00pm when the client visited the community for a funeral. He was rushed to a nearby health facility where the wounds were sutured and dressing applied. On examination, he is stable, dressing applied to the head and neck, not pale, not jaundice, afebrile in obvious pain. Status Localis: Deep lacerations on both side of the head, and right side of the neck (about 5cm and 4cm).” When PW3 sought to tender in evidence the endorsed medical report, Accused person bent down and said he pleaded with the Court and the he would pay whatever medical expenses of Complainant. This the court took note of in the minutes. To hit somebody anyhow as accused alluded to is not justifiable in the circumstances. Besides the photograph Exhibit A does not suggest that the image is that of somebody who has been pierced with a nail or nails several times; it shows a cut and considering the medical report, I am inclined to agree with the prosecution that a knife was used to cut PW1 and that it was Accused who did so. I do not find that the defence of self defence will avail Accused. The court held that Accused had a case to answer in accordance with Section 173 of the Criminal and Other Offences(Procedure)Act, 1960(Act 30) which states: If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him. The court proceeded to explain section 63 of NRCD 323/ section 174(1) of Act 30 as well as Article 19(10) of the Constitution, 1992 to Accused. Section 174(1) of Act 30: At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence. Section 63 of NRCD 323 states: (1) An accused in a criminal action may make a statement in his own defence without first taking an oath or affirmation that he will testify truthfully and without being subject to the examination of all parties to the action. (2) Such a statement by an accused is admissible to the same extent as if it had been made under oath or affirmation and subject to examination in accordance with sections 61 and 62. (3) The fact that the evidence was given without oath or affirmation, or that there was no possibility of examination, may be considered in ascertaining the weight and credibility of the statement, and may be the subject of comment by the court, the prosecution or the defence. Article 19(10) of the Constitution, 1992 states: No person who is tried for a criminal offence shall be compelled to give evidence. This is what accused stated: “I stand on my statement that I gave to the police. I have nothing more to say.” As Accused did not testify in his defence for to be subjected to cross-examination, he did not call any witness. The said Lareba might have been a material witness for Accused so might have been the evidence of the said Kwaatta and the said Daadi. 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. I pronounce Accused Guilty of the charge and convict him accordingly. In sentencing him, I have considered the gravity of the injury of PW1. I have also considered the age of Accused. I have further considered the period Accused has spent in custody prior to the delivery of judgment. Article 14(6) of the Constitution states: Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment. Accused is hereby sentenced to prison for two(2) years six(6) months in hard labour. (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 06/09/2023 13