Republic Vrs Owusu (B10/05/2023) [2023] GHACC 966 (2 November 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 13TH DECEMBER 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B3/03/2023 THE REPUBLIC VS EBENEZER OWUSU @ RAMVEE ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION, PRESENT JUDGMENT Accused person was arraigned before this Court charged as follows: STATEMENT OF OFFENCE CAUSING HARM; CONTRARY TO SECTION 69 OF THE CRIMINAL OFFENCES ACT, 1960(ACT 30) PARTICULARS OF OFFENCE EBENEZER OWUSU @ RAMVEE; AGED 23 YEARS, EXCAVATOR OPERATOR: For that you on 25th July 2022 at about 4:00am at Ayanfuri in the Central Circuit and within the jurisdiction of this court, did cause harm to one Daniel Danso Section 69 of Act 29 states: Whoever intentionally and unlawfully causes harm to any person shall be guilty of second degree felony. The prosecution relied on the following facts: 1. On 27th July 2022, Complainant’s sister was celebrating her birthday at a drinking spot called Kinpins at Ayanfuri and among the attendees were Complainant and Accused person. 2. Between 02:30am and 03:00am on 27th July 2022, Accused poured a drink on Complainant from a disposable cup; Complainant ignored that because he thought that Accused did so accidentally. 3. Accused repeated the act of pouring drink on Complainant; this time Complainant became angry and he also poured a soft drink which he was drinking on Accused. 4. Accused then took a club beer bottle and aimed at Complainant and threw it but missed his target. 5. Complainant ran away from the drinking spot; Accused person pursued him and used an object to hit the eye of Complainant. Complainant then became unconscious. 6. Because the place was dark, Complainant could not make out the exact object Accused used to hit his left eye. 7. Complainant was rushed to hospital and a cut he sustained at his left eye was stitched. 8. Accused went into hiding and he was arrested on 07th November 2022. Upon Accused pleading Not Guilty to the charge, the prosecution was enjoined by law to lead credible and admissible evidence to seek to prove the guilt of the accused. If there is reasonable doubt as regards the prosecution’s case, the prosecution has failed to discharge the onus of proof on them. Section 13(1) of the Evidence Act of 1975 i.e. NRCD 323 states: 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. Prior to the advent of the Evidence Act, Ollennu JSC had held in Oteng v The State[1966] GLR 352 @ 354, SC, that: “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.” There was a similar holding in the following recent cases: Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 138 and Fenuku v John-Teye [2001-2002] SCGLR 985 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].” The burden of persuasion and the burden of producing evidence may shift onto the accused if the prosecution makes a prima facie case against the accused at the close of the prosecution’s case. In that case, the onus is shifted onto Accused to offer explanation to seek to persuade the court to rule in his favour and/or introduce, produce or adduce evidence to prove that his side of the story must rather be accepted by the court. 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.". The prosecution called three witnesses – the complainant herein, one Portia Anamang alias Naana and the investigator herein. They were referred to as PW1, PW2 and PW3 respectively. According to PW1, on 26th July 2022 in the evening, PW1’s sister was having her birthday party in a drinking spot and PW1 attended that party. Accused also attended that party. While the party was ongoing, Accused poured some alcoholic drink on PW1 between 02:30am and 03:00am on 27/07/2022 and PW1 ignored Accused; PW1 thought what Accused did to him was not intentional. Accused person poured an alcoholic drink on PW1 again and PW1 became angry and PW1 also threw a soft drink called chinchin at Accused person. Accused then threw a club beer bottle at PW1 but it did not hit PW1. PW1 then ran away from where the birthday party was taking place. PW1 reached the ground floor of the said building and met Accused standing there holding a small log. Accused then used the log to hit PW1’s right eye. Blood oozed from that eye of PW1 whereupon he(PW1) became unconscious. When PW1 regained consciousness, he realized he was on admission in a hospital. The prosecutor showed an item to PW1. PW1 then stated: “This is a photograph of the small log that I referred to in paragraph 8 of my witness statement…” Accused then said: “I did not hit PW1 with anything.” The Court ruled: “The photograph, though the witness stated that it showed a small log but it has been endorsed at the back that it is a picture of a firewood, is admitted in evidence for what it is worth and marked Exhibit A.” The prosecutor showed PW1 another picture. PW1 then stated: “This is a photograph showing me with my injured right eye. I would like to tender it in evidence.” Accused objected saying: “The witness says he got injured in his right eye but the photograph shows left eye. The photograph is an edited version.” The prosecutor then retorted: “This picture clearly shows the injury sustained by the witness.” The court then ruled: “The ground of objection by Accused person is legitimate. But I take judicial notice of lateral inversion to admit the photograph for what it is worth. It is marked Exhibit B.” PW2’s testimony is paraphrased as follows: On the day of the incident ie 27/07/2022 at about 2:00am, PW2 woke up to buy water. While on her way, she saw Accused holding a piece of firewood. PW2 bought the water and was on her way to go back to bed and she heard some people shouting and saying: “Ramvee has injured Kwadwo.” PW2 quickly returned to where she saw Accused holding the firewood; there she saw PW1 lying down with blood oozing from his right eye and Accused holding the same firewood which PW2 had earlier seen him holding. The salient portions of PW3’s witness statement are as follow: “... 4. On 28th July 2022 complainant...made an official complaint at Ayanfuri Police station that the accused person had used an object to hit his right eye as such needed Police action. … 6. On 07/11/2022 the accused was arrested in a different case at Ayanfuri but was sent to Atechem Police station in Dunkwa for detention. 7. The complaint of the complainant was transferred from Ayanfuri Police station to Dunkwa-On-Offin Divisional CID for investigations to be continued. … 12. I visited the crime scene together with witness Portia Anamang @ Naana. At the crime scene witness identified to me the firewood which she saw the accused holding when she was on her to buy water and it was the same firewood,[sic] she saw the accused holding beside the victim at the time the accused committed the crime. ...” PW3 tendered in evidence a document he said contained the investigation cautioned statement he said he took from Accused. It was marked Exhibit C. The statement reads: “In April this year I was arrested by the Ayanfuri Police and while in cells the complainant also came and met me in the cells. The cells leader maltreated the complainant and he was expecting me to come to his rescue but I did not. After my release from the cells I met the complainant at a drinking spot called arrested[sic] and all of a sudden the complainant poured alcoholic drink on my face and he ran away. A day after this incident my relative who is called Willie told me that the complainant who is also called Ndomie informed him that when he was running away he hit his face against a wall but he would tell his mother that I assaulted him. I do not know anything about the injury the complainant sustained. When the complainant threw the alcohol unto my face I did not see the person who did that to me but it was the drinking spot owner called Ogyedu who informed me that it was the complainant who threw the alcohol unto my face.” In the document PW3 tendered in evidence as containing the charged statement of Accused, it is written that Accused relied on his investigation cautioned statement. PW3 sought to tender in evidence what PW3 said was the firewood. PW3 stated: “I have in my hand the firewood which was retrieved from the crime scene and as I referred to in paragraph 12 of my witness statement. I would like to tender it in evidence.” Accused raised objection that: “The picture of the would in Exhibit A shows the firewood as black in colour but this one is not black in colour.” The prosecutor stated: “Exhibit A shows the same object.” The court admitted the firewood which did not look black in colour and marked it Exhibit E. PW3 tendered in evidence what he said was the endorsed medical form on the injury sustained by PW1. It was admitted in evidence and marked Exhibit F. The endorsement of the medical officer is as follows: “Patient presented with bleeding from right infraorbital region 3 days ago. Patient was apparently hit on the above mentioned with a sick. This was after he was involved in a verbal confrontation with a co-inhabitant of Ayanfuri whilst at a drinking spot. On examination there was a 5cm x 1cm laceration at the right infraorbital region which was bleeding. There was also right subconjunctival hemorrhage Hemostasis was secured and suturing was subsequently done. Appropriate medications were also administered” The endorsement on the said medical report is signed and the name attached to that signature is simply Dr Mensah and the date attached is 28/07/22. In making the analysis of the matter I first refer to cross-examination Accused did of PW3. The following came up in that cross-examination: Q. I put it you that the incident occurred on 27th July 2022. A. The party which they attended started during the night of 27th July 2022 and it ran into the dawn of 28th July 2022. Q. Would you be surprised to know that Complainant stated in Court that the party started in the evening of 26th July 2022. A. Yes. Because I know that the party started on 27th July 2022. Q. Would you be surprised that Complainant stated that I poured alcoholic drink on him on 27th July 2022 at about 02:30am – 03:00am. A. I know that the incident happened on 27th July 2022 in the night and as the party was ongoing, the party entered into the dawn of 28th July 2022. Q. Would you also be surprised that the said Portia Anamang ie PW2 stated to the court that she woke up on 27th July 2022 at about 02:00am to buy water. A. I would not be surprised. Accused then proceeded to cross-examine the witness on the eye of PW1 that got injured. The Court noted: “Accused was asking the witness about the eye that got injured. Accused showed the Court his copy of the witness statement of Daniel Danso and in paragraph 8, it is left eye but on the Court’s copy and on the copy of prosecution, it is right eye. The court summoned the filing clerk and he identified the signatures on all the documents ie the Court’s, the prosecution’s and Accused person’s copies of the witness statement of Daniel Danso. The filing clerk also identified his writing of the date and time on which they were filed ie 22th December 2022 at 10:11am.” The Court then ruled: “Considering the circumstances surrounding the witness statement of Daniel Danso which Accused is basing on to ask questions of PW3, fundamental rights of Accused person to have the witness statement before hand and prepare his defence has been infringed upon. Therefore, I order prosecution to furnish Accused with a copy of the witness statement of Daniel Danso as on the Court docket and also on the prosecution’s docket for Accused to come back to continue with cross- examination of PW3. See Republic v Baffoe Bonnie & Ors (Suit No. J1/06/2018, Judgment given on 6th June, 2018) at the Supreme Court.” On a subsequent adjourned date, Accused stated to the Court: “I have received a new copy of the witness statement of Daniel Danso but there is no paragraph 11.” The prosecutor then stated: “That is so. There is no paragraph 11 in the witness statement of Daniel Danso filed on 22nd December 2022.” Accused then said: “I am done with the cross-examination of PW3.” 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 took advantage of cross-examination and discredited PW3. Because, clearly, PW1 stated that the said party started on 26th July 2022 and that it was on 27th July 2022 between 02:30am and 03:00am that the incident happened. The answer: “Yes, I know that the party started on 27th July 2022” given by PW3 under cross-examination, is intriguing because as a witness you testify to what is to your personal knowledge and if it is hearsay let it be known to the court that the information is hearsay. Obviously, on the totality of the evidence, it is obvious that the investigator got the information about the party on hearsay. I wonder the kind of investigations he conducted into to the information he gathered on this case considering the doubts created on his performance as an investigator by the accused herein on cross-examination. See the Particulars of Offence as regards the date the incident is said to have taken place. The court having admitted the photograph – Exhibit B based on the phenomenon of lateral inversion, one would expect the investigator to lead evidence on the said photograph as to whether there was lateral inversion and/or on how the photograph was obtained to clarify the issue about the doubt raised by Accused when the said photograph was being tendered in evidence. Despite the doubts raised by Accused as regards Prosecution’s case, the Court with due regard to section 11 of Evidence Act supra called on the accused to open his defence. See section 173 of Act the Criminal and Other Offences(Procedure) Act, 1960(Act 30). The Court then proceeded to explain section 174(1) of Act 30/ section 63 of NRCD 323 vis- a-vis 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. Accused chose to give evidence from witness box on oath. According to Accused, on 25th July 2022 at about 04:00am, he was at a drinking spot at Ayanfuri drinking Blue Jeans energy drink. There and then, PW1 poured an alcoholic drink on Accused. PW1 then attempted to run away. Accused sought to chase PW1 but he was restrained by his(Accused’s) friends who were around. Accused did not see PW1 again until at about 12:00noon on that day. At about 12:00noon on that day, a friend of Accused by name Willie told him that he was lucky not to have pursued PW1 because, whilst PW1 was running away after he had poured the drink on him(Accused), he(PW1) hit his eye against a column(‘pillar’ at where)a staircase was on his was on his way descending to the ground floor – under where Accused sitting drinking. According to Accused, Willie further told him that PW1 told him that the was going to report to his(PW1’s) mother that Accused had caused harm to him(PW1) because according to PW1 when he(PW1) was in police cells earlier with Accused and others, Accused and others beat him. Inter alia, the prosecution subjected Accused to following in cross-examination: … Q. I am putting it to you that PW1 did not hit his eye against any pillar but rather you caused harm to him. Q. Look at Exhibit B. I put it to you that the injury on the eye of PW1 is not injury from someone hitting his eye against a pillar. A. It is not true. Q. I put it to you that no friend of PW1 told you that PW1 hit his eye against a pillar. A. It is not true. Q. Look at Exhibit A. The stick on this photograph is what you used to hit the eye of PW1. A. It is not true. Q. I am putting it to you that you intentionally caused harm to PW1. A. It is not true. The question “Look at Exhibit B...” is intriguing. If the prosecution is of the view that the injury is not of somebody hitting his eye against a pillar, it is incumbent upon them to lead admissible and credible evidence to establish that. Interestingly the prosecutor did not make reference to the medical report when he made that assertion whilst cross-examining Accused. Also, the medical report did not indicate or suggest that it was firewood or small log used to hit Accused. Ollennu J(as he then was) in Majolagbe v. Larbi [1959] GLR 190 made reference to a dictum 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 @ 122. That 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'." 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. Accused considering his testimony before the court vis-a-vis his statement to the police and the cross-examination he did and answers he gave under cross-examination as well as the objections he raised that had the tendency to discredit the prosecution, I find that he has been consistent and so I find him to be a credible witness. Section 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 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 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.” Accused is hereby acquitted and discharged. (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 13/12/2023 16