REPUBLIC VRS SAH (BR/SY/CT/153/2024) [2023] GHACC 1002 (21 December 2023)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON THURSDAY THE 21ST DAY OF DECEMBER 2023 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/153/2024 THE REPUBLIC VRS. EMMANUEL SAH JUDGMENT The accused person has been charged with three offences namely, threat of death, causing unlawful damage and assault. The basis for the charges is that on the 8th of September 2023, accused person allegedly entered into an insult spree against complainant’s husband. Complainant who was not pleased with the attitude of accused person confronted him but accused person reacted by attempting to strike complainant with a cutlass he was holding. Fate smiled upon complainant given the fact that she managed to prevent the attack on her with a rubber bucket she was holding. Apparently, the strike from the cutlass landed on the bucket used to block the onslaught and instantly the bucket got damaged. Prosecution however, alleges that part of the cutlass made contact with the shoulder of complainant thereby injuring her which led to the arrest and subsequent arraignment of accused person. Accused person denied Counts One and Three outright by pleading not guilty to the offences but offered an explanation to Count Two. His explanation on Count Two however raised a Defence in law and as such his plea on that count was changed to a plea of not guilty. It follows therefore that Prosecution was bound to establish that accused person had indeed committed all the offences alleged against him and in order to obtain a conviction, Prosecution is bound to prove its case beyond reasonable doubt. Section 11(2) of the Evidence Act 1975 (NRCD 323) provides that, “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.” This burden of proof is so fundamental and well-trodden in a myriad of cases and I shall not seek to re-invent the wheel but just to mention the following cases where this basic rule was further enunciated. In the Commissioner of Police v. Isaac Antwi [1961] GLR 408 the Court held that; “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution... it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt.” Also, Lord Sankey in Woolmington vrs. DPP [1935] AC 462 had earlier stated that, "... it is the duty of the prosecution to prove the prisoner's guilt... With the in mind, this Court shall first seek to determine whether Prosecution pursuant to the evidence adduced, managed to establish the offence of threat of death against accused person. According to section 75 of Act 29/1960, “a person who threatens any other person with death, with intent to put that person in fear of death, commits a second-degree felony”. This is the provision which creates and proscribes the offence of threat of death and according to section 17 of Act 29/60 „Threat‟ means, inter alia, „a threat of criminal force or harm‟. It therefore indicates that the following elements must be established by Prosecution for conviction to be attained; a. That the accused did threaten another person. b. That the threat was criminal in nature, that is, the use of criminal force or harm. c. That the accused person had the intent to put that person in fear of death. The Court of Appeal in Patterson Ahenkang and 2 Ors. Vrs. The Republic (2014) JELR 68267 (CA) observed that, “…to constitute a threat of death therefore, the threat must be criminal, that is in respect of an unlawful harm. The means by which the threat is conveyed is immaterial and it could be conveyed directly or indirectly. Indeed, words are sufficient provided the ingredients of the offence are present” The first question to ask therefore is, whether accused person threatened complainant? The Black‟s Law Dictionary 4th Edition defines a threat as follows; “a declaration of intention or determination to inflict punishment, loss, or pain on another, or to injure another by the commission of some unlawful act” By the foregoing definition, a threat is said to have taken place where a person makes a declaration of his/her intention to cause some form of harm to another. This declaration may either be by way of conduct or by words. It follows therefore that, if the declaration of intention to cause harm is put into action or brought to fruition, the conduct is no more a threat. in such instances, the accused person is charged with the resultant effect of this earlier declaration and his declaration to cause harm. In this case, the facts proffered by Prosecution do not indicate a declaration to cause harm on the part of accused person. The facts rather indicate that the alleged declaration to cause harm was brought into effect as Prosecution contended that accused person actually swung the cutlass which hit a rubber bucket and eventually landed on the shoulder of complainant. The moment accused person allegedly swung the cutlass and made impact on the shoulder of complainant, his action was no more a mere threat or declaration to cause harm but he had in effect brought any intended declaration into fruition. For better clarity, it must be noted that when a person wields a cutlass and threatens to kill another person, that threat or declaration to kill persists and continues up until the person strikes. If the person actually swings the cutlass but misses or manages to make bodily contact, that person cannot be charged with threat of death. Appropriately, he must, be charged with an attempt to cause harm or causing harm as the case may be or better still an attempt to murder. In the instant suit, the facts proffered by Prosecution seem to suggest that there was no period accused person issued any declaration of an intent to cause any harm. The facts rather suggest that accused upon being allegedly offend simply attacked complainant with the cutlass and struck. There was no time when accused person made any statement or conducted himself in any manner to connote a threat and even if there was be brought his alleged threat or declaration into fruition by striking. This Court can therefore not find that any declaration of intention to cause harm was issued by accused person. Prosecution thus failed to establish the first element relating to whether a threat was issued. The facts rather support a case of an attempt to murder or better still an attempt to cause harm or causing harm. These identified offences cannot however be substituted for Count One in accordance with section 153 and 154 of Act 30/1960 as Prosecution failed to meet the criteria stipulated in the said sections. Count One must accordingly fail and accused is acquitted and discharged on that charge. With regards to Count Two, which is the offence of causing unlawful damage Prosecution alleges that accused person unlawfully caused damage to a rubber bucket belonging to complainant. According to them when accused person struck complainant with the cutlass, she instinctively used the bucket defensively to prevent the attack on her. The cutlass landed on the bucket which caused damage to it. Unlawful damage occurs when a person causes damage to another‟s property without lawful authority. Section 172 of Act 29/1960 proscribes the offence by stating that, “A person who intentionally and unlawfully causes damage to property (a) to a value not exceeding one million cedis or without a pecuniary value, commits a misdemeanour; (b) to a value exceeding once million cedis commits a second degree felony. By this offence, the ingredients necessary to be established by the Prosecution are that; a. Damage was caused to property which does not belong to the accused person. b. The damage was caused by the accused person himself or his agent. c. That the damage was intentionally caused and same was not lawful. The evidence adduced established that indeed, damage was caused to a rubber bucket as depicted in Exhibit C and that this bucket did not belong to accused person. In fact, accused person never claimed ownership of same in his testimony. What is essence is whether accused person intentionally caused the said damage. Intention connotes a deliberate act to do something. Black’s Law Dictionary 4th edition indicates that intention means, a “…design, resolve, or determination with which person acts”. In other words, if a person intends something to occur, that person goes out purposely to ensure the occurrence of the said event. Thus, where an event is caused by factors not within the contemplation or means of the accused, the accused can generally not be deemed to have caused that event subject to certain exceptions which, to delve into same, will be pure academic at this time. (See: Section 13 of Act 29/1960). In any case, the question is whether or not accused person intentionally caused damage to the rubber bucket and the answer to this question is in the negative. This is due to the fact that from the testimony of complainant, accused person’s aim was to strike her directly with the cutlass. The bucket only came in when she used it to block the direct onslaught. Without prejudicing the determination of Count Three, it can therefore be observed that accused person’s intention was not to cause damage to the bucket in question but rather to cause some form of injury or harm to complainant. The bucket was an intervention which was ordinarily not within the contemplation of accused person which when introduced into the series of events mitigated the impact of accused person’s alleged attack. It is therefore the finding of the Court that the element of intention in the charge of causing unlawful damage was not established by Prosecution. Accused person must therefore acquitted on Count two as well. Count Three relates to the offence of Assault and by Section 84 of Act 29/1960, “whoever unlawfully assaults any person is guilty of a misdemeanour”. An assault may be „assault and battery‟ or „assault without actual battery‟ and „imprisonment‟. (See: Section 85 of Act 29). Section 86(1) of the Act provides further that; “A person makes an assault and battery upon 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, he forcibly touches the other person, or causes any person, animal, or matter to forcibly touch him.” Thus, the ingredients necessary to be established under this charge are; a. The accused forcibly touches another person. b. The accused lacked the consent of the person to touch him c. The accused had the intention of causing the other harm, pain, fear or annoyance. In this case, since Prosecution alleges some form of physical contact with the body of complainant by accused person, it can rightly be concluded that Prosecution sought to establish assault and battery. The first issue therefore is whether or not accused person forcibly touched complainant in any way. This first element is essential in establishing assault and battery that in the case of Miller vrs. Attorney-General [1975] 2 GLR 31 Abban J (as he then was) observed as follows; “It is common place that in order to found an action in assault and battery there must have been a direct and intentional application of physical force to the person of the plaintiff by the defendant, such as a blow inflicted with the hand or with a weapon or some other object. In Letang v. Cooper [1964] 3 W. L. R. 573, C. A. at p. 577, Lord Denning M. R. said: "If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. The least touching of another in anger is a battery, per Holt C. J. in Cole v. Turner (1704) 6 Mod. 149”. In this case therefore, what physical force was applied to the person of complainant by the accused person? Prosecution in this regard called Pw1, Victoria Sah who testified to the effect that when accused swung the cutlass to slash her she blocked it with a rubber bucket but same broke into two and the cutlass landed on her shoulder causing injury to her shoulder. Accused person disputed the fact that he swung a cutlass at complainant and duly challenged her under cross examination. None of the other witnesses called by Prosecution saw the accused person swinging the said cutlass. Recourse can therefore only be had by having due regard to the evidence adduced by Prosecution on that issue. Consequently, Prosecution tendered Exhibit D, the medical report dated the 8th of September 2023. The physician Assistant who examined complainant had this to say; “Client has sustained multiple abrasions and bruises with obvious bleeding from site” In their ordinary meaning, abrasions also includes cuts while bruises includes discolouration of the skin. In Exhibit E, the picture of the alleged injury, obvious discolouration of the shoulder of complainant is seen and with respect to the cut is seen from the picture, however Exhibit D confirms the presence of cuts and bleeding. How then were these cuts, bleeding and discolouration caused to the shoulder of complainant aside the fact alleged by Prosecution? According to accused person, on the day of the incident he was rather attacked by complainant, her husband and their child and in a bid to free himself he managed to throw the bucket at complainant and in the process managed to escape the attack on him. Accused person’s side of the story however appears quite unbelievable in the sense that, no matter the impact one may use in throwing a plastic bucket at another, the damage caused to the bucket as a result would not be that as depicted in Exhibit C. Exhibit C is a picture of the damaged bucket and the damage is consistent with a strike from an object rather than an impact from being thrown at a person. In fact the damage is in a linear fashion which consistent with a cutlass. This Court therefore finds that, there was physical contact made to the shoulder of complainant by virtue of accused person striking complainant with a cutlass. fortunately, the strike landed on the bucket used in her Defence causing only abrasions and bruises to her shoulder. The first element is therefore established. The second element relates to whether complainant consented to the physical touch to her body. In Comfort and Another V. The Republic [1974] 2 GLR 1 the Court observed that; “By section 86 (1) of the Criminal Code, 1960 (Act 29), a person commits an assault and battery when, essentially, there does not exist the other person’s consent. Consent, therefore, generally negatives any offence of assault. I say “generally” because I concede that the victim’s consent cannot be a defence for an assault if the blows inflicted are, in the opinion of the court likely to cause bodily harm. “Bodily harm,” of course, includes, any hurt or injury calculated to interfere with the health or comfort of the victim and, although it need not be permanent, it must be more than merely transient and trifling: see R. v. Donovan [1934] All E. R. Rep. 207, C. C. A.” Consent is therefore a Defence, however accused person did not posit or contend that complainant consented to his actions. The evidence on record rather suggests that accused person unleased his attack without the permission of complainant. Accused sought to allege some form of self-defense, but led no evidence to establish same. Prosecution’s witnesses rather confirmed that during the attack they heard complainant exclaiming to the effect that accused person was killing her. Pw3 Rebecca Konadu was asked under cross examination as follows; Q. If you heard unusual noise emanating from complainant’s house what exactly did you hear? A. I heard complainant shouting „ you are killing me, you are killing me‟. The exclamation of complainant points only to one conclusion which is the fact that complainant did not consent to the level of physical contact made to her body by accused person. I therefore find as established the second element of the offence. The last element seeks to ascertain whether the accused had the intention of causing complainant harm, pain, fear or annoyance. The intention of a person can only be ascertained from the surrounding circumstances of an event as his real thoughts cannot be known. In Witters v. United States, 106 F.2d 837, 840, 70 App. D. C. 316, 125 A. L. R. 1031 it was observed that, intention, “being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts”. In this case, the facts as established are that, accused person attempted to strike complainant with a cutlass, the impact was however greatly reduced by the intervention of a rubber bucket used by complainant as a defensive posture. There was nevertheless an impact on her shoulder. The question then is, was the impact caused inadvertently or by mistake? This question is answered in the negative. The evidence established the fact that not only did accused person use a cutlass to strike complainant, but having realized his act was unwholesome, he fled the scene. Pw3 stated that when she came out she saw accused person fleeing with the cutlass this was just moments before she heard complainant shouting „your want to kill me, you want to kill me‟. Accused person alleged that he fled because he was being chased by complainant and her family but there was no evidence to establish this. The evidence rather point to a guilty conscience by which accused having realized his folly attempted to escape. It is therefore the finding of the Court that accused person had the intention to cause some harm, pain, fear or injury to complainant. by virtue of this finding, Prosecution has established all the elements of the offence. Accused person is therefore guilty of the offence of assault. By virtue of Section 84, the offence of assault is a misdemeanor which naturally ought to attract a sentence that is not severe. However, in this particular case, this Court observes that, the facts as established point to more serious offences such as causing harm or even attempt to murder which Prosecution ought to have charged accused person with but for some strange reasons failed to do so. Had it not been for the present charge of assault, accused person would have walked scot free. Taking into consideration the manner in which the offence was committed, it is the considered view of the Court that, even though the offence is a misdemeanour, the accuse ought to be punished in such a manner that it would reflect the detestable nature of his conduct and also serve as a deterrent to others. For this reason, this Court deems it just to sentence accused person to serve a term of imprisonment of three years in hard labour. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE – GOASO 11