Republic Vrs Nyame [2023] GHACC 188 (6 January 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 06TH JANUARY 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B9/04/2022 THE REPUBLIC VS JONAH NYAME @ AKWASI JONAH ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION, PRESENT JUDGMENT On 19th March 2022, there was a misunderstanding between a certain woman and a certain man. The man later on that day at about 11:00pm went to the house of the woman with a machete to attack her but he was prevented by the dogs in the woman’s house; he managed to run away. Few minutes later, the man went to the woman’s mobile money shop and used 1 machete to damage the glass window of the container she operates her mobile money business in. The next day, the woman reported the conduct of the man to a grandmother of the two. The said grandmother of the two confronted the man over his actions. This offended the man and he went to the said mobile money shop with the machete and threatened to kill the said woman who operated that shop with the machete; she ran away. The woman lodged a complaint with the Police against the man. The Police preferred charges against the man hereinafter referred to as Accused based on the above facts. The following is the body of the charge sheet: COUNT ONE STATEMENT OF OFFENCE CAUSING UNLAWFUL DAMAGE CONTRARY TO SECTION 172(1)(b) OF THE CRIMINAL OFFENCES ACT, 1960(ACT 29) PARTICULARS OF OFFENCE JONAH NYAME @ AKWASI JONAH; AGED 18YEARS: FARMER AND MASON: For that you on the 20th day of March 2022 at about 12:30am, at Denkyira Nkroful in the Central Circuit and within the jurisdiction of this Court, did intentionally and unlawfully cause damage to a glass showcase window valued GH¢200.00, the property of one Rebecca Duah. COUNT TWO 2 STATEMENT OF OFFENCE THREAT OF DEATH; CONTRARY TO SECTION 75 OF THE CRIMINAL OFFENCES ACT, 1960(ACT 29) PARTICULARS OF OFFENCE JONAH NYAME @ AKWASI JONAH; AGED 18YEARS: FARMER AND MASON: For that you on the 20th day of March 2022 at about 12:30am, at Denkyira Nkroful in the Central Circuit and within the jurisdiction of this Court, did threaten one Rebecca Duah @ Maa Akua with machete and verbally with intent to put the said Rebecca Duah @ Maa Akua into fear of death. Section 172(1)(b) of Act 29 states: Whoever intentionally and unlawfully causes damage to any property by any means whatsoever— (b) to a value exceeding ¢1 million, shall be guilty of second- degree felony. Section 75 of Act 29 states: Whoever threatens any other person with death, with intent to put that person in fear of death, is guilty of a second degree felony. Accused pleaded GUILTY on Count One and NOT GUILTY on Count Two. The Court accordingly convicted Accused on Count One and deferred sentence of Accused on Count One till after hearing on Count Two. I will, at this stage, proceed with the analysis on Count Two. 3 Prosecution called two witnesses. The complainant testified as the first prosecution witness hereinafter referred to as PW1. The police detective who investigated this case also testified. According to PW1, Accused was a relative of hers. On 17th March 2022 at about 08:30am there was a quarrel between Accused and PW1’s sister called Tiwaa. Accused assaulted Tiwaa in the process. Later that day, Accused came to PW1’s shop and asked her to use her phone to make a call for him. PW1 used the opportunity of Accused being at her shop to advise him to stop assaulting and insulting other members of the family whenever there was some disagreement. PW1 further told Accused to report any problem to the family elders for them to help resolve rather than attacking others. Accused became offended and told PW1 to get away and that if he had not come to ask her to make a call for him, she wouldn’t have had the gut to advise him. Then on 19th March 2022 at about 11:50pm, somebody came to PW1’s house right behind her window with a machete. The dogs in PW1’s house barked at the person for about 20 minutes; the person scratched the ground with the machete to scare the dogs. PW1 recognised the voice of that person as that of Accused. PW1’s mother shouted “who are you” and Accused ran away towards PW1’s mobile money kiosk. Few minutes later, PW1 heard the noise of glass being smashed from where her said kiosk was. In the morning of 20th March 2022, PW1 went to her shop and found that the glass window of her said shop was damaged. PW1 took photographs and videos of the damaged glass with her phone and reported the case to the police. PW1 gave the photographs to the police. Subsequently, PW1 went to report Accused to her grandmother for her to ask Accused if he was the one who damaged the glass window. When the grandmother called Accused, he refused to come out of his room. Accused later came to PW1’s shop with a machete and PW1, alerted by one Abigail 4 Baidoo ran away. Since then anytime Accused met PW1 he would chase her with whatever he had in his hand – sometimes shovel, other times cutlass. After the investigator testified, the prosecution closed their case as on Count Two. The court in line with section 173 of the Criminal and Other Offences (Procedure) Act, 1960(Act 30) called on Accused to open his defence, if he so desired. The Court explained section 174(1) of Act 30/section 63 of NRCD 323 vis-a-vis Article 19(10) of the Constitution 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. 5 Accused said he would say nothing. Osei-Hwere J(as he then was) expatiated on section 75 of Act 29 in the case Behome v. The Republic [1979] GLR 112 at 123, to wit: “In the offence of threat of death the actus reus will consist in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will also consist in the realisation by the offender that his threats will produce that expectation.” In Zabrama v. Segbedzi [1991] 2 GLR 221 @ 246, Kpegah J.A. (as he then was) made the following statement on proof im law: “… a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true, and he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden.” In section 10 of the Evidence Act, ‘Burden of Persuasion’ is defined; subseciton 1 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. 6 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 7 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].” Accused may have gone berserk upon getting infuriated by certain occurrences, including certain actions of PW1. Accused’s excessive outburst culminated in the damage to the glass window of PW1’s shop which Accused takes responsibility for. Accused further reactions appear to be scary to PW1. PW1 felt threatened by the actions of Accused. But, did PW1 believe that Accused would actually kill her and Accused upon all that he did, did he realize that PW1 expected that he could kill her. I find the answer to both questions to be in the negative. In fact, Prosecution stated in the charge sheet that Accused also threatened PW1 verbally but they did not state the words used in the charge sheet; the evidence on record is also bereft of any clue as to any words used by Accused to so threaten PW1. A gaping hole is therefore created in the case of the prosecution as regards Count Two. A criminal case cannot be proved on a balance of probabilities as stated by Ollennu JSC in the Supreme Court judgment in the case of Oteng v. The State [1966] GLR 352 @ 354, SC as: “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.” Section 13(1) of 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. See also Fenuku v John - Teye [2001-2002] SCGLR 985. 8 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. Lord Sankey in Woolmington v. Director of Public Prosecutions, stated 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 9 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.” See also Dexter Johnson v. The Republic [2011] 2 SCGLR 601 @ 663 per Dotse JSC. I hold that the prosecution has failed to prove the guilt of Accused on Count Two. Accused is acquitted on Count 2. In sentencing Accused on Count 1, I have considered the extent of damage to the said shop. I have also considered the fact that Accused has accepted his fault and pleaded Guilty for causing unlawful damage. I would have sentenced him to six(6) months imprisonment but Article 14(6) of the Constitution, 1992 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 has been in lawful custody for about nine(9) months as he could not fulfil his bail conditions. Accused is hereby set free. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 06/01/2023 (SGD) 10