Republic Vrs Oberikwa [2023] GHACC 184 (8 February 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 08TH FEBRUARY 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B4/08/21 THE REPUBLIC VS DONKOR OBERIKWA @ NIGER ACCUSED PERSON ABSENT DETECTIVE CHIEF INSPECTOR SOLOMON SAKYIAMAH FOR PROSECUTION, PRESENT JUDGMENT Threat of death is a term given to a crime provided for in section 75 of Criminal Offences Act, 1960(Act 29). “Whoever threatens any other person with death, with intent to put that person in fear of death, is guilty of a second degree felony.” is the statement of that law as in Act 29. 1 In the case Behome v The Republic [1979] GLR 112 @ 123, Osei Hwere J(as he then was) expatiated on the said provision of the law, 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.” Accused person was charged with the above-mentioned offence for the accusation that he threatened the complainant herein with a cutlass with intent to put the complainant in fear of death. According to the prosecution, the incident occurred on 26th May 2021 at about 12:30pm in a town called Modaso. The first person who testified in this case will be called PW1 in this judgment; that person is the complainant herein. The police officer who investigated this case testified as the other prosecution witness; he will be called PW2. According to PW1, owing to an issue over a certain motorbike, Accused got offended and went to PW1’s house. There, Accused slashed PW1’s left arm with a cutlass making PW1 sustain a deep cut. PW1 bled profusely. PW1 was rushed to the hospital. Accused then attempted to flee with the said motorbike but some town folks arrested Accused and took the motorbike from him. PW1, however, did not report Accused to the police about the injury he sustained. On 26th May 2021, at about 12:30pm, Accused accosted PW1 with a cutlass and told PW1: “I will kill you, you made people attack me at Chirano”. PW1 sought the intervention Accused person’s father to avert the situation but Accused’s father could not control the situation. Information got to the Assemblyman of the area about the matter. The Assemblyman invited Accused and Complainant. Complainant went to the Assemblyman’s house and met Accused already there. Accused then said to Complainant: “I will kill you and 2 go on exile at[sic] Nigeria”. Accused reiterated that Complainant asked people to attack him(Accused) and beat him at Chirano. The Assemblyman tried to calm down the nerves of Accused but Accused did mind the Assemblyman. The Assemblyman then informed the District Commander of Diaso about the situation, on phone and Accused was subsequently arrested. In a criminal case, the prosecution is enjoined by law to lead credible and admissible evidence cogent enough to prove the guilt of an accused person beyond reasonable doubt. 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 (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].” 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.” 4 This principle was amplified by a statute, in the Evidence Act of 1975 i.e. NRCD 323 @ 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 Fenuku v John - Teye [2001-2002] SCGLR 985 Accused person jumped bail whilst he was subjecting complainant herein i.e. PW1 to cross- examination. After a number of adjournments, the court invoked Article 19(3)(a) of the Constitution 1992 and continued the trial in the absence of Accused. Article 19(3)(a) of the Constitution, 1992 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 court upon evaluating the evidence of Prosecution held that a case had been made out against Accused. See section 173 of Act 30. The court therefore called on Accused to open his defence, if he so desired. 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.” 5 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." Accused did not appear before the court to give any explanation in his defence. PW2 tendered in evidence the statement he said he took from Accused on caution for the purposes of investigations. The following is what, according to the police, Accused stated: “I am a miner. I live at Denkyira Modaso. It is true a fight ensued [between] myself[sic] and Complainant at Chirano. During that time I was inposesion[sic] of a cutlass. It was night around 7:30pm I went and asked Complainant why did he tell the bike owner he does not know anything about the bike. Complainant[sic] comments made me annoyed and upon that I rushed[sic] Complainant and he attacked me with a chair. He hit me three[sic] in the head. I entangled him and in the process the cutlass on me slashed Complainant. I even evoke[sic] curses to clear myself that I did not intended[sic] to slash Complainant. All this while the motor bike was in my posession[sic]. I sat on the bike and set off towards Modaso. On[sic] the people chased me and attacked me. They thought I was ran[sic] away with the motor bike. On 26/05/2021 at about 11:20am I was at a barbering shop at Modaso when the Assembly man came to picked[sic] on his motor bike to his house. The Assembly man told [me] Complainant has[sic] lodged a complaint that I have[sic] threatened him with cutlass. I told him I have[sic] not done that. I was then drunk. I told the Assembly man I am 6 drunk. In view of that, he should give me time for settlement. I left for my house. I did not threatened[sic] Complainant. Because I was drunk I do not remember whether I said those work[sic]. That I will kill Complainant.” In what PW2 tendered in evidence as the charge statement of Accused, this what Accused is said to have stated: “I rely on my formal[sic] statement given to Police on 27/05/2021 that I did not threatened[sic] Complainant. I did not have any intension[sic] of kill[sic] Complainant. If I made such comment I was intoxicated with alcohol.” Section 28(1) of Act 29 states: Save as provided in this section, intoxication is not a defence to any criminal charge. Subsection 2 of section 28 of the said Act states: Intoxication is a defence to a criminal charge if by reason thereof a person charged at the time of the act complained of did not know that the act was wrong or did not know what he is was doing and— (a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or (b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act. Subsections 3 and 4 state: (3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) the accused person shall be discharged, and in case falling under paragraph (b) the special verdict provided for by the Criminal Procedure Code in the case of insanity shall apply. 7 (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. As none of the conditions mentioned in subsection 2 of section 28 of Act 29 supra prevails in this matter, subsections 3 and 4 cannot be applied to this case. I find from the entire evidence on record that Accused knew that his actions would put Complainant herein in fear of death – that complainant felt that if Accused got the opportunity he could kill him(Complainant). Accused therefore had the intent or mens rea to commit such a crime. I also find that Accused succeeded in creating that fear in the mind of the complainant. Therefore, the actus reus aspect of the crime was accomplished. I hereby pronounce Accused guilty on the charge against him. Accused is convicted accordingly. In sentencing him, I have considered the gravity of the offence as espoused by the evidence on record. I have also taken into consideration the disrespect shown by Accused by refusing or failing to appear before the court for continuation of the trial without any word to the court as regards his absence. Accused is hereby sentenced to five(5) years imprisonment in hard labour. (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 08/02/2023 8