Republic Vrs Amoako [2023] GHACC 191 (1 February 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 1ST FEBRUARY 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B10/04/2023 THE REPUBLIC VS KWAKU AMOAKO @ BOSS ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION, PRESENT The police executing their mandate under the law gathered the following facts: JUDGMENT “The complainant… is a trader and resident of Ayanfuri. Accused… is a driver and also resides at Ayanfuri. On 29th day of October, 2022 the complainant needed a drink to refresh his body so that about 0030 hours the complainant went to a provision store at Kyeremekrom which is a suburb of Ayanfuri to buy a bottle of Lucozade. While 1 buying the drink the accused person also came to the store but from behind the complainant and hit the back of the complainant with his hand. The complainant turned to see who had hit him from behind, and he saw that it was the accused person. Before the complainant could say a word, the accused person drew a cutlass which had been concealed in his trousers, the accused person slashed the left arm of the complainant and he ran away. The accused person went into hiding since 29th day of October, 2022 until 4th day of November, 2022 when Assistant Superintendent of Police ASP/Mr. Ernest Agyekum, the District Police commander of Diaso acting on intelligence led four Police men to the hideout of the accused person and arrested him. Police conducted a search in the room of the accused at Ayanfuri and a cutlass stained with blood which the accused used to slash the complainant, two keypad mobile phones and a rubber pistol were retrieved. During investigation the accused person made a confession statement that he used the cutlass to slash the left arm of the complainant because the complainant claimed he had spiritual charms which protect him...” Based on the above facts was Accused arraigned before this court, charged as follows: COUNT ONE STATEMENT OF OFFENCE CARRYING OFFENSIVE WEAPON CONTRARY TO SECTION 206(1) OF ACT 29/60[sic] PARTICULARS OF OFFENCE KWAKU AMOAKO @ BOSS [AGED] 26 YEARS, DRIVER: For that you on 29/10/2022 at about 11:00pm at Ayanfuri in the Central Circuit and within the jurisdiction of this court, without lawful authority had in your possession an offensive weapon to wit; cutlass. 2 COUNT TWO STATEMENT OF OFFENCE CAUSING HARM CONTRARY TO SECTION 69 OF ACT 29/60[sic] PARTICULARS OF OFFENCE KWAKU AMOAKO @ BOSS [AGED] 26 YEARS, DRIVER: For that you on 29/10/2022 at about 11:00pm at Ayanfuri in the Central Circuit and within the jurisdiction of this court caused harm to [one] Douglas Owusu. Section 206(1) of Act 29 states: Any person who, without lawful authority the proof where, of shall lie on him, has with him in any public place any offensive weapon shall be guilty of a misdemeanour. Section 69 of Act 29 states: Whoever intentionally and unlawfully causes harm to any person shall be guilty of second degree felony. The prosecution called two witnesses – the complainant and the investigator. They will be referred to hereinafter as PW1 and PW2 respectively. PW1 expatiated on the aspects of the facts above that are supposedly in his personal knowledge, in his evidence before the court. According to PW1, on 29th October 2022 at about 12:30am, he went to one Sister Yaa’s store in an endeavour to buy lucozade to drink. Whilst paying for th drink, Acccused hit PW1 from behind. PW1 turned round and saw Accused who then warned PW1 that he should be careful. Accused then pulled a cutlass from his the trousers he (Accused) was wearing and used it to cut PW1’s left hand and blood oozed out. Afterwards, accused boarded a motorcycle and vamoosed. PW1 used a shirt to tie the wound in a bid to restrain the flow of blood. PW1 tendered in evidence a photograph of the said wound. 3 PW2 when he testified tendered in evidence a medical report on the said injury. The report report reads: “Client reported to the hospital with the complaints of swelling of the left arm and deep laceration on the mid forearm as a result of Assault and Battery that occurred on 30/10/022. On further assessment he sustained deep intramuscular laceration of the left mid arm. Wound margins widely opened with mild sloughs covering wound surface. However, client Denied[sic] that the wound be sutured and therefore resorted to alternative treatment.” After the close of Prosecution’s case, the court held in accordance with section 173 of Act 30 that the prosecution had made out a case against Accused. The court therefore called on him to open his defence, if he so desired. The court then explained section 174(1) of Act 30/ section 63 of NRCD 323 vis-à-vis Article 19(10) of the Constitution 1992. Accused opted to give a statemnt from the dock. This is what Accused said: “What happened was a mishap. I have wronged complainant. I will not do that again. I pray for forgiveness by complainant and the court. I will bear all the costs incurred by complainant on the injury he suffered. I have nothing to say.” Accused failed to put up any defence. The court is therefore left with only the evidence adduced by the prosecution to decide this case. 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 4 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 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 5 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.". Though Accused failed to provide any answer to the prosecution’s claims by way of adducing evidence, the court is enjoined by law to establish the guilt of accused by considering all the evidence on record, beyond reasonable doubt. In Woolmington v. DPP, Lord Sankey 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 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 6 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. 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 criminal case the prosecution cannot obtain conviction upon mere probabilities.” This principle found space 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. In the statement taken from Accused by the police for the purposes of investigation as tendered in evidence by PW2, without objection from Accused, Accused stated as follows: “On 18/10/2022 about 9-10pm the day was Friday and a friend of mine called C2 was celebrating his birthday at a drinking spot near the new Ayanfuri market under construction. The complainant who was then riding a motor cycle use[sic] the motor cycle to knock down C2 who was celebrating his birthday. The complainant went and stood in the middle of the Ayanfuri – Wassa Akropong highway and was bragging that anyone who claims[sic] to be a real man should come and attack him. I went behind the drinking spot and picked a cutlass and the complainant stretched his hand that if I am a man I should cut his hand, I used the cutlass to cut his hand and blood was oozing from his left hand. I was drank[sic] at the time of the incident. The complainant claimed he had spiritual charms which make[sic] him immune[sic] to cutlass harm and 7 that if I attack[sic] him with the cutlass and it does[sic] not harm him, I will[sic] see what he will[sic]do to me, and that[sic] why I also used it to harm the complainant.” Accused person said he was drunk at the time he inflicted that wound on PW1. 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. (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. 8 Accused person appears to be saying that the complainant provoked him to test complainant’s spiritual prowess. That cannot be a defence for Accused because: Section 11(1), (2) and (3) of Act 29 state: (1) If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this Code, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event. (2) If a person does an act voluntarily, believing that it will probably cause or contribute to cause an event, he intends to cause that event, within the meaning of this Code, although he does not do the act for the purpose of causing or of contributing to cause the event. (3) If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event until it is shown that he believed that the act would probably not cause or contribute to cause the event, or that he did not intend to cause or contribute to it. Looking at the evidence adduced by the prosecution, I find irregularities as regards the time and date the offence took place. In the facts the time is given as ‘about 0030hours’ and in the evidence of PW1 it is ‘about12:30am’; I understand the two times written in different forms to be the same or about the same. But in the particulars of offence as on the charge sheet, the time is given as “about 11:00pm’. In the medical report on the injury of Accused as tendered in evidence by PW2, it is stated in the endorsement of the medical officer that the incident took place on 30th October 2022 but in the particulars of the offence and the facts, it is stated that it took place on 29th October 2022. In the evidence of PW1, the date of the incident is given as 29th October 2022. PW2 stated in his evidence-in-chief that PW1 went to buy the 9 lucodzade at about 12midnight on 29th October 2022. A can of worms is thus created about the time the incident took place. An investigative machinery in all sagacity must be explicit as regards date and time, being mindful of the standard required of them as regards proof in criminal cases. Having made the above observation, however, I need not belabour the point further, because Accused has thrown in the towel and on all the evidence, I find Accused guilty of the charges against him. Accused person is hereby convicted on each count. In sentencing him, I consider that he appears contrite for his action. I also consider that Accused person said to the court that he would pay the expenses incurred by the complainant on the injury he sustained. I order Accused to pay GH¢3000.00 to complainant as compensation. See section 148 of Act 30. I find, considering the entire circumstances, of the case Accused deserves to be incarcerated for six(6) months to teach him a lesson for him to desist from such behaviour and serve as a lesson and deterrent to others. But, the records show that Accused has been in lawful custody for about three months. 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 person is hereby sentenced to three(3) months imprisonment on each count with effect from today – 1st February 2023. The sentences are to run concurrently. HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE (SGD) 10 01/02/2023 11