Republic Vrs Nyarkoh [2023] GHADC 301 (16 February 2023)

1 IN THE DISTRICT COURT AGONA SWEDRU - A.D. 2023 BEFORE HIS HONOUR ISAAC APEATU Court Case No 255/2023 16th February, 2023 THE REPUBLIC Versus BENJAMIN NYARKOH JUDGMENT The accused was arraigned before this court charged with one count of Causing Harm contrary to section 69 of the Criminal Code, 1960 (Act 29). He pleaded not guilty to the charge. Following from the plea, the case was slated for evidence to be taken which has culminated in this judgment. The facts of this case as contained in the charge sheet and as narrated by the prosecution was that Complainant Richard Fenyi is a farmer. Accused Benjamin Nyarkoh is a driver. Both live at Agona Bobikuma. On 12/01/2023 about 9:00pm, the complainant went to drink at a drinking spot located along the Koduabe road. While there, the accused approached the complainant to buy him a bottle of club beer but he declined and offered to buy him 'Akpeteshie' or local dry gin. Accused took offence and threatened to stab the complainant if he failed to grant him his request. The complainant later left the place for fear of being harmed but the accused went after him and picked a quarrel with him. In the process, the accused pulled out a pair of scissors from his pocket and stabbed the complainant on his left hand and went into hiding. A report was made to Police and 2 Police Medical Report Form was issued to the complainant to seek medical attention. The Police Medical Report Form was returned dully endorsed by the Medical Officer. On 24/01/2023, the accused was spotted in town and was arrested for investigations, he was charged with the offence and arraigned before this court. Because the accused herein did not plead guilty to the charges, the case had to proceed to trial to determine the guilt or otherwise of the accused persons. The law has been that a person who is accused of having committed an offence is presumed innocent until he has been proven guilty or he has voluntarily pleaded guilty to the charge. This is a constitutional injunction provided for by Article 19(2) (c) of the 1992 Constitution of Ghana. The burden of proof that such an accused person is guilty in a criminal case is therefore on the prosecution at all material times. It is on the prosecution to introduce sufficient evidence to establish the guilt of the accused in respect of the charges levelled against him. It has been held that the failure to discharge that burden should lead to the acquittal of the accused. And this proof required of the prosecution is said to be proof beyond reasonable doubt. See Oteng v The State [1966] GLR 352. So while the prosecution is required at all times to prove the guilt of the accused beyond reasonable doubt, in the converse, the accused person is not required to prove anything. All that is required of him as an accused person, is to raise a reasonable doubt as to his guilt. See Commissioner of Police v Antwi [1961] GLR 408. It has also been held that it is not enough for the court to hold that it does not believe the defence of the accused and then proceed to convict him. Short of disbelieving the defence, the court has a duty to consider whether the defence is reasonably true or reasonably probable. Now to the evidence led by the prosecution in proof of the charge leveled against the accused persons. In proof of the charge stated above and in line with their mandate to prove their case, the prosecution called the complainant, one Richard Fenyi as PW1. Following him was the investigator as PW2. The case of the prosecution as evidenced 3 from the witnesses they called is that on the 12th day of January 2023, PW1 went to drink at a drinking spot located at Upper Bobikuma. He bought a dry gin or Akpeteshie. As he was about to drink, the accused approached him to buy him a bottle of beer. PW1 declined on the ground that he was drinking a local gin and did not expect accused to ask him to buy him a beer. PW1 offered to buy accused Akpeteshie if he wanted. Accused insisted that he wanted a bottle of beer. PW1 took his drink and left the spot. Accused followed him to the roadside and threatened to stab him if he failed to grant his request. PW1 became frightened and tried to leave the scene. Accused however provoked him with a quarrel. In the process, he pulled out a pair of scissors from his pocket and stabbed PW1 on the left hand and bolted. The above is the sum of the evidence led by the prosecution. I have considered all the available evidence led by the prosecution and shall make copious references to them in the course of the evaluation of the evidence. After calling the above witnesses, the prosecution closed its case. Accused was called to open his defence. He gave evidence in his defence but did not call any witnesses. The nub of the defence by the accused was that on the 12th January, 2023, he went with a friend to a spot. He saw PW1 holding a pair of trousers offering it for sale. He mentioned the price as GH¢20. He said he offered to sell it at a higher price. As he was taking it to sell it, PW1 promised him that if he could sell it for more than the GH¢20, the residue was for him. That he managed to sell the trouser for GH¢50 and gave the money to PW1. After collecting the money, PW1 went to a spot and bought a drink. He had a pair of scissors in his hand which he was going to use to cut the drink. That he (accused) demanded for his share of the money. PW1 however pushed him away. It turned into a scuffle during which PW1 pulled the scissors he held. That he (accused) disarmed PW1 but in the process, the scissors cut him. He denied as untrue the allegation that he asked PW1 to order a beer for him. 4 In his caution statement taken down by the police on the 30th day of January 2023, the accused had stated that the allegations leveled against him were false. According to him, on 12th January 2023, he was in a drinking spot when PW1 came with a trouser he was offering for sale. That PW1 asked him to buy it for GH¢20. That upon inspection, he realized that the trouser could sell for more than that. He thus asked PW1 to exercise patience so he could get someone to buy it. He took the trouser and managed to sell it for GH¢50. PW1 then collected the money. That when he demanded for his share of the money, PW1 refused. He followed PW1 to a drinking spot where he had entered. He demanded that he gave him his share. PW1 hit his chest. He also hit his chest. PW1 fell to the ground. It resulted in a quarrel. PW1 had a pair of scissors in hand which he was using to cut a drink. In the course of the scuffle, he attempted to pull himself free of the grips of PW1. As he did that, the knife cut PW1’s hand. From the facts and evidence above, the issues that call for determination in this case are; 1. Whether or not PW1 has suffered harm. 2. Whether or not the accused caused the harm to PW1. 3. Whether or not the harm accused caused to PW1 was unlawful. 4. Whether or not the accused intended to cause the unlawful harm. 5. Whether or not the prosecution was able to prove the case against the accused beyond reasonable doubt. Having set down the above issues for determination, I now proceed to evaluate the evidence led by the prosecution to determine the guilt or otherwise of the accused. The first issue to settle is whether or not PW1 suffered harm. It is not in doubt that PW1 suffered injury as a result of the scuffle on the 12th January, 2023. From the evidence, i.e. Exhibit C, the gaping wound on the arm of PW1 is clear. The medical report which was tendered in evidence as Exhibit E vividly described PW1’s situation. The Medical Officer 5 at the Bobikuma Health Center who examined the complainant stated that there was a deep wound on the left arm of PW1. There was therefore harm suffered by PW1. If PW1 suffered harm, was the harm caused by accused? As stated above in the facts as presented by the prosecution, it is their case that the accused who was in the same drinking spot with PW1 picked up a quarrel with him and in the process, stabbed the left arm of PW1 with a pair of scissors he had in his pocket. A report was made to the police leading to the arrest of accused. The above is the allegation presented by the prosecution against the accused in the facts. In law, to cause, is to bring about an event or state of affairs by one’s own act or endeavour. Hart and Honore in their Book, Causation in the Law posit that on a primary level, human beings bring about desired alterations in objects by making appropriate movements of their bodies and these, they say, are captured by transitive verbs like push, pull, bend, twist, break etc. And when such events happen, they bring about secondary effects. The law then looks to find the one who set the chain of events in motion bringing about the secondary effects. And to establish the responsibility of the accused for the actus reus, it must be proved that the accused caused or contributed to cause the prohibited event. Therefore, if no connection can be established between the act of the accused and the ensuing event, the accused will be exculpated from liability. By section 13(7) of Act 29, it is a question of fact whether an event is fairly and reasonably to be ascribed to a person’s act to have been caused by that act. In this case, it is not in doubt that the harm suffered by PW1 was caused by the accused. Accused did not deny that he caused the injury to PW1. I find from the evidence that when accused met PW1 at the drinking spot, there was a scuffle between them over what appears to be a demand by accused that PW1 should buy him a bottle of beer as opposed to a glass of Akpeteshie. In the melee, the accused claims that PW1 pushed his chest. He 6 also pushed PW1 but PW1 fell down. At the time PW1 had in his possession a pair of scissors. PW1 removed the scissors to attack him but he managed to disarm him and in the process, the scissors stabbed the left arm of PW1. So for the fact of the cause of the injury, it is settled that accused caused it. Accused cannot deny that he is responsible for the harm caused to PW1. There was no intervention from any third party or event that led to the cut on the arm of PW1. It was the effects of his acts that led to the harm caused to PW1. The next issue is to find out whether the harm caused to PW1 by the accused herein was unlawful? For the prosecution to be able to succeed on the charge against the accused, they have to prove not only that there was harm caused to the victim but that the harm caused to the victim was unlawful. What is unlawful in the circumstances is a matter of law. Hence Section 76 of Act 29 defines unlawful harm as follows: “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter 1 of this Part.” The justifications are dealt with in sections 30, 31 and 32 of the Criminal Code (Act 29). I do not think it is necessary to state in extenso those justifications. But when the definition of unlawful harm is applied for analysis with the offence under section 69 of Act 29, we have the following possible explanation: A person causes harm under section 69 when that person intentionally or negligently causes that harm without any justification known under the law. See the case of Abam v The Republic [1967] GLR 699. Thus unless the harm inflicted on the complainant can be justified under sections 30, 31 and 32 of Act 29, it will be unlawful. Unlawful harm therefore means an injury or hurt caused to a person against the law of the land. The evidence in this case establishes that the accused used a pair of scissors he had in his possession to stab PW1 during the melee that ensued between them. Claims by the accused that it was PW1 who had the pair of scissors in his hand have not been proven. 7 Also his assertion that the pair of scissors stabbed PW1 inadvertently is not true. From the evidence, he had the scissors in his possession. When he confronted PW1 over his share of the price from the sale of the trouser and PW1 refused to give him any, he attacked him and threatened to stab him with the scissors if he did not give him his share. Even when PW1 left the spot and went out, accused followed him and stabbed him as retribution for his failure to give him a share of the money. From the evidence, I find that the accused with intent to cause harm did stab PW1 with the pair of scissors. And I see no justification under the circumstances for causing the injury to PW1. I hold that the accused caused unlawful harm to PW1. I move now to determine whether or not the accused intended to cause the unlawful harm. In the case of Brobbey v The Republic [1982-83] GLR 608, it was held that the harm complained of must not only have been intentional but also unlawful. So that if the accused caused the harm to PW1 but he did it without the requisite intent, the offence is not made out and the result is that the prosecution will be deemed not to have proved the offence beyond reasonable doubt. It has been said that it is often difficult if not impossible to search the mind of a man to ascertain the intent with which he did an act. So in most cases where it is necessary to prove a man’s intention, evidence of overt acts is considered sufficient. In other words, the intention with which a man did an act can usually be determined by inference from surrounding circumstances. In other cases, the Courts judge the previous intentions of a man by his subsequent conduct. In this case, the accused inflicted the unlawful harm being fully aware that the harm was likely to cause the injury sustained by PW1. From the evidence, the accused used a pair of scissors to stab the left arm of PW1. Accused clearly intended his actions to have the effect it did. He stabbed the arm of PW1 knowing very well that such a stab would cause serious injury to him. I think that he ought to have contemplated that if he stabbed PW1, he was likely to suffer injury. The accused cannot be heard to say that the injury 8 sustained by PW1 was the result of an accident or that he did not intend it. A person is presumed to know the probable consequences of his actions. Once he chose to use no other implement than a pair of scissors to stab his adversary in an unlawful fight or scuffle, and the adversary sustained injury, he is deemed to have intended the injury PW1 sustained. From the foregoing, I hold that the accused intended to cause the unlawful harm to PW1. I am of the firm conviction that the prosecution was able to prove the case against the accused beyond reasonable doubt. They were able to prove that the complainant has been harmed; that the harm was caused by the accused; that the accused caused the harm unlawfully; and that the unlawful harm was caused intentionally. Accused is hereby pronounced guilty of the offence of Causing Harm contrary to section 69 of Act 29. He is convicted of the offence of Causing Unlawful Harm. I have listened to the submissions made by the accused in mitigation of the sentence and that made by the prosecution in aggravation of same. Based on the circumstances of the case, I sentence the accused to Eighteen (18) months’ imprisonment. He shall further compensate the complainant with an amount of GH¢2,000. HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE