Republic Vrs Hene [2023] GHACC 294 (3 March 2023)

1 IN THE CIRCUIT COURT HELD AT MPRAESO ON FRIDAY 3RD DAY OF MARCH 2023 BEFORE HIS HONOUR STEPHEN KUMI, ESQ CIRCUIT JUDGE. CASE NO: B4 /11/ 2022. THE REPUBLIC V KOFI HENE J U D G M E N T: On 7th April, 2022, the Accused- Kofi Hene, was charged with and put before the court with one count each of the following offences: a. Assault contrary to section 84 of the Criminal Offences Act, 1960, Act 29. b. Causing unlawful damage contrary to section 172 of Act 29/1960. The essence of the charges against the Accused- as per the facts supplied by the prosecution- is that the Accused person herein on the 30th day of March, 2022, at Emesiaso, a suburb of Bepong, and during a disagreement with the Complainant- Akua Korang- used a cutlass to beat her up; after which the Accused caused damage to a rubber or plastic barrel of the Complainant. A report was made to the police leading to the arrest of the Accused. At the end of police investigations, the Accused was charged and arraigned before this court on the above-mentioned charges. It is instructive to state that the Accused upon his arraignment, pleaded not guilty to the two charges against him; joining issues with the prosecution and thus necessitating a trial for the prosecution to prove his guilt beyond reasonable doubt. EVIDENCE/CASE OF THE PROSECUTION. The prosecution called two ( 2 ) witnesses in their attempt to discharge the Constitutional and statutory duty of proving the guilt of the Accused beyond reasonable doubt. This accords with the fundamental rule in all criminal prosecution which is stated under Article 19 (2) (c) of the 1992 Constitution as follows: “(2) A person charged with criminal offence shall (c ) be presumed innocent until he is proved or has pleaded guilty”. 2 However, before I go on to state the evidence adduced at the trial, I must indicate that based on the facts of the case and the relationship between the Accused and the Complainant as neighbours, the court proposed to and gave leave to them to attempt an amicable settlement of their differences under the aegis of the court connected Alternative Dispute Resolution ( A. D. R. ). However, they failed to settle; necessitating the trial after all. The first prosecution witness was Akua Korang. According to her, on 30th March, 2022, she returned home from town and just as she was about to eat, she heard the Accused on top of his voice saying that he was going to slash her like palm fruits. She then saw that the Accused was holding a cutlass; coming towards her house. She tried to talk him out of any intended action but before he knew it, the Accused had rushed on her with the cutlass and attempted to slash her with it. She immediately got up from a chair she was sitting on, which caused the Accused to drop the cutlass. According to her, the Accused quickly took the cutlass again and threatened to slash her to death; however because she is taller than the Accused, the cutlass rather landed on her collar bone. She added that the Accused then used the cutlass to hit her body on multiple occasions, which caused her to shout for help, which caused her husband to come to her rescue. In the process, the Accused bit the hands and chest of her husband. It is her further testimony that the Accused next used the cutlass to destroy her plastic barrel which contained some quantity of water. PW2 is Kwame Nyarko; husband of the PW1. He told the court that around the time of the incident, he had gone into some bushes around their house; and while there, he heard the shouts of the PW1 for him to come to her aid. He rushed to their house to find the Accused using a cutlass to lash at the PW1; and succeeded in rescuing the PW1 from the Accused. He added that in the attempt to rescue the PW1, the Accused succeeded in biting his hands and chest. He also stated that the Accused subsequently caused damage to a rubber or plastic barrel of the PW1 at the house. The last prosecution witness was Detective Inspector Samuel Frempong, the police investigator stationed with the Bepong police. His testimony or evidence was essentially a summary of what the previous witnesses of the prosecution have stated above; in terms of the complaint lodged against the accused persons, the statements he 3 took from the witnesses, cautioning the accused persons, visiting the crime scene and the eventual order from his superior to charge the accused person before this court. Meanwhile, as part of his duties in the box, the police investigator had also tendered into evidence the cautioned and charge statements of the Accused; marked as Exhibits A and A1 respectively; as well as a picture of the allegedly damaged plastic barrel as Exhibit B and an endorsed police medical form on the PW1 as Exhibit C. CASE OF THE ACCUSED OR DEFENCE: At the close of case of the prosecution, I determined as the trial judge and pursuant to section 174 of the Criminal Procedure Act, 1960, Act 30, that the case of the prosecution has succeeded to raise or establish a prima facie against the accused person to warrant answers or explanation from him to avoid a ruling of the court against him on the charge or issue. Based on that, the accused was asked to open his defence pursuant to section 174 of Act 30/1960 (supra). In the case of Gligah & Atiso v The Republic (2010) SCGLR 870 @879, the Supreme Court of Ghana held, inter alia, as follows: “In other words whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused is called upon to give his side of the story”. The Accused person in his sworn defence denied the offences. He however added that he was sorry and asked to be forgiven, promising not to do that again as he was suffering in police custody. That was all he said and closed his defence without calling a witness. Meanwhile, as the trial judge, it was required of me to also consider every available piece of defence in favour of the Accused. In that regard, I looked at the cautioned and charge statements of the Accused that had been admitted into the record. In the cautioned statement especially, the Accused gave a different version of the story. He had stated that on the day in question, while he was at home, he overheard the PW2 accusing him of being fond of stealing his palm wine. He took offence and went to confront the PW2 about the basis for the allegation; which led to some quarrel between them during which the PW2 rather beat him up. It is the defence of the Accused that it was in the process of defending himself that the cutlass hit the 4 PW1 and also caused damage to the plastic barrel. Accused did not call a witness and closed his defence. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW On the basis of the whole of the evidence before the court, at the end of the trial, and including the defence or explanations raised by the Accused herein, it is my considered opinion that the only issue raised for determination by the court are: 1. Whether or not the prosecution succeeded to prove beyond reasonable doubt the two charges against the Accused. The position of the law, both under the Common Law and the 1992 Constitution, is that the prosecution assumes the onus of proof to prove the guilt of an accused beyond reasonable doubt. See Article 19 ( 2 ) ( c ) of the 1992 Constitution ( supra ). Meanwhile, statutorily, under section 15 of the Evidence Act, 1975, NRCD 323, the law is that; “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. Similarly in the popular English criminal case of Woolmington v DPP [1935] AC 462, Lord Sankey (as he then was) stated or delivered of himself as follows in these timeless words: “Throughout the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to ….the defence of insanity and subject also to any statutory exception…… 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”. The prosecution in this case was therefore required to prove with credible evidence and beyond reasonable doubt that the accused, Stephen Antwi, committed the alleged crimes . In spite of this onerous burden of proof on the prosecution, the law is that the accused or defence, in a criminal trial does not generally assume any burden of proof. In the same Woolmington v DPP case (supra), Lord Sankey (as he then was) very well summarized the extent of the onus of proof on the accused or defence as follows: “….whiles the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not 5 bound to satisfy the jury of his innocence” See also the case of Commissioner of Police v Antwi [1961] GLR 408, SC, where it was held inter alia that an accused person is not required to prove anything, save to and at best to merely raise a reasonable doubt as to his guilt. In addition, I will also carefully consider the defence or explanations of the Accused as required of me as the trial judge as was held in the case of Atta v Commissioner of Police ( 1963 ) 2 GLR 460, SC. EVALUATION OF THE EVIDENCE, FINDINGS AND APPLICATION OF THE LAW: I will determine the two charges jointly as they flow from each other on the facts; albeit looking out of for their distinctive ingredients or elements. The first charge is assault contrary to section 84 of the Act 29/1960 ( supra ). In terms of the assault charge as per the count 2, section 84 of the Act 29, 1960 (supra) creates the offence of assault as “a person who unlawfully assaults another person commits a misdemeanor”. Section 85 of Act 29/1960, with the heading “different kinds of assault”, states that for the purposes of section 84 of Act 29/1960 ( supra ), “assault” includes; a. Assault and battery. b. Assault without actual battery. c. Imprisonment. Flowing from the above, section 86 of the same Act 29/1960 (supra) defines assault together with battery as follows: “A person makes an assault and battery on another person if, without the other one’s consent, and with the intention of causing harm, pain or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person”. I have found it also appropriate to refer to section 87 ( 1 ) of Act 29/1960 which reads that; “A person makes an assault without actual battery on another person, if by any act apparently done in commencement of an assault and battery, he intentionaly puts the other person in fear of an instant assault and battery.”. This definition is made subject to the provision that; “a person can make an assault, within the meaning of this section, by moving, or by causing a person, animal, or matter to move, towards another person, although that person , or the other person, animal, or matter, is not yet within a distance from the other person that an assault 6 and battery can be made”. Meanwhile, with the offence of causing unlawful damage, the law under section 172 (1 ) of the Act 29/1960 ( supra ) essentially requires that for a person or an accused to be guilty for that offence, the evidence should show that the accused caused the damage intentionally and unlawfully. See the case of Yeboah and Another v The Republic (1999-2000 ) 1 GLR 149, CA, per Gbadegbe J (as he then was ). With the benefit of the above discussion on the definition and elements of assault and causing unlawful damage, the question to be asked at this juncture is whether the prosecution succeeded to prove the counts 1 and 2 against the named accused person. On the facts and evidence, I find the evidence or version of the prosecution more credible, acceptable and probable than that of the version given by the Accused. The court did not find the explanation or defence of the Accused not only unbelievable but not reasonably probable. This is because the court finds that on the evidence, it was the Accused who in an angry mood went to the house of the PW1 and PW2 to originally confront the PW1. I find that the Accused went with a cutlass to confront the PW1. Even from the defence or evidence of the Accused, he went to confront the PW2 in an angry mood and had a cutlass with him. I find that the Accused was at all the material times the aggressor and that he purposefully went to their house with a cutlass. I find that the Accused attacked or sit the PW1 with the cutlass in order to cause her harm or pain or fear, same which was done without the consent of the PW1. I find that the Accused thereafter and around that same time used the cutlass to destroy or damage the plastic barrel of the PW1 at the house. The court finds that the Accused used the cutlass to hit the body of the PW1 and also caused damage to the plastic barrel without any justification or valid defence in law. In that even if the PW2 made some bad comments about him including accusing his falsely, same was not a valid and justifiable excuse to have entitled him to use force or harm on the PW1. See section 31 of the Act 29/1960 ( supra ). In the light of the above findings and conclusions, the court holds that prosecution have succeeded to prove beyond reasonable doubt that the Accused person on the date and place in question, assaulted the PW1 by using a cutlass to strike her body multiple times and also used the cutlass to destroy her plastic barrel, both without her consent and without any lawful justification. The Accused is accused convicted and found guilty on the two counts. SENTENCING: 7 Both offences are misdemeanours; which carry a maximum of three years imprisonment each. Towards the sentencing, I have considered that the convict is a first offender, a young man and he has also spent about 7 to 8 months in lawful police custody after the failed to find sureties for his bail. He also looks frail and sick. I find no need to impose a custodial sentence. He has also promised from the dock to relocate from the vicinity to another place. In the light of the foregoing, the court hereby sentences the convict to sign a bond to be of good behaviour for a period of 24 months; and in default serve 6 months I.H.L. SGD: STEPHEN KUMI, ESQ CIRCUIT JUDGE.