Republic Vrs Thompson [2023] GHADC 528 (9 March 2023)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 9TH OF MARCH, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B3/19/21 THE REPUBLIC VRS FIADUKO ADUKPO THOMPSON JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused person was arraigned before this Court on 25th January, 2021 on a charge of causing harm contrary to Section 69 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS The facts as attached by the Prosecution stated that the complainant Believer Agbitor is a farmer and a resident of Dalikorpe while the accused person is also a farmer and a resident of Dzodze-Kpelikorpe. 1 | P a g e The prosecution stated that, there is a land dispute between the parties, which suit is pending before this court. The Prosecution stated that on the 5th of August, 2020 at about 8:30am the complainant went to the said land to harvest his corn when to his dismay the accused confronted him and hit his right thigh with a stick. The Prosecution stated that the complaint had a structure on his leg and the accused took his cutlass and went away with it, leaving the complainant screaming for his ten (10) years old son who heard him to trace him to the farm and saw him on the floor. The prosecution stated that, with the assistance of others the complainant was carried together with the piece of stick as evidence to the police station to make a report. The prosecution stated that, the complainant was issued with a medical form to attend hospital and that on the 6th August, 2020 he was visited at the emergency ward of the St. Anthony Hospital where he was receiving treatment with his right leg bandaged. The prosecution stated that on 14th December, 2020, the complainant submitted his medical report to police duly endorsed and the finding for his condition was given as fracture of distal 3rd of the right femur. The prosecution stated that, the accused who later reported himself to the police, denied the offence in his cautioned statement and stated that, the complainant rather came to harvest his corn and when he confronted him, he became offended and wanted to attack him with a cutlass but he blocked it with a stick he picked from the ground. 2 | P a g e PLEA OF ACCUSED The accused person pleaded not guilty to the offence when the charge and particulars of the offences were read and interpreted to him and was admitted to bail. Witness statements of witnesses of prosecution together with the charge statement and investigation caution statement of the accused person were filed by the prosecution together with a medical report and a photograph evidencing the injured state of the complainant and served on the accused for trial. THE CASE OF PROSECUTION The prosecution called two witnesses comprising the complainant and the police investigator to prove his case. The prosecution filed witness statement for one Ellen Agbuitor who was intended to be called as PW2 but later indicated to the court that he was no longer relying on his evidence. In his evidence to the Court, the complainant, first prosecution witness stated that, on the 5th of August, at about 8:30am he was in the farm harvesting corn when the accused approached him and suddenly hit his right thigh with a stick as a result of which he fell down screaming and the accused took his cutlass away. PW1 stated that his son Ellen Agbuitor age ten (10) years, heard him screaming and traced him to the farm. 3 | P a g e PW1 stated further that together with other people he was sent to the police station to make a case and was later admitted at the St. Anthony Hospital. CASE OF ACCUSED PERSON The accused denied the charge and stated that on the 5th of August, 2020 he was rather in his farm when the complainant came and started harvesting his fresh corn. The accused stated that when he questioned the complainant, he advanced towards him with a cutlass in hand and attempted to harm him but he blocked the cutlass with a stick he picked from the ground and it fell. The accused stated that, he picked the cutlass and went to make a report to the police but the complainant who was knocked by a motorbike prior to that day, went to the police to make a counter complaint that he broke his leg. THE LAW Burden of Proof 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 will find the existence of the facts beyond reasonable doubt. See Section 11(2) of the Evidence Act, 1975 (NRCD 323) and the cases of Kingsley Amankwah (a.k.a Spider) v. The Republic [2021] DLSC10793 at pages 25-26 per Dotse JSC and Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. In the case of Ali Yussuf Issa (No.2) v. The Republic [2003-2004] SCGLR 174, it was held that the burden of proof has two components, the duty to lead evidence on any fact required to be proved and the duty to provide sufficient evidence to persuade a 4 | P a g e reasonable mind as to the existence of any such fact. See also Kweku Quaye alias Torgbe vs. The Republic [2021] DLSC10794 at page 9-10 per Prof. Mensa Bonsu, JSC. The extent of the onus on the accused on the other hand is provided by section 11(3) of the evidence Act 1975 which states; “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt”. See also the case of COP v. Antwi [1961] GLR 408. Causing Harm Harm within the meaning of Section 1 of the Criminal Offences Act is “any bodily hurt, disease or disorder whether permanent or temporary”. A person who intentionally and unlawfully causes harm to any other person commits a second degree felony. Section 69 of the Criminal Offences Act, 1960 (Act 29). Under Section 76 of Act 29, harm is stated to be unlawful which is intentionally or negligently caused without any of the justifications mentioned in chapter one of the Act. ANALYSIS AND EVALUATION OF EVIDENCE In relation to the offence of causing harm under section 69, the burden on the prosecution is to prove that the act of the accused caused the alleged bodily hurt to the victim. The burden could have been discharged through direct evidence by calling witnesses or putting before the court evidence through which the guilt of the accused could be inferred. 5 | P a g e The prosecution failed this test by the failure to call material witnesses. The complainant’s evidence was inconsistent with that of his own witness when he created the impression that it was unknown persons who took him from the bush while the evidence by his own son, suggests that he asked him to go and call Boni and his wife. The prosecution’s case is weakened by the failure to call particularly Ellen Agbuitor and Boni and his wife who according to Ellen were the couple who carried the complainant from the farm to the road side. The evidence is further rendered hollow and suspicious when even the motor rider who carried the complainant to the police station and hospital was not called to testify and be interrogated. As it stands, the story of the accused remains uncorroborated on where he was actually picked from, the state in which he was found and what actually happened to him. In the absence of direct evidence, the court could only rely on other pieces of evidence arising from the circumstance. However, there appears to be a disconnection between the injury sustained by the complainant as stated in his medical report and depicted in the image tendered and the stick which is alleged to have been used to inflict a harm of that magnitude. CONCLUSION To secure conviction under section 69 of the criminal offences Act, it is necessary for prosecution to adduce sufficient evidence or call witnesses to prove causation on the part of the accused. 6 | P a g e In a criminal action, the threshold for the prosecution as established in Section 11(2) of the Evidence Act (supra) is a prove beyond reasonable doubt as to the guilt of the accused. In this particular case, the prosecution failed to call the material witnesses and the evidence put before the court failed to meet the standard to warrant conviction of the accused person. In the circumstance, the accused person is acquitted and accordingly discharged. NELSON DELASI AWUKU MAGISTRATE 7 | P a g e