REPUBLIC VRS AWELEMA (UE/NA/DC/B3/8/2023) [2024] GHADC 513 (19 February 2024)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON MONDAY THE 19TH DAY OF FEBRUARY, 2024 BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) COURT SUIT NO UE/NA/DC/B3/8/2023. THE REPUBLIC V EBENEZER AWELEMA JUDGMENT [1] On 10th July, 2023, accused was arraigned before court on charges of threat of death and causing unlawful damage contrary to section 75 and 172 (1) (B) of the criminal offences Act, 1960 (Act 29). [2] The facts of the case are that accused and PW1 are husband and wife. Accused now lives at Saboro whilst PW1 lives at Namolo. They are blessed with three children. On 8th October, 2022 at about 2:30am, there was misunderstanding between accused and PW1. As a result, accused smashed PW1’s mobile phone, multi TV decoder and broke the children’s health insurance cards. Accused allegedly issued threatening words against PW1 to wit “I will kill you and the children and go to prison.” [3] Accused pleaded guilty simplicitor to the charge of causing unlawful damage and not guilty to the threat of death. He was accordingly convicted on count two but sentence was deferred till count one is determined. [4] The case of prosecution is contained in the evidence in chief of PW1 and PW2. PW1, Felicia Apaliya stated that on 8th October, 2022, she was lying on the same bed with accused. She went out to urinate and upon her return, their son moved to where she was sleeping. Accused became angry and started beating her. His reason for beating her was 1 why she would allow their son to sleep close to accused. She pleaded with accused to forgive her but accused did not listen. Accused entered her drinking spot and broke the beer bottles. He also hit her decoder on the ground and broke their children’s health insurance cards. Accused then held her neck and told her he will kill her and the children and go to prison. [5] According to PW2, D/Corporal Felix Asare, he was available investigator on duty on 11th October, 2022 when PW1 reported a case of threat of death and causing unlawful damage against accused. He took statement from PW1. He visited the crime scene on same day and took photographs of the scene. On 12th October, 2022, accused was arrested by police. He took statement from accused in the presence of independent witness. He tendered Exhibits ‘A’ being the caution statement of accused and Exhibit B being accused’s charge statement. [6]The defence of accused is that it is not true that it is not true that he said wanted to kill his wife. On the day the incident happened PW1 told him that she had reported him to police that he told her he will kill her and go to prison for life. And that he spoilt her decoder and TV set. He knew that he caused damage to the decoder and the TV set but he did not say he was going to kill her. It was not a fight. [7]Accused did not call any witness. [8] There is burden on prosecution in this case to prove the guilt of accused beyond reasonable doubt. Section 11 (2) of the Evidence Act, 1975 (NRCD 323) provides “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.” 2 [9] In Kugblenu Vs The Republic [1969] GLR 160 CA Qllenu JA noted “it is trite law that the onus upon the prosecution is to prove their cases beyond all reasonable doubt. This applies to all material issues and matters which form the pivot of the case of the prosecution or the pillar or foundation of the case upon which the case rests. If the prosecution leads evidence which creates uncertainty, they have failed and the accused should be acquitted.” [10] It is trite learning that accused need not prove anything but he is to produce evidence to raise doubt as to guilt. [11] In Commissioner of Police Vs Isaac Antwi [1961] GLR 408 at 412 Korsah CJ stated “the law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything but to raise a reasonable doubt.” [12] In section 11(3) of the evidence Act, 1975 (NRCD 323) it was provided “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.” [13] In Mallam Ali Yussif Vs the Republic [2003-2004] SCGLR 174 the Supreme Court noted “the burden of producing evidence and the burden of Persuasion are components of the burden of proof. Thus although an accused person is not required to prove his innocence during the course of his trial, he may run a risk of non-production of evidence and/or non-production to the required degree of belief, particularly when he is called upon to mount a defence.” [14] For prosecution to overcome its burden of proof, it needed to prove all the essential elements which constitutes the crime of threat of death. Section 75 provides “A person who threatens any other person with death, with intent to put that person in fear of death commits a second degree felony. By section 75 (6), two elements are identified as below 3 (i) death threat issued by accused against PW1, and (ii) intention emanating from the treat of putting PW1 in fear of impending death. [15] In the Republic Vs Amadu Bello unreported case no F16/7/07 dated 14th August, 2007 it was held that “ in a charge under section 75 of Act 29, therefore the prosecution must prove that the accused person said or did something which put the other person in immediate fear of being killed, threat of death means threat of murder.” [16] In Behome Vs The Republic [1975] GLR 112 at 123 the court noted “ in the offence of threat of death, the actus reus would consist in the expectation of death which offender creates in the mind of the person threatened whislst the mens rea would also consist in the realization by the offender that his threats would produce that expectation. So the complainant should be scared of an imminent death which is about to be occasioned and perpetuated by the accused and the accused should realize that his action will bring out such results.” [17] Applying these elements to this case, it is clear that the facts as presented by prosecution does not support the charge of threat of death. According to prosecution the brief facts are as follows: “Complainant Felicia Apaliya is a trader whilst accused person Ebenezer Awelema is unemployed and both are residents of Saboro/Navrongo. Accused is the husband of complainant and they have three children. On 8th October, at about 12: 30am, complainant went out to urinate and upon her return, their son had moved to where she was sleeping. Accused became angry and started insulting complainant that why should she allow the child to sleep beside him. Complainant pleaded with accused person to forgive her but accused person did not listen and entered complaints drinking spot and broke all the beer in the drinking spot and also smoked some of her cigarette 4 and destroyed the rest. He then smashed complaints on the ground and also broke their children health insurance into pieces.” [18] There is no mention of anything in connection with threat of death in the fact. However, Exhibit ‘A’ shows that accused confessed to the use of threatening words to wit “I told her I kill her but I was only joking”. This statement was made on 12th October, 2022. In paragraph 9 of PW1’s evidence in chief she stated that “Accused held my neck and told me he will kill me and the children and go to prison. This statement was made by PW1 on 10th July, 2023. It seems to me that prosecution based its charge of threat of death against accused on his confession which PW1 later included in her evidence in chief. [19] Confessions are admissions and could be the basis of conviction. However we are admonished to thread cautiously as to how they are used in convicting accused persons. [20] In Ekow Russel vs the Republic [2017 -2020] SCGLR 469 Akamba JSC defines confession as follows: “A confession is an acknowledgement in expressed words, by the accused in a criminal charge of the truth of the main fact, charge or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguard have been put in place to ensure that what is given as a confession is voluntary and without any fear, intimidation, coercion, promises or favours.” [21] In Francis Arthur v the Republic [2021] DLSC 11148 Amegatchor JSC speaking for the supreme court referred to cases such as State v Aholo [1961] GLR 626, State v Otchere and ors [1963] 2 GLR 463 and State v Owusu & Anor and noted “we are therefore clear in our minds that the criminal jurisprudence of this court leans towards the conviction of 5 an accused person based on voluntary confession to commission of a crime charged. However, we are aware that in the peculiar facts of some cases where the only evidence available to convict was the confession statement, the court decried the unreliability and indeed set aside a conviction solely on the confession without some corroborative evidence that the crime was committed and by accused person.” [22] In this case, although the confession was allegedly made in the presence of the children of accused none of them was called to corroborate what PW1 had said. It is therefore doubtful as to whether the said words were used by accused. [23] The alleged confession itself is questionable because according to accused he was only joking. Accused rater destroyed properly of PW1 which he admitted. [24] Accused vehemently denied making the confession in his cross examination of PW1 and PW2. He again made it clear in his evidence in chief that he did not make such statement. [25] On the totality of evidence by prosecution and accused, there is doubt as to whether accused threatened PW1 because prosecution could not adduce sufficient evidence to corroborate the evidence of PW1. [26] In the result, I found accused not guilty of the offence of threat of death contrary to section 75 of the Criminal Offences Act, 1960 (Act 29). He is therefore acquitted and discharged on count 1. [27] Accused has already been convicted of the offence of causing unlawful damage as a result of his plea of guilty simplicitor. In sentencing accused on this offence, I have taken 6 into account his relationship with PW1. They have children. He is always remorseful and crying. I have given serious thought of the level of accused’s anger which he could not control leading to his commission of this crime which I condemn unreservedly. I have accepted his plea for mitigation and inclined to deal with him leniently. He is hereby sentenced to pay a fine of 60 penalty units or imprisonment for four months IHL. [28] In addition, he is to sign bond to keep the peace and be of good behavior for the next four months and in default serve a prison term of four months IHL. He is ordered to replace all damaged items to PW1. (SGD.) H/W. FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) REPRESENTATION 1. Chief Inspector Emmanuel Darko Nimako for prosecution. 2. No representation for accused. 7