REPUBLIC VRS BUKARI (UE/ZB/DC/B9/02/2024) [2024] GHADC 518 (15 February 2024)

IN THE DISTRICT COURT, ZEBILLA HELD ON 15TH FEBRUARY, 2024 BEFORE HIS HONOUR JEPHTHAH APPAU SITTING AS AN ADDITIONAL MAGISTRATE. SUIT NO.: UE/ZB/DC/B9/02/2024 THE REPUBLIC VRS. ABU ALI BUKARI JUDGMENT FACTS: On 13th November, 2023 around 2pm the Accused was arrested for an alleged stealing of two (2) bottles of Legend Whisky, Two (2) cans of Vordy drinks and Sunny Plasma Television valued Ghc20.00, Ghc38.00, Ghc4, 000.00 respectively and Thousand Four Hundred and Fifty (1,450) pieces of Chinese Coins as well as causing damage to a wooden window and a Sunny Television screen valued at Ghc200.00 and Ghc500.00 respectively. The accused person was further accused of threatened to kill one Bukari Janet (PW1) if she refuses to open the door of a room she was then sleeping. That the said Bukari Janet then call for help, the accused was arrested and handed over to the police and he was subsequently charged before this court for the following offences: 1. Causing Unlawful Damage contrary to section 172 of the Criminal and Other Offences Act 1960 (Act 29) 2. Unlawful Entry contrary to section 152 of the criminal and Other Offences Act 1960 (Act 29) 3. Stealing: contrary to section 124(1) of the Criminal and Other Offences Act 1960 (Act 29) as Amended by N.L.C.D. 398 Para 4. 1 | P a g e 4. Threat of Death: contrary to section 75 of the criminal and other Offences Act 1960 (Act 29). That on 15th of November, 2023, the accused was arraigned before this court and his plea was taken. The Accused pleaded guilty simplicitur to count 2 and 3 but not guilty to counts 1 and 4 of the charges against him. That the effects of the plea of guilty were explained to the accused in Kusaal and subsequently convicted on his own plea of guilty to counts 2 and 3 but judgment deferred till the final determination of counts 1 and 4 supra. Hearing started on 11th January, 2024 after disclosures has been filed and served on the Accused person. It is intriguing to know that, though the prosecution brought to court the said damaged Television set and the Chinese coins at the time of taking pleadings, none was exhibited during hearing to support or proving their case against the Accused. The accused however in his defence stated that the damage to the television set was not intentional since he was drunk after taken the drinks at the bar. That he couldn’t control himself and therefore hit the television for it to fell down. It is important to also note that, the Television set has since been ordered by this court to be release to the complainant since he uses same for his drinking bar business. ISSUE(S) FOR DETERMINATION With the accused already pleaded guilty to counts 2 and 3 of the charges, the court is saved to concentrate on whether or not the accused is guilty to count 1 and 4 only. THE LAW: Sections 10, 11 and 13 of the Evidence decree, 1975 (NRCD. 323) states as follows: 2 | P a g e s. 10(1) For the purpose of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the minds of the tribunal of fact or the court. s. 11(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. s. 13(1) 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. Authorities above put the burden of proof of the accused guilt squarely at the door of the prosecution and the failure of which the accused acquit and discharge. In fact all the accused has to do is to a little iota of doubt in the prosecutions case. Causing Unlawful harm is a crime by virtue of the section 172of the Criminal and Other Offences Act, 1960 (Act 29), s. 172 which provides that; “A person who intentionally and unlawfully causes damage to any property (a) to a value not exceeding one million cedis, or without a pecuniary value, commits a misdemeanor (b) to a value exceeding one million cedis commits a second decree felony. Threat of Death is also stated in section 75 of the Criminal and Other Offences Act, 1960 (Act 29), s.75 as; “A person who threatens any other person with death, with intent to put that person in fear of death, commits a second decree felony”. ANALYSIS OF THE EVIDENCE 3 | P a g e Every crime has its ingredients which ought to be proved by the prosecutor to be able to secure the conviction of an accused person put before the court. To successfully prosecute an accused for causing unlawful damage, the prosecution has per sections 172 and 174 sets out in effect, the ingredients to be established in which are: i. ii. The accused person has in fact caused damage to a property of value The act that caused the damage was intentional and unlawful. In the case of ASANTE v. THE REPUBLIC (1972)2 GLR 177 where the appellant had been convicted of assault on a police officer. He had also been convicted of causing damage to the officer’s trousers in the attack. The court held on the issue of causing damage that “…….under this section, it was the value of the damage that was material, and not the value of the property that was damaged. It was also necessary to establish that the damage was intentionally and unlawfully caused. The prosecution having failed to discharge the burden, the conviction could not stand.” Now save mentioned on the charge sheet, it was nowhere mentioned in the evidence of the prosecuting witnesses the alleged damage caused to the wooden window. It is therefore reasonably assumed that, the said alleged damage caused to the wooden window was abandoned hence failing to talk about it in the prosecution’s evidence or during the cross-examination of the accused. However, in the case of the damage to the Television set which appeared to be the concern of the prosecution, the accused in his own defence and during cross- examination admitted causing damage to the Television set but quickly put-up the defence of intoxication. This is what the accused had to say during cross-examination at page 7 and 8 of the proceedings: Q. - I put it to you that in an attempt to pick the TV, it fell down? 4 | P a g e A. - That is not correct, I only touched from back and it fell Q. - It wasn’t your intention to cause damage to the TV, is that correct? A. - Yes, it wasn’t my intention. Q. - I put it to you that it was by your mistake that the TV fell and got damage? A. - Had it not because of the fact that I was drunk, I wouldn’t have gotten close to where the TV was. Q. - I put it to you that, at the time you went to the bar you were not drunk. It was after you have taken the drinks that you got drunk according to your statement? A. - That is not correct, I started drinking way from Ankpaliga before I got to the bar and continued from there. From the evidence before this court, it is undeniably correct that at the time the accused committed the crime, he was in fact drunk (intoxicated). The question therefore is whether his state of intoxication at the time of committing the crime is good enough to exonerate him from the criminal liability of causing unlawful damage under section 172 of Act 29? The answer in the view of this court is no. Intoxication is not a defence to criminal charge except when it is exercised in accordance with section 28 of Act 29 and it states as: s.28(1) except as provided in this section, intoxication is not a defence to any criminal charge, 5 | P a g e (2) intoxication is a defence to criminal charge if by reason of the intoxication the person charged, at the time of the act complained of, did not known that the act was wrong or did not know what that person was doing and (a) the state of intoxication was caused without the consent of the person by malicious or negligent act of another person, (b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act. In the case of R v. OWAREY (1939)5 WACA 66, it was held that notwithstanding the evidence of heavy drinking prior to the commission of the offence, it was not such as to prevent the accused from forming an intention to kill. In BOATENG alias SIKAYENA v. THE REPUBLIC (1969) CC 61 it was held that “voluntary drunkenness is not a defence unless it is of such a degree as to prevent the accused from forming the necessary intent.” See also the case of KETSIAWAH v. THE STATE (1965) GLR 483, SC where the court in dismissing the appeal held that; “the state of intoxication must be such as to affect the ability of the accused to appreciate the nature and quality of his act. Bare evidence of intoxication falls short of the standard required to sustain the defence.” From the authorities above stated, it is of the opinion of the court that, notwithstanding the fact that the accused was drunk, his state of drunkenness is not of the required degree capable of preventing him from forming the necessary intent. This is to the fact that, the accused seems to remember every bit of what transpired at the crime seem. In fact, the accused is able to appreciate the nature and quality of his act and therefore, the bare evidence of intoxication falls short of the standard required to sustain the defence. See Ketsiawah v. The State supra. Accused is therefore hereby found guilty and convicted on count 1. 6 | P a g e Now on count 4, the offence of Threat of Death, contrary to section 75 of Act 29. For a charge of Threat of Death to succeed, the prosecution per section 75 of Act, 29 has to establish the following ingredients against the accused person: a. That the accused has threatened to kill someone b. The accused had intention to put that person in fear of death. Section17(3) of Act 29 makes it completely immaterial whether the matter of the threat will be executed by the person using the threat or against or in relation to the person, to whom the threat is used, or by, or against, or in relation to any other person. See Canadian Supreme Court cases of R v. McCraw (1991) 3 SCR and R v. O’Brien (2013)1 SCR 7. Mens rea is proved where it is proved that the accused intended the words uttered to intimidate or be taken seriously. See again R v. McRae (2013) 3 SCR 931. From the records so far, save the allegation by PW1 that the accused threatened to kill her which has been vehemently denied by the accused, it is difficult to link the accused to any threat purportedly made by the accused to PW1. When PW1 called PW2 to come to the bar because of the presence of the accused, she did not tell him that the accused was threatening to kill her. In fact her complaint was that the accused has entered to steal from the bar. See paragraphs 2, 3 and 4 of PW2’s witness statement; “2. I received a call from the bar girl Janet at about 2:30am 3. She was screaming and crying that some thieves have entered the premises 4. I responded by organizing guys to the bar and we able to arrest him and handed him over to police.” 7 | P a g e As said earlier, this is an accused person who seems to remember every bit of the happenings at the crime scene even though under the influence of alcohol. He has also been frank with the truth even when he knows very well that same goes against him. If indeed he had threatened to kill PW1, I am of the strong conviction that he would have admitted same without wasting much time. Worst of it is the prosecutions failure to lead cogent and irresistible evidence without any reasonable doubt to prove the guilt of the accused. This court is with the opinion and wants to believe the accused defence that though he went to the bar and wanted to enter the room where PW1 was sleeping only to find a place to sleep, he never threatened to kill her as alleged by the prosecution. On that note, count 4 fails and accused is hereby acquitted and discharge on same. Now on counts 2 and 3. As previously stated, the accused admitted guilty of count 2 and 3 when his plea was taken and subsequently convicted on his own plea but sentence deferred till the final determination of counts 1 and 4. SENTENCING Having found the accused guilty on counts 1, 2 and 3 and having taken into consideration his demeanor and frankness throughout hearing and the fact that he has been in prison custody since November, 2023, the records do not show that the Accused was violent nor did he cause any injury to the victim; he is indeed a first time offender who pleaded guilty to counts 2 and 3 simplicitur and saved the court’s time. Against the backdrop of these considerations, the accused is hereby sentenced into prisons for two (2) months, Three (3) months and Five (5) months for counts 1, 2 and 3 respectively to run concurrently. 8 | P a g e ……………SGD……………….. H/H JEPHTHAH APPAU Sitting as an additional Magistrate Zebilla District Court. 9 | P a g e