REPUBLIC VRS GADOR (CC3/07/2023) [2024] GHADC 351 (25 March 2024)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON MONDAY THE 25TH DAY OF MARCH, 2024. BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) THE DISTRICT MAGISTRATE CC3/07/2023 THE REPUBLIC VRS. ISAAC GADOR 1 . ACCUSED PERSON PRESENT. 2 . DETECTIVE/CHIEF INSPECTOR ROBERT FOLI FOR THE REPUBLIC PRESENT. J U D G M E N T The accused person was arraigned in court and charged with the Offence of Threat of Death Contrary to Section 75 of the Criminal Offences Act, 1960 (Act 29). The accused pleaded NOT GUILTY to the offence and was thereafter admitted to bail. The facts of the case as recounted by Prosecution is that complainant Maame Tegbey is a farmer age 46, whilst the accused Isaac Gador is a mason age 38 and are natives of Mafi-Avakpedome. For some time now parties are not in good speaking terms over a disputed parcel of land. On 22nd day of May 2023, about 0830 hours, Complainant was in her farm working when the accused person came holding a single barrel gun and without any provocation, threatened her in words to wit: “I will gun you down if you fail to vacate the land” after which he left. 2 A witness in the case also saw the accused person leaving the farm with the said single barrel gun. Complainant out of fear left the farm and reported the matter to the Police. Accused person was subsequently arrested but a search conduct in his room did not reveal the said gun. Accused person in his investigation cautioned statement admitted going to the farm with the gun which he claimed he borrowed from Complainant’s brother but denied ever threatening her and after normal police investigation, he was charged with the offence. It is trite that the burden of proof remains on the Prosecution throughout the trial and it is only after a prima facie case has been established, that is a story sufficient enough to link the accused person to the commission of the offence charged that the accused person would be called upon to give his side of the story as stated in the following cases Amartey v. The State [1964] GLR 256 at 298 and Gligah & Atiso v. The Republic [2010] SC GLR 870 at 879. In Yeboah v. The Republic [1972] 2 GLR 281, it was held that the guilt of the accused person must be proved with that degree of certainty required of the prosecution in a criminal case is stated to be proof beyond reasonable doubt.” The Evidence Act, 1975 (NRCD 323) formulates this proposition, Section 11 (2) and 13 (1).......................... Section 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.” 3 Section 13 (1): “In any civil or criminal action the burden of persuasion as to commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” The authorities have held that where statute creates an offence it is the duty of the prosecution to prove each and every element of the offence which is a precondition to secure conviction, unless the same statute place a particular burden on the accused person. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted, the case of Tamakloe v. The Republic [2011] SC GLR 29. See also Donkor v. The Republic [1974] 2 GLR 254 – 258. The Prosecution assumed this burden to prove the guilt of the accused person beyond a reasonable doubt but not the shadow of a doubt to secure the conviction of the accused person, filed and called three witnesses including the investigator, Maame Tegbey, Raphael Amefu and Detective Inspector Bright Quarshie. They tendered in evidence some Exhibits, Investigation Cautioned Statement, further Cautioned Statement and Charged Statement, same admitted and marked Exhibit A, B and C respectively. The Accused Person opened his defence. He did not call any witness as well as file any Exhibit. PW1, Maame Tegbey stated that she inherited a piece of land from his late father and has been farming on it for twenty years now. About a month ago, she detected that, the Accused person had trespassed and planted cassava sticks. That on the 22nd of May, 2023 about 1730 hours, she was in the farm when the accused person came holding a gun and threatened her in words to wit: “I will gun you down if you fail to 4 vacate the land” and out of fear she left the farm and lodged a complaint at the Police Station. On the 25th of May, 2023 about 0830 hours, she visited the farm and accused person came again, issuing the threat again. PW2, Raphael Amefu evidence was that, he never witnessed the incident, but in his presence he saw accused person with a gun on his shoulder walked pass them. This was when PW1 had run to narrate her ordeal to him and he accompanied her home. PW3, Detective Inspector Bright Quarshie evidence was to the effect that, a case of Threat of Death was reported by PW1 and same referred to him for investigation. He obtained statement from PW1 and PW2 and arrested the accused person. That he conducted a search in accused person’s home but nothing incriminating was found, not even the gun. This was after he obtained statement from him and later was instructed to charge him. The accused person cross examined them after their evidence and this closed Prosecution’s case. The accused person opened his defence and stated that he acquired a piece of land which cannot be contested and has been farming on it. That he visited the land on the 22nd of May 2023 and PW1, Maame Tegbey was planting cassava sticks. He questioned her but PW1 never uttered a word and he left. The following day that, he was invited by the Police and upon reaching there he was arrested for illegal possession of firearm and threat of death. His statement was taken and a search conducted in his room but no gun found. He was cross examined by prosecution and this closed his case. The legal issue to be determined: 5 (i) whether or not the Threat of Death was issued to PW1 with the intention of putting the fear of death in her? The Accused person was charged with the offence of Threat of Death contrary to Section 75 of the Criminal Offences Act, 1960 (Act 29). Section 75: “ A person who threatens any other person with death, with intent to put that person in fear of death, commits a second degree felony”. In our Criminal Law, Section 17 of the Criminal Offencs Act, 1960 (Act 29) clarifies how threats issued are to be assessed: (1) In this Act, unless the context otherwise requires, “threat” means (a) a threat of criminal force or harm; or (2) An expression in this Act referring to a threat includes an offer to abstain from doing, or to procure any other person to abstain from doing anything the threat of which is a threat under subsection (1) (3) It is 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, in used, or by, or against, or in relation to any other person. With respect to subsection I stated above a threat includes any threat to carry out criminal force or harm on a victim. Subsection 2 clarifies that a threat in this respect would cover a person who abstains to do anything or who enlists another to abstain from doing anything that would result in the occurrence of the substance a threat of death which is intended to put fear of death in the victim is 6 not only considered serious when the Accused person is holding a gun or some implement or tool with which such a threat could be carried out immediately, but it is still taken seriously by the fact that it has been issued. In Behome v. The Republic [1979] GLR 112, the court asserted that the actus reus in the matter where a threat of death had been issued would involve the expectation of death which the accused person has successfully created in the mind of the Complainant. Following thus, the mens rea comprises the complainant coming to the realization that the accused person will up the threat with action that would result in the event of the complainant’s death. As held in Behome v. The Republic supra, the prosecution was to prove essential ingredients in the offence of Threat of Death as follows: (1) the actus reus which would consist in the expectation of death which the accused person creates in the mind of the Complainant; and (2) the mens rea which consist in the realization by the accused person that the threat would produce that expectation. Similarly, the Canadian Supreme Court penciled down the ingredients in the offence of threat of death in the case of Republic v. McCraw [1991] 3 SCR.................. 186 and Republic v. O’Brien [2013] 1 SCR 7.............186 that the utterance or conveyance by the accused person was a threat of death and the accused person has an intent to threaten. Following this, subsection 3 of section 17 of Act 29 tells us that it does not matter whether the threat will even been carried out by the accused person. This shows that the law looks to the effect of the 7 threat on the victim than it focuses on the intention and consequent actions of the accused person. The accused person went to his maize farm on that 22nd day of May 2023 and met PW1 on his farm planting cassava sticks. He proceeded to question her why she was doing that and whether it was right for her to do what she was doing but PW1 never uttered a word. Now linking this to accused person’s cautioned and further cautioned statements, Exhibits A and B recorded on 26th of May 2023 and 1st of August 2023 respectively: “I am farming on a parcel of farm land close to the Complainant’s farm but I have never threatened to kill the complainant with a gun and I don’t own any gun. Where the complainant used to farm was recently sold to one Theresa of Mafi-Bekpoe and she contracted me to clear the place to enable her to tip sand on the land. When I was clearing the place I never met the Complainant on the land, this was in March 2023”. Further that: “In May 2023, but on a date I cannot recollect, I borrowed a single barrel gun from the complainant’s brother Awukutse Tegbey which I carried to the farm and met the complainant in her farm but I never threatened to kill her with the gun as alleged”. The accused person on the 15th of January, 2024 filed his witness statement as his evidence in chief and no where in that statement did he state that, PW1’s farm has been sold. His contention is that the piece of land belongs to him and no one can contest him because he bought same from the head of Kpeli family. On this land, he has planted maize and visited there on that fateful day and saw PW1 planting cassava sticks. 8 Again, throughout the trial, the accused person has denied the owning a gun, let alone carried same to farm or for hunting purposes. Flowing from this, there are a lot of contradictions and inconsistencies in the statements. Now when he had the opportunity under cross examination, accused person could not explain the contradictions in the statements that he voluntarily offered to the police and that of his witness statement as his evidence in chief. This is what ensued with the Prosecution. Q: On 22nd day of May, 2023 about 1730 hours where were you? A: I was on my farm. Q: What is the relationship between you and PW1? A: We are not related. Q: Do you have any dispute of land with PW1? A: Yes. Q: Because of that I put it to you that you don’t speak to PW1 on sight A: Yes. Q: Do you own a gun? A: No. Q: I put it to you that you have a gun which you normally carry to farm? A: It is not true. I don’t have a gun. Q: I suggest to you that on the 22nd day of May 2023 you carried the said gun to the farm? A: It is not true that day I carried a cutlass to the farm. 9 Q: On that 22nd day of May, 2023 on arrival, you met PW1 working there? A: Yes she was working there. Q: You threatened her on the farm to wit: “If you don’t vacate the farm, I will gun you down”. A: It is not true. Q: Then what did you ask her when you met her on that fateful day at the farm? A: What I asked was that are you not aware that the land has been sold to me and I have planted maize and you are planting cassava sticks, I will go and inform the one who sold the land to me. Q: I again put it to you that on the 25th day of May, 2023 you met PW1 on the farm and threatened her with the same gun? A: It is not true. Q: I finally put it to you that PW2 saw you with the same gun hanged on you when PW1 came reporting the case to him A: I did not carry any gun. From the dialogue, the scene of crime which is the land was sold to accused person and that PW1 had no land let alone to be farming on it. Where then from the land which was sold to one Theresa and accused person cleared it on contract as per Exhibit ‘A’. Again, accused person denied having a gun and never went to the farm on the 22nd day of May, 2023 and 25th day of May, 2023 with it. Meanwhile, in his further Cautioned Statement, thus Exhibit ‘B’ he stated that he 10 borrowed a single barrel gun from PW1’s brother Awukutse Degbe in May 2023 but could not recollect the exact date. These conflicting and contradictions in accused person’s statements cast doubt for the court to believe him. The accused person never gave any explanation under cross examination that could clear the doubt created in the mind of the court. The accused person was not caught directly in the act and this makes it extremely difficult to prove the offence. Especially when PW2 only saw accused person hanged the gun on his shoulder and passed with it but never witnessed the incident. It becomes PW1’s word against the accused person. What the court in circumstances of this nature is to infer from the surrounding circumstances to establish the guilt of the accused person. These pieces of evidence strengthen the presence of an intention of Threat of Death. This makes the court not to believe the accused person. His evidence is not convincing and lacked substance. It is inconsistent with normal acceptance behaviour and conduct and same is rejected. Of course, the law is that where a case boils down to facts and credibility of witness, if the court takes the view that one side or the other side is the truth then the accounts are mutually exclusive of each other. Once the court decides to believe one side of the story it means the other side is a fabrication. See: Ansah Sasraku v. The State [1966] GLR 2978 at 298 SC. Again, the Law is well settled that, a party or witness whose evidence on oath contradicts a previous statement is not worthy of credit and his evidence should not be regarded. Unless he is able to explain the contradictions between the statements and the evidence. See: Gyabaah v. The Republic [1984-86] 2 GLR 461 CA. 11 Unfortunately, the accused person was not able to explain to the court the contradictions in his evidence on oath, Cautioned Statements, Exhibit A and B and answers under cross examination. The court considered the three stages set out in the case of Lutterodt v. Commissioner of Police [1963] 2 GLR 429 at holding 3 to examine the case of the accused person. Holding 3: In all criminal cases where the determination of a case depends upon facts and it forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (a) If the explanation of the defence is acceptable, then the accused should be acquitted; (b)If the explanation of the defence is not acceptable but reasonably probably, the accused should be acquitted; (c)If quite apart from the defence explanation, the court is satisfied on a consideration of this whole evidence that accused is guilty, it must convict.” From the foregoing, I am satisfied that the standard burden of proof as well as the evidence of the accused person before me and I have come to the conclusion that the defence put up by the accused person was neither acceptable nor reasonably probable and must be punished. As I find as a fact that accused person’s conduct falls equally within the offence of Threat of Death Contrary to Section 75 of the Criminal Offences Act, 1960 (Act 29). I hereby find the accused person GUILTY and accordingly accused person is convicted. MITIGATION 12 The accused person pleaded for leniency. SENTENCE The Court Considered the plea in mitigation by the accused person, age, a bread winner coupled with the fact that he is a first offender, the court shall give an option of a fine. Accused person is sentenced to a fine of Two Hundred Penalty Units in default 6 months imprisonment. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 26TH MARCH, 2024