REPUBLIC VRS AMOKONA (CC2/005/2024) [2024] GHAHC 225 (25 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON FIRDAY THE 25TH DAY OF MARCH, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG-OPOKU ESQ. SUIT NO. CC2/005/2024 1 THE REPUBLIC VRS: CLIFFORD AMOKONA JUDGEMENT The Accused here juvenile of 15 years has been charged with the offence of murder contrary to section 46 of criminal offences Act, Act 29 of 1960. According to the prosecution the accused on 3rd October, 2023 visited his great grandmother at Gonasua the victim herein one Abena Nketiah Monica aged 75 years old and informed her that he came to play soccer with his team mate from Faaman and that, he would be spending the night with her the said victim, who was his great-grandmother at Gonasua. That the following day the victim went to town to buy food for them to eat. However after eating the victim told the accused, he should go and joined his team mate to travel to Faaman, otherwise they would leave him at Gonasua. However, unknown to the victim the Accused had stolen money belonging to one Francisca. Accused was told to pack his things and go to Kwasibourkrom to live with his mother. But the accused/juvenile rather went to his great grandmother deceased victim at Gonasua. Apparently 2 uneasy with the idea of going back to Faaman decided to kill the victim in order to stay at Gonasua. Therefore the Accused whilst alone with the victim on 4th October, 2023 took a pestle and hit the deceased victim twice on the nape and head the deceased victim fell down unconscious and started bleeding from the ears and the nostrils, the accused then dragged the deceased victim to the back of the house and covered her body with abandoned bath tub, although the accused juvenile made an attempt to clean the blood stains with mop, however some blood stain remained on the stairs. However, when one Ellen Komah returned from school and enquired about the deceased victim who was her grandmother, the Accused told her that the deceased victim had travelled to Faaman. After waiting for return of the deceased victim without any sign of her return one Ankama Kennedy of Faaman a relative of deceased victim reported to Drobo Police about their missing grandmother Monica Nketiah the deceased victim. The report was then referred to police investigator Detective Frank Baah for investigation concerning the missing person. The said police investigator after obtaining statement from Kennedy Ankama, gave police extract of occurrence from the station diary to be taken to F.M. station for announcement to be made concerning the alleged missing of the deceased victim. On the following day which was 6th October, 2023 at about 12:00 noon one Nana Gansu of Gonasua came to the police station and reported that he had found the body of his sister Monica Abena Nketiah the deceased victim lying motionless at the back yard of her house where an old bath tub was found covering the body. The said Nana Gansu then led the police to the house and to the backyard of the house where an old bath tub was found. The police lifted the bath tub and found the body of an adult female 3 partially decomposed especially the head that is the deceased victim. The police later searched the scene of the crime and found the slippers and the headscarf of the deceased victim around where the body was lying, photographs of the scene were taken and the body of the deceased victim was recovered and deposited at Saint Mary’s Hospital mortuary Drobo for preservation and autopsy. According to the police investigator, he began his investigations by inviting Ellen Komah and the Accused who had slept with the deceased victim the previous night for interrogations. Upon interrogation the accused person confesses of killing the deceased victim. Thereafter caution statement was obtained from him. The accused then led police to the crime scene where the murder weapon pestle and mop were retrieved. After the investigation the Accused was put before the District Court Drobo to be remanded. Accused was then remanded into police cells Drobo and Duplicate copy of the docket was prepared and sent to Attorney General’s Office for advice. Attorney-General’s then advised that the Accused juvenile should be charged with murder contrary to section 46 of criminal and other offences Act, Act 29 of 1960. Thereupon the Accused juvenile was cautioned and charge statement was obtained from him. It must be noted that the accused is a juvenile and therefore must be tried summarily section 1 of Act 653 defines juvenile as a person under 18 years who is in conflict with the law. Indeed section 17 (14) of JUVENILE JUSTICE ACT, Act 653 of 2003 states that; “A charge against a juvenile for an offence which if committed by an adult be punishable by death shall be heard by a court of summary jurisdiction other than a juvenile court’’. Although the offence of murder is punishable by death, however, in view of the amendment in the law, the punishment of the offence of murder is now life imprisonment (see criminal offences (Amendment) Act of 2023, Act 1101.) Nevertheless this criminal offences (Amendment) Art, Act 1101 of 2023 would not alter the position of the law as envisaged by Act 653 of 2003 when dealing with juvenile. Hence the Accused juvenile was brought before this court to be tried summarily of the offence of murder contrary to section 46 of the criminal offences Act, Act 29 of 1960 as amended. 4 In fact the Accused/Juvenile was charge as follows; STATEMENT OF OFFENCE Murder contrary to section 46 of the criminal offences Act, 1960 (Act 29) as amended by criminal offences (Amendment) Act of 2023, Act 1101 PARTICULARS OF OFFENCE Clifford Amokona, aged 15 years student on or about the 4th day of October, 2023 at Gonasua in the Bono Region and within the jurisdiction of this court, you intentionally caused the death of Abena Nketiah Monica by hitting her head with a pestle an unlawful harm. The facts of the case as given by the prosecution are as follows; “Abena Nketiah Monica aged 75 years, lived at Gonasua with her granddaughter Ellen Komah aged 11 years. On the 3rd October 2023 the accused, Clifford Amokona (her great grandson) age 15 years and resident of Faaman paid her a visit. On the 4th of October, 2023 Ellen Komah left for school in the morning and came back after 12 noon to find blood stains on the wall and veranda of their home. She noticed that an attempt had been made to clean the blood stains and her grandmother was nowhere to be found. The next morning Ellen Komah noticed that the accused had in his possession Abena Nketiah’s phone. She informed some neighbours about the accused. On 6th October, 2023 the partially decomposed body of Abena Nketiah Monica was found under a bath tub in her back yard. The 5 accused when interrogated confessed to killing his great grandmother by hitting her head with a pestle. Before I proceed further it must be noted that the general accepted principle of law in criminal trial is that the prosecution must discharge the burden of proving the accused guilty of the offence charge. In fact in the Ghanaian case of ABDULAI VRS. THE REPUBLIC (J3/02/2017) unreported which judgement was given on 6th June, 2018 per Dotse J.S.C; “The first issue we want to discuss is the principle that in criminal trials. The burden of proof against the accused person is on the prosecution the standard of proof is proof beyond reasonable doubt. Section 11(2) of the Evidence Act, 1975 (NRCD 323) states that; “In 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 reasonable mind could find existence of a fact beyond reasonable doubt” The standard of proof being beyond reasonable doubt was explained by Lord Denning MR. in the seminal case of MILLER VRS. PENSION (1972) 2 AER 372 as follows; “Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt the law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with sentence of course it is possible but not least probable the case is proved beyond reasonable doubt, but nothing short of that will suffice” Also in Ghanaian case of Tetteh Vrs. The Republic (2001-2002) S.C. GLR 854, illustrates the fact that, what proof beyond reasonable doubt actually means, “Is Proof of essential ingredients of the offence charged and not mathematical proof?” 6 It is also useful to remind ourselves of some fundamental legal principles pertaining to criminal trials in Ghana Article 19 (2) (c) of the 1992 constitution provides that; “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty” Our law is that when a person is charged with criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has a burden to lead sufficient evidence that on an assessment of the totality of the evidence adduced in court including that led by the accused person, the court would belief beyond reasonable doubt that the offence has been committed and that it is the accused who committed it. In view of this upon the consideration of the entire evidence, if I entertain any reasonable doubt as to the accused guilt, my verdict would not be guilty. Quite apart from this I must also consider the story of the defence, however, it must be noted that there is no burden on the accused to prove his innocence nevertheless before I consider the defence, I must first be satisfied that the prosecution has succeeded in taking their case outside the ambit of speculation and conjecture, hence it will be wrong to ask myself, if the accused did not do it, then who did it. It is for the prosecution to prove that the accused caused the harm complained of. The charge preferred against the accused/juvenile is the murder of one Abena Nketiah Monica of Gonasua contrary to section 46 of criminal offences Act, Act 29 of 1960 as amended. I will now deal with the law concerning the material elements of the offence that is what act or acts on the part of the accused/juvenile the prosecution must prove to have been done by him in order to constitute the offence with which he has been charged in order to succeed the prosecution must prove beyond reasonable doubt each of the following; (a) That this person Abena Nketiah Monica is dead. 7 (b) That her death was caused by harm (c) That the harm was unlawful (d) That it was caused intentionally (e) That it was caused by the act of the accused/juvenile. (f) That there was no extreme provocation or circumstances of absolute excuse or justification. The the punishment for murder as envisaged in section 46 as amended by Act 1101 of 2023 states that; “A person who commits murder is liable on conviction to life imprisonment”. Indeed section 47 of Act 29 of criminal offences Act, as amended defines murder as follows; “Whoever intentionally caused the death of another person by unlawful harm is guilty of murder unless his crime is reduced to manslaughter by reason of such extreme Provocation or other matter of partial excuse as mentioned in section 52” Section 76 of Act 29 of 1960 defines unlawful harm as follows; “Harm is unlawful which is intentionally or negligently caused without any justification as mentioned …” The relevant provisions of law of intent see section 11 (1) of Act 29 defines intention as follows; “If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this code…” Hence it is said that a man is presumed to intend the natural consequences of his act unless the contrary is proved. 8 Now there is no doubt that the person Abena Nketiah Monica is dead and that she died on the 4th day of October, 2023. As to that there is abundant evidence including the post mortem Report by Dr. Bernard Elikplim Petershie that the death was caused by harm is also not in dispute. That the post mortem medical Report also indicated that the deceased died as a result of severe head injury caused by blunt object which is the pestle used by the accused to hit the deceased. There is also evidence of PW2 and the accused/juvenile himself. That the harm was unlawful is not in dispute, because there is no excuse justifying the harm inflicted on the deceased victim. That it was caused intentionally is one which is to be inferred from the circumstances of the case especially as every man is presumed to intend the natural consequence of his act until contrary is proved. The great question which this court has been called upon to determine is this who killed Abena Nketiah Monica? The prosecution’s case is that the deceased aged 75 years lived in Gonasua with her granddaughter Ellen Komah aged 11 years on 3rd October, 2023 the accused/juvenile Clifford Amokonah her great grandson aged 15 years and resident of Faaman paid her a visit. On 4th October, 2023 Ellen Komah left for school in the morning and came back after 12:00 noon to find blood stains on the wall and veranda of their home. She noticed that an attempt had been made to clean the blood stains and her grandmother was nowhere to be found. The next morning Ellen Komah noticed that the accused had in his possession Abena Nketiah’s phone she informed some neighbours about the phone in the possession of the accused/juvenile. On 6th October, 2023 the partially decomposed body of Abena Nketiah Monica was found under 9 a bath tub in her backyard. The accused when interrogated confessed to killing his great grandmother by hitting her head with a pestle. In order to prove its case beyond reasonable doubt standard of proof required on the prosecution. Therefore prosecution called two witnesses namely PW1 and PW2 these witnesses provide in the main the bulk of the evidence against the accused/juvenile. I must admit that PW1 who is 11 years old is a child (see section 1 of Act 560) nevertheless in accepting her evidence, I must be guided by section 59 of the Evidence Act, NRCD 323. In fact section 59 of the Evidence Act states that; “Evidence of a child or a person of unsound mind is admissible, if he is capable of expressing himself so as to be understood directly or through an interpreter or is capable of understanding the duty of a witness to tell the truth” Hence under section 7 (3) of the Evidence Act NRCD 323 corroboration is not required in order to admit such evidence. Therefore after observing PW1, I am of the opinion that she has the intelligence enough to make it worthwhile to hear her and also she feels the duty to tell the truth. According to PW1, Ellen Komah she lives with her grandmother the deceased at Gonasua that she attends Gonasua Roman Catholic Primary School and that she is in class five. That she knows the accused, who lives at Faaman, and also the great grandson of the deceased, that the accused came from Faaman for visit. She continued that on 3rd October, 2023 when she returned from school around 2:30pm she came to meet the accused/juvenile and her grandmother the deceased victim who she calls Maame Abena. Accused/juvenile told them that he was coming to play football at Gonasua, however, the accused/juvenile slept in the house that day. She then left for school the following morning which was 4th October, 2023 she then returned to the house around 2:30pm to drink water however, when she came to the house she saw only Accused Juvenile in 10 the house where she asked the accused juvenile about Maame Abena the deceased accused juvenile told her that the deceased had travelled to Faaman, she also said that she saw blood on the veranda and on the ground of the house and her grandmother’s headscarf. When she asked the accused juvenile about the blood he told her that the blood is the blood of a fowl and that it was the grandmother who killed the fowl and that even the grandmother told him to cover the blood with the sand. She then went back to school after drinking the water however, when she returned from school the grandmother the deceased had not returned from Faaman and therefore slept with the accused juvenile in the house on that day. The following morning she found the phone of her grandmother the deceased in the hall and took it to school whilst in school call came asking whether the accused juvenile was in Gonasua with them and she answered yes, she also asked whether her grandmother was in Faaman, the Auntie who called said no, that the grandmother is not in Faaman. She further says that, when she returned from school the grandmother had not returned from Faaman, however, she came to meet Auntie the grandmother of accused juvenile and another woman in the house and that day she slept with them in the house she then ended her evidence accordingly. It is of significant to note that PW1 was never discredited by counsel for the accused juvenile during the cross-examination and she was very consistent with her answers vis-a-vis her evidence and I have no doubt that she was speaking the truth. After this the prosecution call PW2 as its last and final witness PW2 who was the police investigation officer assigned to investigate the case, gave evidence on Oath as follows; My name is Detective Corporal Frank Baah with Number 47652 of the Ghana Police that on 5th October, 2023 I was on duty at Drobo police station and that one Kennedy Ankoma of Faaman 11 came to the station to report that their grandmother Monica Nketiah the deceased was missing and that she cannot be found. The matter was therefore referred to him for investigation. He then obtained a statement from Kennedy Ankomah and later issued him with police extract to be taken to F.M. stations for announcement to be made. However, the following day that is 6th October, 2023 at about 12:00 forenoon, one Nana Gansu of Gonasua came to the police station and reported that, he had found the body of his sister Monica Abena Nketiah lying motionless at the backyard of her home Nana Gansu therefore led the police to the backyard of the house where an old bath tub was found police than lifted the old bath tub and found the body of the deceased victim whose body was partially decomposed especially the head after searching the scene of the crime they found the slippers and the headscarf of the deceased. Later photographs were taken of the scene, the body was then sent to Saint Mary’s Hospital Morgue at Drobo for preservation and autopsy. PW2 later tendered the pictures that he took at the scene without any objection and were admitted in evidence and marked as exhibits “A” “A1” “A2” “A3” and “A4” also the slippers and headscarf of the deceased were tendered in evidence by PW2 without any objection and admitted in evidence as exhibits “B” and “C”. According to PW2, after depositing the body in the morgue he invited Ellen Komah who stayed with the deceased in the house who told him that, she Ellen Komah told him that when she was leaving home, in the morning of the 4th of October, 2023 for school at that time the deceased was in the house with the accused who had come to the house the previous day and when she returned home from school she saw blood stains on the floor of the house. PW2 then tendered the statement that he took from Ellen Komah without objection and marked as exhibit “D” And that on the following day which was the 7th October, 2023 he went to Kwasibourkrom where the accused juvenile was living with the mother. After interrogation, accused juvenile, on the 8th of October, 2023 confessed of killing the deceased. And that he took a caution statement which is 12 confession statement from the accused juvenile in the presence of one Benjamin Adomako a social welfare officer as an independent witness and that the said confession statement was willingly thumb printed by the accused juvenile after it had been read and explained to him as his own confession statement the said confession cautioned statement was tendered in evidence without objection by the defence and was admitted in evidence and marked as exhibit ”E”. It is a trite learning that confession statement by a suspect which when taken together with other facts and circumstances constitutes an admission of the commission or participation in the commission of an offence. It is often classified as a hearsay evidence in so far that it takes place outside the court room. Being hearsay evidence, confession is generally not admissible. However, section 120 of the Evidence Act, (NRCD 323) makes confession statement as admissible as an exception to the hearsay rule. It is criminal aspect of admissions; once the confession statement has been admitted in evidence. The prosecution need not to adduce evidence to prove its content. According to PW2 after having taken the confession caution statement the accused/juvenile led the police to the crime scene where the murder weapon a pestle and a mop were retrieved from the crime scene. That the murder weapon the pestle and the mop were tendered in evidence without any objection and was admitted in evidence and marked as exhibit “G” and also tendered the post mortem Report on the deceased by one Dr. Bernard Elikplim Petershie which indicated the cause of death of the deceased. After his investigations, he was advised to charge the accused Juvenile with the offence of murder contrary to section 46 of the criminal and other offences Act, Act 29 of 1960, which he did. After this PW2 closed his evidence in-chief and was cross-examined by the counsel for the accused juvenile, I must admit that apart from tendering the post-mortem report through PW2which was 13 admitted in evidence and marked as exhibit 1, the cross-examination by the learned counsel for accused/juvenile could not produce and inconsistent in the case of the prosecution and that at the end of the cross-examination by the defence the credibility of PW2 as a witness remained intact. After the end of cross-examination by the defence counsel of PW2, the prosecution closed its case. And thereupon the defence was called upon to open its defence since the prosecution has been able to make a case against the accused juvenile. The defence opened it defence by calling the accused/juvenile to give evidence. The accused in his short evidence which is epitomized of his confession statement stated that, he was one who killed the deceased by hitting her with a pestle he pulled the deceased to the back of the house and covered her with old bath tub and that he committed the offence a lone, he killed the deceased because he did not want to go back to Faaman and since the deceased was putting pressure on him he decided to kill the deceased to enable him to stay in Gonasua permanently. After this the accused juvenile was cross-examined by prosecution and in the said cross - examinations the accused admitted in his answer as the one who killed the deceased. Accused juvenile did not call any witness and close his case. After reviewing the evidence of the prosecution witnesses and the accused evidence together with the accused juvenile confession statement when taken together with other facts and circumstances of the case especially the exhibits tendered by the prosecution constitutes commission of the said offence of murder by the accused juvenile. It is also clear that the prosecution has been able to prove its case against Clifford Amokonah the accused juvenile beyond reasonable doubt. I therefore hold that it was Clifford Amokonah accused juvenile who caused the death of Abena Nketiah Monica the deceased victim by harm and that the said harm was unlawful and was 14 intentionally inflicted on Abena Nketiah Monica the deceased by Clifford Amokonah the accused juvenile. I hereby accordingly convict Clifford Amokonah the accused juvenile for the offence of the murder of Abena Nketiah Monica the deceased herein contrary to section 46 of Act 29 of 1960 as amended. However, section 18 (2) of JUVENILE JUSTICE ACT, Act 653 of 2003 states as follows; “Where a juvenile is tried for an offence punishable by death (life sentence see Act 1101 of 2023) by a court of summary jurisdiction and is convicted by the court, the court of summary jurisdiction shall remits the juvenile to juvenile court for sentence” In view of this I remit the convicted accused juvenile Clifford Amokona to the juvenile court for sentence. Meanwhile let the accused juvenile Clifford Amokonah be kept at Drobo police cell until he is brought before the juvenile court for sentence. ……………………………………. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) Cay/… 15