REPUBLIC VRS TORNYI (CC4/12/2023) [2024] GHADC 348 (23 April 2024)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON TUESDAY THE 23RD DAY OF APRIL, 2024. BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) THE DISTRICT MAGISTRATE CC4/12/2023 THE REPUBLIC VRS. TORNYI PRECIOUS ENAM 1 . ACCUSED PERSON PRESENT. 2 . CHIEF INSPECTOR EMMANUEL DZAKU FOR THE REPUBLIC PRESENT. J U D G M E N T The accused person was arraigned in this court on the 19th of September, 2023 and charged with a three Count Offence as follows: (1) Assault Contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29); (2) Assault Contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29); and (3) Causing Unlawful Damage Contrary to Section 172 (A) of the Criminal Offences Act, 1960 (Act 29). COUNT ONE Particulars of Offence are that Tornyi Precious Enam, male age 37 years and a driver, for that you on the 11th of September, 2023 about 0900 hours at Mafi- Kpedzeglo in the Volta Magisterial District and within the jurisdiction of this court, you unlawfully assaulted one Emily Azietor. COUNT TWO 2 Particulars of Offence are that Tornyi Precious Enam, male, age 37 years and a driver: For that you on the 11th of September,2023 about 0900 hours at Mafi- Kpedzeglo in the Volta Magisterial District and within the jurisdiction of this court, you unlawfully assaulted one Ella Azietor. COUNT THREE Particulars of Offence are that Tornyi Precious Enam, male, age 37 years and a driver: For that you on the 11th September, 2023 about 0900 hours at Mafi-Kpedzeglo in the Volta Magisterial District and within the jurisdiction of this court, you unlawfully caused damage to the braided hair of one Emily Azietor value GH₵400.00. The accused person pleaded NOT GUILTY to all the counts preferred against him by the Prosecution. The brief facts as recounted by the prosecution are that, Emily Azietor and Ella Azietor are petty traders and farmers respectively whilst accused person Tornyi Precious Enam is a driver. They all reside at Mafi-Kpedzeglo. On the 11th of September 2023 about 0900 hours, Emily Azietor was by the roadside selling fried fish. The accused person came to her and bought some of the fried fish. Not pretty long, the accused person came back to her and accused her of wrapping Indian hemp among the fried fish. The accused person threatened to call the Police to arrest her in the presence of other people who were also buying some of the fried fish. This led to a quarrel between them and in the process the accused person subjected her to severe beatings. The accused person also held the braided hair of 3 the complainant, Emily Azietor and twisted it and caused damage to the braided hair which valued GH₵400.00. When Ella Azietor came to the scene to enquire why they were quarreling, the accused person became offended and turned to her and assaulted her with a broken cement block. They lodged a complaint against the accused person at the Mafi-Kumase Police Station and later, accused person also came to the station and lodged a counter complaint against the Complainants, and two others. During investigation, accused person was taken to his house to show police the Indian hemp he found in the fried fish but he was not able to do so. After initial Investigation, the accused person was found culpable and charged with the offences per the charge sheet and arraigned in court. In all criminal cases there is always the burden of establishing the guilt of the accused person and that burden is always on the prosecution. Failure to discharge that burden, should lead to the acquittal of the accused person. See: Donkor v.The State [1964] GLR 598 and The Evidence Act, 1975 (NRCD 323) Section 15 (1): “unless and until it is shifted the Party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue”. In Yeboah v. The Republic [1972] 2 GLR 281, it was held: “the guilt of the accused person must be proved with that degree of certainty required by the law”. It should be noted that the proof required of the prosecution in a criminal case is said to be proof beyond reasonable doubt. Section 11 (2) of Evidence Act, 1975 (NRCD 323) states: ‘in a criminal action the burden of producing evidence, when it is on the prosecution as 4 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.” Again, Section 13 (1) of the same Act states: “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 reasonable doubt.” The prosecution filed three witness statements but called only two first prosecution witness, Azietor Emily and the Investigator G/L/CPl Evans Anku as second prosecution witness. They filed some Exhibits, Investigation Cautioned and Charged Statements of the accused person, photographs of the braided hair, assault marks, victim holding the braided hair, same admitted and marked as Exhibit A, B, C, D, E and F respectively. The accused person opened his defence and filed his witness statement and that of his sole witness, DW1 Banabas but never called him. He filed a medical report as his Exhibit and same admitted and marked as Exhibit ‘I’. First prosecution witness Azietor Emily stated that on the 11th of September, 2023 about 0900 hours, she was selling fried fish when accused person came accusing her of selling Indian hemp. That accused person removed a phone to call the Police for her arrest which she encouraged him to do. He got offended and walked towards her and slapped one Makafui who was standing beside her and pushed 1st Prosecution witness still insisting his threat to call the Police for her arrest. 5 According to first prosecution witness, accused person pointed his fingers at her face and she brushed it off. He then gave her a slap and when accused person could not find his mobile phone, he started beating her, held and pulled her braided her causing some to remove. He continued beating her until Ella Azietor intervened but accused person was not pleased and assaulted her as well. People around came to their rescue and she reported to Mafi-Kumase Police Second prosecution witness, the Investigator, G/L/CPl Evans Anku stated that as an available investigator on that fateful day, first prosecution witness lodged a complaint against the accused person and it was referred to him for investigation. That later in the day, the accused person called at the Police station and lodged a counter complaint against the first prosecution witness. He obtained Investigation Cautioned Statement from the accused person and visited the scene of crime and was instructed to charge the accused person. He tendered in evidence all Exhibits in his possession. The accused person cross examined them after their evidence and this closed the Prosecution’s case. The accused person in his evidence stated that on the 11th of September, 2023 about 0900 hours, he went to 1st prosecution witness to buy fish. He got home and realized that Indian hemp was in the fried fish. He came back to inform First Prosecution Witness and she started insulting him. That he brought out his phone to call one Police Officer but first prosecution witness pushed him and the phone fell. Azietor Isaiah, Ella Azietor and Titriku Rubby came and they started beating him. He reported to the police at Mafi-Kumase and a medical form issued to attend hospital. With all this overwhelming evidence, he was rather arraigned in court. That they 6 stole his phone valued Six Hundred and Fifty Ghana Cedis (GH₵650.00). He concluded that he kept the Indian hemp, the fried fish and photocopy of the endorsed Police Medical Form for evidential purposes. The Prosecution cross examined the accused person after his evidence and this closed his case. The accused person was charged with the offence of Assault and Causing Unlawful Damage Contrary to Section 84 and 172 (1) (b) of the Criminal Offences Act, 1960 (Act 29). Section 84 of Act 29 states: “A person who unlawfully assaults another person commits a misdemeanor”. From the facts presented by the Prosecution, the charge of assault against the accused person is that of Assault and Battery. Section 85 (1) (a) of the Criminal Offences Act, 1960 (Act 29) states: “For the purposes of Section 84, “assault” includes (a) Assault and battery. Section 86 (1) of the Criminal Offences Act, 1960 (Act 29) defines Assault and Battery as follows: “A person makes an assault and battery on another person if, without the other person’s consent, and with the intention of causing harm, pain or fear, or annoyance to the other person, or of exciting the other person to anger, that person touches the other person”. To constitute Assault and Battery, it is sufficient if the Prosecution proves that without the consent of the other person, and with the intention of causing harm, pain or fear or annoyance to the other 7 person or exciting him to anger the accused forcibly touched him or caused any person, animal or matter to forcibly touch him. In order to ground a conviction, the prosecution would have to prove each and every element beyond reasonable doubt that, as espoused in the case of Donkor v. The Republic [1974] 2 GLR 254 at 258 that “.............................where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is a sine qua non to securing conviction unless the same statute places a particular burden on the accused, the fundamental and cardinal principle as to criminal burden of proof on the prosecution should not be shifted even slightly. The Prosecution has to prove that; (1) the accused person forcibly touched first prosecution witness, (2) the touch by the accused person was without the consent of first prosecution witness, (3) The touch or assault was intentional, and (4) The touch or assault was unlawful. The legal issue for determination is whether or not the accused person assaulted first prosecution witness, Emily Azietor. The court in considering whether or not the accused person touched first prosecution witness, in her evidence in chief, first prosecution witness stated that the accused person came to where she was selling fried fish and made a call that Police should come and cause her arrest that she was engaged in the sale of Indian Hemp. She agreed to the request but accused person became offended and walked towards her and slapped one Makafui who was by her side and pushed her. He pointed his fingers at her face and she brushed it off. Accused person then gave 8 her a slap and when he could not find his mobile phone, he assaulted and continued till her aunt Ella Azietor came to her rescue. The injury captured in Exhibits ‘D’ and ‘E’ Meanwhile the accused person denied any knowledge of the assault. His contention was that he was rather assaulted and tendered Exhibit ‘I’ evidencing his assertion. In accused person’s Investigation Cautioned Statement, thus Exhibit ‘A’, read: “On Monday, 11th September 2023 about 9:00 am, I went to Emily to buy fried fish valued at GH₵5.00. I got home and realized that, the fish which is to be two wraps, were both not fried fish but one was rather Indian hemp. I went back to Emily without the Indian hemp and complained to her. Emily got offended by my complaint and started beating me. Ruby Titriku, Ella Azietor, Isaiah Azietor and other people assisted Emily to beat me up. I also defended myself by struggling with them. They took my Itel A56 mobile phone and an amount of GH₵650.00 which was on me were stolen. I later, reported the issue to the Police for assistance.” The accused person’s evidence in chief, did not contradict with his Exhibit ‘A’, thus the Investigation Cautioned Statement. Except that his self defence which was necessary at that moment was not stated in his witness statement. A proper evaluation for the case of the defence should cover not only on the accused evidence at trial and that of his witness but also the statement given by the accused to the Police. If a court fails to do so it may render the judgment unsatisfactory and may lead to an acquittal of the accused on appeal. In Atta v. C.O.P [1963] 2 GLR, 460 where a judgment of a District Court was quashed or reversed on appeal by the Supreme Court, because the 9 judgment failed to consider the defence fully, in that it did not consider the accused caution statement or the evidence of his witness. Accused person from the evidence so far gathered has not denied struggling with his oppressors which 1st prosecution witness was included. From Exhibit D and E which depict the injury state of first prosecution witness is a clear indication that first prosecution witness was assaulted. There was no scuffle for the court to inform that the injury suffered by first prosecution witness as per the Exhibits was as a result of the said scuffle. Again from the evidence, Accused person did not buy any fried fish on that fateful day as per the evidence of first prosecution witness, so how accused person alleged that Indian hemp was found in the fried fish that he bought, leaves much to be desired. Meanwhile accused person could not produce the Indian hemp to authenticate his assertion or allegation as per his paragraph 11 of his Witness Statement; “I kept the Indian hemp, the fried fish and the Police Medical Form for evidential purposes which I would like to tender into evidence”. Possessing Indian hemp in our criminal jurisprudence is an offence. If during the search conducted in his house, the Indian hemp was found in his, possession, he would have been liable for prosecution. They could not produce any material witness, though the area of the sale and the scene of crime was by the road side. Flowing from this, the accused person’s contention that, they struggled as he had to defend himself as a result of the assault on him by Isaiah Azietor, Ella, Emily Azietor, first prosecution witness and Ruby Titriku cannot be a statement of fact. Accused person had denied assaulting first prosecution witness even under cross examination. But 10 he agreed that he had to defend himself by struggling with them. He cannot convince the court that he did not touch 1st prosecution witness. After all, the slightest touch the touch should not actually come into contact with the body of the other person and will suffice where it touches the other person’s cloth or any other thing in contact with the body. Though, first prosecution witness did not tender in evidence the medical report despite her attendance for medical care but Exhibits D and E showed injury caused to first prosecution’s witness right eye. Granted without admitting that the Indian hemp alleged was found in the fried fish, but that could not be justified under Section 31 of Act 29 and that first prosecution witness did not consent to the assault makes the assault unlawful as stated in the case of Faulkner v. Tolhot [1981] 3 ALL ER 440 CA, Lane CJ held: “Assault is an intentional touching of another person without consent of that person and without lawful exercise. It need not necessarily be hostile, or made aggressive, as some of the cases seem to indicate”. The scene of crime was by the road side and in public where at least Ella Azietor who rescued first prosecution witness, Isaiah Azietor and Ruby Titriku who accused person alleged assaulted him were all present. The accused person’s evidence was not convincing enough to rebut the charge of assault leveled against him thereby makes him criminally liable. On the second count, thus Causing Unlawful Damage Contrary to Section 172 of Act 29. 11 The facts presented by Prosecution makes accused person liable to Section 172 (1) (b) as the value of the damaged plaited hair cost GH₵400.00. Section 172 (1) (b) of Act 29 states: “A person who intentionally and unlawfully causes damage to property to a value exceeding GH₵100.00 shall be guilty of a second degree felony”. Section 173 of Act 29 states: “For the purposes of this Act “Damage” includes not only damage to the matter of a thing but also an interruption of the use that thing, or an interference with that thing by which the thing becomes permanent or temporarily useless, or by which the expense is rendered necessary in order to render the thing fit for the purposes for which it was used or maintained.” The prosecution’s case is that the accused person has caused unlawful damage to the braided her of the first prosecution witness. Section 172 (1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable the accused person must have caused the damage intentionally and unlawfully. Each of the two words emphasized above is important and must be established before one can be called upon to open his defence in respect of this offence, the case of Homenya v. The Republic [1992] 2 GLR 32. In the instant case, the accused person in his evidence denied assaulting first Prosecution Witness let alone caused damage to her braided hair. The first prosecution witness in her evidence tendered Exhibit ‘F’ which was a photograph of the alleged destroyed braided hair. From Exhibit ‘C’, it is clear that the braided hair is part of the hair on first prosecution witness’s head. In other words, the hair was damaged 12 as same pulled causing the ones in Exhibit ‘F’ to be removed. The Prosecution in its own case demonstrated by the photograph they tendered that damage was caused to the braided hair to render it permanently or temporarily useless. Assuming without admitting that the braided hair had been damaged intentionally, the next element to consider is whether the damage was unlawfully caused. If the damage to the hair was lawfully caused, an offence under Section 172 (1) of Act 29 does not arise. As Anterkyi J. (as he then was) held in Asante v. The Republic [1972] 2 GLR 197: “Tersely, to secure conviction under Section 172 of Act 29 not only must it be proved that the damage was caused intentionally within the provisions relating to intent in Section 11 of Act 29, but also it must be proved beyond reasonable doubt that it was caused without just cause or excuse, the burden lay on the prosecution to prove conclusively the absence of any legal justification or excuse”. It is worth mentioning that Exhibit ‘F’ which was tendered as first prosecution witness’s damaged braided hair and her witness statement was not in conflict with her evidence on oath likewise Exhibit ‘A’ and the accused person’s evidence on oath. From the facts of the case which led to the accused person being charged with the offence of Causing Unlawful Damage after conclusion of investigation is that, the accused person caused damage to first prosecution witness’s braided hair valued GH₵400.00. Collins English Dictionary, first Edition (2005) page 399 defines: “Damage as injury or harm impairing the or condition or a person or thing”. Destroy is defined on page 431 as “to tear down or demolish”. 13 From the prosecution’s evidence, Exhibit ‘F’ the two words could be attributed to it as the braided hair has been damaged or destroyed. The principle of the prosecution having a duty to prove the guilt of an accused person beyond reasonable doubt, was given serious attention by Amissah JA, sitting as an additional High Court Judge in the case of Darko v. The Republic [1968] GLR 203 holding 2 as “(2) The principle that an accused person should be acquitted if his defence was believed or if it was reasonably probable did not call for uniformity of expression by judges or the use of any particular form of words. The crucial question relevant to the point in any ordinary criminal trial would turn upon whether the judge or tribunal of fact upon consideration of the whole evidence found that the case of the prosecution had been proved beyond reasonable doubt. Where a court convicted only because it took the view that the accused person’s defence was not to be believed this would be equivalent to shifting the burden of proof onto the defence. It would in effect amount to saying that he was entitled to be acquitted only if he proved his defence to the satisfaction of the court. By implication the court would then have relieved the prosecution of its duty to prove its case beyond reasonable doubt which it was not entitled to do. A court could not therefore stop short at saying that it was convicting the accused person because it did not believe its story. It must go further and show whether his story did not create a reasonable doubt either”. From the above provision, the accused person could not cast a doubt on prosecution’s case. The prosecution in my view led sufficient evidence to prove the guilt of the accused and linked him to the offence of Causing Unlawful Damage. I therefore find as a fact that on the 11th day of September 2023, the accused person: 14 1. Forcibly touched first prosecution witness, 2. The touch was without the consent of first prosecution witness 3. The touch or assault on first prosecution witness intentional, and 4. The touch or assault on first prosecution witness was unlawful Accused person caused damage intentionally and unlawfully to first prosecution witness’s braided hair. The accused person therefore cannot escape criminal liability. Accused person is hereby found GUILTY of the offence of Assault and Causing Unlawful Damage Contrary to Section 84 and 172 (1) (b) of the Criminal Offences Act, 1960 (Act 29) and he is CONVICTED. MITIGATION Accused person pleaded for leniency. SENTENCE The court considered accused person’s plea in mitigation his age, a bread winner coupled with the fact that accused person is a first offender not his demeanor though, shall consider an option of a fine. Accused person is sentenced to a fine of 150 penalty units in default 6 months imprisonment on count one. In addition, he will sign a bond to be of good behaviour for 6 months and in default 12 months imprisonment. On count two, accused person is sentenced to a fine of 100 penalty units in default 6 months imprisonment. Accused person shall settle 15 the cost of the damaged braided hair to Emily Azietor an amount of GH₵400.00 by the 30th of April, 2024. Sentences to run concurrent. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 23RD APRIL, 2024.