THE REPUBLIC V WIAFE (B3/10/2024) [2024] GHACC 292 (2 September 2024)

1 IN THE CIRCUIT COURT, JUASO HELD ON MONDAY, THE 2ND DAY OF SEPTEMBER, 2024, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. CASE: B3/10/2024 THE REPUBLIC -VRS- KWADWO WIAFE ----------------------------------------------------------------------------------------------- RULING ------------------------------------------------------------------------------------------------ The accused person herein has been charged with one count of Causing Harm Contrary to Section 69 of the Criminal Offences Act 1960, Act 29. The facts are that on the 26th day of September, 2023 Complainant went to visit his sick friend by name Kwaku Kyei who is also the uncle of the accused person. While the Complainant was in the room with his friend, the accused armed with a machete came and tried to attack his friend but the Complainant intervenes and, in the process, the accused directed his anger at him and inflicted machete wounds on the left arm of the Complainant. Complainant reported the matter and the accused was arrested. 2 The fundamental rule in our criminal justice system as stated in the 1992 Constitution, Article 19 (2) (c) reads: “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic (2012) 41 MLRG 53 at 61-62 per Akuffo JSC as follows: “ …. The citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt.” The above clause means that the accused person herein charged is not guilty of the offence right from the time of his arrest including the time when he is arraigned before the court. It is only after the accused person himself has pleaded guilty that he may be pronounced guilty. However if the accused person pleads not guilty to the offence, his accuser has to prove that he is guilty. In the instant case the accused person has pleaded not guilty therefore the onus of proving his guilt is on the prosecution. See: Essentials of Ghana Law of Evidence by Justice Brobbey at pages 45-55. 3 Sections 13 (1) and 22 of the Evidence Act, 1975 (NRCD 323) place the burden on the prosecution to prove his/her case beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975 (NRCD 323) provides: “13 (1) in any 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”. Section 22 of the Evidence Act, 1975 (NRCD 323) also provides: “22. in a criminal action a presumption operates against the accused a s to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” See: Abakah Vrs The Republic (2010) 28 MLRG 111 CA The prosecution has a duty to prove the guilt of the accused person charged beyond reasonable doubt. The burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused person will be called upon to give his side of the story. 4 See: Amartey Vrs The State (1964) GLR 256. Gligah & Another Vrs The Republic (2010) SCGLR 870. Dexter Johnson Vrs The Republic (2011) SCGLR 601. The dictum of Lord Denning in the case of Miller Vrs Minister of Pensions (1974) 2 ALLER 372 at 373 is relevant to our understanding of the phrase “beyond reasonable doubt”. According to Lord Denning: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” In the same case, “proof beyond reasonable doubt” was explained as follows: “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” See also: Tetteh vrs The Republic (2001-2002) SCGLR 854 Dexter Johnson vrs The Republic (2011) 2 SCGLR 601 Francis Yirenkyi vrs The Republic (2017-2020) 1 SCGLR 433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 delivered on the 21st day of July 2021 This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof to the hilt. 5 In Abdulai Fuseini vrs The Republic Criminal Appeal No. J3/02/2016 6th June, 2018, the Supreme Court reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows; “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means proof of the essential ingredients of the offence charged and not mathematical proof”. It is the duty of the prosecution to prove each and every ingredient of the offence, which is a precondition to securing conviction; unless the same statute places a particular burden on the accused person. The accused person is not under any obligation to prove his innocence. It is only when the defence is not reasonable probable that the accused person would be convicted. In C.O.P Vrs Antwi (1961) GLR 408 SC it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly. The fact that the prosecution has the burden to prove the case beyond reasonable doubt does not change according to the status or disposition of either the accused person or the complainant involved neither do they change according to the charges preferred nor the public perception, concern or reaction in respect of the accused person in question. 6 This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935) AC 462 at 481-482 in the following words: “No matter what the charges or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of our common law of England and no attempt to whittle it down can be entertained.” The import of all the above authorities, statutes and case law is that, it is the prosecution that is to prove the guilt of the accused person. The accused person is not to prove his innocence. In fact, he should not even show up his hands until the need arises. All that the accused person is required to do when invited to open his defence is to raise reasonable doubts regarding his guilt. It is only when the defence raised by the accused person is not one that can exonerate him that he would be convicted. See: Atsu Vrs The Republic (1968) GLR 176 CA. Tsatsu Tsikata v The Republic (2003-2004) SCGLR 1068. Proof by the prosecution can be direct or indirect. It is direct when an accused person is caught in the act or has confessed to the commission of the crime. Thus where an accused person was not seen committing the offence, his guilt can be proved by inference from surrounding circumstances that indeed the accused person committed the said offence. This type of evidence 7 derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See: Logan Vrs Lavericke (2007-2008) SCGLR 76. Dexter Johnson Vrs The Republic (2011) 2 SCGLR 601 @ 605. State Vrs Anani Fiadzo (1961) GLR 416 SC. Kamil Vrs The Republic (2010) 30 GMJ 1 CA. Tamaklow Vrs The Republic (2000) SCGLR 1 SC. Bosso Vrs The Republic (2009) SCGLR 470. In Kingsley Amankwah (a.k.a. Spider) vrs The Republic supra, the Supreme Court referred to Frimpong @ Iboman vrs the Republic and held that where direct evidence was lacking, but there were bits and pieces of evidence connecting the appellant to his deep involvement in committing the offences with which he had been charged, the court must not shy away from using such strong circumstantial evidence. It must be noted that the standard of proof required in establishing whether or not there is a prima facie case against the accused person is not at the same level of proof beyond reasonable doubt as required at the end of the case. See: Tsatsu Tsikata Vrs The Republic (2003-2004) SCGLR 1068 at 1094-1095. 8 It would therefore be wrong to presume the guilt of an accused person merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed and which therefore calls for explanation by the accused. See: The State Vrs Sowah & Essel (1961) 2GLR 743 at 745 Prosecution in this case called four witnesses in support of his case. Kwabena Asare was prosecution’s first witness (PW1), Kwaku Kyei as prosecution’s second witness (PW2), D/Insp. Collins A. Kumi the investigator in this case as prosecution’s third witness (PW3) and Okyere Gemima as prosecution’s fourth witness (PW4). Prosecution also tendered in evidence his exhibits for the case. According to PW1, on the 28th day of September,2023 at about 10:00am he was with PW2 in his room when all of a sudden, he heard a knock at the door but PW2 was asleep so he opened the door and saw the accused. He thought the accused person needed money from PW2 so he gave him Five Ghana Cedis (GHS 5.00) but he refused to collect it and attempted to force his way into the room and when he resisted, the accused person hit him with a blow. The accused person held his dress and continued to beat him so he heard PW4 shouting for help and PW2 who was asleep heard it and rushed to the scene. The accused person picked a cutlass which had its tip chopped off from the kitchen which and whiles on the ground he saw the accused person raise the cutlass in an attempt to slash PW2 because he helped him. He tried to stop the accused but he slashed him with the cutlass twice on his left arm and he sustained a very deep cut so he 9 started bleeding profusely. He and PW2 went to inform the Assemblyman of Adomfe about it and he caused the arrest of the accused person. He was given a Police Medical Form to attend hospital for treatment. It is the evidence of PW2 that the accused is his nephew and they have been living in the same house. For some time now, the accused person has been pestering him with threat of death anytime he sets eyes on him so he reported it to the Ankobeahene of Adomfe, their head of family, but anytime they advise the accused person he does not listen. He also reported the conduct of the accused person to the Assemblyman of the area but still the accused person kept harassing and issuing words of threat of death at him. On the 26th day of September,2023 at about 10:00am, he visited a public toilet and whiles there, the accused person came there, picked a stone and threatened to hit him with it. He was afraid so he quickly dressed up and went home to inform PW1 who accommodated him. On the 28th day of September, 2023 he heard a knock on PW2’s door so he asked PW1 to check who it was. He overheard exchange of words at the entrance so he woke up and checked and saw blood flowing profusely from the left arm of PW1. PW1 told him that the accused person armed himself with a cutlass, attempted to force his way into the room to slash him with it but PW1 blocked the accused person and in the process the accused cut his arm with the cutlass so they informed the Assemblyman in the area, and he cause the arrest of the accused person. According to the investigator, he took an investigation cautioned statement from the accused person and visited the scene of crime with a team of Police investigators at Adomfe together with the accrued person and the Assemblyman of Adomfe. At the scene, it was revealed that for 10 some time now the accused person has been harassing and attacking PW2 without any reason and PW3 had sent series of complaints to their head of the family, the assemblyman, other stake holders and elderly people in the Adomfe township but to no avail. Investigations further revealed that the actions of the accused person have put fear in those who live around the entire neighbourhood. He corroborated the evidence of PW1 and PW2 and added that he took a photograph of the cutlass that the accused person used to cause harm to PW1 and after investigations accused person was charged with the offence. PW4 corroborated the evidence of PW1 and PW2. The law is settled that at the close of the prosecution’s case the court is to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only when the court is satisfied that all the ingredients have been established by the prosecution that the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See: Kwabina Amaning alias Tagor & anor. vrs The Republic (2009) 23 MLRG 78 CA. A prima facie case is established against an accused when the evidence led by the prosecution is on its face or first appearance without more one that could lead to conviction if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if he/she hope to secure conviction of the person charged. A person is pronounced guilty only 11 when the evidence led by the prosecution in respect of the charges satisfies the standard of proof required by law and that is proof beyond reasonable doubt. Section 173 of the Criminal and Other Offences (Procedure) Act 1960 (Act 30) provides that where at the close of the evidence in support of the charge, it appears to the court that, a case is not made out against the accused person sufficiently to require the accused to make a defence; the court shall as to that particular charge acquit the accused. The provision means that at the close of the prosecution’s case, it is within the court’s discretion to decide whether a case has been made against the accused person in respect of the offence tried. If the court finds that the prosecution has not made out a sufficient case to warrant calling on the accused to open his defence in respect of all or any of the charges, the charge or charges may be dismissed and the accused acquitted and discharged. The court will reach the conclusion that no case has been made against the accused person if: a. There has been no evidence to prove an essential element of the crime charged or; b. That the evidence in support of the prosecution’s case has been discredited in cross examination or; c. If the evidence is manifestly unreliable that no reasonable tribunal or court could safely convict on it or; 12 d. The evidence adduced by the prosecution is evenly balanced, that is the evidence on record is susceptible to two likely explanations and while one is consistent with guilt the other is consistent with innocence, then the prosecution has not made a case against accused person and the accused person should be acquitted and discharged. See: Tsatsu Tsikata v The Republic (2003-2004) SCGLR 1068. The State v Ali Kassena (1962) 1 GLR 144 SC. Moshie v The Republic (1977) 1 GLR 287 CA. Dadie v The Republic (1977) 1 GLR 287 CA. Before I give my opinion in respect of whether or not a prima facie case has been established against the accused person, I will state the law on the offence preferred against him and the evidence that the prosecution led to prove their case against him. The accused person herein has been charged with one count of Causing Harm Contrary to Section 69 of the Criminal Offences Act 1960, Act 29. Section 69 provides “A person who intentionally and unlawfully causes harm to any person commits a second degree felony.” 13 Section 79 is the definitive section of unlawful harm and it is as follows; “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in chapter one of this part.” “There are three types or situations under which a person may be said to have caused harm to another. The two popular types of causing harm are the ones caused either intentionally or negligently by a person to another person. The third one which is causing harm by an omission is where harm is caused as a result of that person’s omission to perform a duty which would have prevented the harm from occurring to another person. The first ground under which harm is said to have been caused by an accused person to another person is where the act that caused the harm was intentionally caused by the accused person without justification. Under such circumstances, the prosecution is required to prove that the accused person intentionally caused unlawful harm to the victim without any justification in law. The second instance under which an accused person would be deemed to have caused harm to another person is where the accused person negligently caused harm to the said person without justification under law. The prosecution is required to prove that an accused person has unlawfully caused harm to the victim through the negligence of the accused person without justification in law.” See: Contemporary Criminal Law in Ghana, Justice Dennis Dominic Adjei @ 188. So for the prosecution to succeed on a charge of unlawful harm, the prosecution must establish beyond reasonable doubt the ingredients for any of the three situations where a person may be deemed to have caused harm without justification. 14 According to PW1the accused person tried to force himself into his room and when he resisted, he beat him up and then used a cutlass to slash him twice on his left arm. PW2 and PW4 corroborated his evidence. According to PW4 the accused person took the cutlass he used from their kitchen. It is also the case of PW3 that investigations revealed that the accused person has been threatening people in the community and the incident occurred after PW1 called the accused to advise him about his behaviour. He also tendered in evidence the investigation cautioned statement of the accused in which the accused told the police that PW1 hit him with a stick and attempted to hit him a second time but he held it with his right hand and in the process a ring he had on his forefinger injured PW1. From the evidence on record, I am of the view that there is a prima facie case against the accused person. He is therefore called to open his defence. (SGD) H/H NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) COUNSEL: C/INSPECTOR GODFRED DARKWA FOR PROSECUTION ACCUSED IN PERSON 15 REFERENCES OKEKE VRS THE REPUBLIC (2012) 41 MLRG 53 ABAKAH VRS THE REPUBLIC (2010) MLRG 111 CA AMARTEY VRS THE STATE (1964) GLR 256. GLIGAH & ANOTHER VRS THE REPUBLIC (2010 SCGLR 870. DEXTER JOHNSON VRS THE REPUBLIC (2011) SCGLR 601. MILLER VRS MINISTER OF PENSIONS (1974) 2 ALL ER 372 TETTEH VRS THE REPUBLIC (2001-2002) SCGLR 854 FRANCIS YIRENKYI VRS THE REPUBLIC (2017-2020) 1 SCGLR 433 KINGSLEY AMANKWAH (A.K.A. SPIDER) VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/04/2019 DELIVERED ON THE 21ST DAY OF JULY 2021 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.P VRS ANTWI (1961) GLR 408 SC WOOLMINGTON VRS D.P.P (1935) AC 462 ATSU VRS THE REPUBLIC (1968) GLR 176 CA. TSATSU TSIKATA VRS THE REPUBLIC (2003-2004) SCGLR 1068 LOGAN VRS LAVERICKE (2007-2008) SCGLR 76. 16 STATE VRS ANANI FIADZO (1961) GLR 416 SC. KAMIL VRS THE REPUBLIC (2010) 30 GMJ 1 CA. TAMAKLOW VRS THE REPUBLIC (2000) SCGLR 1 SC. BOSSO VRS THE REPUBLIC (2009) SCGLR 470. THE STATE VRS SOWAH & ESSEL (1961) 2GLR 743 KWABINA AMANING ALIAS TAGOR & ANOR. VRS THE REPUBLIC (2009) 23 MLRG 78 CA. THE STATE VRS ALI KASSENA (1962) 1 GLR 144 SC. MOSHIE VRS THE REPUBLIC (1977) 1 GLR 287 CA. DADIE VRS THE REPUBLIC (1977) 1 GLR 287 CA. BOOKS ESSENTIALS OF GHANA LAW OF EVIDENCE BY JUSTICE BROBBEY CONTEMPORARY CRIMINAL LAW IN GHANA BY JUSTICE DENNIS DOMINIC ADJEI.