Republic Vrs Annan [2022] GHACC 143 (14 November 2022)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON MONDAY 14TH DAY OF NOVEMBER, 2022 BEFORE H/H DORINDA SMITH ARTHUR (MRS.), CIRCUIT COURT JUDGE. _________________ SUIT NO. 221/2022

THE REPUBLIC

VRS

JOSEPH ANNAN

JUDGMENT The Accused person was arraigned before this Court on April 5, 2022 for the offence of Causing Harm, Contrary to Section 69 of The Criminal Offences Act, 1960 Act 29. The accused person pleaded not guilty to the charge preferred against him for which reason the prosecution assumed the burden of proof and must prove the charge against the accused person beyond reasonable doubt in accordance with; Section 11(2) of the Evidence Act 1975 NRCD 323 states; “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 will find the existence of the facts beyond reasonable doubt.” Page 1 of 12 Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng Vrs Republic [1977] 2 GLR 171 CA In determining what is proof beyond reasonable doubt, our courts generally rely on the definition of Lord Denning in MILLER VRS MINISTER OF PENSIONS [1947] AII E. R. 372 AT 374. This is summarised as that the evidence which the prosecution adduce in proof of the charge must preclude every reasonable hypothesis except those which tend to support the charge. Conversely, the accused only need to adduce evidence which raises reasonable doubt as to his/her guilt. The prosecution in order to discharge this burden called two witnesses and tendered four exhibits in evidence.

THE PROSECUTION CASE The summary of prosecution evidence is that complainant, PW1, is a trader and the mother of accused person’s two children. She was living with accused but she left the house of accused on 28/12/21 due to a misunderstanding between them for a friend’s house. She continued that on 30/12/21 at about 6:45pm, she went to the house of accused to pick her eldest son who was with accused person and also to take some dresses for the children. Accused denied her access to the room despite continues request she forced herself inside the room. Accused then warned her to go out from the room else he will harm her and that led to some exchange of words between them. Accused held her head and banged it against the wall where she sustained injury at the side of her right eye and some bruises on her left elbow. Accused assaulted her in the Page 2 of 12 presence of one Sister Pat and since that was the fourth time accused had physically assaulted her, she reported the matter to the police. PW2 is the police investigator and he tendered in evidence the caution and charge statements of accused, a medical report dated 30/12/21 and photographs of the injuries on PW1. He continued that his investigation revealed that accused has physically assaulted PW1 on several occasions. That PW1 had earlier reported the accused for assault where accused was warned by the police to desist from such acts. According to PW2, on 28/12/21 PW1 and accused had some altercations which made PW1 left the house but she left her elderly son with accused and went with the younger child. PW2 corroborated the evidence of PW1.

THE DEFENCE Accused person was advised on his options to testify where he relied on the caution statement he gave to the police. In his caution statement dated 31/12/21, accused stated that PW1 is his lover and he had two children with her. They were both living together but not yet married. He said about two to three months ago, PW1 quarrelled with their landlord’s mother and based on that the landlord asked them to vacate from the house. He continued that PW1 shown disrespect to the landlord so he was asked to leave. So he proposed to PW1 that she should go and stay in her family house for some time since they are not yet married of which PW1 agreed and left. He stated further that PW1 returned to the house on 30/12/21 to pick their first born who was with him and also to take dresses for the children. He told her to wait outside whiles he brings the dresses to her. She refused Page 3 of 12 and tried to enter the room with force. A struggle ensued between them and she eventually sustained the injuries. EVALUATION OF EVIDENCE, FINDING OF FACTS AND APPLICATION OF LAW Section 69 of Act 29, Criminal offences 1960 provides that: “a person who intentionally and unlawfully causes harm to any other person commits a second degree felony. In order to ground a conviction, the prosecution would have to lead sufficient evidence beyond reasonable doubt that the accused

person; ➢ ➢ Intentionally caused harm to PW1. That the act was unlawful Here, a burden is cast upon the prosecution to prove each and every one of the above two ingredients beyond a reasonable doubt that the accused person with intent to harm PW1 held her head and neck and banged the head on the wall of the room. The first element for causing harm is whether the accused person intentionally caused harm to PW1. The identity of the accused person here is not in issue. It is generally admitted by prosecution witnesses that accused person and PW1 know each other as accused person Page 4 of 12 is the lover of PW1 and they have two children together. They lived together until 28/12/21 when PW1 left the house of accused. What then is harm? Harm is defined under the interpretation Section of Act 29, 1960 Section 1 to be; "harm” means any bodily hurt, disease, or disorder, whether permanent or temporary.” Here, prosecution is to prove beyond reasonable doubt that whatever happened to PW1 was harm which can be any bodily hurt, disease, disorder whether permanent or temporary. From the prosecution evidence PW1 sustained a deep cut on her left eyebrow, bruises on her lips, and abrasions on her neck and both arms. PW1 narrated how accused person held her head, neck, and banged her head on the wall. The police medical report for PW1 dated 30/12/2021 signed by the Chief Medical officer Dr. R.

Arthur indicated that on examination, PW1 had deep cut in the lateral side of the right eye, swollen upper lip with cut in the mucosa, abrasions on both forearms and abrasions on left side of neck. The Medical doctor concluded that PW1 has soft tissue contusion on mouth and face, multiple abrasions on both arms and neck and laceration on right side of the face. Here, the medical report corroborated the evidence of prosecution witnesses that PW1 sustained injury, bruises and abrasions from the actions of accused where he held PW1’s head and neck and banged her head on the wall. The medical report also confirms that PW1was assaulted and harmed. Under Section 121(2) of Act 30, 1960, the court is to admit any document purporting to be an original report under the hand of a qualified medical practitioner relating to the Page 5 of 12 nature or extent of the injuries of any person certified to have been examined by the practitioner if it is produced by any police officer in any trial. Therefore, the medical report is accepted by the court as the true findings of the medical doctor even though the medical doctor was not examined. I hereby find as a fact that PW1 was harmed by accused person when he held her neck and head and banged her head on the wall without her consent. Further, prosecution is to prove that the harm caused to PW1 was done intentionally by accused person. The

provisions relating to intent is given under Section 11 of Act 29/1960. Subsection (1) provides that: (1) 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, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event. Also, the learned author P. K. Twumasi in his book Criminal Law in Ghana p77 stated that: “The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common law which has been accepted as an important principle of our criminal law.” Page 6 of 12 Here, intention can only be inferred from the proven facts where prosecution has to prove that the accused person’s actions caused harm to PW1 whether he believed or not that his actions would cause such harm. PW1 testified that she lived with accused together but left the house due to some misunderstanding. She returned the house of accused to pick her elderly son who was with accused person and also to take some dresses for the children. Accused denied her access to the room despite continues request so she forced herself inside the room. Accused then warned her to go out from the room else he will harm

her and that led to some exchange of words between them. Accused held her head and banged it against the wall where she sustained injuries. According to PW1 that assault was the fourth time accused had physically assaulted her, so she reported the matter to the police. Form the evidence, accused wanted to harm PW1 and informed her of his intentions that if she does not leave the room he will harm her and he actually carried out his intentions. I therefore find as a fact that accused person intended to harm PW1 and did harm her intentionally as inferred from the proven facts even if that harm was temporal as provided under the interpretation Section of Act 29/60. It can therefore be safely inferred that accused person intended to harm PW1 and did harm her when he held her head and neck and banged her head on the wall. Was the harm reasonably foreseeable by the accused person? Any reasonable man can come to but one conclusion that if a person’s head is banged on a that person will sustain injuries or abrasions. Also, any reasonable person can come to but one conclusion that if he holds another’s neck with force and or pushes that Page 7 of 12 person on a wall that person will sustain injuries and abrasions. Hence, the actions of accused person can be deemed to be reasonably foreseeable by any reasonable man. This presupposes that accused person knew that his actions can cause PW1

to sustain bodily harm. I therefore find as a fact that accused person reasonably foresaw the harm he caused to PW1. The next issue is whether or not the act was unlawful. To prove this element, prosecution is to lead cogent evidence to prove that the harm caused to PW1 was unlawful. This is done where prosecution is able to establish that accused person’s actions was not justified under Section 30 of Act 29. This indicates the availability of defences of justification such as self-defence and consent of the complainant of that harm. Section 76 of Act 29 Criminal offences Act 1960 defines unlawful harm as: “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter one of this part.” At this stage, the evidence of defence is determined by the court to see whether it satisfies any of the justifications mentioned in the Act or whether the evidence adduced by accused person raises a reasonable doubt in prosecution’s case. Under the Evidence Act supra what is generally called the burden of proof has two elements. They are the burden of persuasion and the burden of producing evidence. Here, the two are not the same. The burden of persuasion as provided in Section 10 of the Act involves the establishment of a requisite degree of belief concerning a fact in the mind of the court; or that the party raises a reasonable doubt

concerning the existence Page 8 of 12 or non-existence of a fact, or that the party establishes the existence or non-existence of a fact. This burden is on both the prosecution and the defence. Accused person did not testify but relied on his caution statement he gave to the police on 31/12/21. The accused has a statutory right under Section 174(1) of Act 29/60 reinforced by Section 63 of NRCD 323 to make unsworn statement. The caution statement is an unsworn statement but it contains confession statement. He corroborated the evidence of PW1 and even explained further why PW1 had to leave the house. From his statement, he proposed to PW1 to leave the house for some time which she obliged so it is a surprise that he tried to prevent PW1 from entering the room she had lived with him for months if not years. Accused also admitted that PW1 sustained injuries but he attributed the cause to a struggle that ensued between them. Was he harmed? The court can never know because he did not state so and by choosing to rely on his caution statement, he denied prosecution and the court from knowing possible answers that might come out from his evidence. The court therefore accept this caution statement as a confession statement of the accused as it was given voluntarily before an independent witness in accordance with Section 120 of the Evidence Act, supra. In sum, flowing from accused

person’s caution and charge statements, it can safely be inferred that the accused had the intention of causing harm to PW1 and he carried out his intentions. Therefore, the accused act was unlawful considering there was no justifiable defence to his act of causing harm to PW1 and considering the medical report and other exhibits Page 9 of 12 tendered in evidence it can clearly be seen that the accused person intentionally and unlawfully harmed PW1. In conclusion, the justification under Chapter One of Act 29, (1960) can not avail the accused person as he admitted to the offence in his caution statement, as the entering of the room both shared for dresses for the children does not constitute enough provocation as the test for the application of the justification of the use of force is whether or not its usage is reasonably necessary. Therefore, accused person could not discredit the evidence of prosecution and could not raise a doubt in his defence as his defence is in fact a confession statement.

DISPOSITION I have considered the totality of the evidence adduced by the defence and prosecution and I am satisfied that the prosecution proved beyond reasonable doubt the charge of causing harm against the accused person. I hereby find accused person guilty for causing harm Contrary to Section 69, of Act 29/1960 and convict him.

PRE SENTENCING HEARING I have considered the relationship that exists between the parties as they have two children between them. I have also noted the gravity of the injury caused to the complainant. Page 10 of 12 I have noted that intimate partner violence or domestic violence is prevalent in the region and the public should be educated on its traumatic effects on the victims, children of such relationship, and the family. I hereby sentenced accused person to a day’s imprisonment and in addition accused person is bonded to be of good behaviour for three years in default to serve three years IHL. Accused person to compensate the complainant with the sum of Five Thousand Ghana Cedis (Ghc 5000) within one month from today. H/H DORINDA SMITH ARTHUR (MRS.)

CIRCUIT COURT JUDGE ACCUSED PERSON PRESENT. PROSECUTOR: C/INSP. CHRISTIANA SAMPONG PRESENT. Page 11 of 12 Page 12 of 12