REPUBLIC V KYERE (B3/05/2020) [2024] GHADC 535 (21 October 2024)

IN THE DISTRICT MAGISTRATE COURT HELD AT GBESE ON MONDAY 21ST DAY OF OCTOBER, 2024 BEFORE H/H NANA ADWOA SERWAA DUA-

ADONTENG OFORI SITTING AS THE JUDGE CASE NO. B3/05/2020

THE REPUBLIC

VRS

KWESI ADJEI KYERE Accused Person Inspector Luke Taylor for Republic Christopher Lartey, Esq for Accused Person Present Present Present

FINAL JUDGMENT

INTRODUCTION This case between two brothers fighting over their father’s property is a tale well known to Christians all over the world. And like the biblical Jacob and Esau story, it is imperative that the rightful son is giving what is due him. In the Esau and Jacob case what was due the sons, was the blessings of their father; in this case, what is due, is a 1 possible sentence to prison custody, fine, execution of bond to keep the peace or an order to pay compensation if the court finds one brother guilty of threatening to kill the other brother over their late father’s estate or conversely, an acquittal and discharge, if he is found innocent of the charge. Preliminary Issues Before the merits of the case is determined, I must first state that without the court intending it to be so, this case which begun on 23rd October, 2019, has rather uncharacteristically passed through the justice mill for such a long time that it is hoped that today with this judgment, justice although delayed will not be said to be justice denied. To ensure that undue disrepute is not suffered by the judiciary by the delay of this court, it is crucial that I explain the reason for this delay. This is a case which has been handled by four different magistrates, eight different lawyers for the accused person and four different police prosecutors from commencement to date. And with each time there was a

change in these positions, the case suffered either an adjournment or drawback. In addition to all these changes, I was, while the case was still pending promoted to the Circuit court and returned on different days to conclude hearing and adjourn for judgment. 2 FACTS & CHARGE The State charged the Accused with Threat of Death contrary to section 75 of the Criminal Offences Act, 1960 (Act 29). Accused pleaded Not Guilty to the charge and was admitted to bail to stand trial. Per the brief facts attached to the charge sheet, it is the case of complainant that he was ordinarily resident in Canada and returned to Ghana to take charge of his late father’s estate which he claimed was being maladministered by the Accused. Complainant and Accused are brothers with complainant claiming Accused is not a biological son of his father. Complainant’s plaint was that prior to his return to Ghana, he had sent some monies to Accused to purchase a vehicle for him and the Accused squandered the money resulting in disagreement between the two of them. This disagreement enflamed upon his arrival in Ghana when he, complainant realized not only was the money for the car misapplied but Accused had lay waste the estate left by his father. It was therefore his, complainant’s, intention to put all affairs relating to the estate back in order and it was this which triggered Accused to the point where he

threatened to kill him. The court conducted Case Management Conference (CMC) and it was settled at the CMC that the trial shall be conducted on witness statements. 3 PROSECUTION’S CASE Prosecution presented three witnesses they intended to call to testify but called only two because they seemed never ready to proceed with their case and when their first witness was done and they were called upon to call the second witness, the said witness was not made available to the court to testify. The prosecution therefore called their Prosecution Witness (PW)1 and Prosecution Witness (PW)3 being the complainant and the investigator. PW1 relying solely on his witness statement and no other disclosures testified that Accused had been deceptive about he, Accused’s paternity and this deception brought about an initial disagreement between the two of them. The disagreement being who was the rightful person to inherit their late father’s estate. He further testified that he found out that Accused was maladministering the estate and this led to further disagreement between the two of them eventually culminating into a court matter. PW 1 continued that there were instances when rent due him was collected by Accused and not given to him and the disputes between the two of them went as far back as his college days. He said that Accused was known to dabble in seance, sooth saying and black magic

and therefore when he threatened to kill him, he took that very seriously believing that even if the threat was not carried out physically, same would be carried out metaphysically. 4 PW3, Detective Inspector Alex Aidoo testified that as the investigator, PW 1 lodged a case of threat of death to him. He then proceeded to procure communication records from Accused’s mobile phone operator, MTN, to confirm the allegations made by the complainant. He testified that having gathered sufficient evidence to found a charge, he arrested the Accused, cautioned him, charged him and arraigned him for court. PW3 in addition to his witness statement also tendered the mobile phone logs, text messages of the Accused, the investigation caution statement and charge statement. There was no objection raised to any of these documents and all were adopted into evidence. Although the prosecution filed witness statement for PW2, the said PW2 was not available to be cross-examined by the Accused or his lawyer. I therefore in assessing the evidence of the prosecution, will not rely on the content of the witness statement filed by the PW2. Section 62 of NRCD 323. Burden of Proof on prosecution This being a criminal trial, the burden of proof in the sense of the burden of establishing guilt of the Accused lay on the prosecution and the failure to discharge that burden will lead to acquittal by this

court. Section 15 of the Evidence Act, 1975 (NRCD 323) provides that “Unless and until it is shifted, the party claiming that a party is guilty of a crime or wrongdoing has the burden of persuasion on that issue” 5 Proof beyond reasonable doubt Section 11(2) of 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 could find the existence of the fact beyond reasonable doubt”. It is settled law that prosecution must prove its case by admissible evidence. ACCUSED/DEFENCE’S CASE At the close of prosecution’s case and after a ruling on Submission of No case pursuant to section 173 of the Criminal Procedure Act, 1960 (Act 30), the Accused was asked to put forth his defence. It was Accused’s defence that he and complainant are brothers who had a disagreement over some money issues. He said during the heated argument, he told the complainant that he will go and collect the money from somewhere and that the statement was only made from anger, and he did not intend to kill the complainant. Accused testified that since he made the statement, he had met the complainant on several occasions at he, Accused’s house and the two even once had a conversation while in court. Additionally, Accused

testified that to even prove that he had no ill- intentions towards the complainant, he, Accused collaborated with complainant to celebrate the one-week ceremony of one of their sisters. Accused called one witness, Godfred Oteng Anim-Addo who testified that he was personally present when 6 complainant came to Accused’s house even after the alleged threatening remark was made. Burden of Proof on defence The burden of introducing evidence shifts to the accused only if at the end of the case of the prosecution an explanation from the accused is called for. The extent of the onus of proof on the defence is to raise a reasonable doubt as to his guilt. Defence statement The prosecution tendered into evidence caution statement and charge statement of the Accused neither of which was objected to by Accused’s counsel or Accused himself. Additionally, the statement of Accused the basis on which the charge of threat of death was formed, was contained in a text message which was also tendered by prosecution and unobjected to by the Accused or his lawyer. I find that there is no duty on Accused to confess or confirm to any statement made to the police or during investigations except a confession statement which is made in accordance with section 120 of NRCD 323. Issues for determination A proper ascertainment of the issues for trial enables me to determine the respective onus on the prosecution and defence. These are the issues I have set down for determination: 7 1. Whether or not the evidence presented by prosecution support the charge of Threat of Death.

2. Whether or not the defence put forth by the Accused raises a reasonable doubt as to guilt. Applicable Law and ingredients of proof Act 29, section 75 provides that “[a] person who threatens any other person with death, with intent to put that person in fear of death, commits a second-degree felony.” The charge requires evidence of a threat to kill by Accused against Joesph Kwaku Kyere (PW1), and that Accused had the intention to put and did put PW1 in fear of imminent death. It is immaterial whether the threat would be capable of being carried out by Accused. Having stated the substantive law and the mandatory ingredients of the requisite proof, I need to state here that the standard of evidential proof of the charge against the accused persons as enjoined by statute is one beyond a reasonable doubt. The prosecution assumes the duty “to produce sufficient evidence so that on the totality of the evidence, a reasonable mind could find the existence of the fact beyond a reasonable doubt.” Evidence Act, 1975 (NRCD 323) s.11(2). The accused person bears no duty under the law to establish proof of his innocence. The law requires him just to raise a reasonable doubt or improbability of the existence of the case of the prosecution. 8 I take notice that the accused person did not raise a defence of alibi properly so-called in his statements to the police; neither at the trial. It is

not surprising given that the offence of threat of death may be committed without the Accused being physically present at a specific location and particularly in this case, the threat was allegedly made electronically. Finding of facts – assessment of prosecution evidence on record Whether in a civil or criminal action, the core duty of a trial court is to resolve the primary facts and having done so to state its findings from the panoply of evidence on record. The correct application of the law depends on the processes of correct fact findings. Quaye v Mariamu [1961] GLR 93, SC at 95 para.

3. As was held in Adu Boahene v. The Republic [1972] 1 GLR 70, CA, in criminal trials, it is not just a necessity for the prosecution to establish proof of the commission of the crime, but also, in fact, most importantly to lead evidence that establishes proof of the presence of the accused not only at the crime scene but also of his participation in the commission of the crime. The evidence of PW1, the complainant is that his brother Accused threatened to kill him after a disagreement erupted between them over their father’s property. PW1 claims his life became at risk from the day the words were muttered because he knew Accused to 9 practice black magic. Therefore, Accused had the means of carrying out his threat to kill him. PW1 said Accused wanting him to know the threat was real, followed the verbal threat made during a phone conversation with a text message to wit “you are a wicked brother, I will show you. I will let you know that I am your senior, you are a big fool. I repeat you are a fool, you try me, I will kill you, Kwaku you will die” The question I must answer is whether the fact that the complainant believed his brother dabbled in black magic, heightened his belief the threat was real and imminent. Without equivocation, it is imperative to state that the law court does not give validity to metaphysics, whether it exists, it is practiced or it is believed in. The

1992 Constitution in Article 11 recognizes the Ghanaian customs and customary law as a law of Ghana. It is uncertain whether the spiritual practices alluded to by the complainant to be practiced by the Accused falls under customs. I will not dare fathom a guess since the prosecution failed to provide any evidence to this fact. What the prosecution did however do was to provide evidence in the form of a text message sent from a telephone number registered in the Accused’s name to a telephone number registered in the complainant’s name with clear, unambiguous words that he, Accused will kill complainant. Accused did not state the means of carrying out his threat, the location, the date, the time or even if the threat will be carried out by him personally. This was a threat infinitum and complainant testified that he took it as such. 10 The question then arises that if complainant believed the Accused’s threat, why was regularly found in the enclave or environs of the Accused. It is the complainant’s response that he and Accused shared a family property as tenants-in-common and for many years he had relied on the Accused to manage the property and render the necessary account. However, he had come to find that to be a grave error on his part and so he needed to personally take charge over his own affairs concerning that property. It is for this reason that despite the threat, he

still went to the property occupied by the Accused. Complainant insisted that he did not go to the property to visit the Accused although he had seen him there on occasion but went to attend to his personal business. Therefore, merely because he went to the property did not mean he did not fear for his life and that he did fear for his life that is why he quickly reported the threat to the police. Another question that I find arising is, can the threat be deemed to be believable by the complainant if he believes its execution will be metaphysical. Simply put, if the accused did not put a physical weapon to the complainant’s head or neck threatening to unalive him, can complainant be deemed to be threatened indeed. Witchcraft, black magic and the like is generally not accepted by law because it is difficult to prove. In India, the Maharashtra Prevention and Eradication of Human Sacrifice, other Inhuman and Aghori Practices and Black Magic Act, 2013, criminalizes practices relating to black magic, human sacrifices, use of magic et cetera. Ghana does not have a provision 11 relating to the criminalization of such practices. At best, we have provisions seeking to protect people accused of witchcraft. In the article “Influencing judicial process using black magic: Experiences of court users from the House of Chiefs in Ghana” published in the Ghana Social Science Journal 2023, Vol20

(2) pages 229-245, writers, Alhassan Suleman Anamzoya and Joshua Gariba, concluded that the role of black magic in the court of law had not been given adequate attention despite the belief in the practice being rife. If it is not possible to prove that complainant believed the Accused’s threat was real, how then can prosecution succeed in establish that the complainant feared for his life. PW3, the investigator responds to this question by saying, complainant lodged a complaint with the police upon receipt of the threatening text message. It is for these reasons that at the close of the prosecution’s case, I concluded that a prima facie case had been made against the accused person for which I directed him to open his defence; perhaps to enable him to provide some sort of explanatory evidence that could probably deflect and cast doubt on prosecution’s case. The standard of proof here under this strand of the burden of proof on the accused is one of “preponderance of probabilities” of belief in the mind of the court as to the existence or non-existence of a fact in issue. Credibility 12 I am bound to determine the credibility of witnesses who appeared before me during trial. In assessing credibility, I took into consideration the demeanour of the prosecution witnesses, accused and his witness. With respect to the accused, I find that though he was present in court, he was not

rushed to have the case concluded. He frequently appeared without his lawyer and a lawyer appeared in court only after the court had threatened to proceed. That in certain instances, the court had to let him conduct the case himself or solicit the help of willing lawyers who acted as amicus curae due to incessant absences from his lawyers. I do not conclude that merely because Accused changed his lawyer severally during the trial is an indication of guilt but rather an indication of seeking the right legal representation to ensure he was properly heard by the court. Concerning the complainant who was the prosecution’s first witness, it is my assessment that he had a frustrated demeanor which he vented to the court on several occasions because of the delays in hearing the case. The complainant was frustrated with the prosecution for the slow and dilatory way they were conducting the case and irritable with the Accused’s lawyers for their frequent absences and lack of preparedness. I am however quick to add that these impressions although apparent on the record have been weighted against all other evidence on records and do not form the sole basis for my conclusion herein. Findings of primary fact from the evidence of the accused person 13 I am of the view that by the nature of evidence the accused person produced at the trial, he botched the opportunity to cast a reasonable

doubt in my mind as to the certainty of the prosecution’s case. The evidence of PW1, the complainant is that his brother Accused threatened to kill him after a disagreement erupted between them over their father’s property. PW1 claims his life became at risk from the day the words were muttered because he knew Accused to practice black magic. Therefore, Accused had the means of carrying out his threat to kill him. PW1 said Accused wanting him to know the threat was real, followed the verbal threat made during a phone conversation with a text message to wit “you are a wicked brother, I will show you. I will let you know that I am your senior, you are a big fool. I repeat you are a fool, you try me, I will kill you, Kwaku you will die” During cross-examination of Accused, the prosecutor asked Q. on 11th February, 2019, you did text complainant through SMS on sim number 0243371664 that bears your name Kwasi Agyei Kyere with threat of death with words to wit “you are a wicked brother, I will show you. I will let you know that I am your senior, you are a big fool. I repeat you are a fool, you try me, I will kill you, Kwaku you will die” is that correct? A. Yes, My Lady I did. Despite pleading Not Guilty, the Accused clearly by the question admitted to threatening to kill the complainant. 14 Accused called to testify on his behalf a neighbour of his, Godfred Anim-Agyei, whom he

claimed was present when the complainant came to his house and witnesses the altercation between the two brothers. It is either the witness did not understand that he was being called by the Accused to debunk the allegations of the actual words of threat being spoken by the Accused because from his evidence, the witness, DW1, seemed to believe he was required to tell the court that he had seen the complainant come to the Accused’s house even after the threat was issued or that the witness was being untruthful as to what he actually perceived. The evidence he presented was only to corroborate the Accused person’s testimony that after the threat was made complainant had been in Accused’s company and therefore if he believed the threat he would not have continued to be within proximity of the Accused. Contrastingly, Accused in his testimony claimed that DW1 would corroborate his testimony that he did not threaten the complainant because at the time of the verbal argument, DW1 was present and would attest to the fact that no threat was made by the Accused. There is inconsistence between the statement made by the Accused that he did not threaten the complainant but merely had a verbal disagreement which erupted into words being uttered in anger and Accused admitting to the SMS he sent to complainant threatening to kill him. Per his responses under cross-examination, I find Accused was untruthful when he said he did not threaten the complainant. Accused has therefore not been able to raise 15 reasonable doubt as to his guilt and I find that he indeed threatened to kill the complainant.

CONVICTION From the totality of evidence produced at the trial, my view is that the prosecution has reasonably without any shred of doubt in my mind discharged the burden of proof required in the case. In any event, the accused person in my view failed to cast any doubt in my mind of the uncertainty or improbability of the case of the prosecution. I have the equanimity of mind to find the accused person guilty of the charge laid against him; I convict the accused person accordingly on the charge of threat of death. Prior Conviction Prosecution informed the court Accused has no prior conviction.

SENTENCING In the case of Kwashie v the Republic [1971] 1 GLR 488-496 where it was held that In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence (2) the degree of revulsion felt by law- abiding citizens of the society for the particular crime; (3) the premeditation 16 with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; or in the country generally;(5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” Having taken into account the nature of the crime, (second degree felony), the consanguinity of the parties, (uterine brothers), the fact that Accused is a first time offender, the prevailing circumstances giving rise to the offence (property dispute between the parties), the effect of the offence on the victim, I sentence the Accused as follows; 1. to pay a fine of 200 penalty units in default to serve a term of imprisonment for six (6) months AND 2. To execute a bond to keep the peace for two years and in default of giving recognizance, to be imprisoned for a maximum period of six months AND 3. To pay compensation of Ghs1,000 to the victim (complainant). The compensation SHOULD NOT be paid out of the fine imposed. H/H NANA ADWOA SERWAA DUA-ADONTENG 17