Republic Vrs Annan and Others [2022] GHAHC 86 (1 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN CAPE COAST ON 1st NOVEMBER, 2022 BEFORE HIS LORDSHIP JUSTICE EMMANUEL ATSU LODOH BI/05/2017 REPUBLIC VS 1. 2. 3. 4. 5. 6. 7. KWAME ANNAN KOBINA OTOO@YUSSIF ABDULAI KWAME ATTA KWAME YUSSIF@KWAME ALLELE KOJO ATTA SULEMANA ISSAKA@SEWIN BURGER KWABENA ISSAAC AHENAKWA SUMMING UP Benjamin Agyemfra, Senior State Attorney for the prosecution. Daniel Arthur, Esq. for the accused person. Summing up begins at 9:56 1 of 29 Ladies and Gentlemen of the Jury, the above named accused persons have been arraigned before this court each charged with one count of the following offences: 1. Conspiracy to Commit Crime to wit: Murder contrary to section 23(1) and section 46 of the Criminal Offences Act, 1960 (Act 29); and 2. Murder contrary to section 46 of Act 29. The basis for these charges are that they are alleged to have each contributed to intentionally causing the death of young male by name Kofi Kakraba at Ebubonko in the Central Region of the Republic. You have diligently sat through the trial and listened to the evidence led by the prosecution and the defence. You have also heard the closing submissions of the state attorney and defence counsel. You are now about to retire to deliberate on the matter. Before you do so however it is my duty to sum up the evidence and direct you on the applicable laws in this case. Duty of the Jury Ladies and Gentlemen of the Jury, please note that you are bound to accept my directions on the law and apply them to the evidence. This is a very important point you must apply yourselves to. In relation to how you evaluate the evidence in arriving at findings of fact, you alone are the sole judges and therefore you are free to make your own independent decisions. You must however ground your decision on the evidence presented to you by both sides in the courtroom only on not those you have heard or read outside the borders of this courtroom. You are also reminded of your oath and accordingly directed to arrive at your decision after a rational and fair consideration of all the evidence. You are further directed to purge yourselves from any passion, empathy, sympathy, or prejudice either against or for the accused, the victim or anyone connected or interested in the case. Your duty therefore as jurors is to assess the evidence impartially and independently. 2 of 29 Verdict Members of the jury, the law provides that the verdict you return must be unanimous in order for the accused person to be either convicted or acquitted. Therefore you must either return a unanimous verdict of guilty or not guilty for conspiracy and murder. You are at liberty to also return a verdict of manslaughter if you believe that same is the appropriate verdict under certain proven conditions. I will discuss the circumstances under which you can return a verdict of manslaughter shortly. Burden of Proof Members of the Jury, you are reminded that the seven (7) accused persons each pleaded not guilty to the charges levelled against them. The combined effect of the accused person’s plea of not guilty therefore and Article 19 (2)(c) of the 1992 Constitution of Ghana, is that, the accused persons will be is presumed innocent until their guilt is proven. As a consequence of this constitutional presumption of innocence the prosecution and not the accused is obligated under section 11 (2) of the Evidence Act, 1975 (NRCD 323) to put before the court evidence to prove the guilt of the accused beyond reasonable doubt. The aforementioned allocation of the evidential burden is provided for under section 11 (2) of NRCD 323 which states: 11(2). In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution 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. This obligation was explained in the case of Republic v Adu-Boahen and Anor. [1993-94] 2 GLR 323 in which Justice Kpegah JSC pronounced as follows: 3 of 29 “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person. Since no admissions are made or may be made unlike civil cases, the prosecution, when a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. So what do I mean, when I say the prosecution must proof its case “beyond reasonable doubt” in order to establish the guilt of the accused person. Members of the jury, there is a legion of authorities on the subject, I will however refer to two cases. The first is that which was succinctly stated in the case of State v Afenuvor [1961] GLR 655. In the said case the Supreme Court held and as was reported in holding 1 of the report as follows: “From the authorities it is sufficiently clear that the summing-up must, in respect of the burden of proof resting upon the prosecution, direct a jury that they should not merely be “satisfied” but they must be either “satisfied beyond reasonable doubt” or “completely and entirely satisfied” or “satisfied as to be quite sure”” Also in the case of Brobbey and Other v The Republic [1982-83] GLR 608@614 Twumasi J. (as he then was) stated that: “It is as well at this juncture to emphasise that proof beyond reasonable doubt in a criminal trial implies that the prosecution’s case derives its essential strength from its own evidence. Therefore where part of the evidence adduced by the prosecution favours the accused, the strength of the prosecution’s case is diminished proportionately and it would be wrong for a court to ground a conviction on the basis of the diminished evidence”. 4 of 29 Finally, let me refer you to the case of Millar vrs. Minister of Pensions [1947] 2 ALL ER 372 at 373 where Lord Denning explained the nature of proof beyond reasonable doubt as that: “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 probabilities or possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility, in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable‟, then the case is proved beyond reasonable doubt”. Ladies and gentlemen of the Jury, during your deliberations, when you are of the conviction that the prosecution ought to have called in more evidence to convince you in respect of any element of the offence, know that the prosecution would have failed in its duty to prove the guilt of the accused beyond reasonable doubt and therefore you must return a verdict of not guilty. Again in your deliberations you may believe a witness, disbelieve a witness, or you may not be even able to decide. You need not fully believe or disbelieve the witnesses. If you have a reasonable doubt about the accused persons’ guilt arising from the evidence presented by the prosecution’s witnesses, then you must find them not guilty. Ladies and gentlemen of the jury, in evaluating the evidence led by the accused persons, note that the only legal burden on the accused is to raise REASONABLE doubts in the evidence led by the prosecution and not to prove his innocence. Therefore the test you must apply to the evidence of the accused person before arriving at your verdict is that which was succinctly stated in the case of LUTTERODT v. COMMISSIONER OF POLICE [1963] 2 GLR 429. In this case the Supreme Court stated that: 5 of 29 “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and (3) Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit” Finally, do not dwell on minor inconsistencies and conflicts which are not fundamental or material. As was held in the Supreme Court case in Efisah v Ansah [2005-2006] SCGLR 943, the courts should not allow “minor, immaterial, insignificant, or non-critical inconsistencies be dwelt upon to deny justice to a party who has substantially discharged his or her [legal] burden” Summary of Facts Ladies and gentlemen of the jury, the facts of this case were presented to the court on 15th February, 2021. According to the prosecution this action was triggered by a complaint by Ebusuapanyin Kobina Atta, a farmer and head of family of Kootwea- Mansa of Ebubonko, a surburb of Cape Coast. According to the prosecution the antecedents of this case takes its root from a protracted land dispute between the 6 of 29 complainant with his supporters on one hand and a certain Ebusuapanyin Mallam Mumuni Ekow Effi and his supporters on the other hand and that their respective supporters occasionally clashed over their differences. The prosecution says that on 13th May, 2015, the Supreme Court dismissed a motion filed by the complainant against the other faction. That after the pronouncement of the judgment each of the parties called and informed their followers back home about the outcome of the case. The prosecution then continued as follows: “On the same day at about 2,30pm, 1st Accused person was alleged to have been assaulted by the deceased. That the 1st Accused person then mobilised the other accused persons and subjected the decease to beatings. The 2nd Accused person in the course of the beatings held the hand of the deceased whilst the 7th Accused person hit the deceased at the back of his head with an implement (a hoe). The Accused persons then abandoned the deceased in an uncompleted building and absconded. The deceased was found in a critical condition and rushed to the hospital. On the way to the hospital the deceased mentioned the names of the Accused persons as the ones who assaulted him. The deceased was pronounced dead on arrival at the Central Regional Hospital and was deposited at the Hospital Morgue for preservation and autopsy”. The prosecution further stated that the autopsy report conducted on the body of the deceased disclosed that the deceased died from Bilateral Subdural Haemorrhage and fractured skull and multiple blunt head trauma. That after investigations the accused persons were arrested and charged with the offences. The Trial The prosecution called five witnesses during the trial. These were Dominic Assan (PW1); Rose Quansah (PW2); William Assan (PW3). Dr. Patrick Kofi Akakpo (PW4) 7 of 29 and D/Inspector Alimah Tandoh (PW5). All the accused persons testified. They also called Nana Kweku Eduakwa III (DW1) as their sole witness. Elements of the Offence Ladies and gentlemen of the Jury, as stated earlier, the prosecution can only be said to have established that an accused person committed a crime when they are able put before the court credible and admissible evidence in proof every single element of the offence beyond reasonable doubt. So my directions to you will touch on the statutory definition of the two offences and the elements of the offence the prosecution are obligated to prove. I will direct you on the murder charge first. Murder Section 47 of Act 29 defines murder as follows: “A person who intentionally causes the death of another person by an unlawful harm commits murder, unless the murder is reduced to manslaughter by reason of an extreme provocation, or any other matter of partial excuse, as is mentioned in section 52”. From the above definition the ingredients to be extracted are: 1. That Kofi Kakraba is dead. 2. That he died as a result of harm. 3. That the harm was intentionally caused by the accused persons. 4. That the said harm was unlawful 5. That the harm was intended to cause the death of Kofi Kakraba. Kofi Kakraba is dead 8 of 29 Ladies and gentlemen of the jury, the first question you will be saddled with is to determine whether on the totality of evidence, the prosecution has proven beyond reasonable doubt that Kofi Kakraba is dead and that he died on 13th May, 2015 at Ebubonko in the Central Region of Ghana. In this regard, the evidence of the pathologist (PW4) is as follows: Q. Did you personally do the autopsy on the body of deceased Kakraba A. Q. A. Q. Kofi on 2nd June, 2015? Yes. I did. Did you issue a report to that effect? Yes. Take a look at this document at this document and tell the court what it is? A. It is the full autopsy report for Kakraba Kofi aged 34 years. I will want to tender it as evidence to the court. Defence counsel: No objection By Court: Autopsy report on Kakraba Kofi dated 20th September, 2019 and authored by the witness admitted in evidence and marked as Exhibit ‘A’. Members of the jury, I am absolutely certain you will not disagree with me when I suggest that autopsies are performed on dead bodies. There was no disagreement about the identity of body as that of the deceased person in this case. You will also agree with me that on the totality of the evidence presented there was no disagreement that Kofi Kakraba died on 13th May, 2015. Indeed all the accused persons in their witness statement stated that became aware that Kofi Kakraba was 9 of 29 dead. However, note withstanding my opinion on the matter, you are at liberty to make a finding independent of my opinion on the facts supra. That he died as a result of Harm. Ladies and gentlemen of the Jury, I will now direct you on the second ingredient of the offence, which is that the prosecution must put before you credible and admissible evidence to prove that the deceased death was caused by harm inflicted on his body. Section 1 of Act 29 defines “harm” as a bodily hurt, disease, or disorder whether permanent or temporary”. Thus the term “harm” connotes physical injury, especially that which is deliberately inflicted to or on the body of a person. PW4, the pathologist’s evidence regarding how the deceased died is as follows: Q. A. From the report, what is the cause of death of the deceased? The cause of death is stated as bilateral subdural hematoma and fractured skull from multiple blunt head trauma. Q. Please tell the court the findings you made and how those findings are related to the cause of death as stated in the report. A. The finding is summarized in the last page with the subtitle ‘autopsy summary’. Q. Tell the court how these findings are related to the cause of death. Please explain? A. The finding suggests that the deceased bled out the subdural space and also suffered multiple broken bones on the head. That is the skull, with multiple cuts of the scalp, which is the skin that covers the head. In 10 of 29 addition to that the brain was also edematous. These fractures are in line with the use of blunt force on the head. Let me direct you however that were find that there exists no causal link or relationship between the physical injuries/harm said to have been sustained by the deceased and his death, please note that you will then be obligated to return a verdict of not guilty. It is imperative that the prosecution satisfies you that the death of the deceased was as a result of the harm he sustained on the alleged day of the incident. That the harm was caused by the accused person intentionally Ladies and Gentlemen of the Jury, in the event that you find that the victim died as a result of harm, you are then to proceed to determine, given the circumstances of this case, what to all intent and purposes is the key question. The issue of fact you will be tasked to unravel is whether the prosecution has put before this court evidence to proof beyond reasonable doubt that the persons who inflicted the harm on the deceased were the accused persons in the dock. Members of the jury, as a background to the appreciation of the evidence of the prosecution witnesses do remember that the defence of the accused persons is that they were nowhere near the deceased at the place and time when the deceased was allegedly lynched. Again in determining this matter you are at liberty to rely on direct eye witness accounts of the incident or circumstantial evidence where direct evidence is not provided. The importance of circumstantial evidence was explained in the case of Frimpong alia Iboman v The Republic [2012] 1 SCGLR 297 at 314 by Dotse JSC as follows: “What must be noted is that, a crime is always investigated after the act had been committed. However, during the investigation, the Police are able to put together strings of activities and 11 of 29 draw the necessary inferences and conclusions. Some of the evidence might be direct and therefore quite conclusive, but others might be indirect, and referred to as circumstantial. Some crimes are investigated based solely upon circumstantial evidence as apart from the accused there might not be any living eye witness of the crime. But courts of law will not throw their hands in despair only because there is no other eye witness account of the crime. This is the relevance and importance of circumstantial evidence which can be used to put together a very strong credible case capable of securing conviction for the prosecution. The Supreme Court in the celebrated case of State v Anani Fiadzo [1961]GLR 416 held on the issue of circumstantial evidence as follows:- “Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence, and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion.”” Alibi Members of the Jury, learned state attorney in her address to you invited you to consider the question of alibi. Alibi is simply a claim that a person was elsewhere when a criminal act is alleged to have taken place. The state attorney invited you to disregard the defence of the accused on the ground that they failed to file particulars of alibi for same to be investigated during the trial as required by law. 12 of 29 Firstly, know that the State Attorney was right when she stated that the our criminal jurisprudence provides that where during a trial an accused person intends to rely on the plea of alibi, the accused person ought to serve notice of this on the prosecution (see section 131(1) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30). However, where I respectfully disagree with her and accordingly direct you on the correct position of the law as I understand her understanding of the legal effect of the failure of an accused person to comply with section 131(1) of Act 30. Members of the Jury firstly let me inform you that the failure of an accused to furnish the prosecution with a notice of alibi, does not absolve the prosecution of its imperative duty to put before you evidence proof to establish the elements of the offence beyond reasonable doubt. Thus where an accused person fails to file any notice of alibi, you as judges of fact cannot automatically arrive at a default finding that the prosecution has proven its case beyond reasonable doubt. You must examine the record of evidence and find whether same contains evidence linking the accused persons to the offence or for that matter whether the prosecution has put before you evidence to establish all the elements of the offence. The second matter I will direct you on is that where an accused fails to file a notice of alibi, you must examine the record of evidence and determine whether same contain a record of evidence regarding alibi. If you find that such a record exists, you must examine same as part of the totality of the evidence before you. And it will be immaterial whether or not the accused persons filed the notice or not. Members of the Jury, the prosecution witnesses testified in respect of this element under consideration. I will relate same to you by way of reminder. PW1 and PW2 gave eye witness testimony of the incident. PW1, a resident of Ebubonko testified 13 of 29 that he witnessed all the accused persons beating the deceased. His evidence on the matter as contained in his witness statement is as follows: 2. On 13th of May, 2015 at about 2.15 pm, I had a phone call from the wife of the deceased to come home. 3. I passed through Ebubonko M/A School to see my wife. 4. When I reached the school I saw the accused persons holding sticks, cutlasses, hoe and rake beating the deceased. 5. I was frightened so I hid myself in the bush and later rushed to inform the family members of the deceased about the incident. 6. They all rushed to the school compound but did not meet anybody at the scene and they accused me of being a liar. 7. They returned to where they played the draft and continued with their draft game. 8. At about 5.30pm a ten year old boy reported that he has seen a dead body lying at the back of the school building so they quickly rushed to the scene. PW2 is Rose Quansah, she also gave eye witness testimony. She testified that she saw A6 and A7 assaulting the deceased. She stated as follows in her witness statement: 1. My name is Rose Quansah, 12 years of age, a class four pupil of Ebubonko M/A Primary School and stays with my parents. 2. That on 13th May, 2015 at about 2.30pm when I closed from school I was standing by a rice seller in the school when the factions arrived from Accra. 3. Then I saw the deceased making a phone call when a man by name Sulley@Sewin Burger held the hands of the deceased behind him whiles one Kwabena Isaac hit the deceased with a hoe. 4. The deceased sustained some injuries and blood was oozing. 14 of 29 5. That the deceased then managed to free himself and ran away but the said Kwabena Isaac and Sulley chased the deceased towards the school. 6. That I decided to go and inform one Barikisu but did not meet her so I went to my house. The evidence of PW3 linking the accused persons to the death of the deceased is contained in paragraph 5 and 6 of his witness statement as follows: 5. I quickly rushed to the scene and met the deceased in a pool of blood and was assisted by some witnesses to convey the deceased to the Central Regional Hospital. 6. While on the way to the hospital the deceased mentioned the Accused persons as the people who inflicted the brutalities on him. Family Ties Members of the jury, counsel for the accused in his address highlighted the issue of the close family relationship between the deceased and PW1, PW2 and PW3 which may likely impact on the credibility of their evidence. The predicate issue therefore is to decide whether there exists close family ties between these witnesses and the deceased. Remember that the antecedents of this case are traced to a factional conflict where the undisputed evidence is that all the accused persons homogenously belong to the other faction. The evidence of PW1 during cross-examination on the issue is as follows: Q. What is your relationship with Kofi Kakraba? A. We are friends. 15 of 29 Q. Which family do you belong to? A. I am a member of the Anona family from a different town. Q. How did you relate to the Kweidua Mensah Anona family of Abubonko? A. That is where my father hails from so I relate to them paternally. Q. And the deceased person is a member of the Kweidua Mensah Anona Family, you know that? A. Yes, I know that. Q. So, the deceased person is your paternal relation. Is that not the case? A. Yes. PW2 also testified during cross-examination as follows: Q. A. Q. A. Q. A. He is a member of the Kweidua Mensah Anona family of Ebubonko? Yes. It is this family that the deceased also belong to. Am I right? Yes. So the deceased person is your paternal relation, am I right? Yes PW3 testified during cross-examination as follows: 16 of 29 Q. And the chieftaincy matter involving the accused persons Ekua Boafo Anona family of Ebubonko and the Kweifua Mansah Anona family of Ebubonko, concerns the stool your father allegedly sits on? A. That is so. Q. And the deceased is a member of your father’s family, am l right? A. Yes. Members of the jury, you may likely find from the above pieces of evidence that these prosecution witnesses all belong to one family in a two-family conflict. Members of the jury, the law as I understand it is that you cannot simply disbelieve the evidence of witnesses simply because they are family members or relatives of a party to a matter. So the question is how do you evaluate such pieces of evidence. I will refer you to the case of Elizabeth Osei v Alice Efua Korang [2013] 58 GMJ 1 at 24-25 (also reported by Dennislaw with citation number [2013]DLSC2707). In this case the Supreme Court per Ansah JSC stated as follows: “In the first place, it was not true that all the defence witnesses were her relatives. Even if they were, it would be wrong to disbelieve them on that ground alone (namely that they were her relatives); for that per se would not mean they were not to be believed on their evidence…. I think Nkaeguo v Konadu (supra) is the more correct of the two views and I cast my preference for it and wish to state my approval of the Nkaeguo v Konadu (supra) case. It was the credibility of witnesses more than their relationship with their principals that counts…. We are fortified in taking this view for in Basare v Sakyi [1987-88] 1 GLR 313, CA, held that a court seeking to do justice could not without more, disregard the evidence of a material witness solely on the basis that the witness was a relative of the party and as such had an interest in protecting the family’s interest”. 17 of 29 Members of the jury, you must therefore look beyond the family ties and consider the evidence in its totality in determining what weight you should attach to the evidence of these witnesses. Thus where you find that the evidence is tainted by reason of the close family ties, know that same will impact on the credibility of the evidence. Members of the Jury, counsel for the accused person during his address to you highlighted what he claimed were multiple inconsistencies in the evidence of these prosecution witnesses. You may consider them in your deliberations. But before you do so let me remind you about what counsel for the accused said in his address to you: “Although there is no law that forbid family members from acting as witnesses, considering the circumstances of the case and the fact that there is a rivalry between the accused person’s family and that of the deceased person’s family albeit chieftaincy and land dispute, it is highly curious that only family members of the deceased allegedly witnessed him being lynched by members of a victorious rival family. The coincidence is highly alarming.” Members of the Jury, it is trite that the best evidence is to invite independent persons to testify in such matters. However in considering whether or not to put weight on the evidence of PW1, PW2 and PW3, you may also consider whether the incident having occurred in public and presumably witnessed by other persons other than the members of the deceased family, other independent witnesses should have been available to the prosecution. Where you find this as the case, you may then examine the record of evidence to ascertain whether there is evidence on the record to explain why the prosecution restricted its eye witness testimonies to only members of the deceased faction. Where you find no explanation, then you must determine whether same should inure to the benefit of the accused persons. However, where you find that the prosecution were right in inviting only relatives then you must evaluate the 18 of 29 evidence of these witnesses per the credibility of the evidence they each led and not dismiss same simply because they are related to the other function. Unlawful Harm Ladies and gentlemen of the jury, the next ingredient for the prosecution is to show that the harm caused to the deceased was unlawful. Harm is said to be unlawful when it is intentionally or negligently caused without any justification in law (see section 76 of Act 29). This only means that any harm caused to another not sanctioned by law shall be deemed as unlawful. Section 31 of Act 29 provides the circumstances under which harm may be justified as follows: 31. Force may be justified in the case and in the manner, and subject to the conditions, provided for in this Chapter, on the grounds (a) of express authority given by an enactment; or (b) of authority to execute the lawful sentence or order of a Court; or (c) of the authority of an officer to keep the peace or of a Court to preserve order; or (d) of an authority to arrest and detain for felony; or (e) of an authority to arrest, detain, or search a person otherwise than for felony; or (f) of a necessity for the prevention of or defence against a criminal offence; or (g) of a necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights; or (h) of a necessity for preserving order on board a vessel; or (i) of an authority to correct a child, servant, or other similar person, for misconduct; or (j) of the consent of the person against whom the force is used. 19 of 29 Members of the jury, you will agree with me that since the defence of the accused persons was that they were nowhere near the scene of the crime, it can be said that the issue of justification does not arise. Therefore you were you find that harm was caused to the deceased and you further find that the prosecution has led evidence to show that it was the accused persons who caused the physical harm to deceased, then it would be safe to infer that the accused person in the absence of explanation had no justification for causing harm to the deceased person and the harm inflicted on the deceased would be deemed to be unlawful. That the harm was intended to cause the death of Kofi Kakraba. Members of the jury, the final ingredient for the prosecution to establish is that the accused person by inflicting unlawful harm of the deceased intended the harm to result in the death of the deceased. The evidence of the PW1 and PW2 is that they saw the accused person assaulting the deceased with various implements. Their evidence was subjected to cross- examination by counsel for the accused person and you heard what transpired. In examining the totality of the evidence therefore let me direct you to the case of Republic vs Mallam Ali Yuisif Issah, [2002] SCGLR in respect of how intention to cause death can be inferred. In this case Ansah JA (as he then was), as he then was, sitting as Additional High Court Judge observed: “Now, in law it is not always possible to prove intent by direct or possible evidence. As the popular cliché goes no one can know the intent and mind of a man, it is said even the devil does not know this. That being so intent is often and has been inferred from proven circumstances in a particular 20 of 29 case. The general presumption in Criminal Law is that a person intends the natural and probable consequences of his acts”. Manslaughter Members of the jury, in the event that you accept the evidence of the prosecution that the accused persons intentionally cause harm to the deceased. It is entirely also probable that the prosecution would have failed to led evidence to proof an intention to cause death. In that case you must examine the evidence in its totality and determine whether the accused persons were negligent in causing harm to the deceased and further whether the negligence amounted to a reckless disregard of human life. In determining whether the accused person where reckless you may apply an objective or subjective test. The subjective test is to ask whether the accused persons were aware that their behaviour amounted to a disregard for the safety of the deceased. The objective standard is to ask yourself whether a reasonable man in the same situation as the accused persons would be aware that his conduct was reckless. Thus were you find that the accused persons were negligent which amounted to a reckless disregard for human life, you must return a verdict of manslaughter and not murder, since intention to cause death was not proven by the prosecution. Conspiracy Members of the Jury, the accused persons have also been charged with conspiracy to commit murder. Section 23(1) of Act 29 defines conspiracy to commit an offence as follows: 21 of 29 23(1) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence Members of the Jury, this is the new formulation of the law on conspiracy. During the trial counsel for the accused sought to educate you on this new formulation. Let me however refer you to the Supreme Court case of Faisal Mohammed Akilu v The Republic [2017-2016] SCGLR 444 dated 5th July, 2017 wherein Yaw Appau JSC in very simply language explains conspiracy under current Ghanaian law as follows: “From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime. In such a situation, the particulars of the charge normally read: “he agreed together with another or others with a common purpose for or in committing or abetting the crime”. However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”. 22 of 29 The elements of conspiracy under this formulation of conspiracy was set out by Justice Eric Kyei Baffour (sitting as an additional High Court Judge), in the case of in the case of THE REPUBLIC v. EUGENE BAFFOE BONNIE (2020) JELR 80375 (HC) with case number CR/904/2017 dated MAY 12, 2020. The learned judge stated as follows: “What used to be rendered as two or more persons agreeing or acting together with a common purpose has now been changed to one of agreement to act together. For prosecution to be deemed to have established a prima facie case, the evidence led without more, should prove that: 1. That there were at least two or more persons 2. That there was an agreement to act together 3. That sole purpose for the agreement to act together was for a criminal enterprise.” Ladies and gentlemen of the jury, given the above exposition, it is now up to you to determine whether the prosecution has put before you evidence to proof beyond reasonable doubt that the seven accused persons did conspire to intentionally cause the death of the deceased person. The Defence of the Accused Persons Ladies and gentlemen of the Jury, as copiously signposted earlier, the defence of the accused persons they did not commit the crime. They contended that they cannot be linked to the crime because there was nowhere near the scene of the crime at the material time. They all testified that there were at the material time of the offence somewhere other than the scene of the crime. They invited Nana Kweku Eduakwa III (DW1), the chief of Ebubonko to testify in support of their case. DW1 stated in paragraphs 6, 7, 8, 9, 10 and 11 testified about 23 of 29 the whereabouts of all the accused person, except A2 on the day of the incident as follows: 6. After the ruling and whiles we were at the Supreme Court, I received a call from Ebusuapanyin Mallam Mumuni Ekow Effie who was in another car informing me that the other “faction” led by Ebusuapnyin Kobina Atta were threatening our family members at Ebubonko who were jubilating to stop doing so. 7. 8. Kwame Attah, the 3rd Accused person was the one driving my vehicle. When we got to Cape Coast at Sewin descending the hilly road to Ebubonko, we saw that members from Ebusuapanyin Kobina Attah’s family had blocked the middle of the road with stones and benches impeading [sic] traffic. 9. We managed to drive to my house where the family had gathered as we had sent information to the family members to gather at my house. 10. We got to Cape Coast around 2.00pm or thereabouts. I personally saw Kwame Annan (A1), Kwame Atta (A3), Kwame Yussif (A4), Kojo Atta (A5), Suleman Issaka (A6) and Kwabena Isaac Ahenakwa (A7) in my house. 11. At my house, a police office by [sic] Ignatious Senoo came and advised us to keep calm and he promised to go to the complainant’s family house to talk to them too. 12. As a result of the tension in town, we advised everyone to stay at the palace until the evening before going back home. 13. We ended the meeting at my houses at 5.00pm or thereabout when the members started going home. 14. On the 14th of May, 2015 at about 1.00am, police officers came to my house, handcuffed me and took me to the police station at Bakano, Cape Coast. 24 of 29 15. It was at the station that I got to know that Kofi Kakraba had died and members of my family were being arrested in connection with his death. Members of the Jury, the evidence of DW1 was that when he arrived at his home he personally saw Kwame Annan (A1), Kwame Atta (A3), Kwame Yussif (A4), Kojo Atta (A5), Suleman Issaka (A6) and Kwabena Isaac Ahenakwa (A7). It is your duty to determine whether the evidence of DW1 aligns with the evidence of A1, A3, A4, A5, A6 and A7 who all testified that they went directly to the DW1’s house upon arrival at Ebubonko from Accra at about 2pm and further that these accused persons remained in his house until 5.00pm. This also means that DW1 did not see A2 in his house. So what evidence did A2 lead to explain his whereabouts on the day of the incident? A2 stated as follows in his witness statement: 4. I saw my elders in a convoy after returning from Accra where they [sic] attending court sitting at the Supreme Court. 5. I followed them to Ebubonko. We met a lot of people on the streets with the road to Yomoah blocked with heavy log and benches. 6. I proceeded to Basakrom, I picked some passengers in the car to Abura in Cape Coast. 7. 8. I worked with the taxi until I returned home about 8.30pm to sleep. On 14/5/2015 at about 3.45am, Ebusuapanyin Kobina Atta who is the complainant in this case and whose family had lost the Supreme Court case they had with our family over the ownership [sic] Ebubonko land and stool led policemen to my house. Members of the Jury, the above are the evidences of the accused person. You also heard their respective responses to questions asked during cross-examination. In 25 of 29 your deliberations you are to consider all these and decide whether to accept their evidence after evaluating them in line with the Lutterodt case (supra) Before I conclude, please remember that during his address to you, counsel for the accused referred you to various inconsistencies in the evidence of the prosecution witnesses which according to him impacted on the credibility of the evidence of these witnesses. He highlighted the inconsistencies in the evidence of PW1 and PW2 regarding the wide disparity between the times each claimed they exactly witnessed the accused persons allegedly lynching the deceased. Counsel also referred you to the inconsistency in the evidence regarding the location from which they said they perceived the lynching taking place. Counsel again referred you to the conduct of particularly PW1 and PW2 regarding their unusual behaviour or reaction upon witnessing a kinsman being lynched by members of a rival family. He questioned whether a reasonable person will act the way these witnesses behaved upon seeing their family member being fatally assaulted. Finally the counsel for the accused referred you to the inconsistencies in the evidence of PW3 regarding his claim that the deceased prior to his death mentioned the names of the accused persons as his assailants. Counsel for the accused in my considered view drove home the point in respect of the evidence of the pathologist who stated in his report that the deceased was pronounced dead on arrival at the hospital, the earlier evidence of PW3 who also testified that the deceased was pronounced dead on arrival, and the subsequent change of testimony of PW3 that the deceased rather died hours after he was admitted into hospital. Members of the Jury for the avoidance of doubt, let me say to you that the meaning of pronounced dead on arrival (DOA) or brought in dead (BID) means is being found and declared clinically dead immediately upon arrival at a hospital. Members of the jury, in considering the inconsistencies issues raised by counsel for the accused persons, you must first determine whether the inconsistencies 26 of 29 highlighted in the evidence of these prosecution witnesses are material enough to render the evidence of PW1, PW2 and PW3 not worthy of belief before arriving at a decision whether to accept their evidence or reject same. Conclusion In conclusion, I want to emphasise that you must be satisfied with the evidence available that the prosecution has been able to prove all the essential ingredients of the offence of murder and conspiracy beyond reasonable doubt before returning a verdict of guilty. Please remember that the punishment for both offences is death. In so doing, you must be convinced that the accused persons had no defence to intentionally causing the death of the deceased. Remember also that the accused person has no duty imposed on him by law to prove his innocence. He is simply to raise reasonable doubt. Members of the jury, where you are satisfied that the accused persons caused the death of the deceased but did not however intend to cause the death by reason of the circumstances I have explained earlier or the defences available to the accused persons, you are at liberty to consider whether or not a verdict of guilty of manslaughter will be an appropriate verdict. Let me again remind you that where I have expressed any opinions on the facts, you are free to disregard it. Nothing I have said here regarding my opinions or findings on the evidence is binding on you. This is because as sole judges of the facts, your authority over the evidence absolutely erodes mine. This authority however, coupled with the fact that your evaluation and assessment of the evidence is not a matter of record, binds you to hold true to the evidence you have heard in this courtroom and the ethics of your call to be jurors. Please note however that you are bound to accept my directions on the law. 27 of 29 You may now retire to deliberate. Summing up ended at: 10:43 Jury retired at:10:44 Jury returned at:11:43 Accused present By Court: Foreman, have you reached a verdict. Foreman: Yes By Court: Is it unanimous? Foreperson: It is not unanimous By Court: What is the verdict? Foreperson: The jurors returned a verdict of five for not guilty of murder and two for guilty of manslaughter. Court grants the jurors more time to further deliberate. By Court: Jury departs at 11:45 By Court: Jury Returns at 11:58 By Court: Foreman Have you reached a verdict Forman: Yes By Court: Is it unanimous 28 of 29 Foreman: On Conspiracy the jurors returned a unanimous verdict of not guilty. On the count two, the jurors returned a unanimous verdict of not guilty of murder. BY Court Having returned a verdict of not guilty in respect of both counts of conspiracy to murder and murder, the accused person herein are hereby acquitted and discharged on the offences charged. (SGD) EMMANUEL ATSU LODOH HIGH COURT JUDGE 29 of 29