The Republic Vrs Portia Ofori [2022] GHADC 31 (25 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON TUESDAY, THE 25TH DAY OF OCTOBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM VIDA DANQUAH AND MADAM PHILOMENA SACKEYAS PANEL MEMBERS SUIT NO. R16/05/23 THE REPUBLIC VS PORTIA OFORI Juvenile absent. Complainant present with Victim. Inspector Luke Taylor for the Prosecution. Komivi Dzotsi Esq with Hamdiya Mohammed Esq. for Martin Kpebu Esq. for the Juvenile. RULING This is a Ruling on an Application for Case withdrawal by the Complainant in this instant matter. Brief facts: The Juvenile herein has been charged with the offence of Causing Harm Contrary to Section 69 of the Criminal Offences Act, 1960 (Act 29) and the particulars of the offences are that on the 2nd of July 2022 at about 2.00pm at Ngleshie Amanfrom in the Greater Accra Circuit and within the jurisdiction of this court, the Juvenile poured acid on Lawrencia Ayim (Victim) causing severe burns on her body and face. The suit commenced on the 3rd of August 2022 and travelled till the Case Management Conference stage when the Complainant The Republic vs Portia Ofori applied for the case to be withdrawn. By a letter dated 13th October 2022, the Complainant, Mr. Ronald Osei Mensah, who is also the Victim’s husband applied for the case to be withdrawn. The basis of his application is that upon further consultations and discussions with opinion leaders, family members and some leaders of the Christian Society, he wishes to discontinue the instant case. He concluded by stating that as the Complainant in this matter, he wants a perpetual discontinuation of the matter and wants same withdrawn effective the date on this letter. The matter came up for hearing on the 13th of October 2022 and the Prosecutor informed the court that the Complainant has informed him of his decision to withdraw the suit but he will want to have conference with the Victim before he can make any prayer to that effect. He stated further that he sighted someone who describes herself as a Psychologist from the Korle Bu Teaching Hospital and wants the case stood down for him to have conference with both the victim and the Psychologist. The court then required some further explanation from the Complainant and he informed the court that this matter has drained him financially because of his frequent travels to court as well as the fact that he solely takes care of the children and the victim now. He concluded by stating that he believes vengeance is for God, so he wants the matter discontinued. The victim however protested vehemently and insisted that she does not want the matter discontinued. Further to that, a Senior Clinical Psychologist from the Korle Bu Teaching Hospital, Madam Elizabeth Yeboah, told members of the Panel that the Victim informed her of the Complainant’s intention to have the case withdrawn and wondered why the Complainant is not interested in pursuing the case. She therefore pleaded with the court, on behalf of the victim, The Republic vs Portia Ofori not to allow the case to be withdrawn and submitted a Report to the Court to that effect. DETERMINATION: The matter before the court for determination are; (a) Whether or not the Complainant can withdraw the instant case; (b) Whether or not the withdrawal of the case by the complainant will amount to a perpetual discontinuation of the matter and/or the acquittal of the Juvenile. Analysis: The first issue for determination is whether or not the Complainant can withdraw the instant case. The method of instituting criminal proceedings in Ghana is provided for by The Criminal and Other Offences (Procedure) Act, 1960 (Act 30) and Sections 60 (1) (a) provides that ‘…subject to Article 88 of the 1992 Constitution, criminal proceedings may be instituted…..by making a complaint and applying for the issue of a warrant or summons…’ This implies that in our criminal justice administration, the wheels of the law are set in motion when a Complainant brings to the notice of the law enforcement agencies of the occurrence of a criminal act carried out by a person(s) known or unknown. From the time law enforcement agents’ arrests the suspect to the time judgment is passed on the offender, the Complainant may have a key role to play particularly if the Prosecution of the offender rests solely or in part on the evidence of the Complainant. This therefore tends to create the impression that the Complainant has a huge role to play in criminal proceedings, but contrary to popular belief, Complainants are not the ones ‘taking the matter to court’ and it is not ‘their case’. The information as provided by the Complainant is only to “aid” the The Republic vs Portia Ofori police/investigating agency in order for them to take action under the prevalent law. Thus, it is a prosecuting body of the State such as Police who is in charge of the criminal proceedings from start to finish and the Complainants are simply Prosecution witnesses. This means that the decision to withdraw or proceed with criminal cases is made by the prosecuting body not by the Complainant. The Prosecutor is not there to act on the Complainant’s instructions but Prosecutors will often consider a Complainant’s wishes and keep them informed during the criminal process. However, the scenario gets interesting when the Complainant applies to the Court to withdraw his complaint, especially in this instant case where the Victim does not want the matter withdrawn from court neither is there any indication from the Prosecution to do same. It is important to state that when a crime is committed, it is a wrong against the society and the public at large. So that nothing can impair the proceedings in a criminal trial as it is in the interest of the society to find out the truth of the matter, and ultimately reach the ends of justice by determining the guilt or innocence the Offender. The Complainant may be instrumental in setting a criminal proceeding into motion, but he cannot be permitted to go beyond “a mere assistive role”, as that does not only prejudice a fair trial but also undermine the primacy accorded to a Prosecutor by the laws and the criminal justice system of our country as particularly provided in Act 30 (supra). The next issue is whether or not the withdrawal of the case by the complainant will amount to a perpetual discontinuation of the matter and/or the acquittal of the Juvenile. As a matter of practice, the withdrawal of a complaint by the Complainant usually results in the acquittal of the offender because without the The Republic vs Portia Ofori evidence of the Complainant, particularly if he was an eyewitness to the fact of the commission of the offence, the matter dies a natural death. It is trite that the granting of an Application to withdraw a criminal suit is at the discretion of the court depending on the circumstances of the case. It is also trite that if upon the withdrawal of the criminal Complaint by the Complainant, there is still a credible witness or evidence on which the criminal action may proceed, the court will not discharge or acquit the accused without concluding the trial. Section 59 of Act 30 provides for the Withdrawal from Prosecution and Preliminary Investigations and this court is of the opinion that the circumstances surrounding this instant application for a withdrawal does not satisfy the conditions provided in Section 59 stated supra. DECISION: The withdrawal of a criminal complaint by the Complainant rests on the exercise of the discretion of the Court in contemplation of the offence as well as subject to public policy considerations. This court will therefore exercise its discretion by refusing the Complainant’s Application to withdraw the Suit signifying a perpetual discontinuation of the case and call on the Prosecution to continue with its case in order to establish the guilt or innocence of the Juvenile herein. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY PANEL MEMBER MADAM VIDA DANQUAH PANEL MEMBER The Republic vs Portia Ofori 5