REPUBLIC VRS BARIMA DEBRAH APRAKU (D14/04/22) [2022] GHASC 110 (12 December 2022)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘B’ OF GHANA HELD AT TEMA ON MONDAY,12TH DECEMBER, 2022 SUIT NO. D14/04/22 THE REPUBLIC VRS BARIMA DEBRAH APRAKU --------------------------------------------------------------------------------------------------------------------- ------ RULING --------------------------------------------------------------------------------------------------------------------- ------ The accused person was arraigned before this court on nine counts. Count one is for careless and inconsiderate driving contrary to section 3 of the Road Traffic Offences Act, 2004 (Act 683) whilst count two to nine are for negligently causing harm contrary to section 72 of the Criminal Offences Act, 1960 (Act 29). The particulars of offence for count one are that on the 26th day of November, 2020 at about 1:30pm at Teye Kwame village near Shai Hills on the Tema-Akosombo Highway in the Tema Circuit and within the jurisdiction of this court, then being the driver in charge of a Hyundai Sonata Saloon car with registration number AS 4002-18, did drive the said vehicle on the road without due care and attention to other road users by crashing with a Nissan Versa Saloon car with registration no. GE-9283-20 driven by Edmund Homenya now deceased. For count two and three, the particulars are that the accused person on the aforementioned date, time and place, then being a driver in charge of the aforementioned vehicle, did negligently cause harm to one Fiifi Amonoo Buckman now Page 1 of 12 deceased who was on board his vehicle and to Homenya Edmund who was driving the Nissan versa when accused person’s vehicle crashed into the aforementioned Nissan versa resulting in him sustaining injuries leading to their death. For count four through to nine, the particulars are that the accused person on the aforementioned date, time and place, then being a driver in charge of the aforementioned vehicle, did negligently cause harm to Seth Quarshie, Margaret Dotse, Mary Kotobredza, Lydia Poku- Akubia, Helen Dadzie and Emmanuel Ato Amonoo. The accused person pleaded not guilty to all nine counts. In so doing, he invoked the Constitutional guarantee in Article 19 of the 1992 Constitution. By his plea of not guilty, he stood shielded by the law as per Article 19 (2) (c) of the 1992 Constitution, he presumed innocent until proven guilty. According to the case of Davis v. U. S. 160 U. S 469(1895) "Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proved, if the jury entertain a reasonable doubt from the evidence". The Supreme Court in the case of Gligah & Atiso v The Republic [2010] SCGLR 870 @ 879 sums this up eruditely as “Under article 19(2)(c) of the 1992 Constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial, it is the duty of prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person would be called upon to give his side of the story. Page 2 of 12 Prosecution in proof of its case called two witness; the investigator and the DVLA officer who tested the vehicles after the accident. In his evidence in chief, he testified that on the 26th day of November, 2020, a motor accident occurred at Teye Kwame, a village located between Asutuare junction and Akuse junction. That after the report to the police, he proceeded to the scene where the accident victims had been evacuated to the Akuse Government Hospital. That he saw a Hyundai sonata vehicle and a Nissan Versa vehicle with the registration numbers contained in the particulars of offence had crashed and were lying in the bush by the roadside. He continued that he proceeded to the scene and found the accused person on admission. Accused person informed him that he was the one driving the Hyundai Sonata and he had on board four passengers including Fiifi Buckman, (now deceased), Seth Quashie, Lydia Pokua-Akubia and Emmanuel Ato Amonoo who were all on admission at the hospital with him. The driver of the Nissan Versa saloon car; Edward Homenya was in a critical condition. The other occupants of the Nissan Versa were Margaret Dotse, Mary Kotobredza and Helen Dadzie were on admission at the Hospital receiving treatment. That his investigation revealed that Fiifi Buckman who was on board the accused person’s vehicle was pronounced dead on arrival at the hospital and the body deposited at the same hospital. That he issued police medical form to all the victims to attend hospital. However, none of them returned same duly endorsed. That on the same day, the condition of Edmund Homenya became critical and he was referred to the Koforidua Government Hospital but died whilst receiving treatment. Page 3 of 12 That inquests were conducted to ascertain the cause of death of the two persons. The pathologist report indicated that whereas Fiifi Buckman had died of severe head injury secondary to road traffic accident, Edmund Homenya had died of spinal cord transection and polytrauma secondary to road traffic accident. He tendered in evidence the investigation caution, charge statement and sketch of the accident scene. That his investigations revealed that on the day of the accident, the accused person was driving the Hyundai Sonata vehicle with four passengers on board from Accra headed to Akuse. That the deceased Edmund Homenya was also driving the Nissan Versa vehicle with three passengers from Accra headed to Hohoe. That upon reaching a section of the road near Teye Kwame, the accused person started to overtake the Nissan Versa. That accused upon successfully overtaking the Nissan Versa suddenly cut infront of the vehicle and slowed down. Accused alleged that a vehicle ahead of him was not driving fast enough. The distance between the accused person’s car and the Nissan Versa was not much and so the Nissan Versa crashed his left front fender against the right back fender of the accused person’s vehicle. Further that his investigations revealed that there was an oncoming vehicle from the opposite direction which made it virtually impossible for the accused person to make a successful overtaking of the vehicle ahead of him. That accused person in order to avoid a head on collision with the on coming vehicle, suddenly cut in infront of the Nissan versa and the impact of the crash pushed the two vehicles into the bush. He tendered in evidence investigation caution and charge statement of the accused person as EXHIBIT A and B respectively. EXHIBIT C series as the inquest and postmortem report of the deceased; Fiifi Buckman and Edmund Homenya, EXHIBIT D Page 4 of 12 series as the death certificate and burial permits of the same deceased persons, EXHIBIT E as a sketch of the accident scene, EXHIBIT F and F1 as the DVLA accident report on the Nissan versa and Hyundai sonata vehicles involved in the accident. PW2 confirmed that he had carried out the test resulting in EXHIBIT F and F1 as an officer of the Driver Vehicle and Licensing Authority. Prosecution closed its case after this. CONSIDERATION BY COURT On count one, the offence of careless and inconsiderate driving just like other traffic offences, is one of strict liability thus the prosecution need not prove mens rea. The prosecution only need to prove that the accused person has engaged in the actus reus of the offence which is that a) He was in charge of driving the Hyundai Sonata b) He drove it without due care and attention OR c) he drove it without reasonable consideration for other road users On the first element of count one, accused does not dispute the fact that he was the one driving the Hyundai Sonata on the 26th day of November, 2020. He also does not dispute that he had four passengers on board the vehicle and most significantly, that the vehicle was involved in a fatal accident with a Nissan Versa. There is also no dispute that the accident took away the life of two persons; a 62 year old man who was on board accused person’s vehicle and a 52 year old man who was the driver in charge of the Nissan Versa vehicle. Thus on the first element, I find that it was the accused person who was driving the Hyundai Sonata Saloon car with registration number AS 4002-18, at the time of the accident. Page 5 of 12 On the second element, prosecution’s duty is to prove that the accused drove the vehicle without due care and attention as is reasonably expected of every driver or without reasonable consideration for other road users. If they are able to prove that any reasonable driver in the shoes of accused would be deemed as driving carelessly and in an inconsiderate manner in the circumstances in which the accused drove, then they would have established the requisite elements of the offence. There were no eye witnesses to this case. PW1 admitted that he was not at the scene and neither was PW2. Thus there is no direct evidence as to the manner in which the accused person was driving. At page 17 of the record of proceedings, PW1 answered under cross examination from learned counsel for the accused person; Q: You personally have indicated to this court that you were not an eye witness. Is that not A: Q: the case? Yes my lord. So you would agree with me that without the passengers and the drivers, nobody can tell exactly what happened. A: Yes my lord. I arrived at where I arrived because I have been investigating and have been driving for almost twenty years and my knowledge in driving and investigation indicated that accused person could have proceeded and overtaken the two vehicles had it not been that there was oncoming vehicle. There being no direct evidence, prosecution’s evidence as to the manner in which the accused person drove his vehicle was circumstantial. Circumstantial evidence is admissible to prove the fact of an event. See the case of People v. Scott 176 Cal. App. 2d 458 (1960). Page 6 of 12 However, it is elementary that whenever circumstantial evidence is being used to prove the guilt of an accused person, the evidence must exclude every other reasonable hypothesis and point to one and only one irresistible inference i.e that the accused has committed the offence. Lord Chief Justice Goddard in the case of R v. Onufrejcyzk [1935] QB 338 stated that ‚…….. any other fact, can be proved by circumstantial evidence, that is to say, evidence of facts which lead to one conclusion, provided that the jury are satisfied and are warned that it must lead to one conclusion only.’’ See the case of Bosso v. Rep (2009) SCGLR 420. Per EXHIBIT F and F1, which are the accident reports on both vehicles, the impact of the accident on the vehicles is so severe that the vehicles were written off on safety and economic grounds. Starting from the roof of the vehicles, airbags, doors, mirrors, fenders, headlights, bumpers, tyres, batteries etc. Everything was damaged. The sheer extent of the damage to the vehicles which PW1 says upon getting to the scene was such that he could not easily tell whether it was one or two vehicles manifests the extent of the impact. EXHIBIT E is a sketch of the accident scene. It indicates that from the point of impact to the resultant position of the vehicles after the crash is 6.1 metres. The extent of the damage to the vehicles coupled with the length in distance of the impact is an indication of how gruesome the accident was. Page 7 of 12 The explanation for the accident according to prosecution is that the accused person did an overtaking of the Nissan Versa which was driving ahead of him. That immediately, he overtook the said vehicle, accused person came back into his original lane without making sure that it was safe to do so. At page 24 and 25 of the record of proceedings, PW1 under cross examination by learned counsel for the accused person had answered; Q: You and I have agreed that there is a general principle that when a vehicle is overtaking another vehicle, the vehicle being overtaken must slow down and so I suggest to you that it was not done at a constant speed. A: That is so my lord. But then if the deceased driver did not continue at a continue at a constant speed, accused person on varying his speed would not be able to overtake him. Q: And the resultant impact of the accident taking it all on when the accused person had finished the overtaking and was in his lane, then the deceased driver hit him from behind and his fender. Is that not the case? A: My lord that is not exactly the case and with the permission of the court if I could illustrate using two phones. My lord, per the phone in my hands, the deceased driver was driving ahead of the accused person. The accused person tried to overtake him. They were both driving towards Akuse and they were driving at the right hand side of the road. After accused person had overtaken, he immediately veered to come back into the right lane. He should have checked his mirror to make sure that there was enough space between him and the deceased driver to do so. However, he did not do so and just cut in. The left side of the fender of the deceased driver hit the fender of the accused person’s vehicle and because they were all in motion, the force pushed them into the bush. When I arrived at the scene, it was difficult to immediately tell if it was two cars or the cars were together. Page 8 of 12 Q: Your illustration is wrong in the sense that the overtaking car had had ninety percent of the vehicle far ahead of Homenya’s car. A: My lord it is not true. Q: Therefore, it is incorrect by your illustrations and in fact from what you have illustrated, it takes a driver sleeping behind the steer to allow such a situation to occur. A: My lord, if ninety percent of the accused person’s vehicle was ahead of Homenya’s car which is not hundred percent and he cuts in front of him, there would surely be a crash. Q: And your illustration is incorrect because it was Homenya’s car which impacted accused person and not vice versa. A: My lord that is true because accused person who was supposed to have continued on the overtaking lane for at least a distance before coming back to his own lane failed to do so. Driving is an act which is done in public after one has acquired the necessary driving skills. Because driving is a skill, when there is an accident, experts are expected to be able to use the available circumstantial evidence to arrive at a conclusion as to what led to the accident. Insisting that there be an eye witness for every accident would mean that in fatal accidents such as this, there would be no basis to account for what happened. I found PW1 to be a credible witness in this case. His testimony was based on his investigations into the matter and even though there is no eye witness save for the accused person, the circumstantial evidence points in only one direction; this accident would not have occurred had the accused person not veered back into the lane he was supposed to be travelling in after he did the overtaking without checking if it was safe to do so. Page 9 of 12 Driving with due care and attention requires that a driver drives with reasonable consideration for other road users. That consideration includes all road users. Accused person was aware of the deceased driver’s vehicle on the road. Having overtaken him, it was expected that he exercises reasonable consideration by ensuring that it was safe before returning into his lane. The deceased driver was also under an obligation to slow down reasonably when he realized that the accused person was overtaking. However, the ultimate duty in ensuring that it was safe to get back into his lane laid on the accused person as a reasonable driver. On the available evidence, prima facie, the accused person did not do this. Accordingly, I find on the second element that the accused person had driven his vehicle without due care and attention to other road users and without reasonable consideration. Prosecution has thus led evidence to establish the ingredients of the first offence. On count two to nine, the prosecution in order to establish their case must lead evidence to prove that 1. The accused person whilst driving the vehicle used same to negligently cause harm to another person 2. That the harm was unlawful. Harm is defined by section 1 of Act 29 to mean ‚a bodily hurt, disease or disorder whether permanent or temporary. Again, according to section 76 of Act 29, harm is ‚unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter I of this Part. Page 10 of 12 Per Section 12 of Act 29, a person causes an event negligently, where without intending to cause the event, that person causes it by a voluntary act, done without the skill and care that are reasonably necessary under the circumstances. EXHIBIT C and D series are the inquest forms, coroner’s report, death certificate and burial permits of Fiifi Buckman and Edmund Cobbold. There is no dispute that Fiifi Buckman was on board the accused person’s vehicle at the time of the accident and Edmund Homenya was the driver of the other vehicle. Their cause of death for Fiifi Buckman are severe head injury suffered from road traffic accident and for Edmund Homenya, spinal cord transection and poly trauma secondary to road traffic accident. Having found in count one that accused person drove without due care and attention and without reasonable consideration to other road users thereby causing the accident, I hereby find that although he did not intend to cause the death of these two persons, he did cause it by driving without the necessary skill and care that is reasonably necessary in the circumstances. He thus acted negligently. That his negligent act has caused harm to the two persons and led to their death is without justification is not in issue. Although prosecution charged the accused person with counts four through to nine and mentioned various persons who had suffered injuries as a result of the accident, none of them testified and there was no medical report tendered in evidence for any of them. According to PW1, although they were all issued with medical reports, none of them returned same and they were also not ready to testify. As there is no evidence of their injury, I hereby find that prosecution has failed to lead sufficient evidence to establish that they were injured as a result of the actions of the accused. Page 11 of 12 Accordingly, I hereby acquit and discharge the accused person on counts four, five, six, seven, eight and nine. On counts one, two and three, I find that prosecution has established all the relevant elements of the offences against the accused person. The evidence of prosecution witnesses has not been discredited in anyway under cross examination, the evidence is such that the court can safely rely on it and the evidence lends itself to one conclusion, the prima facie guilt of the accused person. Accordingly, he is hereby called upon to open his defence if he so desires. (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) DSP JACOB ASAMANI FOR THE REPUBLIC PRESENT PRINCE KWAKU HODO FOR THE ACCUSED PERSON PRESENT Page 12 of 12