The Republic Vrs Abudu [2022] GHADC 228 (20 December 2022)

IN THE DISTRICT COURT SITTING AT NALERIGU ON TUESDAY 20TH OF DECEMBER 2022 BEFORE H/W SIMON KOFI BEDIAKO ESQ – MAGISTRATE SUIT NO. NR/NG/DC/B/31/23 THE REPUBLIC VRS RASHID ABUDU JUDGEMENT INTRODUCTION Rashid Abudu, the Accused in this matter was arraigned before this Court, charged with the offence of Threat of Harm: contrary to section 74 of the Criminal Offences Act, 1960 (Act 29). PLEA In accordance with section 171 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the Accused person was called upon to plead after the charge had been read and explained to him in Mampruli language. The Accused pleaded guilty to the charge with an explanation. The Accused pleaded as follows; “I am guilty in the sense that I was holding a cutlass, but I did not threaten to harm anybody”. Considering the explanation provided by the Accused after pleading guilty, a plea of not guilty was entered for the Accused by order of the Court pursuant to section 199(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). This section provides that “Where the accused pleads guilty but adds words indicating that the accused may have a defence or so indicates in answer to the Court, the Court shall enter a plea of not guilty and record it as having been entered by order of the Court.” DEFINITION AND ELEMENTS OF OFFENCE The offence the Accused has been charged with is prescribed by section 74 of the Criminal Offences Act, 1960 (Act 29). This section states that “A person who threatens any other person with unlawful harm, with intent to put that person in fear of unlawful harm commits a misdemeanour.” The elements of this offence which must be proved by the prosecution to get a conviction in respect of an accused are as follows: a) The accused person threatened the victim or victims with unlawful harm; and b) The accused person at the time of threatening the victim or victims had the intention to put the victim or victims in fear of unlawful harm. BURDEN OF PROOF: The burden of proof is on the prosecution to prove its case against the Accused beyond a reasonable doubt in accordance with Article 19(1) and (2) (c) of the 1992 Constitution of the Republic of Ghana which stipulates that: 19. Fair Trial “1. A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court. 2. A person charged with a criminal offence shall c. be presumed to be innocent until he is proved or has pleaded guilty;” Sections 11(1) (2) and (3), 13(1) and (2) and 15 (1) of the Evidence Act, 1975 (N. R. C. D. 323) have well settled the evidential and the persuasive burden that the law casts on prosecution in a criminal matter. It provides as follows: Burden of producing evidence 11. (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (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. Proof of a crime 13. (1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. (2) Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt. Burden of persuasion in particular cases 15. Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; In the case of Woolmington v DPP [1935] UKHL, stating the judgement for a unanimous Court, Viscount Sankey made his famous “Golden Thread” speech that: “throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exceptions…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” THE CASE OF PROSECUTION Facts of the Case provided by prosecution: Complainant in this case is a 60-year-old farmer who resides at Bantambari with his family. The Accused is the son of the Complainant. On 25th October 2022 at about 5:20am, the complainant together with other witnesses in this case arrested and brought Accused to the police station and reported that, on 24th October 2022 at about 10:00pm, Accused returned home from town and decided to cook his own food when some food was reserved for him. The Complainant together with other family members tried to prevent him but he refused and placed yam on fire. He left the house for some time and returned with a cutlass in his hand and threatened to harm everyone in the house. The family managed to escape and organized some community members to arrest the accused person and brought him to the Police station together with the said cutlass. After investigations, accused was charged with the offence as stated in the charge sheet and arraigned before this honourable court. To discharge the burden of proof imposed on the prosecution, the prosecution called four (4) witnesses. The first witness of the prosecution by name Abudu Tia (hereafter “PW1”) stated that he is a farmer and resides at Bantambari with his family. He added that the Accused is his son. According to PW1, the Accused on 24th October 2022 while holding a cutlass, threatened PW1 and other persons in PW1’s house at that time with the words “I will harm everyone in this house”. According to PW1, prior to the Accused threatening to harm them, he was in his house on 24th October 2022 with some of his brothers when the Accused came to the house and decided to cook his own food even though some food had been reserved for him. PW1 stated that despite their efforts to stop Accused from cooking his own food, the Accused refused and cooked yam. PW1 further testified that some few minutes after this, the Accused prevented PW1’s granddaughter from defecating at the back of PW1’s house even though the Accused was told that the waste will be collected and disposed after she was done. According to PW1, Accused left the house for some time and came back with a cutlass in his hands and threatened them. PW1 stated that they managed to escape and organised some neighbours to help arrest the Accused. The Accused during cross-examination of PW1 could not discredit the evidence of PW1. Tia Wuni (hereafter ‘PW2’) is the second witness of the prosecution. According to PW2, he is a 60- year-old farmer who resides in Bantambari. PW2 testified that on 24th October 2022 at about 10:00 pm he was in PW1’s house with PW1’s family and some of their brothers when the Accused came to the house with a cutlass in his hand and threatened with the words “I will harm everyone in the house”. He further testified that they managed to escape and organised some neighbours to help arrest the Accused with the cutlass and sent him to the Gambaga Police Station. From the evidence of PW2 particularly paragraph 3 of his witness statement, he was in PW1’s house with PW1, PW1’s family and some of their brothers when the Accused came to the house and threatened that he will harm everyone in the house. However, during the crossexamination of PW2 by the Accused, PW2 gave answers to some questions posed to him by the Accused which indicates that he was not in PW1’s house when the incident started, he was called to come to the house after the incident had started. Below are the relevant questions and answers: Q. Were you in the house when I came with the cutlass? A. I was in my house when PW1 came to call me and I came and you were holding cutlass. Q. When you came, what was I using the cutlass to do? A. You were holding the cutlass to kill your father. Q. Did you come to meet me following my father to cut him with the cutlass? A. Yes. Q. Did you see me about to cut my father with a cutlass? A. Yes, my eyes saw. Q. You were not there and if your eyes actually saw this action how was my father able to run to your house to call you? A. You already have a history of doing that so once you are holding a cutlass, we know what you are about to do. This clearly brings into question the credibility of the evidence of PW2 and whether he perceived what transpired that day or testified based on hearsay. PW2 when the court sort clarification from him on this conflict in his testimony and the answers to questions posed by Accused during cross- examination, stated that his witness statement was not well written and that it was not read over to him before he thumb-printed the same. I find it strange as his witness statement was shown to him and it was also read to him, but he did not raise any objection. Considering the above, I find PW2 and his evidence not credible and the same is disregarded. The third witness of the prosecution is called Zanjina Yussif (“hereafter PW3”). He testified that he is a farmer and lives in Bantambari. The testimony of PW3 in his witness statement is identical to that of PW2 in his witness statement particularly, paragraphs 3 to 5 of their respective witness statements, which is quite unusual. Just like PW2, PW3 stated that on 24th October 2022 at about 10:00 pm he was in PW1’s house with his family and some of their brothers when the Accused came to the house with a cutlass in his hand and threatened with the words “I will harm everyone in the house”. He further testified that they managed to escape and organised some neighbours to help arrest the Accused with the cutlass and sent him to the Gambaga Police Station. During cross-examination of PW3 by the Accused PW3 stated that he was in his room when PW1 ran to call him to come as the Accused wants to kill him with a cutlass. Below is the question and answer: Q. When you came inside, and you saw me holding a cutlass was I going to use it to cut you or chasing someone to cut him? A. I was lying down in my room sleeping around 10pm when your father ran to me that I should come and help him because his son wants to kill him with a cutlass. You have a history of cutting your father with a cutlass. I run out with your father and saw you holding a cutlass. Your father told me you wanted to cut him with the cutlass. You were not going to cook yam. The above answer by PW3 contradicts his statement in paragraph 3 of his witness statement that he was in PW1’s house when the Accused came there and threatened to harm everyone in the house. PW3 cannot be in two places at once. It appears to me that the incident involving the Accused and PW1 had already started before PW3 was called to come to the house. It is therefore doubtful as to whether PW3 heard the Accused threaten PW1 and some other people in the house that he will harm them. The prosecution’s fourth witness is the police investigator by name No. 57610 G/Const. Baketey Elisha (“hereafter PW4”). PW4 tendered in evidence the following exhibits which were not objected to by the Accused. Exhibit A - investigation caution statement of the accused. Exhibit A1 - charged caution statement of the accused. Exhibit B - cutlass retrieved from the accused. At the close of the prosecution’s case, the court in accordance with section 173 of the Criminal and Other Offence (Procedure) Act, 1960 (Act 30) ruled that the prosecution had made a prima facie case against the Accused and the Accused was duly called upon to answer the case. Despite disregarding the evidence of PW2 and the lack of truth and credibility of the evidence of PW3, the Court believed the evidence of PW1 was sufficient to require the Accused to be called to open his defence. It is trite law that the Court in considering whether the prosecution has made a prima facie case against the accused after the close of its case is not required to determine whether the prosecution has proved its case beyond a reasonable doubt. It is at the end of the trial that the court is required to determine whether the prosecution has proved its case beyond a reasonable doubt. See Tsatsu Tsikata v The Republic [2003-2005] 2 GLR 294, SC. CASE OF THE ACCUSED The Accused testified by himself and called no witnesses. In his defence, he gave a brief testimony that he was holding a cutlass and was shouting and talking and that meant that he is guilty. He further testified that while he was holding the cutlass and PW1’s grandchild was defecating, he picked up the child and re-positioned the child and the child started crying so the mother of the child came. According to the Accused when the child’s mother came, they started quarrelling and the Accused started shouting. The Accused continued that his father came and asked him to stop shouting but he refused to do so. The Accused stated that there is some form of guilt on his part because as a son he should not fight with his father. The testimony of the Accused in his defence was very incoherent. His evidence to some extent appeared to be an admission that he is guilty of the offence he has been charged with. The Accused in Exhibit A failed to mention that he quarrelled with the mother of PW1’s granddaughter while he was holding a cutlass. The Accused stated in Exhibit A that he used the cutlass to peel yam after which he left it on the ground. He added that he went to the toilet and upon returning from the toilet he saw the cutlass on the ground and so he picked it up and sent it inside his room. The Accused’s statement in Exhibit A and his evidence in court are in conflict. This leads me to believe that the Accused is not being truthful to the Court. The Accused when he was cross-examined by the prosecution made some admissions which clearly show that he threatened some people in PW1’s house on 24th October 2022. Below are the relevant questions and answers during the cross-examination of the Accused by the prosecution: Q. I put it to you that 24/10/22 at Bantambari, you were seen holding a cutlass, is that correct? A. True. Q. You said you were returning from farm is that so? A. Yes, I was coming from the farm. I just arrived and the matter started. Q. It is never correct that the child in question was defecating in front of your room? A. Yes, I was afraid that is why I said that in the court. Q. Because you threatened the child with the cutlass that is why the mother came out? A. I never did that I only scratched the cutlass on the floor telling them that if they bring the child there I will hurt them. It was in the form of a warning to them. Q. Because you were holding the cutlass the child became afraid and started crying? A. Yes. Q. The noise of the child prompted the child’s mother and your father to come out and that is where you threatened them? A. When they came out I used the cutlass to scratch the floor that they should leave the place. Q. Because you used the cutlass to scratch the ground your father and stepmother became afraid so they had to call the neighbours for help? A. Yes. Q. Due to the cry of your father the neighbours came around and you were overpowered and sent to Gambaga Police Station? A. True. Q. I put it to you that when you returned from farm you were not using the cutlass to peel any yam? A. It was after my action with them before I used it to peel the yam. ANALYSIS OF FACT & LAW: From the definition and elements of the offence of Threat of Harm: contrary to section 74 of the Criminal Offences Act, 1960 (Act 29) enumerated above, for the prosecution to succeed with its case, the prosecution is required to prove beyond a reasonable doubt that: a. The accused person threatened the victim or victims with unlawful harm; and b. The accused person at the time of threatening the victim or victims had the intention to put the victim or victims in fear of unlawful harm. Section 1 of the Criminal Offences Act, 1960 (Act 29) states that “harm” means a bodily hurt, disease, or disorder whether permanent or temporary. Section 76 of the Criminal Offences Act, 1960 (Act 29) provides that harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter One of Part Two. According to section 11(3) of the Criminal Offences Act, 1960 (Act 29) “A person who does an act of a kind or in a manner that, if reasonable caution and observation had been used, it would appear to that person (a) that the act would probably cause or contribute to cause an event, or (b) that there would be great risk of the act causing or contributing to cause an event, intends, for the purposes of this section, to cause that event until it is shown that that person believed that the act would probably not cause or contribute to cause the event, or that there was not an intention to cause or contribute to it.” Taking into consideration sections 74, 1, 76 and 11(3) of the Criminal Offences Act, 1960 (Act 29) as well as all the evidence on record, particularly the evidence of PW1 and that of the Accused, there is no doubt that the Accused threatened PW1 and other people in PW1’s house with unlawful harm and he intended to put them in fear of unlawful harm when he did so. As I have clearly enumerated in the case of the Accused supra, the Accused admitted during crossexamination that he used the cutlass to scratch the floor and told them he will hurt them if they bring the child there. His act of scratching the cutlass on the floor was to put the fear of unlawful harm in PW1 and the other people. I, therefore, conclude that the prosecution has successfully established beyond a reasonable doubt all the elements of the offence charged herein. The Accused has failed to put up a defence which raises doubt as to his guilt in respect of the charge herein. FINDING I find the Accused guilty of the offence of Threat of Harm: contrary to section 74 of the Criminal Offences Act, 1960 (Act 29) and hereby convict him of the same. DISPOSITION/SENTENCE The court in passing the sentence took into consideration the Accused’s plea for mitigation as well as the period he has spent in custody during the trial. The Accused is hereby sentenced to pay a fine of 150 penalty units or in default serve a prison term of three (3) months in hard labour. The Accused is further ordered to sign a bond to be of good behaviour after he has served his sentence herein. SGD H/W SIMON KOFI BEDIAKO MAGISTRATE 20/12/2022 8