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High Court ·
10 Apr 1972 · Ghana
CORAM
ANTERKYI J.
ANTERKYI J.: By its judgment dated 25 June 1971, the District Court Grade II, Berekum, presided over by his worship Mr. Osei Kwadwo, convicted the accused on each of the following charges:
“STATEMENT OF OFFENCES
1. Assault on public officer, section 205 of Act 29/60.
2. Causing damage, section 172 of Act 29/60.
PARTICULARS OF OFFENCES 1. KWASI ASANTE , lorry driver, for that you on the 1st day of December, 1970, at Nsoatre in the Brong-Ahafo magisterial district and within the jurisdiction of this court, did unlawfully assault one No. 16688 EC/2 Mikporso Abalo, a peace officer then in the execution of his duty as such.
2. KWASI ASANTE, lorry driver, for that you on the same date and place aforesaid in the Brong-Ahafo magisterial district and within the jurisdiction of this court, did intentionally and unlawfully cause damage to one gabardine trousers value N¢12.00 the property of Constable Mikporso Abalo.”
Upon the convictions the order of the sentence read:
“Accused [was] sentenced to a fine of N¢50.00 or four months’ imprisonment with hard labour on the first charge and N¢30.00 or three months’ imprisonment with hard labour on the second charge. Sentences non-cumulative and concurrent. N¢20.00 out of the fine if paid be given to the complainant as compensation.”
By the petition signed by himself and filed on 3 July 1971, the appellant appeals on grounds, “(1) That the judgment was against the weight of evidence, (2) That the sentences were too harsh and unreasonable.” The case for the prosecution commenced on 13 January 1971 after the trial magistrate had refused an application by defence counsel for an adjournment on the ground that the case had on three earlier occasions been adjourned at his instance.
The story of the prosecution as portrayed by the record of proceedings was that, upon a complaint made at the Nsoatre Police Station by a school girl named Abena Kisiwaah (whom I will refer to in this appeal as K.) that one Kwasi Asante had assaulted her, the first prosecution witness (Mikporso Abalo, the escort police constable referred to in both charges), was detailed by the station officer to go with K. to invite the said Kwasi Asante to the police station. K. accompanied by the first prosecution witness found the accused sitting on the canopy of his stationary lorry and wearing a stripped shirt over a pair of brown trousers. And according to the first prosecution witness in his evidence in-chief (as on the record):
“I first greeted him and told him that I was a policeman by showing to him my appointment card and then told him that he was being wanted at the police station. The accused asked me to go to tell the sergeant in charge of the police station that he was not going. The complainant Abena Kisiwaah was present. I asked the accused to go with me to listen to what the sergeant was going to tell him. When the accused came down from the canopy of his lorry he told me that if I did not go away from his lorry, I would not wear my police uniform any more at Nsoatre town. The accused then gave me a slap and I fell down. I was wearing a pair of trousers and an interlock. These are the trousers I was wearing [pair of trousers identified]. The accused held my leg and dragged me on the ground. While he was dragging me on the ground my pair of trousers got torn and I sustained bruises on my knee . . . I have been in Nsoatre town for the past eight months and have known the accused as the driver to Nana Nsoatrehene. The accused has been coming to the police station with Nana Nsoatrehene and he knew me previously as a policeman staying in Nsoatre town. As a result of the injuries I sustained, I was issued with a medical form and I went to the hospital.”
On this evidence of the first prosecution witness there was no cross-examination by the accused. The second prosecution witness (Nti Awere), who happened to be in the company of the first prosecution witness and K. from the police station to the spot of the incident, but who was not referred to by the first prosecution witness in his evidence, gave evidence upon which there was no cross-examination by the appellant. The second prosecution witness had accompanied his niece, K., to the police station to make her complaint, and the sergeant in charge had deputed the first prosecution witness to accompany him and K. to invite the accused to the police station. The following was the evidence the second prosecution witness gave with regard to the material event at the spot where they had found the accused:
“We met the accused sitting on the canopy of his lorry in front of a store [and] discharging some goods. When we got to where the accused was, my niece pointed him out to the first prosecution witness. The first prosecution witness greeted the accused and told him that he was being wanted by the sergeant. He showed the accused his appointment card. The accused told the first prosecution witness that if he did not go away he was not going to wear his police uniform any more. When the accused came down from the canopy of his lorry he had wanted to board his lorry and as the first prosecution witness was about to hold him, the accused gave the first prosecution witness a slap and he fell down and as he attempted to get up he gave him another slap and then gave him some kicks with his foot. As the accused was giving the first prosecution witness some kicks with his foot I went to the police station on a bicycle and made a report of what was happening. The sergeant deputed a corporal to go to bring the accused to the police station.”
K.’s evidence with regard to the event was that:
“We met the accused sitting on the canopy of his lorry in front of a store. I pointed out the accused to the policeman (the first prosecution witness). The policeman greeted the accused and told him that he was being wanted by the sergeant. The accused told the first prosecution witness that he was working and had no time to go to the police station. The first prosecution witness showed a card on which was his photograph to the accused and told him that he was a policeman. The accused told the first prosecution witness that if he did not go away he was going to beat him as he beat me. The accused came down from the canopy of his lorry and had wanted to board his lorry. As the first prosecution witness made an attempt to intercept him, the accused gave him a slap and he fell down. The accused gave the first prosecution witness several kicks with his feet . . . As the accused was assaulting the first prosecution witness, the second prosecution witness went to the police station on a bicycle and not long after another policeman came to the scene.”
The fourth prosecution witness (Sergeant Yeboah), whose evidence closed the case for the prosecution, tendered in evidence as exhibit B the trousers of the first prosecution witness which he allegedly had on at the material time and which he (the first prosecution witness) had stated got torn while the accused “was dragging me on the ground,” and as exhibit A the medical officer’s report on the first prosecution witness after the incident, and as exhibit C the “suspect cautioned statement” of the accused, and as exhibit D the cautioned statement of the accused made after he had been charged with the offences in question. The medical report exhibit A reads: “Abrasions: Right great toe Abrasions: Right knee Contusion: Right lower eye lid.”
The fourth prosecution witness, during his evidence in cross-examination, stated that he asked the constable who denied having taken any ignition key; that the accused did not make a report that the first prosecution witness had taken his ignition key; and that it was not correct that he the fourth prosecution witness gave an ignition key to the accused the next day after the incident. The fourth prosecution witness admitted that “it is unlawful for a policeman sent to arrest some driver who had not committed any motor offence for the policeman to take the ignition key of the driver’s vehicle,” and that “when a policeman is sent to invite someone to the police station and the one tells the policeman to go and that he would follow, the policeman had to go.”
At the close of the case for the prosecution the evidence was to the effect that:
(1) K. (the school girl) had made a complaint against the accused that he had assaulted her and this alleged assault was not committed in the view of first prosecution witness.
(2) Fourth prosecution witness (the sergeant) upon that complaint sent the first prosecution witness then in mufti, in the company of K., to invite the accused to the police station.
(3) The first prosecution witness, in mufti, saw the accused on top of his lorry, and told him simpliciter in the presence of K. that he was wanted at the police station.
(4) The accused declined or refused to go with the first prosecution witness to the police station, even though the accused had known him to be a policeman; and the first prosecution witness as a police officer, kept standing near the vehicle and would not leave the spot.
(5) When the accused came down from the canopy of the vehicle he was intercepted by the first prosecution witness as he was attempting to board the vehicle to drive off.
(6) Upon this interception of the accused by the first prosecution witness, the accused slapped the first prosecution witness causing him to fall down, and as he lay down the accused kicked him several times with his foot, dragged him along the ground causing a tear to the pair of trousers he had on, and causing him to sustain abrasions on the right great toe and on the right knee, and a contusion on the right lower eyelid.
(7) After the incident, the accused made no report to the fourth prosecution witness that the first prosecution witness took away his ignition key, and the fourth prosecution witness did not give an ignition key to the accused the following day.
In his defence the accused denied having slapped and kicked the first prosecution witness. In his evidence-in-chief he gave his version of what happened at the spot thus:
“. . . on the day of the incident I went to Kumasi with my lorry and returned to Nsoatre at about 4.30 p.m. I stopped the lorry in front of my store to unload some goods and after unloading the goods I went and sat behind the steering wheel. At that time a man came to tell me that the sergeant wanted to see me at the police station. I told him to go to tell the sergeant that I was going to discharge the passengers on the vehicle and would go to see him after finishing discharging all the passengers. The man told me that once the sergeant had sent him to call me he would not go back without me and that I should alight to go with him to the police station. I told him that I could not go with him at that time because some of the passengers were going to Sampa and Dormaa-Ahenkro who should take different lorries at Berekum and as it was getting to evening they might miss all the lorries going to their respective places. The man opened the door of the vehicle and took the ignition key. I alighted and asked him to give me the key so that he could board the vehicle to go with me to the police station. He told me that once he had taken the key he would not give it back to me. I told him that I could not walk with him to the police station in the company of the people he came with because one of them was nursing a grudge against me and I was afraid that he might beat me on the way. The man repeated that once he had taken the key he would not give it to me. I then held him with a view to taking the key from him. He pushed me and I also pushed him. I was bent upon getting back from him the ignition key of my lorry. While I was struggling with him for the key one Kumi came to advise me to leave the key with him for if I continued to press for it, it might result in a fight. One Yaw Mensah came to the spot and when I told him that the man had taken my ignition key, he told the man to return it to me but he said that he would not give it to me and that he was taking it to the sergeant who sent him. Yaw Mensah took me home and when we got there the man followed me there and I requested Yaw Mensah to go with me to report to Nana Nsoatrehene so that he might tell the man to give the key to me. I went with Yaw Mensah to the ahenfie and the man followed. Nana Nsoatrehene was not at home but we met members of the town development committee holding a meeting and I told them what had happened. The members asked the man as to whether he had taken the key and he admitted taking it and said that he would not give it to me until he had taken me to the sergeant at the police station. The members of the committee advised the man to give me the key but he refused to do so. I then went to the police station with a view to reporting that someone had taken my ignition key but at the police station Constable Yeboah told me that he sent the man, who is a policeman to call me and he had gone to report that I had assaulted him and for that matter he was going to place me in cells and I was accordingly placed in cells. As I was being sent to the cells I told someone to go to tell my wife that she should look into a drawer in my room in which I kept the duplicate ignition key and give same to Ansumana to drive the lorry to Berekum to discharge the passengers. I was released from cells the next day and charged with the offence before the court.”
The evidence of Kwasi Kumi—the first defence witness—confirmed that of the appellant in the matter of the first prosecution witness having seized the ignition key of his vehicle. In chief, the first defence witness stated, inter alia:
“I met him (appellant) removing loads from the roof of the vehicle. I met a man there who told the accused that he was wanted by the sergeant at the police station. The accused told the man that there were passengers on the vehicle and he was going to discharge them at Berekum and that on his return he would go to see the sergeant. The man at once took the ignition key of the accused’s vehicle and the accused then alighted from the vehicle and demanded the key but the man refused to give it to him and as a result the accused held his hand with a view to taking the key from him and a struggle ensued. The accused sent someone home for a duplicate ignition key. The accused and the man struggled over the key but the accused never got it back . . .”
The second defence witness (Yeboah), the postal agent at Nsoatre and the third defence witness (Kasim Adamu), a farmer at Nsoatre, gave evidence that while they were holding a meeting of the town committee at the ahenfie the accused came there talking; he was being followed by a policeman. The second defence witness stated in chief:
“The accused told us that the policeman had taken his ignition key because he came to tell him that he was wanted by the sergeant and when he told him to go to tell the sergeant that he was going to discharge the passengers at Berekum before he went to see the sergeant. I asked the policeman as to whether it was a fact that he had taken the ignition key of the accused’s vehicle and he said that it was with him but as he took it the accused had assaulted him in the street. We advised the accusedto go to listen to the sergeant’s call and the accused and the policeman left the ahenfie.”
According to the third defence witness in his evidence-in-chief:
“We asked the accused why he was talking and he told us that he was travelling with a lorry and when he stopped in the town the policeman had taken his ignition key and had refused to give it back to him and he had then come to the ahenfie to request the chief to ask the policeman to return the key to him. The postal agent (the second defence witness) asked the policeman whether it was a fact that he had taken the ignition key of the accused’s vehicle and he said that it was a fact. The postal agent asked him to give it to the accused but he said that he would not do so until he had taken the accused to the sergeant at the police station. We advised the accused to go with the policeman to listen to the sergeant’s call and they left the ahenfie.”
It is significant to observe that the evidence of the first prosecution witness (the alleged victim of assault by the appellant) did not disclose how the accused eventually came to be at the police station, save that he said in chief, “While he was dragging me on the ground my pair of trousers got torn and I sustained injuries. The complainant’s uncle went to the police station on a bicycle and informed the corporal of what was happening to me.” And the second prosecution witness had concluded his evidence-in-chief by stating thus, “As the accused was giving the first prosecution witness some kicks with his foot I went to the police station on a bicycle and made a report of what was happening. The sergeant deputed a corporal to go to bring the accused to the police station.” And this was the version of the third prosecution witness, “As the accused was assaulting the first prosecution witness, the second prosecution witness went to the police station on a bicycle and not long after another policeman came to the scene.” The fourth prosecution witness (Constable Yeboah) stated in chief that when the third prosecution witness had made the complaint against the accused and he had deputed the first prosecution witness to go with the third prosecution witness to bring the accused, “The first prosecution witness and Abena Kisiwaah later returned and the first prosecution witness reported to me that the accused had beaten him up. Later the accused reported himself at the police station and I arrested him.” From this evidence of the fourth prosecution witness it is reasonable to infer that the corporal allegedly deputed by him did not find the first prosecution witness or the accused at the scene of the incident, and that the accused did go to the ahenfie accompanied by the first prosecution witness, and that the defence story that the ignition key was at that time with the first prosecution witness and that he did there at the ahenfie admit that it was in his possession was reasonably and probably true.
With this story of the defence, relative to the first charge, the trial court was seised with the duty of determining from the totality of the evidence before it, whether or not, as regards the first charge of unlawful assault on a peace officer:
(1) the first prosecution witness, as a police officer, was in those material circumstances acting in lawful execution of his duties;
(2) any proved conduct of the accused constituted an assault on the first prosecution witness not denied to be a police officer;
(3) the assault, on the first prosecution witness by accused, if established, was unlawful as not being justified.
With regard to the first issue there was the evidence of the first, second and third prosecution witnesses on the one hand, and the evidence of the accused and the first defence witness on the other hand, in denial of the version of the prosecution. The trial court rejected the evidence of the first defence witness on the ground that he had stated that the accused at the spot of the incident did ask someone to fetch him the duplicate ignition key of his lorry and that, as he also stated that he did not go with accused to the police station, his version about the fetching of the duplicate key did conflict with that of the accused himself who had stated in evidence that it was when he was at the police station that he did send for this key. The evidence of denial by the accused of the evidence of the first prosecution witness, the second prosecution witness and the third prosecution witness as regards the alleged assault and the matter of the first prosecution witness seizing the ignition key therefore stood to be considered by the court.
The trial magistrate in his reserved judgment, in which he made a résumé of the evidence of the witnesses for both sides, had this to say:
“The accused in his defence claimed that the first prosecution witness took the ignition key of his lorry and this I believe to be a fact for I have no reason to disbelieve the evidence of the second defence witness and the third defence witness that the first prosecution witness confirmed to them that the key was with him, but I do not think that the first prosecution witness acted beyond his powers when he took the ignition key of the accused’s lorry to prevent him from running away from him once he had seen him. No reasonable policeman will allow a suspect to go away once he had seen him. The reasonable thing which the accused should have done was to go to see the sergeant and then give an undertaking that he would report on his return from Berekum after discharging the passengers on his lorry. From the evidence of the first prosecution witness, the second prosecution witness and the third prosecution witness I am satisfied that the accused assaulted the first prosecution witness, a policeman, when he was discharging his lawful duties and I find him guilty on the two charges.”
The trial court therefore properly came to the conclusion that the first prosecution witness did in fact take possession of the ignition key of the appellant’s vehicle. But upon that finding and in accepting the evidence of the first prosecution witness, the second prosecution witness and third prosecution witness, with regard to the assault, it did not adequately consider the defence of the appellant to resolve the first and third issues above referred to, which are:
(1) whether or not at the material time and in the circumstances the first prosecution witness was acting in execution of his duties;
(2) whether or not the assault on the first prosecution witness by the appellant, as proved by the prosecution, was justifiable in the circumstances.
During the hearing of this appeal, Dr. Ohene-Djan, counsel for the appellant, contended that the above extract from the judgment of the trial court was a mis-statement of the law, and that the latter paragraph of this extract cannot necessarily be proof of the offence of causing damage in respect of the second charge, as that damage which had been caused to the trousers did not necessarily flow from proof of the alleged assault in the first charge.
It was contended for the appellant that, as neither the first prosecution witness nor the third prosecution witness did mention in his evidence that the second prosecution witness was with them when going to the spot, the evidence of the second prosecution witness must not be taken into account. But I dare say that the accused had the opportunity of cross-examining him but he did not, and that, as the third prosecution witness K., who was also not cross-examined by the accused stated in chief that “as accused was assaulting the first prosecution witness, the second prosecution witness went to the police station on a bicycle and not long after another policeman came to the scene,” it was thereby established that the second prosecution witness was present at the scene and that he witnessed the alleged incident.
It was further contended for the appellant that, as the alleged assault on K. by the appellant did not occur in the presence of the first prosecution witness, the first prosecution witness had no legal power to arrest the appellant after the appellant had refused to accept the invitation of the sergeant made to him through the first prosecution witness, and that before he could arrest the appellant he must have told the appellant the true ground of his arrest; that the attempt made by the first prosecution witness to interfere with the appellant when he was boarding his vehicle amounted to an unlawful assault which could be repelled by corresponding force in self-defence; that the evidence on record did not disclose any grounds on which the alleged assault by the accused could be said to have been unjustified; for, that such alleged assault was not justified must be proved by the prosecution, as it was not the duty of the accused to prove its justification. And it was further argued that the act of the first prosecution witness, then in mufti, in seizing the ignition key of the vehicle was unlawful and that the accused was in those circumstances entitled to use reasonable force to retrieve the key. In support of these contentions counsel cited the case of Kenlin v. Gardiner [1967] 2 W.L.R. 129, D.C.
For the appellant Dr. Ohene-Djan further contended that the judgment showed that the defence put up by the appellant was not considered by the trial court, particularly with regard to the circumstances in which he was stated to have slapped the first prosecution witness, more particularly, to his story about the circumstances in which he alleged the first prosecution witness seized the ignition key of his lorry without giving reason; that the seizure was unlawful, and in retrieving the key the appellant did use reasonable force with his hand, and that what the trial court in its judgment stated about the powers of the first prosecution witness over the ignition key and the appellant’s rights over it was a mis-statement of the law.
About the conviction of the appellant on the second charge of causing damage, counsel contended that, as no reference was made in the judgment about the facts relating to that charge upon the over-all evidence, the conviction thereon was erroneous, as a finding of guilty on the first charge of assault on the first prosecution witness did not necessarily condition a finding of guilty on that charge of causing damage.
Mr. Awuku Yeboah, arguing for the Republic, contended that the case of Kenlin v. Gardiner (supra) cited on behalf of the appellant was distinguished from the present case, in that, whereas that was a case in which the court held that the police officers concerned were guilty of technical assault and that the boys in question were justified in assaulting the police officers, in the present case the trial court found that the first prosecution witness did not assault the appellant but that it was the appellant who rather assaulted the first prosecution witness; that the question of self-defence arises only when there could be said to exist an attempt of the complainant (the first prosecution witness) to assault the accused; and that, therefore, one of the issues in the present case was whether or not there was an initial assault by the first prosecution witness on the appellant so as to give rise to the defence of self-defence in favour of the appellant, but that the trial court did not so find. Also that in the case cited, the court found that the boys did not genuinely believe the policeman to be so in fact, but in the present case the trial court made a finding that the appellant knew the first prosecution witness to be a police officer.
Mr. Awuku further contended that even if there was evidence on record to support a finding of technical assault by the first prosecution witness on the appellant, the evidence must also be considered towards finding whether or not the conduct of the accused (with regard to the evidence of the prosecution witnesses) was reasonable in relation to the force used by the appellant; and, referred to the authority of R. v. Wilson [1955] 1 All E.R. 744, C.C.A. Counsel contended that the appellant could be found guilty of technical or ordinary assault, even if the first prosecution witness could be said not to be then in execution of his duty as a peace officer for not having in lawful circumstances seized the ignition key of the appellant’s vehicle, because the kicking of the first prosecution witness by the appellant with his foot was not reasonable force in the circumstances; that the evidence of the appellant’s witness, the second defence witness, that in the presence of the appellant the first prosecution witness told him that the accused had assaulted him in the street was proof of the assault by the appellant even though he denied having done so.
With regard to the second charge of causing damage, it was contended that, whereas the evidence of the first prosecution witness and the tendering in evidence of the trousers were in proof of that charge, the defence did not give evidence in disproof, and therefore the conviction on that charge could not be disturbed.
In reply Dr. Ohene-Djan contended on behalf of the appellant that the seizure by the first prosecution witness of the key in those circumstances was unlawful and did cause annoyance to the appellant, and that within the meaning of assault in section 86 (1) of the Criminal Code, 1960 (Act 29), an act causing annoyance is an assault; and that with the trial court finding in the appellant’s favour that it was true that the first prosecution witness seized the ignition key, that court should have considered that finding along with the evidence for the prosecution before convicting the appellant; that the case of R. v. Wilson (supra) as cited did not apply in the present case, for the conduct of the appellant in trying to retrieve the ignition key was reasonable in the circumstances.
And, as to the second charge of causing damage, counsel contended m reply that the instant section was concerned with the value of the damage to the article and not with the value of the article or property itself, and that therefore the prosecution in merely tendering in evidence the article or property itself did not thereby prove the value of the alleged damage, and therefore in the present case the prosecution did fail to establish evidence in proof of any value of the alleged damage to the trousers, and therefore that charge must be considered as not proved by the prosecution.
It was after these arguments that I had to reserve judgment. I begin by stating that the liberty of every individual is protected by the law, until he acts in contravention of the dictates of the law to entitle a police or peace officer to interfere with that liberty by exercising against him the powers with which the officer is legally clothed. The officer in interfering with the individual’s liberty in those circumstances must act strictly within those legal powers, otherwise he commits a trespass to the person of that individual. This principle was aptly stated by Uthwatt J. in Leachinsky v. Christie [1946] K.B. 124 at pp. 150-152 thus:
“In the matter of a trespass to the person, a petty impertinence is not beneath the notice of the law, just as dignified insolence is not above it . . . The transgressor of the law, while disobeying it, can still rely on the law and assert the law’s supremacy.”
I proceed to deal with the first charge of assaulting a police officer in the execution of his duty. Where, as in this case, a person is charged with this offence, it is essential for the prosecution to prove (1) that the victim of the alleged assault is a police officer as stated in the indictment; (2) that he was in the due execution of his duty at the material time; and (3) the conduct of the accused as allegedly constituting the assault.
In the proof that he is a police officer, evidence showing that he is a police officer bearing a certain number, or being a police officer of a certain rank, or showing that he has acted as a police officer is sufficient proof, under the principle of omnia praesumuntur rite et solemniter esse acta done cprobetur in contrarium (see Archbold, Pleading, Evidence and Practice in Criminal Cases (35th ed.), p. 477, para. 1156).
Proof of the assault must be established by evidence of conduct of the accused as falling within one or other of the definitions of assault in sections 86, 87 and 88 of Act 29; but proof of any act of the accused indicating an intention to use violence against the officer would suffice.
To secure a conviction under section 205 (a) of Act 29, there must further be clear evidence from which it could be inferred that at the material time the position of the police (peace) officer in question was within one of the four circumstances stated in that section, namely:
(i) acting in the execution of any public duty,
(ii) proceeding to act in the execution of any public duty,
(iii) acting in the execution of any warrant or legal process,
(iv) proceeding to act in the execution of any warrant or legal process.
Any one of these circumstances which applies must be specifically stated in the indictment and proved. But it is not necessary to prove that the accused knew that the person assaulted is a police officer if in fact he was, see R. v. Maxwell and Clanchy (1909) 2 Cr.App.R. 26, C.C.A.; and it is not necessary to prove that the accused knew that the officer was at the material time in the execution of his duty.
In the present case, upon the complaint made by K. that the accused had assaulted her, the fourth prosecution witness (the sergeant in charge of the police station) sent the first prosecution witness (the officer named in the charge) to invite the accused to the police station. As the alleged offence was not committed in the view of the first prosecution witness, if he had wanted to arrest the accused without a warrant (as there was no warrant issued at the time) his power of arrest fell within section 10 (a) of the Criminal Procedure Code, 1960 (Act 30), which clearly states:
“(10) Any police officer may, without an order from a Court and without a warrant, arrest—
(a) any person whom he suspects upon reasonable grounds of having committed a felony or misdemeanour.”
Therefore, upon the complaint of K., he (the first prosecution witness) must have had reasonable suspicion that the accused had committed the misdemeanour of assault, and on that ground the first prosecution witness was entitled to arrest the accused without a warrant, and in that case he would have been in the execution of his duties, if, when he did approach the accused who was then standing on the canopy of his vehicle discharging loads therefrom, he (the first prosecution witness) had done what the law required of him in those circumstances and, after the first prosecution witness had told the accused that the sergeant had sent him to invite him to the police station and the accused had declined or expressed his unwillingness to go with him, if the first prosecution witness was desirous of exercising his legal power to arrest the accused without a warrant under section 10 (a) of Act 30, he should have complied strictly with those provisions relating to arrest. The first prosecution witness failed to do so. And it is therefore significant to observe that:
“If the police are exceeding their authority, resistance is not an assault within the section: R. v. Marsden, L.R. 1 C.C.R. 131: R. v. Mabel, 9 C. and P. 474, though it may be a common assault: See 1 Russ Cr., (12th ed.), p. 687. A police constable has a general duty to prevent crime and, when crime is committed, to bring the offender to justice, when the execution of these general duties involve interference with the person or property of a private individual, the powers of constables are not unlimited.”
See Archbold, Pleading, Evidence and Practice in Criminal Cases (35th ed.), p. 1084, para. 2719. Now section 7 of Act 30 provides that:
“Except when the person arrested is in the actual course of the commission of a crime or is pursued immediately after escape from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest, and, if the police officer or other person is acting under the authority of a warrant, shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.”
The emphasis is mine. The first prosecution witness should therefore have told the appellant that he was arresting him on the ground that K. had made a complaint that he had assaulted her. There was no evidence on the record that the first prosecution witness did tell the appellant why he was insisting that he should go with him to the police station after he had expressed his unwillingness to go. Therefore, in so insisting upon the appellant going with him to the police station without assigning a reason or the true reason, and in refusing to leave the spot where the appellant was, and in taking possession of the ignition key of the appellant’s lorry, as found by the trial court, the first prosecution witness was at the material time not legally acting in execution of his duty, but was committing on the appellant an assault by imprisonment by confining the appellant to the area bounded by the body of his vehicle.
By subsection (1) of section 85 of Act 29 assault includes imprisonment, which is defined by section 88 of Act 29 thus:
“(1) A person imprisons another person if, intentionally and without the other person’s consent, he detains the other person in a particular place, of whatever extent or character and whether enclosed or not, or compels him to move or be carried in any particular direction.
(2) This definition is subject to the following provision, namely, that detention or compulsion may be constituted, within the meaning of this section, either by force or by any physical obstruction to a person’s escape, or by causing him to believe that he cannot depart from a place, or refuse to move or be carried in a particular direction, without overcoming force or incurring danger of harm, pain, or annoyance, or by causing him to believe that he is under legal arrest, or by causing him to believe that he will immediately be imprisoned if he does not consent to do, or to abstain from doing, any act.”
The first prosecution witness would have been in legal execution of his duty if the appellant had first been put under a lawful arrest, and the appellant would have been under lawful arrest if an arrest had in the circumstance been effected by the first prosecution witness then in mufti (1) showing to the appellant ex abundanti cautela his appointment card: as he contended he did; (2) telling the appellant that upon a complaint lodged by K. at the police station he suspected that he (the appellant) had committed against K. the offence of assault, and that he was therefore arresting him, and (3) by actually touching him. The mere fact that K. was then present at the scene was not enough to satisfy (2) above. And if, as the record shows, the first prosecution witness merely told the appellant that he was wanted at, or being invited to, the police station, the appellant was not legally obliged to go there for a mere chat. Even if the first prosecution witness was at that time in police uniform, whether or not there existed a warrant of arrest, he must tell the appellant the true ground of the arrest.
The evidence for the prosecution established that the appellant, as he stood on the canopy of his vehicle refused to go to the police station, and thereafter the first prosecution witness insisting on taking him there and would not leave the spot; and that when thereafter the appellant dismounted the canopy and according to the first prosecution witness, “he [appellant] had wanted to board his lorry, and as the first prosecution witness was about to hold him, he [appellant] gave the first prosecution witness a slap and he fell down.” This was clearly an ordinary assault by the appellant on the first prosecution witness after the first prosecution witness had initially committed, and when he was still committing, an assault on the appellant by imprisonment. The case of Kenlin v. Gardiner [1967] 2 W.L.R. 129, the headnote of which was cited by counsel for the appellant is an authority establishing that:
“the justification of self-defence was available to a charge of assault under section 51(1) of the Police Act, 1964, as in the case of any other assault, provided that the prior assault by the police officer was not justified; that the prior assault by the police constables, in taking hold of an arm of each of the boys, was not justified in that it was not done as an integral step in the process of arresting the boys but in order to secure an opportunity, by detaining them, to question them so as to satisfy the officers whether or not it would be right in the circumstances to arrest them; and that, accordingly, there being a technical unjustified assault by the police officers, the plea of self-defence was available to the boys and their conviction would be quashed.”
The emphasis is mine. The evidence for the prosecution in the present case disclosed that the first prosecution witness fell down after the appellant had slapped him, and that thereafter the appellant kicked him several times with his foot and dragged him on the ground. As the prosecution did not admit that the first prosecution witness took the ignition key of the appellant’s vehicle and because the trial court made a finding that the first prosecution witness did take possession of this key but finding on the time and circumstances of the taking of the key, it is reasonably doubtful whether that happened before or after the appellant slapped the first prosecution witness and had had cause to drag him on the ground. And even though the appellant denied the happening of this incident, the whole of the story put up by the defence should have been considered along with that of the prosecution to arrive at a conclusion with regard to self-defence. In R. v. Lobell [1957] 1 Q.B. 547 at p. 555, C.C.A., a case of wounding with intent to do grievous bodily harm, where self-defence was raised, the Court of Criminal Appeal made some very valuable statements of the law applicable to self-defence which may be summarised thus:
(1) The onus remains on the prosecution throughout, but this does not mean that the prosecution need adduce evidence rebutting self-defence before (or even after) that defence is raised.
(2) The defendant must introduce some evidence from which the jury would be entitled to find the issue in his favour (unless the prosecution’s evidence can be used for that purpose).
(3) But to say that the defendant must introduce such evidence is very different from saying that the onus is on the defence.
(4) The jury must come to a verdict on all the evidence laid before them: and if on a consideration of the evidence the jury are left in doubt whether the killing or wounding was or was not in self-defence the proper verdict is not guilty.
(5) A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but they need also consider the evidence for the defence, which may have one of three results:
(i) it may convince them of the guilt of the accused;
(ii) it may cause them to doubt—in which case the defendant is entitled to an acquittal;
(iii) it may, and sometimes does strengthen the case for the prosecution.
See G. H. L. Fridman on “The onus of proof in cases of murder” [1959] Crim.L.R. 557 at pp. 567 and 568 dealing with self-defence.
The above summarised statements do apply in all cases in which the defence of self-defence is raised. See section 31 (f) and (g) of Act 29 as to the necessity for prevention of or defence against crime; or necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful right; and see section 37 of Act 29 as to the use of force in self-defence.
In the present case the first prosecution witness did commit the prior assault of imprisonment which was not an integral process of arresting the appellant: for, before remaining where the accused was on his vehicle, and refusing to leave there, the first prosecution witness never did tell the appellant the ground for his insistence that he went with him to the police station. In my view, assault by imprisonment is worse in degree of annoyance or irksomeness, and longer in time, than assault by battery. And in that wise the appellant was entitled to compel him to let him have access to his vehicle to enable him to free himself from the continuing assault by imprisonment and I should not have held that the appellant exceeded the force necessary when he slapped the first prosecution witness to enable him to gain access to the steering wheel, in view of the provisions of section 31 (g) of Act 29.
It was the forceful contention of Mr. Awuku Yeboah, learned state attorney, that even if at all it could not be held that at the material time the first prosecution witness was lawfully acting in the execution of his duty at all and that, therefore, conviction under section 205 of Act 29 could not be legitimately secured; yet on the basis of the finding by the trial court that the evidence of the prosecution witnesses did prove an assault on the first prosecution witness the appellant could be convicted of an ordinary assault under section 84 of Act 29. In support of this contention counsel cited the case R. v. Wilson [1955] 1 All E.R. 744, C.C.A.
This argument has been considered in relation to the prosecution’s evidence that when the first prosecution witness eventually fell down after being slapped by the appellant, the appellant dragged him on the ground and kicked him with his foot several times. But I am unable to go with counsel in that regard-first on the ground that the doubt beclouding the issue of self-defence was not resolved by the trial court. Secondly, section 154 of Act 30 provides that:
“154. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
These two subsections of section 154 deal with offences lesser than the one charged. It is submitted that these subsections deal with cases in which the one offence charged carries a punishment greater than the punishment entailed by the other lesser offence, and that, except in the cases specified in sections 155, 156, 157 of Act 30, where, as in the offence of assault (section 84) and assault on peace or public officer (section 205), the offence charged is of a degree equal to that of the one asserted to be a lesser offence, the section does not apply. And as the offences under sections 84 and 205 are both a misdemeanour carrying a term of imprisonment not exceeding three years—vide section 5 (4) of Act 261— a common assault (section 84) cannot be deemed to be a lesser offence than the offence of assault on a peace officer in execution of his duty (section 205). R. v. Wilson [1955] 1 All E.R. 744, CC.A. deals with a case of misdemeanour of assault with intent to resist arrest (under section 38 of the Offences against the Person Act, 1861), which is akin to assault on a police officer in the execution of his duty under section 205 of Act 29.
By section 47 of the (English) Offences against the Person Act, 1861 (24 and 25 Vict., c. 100):
“And whosoever shall be convicted upon an indictment for a common assault shall be liable at the discretion of the Court to be imprisoned for any term not exceeding one year. Under section 51 (1) of the (English) Police Act, 1964 (c. 48), and section 38 of the Offences against the Person Act, 1861, assault on a police constable in the execution of his duty is a misdemeanour carrying imprisonment for not more than two years or a fine or both. In the English Acts, therefore, common assault carries punishment of a term not exceeding one year, and the offence of assault on a police officer in the execution of his duty is a misdemeanour carrying a term of imprisonment not exceeding two years or a fine or both. And as the corresponding offences in our Act 29 are both a misdemeanour carrying a term of imprisonment not exceeding three years, neither of them, in Ghanaian law, can be said to be an offence lesser than the other, and therefore the principle in R. v. Wilson (supra) does not apply, though the argument might hold in other cases to which section 154 of Act 30 could legitimately hold. I therefore cannot uphold that upon a charge under section 205 of Act 29 the accused could be found guilty under section 84 of Act 29, as the express provisions of sections 155, 156 and 157 of Act 30 do exclude sections 84 and 205 of Act 29. These could only be included by amendment. And in the present case an additional charge of assault under section 84 would have merited consideration, upon the failure to prove the assault under section 205 of Act 29. I now come to the second charge of causing damage to the trousers of the first prosecution witness. Section 172 (1) (a) of Act 29 states: (1) Whoever intentionally and unlawfully causes damage to any property by any means whatsoever: —(a) to a value not exceeding £100, or to no pecuniary value, shall be guilty of a misdemeanour; …”
The prosecution’s evidence did not establish any value of the damage allegedly caused to the trousers tendered in evidence even though the value of the trousers was stated in the charge to be £G10 which was even not proved in evidence. But it might be emphasized that the provisions of section 172 are with regard to the value of the damage, that is, the amount needed to put the property to its former use, and unless the damage to the property is proved to be irreparable the value of the damage cannot be said to be the value of the property in question.
In the present case there was no evidence with regard to the value of the damage to the trousers. But section 172 (1) (a), as to the value of the damage states, “to a value not exceeding; £100 or to no pecuniary value.” And it can therefore be inferred from the fact of the value of the damage to the trousers not having been established in evidence that the damage thereto was of no pecuniary value, and, therefore, such value suffices to secure conviction. From the facts given by the prosecution that the trousers got torn when the appellant dragged the first prosecution witness on the ground, and which facts are not denied by the defence, save a denial that the appellant ever dragged the first prosecution witness, it was established that the tear was caused intentionally by the appellant within the meaning of intent in section 11 (2) of Act 29.
But the next point to be determined was whether the damage, thus “intentionally” caused, was also “unlawfully” caused? Within the provisions of section 174 (1), with regard to causing an event unlawfully, it is essential that the conduct of the actor should be capable of landing him in civil liability. Tersely, to secure conviction under section 172 of Act 29, not only must it be proved that the damage was caused intentionally within the provisions relating to intent in section 11 of Act 29, but also it must be proved beyond reasonable doubt that it was caused without just cause or excuse; the burden lay on the prosecution to prove conclusively the absence of any legal justification or excuse, but they failed to establish this by evidence.
From what has been stated above with regard to the first prosecution witness committing a continuing assault of false imprisonment on the appellant at the material time, and to the prosecution’s evidence not having established beyond reasonable doubt that the alleged assault on the first prosecution witness could be held to be justified or justifiable, it cannot be held that the damage to the trousers was also unlawfully caused, as the appellant was apparently justified in resisting the apparent arrest by force in self-defence, by forcibly removing the first prosecution witness from the area of his vehicle to regain his liberty then unjustifiably curtailed, and to assume control of his vehicle which was then unlawfully in the possession of the first prosecution witness by reason of his having seized its ignition key without legal justification.
In the result the appeal is hereby allowed, the conviction on each charge is hereby quashed and the appellant is accordingly acquitted and discharged on each charge. The cumulative fines of ¢50.00 and ¢30.00 respectively imposed, if paid, are to be refunded to the appellant.
Court below to carry out.
Appearances
DR. OHENE-DJAN FOR THE APPELLANT;
AWUKU YEBOAH ASSISTANT STATE ATTORNEY FOR THE REPUBLIC.
