BRUCE-KONUAH vs. THE REPUBLIC [1967] GLR 611

CASES REFERRED TO

(1) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.

(2) R. v. Essien (1938) 4 W.A.C.A. 112.

(3) R. v. Yeboah (1954) 14 W.A.C.A. 484.

(4) R. v. Kuree (1941) 7 W.A.C.A. 175.

NATURE OF PROCEEDINGS

APPEAL against conviction for assault in the form of a slap. The facts are sufficiently set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

Ntow for the appellant.

G. A. Orleans, Assistant State Attorney, for the Republic.

JUDGMENT OF AMISSAH J.A.

The appellant in this case was convicted of assault upon the complainant, the wife of his neighbour. There was a second charge of causing damage to the complainant’s spectacles upon which he was also convicted. The prosecution’s case which the court accepted, was that prior to the day of the incident, relations had become strained between the neighbours. There was a hedge which separated their two properties. It had a hole in it. The appellant sought to block it. The complainant and her husband, taking the view that the hedge was wholly within their property objected to the appellant’s interference with it. Heated arguments between the

[p.613] of [1967] GLR 611 parties on either side of the hedge occurred over the rival claims. On the day of the incident, the complainant’s husband had got someone to remove the barriers erected by the appellant blocking the openings in the hedge. But this man had been stopped by the appellant. When the complainant’s husband returned from work he found this assignment uncompleted and he went to do it himself. The appellant saw him and tried to stop him. An argument ensued which was joined in by some members of the households of the men involved.

The appellant is a doctor practising at Tema Hospital. In the course of the argument, the complainant according to the prosecution said to the appellant that certain nurses had said that he had been misbehaving at the hospital. This apparently was too much for the appellant to bear because upon hearing it, he jumped over to the complainant’s side of the hedge and gave her a slap which resulted in her spectacles falling off and breaking.

The appellant did not substantially dispute that there had been quarrels over the hedge. But he disputed the assault in the form of the slap. According to him the quarrel between the two neighbouring houses on the material day began before he got home from work. A crowd had gathered to watch it. Upon arrival he went to the scene of the trouble and was hit by a stone thrown presumably from the other side. When the complainant saw him coming she started towards her house. As she turned a corner into her sitting room she slipped and fell at the door. He did not slap the complainant and it was not directly as a result of his action that her glasses dropped.

In both the prosecution and the defence stories the presence of one Mr. Woode at the scene at the time was mentioned. The appellant said that when he came home, this Mr. Woode, a visitor, met him outside the kitchen door and persuaded him not to go to the scene of trouble. The prosecution were even more detailed in their description of Mr. Woode and his actions because they said that he worked with Kaiser Engineers, and that being present at the scene he was heard to say to the appellant, “Doctor don’t do so” or some such words. He was also supposed to have tried to separate the appellant and the complaint’s husband in a fight which developed immediately after the slapping incident. Mr. Woode did not give evidence for the prosecution and the case ended without the court hearing him say what he saw that day.

Learned counsel for the appellant, as may be expected, has submitted that Mr. Woode was a material witness whose evidence would have resolved the difference between the two stories one way

[p.614] of [1967] GLR 611 or the other and therefore he ought to have been called by the prosecution. He cited on this the well-known case of R. v. Ansere (1958) 3 W.A.L.R. 385, C.A. as well as R. v. Essien (1938) 4 W.A.C.A. 112.

Learned counsel for the Republic, on the other hand, drew on the line of authority which says that the prosecution need not call a witness whom, they reasonably believe, will not speak the truth; see R. v. Yeboah (1954) 14 W.A.C.A. 484. She submitted that the prosecution had in the course of their case called a maid from the household of the appellant who had given evidence unfavourable to the prosecution and that this must have made them naturally cautious about calling a friend of the appellant also. She did submit that at the conclusion of the prosecution’s case, the defence were aware of the existence of Mr. Woode and could have called him if they wished.

The principles relied upon by the opposing sides would appear to conflict if pursued to their logical conclusions. Take the example of the material witness whose evidence is vital but whom the prosecution have every reason to believe will not speak the truth, are the prosecution obliged to call him or are they, in view of their belief, relieved from that duty?, I must first of all say that I do not think there is any duty on the defence to call such material witnesses as the prosecution, for reasons best known to themselves, refuse to call. Barring the well known exceptions, an accused is under no obligation to prove his innocence. The burden of proof of the accused person’s guilt is on the prosecution. That being so, should the prosecution refuse to call a witness who could put an issue beyond doubt, I do not think that it would be for the defence to remedy that defect. The Republic is therefore not entitled, on appeal, to make an issue of the fact that the accused well knew of the existence of a witness but failed to call him. The prosecution is therefore in a quandary; should they call the witness and risk him turning hostile or should they leave him out and risk their case being rejected on the ground that it does not come up to proof beyond reasonable doubt? It is difficult to lay a proposition of general validity in every case of this nature. A lot would depend upon the relative strength of the prosecution’s case considered on its own and in relation to the nature and possible weight of the evidence which they have omitted to call. But I should have thought that where the risks were about evenly balanced, the proper course consistent with their duty to prove the case, would be for the prosecution to call the witness.

In this case the evidence of Mr. Woode would certainly have helped the court resolve the difference as to whether the complainant

[p.615] of [1967] GLR 611 was slapped by the appellant or not, if that was the case intended to be proved. The evidence for this had been supplied directly by the complainant herself and indirectly had been supported by a friend of her husband who said that he heard the sound of a slap before he saw the complainant fall. Against this was the evidence of one prosecution witness, admittedly a maid of the appellant, and the appellant himself. The magistrate had dismissed the evidence of the maid as a tissue of lies. But be gave no reasons for coming to this conclusion. Having regard to the nature of the case, especially to the fact that all the witnesses seem to be committed to one side or the other I think it was incumbent upon the court to exercise the greatest care when deciding to accept the prosecution’s case. Without hearing all the material witnesses known, and forming an impression of each person’s veracity, it would be dangerous to say that no reasonable doubt remains. If a material witness is called neither by the prosecution nor the defence, the court in exercise of its powers to ensure that justice is done, should call the witness. In this connection I think the words of the West African Court of Appeal in R. v. Kuree (1941) 7 W.A.C.A. 175 at p. 177 are worth repeating. The court said this:

“It is well established that it is the duty of the prosecution to place before the Court all available relevant evidence. This does not mean, of course, that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. The trial Judge also has a discretion himself to call a witness in the interests of justice and we conceive it to be his duty to exercise this discretion when by so doing the real truth can be ascertained.”

If the sole point had been whether or not Mr. Woode should have been called as a witness to the slapping incident, this appeal would have succeeded. But counsel for the Republic has made a subsidiary point worthy of consideration. She submitted that the charge was one of assault and that by definition under section 85 of the Criminal Code, 1960 (Act 29), the expression “assault” covers not only assault and battery but assault without battery as well; that all the appellant is complaining of is that there was no battery in the form of the slap whereas the magistrate had held that there was; and that on the appellant’s own showing he was guilty of assault albeit without battery. In support of this submission learned counsel referred to section 87(1) of the Code which provides that:

[p.616] of [1967] GLR 611

“A person makes an assault without actual battery on another person, if by any act apparently done in commencement of an assault and battery, he intentionally puts the other person in fear of an instant assault and battery.”

This definition is made subject to the provision that “It is not necessary that an actual assault and battery should be intended . . . “ There is much to support the contention that upon the appellant’s own showing there was an assault without battery. After saying that the complainant started running when she saw him, the appellant said in cross-examination:

“I followed the first prosecution witness [complainant] when a stone she threw hit me I was naturally annoyed, and I doubled up. I mean I was not angry. I followed the first prosecution witness up to the gate … the first prosecution witness when running slipped, banged her head against the door and fell at the door, the entrance to the main hall.”

Herein lies the admission of the case of assault without battery. For what the appellant said he did, comes remarkably near illustration (b) to section 87 which says:

“A. at a distance of 10 yards from B., runs at B. with apparent intention of striking him, and intending to put B. in fear of an immediate beating. Here A. is guilty of an assault, although he never comes within actual reach of B.”

There was no other reason for rushing at the complainant than to show an apparent intention of doing her physical harm and putting her in fear of such danger. Counsel for the appellant has argued not against the substance of this but has submitted that the prosecution ought to have indicated whether they were proving assault with or without battery. I notice that the charge was one of plain assault on the complainant. And upon such a charge it is open to the prosecution to lead evidence which would support either one or the other type of assault. If the court finds one particular type proved then it has to convict.

In the circumstances I do not think the conviction for assault should be disturbed. It follows that the conviction for causing damage to the complainant’s spectacles must also stand. For though it was not conclusively proved that the appellant physically touched her it was by causing her to run to escape a possible battery, that she slipped and fell and damaged her spectacles. Consequently the damage is as much a direct result of the appellant’s action as if he

[p.617] of [1967] GLR 611 had physically touched her with that result. However, I think in the circumstances of this case, the sentences should not stand. The complainant is not without blame. According to her, it was as a direct result of a provocative statement she made in the course of this quarrel that the appellant assaulted her. I have to bear in mind also that I have not been satisfied that an assault and battery, as the magistrate must have thought, was proved against the appellant. I am therefore of the opinion that the loss in the form of the damaged spectacles should have lain where it fell that day. The matter should have been disposed of by a caution and discharge. I accordingly so order. The appeal is therefore allowed only to that extent.

DECISION

Appeal against conviction dismissed.

Appeal against sentence allowed.

Appellant cautioned and discharged.

S. E. K.