COMFORT AND ANOTHER vs. THE REPUBLIC [1974] 2 GLR 1

CASES REFERRED TO

(1) R. v. Donovan [1934] 2 K.B. 498; [1934] All E.R. Rep. 207; 103 L.J.K.B. 683; 152 L.T. 46; 98 J.P.

409; 50 T.L.R. 566; 78 S.J. 601; 32 L.G.R. 439; 25 Cr.App.R.1; 30 Cox C.C. 187, C.C.A.

(2) Craven v. Craven (1957) 107 L.J. 505, C.A.

(3) Nubuor v. Ampadu, Court of Appeal, 31 May 1960, unreported.

(4) Quaye v. Mariamu [1961] G.L.R. 93, S.C.

(5) R. v. Sarpong [1959] G.L.R. 383, C.A.

NATURE OF PROCEEDINGS

APPEALS against convictions for assault and battery entered by a trial magistrate’s court. The facts are sufficiently set out in the judgment.

COUNSEL

Dr.Ohene-Djan for the appellants.

Ossei for the respondent.

JUDGMENT OF OSEI-HWERE J.

On 8 March 1974 I allowed this appeal and set aside the conviction and sentence of the appellants and substituted an acquittal and discharge and ordered that the fines imposed if paid should be refunded forthwith to the appellants. I reserved my reasons which I now proceed to give. The first and second appellants were jointly charged in count 1 for assaulting one Peter Adjei and the first appellant alone was charged in count 2 for assaulting one Abena Frema. The prosecution’s case, in a nutshell, disclosed that the complainants, Peter Adjei and Abena Frema (the first and second prosecution witnesses respectively) had attended a spiritualist meeting which the first appellant had conducted at her house to exorcise evil spirits and that in the course of the meeting the first appellant, who is acknowledged by the group as a prophetess and was therefore the chief actress in the drama, had hit the head of Abena Frema several times with a stick in her effort to exorcise Abena Frema of her evil spirit. The first prosecution witness, Peter Adjei, went and held the stick and the second appellant hit him on the chest and first appellant hit him on the head.

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The appellants denied the charges. The evidence of the first appellant showed that she had no knowledge of what happened that particular night of the alleged assault. It is also evident from her testimony that when she conducts her prayer meetings she at times falls into a trance when she does not realize what she does or says. The second appellant also relied on his statement to the police. In that statement he said that he was rather the victim of an unprovoked attack from the first prosecution witness Peter Adjei. The statements of both the accused were forwarded together with the record of proceedings. The first appellant’s statement to the police supported what she said in the box that when she is filled with the “spirit” at her prayer meetings she does not realize what she does. Two witnesses were called for the defence other than the appellants and they supported the defence contention that the first prosecution witness rather assaulted the appellants. After hearing the evidence from both sides the trial magistrate convicted and sentenced the appellants to a fine of “¢20.00 each or two months’ imprisonment with hard labour each.” It is against their conviction and sentence that this appeal is brought.

There were two grounds of appeal filed on the appellants’ behalf viz.:

“(1) That the judgment cannot be supported having regard to the weight of the evidence.

(2) That the magistrate erred in law.”

The judgment was attacked because it contained matters wholly unsupported by any evidence before the court. I entirely agree with the castigations of the appellants’ counsel against the judgment. Apart from this, the trial magistrate’s statement of the case for the prosecution is nothing short of a hyperbole. Both his statement of the evidence and his undue exaggeration of it must have undoubtedly influenced him in finding the appellants guilty of the charges without giving any consideration to the defence. The defence, as I could see it, is that the second prosecution witness voluntarily attended the first appellant’s prayer meeting so that the evil spirit in her would be exorcised. She willingly submitted herself to stand in the nude before the crowd. The second prosecution witness herself offered no resistance when, in the process of casting away the evil spirit, the first appellant had to hit her with the stick. If the second prosecution witness had any objection to raise the only sensible thing she could have done was to have withdrawn herself away from the meeting. There is nothing on record to support the magistrate’s statement that the first appellant started to hit the second prosecution witness “brutally” and that he, the second prosecution witness suffered any “brutal ordeal.” By section 86 (1) of the Criminal Code, 1960 (Act 29), a person commits an assault and battery when, essentially, there does not exist the other person’s consent. Consent, therefore, generally negatives any offence of assault. I say “generally” because I concede that the victim’s consent cannot be a defence for an assault if the blows inflicted are, in the opinion of the court likely to cause bodily harm. “Bodily harm,” of course,

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includes, any hurt or injury calculated to interfere with the health or comfort of the victim and, although it need not be permanent, it must be more than merely transient and trifling: see R. v. Donovan [1934] All E.R. Rep. 207, C.C.A.

Indeed, in R. v. Donovan (supra) the following principles were laid down in the head- note at p. 207:

“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful – an act malum in se – it can never be necessary for the prosecution to prove absence of consent on the part of the party wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected, and in such a case the onus of negativing consent is on the prosecution. Consent, being a state of mind, is to be proved or negatived only after a full and careful review of the behaviour of the person who is alleged to have consented. Unless the jury is satisfied beyond reasonable doubt that the conduct of that person has been such that, viewed as a whole, it shows that he or she did not consent, the prisoner is entitled to be acquitted.”

If the trial magistrate had directed himself on the definition of assault and battery as contained in section 86 (1) of Act 29 and he had also considered that the first appellant did not commit the act against the second prosecution witness with any hostile intention (in other words, he was not actuated by any malice) and if he had further directed himself on the prosecution’s failure to prove the absence of consent he would have come to the conclusion that the first appellant committed no offence at all against the second prosecution witness as she impliedly consented to what she did.

I agree with the second ground of appeal that the trial magistrate erred in law in convicting the appellants as he gave no reasons whatsoever in convicting them. The magistrate, in his judgment, merely stated what he felt was the prosecution’s case without giving similar treatment to the case for the defence. He also discredited the supposed alibi pleaded by the second appellant in his statement to the police even though on oath he fully admitted that he was present when the incident took place. He then next concluded his judgment as follows:

“The evidence of the defence is deplorably weak. There was no collaboration [sic] and it merely formed a fantastic mass of lies. In my view the prophetess is only engaged in throwing dust into the eyes of the public and I find both accused guilty of the offence to which the charge relates.”

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It will be observed that the trial, magistrate failed in discharging the judicial process because he made no findings of fact: see Craven v. Craven (1957) 107 L.J. 505, C.A. applied in Nubuor v. Ampadu, Court of Appeal, 31 May 1960, unreported and Quaye v. Mariamu [1961] G.L.R. 93, S.C. In section 177 (1) of the Criminal Procedure Code, 1960 (Act 30), the duty is imposed on a trial magistrate court to “give its decision in the form of an oral judgment, and . . . record the decision briefly together with the reasons for it, where necessary.” In R. v. Sarpong [1959] G.L.R. 383 at p. 386, the Court of Appeal, in reconsidering the similar provision in section 173 of the former Criminal Procedure Code, Cap. 10 (1951 Rev.), had this to say:

“That reasons are necessary even in the case of a magistrate trying a case summarily, unless it is clearly obvious that guilt must be inferred from the facts and circumstances of the case. If the reason is not obvious to an appellate Court, then the magistrate must be held to have erred in not stating it, because section 173 of the Criminal Procedure Code requires a magistrate to state reasons for his decision ‘where necessary’.”

There was ample evidence from the defence that the first prosecution witness was rather the assailant. The corroboration which the magistrate said was lacking was, indeed, supplied by the first and second defence witnesses. As the case for both sides was, as it were, balanced, the trial magistrate was duty bound to have given reasons for accepting the prosecution’s case. Criminal convictions cannot be founded on the mere ipse dixit of a trial court. It is for the above reasons that I allowed the appeal, set aside the conviction and sentence of the appellants and I entered an acquittal and discharge and ordered the fines imposed, if paid, to be refunded forthwith to the appellants.

DECISION

Appeal allowed.

Conviction and sentence set aside.

J. D.