Ohemeng v S (CR/0431/2025) [2025] GHAHC 146 (30 July 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 30TH DAY OF JULY 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0431/2025 JUSTICE OHEMENG APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant herein was charged with two counts of the offence of defilement of female under sixteen (16) years of age contrary to Section 101 (2) of the Criminal Offences Act 1960 (Act 29) and was arraigned before the Circuit Court, CF -GBVC, DOVVSU Headquarters Accra on the 24th of October 2023 wherein he pleaded not guilty to the charges after same was read and explained to him in the Twi language. After the close of the case for the prosecution, the trial judge found that the prosecution has not been able to prove a prima facie case against the accused person on count one but found that on the second count, the accused person had a case to answer and proceeded to call on the accused person to open his defence on same. At the end of the 1 trial, the accused was on the 29th of April 2025 found guilty on count two, was convicted on same and sentenced to seven (7) years IHL. It is against this judgment that the appellant filed the instant appeal on the 7th of May 2025. GROUNDS OF APPEAL The sole ground of appeal filed is that: A. The judgment cannot be supported having regard to the evidence on record, and same has occasioned a miscarriage of justice FACTS OF THE CASE DETERMINATION OF THE SOLE GROUND OF APPEAL A. The judgment cannot be supported having regard to the evidence on record, and same has occasioned a miscarriage of justice A.N.E. Amissah in his book titled "Criminal Procedure in Ghana” at pg 290 wrote "Perhaps the commonest ground of appeal against conviction is that “the conviction cannot be supported having regard to the evidence.” It is an established fact and same held in a plethora of authorities that where a party files the omnibus ground of appeal, it is a call on the appellate court to evaluate the whole of the evidence to determine that issue. This is in consonance with the principle that an appeal is by way of re-hearing with the appellate court having all the powers of the trial court. The settled principle of law is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based 2 on the evidence and the law, the appellate court does not disturb its judgment. On the other hand, the judgment of the lower court attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A, Apaloo v R (1975) 1 GLR 156 An appeal is in effect a rehearing of the case and as such, an appellate Court is at liberty to sieve through the evidence on record with a view to determining whether the decision the appellant is appealing against can be supported or not. The appellate court is therefore in as much the same position as the trial Court. Dzamefe JA in the case of Patrick Mordo v the Republic [2019] 140 GMJ at page 243 referring to the case of Tuakwa v Bosom [2001-2002] SC GLR 61 stated that at the hearing of an appeal, an appellate court is under an obligation to analyze the entire record of appeal, take into account the testimonies and all the documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself in a civil trial that on a balance of probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence and in criminal cases that the decision of the court is reasonably supported by the evidence on record beyond doubt. He opined further that the appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. This is because an appeal is said to be a rehearing. I would therefore on that background proceed to analyze the entire evidence on record to determine if the evidence on record supports the conviction of the accused person by the trial Circuit Judge. I would therefore be considering the entire record of appeal as well as the written submissions of counsel for the appellant and the respondent. 3 Section 101 of the Criminal Offences Act 1960, Act 29 provides that: “(1) For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age. (2) A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less that seven years and not more than twenty-five years.” From the offence charged, the ingredients the prosecution had to prove are that the i. The victim is below the age of sixteen ii. That someone had natural or unnatural carnal knowledge of the victim iii. That someone is the accused person. AGE OF THE VICTIM The birth certificate of the victim was admitted into evidence by the police investigator PW3 and same was marked as exhibit D. The victim was per exhibit D born on the 23rd of May 2010. As such, as at the date the prosecution alleged that the victim was defiled which was the 23rd of May 2023 and the 1st of October 2023, the victim was thirteen (13) years old. The appellant did not contest the age of the victim at the trial. That the victim was thirteen (13) years and thus below the age of sixteen (16) years was satisfactorily proved at the trial and I so find. 4 THAT SOMEONE HAD NATURAL OR UNNATURAL CARNAL KNOWLEDGE OF THE VICTIM Section 99 of Act 29 provides what in law will be considered as proof of carnal or unnatural carnal knowledge in the following terms: - “Whenever, upon the trial of any person for an offence punishable under this code, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge shall be deemed complete upon proof of the least degree of penetration.” Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brushwork, penetration would be deemed to have occurred and carnal knowledge taken to have been completed. See Gligah & Anr. v The Republic [2010] SCGLR 870 PW2 the victim testified per her witness statement filed on the 15th of November 2023 and stated that on the 23rd of May 2023 the accused person had sexual intercourse with her in his vehicle at the St. Bernadette Sombrous School at Dansoman SSNIT. She also testified that on the 1st of October 2023, the accused person once again had sexual intercourse with her in his house at around 10:30pm. PW1 the mother of the victim testified and stated that on the 12th of October 2023, she was called to the victim’s school where she was informed that the victim confided in a teacher of the school by name Emma that the accused person had sexual intercourse with the victim at the St. Benedict School and in the accused person’s room. She stated 5 that the victim confirmed this to her that the accused person had sexual intercourse with her in these two places. The investigator also testified as PW3 and stated that the victim informed her that the accused person had sexual intercourse with her on two occasions at the aforementioned places. She tendered into evidence the police medical form of the victim as exhibit C. In exhibit C, it was noted that on examination, the hymen is broken, there was slight pain at the level of the clitoris and slight vaginal bleeding due to menstrual period. The medical Doctor noted in the report that on conclusion, “a probable case of defilement which has previously occurred” The medical doctor was not called to testify as the prosecution informed the court that the said Doctor was on retirement. It is the mind of this court that per the evidence submitted by the prosecution at the trial, the fact that someone had carnal or unnatural carnal knowledge of the victim was satisfactorily proved. THAT SOMEONE IS THE ACCUSED PERSON. In the case of Dogbe v The Republic [1975] 1 GLR 118, holding I, the High Court, per Ata-Bedu J, stated thus: “In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. Thus opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity.” 6 Similarly in the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, it was held that where the identity of the accused person was in issue there can be no better proof of his identity than the evidence of a witness who swore to have seen the accused committing the offence. The PW1 testified that the victim informed her that it was the accused person who had sexual intercourse with her. The PW3 the police investigator on his part also testified that the victim informed her that the accused person had sexual intercourse with her on these two occasions. As part of their case, they tendered into evidence the caution statement of the accused person dated the 15th of October 2023. In that statement exhibit E, the accused person admitted that on the two dates he was with the victim but he did not have sexual intercourse with her. The accused person gave another statement which was admitted into evidence as exhibit F and in that statement, the accused person denied having sexual intercourse with the victim on the 23rd of May 2016 but admitted to having sexual intercourse with the victim on the 1st of October 2023. In his charge statement exhibit G, he once again denied having sexual intercourse with the victim on the 23rd of May 2016 but admitted to having sexual intercourse with the victim on the 1st of October 2023. It is usual in most cases of sexual offences to have the victim as the only eye witness of the incident. And as such it is only the victim who can in most cases give direct evidence as to how it happened and all the circumstances surrounding it. In the instant case, the victim testified that it was the accused person who had sexual intercourse with 7 her in the month of May 2023 and the 1st October 2023. Despite the victim having given this piece of evidence in her witness statement and relied on same upon taking the oath on the witness stand, under cross examination, the victim totally denied her statement and asserted strongly that the accused person did not have sexual intercourse with her as she told the police and that it was rather a “guy” who had sexual intercourse with her a year prior to the incident. For the sake of clarity, this is what she said under cross examination “when the incident happened - when the guy had sex with me - the one who travelled abroad, I told my friend about it and then she promised to keep it between the two of us but we had a fight this year. So she went to my teacher Sir Emmanuel and reported to him and Sir Emmanuel came to me and asked me about it. And then I was scared that if I told him the truth, he would let the school head know and my parents would know about it. So I lied to him and told him that my keyboard teacher Sir Justice lured me and had sex with me in his car on my birthday. So I told him that Sir Justice was the one who had sex with me on my birthday in his car and then I begged him to keep it a secret and not tell anyone and he kept it for a long time and then a time came when I heard my colleagues talking about it. I think my friend told them - so anytime 1 go to school, I sit quiet. So, Sir Enoch studied me for some time and then he approached me one day and told me that I have changed. This is not how I behave when I come to school. So he asked me that what is wrong. So I told him the same thing I told Sir Emma that my keyboard teacher has been having sex with me because if I say that it is someone my age, I will be in trouble. If my parents heard that I had sex with someone my age, I will be in trouble. So I lied to Sir Enoch just as I lied to Sir Emma. So when I told him, then he spoke to Sir Emma and they agreed that they will have to report to the management. So 12 October this year 2023, my mother and two of my uncles were invited to the school. Then the management told them that I reported to my teachers that Sir Justice had sex with me. So, 8 that night, they took me to Mamprobi Police Station to write my statement. So then they gave me a form. a health form, a hospital form. The next morning, when my mother was taking me to the hospital, my uncles caned me severely. They lashed me. On our way to the hospital a policeman from Mamprobi Police Station called my mother that we should come there again. He said since in my statement the incident happened at Dansoman, the case should be sent there. So after that, we went to the hospital to do the medical. So when we came back, they told me that on Sunday we have to go with the police to go and get Sir Justice. So, I got scared and wanted to tell them the truth that he hadn't done anything to me, but anytime I tried to say anything, my uncles threatened me that if I say anything contrary to my statement, they will stop paying my fees and they will not take care of me again. So, I was scared, so I couldn't tell them the truth because anytime I wanted to say this is what really happened, they would shut me up and tell me that I should stop being a naughty child. I was scared that if I tell the truth, they would stop taking care of me because my dad is not there and they are the ones taking care of me. Because my dad is late, I have to listen to my uncles. My father is dead. Please for now, that's all I have to say.” The trial judge upon being informed of the victim being beaten by her uncles enquired from an uncle who was in court and this uncle in the person of Mr. Frank Simpson Lutterodt admitted that he heard that the victim was beaten by one of her uncles who has since then travelled to the United Kingdom. The prosecution upon this evidence from the victim proceeded to apply to the court to treat the victim as a hostile witness and in doing so confronted the victim with her unsworn police statement she 9 gave to the police on the 13th of October 2023 exhibit A. The victim still stood to her ground and stated that all that she told the police was not true. The trial court obviously based on the confession statement of the accused person wherein he admitted to the police that he had sexual intercourse with the victim on the 1st of October called upon him to open his defence on the second count of defilement which according to the prosecution occurred on the 1st of October. DEFENCE OF ACCUSED PERSON The Accused Person/Appellant at the trial denied having any sexual intercourse with the victim. He stated that in his first two statements he vehemently denied any wrongdoing and that it was only in his third statement that contained an admission. He stated that he was arrested on the 15th of October 2023 and on the 16th of October 2023, his family came to plead for bail but it was denied. He said that he was interrogated a third time without his family present and he still maintained his innocence and the crime officer became angry with him and struck him with his slipper and instructed the investigator to write a new statement on his behalf with him admitting the offence. He said that he did not write the statement himself and neither did he consent to its contents and he did not give his signature out of his own free will but because he was beaten and threatened. He called his mother Lydia Appiah as his DW1 who testified per her witness statement that her son was refused bail and she was told that the family of the victim would only agree if the accused person admits to having had sexual intercourse with the victim. She added that the first two statements which were given by the accused person denied the offence and the accused person told her that the crime officer slapped him and 10 threatened to send him to jail if he doesn’t admit to the charges. She said that on the Tuesday they were called to the office of the officer and it was disclosed to them that the accused had been granted bail because he admitted that he had had sexual intercourse with the victim and that the accused person told her that he did not write the third statement and he was slapped and harassed by the crime officer to admit the charges to be dropped and that was the reason why he admitted to the crime. The law mandates the court in determining the guilt or otherwise of an accused person to consider the defense an accused person proffer. In so doing, a three-tier test is provided to guide a judge in considering the defense of the accused person. This test was outlined in the case of LUTTERODT v COMMISSIONER OF POLICE [1963] 2 GLR 429 at page 439 as follows: “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and (3) Finally, quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond 11 reasonable doubt before it should convict, if not, it should acquit. See also AKILU v THE REPUBLIC [2017-18] 1 SCGLR 444. Assessing the case of the accused person with the afore stated standard, it is clear that the accused person on the 15th of October 2023 denied the offence. In his further caution statement, he admitted to having sexual intercourse with the victim on the 1st of October 2023. On the 17th of October 2023, he gave a caution statement wherein he denied having sexual intercourse with the victim in the month of May but admitted to having sexual intercourse with the victim on the 1st of October 2023. Thus contrary to his assertions in his evidence on oath that he denied the offence in his first and second statement he gave to the police, the statements which were admitted into evidence without any objection does not state so. The accused person therefore was not being truthful to the court. thereby making it difficult for the court to believe his assertion that he admitted the offence because he was promised that he would only be admitted to bail if he admitted the offence and he was also assaulted. Despite this viewpoint of the court, what the prosecution is to remember is that, the burden to establish the guilt of the accused is entirely the burden of the prosecution. The prosecution was to succeed on the strength of its own evidence and not merely by relying on the lapses in the evidence of the accused person. The position of the law is clearly that, a trial judge is not just to reject the defence of an accused person merely because he does not believe the story of the accused. The Court is enjoined to consider whether the defence though not believable is reasonably probable. AMISSAH J.A. thus held in the case of DARKO v. THE REPUBLIC [1968] GLR 203 that, “the principle that an accused person should be acquitted if his defence was believed or if it was reasonably probable did not call for uniformity of expression by judges or the use of any particular form of words. The crucial question relevant to the point in any ordinary criminal trial would turn upon whether 12 the judge or tribunal of fact upon consideration of the whole evidence found that the case of the prosecution had been proved beyond reasonable doubt. Where a court convicted only because it took the view that the accused person’s defence was not to be believed this would be equivalent to shifting the burden of proof on to the defence. For it would in effect amount to saying that he was entitled to be acquitted only if he proved his defence to the satisfaction of the court. By implication the court would then have relieved the prosecution of its duty to prove its case beyond reasonable doubt which it was not entitled to do. A court could not therefore stop short at saying that it was convicting the accused because it did not believe its story. It must go further and show whether his story did not create a reasonable doubt either” To the mind of this court, the case of the prosecution was wrought with inconsistencies considering the evidence of the victim who was the sole eye witness of the sexual act between herself and the accused person. It was basically her complaint of the sexual act that precipitated the whole complaint to the police and the preferring of the charges against the accused person. Having therefore changed her stance and admitted to not being truthful to the police and the court in her witness statement, she is not to be believed. In the case of Michael Darko Dodoo & Lawrence Danso Dodoo v. Louis Ayitey Okine & 5 ORS [28/01/2004] CA N0. 4 the Apex court opined that ‘It is only in exceptional circumstances that the court may rely on the testimony of a hostile witness and, the reason for the court so relying on the said testimony is to be noted on the face of the record. A person who, on the witness stand, repudiates his earlier unsworn statement is presumptively not to be believed. That is the position in which a hostile witness is cast. We cannot reject the earlier statement of the witness in this case in her police statement and substitute same for what she is now saying on oath because the witness is untrustworthy and it is not possible to ascertain if she 13 is being truthful. The settled principle is that once it is established that the witness had earlier made an untrue statement, albeit unsworn, regarding the same subject-matter, the testimony of a hostile witness is said to be nugatory. This court cannot rely on a nugatory testimony. The practical solution with respect to a nugatory statement is as if that witness had not testified at all. When the evidence is nugatory, it cannot support the case for the party who called him; but so also it cannot be relied upon by the opposite party to support his case…quite apart from whether a witness is treated as a hostile witness or not, the degree of credibility to be accorded to him must be negligible, once it is demonstrated that he has contradicted himself on the same issue. When a witness deliberately makes two contradictory statements on the same subject, it is unsafe to prefer one version to the other. It is difficult to say when the witness has chosen to tell the truth. The testimony of such a witness is inherently unreliable. Unless it is independently corroborated, the court should not rely on one version of such unreliable evidence to support its verdict” The law is also that a witness whose evidence on oath is contradictory of a previous statement given by him whether sworn or unsworn puts his credibility in doubt unless he is able to offer a reasonable explanation for the contradictions or inconsistencies. In the case of Yirenkyi v Republic (J3/7/2015) [2016] GHASC 5 (17 February 2016) the court cited with approval the case of “Odupong v Republic [1992-93] GBA 1038 where the Court of Appeal, per Forster JA held on this principle as follows: - “The law was well settled that a person whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence would be of no probative value unless he gave a reasonable explanation for the contradiction.” 14 In the case of Yeboah and others vrs The Republic (Consolidated) (1972) 2 GLR 281 the headnotes holding 7 it was held that “in criminal trials the guilt of the accused must be proved with that degree of certainty required by law. Where the evidence for the prosecution contains such conflicts and discrepancies as to mar that degree of certainty, a conviction cannot properly be based on that evidence. Also in the often quoted case of Republic vrs Adamu (1960) GLR 91 at 95 the Court of Appeal held that where the evidence of the prosecution is so inconsistent as to contain seeds of its own destruction the accused cannot be found guilty. Dotse JSC in the case Republic vrs Acquaye alias Abor Yamoah II, ex-parte Essel and others [2009] SCGLR 749 at 750. quoting William Blackstone, in the Commentaries on the Laws of England, 1765, as quoted by Counsel for the Accused in his written submissions dated the 25th of July 2024, “our system of criminal justice is predicated on the principle of the prosecution, proving the facts in issue against an accused person beyond all reasonable doubt. This has been held in several cases to mean that, whenever any doubts exist in the mind of the court which has the potential to result in a substantial miscarriage of justice, those doubts must be resolved in favour of the accused person. I believe this principle must have informed William Blackstone’s often quoted statement that "Better than ten guilty persons escape than one innocent suffer". Also the story of the victim as the time and place of the sexual intercourse was not corroborated by the evidence of the prosecution on record. It is a known fact that in cases of sexual offences it is expected that the evidence of the victim as to the occurrence of the sexual act where same is denied be corroborated by the introduction of some other form of evidence to corroborate the denied averment of the victim. I say so 15 mindful of the fact that per section 7(3) of the Evidence Act, 1975, Act 323, “corroboration of admitted evidence is not necessary to sustain a finding of fact or verdict”. Per section 7(2) of the said Act 323, “evidence may, in proper circumstances, be corroborated by other independent evidence that requires corroboration”. Indeed, the need for corroboration of evidence is emphasized by section 7(5) the same Act 323 which states that “this section does not preclude the Court or a party from commenting on the danger of acting on the uncorroborated evidence, or commenting on the weight and credibility of admitted evidence or preclude the tribunal of fact from considering the weight and credibility of admitted evidence”. The requirement of corroboration can be sidelined only when the fact to be proved can be said to have been established by the admitted evidence. Thus even though the confession of the accused person in his further caution and charge statement is enough to ground a conviction as stated in the case of Billa Moshie v the Republic (1977) GLR 418 CA “ that a conviction could quite properly be based entirely on the evidence of a confession by a prisoner and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness” it is also the settled position of the law that a confession statement should be considered alongside the entire evidence of the prosecution to consider the probative weight to attach to same. In the instant case, since the sole eyewitness of the prosecution had repudiated her statement and stated categorically that the accused person had never had any sexual intercourse with her, and the medical report stating that the sexual act occurred previously without any evidence as to the time frame within which the said sexual act occurred, it makes the story of the accused person that he was induced to make those statements more reasonably probable. 16 From the foregoing, it is the considered view of this court after considering the entire evidence on record that the prosecution failed to prove its case against the accused person herein to the required degree. The result is that, the appeal succeeds and the same is upheld. I hereby set aside the conviction and ultimately the sentence imposed on the appellant herein. The appellant is accordingly acquitted and discharged. PARTIES: APPELLANT PRESENT COUNSEL: ABEDNEGO AKUTAM WITH PHILIPA-MARY NARTEY FOR DR. EMMANUEL MAURICE ANKRAH FOR THE APPELLANT PRESENT RUTH DABI FOR THE REPUBLIC/RESPONDENT ABSENT MARY M.E YANZUH J. HIGH COURT JUDGE 17