Republic v Amponsah (CR/0002/2025) [2025] GHAHC 135 (4 March 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 4TH DAY OF MARCH 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/0002/2025 THE REPUBLIC RESPONDENT VRS ELVIS AMPONSAH APPELLANT JUDGMENT The Appellant herein filed a petition of appeal on the 25th of November 2021 against his conviction and sentence by the Accra Circuit Court 5. The appellant was charged with 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. He was arraigned before the trial court on the 7th June 2018 wherein he pleaded not guilty to the charge after same was read and explained to him in the Twi. After a full trial, the accused was on the 19th of November 2021 found guilty, convicted and sentenced to eight (8) years IHL. It is against this judgment that the appellant filed the instant appeal. 1 GROUNDS OF APPEAL The grounds of appeal filed are that: 1. The judge erred when she concluded that there was positive identification of the accused person even though there was evidence on the record that the identification parade was legal and factually flawed. 2. The judge erred when she disregarded the conclusive evidence of alibi which stated that the accused person was nowhere near the crime scene on the day and had no access to the room where the crime occurred. 3. The judge erred when she failed to apply the proper test in evaluating the case of the prosecution thereby occasioning a substantial miscarriage of justice. 4. The judge erred in not acquitting and discharging the accused person even when the prosecution admitted that it was possible that the real culprit was still out there. 5. That the judge erred when she did not settle in favor of the accused the doubts in the prosecution’s case and same has occasioned a substantial miscarriage of justice. 6. The conviction and sentencing cannot be supported having regard to the record and same has occasioned a substantial miscarriage of justice. 2 It was indicated that additional grounds may be filed upon receipt of the record of appeal. At the time of hearing the appeal, no additional grounds had been filed. The appeal would therefore be determined on the grounds of appeal filed. FACTS OF THE CASE The facts of the case as presented by the prosecution was that Charity Boateng the complainant is the biological mother of the victim Grace Acheampong aged eight (8) years. The victim lives with her parents at Ofankor a suburb of Accra, whilst the accused Elvis Amponsah aged 23 years is also a resident of Ofankor. The case of the prosecution was that on 12th October 2016 at about 4:00pm, the victim was returning home after school and on reaching a certain point on the road, the accused saw her and lured her into his friend's room at Ofankor and forcibly inserted his fingers into her vagina and after that inserted his penis too into her vagina. The victim after the act started bleeding, so the accused escorted her outside the room. The prosecution’s case continues that on the same day at about 6:30pm, the complainant saw blood stains on the bench where the victim was sitting. The complainant then observed the victim's body and saw another blood stains in her panties. The victim narrated the ordeal to the complainant and a report was made to the police. The prosecution states that the victim did not know the accused person, but when taken to the scene, she was able to identify the accused among a group of people. Accused was subsequently arrested and after investigations, put before court. RESOLUTION OF THE GROUNDS OF APPEAL 3 GROUND ONE: The judge erred when she concluded that there was positive identification of the accused person even though there was evidence on the record that the identification parade was legal and factually flawed. Counsel for the appellant in his written submissions filed on the 23rd of December 2024 on this ground of appeal surmised that the identification parade was neither legally nor procedurally complaint as same was in violation of the Police Service Regulation 125. He contended that the regulation requires a minimum of eight individuals to be included in the lineup but in this case, there were only seven individuals who were paraded. He also added that during the second round of identification, the appellant was the only person made to change into a singlet making him conspicuously different from the others. His contention is that this suggestive practice compromised the integrity of the identification process and cast serious doubt on the reliability of the identification. He added that contrary to the facts of the case at page 2 of the record of appeal which stated that the identification took place at the crime scene, the victim testified that the identification took place at the police station. In a sharp rebuttal, the learned State Attorney in his written submissions filed on the 19th of February 2025 referring to the case of Prosper Ameshinu vrs the Republic [2010] DLSC 7470 submitted that the guidelines in the Police standing orders are only guidelines to assist the police in carrying out identification parades and no more. It is his case that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes and that it is not the only acceptable mode of identification. He added that another mode could be by the oral testimony of a prosecution witness. He stated that the prosecution proved the identity of the appellant beyond a reasonable doubt. 4 Whenever an appellant or an accused person presents the case of possibility of mistaken identity, the evidence of the prosecution linking the accused persons or appellant to the crime must be strong and cogent. In a criminal trial the prosecution is obliged to lead evidence to identify the accused as the person who committed the crime for which he/she is charged. Identification may take several forms. It may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics such as age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history including identities of mental qualities, habits and disposition. See IGNATIUS HOWE V THE REPUBLIC, CRIMINAL APPEAL, No J3/3/2013, 22ND MAY 2014. 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. Also in Dogbe v R (1975) GLR 118, it was established that in criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct or circumstantial evidence and other relevant facts from which the identity of the accused might be inferred by the court. Further on the issue of identification in criminal trials, it was held in the case of IBRAHIM RAZAK & ANOR v. THE REPUBLIC [25/04/2012] CRIMINAL APPEAL NO. J3/6/2011 “In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person(s) who committed it. That was of a very crucial importance for 5 a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal. Thus where the ground of appeal bothers on mistaken identity, a trial or appellate court ought to carefully examine the evidence on it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused (appellants in this appeal), the conditions in which the observation was made, whether or not the area or vicinity was lit to make the observation possible, the distance between the witnesses and the appellants, or whether or not the description by the prosecution witnesses agreed with that of the appellant(s). On this see the guidelines by Lord Widgery CJ in R v Turnbull [1977] QB 224. The identification may take various forms. In 'Phipson on Evidence' (10th ed.) p 170 paragraph 1381, it is stated: 'When a party's identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics: e.g. age, height, size, hair, complexion, voice, hand-writing, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history.' see Adu Boahene v The Republic [1972] 1 GLR 70 at 74. The holding of an identification parade clearly from the above stated authorities is one of the acceptable modes of identifying perpetrators of a crime. In IBRAHIM RAZAK & ANOR v. THE REPUBLIC supra, it was held that “Thus, it is fair and reasonable to say that the modes of identifying the perpetrators of a crime vary and holding an identification parade may be one of the acceptable modes. Another may be by proof of personal characteristics or peculiarities like the height of the person given by the oral evidence by prosecution witnesses on oath in court.” 6 Indeed, identification parade has never been regarded as even the best form of identification as same is even resorted to as the last resort where for instance, the identifying witness saw the accused only for the first time for a brief period at the commission of the offence. In this instance, the contention of the appellant with the identification parade which was conducted firstly has to do with the number of persons lined up which according to the appellant was seven instead of eight as outlined by the police standing orders on the holding of identification parade that “The parade shall consist of at least eight persons as far as possible of similar age, height, general appearances and class of life as the suspect”. It is important to remind ourselves that these standing orders are guidelines to assist the Police in carrying out identification parade and no more as rightly submitted by the learned State Attorney. It is therefore imperative to consider the evidence led on record on the identification of the perpetrator of the crime. This evidence came from the PW2 that is the victim. She stated that at the police station, some persons were lined up and the police officer asked her to identify the culprit from among the people lined up and she picked up the appellant from among them. She said that she was then asked to go out and came back again. She said that when she came back, she was asked to once again identify the perpetrator from the line up and she realized that the person she had identified was now wearing a singlet and she was able to identify him again. Under cross examination, she was emphatic that the appellant who she identified was the one who had sexual intercourse with her and she was able to identify him as his face was not covered during the act of sex. This is what transpired during cross examination of the victim PW2. Q. The day you pointed out the accused person it was at the police station, right? 7 A. Yes. Q. Seven people were lined up for you to point out the culprit, is that not right? A. I did not count them. O. You are aware that you were asked to pick from workers up to the pure water factory and the laundry who were lined up at the police station? A. Yes. Q. It will not be true for the police to state that you identified the accused person on the premises of the incident or at the place the incident took place? A. I identified the person at the police station. Q. When the people were lined up at the police station and the police officer asked you to point out the culprit what did the police officer tell you before you pointed out the accused person? A. The police officer said I should identify the culprit among the people they had lined up. Q. Did the police officer tell you that it was possible that the culprit was not among the people lined up? A. I don't remember if the police officer said anything like that. Q. When you pointed out the accused person from the line up you were still standing there when the police asked the accused person to change his shirt is that not correct A. The police officer asked me to go out, I went out and when I came back the accused person was wearing a singlet. Q. Were the other people in the lineup also wearing singlet? A. No. Q. Are you aware that the accused person was nowhere near the laundry on the day of the incident? 8 A. He was there he was the one who did that to me Q. Are you aware that the police have themselves investigated and stated that the accused person was not at the scene on the day of the incident and that he had no access to the room you claim the incident took place? A.I do not know if they said that Q. I am suggesting to you that you have wrongly pointed out the accused person as the culprit in this matter A. The accused person is the one. Q. You know you have not been always truthful to this court Q. I am telling the truth. The accused person is the one who did that to me and whiles he was doing it he did not cover his face” To the mind of the court, the evidence led by the prosecution was cogent to prove the identity of the appellant. The incontrovertible evidence on record by the victim is that on the day of the incident at around 4pm, she had closed from school and was returning home from school when she saw a certain man. The man called her and asked her to come so that he sends her. The said man asked her to follow him and he took her to a laundry room where he pushed her onto a bed. She said that the man pulled up her dress, took off her underwear and pant and firstly inserted his fingers into her vagina. She said that she started screaming and the man threatened that if she does not stop screaming, he was going to kill her. The said man after fingering her then inserted his penis into her vagina. After he was done satisfying himself, he once again threatened her that if she informed anyone about it, she would die. 9 The happening of the above was obviously not for a brief moment. The acts as outlined above occurred over quite a considerable period of time to allow the victim to have a good look at the perpetrator, It is therefore not in doubt that the victim had a good look at this person who called her at 4pm when it was broad daylight, spoke to her and led her to the laundry room, had time to pull up her dress, remove her underwear and pant and firstly finger her, then had to threaten her when she screamed, after that insert his penis into her vagina and when he was done, once again threaten her. The period during which these acts occurred afforded the victim enough time to get a good look at the perpetrator of the crime for her to be able to identify him. That is why even after she had identified him from the other men, she was also able to further identify him when he had removed his shirt. In the case of Adu Boahen vrs the Republic (1973) GLR 70 CA “Where the identifying witness had known the accused for some time prior to the commission of the crime and had led the police to the house of the accused, as it is in this case, we think that the holding of an identification parade in these circumstances would have been pointless. Similarly, we think that failure to prove the personal characteristics of the accused is not fatal to conviction. But where the identifying witness saw the accused only for the first time for a brief period at the commission of the offence, we think that failure to hold an identification parade, or to prove his personal characteristics, would detract from the weight which the jury may attach to the evidence of identification. This court finds that the victim identified the appellant herein as the one who had sexual intercourse with her on the day of the incident and the trial judge was right in finding that the victim had positively identified the appellant. In fact the identification of the appellant as the perpetrator was at the police station and also in dock 10 identification. She also led the police to the laundry where the incident occurred which was on the same premises with the pure water factory where the appellant works. It is the view of this court that the lineup of seven persons for the identification parade has not occasioned any miscarriage of justice to the appellant. This ground of appeal fails and same is dismissed. GROUND 2: The judge erred when she disregarded the conclusive evidence of alibi which stated that the accused person was nowhere near the crime scene on the day and had no access to the room where the crime occurred. In considering the defense of alibi in a criminal case, our courts have recognized the crucial role it plays in establishing the innocence of the accused person. The alibi defense is fundamentally based on the premise that the accused person was elsewhere when the alleged crime was committed. This defense not only challenges the prosecution's assertions but also seeks to provide a credible account of the accused person’s whereabouts during the relevant time frame. When presented with evidence on alibi, the court has to analyze the evidence presented, taking into account the importance of corroborating the alibi with reliable witnesses or tangible proof. For an alibi to be effective, it must be supported by credible testimony or documentation, such as time-stamped receipts, surveillance footage, or witness statements among others. Section 131 of Act 30, of the Criminal and other offences (Procedure) Act, 1960, (Act 30), governs the practice and procedure in alibi, and provides that 11 “(1) Where an accused intends to put forward as a defence a plea of alibi, the accused shall give notice to the prosecutor or counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove, (a) prior, in the case of a summary trial, to the examination of the first witness for the prosecution…" A.N.E Amissah addressed the law on alibi in his book Criminal Procedure in Ghana. At page 136 and 137 on the heading “DEFENCE OF ALIBI”, he states that: “if an accused puts forward an alibi, as an answer to a criminal charge, the accused is simply saying that whoever might have committed the offence, if it was committed at all, it was not he and to support this he leads evidence that he was elsewhere at the material time… an accused who intends to put forward as a defence a plea of alibi is bound to give notice of it to the prosecutor or his counsel with particulars as to time and place and of the witnesses by whom it is to be proved, prior to the sitting of the trial court to which the case is committed to trial…if the accused refuses to furnish the required particulars the case must proceed but no evidence in support of the alibi shall be admissible in evidence. It would appear that where the court does not direct that particulars be given and the prosecution does not object to the trial proceeding, the accused may make his defence of alibi and call his witnesses in support” Since the plea of alibi is a defence an accused person raises in a trial, the burden on the accused person is to call witness in respect of the alibi or lead evidence to raise a reasonable doubt in the case of the prosecution. The onus to lead evidence on the plea of alibi was on the person asserting it. This he may discharge on the balance of probabilities. Section 11(3) of the Evidence Act NRCD 323 provides: 12 "(3) In a criminal action, the burden of producing evidence when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt". This is for the appellant to lead such evidence to cast doubt or discredit the evidence proffered by the prosecution. In the case of KWESI VRS. THE REPUBLIC [1977] 1 G.L.R. 448, the Court of Appeal held that "it was wrong for a trial judge to think that an alibi, because it was called a defence, raised some burden on the defence to establish it. Where an alibi defence was raised, the onus of proof lay on the prosecution in all cases. In setting up an alibi an accused person was doing no more than denying that the prosecution had proved their case, and if he was able to raise a reasonable doubt about his guilt, he was entitled to be acquitted” Since it is a defence that an accused person raises, this appellate court like the trial court is guided to determine the defence as to whether it raises a reasonable doubt in the case of the prosecution as 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 13 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 reasonable doubt before it should convict, if not, it should acquit. See also AKILU v THE REPUBLIC [2017-18] 1 SCGLR 444. Per the record of appeal, the appellant was arraigned before court on the 7th of June 2018 where his plea was taken. On the 25th of June 2018, the particulars of alibi were filed. The report of the police on the alibi was dated the 30th of November 2018. The prosecution upon filing the report on the alibi decided to proceed with the trial. In leading evidence on the alibi, the accused person testified per his witness statement and stated that on the day of the incident, which is the 12th of October 2016, he was home with his friend Ofosu Emmanuel who had come to visit him to discuss preparations for Community Discipleship Assembly scheduled for that evening. He added that he and Ofosu prepared rice together and ate as breakfast that very morning and spent the rest of the morning and afternoon watching television while discussing the meeting scheduled for that evening. He added that later that evening, they hosted six other members of the Assembly who had come for the prayer meeting as scheduled. He listed their names as Rashida, Sandra, Beatrice, Kwaku, Elizabeth and Apostle David. He stated that the prayer session commenced around 6:30pm and ended at 9pm. 14 He called Emmanuel Ofosu as DW1 and he testified per his witness statement that on the 12th of October 2016, he visited the accused at his flats in Asofa to discuss the Assembly meeting for that day. He stated that they prepared rice later that morning and ate and spent the rest of the day watching television and having discussions regarding the Assembly. He stated that around 6pm, other members of the Assembly, six in number came to the accused’s flats for the prayer session and around 9pm, the prayer session ended and he stayed behind to watch a movie at the accused person’s end and went home around 12 midnight. DW2 Richard Afadi testified that for the week of 16th of October 2016, there was frequent power outage and this affected pure water production so that entire week all staff members at Yafumco pure water factory were asked to stay home till further notice. He added that there was no water production for that week. As part of the case of the accused is the report on the notice of alibi which was tendered through PW3 the police investigator wherein it was stated that police extended investigations to the scene of crime and it was revealed that the accused person did not go there on the day of the incident and also that DW2 who sleeps in the room where the offence took place told Police that the accused person has no access to the room but comes to the area to make account after supplying water to people. From the evidence outlined supra from the accused person, it is Emmanuel Ofosu DW1 who sought to corroborate the story of the accused person that on the day of the incident, he the accused person was nowhere near the laundry where the incident occurred. What is important to note is that the said DW1 had testified per his witness 15 statement that he was a teacher of Confidence Academy at Ofankor. The incident occurred on a Wednesday which was a school day but he claimed that he was with the accused person the whole day. As such the prosecution challenged his evidence to which he indicated that at the time of the incident, he had just completed school and he was not teaching. This piece of evidence was challenged by the prosecution and as such same required that it be proved. There was no evidence to back this assertion. In the case of KHOURY AND ANOR. V. RICHTER (JUDGMENT WAS DELIVERED ON THE 8TH DECEMBER, 1958) and cited with approval in the case of MAJOLAGBE V LARBI & ORS (1965) GLR 190 “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” See also ZABRAMA VRS SEGBEDZI [1991] 2 GLR 221. DW2 Richard Afadi refers to the week of 16th of October 2016 as the week which all pure water factory workers were asked to stay home. There is no evidence from him that on the 12th of October 2016, the accused person did not report for duty. It seems to me that the accused person relied heavily on the report on the notice of alibi and lost sight of the fact that, he had the duty to lead evidence in support of his alibi to raise a reasonable doubt in the case of the prosecution especially when the PW3 was not emphatic and definite that there could be mistaken identity. That is because, despite the report on the alibi, the police found it necessary to still proceed with the prosecution of the case. For instance how it was revealed that the accused person did not go to the 16 crime scene that day was not shown. Also it is important to note that the crime scene was the laundry and not the pure water factory which the defence states is quite a considerable distance from the pure water factory. That apart in his own exhibit 1 which is the report on the alibi which he relied on, it was stated therein that “looking at the above facts, the victim might have been defiled but as to the actual person who did the act is solely known by the victim. Police base on the identification, charged the accused person and put him before this honourable court” To the mind of this court, the defence of alibi is an afterthought by the accused person. I do not find his defense reasonable probable. This ground of appeal fails and same is dismissed. The following grounds of appeal (iii, iv, v, and vi) shall be determined together as they all relates to the conviction and sentence of the accused person. Contrary to the submissions by counsel by the appellant that the trial judge failed to apply the proper test in evaluating the case of the prosecution thereby occasioning a substantial miscarriage of justice, the trial judge at page 5 of her judgment which can be found at page 157 of the Record of appeal found that the weighing card which was admitted into evidence showed that the victim was below the age of 16 years, that she was carnally known per the medical report; which were all matters which the accused person did not contend at the trial. I have perused the evidence on record and I find that those ingredients were proved to the required standard. The only contention during the trial and which the trial judge spent much energy and industry on was the issue of the person who defiled the victim which brought about the issues of alibi and identification which I have extensively dwelt on and dismissed the grounds of appeal based on same. The issues which counsel for appellant raised as doubts in the case of 17 the prosecution such as the difference in the facts of the case and the evidence led at trial as well as the issue of the victim failing to initially be forthright with her mother are matters which do not go to the root of the essential ingredients to be proved and also do not impeach the credibility of the prosecution witnesses. With regards to the sentence imposed on the appellant herein, the sentence was also not wrong in law. Per the law, 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 than seven years and not more than twenty-five years. The appellant was sentenced to eight (8) years. The sentence of eight (8) years is within the law and the judge considered the rules on sentencing before she gave out the sentence. I have however considered the youthfulness of the appellant, and I set aside the sentence of 8 years IHL and substitute same with the sentence of 7 years IHL. The sentence will commence on the 19th of November 2021 when the appellant was sentenced. From the above, the appeal succeeds in part. PARTIES: APPELLANT PRESENT COUNSEL: JERRY JOHN KOFI ASIEDU WITH YASMIN MAAMAH FOR THE APPELLANT PRESENT 18 DAVID BEECHEM FOR THE REPUBLIC/RESPONDENT PRESENT (SGD) MARY M.E YANZUH J. HIGH COURT JUDGE 19