REPUBLIC VRS. OFORI (CCD/CC6/11/24) [2025] GHAHC 24 (23 January 2025)

CORAM: HER HONOUR HALIMAH EL-ALAWA ABDUL BAASIT (MRS), JUDGE, SITTING AT THE CIRCUIT COURT, DANSOMAN-ACCRA ON THE 23RD DAY OF JANUARY, 2025. SUIT NO.: CCD/CC6/11/24 THE REPUBLIC VRS STEPHEN OFORI Accused Person present. Chief Insp. Mensah for the Prosecution present. No Legal Representation JUDGMENT Background: 1. The Accused Person was charged with the offence of Defilement: Contrary to Section 101(2) of the Criminal Offences Act 1960 (Act 29). The Brief Facts of the case as narrated by D/PW/CPL Josephine Quao are that the Complainant and the Accused Person both reside at Awoshie Abrantie where the Accused Person works in a Corn Mill Shop. On the 8/06/2024 at about 5:35pm, the Complainant returned from work and asked the whereabouts of her daughter, (victim) Jaedyn Arielle Cudjoe; aged Seven (7) years and was told that the victim had gone back to school to pick her bowl which she left behind. The victim's sister Uriella was asked to Judgment-The Republic vs. Stephen Ofori Page 1 of 14 locate her but she could not find the victim. The Accused Person on seeing the victim’s sister informed her that the victim came for GH₵1.00 from him to buy biscuit and left to school. 2. The Complainant on hearing this followed up on her daughter to school and met her returning home. At about 8:30p.m after dinner, the victim was asked to go and take her bath but she rather went to use the washroom. The victim kept unusually long and the Complainant went to attend to her and found her cleaning her genital with tissues severally. The complainant questioned the victim but she did not say anything. On the 29/6/2024 at about 8: 00ạm, while sorting out dirty clothes, the complainant saw the victim’s pant stained with blood. Upon interrogation the victim mentioned that the Accused Person invited her into the Mill shop, removed her pant and underwear shorts, lifted her up to sit on the chair, inserted his penis into her vagina, had sexual intercourse with her after which he gave her GH₵1.00 and she left. Lodged a complaint with the Police and was issued with a Police Medical Form to send the victim to hospital for treatment. The suspect was arrested and arraigned before this Honourable Court. The Plea 3. On the 8/11/2023, the Accused Person, pleaded not guilty to the offence levelled against him after same was read and explained to him in the Ga Language. Having pleaded not guilty, the burden was on the Prosecution to adduce enough evidence to establish beyond reasonable doubt that the Accused Person indeed committed the offences he has been charged with. Article 19(2) (c) of the Constitution 1992 provides that ‘a person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty’. Thus, throughout a criminal trial, the burden of Judgment-The Republic vs. Stephen Ofori Page 2 of 14 proving the guilt of the Accused Person remains on the Prosecution. (See Asante vs. The Republic (1972) 2 GLR 177). Evidence of Prosecution 4. To prove its case, Prosecution took the Evidence in Chief of the victim orally, called Three (3) Witnesses to testify and tendered in the following as Exhibits; i. Exhibit ‘A’ - Written Statement of Complainant dated 1/07/2024. ii. Exhibit ‘B’ - Written Statement of PW2 [undated]. iii. Exhibit ‘C’ - Written Statement of Victim dated 1/07/2024. iv. Exhibit ‘D’ - Birth Certificate of the Victim. v. Exhibit ‘E’ - Endorsed Medical Form dated 1/07/2024. vi. Exhibit ‘F’ - Caution Statement of the Accused Person dated 1/07/2024. vii. Exhibit ‘G’ - Charge Statement of the Accused Person. viii. Exhibit ‘H’ - Photograph of the stained pant of the Victim Testimony of Prosecution Witnesses 5. The first to testify was the victim herself who is Seven (7) year old Jaedyn Arielle Cudjoe. She informed the Court, among others that on the said day, the Accused Person called her into his Corn Mill Shop to give her money to buy biscuit. Upon reaching his shop, he invited her over to his room, lifted her dress up and inserted his penis into her vagina. She however was unable to inform her mother of what had happened because the Accused Person had threatened her and she was afraid to talk. Judgment-The Republic vs. Stephen Ofori Page 3 of 14 6. The next Prosecution Witness (PW2) is Bernice Gberbie who testified among others that she is the biological mother of the victim and knows the Accused Person as a Corn Mill Operator opposite her house. On the 28th June, 2024 at about 5:00 p.m., she got home and realized that her daughter was not yet home. In a search for the victim, she met her around the Corn Mill returning home and they all went back home. PW1 testified further that the moment the victim removed her dress and went straight to her bedroom without asking for food which was unusual of her. She then woke the victim up to take her bath but instead of taking her bath the victim sat helplessly on the toilet. Upon watching the victim closely, she saw the victim wiping her vagina frequently with toilet papers and she seemed to be in pain. 7. The Witness testified further that on 29/6/2024, whilst doing the laundry, she saw blood stains in the victim’s underwear she wore the previous day to school. Based on suspicions, she asked the victim to lie in a supine position and upon checking her vagina, she saw that the victim’s vagina was unusually widely open. She subsequently sent the victim to the hospital where the doctors confirmed that the victim had been defiled, of which the victim informed her that it was the Accused Person who had sex with her and warned her not to tell anyone about it. The Witness added that the victim informed her that that was the third time the Accused Person had sex with her and gave her Ghc1.00 to buy biscuit. She then lodged a complaint at the Police Station and the Accused Person was arrested. 8. PW2 is 9 year old Uriella Ellyette Naa - Aberkumah Cudjoe and a sister to the victim who testified among others that she knows the Accused Person. On a Friday in June 2024, the victim told her that the Accused Person had asked her come to his Corn Mill Shop to wash his socks for him. When the victim was being searched Judgment-The Republic vs. Stephen Ofori Page 4 of 14 for, she run towards the direction where the victim had informed her that she will be and when the Accused Person heard her opening the gate, he quickly asked her through his window if she was looking for the victim. Accused Person then told her that the victim only came to him to take Ghc1.00 to buy biscuit. Upon hearing that she went back home but the next day, they were all washing their uniforms together when their mother saw blood stains in her sister's underwear pants she wore on that that fateful Friday. 9. PW3 is No. 7246PW/COL Josephine Quao, is stationed at Domestic Violence and Victims Support Unit (DOVVSU) of Anyaa Police Station and is an Investigator who was on duty on the on 29/6/2024 when PW1 lodged the complaint of defilement against the Accused Person. She testified that the case was then referred to her for investigation of which she took the necessary statements and a Police Medical Form was issued for the victim to be sent to the hospital. Accused person was then arrested and an investigation Cautioned Statement was obtained from him. She then visited the crime scene and conducted the necessary investigations. PW3 added that on the 8/7/2024, the Police Medical Form was received at the Unit duly endorsed by a Medical officer of the Ghana Police Hospital who confirmed that the victim had been defiled. She then formally charged the Accused Person with the offence and arraigned him before Court. The Defence 10. The Prosecution assumed the burden of proving the guilt of the Accused Person beyond reasonable doubt and at the close of its case, the Court, on the 27/11/2024, ruled that the Prosecution had established a prima facie case against the Accused Person to require him to open his defence. On the 10/01/25, the Accused Person was to open his defence but he said was; ‘…I do not know anything about the case. I Judgment-The Republic vs. Stephen Ofori Page 5 of 14 am innocent of the charge…’ However, Exhibits ‘F’ and ‘G’ which are the Caution and Charge Statements of the Accused Person had repeated statements of the Accused Person as follows; ‘… I work in a Mill at Awoshie Abrantie and the Complainant lives opposite to my work place. On the 25/6/24 at about 3.00pm, I was in the Mill sitting with a man when a little girl came to me with something in her mouth. I asked the little girl to open her mouth and I saw pencil shavings inside so I asked her to pour them out which she did and I washed her mouth or her. I asked if she was hungry and she admitted to it and I gave her Ghc1.00 for biscuit, which she immediately run off. At about 4.00pm, I was going to stake lotto when I saw the little girl’s senior sister and I asked her why she did not wear the little girl slippers and I went my way. I did not see the girl again. I never defiled the said girl as well…’ Analysis 11. The Criminal Offences Act, 1960 (Act 29) in Section 101 provides that ‘…. defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age…..whoever naturally or unnaturally carnally knows any child under sixteen years of age, whether with or without his or her consent commits an offence…’ Defilement is therefore any sexual intercourse with a child under the age of 16 years old, with or without the child’s consent. It has also been stated that defilement includes any sexual activity which children do not fully comprehend and are thus unable to give informed consent. Thus, to establish that the Accused Person committed the offence, the Prosecution must discharge each and every element of the crime. 12. In the case of The Republic vs Yeboah [1968] GLR 248, Baidoo J (as he then was) held that for Prosecution to succeed in its case, it must establish beyond reasonable doubt, each of the following Three (3) elements; (a) That the victim is under the age of 16 years; (b) Someone had sexual intercourse with her; and (c) That person is the accused. In discharging the essential elements of the offence of defilement, Judgment-The Republic vs. Stephen Ofori Page 6 of 14 the prosecution tendered in the Birth Certificate of the victim, marked as Exhibit ‘D’ which indicated that she was born on the 29th November, 2017, and shows that the victim was Seven (7) years old as at the time she was defiled. 13. Prosecution again furnished the Court with Exhibit ‘E’, a General Medical Form of the Ghana Police Service and same is dated 29/06/24. The said Form provides, among others, details of the name, age, and gender of the victim. Exhibit ‘E’ is endorsed by ASP Dr. Harriet Hammond of the Ghana Police Hospital, who stated at page 2 line 11 as follows; ‘…perineum: hymen torn at 5 and 7’o clock position, vagina area hyperaemic…’ The Medical Officer continues at line 20 as follows; ‘…impression: evidence of forceful entry…’ Medical references explain that the phrase ‘Hymen torn at 5 and 7 o'clock position’ indicates the vaginal opening, similar to how you might describe points on a clock face. 14. Additionally, with ‘vagina area hyperaemic,’ hyperaemic has also been explained to mean increased blood flow indicating that the vaginal area is reddened due to increased blood flow, which can happen due to irritation, inflammation, or recent sexual activity. The Prosecution, failed to call the Medical Officer to testify and be subjected to cross-examination. As such, the Medical Report remains the sole medical evidence before the Court. It is trite that in instances where the victim is a child, the medical evidence is the only direct evidence to prove that the incidence took place. The Report explains the nature of tear or rupture of hymen or injuries to genitals and other parts of the body as defiled children are almost always bound to suffer injuries to genitals. Thus, even if the evidence of victim is not available or not of perfect nature due to the age, the medical evidence alone can clinch the guilt of the Accused Person. Judgment-The Republic vs. Stephen Ofori Page 7 of 14 15. Furthermore, Exhibit ‘H’ is the picture of what has been described as the panty of the victim which is heavily stained with blood. PW1 stated in paragraphs 10 and 11 of her Witness Statement as follows; ‘…the next day which was a Saturday, 29/6/2024, at about 8am, I started doing laundry. In the course of washing, I saw blood stains in the victim’s underwear she wore the previous day to school…’ The combined effect of Exhibits ‘E’ and ‘H’ points to the fact that the victim was defiled. 16. The third element of the offence is that the Prosecution must show that it was the Accused Person who had sexual intercourse with the victim. The Particulars of the Offence as indicated on the Charge Sheet were as follows; ‘…Stephen Ofori @ Efo, Aged 31 years, Corn Mill; for that you on 28th day of June, 2024 at Awoshie-Abrantie in the Greater Accra Region and within the jurisdiction of this Court, did unlawfully carnally know Jaedyn Arielle Cudjoe, a female aged Seven (7) years…’. To establish that the Accused Person defiled the victim, the Prosecution must establish that the Accused Person had carnal knowledge of the victim unlawfully. 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 brush work, penetration would be deemed to have occurred and carnal knowledge taken to have completed. (See the case of G/CPL Valentino Gligah And EC/1 Abdulai Aziz Atiso vs. The Republic [2010] SCGLR 870) 17. To discharge this burden further, the Prosecution asked the victim certain questions pertaining to the incident and this is what transpired; Judgment-The Republic vs. Stephen Ofori Page 8 of 14 Q: When Effo informed your sister that you have gone to the school, what did Effo do to you? A: [Victim hesitates in narrating] he removed my pant and underwear. Q: What did he do after removing your pant and underwear? A: The thing that he uses to urinate. Q: What did he use his thing to urinate to do to you? A: He put it in my “own”. Q: Was it not painful? A: It was. Q: Why did you not cry? A: He covered my mouth. 18. In addition to above, Prosecution tendered Exhibit ‘C’ which is the statement made by the victim at the Police Station on the 01/07/24. At line 17 of page 1 of the said statement, the victim stated as follows; ‘…he came out of the room and I saw his penis. He drew closer to me, inserted his penis into my vagina and had sexual intercourse with me. I got down from the chair and wore my pant and underwear. Efo gave me Gh1.00 and asked me not to tell my parents…’ The above shows that the victim did not mince words about who had sexual intercourse with her and was able to point at the Accused Person as the one who had sexual intercourse with her. The narrations of the victim, a Seven (7) year old, as to how she was defiled, could not be deemed to have been something she conjured out of thin air or was coached to tell the Court so as to implicate the Accused Person. Judgment-The Republic vs. Stephen Ofori Page 9 of 14 19. It must be stated emphatically that the Accused Person was called upon to cross- examine the victim but the following transpired; BENCH: Any cross examination? ACCUSED PERSON: No, my Lady. BENCH: This is the only opportunity to clear your innocence, she will not come to the Court again. ACCUSED PERSON: No, my Lady, I have no question. BENCH: If you say you have no question, the implication is that what she has said is the truth. ACCUSED PERSON: No, my Lady. 20. It will be observed from the above that the Accused Person failed to cross-examine the victim to prove his innocence. It is trite that the failure of an Accused Person to cross examine a witness is an admission of evidence. The learned Justice Brobbey in his book titled Essentials of the Ghana Law of Evidence, 2014 at page 171 stated as follows ‘… if a witness testifies and the opponent consciously fails or refuses to cross- examine him, the Court may consider the evidence as admitted by the opponent …’ The law therefore is that, if an Accused Person does not challenge nor controvert the evidence proffered against him, it means that the testimony or the assertion is true or has been admitted by him. (See: Prah and Others vs. The Republic [1976] 2 GLR 278, and Robert Gyamfi (alias Appiah) vs. The Republic (2019) JELR 65737). Yet, the Accused Person whilst failing to cross-examine the Accused Person also at the same time denied the allegations levelled against him. This calls for a critical Judgment-The Republic vs. Stephen Ofori Page 10 of 14 and thorough examination of the evidence on record in order to prove the guilt of the Accused Person. 21. In the case of Republic vs. Yeboah (supra) it was held as follows: ‘…the evidence of the victim on oath in law needed no corroboration but it was a prudent rule of practice to look for corroboration from some extraneous evidence which confirmed her evidence in some material particular implicating the accused. Apart from the fact that the evidence of a victim in a sexual offence must be corroborated there was the added factor that the victim was a young person of only nine years and the evidence of a young person must as a rule of prudence be well corroborated before being acted upon by the court. There was ample circumstantial evidence corroborating the testimony of the victim that the accused ravished her. In all the circumstances of the case, even if there was no corroboration at all of the evidence of the victim, which implicated the accused in some material particular, the court was sufficiently warned of the danger of acting on the uncorroborated evidence of a victim in a sexual offence, who was a young person and was satisfied that the victim was a witness of truth.” 22. In evaluating the evidence on record, the Court is mindful of the difficulty and/or the trauma of victims, especially children when testifying in Court. Yet, the testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, I am of the opinion, respectfully and very humbly, that the Courts should find no difficulty in relying on the testimony of the victim alone to convict an Accused Person especially when the testimony appears to be credible and reliable. This is also because very often, the act of defilement will usually take place in privacy and often shrouded in secrecy. It will therefore be extremely difficult to adduce a corroborating evidence Judgment-The Republic vs. Stephen Ofori Page 11 of 14 of eye witness. In this instant case however, the medical evidence is of high probative value and also of corroborating nature. 23. The Accused Person herein merely denied having defiled the victim and the following are excerpts of cross-examination of the Accused Person by the Prosecutor. Q: Have you asked yourself why in the entire area it is you that was mentioned that you defiled the victim? A: I have no idea of what is being said about me. Q: Are you not aware why you are in the dock before this Court this morning? A: I am here because the mother of the victim said I have defiled her child. Q: Look at Exhibit ”H” closely if that was what you removed after washing the victim’s mouth and placed her on bench? A: I have no idea of the said Exhibit. Q: I am putting to you that that was the pant the victim was wearing the day you defiled her? A: I have not removed any child’s panty and I have not defiled any child. Q: I am putting to you finally that you intentionally called the victim to your shop washed her mouth after that you defiled her and gave her GH¢1.00 not to inform anyone? A: I am also a father and I am not the one who committed the said crime I will help look for the perpetrator. Judgment-The Republic vs. Stephen Ofori Page 12 of 14 Q: I am putting it to you that you indeed defiled the child who was just Seven (7) years old? A: I am still saying that I have not committed the said crime. 24. Despite his denials, Accused Person has been unable to produce a fragment of evidence that would extricate him from the commission of a crime. Similarly, the narrations of the Accused Person as captured in his Caution and Charge Statements placed him at the crime scene as at the time the victim was defiled. As such, the conclusion of the Court is that Accused Person’s testimony is an uncorroborated version of the whole occurrence. (See Richard Kwabena Asiamah Vrs Republic, Criminal Appeal NO. J3/06/2020 4th November, 2020). On the other hand, per the Medical Report and the direct evidence of the victim as well as the testimony of the other Prosecution Witnesses, it is obvious that the person who had sex with the victim is none other than the Accused Person. This was not a case of mistaken identity as the Accused Person wants the Court to believe because he creates the impression that it was someone else who defiled the victim. It must be stressed that the position of the law is that ‘… where the identity of the Accused Person in issue, there can be no better proof of this identity than the evidence of the person who will swear to have seen him committing the offence’… (See: Yamoah and Razak vs The Rep. [2012] 2 SCGLR 750). Conclusion 25. I find that Prosecution has established that it is the Accused Person who carnally knew the victim. It could not have been coincidental that the Accused person is named by the victim as the perpetrator of the act of defilement. I consider that Judgment-The Republic vs. Stephen Ofori Page 13 of 14 victim is a credible witness who understood the requirement to be truthful to the Court. I do not however consider the Accused person to be a truthful witness. As such, upon examination of the totality of evidence before this Court, I accept entirely the evidence of the Prosecution and find that the Prosecution has discharged the burden of proving its case beyond any reasonable doubt. I reject the Accused Person’s evidence as not reasonably probable and also as untrue. In the circumstances, I find the Accused guilty and hereby convict him accordingly. H/H HALIMAH EL-ALAWA ABDUL-BAASIT CIRCUIT COURT JUDGE Judgment-The Republic vs. Stephen Ofori Page 14 of 14