REPUBLIC VRS. YEBOAH (CR/0335/2023) [2024] GHAHC 272 (30 July 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 30TH DAY OF JULY 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0335/2023 THE REPUBLIC VRS G/CPL ISMAEL YEBOAH JUDGMENT The Prosecution on the 4th of July 2023 filed a charge sheet with facts of the case attached wherein it charged the accused person herein 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). On the 26th of July 2023, the accused person pleaded not guilty after the charge was read and explained to him in the English Language. FACTS OF THE CASE The case of the prosecution is that the complainant is a trader and the mother of the victim, Janet Nana Armah who is a four (4) year old kindergarten girl. The accused person who is the biological father of the victim, is a police officer stationed at La District. The complainant and the accused person were once husband and wife. 1 The prosecution states that on the 25th day of February, 2022 the accused person went to the house of the complainant to pick the victim and her other two older siblings to spend their midterm holidays with him at his girlfriend's house at Labadi. The prosecution’s story is that on 1st March, 2022 around 5:00a.m, the accused person woke up the victim and her two older siblings to prepare them for school. The two older siblings bathed by themselves whiles the accused person bathed the victim. The prosecution added that whiles bathing the victim, the accused person inserted his finger in the victim's vagina and anus and used his penis to "brush" her vagina as well. The next day after their return to the complainant's house, when the complainant was bathing the victim she complained of pains in her vagina. The victim told the complainant that when she went to spend the midterm holiday with her father (the accused person herein), he inserted his finger in her vagina and anus and also used his penis to "brush" her vagina whiles bathing her. The story of the prosecution continues that the complainant upon receiving this information first reported the matter to the Odorkor Police Station on 14th March, 2022 where she was issued with a medical form to send the victim to the hospital and later was redirected to the Cantonments Police station where she lodged a complaint. The accused person was thus arrested. The prosecution added that in his statement to the Police, he denied inserting his finger in the victim's vagina and anus and also using his penis to "brush" her vagina and rather alleged that the complainant was bitter about his separation from him hence using the victim to get back at him. Based on these facts, the accused person was arraigned before this Court to stand trial. BURDEN OF PROOF It is trite that the Prosecution which brings an accused person before the court to set the wheels of the criminal trial running always has the burden to prove the guilt of the 2 accused person unless a statute otherwise states. That is because it is the Prosecution which has asserted a wrongdoing on the part of the accused person and therefore bears the burden to prove same beyond a reasonable doubt. This therefore requires the prosecution to lead sufficient and credible evidence to prove beyond a reasonable doubt the guilt of the accused person. His Lordship Dotse JSC stated thus on the burden of the prosecution in criminal trials in the case of Richard Banousin vrs The Republic 2015 1 GNSCLR 439 that: “It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases. A corollary to the above rule is based on the fact that an accused is presumed innocent until he is proven guilty in a court of law. ...What “beyond a reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring the innocence of the accused” In the case of Domena vs. Commissioner of Police [1964] GLR 563, the Supreme Court stated at page 565 that: - “Our law is that by bringing a person before the court on a criminal charge, the prosecution take upon themselves the onus of proving all the elements which constitute the offence to establish the guilt of the Defendant beyond reasonable doubt and that onus never shifts. There is no onus upon an accused person except in special cases where the statute creating the offence provides...” This is statutorily provided for in Section 11(2) of the Evidence Act 1975 (NRCD 323) that: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt” 3 The standard of proof therefore required for a conviction in a criminal case is proof beyond a reasonable doubt. The components of this burden is the burden of persuasion and the burden of producing evidence. In the case of Isa vrs The Republic (2003-2005) 1 GLR 792 HOLDING (2) the court held that: “Taken together, the burden of persuasion and the burden of producing evidence as defined in sections 10 and 11 of the Evidence Decree, 1975 (NRCD 323), respectively were the components of the burden of proof.” Section 10(1) and (2) of the Evidence Act 1975 NRCD 323 provides that: “ (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.” There is however no burden on the accused person to prove his innocence. In the Isa case cited supra, the court held further that “Thus, although an accused person was not required to prove his innocence, during the course of the trial, he might run a risk of non- production of evidence or non-persuasion to the required degree of belief or both, particularly when he was called upon to mount a defence.” Even though the law places no burden on the accused person to prove his innocence there are however instances where the law imposes a burden on the accused person to prove a claim or defence and in those instances the burden is not to prove the ultimate issue of guilt but a particular fact in issue. Thus the burden of persuasion on that particular fact in issue is placed on the accused person. 4 However as stated above, the initial burden is on the prosecution and they would have to establish the essential ingredients of the offence charged to create a presumption of guilt in the mind of the court at the close of its case which said presumption is rebuttal. This amounts to the establishment of a prima facie case thus placing on the accused person the evidential burden to raise enough evidence in support of his defence to justify the defence being considered by the court, before the prosecution assumes the legal burden of disproving the defence of the accused. With this background, I proceed to examine the evidence led by the prosecution to determine if they succeeded in proving the guilt or otherwise of the accused person. THE LAW ON DEFILMENT AND ITS APPLICATION TO THE EVIDENCE LED The particulars of offence notes: “ISMAEL YEBOAH, a police officer on or about 1st March, 2022 at Tse Addo in the Greater Accra Region and within the jurisdiction of this court did have carnal knowledge of Janet Nana Armah, a child under the age of 16 years. Section 101 (1) and (2) 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. 5 AGE OF THE VICTIM From the evidence on record, there was no dispute as to the age of the victim. The victim herself testified as PW3 and gave her age as at the time she was testifying as five (5) years old. The investigator Chief Inspector Linda Kpodo in her witness statement stated that she received a police extract Exhibit A which detailed the complaint and the age of the victim as four (4) years old. On exhibit D the police medical form, her age was given as four (4) years. The accused person who is the biological father of the victim has not denied or contested that the age of the victim was four years old as at the 1st of March 2022 when the prosecution claims the incident occurred and that is because from the evidence, she is the youngest child with the oldest PW2 being thirteen (13) years as at the 17th of July 2023 when she signed her witness statement. I therefore find it satisfactorily proved that the victim was under the age of sixteen years of age. THAT SOMEONE HAD 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 goes into the vagina. So long as there was some penetration beyond what is known as brushwork, penetration would be 6 deemed to have occurred and carnal knowledge taken to have been completed. See Gligah & Anr. v The Republic [2010] SCGLR 870 Therefore to prove that someone had had carnal or unnatural carnal knowledge with the victim, it is not necessary that the whole length of the penis should enter the vagina or the anus. It is sufficient to prove that there was penetration, however slight it was. Also it is not necessary that there should be actual emission of semen. Sexual intercourse is deemed to be complete in law upon proof of penetration of the penis only into the female organ designed for the purpose of naturally receiving the male organ that is the penis. PW1 the mother of the victim testified per her witness statement filed on the 10th of October 2023 at paragraph 4, 5 and 6 that: “4: The children returned from the accused person’s place on the 1st of March 2022. On 2nd March 2022 when I was bathing the victim in the morning for school, I realized that she pushes my hand away when I try to wash her vagina. 5. I asked her what the problem was and she narrated to me that during the mid-term holiday at the accused person’s girlfriend’s house the accused person inserted his fingers into her vagina and her anus. She said he also used soap to rub around his penis and inserted it into her vagina and anus and also when he was bathing her for school. She added that the accused person licked her ears as well. 6. I was shocked with what the victim told me and told her to go to school. I did not send her to the hospital immediately because I decided to confront the accused person with what the victim narrated to me first” PW2 Benedicta Naa Lamiley Armah who is thirteen (13) years and the elder sister of the victim testified per her witness statement that while they were at the accused person’s 7 girlfriend’s house on the day of the incident, the accused person decided to bath the victim and her other younger sister. She said that she finished bathing and dressed up at the porch turned hall. She did not testify to witnessing any sexual incidence between the victim and the accused person. The victim herself testified as PW2. She stated per paragraphs 3 to 11 of her witness statement that: 3. Somewhere in February 2022, I was in the house with my two elder sisters when my father came to the house to pick us up to his girlfriend’s place at La to spend our mid- term holidays with him. 4. Whiles there and throughout the holiday my elder sister, Benedicta baths me but on 1st March, 2022 my father was the one who bathed me. 5. While my father was bathing me and when he was about rinsing me, he used his middle finger to insert into my vagina and anus. It was painful so I was about to cry when he told me not to cry. 6. My father then used soap to rub his penis and inserted it into my vagina and anus. I was about to cry again and he said I should not cry. 7. My father sent us to school afterwards. At school I could not sit down well because my “under part” was paining me. I told my class teacher about it and she said “it will go”. 8. The next day when my mother, Gloria Fosu was bathing me and was about to wash my vagina I could feel the pain again. 9. The next day when my mother, Gloria Fosu was bathing me and was about to wash my vagina I could feel the pain again. 8 10. My mother then asked me what the problem was and I narrated what happened to me when we went to spend the mid-term holiday with my father at his girlfriend’s house. 11. My mother took me to the hospital the next day for a medical doctor to examine me. PW5 the medical Doctor testified per her witness statement and stated that: 3. I had a conversation with the victim and she narrated to me that her father inserted his fingers into her vagina one time when he was bathing her. She added that after the fingers, the father inserted his penis too into her vagina. 4. I examined the victim and discovered the following: her hymen had torn at 5 and 9 o’clock position, the vagina was hyperemia, making the vagina area appear red. 5. The examination however, did not show any bruises at anal region except that her anal sphincter tone had reduced. 6. My impression after the medical examination was that there was forceful entry into the victim, Janet Nana Armah’s vagina. This forceful entry could have been by an adult male organ. The report she authored was admitted into evidence as exhibit D. In Exhibit D it was noted that “4 years old Janet Nana Armah presented with a complaint of being allegedly defiled by her father. According to the child, her father inserted his fingers and his penis into her vagina. This happened when he was bathing for her. On direct questioning there was no use of lubricant or condom. On examination, female child, not pale, not jaundiced, hydration satisfactory, afebrile. Cardiovascular & respiratory system: Stable. 9 Abdomen: full, soft, moves with respiration. Perineum: hymenal tears at 5 and 9 o’clock position :hyperaemia of vagina : no discharge seen :anal sphincter tone reduced :no bruises at anal region Impression: Evidence of forceful entry” The findings which she testified to were contained in the report Exhibit D. Under cross examination, she added that she examined the anal region of the victim not because the victim complained that there was penetration in the anal region but because the victim had faecal incontinent. She stated further under cross examination that “She had urinary and faecal incontinent and that means she could not hold the urine so she was urinating on herself which prior to that, it had not been happening. There are several things that can cause this including the place having been entered into forcefully, it can make the place lax. So aside that, there are other things that can cause it like a child who is traumatized, a child who is coughing excessively so yes it is possible that the incident could have caused it.” It is important at this stage to remind myself the law regarding the evidence of the medical Doctor PW4. The Doctor PW4 is an expert and her evidence per the law is opinion evidence. Therefore the evidence which is her opinion does not decide the issue it is offered to prove that is in this case the fact that someone had had carnal or unnatural carnal knowledge of the victim. The Doctor’s evidence is rather to assist the court in making the determination as to that fact in issue considering that opinion alongside other evidence on record. 10 The court held in the case of FENUKU V JOHN TEYE 2001-2002 SCGLR 985 that: “The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions.” A court may therefore in appropriate circumstances and for good reasons stated decide not to rely on the evidence of an expert in deciding the case. It was thus held in SASU V WHITE CROSS INSURANCE CO LTD [1960] GLR 4 that “expert evidence is to be received with reserve, and does not absolve a judge from forming his own opinion on the evidence as a whole”. It is also settled position of the law that, though a Court is not bound to accept the evidence of an expert, a trial judge must give good reasons if it decides to reject the expert evidence. Such reasons for rejecting the evidence must be from the record and must clearly support such rejection. See HAYFORD VRS TETTEH (SUBSTITUTED BY) LARBI & DECKER (2012) 1 SCGLR 417. For the court to reject the evidence of the witness PW4 whose evidence acquires greater weight and status because she happens to be from a public body and is a public officer due to the presumption of due performance of official duties also termed as the presumption of regularity, an accused person assumes an uphill task to introduce evidence to refute that presumption. See Section 37 (1) of the Evidence Act 1975 Act 323 and Section 20 of Act 323. From the record, the accused person does not dispute that someone has had sexual intercourse with the victim as he testified in his evidence in chief at paragraph 11 of his witness statement that: 11 11: Somewhere in June 2022 I went to the children school to pay their fees I spoke to the victim who told me that a male who lives in the same house with her defiled her and that she can identify him to the police. The following morning, I went to the police station and informed the CID about what I learnt but to my surprise she became furious at me for going to the school and talking to the children. She threatened to make further case against me and she refused to take any action on the information I gave her.” In his charge statement Exhibit C, he told the police that “After about a month I went to the kids school to pay their fees and other items they needed in school. I saw my daughter and asked her what had happened to her and she told me a boy she can identify in their house called her and molested her when they went home from school” Under cross examination of the PW1 that is the mother of the victim and the ex wife of the accused person on the 22nd of November, 2023 this is what transpired: Q: Are you aware that the victim has stated that the perpetrator of this crime lives in the same house with you and she could identify him? A: No my lady. I am not aware. Where I live with my children, nobody can enter my premises without my consent. Everything is done indoors and we will only come out to pour waste water. Q: I put it to you that you are indeed aware that the victim had mentioned that the perpetrator of the crime lives with you in the house and she could identify him. A: If Counsel is saying that the victim has mentioned that the perpetrator lives with us and can identify him, then that person is the accused who is her father because he is the only male who lives with us in our quarters.” With this assertion, the accused person did not introduce any evidence to displace this presumption of regularity. The evidence of the medical doctor PW5 accords with the other evidence on record. The hymenal tears at 5 and 9’oclock position and the 12 hyperemia of the vagina which PW5 said is consistent with evidence of forceful entry accords with the evidence of the PW1 the victim as to the pain she felt in her vagina when her mother was bathing her as well as the fact that she could not sit down well in school because her “underpart” was paining her. Let me hasten to put on record that even though tears, reddening and laceration of the vagina may be evidence of the application of force, the absence of same on a medical report or evidence per se does not negate the presence of penetration if there is evidence of same on record. Thus even if the medical report had not noted any of such evidence, this court could still find that there has been penetration if there was evidence of same led. It is the mind of this court that per the evidence submitted by the prosecution the fact that the victim had been sexually known was 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.” 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. 13 The victim per her witness statement testified that 5. While my father was bathing me and when he was about rinsing me, he used his middle finger to insert into my vagina and anus. It was painful so I was about to cry when he told me not to cry. 6. My father then used soap to rub his penis and inserted it into my vagina and anus. I was about to cry again and he said I should not cry. PW1 also testified that the victim informed her that it was the accused person who inserted his penis into her vagina and the anus on the 1st of March 2022. DEFENCE OF ACCUSED PERSON The accused person at the trial denied having any sexual intercourse with the victim. He has contended that the PW1 his ex wife whom he divorced is aggrieved and embittered and has sworn to ruin his life. He testified per his witness statement paragraph 1 to 14 that: “1. My name is Cpl Ishmael Yeboah, a police officer stationed at La District police station. The complainant is my ex-wife and the victim is our biological daughter. 2. My marriage with the complainant was going well until she lost two of her biological brothers and I went for two separate bank loans to finance the funeral. Because I was not able to meet my financial obligations like I used to because of the loan deductions, she then changed and refused to even cook so for over a year I was cooking for her and the children until we separated. 3. She then went on to take a boyfriend and was cheating and disrespecting me so on these grounds I made my intentions known to her that am going to divorce and went further to move out from the house. The other boyfriend disappointed her. She then turns backed to me. By 14 that time, I had already moved on. It was at that time that she threatened to ruin and destroy my life if I don't come back to her. 4. She then in a bid to ruin my life started by accusing me of sleeping with our first- born Benedicta Armah but the child did not support her plot after about months she changed the accusation from the first born to the second born Judith Armah she too did not support the mother's agenda. All these events was in the year 2020. 5. I later met a lady called Rose Amankwah whom I started dating so during weekends and holidays if I have the time I go for my kids and we spend time at my girlfriend's place. 6. In February 2022 a month before the allege incident the complainant called me to threatened me that she is aware that am going to marry Rose Amankwah and that if she doesn't have me no one else will have me. 7. On 25th February 2022 i went for the children and we went to spend the weekend at my girlfriend's place. My girlfriend usually takes care of them and has been bathing for the victim. My girlfriends place is a single room self-contained in which when the door to the bathroom is open anyone in the bedroom can see the bathroom. 8. On 1st March 2022 i closed from work at about 5am I got to the house of my girlfriend at about 5.15am. My girlfriend and I woke up my first born and spoke to her because she had urinated on herself. After she took her bath first then the second born took her bath so the victim was in the bathroom so I went in collected the sponge and bathed for her. I was in my police trousers and stood by the door of the bathroom so that my foot won't be wet. All these times the bathroom door was opened my girlfriend and the other siblings we in the room and everyone could see us. The children finished preparing for school and at about 6.00am we left my girlfriends place and i dropped them off at school. After school they went back to their mother. 9. On 7th March 2022 a week after I went to pick the children and brought them to my place in Dansoman it was there the victim told me she was feeling pains in her vagina so I 15 assumed she had urinated in her pants and had worn it for long so I asked the elder sister to bath her and apply joy ointment. 10. On or about 10th June 2022, the investigator called me and invited me to the station, there I was detained and the investigator warned me not to call anyone or inform anyone about the case. My statement was taken. The following day I was taken to the crime scene where a video recording was taken and the victim said that I had not done anything to her when I was bathing her. 11. Somewhere in June 2022 i went to the children school to pay their fees I spoke to the victim who told me that a male who lives in the same house with her defiled her and that she can identify him to police. The following morning, I went to the police station and informed the CID about what I learnt but to my surprise she became furious at me for going to the school and talking to the children. She threatened to make further case against me and she refused to take any action on the information I gave her. 12. I maintain my innocence in this matter 13. I would not under any circumstance harm my own daughter. 14. The accusation is false and malicious orchestrated by my estranged wife against me for separating from her.” His sole witness DW1 his girlfriend testified that : 1. My name is Rose Amankwah, I am a businesswoman. I live at Teshie in Accra. The accused person is my boyfriend, I met him in the latter part of 2020, he told me he had separated from the wife and he would like to marry me so l accepted his proposal 2. The accused person sometimes visits me with his kids to spend days when the children are on vacation or weekends. 16 3. The ex-wife of the accused sometimes calls me on phone to insult me calling me names like husband snatcher, prostitute among other abusive words 4. Somewhere in February 2022 she called me like she usually does and rained insults on me but this time she added that she has information that preparations are far advanced for the accused to marry me and that will be over her dead body that I would marry him 5. On 25th February the accused came to me with his kids to spend the midterm holidays, during the stay I have been bathing and taking care of the victim. On 1st March 2022 the accused came home from work around 5am we woke the first born at about 5.15am and spoke to her because she urinated in bed then at about 5.30am we woke the rest of the children up and prepared them for school the first child bathed first. The second child bathed second. At that time the accused had finished ironing their dresses so he went to the bathroom and bathed the victim as I was looking for their socks and cleaning their shoes. At no point was the door to the bathroom closed and myself and the other children could see what was going on in the bathroom. I was not asleep at the time but helped to get the children ready for school 6. About two weeks after their visit, I was home when the investigator accompanied by one policewoman, the complainant, the victim and the accused came to my house to visit the crime scene but to my surprise the CID came straight into my wardrobe and was just opening my private belongings until the other officer shouted at her to concentrate on why they were there. There she took out her phone and started a video recording. The victim when asked the victim said 'daddy bath for me but he did not do anything to me' thereafter they left.” The law mandates the court in determining the guilt or otherwise of an accused person to consider the defense an accused person proffers. In so doing, a three tier test is provided to guide a judge in considering the defense of the accused person. 17 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 reasonable doubt before it should convict, if not, it should acquit. See also AKILU v THE REPUBLIC [2017-18] 1 SCGLR 444. From the assertion of the accused person, can it be true that the accused person did not have any sexual relations with the victim but the PW1 is making that story up as an embittered jealous ex wife? Is it the case that the victim did not inform her that it was her father the accused who had natural and unnatural carnal knowledge of her but she has embellished the story for her own personal agenda and vendetta? Is it true that the victim has mentioned that a man living in the house of the victim could be responsible for this sexual act which the court has found was perpetrated on the victim? To the mind of this court, a complete analysis of the prosecution’s case as well as the case of the defence would assist the court in determining whether the story of the accused person is acceptable. 18 It would be best to commence from the 1st of March 2022 at 5:15am when the prosecution indicates the incident occurred and the scene where the prosecution claims the incident occurred. According to the PW2 the elder sister of the victim, the DW1’s room is a “…one room self-contained with a porch that is used as a hall. The bathroom is inside the single room with a door fixed so that when you are in the bedroom you don’t get to see what goes on in the bathroom.” PW4 the police investigator described the scene as a single room with a bathroom and kitchen. There is a small corridor between the bathroom and the bedroom. The bathroom door is opposite the bedroom door. According to the PW4, between the bedroom door and the bathroom door, there is a small corridor where you can move one foot and enter the bedroom. According to the victim who was in the bathroom with the accused person at that material time of the alleged incident, Q: When your father was bathing you, the door to the bathroom was opened, is that correct? A: Yes Q: This door remained opened until your father finished bathing you and brought you out to dry you up is that correct? A: Yes The question that lingers on the mind of this court is that judging from the number of people in the bedroom at that material time, that is the girlfriend of the accused DW1, the PW2 and the middle child, and also considering the fact that the door to the bathroom was opened so that everyone in the room could see the bathroom, if indeed the accused person who from the charge statement exhibit C was 39 years; removed his penis, rubbed soap on it and inserted same into the vagina and proceeded to insert same into the anus of the victim, those in the room would obviously have seen that act. 19 Also the act of inserting the penis in the anus would have caused some tears or bruises. There were none in this case in the anal region. Also considering the pain that would have been felt by this four year old victim being allegedly penetrated in the vagina and anus by this 39 year old man, PW2 would clearly have seen some signs of the victim in pain immediately after the act or even on the way to school, the victim would have at least shown signs of some discomfort which PW2 would have testified to. Let me also add that the evidence of the prosecution as to how the sexual act occurred lacks clarity. For instance how did the accused person insert his penis into the vagina of the victim? Was it while she was standing or did he place her on the bathroom floor to get access into the vagina and anus or did he lift her up to his hip level to allegedly penetrate her vagina and anus? What was the degree of penetration into the vagina and anus? As stated by Dotse JSC in the Richard Banousin case supra, “the prosecution should have been really brutally frank with the evidence on this aspect of the charge since this is the crux of the matter. For example, how the appellant managed to penetrate into the female organ of the complainant ought to have been led to establish credibility for the prosecution’s case. The size of the male organ, the degree of penetration if any, all ought to have been stated in evidence. It is the female sex organs called the vulva and vagina that are normally penetrated into during any sexual act which can qualify to be carnal knowledge under sections 98 and 99 of Act 29. The complainant has not led any evidence as to whether there was any degree of penetration into the vulva and the vagina.” Secondly the attitude of the PW1 when she claimed she was informed that the victim had been sexually assaulted cannot escape comment by this court. On the 2nd of March 2022, when PW1 states that she was informed that the accused person the father of the victim had had vaginal and anal sex with the victim, she did not inspect the vagina to 20 see if indeed any such thing had occurred. Instead, after claiming that she was shocked, she still asked the child to go to school. She did not take the child to the hospital or inspect the vagina and anus. And when she eventually did, the only place she inspected was the vagina and not the anus even though, her story is that the victim informed her that the accused person inserted his penis into her anus and vagina. Also the police extract exhibit A which detailed the complaint that the PW1 lodged at the police station on the 3rd of March 2022 two days after the alleged incident, a time when the incident should have been so fresh in her mind and that of the victim, she told the police that the victim informed her that the accused person “inserted her (sic) finger into her vagina and anus on 01-03-2022 at Labadi Cha-Addo” As a result of that complaint, the police medical form exhibit D which was generated from the Odorkor Police station where the initial complaint was lodged, noted on the front page that “who complains that he/she was: indecent assault.” It was also noted that the incident occurred on the 2nd of March 2022 contrary to the story told the court. In fact the story of the alleged occurrence in the bathroom varied at every step of the way. PW1 claimed when she was bathing her daughter on the 2nd of March 2022 the daughter complained of pain in her vagina and that the victim told her that the accused person inserted his fingers into her vagina and anus and then inserted his penis into her vagina and anus. At the Odorkor Police station, she told the police that the victim complained of pain in the vagina and anus when she was bathing her and the allegation was that the accused inserted his fingers into her vagina and anus. There was no talk of any penetration of the penis in the vaginal or anal region. At the hospital, the doctor PW5 stated that she was informed that the penetration was only into the vagina. The anal region therefore did not have any bruises even though the story of the prosecution is that the accused inserted his penis into the vagina and the 21 anus. In fact on exhibit D, section B which is the Victims Medical History and sexual assault/accident information on question 11 which was “was there any penetration of the anus,” the answer ticked was No. In fact the variation in the allegation was extended to the facts of the case where the prosecution informed the court that the accused “used his penis to "brush" her vagina as well.” Let me quickly add that the facts of the case which the prosecution gives on the onset of the case are unproven, they are however a summary of the case of the prosecution gathered during the investigations and therefore informs the charge preferred against an accused person. It is trite that in prove of carnal or unnatural carnal knowledge 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. Therefore, if the investigations conducted as narrated to the court in the evidence of the prosecution witnesses proved actual penetration of the vagina and anus by the penis of the accused person, then what accounts for the narration in the facts that the accused person used his penis to brush the vagina and anus of the victim? It is trite that where there are discrepancies (or inconsistencies or contradictions in the testimonies of the prosecution witnesses, it is the duty of the Judge to direct himself or the jury or assessors to the discrepancies and to tell them that such discrepancies are not fatal to the prosecution’s case unless they go to the very root of the matter in issue. A discrepancy in the case of the prosecution is fatal only when it cannot be reconciled with the rest of the evidence or when it is material or goes to the very root of the matter in issue. See P.K Twumasi’s Criminal Law in Ghana at page 128 to 129. The inconsistencies in the story of the prosecution especially the PW1 who claims that this is what the victim informed her are matters that the court cannot gloss over and 22 that is because it goes to the very root of the matter as to the person who caused the sexual assault. Even though the victim herself testified in her witness statement that it was the accused person who had carnal and unnatural carnal knowledge of her, I am inclined to believe the story of the accused person that due to the very young age of the victim, it was easy to be influenced by her mother PW1 to name the accused person as the perpetrator of this act. This court had the opportunity to observe PW1 during the trial and noticed her efforts to show that it is only the accused person who was in the position to perpetrate this act. Her story that she does not allow the children to play outside with other children after school and that the only time she allows the children outside was when she was with them were some of her efforts but these assertions were proved to be untrue when the victim testified contrary to same. Considering the defence of the accused person and the story of the prosecution, I am inclined to believe that the said sexual act which the PW5 noted upon her examination did not occur on the 1st or 2nd of March 2022 as the prosecution claims. I am more convinced that same was the act of a perpetrator that the police failed to investigate sadly allowing the emotions of a mother to stand in the way. In fact this accords with the story of the PW5 that it is likely that the sexual act that the victim suffered could have been more than once, an act which also according to the Doctor could have led to the victim suffering from urinary and faecal incontinence. 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 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 23 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 where the fact remains in dispute, then challenged evidence must be corroborated so as to establish the fact in issue. As was stated 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. The only evidence corroborated was the fact that the victim has been defiled. A crucial ingredient that it was the accused person who committed the offence was not proved. It is the considered view of this court after considering the entire evidence on record that the prosecution failed to prove that it was the accused person who committed the said act. In the 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. 24 Also 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. Our law places much premium on doing substantial justice which involves a consideration of the totality of the evidence adduced at the trial before arriving at the conviction or acquittal of the accused person as Justice Jones Dotse 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" While pedophiles have a crazy animalistic tendency beyond human and Godly comprehension such that fathers have been found to defile their own daughters and even sons, this is not what I find in this case. On the totality of the evidence before this court, I hold that the accused person is not guilty of the offence of defilement preferred against him as the prosecution has not been able to prove his guilt. Consequently he is acquitted and discharged. 25 MARY M.E YANZUH J. HIGH COURT JUDGE PARTIES: ACCUSED PRESENT COUNSEL: NANA AKOSUA KUSI FOR THE REPUBLIC PRESENT JOSEPH OPOKU BOATENG FOR THE ACCUSED PERSON PRESENT 26