Republic Vrs Afun (F10/07/2023) [2024] GHAHC 327 (29 July 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHEHIGH COURT OF JUSTICE (COURT 1)HOHELDON THURSDAY29TH JULY2024BEFOREJUSTICEJOHN EKOW MENSAH. SUIT NO. F10/07/2023 THE REPUBLIC VERSUS PATRICKAFUN SUMMINGUP Ladies and Gentlemen of the Jury, accused person herein, Patrick Afun is charged with the offence of Rape. Honourable members of Jury, you have sat through the full trial of this case and have heard the evidence of the Four (4) prosecution witnesses marshalled by the Prosecution in the attempt to prove their case against the accused personherein. Youwill remember, honourable members ofthe Jurythat Accused Person testified himself in defence of the charge against him. He did not call any witness and apart from his witness statement, accused also relied on his investigationcautionstatement. My duty at this stage of the trial is to address you on the position of the law on the offence of rape and summarise as near as possible the evidence of the Prosecution and the Defence to help you reach a verdict as to whether the Prosecution had led credible and sufficient evidence to secure the conviction of the accused herein; or 1|Page whether the accused has led enough and credible evidence to cast reasonable doubt inthe case ofthe Prosecutiontoescape convictionofthe charge ofRapeagainst him. To begin with, I would like to refresh your minds on the facts of the case as presentedby the Prosecutionat thecommencement ofthe trial. The Facts of the case as presented by the Prosecution are that Epiphania Lumorvi, the victim of the alleged rape is a medical Counter Assistant undergoing internship at the Pharmacy Unit of the St. Anthony Hospital, Dzodze, while the Accused PatrickAfun is the head Pharmacist at the St. Anthony Hospital, Dzodze. According to Prosecution, during the four (4) month period of her attachment, Epiphania lived with the Accused who happens to be the boyfriend to the victim’s youngersister. Prosecutioncontinued that on22/3/2019at about 2000hrs, Epiphania Lumorvi asked the accused to administer ceftriaxone injection to her for the treatment of vaginal infection. Prosecution said Accused himself said he mixed the ceftriaxone injectionwith Lidocaine before administering it toEpiphania Lumorvi. Prosecution further stated that the victim later woke up around 2 am and noticed that she was completely naked in Accused Person’s bed and suspected of having beenraped. According to Prosecution, Epiphania Lumorvi enquired from the accused whether theyhadhad sex and theaccused confirmed thathe hadsexual intercourse withher. According to Prosecution, Epiphania was helped by Richard Gavor, a Security man ofthe Hospital andBright Agbodza also a staffof the hospitalto the Emergency Unit of the hospital for treatment as she was very weak and found around the hospital gate. 2|Page Prosecution said victim was treated, detained and later discharged the same day at about1400hrs. According to Prosecution, victim later reported a case of rape against the accused personto thePolice at Dzodze. Prosecution concluded that in Patrick Afun’s caution statement to the Police, he admitted having sex with the victim after administering the said injection of ceftriaxone laced with Lidocaine. Law on the Offence of Rape section 97 of Act 29/60, the Criminal Code states as follows: “A person who commits the criminal offence of rape commits a first degree felony and is liable on conviction to a term of imprisonment of not less than fiveyears and not more than twenty-five years”. Section99ofthe same Act 29/60 states: “Where on the trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge is complete on proof of the leastdegree of penetration.” Ladies and Gentlemen of the Jury, this is the position of the law on rape. The Prosecution in order to secure conviction on rape as in this case will thus have to provethe following: 1. That therehas beenthe act ofsexualintercourseorcarnal knowledge. 2. That theact involved afemale of16yearsand above. 3. That it was withoutthe consent ofthe said female. 3|Page Gentlemen and Ladies of the Jury, it is not a far-fetched fact that the accused in his investigation caution statement and evidence that accused Patrick Afun dispensed the Ceftriaxone injection mixed with Lidocaine drugs on the victim Epiphania Lumorvi on 22/3/2019 after Epiphania had complained of infection of vaginal discharge. 2. That Accused confirmed to the victim Epiphania that he indeed had sex with her afterhe hadadministered Ceftriaxoneinjection mixed withLidocaine to her. Ladiesand Gentlemen, partsofthewitness statement oftheaccused readas follows: 6. On the said 22nd day of March 2019, I had consensual sex with Epiphania Lumorvi,the purported Complainant. 8. I indeed administered the Ceftriaxone and Lidocaine to the Complainant and Ididnot noticeany adverse effecton herbefore we hadsex. From his witness statement as quoted above, accused is admitting without any doubt that he had sex with the victim; that he administered the Ceftriaxone and Lidocaine drugsonthe victimin anattempttotreatvictim’svaginal discharge. Accused however, insists that the sexual intercourse he had with the victim was consensualthat is tosay that he had sex withthe victim withthe victim’sconsent. Burden ofProofin Criminal Matters Section11(2) oftheEvidence Act 1975NRCD323states: 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 couldfind the existence of the factbeyond a reasonable doubt. 4|Page (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 mindcould have areasonable doubt as to guilt. In an attempt to secure the guilt of the accused person herein, Prosecution called four (4) witnesses including two (2) Doctors, the victim Epiphania Lumorvi and the Investigator. Ladies and Gentlemen, it is significant to note that the burden of Prosecution in this case was to lead evidence to debunk the accused perosn’s claim that he had sex with thevictim with thevictim’s consent. Indeed, Prosecution witness Dr. EbenezerWiafe testified that:- 1. Ceftriaxone injection has successfully been used to manage bacterial infections suchas urinary tractinfections and gonorrhea. 2. Lidocaine injection is an anesthesia agent. The most common on the Ghanaian market and in our hospitals is the 2% of 20ml which contains a total of 400mg Lidocaine. When injected, it makes the injection site numb and freefrompain. 3. Lidocaine injection, depending on the dose given is associated with dizziness, drowsiness, loss ofconsciousness and many more. Dr. Samuel J. G. Foster, another witness of the Prosecution testified that he examined thevictim and endorsedaPolice Medical Formon23/03/2019 at 3:08am. 5|Page The Doctor further stated that on examination of the perineum, there was some bright red blood seen at the introitus of the vagina. There was blood at the vaginal opening. In her evidence, the victim recounted the experience of having been raped by the accused while she lived with him during her internship with the St. Anthony HospitalatDzodze. Victim said onthe said 22nd day ofMarch, 2019,Accused stepped out shortly after he had eaten the rice and stew she had prepared for him and asked victim to take the second dose of the Ceftriaxone injection before victim leaves for Aflao the next day. She said accused returned to give her the injection he had prepared out of her sight, unlike the first one. Victim said she felt so weak and dizzy and slept off in the couch in the living room where she has been sleeping. Victim said upon gaining consciousness at around2am, she found herselfnaked onaccused’s bed in accused’s bedroom and not on the couch she slept in in the living room. Victim said she asked accused whether “we had sex” and accused answered in the affirmative as if to suggest thatthey had agreed earlier ontohavesex. Ladies and Gentlemen, I have produced Prosecution evidence to enable analyse these facts against theaccused’s claim thathe hadconsensual sex withthe victim. It is important to note ladies and gentlemen whether there is a link between victim’s weakness and dizziness and Ceftriaxone and the Lidocaine administered on the victim. You may engage yourself into probing the charge of victim’s place she slept to the accused’sbed onthat night withouther being aware. Again, you may want to probe the fact that victim had to ask accused whether they had sex if really theyhadagreed tohave consensualsex earlier oninthe night. 6|Page Defence Counsel in his address is urging you to hold that the sex he had with victim wasconsensual. It must be stated unequivocally that accused owes the duty to prove that claim in order to be able to cast doubt in the Prosecution’s claim that accused raped the victim. From the standpoint of this bench, has the defence led any evidence to justify that claim. From the totality of evidence before this Court, Do you have any scintilla of evidence by the accused to suggest that victim voluntarily and freely consented to havesex withthe accused? Ladies and Gentlemen, I have gone to great lengths to assess the evidence of the Prosecution to support its claim that accused had sex with victim. That the sex was withoutvictim’s consent andtherefore amountstorape. Defence evidence against the Prosecution’s case is that the said sex with the victim by the accused was consensual. Inyour ownestimation, has the Defence led any evidence tothat effect. I leave you to draw your own conclusion especially as to the verdict on factual evidence inthis case. Juryreturns forverdict at 9:40am. 7|Page Foreman informs Court that the jury are not unanimous on their verdict with five (5) ofthem returning averdict ofNotGuilty and two (2) returning averdict ofGuilty. BYCOURT: Accused is found Not Guilty to the charge of Rape against him and accordingly, he is acquitted and discharged of the offence of rape against him. (Sgd.)John EkowMensah, J. Justice ofthe HighCourt(Court 1) Ho Lawyers: Prosecutor - Ms. Freda Sitsofe Ameke with Dina Dzifa Amefinu, Anthony Ghattie, Joseph Opusumah (ASAs) being led by Andrews Dodzi Adugu, Celestina Arku(ASA). Counselforthe Accused Person- Mr.Godwin T.K.T. Kpoble Esq. 8|Page vmo* 9|Page