KARIM VRS. REPUBLIC (CR/0286/2023) [2024] GHAHC 283 (18 July 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 18TH DAY OF JULY 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0286/2023 SADIQ SALIFU KARIM APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant herein 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 and was arraigned before the Accra Circuit Court on the 2nd July 2020 wherein he pleaded not guilty to the charge after same was read and explained to him in the Twi language. After a full trial, the accused was on the 30th of October 2020 found guilty, convicted and sentenced to ten (10) years IHL. It is against this judgment that the appellant filed the instant appeal on the 22nd May 2023 pursuant to leave granted by the High Court on the 10th of May 2023. 1 GROUNDS OF APPEAL The grounds of appeal filed are that: 1. The conviction was an error in law 2. The sentence was too harsh. FACTS OF THE CASE According to the prosecution, the complainant Adwoa Tweneboah age 47 years is a trader and Iives at Kasoa in the Central region and is the mother of the victim Princess Naa Kwarley Quartey age 11 years. The prosecution states that the accused person Sadiq Salifu Karim age 30 years is a computer repairer and lives at Agbogbloshie. The case of the prosecution is that the complainant normally comes to Agbogbloshie with the victim to trade and the victim usually spends time at the spot of one Abena which is closer to the complainant’s work place. Their case continued that in the month of May 2020, victim went to the spot and whiles there, the accused person who has been running errands for the spot owner came around and introduced himself to the victim, he proposed love to the victim and directed her to come to his house. The victim followed the direction and went to accused person's house. On reaching there, accused person made victim to sit on a student mattress lying on the floor, he then locked the door and removed his shorts and shirt. He raised victim's dress upwards, removed her panties and forcefully inserted his penis into victim's vagina and had sexual intercourse with her for the first time. Accused person warned victim not to disclose the ordeal to anybody, so victim kept the ordeal to herself. On 15th June 2020, the prosecution stated that the victim went to sit at the spot as usual and the accused person came around to chat with her. In the process, accused person gave his phone and an amount of GH¢3.00 to victim and told victim to used it as an 2 excuse to be able to seek permission from the spot owner to meet him. Victim obliged and went to accused person's house. On reaching there, accused person took advantage of victim and had sexual intercourse with her for the second time. The prosecution added that the complainant went to the spot to look for the victim and the spot owner told her that victim had gone to accused person's house so she made a follow up but did not find the victim. Later on, complainant spotted victim at a distance coming towards the spot and she approached victim and questioned her. Victim disclosed the incident to the complainant and showed her blood-stained panties to the complainant. The complainant on hearing the incident reported the case to Police DOWSU/AR. The police investigator accompanied the victim to hospital for examination and treatment and a report was submitted on her. Accused person was arrested but he denied the offence in his caution statement. The accused person/appellant was therefore arraigned before court for trial after investigations. DETERMINATION OF THE GROUNDS OF APPEAL GROUND I: THE CONVICTION WAS AN ERROR IN LAW Section 101 of the Criminal Offences Act 1960, Act 29 provides that: “(1) For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age. (2) A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less that seven years and not more than twenty-five years.” From the offence charged, the ingredients the prosecution had to prove are that the 3 i. The victim is below the age of sixteen ii. That someone had natural or unnatural carnal knowledge of the victim iii. That someone is the accused person. AGE OF THE VICTIM The weighing card of the victim which was tendered into evidence as exhibit D gave the age of the victim as 28th March 2009. The victim also testified that she was a class three pupil of New Order Preparatory School Kasoa. The appellant did not contest the age of the victim at the trial. That the victim was eleven (11) years and thus below the age of sixteen (16) years was satisfactorily proved at the trial and I so find. THAT SOMEONE HAD NATURAL OR UNNATURAL CARNAL KNOWLEDGE OF THE VICTIM Section 99 of Act 29 provides what in law will be considered as proof of carnal or unnatural carnal knowledge in the following terms: - “Whenever, upon the trial of any person for an offence punishable under this code, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge shall be deemed complete upon proof of the least degree of penetration.” Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brushwork, penetration would be deemed to have occurred and carnal knowledge taken to have been completed. See Gligah & Anr. v The Republic [2010] SCGLR 870 4 Therefore to prove that someone had had sexual intercourse with the victim, it is not necessary that the whole length of the penis should enter the vagina. 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. PW2 the victim gave unsworn evidence at the trial. When she took the witness stand this is what the trial judge noted at page 39 of the Record of appeal. The trial judge noted that “The victim is eleven years old, when asked whether she understands the implication of taking an oath to tell the truth, she did not seem to understand same. The court will therefore take an unsworn evidence from her. She has however been admonished to speak the truth.” Section 61 of the Evidence Act NRCD 323 provides that “Subject to an enactment or a rule of law to the contrary, a witness before testifying shall take an oath or affirmation that the witness will testify truthfully and a statement made by a witness without the oath or affirmation shall not be considered as evidence. It is therefore trite that judicial evidence must be given by witnesses who before they testify must take an oath or affirmation that they will speak the truth. Generally, statements made without such oath or affirmation are not to be considered evidence. Section 62 (2 & 3) of the Court’s Act 1993 Act 459 provides the exception to this rule. It provides that: (2) The Court may [at any time if it thinks it just and expedient] for reasons to be recorded in the proceedings, take without oath the evidence of a person who declares that the taking of an oath is unlawful according to the religious belief of that person, or who by reason of immature age or want of religious belief ought not in the opinion of the Court to be admitted to give evidence on oath. 5 (3) The fact that the evidence has been taken without oath shall be recorded in the proceedings, and the evidence taken shall be treated as if it had been taken on oath. Pursuant to the above stated provisions, the trial judge proceeded to take the evidence of the PW1. PW1 the victim then proceeded to testify after the trial judge had rightly noted the reasons for her unsworn evidence. She stated that the accused person/appellant took her to his room in the month of May 2020 and there “asked me to sit on a student mattress lying on the floor. He then locked the door and removed his shorts and shirt. He also raised my skirt upwards, removed my panty and forcefully inserted his penis into my vagina and had sexual intercourse with me for the first time. After the act, he warned me not to inform my mother or Sister Abena about it. In view of that I could not tell anybody about it. On the 15th of June 2020 in the morning, I went to sit at Sister Abena’s spot as usual and she sent me to buy konkonte for her. In the process, the accused person came around and insisted that he would go with me so on our way, he handed over his phone to me and gave me GHC3.00. He then told me to keep the phone and used it as an excuse to come to his house and in case Sister Abena sees me and asks me where I was going I should tell her am bringing his phone to him. So when we returned from the errand, he ate his food and went away. Some minutes later, I followed up to his house and upon reaching there I met two of his brothers sitting inside his room. He sacked them from the room and locked up the door. He made me lie on his mattress and asked me to watch a movie on his phone. Whilst I was watching the movie, he removed his trousers and boxer shorts and he also raised my dress upwards, removed my panty and had sexual intercourse with me for the second time but this time around he overheard my mother calling me from outside. So he put a cloth in my mouth just to prevent me from answering my mother’s call. He told my mother that I was not with him so my mother should check his studio. After the incident he took me to a mobile money agent and withdrew an amount of GHC10.00 for me to go. Actually my mother spotted me at a distance so she came to hold me and took me to Sister Abena’s spot and questioned me in the presence of Sister Abena. I 6 narrated the incident to them and showed them my pant which was soaked with blood. The accused person was called on phone by Sister Abena and he came to meet us at the spot. We confronted him about the incident. My mother took me to Police Station and made a complaint.” PW2 the mother of the victim and the complainant also testified per her witness statement that on the 15th of June 2020 the victim informed her that the accused person had had sexual intercourse with her. She testified per paragraph 3 to 8 of her witness statement that: 3. On 15 June 2020, I went to work with victim and left her behind my goods. I quickly went to TC to purchase some stuffs. When I returned, I did not see victim so I asked the people around and they told me my friend, Abena, sent somebody to call victim. 4. I followed up to my friend's spot but victim was not there so I asked my friend the whereabouts of victim and she told me victim collected accused person's mobile phone and that she is sending it back to him. I asked my friend to show me the accused person's house but she refused and rather showed me his workplace saying that I will go to his house to embarrass him. 5. I went to accused person's workplace but neither the accused person nor the victim was found. So I went back to inform my friend, Abena. 6. Later on I saw the victim at a distance coming towards the spot, I approached her and in the presence of my friend Abena, questioned her. She then told me that the accused person brought his phone to her whilst she was sitting in my friend's drinking spot and told her to sneak to his house when she notice my friend is not observing her. So she did exactly that and went to the accused person's house. 7. On reaching the accused person's house, he sacked all the people in his room and asked victim to remove her dress and panty but she failed to do so. Accused person then held 7 victim tightly, removed her panty and dress, covered her mouth with a dress and forcefully had sexual intercourse with her. Victim showed her blood stained pant to us. 8. After her narration, my friend called the accused person on phone and he came to the spot with his brothers. I showed them the blood stained panty and the accused person began to apologize. So my friend gave me GH¢250.00 to send victim to the hospital.” PW4 the medical Doctor with the Ghana Police Hospital Cantoments Accra testified that she examined and authored a report which was admitted into evidence as exhibit C. She testified per her report exhibit C that the lower edges of the vulva of the victim was reddened and the hymen was raptured at 3 o’clock and 5 o’clock positions. She stated that she concluded that the victim had been defiled. The law regarding the evidence of the medical Doctor PW4 an expert 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 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. 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 8 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 like the appellant 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. The accused person was not able to introduce evidence to displace this presumption. The evidence of the medical doctor PW4 accords with the other evidence on record. The rapturing in the hymen in the various places that the PW4 found which she said is consistent with defilement accords with the evidence of the PW1 the victim on record as to how the appellant had sexual intercourse with her. Further to that the reddening of both sides of the labia minora of the victim’s vagina is also consistent with the evidence on record as to space in time when the incident occurred and when she was examined. 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. 9 It is the mind of this court that per the evidence submitted by the prosecution at the trial, the fact that someone had carnal or unnatural carnal knowledge of the victim was satisfactorily proved. THAT SOMEONE IS THE ACCUSED PERSON. In the case of Dogbe v The Republic [1975] 1 GLR 118, holding I, the High Court, per Ata-Bedu J, stated thus: “In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. Thus opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity.” Similarly in the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, it was held that where the identity of the accused person was in issue there can be no better proof of his identity than the evidence of a witness who swore to have seen the accused committing the offence. It is usual in most cases of sexual offences to have the victim as the only eye witness of the incident. And as such it is only the victim who can in most cases give direct evidence as to how it happened and all the circumstances surrounding it. In the instant case, the victim testified that it was the accused person who had sexual intercourse with her in the month of May 2020 and the 15th of July 2020. PW1 told the court that the victim informed her that it was the accused/appellant who had sexual intercourse with her. In fact she also testified that the victim showed her blood soaked panties to her, the accused and the accused person’s witness DW1. 10 DEFENCE OF ACCUSED PERSON The accused person/appellant at the trial denied having any sexual intercourse with the victim. He testified that: “My name is Salif Karim. I work as a computer repairer. I live at Agbogbloshie. I know the complainant. I got to know the complainant through sister Abena. The complainant comes to keep her table at sister Abena's beer bar and anytime I go to sister Abena's bar, I see the complainant. I also know the victim. I got to know the victim when sister Abena was sending me to go and buy kokonte for her on one occasion and I met the victim at sister Abena's shop. I asked sister Abena why she did not send the victim and she told me that the victim does not know there, so I should go with her so that the victim will get to know the place. When the victim and I were going to buy the kokonte, we passed by the place where I work to take money. After we finished buying the 'kokonte', we came back to sister Abena's place. I sat there to eat. Whilst I was eating, I put my phone down. The victim came for my phone and started playing games on my phone. After i finished eating, i wanted to take my phone from the victim but she told me that she had not finshed playing the game and so I should go and that she will bring my phone to me. I was at my workplace when she brought the phone and said that i had a call. When i took the phone from the victim, not long after sister Abena called me on phone and told me that the victim's mother was looking for her. At the time, the victim was watching a film at my workplace. So I told her that her mother was looking for her and so she should go and she left. At 2:30 p.m., i left for Circle. I was at Circle at about 3:30 p.m when sister Abena called that she was looking for me. I told her that I was at Circle and that I will come back. I passed by sister Abena's place and when I got there the complainant said that I had sex with her daughter. I told her that it was not true and that I did not have sex with her daughter. I told the complainant that if indeed, it was true that I had sex with the victim, then she should take myself and the victim to the hospital. The complainant said she had not sold anything since she came to the market so she did not have money. Sister Abena then gave the complainant GH¢250.00 to 11 send the victim to the hospital. After the complainant took the money, she said no one should follow her. Due to this, a misunderstanding ensued between the complainant and myself. Afterwards I left. After I left, I did not see the complainant again. One day, I went to sister Abena's place and she told me that the complainant had come asking her to lend her GH¢150.00. I was at my workplace at about 2:00p.m. when the police came to arrest me. That is all my lord.” 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. 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. 12 The accused person flatly denied the claim of the victim and the mother PW1. Considering the defence of the accused person and his sole witness Sister Abena who asserted that she knew the person who defiled the victim and that the person who had sex with the victim is a taxi driver and he lives at Kasoa and currently the said driver is under arrest at the Kasoa Police Station, I do not know whether he has been released or not” firstly I am unable to accept the defence of the Accused and I do not also find the defence to be true. It is the opinion of this court that the accused person as rightly noted by the trial judge was untruthful and so was his witness DW1. The appellant at the trial denied his own name and rather presented himself as Salifu Karim. I am more inclined to believe the story of the victim as per the narration of the victim and that of the accused person and his witness, it is clear that indeed the accused person gave his phone to the victim to use as a ruse to come to his place and also the space in time from when she returned from his place and the blood soaked panties is clear that it was the appellant who indeed defiled the victim. The story of the victim as the time and place of the sexual intercourse was corroborated by the evidence of the accused person himself, his witness, the medical doctor and the complainant. It is a known fact that in cases of sexual offences it is expected that the evidence of the victim as to the occurrence of the sexual act where same is denied be corroborated by the introduction of some other form of evidence to corroborate the denied averment of the victim. I say so mindful of the fact that per section 7(3) of the Evidence Act, 1975, Act 323, “corroboration of admitted evidence is not necessary to sustain a finding of fact or verdict”. Per section 7(2) of the said Act 323, “evidence may, in proper circumstances, be corroborated by other independent evidence that requires corroboration”. Indeed, the need for corroboration of evidence is emphasized by section 7(5) the same Act 323 which states that “this section does not preclude the Court or a party from commenting on the danger of acting on the uncorroborated evidence, or commenting on the 13 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. It was thus held in the case of REPUBLIC v. DAPAAH [1968] GLR 513, which was a case of Rape with the issue of consent as the only issue at stake that, “it was desirable as a matter of practice that the complainant’s evidence should be corroborated in a case like this where the sole issue was whether she consented and the court ought to direct itself that it was dangerous to act on her uncorroborated evidence” From the foregoing, it is the considered view of this court after considering the entire evidence on record that the prosecution proved the case against the accused person/appellant herein to the right degree. The story of the victim was corroborated by the medical report and the evidence of the other prosecution witnesses. The evidence is clear that the accused person planned with the victim, left his phone with the victim so 14 that she would bring it to him and it was after she left with the phone that she came back with her blood soaked panties. In dealing with the second ground of appeal, 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 that seven years and not more than twenty-five years. The appellant was sentenced to ten (10) years to serve as a deterrent to others of same mind and also to show how society disapproves of such acts. The sentence of ten (10) years is within the law and the judge considered the rules on sentencing before she gave out the sentence. I am not minded to disturb the sentence. From the above, the appeal fails and same is dismissed. MARY M.E YANZUH J. HIGH COURT JUDGE PARTIES: APPELLANT PRESENT COUNSEL: YAW ACQUAH FOR THE REPUBLIC/RESPONDENT ABSENT NKRABEAH DARTEY FOR THE APPELLANT ABSENT 15 16