ARYEE AND OHERS VRS. REPUBLIC (CR/0138/2024) [2024] GHAHC 278 (20 May 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON MONDAY THE 20TH DAY OF MAY 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0138/2024 1. NICHOLAS ARYEE APPELLANTS 2. ROBERT NII AMARTEY 3. KINGSFORD KORLEY @ LARGE VRS THE REPUBLIC RESPONDENT JUDGMENT The 1st and 2nd accused/Appellants herein and one other were arraigned before the Circuit Court Amasaman on the 9th of December 2021 wherein they were charged with the following offences: COUNT ONE A1 - Defilement of female under sixteen (16) years of age contrary to Section 101 of the Criminal Offences Act 1960 Act 29 COUNT TWO 1 A1: Compulsion of marriage contrary to Section 109 of the Criminal Offences Act 1960/Act 29. COUNT THREE A2- Householder permitting defilement of child on his premises contrary to Section 106(1) of the Criminal Offences Act 1960, Act 29 COUNT FOUR A2- Abetment of crime to wit compulsion of marriage contrary to Section 20(1) of Act 29/60 COUNT FIVE A3- Abetment of crime to wit compulsion of marriage contrary to Section 20(1) of the Criminal Offences Act 1960/29. Upon appearing before court, their pleas were taken after the charges were read and explained to them in the GA language and the appellants herein that is A1 and A2 pleaded guilty to all the charges. The court convicted them on their guilty plea and adjourned the matter for sentencing. On the 16th of December 2021, the court conducted a pre sentence hearing and then sentenced the A1 to seven (7) years imprisonment on Count one (1) and on count two (2) to a fine of 100 penalty units in default one (1) month imprisonment. The A2 was sentenced to seven (7) years imprisonment on count three and a fine of 100 penalty units on count four (4) in default one (1) month imprisonment. It is against this judgment that the appellants filed the instant appeal on the 12th of January 2024 pursuant to leave granted by the High Court praying the court to quash 2 the whole judgment delivered by the trial Circuit Court on the 9th day of December 2021. GROUNDS OF APPEAL The grounds of appeal filed are that: A. That it was wrong in law for the judge to have heard the plea of the Accused without making the Accused aware of thier right to Counsel of their Choice considering the grave nature of the offences charged B. That the Trial Judge carried out a substantial miscarriage of justice by not ascertaining the age of the alleged victim by a certified Medical Doctor’s Report before taking the plea of the accused and sentencing them. C. That there was substantial miscarriage of justice when accused persons were found guilty of the crimes as charged of an alleged victim who was above the age of consent at the time the alleged offence was purported to have taken place without ascertaining for itself the age of the victim before delivering its sentence. D. That the trial judge should have exercised discretion in allowing the accused to plead guilty, taking into account the educational background of the 1st Accused and illiteracy of the 2nd Accused in comprehending the nature of the offences under which they had been charged. FACTS OF THE CASE The case of the prosecution is that the complainant Atsu Afasunudzi is a single parent and headmaster who resides at Ashifla near Obom. The victim Dzidzor Happy Atsu is 15-year-old student and a daughter of the complainant who stays with the father, the complainant. The prosecutions states that the first accused Nicholas Aryee is a student who doubles as a farmer while the second accused Robert Nii Armartey is a farmer and father of A1. Both live in the same house at Buum near Obom. The third accused 3 Kingsford Korley is a Sunday School teacher in a church where A1 and A2 worship and also resides at Obom. The case of the prosecution was that somewhere in March 2020, the complainant sighted A1 and the victim in the night and warned him to stay away from the victim, because she was a minor, but he did not budge. The complainant kept warning A1 through A2 and other members of their community, but A1 did not pay heed to the complainant's advise and warning. A1 kept entertaining the victim until she relocated to A1 in A2's residence, after fruitless attempt to end their amorous relationship. The prosecution added that on the 20th day of April 2021, the victim informed the complainant about her pregnancy and left home. On 8th day of July 2021, at about 0430 hours, A2 and A3 presented a bottle each of Akpeteshie and Dubornet drinks to the complainant and informed him that, the victim who left home in April has since been living with them. A2 further presented the drinks as a sign of knocking to the marriage rites of the said victim to A1. On the same day, the complainant filed a case with Amasaman DOVSU. On 12th July 2021, A1 and A2 were apprehended for questioning, but A3 is at large. After investigations they were charged with the offences stated on the charge sheet and put before Court. The court ordered for the parties to file their written submissions. At the time of writing this judgment, both parties had not filed their written submissions. This court would however proceed to consider the grounds of appeal filed. BURDEN OF PROOF Dzamefe JA in the case of Patrick Mordo v the Republic [2019] 140 GMJ at page 243 referring to the case of Tuakwa v Bosom [2001-2] SC GLR 61 stated that at the hearing 4 of an appeal, an appellate court is under an obligation to analyze the entire record of appeal, take into account the testimonies and all the documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself in a civil trial that on a balance of probabilities, the conclusions of the trial judge are reasonable or are amply supported by the evidence and in criminal cases that the decision of the court is reasonably supported by the evidence on record beyond doubt. He opined further that the appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. This is because an appeal is said to be a rehearing. Also the well-known principle on the accepted standard of proof in criminal prosecutions is that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Woolmington v. D.P.P. [1935] A.C. 462, which is the locus classicus, laid down the principle which has been followed in numerous Ghanaian cases. All that an accused person is required to do in a criminal trial is to raise a reasonable doubt as to his guilt. The onus therefore is heavily on the prosecution to prove beyond reasonable doubt that the appellant herein within the period stated on the charge sheet defiled the victim. The prosecution therefore bore the burden to prove that the appellant herein committed the offence he has been charged with. It is also important to remind ourselves that in a criminal trial, it is not the duty of the accused person to prove his innocence, the burden to prove the guilt of the accused person is cast heavily on the prosecution but when it shifts to the accused person, it requires him to just raise a reasonable doubt. In the case of Isa vrs The Republic (2003-2005) 1 GLR 792 HOLDING (2), it was held 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…” 5 DETERMINATION OF THE GROUNDS OF APPEAL GROUND A: That it was wrong in law for the judge to have heard the plea of the Accused without making the Accused aware of thier right to Counsel of their Choice considering the grave nature of the offences charged. When an accused person is arraigned before any court on criminal charges, the procedure for the trial has been outlined in Section 171 (1), (2), (3) and (4) of the Criminal and other Offences Procedure Act 1960/Act 30. It provides that “(1) Where the accused appears personally or by counsel as provided under section 79, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to the accused or if the accused is not personally present to the counsel of the accused, and the accused or counsel of the accused shall be asked to plead guilty or not guilty. (2) In stating the substance of the charge, the Court shall state particular of the date, time, and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to have been committed, and the section of the enactment creating the offence. (3) A plea of guilty shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1), the letter shall be placed on the record and the Court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary. (4) Where the plea is one of not guilty the Court shall proceed to hear the case.” Aside the procedure set out in the law and reproduced above, when an accused person appears before the court, the law permits an accused person to defend himself before the court in person or by a lawyer of choice. Article 19 (2) f of the Constitution 1992 provides that: “A person charged with a criminal offence shall be permitted to defend himself before the Court in person or by a lawyer of his choice;” 6 It is not therefore the case that an accused person must necessarily have legal representation before a trial proceeds. An accused person can elect to defend the suit by himself and in such cases, the court notes that the accused person is self represented. Where however an accused person informs the court that he has counsel or intends to seek the services of counsel, the trial judge is to afford the accused person the opportunity to do so by adjourning the matter. In the instant case, the accused persons/appellants elected to conduct the case on their own. The record does not indicate that the court refused to allow a counsel of the accused persons’ choice to be present to defend them or that the court prevented the accused persons from defending themselves. From the record, on the next adjourned date when the appellants wanted to, they engaged the services of a lawyer who proceeded to plead for mitigation of sentence them. The trial judge therefore did not err in taking the plea of the accused persons when it proceeded to do so. The court ensured that the charges were read and explained to the accused persons in the Ga language as well as the facts of the case, the accused persons/appellants understood same and pleaded guilty simpliciter. This ground of appeal therefore fails. A. GROUND B and C: That the Trial Judge carried out a substantial miscarriage of justice by not ascertaining the age of the alleged victim by a certified Medical Doctor’s Report before taking the plea of the accused and sentencing them and That there was substantial miscarriage of justice when accused persons were found guilty of the crimes as charged of an alleged victim who was above the age of consent at the time of the alleged offence was purported 7 to have taken place without ascertaining for itself the age of the victim before delivering its sentence. As stated supra and reproduced in Section 171 of Act 30, when an accused person pleads guilty, what follows is sentencing. A guilty plea relieves the prosecution the burden of calling witnesses to lead evidence to prove the charge against the accused persons beyond reasonable doubt since a plea of guilt amounts to an admission of the offence charged. In circumstances such as the instant one, that is when an accused person pleads guilty to the charge, the duty of the trial judge is to examine the charges and the facts to determine if same supports the charge and if the plea is warranted by the charge. Where the facts presented do not support the charge, the court may either discharge the accused person or enter a plea of not guilty. There is no rule of procedure that mandates a trial judge to ascertain the age of a victim by a certified medical Doctor’s report before taking the plea of the accused person and sentencing them. As a result of the guilty plea of the accused persons/appellants, the court did not take evidence for the issue of the age of the victim to be determined as the guilty plea amounted to an admission of all the ingredients of the offence. As such there is nothing on record which supports the assertion of the appellants that the victim was under the age of consent. It should be noted that an appeal is by way of rehearing and the parties to the appeal are bound by the record of the appeal presented to the appellate court. Therefore, any information which is not part of the record of appeal cannot be admitted and discussed in the appeal. A person who seeks to introduce fresh evidence is permitted to do so but must do so in accordance with law. This ground of appeal also fails. 8 GROUND D: That the trial judge should have exercised discretion in allowing the accused to plead guilty, taking into account the educational background of the 1st Accused and illiteracy of the 2nd Accused in comprehending the nature of the offences under which they had been charged. From the facts of the case as presented, the A1 is a student who doubles as a farmer. A2 is a farmer. At the trial, when their plea was to be taken, they opted to speak in the Ga language and as such the charges were read and explained to them in the Ga language. The facts of the case was also read and explained to them in the Ga language. The trial judge before convicting and sentencing them proceeded to enquire whether the plea of guilt was made without any promises or duress to which the appellants responded in the affirmative. The trial judge further informed them that what follows a guilty plea is conviction and sentencing to which they responded that “I am guilty”, “I maintain my guilt”. This ground of appeal fails. The result of the foregoing is that the conviction based on the guilty plea was in accordance to law and procedure. With regards to the sentencing for A1, his sentence was also not wrong in law. Per the law, a person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty-five years. The A1 was sentenced on count one (1) to seven (7) years which is the minimum sentence on the statute books. With regards to count two (2), Section 109 of Act 29/60 provides that “A person who by duress causes another person to marry against that other person’s will, commit a misdemeanour.” Section 296 (4) of Act 30/60 provides that “ Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a misdemeanour and the punishment for that offence is not specified, a person convicted of that offence is liable to a term 9 of imprisonment not exceeding three years.” A1 was sentenced to pay of fine of 100 penalty units in default one month imprisonment. On count three, Section 106 (1) of Act 29/60 provides that: (1) The owner or occupier of premises or a person acting or assisting in the management of the premises who induces or knowingly permits a child of less than sixteen years of age to resort to or be in or on the premises to be carnally known or unnaturally carnally known by any other person, commits a criminal offence and is liable on conviction to a term of imprisonment not less than seven years and not more than twenty-five years.” A2 was therefore sentenced to the minimum sentence of seven years. On count 4 which is the offence of abetment of crime to wit compulsion of marriage contrary to Section 20(1) and 109 of Act 29/60, the A2 was to pay a fine of 100 penalty units in default one month in prison. Section 20 (2) of Act 29 provides that: “ A person who abets a criminal offence shall, if the criminal offence is actually committed in pursuance of, or during the continuance of, the abetment, be deemed to have committed that criminal offence.” As stated supra, the offence of compulsion of marriage is a misdemeanor, and per section 20(2) of Act 29/60 the A2 is to be punished as if he had actually committed the offence. The sentences meted out to the appellants were clearly within the law and the trial judge considered the rules on sentencing before she gave out the sentence. The trial judge considered the fact that the accused persons were first offenders, the fact that the A1 was a young man of eighteen (18) years and imposed the minimum sentence on the statute books. From the above, the appeal fails and same is dismissed. 10 MARY M.E YANZUH J. HIGH COURT JUDGE PARTIES: APPELLANTS PRESENT COUNSEL: SARAH KUSI FOR THE APPELLANTS ABSENT ABENA KONADU ADJEI FOR THE REPUBLIC/RESPONDENT ABSENT 11