REPUBLIC VRS. BOAFOUR (D10//40/21) [2025] GHACC 24 (29 April 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON TUESDAY, THE 29TH DAY OF APRIL, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH, CIRCUIT COURT JUDGE SUIT NO: D10//40/21 THE REPUBLIC VRS: JOSHUA BOAFOUR ACCUSED PERSON ABSENT C/INPS. AGNES KONADU FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The accused person was arraigned before this Court on a charge of defilement contrary to Section 101 of the Criminal Offences Act 1960 (Act 29). The brief facts presented by the prosecution are that the complainant, Stephen Parku, aged 29, is a mason and lives at Kakasunanka No. 2 with his 12-year-old sister, Dzifa Dovi, the alleged victim in this case. The accused person, aged 20 years, is a welder and lives at Kakasunanka No 2. The prosecution alleges that on 14th July 2021, the complainant travelled leaving the victim alone in the house. The accused person, realising that the complainant had travelled and the victim was alone in the house, entered the complainant's room, which was not locked at about 10:00 pm and saw the victim sleeping with only a cloth covering her. The prosecution further alleges that the accused person forcibly had sexual intercourse with her and pleaded with her not to disclose it to anyone. 1 Additionally, the prosecution alleges that the complainant returned home that night and met the victim crying. After narrating her ordeal to him, the case was reported at the Afienya Domestic Violence and Victim Support Unit (DOVVSU). The victim was medically examined and subsequently, the accused person was arrested. After investigation, he was charged with the offence and put before this honourable court. THE PLEA The accused person who was represented by Counsel, pleaded not guilty to the charge after it had been read and explained to him in the Dangbe Language. The prosecution therefore, assumed the statutory duty to prove their case beyond a reasonable doubt. The case proceeded to trial and the prosecution called four witnesses and tendered in evidence the following documents; Exhibit “A”: Investigation Caution Statement of the accused person. Exhibit “B”: Charge Statement of the accused person. Exhibit “C”: Report of the age assessment on the alleged victim. Exhibits “D” and “D1”: Photographs of the alleged scene of crime. Exhibit “F”: Police Medical Report Form. BURDEN OF PROOF Under Article 19(2)(c) of the 1992 Constitution, a person charged with a criminal offence is presumed innocent until proven guilty or has pleaded guilty. Meaning, anytime a person is charged with a criminal offence, it is generally the duty of the prosecution to prove the guilt of the accused person beyond a reasonable doubt. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408 at page 412 “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of 2 him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused’s knowledge and the circumstances are such as to call for some explanation… The law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything, but to raise a reasonable doubt. If the accused can raise only such a reasonable doubt he must be acquitted” Also, in the case of Public Prosecutor v. Yuvayaj (1960) AC 913 at 921, the court held that: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact; it is sufficient for his acquittal if any of the acts which if they existed, would constitute the offence with which he is charged are not proved” Therefore, the prosecution has a statutory duty to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. When the accused person is called upon to open his defence, he is only required to raise a reasonable doubt in the case of the prosecution. ANALYSIS Here, the accused person is charged with defilement contrary to Section 101(2) of Act 29. Section 101(2) of Act 29, states as follows; “ 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 3 is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty-five years.” Defilement is defined in Section 101(1) of Act 29 as “the natural or unnatural carnal knowledge of a child under sixteen years of age.” In the case of Asante (No.1) v. The Republic (No.1) [2017-2020] I SCGLR 132, the Supreme Court, per Pwamang JSC, at page 143, identified the following ingredients of the charge of defilement which the prosecution must prove to secure a conviction; 1. That the victim is under the age of sixteen; 2. Someone had sexual intercourse with her; and 3. That person is the accused; It is instructive to note that in Section 101, the word “child” is used, which means that the offence is gender-neutral and can be committed to a male or a female below the age of 16 years. In the instant case, from the particulars of the offence, the accused person is alleged to have had unnatural carnal knowledge of Dzifa Dovi, a female aged 12 years at the time of the alleged incident. On the first ingredient of the charge, the prosecution must prove that the victim is a child below the age of 16 years. Here, throughout the trial, the age of the victim as a person below 16 years was not controverted. However, this does not relieve the prosecution of the duty to establish the age of the victim. It is trite learning that the prosecution on whom the legal burden is placed also has the evidential burden of adducing sufficient evidence in support of each of the elements of the charge against the accused person in a criminal trial. See Section 11(2) of the Evidence Act, 1975 (NRCD 323). The presumption and determination of the age of a person in a court proceeding is provided for under Section 19(1) and (2) of the Juvenile Justice Act 2003, (Act 653), as follows; 4 “(1) Where a person, whether charged with an offence or not, is brought before a Court otherwise than for the purpose of giving evidence and it appears to the Court that the person is a juvenile, the Court shall make inquiry as to the age of that person. (2) In the absence of a birth certificate or a baptismal certificate, a certificate signed by a medical officer as to the age of a person below eighteen years of age is evidence of that age before a Court without proof of signature unless the Court directs otherwise.” In the case of Robert Gyamfi v The Republic (unreported), [Suit No. H2/02/19] CA, Kumasi per Dzamefe JA, delivered on 27th February 2019, the court stated: “... the three certifications mentioned there are not the only means of identifying one’s age in our jurisdiction…Aside from those certificates mentioned, the national health insurance card for now is one of the official documents for the identification and age of all Ghanaians, either young or old. The class or school register is also one of such official records accepted as indicating the identity and age of school children.” In the instant case, the prosecution gave the age of the alleged victim as twelve years and tendered in evidence the bone age determination report on the victim admitted and marked as Exhibit “C” which estimates her age to be between 12 years and 13 years. In the absence of any contrary evidence to contradict the age assessment conducted on the victim, the court finds that the prosecution established the age of the victim as a person below the age of 16 years. Secondly, the prosecution must prove that someone had unnatural carnal knowledge of the male below 16 years. Section 99 of Act 29 states that “where on a 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 or unnatural carnal knowledge is complete on proof of the least degree of penetration.” 5 In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, SC@ page 879, Dotse JSC defined carnal knowledge as: “ the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed.” The first prosecution witness, Stephen Parku (the complainant), testified that the victim is his sister and that on Sunday, 11th July 2021, at about 6:30 am, he travelled to Topko- Shai in the Osudoku District with his wife and children. On the same date, at about 10:30 pm, he returned home and met the victim crying uncontrollably. When he asked her why she was crying, she told him that the accused person had forcibly had sexual intercourse with her on that day at about 8:00 pm. Upon hearing this, he asked some fitters to look for the accused person for him immediately but they did not see him after a diligent search. The first prosecution further testified that on 12th June 2021, he took the victim to the Crystal Hospital at Michel Camp and the nurse on duty after examining the victim, told him to report the matter at the Police Station. He then went with the victim to the Afienya Police Station to report the matter and was given a Police Medical Form and he took the victim to the Tema General Hospital where she was treated and discharged. He then returned the endorsed medical form to the Police. When he got home, he confronted the accused person but he denied having had sexual intercourse with the victim but the victim identified the accused person and was insistent that the he had sexual intercourse with her the previous night. He led the police to arrest the accused person and during investigations, the victim maintained that the accused person had sexual intercourse with her. The first prosecution witness under cross-examination by Counsel for the accused person, testified that when he returned home, he did not see 6 blood but the midwife who first attended to the victim at Crystal hospital claimed that she saw blood. The second prosecution witness, Dovi Dzifa, (the victim), testified that she is a class four pupil and twelve years of age. According to her testimony, on the morning of Sunday, 11th July 2021, PW1 travelled with his wife and children to his wife’s hometown. At about 5:00 pm, the accused person who lived in a fitting shop close to their house enquired about the whereabouts of her brother and she told him that he had travelled. On the same day, at about 6:00 pm, she went to sleep early with a cloth around her and wearing no panties. She also did not lock the door to enable his brother to gain access upon his return. According to her testimony, at about 8:00 pm, she was fast asleep when she felt something heavy pressing her down. She woke up and saw the accused person having sexual intercourse with her with the cloth wrapped around her. She states that she felt pains in her vagina and shouted for help but the accused person covered her mouth with his hand to prevent her from shouting. The second prosecution witness further after satisfying himself, the accused person left her and wore his pair of knickers and white singlet. After telling her not to inform her brother about the incident, the accused ran away from the room. Whilst in the room crying, she went outside the room, but there was no one around. When her brother returned around 10:30 pm, she was still crying and narrated her ordeal to the accused person, but the accused person was nowhere to be found. The following day, she identified the accused person as the one who had sexual intercourse with her. She was taken to the Crystal Hospital and later to the Afienya Police Station. The Police referred them to the Tema General Hospital where she was treated and discharged. Later, she went to the Police Station to identify the accused person among three men as the one who had sexual intercourse with her. 7 Learned Counsel for the accused person in cross-examining the victim sought to discredit her on the alleged date that the incident happened and the victim testified that it happened on 11th July 2021 and not 12th July 2021. She further stated that nobody saw the accused person entering the room, although they lived in a compound house. She again testified that on the day of the alleged incident, the accused person was sitting under a tree on the compound before entering their room. She stated that she had her bath and at about 7 pm, whilst the accused person was sitting under the tree, her friend called Elizabeth visited her and she opened the door for her. According to the victim, they chatted for about 2 hours and she invited her to a party but she did not go with her. When her friend left, she slept immediately. She states that when Elizabeth left her room, she saw her seated with the accused person under the tree and flipping through his phone. The third prosecution witness, D/PW/SGT. Thelma Hayson, the investigator in the case testified that on 12th July 2021 at about 4:00 pm, this case was referred to her for investigation. During the interview, the victim recounted what transpired between her and the accused person on the day of the alleged incident. She issued a police medical report form to the complainant to send the victim to any government hospital for examination and treatment. The complainant later led her to a fitting shop near Michel Camp as the place of abode of the accused person. Other fitters in the shop confirmed that they knew the accused person but he was nowhere to be found. Two weeks later, the accused person appeared at the police station and she asked the victim to identify him among three people and she confirmed that he was the one who had sexual intercourse with her on 11th July, 2022. According to her testimony, the accused person denied having had sexual intercourse with the victim. She tendered in evidence the investigation caution statement of the accused person admitted and marked as Exhibit “A” and photographs of the scene of the alleged crime as Exhibits “D” and “D1”. She further states that at the scene, the 8 victim led her, the complainant and the accused person to a room in the house and showed her a student mattress covered with a piece of cloth and said that was the mattress on which the accused person had sex with her but the accused person disputed the assertion right away. She charged the accused person after gathering the necessary information, and the charge statement of the accused person was admitted and marked as Exhibit “B”. The fourth prosecution witness, Dr. Alhassan Hanifa of the Tema General Hospital who examined and treated the victim was also subpoenaed to give evidence and he tendered in evidence the medical report admitted and marked as Exhibit “E”. He testified that the victim was brought to the hospital alleged to have been defiled by one Joshua at Michel Camp a day before the examination on 11th July 2021 around 9:30 pm.The patient informed him that the alleged sexual assault happened once. On examination, the patient was afebrile, not pale and she was stable. On vaginal examination, the hymen was broken with minimal laceration. There were no blood clots or semen seen. Post-exposure prophylaxis and adequate counselling were given. The patient was to do a pregnancy test, full blood count, VDRL, VCT, Hep B and Hep C for review. According to him, his findings suggest that sexual intercourse had taken place but he could not determine the identity of the person who had sexual intercourse with the victim. Under cross-examination by Counsel for the accused person, the fourth prosecution witness was insistent that there was minimal laceration with the hymen broken, an indication that sexual intercourse had taken place in the past 48 hours. He defined “minimal laceration” as a laceration that is insignificant for suturing. He stated that a major cause of laceration in the vagina is forced penetration by a penis but maintained that he could not say who forcefully penetrated the victim’s vagina. 9 The evidence led by the prosecution witnesses corroborated by the medical evidence shows that the victim before the court is not a virgin and that someone has had penetrative sex with her. The prosecution therefore proved this ingredient of the offence charged beyond reasonable doubt. Lastly, the prosecution must prove that it was the accused person who carnally knew the victim in this case. In criminal trials, it is not enough for the prosecution to prove that a crime has been committed but must prove further that it was the accused person before the court and no other person who committed the offence. This is the most contentious issue since the accused person vehemently denied having had sexual intercourse with the victim. PW1 maintained that when he returned from his hometown the victim informed him that the accused person had sexual intercourse with her and when he took her to the hospital, the medical report confirmed same. The victim was insistent that it was the accused person and no other person who had sexual intercourse with her. The lawyer for the accused person cross-examined extensively and put the defence of the accused person across through cross-examination. When the court found that a prima facie case was made out to warrant calling the accused person to open his defence, the accused person jumped bail. Justice S. A. Brobbey in his book Practice and Procedure in the Trial Courts and Tribunals in Ghana states at page 146 paragraph 312 states that” “ where an accused gives no evidence or explanation in his defence, the court is bound to consider, in the judgment, any evidence which favours his case as well as statements of the accused on caution given to the police and which are tendered in evidence.” In the case of Annoh v. Commissioner of Police [1963] 2 GLR 306, SC, referenced by the Learned author, where an appellant failed to give evidence at the trial but gave a statement to the Police which was tendered in evidence but the trial judge failed to 10 consider the statement admitted in evidence in his judgment, the Supreme Court per Ollenu JSC in allowing the appeal held that: “The failure of the trial judge, in this case, to consider the appellant’s denial of the charges, contained in his cautioned statement, amounted to a grave miscarriage of justice in that a doubt had been created as to whether the trial judge would have given the same decision if he had adverted his mind to the appellant’s cautioned statement.” See also the case of Atta v. Commissioner of Police [1963] 2 GLR 460, SC. In the case at bar, the accused person vehemently denied having had sexual intercourse with the alleged victim in his investigation caution statement and charge statement admitted and marked as Exhibits “A” and “B", respectively. He states that the victim lives at where his shop is located but he had never spoken to her and had never entered their room. The accused person, in his defence raised a defence of a plea of alibi. Under Section 131 of the Criminal Procedure Act 1960 (Act 30), an accused person who intends to put forth a plea of alibi is mandated to give notice of the alibi as to the time and place and the witnesses by whom it is proposed to prove. In the instant case, the accused person filed a notice of alibi on 1st April 2022, stating that he was not within the crime scene within the hours when the offence was alleged to have occurred and gave detailed particulars of the place, time, the people he was with and their contact details. The investigator investigated the alibi and filed the report together with statements of two witnesses of the accused person, Ebenezer Tawiah alias Canny and Christopher Addo. The report on the alibi was, however, not tendered in evidence. Under further cross-examination on her investigations of the alibi defence raised by the accused person, the witness testified that the accused person furnished her with names of people that he was with that they were at Feel Flow Spot and that prior to that, he was at a naming ceremony but she did not contact these people. Under further cross- examination, the first prosecution witness testified as follows; 11 Q: And the particulars of the alibi including contacts and places you went to were given to you to investigate is that not the case? A: Yes My Lord. Q: Do you recall the names of these persons that were given to you? A: No My Lord. Q: Now, it is also true that you never took the pain to go to Kakasunaka, where the naming ceremony happened. A: Yes My Lord. In the case of Bediako v. The Republic [1976] I GLR 39-43, the court held in its holding 1 that: “It was not the duty of the appellant to prove his alibi, but before the prosecution could be called upon to displace a defence of alibi, that defence must have been properly brought to the notice of the prosecution or there had to be evidence of it before the trial court, and the notice should contain such particulars as would enable the prosecution to conduct proper investigations into the movement of the appellant.” The prosecution was under a statutory duty to investigate the alibi of the accused person and contact the witnesses whose contacts he provided to the police but from all indications, this was not done as the investigator maintained that the accused person did not present the witnesses to her and that he did not mention this defence at the time of taking his statement. Additionally, for an alibi defence, the time the incident is alleged to have occurred is crucial. The prosecution witnesses during rigorous cross- examination conducted by Counsel for the accused person, gave conflicting accounts as to the time the incident is alleged to have occurred. Under cross-examination by Counsel for the accused person, the victim answered as follows; Q: You will agree with me that you cannot be sleeping at 6 pm and still be talking to your friend Elizabeth at the same time? 12 A: I agree with Counsel. Q: Now, you will also agree with me that the 8 pm that you were talking with your friend Elizabeth, the accused person could not have had sex with you at the same time? A: Yes, My Lord. I agree. Q: So, it is incorrect to say that the accused person had sex with you at 8 pm? A: It is true, My Lord. In the case of Fokuo & Other v. The Republic [1997-1998] 1 GLR 1, the court held that: “for an alibi evidence to be of some weight … it should cover and account for the whole of the time of the riot or so much of it as to render it impossible that the accused could have committed the act charged against him during the period” The second prosecution witness further testified under cross-examination that the accused person entered the room to have sexual intercourse after her friend Elizabeth had invited her to attend a party which she declined. After her friend left, she saw her sitting under a tree with the accused person and using his phone before the accused person entered the room to have sexual intercourse with her. The investigator, during cross-examination by Counsel for the accused person testified that throughout her investigations, the victim did not mention that her friend Elizabeth visited her prior to the accused person allegedly entering the room to have sexual intercourse with her. In the considered opinion of the court, the accused person having stated that he was nowhere near the scene of the alleged crime, it was imperative for the prosecution to have called the said Elizabeth who allegedly went to the room to invite the victim to a party and after that sat under a tree with the accused person before he allegedly entered 13 the room to have sexual intercourse with the victim to place the accused person at the scene of the alleged incident but this material witness was not called. In the case of Tsatsu Tsikata v. The Republic [2003-2004] 1 GLR 296, CA the court held in its holding 4 that: “The question of failing to call a material witness might be properly raised after evidence from both the prosecution and the defence had been heard. Any failure on the prosecution’s part to call such a witness, if that witness’s evidence could settle the matter one way or the other, would result in the failure of their case because they would not have proved their case beyond reasonable doubt.” On the totality of the evidence led in light of the denial of the accused person contained in Exhibits “A” and “B” and the failure of the prosecution to properly investigate the alibi of the accused person by contacting the people that the accused person was alleged to have been with, the inconsistencies in the account of the prosecution witnesses as to the time the incident is alleged to have occurred making it difficult to establish the alibi regarding the whereabouts of the accused person at the time the incident is alleged to have occurred, it is doubtful whether it was the accused person and no other person who had sexual intercourse with the alleged victim. I therefore hold that the prosecution failed to prove their case against the accused person beyond reasonable doubt that it was the accused person who had sexual intercourse with the victim. I therefore pronounce the accused person not guilty of the charge. I accordingly acquit and discharge him of same. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 14