REPUBLIC VRS. DOKU (74/24) [2025] GHACC 30 (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, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: 74/24 THE REPUBLIC VRS: STEPHEN TETTEH DOKU ACCUSED PERSON PRESENT A.S.P. BIMATU MUSAH FOR PROSECUTION PRESENT RUTH SEFAKOR ADJORLOLO, ESQ. WITH REUBEN NORKPLI, ESQ. HOLDING THE BRIEF OF P.K. HODO, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT FACTS: The accused person was charged and arraigned before this court on 21st May, 2024 on the following charges; 1. Assault contrary to Section 84 of the Criminal Offences Act 1960 (Act 29). 2. Defilement contrary to Section 101(2) of the Criminal Offences Act, 1960 (Act 29). The brief facts presented by the prosecution are that the complainant, Jenifer Kumah aged 23 years, is the sister of the alleged victim, Caroline Mamley Kumah, aged 11 years and they live at Bankumah, a suburb of Tema Newtown. The accused person, aged 34 years, is a painter and a family friend of the complainant. The prosecution alleges that in the year 2023, the complainant's friend called Gifty informed the complainant to be careful with the accused because she suspected he had been “doing something” with the victim. The prosecution alleges that the accused person has been visiting the complainant and her sisters at Bankuman regularly until he professed his love to the complainant who rejected it and he stopped visiting. 1 The prosecution states that on the morning of 17th May, 2024, the complainant called the accused person to supply her with oil paint for renovation work at home and he obliged. On the same day at about 7:30 pm, the accused person visited the complainant's home with the paint and insisted on watching a Television series before leaving. The complainant asked the accused person to accompany her to buy food but he refused. The complainant then left the accused and the victim alone in the room and when she returned, the complainant saw the accused through the door hole zipping up his trouser and the victim wiping her vagina with a rag and confronted them. The victim disclosed to the complainant that the accused person strangled her neck and inserted his fingers into her vagina. The complainant quickly alarmed her uncle who arrested the accused person and sent him to Tema Newtown Police Station where he was re- arrested. The complainant was given a Police medical report form to attend the hospital for treatment and examination. According to the prosecution, on 20th May, 2024 at about 9:00 am, the complainant returned with the medical form duly endorsed at the Tema General Hospital and informed the Police that the victim disclosed to the doctor that the accused person also had sexual intercourse with her. Investigation revealed that the accused person went to the complainant's house without wearing his boxer shorts and he also used the same rag the victim used to clean his sperm. After investigation, he was charged with the offences and arraigned before this honourable court. THE PLEA The accused person pleaded not guilty to the charge after it had been read and explained to him in the Dangbe language. The accused person having pleaded not guilty to the charge, the presumption of innocence operates in his favour and the prosecution assumes the burden to prove the guilt of the accused person beyond reasonable doubt. The case proceeded to trial and the prosecution called four witnesses and tendered in evidence the following exhibits; 2 Exhibit “A”: Police Medical Report Form of the victim. Exhibit “B”, series: Photographs of the accused person and the victim respectively. Exhibit “C”: Child Health Record book of the child. Exhibit “D”: Investigation Caution Statement of the accused person. Exhibit “E”: Charge Statement of the accused person. 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 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” 3 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” ANALYSIS COUNT 2 Here, the accused person is charged with defilement contrary to Section 101(2) of Act 29, which 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 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 under Section 101(1) of Act 29 as “the natural or unnatural carnal knowledge of a child under sixteen years of age.” The essential ingredients of the offence, as gleaned from the statutory provision which the prosecution must prove to secure conviction as stated in the case of Yeboah v. The Republic [1968] GLR 248 at page 252, are as follows: (1) That the victim is a child under 16 years of age. (2) That someone has had sexual intercourse with the child; and (3) That person is the accused. Again, a child under 16 years of age cannot consent to sex. Thus, any consent to natural or unnatural carnal knowledge is void and such a defence is not open to an accused person on a charge of defilement. See Section 14 of the Criminal Offences Act, 1960 (Act 29). 4 On the first ingredient of the charge, the prosecution must prove that the victim is a child below the age of sixteen years at the time of the alleged incident. 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 court proceedings is provided for under Section 19(1) and (2) of the Juvenile Justice Act, 2003 (Act 653), as follows; “(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.” To prove the age of the alleged victim gave her age as 11 years old. The prosecution also tendered in evidence the Child Health Record book of the victim which shows that she was born on 15th October, 2012. When Learned Counsel for the accused person challenged the authenticity of the document because there was a cancellation on the face of the document, the prosecution filed the birth certificate of the child which confirms that she was born on 15th October 2012. Meaning, at the time of the alleged 5 incident in May 2024, she was 11 years old. The prosecution therefore succeeded in proving this ingredient of the offence charged. On the second ingredient of the offence charged, the prosecution must prove that someone had carnal knowledge of the victim. 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.” In the English case of R v. Hughes (1841) 9 C & P at 752, it was held that for purposes of proof of penetration, it is sufficient if the prosecution lead evidence to show that any part of the virile organ of the accused was within the labia of the pendulum of the female, and however slight this may be, it is sufficient to establish penetration. The first prosecution witness (PW1) testified that she lives at Bankuman Tema New Town with her siblings and knows the accused person in this case as her elder sister’s friend who has been visiting their house. PW1 further testified that the accused person has sexual intercourse with her whenever he gets the chance when he visits her sister and warned her not to inform any of her sisters about it. She also did not inform her sister because she was afraid that if she did, she would beat her. PW1 recounts that on Friday, the 17th May, 2024, the accused person came to their house in the evening and brought paint for her sister. After her sister went to bath and asked the accused person to accompany her to buy food, he refused and told her sister that he was watching a movie and she left. After her sister left, the accused person pulled her towards him, removed her pant, strangled her neck and asked her to lie on a mattress and he inserted his penis into her vagina and had sexual intercourse with her. After the act, she took a rag to wipe her vagina and in the process, her sister Jennifer caught them together and questioned her about it. She told her sister that the accused person made her lie on the bed and he inserted his penis into her vagina. Her sister took her and the accused person to the Police Station where she was issued a medical form to send her to the hospital 6 for examination. Her sister sent her to the hospital and she narrated what happened between her and the accused person to the doctor. She was treated and discharged, and they returned the medical report form to the police. The third prosecution witness, PW3 Jenifer Kumah testified that she lived with her sisters, Joana Korkor Kuma, who is 19 years old, the victim Caroline Maple Kumah, who is 11 years old, and her friend Gifty Dampson, in a single room at Bankuman and the accused person is her childhood friend. According to her testimony, the accused person normally visits them in their house and they sometimes eat together. Somewhere in the year 2023, her friend Gifty cautioned her to be careful with the accused person because she suspected him of having an affair with the victim. The accused person once proposed love to her but she rejected him and he stopped coming to their house. On Friday, the 17th of May, 2024, in the morning, she called the accused person to get him oil paints. Later in the evening, around 7:30 pm, the accused person came to the house with the paints and sat in their room watching television. By then, her sister Joana was also with their neighbour and it was left with only the victim and the accused person in the room as she went out to buy food. The third prosecution witness further testified that when she got home, she saw the victim through their door cleaning her vagina with a rag and the accused was also zipping up his trousers. She then questioned the victim about what happened between her and the accused person and the victim answered by saying the accused inserted his penis into her vagina. She immediately called her uncle by name Kwame and he arrested the accused person and took him to the police station. She was given a medical form to send the victim to the hospital for examination and return same. At the hospital, the victim confirmed to the doctor in her presence that the accused person inserted his penis into her vagina and had sex with her. After the examination, she returned the medical form to the police and her statement was obtained. 7 The second prosecution witness, No. 7263 D/PW/Cpl. Madia Ndila Ali Baba stationed at Tema New Town DOVSU testified that on the 17th May, 2024, she was on duty as the available detective when the complainant, accompanied by one Kwame, arrested the accused person to the police station and a formal report was made against that he had sexual intercourse with the victim on 17th May 2024, at about 8:50 pm. The case was referred to her for investigation. She re-arrested the accused person and detained him for investigation. As part of her investigations, she issued a police medical report for the complainant to send the victim to the hospital for examination which was returned signed by Dr. Michael Oduro Appiah of Tema General Hospital. She tendered in evidence the investigation and charge statements of the accused person, admitted and marked as Exhibits “D” and “E’ respectively. During interrogation with the accused person, he denied having sexual intercourse with the victim but rather stated that he inserted his fingers into the her vagina. On the same day, she, in the company of the complainant, the victim and the accused person, reported and left for the scene of the crime at Bankuman on enquiries. The complainant led her and the parties to a wooden structure house freshly painted ash colour and ushered them into their room, which had a mattress with clothes and a pillow in the right corner of the room with an old-fashioned television set and other personal effects. At the scene, the victim pointed to where she was sitting on the mattress whilst the accused person was on a stool before the complainant left them to buy food and the accused person asked her to come and “romance” him and she obliged. The victim further stated that the accused person lay her on the mattress and had sexual intercourse with her. The accused person denied and said he rather made the victim lay on the mattress and stroke her vagina with his fingers whilst he rubs his penis. The accused person added that when he ejaculated in his hands, he cleaned the sperm with the rag the victim used in wiping her vagina. She took videos and pictures and the pictures were admitted and marked as Exhibit “B” series. 8 The fourth prosecution witness, Dr Michael Oduro Appiah of the Tema General Hospital, testified and identified Exhibit “A” as a document he had prepared. He stated in the report that on examination, there was a single bruise on the right side of the neck measuring 0.5cm. There were also multiple bruises on her arm and thighs. On vaginal examination, the labia majora looked normal but the labia minora was bruised and reddened at 10 o’clock. There was no visible blood and the hymen was broken at 6:0 clock but did not look recent and there was some whitish fluid in the vaginal carnal. On the totality of the evidence led by the prosecution witnesses, the testimonies corroborated by the medical report show that the victim is not a virgin and that someone had sexual intercourse with her. The prosecution succeeded in proving this ingredient of the charge beyond reasonable doubt. On the third ingredient of the offence charged, the prosecution must prove that it was the accused person and no other person who had sexual intercourse with the victim. The prosecution witnesses, particularly the victim were emphatic that it was the accused person and no other person who had sexual intercourse with the victim. The accused person in his investigation caution statement admitted and marked as Exhibit “D", stated that he gave the complainant some paints sometime back and he jokingly proposed love to her and that he sometimes visits the complainant and they eat together. On the 17th May 2024, the complainant called him to get her some paints because they were renovating the house which he obliged. He went there around 7:30 pm and the complainant asked him to accompany her to buy food which he declined because he was watching a movie. The complainant left him and the victim in the room to go and buy food. He then pulled the victim closer to him and removed her pants. He inserted his left fingers into the victim’s vagina whilst stroking her. After the act, the victim picked a rag to wipe her vagina and the complainant caught them in the act. He 9 denied inserting his penis into the victim’s vagina and states that that was the only day he had done that to the victim. The accused person in his defence testified that when he entered the room, three people were sitting on the bed. After handing over the paint, the complainant told him that she would pay him later. He later went to the room to watch television and she told him that she was going to bath. When she finished bathing and entered the room, she stated that she saw the victim standing behind him close to the bed but he did not see the victim. The complainant told him that she peeped through the door and saw the victim at where she had been dressing. The accused person denied having had sexual intercourse with the victim and during cross-examination was insistent that he did not have sexual intercourse with the alleged victim. The statement of the accused person in his investigation caution statement Exhibit “D”, that he only inserted her fingers into the victim’s vagina and stroked her vagina is inconsistent with his testimony on oath that he did not have any sexual encounter with the victim. In the case of Gyabaah v. The Republic [1984-86] 2 GLR 461, the court held in its holding 2 that: “the law was that a witness whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence could not be regarded as being of any importance in the light of his previous contradictory statement unless he was able to give a reasonable explanation for the contradiction.” The accused person did not give any reasonable explanation as to his inconsistent statement and therefore, his testimony on oath on the issue is not worthy of credit. The medical report confirms penetrative sex and not mere insertion of fingers into the victim’s vagina. The victim positively identified the accused person as the one and no 10 other person who had sexual intercourse with her. The complainant also saw the victim cleaning her vagina with a rag and the accused person too zipping up his trousers. On the totality of the evidence led by the prosecution and the defence put up by the accused person, I find that it was the accused person and no other person who had sexual intercourse with the victim. I therefore hold that the prosecution proved their case beyond reasonable doubt that the accused person had sexual intercourse with the victim who was below 16 years at the time of the incident. Therefore, I pronounce the accused person guilty of the charge of defilement. Accordingly, I convict him of same. COUNT 1: The accused person is charged with assault contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29). The particulars of offence state that on 17th May, 2024, at Bankuman, Newtown, the accused person strangled Caroline Mamley Kumah aged 11, with his hands whilst having sexual intercourse with her. Section 84 provides that a person who unlawfully assaults another person commits a misdemeanour. Section 85 of Act 29 provides for three types of assault. These are; i. assault and battery, ii. assault without actual battery and iii. Imprisonment. Section 86 (1) of Act 29 defines what constitutes assault and battery in the following terms; “A person makes an assault and battery on another person, if without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person.” To succeed, the prosecution must establish the following essential elements; 11 a. That the accused person forcibly touched another person; b. That the forcible touch was without the consent of that person; c. That the intention was to cause pain, fear, or annoyance to the other person or to excite the other person to anger. For purposes of assault and battery, Section 86 (2) (c) of Act 29 provides that “the slightest actual touch suffices for an assault and a battery, if the intention is an intention as required by the section.” The victim testified that the accused person before having sexual intercourse with her strangled her neck and asked her to lay on the mattress and inserted his penis into her vagina. The victim was insistent that the accused person strangled her and used his nail to scratch her neck leading to the bruises on her neck. The accused person vehemently denied but admits that he was left alone with the victim in the room whilst watching television. The medical corroborates the victim’s assertion and indicates that there was a single bruise on the right side of her neck measuring about 0.5cm and multiple bruises on her arm and thigh. On the totality of the evidence led by the prosecution and the defence put up by the accused person, I find that the accused person forcibly touched the body of the victim with intent to cause her pain and to instil fear in her to overcome her resistance to the sexual assault. I therefore pronounce the accused person guilty of the charge of assault and accordingly convict him of same. SENTENCING The principle of law is that sentencing is discretionary and like all discretionary powers, must be exercised within the limits imposed by law for that particular offence. In the case of Ocloo v. The Republic [2014] 174 C.A, referenced at page 569 of the book Criminal Prosecution in Ghana, Practice and Procedure by Daniel Korang, the Court held that: 12 “The general rule is that, sentencing is at the discretion of the court as long as it falls within the statutory limit imposed by law. When the discretionary power is conferred on a person, he is enjoined by Article 296 of the 1992 Constitution to exercise same in a fair and candid manner, in accordance with due process, and devoid of any bias, arbitrariness or personal dislike” From decided cases, the factors a court must take into consideration include the seriousness of the offence, the revulsion felt by law-abiding citizens for the particular crime, the prevalence of the crime, a sudden increase in the incidence of that particular crime, and mitigating and aggravating factors. In sentencing the convict, the court takes into consideration the fact that he is a first- time offender and the convict’s plea in mitigation of sentence put forth by his Counsel, his plea that he is married with two daughters. Per Article 14 (6) of the 1992 Constitution, time spent in custody pending trial is considered. The aggravating factors the court considers are the seriousness of the offence of defilement, which attracts a minimum punishment of 7 years imprisonment and a maximum punishment of 25 years imprisonment. The court further considers the age of the victim (11 years) relative to the age of the convict (34 years). The court takes into consideration the physical assault and bruises on the body of victim which show the violent nature of the defilement. The court has heard the complainant on behalf of the child and she informs the court that the child has been suffering from persistent vaginal discharge which she has not been able to send her to the hospital due to financial constraints. Although no medical report on the current condition of the victim was produced during the pre-sentencing hearing, the court acknowledges the impact of early sex on the well-being of children. There is a need to impose a deterrent sentence 13 to deter the convict himself from future acts and other like-minded persons from violating the chastity of children including the two daughters of the convict. I therefore sentence the convict as follows; Count 1: The convict shall serve a term of imprisonment of Eighteen (18) months in hard labour. Count 2: The convict shall serve a term of Seventeen (17) years imprisonment in hard labour (IHL). The sentences shall run currently. Consequential Order Psychological counselling is recommended for the child victim. The prosecution is ordered to send the victim to the hospital for immediate medical attention based on the submissions made by the complainant. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 14