REPUBLIC VRS. OTUMFUO (CC/72/24) [2025] GHACC 31 (11 March 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON TUESDAY, THE 11TH DAY OF MARCH, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH( HIGH COURT JUDGE) SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: CC/72/24 THE REPUBLIC VRS: TETTEH OTUMFUO ACCUSED PERSON PRESENT ASP BIMATU MUSAH FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS The accused person was charged and arraigned before this court on a charge of defilement contrary to Section 101(2) of the Criminal Offences Act 1960 (Act 29). The prosecution alleges that the complainant, Lucy Narh is a trader and resident of Kpone and the aunt of the victim, Blessing Nyamedor aged 11 years. The victim has been living with the complainant since February, 2024. The accused person aged 75 years, is a fisherman and resides at Kpone. The victim in April 2024, was sent by the complainant to go and buy some items. The prosecution alleges that on her return home, the accused person lured the victim into his room and had sexual intercourse with her, after which he warned her not to disclose it to anyone or else she would die. The prosecution further alleges that the accused person has had sexual intercourse with the victim several times on different occasions in his room. According to the prosecution, on 26th April, 2024 at about 5:30 pm, the complainant sent the victim to 1 buy some pepper and onions. The victim stayed some hours before she returned home. When the complainant questioned her, she replied that whilst she was returning home, the accused person lured her into his room again and forcibly had sexual intercourse with her and warned her not to disclose it to anyone or else he would kill her. A formal complaint was made to the police, and a medical report form was issued to the complainant to send the victim to the hospital for medical examination and report. The accused person was arrested and in his caution statement, denied having sexual intercourse with the victim. After investigation, the accused person was charged with the offence and arraigned before this honourable court. THE PLEA The accused person pleaded not guilty to the charge after the charge had been read and explained to him in the Dangbe language. The prosecution then assumed the burden to prove the guilt of the accused person beyond reasonable doubt. The case proceeded to trial and the prosecution called five witnesses and tendered in evidence the following exhibits; Exhibit “A’: Police Medical Report form Exhibit ‘B”: Birth Certificate of the victim. Exhibit ‘C”: Charge Statement of the accused person Exhibit “D” series: Photographs of the alleged scene of crime Exhibit “E’: Caution statement of the accused person. Exhibit “F”: Medical report on the accused person from the Police Hospital. 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 2 case of Commissioner of Police v. Isaac Antwi [1961] GLR 408 at page 412, the court held as follows; “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” 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 and 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 3 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 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 ingredient 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 lacks the capacity to 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). 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. Section 122(1) and (2) of the Children’s Act, 1998 (Act 560) on the determination of the age of a child respectively provides as follows; “(1) In the absence of a birth certificate or a baptismal certificate, a certificate signed by a medical officer as to the age of a child below eighteen years of age shall be evidence of that age before a family tribunal without proof of signature unless the Court directs otherwise.” 4 “(3) A statutory declaration issued and certified by the High Court or a person authorised by law to authenticate the document as to the age of a child on an application by a parent or guardian of the child, is evidence of the age of that child.” In the case of Kwesi Donkor v. The Republic [Suit No.42/2017) delivered on 10th May, 2019, the Ho High Court presided over by Justice Eric Baah stated as follows: “The legal proposition of establishing the age of a prosecutrix beyond reasonable doubt does not presuppose proof only by documents such as birth or baptismal certificates. The age of a prosecutrix in a rape or defilement case can be established by (oral) testimony, by documents in the form of birth certificate, baptismal certificate, weighing card, school records or by medical examination (ossification). None of the above methods is foolproof. For instance, documents that Mr. Tameklo laid so much emphasis on are created with information from somebody. Oral testimony may not be accurate, and scientific tests including wrist MRI test or dental scans may not accurately capture the age of the subject.” In the instant case, to prove the age of the alleged victim, the prosecution tendered in evidence the birth certificate of the child admitted and marked as Exhibit “B”, showing that the victim was born on 17th November 2012. Meaning, at the time the incident is alleged to have occurred, the victim was aged 11 years, which is within the statutory age limit for defilement. The age of the victim was never challenged by the accused person. I therefore find that the victim was 11 years old at the time the incident is alleged to have occurred. Secondly, the prosecution must prove that someone had natural or unnatural carnal knowledge of the child 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 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, Blessing Nyamedor, the victim herein testified that in early April 2024, the complainant sent her to buy pepper. On her return home, the accused person asked her to enter his room which she did. The accused person quickly pushed her down on his bed and rushed to lock the door. When she asked the accused person about what he was about to do, he asked her to keep quiet. The accused person then undressed himself leaving only his boxer shorts on him. The accused person then instructed her to remove her dress or else he would kill her so she did. The accused person removed her pants halfway, held her hands at her back, removed his penis and had sexual intercourse with her. Afterwards, he opened the door asked her to go home and warned her not to disclose it to anyone else she would die. According to the victim, the accused person had had sexual intercourse with her on several occasions in his room. She further testified that on 26th April, 2024, the complainant sent her to buy pepper and onion and on her return home, the accused person lured her into his room again, ordered her to remove her dress and pants which she did and he also removed all his clothing and forcibly had sexual intercourse with her. When she went home and the complainant questioned her on why she stayed so long, she informed her that the accused person lured her into his room and forcibly had sexual intercourse with her. She went with the complainant to the police station and the complainant was issued with a police medical report form and sent her to the hospital for examination. The victim, under intense cross-examination by the accused person, the following exchanges took place; 6 Q: I am putting it to you that I never had sexual intercourse with you. A: My Lord, it is not true. I have witnesses to that effect. Q: Were you not the one who met me on my way home and offered to take my load, but I declined and asked you to go home, and yet you refused? A: No My Lord. Q: I am putting it to you that I, Otumfuor, never called you into my room to have sexual intercourse with you. A: My Lord, he called me. Q: I want to ask victim is my room by the roadside or it is in the middle of the house? A: My Lord, it is by the roadside. Q: I put it to you that my room is not by the roadside. It is in the middle of the house. A: My Lord I am being truthful to the court. I have witnesses to testify. Q: I am putting it to you that I never had sexual intercourse with you A: I insist that you have had sexual intercourse with me. Q: At the time of the said incident I had had problems with my manhood for 3 months. A: My Lord it is not true. Q: I have diabetes and I am not sexually aroused around women. A: My Lord, accused has had sexual intercourse with a lot of children in the neighbourhood. Whenever the police comes for him he runs away. Q: I am putting it to you that if I was really doing this why do I communicate with the police always and yet they never arrest me? 7 A: My Lord, when he used to work as a gateman or watchman in my school, he had sexual intercourse with a lot of children, including me. me. Q: I am putting it to you that what you just told the court is not true. A: My Lord it is true. Q: If indeed I was sleeping with the pupils of the said school, why did the parents of the said pupils not arrest me? A: Whenever the police comes to arrest him, then he runs; that is why the school sacked him. Q: I am putting it to you that what you are saying is not true A: My Lord, it is true. Q: I am putting it to you that I do not know your panties. A: My Lord, the accused person knows. Q: I am putting it to you that I have never had sexual intercourse with you. A: My Lord he has had sexual intercourse with me. The second prosecution witness, Atteh Sromani, a footballer and resident of Kpone, testified that the victim is his niece on 26th April 2024, at about 5:30 p.m. whilst at home, the victim who by then had returned from school complained of severe abdominal pains. He questioned her about what was wrong and she confirmed that the accused person had been luring her into his room and forcibly having sexual intercourse with her on several occasions and warned her not to disclose it to anyone else he would kill her. After that, he went with the complainant and the victim to the Police Station to lodge a complaint and was issued a Police Medical report form. At the hospital, the doctor informed him that the victim had so much sperm in her abdomen. 8 The third prosecution witness, D/PW/C/Inspector Grace Quarshie (Investigator), stationed at the Community 25 District DOVVSU CID, was assigned to investigate on 29th May, 2024. She states that she received an extract of occurrence from the Kpone Police Station with the allegation that the accused person had defiled the 11-year-old victim. According to her, the first step was to issue a police medical report form to the complainant, instructing her to take the victim to a hospital for medical examination. The form was later returned to the police station, duly endorsed by a medical doctor confirming that the victim had been sexually assaulted. She then proceeded to take statements from the witnesses. Additionally, she requested and obtained the victim’s birth certificate to verify her age. She also obtained a caution statement from the accused person. In his defence, the accused person denied the allegations, claiming that on 29th April, 2024, he was returning from work with a wheelbarrow when the victim approached him and offered to assist in pushing it to his house. He maintained that this was the only interaction he had with the victim. As part of her investigation, PW3 visited the alleged crime scene with the complainant, the victim and the accused. During the visit, the victim identified the wooden structure where the accused had allegedly lured her into and forcibly had sexual intercourse with her on several occasions. Based on that, the accused person was charged and arraigned before the court. The third prosecution witness, under cross-examination by the accused person, the following exchanges took place; Q: I am putting it to you that it is not true that I had sexual intercourse with the victim. A: No My Lord. Q: What evidence do you have to prove to the court that I had sexual intercourse with the victim? A: My Lord through the medical form that I received 9 Q: I am putting it to you that I did not touch the victim. A: My Lord, in the medical form, the doctor indicates in the report that he had sexual intercourse. The victim identified him as the one who had sexual intercourse with her. The fourth prosecution witness, the medical officer who prepared Exhibit “A”, Dr. Elvis Azumah, testified and tendered in evidence the medical report admitted and marked as Exhibit “A”. The report was issued on the same day the incident is alleged to have occurred, 26th April, 2024, but there is no indication as to the date the doctor examined the alleged victim. According to his testimony, during the examination of the external genitalia and the vagina, there was no hymen and there was no blood seen. He used a speculum, a dvice which dilates the vagina wall of the cervix and observed no hymen or blood but there was semen in the vagina seen on the speculum, which indicated sexual activity. He further stated that the victim told him that a man of about 70 years had had sexual intercourse with her about 10 times and threatened her with death if she disclosed it to anyone. In cross-examining the fourth prosecution witness, the accused person suggested that he is diabetic and could not have had sexual intercourse with the victim. The medical officer testified as follows under cross-examination; Q: I am putting it to you that I never had sexual intercourse with the victim. A: Then unless the victim is saying otherwise. Secondly, diabetes can cause microvascular complications which can affect the vessel supplying sperms to the penis. And we see them at our facility but this situation does not invalidate the fact that one cannot have sex or have an erection. Q: I am putting it to you that my penis is weak and I cannot have sexual intercourse. A: My Lord like I said, based on the vagina examination there was an amount of semen in the vagina. 10 Q: I am putting it to you that anytime I come back from work I am always tired and I feel weak. Due to that I cannot have sexual intercourse with anyone and what they are alleging is not true. A: My Lord, whether the victim is stating otherwise I do not know but per my examination that was what I found out. Q: I am putting it to you that if the victim is claiming that someone had sexual intercourse with her, it may be a different person and not me. A: My Lord when taking my history, I questioned the victim and she emphatically stated that it was done by a 70 years old man. She was there with her aunty and the brother. Q: I am putting it to you that the victim is not being truthful because I did not have sexual intercourse with her. A: My Lord for that, my examination findings will not state the exact person who had sexual intercourse with the victim. Q: I am putting it to you that I am not the one who had sexual intercourse with the victim. A: My Lord for that, it is not related to my findings. The report further confirmed that there was copious amount of semen in the victim’s vagina. From the totality of the evidence led by the prosecution, I find that someone had sexual intercourse with the victim and that the victim, aged 11 years at the time the incident is alleged to have occurred, is not a virgin. Lastly, the prosecution must prove that it was the accused person and no other person who had sexual intercourse with the victim. The victim identified the accused person as the one and no other person who had sexual intercourse with her. The accused person, in cross-examining the prosecution witness, maintained that he is 11 diabetic and cannot have sexual intercourse. This assertion was debunked by PW4, the medical expert who stated that diabetes per se does not mean that a man cannot have sexual intercourse. When the accused person insisted that he is diabetic and did not have erections, the court referred him to the Police Hospital for examination. The fifth prosecution witness, C/Supt. Dr. Nana Kwame Appiah Nkansah of the Police Hospital testified and tendered his report in evidence as Exhibit “F”. According to his report, a genito-urinary examination revealed a normal-sized penis about 10 cm in length. He had only the right testis in the scrotum. He says the accused person informed him that the left testis was destroyed from an infection he had in his childhood but was able to father eight children after the infection. The report further states that the right testis was ovoid with a normal volume of 10 ml. He had no hernia or varicocele. According to the report, the physical examination is essentially normal for the average man to be able to have sexual intercourse. It is however not confirmatory since the physiological function is also needed, but there was no erectiometer device at the facility to determine the physiological function. Thus, they cannot conclusively confirm if he is incapable of having sexual intercourse or not. The accused person in his defence denied having sexual intercourse with the victim. The accused person testified that he is a fisherman and that on the day of the alleged incident, he returned from fishing around 7:30 pm. When he got to Kpone District junction, he met a certain girl who told him that he looked tired and would want to assist him with his wheelbarrow to his house. He told her that he was close to his house and that she should not bother. He states that he has a problem with his knee, so when he was about to move the wheelbarrow, the girl tried to snatch the wheelbarrow from him because of her intention. In the process, she pushed him aside, took over the wheelbarrow, and took it to the house. When they got to the house, she asked him for money and he told her he did not have money. Five days later, he was told the matter had been reported at the police station that he had had sexual intercourse with the victim, which he vehemently denied. 12 The accused person who denied knowing the victim, testified under cross-examination by the prosecution that the allegation is a fabrication, instigated by the mother of the victim since he reported a case of theft against her whilst they both worked in the school where he served as a security man. According to his testimony, he did not know the victim because she was not staying with her mother. Under further cross-examination of the accused person by the prosecution, the following exchanges took place; Q: In your evidence before this court you mentioned that the victim snatched the wheelbarrow from you because of the intention she had. Do you still stand by that? A: Yes My Lady. She snatched the wheelbarrow from me because of the issues I had with my leg. Q: Do you want this court to believe that your claim that the victim had an intention was as a result of your leg problem? A: My Lady because the victim intended to put me in trouble that is why she did what she did by snatching the wheelbarrow from me. Q: You will agree with me that you went with the victim to your house with the wheelbarrow. A: Yes My Lady she snatched the wheelbarrow from me and pushed it to the house. Q: In your caution statement to the police you said she asked you for a broom to sweep your room is that correct? A: Yes My Lady it was in the evening and she asked me to give her broom to sweep my room. I told her that I do not have a broom. Q: You will also agree with me that per your statement to the police you stated that, that was when you drove the victim away from your house? A: Yes My Lady. I cannot even recognise the victim when I see her. 13 Q: I am putting it to you that in your evidence before the court that the victim asked for money in your house, the reason you drove her out is not true. A: My Lady what I said is the truth. Q: I put it to you that you pulled the victim into your room A: That is not correct. I have an issue with my legs and there was no way I can pull the victim into my room. Q: I also put it to you that you held her panties with one hand and pulled her with the other hand. A: That is not correct. If they ask me of the pant she was wearing I cannot tell. Q: I also put it to you that you inserted your penis into the victim’s vagina. A: That is not true. I did not insert my penis into her vagina. Q: The victim was sent to the hospital after a complaint was lodged at the police station. A: My Lady I did not insert my penis into the vagina. The accused person, in his investigation caution statement, states that on the day of the alleged incident, he was returning from fishing with his fishing net in a wheelbarrow and the victim offered to assist him push the wheelbarrow to his house. When they got to the room, the victim offered to sweep the room for him and requested for a broom, but he told her that he did not have a broom and asked her to go home. The accused person denied having sexual intercourse with the victim. The accused person in his testimony on oath and in his investigation caution statement, did not raise the issue of his inability to have sexual intercourse. The accused person 14 also did not present any medical report indicating that his ability to have sexual intercourse is in any way impaired. The only impairment identified in Exhibit “F” is the fact that he has only one testis in the scrotum, which he informed the doctors happened as a result of childhood infection and he has gone on to father 8 children, which shows that he is sexually capable even with one testis. Although the medical report finding copious amount of semen in the victim’s vagina at the time of examination was not further analysed to link the accused person to it, it confirms the account of the victim that someone had sexual intercourse with her. The evidence also shows that the accused person had contact with the victim on the day of the alleged incident to the extent that he states that the victim wanted to sweep his room for him but he did not have a broom. 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. The evidence confirms the age of the victim as below the statutory age of 16 years at the time the incident is alleged to have occurred. The prosecution therefore succeeded in proving beyond reasonable doubt that the accused person had sexual intercourse with the victim, who was below 16 years at the time of the alleged incident. I therefore pronounce the accused person guilty of the charge and convict him accordingly. SENTENCING The factors a trial judge must consider in imposing the length of a sentence as stated in the case of Kwashie v. The Republic [1971] I GLR 488-496, are as follows: “(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the 15 sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.” In the case at bar, in sentencing the convict, the court takes into consideration both mitigating and aggravating factors. The court considers his plea in mitigating the sentence and the fact that, according to the prosecution, the convict is a first-time offender. The court also considers the fact that no physical injury or harm was inflicted on the victim. By Article 14(6) of the 1992 Constitution, time spent in custody whilst the accused person could not meet his bail conditions is considered. The court also as aggravating factors, the fact that defilement is a serious offence and the age difference between the convict and the victim at the time of the incident; the convict was aged 76 years and the victim was aged 11 years. The court also considers the need to impose a deterrent to preserve the chastity of young girls and to protect them from sexual predators. The court recognises the impact of early sex on the reproductive health of children and their psychological well-being. I therefore sentence the accused person to serve a term of Ten (10) years imprisonment without hard labour given the current physical condition of the convict. Consequential Order Psychological counselling is recommended for the victim. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 16