REPUBLIC VRS. QUARSHIE (D10/41/23) [2025] GHACC 22 (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, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: D10/41/23 THE REPUBLIC VRS: ISAAC TETTEH QUARSHIE ACCUSED PERSON PRESENT D.S.P. STELLA NASUMONG FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS The accused person was charged and arraigned before this court on 17th July, 2023 on a charge of indecent assault contrary to Section 103 of the Criminal Offences Act 1960 (Act 29). The brief facts narrated by the prosecution are that the complainant is the aunt of the victim, who is five years old and a resident of Kufour Station, Ashaiman. The accused person is a Lotto writer and operates a lotto kiosk near where the victim and her parents live and is well known to the victim. The prosecution alleges that on the day of the alleged incident, the victim was sent to buy waakye when she passed by the accused’s kiosk. The accused person called her inside and when she entered, he locked the door and closed the window. He then placed her on a chair, removed her underwear and inserted his fingers into her vagina. After that, he knelt in front of her and used his tongue to lick her vagina. Once he had finished, he put her underwear back on and warned her not to tell anyone. 1 According to the prosecution, a few days later the victim began experiencing pain in her vagina. When the complainant and the victim’s grandmother examined her, they observed that the entrance of her vagina was reddish. When questioned, she revealed her ordeal to them. On 19th June 2023, a report was made to the Ashaiman Domestic Violence and Victim Support Unit (DOVVSU), where a medical form was issued to the complainant to send the victim to the hospital for examination. She later returned with the endorsed medical form, which confirmed the offence. On 21st June 2023, the accused person was arrested and after investigations, he was charged with the offence and arraigned before the court. THE PLEA The accused person pleaded not guilty to the charge after it had been read and explained to him in the Krobo Language. The prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. To prove their case, the prosecution called four witnesses and tendered in evidence, the following exhibits; Exhibit “A”: Investigation Caution Statement of the accused person. Exhibit “B”: Charge statement of the accused person. Exhibit “C”: Police Medical Report Form THE BURDEN OF PROOF It is trite learning that a person charged with a criminal offence is presumed innocent until he has pleaded guilty or is proven guilty. See Article 19(2)(c) of the 1992 Constitution. This burden and standard of proof required of the prosecution in criminal cases is codified in the Evidence Act, 1975, NRCD 323, Section 11 (2) and 13 (1) which respectively provides as follows: — 2 "11(1) In a criminal action, the burden of producing evidence when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt." Section 13 (1) "13(1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt." Further, in the case of Tsatsu Tsikata v. The Republic [2003-2005] 1G.L.R. 296, the Supreme Court held in its holding 5 that: “… As provided in section 11(2) and (3) of the Evidence Decree, 1975 (NRCD 323) on the part of the prosecution, the burden of producing evidence required the production of sufficient evidence so that on all the evidence, a reasonable mind could find the existence of facts beyond reasonable doubt, whilst on the part of the accused person, the burden of producing evidence required him to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to his guilt.” Therefore, in the instant case, the prosecution who alleges the commission of a crime by the accused person bears the statutory duty to prove his guilt beyond reasonable doubt. When the accused person is called upon to open his defence, he does not have to prove his innocence but only to raise a reasonable doubt in the case of the prosecution. ANALYSIS Here, the accused person is charged with indecent assault contrary to Section 103(1) of the Criminal Offences Act, 1960(Act 29). Section 103(1) of Act 29, provides that a person who indecently assaults another commits a misdemeanour and is liable on 3 conviction to a term of imprisonment of not less than six months. Section 103(2) defines indecent assault in the following terms: “A person commits the criminal offence of indecent assault if, without the consent of the other person that person— (a) Forcibly makes a sexual bodily contact with the other person; or (b) Sexually violates the body of the other person, in a manner not amounting to carnal knowledge or unnatural carnal knowledge.” Thus, to succeed, the prosecution must prove the following essential ingredients of the offence; a. That the accused person forcibly made sexual bodily contact or sexually violated the body of another person; b. That the sexual bodily contact or sexual violation was without the consent of the other person c. That the sexual bodily contact or sexual violation did not amount to carnal knowledge or unnatural carnal knowledge. The first prosecution witness (the victim), Enam Charisbel testified that she knew the accused well as he lived near her grandmother’s house and frequently visited their bar to buy drinks. She recalled that on the day of the alleged incident, she was on her way to buy waakye when the accused person called her into his kiosk. Once inside, he locked the door and close the window, placed her on a chair, removed her underwear and inserted his fingers into her vagina. He then used his tongue to lick her vagina. After the act, he told her not to tell anyone, warning that he would no longer play with her if she did. The first prosecution witness, further testified that a few days later, when she began experiencing pain in her vaginal area, she told her aunt, Abigail Nyakonor, about what 4 had happened. Her aunt took her to the hospital and later they went to the police, where she identified the man who had licked her vagina as the accused person. Also in court, when the court asked the victim to orally state what had happened, the five-year-old girl testified as follows; Q: Can you tell the court what happened between you and the accused person? A: My Lord, you see that bench, he put his hand in my knee. BY COURT: (The child points at the vagina as the knee) A: My Lord, he licked my knee (vagina). He warned me that if I tell Grandma, he would not play with me again. So I told grandma that have you seen that ‘lotto’, he put his hand in my knee (child points to vagina again) and he licked it. I also told grandma that the accused person said he would not play with me again. Grandma did not say anything. The victim, under cross-examination by Counsel for the accused person, when asked to point to the knee, correctly identified her knee but in relation to the case, her reference to the knee, she always pointed at her vagina. Under further cross- examination, the child consistently maintained that the accused person used his finger to touch her knee and licked it. The following exchanges took place; Q: Show me your knee. A: She points at the knee. Q: So the lotto man put his finger on your knee? A: Yes My Lord. Q: At which place? A: In the lotto kiosk. 5 Q: Can you tell us how the lotto kiosk looks like? A: It is like a box. Q: Did you see anything inside the lotto kiosk? A: Yes My Lord I saw chalk. Q: You stated that the man in the box licked you? A: Yes My Lord. Q: Which part of your body did he lick? A: My Lord my knee (The child points to the vagina). Q: Enam which part of his body did he use in licking your knee? A: My Lord he used his tongue. Q: When he was trying to lick you, did his head enter through in between your leg? A: Yes My Lord. Q: And he put his finger inside the same place? A: Yes My Lord. Q: Did the finger go into your ‘kotodwe’ (vagina)? A: Yes My Lord. Q: Apart from his finger and tongue, did he use any other thing to touch any part of your body? A: No My Lord. Q: After licking and putting his finger there, did he tell you anything? A: Yes My Lord. Q: What did he tell you? 6 A: He said if I tell my grandmother, he will not play with me again. Q: Did you tell grandma? A: Yes My Lord. Q: What did grandma say? A: Grandma did not say anything. Q: Did she do any other thing? A: No My Lord. Q: Did you go to the hospital with your grandma? A: No My Lord. I went to the hospital with Auntie Abigail. Q: Did Auntie Abigail or grandma tell you any of these words you are saying before this court to say so here? A: I came to say it myself. The second prosecution witness, Detective Chief Inspector Joshua Tetteh of the Ashaiman Domestic Violence and Victim Support Unit (DOVVSU), testified that he was assigned to investigate the case. He stated that on 19th June 2023, the third prosecution witness reported that her five-year-old niece had told her that a neighbour a lotto writer, had lured her into his kiosk, inserted his fingers into her vagina and licked her. After taking statements from the complainant and the victim, he issued a medical form for the child to undergo an examination. When the third prosecution witness returned with the endorsed medical form, it confirmed the assault. On 20th June, 2023 he accompanied PW1 and PW3 to the scene of the alleged crime. The child led them to the accused person’s lotto kiosk, pointed him out, and identified him as the perpetrator. Inside the kiosk, she demonstrated how the accused had positioned a chair, placed her on it, locked the door and windows and carried out the assault. Following her identification, the accused was arrested and taken to the police station for further 7 investigation. Based on the evidence gathered, he was formally charged and arraigned before the court. During the cross-examination, the defence suggested that the officer was not present during the incident and relied solely on reports from the victim’s family. The defence suggested that the lotto kiosk was in a public area, making it unlikely that such an act could have happened unnoticed. The defence questioned the timing of the complaint and arrest, arguing that the delay weakened the credibility of the allegations. The officer admitted that he was not at the scene and could not confirm whether the kiosk was locked during the alleged incident. The third prosecution witness Abigail Korkor Nyakonor the complainant, testified that she resides at Ashaiman Zongo Laka with her mother, where they operate a chop bar near the Ashaiman main station popularly known as Kufuor Station. She explained that the victim, who is her five-year-old niece had come to live with them temporarily because her mother had recently given birth and was still in the hospital. She further testified that she was familiar with the accused person as he worked as a lotto writer and operated his business close to their chop bar. According to her testimony, on 13th June 2023, her niece approached her complaining that her vagina was hurting. Concerned, she questioned the child further to understand what had happened. The little girl then disclosed that a few days earlier, whilst she was on her way to buy waakye in the afternoon, the accused person had called her into his lotto kiosk. Once inside, he inserted his finger into her vagina and then used his tongue to lick her vagina. After the act, he warned her not to tell anyone. Shocked by the child’s revelation, she immediately checked her niece’s vaginal area and noticed redness at the entrance. Realising the gravity of the situation, she promptly reported the matter to the police. She was issued a medical form and took the child to the hospital for examination and treatment. After the medical examination was completed, she returned the endorsed medical form to the police. 8 Under cross-examination by the accused person, the following ensued; Q: Why did you not come to confront me when you heard that I inserted my finger into the victim’s vagina? A: I did not come to confront you because what you did was wrong. So I do not see the reason why I should come and confront you. Q: If you are alleging that what I did was wrong, why did you inform the police and not confront me? A: My Lord, because what he did was wrong that was why I went to inform the police. The fourth prosecution witness, Dr. Gerald Osei-Wusu of the Tema General Hospital, testified and identified the medical report admitted in evidence as Exhibit “C”. He testified that the patient was brought in with her grandmother to the consulting room with a complaint of vaginal pain of three days duration. On further history taken from the child, she told him she was called by a man in her neighbourhood to the man’s place of work. She said the man used his finger and touched her vagina. Also, the man used his tongue in the private part. The victim further mentioned that there were some bruises when the man used his hands to touch her vagina. According to the medical officer, on his physical examination the victim looked generally stable. He examined specifically her vagina and noticed a bruise on particularly her left vulva, which was tender but her hymen was intact and every other thing was also fine. He made a diagnosis of vulva bruise, secondary to an alleged sexual assault and managed appropriately. The accused person in his defence and testimony on oath, denied knowing the victim. According to him, he is a lotto writer and most of the children play around where he operates his business. He was informed by the victim’s sister that on the day she was sent to go and buy waakye, he sexually assaulted her. According to him, there are other food vendors around his shop which is by the roadside so if the child had entered the 9 shop, people would have seen her. Thus, the accused person denied the allegation levelled against him. According to him, during the two weeks after the alleged incident he went to work without anyone confronting him with the allegation. Under cross-examination by the prosecution, the prosecution attempted to establish that the accused person knew the victim and her family, despite his denial. It was suggested that the accused person used his familiarity with the victim to lure her into his kiosk. The prosecution challenged the accused person’s claim that he had never interacted with the victim before his arrest. The accused person was confronted with his statement to the police, which contradicted his claim that he did not know the victim. The prosecution insisted that the victim correctly identified the accused person as the perpetrator, despite his claims that he was being framed. The accused person, who denied knowing the victim in his investigation caution statement, admitted and marked as Exhibit “A”, stated that the victim was well known to him, including her parents and grandmother. The victim and other children normally come to him in his lotto kiosk but he did not put his fingers into her vagina and licked her as alleged. From the evidence led by the prosecution and the defence put up by the accused person, the 5 year old was unshaken in her testimony before the court that the accused person took her to his lotto kiosk and inserted his finger into her vagina and licked her vagina. The medical report, Exhibit “C”, confirms this bruise on the vulva of the victim and that the hymen was intact. The law does not require that the sexual bodily contact amount to carnal or unnatural carnal knowledge and the mere fact that the hymen was intact does not exculpate the accused person. The accused person, who stated in his evidence on oath that he does not know the victim, stated in his investigation caution statement (Exhibit “A”) that the victim is well known to him and that the victim and other children normally come to him in the Lotto Kiosk. Thus, the accused person denying on oath that he does not know the victim strains credulity. 10 On the totality of the evidence led by the prosecution and the defence put up by the accused person, I hold that the prosecution proved their case beyond reasonable doubt that the accused person made a sexual bodily contact with the victim aged 5 years old. I therefore pronounce the accused person guilty of the charge and convict him accordingly. SENTENCING It is trite learning that sentencing is at the discretion of the court, but this discretion is fettered by statutory limits and guidelines to ensure that sentencing is not at the whims and caprices of a judge. 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 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 sentencing the convict, the court takes into consideration his plea in mitigation, the fact that he is a first-time offender and married with four children. The court also takes into consideration the age of the victim at the time of the alleged incident, 5 years, relative to the age of the convict, i.e. 58 years. The court also considers the prescribed punishment for indecent assault, which is a minimum of 6 months imprisonment and a maximum of 3 years, being a misdemeanour. I therefore sentence the convict to serve a term of imprisonment of Twenty-Four (24) months in hard labour. 11 Consequential Order Psychological Counselling is recommended for the child. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 12