REPUBLIC VRS. YEBOAH (D10/8/23) [2025] GHACC 20 (11 February 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON TUESDAY, THE 11TH DAY OF FEBRUARY 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO: D10/8/23 THE REPUBLIC VRS: DESMOND YEBOAH ACCUSED PERSON PRESENT INSP. EMMANUEL ASANTE FOR PROSECUTION PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The accused person stood before this court burdened by the grave charge of defilement contrary to Section 101 of the Criminal Offences Act, 1960 (Act 29). The prosecution, with unwavering zeal, sought to etch upon the annals of this court a tale of wrongdoing, alleging that the accused person did on the fateful day of 20th August 2022, take advantage of a child whose tender age renders her incapable of legal consent. The heart of the matter as presented by the prosecution is that Frederick Tetteh is father of the alleged victim (Anita Tetteh) aged 15 at the time of the alleged incident. The accused person is a steel Bender aged 26, and they both reside at Kpone Bawaleshie near Dodowa. The prosecution alleges that on 20th August, 2022 at about 11:00 am, the complainant, accompanied by the victim lodged a complaint of defilement against the accused person. Police Medical Report Forms were issued to the complainant to send the victim to any Government Hospital for treatment and report back for further action. The investigation disclosed that the accused person saw the victim heading towards the bush within the neighbourhood to ease herself and followed 1 her. After the victim had finished attending to nature's call, the accused person lured her into an uncompleted building and had sexual intercourse with her. It was further detected that the 20th August 2022 incident was the third time the accused had had sexual intercourse with the victim and gave her money after the act. The Medical Report also confirmed penetrative sex and sexual intercourse on the date of examination and that the victim was sexually active. The accused person was arrested and in his investigation caution statement, admitted the offence. After investigations, he was charged 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 English language. The prosecution assumed the onerous burden to prove the guilt of the accused person beyond reasonable doubt. The prosecution called four witnesses and tendered in evidence the following exhibits; Exhibit “A”: Police Medical Report Form Exhibit “B”: National Health Insurance Card of the victim. Exhibit “C”: Investigation Caution Statement of the accused person Exhibit “D”: Photograph of a building Exhibit “E”: Charge Statement of the accused person Exhibit “R”: Rejected weighing card. 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 2 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” 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 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 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 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 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). 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 4 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, the prosecution tendered in evidence the National Health Insurance card of the alleged victim bearing the name Anita Teye indicating that she was born on 21st July, 2007, which means that at the time the incident is alleged to have occurred on 20th August, 2022, she was aged 15 years. The defence raised issues with the name on the National Insurance Card, but the first prosecution witness was insistent that that is the NHIS card of the victim, but she uses the name Anita Tetteh in school. 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. 5 The complainant, Fredrick Tetteh, the biological father of the victim, testified that on 20th August, 2022 at 11:20 am, his senior brother Joseph Tametey called him on his cell phone to inform him that the accused person had sexually assaulted the victim. When he got home, he asked the victim about what he had heard, and she confirmed to him that she had attended nature’s call, and the accused person followed her to where she was and lured her to an uncompleted building and had sexual intercourse with her. The victim added that she normally bends down, and the accused person stands behind her to penetrate her and that day was not the first time he had sexual intercourse with her. He reported the case to the Police and was issued with a Police medical form to send the victim to the hospital for examination and report back. He then returned the endorsed medical form to the investigator. The first prosecution witness, under intense cross-examination, testified that he was not present and did not witness the accused person having sexual intercourse with the victim. He stated that there is video evidence to that effect, but he did not tender the video of the accused person having sexual intercourse with the victim. He further testified that he did not know that the victim had multiple sexual partners, as the defence would want the court to believe. The second prosecution witness, Anita Tetteh, testified that she knows the accused person as a mason who lived in her vicinity. She states that the accused proposed love to her in January 2022, which she accepted and since then, he had been having sexual intercourse with her and on some occasions gave her GH₵5.00. She states that there was no place of convenience in her house, so she normally goes out to the nearby bush to ease herself. On 20th August 2022, at about 11:00 am, she was at home with her younger sister Juliet, when she was pressed with nature’s call. She headed to the nearby bush to ease herself. After that, the accused person came to the place and had sexual intercourse with her in an uncompleted building within the same vicinity. Someone saw them in the act and arrested the accused person whilst she ran to her uncle’s house 6 for fear of being beaten. She recounted her ordeal to her uncle’s daughter Comfort who told the victim’s uncle and he also called her father on the phone to inform him. She confirmed the incident to her father when he returned home and further told him that she normally bends down and the accused person stands behind her to penetrate her. Based on that, her father reported the case at the Police Station and sent her to the hospital to be medically examined. The victim under cross-examination by the accused person, denied being in a relationship with one “TT” and stated that her father used to go and work with “TT”. Under intense cross-examination of the second prosecution witness by the accused person, the following exchanges took place; Q: Did your father tell you the content of the medical report? A: My Lord, my father was instructed not to open the medical report so he also did not open it. Q: I put it to you that you are not telling the truth. You are the one who told the doctor that someone called “TT” had sex with you. A: Yes, My Lord. I mentioned the name of “TT” to the doctor and said that he had had sexual intercourse with me and gave me money. I did not tell the doctor to tell my father not to open the report. Q: I put it to you that you and your father want to extort money from me; that is why your father told you to say that I had sex with you on 3 occasions. It is not true. Tell the Court the truth. A: It is true. Q: If you told the doctor that “TT” has sex with you and gives you money, why are you telling the court it is not true? A: When we were in our former house, I used to have sex with “TT”. When we came to our current house, I no longer have sex with him. 7 Q: I put it to you that what you have said in court shows that I am not the one who defiled you but “TT”. A: Yes, My Lord. The accused person also had sex with me. The third prosecution witness, Dr. Kennedy Tettey Coffie Brightson of the Shai Osudoku District Hospital also testified. He tendered the medical report prepared by him, admitted and marked as Exhibit “A”. He stated that since the victim had cleaned and washed, there was no substance collected for further examination. According to him, he concludes that the vagina in question has had several penetrations and that is was not a fresh vagina. He further states that it is not his duty as a doctor to determine which penis entered the vagina and it is for the prosecution and the court to put bits and pieces together to arrive at that conclusion. According to him, with the patient's complaints, a broken hymen would not be enough to do justice in the case since the victim mentioned two names. From the history recorded by the doctor, the victim was initially introduced to sex by one TT, after which they had several sexual encounters and that presently, she has been having sexual intercourse with one Desmond and the recent one was when they were tailed and caught in the act. The report states that “vulva is normal, vaginal introitus is widely opened, hymen is torn and eroded partly. Vagina admitted two examining fingers freely. The finding was vaginal penetrative sexually active girl.” The fourth prosecution witness, PW/D/C/Inspr. Gladys Ankomah, the investigator stationed at Dodowa Domestic Violence and Victim Support Unit, testified that on the 20th of August, 2022 whilst on duty, the complainant accompanied by the victim, came to report that the accused person had sexual intercourse with his daughter Anita Tetteh, aged 15 years. She issued a police medical form to the complainant to send the victim to any government hospital for examination and treatment and return same. She stated that the complainant returned with an endorsed police medical report, which indicated 8 and confirmed that the accused person had sexual intercourse with the victim. On the 20th of August 2022, she indicates that the complainant, with the assistance of others, arrested the accused person to the Dodowa Police Station. She rearrested the accused person and detained him for further action. She took the investigation caution statement of the accused person in the presence of an independent witness named Raymond Tottimeh, admitted and marked as Exhibit “B.” The accused admitted to the offence. On the 23rd of August, 2022, she visited the scene of the crime in the company of the complainant, the victim and the accused person on enquiries. She states that at the scene, the victim pointed to an uncompleted building and demonstrated how the accused person lured her into the building and had sexual intercourse with her. The investigator took a photograph of the scene admitted and marked same as Exhibit “C”. She further requested for the victim’s birth records to ascertain her age, of which the complainant brought the victim’s weighing card and National Health Insurance Card, which confirmed the age of the victim as 15 years old. The investigator indicates that the victim added further in her statement, stating that, that was not the first time the accused had had sexual intercourse with her. She tendered as evidence the charge statement admitted and marked as Exhibit “E”. From the evidence led by the prosecution, it can be deduced that the victim is a sexually active girl and based on the evidence on record confirmed by the medical report, Exhibit “A”, it can be safely concluded that someone had sexual intercourse with the victim and that the prosecution succeeded in establishing the second ingredient of the charge beyond reasonable doubt. Lastly, the prosecution must prove that it was the accused person and no other person who had sexual intercourse with the victim. The identity of the perpetrator stood as the ultimate battleground upon which the fates of the accused person and the victim rested. The victim was emphatic that she started having sexual intercourse with someone named “TT” but was insistent that the accused person also had sexual 9 intercourse with her and that, that was not the first time the accused person had had sexual intercourse with her. The accused person, however, donned with the armour of denial, protecting his innocence and claiming that though he had encountered the victim, no illicit act of carnal knowledge had transpired. The accused person, in his investigation caution statement admitted and marked as Exhibit “C’, stated that the victim used to request money from him and he always gave her the money. The victim then told him that her former boyfriend used to demand sex from her before giving her money, but he has never had sexual intercourse with the victim because he sees her as a minor. On 20th August 2022, he was at home when the victim signalled him to follow her, which he obliged and met her in an uncompleted building where some masons were doing construction work. The victim asked for money and when he said that he did not have, she told him that she was not a virgin and that she wanted to have sex with him. He could not resist the temptation and he “played romance’ with her and she also played with his penis and he never penetrated. The masons saw them in the act and one arrested him and the victim ran away. The accused person repeated this statement in his charge statement, Exhibit “E” when he stated that he only fondled with her breast and the victim also played with his penis and that he never penetrated before the labourer caught them in the act. The accused person in his defence, testified that he knows the victim and the victim has been coming to him for money and sometimes as early as 5:00 am, which he sometimes gives her. According to him, in July 2022, he was passing when the victim called him again and while conversing with her, a mason saw the victim and asked her to go home. According to him later, the victim’s father caused his arrest and he was arrested by some guys who assaulted him in the process. The accused person, under cross-examination by the prosecution, denied having sexual intercourse with the victim and testified that he was only giving the victim money because of the good relationship that exists between himself and the father of the victim. 10 In cross-examining the 4th prosecution witness, the accused person was insistent that the medical doctor in his report stated that the victim told him that she was introduced to sex by one “TT” and that the victim was not a virgin. Indeed, the alleged victim, under cross-examination by Counsel for the accused person, did not mince words in admitting that one “TT” had sexual intercourse with her on several occasions but claimed that the accused person has also been having sexual intercourse with her. From the brief facts of the prosecution, the incident is alleged to have occurred on 20th August 2022, and the medical officer examined the victim on 22nd August 2022 at 1:30 pm but according to the doctor, there was no evidence of recent sexual activity though the victim was sexually active with the hymen torn and partly eroded, introitus widely opened and the vagina admits two fingers. The medical officer, under cross- examination by counsel for the accused person, the following exchanges took place; Q: Since the alleged incident took place less than 72 hours ago, was it possible for you to know if there was relevant sexual intercourse? A: Yes, My Lord. Q: Did you do such analysis? A: Yes, My Lord and that was my examination findings, which were clear that the patient is sexually active as to whether she had intercourse within 72 hours or not, there were no anatomical evidence of penetration which was evidence of multiple penetrations. Q: So you could not tell that within 72 hours, sexual intercourse had taken place? A: My Lord, that is clearly what my findings said that the patient is sexually active, but if I had cause to identify that there had been fresh sex, I would have written it black and white. Thus, the medical evidence does not suggest recent sexual activity to link the accused person to the crime charged. The prosecution claims that a mason caught the accused person red-handed having sexual intercourse with the victim, but this material witness was not called to give evidence to corroborate the account of the victim. The accused 11 person again strenuously put the age of the victim in issue stating that the name on the weighing card rejected by the court and the name on the National Identification card did not match the surname of the victim, since the victim is known in this court as Anita Tetteh and the name on the NHIS card is Anita Teye. The prosecution did not proffer any plausible explanation as to the discrepancies in the proof of the identity of the victim. The victim, in her testimony, spoke of encounters with one named ‘TT” alongside the accused, revealing a past of multiple sexual relations. Yet, the prosecution in its charge sought to singularly place the accused in the seat of guilt, a burden the prosecution bore but struggled to fully sustain. In the light of the evidence of the victim that she has been having sexual intercourse with one “TT’ and there being no evidence of recent sexual intercourse, I find that the prosecution failed to prove their case beyond reasonable doubt that it was the accused person and no other person who had sexual intercourse with the victim. Where doubt lingers, justice must err on the side of caution. I therefore find that the prosecution failed to prove beyond reasonable doubt that the accused person had sexual intercourse with the victim on 20th August 2022. This court therefore finds the accused, Desmond Yeboah not guilty of the charge of defilement. He is accordingly acquitted and discharged. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 12