THE REPUBLIC V YEBOAH (B6/01/2022) [2024] GHACC 289 (28 October 2024)

1 INTHECIRCUITCOURT,JUASOHELDONMONDAY,THE28THDAYOFOCTOBER, 2024,BEFOREHERHONOURNANAASANTEWAAATTAKORAHCIRCUITCOURT JUDGE CASE: B6/01/2022 THEREPUBLIC VRS KWAMEYEBOAH JUDGEMENT: The accused person herein has been charged with one count of Defilement Contrary to Section 101oftheCriminalOffencesAct1960,Act29. The combined effect of the particulars of the offence is that on the 17th day of December 2021 at Obenimasi in the Ashanti Circuit and within the jurisdiction of this court the accused person defiledSylviaKissiwaaageeight(8)yearsold. The accused person pleaded not guilty so prosecution assumed the duty to prove his guilt. The fundamental rule in our criminal justicesystem as stated inthe 1992Constitution, Article 19 (2) (c)reads: “19(2)Apersonchargedwithacriminaloffenceshall- (c)bepresumedtobeinnocentuntilheisprovenorhaspleadedguilty.” 2 The Supreme Court also held on the presumption of innocence in the case of Okeke -Vrs- The Republic(2012)41MLRG53at61-62perAkuffoJSCasfollows: “ …. The citizen too is entitled to protection against the state and our law is that a person accusedofacrimeispresumedinnocentuntilhisguiltisprovedbeyondreasonabledoubt.” Theaboveclausemeansthattheaccusedpersonhereinchargedisnotguiltyoftheoffenceright from the time of his arrest including the time when he is arraigned before the court. It is only after the accused person himself has pleaded guilty that he may be pronounced guilty. However,iftheaccusedpersonpleadsnotguiltytotheoffence,hisaccuserhastoprovethathe is guilty. In the instant case, the accused person has pleaded guilty therefore the onus of provinghisguiltisontheprosecution. See:EssentialsofGhanaLawofEvidencebyJusticeBrobbeyatpages45-55. Sections 13 (1) and 22 of the Evidence Act, 1975 (NRCD 323) place the burden on the prosecution to prove his/her case beyond reasonable doubt. Section 13 (1) of the Evidence Act, 1975(NRCD323)provides: “13 (1) in any criminal action the burden of persuasion as to the commission by a party of a crimewhichisdirectlyinissuerequiresproofbeyondreasonabledoubt”. 3 Section22oftheEvidenceAct,1975(NRCD323)alsoprovides: “22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of thepresumedfact.” See: AbakahVrsTheRepublic(2010)28MLRG111CA Theprosecution has aduty toprovetheguiltof theaccused person chargedbeyond reasonable doubt. Theburdenofproofremains ontheprosecutionthroughoutthetrial,anditisonlyafter a prima facie case has been established that the accused person will be called upon to give his sideofthestory. See: AmarteyVrsTheState(1964)GLR256. Gligah&AnotherVrsTheRepublic(2010)SCGLR870. DexterJohnsonVrsTheRepublic(2011)SCGLR601. ThedictumofLordDenninginthecaseofMillerVrsMinisterofPensions(1974)2ALLER372 at373isrelevanttoourunderstandingofthephrase“beyondreasonabledoubt”. 4 AccordingtoLordDenning:“Itneednotreachcertainty,butitmustcarryahighdegreeofprobability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protectthecommunityifitadmittedfancifulpossibilitiestodeflectthecourseofjustice.” Inthesamecase,“proofbeyondreasonabledoubt”wasexplainedasfollows: “Iftheevidenceissostrongagainstamanastoleaveonlyaremotepossibilityinhisfavourwhichcanbe dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyondreasonabledoubt,butnothingshortofthatwillsuffice.” Seealso:TettehvrsTheRepublic(2001-2002)SCGLR854 DexterJohnsonvrs TheRepublic(2011)2SCGLR601 FrancisYirenkyivrsTheRepublic(2017-2020)1SCGLR433 Kingsley Amankwah (a.k.a. Spider) vrs The Republic Criminal Appeal No. J3/04/2019 deliveredonthe21stdayofJuly2021 Thisdictumemphasizesthatproofbeyondreasonabledoubtdoesnotmeanproofbeyondevery shadowofdoubtorprooftothehilt. In Abdulai Fuseini vrs The Republic Criminal Appeal No. J3/02/2016 6th June, 2018, the Supreme Court reiterated and affirmed the basic philosophical principles underpinning criminalprosecutioninourcourtsasfollows; 5 “In criminal trials, the burden of proof against an accused person is on the prosecution. The standardofproof isproof beyondreasonabledoubt.Proofbeyondreasonabledoubtactually meansproofoftheessentialingredientsoftheoffencechargedandnotmathematicalproof”. It is the duty of the prosecution to prove each and every ingredient of the offence, which is a precondition to securing conviction; unless the same statute places a particular burden on the accused person. The accused person is not under any obligation to prove his innocence. It is onlywhenthedefenceisnotreasonableprobablethattheaccusedpersonwouldbeconvicted. In C.O.P Vrs Antwi (1961) GLR 408 SC it was held that the accused is not required to prove anything. All that is required of him is to raise reasonable doubt as to guilt. The fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shiftedevenslightly. The fact that the prosecution has the burden to prove the case beyond reasonable doubt does not change according to the status or disposition of either the accused person or the complainant involved neither do they change according to the charges preferred nor the public perception,concernorreactioninrespectoftheaccusedpersoninquestion. This principle was pronounced by Viscount Sankey in the case of Woolmington Vrs D.P.P (1935)AC462at481-482inthefollowingwords: 6 “No matter what the charges or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of our common law of England and no attempt to whittle it downcanbeentertained.” The import of all the above authorities, statutes and case law is that, it is the prosecution that is to prove the guilt of the accused person. The accused person is not to prove his innocence. In fact,heshouldnotevenshow up his hands until the needarises. All thatthe accusedpersonis requiredtodowheninvitedtoopenhisdefenceistoraisereasonabledoubtsregardinghisguilt. It is only when the defence raised by the accused person is not one that can exonerate him that hewouldbeconvicted. See:AtsuVrsTheRepublic(1968)GLR176CA. TsatsuTsikatavTheRepublic(2003-2004)SCGLR1068. Proofbytheprosecutioncanbedirectorindirect. It isdirectwhenanaccusedpersonis caught intheactor has confessedto thecommission of thecrime. Thus,wherean accusedperson was not seen committing the offence, his guilt can be proved by inference from surrounding circumstancesthatindeedtheaccusedpersoncommittedthesaidoffence.Thistypeofevidence derived from inferences from surrounding circumstances is referred to as Circumstantial Evidence. See:LoganVrsLavericke(2007-2008)SCGLR76. DexterJohnsonVrsTheRepublic(2011)2SCGLR601@605. 7 StateVrsAnaniFiadzo(1961)GLR416SC. KamilVrsTheRepublic(2010)30GMJ1CA. TamaklowVrsTheRepublic(2000)SCGLR1SC. BossoVrsTheRepublic(2009)SCGLR470. In Kingsley Amankwah(a.k.a. Spider) vrs The Republic supra,theSupremeCourtreferred to Frimpong @ Iboman vrs the Republic and held that where direct evidence was lacking, but there were bits and pieces of evidence connecting the appellant to his deep involvement in committing the offences with which he had been charged, the court must not shy away from usingsuchstrongcircumstantialevidence. It must be noted that the standard of proof required in establishing whether or not there is a prima facie case against the accused person is not at the same level of proof beyond reasonable doubtasrequiredattheendofthecase. See:TsatsuTsikataVrsTheRepublic(2003-2004)SCGLR1068at1094-1095. It would therefore be wrong to presume the guilt of an accused person merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence fromwhichtheguiltof theaccusedmaybepresumedandwhichthereforecalls forexplanation bytheaccused. See:TheStateVrsSowah&Essel(1961)2GLR743at745 8 Prosecution in this case called four witnesses in support of his case. The first prosecution witness (PW1) was SylviaKisiwaathe victim herein,with Kofi Michaelas prosecution’s second witness (PW2), D/Sgt. Owusu Gyimah Victor Lloyd Kwesi the investigator in this case as prosecution’s third witness (PW3) and Dr Nana Kofi Asiedu as prosecution’s fourth witness (PW4).Prosecutionalsotenderedinevidencehisexhibitsforthecase. PW1, Sylvia Kisiwaa the victim herein testified that she is a primary three pupil of Obenimase Methodist Primary School and on the 17th day of December, 2021 at about 10:00pm, her father sent her and her younger sister to buy Akple but when they got to the place, it was sold out so she decided to buy it elsewhere leaving her younger sister behind to buy rice balls. After purchasing the food, she went back to get her sister but she was not around so she decided to return home. On her way, the accused who was standing in a dark corner held her hand and dragged her to a spot behind a house and inserted his fingers into her vagina and also had sexual intercourse with her. After the act, the accused person threatened her not to reveal it to anyoneor elseshewill die.Shegothomearound11:00pmbutshecould notinformherparents because they were asleep. The next morning being the 18th day of December 2021 at about 4:00am her father woke her up and she revealed what happened to her so he took her to the Police Station and reported the incident and the thereafter he sent her to the Konongo - OdumaseGovernmentHospitalwhereshewasexaminedandtreated. According to PW2, the Victim Sylvia Kissiwaa (PW1) is his biological daughter and she is 8years of age. On the 17th day of December 2021 at about 9:00pm he sent the victim and her 9 youngersisterbynameMargaret Donkorto buyfoodfrom aladycalledCeciliaata distanceof about 80 metres away from his house. About twenty minutes later, Margaret Donkor returned home and when she asked her about thevictim, she told him that theydid not get the Akpleat thefirstplacesothevictimwenttoanotherladycalledsisterAfiaAmankwaahtobuyitbutshe hadnot seen her since then. He searched for PW1 but could not find her so he went to bed and couldnotsleepthewholenight.Thenextmorningatabout4:00amhewokeupandwenttothe victim's room where he found her fast asleep. He woke her up and asked her where she went andshetoldhimthaton herwayhome,theaccusedheldherhandanddraggedhertotheback ofacertainhouseandputhisfingerinhervaginaandalsohadsexualintercoursewithher.She statedfurtherthataftertheact,theaccusedthreatenedhernottotellanyoneorelseshewilldie. HereportedthematteratthePoliceStationatPetransaandaPoliceMedicalFormwasissuedto him to take the victim to the Konongo Odumasi Government Hospital for examination which hedidandreturnedtheformdulyendorsedtothepolice. PW3, the investigator in this case testified that he visited the scene of crime and the victim showedtheexactplacetheincidenttookplaceinthepresenceofthetwofamilies.According to him, the scene is a path between the house of the accused person's wife and another house. Upon interrogation at the scene, the accused person denied having carnal knowledge of the victim.Photographsofthesceneof crimeweretakenandanInvestigationCautionedStatement wastakenfromtheaccused.Theaccusedwaschargedandarraigned. Dr. Nana Kofi Asiedu (PW4) is a medical officer at the Asante Akyem Central Municipal Hospital and according to him upon examination of the victim he found that her genital organ 10 is a normal one which had a reddened vulva with multiple bruises, her hymen was not intact andshehadafoul-smellingdischarge. The law is settled that at the close of the prosecution’s case the court is to find out if all the ingredients forming the offence have been proved or established by the prosecution. It is only whenthecourtissatisfiedthatall theingredients havebeenestablishedbytheprosecutionthat the court will proceed to invite the accused person to provide an explanation to avoid being convicted. See:KwabinaAmaningaliasTagor&anor. vrsTheRepublic(2009)23MLRG78CA. Aprimafaciecaseisestablishedagainstanaccusedwhentheevidenceledbytheprosecutionis on its face or first appearance without more one that could lead to conviction, if the accused fails to give reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if they hope to secure conviction of the person charged. A person is pronounced guilty onlywhentheevidenceledbytheprosecutioninrespectofthechargessatisfiesthestandardof proofrequiredbylawandthatisproofbeyondreasonabledoubt. The accused person herein has been charged with one count of Defilement Contrary to Section 101oftheCriminalOffencesAct1960,Act29. Section 101 (1) provides “For the purposes of this Act defilement is the natural or unnatural carnalknowledgeofanychildundersixteenyearsofage. 11 For prosecution to succeed in a charge in respect of defilement, the prosecution must establish beyondreasonabledoubtthefollowing: 1. Thatthechildwhoisthevictimofthecriminaloffenceislessthansixteenyearsofage. 2. Thatsomeonehadsexualintercoursewithher. 3.Thatthepersonistheaccusedperson. See: Eric Asante Vrs The Republic Criminal Appeal No. J3/7/2013 delivered on 26th January 2017. RepublicVrsYeboah(1968)GLR248-256. It was the evidence of PW1 that the accused forcibly had sexual intercourse with her when her fathersenthertobuyfoodandsheidentifiedthesceneofcrimetotheplace.AccordingtoPW2, victim’s father, he went in search of the victim when he realized that she had kept long in coming home and when she eventually arrived, she told him that the accused had sexual intercoursewithher.PW3theinvestigatorhereinstatedthathevisitedthescenewiththevictim and the accused and the victim pointed to the place where the incident occurred which is between the house of wife of the accused person and another house and he tendered in evidence a photograph of the scene. The accused however refused to cross examine the investigator. PW4, the medical doctor who examined the victim tendered in evidence the medical report on the victim. According to him upon examination, he found out that the vulva 12 of the victim had reddened with multiple bruises. The victim’s hymen was also not intact and she had an offensive foul-smelling discharge. The accused person refused to cross examine the medical doctor on his findings. From the foregoing, a prima facie case was established against theaccusedpersonandhewasaskedtoopenhisdefence. As I have stated earlier, all that the accused person is required to do when invited to open his defenceis to raisereasonabledoubt regardinghis guilt. Itis onlywhen the doubtraisedbythe accusedpersonisnotonethatcanexoneratehimthathewouldbeconvicted. According to theaccused person it was a gentleman called Taller who defiled the victim. Three days after the incident, the victim’s father, PW2 herein enquired from him if he knew the said gentleman and he said no so PW2 searched for the gentleman for some time but he could not find him and rather caused his arrest two weeks later. Under cross examination, he denied being arrested three days after the incident. Thus, at page 46 of the Record of Proceedings the underneathoccurred; Q.Iamputtingittoyouthatwhenthisincidenthappened,theincidenttookplaceonthe17thof December,2021andyouwerearrestedonthe20thofDecember,2021. A.Thatisnottrue. The Investigation Cautioned Statement of the accused is dated the 20th day of December 2021 andtheMedicalReportisdatedthe19thdayofDecember2021inwhichPW4hasalsoindicated that the incident took place on the 17th day of December 2021. Therefore, the accused persons 13 evidence that the victim’s father arrested him two weeks after the incident when he could not find the said Taller is not true and only calculated to deceive the court. I am convinced that If that was the case, the accused would have told the police by indicating it in his investigation cautionedstatementbeingaFortyFive(45)years oldman. was arrestedmakinghisdefencean afterthought. On the totality of the evidence, I am of the considered opinion that the defence put up by the accused is an afterthought. On the totality of the evidence, I find that the accused person laid ambush in the dark, dragged the victim into the darkness and forcibly had sexual intercourse withher.Theaccusedhasnotraiseddoubtsinthecasefortheprosecutionandheis thusfound guiltyoftheoffenceandaccordinglyconvicted. I have listened to the prayers of prosecution and the accused person. I take into consideration thattheaccusedisafirst-timeoffender.Ialsotakeintoconsiderationtheagedifferencebetween the accused and the victim which is thirty-seven (37) years and the medical states of the victim and sentence the accused to Seven (7) Years Imprisonment IHL. The accused is to compensate the victim in the sum of Ten Thousand Ghana Cedis (GHS 10,000.00) and in default Two Years ImprisonmentIHL. 14 SGD. NANAASANTEWAAATTAKORAH (CIRCUITCOURTJUDGE) COUNSEL C/INSP.DELAAMENUVORFORPROSECUTION ACCUSEDINPERSON REFERENCES OKEKEVRSTHEREPUBLIC(2012)41MLRG53 ABAKAHVRSTHEREPUBLIC(2010)MLRG111CA AMARTEYVRSTHESTATE(1964)GLR256. GLIGAH&ANOTHERVRSTHEREPUBLIC(2010SCGLR870. DEXTERJOHNSONVRSTHEREPUBLIC(2011)SCGLR601. MILLERVRSMINISTEROFPENSIONS(1974)2ALLER372 TETTEHVRSTHEREPUBLIC(2001-2002)SCGLR854 FRANCISYIRENKYIVRSTHEREPUBLIC(2017-2020)1SCGLR433 KINGSLEYAMANKWAH(A.K.A.SPIDER)VRSTHEREPUBLICCRIMINALAPPEALNO. J3/04/2019DELIVEREDONTHE21STDAYOFJULY2021 15 ABDULAI FUSEINI VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/02/2016 6TH JUNE, 2018 C.O.PVRSANTWI(1961)GLR408SC KWABINAAMANINGALIASTAGOR&ANOR. VRSTHEREPUBLIC(2009)23MLRG78 CA. WOOLMINGTONVRSD.P.P(1935)AC462 ATSUVRSTHEREPUBLIC(1968)GLR176CA. TSATSUTSIKATAVRSTHEREPUBLIC(2003-2004)SCGLR1068 LOGANVRSLAVERICKE(2007-2008)SCGLR76. STATEVRSANANIFIADZO(1961)GLR416SC. KAMILVRSTHEREPUBLIC(2010)30GMJ1CA. TAMAKLOWVRSTHEREPUBLIC(2000)SCGLR1SC. BOSSOVRSTHEREPUBLIC(2009)SCGLR470. THESTATEVRSSOWAH&ESSEL(1961)2GLR743 ERIC ASANTE VRS THE REPUBLIC CRIMINAL APPEAL NO. J3/7/2013 DELIVERED ON 26THJANUARY2017. REPUBLICVRSYEBOAH(1968)GLR248-256. BOOKS ESSENTIALSOFGHANALAWOFEVIDENCEBYJUSTICEBROBBEY CONTEMPORARYCRIMINALLAWINGHANABYJUSTICEDENNISDOMINICADJEI. 16