REPUBLIC VRS. TEYE (CC/B6/11/2023) [2024] GHACC 360 (8 October 2024)

IN THE CIRCUIT COURT ‘B’ KOFORIDUA IN THE EASTERN REGION OF THE REPUBLIC OF GHANA HELD ON TUESDAY THE 8TH DAY OF OCTOBER 2024 BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE_____________________________ Case No. CC/B6/11/2-23 THE REPUBLIC Versus. TERKPE TEYE —————————————————————————————————-------------- JUDGMENT —————————————————————————————————-------------- The accused person is charged with one count of defilement contrary to section 101(2) of the Criminal Offences Act 1960 (Act 29). It is alleged that the accused person on 25th day of October 2022, at Akumersu Afua-fie near Begoro in the Eastern Circuit and within the jurisdiction of this Court did carnally know one Rose Tetteh aged thirteen (13) years and a primary three (3) pupil. In support of the charge of defilement, prosecution alleged that the accused person on the day in issue, held the victim’s hand and amidst struggle, pulled her into his room, pushed her on the floor and forcibly had sexual intercourse with her when the victim went to the accused person’s house to fetch fire. That the victim’s mother who had gone to accused person’s house in search of the victim entered accused person’s room when she overheard the screaming of the victim from the room and met the accused person in the act (having sex with the victim) in his room. The victim’s mother is said to have held both the accused and the victim’s hands to come out and, in the process, the accused person slapped her. The incident was reported to the Bepoase police. An endorsed police medical form on the victim indicated “bruises seen on labia minora; hymen not intact”. According to the facts, the accused person escaped when Page 1 of 11 The Republic v. Terkpe Teye 08/10/24 the police went to arrest him on 5th December 2022. However, on 3rd February 2023 the complainant spotted him in the Asesewa township and was arrested by the Asesewa police and brought to Koforidua Domestic Violence and Victim Support Unit (DOVVSU). The accused person pleaded not guilty to the offence when he was arraigned before this court. Prosecution therefore assumed the burden to adduce sufficient evidence to prove the guilt of the accused person. It is imperative to note here that under our laws a person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty (see Article 19(2)(c) of the 1992 Constitution). Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that through out a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and the case of COP v Antwi [1961] GLR 408. However, beyond reasonable doubt does not mean beyond a shadow of doubt. The guilt of an accused person is sufficiently proved if the tribunal of fact is convinced that Page 2 of 11 The Republic v. Terkpe Teye 08/10/24 he committed the offence though there remains a lingering possibility that he is not guilty. See Oteng v The State [1966] GLR 352. This position of the law was earlier stated by Lord Denning MR in the English case of Miller vs. Minister of Pensions [1947] 1AER 372 at 373 when he opined thus: “Proof beyond reasonable does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful positions to deflect the course of justice. If the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed with the phrase ‘it is possible but not the least probable the case is proved beyond reasonable doubt’ but nothing short of that will suffice” What then is prosecution to prove in the instant case? Section 101 of The Criminal Offences Act, 1960 (Act 29) under which the accused person is charged provides that, “(1) For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age. (2) 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 that seven years and not more than twenty-five years”. Section 99 of Act 29/60 (supra) indicates what will constitute carnal knowledge or unnatural carnal knowledge and it provides as follows: “When on the 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 knowledge or unnatural carnal knowledge is complete on proof of the least degree of penetration.” Page 3 of 11 The Republic v. Terkpe Teye 08/10/24 In Gligah & Atiso v. The Republic [2010] SCGLR 870 the Supreme Court defined carnal knowledge as: “Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or how little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed.” So, for prosecution to prove the charge of defilement against the accused person herein, the evidence adduced must establish beyond a reasonable doubt that; • There has been a natural or unnatural carnal knowledge of a person (the victim herein) • The person in issue (victim) is below sixteen (16) years old. • That the accused person is the perpetrator of the act. That is, the accused person is the one who had the natural or unnatural canal knowledge of the victim. In the case of Agborvi Anthony Vs. The Republic [2023]DLHC 16787 the Court stated the ingredients of the offence of defilement as “1. That the victim was under the age of sixteen (16) years at the time of the act. 2. That someone has had natural or unnatural carnal knowledge of the victim her ein. 3. That it was the accused who had natural or unnatural carnal knowledge of the victim” In discharging the burden on the Prosecution, prosecution called four witnesses to prove its case. First was the victim’s father who is the complainant in this case (PW1), Page 4 of 11 The Republic v. Terkpe Teye 08/10/24 the victim (PW2), the victim’s mother (PW3) and lastly the investigator of the case (PW4). PW2 narrated how the accused person pushed her on the floor and forcibly had sex with her. That the incident happened when she went to the accused person’s compound to fetch fire around 12:00pm and met accused person sitting alone in front of his door. She said she was screaming in the process when PW3 entered the accused person’s room and found the accused person lying on top of her having sex with her. Her testimony was corroborated by PW3 her mother who testified that after waiting for her daughter who had gone to fetch fire from accused person’s compound, she decided to go and find out what was keeping her. She said on reaching there, she overheard the screaming of her daughter inside the accused person’s room, so she mastered courage and opened the accused person’s door and there, she saw the accused person on top of the victim having sexual intercourse with her on the floor. She said she pulled the two of them out and enquired from the accused person why he was having sex with a minor and the accused person slapped her. She then reported the matter to the victim’s father (PW1) through a phone call. PW1 on his part testified that PW3 called him around 12:00pm whilst he was at the market and reported the incident to him so when he returned to the village, he went to the accused person’s house to enquire about the incident but met his absence. He then took PW2 to the Bepoase police station to lodge a complaint. The investigator of the case PW4 in his testimony confirmed the narration by PW1, PW2 and PW3 and stated further that he took statements from the victim and her parents when the case was referred to him at the Regional DOVVSU, Koforidua. That on the 16th of February 2023, after the accused person’s arrest on 6th February 2023 at Asesewa he (PW4) visited Akumersu village with the victim who pointed out the accused person’s room to him. The accused person was then charged with the offence and arraigned before this Court to answer the charge. In support of prosecution’s case, prosecution tendered in evidence the following exhibits; Page 5 of 11 The Republic v. Terkpe Teye 08/10/24 Exhibit A being the pants allegedly worn by the victim and torn by the accused person on the day of the incident. Exhibit B being the endorsed police medical form signed by Dr. Martin Owusu Acheaw of the District Hospital, Begoro after his examination of the victim on 26th October 2022. Exhibit C being the investigation cautioned statement of the accused person dated 6th February 2023. Exhibit D being a photocopy of the weighing card of the victim (the cover page and personal information page) Exhibit E being the charged cautioned statement of the accused person dated 21st February 2023. At the close of prosecution’s case, the court found that a prima facie case had been made for the accused person to answer. Meaning the presumption of innocence of the accused person had been displaced or rebutted. Therefore, requiring him to adduce evidence not to prove his innocence but to raise a reasonable doubt in the evidence of the prosecution as to his guilt as discussed above. If the accused person is successful at this, it will lead to his acquittal. In Sowah v. Essel [1961] GLR (Pt II) 743 at page 747, the supreme Court held that “evidence for the prosecution merely displaces the presumption of innocence but the guilt of the accused is not put beyond reasonable doubt until the accused has given evidence”. The court therefore called upon him to open his defence in accordance with section 174 of The Criminal and Other Offences Procedure Act (Act 30). The accused person gave evidence by himself and called no other witness in his defence. In his defence, he denied ever having sex with the victim. According to him he had a misunderstanding and a fight with one Teku Teye with whom he had a land Page 6 of 11 The Republic v. Terkpe Teye 08/10/24 dispute. That after they had been separated, Rose Tetteh, the victim came to the house to fetch fire. Then Teku Teye left for Rose Tetteh’s house and before he could realize, Rose Tetteh’s mother was approaching his house with insults and upon enquiry, she said Teku Teye came to inform her that he the accused had pulled Rose into his room. According to the accused person when the victim was questioned, she replied that he (the accused person) had not done what Teku Teye had gone to tell them but later around 2pm, they returned and said the victim had confirmed the allegation. He stated further that carpenter Majid’s son, Tettey Wayo, Teku Tei and PW3 then took his phone and called the police to arrest him. This evidence of the accused person has been challenged by prosecution witnesses. According to the evidence of PW3, Teku Teye did not come and inform her of anything. That she followed up to accused person’s house to find out what had kept her daughter and found him on the victim having sex with her. That she saw it herself, Teku Tei did not tell her anything. That Teku Teye came there later from his farm and met them in the house after the accused person had allegedly slapped her (PW3). From the totality of the evidence adduced so far, it seems clear to me that the following matters are beyond dispute. That the victim Rose Tetteh was born on the 5th day of September 2009 (see exhibit D, the victim’s weighing card) meaning she was thirteen years at the date of the alleged incident and therefore below sixteen years as required by the law. Exhibit B, the police endorsed medical form on the victim signed by Dr. Martin Owusu Acheaw of the District Hospital, Begoro indicated that, “bruises seen on labia minora, hymen not intact” impression of defilement. This also confirms that there had been carnal knowledge (sexual penetration) of the victim. So the child of under sixteen years old has been sexually penetrated. Now the next critical question is who sexually penetrated the child in issue. This is the main Page 7 of 11 The Republic v. Terkpe Teye 08/10/24 contention before the court since the accused person has maintained throughout the trial that he is innocent of the charge levelled against him. All the prosecution witnesses claim that it was the accused person who had carnal knowledge of the victim. The victim testified that accused person pulled her into his room, pushed her on the floor and had sex with her. PW3, the victim’s mother in her evidence, corroborated the victims testimony when she testified that when she entered the accused person’s room she saw the accused person on her daughter in the act. It was held in Adu Boahene v. The Republic [1972] 1GLR 70 at page 73-74 “In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person who committed the offence” This case further held that “Where the identity of an accused person is in issue, there can be no better proof of his identity than the evidence of a witness who mounts the witness-box and swears that the man in the dock is the one he saw committing the offence, which is the subject-matter of the charge before the court” (emphasis supplied). This court cannot ignore the direct evidence by the victim and her mother PW2 who both testified that it was the accused person who had sexual intercourse with the victim. This direct evidence carries more weight than any other. In Republic v. Yeboah [1968] GLR 248 it was held that “the evidence of the victim on oath in law needed no corroboration but it was a prudent rule of practice to look for corroboration from some extraneous evidence which confirmed her evidence in some material particular implicating the accused. Apart from the fact that the evidence of a victim in a sexual offence must be corroborated there was the added factor that the victim was a young person of only nine years and the evidence of a young person must as a rule of prudence be well corroborated before being acted upon by the court. There was ample circumstantial evidence corroborating the testimony of the Page 8 of 11 The Republic v. Terkpe Teye 08/10/24 victim that the accused ravished her”. In the instant case, there is direct evidence by the victim’s mother corroborating the testimony of the victim I have carefully analyzed the defence put up by the accused person and I must say that I do not believe his evidence that he did not have sexual intercourse with the victim and that the charge against him is a fabrication against him by one Teku Tei. In one breath he alleged that he had a misunderstanding with Teku Tei when the victim came to his compound to fetch fire for which reason Teku Tei went and lied about him to PW3 that he had sex with PW2. In another breath, he testified that he had a misunderstanding with the victim’s mother PW3 that is why they have fabricated the case against him. And PW3 challenged this testimony of his saying that, she had no issue or quarrel with the accused person apart from the incident that has brought them before this Court. According to PW3, she used master Majid’s son’s phone to call PW1 to inform him of the incident she had witnessed and that it was never Teku Tei who called her to report the sexual intercourse to her as alleged by the accused person. I also do not find the accused person’s explanation that a year ago by this time on a Tuesday he had a misunderstanding with PW3 which led to the fabrication of the case against him reasonably probable because the accused person stated this during proceedings on 7th May 2024 so ‘a year ago by this time’ should be on or about the 7th May 2023, by which time the accused person was already standing trial before this Court and the incident in issue is said to have happened on the 25th October 2022. Finally, the accused person apart from denying the charge against him, has failed per his testimony before the Court to raise a reasonable doubt in the evidence of the prosecution witnesses to the effect that he was seen in the act having sexual intercourse with the 13year old victim in this case. Prosecution witnesses on the other hand have been consistent in their evidence before the Court that the accused person Page 9 of 11 The Republic v. Terkpe Teye 08/10/24 had sex with the victim on the 25th of October 2022. I therefore prefer their evidence to that of accused person. It is however worthy of note that “Exhibit B” (The medical report) also indicated that there had been consensual coitus in the last 72 hours with the date stated as 22nd October 2022. That will be about 3 days before the incident in issue. It did not however indicate whether this previous incident was with the same accused person or another person although it indicated that it was with a neighbour, a Krobo man. It is the considered view of the Court however that had this issue come up in the trial and same established that the accused person was not the perpetrator of the 22nd October 2022 consensual coitus, it will still not negate the evidence of the prosecution witnesses (PW1 and PW2) that the accused person was seen in the act, having sex with the victim in his room on the 25th day of October 2022 such as to raise a reasonable doubt. The supreme Court in Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068 held among others that the decision as to whether the prosecution’s case has been proved beyond a reasonable doubt or not should be made at the end of the entire trial. That is, after consideration of the case for both prosecution and the defence. On the totality of the evidence before the Court, this Court is of a considered view that prosecution has successfully discharged the burden placed on it by section 11 of Act 323 in proving the guilt of the accused person beyond reasonable doubt, the accused person having failed to raise a reasonable doubt in the evidence of the prosecution. The accused person is hereby found guilty of the offence of defilement contrary to section 101(2) of Act 29 and accordingly convicted of same. Page 10 of 11 The Republic v. Terkpe Teye 08/10/24 Sentence: Upon hearing accused person’s prayer for mitigation, and prosecution who indicated to the Court that the accused person is not known to the law, having considered the age difference between the accused person and the victim (that is 50 years as against 13 years) the victim being the younger aged, the circumstances under which the offence was committed, no remorse whatsoever shown by the convict, the fact that the accused person is a first time offender guided by the Ghana Sentencing Guidelines and the fact that the accused person has been in custody since January 2024, the accused person is hereby sentenced to nine (9) years imprisonment in hard labour (IHL). Accused person is informed of his right to appeal against both the sentence and the conviction. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE Page 11 of 11 The Republic v. Terkpe Teye 08/10/24