REPUBLIC VRS AWAL (B7/16/2024) [2024] GHACC 275 (12 May 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 12TH DAY OF MAY 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B7/16/2024 THE REPUBLIC VRS ISSAH AWAL JUDGMENT INTRODUCTION On 16th February a Youngman aged 20 years and a tricycle rider in the municipality of Wa was arraigned before the court on one count of defilement. The charge is contrary to Section 101 (2) of the Criminal Offences Act, 1960 (Act 29) as Amended by the Criminal Offences (Amendment) Act, 1998, Act 554 Accused appeared to have admitted the offence but uttered words to wit ‘she is my girlfriend already’ and so the court recorded that to be a defense because if he is able to prove that the age of the victim is more than 16 years then the offence of defilement may not lie because he has likely defense. With this reasoning, the court made orders for disclosures and after all was complied with for a case management conference, prosecution set in motion the calling of four (4) prosecution witnesses. Summary of Facts 1 The summary of the facts of the case was that the victim a form two student of a basic school in the Wa municipality was on her way back from her father’s pharmacy shop in a community called Nakore on the 22/06/24 when she chanced upon accused then in charge of his commercial tricycle riding towards Wa township with his friend named Sherif on board it. That she joined and another passenger also added to the passengers and the rode into town where the third passenger alighted and she together with accused and his friend rode into Kabanye a community where accused lives and taken into the room of accused and there accused had unprotected sexual intercourse with her after which his friend also had his turn. Evidence of prosecution witnesses With the plea of not guilty, prosecution earlier in the case management conference planned calling four (4) prosecution witnesses to prove their case and beneath is a succinct account of each witness: Evidence of PW1 PW1 the father of the victim told the court he was informed by a station officer by name Peterson who told him his daughter was defiled by a commercial tricycle rider and so he was needed at the charge office and he proceeded to the central police station to see what had gone amidst. That the station he was briefed that his daughter joined a commercial tricycle and in the process was taken home by the rider and slept with. That he was given police medical forms and he swiftly took the victim to the Municipal Hospital where she was medically examined and a report signed off and delivered to the investigator on the case. 2 PW1 told the court he put his ears literally on the ground and gathered information which he shared with police and the accused was arrested in the very house he committed the offence when he was identified by the victim and he admitted to committing the offence together with his friend Sherriff who was on the run. Evidence of PW2 The victim Fadila Masahudu told the court she was now in form three in Kambali Islamic Junior High School in Wa. That on 22/6/23 at about 0700 hrs she left to her dad who operates a chemical shop in a community call Nakore and when she was returning in the evening she boarded a commercial tricycle ridden by accused person with another person on board. That she got to know that the person was not a passenger but merely accused friend who was accompanying him in his rounds. She told the court she was initially hesitant in joining the tricycle because the father had cautioned her not to board one that there was already a male passenger on board but seeing her hesitance the accused told her to feel free and sit. She said she did sit and he moved toward Wa township where another female passenger joined and alighted when the enter Wa township leaving her alone onboard the tricycle where she was then taken to the house of accused and further led to his room upon all her resistance not to go in. PW2 said accused forcefully had sexual intercourse with her in the room and when he was done he called his friend who was watching over the tricycle to come in and he also had a bout of sex with her after which his friend led her home after writing his number on a piece of paper for her and asked her not to disclose to anyone what had happened and that she could contact him anytime she needed something. Evidence of PW3 3 PW3 was the police detective who investigated the matter. CPL Habiba Seidu Abass. PW3 the police detective who carried out the investigation told the court that it was on the 23/6/23 when she was on duty this case was reported at her unit that she was assigned it. She recounted how she was issued police medical forms for the victim to attend hospital to when the report was taken from the medical persons confirming she was penetrated. She then set to speak with the victim who gave her account and she got details of the age of the victim which proved she was under sixteen years because she was born on 15/9/08. The investigator said the accused after the incident went into hiding and was only eventually arrested on 15/2/24 when accused was interrogated and he admitted committing the offence but added that the victim was his girlfriend. PW3 said she led both victim and accused person to the scene of crime and indeed the house was a compound house where the tricycle drove into and in the room pointed at the place she was known, there was a green mat on the floor and left exactly where she was undressed and forcefully penetrated. The investigator further told the court that when accused finished enjoying his victim he again called his friend who was waiting patiently in and he also had a bite of sex from the little girl. This bizarre description PW3 said was the admittance of the accused during interrogation. The witness then tendered into court the police investigative caution statement, the charge statement, certificate of birth of the victim and the police medical report duly signed by the supervising medical officer. The fourth witness the prosecution intended calling was abandoned because of tight schedules of the medical officer but since the report was filed, the court said it will 4 evaluate the report for what it was worth in the light of the fact that accused admits to the penetration but with a reason. Determination of prima facie case. When prosecution was done and the court had to evaluate the evidence presented so far to obtain if a prima facie case was made enough to warrant accused to be ordered to put up a defense, the court had an easy task because accused by himself had admitted to the ingredients of the offence of defilement and with the reason added that was a defense, it was lonely prudent that he was allowed to put up the defense. The defense of the accused The accused appearing remorseful with apologetic language told the court the victim was his longtime girlfriend and so they went home on a usual errand to have fun and that he did not force her to have sex with. Accused however failed to recount when their relationship but said he has had sex with her about twice a year ago further compounding the issue of defilement if indeed it true she was known a year ago when she was thirteen (13) years. Accused was then taken true a gruesome cross examination to disprove the straw he held on that the victim was his girlfriend prior to the incident. Section 101 of Act 29 provides as follows; - 101 (1) for the purposes of this Act defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age. 5 101 (2) whoever naturally or unnaturally carnally knows any child under sixteen years of age whether with or without his or her consent commits an offence and shall be liable on summary conviction to imprisonment for a term of not less than seven years and not more than 25 years. In the case of Rep. V Yeboah (1968) GLR 248 the ingredients of the offence of defilement were set out as follows: That the victim is a girl under sixteen years. That someone had had sexual intercourse with the victim. That someone who had had sexual intercourse with the victim is the accused. With this background and the requirements of the law, the issues for determination will be whether or not accused person had sexual intercourse with PW1 he victim, and whether at the time of the incident the victim was under 16 years of age and if that someone who had sexual intercourse with victim is the accused. For prosecution to succeed in getting accused convicted it must establish beyond reasonable doubt each of the ingredients of the offence of defilement and this they did and had a ruling that allowed accused to put up his defense which one of the ingredients of the offence is a huge determinant if accused has a defense potent enough to escape a conviction. The prosecution led evidence that accused was born on 18/6/08 meaning she was fourteen yes as of the date of the offence and this they presented the birth certificate as proof. I have reviewed the exhibit labeled “C” as tendered by prosecution and it having been issued from a statutory institution such as the Department of births and deaths I have no reason to doubt its authenticity and so will uphold that the victim was aged under sixteen years and should not have been sexually known. In considering the comment of accused that the victim was his girlfriend earlier in time to the offence meant 6 accused was of the belief that because he alludes to have been in sexual relationship with her assuming without admitting that were so the determination of the age renders accused case as not applicable because the law on defilement is blind to consent and assuming his claim to knowing the victim earlier than he was arrested will not be material because he had all along been defiling her and so the defense of the accused fall flat at its analysis. Even though the law is that: even if the medical evidence proved that the hymen was not broken but there is evidence of least degree of penetration of the victim’s vagina by the male organ, then it can be said that there was sexual intercourse. See Robert Gyamfi V The Republic (2019) 142 GMJ 132. By the medical report filed into court the medical examination concluded that the vaginal carnal of the victim was penetrated but the penetration left no bruises and not be in t or lacerations on the vaginal carnal. Here again the second ingredient of penetration was proven and this was not contentious because accused admits to having sexual intercourse with his victim. The third ingredient to conclude in satisfaction of prove of carnal knowledge requires that the accused identity should not be in doubt. Accused having admitted to the offence casts no doubt on his identity and I so hold that all three essential ingredients of the offence of defilement have been proven and accused is convicted of the offence of defilement because no search of an additional defense in his defense could be marshalled to his aid as it is required in criminal trials. See the case of ………. The law remains that, when an accused person takes refuge in telling lies before a trial court, the only inference of his behaviour was that he had a guilty mind and wanted to cover up. See Gorman vrs. The Republic (2009) 21 MLRG 139 CA. Munkaila vrs. The Republic (1995-96) 1 GLR 367 SC. 7 I am therefore but compelled to find accused guilty of the only count of defilement and I proceed to convict him for same because the prosecution has proved its case beyond reasonable doubt in accordance with sections 11 and 13 of the Evidence Act, 1975 (NRCD 323).. Sentencing Mitigation is put up where the accused person admits his guilt and proceeds to plead for leniency when the court prompts for prosecution to make submissions on whether he is known and general comments about the crime and the incidence of the crime in the community that prosecution wants the judge to be aware of and ends up praying for a stiffer punishment. The accused on the other side makes a plea in mitigation. The accused up to the time of sentencing did in a way admitted to his guilt and pleaded for leniency but in the circumstances that accused did not only feast on the poor little one alone but invited a friend as if it was a meal, I will move up the minimum jail term of seven years to 10 years to sound a waring to the youth that sexual intercourse is sacred and not a football march where it is played together as referred in ordinary palants as “gala” The Court will also not be applying proper principles of sentencing if it disregards clause 6 of article 14 of the Constitution 1992; that is failure to consider the period the accused spent in lawful custody before the completion of his trial. See Bosso vrs. The Republic (2009) SCGLR 420, Frimpong Badu vrs. The Republic (2016) 95 GMJ 105 SC. Owusu vrs. The Republic (2016) 98 GMJ 95 SC. 8 Accused was granted bail and spent no time on remand to want to consider that constitutional provision and so the to year jail term will be served in full and in hard labour. HIS HONOUR JONATHAN AVOGO ESQ 9