REPUBLIC VRS OFORI & 2 OTHERS (226/2022) [2024] GHACC 199 (11 March 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON FRIDAY 11TH DAY OF MARCH, 2024 BEFORE H/H DORINDA SMITH ARTHUR, CIRCUIT COURT JUDGE. SUIT NO. 226/2022 THE REPUBLIC VRS 1. JOHN OFORI 2. JOHN AMOAH 3. FREDERICK NYARKO JUDGMENT I. INTRODUCTION [1] The Accused persons were arraigned before this Court on April 7, 2022 for the offence of Defilement Contrary to Sections101(2) of The Criminal and Other Offences Act, 1960 Act 29. [2] The accused persons pleaded not guilty to the charge preferred against them for which reason the prosecution assumed the burden of proof and must prove the charge against the accused persons beyond reasonable doubt in accordance with; Section 11(2) of the Evidence Act 1975 NRCD 323 states; “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt.” Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng Vrs Republic [1977] 2 GLR 171 CA Page 1 of 18 The prosecution in order to discharge the burden placed upon them called three witnesses and tendered eight exhibits in evidence. II. THE PROSECUTION CASE [3] The summary of prosecution case is that the survivor (hereinafter referred to as PW1) is ten years old and a class three pupil at Abura Edumfa Basic School. She said she accompanied her Aunt (hereinafter referred to as PW2) to the police station and lodged a complaint as she could not walk and anytime she tried to walk or move she experienced so much pain. She relied on her statements given to the police on 29/03/2022 and 04/04/20222. She said on 28/03/2022, at about 12:00 noon, her mother (hereinafter referred to as PW3) sent her and on her return John Ofori (hereinafter referred to as A1) called her and asked her to come to him at 7:00pm. She continued that she was in town when A1 took her to his friend’s room, removed her pant and his, put her on the bed, and inserted his penis into her vagina and had sexual intercourse with her. After the act, A1 asked her to go home and it was around 8: 00 pm. [4] According to her, on her way John Amoah (hereinafter referred to as A2) saw her and took her to his room, removed her pant and his, inserted his penis into her vagina and had sexual intercourse with her. After the act A2 asked her to go home. She told her mother about her ordeal. [5] She further stated that her mother travelled out of town and Federick Nyarko (hereinafter referred to as A3) informed her he wants to call her mother for her on his phone. She obliged and after the call A3 took her into his room and had sexual intercourse with her. She said A3 told her not to inform anybody about it but later on her mother detected some discharge in her vagina. She narrated to her what A3 did to Page 2 of 18 her. She continued that when A3 heard about it, he came to their house and attacked her mother and assaulted her. [6] PW2 is the police investigator PW/Cpl Grace Ansah Wilson of Abura Dunkwa District Dovvsu. She said the case was referred to her on 28/03/2022 so she took the complainant and survivor’s statements and issued a medical form for the survivor to be taken to the hospital. She obtained the birth certificate and accused persons were arrested. She continued that on 4/4/2022, the complainant called at the unit and reported that A3 and one Kojo at large also had sexual intercourse with the survivor a month earlier so she took their statements and arrested A3. She visited the rooms of accused persons and took photographs and took the investigation and charge statements of accused persons. She tendered in evidence the statements, birth certificate of the survivor, medical report, and photographs of the rooms. [7] PW3 is Mavis Peterson, a sister to PW1’s mother and she testified that she was sleeping when her sister by name Aba Atta woke her up. She heard PW1’s mother making noise outside so she got up, went outside, and asked PW1’s mother what was happening. She was informed A3 had sexual intercourse with PW1 and has beaten PW1’s mother up when he was confronted. Said stated that she examined the vagina of PW1 and saw fresh sperms in the vagina. She said the survivor also mentioned three other persons who have had sexual intercourse with her. III. THE DEFENCE [8] A1 testified that he is a farmer and the charge levelled against him is not true. He said his sister asked him to slaughter a goat for her and he did thereafter he left for Cape Coast to purchase parts for his corn mill machine. He cooked, called A2 to join him to eat, and when it was left with two fingers of plantain he left to answer nature’s Page 3 of 18 call. Upon his return, A2 had finished the food. He was walking with A2 when the survivor pointed at them to some boys. The boys said they came to the town for a wedding and heard that they have been having sex with the little girls. The boys took them to the police station and they were detained overnight. The next morning, the CID took his details and his statement. [9] A2 testified that he is a farmer and he has not had sex with the survivor. He said he lived with the survivor’s mother in the same house when he was young and left for his father’s house when he grew up. He stated that the survivor’s mother referred to him as a brother. He said one Sunday evening he met the survivor’s mother and she sought his assistance to fix her door key. He could not open so he destroyed the lock and promised her a replacement as he did not have money with him. The next day in the morning, the survivor’s mother came and discussed with him that someone has had sexual intercourse with the survivor and that she has taken her to the hospital and needed money to treat her infection. He continued that the mother mentioned A1, A3 and another Ajara as the pepertuators and asked him to discuss with the mentioned names as she needed money from them. [10] He stated that he does not know anything about the case and was surprised that his name was added. He said A1 called him to come and eat in the evening but when he went it was left with two fingers of plantain so he bought banku with fish and ate. When he finished eating, he met A3 and told him about what the survivor’s mother had relayed to him earlier. He went with A3 to the survivor’s mother as A3 denied and was angry. He said A3 denied the allegation and left in anger. [11] Later that night, A1 came to him after visiting nature’s call and they were walking with some people met them and said they have defiled the survivor. He stated that he asked the survivor and she mentioned A1’s name that he had sex with her and Page 4 of 18 she mentioned the number of times. He said it was that time that some men joined and asked them to join them to the police station. They went and they were detained until the next morning when the CID came and took their details and statements. [12] A3 testified that he is an electrician. He lived with the survivor and her grandmother at Odorkor so his mother helped to raised her up. He said one Monday morning, a man died in his house so they organised for a vehicle to convey the body to a mortuary. He went to buy alcohol and on his way, he met A2 who said he has been looking for his as the survivor had mentioned his name as one of the people who had sex with her. He also mentioned Wofa. They met at the room of one Awotwe whose name was mentioned as well by the survivor. [13] According to A3, he became angry at that time and confronted the survivor’s mother. He met her on her way to the house and he questioned her so people gathered around them. They asked the survivor and she said he was not part of those who had sex with her. The people over there asked the survivor’s mother to apologise to him but she refused to apologise and he slapped her. The survivor’s mother stripped herself naked and started invoking curses on him. He left the place and informed his brother about the incident. He continued that he was arrested one evening when he went out to buy alcohol and taken to the police station where he was detained. [14] He was granted police enquiry bail but the survivor’s mother reported him again and he was rearrested. He stated that the CID took him and the survivor to his room and they asked whether A3 has brought her to the room before but she could not answer affirmatively. The police asked her to lie on the bed which she did and they took a photograph of her on the bed. Page 5 of 18 [15] Hannah Ocran (hereinafter referred to as DW1) testified that she stays at Abura Edumfa and knows all the parties. She lives in the same neighbourhood as the mother of the survivor and so when she heard of the incident, she was surprised because accused persons are not troublesome. She said all accused persons are married with children and it is the habit of the mother of the survivor at Edumfa. She continued that the mother sends PW1 to go for money from people. She said the mother is using the survivor for money. [16] According to DW1, when the news went out that the survivor could not walk due to she being defiled, some people brought money to the mother. The mother had disagreement regarding the distribution or sharing of it so she heard from a brother that one uncle of the survivor said they accused people to get money. IV. EVALUATION OF EVIDENCE, FINDING OF FACT, AND APPLICATION OF LAW [17] The offence of defilement under Section 101(2) of 1960, Act 29 states that; “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 twenty-five years.” [18] Consequently, the essential ingredients of the offense of defilement are; 1. That someone has had natural or unnatural carnal knowledge of the survivor 2. That someone is the accused person. 3. That the survivor is under sixteen years of age See: ERIC ASANTE V THE REPUBLIC 2017 109 GMJ 1 SC Page 6 of 18 [19] To satisfy the court with a conviction the prosecution must prove the aforementioned three ingredients beyond reasonable doubt. The prosecution is required to prove that a crime has been committed but also must link the accused persons to the commission of the crime especially where accused persons pleaded not guilty. [20] I will deal with all the issues together as they are intertwined but in sequence which is whether or not someone has had natural or unnatural carnal knowledge of the survivor and accused persons are the one who had carnal knowledge of the survivor and the survivor is under sixteen years of age. [21] The first issue is whether or not someone has had natural carnal knowledge of the survivor and same will be determined together with the second issue as to whether accused persons are those who had carnal knowledge of the survivor. [22] PW1 testified and stated that A1 sent her and upon her return, he asked her to come to him at 7:00pm. She continued that she was in town when A1 took her to his friend’s room, removed her pant and his, put her on the bed, and inserted his penis into her vagina and had sexual intercourse with her. After the act, A1 asked her to go home and it was around 8:00pm. [23] This is the evidence adduced by PW1 against A1 that he took her to a friend’s room and had sexual intercourse with her and after he asked her to go home. Then she continued that A2 saw her that same night on her way home and took her to his room, removed her pant and his, inserted his penis into her vagina and had sexual intercourse with her. After the act A2 asked her to go home. [24] It is noted that PW1 did not mention A3 in her statement to the police at all but it was her further statement given to the police a month after that she mentioned A3. Page 7 of 18 [25] According to her, A3 informed her he wants to call her mother for her on his phone. She obliged and after the call A3 took her into his room and had sexual intercourse with her. She said A3 told her not to inform anybody it but later on her mother detected some discharge in her vagina. She narrated to her what A3 did to her. [26] In defilement cases, carnal knowledge of the survivor has to be proven and same can be ascertained if accused person used his penis to penetrate the vagina of the survivor. Thus the act of sexual intercourse is deemed complete upon proof of any, the slightest or least degree of penetration. This is the express provision of Section 99 of Act 29, 1960 which states that: “Whenever, upon the trial of any person for an offence punishable under this code, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge shall be deemed complete upon proof of the least degree of penetration” [27] For the purposes of proving penetration decided cases finds it sufficient if there is evidence that any part of the virile organ of the accused was within the labia of the pendulum of the female, however slight this may be. However, penetration is purely a question of fact and as most sexual offences are done in privacy or out of sight and hearing of third parties, eye-witnesses account to corroborate the act is very rare. [28] According to PW1, A1, A2, and A3 inserted their penis into her vagina and so from her evidence, penetration was complete. Page 8 of 18 [29] However, In R V. CAMPBELL [1956] 2 ALL ER 272, CCA which was cited in the case of REPUBLIC V YEBOAH [1968] GLR 248, the court gave a rule that the evidence of a young person must as a rule of prudence be well corroborated before being acted upon by the court. The court per Baidoo J in Yeboah’s case qualified the rule of prudence and decided inter alia that the evidence of a sexual victim need no corroboration but it is prudent to look for corroboration from some extraneous evidence which can confirm the evidence of the victim in some material particular implicating the accused [30] Also, there are plethora of decided cases admonishing the court from relying on the evidence of sexual victims alone and advising for corroborative evidence. See R V HENRY AND MANNING [1969] 53 CRIM APP REP 150 per Salmon J. The court held inter alia that; “... it is really dangerous to convict on the evidence of a woman or girl alone. This is dangerous because human experience has shown that in these courts, girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not enumerate and sometimes for no reason at all.” [31] Even though this is an English case and is of persuasive influence only, it is of such great importance that the court cannot ignore that precedent for the weight it carries. Page 9 of 18 [32] Here, the court is to get extraneous evidence that must link accused persons to the sexual act as narrated by the survivor. None of the remaining prosecution witnesses saw any of the accused persons in the sexual act with the survivor. [33] The court therefore is considering the medical report presented by prosecution as the extraneous evidence. The medical report provides a history of the incidence and the history as stated by the medical officer is very crucial here. Before I juxtapose the history with PW1’s evidence, it is noted that PW1 did not mention the names of accused persons at all in the medical report. The names mentioned are “Wofa and bro Yaw”. [34] Prosecution did not lead any evidence for the court to ascertain or infer that the names mentioned in the medical report refer to any of the accused persons. None of prosecution witnesses testified as to who the names mentioned in the medical report refer to. And in the absence of such explanation, the court could not engage in imagination exercise as to which of the accused persons is Wofa or bro Yaw. [35] Further, it is noted that the narration as contained in the medical report is also totally different from what PW1 herself adduced in court. The medical officer recorded that PW1 told her one Wofa sent her to buy sachet water and upon return, Wofa invited her into his room. When she entered, she met bro Yaw. The men removed her panties and one of them forcibly had anal sex with her and the other penetrated her vagina. It continued that she tried to scream but they covered her mouth and warned her not to scream. Page 10 of 18 [36] The history as recorded by the medical officer introduces anal sex which is absent in the evidence of PW1 herself. It also mentions that two men had sexual intercourse with her simultaneously which is contrary to the evidence of PW1 herself. She never mentioned she wanted to scream when any of the men had sexual intercourse with her and she never mentioned any of them covered her mouth. It is difficult for the court to take the history as recorded in the medical report to be for the same case regarding the evidence led by prosecution witnesses. [37] The medical report is to corroborate the evidence of prosecution that accused persons are the very persons who had sexual intercourse with the survivor and that the sexual intercourse is that of natural carnal knowledge as the charges depict. However, the medical report did not corroborate but rather introduced different evidence contrary to what is before the court. [38] It is worthy of note that the medical officer’s findings with the diagram do not support the history as presented by PW1. There were no bruises of her anus, no trauma in her genital area, and the vagina could admit the index finger even though her hymen is absent. The finding of the medical doctor is accepted by the court wholly and the court has no reasons not to so admit. [39] Flowing, from the medical report, the survivor had been earlier defiled by her uncle who explains the absence of her hymen. The report does not give any indication of recent sexual intercourse either natural or unnatural and no forensic test or DNA test was conducted to link any of the accused persons with the discharge found in the Page 11 of 18 vagina of PW1. It is noted that the evidence of DW1 corroborated the assertion in the medical report that PW1 had been defiled by her uncle before. [40] In GLIGAH AND ATISO V. THE REPUBLIC [2010] SCGLR 870, the Supreme Court held in holding (3) that where: There were pieces of evidence which if put together made a very strong case against the accused person[s]. The same with circumstantial evidence. It was generally accepted that when direct evidence was unavailable, but there were bits and pieces of circumstantial evidence available, and when those were put together, they would make stronger, corroborative but more convincing evidence than direct evidence. [41] From Gligah, the court can accept pieces of evidence or circumstantial evidence where direct evidence is not available. [42] Here, circumstantial evidence is used to make the case stronger or to corroborate or give more convincing evidence. See THE STATE VRS BROBBEY AND NIPAH [1962] 2 GLR 101 where the court held that circumstantial evidence must lead to one and only one irresistible inference that the appellant is guilty of the offence charged. See also LOGAN V THE REPUBLIC [2007-2008] 1 SCGLR 76 where it was held that: “For circumstantial evidence to support a conviction it must be inconsistent with innocence of the accused. It must lead to irresistible conclusion not only that the crime had been committed, but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which in not supported by facts is wrongful.” Page 12 of 18 [43] Here, the court cannot infer from the evidence adduced by prosecution that accused persons are the very persons who had sexual intercourse with PW1. This is because, the evidence adduce must lead to the irresistible conclusion that accused persons committed the offence with all certainty. [44] On one leg we have PW1 in the hands of two men in the room with her having both anal and vaginal penetration sex with her. On the other leg is the evidence of the survivor herself who had sex with one man and on her way to the house another called her and took her into his room and had sex with her. These two separate accounts are supposed to be one where one is to corroborate the other. in the absence of that none of the account is corroborated. [45] Also, the medical report did not give any findings of recent sexual activity even though according to the prosecution, PW1 was sent to the hospital immediately the mother allegedly saw the stains in the pants of PW1 when she was in the toilet and was informed of what some men had done to PW1. [46] Therefore, the court cannot safely infer through circumstantial evidence that accused persons are those who had sexual intercourse with PW1. Any doubt in criminal cases goes in favour of the accused persons and the evidence of prosecution has many doubts. [47] I must state with the absence of extraneous evidence to corroborate the evidence of prosecution, collapsed the case for prosecution. Page 13 of 18 The court considered the credibility of the prosecution witnesses when the medical report did not corroborate the evidence of prosecution. [48] PW1 in court testified that A1 asked her to return to him at 7.00pm and she went and he took her to his friend’s room and had sex with her. This account is different from what she narrated to the medical doctor with regards to where the alleged Wofa took her. She mentioned in court that A1 took her to a friend’s room and not his room and it was in the friend’s room that he had sexual intercourse with her. [49] This piece of evidence is contrary to her narration in the medical report. Also, under cross examination PW1 answered among others the following questions: Q. Where did I meet you and took you to my house? A. You met me in town. Q. Where was I standing at that time? A. You were in town. [50] It was clear that PW1 could not tell exactly where A1 was when she claims he sent her and returned to him. Her evasive answers are seen also when she was being cross examined by A2 as to where he met her and which place he sent her to. The responses of PW1 to the questions posed under cross examination and her evidence were not convincing and thus, she could not persuade the court to make any finding of fact from her evidence. [51] It is noted that the mother of the survivor did not appear in court to testify though her witness statement was filed. She is a material witness as according to Page 14 of 18 prosecution brief fact, she is the person PW1 narrated her ordeal to right after the alleged sexual encounters. Also, she is the complainant and the very person who took her to the hospital and allegedly confronted the accused persons. [52] Also, there was no extraneous evidence to corroborate the evidence of PW1 that A3 had sexual intercourse with her. His name was not mentioned in the medical report and even by necessary implications, the medical report mentioned two people who simultaneously had sexual intercourse with her and the A3 was not mentioned. From the evidence of prosecution, he had earlier had sexual intercourse with PW1 when the mother travelled but surprisingly his name was not mentioned anywhere as if it was an afterthought. His name may have been added after he beat the mother up. [53] Moreover, PW2, the Aunt of PW1, could not provide cogent evidence in favour of prosecution’s case. At one point, she mentioned she is the complainant and at another she is not. Under cross examination, she answered among others the following questions: Q. In the instant allegation of defilement, you personally never saw any of the accused persons having sexual intercourse with the survivor. Is that so? A. Yes. Q. So all that you told prosecution were what you heard from people. Is that not so? A. No, it is what the survivor told me and I found. Q. What did you find? A. I saw semen. [54] The account of PW2 is again totally different from the account of PW1 and the medical report. PW1 never mentioned that PW2 examined her and found semen in her Page 15 of 18 vagina. In the evidence of PW2, she even referred to whatever she saw as fresh sperms. This could not have been possible since according to PW1 and the medical report, PW1 was sent to the hospital right after she narrated the alleged incident to her mother when she answered natures call upon returning from the sexual encounters. [55] From the evidence of prosecution, the survivor mentioned different names and the medical report stated nine people. This creates doubts as to whether the accused persons are the actual perpetuators of the crime or whether a crime was even committed at all. [56] Furthermore, PW3, the investigator alleged the complainant caught A2 having sexual intercourse with the survivor. The answer given by the investigator is far from the truth and could not be relied on by the court. Nowhere in the evidence was it stated that the complainant caught anybody in the sexual act with the survivor. [57] The testimony of DW1 cannot be ignored by the court as it revealed that the mother of the survivor has been using the survivor for money. She said the mother has collected money from many people using the same tactics. [58] Under cross examination DW1 answered among others the following questions: Q. So how many people has she done so to? A. They are many. Q. Are you aware of this all this while right? A. Yes. Q. So what prevented you from reporting her to the police? Page 16 of 18 A. I cannot go and report someone as it is that person’s business. I was minding my own business. Q. Mention the names of those the survivor’s mother has taken money from? A.One is Ajara, Awotwe, Kofi, but that is not all. Her evidence corroborated the eveidece of A3 that Awotwe. Q. What you just said how is it related to the case before this court? A. I am saying so because the mother of the survivor went to A1 for money and I told him not to give her money. [59] The evidence above creates doubts as to whether accused persons committed the offence or whether they are victims of a scheme of the mother of the survivor. DW1 mentioned some names and these name appeared in the evidence of both prosecution and defence that the survivor mentioned their names. [60] However, these people are not before the court for trial even though according to A3 when he was called for a meeting he met them in the room of one Awotwe whose name was also mentioned by DW1 and that PW1 mentioned the name of this Awotwe. [61] Flowing from above, the court find as a fact that prosecution could not prove sufficiently all the three elements of the offence of defilement beyond reasonable doubt. This is because prosecution could not prove whether accused persons are the very persons who had sexual intercourse with the survivor. The other elements have become moot as prosecution could not establish that accused persons had carnal knowledge of the survivor beyond reasonable doubt. Page 17 of 18 V. DISPOSITION [62] I have considered the entire evidence of prosecution and the defence. I have considered the investigation and charged statements of accused persons and all the exhibits tendered in evidence by prosecution. I have also considered the inconsistencies, contradictions, and doubtful evidence and come to a firm conclusion that prosecution could not prove the guilt of accused persons beyond reasonable doubt that they defiled the survivor who is under sixteen years. The accused persons are hereby acquitted and discharged. Case struck out as ended. H/H DORINDA SMITH ARTHUR. CIRCUIT COURT JUDGE ACCUSED PERSONS PRESENT. PROSECUTOR: C/INSP MUMUNI MOHAMMED PRESENT. DAVID BENTIL ESQ HOLDS BRIEF FOR SOLOMON GYESI FOR ACCUSED PERSONS PRESENT. Page 18 of 18