REPUBLIC VRS ADMENS (D10/27/22) [2024] GHACC 17 (30 January 2024)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON TUESDAY, THE 30TH DAY OF JANUARY, 2024, BEFORE HER HONOUR AGNES OPOKU-BARNIEH, CIRCUIT COURT JUDGE SUIT NO: D10/27/22 THE REPUBLIC VRS: LETICIA ADMENS ACCUSED PERSON PRESENT D.S.P. STELLA NASUMONG FOR PROSECUTION PRESENT ROSINA OSEI-WIAFE, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT FACTS: The accused person was arraigned before this court on a charge of indecent assault contrary to Section 103(1) of the Criminal Offences Act, 1960 (Act 29). The brief facts presented by the prosecution are that the complainant is the father of the victim Ariella Oforiwa Numo, aged two years eight (8) months at the time of the alleged incident. The accused person herein was an assistant teacher of Nursery One at the Mary Mount School, where the victim was a pupil. The prosecution alleges that on 11th April 2022, at about 8:00 am, the complainant took the child to school and was received by one Miss Ivy, her class teacher and the accused person. The prosecution further states that on that day, the accused person was the last person to take the victim to the washroom before school closed. According to the prosecution, when the victim’s mother picked her up from school, she noticed that the victim appeared moody, she refused to eat and also refused to play with her younger sister as she always does. 1 The prosecution further states that at about 7:00 pm, the victim complained of pains in her vagina whilst her mother was bathing her, and prevented her mother from washing it. Thus, after bathing her, her mother examined the victim’s vagina and detected that the victim’s clitoris was bruised. When she asked the victim who touched her vagina, she mentioned “Miss etiticia”. Based on that, the victim’s mother called her class teacher, Miss Ivy, to enquire about the name and she confirmed to her that that is the name of her assistant class teacher, Miss Leticia, the accused herein. Additionally, the prosecution claims that the complainant sent the victim to the Tema General Hospital for treatment and at the hospital, the doctor who examined her detected sexual assault and requested them to lodge a complaint at the Police Station and produce a police medical report form. The case was reported at the police station and a police medical report form was subsequently issued to the complainant and the doctor endorsed it confirming sexual assault. Consequently, the accused person was arrested and after investigations, she was charged with the offence and arraigned before the court. THE PLEA The accused person who was represented by counsel pleaded not guilty to the charge after it had been read and explained to her in the English Language. The accused person having pleaded not guilty, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. To prove their case, the prosecution called three witnesses and tendered in evidence Exhibit “A”- a video recording on a pen drive. Exhibit “B”- the medical report form of the alleged victim- Exhibit “C”- the birth certificate of the alleged victim, Exhibit “D”- the charge statement of the accused person and Exhibit “E”, the investigation 2 caution statement of the accused person. Learned Counsel for the accused person contends that at the close of the case of the prosecution, no case was sufficiently made out to warrant calling upon the accused person to open her defence. The court ruled that a prima facie case was sufficiently made out requiring the accused person to open her defence. Thereafter, the accused person opened her defence and called one witness in support of her defence. BURDEN OF PROOF Sections 11(2), 13(1) and 15 (1) of the Evidence Act 1975, N.R.C.D. 323 respectively provides as follows: 11(2) “In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce evidence so that on the totality of the evidence, a reasonable mind could find the existence of the facts beyond reasonable doubt.” “S.13 (1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” Section 15(1) unless it is shifted, the party claiming that a person has committed a crime or, wrong doing has the burden of persuasion on that issue”. In the case of C.O.P V. Antwi [1961] G.L.R 408, the court in espousing the burden of proof in criminal cases held as follows; “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” 3 The combined effect of the statutory provisions and the case law is that in a criminal trial, the burden of proof and the burden of persuasion remain throughout on the prosecution. The accused person is not required to prove his innocence. Unless in the case of a defence of insanity where the accused person or a person claiming that another person is insane has the burden of persuasion on that issue, in a criminal action, the burden of persuasion, when it is on the accused persons as to any fact the converse of which is essential to guilt, requires only that the accused person raises a reasonable doubt as to her guilt. See Sections 13(2) and 15(3) of the NRCD 323. Thus, what is required of the accused when called upon to open his defence is to raise a reasonable doubt in the case of the prosecution and the standard of proof for the defence is on a balance of probabilities only which is a lighter burden than that imposed on the prosecution. ANALYSIS Here, the accused person is charged with indecent assault contrary to Section 103(1) of the Criminal Offences Act, 1960(Act 29). Section 103(1) of Act 29, provides that a person who indecently assaults another commits a misdemeanour and is liable on conviction to a term of imprisonment of not less than six months. Section 103(2) defines indecent assault in the following terms: “103(2) A person commits the criminal offence of indecent assault if, without the consent of the other person that person— (a) Forcibly makes a sexual bodily contact with the other person; or (b) Sexually violates the body of the other person, in a manner not amounting to carnal knowledge or unnatural carnal knowledge.” To succeed, the prosecution must prove the following essential ingredients of the offence; a. The accused person forcibly made sexual bodily contact or sexually violated the body of another person; 4 b. The sexual bodily contact or sexual violation must be without the consent of that other person c. The sexual bodily contact or sexual violation should not amount to carnal knowledge or unnatural carnal knowledge. It is noteworthy that under Section 14 of the Criminal Offences Act, a person below the age of 16 is incapable of consenting to sexual assault and any such consent given by a child is void and shall not avail an accused person as a defence to a charge of sexual assault. To prove that the accused person indecently assaulted the victim, PW1, the mother of the victim testified that she lives at Devtraco Estate with her husband and two daughters i.e., the victim herein aged 2 years 11 months at the time of the alleged incident and her younger sibling. According to her testimony, on 11th April 2022, the victim’s father took her to school in the morning and she picked her up in the afternoon. When she picked the victim from school, she noticed a change in her behaviour since she appeared moody and not her usual bubbly self and refused to eat when they got home. Also, in the evening when she was bathing her and wanted to wash her vagina, the victim complained of pain inside the vagina and prevented her from doing so. PW1 further testified that when she asked the victim if someone had put a hand in her vagina, she mentioned the name “Miss Letiticia”. After bathing her, she inspected her vagina and noticed bruises in her vagina which she took pictures and video with her phone. After that, she called the child’s class teacher by the name Miss Ivy and informed her of what she had noticed and the name the victim mentioned as the one who put her hand in her vagina. She then put the phone on speaker for the hearing of the class teacher and asked the victim again who put her hand in her “wee wee” as 5 she referred to the vagina and she mentioned the name “Miss Letiticia”. She asked about the one who took the victim to the washroom and she mentioned that the accused person was the last person to send the victim to the washroom before she picked her up. Subsequently, she called the victim’s father and they both sent the victim to the Tema General Hospital where she was examined and treated. According to her testimony, the doctor who examined her confirmed sexual assault and asked them to produce a police medical form for her to complete. From the hospital, they reported the incident at the school and the following morning, they reported the case to the police and they were issued with a police medical form which they sent to the hospital for endorsement and returned same to the police. Under cross-examination by counsel for the accused person, the first prosecution witness was insistent that she has taught the child to refer to the vagina as “wee wee” and when she mentioned that the accused person put her hand in her “wee wee”, she was referring to her vagina and the child by mentioning the name of the accused person was very sure who she was referring to and as captured in Exhibit “A” the audio recording when the child mentioned the name. The witness was also insistent that the doctor told her that there were bruises in the vagina of the alleged victim. The second prosecution witness No. 5647 D/PW/Sgt. Cecilia Atala testified that on 12th April. 2022, one Frank Numo reported at Domestic Violence and Victim Support Unit (DOVVSU), Prampram that on 11th April 2022 at about 3:30 pm, his 2 years 8- month-old daughter, the victim in this case, complained of pain in the vagina and mentioned her class teacher by name Letitia as the one who inserted her fingers into her vagina. He also added that the victim was taken to the Tema General Hospital for examination and the doctor on duty had demanded a Police Medical Form. 6 PW2 further testified that upon receipt of the complaint, the case was referred to her for investigations and she issued a Police Medical Report Form to the complainant for the doctor who examined the victim at the Tema General Hospital to endorse it. She tendered in evidence the medical report admitted and marked as Exhibit “B”. PW2 further testified that during investigations, she interviewed the alleged victim in the presence of her parents and she told her that it was Ms Leticia who put her hand in her “wee wee” referring to her vagina. On the same day, she visited the school of the child on enquiries with the complainant and the victim and arrested the accused person to assist in her investigations. She tendered in evidence the investigation caution statement of the accused person admitted and marked as Exhibit “D”. PW2 again testified that on 13th April 2022, when she accompanied the complainant and the victim to the school to effect the arrest of the accused person, whilst they were in the headmistress’s office, the accused person who she did not know at the time passed by the reception and when the victim saw her, she became uncomfortable, panicking and mentioning the name of the accused person “Miss eti- ticia” repeatedly as she passed. However, when the victim’s main teacher came around, the victim remained calm and cool and never mentioned her name as if she was a stranger to her. She also noticed that the victim was calm when the team entered her classroom but ran back withdrawing and crying from the team when they headed towards their washroom with the accused person to the extent that the headmistress Mrs. Akyea had to send her to the classroom unwillingly. According to her, even though the victim could not say a word at the scene, her actions and mood were evident that something unpleasant had happened to her in the washroom. Additionally, PW2 testified that during her interview with the victim’s class teacher, she told her that because the victim is in the playgroup, teachers or assistant teachers usually take them to the washroom and that no particular teacher is assigned to take 7 the children to the washroom. However, on the day of the incident, it came to her attention that it was the accused person who last took the victim to the washroom before she was picked up by her mother. She recounted what the mother of the victim also told her after picking up the child from school and tendered in evidence the charge statement of the accused person admitted and marked as Exhibit “E” and the birth certificate of the child as Exhibit “C” showing that the victim was born on 30th July 2019. The third prosecution witness (PW3), Dr. Fiona Afua Nyamekye Twumasi testified that she is a medical officer at the Obstetrics and Gynaecology Department of the Tema General Hospital and identified Exhibit “B” as a report prepared by her. According to her, from the history presented when the victim was brought to the hospital, she realised that the child had lacerations in her genitalia. Upon questioning her, she said a teacher in her school had been inserting her finger in her genitalia. She proceeded to do an examination and on vaginal examination, there was good vulva hygiene and she queried sexual assault. However, no bleeding or discharge was seen but there was reddening on the labia minora on the left side and the hymen was intact. According to her, the patient was presented at the hospital around 11 am and was examined and once she relayed her findings to the parents, the mother decided to report the matter to the police and they reported back with the police form which was subsequently filled. PW3 under cross-examination by counsel for the accused person testified that at the time of examining the child, she had not received the police medical form and it was based on her findings that the parents of the victim reported the case to the police and she subsequently filled the police medical form. She further testified that the reddening of the vulva could have been caused by infection or trauma but she was also guided by the history. 8 Under further cross-examination by Counsel for the accused person, PW3 testified as follows: Q: What does that “query” mean? A: Query means that it may or may not. Q: Did the mother tell you that she used her hand to open the vagina of the child. A: No, my Lord. Q: You know how delicate the vagina is and any attempt to open it with two hands can cause vagina redness. A: From your assertion that means every female had a reddening of the vagina so that is not correct. Just opening, it will not cause the reddening of the vagina. Q: What is meant by reddening of the vagina? A: We all know the colour red. The vagina is pinkish pale. So instead of seeing that you see red. Q: I am putting it to you that the reddening of the vagina was caused because of the trauma she experienced when her mother opened the vagina area. A: My Lord, from the history, we realised that the child complained of pain even before the mother examined which is one of the characteristic features of the reddening. So, in my opinion, I do not think the mother caused the reddening of the vagina by inspecting the vulva. The accused person in her investigation and caution and charge statements admitted and marked as Exhibits “D” and “E” vehemently denied the offence and stated that on the day of the alleged incident, when she sent the victim to the washroom, one Awonye was with her on the corridor and that she did not insert her finger into her vagina. The accused person in her evidence-in-chief again vehemently denied inserting her finger into the vagina of the victim. She testified that her duties as a teaching assistant in the school are to assist the substantive teacher and to attend to 9 the needs of the children in the class and other related services required by the administration. She stated that the victim’s father had before the alleged incident taken her phone number under the pretext that he would be calling to check on the victim but started exchanging inappropriate text messages on her phone and based on that, she had refused to pick his phone calls to date. The accused person further testified that for Nursery One, the victim’s classroom, Miss Ivy is the class teacher and she and one Eugenia Nifefu provide support services. Before closing time, there was a foul smell in the classroom so Miss Ivy told Eugenia to take the victim to the washroom to check if she had soiled herself. She obliged and later returned to inform her that, the victim had not soiled herself with the toilet. At that time, she was arranging the children's bottles in their school bags whilst taking out their snacks for them. She then saw through the window, one Miss Rachel Sackitey setting the playground for a birthday celebration. She told the victim to sit close to where she was standing for her immediate attention in case she wanted to urinate because she had already taken her citrus drink. Whilst she was performing this task, Miss. Rachel through the window, requested her to pick matches from the canteen for her to light candles on a birthday cake for a celebrant in her class. Thus, after arranging the children's belongings, she dashed out to the canteen to pick the matches for her using an exit door through the washroom corridor to the canteen. The accused person further testified that upon her return through the same exit door which leads to the washroom corridor, she saw the victim at the washroom corridor walking towards the 2nd urinal cubicle unattended. During the same time that she saw coming through the corridor, she also saw Awornye (DW1) coming through the same route used by the victim towards the washroom corridor. She decided to wait for the victim upon reaching the washroom corridor. When she got there, she stood in front of the door of Awornye's cubicle to prevent her entry and then started chatting on 10 issues of common interest to them. She also informed her that she was returning from the canteen with matches for Miss Rachel. She was in the corridor with Awonye when the child came out all dressed and she asked her if she had finished and she responded yes. She then helped her to wash her hands and the child happily ran to the classroom. She later followed up to the classroom and handed over the matches to Miss Rachel through the window. Thereafter, the victim played with other children in the classroom till her mother came to pick her up around 2:30 pm without any issue. She testified that she was therefore surprised when the school authorities informed her that the mother of the victim had alleged that she had sexually assaulted the victim and that blood stains were in the pants of the victim who mentioned her name as the one responsible. According to her, since she started working in the school, children in the class do not address the teachers by their names but rather, they address teachers and their assistants as “Aunty’ and the child never addressed her as Miss Leticia but rather Aunty during the time that she was in the school. Thus, she maintained her innocence in her statement to the police and her account in the school’s incident book. The first defence witness, Sarah Siame also known as Awornye, a cleaner at the preschool section of the school testified that she knows the accused person and the victim in the case and that on 11th April 2022 at about 2:00 pm thereabout, she went to dry a wet mop outside the preschool building and one Miss Rachel was setting the playing ground outside the Nursery IA windows for a birthday celebration. When she entered the preschool, she noticed some pupils playing. This was around closing time and some washrooms were being occupied by some pupils. She also saw the victim in this case ahead of her walking towards the washroom corridor and entering the washroom. At the same time, she saw the accused person coming from the canteen direction which is directly opposite the preschool through the rear entry to the washroom area. 11 According to her testimony, the washrooms are divided into six (6) cubicles, three on the left and three on the right with each having a door with a small toilet seat tailored to suit toddlers with two hand washing basins. The preschool also has two bathrooms but she uses one as her storage. She continues to testify that, when they got to the washroom corridor, the victim entered the 2nd cubicle to the left to use the water closet. When the accused person got to the washroom corridor, she was conversing with the accused person who informed her that Miss Rachel Sackitey, had asked her to pick matches from the canteen to light candles on a birthday cake. She states that whilst chatting, the accused person was holding the matches in one hand. The victim then came out of the washroom wearing her underwear. The accused person asked the victim if she had finished urinating and the victim answered in the affirmative. In her presence, and whilst they continued conversing, the accused person assisted the victim to the hand basin and washed her hands, after which the accused person instructed the child to go to the classroom. The child hurriedly went to her class whilst they continued their conversation. She maintains that the only time that the accused person had contact with the child was when the child came out of the washroom and she assisted her to wash her hands. She stated further that, during investigations, the police did not contact her for her version of the events even though she witnessed what happened that day. From the evidence led by the prosecution and the spirited defence put up by the accused person, can it be said that the accused person made sexual bodily contact with the victim without her consent? Regarding the giving of consent, the child in this case was aged below 16 years and under Section 14, any consent given by such a child to sexual bodily contact is void. The prosecution maintains that the accused person being an assistant class teacher on the day of the alleged incident was the last person to send the victim to the washroom before the school closed but the evidence shows that the accused person was not the only person who came into contact with the victim since the assistants are two people who assist the children to go to the washroom. The testimony of the accused person was corroborated by DW1 that on the day of the alleged, the accused person was in the corridor with the cleaner at the 12 time the victim went to the washroom. The medical report which is also supposed to corroborate the testimony of the victim’s mother that the condition of the child was as a result of fingering queried sexual assault with the medical doctor stating unambiguously under cross-examination that it may or may not be sexual assault. Meaning, the condition of the child regarding the reddening of the vulva could have been caused by something other than someone inserting his/her finger into the vagina. Contrary to the testimony of the first prosecution witness and the medical officer that there were lacerations in the vagina of the victim, the medical report, Exhibit “B”, which was prepared by the medical officer specifically states that; “Perineal Examination: Good vulvo-vaginal hygiene. No bleeding, or discharge around perinieum and intriotus. Inflammation [redden] seen at the lateral aspect of the labia minor bilaterally. Tender to touch. Hymen was intact. Anal orifice normal. No cuts seen. Impression: Sexual assault?’ Therefore, the doctor was not certain as to the cause of the reddening she saw in the child. It is also noteworthy that the child was disqualified as a witness when she could not express herself to be understood either directly or through interpretation by one who could understand her. Although under Section 116(e)(ii) of NRDC 323, the disqualification of the child makes the testimony of PW1 on what the victim allegedly told her out of court admissible as an exception to the hearsay rule, in the video tendered by the prosecution, the faces of the people in the video are not showing. The child also did not specifically complain that someone had put her finger into her vagina but it was the persistent asking of who did this to you that the voice of a child is heard mentioning a name that sounds like Leticia. The disqualification of the child also deprived the defence of the opportunity of cross-examining a material witness for the prosecution to challenge the assertion that it was the accused person who inserted her finger into her vagina. Additionally, assuming, arguendo, that someone inserted a finger into her vagina, it could have been any other person other than the accused person herein since the 13 prosecution admits that she was not the only person who sent the child to the washroom on the date of the alleged incident. The possibility of another child also having inserted a finger into the vagina of the child, if indeed there was such an incident, could also not be ruled out. On the totality of the evidence led by the prosecution and the defence put up by the accused person, I hold that the prosecution failed to prove their case beyond reasonable doubt that the accused person forcibly made sexual bodily contact not amounting to carnal or unnatural carnal knowledge with the victim in this case. I therefore pronounce the accused person not guilty of the charge and I accordingly acquit and discharge her on a charge of indecent assault contrary to Section 103 of the Criminal Offences Act, 1960 (Act 29). SGD. H/H AGNES OPOKU – BARNIEH (CIRCUIT COURT JUDGE) 14