Republic Vrs Bregory [2023] GHACC 183 (11 May 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 11TH MAY 2023 CORAM:

HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B6/01/2023

THE REPUBLIC

VS

ABRAHAM BREGORY

ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION, PRESENT

JUDGMENT Sexuality is part of human behaviour. Sweet as sexual intercourse may be, the act somehow is regulated by law. For example, the law frowns upon someone having sexual intercourse with a child who is below sixteen (16) years old. That prohibited act is known in the law as defilement. In Ghana, defilement is defined under the Criminal Offences Act, 1960(Act 29), as amended, as: “For purposes of this Act defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age”. See section 101(1) of Act 29. Subsection 2 of section 101 of Act 29 prescribes the punishment for engaging in this proscribed act, as: 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. Unnatural carnal knowledge is defined under Act 29, inter alia, as sexual intercourse with a person in an unnatural manner…. See section 104(2) of Act 29. Natural carnal knowledge is not defined in Act 29, but the definition of unnatural carnal knowledge implies that natural carnal knowledge is sexual intercourse with a person in a natural manner. In section 99 of Act 29, it is stated that whenever, upon the trial of any person for an offence punishable under this

Code[Act], 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. Accused herein was arraigned before this court upon he having been charged under section 101(2) of Act 29. The following were given as the particulars of the offence: “ABRAHAM BREGORY; FARMER: For that you on 28th October 2022 at about 1:00pm at Nkotumso in the Central Circuit and within the jurisdiction of this Court did unlawfully carnally know one Sarah Amankwaa, Sebe[sic] and Blessing Amankwaa Fosu, females both aged five(years).” For the investigative team to hold that an accused is liable for a crime, they should have conducted cogent investigations to arrive at that conclusion. According to the prosecution, the following facts were gathered as the basis for charging Accused[produced with the grammatical errors and the logical ills]: “Complainants Emmanuel Sebe and Richard Fosu are brothers-in-law, residents at Nkotumso and are all farmers. Both are biological fathers of victims Sarah Amankwaa Sebe and Blessing Amankwaa Fosu, all aged 5years whilst the accused Abraham Bregory, age 31years, is a farmer and a resident at Nkotumso. The victims are cousins. On 28th October 2022, victims were with their elder cousin known as Vivian, a witness in this case. Both victims were

sent by their elder sister to buy gari and on reaching accused’s door which is a pathway, the accused called them and gave them Gh¢1.00 to buy sachet of water for him. Upon bringing the water, the accused lured them into his room and forcibly had sexual intercourse with them in turns and later drove them out. The victims then left for their home. At home the victim Blessing was passing urine when she began to cry that she has pain in her vagina. She cried uncontrollably and was asked by witness mentioned above as to what has happened to her. The victim then stated that when they were sent to buy gari, the accused saw them and gave them Gh¢1.00 to buy him sachet water. That upon bringing it, the accused sent them to his room and had sexual intercourse with them. The victims uncle apprehended accused and interrogated him in the presence of other witnesses available. Accused was later handed over to police and was re-arrested and detained for investigations. The complainants and victims statements were obtained and police medical reports forms issued to them to send victims to any Government hospital for examination and treatments. Statements were obtained from available witnesses. The complainants returned with the victims medical reports forms duly endorsed. Investigation cautioned statement was obtained from accused in the presence of an independent witness and he denied

vehemently of the offence of Defilement and put before this honourable court.” Accused pleaded NOT GUILTY to the charge. Accused therefore joined issues with the prosecution on the above facts. The prosecution was therefore duty bound to prove the guilt of Accused person. Section 10(1) of the Evidence Act,1975(NRCD 323) defines “Burden of Persuasion” and it states: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10(2) of the Evidence Act adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non- existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 defines “Burden of Producing Evidence” and states further as follows: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (2) 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 could find

the existence of the fact beyond a reasonable doubt. (3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. The prosecution called six(6) people to give evidence for them. The prosecution witnesses were referred to as PW1, PW2, PW3, PW4, PW5 and PW6 in order of their appearance in the witness box(first to last). PW1 is the above mentioned Blessing Fosu and PW2 is the above mentioned Sarah Amankwaa. PW3 is the said Richard Fosu and PW4 is the said Vivian. PW5 is the said Emmanuel Sebe. The investigator herein testified as PW6. PW4 when she testified gave her full name as Vivian Fosu. PW6’s evidence was poorly presented; it is fraught with incoherent statements. I will not take the risk of paraphrasing it. I hereby produce verbatim the witness statement of PW6 which got metamorphosed into her evidence-in-chief: “1. I am DW/INSPR. Josephine Appiah-Kubi stationed at the Dunkwa-On-Offin Divisional /DOVVSU.

2. On 29/10/2022, the complainant Emmanuel Sebe and Richard Fosu reported that the case to effect that the accused had sexual intercourse with victims Sarah Amankwaa and Blessing Amankwaa Fosu at Nkotumso near Ayanfuri.

3. Ayanfuri police arrested and brought in the accused person.

4. Police medical report forms were issued to complaints to send victims to Dunkwa- on-Offin Government Hospital for examination, treatment and endorsement.

5. The case was referred to me for investigation.

6. I obtained statements from complainants and available witnesses.

7. Complainant brought in victims’ endorsed police medical report forms from Dunkwa – On – Offin Government Hospital indicating there had been penetrations in victim’s vagina hence defiled.

8. Investigation cautioned statement was obtained from the accused in the presence of an independent witness.

9. The police including one investigator, No. 47796D/CPL Vincent Awudi with the accused person in a pair of handcuffs reported and left for Nkotumso on enquiries. That we got to the house of victims, the victims without the complainant led the police to accused abode and identified his door and where he had sexual intercourse with them in turns.

10. Photographs and video were taken for evidential purposes.

11. Investigation revealed that the accused had sexual intercourse with victims as in their statements, they felt pains in their vagina when passing urine. That the medical officer who attended to them stated in his report that victims’ hymen were broken as a result of forceful penetration.

12. Accused was therefore charged with the offence of Defilement and brought before this honourable court.” Section 37(1) of the Evidence Act states: It is presumed that official duty has been regularly performed. The above presumption is rebuttable, though, but there is the need for a reasonable high standard in the performance of the duty of a state official acting in their official capacity. Evidence-in-chief being the resultant effect of a witness statement should be about admissible evidence. It should contain coherent statements; it should not admit of ambiguities. It must be clear and orderly presented; need I say: it must be sacrosanct. The manner of the presentation of evidence by PW6, the investigator herein, falls short of the standard required of an investigative personnel. Section 69 of NRCD 323 states: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to— (a) make the interrogation and presentation as rapid, as distinct, and as readily understandable as may be, and (b) protect witnesses from being unduly intimidated, harassed or embarrassed. It appears to me that the court’s power to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation as rapid, as distinct, and as readily understandable as

may be, is taken away or rendered practically inapplicable when it comes to witness statements. It is even more so when the other side is unrepresented by a legal brain and if represented by a legal brain, the legal brain fails to raise objection to inadmissible evidence or statements. See section 51 of the Evidence Act. See also section 52 of NRCD 323. The court ought to avoid or ought to be careful suo motu rejecting statements in witness statements in order not to be seen as descending into the arena of conflict. The court can, however, assume its hot seat under section 69 of the Evidence Act supra when it comes to cross- examination. PW6 sought to tender in evidence the medical report on the victims. That of PW2 was admitted in evidence and marked. It is dated 29th October 2022 and it reads: “29/10/22 THE MEDICAL OFFICERS REPORT(PLEASE WRITE CLEARLY) RE: SARAH AMANKWAH Presenting complains – Painful urination lower abdominal pain History of Presenting Complains mother claims child was sexually assaulted by a man three days before Presentation resulting … in the above symptoms. On examination: Hymen is broken, perineum is hyperemic with multiple bruises and abrasions Impression = Defilement” In the witness statement of PW6, she stated that she issued the police medical form to complainants and that complainants brought the endorsed forms to the police. The mother of the said

victim in Exhibit C was not a complainant; yet she gave information to the medical officer. The prosecution did not call the mother of the said victim to testify. It is intriguing that on the face of the said medical report, the mother of the said victim is said to have stated that the incident took place three days before the day they were before the doctor. I gather from the endorsement of the medical officer that the victim was examined on 29th October 2022. Interestingly, on the charge sheet, it is stated that the incident took place on 28th October 2022. There is clear inconsistency here as regards the date the incident took place. Also I find it inappropriate for the medical officer to give his impression as defilement as on the medical report. The term ‘defilement’ as used in the law, is being used as a term of art and it has the definition as in section 101(1) of Act 29 supra. In ordinary English language, ‘defilement’ has its various meanings – in Oxford Advanced Learner’s Dictionary, ninth edition 2015, ‘defile’ is defined, inter alia, as: “to make something dirty or no longer pure, especially something that people consider important or holy” The doctor here is acting as a medical officer and not a legal officer. He may have legal training, but he has been called upon to give an impression as to whether his findings suggest that a penis entered the vagina of the

victim to cause the things he observed in the vagina. Whether or not whatever findings the doctor made amount to defilement as in law is a matter for the court to determine. In fact in a defilement case, the key issues are: 1. Whether the accused had sexual intercourse with the victim. If so 2 Whether at the time of the sexual intercourse the victim was less then sixteen(16) years of age. Accused did not dispute the age of the victims. The court by ocular observation had no doubt that the said victims were five years of age. The issue that remains to be determined is the issue about sexual intercourse. In Oteng v The State[1966] GLR 352@ 354, SC, Ollennu JSC stated: “One significant respect in which our criminal law differs from our civil law is that, while in civil law a plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain conviction upon mere probabilities.” This principle was echoed in the Evidence Act of 1975 i.e. NRCD 323, in section 13(1), to wit: In any 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 a reasonable doubt. See Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 138 and also Fenuku v John-Teye [2001-2002] SCGLR 985 Therefore, if there are inconsistencies as regards the case of prosecution that create doubts in prosecution’s case,

that inures to the benefit of the accused and may end in the acquittal of the accused. I have not yet talked about the medical report of the other victim. When PW6 sought to tender in evidence what she said was the medical report of PW1, the court made the following pronouncement: “On the endorsement of the medical officer, ‘Vivian Fosu’ is the name written. I observe that ‘Vivian’ was written at the front page and later cancelled and ‘Blessing’ written on the next line. It does appear to me that at the time the medical form was presented to the medical officer the name ‘Vivian Fosu’ was given and later the cancellation and insertion of ‘Blessing’ came up. I hereby hold that the document is tainted and lacks credibility and therefore in accordance with section 52 of the Evidence Act, it is rejected and marked R1.” That is the story of the supposed medical report of PW1. It did not find itself on the Promised Land. Ollennu J(as he then was) in Majolagbe v. Larbi [1959] GLR 190 made reference to a dictim he gave earlier in Khoury and Anor v Richter which judgment was delivered on 8th December, 1958, as regards proof in law. That dictum has been referred to with approval in Klutse v. Nelson (1965) GLR 537 @ 542 and also Baah Ltd v. Saleh Brothers [1971] 1GLR 119. It is: "'Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of

proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true'." In Ackah v. Pergah Transport Limited and Others[2010] SCGLR 728 at 736; Sophia Adinyira JSC threw more light on burden of proof and when she stated that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable[sic] than

its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree[sic].” PW1 and PW2 gave viva voce evidence-in-chief. According to PW1, she and one Amankwaa Junior were sent by Accused to buy water. When they sent the water to Accused, Accused had sex with them. PW1 stated that Accused put her down and slept on her; Accused then put his penis into her vagina and that Accused did that to her in his room. PW1 further stated that after the act Accused asked her and Amankwaa Junior to go home. According to PW1, when she went home, she could not urinate. PW2, on her part, stated that Accused took her and one Blessing into his room. Accused removed their panties and put his penis into their vaginas. Cross-examination Accused did of PW1 is as follows: Q. I put it to you that all that you have told the court is not true. A. All that I have told the Court is true. Q. I put it to you that I have hernia and so I cannot have sexual intercourse with you. A. It is not true. Q. I put it to you that it is not true that I had sexual intercourse with you. A. It is true that you had sexual intercourse with me. Cross-examination Accused did of PW2 goes: Q. I put it to you that all that you have told the court is not true. A. All that I have told the Court is true. If Accused had hernia and, as he said, was incapable of having sexual intercourse, the

onus was on him to so prove that. Accused failed to produce evidence to establish that. See Commissioner of Police v. Isaac Antwi[1961] GLR 408. In the investigation cautioned statement of Accused as tendered in evidence by PW6 and marked Exhibit A, Accused stated: “I am a farmer resident at Nkotumso. I came to Nkotumso about 3 weeks ago and in my second week. I called the victims Amankwaa and Amankwaa at my door entrance passing by to buy one cedis[sic] worth of sachet water. On their return with the sachet water, I was on phone so they sat beside me on a cemented seat beside my room. After the phone call, I drove them away. From that day I never set eyes on them again until on 28/10/2022 I was invited over by Rasta through two gentlemen that I can make out when seen with one of the victim[sic]. On reaching where I was, the victim identified me to the two gentlemen that I am the one sitting there. By then the gentlemen had passed by me so they returned and said their senior man Rasta wants[sic] to see me so they took hold of my hands and sent me to him. They then started beating me from all angles, that I have had sexual intercourse with the victims. I have never had any sexual intercourse with the victims as alleged but due to the beatings meted out to me, I said I have[sic] done it. It is never true I have had sexual intercourse with the kids as alleged.” Section 173 of the

Criminal and Other Offences(Procedure)Act, 1960(Act 30) reads: If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him. Despite the murky nature of the prosecution’s case, the Court, upon evaluation of the totality of the evidence produced by the prosecution, held that the prosecution had made out a case against Accused. The Court therefore called on him to open his defence, if he so desired. The Court went on to explain section 174(1) of Act 30/section 63 of NRCD 323 and Article 19(10) of the Constitution to Accused. Section 174(1) of Act 30: At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence. Section 63 of NRCD 323 states: (1) An accused in a criminal action may make a statement in his own defence without first taking an oath or affirmation that he will testify truthfully and without

being subject to the examination of all parties to the action. (2) Such a statement by an accused is admissible to the same extent as if it had been made under oath or affirmation and subject to examination in accordance with sections 61 and 62. (3) The fact that the evidence was given without oath or affirmation, or that there was no possibility of examination, may be considered in ascertaining the weight and credibility of the statement, and may be the subject of comment by the court, the prosecution or the defence. Article 19(10) of the Constitution, 1992 states: No person who is tried for a criminal offence shall be compelled to give evidence. Accused stated the following from the dock: “I have nothing to say. All that I have to say is that I am innocent.” In Commissioner of Police v. Isaac Antwi supra, Korsah CJ stated: “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the

burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.” The learned judge continued, referring to Archbold's Criminal Pleading, (34th ed.) at p. 371, para. 1001, that: "Where the prosecution gives prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them." The Court is enjoined by law to make a determination on this matter on all the evidence. See section 11 of NRCD 323 supra. Accused failed to introduce evidence to seek to persuade the court to rule in his favour. See section 10 of NRCD 323 supra. However considering all the evidence of Prosecution, I find that the evidence as regards Blessing Fosu does not

suffice to persuade the Court that she was defiled. I say the contrary of Sarah Amankwaa. I hereby pronounce Accused guilty of defilement (of the said Sarah Amankwaa). Accused is convicted accordingly. In sentencing Accused I have considered the period he has been in lawful custody. Accused was put before this court for the first time on 05th December 2022 and has been in custody since then. Article 14(6)of the Constitution states: Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment. I have also considered the fact that Accused has been well behaved throughout the trial, I would have sentenced him to eight(8) years imprisonment but in accordance with Article 14(6) of the Constitution supra, I sentence Accused to seven and a half(7(1/2))years imprisonment in hard labour.

HH YAW POKU ACHAMPONG

CIRCUIT COURT JUDGE 11/05/2023 (SGD) 15