The Republic Vrs Obeng & 2 Others [2023] GHACC 388 (6 June 2023)

Rep. v Francis Obeng&Ors. IN THE GENDER-BASED VIOLENCE CIRCUIT COURT AT SEKONDI –W/R, HELD ON TUESDAY, 6THJUNE 2023 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ……………………………………………………………………………….………. C6/22/20 THE REP. Vs 1. FRANCIS OBENG@KOBBY 2. GEORGE ANNAN 3. ABDUL GAFAR YAKUB A1: PRESENT A2&A3: ABSENT PROS.: SGT. E. K. O. AGYEMAN C/ACC.: STEPHEN K. KESSE, Esq. JUDGMENT Together with A2 & A3, A1 was charged with two counts of conspiracy to commit crime, abduction of a female under 18 years and defilement contrary to ss. 23, 91 &101 of the Criminal (And Other Offences) Act, 1960 (Act 29). Upon arraignment, A3 pleaded ‘Guilty’ to the four charges, was convicted and being a juvenile, was remitted to the Juvenile Court, Sekondi for sentencing in accordance with s. 18(1) of the Juvenile Justice Act, 2003 (Act 653). A1 & A2 pleaded “Not Guilty” to the four charges. At the close of the Prosecution’s case on 27/7/21 and in accordance with ss. 173 & 174, of the Criminal (Procedure) Act, 1960 (Act 30), I considered the facts and evidence presented and delivered a Ruling acquitting A2 of the offences and upon a finding that the Prosecution had made a prima facie case, called on A1 to open his defence in respect of Counts 1, 2 & 3 in accordance with s. 174 of Act 30. A1 was discharged of the offence of defilement. SUMMARY OF FACTS Page 1 of 11 Rep. v Francis Obeng&Ors. The facts presented were that on 19/05/2020, the three accused persons conspired and lured 14-year-old Rebecca Quaicoe@ Maame Efua (for purposes of this judgment to be called the ‘victim’) to their room atAgona Nkwanta. The next day, 20/05/2020 A1 was said to have bought a bottle of energy drink, suspected to have been laced with an intoxicant and gave it to the victim, making her drowsy and unconscious. In her inebriated state, the accused persons allegedly took turns and had bouts of sexual intercourse with her. On 21/05/2021, the victim regained consciousness and realized that she was bleeding profusely from her vagina. Wearing A3’s shorts under her dress to cover the bleeding, the victim went home on 21/05/2020, two days after she went to A1’s room. In her mother’s absence, she narrated her ordeal to a neighbour and landlord who took her to the Agona Nkwanta Hospital where she was later referred to the Dixcove Hospital. The victim stayed on admission from 21/05/2021 to 25/05/2020. Sections 23 &24 of Act 29 define conspiracy, the scope, and the punishment upon conviction and do not bear repeating. The new formulation for the ingredients of a charge of conspiracy was discussed in the Rep. v Ernest Thompson & 4 ORS. [2021] DLSC10174 as follows; “where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence” At page 25 of the judgment, HL AmaduTanko, JSC noted that “in this new formulation, this court noted that the only ingredient that had been preserved is ‘the agreement to act to commit a specific crime, to commit or abet commission of that crime’. The effect of the new formulation of the offence of conspiracy as defined by this court is that the persons must not only agree or act, but must agree to act together for a common purpose. Having regard to this new formulation of the offence of conspiracy a person could no longer be guilty of conspiracy in the absence of any prior agreement”. For a similar explanation on the new formulation of conspiracy, see also the Page 2 of 11 Rep. v Francis Obeng&Ors. case of Republic v Augustina Abu [AC] 2010 delivered on 23/12/2010. In Faisal Mohammed Akilu& 2 Ors. v The Rep. [2013] DLCA 4738 the court determined that conspiracy is a two- edged definition that includes the establishment of either a prior agreement OR acting together. The prosecution will thus have to prove that the accused persons had a prior agreement and acted together in carrying out the offence(s). In Ayareba v. The Rep. [2016] 97 GMJ@ 125 and Nyarkovrs The Rep. [2015] 89 GMJ @ 27 the court stated that proof of conspiracy could be by direct or circumstantial evidence. In the Augustina Abu case (supra) the Supreme Court noted that where circumstantial evidence is being relied on “the circumstances establishing the facts from which conspiracy is to be inferred must lead uniquely to an inference of the existence of an agreement. … If the circumstances merely lead to suspicion that there might have been such an agreement, the charge of conspiracy is not proved”. s. 92 (2) of Act 29 provides that; “a person is guilty of abduction of a child who with intent to deprive any person entitled to the possession or control of the child or with intent to cause the child to be carnally known or unnaturally carnally known by any person— (i) unlawfully takes the child from the lawful possession, care or charge of any person; or (ii) detains the child and prevents the child from returning to the lawful possession, care or charge of any person. In order not to run the risk of misquoting or losing the import of ss. 91 & 92 of Act 29 and the ingredients required to prove the offence of abduction, I shall quote copiously from pages 276-277 of P. K. Twumasi’s book “Criminal Law in Ghana”. “The person entitled to the possession or control of the female may be a parent, guardian or any other person. The fact that the female is absent from the possession, care, control or charge of any of these persons does not divest these persons of their control, nor does it mean that the female is independent if her absence is for a special purpose only, and she is minded Page 3 of 11 Rep. v Francis Obeng&Ors. or has intention of returning home. The prosecution need not prove that the taking or detention of the female was without her consent. It suffices if the prosecution can show that the accused persuaded or aided or encouraged the female to depart from or not to return to the lawful possession of the person entitled thereto (s. 95 (a) of Act 29). This means that if the girl under eighteen years of age was taken even with her own consent out of the possession, care or control of her parent, guardian or any other person, it is necessary for the purposes of the section to prove that the girl left such possession in consequence of persuasions, aiding or encouragement of the accused to depart or not to return” In addition to the above requirement, the prosecution must also prove the age of the girl and the fact that she was under the care or control of some person. A known loose, vagrant or street child will not be deemed to be under the care of a parent or other person: see R. v Jarvis (1903) 20 Cox CC.249, unless the prosecution is able to prove a positive act on the part of the accused that made such a female to be in his possession as under Ghanaian law, the consent of a female child under 16 years is null and void. It must also be stated that it is immaterial that the detention or taking of the female from a parent or other, was only brief and not of a permanent nature. Indeed, it is immaterial too that an accused person had an intention of returning the girl to his parent or other person. Reference s. 95 of Act 29, titled “Special Provisions as to Child Stealing and Abduction” In the instant case, what was the direct or circumstantial evidence that Prosecution adduced to lead to an irresistible conclusion that accused persons agreed to act and acted together to abduct the victim for A3 to defile her? What evidence supports the facts that A1 abducted or aided A3 to abduct the victim? From PW2’s (the victim) testimony, A1’s part in the story was inviting her to his place of abode for a message on 19/05/2020. In the evening of the same day, A3 reminded the victim of A1’s earlier invitation and so she went to A1’s house. Upon arrival, she met A2 & A3, not A1. A3 left the room when his mother called. He locked up the victim in A1’s room Page 4 of 11 Rep. v Francis Obeng&Ors. before leaving. Later, A3 returned to A1’s room and spent the night of 19/05/2020 together with the victim. The next appearance of A1 in this story was on the morning of 20/05/2020 when he bought food and Rush energy drink for the victim. I make a finding of fact that the victim spent the night of 19/05/2020 with A3 alone based on her testimony in paragraphs 7 & 9 of her Witness Statement (WS) where she said; 7. Accused Gafar told me that he loves me but I said no. Kobby’s brother, who is the other accused person left the room leaving me, and accused Gafar” 9. When accused Gafar came back to the room, he prevented me from leaving. The following morning, when accused Kobby (A1) came, he asked me why I did not go home. I told him Gafar prevented me from going home” PW3, John Appiah’s testimony did not speak to events leading to 19/05/2020. It centered on events post-21/05/2020 when the victim returned home. Under cross-examination, he admitted that he could only testify to the fact of the victim lying on the ground, wearing PE shorts with blood stains on her thighs and legs. I have examined the investigator’s (PW4) testimony and similar to PW3, it narrated events post-21/05/2020 when a complaint was lodged, not events that support prior agreement amongst the accused persons. From the analysis preceding, I find no direct evidence of collusion or prior agreement or acting together between A1 & A3 to commit the acts of abduction and defilement. The next exercise is to find direct or indirect evidence or logical inferences that will support a conspiracy between A1 & A3. Section18 (2) of the Evidence Act, 1960 (NRCD 323) provides that “an inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action”. In other words, where a court has a set of facts on record or established, it may come to certain conclusions when it examines them in the totality of other facts presented. See Logan &Laverick v The Rep. Page 5 of 11 Rep. v Francis Obeng&Ors. [2007-2008] SCGLR 76 and Dogbe v. The Republic [1975] 1 GLR 118. On record, A1 spoke with the victim at the market on 19/05/2020 and asked her to see him for a message which has been established to be the love proposal of A3. In the vernacularlingua, A1 acted as the “betweener” for A3 and the victim. PW2 confirmed A1’s role on page 23 of the ROP when she answered; “It was not Gafar who told me he loved me. It was Bro. Kobby who told me that Gafar said he loved me” “Yes, it was through Bro. Kobby that he proposed to me” Before 19/05/2020, communication that ensued was between A1 and the victim; no evidence of communication between the accused persons was presented and although it may be inferred that A1 & A3 would have discussed the love overtures to be made to the victim, the question is whether that is sufficient evidence of a conspiracy between A1 & A3?How about A1 buying food and drink for the victim and insisting that she consumes them? Do these show a previous concert to commit the offences of abduction and defilement to which A3 was convicted for?The evidence shows that A1 knew the victim well enough within the Agona Nkwanta neighborhood. He conveyed A3’s ‘love’ message to her in the market. This is the full evidence Prosecution presented to prove prior agreement between accused persons, specifically A1 & A3. From this, I find that acting as a ‘betweener’, for two 14-year-olds though presumptively involves communication and concert as confirmed by the victim and A3, same does not meet the standard of proof required to prove prior agreement to establish conspiracy. The law for the establishment of prior agreement as discussed elsewhere in this judgment requires the accused persons to have agreed to commit or abet the commission of a specific offence. In this instance, I find that the prior agreement between A1 & A3 was for A1 to be the ‘betweener’and as the roles of ‘betweeners’ go, to convey messages between the two ‘partners’ as to locations for meetings, make arrangements, etc., especially where one or both of the so-called lovebirds Page 6 of 11 Rep. v Francis Obeng&Ors. cannot conveniently be available as and when. This was what A1 did and despite his denial of conveying a message to the victim at the market, I find from A1’s and the victim’s testimonies that both were quite familiar with each other, at least from the victim watching TV in A1’sroom in times past. On the circumstantial evidence, I find that A1 facilitated the visit of the victim to his room for the purpose of a meeting with A3 and it was no surprise therefore, that he deliberately vacated his room on the 19th. From the totality of evidence before the court, the place of commission of the offences was A1’s place of abode. In his defence, A1 testified that he was away at work on the 19th when A3 brought the victim home. His testimony on where he was on the night of 19th was confusing. A1 told the Court that he stayed overnight at his master’s shop to repair phones, do some ‘hardware and software’. In the same breath, he again testified that he asked A2, his brother, to meet him at a roundabout where he bought food which they took to his (A1’s) master’s house, ate and then the two played ‘TV games’. A1 sought to use A2 as an alibi for his whereabouts. Accordingly, relative to the victim coming to his room on the 19th it was established that A1 was away although he was aware of her visit considering his role as a ‘betweener’. Indeed, I find that his absence was well-planned. A1 again testified that he only found out about the victim’s overnight stay when he returned the following day; the morning of 20th. He said he took his bath, changed clothes, and left for work again after he bought a bottle of ‘Rush’ drink for himself but gave the same to A2, not the victim. In another breath, he testified that he gave the victim the ‘Rush’ drink because he was concerned for her well-being after he was told that she was hungry. It is baffling that after being told that the victim had spent the night in his room, A1 gave her ‘Rush’, a known energy booster that does not stave off hunger but rather gives instant energy and makes one hungrier. What will be the point of giving a hungry person a drink that will make her hungrier? Page 7 of 11 Rep. v Francis Obeng&Ors. Should A1’s defence of lack of knowledge of the victim’s visit be believed, for the purposes of argument, I find that at least 24 hours later on the 20th A1 became aware of happenings in his room when A2 told him that the victim spent the previous night of 19th in his room at the instance of A3. It is curious that A1 provided at least a drink and food to the victim, an act of hospitality that a welcome guest would receive, not one allegedly unwelcome by a host or another guest, in this instance A3 who was living under A1’s care. Knowing the victim from previous encounters, if he intended to send her away or compel A3, a much younger child to do so, he would have. Rather, he left the victim and A3 in his room and went to work and it was at this point that his culpability begun. It is on record that the victim went to A1’s room on the 19th and returned home on 21st. She spent two nights and three days in the room of A1. Granted that perhaps he was away at work throughout the night of Tuesday, 19th, returned home on the morning of Wednesday 20th, left again for work and returned in the evening of the 20th, presumably slept in his room because A1 offered no explanation as to his whereabouts on the 20th but going to work and returning, left for work the following morning, Thursday 21st and returned in the evening to still find the victim and A3 in his room. According to him, he sacked both the victim and A3 in anger, watched TV till he fell asleep and was later awoken by the youth of the area who beat he and A2 up, arrested them and took them to the police station. The obvious gap in his defence is what he did, or perhaps did not do, on the morning and night of Wednesday, 20thand in the morning of 21st when he knew of her and A3’s continued stay in his room? A1 denied that he conspired with A3 to abduct the victim because he did not act as a ‘betweener’ for A3. He said he did not ask her to come to his home when he met her at the market selling mangoes. He said he did not know that A3 was or had had sexual intercourse with the victim. However, the evidence points otherwise. Page 8 of 11 Rep. v Francis Obeng&Ors. First, without much more, from the definition of abduction in s. 92 of Act 29, I find that A1 gave A3’s love message to the victim and encouraged her to visit, but this does not amount to abduction as the evidence does not support the fact that he took her out of the possession and care of her parents. The evidence shows that A1 created the opportunity for a visit with his absence. It is impossible for A1 to convince any court that despite being in the same room, a single room at that, with A2, A3 and the victim, he did not know that the two were having sexual intercourse. I must say under the circumstances, it would take a blind, deaf and dumb person not to know or at least sense sexual activity in such close confines, which A1 definitely is not. Therefore, I reject his defence that he was not aware of the sexual activities in his room. However, is enablement equal to acting together with another accused person to commit a crime? In the victim’s testimony, she said that she told A1 that A3 had prevented her from leaving and that was why she was still in his room on 20th. Knowing the victim within the neighborhood as someone who previously came to his room to watch TV with her siblings and other children in the neighborhood, to absolve himself of complicity A1 being the eldest of the accused persons, should have sent the victim home. Rather, knowing very well that she had spent the night in his room with A3, also a child, he condoned their actions by leaving his room for them and going to work. I make a finding of fact that by the morning of the 20th, A1 knew and by his tacit actions, consented to the continued stay of the victim in his room. Does A1’s enablement of A3’s actions amount to conspiracy to abduct, abduction and conspiracy to defile? To answer this question, Prosecution must have led further medical or other evidence of ‘lacing’ of the Rush drink given to the victim. The testimony of PW3 that he while at home, he found her weak and unable to answer his questions does not meet the standard of proof required by law to support the assertion that the victim had been drugged. It is my considered opinion that PW3’s testimony was not one that a court could confidently rely on to prove a matter that was best proved by laboratory testing. Besides, Exh. J (the medical report) noted that the victim was ‘fully conscious’ as at 5:16pm on the 21/05/2020 when she was Page 9 of 11 Rep. v Francis Obeng&Ors. presented. There was no mention of suspected toxins in her body and no toxicology report was presented to support the allegation of her being ‘drugged’. Secondly, Exh. J was insufficient to prove that more than 1 person had sexual intercourse with the victim. The narrative that she was unconscious gave no support that A1 or A2 had acted together with A3 to defile the victim. Without the relevant evidence, I cannot make a finding that A1 acted together with A3 who defiled the victim. The sore temptation to hold A1 responsible as a ‘betweener’ for two children experimenting under hormonal influence can be justified morally. However, proof of a crime in law must be ‘beyond reasonable doubt’ in accordance with s. 13 of NRCD 323. Despite the inconsistencies and veiled untruths in his defence, the circumstantial evidence presented does not lead to a unique inference of the existence of an agreement or acting together but rather a suspicion that there might have been such an agreement. According to the Augustina Abu case, such a suspicion is not proof of conspiracy and the benefit of the doubt then goes in favour of the accused person. DECISION A1 is hereby acquitted of the offences of conspiracy to commit crimes, namely abduction and defilement and abduction, contrary to sections 23 and 92 of Act 29. ................................................................. H/H NAA AMERLEY AKOWUAH (MRS.) Page 10 of 11 Rep. v Francis Obeng&Ors. Page 11 of 11