IBRAHIM VRS REPUBLIC (CR/0182/2023) [2023] GHAHC 626 (31 October 2023)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 31ST DAY OF OCTOBER 2023 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0182/2023 DICKO IBRAHIM APPELLANT VRS THE REPUBLIC RESPONDENT JUDGMENT The Appellant herein was charged with the offence of defilement of female under sixteen (16) years of age contrary to Section 101 (2) of the Criminal Offences Act 1960 Act 29 and was arraigned before the Accra Circuit Court on the 23rd May 2019 wherein he pleaded not guilty to the charge after same was read and explained to him in the French language. After a full trial, the accused was on the 30th of December 2019 found guilty, convicted and sentenced to ten (10) years IHL. It is against this judgment that the appellant filed the instant appeal on the 15th of February 2023 pursuant to leave granted by the High Court. GROUNDS OF APPEAL The grounds of appeal filed are that: 1. The judgment of the lower court cannot be supported having regard to the evidence on record. 2. The learned trial judge respectfully erred in law when she held that "the victim has been carnally known at the time she was below age 16 years and it was the accused person who defiled her" without specifically stating the evidence that linked the appellant directly to the commission of the offence. 3. The learned trial judge respectfully erred in law when she held that "the accused person's denial simplicitor of the offence could not avail him, he did not present himself as a witness of truth. He could not cast any reasonable doubt in the prosecution's case" when the court didn't specify in her analysis of the evidence of the appellant the reasons for her holding why the evidence of the appellant is untruthful to the court. 4. The learned trial judge respectfully erred in law when she didn't consider the defense of malice raised by the appellant vis a vis the alleged date of commission of the offence and the date a report was made to the police. Particulars of errors. a. The complainant alleged that the offence was committed on the 28th day of April, 2019 while she was notified by the victim on the 13th day of May, 2019 b. The complainant who alleged that the victim informed her of the incident on the 13th of May, 2019 didn't report the case to the police until the 16th day of May, 2019. c. The medical examination of the victim was conducted on the 17th day of May, 2019 without any medical link to the appellant. 5. The learned trial judge erred in law when she convicted the appellant with the uncorroborated evidence of the said victim. 6. That the conviction of the appellant was wrong in law. FACTS OF THE CASE The case of the prosecution at the trial was that the complainant, Salamatu Dawuda a thirty nine (39) year old food vendor resident at Korle-Gonno, Accra is the aunt of the victim Heebatu Numbu Ibrahim who is nine (9) years old. The accused person Dicko Ibrahim according to the prosecution is thirty two (32) years, a mason and resides at James Town, Accra. The case of the prosecution is that on 28th April, 2019 at about 11:00 am, the victim went to assist the complainant to sell her cooked food at where the accused person works. On same day at about 6:00 pm, the complainant asked the victim to go round the place to collect bowls from her customers who had finished eating and wash same. The prosecution’s case continues that whilst the victim was collecting the bowls and on reaching the accused person's place, the accused person asked her to enter his wooden structure to get a sachet of water for him to which she obliged. Just as she entered, accused person also followed and held her. He put her on a bed which was in the wooden structure, removed her skirt, blouse, pants, and he also removed his shorts and had sexual intercourse with her. The prosection added that after the sexual act, the accused person warned the victim not to disclose her ordeal to the complainant or anyone and that if she does he would beat her up. On 13th May, 2019 at about 4:00 pm, the complainant detected that the victim was not walking well and she asked what was wrong with her. The victim then narrated her ordeal to the complainant and led the complainant to the said wooden structure where the accused person lives but he was not around and had gone into hiding. On 15th May, 2019 at about 3:30 pm, the prosecution states that, the complainant spotted the accused person at James Town and she alerted Police and he was arrested. The accused person was brought to DOVVSU where the complainant lodged a formal complaint. According to the prosecution, the complainant was issued with Police medical report form to send the victim to hospital for examination, treatment and report. The medical report form was duly endorsed by a medical officer. A cautioned statement was obtained from accused person and after investigations, he was charged with the offence and put before court. SUBMISSIONS OF COUNSEL FOR APPELLANT Counsel for the appellant submitting collectively on grounds one to five as he claims that they are interwoven and interrelated asserted that the judgment of the trial court cannot be supported having regards to the evidence on record. He argued that the evidence on record particularly the defence put up by the accused person showed that the charge was actuated by malice on the part of the complainant PW2. He stated that the evidence of the PW2 shows that the allegation that it was the appellant who had sexual intercourse with the victim was based on malice as the record show that the PW2 is not a credible witness. He also submitted that the disqualification of the appellant’s witness by the trial judge was a violation of the constitutional rights of the appellant. He also submitted that the evidence of the medical officer is clearly inadmissible as according to him the evidence is manifestly unreliable that no court can safely sentence a person relying on it. He added that the trial judge did not avert her mind to the contradictory evidence of the prosecution. On ground six (6), he submitted that the trial court was duty bound “…to ensure that the accused person is informed of his right to engage the services of a legal practitioner of his choice and where he is indigent and cannot afford the services of a lawyer due to financial incapacity, then the court ought to inform the accused person of the availability of legal services of the Legal Aid which can provide legal services to him.” He added that it is when the options available to the appellant are conveyed to him in plain and clear language that he can be deemed to have waived his right to engage a lawyer and defend himself He therefore prayed the court to allow the appeal and set aside the conviction of the appellant as there was no fair trial. SUBMISSIONS OF THE REPUBLIC/RESPONDENT The learned State Attorney on her part submitted on grounds 1, 2 and 5 that the appellant’s conviction is amply supported by the evidence on record and same is clear from the record of appeal. She submitted that from the record, the prosecution was able to prove the essential ingredients of the offence i.e that the victim is under sixteen (16) years of age, that someone had had sexual intercourse with the victim and that it was the accused person who had carnal knowledge of the victim. Contrary to the assertions of the counsel for the appellant, she asserted that the victim’s evidence that it was the appellant who had sexual intercourse with her was corroborated by the evidence of the PW2, PW3 and PW4. With respect to grounds 3 and 4, she outlined the defense the appellant raised at the trial and submitted “the record shows clearly that the appellant did not offer any reasonable explanation for the charge and evidence led against him by the prosecution. The assertion the appellant made about the allegations being a frame up was a mere afterthought and a sham as no evidence on the record corroborated this assertion. Also, the fact that he abandoned his abode right after the incident with the explanation that he had a problem with his master without connecting how that warrants packing out of his abode to sleep somewhere” She submitted on ground six (6) that there is no evidence on record to suggest that the appellant was denied a fair trial or that any of his fundamental human rights had been infringed upon as contended. It is the case of the respondent in sum that the conviction and sentence of the appellant by the trial judge is sound in law as same is supported by the evidence on record and as such the trial judge in doing so did not commit any error in law. As far as the Respondent is concerned, the appellant has woefully failed to show that his conviction and sentence has occasioned a substantial miscarriage of justice and therefore urged this court to affirm the conviction and sentence of the appellant and dismiss the appeal in its entirety. BURDEN OF PROOF Dzamefe JA in the case of Patrick Mordo v the Republic [2019] 140 GMJ at page 243 referring to the case of Tuakwa v Bosom [2001-2] SC GLR 61 stated that at the hearing of an appeal, an appellate court is under an obligation to analyze the entire record of appeal, take into account the testimonies and all the documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself in a civil trial that on a balance of probabilities, the conclusions of the trial judge are reasonable or are amply supported by the evidence and in criminal cases that the decision of the court is reasonably supported by the evidence on record beyond doubt. He opined further that the appellate court is entirely at liberty to review the evidence on record and find out whether the evidence supported the findings made by the trial court. This is because an appeal is said to be a rehearing. The well-known principle on the accepted standard of proof in criminal prosecutions is that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Woolmington v. D. P. P. [1935] A. C. 462, which is the locus classicus, laid down the principle which has been followed in numerous Ghanaian cases. All that an accused person is required to do in a criminal trial is to raise a reasonable doubt as to his guilt. The onus therefore is heavily on the prosecution to prove beyond reasonable doubt that the appellant herein within the period stated on the charge sheet defiled the victim. The prosecution therefore bore the burden to prove that the appellant herein committed the offence he has been charged with. It is also important to remind ourselves that in a criminal trial, it is not the duty of the accused person to prove his innocence, the burden to prove the guilt of the accused person is cast heavily on the prosecution but when it shifts to the accused person, it requires him to just raise a reasonable doubt. In the case of Isa vrs The Republic (2003-2005) 1 GLR 792 HOLDING (2), it was held that: “…Thus, although an accused person was not required to prove his innocence, during the course of the trial, he might run a risk of non-production of evidence or non-persuasion to the required degree of belief or both, particularly when he was called upon to mount a defence…” DETERMINATION OF THE GROUNDS OF APPEAL Grounds two (2) to five (5) of the record of appeal are basically subsets of ground one (1) of the grounds of appeal as rightly conceded to by counsel for the appellant in his written submissions. Grounds one to five is in effect a contention that the judgment of the trial court cannot be supported having regards to the evidence on record. I would therefore on that background proceed to analyze the entire evidence on record to determine if the evidence on record supports the conviction of the accused person by the trial Circuit Judge beyond reasonable doubt. I would therefore be considering the entire record of appeal as well as the written submissions of counsel for the appellant filed on the 17th of October 2023 and that of the learned State Attorney filed on the 10th of October 2023. However before this appellate court proceeds to consider the evidence, certain procedural steps taken by the trial judge has been attacked by the counsel for the appellant as being contrary to law and practice and therefore prays the court to based on those errors and the insufficient evidence on record to prove the case against the accused person, set aside the conviction against the appellant herein. PROCEDURAL ISSUES RAISED One issue raised by counsel for the appellant is the admissibility of the caution and charge statements taken on the 16th of May 2019 and the 22nd of May 2019 which the prosecution tendered into evidence as Exhibit C and D respectively. It is the submission of counsel for the appellant that exhibit C and D were taken in contravention of Section 120 of the Evidence Act 1975 Act 323 as on the face of the statements there was no independent witness present during the taking of same. Upon a perusal of exhibit C and D, rightly same were taken while the accused person was at the police station upon his arrest and there is no presence of an independent witness during the taking of same. The failure of the said statements to be taken down in the presence of an independent witness is a flagrant disregard for the mandatory provisions of the Evidence Act NRCD 323 and ought not to have been admitted into evidence. The law is that when a statement or document is admitted into evidence without objection, an appellate court can reject same when it is inadmissible per se notwithstanding the rule that once evidence has gone on record, a court is bound to consider it. Atuguba JSC in Network Computer System Ltd vs Intelsat Global Sales & Marketing Ltd 1 SCGLR 218, [2012] 41 GMJ 69 SC stated that “ A court cannot shut its eyes to the violation of a statute as that would be very contrary to its raison d’etre” In Republic v. High Court (Fast Track Division) Accra; Ex parte National Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties) 2009 SCGLR 390 at 397 the court held that: "It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute is, unless expressly or impliedly provided, a nullity." At page 402 of the report, Date-Bah JSC said: "No judge has authority to grant immunity to a party from consequences of breaching an Act of Parliament." The court is a creature of statutes and the rules of evidence are also governed by statute. Where there has been an infraction of a statute, the court cannot simply ignore it as has been held in cases including the case of Abed Nortey (No.2) v African Institute of Journalism and Communication & others (No 2) [2013-2014] 1 SCGLR at page 717 that the “stark infringement of the statutory requirement renders the Exhibit A of no probative value as rightly determined by the Court of Appeal. Notwithstanding that the exhibit A was accepted in evidence without any objection, it could not constitute evidence for the purpose for which it was tendered…because our courts have a duty to ensure compliance with statutes…” In such a case, an appellate court is clothed with the authority to disregard or reject that evidence and base its judgment solely on legally and properly admitted evidence. To that extent, this court being an appellate court and an appeal being a rehearing would not attach any weight to the said statements Exhibit C and D and would rather focus and decide the instant appeal on the basis of the legally admitted evidence. One other issue raised by Counsel for the Appellant is the disqualification of the Accused person’s witness during the trial. The accused person’s DW1 Sumah iddrisu was disallowed by the trial judge from testifying as according to the judge, “the DW1 has always been in court and even at a particular day DW1 raised the hands and told the court that the complainant has been insulting him, and as he rightly put it, he said he did not know he was going to be a witness so sat through, he is disqualified” The decision of the trial judge to disqualify the said Sumah Iddrisu from testifying was clearly an error of law. That is because as rightly submitted by counsel for the appellant in his written address, per the Evidence Act 1975 Act 323, the fact that a person sat in the gallery while proceedings were ongoing and heard witnesses testify does not mean that such a person is disqualified from testifying as a witness. Per Section 59 (1) (a), (b) and (2) of the Evidence Act 1975 Act 323 “(1) A person is not qualified to be a witness if that person is (a) incapable of coherent expression so as to be understood, directly or through interpretation by another person who can understand that person; or (b) incapable of understanding the duty of a witness to tell the truth. (2) A child or a person of unsound mind is competent to be a witness unless the child or that person is disqualified by subsection (1).” Therefore for the witness to be disqualified from testifying because he had sat in the courtroom and observed proceedings was an error of law on the part of the trial judge. Such a witness per procedure ought to be allowed to testify and the court would then determine the weight to place on his evidence considering the fact that he had sat in the courtroom and listened to the entire proceedings. Did the failure of the trial judge to allow the accused person’s witness to testify occasion a substantial miscarriage of justice to the accused person and now appellant herein? It should be noted that an appeal is by way of rehearing and the parties to the appeal are bound by the record of the appeal presented to the appellate court. Therefore, any information which is not part of the record of appeal cannot be admitted and discussed in the appeal. A person who seeks to introduce fresh evidence is permitted to do but must do so in accordance with law. Thus since the DW1 was not allowed to testify, there is no evidence from him on record for the court to consider. In hearing of appeals, especially in criminal appeals, the basic determining factor is whether an error of law, procedural error or technicality or a defect in the charge has occasioned a substantial miscarriage of justice such that despite the existent of such errors on record, if there is evidence to support the offence alleged or any other offence of which the accused person could have been convicted then the appeal would be dismissed. Section 31 (2) of the Courts Act 1993 Act 459 provides that: “The appellate court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted on that charge or indictment.” To the mind of this court and from the record of appeal, the disqualification of the witness has not occasioned a substantial miscarriage of justice against the appellant. That is because, from the evidence of the accused person that is the defence he put up, when the victim came to his wooden structure, it was a friend whose name he did not know and who he refers to as Samnega who was present but subsequently left while the victim was with him fanning the fire. Thus from his own admission his said friend left him and the victim alone to go to the beach to train while the cooking was ongoing. That being the case, then can it be said that this person (DW1)’s evidence was in support of his defence as to the actual commission of the offence or in support of an ancillary matter not going to the root of the defence of the accused person/appellant herein. Besides the evidence of the prosecution on record raised a prima facie case against the accused person therefore requiring him to give an explanation to the court if he was minded to. His defence was one of total denial of the offence even though he had placed himself in the same place and time as to the commission of the offence. It is the view of this court that the DW1’s disqualification does not amount to a substantial miscarriage of justice warranting the allowing of the appeal based on that fact. THE LAW ON DEFILMENT AND ITS APPLICATION TO THE EVIDENCE LED Section 101 of the Criminal Offences Act 1960, Act 29 provides that: “(1) For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age. (2) A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less that seven years and not more than twenty-five years.” From the offence charged, the ingredients the prosecution had to prove are that the i. The victim is below the age of sixteen ii. That someone had natural or unnatural carnal knowledge of the victim iii. That someone is the accused person. AGE OF THE VICTIM From the evidence on record, there was no dispute as to the age of the victim. The birth certificate of the victim was admitted into evidence as Exhibit E. Per Exhibit E, the victim was born on the 9th of April 2010 thus placing the victim at the time of the incident at nine (9) years old. The appellant did not contest the age of the victim at the trial. That the victim was below the age of sixteen (16) years was satisfactorily proved at the trial and I so find. THAT SOMEONE HAD NATURAL OR UNNATURAL CARNAL KNOWLEDGE OF THE VICTIM Section 99 of Act 29 provides what in law will be considered as proof of carnal knowledge in the following terms: - “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.” Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brushwork, penetration would be deemed to have occurred and carnal knowledge taken to have been completed. See Gligah & Anr. v The Republic [2010] SCGLR 870 Therefore to prove that someone had had sexual intercourse with the victim, it is not necessary that the whole length of the penis should enter the vagina. It is sufficient to prove that there was penetration, however slight it was. Also it is not necessary that there should be actual emission of semen. Sexual intercourse is deemed to be complete in law upon proof of penetration of the penis only into the female organ designed for the purpose of naturally receiving the male organ that is the penis. The victim Heebatu Numbu Ibrahim in her witness statement described how the accused person had sexual intercourse with her. Per her paragraphs 7, 8, 9, and 10 of her witness statement which she relied on as her evidence in chief, she testified that “ 7. Just as I entered, the accused person also followed and held me. 8. The accused person put me on a bed which was in the wooden structure, removed my shirt, blouse and pants. 9. The accused also removed his shorts and put his penis into my vagina and had sexual intercourse with me. 10. After he has finished, he warned me not to disclose the act to the complainant or anyone.” PW4 Dr. Nana Yaa Saka Dwomoh a medical officer with Ghana Police Hospital testified that she examined the victim on the 17th of May 2019. She stated that upon examining the vagina of the victim “there was no visible discharge, there was reddening on both sides of labia minora of the vagina. The hymen was slit at 3 o’clock and 9 o’clock respectively. The hymen is a small vaginal opening for people who have not had penetration. Where there has been an entry in the vagina, they usually slit at various places…my findings are consistent with forceful entry of the vagina.” The report she authored was admitted into evidence as exhibit F. Her findings which she testified to were contained in the report Exhibit F. It was also noted in exhibit F that “Impression: alleged defilement”. It is important at this stage to remind myself the law regarding the evidence of the medical Doctor PW4. The Doctor PW4 is an expert and her evidence per the law is opinion evidence. Therefore the evidence which is her opinion does not decide the issue it is offered to prove that is in this case the fact that someone had had carnal knowledge of the victim. The Doctor’s evidence is rather to assist the court in making the determination as to that fact in issue considering that opinion alongside other evidence on record. The court held in the case of FENUKU V JOHN TEYE 2001-2002 SCGLR 985 that: “The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions.” A court may therefore in appropriate circumstances and for good reasons stated decide not to rely on the evidence of an expert in deciding the case. It was thus held in SASU V WHITE CROSS INSURANCE CO LTD [1960] GLR 4 that “expert evidence is to be received with reserve, and does not absolve a judge from forming his own opinion on the evidence as a whole”. It is also settled position of the law that, though a Court is not bound to accept the evidence of an expert, a trial judge must give good reasons if it decides to reject the expert evidence. Such reasons for rejecting the evidence must be from the record and must clearly support such rejection. See HAYFORD VRS TETTEH (SUBSTITUTED BY) LARBI & DECKER (2012) 1 SCGLR 417. For the court to reject the evidence of the witness PW4 whose evidence acquires greater weight and status because she happens to be from a public body and is a public officer due to the presumption of due performance of official duties also termed as the presumption of regularity, an accused person like the appellant assumes an uphill task to introduce evidence to refute that presumption. See Section 37 (1) of the Evidence Act 1975 Act 323 and Section 20 of Act 323. The accused person was not able to introduce evidence to displace this presumption. The evidence of the medical doctor PW4 accords with the other evidence on record. The slit in the hymen in the various places that the PW4 found which she said is consistent with forceful entry of the vagina accords with the evidence of the PW1 the victim on record as to how the appellant had sexual intercourse with her. Further to that the reddening of both sides of the labia minora of the victim’s vagina is also consistent with the evidence on record as to space in time when the incident occurred and when she was examined. Let me hasten to put on record that even though tears, reddening and laceration of the vagina may be evidence of the application of force, the absence of same on a medical report or evidence per se does not negate the presence of penetration if there is evidence of same on record. Thus even if the medical report had not noted any of such evidence, this court could still find that there has been penetration if there was evidence of same led. It is the mind of this court that per the evidence submitted by the prosecution at the trial, the fact that the victim had been sexually known was proved. THAT SOMEONE IS THE ACCUSED PERSON. In the case of Dogbe v The Republic [1975] 1 GLR 118, holding I, the High Court, per Ata-Bedu J, stated thus: “In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. Thus opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity.” Similarly in the case of Adu Boahen vrs the Republic (1973) GLR 70 CA, it was held that where the identity of the accused person was in issue there can be no better proof of his identity than the evidence of a witness who swore to have seen the accused committing the offence. It is usual in most cases of sexual offences to have the victim as the only eye witness of the incident. And as such it is only the victim who can in most cases give direct evidence as to how it happened and all the circumstances surrounding it. The victim per her witness statement testified that on the day of the incident, her aunt PW2 sent her to go round her selling place to collect bowls from her customers who had finished eating and wash same. She added that while she was collecting the bowls and on reaching the accused person’s place, the accused person asked her to enter his wooden structure to get a sachet of water for him which she obliged. She testified further that it was when she entered that the accused person followed her and had sexual intercourse with her. The fact that she entered the room of the appellant on the day in question is confirmed by the cross examination of the victim by the appellant at page 31 of the record of appeal. This is what transpired “Accused person is now speaking English My friend sent her to go and buy water. She brought the water and put it on a table. Q: I am not the one who sent you to go and buy the water rather it was my friend who gave you one cedi to go and buy the sachet water. A: You are the one. Q: I did not ask you to send the water to the room. A: You are the one.” PW2 told the court that the victim informed her that it was on the 28th of April 2019 while she was going round the place to collect bowls from customers who had finished eating and wash same and on reaching the appellant’s place that the appellant took her to his wooden structure and had sexual intercourse with her. According to the PW2, the victim led her to the said wooden structure where the accused person lives but the accused person had gone into hiding. The PW3 also told the court that the victim took the police investigator to the wooden structure where the accused lived and showed the investigator where the sexual intercourse took place. DEFENCE OF ACCUSED PERSON The accused person/appellant at the trial denied having any sexual intercourse with the victim. He testified that: “I went to the market to buy some few things to cook. I came back home around 4.30pm to start cooking, I had a friend he is from the North, because of the language I speak, he always comes to me and pick his motor and go to beach to train. That day which was 28th he came to me, we were chatting and we saw the little girl passing. When she was passing by, she came to me whiles I was cooking. She looked inside the pot on the fire and asked me whether I was cooking groundnut soup and I said yes. She asked whether I know how to cook, she sat down and started fanning the fire, my friend gave her 1.00 cedis to go and buy water for us because I was not having water at home. When she brought the water, I continued cooking. My friend said he was going to the beach to have his training. It was Sunday, I asked the little girl why as at that time she was around collecting bowls while the following day she was supposed to go to school and she said if she does not do that the woman will not pay her school fees neither will she give her money to eat. I asked her why and she said I did not know the woman that the woman is very dangerous and she is afraid of her. I asked her if the woman was not her own mother and she said no, that the woman came to Tamale to bring her and other girls down to Accra. She told me she was hungry that will I be surprised to hear that they sell cooked rice but she is hungry. So when she said this, I told her what I was cooking is not ready, so she can go and come later to take some of what I have cooked to eat. She went and came back with her bowl at the time I had finished cooking and I gave her some of the food to eat. I was disturbed of what she told me, that is why I gave her the food so after eating she left. Later, my friend who went to the beach came back, after eating he also left. The following day, there was a misunderstanding between me and my master because I was asking him to give me some money which he disagreed. I also went looking for another work to do.” The law mandates the court in determining the guilt or otherwise of an accused person to consider the defense an accused person proffers. In so doing, a three tier test is provided to guide a judge in considering the defense of the accused person. This test was outlined in the case of LUTTERODT v COMMISSIONER OF POLICE [1963] 2 GLR 429 at page 439 as follows: “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and (3) Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit. See also AKILU v THE REPUBLIC [2017-18] 1 SCGLR 444. From the story of the accused appellant herein, his case is that the complainant and her husband are trying to frame him because he had accused them of using stolen goats and dead goats to prepare her food. He is also alleging that the complainant and her husband threatened to teach him a lesson and it was about three or four weeks after that threat that they came up with this story. It is this defence that the counsel for the appellant submitted on that the evidence of the PW2 is based on malice and that she is the one who instigated the PW1 the victim to allege that it was the appellant who had sexual intercourse with the victim. His basis for saying so is the fact that the PW2 who was informed of the ordeal of the victim waited from 13th of May to the 15th of May when she arranged for people to arrest the appellant before she finally went to the police on the 16th of May 2019 to lodge a complaint. His question is “why the intervening period in a case which bothers on the health of the victim” He also submits that there are inconsistencies in the story of the PW2 and the PW1 as the PW1 did not indicate that she was threatened by the PW2 before she narrated her ordeal to the PW2. The burden on an accused person in a criminal trial is stated in Section 11 (3) of Act 323 which provides: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” I have considered the defence that the accused person raised as well as the submissions by counsel in his written address. Considering the defence of the accused person, firstly I am unable to accept the explanation of the Accused and I do not also find the explanation to be true. It is the opinion of this court that if indeed the victim on that day came to assist him in preparing his soup and also made unsavory comments about the PW2, it is the mind of this court that he would have confronted the PW1 with such evidence when she testified. Also, if the PW2 had threatened to teach him a lesson as he asserted in his evidence on oath, he would have confronted the PW2 with that assertion especially when he had the opportunity to give the PW2 the opportunity to speak to that allegation. The evidence of the prosecution witnesses PW1 and PW2 were not riddled with any inconsistencies. Also the fact that the PW2 indicates that she threatened to tell the teacher of the victim before the victim revealed the ordeal does not in any way demonstrate that the victim was coached by the PW2 to make allegations against the appellant. It is normal in cases of this nature for the victims to clamp up and refuse to mention the names of their perpetrators due to the threats of harm made to them which operates on their minds. This case from the record is no different. In the witness statement of the victim which can be found at page 12 of the record of appeal, the victim testified that “10. After he has finished, he warned me not to disclose the act to the complainant or anyone. 11. The accused threatened me that if I do he would beat me up. 12. I could not tell the complainant or anyone.” This threat of the accused/appellant clearly operated on the mind of the victim and as such it took the PW2’s ‘threat’ to inform her teacher and also the influence of her sister at Korle Gonno to get the victim to open up. This does not in any way taint the case of the prosecution. From the record, the victim knows the accused very well and was with him for a considerable period of time on that day as the appellant has admitted. She was also able to lead the PW2 and later the police investigator to the abode of the appellant and showed the room of the appellant and the bed where the incident occurred. To this end, the trial judge rightly stated “ On the totality of the evidence on record and the evidence of the victim, this court is of the opinion that the victim has been carnally known at the time she was below age 16 years and it was the accused person who defiled her. The accused person’s denial simpliciter of the offence could not avail him, he did not present himself as a witness of truth. He could not cast any reasonable doubt in prosecution’s case” Contrary to the assertion of the counsel for the appellant that the trial judge did not assess the evidence particularly the defence of the accused person, the trial did so before arriving at her decision. The counsel for the appellant’s contention is also that the evidence of the PW1 is not corroborated by any evidence on record. It is a known fact that in cases of sexual offences it is expected that the evidence of the victim as to the occurrence of the sexual act where same is denied be corroborated by the introduction of some other form of evidence to corroborate the denied averment of the victim. I say so mindful of the fact that per section 7(3) of the Evidence Act, 1975, Act 323, “corroboration of admitted evidence is not necessary to sustain a finding of fact or verdict”. Per section 7(2) of the said Act 323, “evidence may, in proper circumstances, be corroborated by other independent evidence that requires corroboration”. Indeed, the need for corroboration of evidence is emphasized by section 7(5) the same Act 323 which states that “this section does not preclude the Court or a party from commenting on the danger of acting on the uncorroborated evidence, or commenting on the weight and credibility of admitted evidence, or preclude the tribunal of fact from considering the weight and credibility of admitted evidence”. The requirement of corroboration can be sidelined only when the fact to be proved can be said to have been established by the admitted evidence. Thus where the fact remains in dispute, then challenged evidence must be corroborated so as to establish the fact in issue. As was stated in the case of KHOURY AND ANOR. V. RICHTER (JUDGMENT WAS DELIVERED ON THE 8TH DECEMBER, 1958) and cited with approval in the case of MAJOLAGBE V LARBI & ORS (1965) GLR 190 “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.” See also ZABRAMA VRS SEGBEDZI [1991] 2 GLR 221. It was thus held in the case of REPUBLIC v. DAPAAH [1968] GLR 513, which was a case of Rape with the issue of consent as the only issue at stake that, “it was desirable as a matter of practice that the complainant’s evidence should be corroborated in a case like this where the sole issue was whether she consented and the court ought to direct itself that it was dangerous to act on her uncorroborated evidence” From the foregoing, it is the considered view of this court after considering the entire evidence on record that the prosecution proved the case against the accused person/appellant herein to the right degree. The story of the victim was corroborated by the medical report and the evidence of the other prosecution witnesses. Before I end this judgment, I would deal with ground six (6) of the ground of appeal. Article 19 (2) f of the Constitution 1992 provides that “A person charged with a criminal offence shall be permitted to defend himself before the Court in person or by a lawyer of his choice;” The submission of counsel for the appellant is that the trial court violated this right when it failed to comply with this provision before proceeding with a criminal trial of an accused person. It seems to me from a perusal of the arguments of counsel for the appellant that he has missed the import of this constitutional provision. The provision is to the effect that the court shall permit the accused person to defend himself before the court in person or by a lawyer of choice. It is not to the effect that an accused person must necessarily have legal representation before a trial proceeds. An accused person can elect to defend the suit by himself and in such cases, the court notes that the accused person is self represented. Where however an accused person informs the court that he has counsel or intends to seek the services of counsel, the trial judge is to afford the accused person the opportunity to do so by adjourning the matter. In this case, the accused person elected to conduct the case on his own. The record does not indicate that the court refused to allow a counsel of the accused person to be present to defend him or that the court prevented the accused person from defending himself. In fact per the same provision which counsel is relying on, it is permissible for an accused person to defend himself in person. The court complied with the rules on fair trial when from the record, the accused person even though had been served with the documents filed on disclosures and also the witness statements a week before case management conference, the court still allowed the interpreter to read the documents one after the other and interpreted same to the accused person in French before case management was conducted. Section 114 (2) of the Courts Act 1993 Act 459 which counsel relies on is discretionary and a court may decide to do so where it finds it desirable in the interest of justice to do so. The record of appeal shows that the appellant understood the trial and participated in same by subjecting the evidence of the prosecution witnesses to cross examination as and when they testified. The conviction of the appellant was therefore not wrong in law. His sentence was also not wrong in law. Per the law, a person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent of the child, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less that seven years and not more than twenty-five years. The appellant was sentenced to ten (10) years to serve as a deterrent to others of same mind and also to show how society disapproves of such acts. The sentence of ten (10) years is within the law and the judge considered the rules on sentencing before she gave out the sentence. From the above, the appeal fails and same is dismissed. MARY M. E YANZUH J. HIGH COURT JUDGE PARTIES: APPELLANT PRESENT COUNSEL: TOSIN OJAOMO FOR THE APPELLANT PRESENT JESSIE TAGOE- KORLI FOR THE REPUBLIC/RESPONDENT PRESENT 26