REPUBLIC VRS AHMED (B6/04/2024) [2023] GHACC 1158 (2 October 2023)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 2ND DAY OF OCTOBER 2023 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B6/04/2024 THE REPUBLIC VRS RASHID AHMED @ ANAATA JUDGMENT On 15th August 2023, the office of the Attorney General in Wa the Upper West Regional Capital registered a docket containing three counts of defilement against the accused person. The victims of the offences were also three and the charges are contrary to Section 101 (2) of the Criminal Offences Act, 1960 (Act 29) as Amended by the Criminal Offences (Amendment) Act, 1998, Act 554 Section 101 of Act 29 under which the accused person was charged defines defilement of child under sixteen years of age as follows: “(i) For the purposes of this Act, defilement is the natural or natural carnal knowledge of a child under sixteen years of age. (2) A person wo 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 than seven years and not more that twenty-five years”. With this understanding of what the offence meant, prosecution alleges accused person has been on the run since the incidence went viral in a video in the evening of 23rd May 2023 but was arrested when he sneaked into town from neighboring Burkina Faso where he was suspected to be hiding. The summary of the facts however was that the complainant a public spirited indigene of Wa chanced upon a video that had gone viral in which three victims were seen disembarking from a Pragia tricycle with one weeping, with a voice over asking them where they were from and it emerged they had just left accused person’s residence where he had sex with two of three girls. Further details emerged that the accused person a popular Master of Ceremonies (MC) during Islamic weddings and social events had used his privileged position and familiarity with the kids to promise them an opportunity to dance on one of his upcoming platforms. That after the event, he asked one to come home and wash his dishes for him but the girls who are used to roaming in three pairs, called the other two to join her and they visited accused. She said when they visisted accused had sex with JMR (Name withheld) amidst complaints of pain because she was forcefully penetrated. That accused person went on to call HW (Name withheld) into the room and started fondling her breast but she did not yield to the sexual advances of him but found a way to run away from the room. That the accused person noticed JMR was still in pain and weeping and so he consoled and promised that he was going to help her sister who is a cerebral palsy patient and with that JMR gathered courage and left with her friends but they again went to him on 25th May 2023 and there again after having sex with the others he again tried to have sex with HW but when she tried resisting accused threatened using a metal object on her and she succumbed to his sexual demand and slept with her. The third victim [YR] (Name withheld) also visited accused on four (4) separate occasions but he had sex with her on three occasions all three when she was with one of the friends not part of this docket and twice with the same friend JMR. That after each sexual encounter, accused person gave them a GHC10.00 and asked them never to disclose to anyone. That accused also gave them his contact and that they could call him anytime. The reason why the victims kept returning to him accused person they said, he was the one they could easily have access to for money to feed when they were hungry. All three in their various accounts told the court when the accused was arrested and his victims were being looked for that they also came out and added their encounters with him and are now before the court. Upon the arraignment in court accused person pleaded not guilty to all three counts of defilement and was denied bail because the risk remained he could flee and so was remanded into Police custody for prosecution to furnish the accused with all that they had discovered for him to be well furnished with the case of prosecution against him. When accused was brought to court Case Management Conference (CMC), he told the court he was in the process of seeking the services of a lawyer who had gotten in touch with prosecution but prosecution asked the court to proceed with the case since the lawyer has not filed any processes into the matter as counsel for the accused though prosecution admits responding to the lawyer’s call. Prosecution then disclosed during CMC that it will be inviting the complainant a concern citizen of the municipality who lodged the complaint with the Police after sighting the video when it went viral, the three victims of the alleged offence, the medical officer who examined the victims on the 25th May 2023 and the Police investigator. Their various witness statements and attendant annexures were then filed and served on accused well ahead of the commencement of trial. On 16th August 2023 prosecution called its first witness in chambers [name withheld], she was aged 13 years and did not appreciate what taking an oath meant and so gave evidence without swearing to an oath. PW1 told the court she was a class six pupil of an Islamic Basic School in Wa and that she knew the accused through another friend [ A victim in another docket) but does not recollect the exact date of her first encounter with him. PW1 said that her friend invited her to accompany her to visit accused at his home and when they arrived she was made to wait outside of the room whilst her friend went in see accused person. That shortly thereafter, her friend emerged that accused was asking her to come in and so she did alone and when she was asked by accused to sit by him in a sofa chair he was sitting in, she did and accused tried playing romance with her. PW1 said she resisted the sexual overtures of the accused which he was not happy and so went out to tell her friend she was not cooperating but gave us GHC10.00 to leave PW1 said when they left her friend spoke with her and on their second visit when they were three friends, accused took time to have sex with all three of them in turns and gave her alone GHC20,00 but gave GHC10.00 to the other two friends and they departed. On her third visit she went with other two friends whose parents did not allow them be part of the case when it was reported to the police and on that day he had sex with them and gave them GHC20.00 each and finally her fourth encounter was when she went with her usual friend and accuse asked her friend to accompany him to the wash room and they spent time there after which she came and they left home. PW1 described the room of the accused to have a flat plasma television and was self- contained because he had his bath and toilet all within the room. She vividly recollects accused asking them never to disclose their sexual engagements with anyone else he risked being arrested. PW2 HW [Name withheld] told the court she was 14 years and got to know accused through two of the victims in this case. That on her first visit with her friend, the friend asked her to wait outside the room and she went in and spent time with the accused and emerged with a GHC30.00 in her hands and asked me to go in because accused had asked of me and when she did accuse directly told her he was going to have sex with her and out of fear she run out of the room and they left home. PW2 narrated how PW1 convinced her to go with her the second time and this time when she tried resisting accused tried using a metal object to hit her and she allowed him have sex with her after which he gave her GHC10.00. She told the court the accused warned her before her friends to keep their engagement secret and only known within themselves. PW3 JMR [Name withheld] she was specific that accused was related to her because their mothers were cousins. That her first visit to the house of the uncle was when she was picked by him and PW ostensibly that she was being taken to wash his dishes. That upon arrival she was left outside and after some minutes her friend emerged in tears but she could not interact with her when accused shouted for her and she went in and saw accused only in boxer shorts. Pw said accused invited her to sit on his thighs but she declined but accused then forcefully undressed her and dragged her to his bed and had unprotected sex with her. She said she was so hurt with the fast development and was equally weeping when accused came out to tell her to stop weeping an not be worried because he will make it up by ensuring that her twin sister who was sick of spinal palsy was well taken care and she herself taken well care of in school and so she got encouraged and braced up to leave home with her friend. That after she got over it she again had occasion to go the accused with her same friend and this time he had an incident free sexual encounter with both of them. She said anytime he had sex with them he made sure he gave them at least GHC10.00 each and will warn them not to disclose to anyone. PW4 was the complainant in the case. He gave his name as Eliasu Yussif Baba a native of Wa and a business man. He told the court he saw a video that had gone viral in the evening of 24/05/23 at about 11pm where two of the victims admitted the accused had sexual intercourse with them and so he reported the case to the Wa Police who sought from him if he was prepared to assist the police unravel the entire mystery by getting the victims and their families cooperate with the police. PW4 said he gave the Police his word that he will assist them and indeed he did by looking for all the victims involved in all the cases accused was accused of defilement and about 12 girls were taken for medical examination. PW4 was obviously getting fatigued but kept giving his side of the story that sparked the entire investigation. PW5 was the medical officer at the Municipal Hospital in Wa. Dr. Mubarick Alhassan who eventually examined all nine girls including the victim. He told the court when all nine girls were presented individually before him each appeared healthy with no visible signs of any sexual injury. He said all three girls did not have their hymen present in their vaginas meaning it was possible they have previously had sex where they lost their virginity. That, none had any abrasions or lacerations within their vaginal canals and no deposits of sperm was also seen when he examined them on 25th May 2023. He added that as part of his examination he conducted HIV and Hepatitis test and all test run was negative. The last of prosecution’s witnesses was the Police investigator NO. 47998 D/CPL Emmanuel Banyesere an investigator with the Domestic Violence Unit at the Regional Police Command. PW6 told the court he was on duty when PW4 came to the unit with a footage of a video in which three girls could be seen and heard saying they were sexually known by the name mentioned in the video. That he obtained a statement from PW4 and his assurances that he will assist Police locate and identify the victims for interrogation and later medical examination. PW6 in his witness statement stated that PW4 and other stakeholders assisted the Police to locate 12 victims in all but three (3) in this docket who saw the medical officer at the UBIDS Health Centre for medical examinations and their medical reports were returned to the police. That just as the video of the three girls went viral, the accused left Wa into hiding and that whilst away, he granted two radio interviews to Home Radio and Radio Mark on the allegations against him and that he accused was advised to leave town till the attention the matter attracted died down. The investigator told the court that on 25the May 2023 another video was intercepted by the police in which one Hajia Sawieba Iddrisu was heard and seen advising accused not to return to Wa because he will be arrested. PW6 said, he immediately caused the arrest of Hajia Sawieba for the offence of abetment and during her interrogation she admitted recording the footage to send to the accused person privately but she made a mistake and sent it to a group platform. PW6 told the court he maintained surveillance around the residence of the accused person whilst he was away and on the 30/05/23 at about 9:30pm the accused’s person’s wife was on phone with someone they suspected to be the accused person. That the wife salamatu from the call monitored by PW6 made him form the opinion she knew the whereabouts of the husband and so was arrested to aid Police locate the accused person. That as part of Police efforts to trace the location of accused, exparte motions were filed at the District Court to compel some disclosures on the phone records of accused person’s wife and eventually Police got some useful information on the whereabouts of him however accused returned to Wa on 4/08/23 and upon intelligence he was arrested at his residence by the Police. PW6 went on to add that on the 7/08/23 accused together with his victims returned to the scene of crime that is his room where the victims variously recounted how he brought them in at various times to have sex with them and again led Police to the nearby bush where sometimes he took them to have sex. By the evidence of PW6, prosecution closed its case and the court asked prosecution to make arguments before it to convince it that the elements of defilement were proven. After prosecution had drown on the evidence and the law on sections 173, submitted that it had indeed satisfied the conditions to ask the accused persons to open its defense because prosecution had succeeded in making a case sufficient enough for him to open his defense because it had proved that all three essential ingredients in the offence of defilement were established against the accused person. When the case was adjourned to allow accuse person put himself together to put up his defense, he arrived in court hearty but yet without counsel with the indication he was as usual going to conduct his case himself and so he chose the option of giving evidence on oath and was sworn in and led in evidence by the judge. Accused described himself as a local master of ceremonies who has access to women because he officiates functions such as weddings, engagements, naming ceremonies etc. He described how a video had gone viral with some young girls claiming he had had sex with them in the video. Accused person responded to each count when he was led in evidence by the judge and denied having had sexual intercourse with any of the three girls in the three count docket but when challenged in cross examination he admitted to knowing PW3 as a cousin but did not relate with her beyond when her mum complained about her behavior and he had cause to invite her for counselling. The accused kept his defense short by denying having any sexual to do with all three victims but was again confronted in cross examination to respond to questions on whether or not his wife had had course to remove from the matrimonial home to her sister as a result of a misunderstanding he had with her regarding how he receives girls in the matrimonial home. This accused denied that at no point has the wife left the matrimonial home to her sisters but prosecution pressed on till accused gave responses agreeing that the wife at some time in April 2023 left to her sister. Extracts from the cross examination of the accused will be drawn later to support the various submissions. At this juncture where it is the law that the onus rests on prosecution to prove their case, the essential elements of the ingredients of the offence of defilement which are: (i) (ii) (iii) That the victim is under the age of 16 years (as provided for in Act 554). Someone had sexual intercourse with her; and That person is the accused. See the case of Republic V Yeboah [1968] GLR 248. Republic vrs. Nana Osei Kwadjo II (2008) 1 GMJ 4 SC. Tano vs. alias Obeng vs. The Republic [1971] 2 GLR 482 and Dam vs. Addo [1962] 2 GLR 200 SC these essential ingredients espoused in these cases are the ingredients the evaluation will consider to arrive at a decision whether or not prosecution has proven their case beyond reasonable doubt. It is also useful to remind ourselves of some fundamental legal principles pertaining to criminal trials in Ghana and Pwamang JSC in ERIC ASANTE vs. THE REPUBLIC [SUPREME COURT, ACCRA] CIVIL APPEAL NO. J3/7/2013 unreported succinctly restated the law on criminal prosecution as follows: “Our criminal law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case, where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408” The Jurist continued as follows: “However, beyond reasonable doubt does not mean beyond a shadow of doubt. The guilt of an accused person is sufficiently proved if the tribunal of fact is convinced that he committed the offence though there remains a lingering possibility that he is not guilty. See Oteng v The State [1966] GLR 352. To achieve the dictates of the law as stated above, prosecution set forth to prove that the accused person defiled all three victims and led all three victims to give evidence in court. PW1 whose name the court has decided to withhold all through the judgment told the court she was in the company of her friends when they visited the accused person. Interestingly the friend who knew accused so well and through her the rest got to interact with him was not part of the witnesses in this docket but reference was made to her. She narrated how she declined the sexual invitation on the first day but yielded on the second and third visits. She however kept her frankness when she told the court she visited accused on the sallah day and her friend spent time with accused in the bath house but did not have sex with her on that day. PW2 also told the court how she resisted the sexual demands of accused on her first visit but also yielded when he used an metal object to threaten her. She gave similar accounts of how she was given money and warned not to disclose it to anyone. Then the evidence of the third witness who is related to accused but he had no mercy for her and used the condition of her twin sister to promise to cater for her and the victim herself. Having earlier indicated that all three victims gave evidence without taking the oath because they were young and did not appreciate what oath taking meant, corroboration will be very necessary so as to trust their various accounts. Infact, in the case of MOSHIE v. THE REPUBLIC [1976] 2 GLR 310-321 the judge stated the rule as: "The rule of evidence is that unsworn evidence given by a young child needs corroboration. It has been said that the evidence of young children is always subject to doubt, for very young children live largely in a world of imagination, and their powers of observation, understanding, memory and expression are rudimentary. It has also been said that most children are influenced by what they hear from adults, not necessarily by way of deliberate suggestion or instruction. Yet the evidence of children may be acute and accurate particularly with regard to offence committed against themselves” In the case of Anane v. The State [1963] 2 G. L. R. 65, S. C. the court stated among other things that, quite apart from that it is the practice to require corroboration of the evidence of the prosecutrix in charges of rape and connected offences and continued that the need to corroborate the unsworn evidence of a child is not a mere rule of practice but it is firmly rooted in law. This reasoning was more the less the reason that the court drew from the accounts of PW1,2 & 3 to examine the level of corroboration. See also the case of the Republic vs. Asafu-Adjaye [No. 2] [1968] GLR 567, CA. where corroboration was reemphasized and I do find as a fact that the evidence of PW1 corroborated that of PW2 & 3 in legal sense however there has never been a general rule in our jurisprudence that a court in criminal trial cannot convict an accused person on only the evidence of one [1] witness if that witness is found to be credible and the evidence of the accused person does not raise a reasonable doubt. The caution therefore is that it is dangerous to convict an accused person on uncorroborated evidence because corroboration is evidence which supports the testimony of a witness by confirming that the witness is telling the truth thereby giving credibility to the story and that is exactly my finding in this docket, I trust the account of the two little girls because they have no wedge to draw or scores to settle with accused person to want to make up stories like these against him. I therefore find it safe to convict on their testimonies especially when prosecution played the entire footage of the video that sparked this case among other dockets where accused could not explain away the allegations leveled against him by the lads seen in the video responding to the number of times he slept with them. It will also be worth commenting on the evidence of Dr Mubarick Alhassan of the Wa Municipal Hospital after examining the three witnesses. The medical officer concluded that there were no obvious signs of a sexual assault on any of them but however concluded that both had no Hymen on in their vaginas meaning both were sexually active before the incident. As to whether his examination revealed whether it was a recent removal of the hymen the doctor said it was not. The law has remained that: even if the medical evidence proved that the hymen was not broken but there is evidence of least degree of penetration of the victim’s vagina by the male organ, then it can be said that there was sexual intercourse. See Robert Gyamfi V The Republic (2019) 142 GMJ 132. But interestingly these hymens were long gone and accused only had difficulties with the two because they did not agree to and could be assessed to be non-prepared for the act. The fact however remained that the three girls kept returning to accused because when they did what to use for food was guaranteed. I have therefore come to the conclusion that PW1, 2 & 3 were sexually known and that someone was accused person because she was able to describe the incidences and the room of the accused for which accused had no denial when confronted with the facts. On the age of the victim, prosecution also tendered into evidence without objection the national health insurance card of PW3 as was marked and received into evidence to prove that she was born on 16th December 2009 and was yet to be 14 years of age an age whilst PW2’s age was proven by her birth certificate confirming she was born on 23rd July 2010 just gone past 13 years and finally PW2’s age proven also by her birth certificate stating she was born on 8th July 2009 also less than 13 years when the incident occurred. All ages of the victims fell below 16 years and within the culpable age to be charged with defilement. I have engaged in this practice of a search in the evidence to see if any plausible defense exists as demanded in the case of Bediako v The Republic [2010-2012]1 GLR 566 but unfortunately I find none and I proceed to make the impression that, the accused person was not truthful in his defense. The law remains that, when an accused person takes refuge in telling lies before a trial court, the only inference of his behaviour was that he had a guilty mind and wanted to cover up. See Gorman vrs. The Republic (2009) 21 MLRG 139 CA. Munkaila vrs. The Republic (1995-96) 1 GLR 367 SC. I am therefore but compelled to find accused guilty of the three counts of defilement and I proceed to convict him for same because the prosecution has proved its case beyond reasonable doubt in accordance with sections 11 and 13 of the Evidence Act, 1975 (NRCD 323). Sentencing Mitigation is put up where the accused person admits his guilt and proceeds to plead for leniency when the court prompts for prosecution to make submissions on whether he is known and general comments about the crime and the incidence of the crime in the community that prosecution wants the judge to be aware of and ends up praying for a stiffer punishment. The accused on the other side make a plea in mitigation. The accused up to the time of sentencing does not admit his guilt and did not therefore plead for mitigation but prosecution drew the courts attention to the many young girls who have fallen prey to the escapades of accused person and invites the court to punish him to represent the disdain in the community about his conduct. The Court will also not be applying proper principles of sentencing if it disregards clause 6 of article 14 of the Constitution 1992; that is failure to take into account the period the accused spent in lawful custody before the completion of his trial. See Bosso vrs. The Republic (2009) SCGLR 420, Frimpong Badu vrs. The Republic (2016) 95 GMJ 105 SC. Owusu vrs. The Republic (2016) 98 GMJ 95 SC. Accused was arrested on 8/08/23 and his trial ended on 1/09/23 in this docket. Having reviewed the circumstances under which I should proceed to pronounce judgment on the accused person because I have found him guilty, I sentence accused as follows: One count one, I sentence accused to seven (7) years IHL. On count two, I again sentence accused to seven (7) years IHL. And on count three I sentence him to another seven years (7). Accused will serve the sentences concurrently. HIS HONOUR JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, WA 15