REPUBLIC VRS AHMED (B6/06/2024) [2023] GHACC 1157 (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 B6/08/2024 THE REPUBLIC VRS RASHID AHMED @ ANAATA JUDGMENT THIS JUDGMENT WAS ARRESTED BY PROSECUTION AND WAS NOT READ On 15th August 2023, the office of the Attorney General in Wa the Upper West Regional Capital registered a docket containing a count of defilement against the accused person and amended the charge on 17th August 2023 maintaining the single charge. The victim of the offence was a 15-year-old. The charge is contrary to Section 101 (2) of the Criminal Offences Act, 1960 (Act 29) as Amended by the Criminal Offences (Amendment) Act, 1998, Act 554 The section 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 involving this victim went viral among other incidences where the accused was being looked for similar offence he committed against 12 other girls. Accused however was arrested on 8th August 2023 when it is alleged he sneaked into town from neighboring Burkina Faso. 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 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 them. Though this victim was not among the gang of three, she however was one of those defiled previously by the accused person and so she reported to the Police and underwent medical examination. The victim PW1 [Name withheld] told the court that she was a class six pupil of an Islamic School in the Wa Municipality and that she got to know accused through a friend of hers who unfortunately is no more. But she knew that her friend used to go to the accused for money. PW1 went on to state that on one such occasion she went to accused with her friend and she went in to have sex with the accused but later when she was invited by the accused she did not allow him have sex with her but he succeeded in inserting his finger into her vagina. PW1 said that was not the only occasion she visited accused and that she did visit him in the company of another friend [Name withheld] where accused had sex with them each and gave them a GHC10.00 each. She said last sallah she visited accused again in the company of about 17 friends to collect their sallah gifts and during that time accused person had a marital misunderstanding with the wife and so she had left to her parents. That on that day accused as usual asked all of them to wait outside of his room and he allowed them enter the room individually and he had sex with them till he was satisfied and gave each one GHC10.00 each and they left and that on 20th May 2023 at about 4pm when accused officiated a program and saw her with a friend she had earlier mentioned he asked them to proceed to his house and they did and he took her friend in and had sex with her and gave her GHC10.00 after which she was asked to enter the room and accused again had sex with her and gave her the same amount of money. PW1 went on to state that four (4) days later 24th May 2023 accused again at 7:20 pm when she was with her friend accused saw them around a food joint around Tigreyiri section of Wa where he asked them to pick a tricycle and come over to his house. That upon arrival some youth who were at the time angry and charged asked them of their mission and that what accused has been doing to them was criminal and that they were out for him. PW1 said the angry youth pursued them and took pictures of them. This witness did not call her friend who she claims went with her to the accused in all three instances but then the same friend was involved in another docket where accused is charged with defiling a number of other girls in that docket. PW2 in this docket was the complainant in all the defilement cases. 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 victims [These very two 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. PW2 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. He told the court though he knows the accused very well he was determined to see this case dealt with legally and that he has no personal interest but to see justice done. PW3 was the medical officer at the Wa Municipal Hospital who examined about nine (9) of the victims presented to him including this very victim. He told the court when she was presented she appeared healthy with no visible signs of any sexual injury when her vaginal area was examined. The doctor said she did not have a hymen in her vagina meaning it was possible she was already sexually active. As to whether he observed any abrasions or lacerations within the victim’s vaginal canals, he said no deposits of sperm were seen when he examined her on 25/05/23. 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 on 25th May 2023 when PW4 came to the unit with a footage of a video in which two 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. PW4 in his witness statement stated that PW4 and other stakeholders assisted the Police to locate this very victim and her friend and they were interrogated and later presented to the medical officer at the Wa Municipal Hospital where they were examined and given medication and their medical reports later returned to the police. PW4 said the narration of the victim was that she visited accused person with two of her friends and three separate occasions and he had sex with them and gave them GH10.00 each each time and that one instance was when she went to the accused with her friends for their sallah gift and he had sex with many of them after which he gave them GHC10.00 PW4 then recounted how when the video went, the accused left Wa into hiding where intelligence gathered suggested he was in neighboring Burkina Faso. That whilst into hiding 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 4th August 2023 accused was arrested in his room when he had just returned into town clandestinely and after interrogating him on the 7th of August he led police to his residence where the victim among other twelve (12) others showed where in the accused persons room they variously had the sexual encounters with the accused. The witness then tendered into court the Police investigative caution statement, the charge statement and video recording of the video recording that went viral and sparked the report of the incident to the Police. With the evidence of PW6, prosecution closed its case and the court ruled that a case sufficient enough for him to open his defense was made because prosecution had proved all three essential ingredients in the offence of defilement and so a defense from him will give a direction to his culpability. The case was adjourned to allow accuse person decide whether his plans for a lawyer had materialized but he returned to court on the adjourned date to proceed to defend himself. Accused told the court the victim was not one he knew even though he agrees to be an organizer of Islamic events where he presides as an MC. Accused further told the court that, it is possible the accused may know him but he has not dealt with her let alone to be intimate to her where he will have sexual intercourse with her. Accused called a witness in this matter. The witness gave is name as ………………….. and that he was a relation to the accused. He went further to admit that he was informed when the irate youth came to the residence of accused demanding that he be taken to the police because there was a viral video where he was accused of defiling some girls. He said he challenged that angry youth to produce evidence but the could not and they left. That ended the defense of accused and he was taken on b prosecution for denying that he did not know the victim. Section 101 of Act 29 provides as follows; - 101 (1) for the purposes of this Act defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age. 101 (2) whoever naturally or unnaturally carnally knows any child under sixteen years of age whether with or without his or her consent commits an offence and shall be liable on summary conviction to imprisonment for a term of not less than seven years and not more than 25 years. Per section 101 (2) of Act 29, there are three elements in the offence of defilement. (1) (2) (3) That someone had had sexual intercourse with the victim. That at the time of the incident the victim was below 16 years of age. That it was the accused who had carnally know the victim. In the case of Rep. V Yeboah (1968) GLR 248 the ingredients of the offence of defilement were set out as follows: (1) (2) (3) That the victim is a girl under sixteen years. That someone had had sexual intercourse with the victim. That someone who had had sexual intercourse with the victim is the accused. The issues for determination will therefore be whether or not accused person had sexual intercourse with PW1 he victim, and whether at the time of the incident the victim was under 16 years of age and if that someone who had sexual intercourse with victim is the accused. For prosecution to succeed in its case it must establish beyond reasonable doubt each of the ingredients above and in doing so presented the victim who was alleged to have been defiled. Her evidence narrates how in all three incidences of her visiting accused person with two friends on separate occasions she was sexually known by the accused. To resolve the issue of whether or not it was accused who had sexual intercourse with the victim she gave accounts in her evidence in chief which I will draw from to make the analysis if she indeed her uncorroborated account can be trusted. PW1 set off by telling the court that her friend who introduced her to accused had passed on but she recollects going to him with her once where accused had sex with her friend but only inserted his finger in her vagina. PWs next stop was that she went again with another friend to accused but this time accused succeeded in having sex with her after he had same with the friend. That the third time she visited him but the second time accused had sex with her was a sallah day when quiet a number of them visited him for their sallah gift and typical of accused he made them wait outside and he took in the girls and had sex with them. PW1 went on to cite the third sexual intercourse with accused to be that she went with a second from who is a victim in another docket which I will not introduce her evidence into this docket because she was not called by prosecution as a witness but in that instance accused met them after he had officiated a program on 20th May 2023 and invited them home and he had sex with the two in turns. It is instructive to note that PW1 did not give any vivid description of the instances she accuses accused person of sexually knowing her and those other friend were not invited in this case to corroborate her account. The witness however gave evidence without taking the oath because she was young and did not appreciate what oath taking meant, corroboration therefore is usually very essential to trust narrations in instances like these but as was the case in 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, for section 10 of the Oaths Act, 1960 (C. A. 12), provides in no ambiguous terms that: "No person shall be convicted or judgment given upon the uncorroborated evidence of a person who shall have given his evidence without oath or affirmation." I however remind myself of the general rule of law that a conviction can be based on the evidence of a single witness who is an eye witness provided the court believes that witness. See the case of the Republic vs. Asafu-Adjaye [No. 2] [1968] GLR 567, CA. I have found it necessary at this stage to discuss briefly corroboration in relation to proof in criminal trials in general and in sexual offences in particular and to examine if in the absence of corroborative evidence as in an independent testimony, the evidence of PW1 was indeed corroborated in legal sense. I must state that there has never been a general rule in our jurisdiction 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 discussion on corroboration is necessary because PW1 alone is the person narrating what happened to her however at times the impression is created that the law in Act 323 significantly changed the law in respect of warning about the need for corroboration in trials of sexual offences as if the law before Act 323 made the warning a rule of thumb breach of which naturally resulted in a conviction being set aside on appeal. Section 7 [3] of Act 323. It provides: “Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict”. Then in section 7 [5] thereof, it is provided that: “Nothing in this section shall preclude the court or any party from commenting on the danger of acting on 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 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 in some material particular in his testimony thereby giving credibility to the story. Wary of the caution on corroboration, I will extract some cross examination discourse where accused denied the offence in cross examination of the witness and thereupon I made up my mind the evidence of the witness is safe to convict on: Q. You claim I took you to Zongo to have sex with you which house or room did I take you to have sex. A. You took me to a house and in a room we had sex but I cannot recollect the place. Q. I don't know you but you may know me. A. You know me and you picked me after a wedding ceremony at flattop close to the chief palace. Q. I never told PW1 I was going to have sex with you, I never took you home and I do not even live at Zongo. A. That day was not the only day it happened, you took me again one day after officiating a ceremony to a place with rocks where an uncompleted house is and had sex with me. Q. I did not receive her at home and I was not wearing any Islamic dress, and I have no sofa chair in my room. A. On the first day, you tried having sex with me I refused and my friend told me to allow you and that you will give us money. You then removed my dress and went ahead to fondle my breast and inserted your penis into my vagina. I almost cried out loud but you asked me not to and you proceeded to have sex with me and gave me GH¢20.00 thereafter. Q. You are not truthful, I never met you and did not have sex with you on a bed. A. I cannot be untruthful to the Court because I can be arrested. You put my legs together raised them and applied cream on my vagina and entered me from behind. Q. I put it to you that you are not truthful. A. It is not lies and so we can swear if you want. The discourse above is loaded with conviction from the depth of the account of the witness. She spoke passionately daring accused to swear to their deity if he is sure he did not sleep with her. A child being that open must certainly be suggestive of candidness and I trust the account of the little girl and find it safe to convict on her testimony. On another breath when prosecution took accused on in cross examination, this was what transpired: Q. This victim was born on 8th July, 2009. A. I will not be able to speak to that. Q. Do you know that you cannot have sex with a 14-year-old. A. I know that. Q. So you knew she was below the age of sex and you took her in. A. I cannot respond to this because I did not have sex with her. Q. Do you know that victim is the particular girl who dances at your events. A. She is not part of my dancers. Q. So you admit you call dancers out to dance during your events. A. Yes I will usually let them dance in competition before the main event starts. Q. You were in Court when the medical doctor the victim was sexually active. A. Yes I was here but he never suggested I made her active. Q. The victim identified you as one who had sex with her multiple times. A. But I do not know her sexually. So from this discourse, accused maintained his innocence but prosecution drove home their point that the witness had no motivation to incriminate accused if he had no sexual engagements with her. The doubt accused is expected to raise in the case of prosecution could not be made out and his continuous denial is not acceptable and I have equally not found it as reasonably probable as it is expected in the case of Bediako v The Republic [2010-2012]1 GLR 566 Commenting on the evidence that Dr Mubarick Alhassan of the Wa Municipal Hospital gave after examining the witness concluded that there were no obvious signs of a sexual assault on her but however concluded that the Hymen of PW1 had been broken, an indication that someone had had sexual intercourse with her. As to whether his examination revealed whether it was a recent removal of the hymen he 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. PW1 was resolute of her sexual encounters with accused and none of her accounts mentioned difficulties in penetrating her. This confirms the medical doctor’s assessment of sexual activity by PW1 by the absence of her hymen. I have therefore come to the conclusion that PW1 was sexually known and that someone was accused person because she was able to describe the incidences and the room of the accused. On the age of the victim prosecution also tendered into evidence without objection the national health insurance card of PW1 as was marked and received into evidence to prove that she was born on 23rd October 2010 and was yet to 13 years of age an age 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 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 only count 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: That for the only offence charged where the particulars of offence states that accused in the year 2021 in his bedroom he carnally knew MS (Name Withheld) aged 15 years, I therefore convict and sentence you to seven years (7) IHL. HIS HONOUR JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, WA 15