BAYUO VRS. REPUBLIC (D2/25/2023) [2023] GHAHC 675 (29 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) SITTING AT KOFORIDUA ON WEDNESDAY, THE 29TH DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP NANA YAW GYAMFI FRIMPONG, J. SUIT NO. D2/25/2023 BONIFACE BAYUO APPELLANT VRS. THE REPUBLIC RESPONDENT JUDGMENT INTRODUCTION This appeal is against conviction and sentence from the judgment of the Circuit Court, Mpraeso, delivered on 12th August, 2022 by His Honour Stephen Kumi, Esq. which convicted the Appellant and sentenced him to 12 years IHL on one count of Defilement. GROUNDS OF APPEAL In his Notice of Appeal filed on 11th April, 2020, at page 69 of the Record of Appeal, Appellant has stated three grounds of appeal as follows: a. That the conviction was wrong in law having regard to the evidence adduced at the trial; b. The learned trial Judge erred in calling upon the accused/Appellant to open his defence as the Prosecution failed to satisfactorily prove its case; c. The learned trial Judge failed to adequately consider the case of the defence when evaluating the evidence on record, and d. The sentence is harsh and excessive considering the evidence on record The Appellant was arraigned before the Circuit Court, Mpraeso on one count of: S. 101(2) of the Criminal Offences Act, 1960 (Act 29) as Amended by S.11 of the Criminal Amendment Act, 1996 (Act 554). The Charge Sheet on which the Appellant was tried is reproduced as follows: COUNT ONE STATEMENT OF OFFENCE Defilement contrary to s. 101(2) of the Criminal Offences Act, 1960 (Act 29) as Amended by s.11 of the Criminal Amendment Act, 1996 (Act 554). PARTICULARS OF OFFENCE BONIFACE BAYUO aged 40 years, Fisherman: For that you on the 4th day of March 2021 at about 5:00 pm at Dim Ntomem near Tease in the Eastern Circuit and within the jurisdiction of this Court did unlawfully had unlawfully carnally know one AMETEPE GALINO JULIET aged 15 years. The Appellant pleaded NOT GUILTY to the count and his trial commenced after which all the necessary processes have been filed and case management conducted. FACTS The facts as presented by the Prosecution are that the Complainant who is the father of the victim lives at a village called Sakabo whiles Appellant and the victim live at Dim. On the day in question, that is 4th day of March, 2021 at about 5:00pm, Appellant is said to have grabbed the Complainant from behind in a bush where she and her two siblings, Thomson Galino and Emmanuella Galino, aged 1 and 4 years old respectively had gone to cut brooms and carried her into an abandoned building with the roof rift off located at about 100 meters from the village of Dim where he tore the panty of the Complainant and forcibly had sex with her after which he gave her GH¢10.00 with a promise to later give her additional GH¢20.0. When the Appellant grabbed the Complainant, the two siblings ran away from the scene to the village. The Complainant told her father the incident who reported it to the Police the following day, 5th day of March, 2021, who issued a Medical Form to her to attend Hospital. She attended the Donkorkrom Presbyterian Hospital where she was examined and treated by one Dr. Frank Ewusie Brown who endorsed on the report that the hymen of the Complainant was broken and that there was also penetration of the vagina of the victim. The Appellant was arrested on 9th March, 2021, five (5) days after the incident who denied the offence in his investigation caution statement and stated that he was in the company of the wife who had returned from their hometown in Nandom the previous day and a friend on the farm and did not go to the scene where the incident is alleged to have taken place. PROOF It is a fundamental principle of our criminal jurisprudence that a person charged with an offence is presumed to be innocent until proved guilty or has pleaded guilty. This is enshrined in article 19 (2) (c) of the Constitution 1992 as follows: “A person charged with criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty” It is the proof of this guilt that the law requires the Prosecution to prove and just not an ordinary proof, but a proof beyond reasonable doubt. Thus, it is a fundamental principle of our criminal justice system that for the Prosecution to succeed in having an accused person convicted of the offence of which a person has been charged, it must prove the ingredients of the charge (s) preferred against the accused person beyond reasonable doubt. This is a criminal trial and the liberty of the accused has always been paramount. It is for this reason that though society abhors crime and must protect itself against criminals, several laws have been put in place to ensure that a person accused of committing crime does not only receive a fair trial, including the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt but also the need to afford the accused the opportunity to defend himself. Article 19 (2) (c) of the 1992 Constitution provides: “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.” See DARKO v. THE REPUBLIC [1968] GLR 203. In THE STATE v. AFENUVOR [1961] GLR 655 Adumua-Bossman, JSC said: “the “burden of proof” is used in two senses. It may mean (a) the burden of establishing a case, which rests upon the Prosecution; or (b) the burden of explanation which shifts to the prisoner once the Prosecution has produced some prima facie evidence from which the guilt of the prisoner may be presumed if no answer or explanation is given.” See Sections 11(b), 13(b) and 22 of the Evidence Act, 1975 (NRCD 323). “The standard required of the Prosecution to proof the case “beyond a reasonable doubt”, has been explained by the authorities to mean that the proof must make the jury or trial of facts “almost certain that of the conviction of the accused” and that if it is a fact that has been proved to secure conviction, the proof must make the fact more probably true than not.” See also pg. 51 of “Essential of the Ghana Law of Evidence” by S. A Brobbey. ANALYSIS That the conviction was wrong in law having regard to the evidence adduced at the trial. The law is settled that whenever an Appellant appealed on this ground, he is bound to demonstrate from the Record of Appeal, the specific points of law and facts which the trial Judge ignored or wrongly took into consideration in evaluating the evidence which if, considered or rejected would change the verdict in his favour leading to his acquittal. As noted, Appellant was charged with Defilement contrary to s. 101(2) of the Criminal Offences Act, 1960 (Act 29) as Amended which provides: (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 than seven years and not more than twenty-five years. Per the definition of Unnatural Carnal Knowledge, the ingredients of the offence under Section 101 are that: 1. the victim must be child less than sixteen years old, 2. the someone had sexual intercourse with the victim which could be natural or unnatural, 3. That it was the accused and 4. that the sexual intercourse was with or without the consent of the victim In order to secure a conviction of the accused, the Prosecution must prove each of the ingredients of the offence. One of the of the ingredients which became an issue at the trial is the age of PW2, the victim of the alleged sexual assault. According to Counsel for the Appellant, the evidence the Prosecution adduced on that issue was so conflicting and contradictory that the trial Judge should not have called on the Appellant to open his defence. According to Counsel, the Prosecution could not satisfactorily prove the age of PW2 which was an essential ingredient of the offence so the trial Judge should not have called on the accused to put up his defence. He submitted that, the inconsistencies in the Prosecution’s case on the age of PW2 were such that the Court should not have accepted that evidence which meant that the Prosecution could not prove the ingredient of the age of the victim and since on a charge of defilement the age of the victim is very material, the Prosecution’s case collapsed and the trial Judge should have acquitted and discharged the Appellant and not call on him to open his defence. Counsel for the Respondent on the other hand has submitted that the National Health Insurance Card of the victim which was tendered in evidence as Exhibit “D” confirmed the age of the victim as 15years which put the issue of the age of the victim beyond any doubt; there was therefore there no conflict or inconsistency about the age of PW2. From the Record of Appeal, the age of PW2, Juliet Ametepe Galino was given as 13 years and 15 years. In the witness statement of PW1 and PW2, the age of the victim was given as 15 years. But PW3, the Investigator who investigated the case and took the statement of PW2 stated in paragraph 2 of his witness statement that she gave her age as 13 years old. It must be on record that the Prosecution did not tender the statement of the Investigator in evidence just as those of PW1, PW2 and DW1. Dr. Frank Ewusie Brown of the Donkorkrom Presbyterian Hospital who examined the victim on 8th day of March, 2021 stated in his Report as contained in the Police General Medical Form issued to victim as 13 years. This Report was tendered in evidence as Exhibit “C” by the Prosecution. The Prosecution tendered the National Health Insurance Card of PW2 which shows her age as 15 years thus corroborating the age of the victim as stated by the father and the victim herself in her witness. It is this discrepancy in the age given from two sources, that is, the father, PW1 and the victim on one hand and the Investigator and the Doctor on the other hand which is described by Counsel as inconsistent and conflicting. It is this state of affairs which has influenced Counsel for the Appellant to argue that Prosecution could not prove the actual age of the victim and therefore could not institute the case against the Appellant. The trail Court however accepted the 15 years as stated in Exhibit “D” as the correct age of PW2 because according to him it is from an official source. The trail Judge applied S.37 (1) of the Evidence Act that official acts are presumed to have been properly performed and relied on the recent Court of Appeal case of Robert Gyamfi (alias) Appiah V The Republic; Unreported Criminal Appeal N0. H2/02/19 dated 5th February 2019 where Dzamefe, JA accepted and relied on a National Health Insurance Card in proof of the age of the victim. The learned Judge concluded that, though Section 19 (2) of the JUVENILE JUSTICE ACT, 2003 (ACT 653) did not include the National Health Insurance Card as a source document to determine the age of a juvenile, she held that National Health Insurance Card could be accepted as a document in determining the age of a juvenile. The said Section provides: (2) In the absence of a birth certificate or a baptismal certificate, a certificate signed by a medical officer as to the age of a person below eighteen years of age is evidence of that age before a Court without proof of signature unless the Court directs otherwise. Section 122 (1) of the CHILDREN’S ACT, 1998 (ACT 560) has the same provision in determining the age of a child. Counsel for the Appellant has taken an exception to the trail Judge relying on this case. According to Counsel, the Court of Appeal had no jurisdiction to go beyond the provisions of the Act to include National Health Insurance Card as a source document to determine the age of a child. Counsel therefore submitted that, in so far as the Court of Appeal violated these provisions, the decision in Robert Gyamfi (alias) Appiah (supra) was given per incuriam. The argument raised by Counsel on this decision may have a sound legal basis when tested before the Supreme Court for the proper interpretation and application of these provisions. But per the constitutional arrangements of the hierarchy of our Courts, and by virtue of Section 10 (5) of the COURTS ACT, 1993 (ACT 459) which provides that; Subject to clause (3) of Article 129 of the Constitution, the Courts lower than the Court of Appeal shall follow the decisions of the Court. The Circuit Court, Mpraeso which tried this case was bound by the decision of the Court of Appeal and in so far as it has not been reversed by the Supreme Court, the trial Judge was bound to apply it. But, I am of the opinion that the case of Robert Gyamfi (alias) Appiah can be distinguished from the present case. In that case, the contention was not that the Prosecution gave the age of the victim as 16 years whereas the defence insisted that it was more than 16 years. The only document the Court could rely on to bring certainty on that issue was the National Health Insurance Card of the victim. In the present case, whether the age of PW2 was 13 years or 15 years at the time of the commission of the offence was immaterial since any of those ages still falls within the statutory requirement and definition of defilement. In any case, the Appellant did not provide an alternative age of the victim, which suggested that she was far and above the statutory age required by the law in which case, the doubt created in the age of PW2 could have been material. Therefore, even if the age the of PW2 is 13 years or 15 years it was immaterial for the purpose of the Act. It is therefore wrong to accuse the Prosecution of failing to have proved that ingredient of the offence beyond reasonable doubt to inure to the benefit of the Appellant. I will now consider other evidence on record beginning with Appellant’s defence on alibi. The Appellant said he was at home on the date of the alleged crime. He also testified that he was on his maize farm with the wife and a friend who stayed with them until after 5:00pm when he left them for his house. This evidence was corroborated by DW1, the wife of the Appellant and the said friend who testified as DW2. DW1 said she travelled from Nandom to the village the previous day of the incident which was 3rd March, 2021 and sought to confirm that evidence by Exhibits “1”& “2”; two Bus tickets indicating that she travelled on one of the vehicles operated by the Transport Company called O. A. The trial Judge however rejected this evidence because according to him, those tickets could have been issued to anybody in Ghana since they did not bear the name of DW1. I find the reason for rejecting that evidence very interesting and I should think that the trial Judge had never used a Public Transport to travel in Ghana, which is itself very strange. It is common knowledge that the tickets issued to travelers who patronise those Public Transports are just bigger than Postage Stamps with only the amount and the vehicle number written on it and in some cases the date without the name of the traveler. Even the Metro Mass Transit belonging to the State does not have any tickets on which the name of the traveler is written or embossed. The Prosecution did not deny or challenge the witness that she did not travel on that date to join the Appellant at the village on the 3rd March, 2021. The Investigator gave this answer to a question on this issue as follows: Q: In your investigations, the accused told you he had not moved from the house on that date. Did You investigate that? A: Yes. Q: And what did you establish from that? A: I spoke to the wife who confirmed that. But as to whether that was true or not, I do not know. In any case, it was not part of the Prosecution’s case that the wife was not at the village on the day in question so she could not testify as to whether the husband was in the house or on the farm with her on the day in question. The most important thing was whether she was at the village on the 4th March, 2021 but the Prosecution did not challenge her on that issue. She said she went to their farm with the Appellant and was with him the whole day. DW2 confirmed this story and said he was with the wife and Appellant and that he left them around or after 5:00pm. When the Appellant was arrested, he told the Police that he was at the village with the wife and was nowhere near the scene of crime. He also gave the name of the village and the name of the wife who voluntarily went to the Police Station where the Appellant was being held and gave the same information which she later repeated at the trial. Unfortunately, her statement to the Police was not used at the trial. Sections 131 to 137 of the CRIMINAL AND OTHER OFFENCES (PROCEDURE) ACT, 1960 ACT 30 as amended which deals with Alibi provides: 131. (1) Where an accused intends to put forward as a defence a plea of alibi, the accused shall give notice of the alibi, to the prosecutor or Counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove, (a) prior, in the case of a summary trial, to the examination of the first witness for the Prosecution, and (b) prior, in the case of trial on indictment, to the sitting of the trial Court on the date to which the case of trial has been committed for trial 2) Where the notice is given the Court may, on the application of the Prosecution, grant a reasonable adjournment In RAZAK & ANOR. V THE REPUBLIC: Criminal Appeal No. J3/6/2011 dated 25th April, 2012 Ansah, JSC said the following on alibi: “Simply put, it means the fact or state of the Appellant having been elsewhere when the offence was alleged to have been committed. In criminal law and procedure, “if an accused puts forward an alibi as an answer to a criminal charge, he is simply saying that whoever might have committed the offence, if it was committed at all, it was not he; and to support this he leads evidence that he was elsewhere at the material time.” see Bediako v The State [1963] 1 GLR 48, SC, at 50”. Though the Appellant did not formerly give notice that he intended to put up a plea of alibi as defence, it was clear from the very beginning, that Appellant was relying on that defence. His denial that he was at the village and nowhere near the scene of crime and the evidence of his wife clearly showed that he was going to rely on that defence and though that information, even if not enough in his caution statement and that of the wife, was sufficient for the purpose of investigating his claim of alibi. The trial Judge appreciated this when he said at page 70 of the Record of Appeal and referred to the case of Razak & Anor. v The Republic (supra) where Ansah, JSC referred to Bediako v The Republic [1976] GLR 39, that a plea of alibi will not fail because the accused did not formerly file a notice as required under Section 131 of Act 60 and that the sum total of the defence should appear to the trial Judge that he was relying on that defence. The Police however did not investigate the alibi and so no report was made available to the Court at the trial. It would have come to the knowledge of the Investigator that DW2, a friend of the Appellant who testified that he assisted Appellant and the wife on the farm and left them very late in the day was also a witness for the alibi. It was not denied at the trial that the said witness was not with the Appellant and the wife on the day in question. The Prosecution did not also challenge Appellant, DW1 and DW2 that they did not visit the maize farm on the day in question. What the Prosecution suggested to him was that Appellant did not mention his name in his statement to the Police when he was arrested; but that do not also prove that he was not with them. The Appellant did not mention the name of this witness but the wife did so. It appears the Investigator did not take a statement from DW1 for the purpose of investigating the alibi because the Prosecution did not tender any such statement at the trial in proof or denial of the alibi. If the Investigator had properly investigated the alibi or at least paid some attention to it, the Prosecution would have noticed that Appellant’s story on the alibi was believable. The fact that the Prosecution did not consider or take the defence of the alibi seriously is evidenced by lack of any report or failure to tender the investigation statement of the wife and take any statement from the friend. The Investigator did not invite him for questioning and so did not even take his statement though he testified that he was on the farm with Appellant and therefore a witness for the alibi and the time and place he was at the time of the commission of the alleged offence. In view of the fact that the Police did not investigate the alibi, the Court should have, before the commencement of the trial, applied subsection (3) and call upon the Appellant to give notice and the particulars to the Police to investigate the alibi. The said subsection provides: (3) If the person charged puts forward a defence of alibi without having given such notice the Court shall call upon him to give notice to the Prosecution of the particulars mentioned in subsection (1) either forthwith or within such time as the Court may allow and after such notice has been given shall, if the Prosecution so desires, adjourn the case. Section 2 (4) of the Practice Direction Disclosures and Case Management in Criminal Proceedings 2018 also reproduces the above provision and expect trial Judges to ensure at the Case Management that, if the accused intends to rely on the defence of alibi, he should give notice and the provisions of S. 131 of Act 60 shall apply. The Prosecution did not deny or lead any evidence to contradict Appellant’s case that he was with DW1 and DW2 on the day in question. For instance, that he was seen at a different location on the day in question or that DW1 and DW2 testified that he left them at a point in time so they could not account for what he did at that moment. The only suggestion made to the Appellant by the Prosecution was that, since on the day in question he left his room to visit the toilet-which according to him is close to his room-he might have used that opportunity to commit the offence as the following cross- examination of the Appellant shows: “Q: What is the nature of the accommodation you live in? A: It is a hut; thatched room. Q: So, if you went to attend nature’s call, you have to go out A: Yes Q: Then it means that your assertion that you did not go out of your house that day cannot be true A: Yes, But the toilet is around my house.” A similar suggestion was made to DW2 as follows: “Q: I refer to your paragraph 5 of your witness statement. Do you suggest or want to say during the time all of you were together on the maize farm, none of you left for any place until the friend of the accused left in the evening? A: Yes. None of us went anywhere. Q: It put it to you that that your assertion that all of you were together the whole day does not mean the accused did not have sex with the victim? A: It is not correct. The accused could not have done that.” It can be seen from this exchanges that, this evidence does not deny that Appellant was at places he claimed he was and that he could have still committed the offence. The answers to these questions establish that Appellant was nowhere near the scene of the alleged crime. If the Appellant was with them all the time, then how can he be accused of committing the crime which happened at a different location. The trial Judge however made these statements at page 71 of the Record of Appeal: “Besides, from her cross examination, she has lived with the accused for 5 years at Dim Village. Is she saying that throughout this period, anytime she is home the accused does not go out? Is it her case that since being married to the accused person for more than 5 years now, that was the only time she had travelled to Wa and returned; and that anytime she had travelled and returned, the accused person would stay with her at home for the whole day? Apart from that, her testimony that they were together at the house the whole of 4th March, 2021 cannot be true or reasonable probable.” Again, the trial Judge rejecting the evidence of DW1 on this issue was thinking along the lines of the Prosecution when he expressed himself as follows: “For example, is DW1 saying that on the date in question, since daybreak to sunset- and up to 5;00pm that PW2 testified that she was attached and defiled by the accused- all of them including DW2 stayed at the same place and moved together as if glued together.? Is she saying that none of them from morning to evening did not for example, go to attend to nature’s call or even in the case of her, she did not cook for her family?” What is not reasonable or probable, if I may ask, about a man staying with the wife in the house who had returned from the home town after about three months for the whole day! With all due respect to the trial Judge, the case before him was not that Appellant was glued to the wife like a baby of a Kangaroo to the mother so that he was constantly with DW1. The issue was whether on the day in question they were together and the Appellant did not go out to commit the alleged crime and not that he had never been out of the house anytime DW1 was in the village. With all due respect to the trial Judge, the fact that a person pleads alibi does not mean that he does not go out of the house or was glued to a particular place but that he was not at the scene of the crime but elsewhere, which may not necessarily be his house. Failure to consider the alibi led the Prosecution to attempt proving the other ingredients of the offence so let us see if it was able to do so beyond reasonable doubt as required by the law. In my opinion, if the Investigator had properly investigated the alibi or at least paid some attention to it, and the trial Judge had also given it some consideration, the Court would not have called on the Appellant to open his defence since he was nowhere near the scene of the crime. Identity of the Appellant The trial Judge was convinced that once PW2 was able to describe what happened to her and identified the Appellant as the person who did that to her, the identity of the Appellant was not an issue, after all, relying on a statement made by Dotse, JSC in the case of Kwaku Frimpong alias Iboman Criminal Appeal No. 13/5/2010 dated 18/01/2012, to the effect that; how would the victims identify the accused persons as responsible for the robbery out of the millions of people in Accra. So, to the trial Judge in the instant case, how would PW2 point accusing fingers at the Appellant and identify him as the person who did that to her among the several people in the village. It should be noted that the victims in the Iboman case did not previously know the accused persons who robbed them at gun point but they were able to identify them whilst the robbery was going on particularly, the 4th Accused who was standing at the gate and keeping guard. In such a situation, it is most appropriate to suggest to the accused persons that it was not out of hatred or mistaken identity that the victims pointed to them at the identification parade that they were the people who robbed them, among the millions of people who live in Accra. That case is therefore disguisable from the present case where PW2 already knew the Appellant very well before the alleged incident. As was admitted by PW2, and corroborated by the wife of Appellant, they all stay in the same village and know each other very well and for a long time; in fact, their house is even close. Appellant said he had lived in the village for 20 years and if the age of PW2 as accepted as 15 years by the Court, it means Appellant had lived in the village 5 years before PW2 was born. So, his identity to her was not going to be a problem. It should also be noted that Appellant was not identified at an identification parade. The trial Judge should have therefore been very circumspect in accepting the story of PW2 that Appellant was responsible for the crime. It was therefore wrong for the trial Judge to have readily accepted that because PW2 identified the Appellant that should be a conclusive proof that, indeed he was responsible for the crime. The torn panties The case for the Prosecution was that Appellant violently tore the panty of PW2; which of course was an important step if the Appellant could gain access to her vagina and have sex with her. Fortunately, PW2 was sensible enough to have taken the torn panty from the scene of crime and showed it to the father who also took it to the Police Station when they went to report the case. Nobody will doubt that in a trial involving sexual offence, a torn panty, which the victim was wearing, is a very crucial material evidence which could have nailed the Appellant since he denied committing the offence. Admittedly, that piece of evidence would not have been conclusive of the commission of the offence, but it would have placed a heavy burden on the Appellant to discharge. Unfortunately, the Prosecution did not consider it important to tender that material evidence which may still be in the custody of the Police since the Investigator was the one in charge of the exhibits in the case. Counsel for the Respondent in supporting that position said in her submission that it was the prerogative of the Prosecution to decide which material it wanted to tender in evidence. That fact is admitted. It may be the prerogative of the Prosecution not to tender certain exhibits in evidence but it is not their prerogative to keep those exhibits from the defence under the current dispensation of disclosure in Case Management in Criminal Proceedings by virtue of Section 2 of the Practice Direction Disclosures and Case Management in Criminal Proceedings, 2018. With all due respect to Counsel, gone are the days when the Prosecution exercising all the powers at its disposal, kept all the evidence in its possession which it was going to use at the trial to its chest and guarded it with the most secrecy as if its disclosure to the defence was a threat to national security. An application for a copy of even the charge sheet, was met with a fierce resistance as if the conviction of the accused depended on the secrecy of that document. Even if that were to be the law, I am of the view that the exercise of such prerogative will seriously cast a doubt in the case of the Prosecution in the trial of sexual offence. The question will always be what does the Prosecution have to hide in suppressing that evidence? Is it therefore out of place or being hypothetical for Counsel for the Appellant to suggest that if that material had been tendered in evidence, the defence would have applied to have the torn panty undergo forensic examination. Though the result of such examination may not be conclusive evidence to exonerate Appellant of the commission of the offence, he would have had a very difficult burden to discharge in explaining how his DNA came to be placed on that material if the report is to conclude that his DNA was on the torn panty of the defiled girl. In the case of Eric Asante v. The Republic; Criminal Appeal No. J3/7/2013 dated 26th January 2017(unreported), the Supreme Court used DNA to exonerate the Appellant who has been convicted of defiling and impregnating the victim who claimed not to have had sex in her lifetime. The Court ordered a DNA paternity test and the result showed that accused was not the father of the child. In the instant case, if the torn panty had been tendered in evidence, a DNA will have established whether the Appellant had any contact with PW2 on the day in question. The unfortunate situation is that though the Prosecution, based on its prerogative did not tender the torn panty in evidence, the trial Judge commented on and relied on it as if it was part of the evidence. The trial Judge acknowledged the fact that the torn panty was not in evidence and therefore not part of the Prosecution’s case, and yet this is what he said about it in evaluating the evidence in his judgment at Page 64 of the Record of Appeal: “Meanwhile, the evidence of Pw3, the investigator had indicated or testified that Pw2 had come to the Police Station to lodge a complaint with the torn panty. The Court admits that Pw3 did not exhibit the said torn panty in Court, however, that is still tellingly significant for Pw2 to have gone to the station with the torn panty.” With all due respect to the trial Judge, since the Prosecution made it a prerogative not tender the torn panty in evidence, the trial Judge had no business relying on it to conclude that Appellant defiled PW2. What was his guarantee that PW2 and his father went to the Police Station with any such material when they went to lodge the complaint and such material existed? And what about the alleged GH¢10.00 which Appellant was supposed to have given to PW2 after the act? As Azumah Nelson said in the advertisement “every painte be painte”; I will say that every GH¢10.00 be GH¢10.00, so I do not understand why the Prosecution did not at least tender any GH¢10.00 for at least same to be objected to by the defence. Does the absence of these exhibits not cast doubt on the case of the Prosecution? Apart from denying the Appellant the benefit of using these exhibits for his defence, it casts a serious doubt on the case of the Prosecution, which doubt should have been resolved in favour of the Appellant. Extrinsic Evidence It appears from the evidence that the trial Judge was bent on convicting the Appellant for reasons I cannot fathom. Contrary to the principle that a Judge must be faithful to the evidence placed before him, he imported evidence into the case and relied on same in his judgment which were not even part of the Prosecution’s case and I will discuss a few of them. The entire case of the Prosecution did not say anything about the accused making a statement or conversing with PW2 whilst the alleged act of defilement was going on which meant the identification of his voice was not an issue at the trial. In analysing the case of the defence and rejecting his plea of alibi however, the trial Judge made this statement at page 74 of the Record of Appeal: “I find that she had ample time to recognise the accused both visually and by voice; as the act of the Accused grabbing her, lifting her and carrying her to the crime scene; the act of the Accused removing and tearing her panty and penetrating her would have afforded the victim ample time and clear opportunity to see the face and hear the voice of the Accused.” (my emphasis). I have read the entire record many times and nowhere is there evidence that Appellant uttered a single word. PW2 who is supposed to have gone through the alleged ordeal described by the Judge in graphic detail, did not say that Appellant made any statement. The closest the Appellant could have come to using his voice was when he promised to give GH¢20.00 to PW2 later after giving her GH¢10.00. The trial Judge could however, not make such inference since the issue of the GH¢10.00 was not at the trial because no such money was tendered in evidence to extend it to a promise of GH¢20.00 to be given to PW2 later. So, in the absence of the Appellant saying anything during the alleged crime, where did the trial Judge get the evidence that PW2, in addition to seeing the face of the Appellant also identified him by his voice? Clearly, this evidence could only have been fabricated by the trial Judge who could not dispassionately read through the case of the Prosecution and act as an independent arbiter. Again, on the issue of alibi, the trial Judge inferred from the evidence that the house of the Appellant being close to the scene of crime strongly suggest that he could have quickly gone to the place, commit the offence and ran back home, since according to experts, the ordinary time that a person can use to cover a distance of 100 meters is 1. 24 minutes which to him, should negate his plea of alibi. This is what he said at page 74 of the Record of Appeal: “In the very context of this case, it is not in dispute that that the house of the accused is near the scene of crime and the accused is a neighbour to the victim, she has known the accused for many years before the incident; there is also the proximity of the house of the accused to the place of crime which wholly negates his defence of alibi.” There is however no evidence on record that the house of the accused is near the scene of crime though it is close to that of PW2. So, again, where did the trial Judge get this evidence from. He relied on this evidence to conclude that it was not impossible for the accused to have gone to the place to commit the offence and then run back to the village to join the wife who would not have noticed what the Appellant had gone out to do. Such inference and conclusion which was not warranted by the evidence, certainly occasioned miscarriage of justice. The trial Judge also referred to Statement PW1 made to the Police about the complaint he lodged with the Police that he reported a case of defilement against the Appellant and not pregnancy when that Statement was not in evidence. The Medical Report The trail Judge looking for corroboration in a trial of sexual offence did find one in the Medical Report of Dr. Frank Ewusie Brown of the Donkorkrom Presbyterian Hospital who examined the victim on 8th day of March, 2021 stated in his Report as contained in the Police General Medical which was tendered in evidence by the Prosecution as Exhibit “C” the following: “Hymen broken and vagina admitted two fingers. Sexual assault of a minor with penovaginal penetration.” The substance of this report was that the hymen of the victim had been broken suggesting that there has been sexual intercourse and penetration of the vagina of the victim which the trial Judge attributed to the Appellant. The Prosecution and Counsel for the Respondent have relied on this evidence to conclude that indeed, Appellant had sexual intercourse with PW2. The Oxford Advanced Learner’s Dictionary (International Student’s edition 8th Edition defines hymen as: “a piece of skin that partially covers the opening of the vagina in women who have never had sex.” It has been medically proven that once this membrane is broken, it cannot be reformed naturally. For the trail Judge, this was a manna from heaven which he considered as the final nail in the coffin of the Appellant. This is how the trial Judge evaluated this piece of evidence in his judgment at page 64 of the Record of Appeal: “The finding by the medical officer as per Exhibit “C” above with respect to Pw2 reasonably appeared to support the claim of the victim and the position of the Prosecution generally that, the victim was sexually assaulted in her vagina by someone, who the victim identified as the offender.” He then concluded as follows: From the evidence of Pw1 and Pw2 (the victim), and the opinion and findings of the medical officer as per Exhibit “C”, the cumulative effect, I find that, the Prosecution succeeded to prove beyond reasonable doubt that the accused had sexual intercourse with the victim on the date in question.” It should be noted that the evidence of PW1, the father of the victim on this issue was entirely hearsay; it was therefore wrong for the trial Judge to have evaluated the evidence from his perspective to draw such a conclusion. But more importantly, there was evidence given by the victim herself that at the time of testifying, she was pregnant as the following exchanges at page 11 of the Record of Appeal show: “Q: I put it to you that as you stand there you are pregnant? A: Yes. Q: Tell the Court who is responsible for your pregnancy. A: The accused. Q: I suggest to you that you have informed Pw1 about the pregnancy A: Yes. Q: I put it to you that you did not tell or inform Pw1 that the accused was responsible for the pregnancy A: I told my farther.” The fact of the pregnancy was also confirmed by PW1 when in answer to a question concerning the pregnancy, he told the Court that he was not in Court about the pregnancy of PW2 but the defilement charge against the Appellant. As the trial Judge rightly pointed out, the fact that PW2 was pregnant did not take away the fact the Appellant could have had sex with her. But to conclude that because Exhibit “C” concluded that the hymen of at least a 5-month pregnant girl had been broken was a proof that Appellant sexually assaulted her, to say the least, is illogical. How could a woman who has had sex and was pregnant be still expected to have her hymen intact? In STATE v. GYIMAH [1963] 2 GLR 446 the Court said: “…there is the fact that it was found by the doctor that Mary’s hymen had been previously perforated but without recent injury, and the fact that the doctor found no signs of bruises or violence either to the hymen or elsewhere on the girl. The evidence of the doctor’s findings which I accept makes almost unbelievable Mary’s assertion that she had never prior to the date of this incident had sexual intercourse with other men.” If PW2 was already pregnant at the time of the alleged sexual assault, how could it be said accused was responsible because the hymen was perforated by that act. The medical report also indicated that there was penetration of the vagina of PW2 which the trial Court accepted and attributed to the Appellant. The Appellant in his evidence- in-chief stated that PW2 was married to a certain man and that at the time of giving his evidence she had delivered. This piece of which was not challenged by the Prosecution, was not considered by the trial Judge because he was not dealing with a case involving the impregnation of PW2 by the Appellant or any other person. It was however not in dispute that it took five (5) days after the incident before the Doctor had the opportunity to examine PW2. Was it not possible that this 5-month pregnant girl could have slept with the husband or concubine in between this period? In my opinion, the medical report was wrongly used to convict the Appellant. If the trial Judge had taken a critical look at Exhibit “C”, he would have come to a different conclusion. The conviction of Appellant based on Exhibit “C” was wrong and had occasioned miscarriage of justice. The victim told the Police which also formed part of the case for the Prosecution that she went to the place of the incident in the company of her two siblings aged 1year and 4 years old. According to the witness, when she was grabbed from behind by the Appellant the two ran away from the scene, apparently to the village. It can safely be assumed that the one-year-old child was carried to the place on the back of PW1 since he could not have walked the distance to the place. There is no evidence that the other sibling aged 4 years old carried the one-year-old child on her back while running to the village, because a child of that age cannot carry a one-year-old child on her back and ran with him. The only inference is that they both walked to the village which was also not possible if the one-year-old child was carried to the place. Again, a 4-year-old child who is not dumb should be able to narrate an incident she observed sufficiently to her parents. There is no evidence that the 4-year-old sister reported the incident to her parents or any other person when she got home. I cannot see how a 4-year-old child whose elder sister had been grabbed by an unknown man to her would not report the incident to the mother when she got home. Indeed, if she had done that, the mother with other people could have gone to meet the accused on the scene or probably in the act having regard to the distance between the village and the scene of the alleged crime as described and accepted by the trial Judge. The trial Judge should have considered this piece of evidence because it is strange that the child made no report of the incident to her parents or any other person. If these pieces of evidence were meant to add to the story of the defilement, then to me they were counterproductive. THE CREDIBILITY OF PW2 The victim who the trial Judge praised and whose evidence was considered more sacrosanct than that of a saint was, after all not a credible witness. She testified that the incident happened at 5pm and together with the father they reported it to the Police the same day at 7:00pm. But the Investigator who testified as PW3 said the incident was reported on 5th March, 2021, a day after the incident as captured in his cross-examination by Counsel for the Appellant in the proceedings of 24th August, 2021 at page 16 of the Record of Appeal: “Q: In your evidence you stated that the complaint was lodged at the Police Station on 4th March 2021. A: No. It was around 12:00pm on the 5th March 2021.” Again, PW2 said she did not take her bath on the night of the incident, apparently to preserve the evidence of the sexual act for examination. If that was the case, then she should not be expected to have taken her bath for five continuous days because the evidence on record shows that though the incident happed on 4th March, 2021, the exanimation was conducted on 8th March, 2021. But PW2 could not have abstained from taking her bath for five continuous days just to keep her body intact for medical exanimation. In any case there was no evidence to that effect. PW2 said Appellant was responsible for the pregnancy but it turned out not to be so which confirmed the story of the Appellant that she was in a relationship with another man and had given birth at the time he was giving evidence, which was not impossible especially considering where they both live. It is true that the issue of pregnancy was not before the Court which could not also have absolved the Appellant if he committed the offence, but if the trial Judge had averted his mind to that evidence, he would have been at least persuaded by the fact that PW2 could have engaged in sex between the day of the alleged attack and the date of her examination and the alleged penetration would not have been attributed to the Appellant. These pieces of evidence do not make PW2 a credible witness. 2. The other ground of appeal is that the trial Judge did not consider the defence of the Appellant. The law is that a trial Judge must always consider the evidence of the defence even if it is not to be believed. In his Book Trial Courts And Tribunals in Ghana cited by Counsel for the Appellants, the learned author stated at page 152 as follows: “in a judgment it is very necessary that full consideration is given to the defence of the accused…However slow, dilatory or even irritating a defence maybe it is essential that the accused is allowed to complete his defence. A conviction based on a defence which has not been completed cannot stand.” In DARKO v. THE REPUBLIC [1968] GLR 203, Amissah, JA (as he then was) held that: “The crucial question relevant to the point in any ordinary criminal trial would turn upon whether the Judge or tribunal of fact upon consideration of the whole evidence found that the case of the Prosecution had been proved beyond reasonable doubt. Where a Court convicted only because it took the view that the accused person’s defence was not to be believed this would be equivalent to shifting the burden of proof on to the defence. For it would in effect amount to saying that he was entitled to be acquitted only if he proved his defence to the satisfaction of the Court. By implication the Court would then have relieved the Prosecution of its duty to prove its case beyond reasonable doubt which it was not entitled to do. A Court could not therefore stop short at saying that it was convicting the accused because it did not believe its story. It must go further and show whether his story did not create a reasonable doubt either.” I have read the 34-page judgment of the trial Circuit Court Judge and I am satisfied that he considered the defence of the Appellant at length and in detail. The trial Judge appreciated his duty to consider the case of the defence even if he believed the case of the Prosecution. At pages 19 to 30 in his judgment which can also be found at pages 66 to 77 of the Record of Appel, the trial Judge stated the law and cited the cases of Atta v The Commissioner [1963] 2 GLR 460 and Hausa V. The Republic [1981] 2 GLR 840 in support. For instance, he discussed the issue of alibi as raised by the defence in line with the principles and some of the authorities, but did not believe the story of the Appellant on that issue; he also discussed the age of the victim, the medical report on the victim, the torn panty; but in my opinion, he reached the wrong conclusions on some of the issues involved. It is obvious that the Judge did not attach any weight to the defence of the Appellant but that is different from saying that he did not consider the defence of the Appellant. That ground of appeal has no merit and same is dismissed. The last ground of appeal is that the learned trial Judge erred in calling upon the accused/Appellant to open his defence as the Prosecution failed to satisfactorily prove its case. What the Appellant is saying is that at the close of the Prosecution’s case in support of the charge, it had not been able to make a case against him which required the Court to have called upon him to open his defence. From the evidence as I have analysed, I have to uphold this ground of appeal. In his Book CRIMINAL PROSECUTION IN GHANA; PRACTICE & PROCEDURE, Daniel Korang made the following statement at page 321: “Submission of no case is a procedural step designed to prevent perverse judgment or verdict. Particularly, in jury trials, a wrongful overruling of a Submission of no case is likely to influence a verdict of guilty.” He then referred to the case of GYABAAH v. THE REPUBLIC (supra) where Osei-Hwere, JA. said: “It was indeed explained in Moshie’s case that section 271 of Act 30 cast a positive duty on the trial Judge to ensure that the accused was not deprived of this protection through either mistake or ignorance. This section, we firmly believe, aims at forestalling the possibility of perverse verdicts.” The policy behind submission of no case is to avoid a situation where the Prosecution merely puts a multitude of suspicions together and purport to have proved the charges against the accused and call on him to open his defence. If at the close of the Prosecution’s case the trial Judge is of the view that the whole case is founded on suspicion, then the accused should not be called upon to open his defence. As was stated in the case STATE v. OTCHERE AND OTHERS [1963] 2 GLR 463 that: “It is a cardinal principle of justice that no man is ever convicted on suspicion. A string of suspicions, however numerous and however grave, can never be multiplied together to produce proof of guilt.” Thus, submission of no case is designed to prevent perverse judgment or verdict. In MOSHIE v. THE REPUBLIC [1977] 1 GLR 287 the Court said: “In considering his duty under section 271 of the Criminal Procedure Code, 1960 (Act 30), the Judge should not leave a case to the jury if he was of the opinion that (a) there had been no evidence to prove an essential element in the crime, or (b) the evidence adduced by the Prosecution had been so discredited as a result of cross-examination, or (c) the evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it, or (d) the evidence was evenly balanced, that is to say, the evidence was susceptible to two likely explanations, one consistent with guilt, one with innocence. Where any of these elements was evident in the case for the Prosecution the Judge should charge the jury for acquittal and not leave the matter in such a case to the jury.” In Zortovie v The Republic [1984-86] 2 GLR 1, CA, the Court held that a wrong decision on a submission of no case was a misdirection in law. Where the submission of no case is wrongly overruled in circumstances which shows clearly that no case was made against the accused, the Prosecution will still fail to establish a prima facie case even if the accused gives incriminatory evidence after he had been wrongly called upon to open his defence. See pages 331 & 332 of Daniel Korang’s Book (supra). This means that where an accused is wrongly called upon to open his defence in circumstances in which he should have been acquitted, the Court will overturn the judgment if he is convicted and it does not matter whether he gave incriminating statements or evidence against himself. See also the cases of Donkor V The State [1964] GLR 580. SC and Donkor V the State [1963] 2GLR 59. SC. The last ground of appeal is that the sentence is harsh and excessive considering the evidence on record. In view of the conclusions I have reached in this appeal, I am not called upon to determine whether the sentence of 12 years IHL imposed on the Appellant was appropriate or not. Benin, J. (as he then was j) said in DARKURUGU V. THE REPUBLIC [1989-90] 1 GLR 308 at page 320 of the report that: “I need not bother myself about what sentence should have been appropriate since it has not become necessary.” Counsel for the Respondent made an interesting statement at pages 13 & 14 of her written submission that when the Appellant was offered the opportunity to say something in mitigation of his sentence, he made the following statement: “My lord, I pray for mercy. I pray for leniency. I would not do that again” Counsel has therefore concluded that, if Appellant did not commit the offence, he would not have made such a statement. If I understand Counsel this statement amounts to a confession of the crime. But with all due respect to Counsel, that was not an issue at the trial and certainly, not part of the Prosecution’s case. The Record of Appeal did not show anywhere that Exhibit “A” & “B”, the investigation caution statement and the charged statements of the Appellant contain any such statement. Besides, a confession statement must meet certain statutory requirements under Section 120 of the Evidence Act, 1975 (NRCD 323), before it may be properly admitted in evidence. Even if this statement was true, the Court could not have convicted the Appellant on such unsworn evidence at that stage of the proceedings no matter how incriminating it may be. In effect, the appeal succeeds. The conviction and sentence of 12 years IHL imprisonment imposed on the Appellant for the one (1) count of Defilement contrary to S. 101(2) of the Criminal Offences Act, 1960 (Act 29) as Amended by S.11 of the Criminal Amendment Act, 1996 (Act 554) is hereby set aside. The Appellant is accordingly acquitted and discharged. For these reasons, I allow the appeal and acquit the Appellant. (SGD) NANA YAW GYAMFI FRIMPONG, J. JUSTICE OF THE HIGH COURT COUNSEL 1. MAA NYARKOA TWUM-BAAH FOR THE REPUBLIC/RESPONDENT 2. D. C. HAMMOND FOR THE ACCUSED/APPELLANT 32