REPUBLIC VRS ASIEDU (E6/02/2023) [2023] GHACC 1128 (15 December 2023)

IN THE CIRCUIT COURT FIAPRE HELD THIS FRIDAY THE 15TH OF DECEMBER, 2023 BEFORE HER HONOUR AKUA ADOMA ADDAE Court Case Number: E6/02/2023 THE REPUBLIC VERSUS KWAME ASIEDU JUDGEMENT The Accused person per the charge sheet filed on the 20th of April, 2023 is charged with one count of defilement, contrary to section 101 of the Criminal Offences Act, 1960 (Act 29) and another count of Threat of Death contrary to section 75 of the Criminal Offences Act, 1960 (Act 29). The facts of the case as presented by the prosecution are as follows: The Complainant in the case, Mariam Adama is a teacher and a resident of Chiraa. The victim Adama Rashida Herold is an Eleven (11) year old pupil of Victory Preparatory School, Chiraa and the younger sister of the Complainant. The Accused person is also a resident of Chiraa. The victim resides with her parents and the Complainant at a different place. On the 2nd day of December 2022, around 8:00 am, the parents of the victim left the house for the farm, leaving the victim and her two younger brothers in the house. A few minutes after the parents left, the two younger brothers also went to their school compound to play. The Accused subsequently came to the house of the victim and asked her for water to drink. The victim obliged and when she was returning from the corridor, the Accused gave her Thirty (30) Ghana pesewas to buy him a sachet of water from a nearby house. Whilst the victim was going to buy the water, the Accused followed her and stood ahead of the house where no one would see him. The victim bought the water and when she was handing over the water to the Accused he held her hand and pulled a knife from his pocket. The suspect warned the victim to keep quiet else he would kill her. The victim became afraid and complied with the orders of the Accused. The Accused followed the victim a long distance and he later directed her to a teak plantation. The Accused upon reaching the teak plantation, again threatened the victim with the knife saying “If you shout, I will kill you”. The Accused undressed the victim, spread her dress on the ground and had sexual intercourse with her. On the 2nd of December, 2022, the Complainant lodged a case at the Chiraa Police Station and a medical form was issued to the Complainant to send the victim to the hospital for examination. On the same day, the Complainant returned the medical form which indicated that there were pieces of dried leaves on the thighs of the victim. Her labia minora looked swollen, reddened and painful to touch. There was also a whitish discharge from the vagina of the victim. Her hymen also looked broken. On the 28th of December, 2022, Chiraa Police arrested the Accused person to Odumase Police Station and the case was transferred to DOVVSU, Odumase. On the 30th of December, 2022 the Accused was released on police enquiry bail to be taken to Goaso where he claimed to be when the incident happened but the Accused never reported to the Police. On the 10th of March, 2023 an application for forfeiture of bail recognizance was prepared against the sureties. On the 18th of April, 2023 the sureties produced the Accused to the Police and he was arrested. After investigations, the Accused was charged with the offences on the charge sheet and put before this Honourable Court. The plea of the Accused was taken on the same day the charge sheet was filed and the accused person pleaded not guilty to both counts and the accused was subsequently granted bail. Burden of Proof on the Prosecution Proof in criminal trials is circumscribed by Article 19(2) of the 1992 Constitution of the Republic of Ghana which clothes the Accused with the Presumption of innocence. The prosecution then has to rebut this presumption by leading evidence to establish the guilt of the Accused if the Accused himself does not admit his guilt. Section 11(2) of the Evidence Act NRCD 323 provides that the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact, beyond a reasonable doubt. The retired Legal Luminary, Justice S. A. Brobbey, at page 47 of his book, Essentials of the Ghana Law of Evidence stated thus: “In criminal trials, the burden to produce evidence is the obligation on the prosecutor to produce sufficient evidence in support of the charge to induce the judge not to withdraw the charge from consideration by the jury or convince the judge, where he sits alone, not to dismiss the charge summarily.” In the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 374, per the Dictum of Lord Denning, the meaning of reasonable doubt was clarified as follows: “it need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, “of course it is possible but not the least probable, the case is proved beyond reasonable doubt. In the case of Oteng v The State [1966] GLR 352 at 354 the Supreme Court held that one significant respect in which our criminal law differs from our civil law is that while in civil law a Plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain a conviction upon mere probabilities. Burden of Proof on the Accused Per section 11(3) of the Evidence Act, NRCD 323: “In a criminal action, the burden of producing evidence, when it is on the Accused as to a fact, the converse of which is essential to guilt, requires the Accused to produce sufficient evidence so that on the totality of the evidence, a reasonable mind could have a reasonable doubt as to guilt” Again in section 13(2) of NRCD 323 “… In a criminal action, the burden of persuasion as to the fact of guilt requires only that the Accused raise a reasonable doubt as to guilt. Count 1: Defilement contrary to section 101(2) of the Criminal Offences Act, 1960 (Act 29) “101(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 For the prosecution to successfully maintain this charge, it must prove beyond reasonable doubt, the essential ingredients of the offence. In the case of Daniel Kwabena (a.k.a) Kwabena Akyirem v. The Republic [2019] DLHC10096, the High Court (Criminal Division) Accra per Justice George Baudi J listed the essential ingredients for the offence as follows: a. That the alleged victim is below sixteen years b. That the victim had been carnally known c. That the culprit is no other person other than the Appellant. And for the Accused to exonerate himself concerning the above charge, he must raise a reasonable doubt as to the age of the victim, her being carnally known and the fact that if she was carnally known the culprit is someone other than he, the Accused. I shall proceed to examine the evidence in the light of the above-stated ingredients. a. Whether or not the victim is below 16 years of age. Prosecution per their charge sheet and facts attached thereto, indicated that the victim of the offence is an 11-year-old class 5 pupil of Victory Preparatory School, Chiraa. On the 11th of May, 2023 when the victim mounted the witness box to give her evidence, she stated her age as being 12 years. She also stated that she was a class 6 pupil of the said Victory Preparatory School. It stands to reason that from the time of the incident, the victim had grown in age and advanced in class. On the 25th day of July, 2023 the investigator in charge of this case, Chief Inspector David Gomashie in his evidence-in-chief, tendered the birth certificate of the victim. Per the said birth certificate which was tendered without any objection from the Accused person herein, the victim was born on the 13th of January, 2011. The Accused did not challenge the age of the victim during cross-examination. Therefore, on the 2nd day of December 2022 when the incident happened, I find that the victim was indeed 11 years old and therefore below the age of 16 years. b. Whether or not the victim had been carnally known Section 99 of Act 29 which is on the evidence of carnal knowledge provides as follows: “where, on a trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge, that knowledge or unnatural carnal knowledge is complete upon proof of the least degree of penetration.” Dotse JSC in the case of Gligah & Atiso v. The Republic [2010] SCGLR at page 870 held as follows: “ Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or how little the penis went into the vagina. So long as there was some penetration beyond what is known as brush work, penetration would be deemed to have occurred and carnal knowledge taken to have been completed. In this instant case, the victim in her evidence-in-chief given before this court on the 11th day of May, 2023 stated that the Accused inserted his penis into her vagina and had sex with her after which he ran away. The investigator in charge of this case in his evidence-in-chief on the 25th day of July, 2023, tendered the victim’s medical form and same was admitted without any objection from the Accused who was present. The said medical report was endorsed by a medical officer at Chiraa Government Hospital, Dr. Obour Amankwa and he noted in his report as follows: “on general examination, the patient looked depressed but stable. Her clothes were intact but soiled. On examination of the perineal area, there were pieces of dried leaves on the thighs (close to the vulva). No obvious bruises or bleeding were seen. The labia minora looked swollen and painful to touch. There were abrasions at the vulva vestibula. No obvious bleeding was observed. There was whitish discharge from the vagina but no obvious bleeding per vaginum. Hymen looks broken…” Per section B: Victims Medical History and Sexual Assault/ Incident Information, the said doctor indicated that there was successful penetration of the vagina of the victim. The presence of pieces of dried leaves found on the thighs of the victim as stated in the medical report is consistent with the version of the victim’s account of events. The victim said that the Accused took her into the teak plantation where he inserted his penis into her vagina and had sexual intercourse with her. Further, the Accused was not able to punch holes in this account of events during cross- examination. From the foregoing, the prosecution has been able to prove that the victim in this case had been carnally known. c. Whether or not the culprit is the Accused. From the evidence of the victim before this court, the Accused is not someone that she knows. In her answer to the question posed by the prosecutor as to whether or not she knew the Accused this is what the victim had to say: Q: Do you know the Accused? A: I don’t know him. I only met him on the day of the incident. From the Evidence-in-Chief of the Accused given on the 21st day of December 2023, the Accused stated that it was the victim who pointed him out at the time he was initially invited to the Chiraa Police Station. He stated as follows: “ I was there when the complainant and a young lady came. When they came, they asked me if I knew the child who was with them. The child said she knew me but I don’t know her.” Under cross-examination, the Accused stated as follows: Q: Do you know the victim and the Complainant in this case? A: No. Q: Do you live close to where they live? A: No I live far from them. Prosecution has led evidence to show that, the Accused is not someone who is known to the victim. As a matter of fact, the Accused does not live close to the victim. It is therefore compelling that the victim was able to point the Accused out, from among a group of people, as the one who had sexual intercourse with her, with such certainty. Once the prosecution was able to lead evidence to prove beyond reasonable doubt; a. That victim was below 16 years of age b. That the victim was carnally known, and c. That the culprit is none other than the Accused. The burden of proof shifts to the Accused to raise reasonable doubt in the case of the Prosecution. The Accused, during his cross-examination of the victim, was not able to raise any reasonable doubt as to the age of the victim, nor the fact that she had been carnally known nor the fact that the culprit is none other than he the Accused. His Cross-examination is reproduced as follows: Q: who saw that I pulled a knife on you? A: Accused kept hiding the knife when he sees people Q: Why didn’t you also raise an alarm? A: I was afraid you would stab me with the knife. Q: So if you were afraid, why did you not tell anyone or alert someone? A: I was afraid that he will stab me if I raised an alarm. Q: All you are saying is not true. The Accused also declined to cross-examine the complainant in this case because according to him he did not know anything about the case. He claimed he went to work that day and heard about the case upon his return. The Accused was also unable to punch holes in the evidence of the investigator. His cross-examination is reproduced below as follows: “Q: I never did the act I am accused of? A: the victim categorically stated that accused pulled a knife on her and further removed her dress and placed it on the ground before having sexual intercourse with her Q: Who saw me going to the Saw Mill with the victim? A: Where accused took the victim to is a remote area and because there was fear in the victim, victim could not shout for help. Q: Where the child took us had a few houses close by. A: The houses were about 300 meters away from where the incident happened. Again, in his defence the Accused insisted that at the time the offence happened, he was not even in Ghana and that he was in Cote D’Ivoire. This statement is in sharp contrast to the statement he gave to the police wherein he stated that he was in Goaso. The inconsistency of the Accused makes his version of account of events less likely to be true. The Accused has therefore failed to discharge the burden of raising a reasonable doubt in the case of the Prosecution. I find that the Victim at the time of the offence was 11 years of age and below 16 years, that the Victim was carnally known and that the culprit is none other than the Accused. I find the Accused guilty of the offence of Defilement of a Child Under Sixteen Years of Age contrary to section 101 of the Criminal Offences Act, 1960 (Act 29) and convict him accordingly. Count 2: Threat of Death contrary to Section 75 of The Criminal Offences Act, 1960 (Act 29) Section 75 Threat of Death A person who threatens any other person with death, with intent to put that person in fear of death commits a second-degree felony. In the case of Behome v. The Republic [1979] GLR 112, the court held that in the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person threatened whilst the mens rea would also consist in the realization by the offender that his threat would produce that expectation. To successfully prove beyond a reasonable doubt, the guilt of the Accused concerning this charge, the prosecution will have to prove that: a. The Accused created in the mind of the victim the expectation of death b. The victim expects death at the hands of the offender From the evidence of the victim, the Accused threatened to kill her with a knife if she raised an alarm and it was this fear of death that made her succumb to the vile act of being defiled by the Accused. Her fear becomes more apparent under cross-examination by the Accused which is reproduced as follows: “ Q: who saw that I pulled a knife on you? A: Accused kept hiding the knife when he sees people Q: Why didn’t you also raise an alarm? A: I was afraid you would stab me with the knife. Q: So if you were afraid, why did you not tell anyone or alert someone? A: I was afraid that he will stab me if I raised an alarm. This is further buttressed by the answers given by the investigator under cross- examination by the Accused which is reproduced as follows: “Q: I never did the act I am accused of? A: the victim categorically stated that the accused pulled a knife on her further removed her dress and placed it on the ground before having sexual intercourse with her Q: Who saw me going to the Saw Mill with the victim? A: Where accused took the victim to is a remote area and because there was fear in the victim, victim could not shout for help. From the evidence led by the prosecution and the answers given under cross-examination of the prosecution witnesses, it is clear that the prosecution has led sufficient evidence to show that the Accused by threatening to kill the victim with the knife he showed her, created the expectation of death in the mind of the victim and it was this fear that prevented her from raising an alarm and succumbing to the Accused. The burden therefore shifted onto the Accused to raise reasonable doubt in the story of the Prosecution but the Accused failed to do so. In light of the above, I find the Accused guilty of Threat of Death contrary to section 75 of the Criminal Offences Act, 1960 (Act 29) and convict him accordingly. In sentencing the Accused, I am guided by the Ghana Sentencing Guidelines and the Court of Appeal case of Charles Agyeman @ Nana Yaw v. The Republic [2020] CLRG 443. In the above-cited case, the Court of Appeal presided over by Adjei JA, held as follows: “Several Supreme Court cases have extensively discussed the factors that a court is entitled to consider in determining the length of sentence. They include the intrinsic seriousness of the offence, the degree of revulsion felt by law-abiding citizens of the society for the particular crime, the premeditation with which the criminal plan was executed and the prevalence of the crime within the particular locality where the offence took place, or the country generally. The sudden increase in the incidents of that particular crime and mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed may also be considered in passing sentence. A punitive or deterrent or exemplary sentence may be imposed to indicate the disapproval of society of that offence where the court finds the offence to be grave. The offence of defilement is a serious one. This can be deduced from the fact that the legislature has prescribed a minimum sentence of 7 years to ensure that no Convict is given a lenient sentence. I have taken into consideration the following aggravating factors being the young age of the victim, and the age difference between the victim and the accused. The Accused at the time of the incident was 23 years whereas the victim was 11 years, a difference of 12 years. The only mitigating factor I find in this case is the fact that the Accused is a first offender. However, the facts of this case are so disturbing, that the fact that the Accused is a first offender does not, in my opinion, operate as a mitigating factor. He did not act as a first offender. The Accused admitted that he does not know the victim and I believe him. The Accused, just as the devil was described in 1 PETER 5:8 …Your adversary the devil as a roaring lion, walketh about seeking whom he may devour. He was roaming the vicinity when he noticed the victim. He went to her to ask for water to make sure that she was alone before luring her out of her home with a request that she go to a shop to buy him a cold sachet of water. The Accused is nothing more than a predator who is not fit to live in a human society where humans rear their young. Families should be protected from the likes of the Accused. The victim will never be the same after this violation. She has lost her innocence and her childhood in the vilest manner. This offence of defilement is becoming endemic within our society I believe a deterrent sentence will go a long way to curb this menace. I hereby sentence the Accused person to the maximum sentence of Twenty-Five years I. H. L on count 1. I further sentence the Accused to a term of ten years’ imprisonment I. H. L. on count 2 Both sentences shall run concurrently. I further order that the victim of this crime, be psychologically and psychiatrically assessed and treated for trauma and any related psychiatric anomalies that may be detected during her assessment, at the Sunyani Regional Hospital by a Senior Medical Officer. …………………………………….. AKUA ADOMA ADDAE