EDUAM VRS REPUBLIC (F22/31/2023) [2024] GHAHC 86 (26 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON TUESDAY, THE 26TH DAY OF MARCH, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL -HIGH COURT JUDGE. SUIT NO.: F22/31/2023 KWESI EDUAM - ACCUSED/APPELLANT VRS THE REPUBLIC - RESPONDENT JUDGMENT On 19th April, 2021, the Circuit Court, Mankessim, convicted and sentence the Appellant to Ten (10) years imprisonment with hard labour for the offence of defilement contrary to section 101(2) of the Criminal Offences Act, 1960 (Act 29). Being aggrieved and dissatisfied with the conclusion of the learned trial Judge, the Appellant has appealed to this Court on the grounds contained in the Petition of Appeal filed on 5th July, 2023. The said grounds are reproduced below: 1. That the judgment is not supported having regard to the evidence on record. 2. That the sentence is harsh and excessive. The facts of the case as presented by the Prosecution are that, on 27th December, 2020 at about 9:30am, the Appellant met the survivor around the Complainant’s provision store. He asked the survivor to accompany him to a drinking spot for a bottle of soft drink as her Christmas gift. The survivor innocently followed the Appellant to a nearby drinking spot but on reaching there, the Appellant pretended not having any money in his pocket. He then lured the survivor to accompany him to his house which is about 300 meters away from the drinking spot in order to get some money to buy her the drink. 1 The survivor had the shock of her life when they got to the Appellant’s house. The Appellant pulled the survivor into his room, gave her a Hundred Ghana Cedis (GH₵100.00) and forcibly had sexual intercourse with her. The complainant who was searching for her daughter (the survivor in this case) got wind that the Appellant was walking with the survivor towards his house. The complainant followed to the house of the Appellant and on reaching there she noticed that the door to his room had been shut. The complainant became suspicious and forced the door open. She saw the Appellant and the survivor in the room. The survivor then informed her mother of the ordeal she had gone through in the hands of the Appellant. The complainant subsequently reported the matter to the Police and the Appellant was arrested. The Appellant denied the above sequence of events. On his part, events which snowballed to his arrest and conviction, as captured in his caution statements to the Police during investigation (EXHIBIT A), are that he used to buy the complainant’s food and because of that her children are his friends. On 27th December, 2020 at about 8:30 am, the Appellant met the Survivor and she enquired of her Christmas gift for which the Appellant purchased a canned malt for her as her Christmas gift. The Survivor and the Appellant then proceeded to the complainant’s shop where the complainant demanded for malt. Additionally, the complainant told him that the Survivor has bought a dress to the tune of One Hundred and Fifty Ghana Cedis (GH₵ 150.00) and wants the Appellant to foot part of the bill. The Survivor followed the Appellant to his house for the money and the latter took the Survivor to his room and gave her One Hundred Ghana Cedis (GH₵100.00). The Complainant followed to his room and met the Survivor and the Appellant in the room. The Appellant stated that his mother informed him that the complainant had told her that the Appellant had had sex with the Survivor and that she is demanding for Five Hundred Ghana Cedis (GH₵ 500.00) to keep the news from her husband. The 2 Appellant confronted the complainant on the issue and according to the Appellant, the complainant told him to give back the One Hundred (GH₵ 100.00) which he took from the Survivor but he refused. The Appellant denied having sex with the Survivor. It is a worn-out principle of law that appeals are by way of rehearing and an appellate court is therefore entitled to look at the evidence in its entirety and come to its own conclusion. See AGYEIWAA V P & T CORPORATION (2007-2008) SCGLR 985 at page 989 and TUAKWA V BOSOM [2001-2002] SGCLR 61. The import of this age-old principle is that it is incumbent on an appellate court who is invited to have a second look at the conclusions of a trial judge vis-à-vis the evidence on record to scrutinise the entire record of appeal before arriving at a decision as if this Court were the Court of first instance. Determining an appeal based on the omnibus ground also puts the onus on the Appellant to demonstrate to the appellate court the pieces of evidence on record which if applied in his favour could have changed the decision in his favour or which pieces of evidence have been misapplied or wrongly applied against him. It is also instructive to note that fundamental ingredient necessary for the success of a criminal appeal is the establishment of substantial miscarriage of justice. See PHILIP ASSIBIT AKPEENA V THE REPUBLIC (2020) 163 GMJ 32. Section 31(2) of the Courts Act, 1993 (Act 459) provides that: The appellate court shall dismiss the appeal if it considers that a miscarriage of justice has not actually occurred or that the point raised in the appeal consist of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or 3 indictment or any other offence of which the accused could have been convicted on that charge of indictment. I now proceed to re-evaluate the evidence adduced at trial and determine whether or not the prosecution successfully proved the guilt of the accused beyond reasonable doubt. The Appellant was charged with the offence of defilement contrary to section 101(2) of the Criminal Offence Act, 1960 (ACT 29). The said section provides as follows: “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.” From the above provision, the ingredients or elements making up the offence of defilement are that there must be carnal knowledge (either natural or unnatural) of a victim under the age of Sixteen (16) years by a person and this person is the accused person. As rightly held by the learned trial judge, the age of the victim in this case was not in issue. There was no challenge by Appellant regarding the age of the child. On the evidence adduced at trial the Survivor was Fourteen (14) years at the time of the alleged offence. What therefore remained in issue was whether or not there was carnal knowledge of the Survivor at the home of the Appellant. Section 99 of the Criminal Offences Act provides that: Where, on the trial of a person for a criminal offence punishable under this Act, it is necessary to prove carnal knowledge or unnatural carnal knowledge, the carnal knowledge or unnatural carnal knowledge is complete on proof of the least degree of penetration. In the landmark case of GLIGAH AND ATISO V THE REPUBLIC [2010] SCGLR 870 the Supreme Court speaking through Dotse JSC defined carnal knowledge as the 4 penetration of a woman’s vagina by a man’s penis. It did not really matter how deed or however 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. A similar definition was given by the High Court of Uganda sitting at Lira in the case of UGANDA V OTIM JAMES (CRIMINAL SESSION CASE NO. HCT-CR-009) OF 2015 where the Court held as follows: “…carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ where sexual organ means a penis. Proof of penetration is normally established by the victim’s evidence, medical evidence and any other cogent evidence” The onus is therefore on the prosecution to establish beyond reasonable doubt the existence of carnal knowledge. The testimony of the Survivor in this regard was that the Appellant pushed her onto a mattress which was lying on the floor. The Appellant then asked the Survivor to remove her panties which she refused but then he pulled it with force and in the process got it torn. The Appellant overpowered her in removing her panties and he forcibly had sexual intercourse with her. The prosecution in discharging its burden also called the mother of the Survivor (Mariam Dadzie) as a witness and her testimony in relation to carnal knowledge was that, when she followed up to the house of the Appellant, she realised the door to his room was locked and there was loud music playing inside the room. She pushed the door open and she saw her daughter in the room standing in front of a mattress and holding One Hundred Ghana Cedis (GH₵ 100.00). When she enquired from the Survivor what she was doing in the room of the Appellant, she told her mum that the accused had forcibly had sexual intercourse with her. Mariam confronted the Appellant on the issue and he denied it. However, she 5 stated that she saw the panties of the Survivor to be torn. She then asked the Survivor to remove her panties for her to look into her vagina to see whether there was any discharge. Mariam stated that from her examination she saw sperms in the vagina of the Survivor. The Investigator was the last witness for the prosecution. She tendered in evidence the caution statements taken from the Appellant (EXHIBITS A and C). She further tendered in evidence a medical report (EXHIBIT B) from Our Lady of Grace Hospital, Breman Asikuma and signed by Dr. K. W. Anthony. Also in evidence was the torn panties the Survivor was wearing on the day of the alleged incident as EXHIBIT D. The picture painted from the above testimonies is that the Appellant forcibly had sexual intercourse with the Survivor and in the process tore her panties and ejaculated in her vagina. I have perused the judgment of the trial Court and I am convinced that Exhibit B formed the basis of the conviction of the Appellant. The learned trial Judge held at page 9 of her judgment as follows: I hold similarly that evidence of emission or ejaculation of sperms is not material to making a finding that penetration or carnal knowledge of the Child has occurred. Exhibit B speaks boldly of a raptured hymen which could easily admit two fingers but no traces of semen. The medical report in this state is sufficient to come to the conclusion that the Child was penetrated by the accused. I am in agreement with the learned trial judge that ejaculation is not a sine qua non when proving carnal knowledge. From the above authorities, it is clear that the slightest entry of a penis into a vagina completes carnal knowledge. In this case, it is instructive to note that the insertion of a finger into the vagina of a girl below the age of Sixteen (16) will pass for defilement. However, on the totality of the evidence, I find the conviction of the Appellant not supported by the evidence adduced at trial. The case of the prosecution and the evidence adduced points to the fact that the Appellant forcibly had sexual intercourse with the Survivor. A basic medical test on the Survivor 6 should reasonably reveal a tear, bruise or lacerations in the vaginal walls as a result of the forceful entry. It is however interesting to note that Exhibit B revealed no such lacerations or bruises in the vagina walls. In fact, the medical report stated that there were no injuries to the victim resulting in bleeding. The medical report however revealed that vagina examination/investigation showed blood oozing out. However, the doctor qualified same as the Survivor allegedly being in her menses. As the medical report did not mention that there were bruises or lacerations in the vaginal walls, there is serious doubt as to whether or not the alleged forceful sexual intercourse took place. This is particularly so as the medical report revealed that the Survivor claims never to have been engaged in consensual sex with anybody. If this is so, a forceful sexual intercourse should leave undeniable evidence of penetration such as bruises, laceration or bleeding as a result of injury to the Survivor. Further, I am of the considered opinion that the mere fact of the medical report stating or revealing a broken hymen which could easily admit two fingers is not conclusive proof of carnal knowledge. There must be evidence that the alleged forceful sexual activity resulted in the breaking of the hymen. The evidence should establish a nexus between the sexual activity and the breaking of the hymen. A broken hymen is merely indicative of the absence of an intact hymen. A broken hymen is open to too many possibilities. In this case, it could mean the Survivor was already sexually active contrary to what the Survivor told the examining officer. In view of standard of proof in criminal cases, the best the prosecution could have done was to prove that the alleged forceful sexual intercourse resulted in the breaking of the hymen or at best, any act which amounts to natural or unnatural carnal knowledge. The hymen could have been broken from a wide range of activities including other sexual encounters, vigorous washing of the vagina since childhood. There are also cases of people born without hymen. All these possibilities create 7 serious doubt which, in my view, should inure to the benefit of the Appellant. This is in consonance with the principle in dubio pro reo which translates to mean when in doubt, rule for the accused. It is interesting to note that the conclusion of the medical doctor in the report after examining the Survivor was “Possible Carnal Knowledge.” The medical report was not conclusive on the issue of whether or not there was carnal knowledge. To therefore base a conviction on an inconclusive finding amounts to a grave miscarriage of justice. The word “possible” makes room for doubt as it indicates a fifty-fifty chance of an event happening. This would have sufficed in a civil case where Parties are required to prove their cases on the preponderance of the probabilities. However, in criminal cases where the stakes are high and a person convicted likely to suffer some form of punishment, fanciful possibilities will not suffice. It is pertinent to have in mind and be guided by the dictum of Denning J (as he then was) on the standard of proof in criminal cases in the oft-cited case of MILLER V MINISTER OF PENSIONS [1947] 2 ALL ER 372 at p. 373 as follows: “Proof beyond reasonable doubt does not mean proof beyond the shadow of a 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 in the least probable, the case if proved beyond reasonable doubt, but nothing short of that will.” In this instant case, the evidence against the Appellant is not so strong as to secure a conviction. Collectively, they only amount to a suspicion of carnal knowledge. The child was found in his room at the time of the alleged offence and she had in her hand GH₵ 100 given to her by the Appellant. There are also the torn panties which is 8 indicative of a forceful sexual activity and the tenderness in the introitus. There is no positive evidence establishing carnal knowledge. The accumulation of these fact proved amounts to no more than mere suspicion and the authorities are agreed that one cannot put a multitude of suspicion together and make proof out of it. In other words, strong suspicion cannot ground a conviction. See THE REPUBLIC V MAIKANKAN AND OTHERS [1972] 2 GLR 502; STATE V ALI KASSENA [1962] 1 GLR 144 S.C. Therefore, on the totality of the evidence I am satisfied the prosecution failed to satisfy the burden on it. The evidence adduced during trial was insufficient to secure a conviction. The prosecution failed to establish beyond reasonable doubt the ingredients of the offence of defilement. Accordingly, the appeal is allowed and the conviction and sentence of the Appellant is hereby set aside. In its place, I substitute an acquittal and discharge. (SGD) BERNARD BENTIL J. [HIGH COURT JUDGE] COUNSEL: EBENEZER TSIQUAYE-GRANT ESQ. FOR THE ACCUSED/APPELLANT. CALEB SENA SENOO ESQ. ASSISTANT STATE ATTORNEY. 9