REPUBLIC VRS IBRAHIM (52/23) [2024] GHACC 96 (25 April 2024)

IN THE CIRCUIT COURT, HELD IN NSUTA, ON THURSDAY, THE 25TH DAY OF APRIL 2024 BEFORE HER HONOUR WINNIE AMOATEY-OWUSU, CIRCUIT COURT JUDGE THE REPUBLIC VRS. TOUFIC IBRAHIM CASE NO: 52/23 JUDGMENT 1.The accused was arraigned before this Court on 20th December 2022 on a charge of defilement. He pleaded not guilty to the charge. 2.A summary of the facts as contained in the accompanying Charge Sheet and read by the prosecution at the commencement of the case is that, the complainant, Gifty Amponsah is the biological mother of the victim, Kimbily Adutwumwaa, aged 15, who according to her birth certificate was born on 13th January 2007. The accused, aged 21, is a Page 1 of 24 tricycle rider. Both are residents of Agona. In February 2022, when the victim was 14 years, the accused defiled and impregnated her. On 12th October 2022, the victim gave birth to a baby girl but the accused refused to maintain the child leaving the responsibility on the shoulders of the complainant. On 4th December 2022, the accused lured the victim from home and went with her into hiding at Asokore-Effiduase. On 8th December 2022, the accused and the victim were traced to their hideout and handed over to the Police at Agona and a formal complaint was lodged. Cautioned statements were taken from the accused and after the investigation, he was arraigned before Court. 3.Article 19(2)(c) of the 1992 Constitution states that an accused is presumed innocent until he is proved guilty or he pleads guilty. In a criminal trial, the burden rests with the prosecution to prove the charge against the accused. 4.The burden of proof in criminal cases is codified in the Evidence Act, 1975 (NRCD 323) as follows: Page 2 of 24 “Burden of Proof 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. Page 3 of 24 (2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. (3) 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. 13. Proof of crime (1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. (2) Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a Page 4 of 24 fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” Also, Section 22 of NRCD 323 provides: “22. Effect of certain presumptions in criminal actions In a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” 5.In Abdul Raman Watara Benjamin v. The Republic, Criminal Appeal No. H2/17/2019 dated 9th July, 2020 (unreported), the court stated, “It is trite that in criminal trials it is the duty of the prosecution to prove the case against the accused person beyond reasonable doubt. This has been codified in sections 11(2), 13(1) and 22 of the Evidence Act, 1975 (NRCD 323). At the end of the trial the prosecution must prove every element Page 5 of 24 of the offence and show that the defence is not reasonable. The prosecution assumes the burden of persuasion or the legal burden as well as the evidential burden or the burden to produce evidence. The legal burden or the burden of persuasion is to prove every element of the charge. The evidential burden is to adduce evidence that will suffice to establish every element of the offence. This burden remains on the prosecution throughout the case. Proof beyond reasonable doubt also implies that it is beyond dispute that the accused person was the one who committed the offence.” Also, in Asare v. The Republic [1978] GLR 193 @ 197, Anin JA held, “As a general rule there is no burden on the accused; that he is presumed innocent until his guilt is established beyond reasonable doubt; that the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt”. 6.In Brobbey & Ors v. The Republic [1982-83] GLR 608, Twumasi J explained the expression “proof beyond reasonable doubt” as follows: “Proof beyond reasonable doubt in a criminal trial implies that the prosecution’s case derives its Page 6 of 24 essential strength from its own evidence. Therefore, where part of the evidence adduced by the prosecution favors the accused, the strength of the prosecution’s case is diminished proportionately and it would be wrong for a court to ground a conviction on the basis of the diminished evidence.” Lord Denning MR in Miller v. Minister of Pensions [1947] ALL ER 372 also explained the principle when he stated that: “The degree of cogency need not reach certainty but it must carry a high degree of probability. 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 affect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with a sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”. 7.When the prosecution makes a prima facie case against the accused and the Court calls on the accused to open his defence, the accused’s only duty is to raise a reasonable doubt about his Page 7 of 24 guilt. See Section 11(3) and 13(2) of NRCD 323. In Commissioner of Police v. Antwi [1961] GLR 408, the court held, “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything. If he can merely raise a reasonable doubt as to his guilt he must be acquitted.” 8.In considering the accused’s defence, the Court is bound to consider any evidence which favors his case as well as the cautioned statements obtained from him by the Police and tendered during the trial. See Kwame Atta & Anor v. Commissioner of Police [1963] 2 GLR 460; Annoh v. Commissioner of Police [1963] 2 GLR 306. Further, questions asked and answers given during cross-examination form part of a party’s evidence and must be considered by the court in Page 8 of 24 evaluating the evidence as a whole. See Ladi v. Giwah [2013- 2015] 1 GLR 54. 9.In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, the Supreme Court per Ollennu JSC set out how the court should approach the defence of the accused as follows: “In all criminal cases where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: a. if the explanation of the defence is acceptable, then the accused should be acquitted; b. if the explanation is not acceptable, but is reasonably probable, the accused should be acquitted; c. if quite apart from the defence's explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict.” 10.Also, in Republic v. Francis Ike Uyanwune [2013] 58 GMJ 162, CA, it was held per Dennis Adjei, JA that: “The law is that Page 9 of 24 the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non- production of evidence and/ or non-persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three-tier test.” Page 10 of 24 11.Upon the direction of the Court, the prosecution filed its Witness Statements and other disclosures on 19th January 2023. Case Management Conference was held and the case proceeded to trial with the prosecution’s case. The prosecution called three witnesses who relied on their Witness Statements and the other disclosures as their evidence in the case. They are: i. Gifty Amponsah – PW1: The complainant and biological mother of the victim, PW2. She is a trader resident at Agona; ii. Kimberly Tawiah Adutwumwaa @ Kimbily Adutwumwaa - PW2: The victim and biological daughter of PW1. She lives with PW1 in the same house and is a student of the Seventh Day Adventist (SDA) Senior High School, Agona; and iii. D/PW/Insp. Lydia Ameyaw – PW3: The investigator of the case stationed at the District Domestic Violence and Victim Support Unit (hereinafter called “DOVVSU”), Agona-Ashanti. Page 11 of 24 12. The following were tendered by the prosecution through PW1 and PW5: i. ii. iii. iv. Exhibit ‘A’: PW2’s birth certificate; Exhibit ‘B’: Photograph of the child born to the accused and the victim; Exhibit ‘C’: Investigation Cautioned Statement of the accused obtained on 9th December 2022; and Exhibit ‘D’: Charge Cautioned Statement of the accused obtained on 16th December 2022. 13. By the Court’s Ruling delivered on 14th September 2023, the Court held that the prosecution had made a prima facie case against the accused and called on him to answer the charge. The accused testified personally and called two witness: i. Ayishatu Ibrahim- DW1: The accused’s biological mother. She is a trader resident at Agona Zongo; and Page 12 of 24 ii. Abudu Emmanuel –DW2: A plumber resident at Agona Zongo. 14.Whereas the accused and DW1 relied on their Witness Statements filed on 13th November 2023 as their evidence in the case, DW2 relied on his Witness Statement filed on 25th January 2024. No exhibit was tender by or on behalf of the accused. 15. I shall now deal with the charge, evaluating the evidence against the accused to determine if it meets the standard of proof of proof beyond reasonable doubt and the accused’s defence, if it raises a reasonable doubt. 16. The Charge Sheet reads: “STATEMENT OF OFFENCE DEFILEMENT OF FEMALE UNDER SIXTEEN YEARS CONTRARY TO SECTION 101(2) OF CRIMINAL OFFENCES Page 13 of 24 ACT OF GHANA ACT 29/60 AS AMENDED BY SECTION 11 OF ACT 554/98. PARTICULARS OF OFFENCE TOUFIC IBRAHIM: TRICYCLE RIDER AGED: 21: During the year 2022 at Agona Kumasi in the Ashanti Region and within the jurisdiction of this court, you unlawfully had natural carnal knowledge of one Kimbily Tawiah Adutwumwaa female age 15 years.” 17.Section 101(1) of Act 29 as amended defines defilement as the natural or unnatural carnal knowledge of a child under sixteen years of age. Under Section 101(2), a person who defiles a child 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 (7) years and not more than twenty-five (25) years. To successfully prove the charge, the prosecution must lead sufficient evidence to prove that: i. The accused had natural or unnatural carnal knowledge of the victim; and Page 14 of 24 ii. The victim was under sixteen years of age. See Robert Gyamfi @ Appiah v. The Republic, Criminal Appeal Suit No: H2/02/19, dated 27th February 2019 (unreported); Republic v. Yeboah [1968] GLR 248 18.Section 122 (1) of the Children’s Act, 1998 (Act 560) as amended states that a child’s age may be proved by inter alia, birth certificate, baptismal certificate, a certificate signed by a medical officer as to the child’s age. See also Section 19 (2) of the Juvenile Justice Act, 2003 (Act 653). The position of the law is that a child (male or female) under sixteen years does not have the capacity to give consent to natural or unnatural carnal knowledge and any such consent given by the child is immaterial and void. 19.Section 99 of Act 29 states that natural or unnatural carnal knowledge is complete upon proof of the least degree of penetration. In Gligah & Atiso v. The Republic [2010] SCGLR 870, Dotse JSC said, “Carnal knowledge is the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So Page 15 of 24 long as there was some penetration beyond what is known as brush work, penetration would have been deemed to have occurred and carnal knowledge taken to have been completed.” 20.PW1 testified that in February 2022, she realised PW2 was pregnant and she disclosed to her that the accused was responsible. She and her family members went to meet the accused and his family members and informed them about the victim’s pregnancy and her actual age. The accused and his family members apologized to her and her family members and promised to take good care of PW2 by providing her maintenance. They provided GH¢10 daily for the first four months and stopped. As a result, she singlehandedly catered for the victim’s antenatal bills till 12th October 2022 when she gave birth. On 4th December 2022, the victim sneaked out of the house leaving behind her baby and her whereabouts was unknown. Information indicated that the accused was the one who abducted PW2 to Kumasi and then to Effiduase Asokore, thus, preventing her from returning home to breastfeed her baby. On 8th December 2022, Page 16 of 24 she went to DOVVSU to lodge a formal complaint and with the assistance of the Police, the accused was arrested. She tendered Exhibit ‘A’, the victim’s birth certificate which indicates she was born 18th January 2007. 21.PW2 testified that she entered into a relationship with the accused sometime in 2021 and had countless sexual intercourse with him. In February 2022, the accused got her pregnant and on 12th October 2022, she gave birth to a baby girl, whose photograph she tendered as Exhibit “B”. On 4th December 2022, she sneaked out of the house leaving behind her baby and went to the accused’s house. They went to Kumasi where they were till 5th December 2022 and then moved to Effiduase Asokore, where they also stayed till she returned to Agona on 8th December 2022 and was spotted in town by some people and taken to DOVVSU, Agona by PW1 who lodged a formal complaint leading to the arrest of the accused. She said the accused defiled her and got her pregnant. Based on Exhibit “A”, the victim was fifteen years in 2022 when the accused got her pregnant. Page 17 of 24 22.The accused’s defence is that he did not know the victim was below 16 years when they started having sexual intercourse. His testimony and the testimony of DW1 and DW2 have been nothing but admissions of the sexual relationship that existed between him and the victim. DW1 and DW2 corroborate the accused’s testimony that he and the victim were in an amorous relationship when she got pregnant. They further corroborate the accused’s testimony that his relationship with the victim was not shrouded in secrecy; it was open to the extent that PW1 was aware of it. Further, that the pregnancy that resulted in the baby depicted in Exhibit ‘B’ was not the victim’s first pregnancy and that prior to that child, the victim got impregnated by the accused but lost the pregnancy. 23.Indeed, throughout the trial, the accused never denied he had sexual intercourse with the victim. Under cross-examination, he admitted they had been having sex since the onset of their relationship in 2021 until he was arrested. Page 18 of 24 24.Under cross-examination, the victim denied the accused’s claim that she told him at the time he proposed love to her that she was 18 years getting to 19 years. She explained that it was when she got pregnant that the accused asked her age and she told him she was getting to 15 years. Also, although DW1 in her evidence-in-chief referred to PW1 as her in-law, there is no evidence before this Court that the accused and the victim are legally married. Even more, the victim is not yet 18 years and therefore cannot be given out in marriage. The minimum age of marriage in Ghana is 18 years. See Section 14(2) of the Children’s Act, 1998 (Act 560) 25.In Exhibit ‘C’ (Investigation Cautioned Statement dated 9th December 2022) which the accused gave to PW3, the accused stated that he and the victim had been in a relationship for about the past year and that he used to send her to his house to have sexual intercourse with her. As a result, the victim became pregnant and gave birth on 12th October 2022. That, on 4th December 2022, at about 9:00 p.m., the victim came to inform him that PW1 had lodged a complaint to cause his Page 19 of 24 arrest. On hearing that, he told the victim that they should both abscond from PW1’s arrest. So, together with victim, they went to Afrancho in Kumasi to hide till 8th December 2022 when they returned to Agona and he was arrested. He admitted he defiled the victim which resulted in a pregnancy. In his Charge Cautioned Statement, Exhibit ‘D’, also given to PW3, the accused relied on his former statement, Exhibit ‘C’. 26.Exhibit ‘C’ and ‘D’ were admitted without any objection from the accused. Exhibit ‘C’ is a confession to the offence charged. Confessions are governed by Section 120 of NRCD 323. A confession statement voluntarily made in accordance with the law is admissible and sufficient ground for the conviction of an accused. See Duah v. The Republic [1987-88] 1 GLR 343. In Ekow Russell v. The Republic [2017-2020] SCGLR 469, Akamba JSC stated, “A confession is an acknowledgment in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the Page 20 of 24 most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without any fear, intimidation, coercion, promises or favours.” 27.In the recent case of Francis Arthur v. The Republic, Criminal Appeal No. J3/02/2020 dated 8th December 2021 (unreported), the Supreme Court held that confession statements may be used alone in the conviction of an accused person, and such evidence is sufficient as long as the trial judge enquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness. In the earlier case of State v. Otchere & Ors [1963] 2 GLR 463, the Supreme Court stated that a confession made by an accused in respect of the crime for which he is tried is admissible against him provided it is affirmatively shown on the part of the prosecution that it was free and voluntary and that it was made without the accused being induced to make it by any promise or favour, or by menaces, Page 21 of 24 or undue terror. That, a confession made by an accused of the commission of a crime is sufficient to sustain a conviction without any independent proof of the offence having been committed by the accused. 28.In Exhibit ‘D’, the accused relied on Exhibit ‘C’. When an accused has an opportunity to give another statement to the Police and he relies on his former or earlier statement, it is deemed that he gave the statements voluntarily. See Kerechy Duru v. The Republic [2014] 71 GMJ 186. I have also given thoughtful consideration to Exhibit ‘C’ and find that it was taken in the presence of an independent witness in the person of one Rafiatu Iddrisu who gave her certificate indicating the accused voluntarily gave the statement and same was read and explained to him after which the accused thumbprinted to signify his approval. Exhibit ‘C’ thus meets the requirements of Section 120 of NRCD 323. 28.The accused has denied throughout this trial that he abducted the victim although he stated in Exhibit ‘C’ that upon hearing Page 22 of 24 from the victim that PW1 wanted to cause his arrest, he asked the victim to join him to abscond. Nevertheless, I am mindful that the accused is not charged with abduction and therefore, I do not intend to belabor the issue. 29.From the foregoing, there is no gainsaying that the accused defiled the victim when she was below 16 years, though through consensual sex. But, by her age, the law withholds and makes immaterial and void any consent given by her. I find the accused’s defence unacceptable and not reasonably probable. 30.I find that the accused has failed to raise reasonable doubt about his guilt. I find him guilty and he is accordingly convicted. 31.In passing sentence, I have taken into account the fact that the accused is a first offender and his mitigation plea. I sentence him to 8 years’ imprisonment IHL. Page 23 of 24 SGD. HH WINNIE AMOATEY-OWUSU CIRCUIT COURT JUDGE PARTIES AND REPRESENTATION: 1. THE ACCUSED PRESENT AND SELF-REPRESENTED 2. D/C/INSP. DANIEL KOFI TUDZI FOR THE PROSECUTION PRESENT Page 24 of 24