Republic Vrs Afun (F10/07/2023) [2024] GHAHC 327 (29 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON THURSDAY 29TH JULY 2024 BEFORE JUSTICE JOHN EKOW MENSAH. F10/07/2023 SUIT NO. THE REPUBLIC VERSUS PATRICK AFUN SUMMING UP Ladies and Gentlemen of the Jury, accused person herein, Patrick Afun is charged with the offence of Rape. Honourable members of Jury, you have sat through the full trial of this case and have heard the evidence of the Four (4) prosecution witnesses marshalled by the Prosecution in the attempt to prove their case against the accused person herein. You will remember, honourable members of the Jury that Accused Person testified himself in defence of the charge against him. He did not call any witness and apart from his witness statement, accused also relied on his investigation caution statement. My duty at this stage of the trial is to address you on the position of the law on the offence of rape and summarise as near as possible the evidence of the Prosecution and the Defence to help you reach a verdict as to whether the Prosecution had led credible and sufficient evidence to secure the conviction of the accused herein; or 1 | P a g e whether the accused has led enough and credible evidence to cast reasonable doubt in the case of the Prosecution to escape conviction of the charge of Rape against him. To begin with, I would like to refresh your minds on the facts of the case as presented by the Prosecution at the commencement of the trial. The Facts of the case as presented by the Prosecution are that Epiphania Lumorvi, the victim of the alleged rape is a medical Counter Assistant undergoing internship at the Pharmacy Unit of the St. Anthony Hospital, Dzodze, while the Accused Patrick Afun is the head Pharmacist at the St. Anthony Hospital, Dzodze. According to Prosecution, during the four (4) month period of her attachment, Epiphania lived with the Accused who happens to be the boyfriend to the victim’s younger sister. Prosecution continued that on 22/3/2019 at about 20 00hrs, Epiphania Lumorvi asked the accused to administer ceftriaxone injection to her for the treatment of vaginal infection. Prosecution said Accused himself said he mixed the ceftriaxone injection with Lidocaine before administering it to Epiphania Lumorvi. Prosecution further stated that the victim later woke up around 2 am and noticed that she was completely naked in Accused Person’s bed and suspected of having been raped. According to Prosecution, Epiphania Lumorvi enquired from the accused whether they had had sex and the accused confirmed that he had sexual intercourse with her. According to Prosecution, Epiphania was helped by Richard Gavor, a Security man of the Hospital and Bright Agbodza also a staff of the hospital to the Emergency Unit of the hospital for treatment as she was very weak and found around the hospital gate. 2 | P a g e Prosecution said victim was treated, detained and later discharged the same day at about 14 00 hrs. According to Prosecution, victim later reported a case of rape against the accused person to the Police at Dzodze. Prosecution concluded that in Patrick Afun’s caution statement to the Police, he admitted having sex with the victim after administering the said injection of ceftriaxone laced with Lidocaine. Law on the Offence of Rape section 97 of Act 29/60, the Criminal Code states as follows: “A person who commits the criminal offence of rape commits a first degree felony and is liable on conviction to a term of imprisonment of not less than five years and not more than twenty-five years”. Section 99 of the same Act 29/60 states: “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.” Ladies and Gentlemen of the Jury, this is the position of the law on rape. The Prosecution in order to secure conviction on rape as in this case will thus have to prove the following: 1. That there has been the act of sexual intercourse or carnal knowledge. 2. That the act involved a female of 16 years and above. 3. That it was without the consent of the said female. 3 | P a g e Gentlemen and Ladies of the Jury, it is not a far-fetched fact that the accused in his investigation caution statement and evidence that accused Patrick Afun dispensed the Ceftriaxone injection mixed with Lidocaine drugs on the victim Epiphania Lumorvi on 22/3/2019 after Epiphania had complained of infection of vaginal discharge. 2. That Accused confirmed to the victim Epiphania that he indeed had sex with her after he had administered Ceftriaxone injection mixed with Lidocaine to her. Ladies and Gentlemen, parts of the witness statement of the accused read as follows: 6. On the said 22nd day of March 2019, I had consensual sex with Epiphania Lumorvi, the purported Complainant. 8. I indeed administered the Ceftriaxone and Lidocaine to the Complainant and I did not notice any adverse effect on her before we had sex. From his witness statement as quoted above, accused is admitting without any doubt that he had sex with the victim; that he administered the Ceftriaxone and Lidocaine drugs on the victim in an attempt to treat victim’s vaginal discharge. Accused however, insists that the sexual intercourse he had with the victim was consensual that is to say that he had sex with the victim with the victim’s consent. Burden of Proof in Criminal Matters Section 11(2) of the Evidence Act 1975 NRCD 323 states: In a criminal action, 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. 4 | P a g e (3) In a criminal action, the burden of producing evidence when it is on the Accused as to any fact, the converse of which is essential to guilt, requires the Accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. In an attempt to secure the guilt of the accused person herein, Prosecution called four (4) witnesses including two (2) Doctors, the victim Epiphania Lumorvi and the Investigator. Ladies and Gentlemen, it is significant to note that the burden of Prosecution in this case was to lead evidence to debunk the accused perosn’s claim that he had sex with the victim with the victim’s consent. Indeed, Prosecution witness Dr. Ebenezer Wiafe testified that:- 1. Ceftriaxone injection has successfully been used to manage bacterial infections such as urinary tract infections and gonorrhea. 2. Lidocaine injection is an anesthesia agent. The most common on the Ghanaian market and in our hospitals is the 2% of 20ml which contains a total of 400mg Lidocaine. When injected, it makes the injection site numb and free from pain. 3. Lidocaine injection, depending on the dose given is associated with dizziness, drowsiness, loss of consciousness and many more. Dr. Samuel J. G. Foster, another witness of the Prosecution testified that he examined the victim and endorsed a Police Medical Form on 23/03/2019 at 3:08 am. 5 | P a g e The Doctor further stated that on examination of the perineum, there was some bright red blood seen at the introitus of the vagina. There was blood at the vaginal opening. In her evidence, the victim recounted the experience of having been raped by the accused while she lived with him during her internship with the St. Anthony Hospital at Dzodze. Victim said on the said 22nd day of March, 2019, Accused stepped out shortly after he had eaten the rice and stew she had prepared for him and asked victim to take the second dose of the Ceftriaxone injection before victim leaves for Aflao the next day. She said accused returned to give her the injection he had prepared out of her sight, unlike the first one. Victim said she felt so weak and dizzy and slept off in the couch in the living room where she has been sleeping. Victim said upon gaining consciousness at around 2 am, she found herself naked on accused’s bed in accused’s bedroom and not on the couch she slept in in the living room. Victim said she asked accused whether “we had sex” and accused answered in the affirmative as if to suggest that they had agreed earlier on to have sex. Ladies and Gentlemen, I have produced Prosecution evidence to enable analyse these facts against the accused’s claim that he had consensual sex with the victim. It is important to note ladies and gentlemen whether there is a link between victim’s weakness and dizziness and Ceftriaxone and the Lidocaine administered on the victim. You may engage yourself into probing the charge of victim’s place she slept to the accused’s bed on that night without her being aware. Again, you may want to probe the fact that victim had to ask accused whether they had sex if really they had agreed to have consensual sex earlier on in the night. 6 | P a g e Defence Counsel in his address is urging you to hold that the sex he had with victim was consensual. It must be stated unequivocally that accused owes the duty to prove that claim in order to be able to cast doubt in the Prosecution’s claim that accused raped the victim. From the standpoint of this bench, has the defence led any evidence to justify that claim. From the totality of evidence before this Court, Do you have any scintilla of evidence by the accused to suggest that victim voluntarily and freely consented to have sex with the accused? Ladies and Gentlemen, I have gone to great lengths to assess the evidence of the Prosecution to support its claim that accused had sex with victim. That the sex was without victim’s consent and therefore amounts to rape. Defence evidence against the Prosecution’s case is that the said sex with the victim by the accused was consensual. In your own estimation, has the Defence led any evidence to that effect. I leave you to draw your own conclusion especially as to the verdict on factual evidence in this case. Jury returns for verdict at 9:40 am. 7 | P a g e Foreman informs Court that the jury are not unanimous on their verdict with five (5) of them returning a verdict of Not Guilty and two (2) returning a verdict of Guilty. BY COURT: Accused is found Not Guilty to the charge of Rape against him and accordingly, he is acquitted and discharged of the offence of rape against him. (Sgd.) John Ekow Mensah, J. Justice of the High Court (Court 1) Ho Lawyers: Prosecutor - Ms. Freda Sitsofe Ameke with Dina Dzifa Amefinu, Anthony Ghattie, Joseph Opusumah (ASAs) being led by Andrews Dodzi Adugu, Celestina Arku (ASA). Counsel for the Accused Person - Mr. Godwin T.K.T. Kpoble Esq. 8 | P a g e vmo* 9 | P a g e