REPUBLIC VRS MENSAH & ANOTHER (53/2022) [2024] GHACC 196 (22 January 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON MONDAY 22ND DAY OF JANUARY, 2024 BEFORE H/H DORINDA SMITH ARTHUR, CIRCUIT COURT JUDGE. SUIT NO. 53/2022 THE REPUBLIC VRS 1. ATTA MENSAH 2. EMMANUEL KWESI DAWOOD MENSAH JUDGMENT “The truthful lip shall be established forever, But a lying tongue is but for a moment.” Proverbs 12: 19. I. INTRODUCTION [1] The Accused persons were arraigned before this Court on September 28, 2021 for the offence of Defilement, Incest, Assault, abortion and abetment of crime to wit abortion Contrary to Sections 101(2), 105, 84, 58 and 20 of The Criminal and Other Offences Act, 1960 Act 29. [2] The accused persons pleaded not guilty to the charges preferred against them for which reason the prosecution assumed the burden of Page 1 of 30 proof and must prove the charges against the accused persons beyond reasonable doubt in accordance with; 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 will find the existence of the facts beyond reasonable doubt.” Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng Vrs Republic [1977] 2 GLR 171 CA [3] Two separate cases involving the same parties and the complainant were pending before the same court so those cases were consolidated upon an application by prosecution. The prosecution in order to discharge the burden placed upon them called four witnesses and tendered seven exhibits in evidence. II. THE PROSECUTION CASE [4] The summary of prosecution case is that the survivor (PW1) is eighteen years old and she is the biological daughter of the complainant (PW2) and biological daughter of second accused person (A2). First Page 2 of 30 accused person (A1) is the friend of A2 whilst PW3 is the grandmother of PW1. [5] According to PW1, she confided in her school counsellor that A2, her biological father has been having sexual intercourse with her since 2019. The counsellor was shocked and enquired whether she had informed anyone before and she answered no and explained that A2 had warned her not to inform anybody about it and that if she dared, he will make her life miserable and kill her. She further stated that A2 also told her he will take her abroad for further studies when she completes her secondary school education. She stated that A2 started having sexual intercourse with her from 2019 but during the covid era A2 came for her to live permanently with him to the disagreement of her mother PW2. She said PW2 informed PW3 that if she has chosen to live with A2, then she should never return to her and she informed A2. She said A2 had sex with her anytime he returned from his trips and whenever she refused him, he would remind her that PW2 had rejected her so if she did not agree he would reject her as well. This made her succumb to his sexual demands until she became pregnant somewhere around September 2020. She informed A2 about it and he told her not to worry. [6] She mentioned that in October 2020, A2 took her to see A1 at a restaurant. When they went A1 was not there but he came later and A2 asked her to excuse them which she did and A2 had a discussion with A1. Later that day, A1 called PW1 and asked her to come to his house and Page 3 of 30 gave her the direction. [7] PW1 said she went with her friend and they met the wife of A1 in the house. She said A1 made his wife leave with her friend to a different room and A1 tried to inject her. She asked A1 why he is injecting her as she is not sick and A1 explained that it was her father who has instructed him to inject her. So after the injection, A1 gave her some medications and she left for the house but did not take the medicine when she went home. She started bleeding the following day from her vagina and she informed A2 who assured her nothing will happen to her as it is as a result of the injection. She said, A2 informed A1 that PW1 went for a party after she completed JHS in 2020 and she became drunk and a guy had sex with her impregnating her and that is why he had asked her to abort. She said A2 did not tell A1 the truth that he had impregnated her. According to PW1, she bled for two weeks and she informed A2 about it who kept assuring her nothing will happen to her. She said A2 was not at Swedru all the time she was bleeding but at Cape Coast until the bleeding stopped when he returned. [8] She said when he returned he continued to have sex with her but she was not happy as he left her when she was bleeding and that made her to confide in her school counsellor and also because she had pains during the sexual intercourse. She also informed the counsellor that A2 was giving her money after sexual intercourse and never visited her at her school and gave several excuses. She mentioned that the counsellor told her to relay to him what A2 says when he calls her at the school as A2 Page 4 of 30 used to call her through a woman in the school. She said the counsellor called PW3 (the grandmother) and relayed what she told him to her and they vacated on the 27th of August 2021 so when she went home her grandfather told her not to go to A2’s house again so she agreed. [9] She went on an errand for the grandmother that evening and A2 who was in a taxi made the driver stopped, he used his leg to cross her making her fall. He slapped her, stepped on her and beat her up then he pushed her into the taxi and the car took the direction of his house. When they got to the house, A2 alighted to get his bag from the back of the car and she left the car and run away. She saw another taxi and boarded that one and asked the driver to take her to the police station. There was a man in the car who enquired why she wanted to go to the police station and she narrated her story as above to the man. The man went with her to see her grandmother and they called the counsellor but it was late so the counsellor mentioned he would come to the house the following day. PW3 called her uncle as she was agitated and she confirmed to the uncle what PW3 told him. They took her to PW2’s place on Monday and she repeated all that had happened to her. They went to DOVVSU and reported the matter and she was given a medical form to attend hospital. EVALUATION OF EVIDENCE AND APPLICATION OF 111. LAW Page 5 of 30 [10] At the close of case of prosecution, Learned Counsels for the accused persons raised submission of no case per Section 173 of Act 30/60. They filed their submissions and after considering them with the evidence so far led, the submission of no case is upheld as the court is of the view that prosecution failed to lead sufficient evidence in support of the charges levelled against the accused persons. We see a clear case of poor investigation, inadequate documentation, and failure of proof. The lack of evidence makes prosecution’s case to be circumstantially so weak and based on hearsay that it cannot be relied on to ground a prima facie case against accused persons. [11] Thus a case is not made out against the accused persons sufficiently to require them to make a defence and that the accused persons be acquitted and discharged with respect to the charges. These are my reasons: 1. THE OFFENCE OF DEFILEMENT [12] The offence of defilement under Section 101(2) of Act 29, 1960 states that; “Whoever naturally or unnaturally carnally knows any child under sixteen years of age, whether with or without his or her consent commits an offence and shall be liable on summary conviction to imprisonment for a term of not less than seven years and not more than twenty-five years.” Page 6 of 30 [13] Consequently, the three essential ingredients of the offense of defilement are; 1. That someone has had natural or unnatural carnal knowledge of the survivor 2. That someone is the accused person. 3. That the survivor is under sixteen years of age See: ERIC ASANTE V THE REPUBLIC [2017] 109 GMJ 1 SC [14] To satisfy the court with a conviction the prosecution must prove the aforementioned three ingredients beyond reasonable doubt. The prosecution is required to prove that not only has a crime been committed but also must link A2 to the commission of the crime, especially where he pleaded not guilty. [15] I will deal with all the ingredients together to determine whether or not someone has had natural or unnatural carnal knowledge of PW1 and whether A2 is the one who had carnal knowledge of her and whether PW1 is under sixteen years of age. Much of the analyses will be drawn from PW1’s evidence since she is supposed to be the victim and the centre of all the action. [16] The survivor testified that A2 started having sexual intercourse with her from 2019 until she confided in her school counsellor. It meant that they had sexual intercourse for about two years. According to PW1, Page 7 of 30 she never disclosed their sexual encounters with anybody as A2 had warned her against such with a threat that he will make her life miserable and kill her. He also gave her a promise, according to PW1, that he will take her abroad for her to further her education when she completes secondary school. It is difficult for one not to believe the evidence of the survivor as she narrated her story. [17] However, there are plethora of decided cases admonishing the court from relying on the evidence of sexual victims alone and advising for corroborative evidence. See R V HENRY AND MANNING [1969] 53 CRIM APP REP 150 per Salmon J. The court held inter alia that; “... it is really dangerous to convict on the evidence of a woman or girl alone. This is dangerous because human experience has shown that in these courts, girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not enumerate and sometimes for no reason at all.” [18] Even though the above is an English case and is of persuasive influence only, it is of such great importance that the court cannot ignore that precedent for the weight it carries. Page 8 of 30 [19] Also, in REPUBLIC V YEBOAH [1968] GLR 248, the court decided inter alia that the evidence of a sexual victim need no corroboration but it is prudent to look for corroboration from some extraneous evidence which can confirm the evidence of the victim. In that regard, prosecution should corroborate PW1’s evidence with extraneous one. [20] Here, there should be evidence to prove that PW1 has been sexually active for at least two years and that it is her father A2 who has been having sexual intercourse with her. I was expecting a thorough medical report to prove not only that her hymen is broken but if possible the last time she was sexually active and any residue of DNA of the perpetuator. The medical report only stated that “the hymen was broken otherwise normal.” This examination is inadequate to support the evidence of PW1 that she has been having sexual intercourse with A2 since 2019. A thorough forensic investigation was needed as she had kept the sexual encounters secret for many months. She may have been silent because of the threats or promises of A2 but the court needed a corroboration of her evidence. [21] Such investigations are very crucial since there is no eye-witness account to corroborate the act of sexual intercourse in this case and PW1 did not disclose to anybody for all the period they had these sexual intercourses. Page 9 of 30 [22] The absence of such medical or forensic report makes it difficult to ascertain when the survivor stated having sexual intercourse, the last time she had sex, and who was her sexual partner. This is because there must be a direct or indirect link of the crime to A2 in addition to the evidence of PW1. [23] It would be very helpful if DNA profiling is done in sexual assault cases as real evidence is being lost due to lack of such investigations in post coital cases. In some advanced jurisdictions, the moment a sexual assault or defilement case is reported, the survivor will automatically undergo medical examination during which vaginal swab samples may be collected and with the use of Y-chromosomal STR (Y-STR) the male perpetrator could be revealed even days after the sexual intercourse. See https://www.sciencedirect.com/science/article/abs/pii/S1872497317302739 [24] Indeed, many researches are undergoing to show that male DNA may remain in a woman after unprotected sex for years and though these scientific research works are not conclusive, Ghana needs to consider modern ways of investigation. [25] It is noted that sexual offences are committed in the privacy of homes, hotels, and rooms or out of sight of people. This makes it difficult to get eye-witness account to corroborate the evidence of the survivor. That is why it is very important for the court to get corroborative evidence Page 10 of 30 through a medical report, forensic report or through circumstantial evidence. See GLIGAH AND ATISO V. THE REPUBLIC [2010] SCGLR 870, per holding (3). [26] PW1 testified that she confided in her school counsellor and it was the school counsellor who called her grandmother (PW3) and informed her. She also mentioned that she received a phone call from A2 through a woman in the school and from that conversation it could have been ascertained that they were sexual partners. The court could have inferred from pieces of evidence and put them together especially where the events followed each other contemporaneously. [27] Yet, prosecution did not present any of these persons for the court to ascertain the credibility or otherwise of PW1’s evidence. Their evidence or proof of such evidence would have corroborated prosecution’s case and given more convincing evidence. [28] Fourthly, prosecution did not establish why some key witnesses were unavailable to the court. This is crucial as prosecution has to prove the unavailability of witnesses in accordance with Section 116(e) of the Evidence Act supra. See THE REPUBLIC V HIGH COURT COMMERCIAL DIVISION) EX PARTE STEPEHNE KWABENA OPUNI CIVIL MOTION NO. JS/58/2021 28TH JULY, 2021. Page 11 of 30 [29] The lack of proof of her evidence exposes the shoddy work of investigation in this case. The court cannot convict any accused person based on circumstantial evidence which is not supported by facts and where facts are presented, it must lead to the only irresistible conclusion that the crime was committed by the accused person. See LOGAN V THE REPUBLIC [2007-2008] 1 SCGLR 76; and THE STATE VRS BROBBEY AND NIPAH [1962] 2 GLR 101 where the court held that circumstantial evidence must lead to one and only one irresistible inference that the appellant is guilty of the offence charged. [30] The last element of the offence of defilement is that the survivor must be below the age of sixteen years when the sexual intercourse occurred. The prosecution tendered in evidence admission register from the survivor’s primary school duly endorsed by the head teacher as the accurate details of the survivor. The register shows that PW1 was born on 28th September 2003 meaning that she turned sixteen years on 28th September 2019. Where there is no birth certificate of a survivor, the court can rely on other evidence such as baptismal certificate, health records, and school admission registers to ascertain the age of the survivor. Thus, the primary school admission register is admitted and accepted as the Page 12 of 30 document showing the age of the survivor. See Sect 126(1) of the Evidence Act supra. [31] According to PW1, A2 started having sexual intercourse with her in 2019. She did not tell the court from her evidence the particular month A2 started having sexual intercourse with her and there is no other evidence on record to support or show which month of 2019 A2 started having sexual intercourse with her. It is noted that PW1 gave the months of most of the incidents she narrated but not for the month A2 started having sex with her. The first time she had sex with A2 is one of such incidents she is supposed to remember or keep considering the fact that the sex was between her and her supposed father. [32] Also, the month is very important as sexual intercourse with a girl over sixteen years cannot be defilement. In the absence of such crucial information as to which particular month A2 started having sexual intercourse with PW1, prosecution’s case collapses for the charge of defilement as there is no certainty of the month the sexual intercourse occurred and as such no certainty of the offence charged against A2. See THE REPUBLIC V GYAMFI (2007) 13 MLRG 192 CA and MOSHIE V. THE REPUBLIC [1976] 2 GLR 310. [33] Here, it may be true that A2 was having sexual intercourse with PW1 but the age of the survivor at the beginning of the sexual encounters Page 13 of 30 is very crucial as a girl below the age of sixteen years cannot give consent and that is what makes it defilement. Where the age of the survivor at the time of the sexual encounter may or may not be below the age of sixteen years the evidence becomes speculation or on probabilities. [34] But the standard of proof is prove beyond reasonable doubt no matter the offence charged and not preponderance of probabilities, hence the court cannot rely on the probabilities of evidence presented by prosecution. [35] I must state that lack of evidence does not necessary mean the crime was not committed, but we get these bottlenecks due to shoddy investigation, inadequate documentation, ignorance, poverty, and sometimes manipulations to mention but a few. [36] Therefore, the prosecution was not able to sufficiently prove all the three ingredients of the offence of defilement against A2 beyond reasonable doubt for the court to call upon him to answer. 2. THE OFFENCE OF ABORTION AND ABETMENT OF ABORTION [37] The next charge for discussion is abortion and abetment of crime to wit abortion contrary to sections 58 (1) (b) and 20 of Act 29/60. Section 58(1) (b) provides that: (b) any person who— Page 14 of 30 (i) administers to a woman any poison, drug or other noxious thing or uses any instrument or any other means whatsoever with the intent to cause abortion or miscarriage, whether or not that the woman is pregnant or has given her consent; (ii) induces a woman to cause or consent to causing abortion or miscarriage; (iii) aids and abets a woman to cause abortion or miscarriage; (iv) attempts to cause abortion or miscarriage; or (v) supplies or procures any poison, drug, instrument or other thing knowing that it is intended to be used or employed to cause abortion or miscarriage, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding five years. [38] From the section above, there is an offence where there is a pregnancy and there is a person who aids, abets, or administers a drug or gives an injection to a pregnant person with the intention to cause abortion or miscarriage. [39] PW1 in her evidence mentioned that A2 continuously had sex with her until she became pregnant in September 2020. She did not go to the hospital for the court to have a record of such pregnancy. She had the Page 15 of 30 opportunity to inform the medical doctor about the pregnancy and the termination of it but she did not inform the medical doctor. She did not inform the medical doctor also about the injection she received from A1 causing her to bleed for two weeks. Any reasonable girl who had gone through two weeks of bleeding through an injection knowing very well it was terminating a pregnancy would have informed the medical doctor about it especially so where she had made a complaint to the police and she was at the hospital to get a report to buttress her complaint against A2. [40] In sum, there is no evidence on record to show that PW1 was pregnant or aborted a pregnancy and no mention of it to the medical doctor when she went there for examination. [41] I find it very difficult to understand the kind of investigation that was undertaken in this case as the mere mention of an event which is not corroborated in any way cannot be given the credibility and weight it may deserve. The investigator could have requested for such report to be made to the medical doctor for examination. A blood work of the survivor or other investigation could have revealed whether she was pregnant or had an abortion. [42] This is so because the Human Chorionic Gonadotropin ( hCG ), the hormone that a female body produces during pregnancy, can still be Page 16 of 30 detected four to six weeks after abortion and may even be longer where a drug or pill was used to terminate the pregnancy as it is being alleged in this case. Also, it may take a longer time for the body to return to normal after medication abortion and for the hCG hormone to deplete entirely from the body. See. https://hersmartchoice.com/blog/how-long-does-hcg-stay-in-your- system-after-abortion/ [43] PW1 mentioned that she bled for two weeks and from her evidence it was not long after that incident that she confided in the counsellor. And yet she could not mention such medical issue to the medical doctor for further investigations about what happened to her. [44] Also the survivor testified that A1 called her on her phone and gave her the direction to his house and she went to the house with her friend. Investigation could have revealed that a call came through to PW1 from A1 that evening but there was no such record find out the truth or otherwise of that assertion. Prosecution could have just found out from the mobile phone service provider the call logs and that was not done. [45] Furthermore, prosecution did not call the said friend who accompanied the survivor to the house of A1 as witness and they did not take her statement. PW1 stated also that the wife of A1 was in the house when she went there with the friend and they did not enquire from the Page 17 of 30 wife whether PW1 came to the house with a friend that evening. The failure of calling the friend a key or material witness did not help the case of PW1. Under cross examination, PW4, the investigator, was asked the following questions; Q. The survivor alleged that she visited A1’s house with a friend. Am I right? A. Yes. Q. Did you take a statement from her friend whose statement is very material? A. That friend had relocated from Swedru and we could not get her. Then later; Q. She did not mention the name of the alleged friend to you right? A. That is so. Q. And she also did not take you to where this alleged friend used to live? A. Yes. [46] The above interrogation reveals that PW4, the investigator did not even know the name of this friend who allegedly went with PW1 to the house of A1. The investigator did not know her whereabouts because there was no proper investigation into the matter. [47] It is noted that prosecution did not call the friend of PW1 who allegedly went to the house of A1 with PW1. They did not ascertain from Page 18 of 30 the wife of A1 or get her statement or bring her as a witness to corroborate the evidence that PW1 went to the house of A1 and was given injection. [48] PW2, the mother of the survivor, under cross examination admitted that she did not inform the medical doctor about the alleged pregnancy, injection, bleeding, and even the assault. These are some of the questions; Q. And you took your daughter to the hospital. A. Yes. Q. You also did not inform the doctor about the purported bleeding that you claimed the daughter suffered for about two weeks? A. I did not have any discussion with the doctor. I only handed over the form to the doctor. Q.I am suggesting to you that you would have complained to the medical doctor of the physical assault, bleeding, and abortion if it was so. A. The medical doctor is not a police. We reported the matter to the police and they gave us the medical form. [49] The cross-examination excerpt shows clearly that the medical doctor was not informed about any injection, bleeding, pregnancy or assault for further examination to have been conducted on the survivor. [50] Moreover, according to PW1, A1 gave her a medication after the injection but she put it somewhere in the house and did not take it, yet she Page 19 of 30 did not give the name of that medication, she did not present the medication to the court, and she did not mention that incident to the medical doctor. [51] Flowing from the above, the court cannot conclusively accept the evidence of prosecution that there was pregnancy and that there was an injection causing an abortion. Hence, A1 cannot be called to open his defence. I move to the next charge, which is incest. 3. THE OFFENCE OF INCEST [52] The offence of incest is defined under Section 105(1) of Act 29, (1960) which states: “A male of not less than sixteen years of age who has carnal knowledge of a female whom he knows is his granddaughter, daughter, sister, mother or grandmother commits a criminal offence and is liable on conviction to a term of imprisonment of not less than three years and not more than twenty-five years.” [53] Consequently, the essential ingredients of the offense of incest are; 1. That accused, a male, is not less than 16 years 2. That accused has had carnal knowledge of the survivor, a female. 3. That the accused knows the survivor is his grand-daughter, daughter, sister, mother or grandmother. Page 20 of 30 [54] To satisfy the court with a conviction the prosecution must prove the aforementioned ingredients beyond reasonable doubt. See REPUBLIC V YEBOAH [1968] GLR 248-256 at Page 251. [55] Here, a burden is cast upon the prosecution to prove each and every one of the above three ingredients beyond a reasonable doubt that accused person had a carnal knowledge of the survivor and that accused knows the survivor is his biological daughter and that accused is not less than sixteen years of age. [56] The first ingredient is that accused is a male and not less than sixteen years of age. From the charge sheet and brief facts of prosecution A2 is a father and by his name Emmanuel Kwesi, the court can safely infer that he is a male child born on a Sunday. Prosecution did not lead any evidence to prove the age of the accused person to show that he is less than sixteen years of age as per the ingredient of the offence but from the charge sheet and brief facts again his age is stated as forty (40) years. The court has taken judicial notice of the fact that accused cannot be less than sixteen years of age as from the charge sheet he works with NADMO at Agona Swedru and NADMO will not employ persons below the age of sixteen years to be their officers. Hence, the first element being the age of A2 cannot be in dispute. Page 21 of 30 [57] I move to the second ingredient which is that accused has had carnal knowledge with the survivor who is a female. From the prosecution evidence, A2 started having sexual intercourse with PW1 from 2019 and that resulted in a pregnancy. This evidence was denied by A2 and so it was left with prosecution to prove same with either a direct or circumstantial evidence to corroborate those assertions. [58] As earlier determined, it may be possible that A2 was having sexual intercourse with PW1 as it is very difficult to believe PW1 will concoct such an allegation against a person she believes to be her father. [59] The last element is for the accused to know the survivor is his grand-daughter, daughter, sister, mother or grandmother. From PW1, A2 did not accept responsibility of her until 2019 when he asked her to come and live with him. The act of A2 asking PW1 to come and live with him and by taking care of her presupposes that A2 accepted to be the father of PW1. [60] However, he applied through his counsel for paternity test to be conducted in the course of the trial. The paternity test was conducted at The Trust Hospital, Accra dated 28 March 2022 and signed by head of DNA Clinic, Dr. Nana Ama Abankwa. The report states that, Page 22 of 30 “based on the DNA Analysis, the alleged father Emmanuel Mensah Dawood can be excluded as the biological father of the child Rita Arhin because they do not share genetic markers...statistical result: Combined Paternity Index: 0.0000, Probability of Paternity = 0.0000%” [61] The paternity report indicating that PW1 is not the biological child of A2 collapsed the charge of incest as from the element the accused person should know that the person is his mother, daughter, sister, or grandmother. Under cross examination PW2 answered among others the following questions: Q. I am suggesting to you that A2 accepted to take care of the survivor because you indicated to him that he was the father at all material times. A. A2 knew very well that he is the biological father of the survivor but he did not take responsibility of the survivor until she was in JHS 3. Q. You are aware a DNA test has been conducted in this court regarding survivor and A2 A. As to whatever the results of the DNA test is, I have nothing to say because vengeance is of the Lord. He knows what he had done. [62] The answers provided by PW2 were not clear as to whether she knew PW1 was not the biological daughter of A2 before the paternity test was conducted or that she did not believe in the report. She or prosecution did not contest or object to the DNA test results and the court accepts it as Page 23 of 30 a prima facie evidence of the genetic indicators contained therein. See Section 121 (1) of the Criminal Procedure Act, 1960 (Act 30) and NYAMENEBA & ORS V THE STATE [1965] GLR 723. [63] In view of the paternity test, the court cannot conclude that A2 knows PW1 to be his biological daughter. See ASANTE V. REPUBLIC supra. A2 therefore cannot be called to open his defence on the charge of incest. 4. THE OFFENCE OF ASSAULT [64] The last charge is assault and it is defined under Section 84 of Act 29,(1960) as: “A person who unlawfully assaults another person commits a misdemeanour” The act provides for three kinds of Assault under Section 85(1) of Act 29/60 and they are; a. assault and battery b. assault without actual battery, and c. imprisonment [65] From the preliminary facts provided by the prosecution that gave rise to the charge, the kind of assault complained of is assault with actual battery provided for under Section 86(1) of Act 29,(1960) which states; Page 24 of 30 “ A person makes an assault and battery on another person, if without the other person’s consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person touches the other person.” [66] In order to ground a conviction, a burden is cast upon the prosecution to prove each and every one of the above three ingredients below beyond a reasonable doubt that the accused person; 1. Touched or assaulted PW1 without her consent 2. That A2 touched PW1 with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting the other person to anger. 3. That the touch was unlawful [67] All these elements have to be proven by prosecution beyond reasonable doubt. PW1 testified that she was sent by her grandmother the day school vacated and on her way, A2 who was in a taxi made the taxi stop, came out, pushed her down, slapped her, kicked her in her abdomen and beat her mercilessly. From her evidence and earlier statement given to the police and under cross examination, she was with someone when A2 assaulted her. [68] She did not bring that person she was with as a witness and police did not take that person’s statement. Page 25 of 30 She further mentioned that she met a man in the taxi she boarded and the man enquired from her why she wanted the driver to take her to the police station. According to her, the man went with her to her grandmother’s place. This man whose name was not given was not brought to court as a witness. PW1 did not take any photograph of her state after the alleged assault and she did not go to the hospital. When she reported the matter three days after and they went to the hospital, she did not mention to the medical doctor that she was assaulted. [69] So aside her testimony of the alleged assault, prosecution did not present any document, photograph, or witness to corroborate the evidence of PW1 since none of prosecution witnesses had ocular view of the alleged assault. Under cross examination the investigator in answering a question stated that a medical form was issued to the PW2 in respect of the assault case but they did not return that one to him. [70] Thus, the evidence of PW1 with respect to the charge of assault was also not corroborated even though she had the opportunity of having other witnesses or documents to prove that she was assaulted by A2. Hence, prosecution failed to take the case out of the realm of conjecture, speculation and suspicion because the evidence were not corroborated and could not convince the court. See CASEWELL V POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. [1940] AC 152 P 169 particularly the opinion of Lord Wright. Page 26 of 30 [71] Consequently, prosecution could not establish any prima facie case against the accused persons for the court to call them to open their defence [72] Under Section 173 of Act 30, 1960 where “at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require him to make a defence, the court shall, as to that particular charge acquit him.” [73] Here, the court is to do a balancing act at the close of the case for the prosecution to ensure that prosecution has led evidence to support the essential ingredients of the offences charged. See TAGOR V THE REPUBLIC [2009] 23 MLRG 78 at 132 where the Court of Appeal held that: “The paramount consideration in deciding whether prima facie case has been made or not is; whether the prosecution has proved all the essential ingredients or pre-requisites of the offence charged. No prima facie case is made where the prosecution was unable to prove all the essential ingredients. Even if one of the ingredients is not proved, the prosecution fails and no prima facie case is made.” [74] Therefore, after the balancing act of the evidence adduced by prosecution, if the court cannot convict the accused person on the Page 27 of 30 evidence so led without any reasonable explanation then submission of no case should be upheld. This is because the accused persons cannot add up to the prosecution’s case where at the close of its case, the prosecution is unable to establish a prima facie case against the accused persons. [75] Similar principle is seen in MALI VRS. THE STATE (1965) GLR 710 – 715 where the Supreme Court allowing an appeal stated that; “If at the end of the case for the prosecution the court requires further evidence before it can decide on the issues raised in the case for the prosecution. The irresistible inference is that the prosecution has failed and the accused should be acquitted. The onus of proof being always on the prosecution if that onus is not successfully discharged, a submission of no case should be upheld.” See STATE V. ANNAN (1965) GLR 600-612; ASARE V. THE REPUBLIC (1978) GLR 193 – 199 the court in holding (2) held that: “(2) As a general rule, there was no burden on the accused to establish his innocence rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt.” [76] Therefore, the burden of proof remains throughout the trial on the prosecution and the accused persons are not required to prove Page 28 of 30 anything. See PUBLIC PROSECUTOR V. YUVAVAG (1935) 25 CR. APP R 72 AT PAGE 95. IV. DISPOSITION [77] Consequently, the court is not permitted to call the accused persons for further evidence before ruling on a submission of no case where prosecution has not proved the essential ingredients of the offences. This is because accused persons cannot add to the case of prosecution before a submission of no case can be upheld. In sum, the case for the prosecution is considered as having collapsed. [78] The court hereby enters submission of no case in accordance with Section 173 of Act 30 and accordingly acquits and discharges the accused persons on the offences of defilement, incest, abortion and abetment of abortion, and assault. H/H DORINDA SMITH ARTHUR CIRCUIT COURT JUDGE PROSECUTOR: DSP DANIEL MENSAH GADZO PRESENT ROLAND A. K. HAMILTON ESQ. FOR A1 ABSENT Page 29 of 30 MICHAEL MONNIE ESQ. FOR A2 PRESENT Page 30 of 30