The Republic Vrs Dzokoto [2023] GHACC 393 (14 February 2023)

Rep. v Wisdom Dzokoto IN THE GENDER-BASED VIOLENCE CIRCUIT COURT AT SEKONDI –W/R, HELD ON TUESDAY, 14THFEBRUARY 2023 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ……………………………………………………………………………….………. C6/3/21 THE REP. vrs WISDOM DZOKOTO ------------------------------------------------------------------------------------------------------- ACCUSED: PRESENT PROS.: CHIEF INSP. VERONICA TIBSON C/ACC.: PHILIP NKRUMAH, Esq. JUDGMENT The charges initiating prosecution of accused person included two counts of carnal knowledge of a female idiot and defilement contrary to ss. 102 & 101 (1 & 2) of the Criminal (And Other Offences) Act, 1960 (Act 29). On 30/05/2022, this Court found in accordance with s. 173 of the Criminal (Procedure) Act, 1960 (Act 30)that the Prosecution failed to make a prima facie case in respect of the charge of defilement, sufficient for an accused person to be called upon to open his defence. Accordingly, the accused person was discharged on Count 2. On the other hand, Prosecution successfully established a prima facie case in respect of Count 1 and this judgment will therefore be restricted in that regard. SUMMARY OF FACTS The prosecution’s facts were that the mother of the alleged victim, Maame Sefa Kwakye Sarpong, lodged a complaint at the Domestic Violence & Victim Support Unit (DOVVSU) Page 1 of 14 Rep. v Wisdom Dzokoto of the Police Service, Ministries-Accra on the allegation that accused person, a teacher at Twin City Special School located at Sofokrom, near Sekondi College school, had sex with her sometime in 2016. The victim is a pupil of the school. A transfer to Sekondi DOVVSU was effected and investigations commenced. Prosecution said that at the time accused person allegedly had sex with the victim, she was 12 years of age. On 2/06/2020, the victim through a cousin, made the complainant aware of the alleged sexual intercourse, some years later because the victim alleged that accused person threatened her with death should she disclose her ordeal. After initial administrative procedures, including issuing a medical form, in-person and crime scene investigations, accused person was charged and arraigned. SUMMARY OF LAW &EVIDENCE s. 102 of Act 29 provides that; “Whoever has carnal knowledge or has unnatural carnal knowledge of any idiot, imbecile or a mental patient in or under the care of a mental hospital whether with or without his or her consent, in circumstances which prove that the accused knew at the time of the commission of the offence that the person had a mental incapacity commits an offence and shall be liable on summary conviction to imprisonment for a term of not less than five or more than twenty-five years” From the provision above, for an accused person to be guilty under s. 102 of Act 29, there must be proof that he had sexual intercourse with a person he knows to have mental incapacity by reason of his/her being a patient at a hospital or at a place known for the care of mentally-challenged persons. S. 102 further provides that it is immaterial whether such a mentally-challenged person gave his/her consent for the sexual intercourse. Finally, an accused person must be proven to know or ought to have known that such a person has mental incapacities. Page 2 of 14 Rep. v Wisdom Dzokoto s. 11(2) of the Evidence Act, 1960 (NRCD 323) states that “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”. See the case of Kwaku Frimpong @ Iboman v The Rep. [2012] 1SCGLR 297, where the Supreme Court noted that for prosecution to make a case, it must prove the essential ingredients of the offence(s) and also establish a story sufficient enough to link an accused person to the commission of the offence(s) charged with. To fulfill the evidentiary burden imposed by the law, Prosecution called four (4) witnesses. PW1 was Maame Sefa Kwakye Sarpong, the alleged victim. She told the Court that sometime in 2016 when she started schooling at the Twin City Special School at Sofokrom accused person started having sexual intercourse with her. That the modus accused person used was to call her while she was with her friends, ask her to visit him at his quarters and when she refused, hold her hand and pull her along. PW1 said he took her to his quarters while the neighbours had left to school. She described his room and listed a stuffing chair, television set, and a bed with pillows as some of the items in his room. She explained that she did not tell her mother, the complainant, all these years because accused person threatened her and also said no one would believe her if she should tell because of her intellectual incapacity. She tendered Exh. A, a copy of her initial statement to police given on 29/06/2020. Cross Examination confirmed that PW1 personally took the police to the teachers’ Quarters and pointed out accused person’s living quarters. When Counsel for accused person put it to her that the rooms she pointed out were not and have never been occupied by the accused person, she said she would be very surprised. Page 3 of 14 Rep. v Wisdom Dzokoto PW2 was the investigator in charge of the case, Det./Cpl. Frank Amoah Larsey. He tendered in an extract of the initial complaint lodged at the DOVVSU, Ministries, Accra (Exh. B), the Investigation Caution Statement of accused person taken on 29/06/2020 (Exh. C), four photographs of the alleged scene of crime (Exhs. D, D1-D3), the Charge Statement of accused dated 01/07/2020 and the medical form issued to the alleged victim for medical treatment after the complaint was lodged (Exh. F). In Exhs. C & E, accused person flatly denied having had sexual intercourse with or made any sexual advances towards Maame Sefa. Exhs. D series was notable because it was the apartment of another teacher Emily Anyigbavor, not accused person. In Exh. F, the medical doctor (PW4) noted that he observed a; “young girl mentally challenged but speaks and recollects events in time, place and person” Similar to the above, as a trial judge a preliminary observation I made was that despite her obvious intellectual challenge, PW1 testified in both the Twi and English languages, expressed herself very well and coherently answered questions put to her under cross examination, although she became agitated and unsettled whenever counsel for the accused person questioned her integrity. In Ogbarmey-Tetteh v Ogbarmey-Tetteh [1993- 94] 1GLR 353 SC, the Supreme Court found that although it was within the purview of a trial judge to observe the demeanour of a witness vis-à-vis credibility, at first instance, a determination based on such observations must be on the face of the record. PW1’s credibility is apparent in her testimony and answers and I find her testimony unaffected by her intellectual challenge. When cross examined, PW2 confirmed that the apartment Maame Sefa led him to was that of another teacher, Emily Anyigbavor who had occupied the said flat for years. Indeed, that even after Madam Emily claimed that the particular apartment was hers Maame Sefa still insisted that that was where the incident took place. However, he found that that of Page 4 of 14 Rep. v Wisdom Dzokoto accused person was adjacent to Madam Emily Anyigbavor’s. PW2 agreed with Counsel for accused person that due to her bad eyesight, MaameSefah and other pupils with similar conditions, often had to be led and chaperoned to the dining hall and other places in the school by their housemistress. By s. 18 of NRCD 323, the inference I make here is that it was unlikely that Maame Sefa hmoved about the school campus without assistance and neither was she rarely unaccompanied. PW3 was Emmanuel Otoo, a cousin to PW1 and the one to whom PW1 first told of her alleged sexual encounter with accused person. He testified that it took a lot of talking to and persuasion for Maame Sefah to disclose fully to him what she alleged were forced sexual intercourse that accused person subjected her to. He tendered his initial statement, admitted and marked Exh. G. Under cross examination, he emphasized that when Maame Sefah narrated the story to her, she mentioned accused person’s name as the perpetrator, and no other person. Counsel for accused person put it to PW3 that, from his own testimony, Maame Sefah’s actual complaint was about alleged maltreatment at the hands of the caregivers and not a sexual assault. According to Counsel, PW3 was the one who concocted the sexual assault story, fed it to Maame Sefah and which she in turn, told her mother. Out rightly, this proposition is unsupported because there is no evidence on record to show that PW3 had been to his cousin’s school, heard of or knew accused person prior to his conversation with Maame Sefah. The medical doctor, Deputy Commander of Police, Dr. Christian Boamah-Mensah was PW4. He identified himself as the author of Exh. F, where he concluded that “forceful entry could not be ruled out” due to “hymen ruptured at 4 and 9:O’clock. On inspection of genitalia, vulva normal, hymen ruptured at 4 and 9’oclock. No bleeding points noted. Copious whitish vaginal discharge”. Additionally, he confirmed that PW1 was intellectually challenged but Page 5 of 14 Rep. v Wisdom Dzokoto corroborated the observation of the Court earlier made on the demeanour of PW1, and by extension, her credibility. Reference s. 80 of NRCD 323 on matters that are relevant in determining the credibility of a witness which include the demeanour of the witness, the substance of the testimony, the existence or non-existence of any fact testified to by the witness, the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies, etc. For failing to avail herself for cross examination to be concluded, the testimony and exhibits tendered by PW5, Frimpomaa Frimpong, mother of the alleged victim, were struck out and expunged from the records of the Court on the authority of s. 62(2) of NRCD 323. Prosecution submitted that despite strenuous efforts, PW5 had failed to attend Court without a good reason. Consequently, her testimony was not part of the Record of Proceedings and cannot be relied on by this Court to make a determination. In the case of In Re Blay-Miezah [2001-2002] SCGLR. 339 the Supreme Court held that such evidence was “totally worthless” With reference to the essential elements set out above, i.e., carnal knowledge, victim being an idiot, imbecile or a mental patient, victim giving her consent or otherwise being immaterial and knowledge by accused person of the victim having a mental incapacity, I find that these have been proved BUT IS IT beyond reasonable doubt. From the evidence before me, carnal knowledge of Maame Sefah was established by the testimonies of PW1, PW4 as well as Exh. F. There is also no doubt that Maame Sefah Kwakye has intellectual challenges. This fact is undisputed by all parties in this matter and was commented on by the medical doctor in his expert opinion in Exh. F. The conclusiveness of the opinion PW4 expressed, without evidence to the contrary, since the final duty lies on a judge in admitting evidence and the Page 6 of 14 Rep. v Wisdom Dzokoto weight to attach to it, puts the matter to rest. Indeed, the fact that she is a pupil of Twin City Special School is prima facie evidence of her limitations. From her testimony, PW1 told the Court that she resisted each time accused person wanted to have sexual intercourse with her but he forced her to and when he was done, threatened her with death should she disclose to anyone. I find that she did not give her consent, and as the law has stated above, should she have, it would not validate the act of sexual assault. The Charge Sheet and Brief Facts described accused person as “a 55-year-old teacher also residing at the school’s compound”. In his Witness Statement and defence, accused testified in paragraph 2 that “I live and work at Twin City Special School at Sankofa-Sofokrom and work as a teacher”. Being a teacher of the same school that Maame Sefah attended, it goes without saying that accused person knew that she had intellectual incapacities. Is proof of the essential ingredients of the offence of carnal knowledge of a female idiot sufficient to convict the accused person? Is proof of the ingredients equal to proof beyond reasonable doubt, especially in the face of accused person’s denial and his defence? It is the law that after an accused person has put forward a defence, a trial judge must examine same and exercise one of three options open to him/her as restated in the case of Rep. v Francis Ike Uyanwune [2013] 58 GMJ 162 where the Supreme Court cited with approval the cases of Lutterodt v Commissioner of Police [1963] 2GLR. 429 and State v Sowah&Essel [1961] GLR. 743-747. These options are; (i) if he accepted their explanations, he must acquit them; (ii) short of accepting their explanations if he was left in doubt, he must also acquit them; and Page 7 of 14 Rep. v Wisdom Dzokoto (iii) he must be satisfied of their guilt of the crimes alleged against them only on consideration of the whole evidence adduced in the case. Beyond the three-tier test above, it is trite law that even where a judge disbelieves the defence of an accused, he/she still has the duty to consider whether the defence is reasonably true or probable. See the case of Mahamadu Lagos v COP [1961] GLR 181, SC. In the Lutterodt case judgment delivered by Crabbe, Mills-Odoi and Ollennu JJ. S. C. in the Lutterodt case, the lord Justices noted that; “Where a decision of a trial court turns upon the oath of a prosecution witness against that of a defence witness, it is incumbent on the trial court to examine the evidence of the said witnesses carefully along with other evidence adduced at the trial before preferring one to the other. If the court prefers the evidence of the prosecution then it must give reasons for the preference, but if it is unable to give any reasons for the preference, then that means that there is a reasonable doubt as to which of the versions of the story is true, in which case, the benefit of the doubt must be given to the defence” Paying heed to the above holdings, I shall consider the defence of accused person which he set out on 25/07/2022 when he went into the witness box and the testimonies of his five (5) witnesses who testified in his defence. He flatly denied ever being sexually involved with Maame Sefa or any other pupil. Accused person’s testimony was that he was a dedicated and committed teacher of 32 years, spanning from 1993. That being the Senior Housemaster, it was part of his work to admit new students into the school and that was what he did with Maame Sefa when she joined the school in February 2016. He was the first point of contact before, during and after her admission. In his opinion, she was an aggressive, verbally abusive, socially difficult and destructive pupil who wanted to have her way and was not interested in schooling at all. As such, whenever she was corrected when she misbehaved, she would Page 8 of 14 Rep. v Wisdom Dzokoto throw tantrums and threaten to report the school to her mother. As a teacher, he felt that Maame Sefa’s mother, Frimpomaa Frimpong, did not make time for the care and education of her daughter because she never visited her daughter, attended PTA meetings or picked her up when the school went on vacations the entire 4 years her daughter spent in the school. In his opinion, the instant complaint and prosecution was merely a means for Frimpomaa Frimpong to settle personal scores. Prosecution cross examined him and accused person agreed with prosecution that just as he knew Maame Sefa, she likewise knew him very well too and was able to recognize him, by voice and sight. Further cross examination established that accused person lived in the Teachers’ Quarters together with his wife, also a teacher, and three children, one of whom also works in the Twin City Special School as a cleaner. On record, accused person answered that being a cleaner she finished her duties before 8:00am and returned to the Teachers’ Quarters where she stayed until the headmistress needed her to run an errand or other for her. The crux of his defence was summed up in the following exchange; Q: This sexual intercourse happened at the blind side of your neighbours and your daughter A: That is certainly no. When Sefah Kwakye the alleged victim was even given the opportunity to go and identify the crime scene, she ended up in another person’s Quarters or room. A room which has been occupied by a female teacher with her family for the past 9 years. What is very interesting in this whole matter is that the block that the teachers are on, the only entrance is directly facing my door but on entering she went off more than 20ft. to the next apartment of a female teacher where she alleged that I have been having sexual intercourse with her. Another interesting thing that happened was that, when the investigator pointed out to Sefa Kwakye that this room and the bed that she claimed to sleep on and having sex with Mr. Dzokoto happened to be for Madam Emily Anyigbavor and clever as I indicated earlier that Page 9 of 14 Rep. v Wisdom Dzokoto she was, she told the investigator that each time I [come] to have sex with her in Madam Emily’s room I then take her to my own room and cautioned her that if she ever told somebody I will beat her and kill her. In answer to further questions on why Maame Sefah kept the alleged sexual assault for four years before disclosing same, accused person told the Court that it would have been impossible for Maame Sefah to keep quiet should such a thing happen to her because, in his own words; “She is very outgoing, very talkative and she would even have made the whole school get to know that she has something doing with me in an amorous way, because within the children themselves, they sometimes tried to engage in some of these activities and the report gets back to as for intervention “ This observation by accused person on Maame Sefah’s temperament and conduct was apparent in Court and has been noted elsewhere in this judgment. DWI was Cresentia Efua Bilson –Sia, the headmistress of Twin City Special School. She testified to the regulations in place at the school to check interactions between staff and pupils and access to teachers’ living quarters. She also testified to accused person’s upright morals and good relations both on and off the school campus, extending to the general community. Significantly, she tendered into evidence a committee report (Exh. 1), without objection, forwarded to her when Maame Sefah first made the allegation of sexual assault. She set up and sanctioned the committee. In Exh. 1, the committee found out that Maame Sefah previously attended Garden City Special School, spent two terms and was expelled for misconduct because she made false allegations of sexual assault against a male teacher. In cross examination, DW1 corroborated accused person’s testimony that Maame Sefah was temperamental and could be rowdy should she not have her way. Significantly, DW1 explained that the architecture of the entire campus is rectangular; with the entrances to Page 10 of 14 Rep. v Wisdom Dzokoto the Teacher’s Quarters, pupils’ dormitories and headmistress’ quarters all facing each other. Therefore, it will be difficult for anyone to enter anywhere without being seen considering that the teachers live with their families and the headmistress also living within the dormitory building. From DW1’s testimony, I find that the Twin City Special School is an enclosed and close- knit institution and considering the needs of the pupils, the close attention and care of all teachers and caregivers are needed to care for the pupils. DW2 was Vivian Amoah, wife of accused person. She testified to his moral and religious uprightness, love for his work and the children in his care and the mutual trust and love in their marriage. Being his wife of 25 years and living in the same Teachers’ Quarters, DW2 said prior to the allegation against her husband, she had not seen Maame Sefah around the living quarters because it was out of bounds to all pupils. Finally, that she was present when the police brought Maame Sefah to the school to lead them to accused person’s apartment and she went straight to Madam Emily Anyigbavor’s place, even though that of accused person was directly after the only entrance leading to the Quarters. When the police pointed out to her her mistake, she insisted it was the room accused person brought her to and then later, said the sexual acts took place in Madam Emily’s apartment and thereafter, accused person took her to his room to warn her not to disclose anything to anyone. With the opportunity afforded under s. … it was surprising that Prosecution did not cross examine DW2 on her testimony on the character evidence she proffered. The legal consequence here is that ……. DW3 Kweku Nkum Yeboah, the stand-in teacher for accused person when he travelled to Abu Dhabi, testified about his observations of Maame Sefah. In paragraphs, 5, 6 & 7of his Witness Statement he corroborated the testimonies of DW1 and accused person to the Page 11 of 14 Rep. v Wisdom Dzokoto effect that Maame Sefah was not “schoolable”, threw temper tantrums, etc. He also told the Court that in all her complaints, arguments with staff and fellow pupils in and out of class, she never brought up any issue of sexual abuse against her, quite surprising considering her garrulous nature. Reference paragraphs 8, 9 & 10 of his Witness Statement. He further told the Court that due to his professional and yet very helpful nature, accused person’s name has become a household name on the school campus and the outside community. To further drum home how unlikely it would be for Maame Sefah to be unattended to and even be taken to accused persons’ quarters, he explained to a question as follows: Q: Whilst you are not there in the school, anything that happens you would not know, right A: Yes, I would not know. The school is such that when you are going out you write where you are going to, and the time you will return and then you report to the head so that somebody takes over from you to look after the children. And so, in the absence of me, the other staff takes over the caring of the children. Similar to PW3, PW4 (Mary G. Reindorf) testified to the architecture of the school campus and how difficult it would be for a teacher or other staff to take a pupil to his quarters. To support the evidence by previous witnesses, PW4 told the Court that accused person was hardworking and trustworthy, to the point that she embarked on a trip with him to India, together with her son to receive Stem cell treatment for him. Being a frequent visitor in the school because of her son who is also a pupil, she said a cursory observation of the relations between pupils and staff “reveals a warm working relationship with Mr. Dzokoto and his pupils with everyone calling him to have his or her concerns and issues addressed” DW5 (Emily Abla Anyigbavor), the headmistress of Twin City Special School testified. In paragraphs 11, 15 & 16 of her testimony, she told the Court that Maame Sefa Kwakye was Page 12 of 14 Rep. v Wisdom Dzokoto in the habit of making false accusations with the instant one, being one of many. She also told the Court that even though she knew that the pupils in the school knew where the teachers’ bungalows were, it was a very restricted area to them and so it would not be so easy for Maame Sefa Kwakye to visit the accused person’s apartment or for him to bring her into his apartment either. CONCLUSION On the totality of evidence presented by accused person and his witnesses, I find that the inability to positively identify the place where the alleged offence took place, raises a reasonable doubt as to whether in fact and in deed, the alleged crime took place. Secondly, it raises a doubt as to whether it was accused person who indeed had sexual intercourse with Maame Sefa because identification of a perpetrator is key in the proof of an offence. In Yamoah& Ibrahim Razakvrs The Rep. [2012] 2 SCGLR 75the Supreme Court noted that “in every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also lead evidence to identify the accused as the person(s) who committed it. That was of a very crucial importance for a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal”. The identity of accused person as the perpetrator of the offence is in dispute and this can only be resolved in his favour. This in no way is a statement that accused person is innocent; it just means that by operation of law and on the facts, he has raised a reasonable doubt in accordance with s. 11(3) of NRCD 323 and must be acquitted. Thirdly, the logical inferences to arrive at from the evidence on the character and professional standards of accused person makes a reasonable mind to have doubts, which doubts in law must go in his favour. In summary, all defence witnesses gave testimonies which suggested that it was very unlikely, if not impossible, for accused person to bring Maame Sefa or any other pupil to his quarters for social engagements, let alone sexual Page 13 of 14 Rep. v Wisdom Dzokoto intercourse. In other words, the circumstances, schedule of teaching, close care and monitoring of the pupils by the various Mothers (Caregivers) made it impossible for anyone, accused person included, to have the opportunity to engage in sexual relations with the pupils. On the authority of the test enumerated in the Lutterodt case, particularly in holding (i) and (ii), I find that accused person’s explanation is tenable and together with that of his witnesses, leaves me in doubt as to his guilt. I cannot incontrovertibly convict him of the charge of having carnal knowledge of an idiot. DECISION Accused person is hereby acquitted of the charge of having carnal knowledge of an idiot contrary to s. 102 of Act 29. ................................................................. H/H NAA AMERLEY AKOWUAH (MRS.) Page 14 of 14