The Republic Vrs Acquah & Another [2022] GHACC 208 (10 October 2022)

Rep. v Samuel Acquah & Anor. IN THE GENDER-BASED VIOLENCE CIRCUIT COURT AT SEKONDI –W/R, HELD ON MONDAY, 10TH OCTOBER 2022 BEFORE H/H NAA AMERLEY AKOWUAH (MRS.) ……………………………………………………………………………….………………. C6/21/2020 THE REP. vrs 1. SAMUEL ACQUAH 2. PETER ACQUAH A1: ABSENT A2: PRESENT PROS.: CHIEF INSPECTOR VERONICA TIBSON C/ACCUSED PERSON: F. F. FAIDOO, Esq. RULING ON OBJECTION TO ADMISSIBILITY OF A2’S INVESTIGATION CAUTION STATEMENT HELD IN VOIR DIRE Together with his nephew, A2 was charged with defilement contrary to s. 101 of the Criminal (And Other Offences) Act, 1960 (Act 29). He pleaded ‘Not Guilty’ and trial was underway when his counsel admission objected to the admission of the Investigation Caution Statement (ICS) allegedly taken on 27/03/2020. In accordance with sections 3 & 120 of the Evidence Act, 1975 (NRCD 323), a mini trial was conducted to ascertain the veracity or otherwise of the basis of the objection, i.e., that accused person was compelled to append his signature to the statement upon threats by the then investigator, the late Martha Obeng, that should he continue refusing to sign, he would be detained in custody. This was so although he said the late investigator did not read over the statement she read over to him. In the course of the mini trial, though initially not part of the objection raised, the issue of whether or not an independent witness was present and carried out his duties as required Page 1 of 12 Rep. v Samuel Acquah & Anor. by s. 120 of NRCD 323 arose due to the difficulties of procuring his attendance because he was no longer with the Police Service, having completed his National Service in 2020. At the mini trial, the current investigator who took over from the deceased one and another police officer from the same division, and who initially assisted with the arrest of the accused person testified as VDPW1 & VDPW2. The name of the person which appeared on the ICS as the independent witness, Anthony Dadzie, failed to attend Court and testify despite the issuance of a Witness Summons and Bench Warrant for his arrest, in accordance with sections 58 & 59 of the Courts Act, 1993 (Act 459). On his part, accused person testified for himself and called no other witness on his behalf. After reading the entire proceedings in this case, I hereby make the following observations, findings and analysis. First, there was no dispute that A2 indeed gave a statement to the late investigator. However, he contended that what he was made to append his signature to, which was later read to him in Court by the Court Interpreter prior to the offer of the exhibit into evidence, was not what he told the late investigator. He insisted that he made no admission of guilt as contained in the exhibit. The denial of making an admission of having had sexual intercourse with Gifty Mensah was despite his admission under cross examination of all the material facts contained in the ICS, including his date of birth, residence, hometown, the fact of offering Gifty Mensah lifts in his vehicle, etc. In other words, accused person essentially admitted to all the material averments in his ICS save the following paragraph; “Somewhere February 2020, I saw Gifty whiles on my way to Takoradi but I decided to do some small work at my church office before so I told Gifty if she didn’t mind, I can pick her and after I will take her home and she obliged. When I got to the office, I got down from my car whiles Gifty was inside waiting but she later followed me to my office and I offered her a seat. As I was talking to her whiles busy on what I was writing, she stood up and walked to Page 2 of 12 Rep. v Samuel Acquah & Anor. my seat so I asked her if she has missed me but she started laughing so I stood up and in fact I didn’t know what came over me so I removed my penis and asked her to remove her pantie as well and she did. I tried to insert my penis into her vagina but I couldn’t erect and as I was trying semen fell on the floor and I used some napkin that I use to clean my office table to clean the semen. Secondly, from the preceding finding, the primary challenge was as to the contents of the ICS sought to be tendered, not the fact that accused person indeed gave a statement. On this submission, i.e., that what Accused person said and what was recorded were inconsistent, same does not hold sway because that leg of the objection does not warrant a voir dire as such inconsistencies would appropriately be dealt with under cross examination, an opportunity afforded accused person at every stage of the trial. See Marfo v The Rep. [2018] 127 GMJ where the court distinguished between the instances where an accused person alleged that the police failed to write exactly what he told them or in a second scenario that he never gave any statement at all but was rather forced to thumbprint one prepared for him. In the first instance, a voire dire will be uncalled for and as is applicable to the instant case where accused person testified that whiles he gave his statement the late investigator did not write down his words verbatim, rather listened to his entire statement which she then wrote down at the end of his narration. The question of the accuracy of the late investigator’s recall of what accused person narrated is quite interesting since he fell short of making clear the import of that submission. On the authority of Asare @ Fanti v The State [1964] GLR 70, where the SC noted that when an objection is raised against the tendering of a statement on the ground of inaccuracy, its admissibility becomes a question of law for the judge and the weight to be attached to it becomes a question of fact for the jury, I hereby reject accused person’s testimony on the manner he alleged that his statement was written down in English. Page 3 of 12 Rep. v Samuel Acquah & Anor. Thirdly, I dismiss the argument of duress and/or compulsion put forth as the circumstances under which accused person wrote his own name and signed the ICS. I find from the evidence on record that there was no force, compulsion or duress on accused person either prior to, at the beginning, during or after his statement was taken. In arriving at this finding, I refer to the cross examination of accused person on 29th August 2022 where he confirmed that prior to his arrest, the police accorded him the niceties and liberties to which he was not even entitled. For ease, same is reproduced below; Q: When the case was reported on 25th March, 2020, it was on 26th March, 2020 that the late Martha and the complainant came to you at your church to invite you to the police station, not so A: Yes Q: And you pleaded with the police to come to them the next day, i.e., 27th March, 2020 and you were granted your request. A: Yes Accused person admitted that he was on police enquiry bail after his arrest and subsequently, he willingly and freely walked to the police station for days without any restrictions before his statement was taken. This is found in the following conversation when accused person was under cross examination by Prosecution; Q: You have also told this Court that, your statement was taken at a small office at the right-hand side when one enters the DOVVSU office, not so A: Yes Q: You have also told this Court that you go and come to the police. Does it mean that you were granted police enquiry bail? Page 4 of 12 Rep. v Samuel Acquah & Anor. A: Yes, I was given police enquiry bail To show that he was under no compulsion or duress during the taking of his statement, he testified as follows: “Yes, I gave my statement to the police in respect of this matter. If I can recall properly, I gave my statement to the police after about 3 days when I was invited. The police did not tell me the reason why they took my statement 3 days after I have been invited but if I can recall they said we should report to the police station. But each day we reported to the police station they were talking about money. The monetary issues were that Abena Nyameatse said she would take 5billion old currency (GH¢500,000). … She made me give my entire statement, she listened to me and then later I saw that she was writing it down. Yes, she was not writing as I was speaking. The preceding testimony clearly showed that prior to and during the taking of his testimony, accused person freely reported to the police station, went home, reported again on the second day, and it was on the third day that his statement was taken. Normal police procedure will require that after the complaint was lodged, accused would have been arrested (which he was) and before or after his statement was taken, either granted police enquiry bail or detained for further investigations within the 48-hour window enshrined in Art. 14(3) of the Constitution, 1992. The events prior to and during the taking of accused person’s ICS were further corroborated by the testimony of VDPW2 in satisfaction of s. 7 of NRCD 323, particularly, subsection (2) which provides that “Evidence may in proper circumstances be corroborated by other independent evidence that requires corroboration”. In other words, even where the evidence that seeks to corroborate another piece(s) of evidence by itself also requires corroboration, a Court may accept it for its purpose depending on the circumstances of a case. See the case of Asante v. The Rep. [2017 -20018 1SCLGR 394. The corroborative evidence of VDPW2 given on 15/08/2022 was as follows: Page 5 of 12 Rep. v Samuel Acquah & Anor. “I am Det/Chief Insp. Eric Awuni. I know the Accused person in this case and the Independent Witness in this case, one Anthony, he was a National Service Personnel at our office. This was in 2019-2020. I only remember when the late Martha Obeng was obtaining statements from the Accused person, he (Anthony) was present as an Independent Witness. These were the Investigation Caution Statement and Charge Statement of the Accused person. Afterwards, I didn’t know what went on but the initial investigation, I and Martha went in for the Accused person at his church at Kweikuma “Bubbles”. From this testimony, it was established that VDPW2 indeed was involved in the arrest of accused person. Secondly, it was in his office that the ICS statement was taken. Thirdly, that indeed a man called Anthony Dadzie does exist, at least, as at the time of taking the ICS and was then a National Service Personnel attached to the police, putting out of contention that the alleged independent witness was a figment of the Prosecution’s imagination. Fourthly, that the said Anthony Dadzie was indeed present at the taking of accused person’s ICS. At this point, I shall deal with the absence of Anthony Dadzie at trial and its effect on the evidence proffered. Does his absence at the Voire Dire inure to the benefit of accused person? I think not, especially considering my earlier analysis referencing s. 7(2) of NRCD 323 made in this judgment. It is on record that Prosecution made strenuous efforts to procure his attendance, as contained in the Affidavit in support of the Motion praying for a recall of VDPW1 and also in his subsequent testimony. Prosecution extended its efforts in getting Anthony Dadzie to testify, including seeking the cooperation of the alleged independent witness’ father who lived in Kweikuma a suburb of Takoradi and a non-teaching staff in a second-cycle school within the metropolis. The absence of the independent witness is not fatal due to the testimony of VDPW2 which partly confirmed compliance with s. 120 (2) of NRCD 323, i.e., that an independent witness was present at the taking of the ICS. However, VDPW2 testified that even though the statement was taken in his office, he was not present Page 6 of 12 Rep. v Samuel Acquah & Anor. with the trio and therefore could not confirm whether Anthony Dadzie indeed read over the statement to him as required by subsection (3) of s. 120 of NRCD 323. This matter shall be dealt with subsequently in my Ruling. The reason for the failure or refusal of the independent witness to testify is not far-fetched as was made known by VDPW2 as follows: Q: When did you get to know that you will testify in this case A: Over months but we were feeling reluctant to do so. When I say we, I mean the personnel at the Police Service were reluctant to do so even though the Prosecution has been telling us to do so The bone of contention, and the basis of the objection raised, allegedly occurred after accused person’s statement had been written down. According to the accused person, the investigator kept him under lock at the office of Det. Awuni for hours and threatened to detain him should he not sign his ICS. His testimony of this was as follows: “After she had finished writing it she told me to sign but I refused, even though she told me they would not use it for anything and that it was a mere formality. I did not want to sign because she had not read the contents of what was on the paper to me and all she told me was that I should sign. She said if I did not sign they would not allow me to go home and that they would detain me. She took my statement around 11:00 am. It was around 5:00 -5:30pm when CID Martha said if I would not sign then I should be handcuffed and detained so I asked them to bring it for me to sign” Under cross examination, he elaborated his assertions further: Q: You made mention that your statement was taken around 11:00am and also it was at 5:30pm that you asked that they should bring the statement for you to sign. So, between 11:00am. and 5:30pm, where were you Page 7 of 12 Rep. v Samuel Acquah & Anor. A: At that time, I was sitting in the office of the CID called Awuni. The whole day I was sitting there. Q: So, whilst there in Awuni’s office, what happened A: Nothing happened. I was just sitting there since I refused to sign Q: So whilst there nobody forced you to sign your Investigation Caution Statement A: That was when they said if I did not sign, they will detain me Q: Your evidence that after taking your Investigation Caution Statement, they made you sit at Det/Insp. Awuni’s office from 11:00am-5:30pm. is not correct A: It is true. That was what happened. In fact, the late Martha locked the door of the office where I was sent to sit. She went to town, and returned and opened the door and asked me again if I would sign or be put into the cells. Q: I put it to you that the investigator did not put you in Awuni’s office, lock you up and went to town A: It is true. That is exactly what happened On the face of the ICS, no time was indicated as to when same was taken and when accused person wrote his name and signed. Without more, it is difficult to verify accused person’s allegations that he was kept for several hours and threatened to be detained. However, on the face of the record and on the authority of s. 126 of NRCD 323, the proper procedures and methods were applied in the taking of the ICS, including cautioning him of the complaint made, the presence of the independent witness noted therein, the certification by the latter that he read over the statement in the English language and translated same into the Fante language, mother tongue of accused person before he appended his signature. S. 126 of NRCD 323 provides that: Page 8 of 12 Rep. v Samuel Acquah & Anor. (1) Evidence of a hearsay statement contained in a writing made as a record of an act, event or condition is not made inadmissible by section 117 if— (a) the writing was made by and within the scope of duty of a public official; (b) the writing was made at or near the time the act or event occurred or the condition existed; and (c) the sources of information and method and time of preparation were such as to indicate that the statement contained in the writing is reasonably trustworthy. (2) Evidence of a hearsay statement contained in a writing made by the public official who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by section 117. With the presumption of regularity in favor of the Prosecution, i.e., that the independent witness was present and read over the statement to accused person, as well as the facts, as I have found existing prior to and during the taking of his statement, I find that accused person was very comfortable and was accorded all his liberties and human rights under the law. It is quite hard to fathom that considering the congenial circumstances surrounding the pre-taking and taking of his statement, the late investigator would suddenly be hostile to the accused person when both she and VDPW2 were most accommodating. Questions on the credibility of accused person’s allegation that he was threatened with detention flies in the face of common sense upon a reading of his Charge Statement, unopposed and admitted into evidence as Exh. G, without objection from his counsel. The said Charge Statement was taken on 30/03/2020, 3 days after the ICS was taken and accused person repeated the same narration as in his ICS. Similar to his ICS, he personally wrote down his name and signed. It is worthy of note that as at the time of taking his Charge Statement, accused person was on bail granted earlier and was under no threat or compulsion and yet, his story did not change from what was in his ICS which he claimed was not exactly what he told the late Page 9 of 12 Rep. v Samuel Acquah & Anor. investigator. It is clear that the allegation of compulsion is unfounded and perhaps, a very convenient and opportunistic argument to make in the light of the death of the substantive investigator. I further find that the allegation of being locked up in the office of Det. Awuni as merely a concoction and an afterthought, created and embellished under cross examination. After the findings of the fact made above, it is appropriate to turn to accused person’s defence and determine whether he led evidence to support his allegation after the burden so to do as required by s. 11(1) & (3) of NRCD 323. It is trite learning that mounting the witness box and making allegations without more does not satisfy s. 11 of NRCD 323. Accused person failed to discharge the burden on him and did not lead a shred of evidence on the so-called compulsion save to repeat his bare allegations. Finally, I have painstakingly reproduced extensively the part of the ICS which is deemed to be an admission, or which if taken together with other pieces of evidence on record amount to an admission, and therefore requiring faithful compliance with the provisions of s. 120 of NRCD 323. After careful reading, coupled with accused person’s consistent denial of guilt from the day of arraignment till date, I hereby make a finding of fact that the alleged admissions in the ICS are in fact denials of the allegation against accused person. Indeed, in the ICS and also in Court, accused person repeated that he has suffered from erectile dysfunction for some time and so on the said day, and two instances prior, when he was alleged to have had sexual intercourse with Gifty Mensah, he could not achieve an erection let alone penetrate her vagina. Bearing in mind the ingredients of defilement under s. 101 of Act 29, the element of penetration has been vehemently denied. Without prejudice, stating in his ICS that he asked Gifty Mensah to remove her underwear, took out his limp penis, failed in his attempt to insert same into her vagina due to the penis being flaccid but secreted some semen on the floor, is not a clear confession or admission of guilt to defilement. Act 29 has other sexual-based offences involving exposure of genitalia to minors or others which Page 10 of 12 Rep. v Samuel Acquah & Anor. do not necessarily require proof of occurrence of sexual intercourse. At this stage where Prosecution is yet to close its case, it carries the sole burden to prove all the ingredients of the offence. I must state that but for the allegations of compulsion and the absence of the independent witness, untrue assertions as established by the testimony of Det. Awuni, the entire voire dire may not have been necessary as s. 120 of NRCD 323 ONLY (emphasis mine) applies to confession statements, which the contended ICS is not, either in part or taken together with other evidence on record. For ease of reference, s. 120 of NRCD is reproduced below; (1) In a criminal action, evidence of a hearsay statement made by an accused admitting matter which— (a) constitutes; or (b) forms an essential part of; or (c) taken together with other information already disclosed by him is a basis for an inference of, the commission of a crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily. (2) Evidence of a hearsay statement shall not be admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness (other than a police officer or member of the Armed Forces) approved by the accused. (3) The independent witness must be a person who— (a) can understand the language spoken by accused; (b) can read and understand the language in which the statement is made, Page 11 of 12 Rep. v Samuel Acquah & Anor. and where the statement is in writing the independent witness must certify in writing that the statement was made voluntarily in his presence and that the contents were fully understood by the accused. Accordingly, the objection is overruled and the ICS dated 27/03/2020 is admitted into evidence and marked as Exh. K. ................................................................. H/H NAA AMERLEY AKOWUAH (MRS.) Page 12 of 12