Republic Vrs Ampomab [2022] GHACC 168 (1 December 2022)

1 IN THE CIRCUIT COURT HELD AT MPRAESO ON THURSDAY 1ST DAY OF DECEMBER 2022 BEFORE HIS HONOUR STEPHEN KUMI, ESQ CIRCUIT JUDGE. CASE NO: B6 / 27/ 2021. THE REPUBLIC V LAYLOID AMPOMAH. J U D G M E N T: The Accused has been charged and put before the court to answer to some two charges. The first is unlawful entry contrary to section 152 of the Criminal Offences Act, 1960 ( Act 29 ); with the second one being defilement of a female under sixteen ( 16 ) years of age contrary to section 101 ( 2 ) of the Act 29/1960 ( supra ). The Accused is before this court because the prosecution alleges essentially that on the 19th day of February, 2021, at Kwahu Abetifi, the accused scaled over a wall and entered into the compound or house of one Alex Danso, for the purpose of and succeeded in having sexual intercourse with the alleged victim in the case, Rita Dedaa. The victim was living with and was under the care of the Complainant in the case, Comfort Danso, at the time of the incident. It is further alleged that the victim became pregnant through the impugned sexual intercourse. Based on this information, the Accused was arrested and at the conclusion of police investigations, was arraigned before this court for the stated charges. On the date of his first appearance before the court, the Accused, after the charges were read and explained to him in the Twi language, denied the charges by pleading not guilty. Since his plea had joined issue with the charge or allegation of the prosecution, the case went to trial for the prosecution to call evidence to prove his guilt beyond reasonable doubt. EVIDENCE/CASE OF THE PROSECUTION. The prosecution called some three ( 3 ) witnesses in their attempt to discharge the Constitutional and statutory duty of proving the guilt of the Accused beyond reasonable doubt in fulfillment of Article 19 (2) (c) of the 1992 Constitution as follows: “(2) A person charged with criminal offence shall (c ) be presumed innocent until he is proved or has pleaded guilty”. The first prosecution witness was the alleged Comfort Danso. She identified the victim as her niece. They stay together in a storey building owned by her brother, Alex Danso. Her evidence basically was that around December, 2020, she began to detect that on some two occasions the victim spent the nights outside. She also detected the loss of the keys to one of the rooms at the house. Although she confronted the victim about the situations, the victim denied any wrongdoing; until 21st February, 2021, when the brothers of the victim during a search at her room found the missing keys and a mobile phone in the belongs of the victim. From a further search on the phone, they found that the victim and the Accused were in a romantic or amorous relationship and that the Accused had been coming into the house to have sexual intercourse with the victim by scaling the wall into the compound. She added that the victim admitted having multiple sexual intercourse with the Accused; with the last one on 19th February, 2021. After a police report was made for the arrest of the Accused, the victim was taken to the hospital, where upon examination, she was found to be pregnant. The PW2 was the alleged victim, Rita Dedaa. Per her filed witness statement, she essentially stated that the Accused met and proposed love to her in March, 2020, and that since then they had gone on to engage in multiple sexual intercourse, both at her room- by the Accused scaling the wall into the compound- and also at the house of the Accused, with the last one on 19th February, 2021. She had also given her age as 14. However in a rather dramatic fashion, the PW2 in the box denied the contents in the witness statement. She denied that the Accused ever came to the compound to have sexual intercourse with her. When the court drew her attention to the obvious differences or inconsistencies between her unsworn and sworn statements, she replied that she was coerced by her guardian and the police in giving the witness statement then. The third and last witness called by the prosecution was PW Inspector Patience Nyarko, the police investigator stationed with the Domestic Violence and Victim Support Unit ( DOVVSU) at Abetifi. She conducted the normal police investigations; to wit taking statements from the complainant and witnesses. She then issued police medical form to the victim and also accompanied her to the hospital where upon examination she was found to be pregnant. After taking statements from the Accused, she went with the Accused and victim to the house of the Complainant where the Accused demonstrated to them how he used to jump into the compound in order to have sexual intercourse with the victim. At the house, the victim pointed to a mattress at the room on which the Accused had been defiling her; plus some drug that the Accused had given to the victim to prevent pregnancy. She next extended her investigations to the school of the victim and managed to access a copy of the class attendance register of the victim which stated her date of birth as 3rd November, 2007, indicating that the victim was 13 years at the time of the impugned sexual intercourse. A copy of the attendance register was admitted into evidence and marked as Exhibit E. In addition, the PW3 had also tendered into evidence the cautioned and charge statements of the Accused; marked as Exhibits A and B respectively; while Exhibit C was the endorsed medical form on the victim. It is instructive to state that the Exhibits A and B were admitted into evidence at the end of a mini trial following an objection raised to their admissibility by the Accused on grounds that he had been coerced or deceived by the Alex Danso to admit to the charges to ensure an amicable settlement between the families. The evidence in the mini trial did not support that. It rather showed the Accused had given his statements voluntarily and in accordance to the law and accordingly overruled the objection. CASE OF THE ACCUSED OR DEFENCE: At the close of case of the prosecution, I determined as the trial judge and pursuant to section 174 of the Criminal Procedure Act, 1960, Act 30, that the case of the prosecution has succeeded to raise or establish a prima facie against the accused person to warrant answers or explanation from him to avoid a ruling of the court against him on the charge or issue. Based on that, the accused was asked to open his defence pursuant to section 174 of Act 30/1960 (supra). In the case of Gligah & Atiso v The Republic (2010) SCGLR 870 @879, the Supreme Court of Ghana held, inter alia, as follows: “In other words whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused is called upon to give his side of the story”. The Accused person in his sworn defence essentially admitted having a sexual relationship with the victim which resulted in a pregnancy. However his defence was that when he met and proposed love to the victim, the victim informed him she was seventeen ( 17 ) years of age. In addition, he told the court that following his arrest, he managed to speak to the biological mother of the victim who told him the victim was born on 3rd November, 2003. Meanwhile in terms of the charge of unlawful entry, his defence was that he never climbed the wall to the house of the Complainant to have sexual intercourse with the victim. The Accused called 3 witnesses in support of his defence. The first was his father. He was Nana Asiedu Gabriel. He testified that following the arrest of the Accused and in the course of the trial, he managed to speak to the biological mother of the victim who gave the victim’s date of birth to be 3rd November, 2003. The second witness for the Accused was Dorcas Yeboah. She identified herself to be the biological mother of the victim. According to her, she got pregnant in 2003 and eventually gave birth to the victim on 3rd November, 2003. She stated that initially the father of the victim refused to take up responsibilities towards the victim, compelling her father to take care of the victim for the first seven years of the victim’s life. Subsequently, the biological father of the victim came for her only for him to send the victim live with the Complainant and other relatives at Abetifi. According to her, the Complainant and the others at Abetifi could have been mistaken about the age of the victim at the time they enrolled her in school. She had the birth certificate of the victim but same was lost in a fire outbreak sole time ago. His last witness was the victim, Rita Dedaa. She testified to say that she had been coerced in giving the witness statement submitted by the prosecution to implicate the Accused. She denied that the Accused ever came into the house to have sexual intercourse with but rather went out to meet the Accused. She insisted that her guardians did not know her real age at the time she was enrolled into school. According to her, her mother upon consultation, gave her date of birth to be 3rd November, 2003, showing she was more than sixteen years at the time she had sexual intercourse with the Accused. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW The position of the law, both under the Common Law and the 1992 Constitution, is that the prosecution assumes the onus of proof to prove the guilt of an accused beyond reasonable doubt. See Article 19 ( 2 ) ( c ) of the 1992 Constitution ( supra ). Meanwhile, statutorily, under section 15 of the Evidence Act, 1975, NRCD 323, the law is that; “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. Similarly in the popular English criminal case of Woolmington v DPP [1935] AC 462, Lord Sankey (as he then was) stated or delivered of himself as follows in these timeless words: “Throughout the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to ….the defence of insanity and subject also to any statutory exception…… No matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained”. The prosecution in this case was therefore required to prove with credible evidence and beyond reasonable doubt that the accused, Layloid Ampomah, defiled the victim, Rita Dedaa, on the alleged date, place and time at Ntomem village. In spite of this onerous burden of proof on the prosecution, the law is that the accused or defence, in a criminal trial does not generally assume any burden of proof. In the same Woolmington v DPP case (supra), Lord Sankey (as he then was) very well summarized the extent of the onus of proof on the accused or defence as follows: “….whiles the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence” See also the case of Commissioner of Police v Antwi [1961] GLR 408, SC, where it was held inter alia that an accused person is not required to prove anything, save to and at best to merely raise a reasonable doubt as to his guilt. Therefore, the prosecution had it all to do in this case. Before I go on to address the main issue in this judgment, it is important to undertake a short discussion on the nature of the offence in this case: Which is what is meant by defilement under our law? This is to enable the court appreciate and determine if the evidence of the prosecution or even on the whole of the evidence, proved the charge of defilement against the accused as the law is also that: “…….the prosecution has a duty to prove the essential of ingredients of the offence with which the appellant and the others have been charged beyond reasonable doubt”. See that case of Frempong alias Iboman v The Republic [2012] 1 SCGLR 297, per Dotse JSC. By way of a useful reminder, the Accused is before the court on one count of defilement contrary to section 101 of Act 29/1960 (supra ). That provision reads as follows: “Defilement of child under sixteen years of age: Section 101 ( 1 ): For the purposes of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age. ( 2 ): A person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent, commits a criminal offence and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty- five years”. In the case of Eric Asante v The Republic, Unreported, Civil Appeal No. J3/7/2013, delivered on 26th January, 2017, the Supreme Court of Ghana, per Pwamang JSC, held as follows to state the ingredients of the offence of defilement: 1. That the victim is under the age of sixteen years ( as provided for in Act 554 ). 2. That someone had sexual intercourse with her. 3. That person is the Accused. So that in the case of Republic v Yeboah [ 1968 ] GLR 248, in which the accused defiled a nine year old girl who failed to make a report of the incident, it was held that even if that fact indicated that she was a consenting victim, her consent was not of consequence. I would now proceed and apply the above authorities to the facts of the instant case and indeed the very evidence before me, and determine to what extent the prosecution have succeeded to prove their case against the Accused on the one count of defilement beyond reasonable doubt. In doing that it is useful to remind ourselves about the explanation given in the commentary to section 11 ( 4 ) of the Evidence Act in respect of the burden of producing evidence: “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps the test of sufficiency. It is for this reason that the phrase “ on all the evidence” is included in each of the tests of sufficiency”. I have had to quote the above explanation in the commentary to section 11 ( 4 ) of Evidence Act advisedly: And it is because the Accused in his out-of-court unsworn statements ( cautioned statement and charge statement ) has admitted that he has had sexual intercourse with the victim in his room after he had proposed love to her. Under normal circumstances, in a case of this nature- and as the above ingredients for defilement indicate on the authorities- the prosecution would have as part of discharging their duty to prove the identity of the Accused, in showing that it was the Accused who defiled or had sexual intercourse with the victim. Ordinarily, the law is that where the identity of the accused was in issue, there can be no better proof of his identity than the evidence of the person who has sworn to have seen him committing the crime. See the case of Yamoah and Razak v The Republic ( 2012 ) 2 SCGLR 750. However, in this case, it is clear that the prosecution has been relieved of the duty of leading evidence to show that the Accused had sexual intercourse with the victim. The accused admitted having sexual intercourse with the victim, that resulted in a pregnancy as per the cautioned statement in evidence. Based on the above, the authorities would show that the Accused based on his statements in the Exhibits A and B has relieved the prosecution of the duty of the prosecution to prove two of the ingredients of the offence of defilement as stated by Pwamang JSC in the Eric Asante v The Republic case ( supra )- which are in terms of the fact that someone had sex with the victim and that person identified to be the Accused. Therefore the act of the sexual intercourse and the involvement of the Accused have been supplied by the Accused without the prosecution even lifting a finger. As has been stated above, the Exhibits A and B were admitted into evidence at the end of the mini trial after the court concluded that they were the voluntary confession of the Accused. In addition, there is the sworn evidence of the Accused in the witness box in court- which has been captured above and it would be superfluous to restate it again. But it essentially was consistent with his unsworn evidence; which is that he admitted having sexual intercourse with the victim and impregnating her in the process. Legal consequences flowed from that. In the case of Agogrobisah v The Republic ( 1995-96 ) GLR 557, Acquah JA ( as he then was ), held inter alia thus; “I concede that a free and voluntary confession of guilt by an Accused, whether in court or outside the courtroom, if it is direct and positive, and is duly made and satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence…”. See also the case of Ayobi v The Republic ( 1992-93 ) 2 GBR 769 at 777, CA, per Amuah JA ( as he then was). However, despite the above, it is still clear that the prosecution still has one more crucial ingredient of the defilement charge to prove against the Accused: It is about the age of the victim. In proving that, the victim, as PW2, in her witness statement gave her age as fourteen ( 14 ) years. But as has been said above, she subsequently came into the box and on oath recanted or denied the contents of her witness statement. The law on such conduct of the victim and its effect of all the foregoing is that generally, a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement; unless that witness is able to offer reasonable explanation for the said inconsistency. See the case of Gyabaah v The Republic ( 1984-86 ) 2 GLR 461. The victim gave an explanation for the said inconsistency which the court will evaluate later on in the judgment within the context of the evidence given by her mother. Beyond the evidence of the PW1, the prosecution tendered into evidence a copy of the class attendance register of the victim, which recorded the date of the victim to be November, 2007; making the victim 14 years of age at the time of the impugned sexual intercourse. The court had found that document credible enough, at least it was not a self-serving document. The court thus found it enough to raise a prima facie evidence of the age of the victim. That satisfied section 19 ( 2 ) of the Juvenile Justice Act, 2003z ( Act 653 ); which states thus; “ In the absence of a birth certificate, or a baptismal certificate, a certificate signed by a medical officer as to the age of a person below eighteen years of age shall be evidence of that age before …… without proof of signature unless the court directs otherwise”. With the establishment of the prima facie evidence on the age of the victim, I was required to consider the defence or explanations of the Accused as required of me as the trial judge as was held in the case of Atta v Commissioner of Police ( 1963 ) 2 GLR 460, SC. The accused explained that the victim told him she was 17 years of age at the time he proposed to her in 2020. He had also added that he subsequently spoke to the mother of the victim who told him the victim was born on 3rd November, 2003. The victim was also called by the Accused and she testified to say that her guardians ( the Complainant and Mr. Alex Danso ) got her age wrong when they enrolled her in school and that following the incident, her mother was consulted who gave her date of birth to be November, 2003; adding that even her sibling who comes after her was born in 2006. The mother of the victim also testified to support the defence of the Accused; saying that the victim was born on 3rd November, 2003. The court is of the considered opinion and holds that the explanations of the Accused himself and those given by his witnesses, especially by the biological mother of the victim were- even if not believable- reasonably probably or reasonably true enough to raise a reasonable doubt in the mind of the court as to the age of the victim. The upshot of all the above is that there is some reasonable doubt raised by the defence of the Accused. There is a reasonable doubt as to the age of the victim at the time of the sexual intercourse. That necessarily resolves into the prosecution failing in proving the age of the victim beyond reasonable doubt. Proof beyond reasonable doubt has been defined in 1850 by Chief Justice Lemuel Shaw, one time Chief Justice of the Massachusset Supreme Court of the United States as follows: ‘it is the condition of mind which exists when the jurors cannot say that they feel an abiding conviction, a moral certainty of the truth of the charge. For it is not sufficient for the prosecutor to establish a probability, even though a strong one according to the doctrine of chances. He must establish the fact to a moral certainty, a certainty that convinces the understanding, satisfies the reason and directs the judgment... “ Evidence from and by the Accused and his witnesses- including reasonable inferences that tilts in favour of the Accused- and which a fortiori raise a reasonable doubt must go in favour of the Accused. In this case, can it be said with moral certainty- from the whole of the evidence before the court that the victim truly was less than sixteen years at that time? I guess not. The received learning is that in such a situation, especially in criminal proceedings, the doubt should be resolved in favour of the Accused. Byrne J (as he then was) in the case of R v Patel (1951) 2 ALL ER 29 at 31, CCA, summed up this hallowed legal principle in criminal proceedings as follows: “The Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one. In such a case, the court [should] lean to the more merciful course, since it is better to release the guilty than to run the risk of convicting the innocent”. In the premises, the court decides that the prosecution failed to prove beyond reasonable doubt that the victim was less than sixteen years of age at the time of the sexual intercourse with the Accused. For failing to prove thls essential ingredient of the offence of defilement, the court would accordingly find and hold that the prosecution failed to prove the guilt of the Accused beyond reasonable on the defilement charge against the Accused. The Accused, is hereby acquitted and discharged on the sole count of defilement. He is not guilty. Meanwhile, the second charge or count is unlawful entry; which is provided for under section 152 of Act 29/1960 ( supra ) as follows; “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony”. However, the immediately succeeding section 153 explains the offence of unlawful entry thus; “A person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right, or by the consent of any other person able to give consent for the purposes for which that person enters”. From the above provisions, it appears that for the prosecution to succeed at obtaining conviction for the offence of unlawful entry, the prosecution must prove or establish beyond reasonable doubt that a person charged for the offence entered the building or premises not only in the absence of exercise of any lawful right or by the consent of any person able to give consent, but it must also be proved that the person charged entered the room or building with the intention to commit a criminal offence. So that in the case of Kanjarga v The State ( 1965 ) GLR 479, SC, it happened that a servant who broke into his master’s room and made away with the master’s property, was convicted of stealing and unlawful entry. His appeal against the conviction for unlawful entry was allowed on the grounds that the servant had access to the room in the performance of his servant duties. It was held accordingly that the prosecution had failed to establish that the appellant entered the room with the intention of committing a crime. From the evidence, the court accepts the version of the prosecution that the Accused did enter the premises of the Alex Danso to have sexual intercourse with the victim. However, the court finds and holds that as the evidence has proved that the Accused did not commit the offence of defilement, then by extension the entry of the Accused into the house in question to have sexual intercourse with her could not have been for a criminal purpose. Besides, the Accused entered the house with the consent of the victim. The court thus finds and holds that the prosecution failed to prove the guilt of the accused person beyond reasonable doubt on the unlawful entry charge. The Accused is also acquitted and discharged on the count. He is not guilty. He is to be released from lawful police custody. …………. STEPHEN KUMI, ESQ CIRCUIT JUDGE. s.k… LEGAL REPRESENTATION: Chief Inspector Beatrice Larbi for The Republic present. Paul Dzadey, Esq, for the Accused person present.