The Republic Vrs Clifford Amolga & 3ors. [2022] GHADC 29 (22 December 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON TUESDAY THE 22ND DAY OF NOVEMBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL- BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM PHILOMENA SACKEY AND MR. RICHARD TEGBEY AS PANEL MEMBERS SUIT NO. R16/33/2022 THE REPUBLIC VS 1. CLIFFORD AMOLGA 2. ESTHER ADONGO 3. BENARD FIAGBE (AT LARGE) 4. KASSIM MOHAMMED (AT LARGE) 1st Juvenile present with Father 2nd Juvenile present with Mother Complainant present. Chief Inspector Havor with Rebecca Ackerson for the Republic. Hamdiya Mohammed Esq. for Martin Kpebu Esq. for the Juvenile. RULING ON SUBMISSION OF NO CASE FILED BY COUNSEL ON BEHALF OF THE 1ST AND 2ND JUVENILES The Juveniles herein both aged Fourteen (14) years were charged with Two (2) Counts namely: i. Defilement: Contrary to Section 101(1) of the Criminal Offences Act, 1960 (Act 29). The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. ii. Abetment: Contrary to Section 20(1) of the Criminal Offences Act, 1960 (Act 29). On the 2nd day of June 2022, the Juveniles pleaded not guilty to the offences after same was read to them in Twi. The Prosecutor filed Three (3) Witness Statements of the Victim, the Victim’s mother and the Investigator. The Witness Statements were adopted as Evidence in Chief of the Witnesses and were duly cross-examined by the Counsel for the Juvenile. At the close of case of the Prosecution, Counsel for the Juvenile filed a submission of no case on behalf the Juveniles. It is trite learning that under Article 19(2) (c) of the 1992 Constitution, every one charged with a criminal offence is presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it is the duty of the Prosecution to prove the essential ingredients of the offence charged against 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 person will be called upon to give his side of the story. As stated by Lord Sankey in the leading case of Woolmington v. Director of Public Prosecutions [1935] A. C. 462; 25 Cr. App. R. 72, ‚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.‛ Thus, in a criminal trial and unless a statute otherwise states, the burden of proof is always on the Prosecution since it is the Prosecution that asserts a wrongdoing on the part of the accused person. Though this is a long standing position of the law, it can be said to be the direct effect of section 15(a) of the Evidence Act, 1975, NRCD 323 (hereinafter referred to as NRCD 323) which The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. provides 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.‛ Also, Section 11(2) of NRCD 323 with specific reference to criminal cases reads ‚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 reasonable doubt.‛ The duty of this court, in light of the Submission of no case filed by Counsel for the Juvenile, is to determine whether a prima facie case has been made against the Juveniles for them to open his defence. DETERMINATION: In the Supreme Court Case of MICHAEL ASAMOAH & ANOR V THE REPUBLIC (2017) SCGLR at page 4, the learned Adinyira JSC laid down the instances under which submission of no case must be upheld as follows; a. There had been no evidence to prove an essential element in the crime. b. The evidence adduced by the Prosecution had been so discredited as a result of cross-examination. c. The evidence was so manifestly unreliable that no tribunal of fact could reasonable convict upon it. d. The evidence was evenly balanced in the sense that it was susceptible to two (2) likely explanations, one consistent with guilt and one with innocence. Counsel for Juvenile in his Submission of no Case contends that there has been no evidence to prove the essential elements in the offences of defilement and abetment of crime to wit defilement. He further relied on the dictum of Dennis Adjei JA in the recently decided but unreported case of Aaron Kwesi Kaitoo vs. The Republic, Suit No.: H2/25/201/2017 dated 26th April, 2018, The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. where the position of the law on the grounds for a successful submission of no case and/or grounds upon which Prosecution shall be deemed to have failed to establish a prima facie case is was summarized into Four (4) grounds as follows; a) Where there has not been any evidence to prove an essential element in the crime charged. b) Where the evidence adduced by the Prosecution was discredited by the accused under cross examination that a court of law shall not rely on it to convict an accused. c) Where the evidence adduced by the Prosecution is manifestly unreliable that a Court of law cannot rely on it to convict the accused. d) Where the Prosecution failed to discharge the standard burden of proof at the close of its case and as a result of that the evidence adduced is susceptible to two likely interpretations, one may be consistent with the guilt of the accused and the other is consistent with the innocence of the accused.” Counsel further concluded by submitting that on the totality of the evidence provided by the Prosecution, it is incontestable that the Prosecution has failed to prove its case beyond reasonable doubt. To make a determination, the court shall delve into the charges and analyze same in light of the evidence of Prosecution, the burden to be discharged by Prosecution in accordance with law and the submission of no case filed by counsel for the Juvenile. Analysis The Charge Sheet states Count One as Defilement: Contrary to Section 101(1) of the Criminal Offences Act, 1960 (Act 29). The Particulars of Offence states that Clifford Amolga aged 16 years, Student: For that you on the 14th day of January 2022 and on 1st February 2022 at about 8pm and 7pm respectively at Nsakina in the The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. Greater Accra Region and within the jurisdiction of this court, you had sexual intercourse with Lydia Oduraa Kyei, a female aged 14 years. According to the Criminal Offences Act-1960 (Act 29), Section 101 of Act 29 ‘…. defilement is the natural or unnatural carnal knowledge of any child under sixteen years of age…..whoever naturally or unnaturally carnally knows any child under sixteen years of age, whether with or without his or her consent commits an offense…’ Defilement is therefore any sexual intercourse with a child under the age of 16 years old, with or without the child’s consent. It has also been stated that defilement is not restricted to an actual sexual act with a minor as it includes the involvement of immature children and adolescents in any sexual activity which these children do not fully comprehend and are thus unable to give informed consent. Thus, to establish that the 1st Juvenile committed the offence, the Prosecution must show the following; (a) The 1st Juvenile had sexual intercourse with the victim (b) the victim is less than Sixteen (16) years old. Prosecution’s Exhibit ‘L’ is the Birth Certificate of the victim herein which shows that the victim was born on 12th November 2006. This therefore implies that the victim was Fifteen (15) years old as at the time the incident is alleged to have been committed and as such the issue of consent is immaterial because the victim was not of age. The next point to establish is whether or not the 1st Juvenile had sexual intercourse with the victim and to prove this, it is trite that the Prosecution must show proof of penetration and proof that the 1st Juvenile was indeed properly identified as the perpetrator. To this end, the Prosecution filed Three (3) Witness Statements; PW1, PW2, PW3 and PW4 which are; the victim’s mother (complainant), the victim, and the Investigator respectively. The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. The evidence on record shows that PW1, the victim’s mother did not see and/or witness the victim being defiled as her testimony before this court appears to be based on what she was told. PW2, the victim herself in her Witness Statement testified that the 1st Juvenile had sexual intercourse with her, narrated all the series of events and was duly cross-examined. However, apart from PW2’s testimony, the Prosecution failed to call vital witnesses to corroborate the victim’s testimony. It is in evidence that other persons were aware of the defilement, such as Maxwell and Francis, who are friends of the 1st Juvenile and were said to be present during the alleged defilement but none of them was called upon to corroborate victim’s claim that she was defiled. Additionally, one Lawrencia Oforiwaa, who is a friend to PW2 and is alleged to have given some drugs to the victim to take after the incident was also not called in by the Prosecution to give her testimony. In short, the Prosecution failed to confirm or give support to PW2’s testimony by calling in other witnesses to corroborate PW1’s testimony. Section 7(1) of the Evidence Act, (1975) NRCD 323 defines corroboration to consist ‘…of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence’. Corroboration, according to Justice S. A. Brobbey in his book; Essentials of the Ghana Law of Evidence, 2014 at page 84 says ‘… is the information which connects, affirms, or makes more certain the relevant portions of previous or future evidence in such ways that it enables the court to believe that the second or corroborating evidence confirms the previous evidence and that confirmation makes the previous evidence true… Corroborative evidence tends, in some material particulars, to substantiate, validate, verify, confirm, affirm or support all or some relevant aspects of previous or future evidence.’ In the case of Banousin vs The Republic (2015-2016) 2 SCGLR at page 1256 held as follows: ‚… Prosecution have failed to call a vital and material The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. witness, and that is the friend of the complainant… the issue of corroboration sometimes in matters of rape like the instant one is very important and could tilt the scales of justice one way or the other.‛ Additionally, the learned Justice Brobbey stated further that ‘…corroboration may take the form of a documentary evidence...’ and as such, the Prosecution, in a bid to provide material evidence tendered in a General Medical Form, marked as Exhibit ‘C’ authored by one Dr. Mariam Baidua Asante, the Medical Officer at Oduman Polyclinic, Oduman-Accra. The said Dr. Asante is said to have examined the victim but the Prosecution failed to procure the attendance of the Medical Officer to court to testify. The said General Medical Form was issued by the Amasaman Police Station on the 7th of February 2022 and it indicated the date and time of the alleged defilement to be 1st of February 2022. The Medical Form failed to indicate the date and time of the Hospital Examination but further indicates the date of return to 7th February 2022. What this means is that, the alleged defilement is said to have taken place on the 1st of February, 2022 but it was not until the 7th of February 2022 that the victim was medically examined. The Medical Officer indeed noted on page 2 of the Medical Form that the incident happened ‘Six (6) days ago’ thus confirming the fact that the examination of the victim medically was done Six (6) days after the alleged incident. The Medical Officer again indicated on page 3 of the Medical Form that there was a successful penetration of the victim as well as ejaculation into the victim. The court, per the Medical Report does not doubt that there was indeed penetration and ejaculation but the court is of the considered opinion that a lot can happen within the Six (6) days, which are the days between when the alleged defilement took place and when the medical examination took place. As a result, the court finds it extremely difficult to conclude that The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. the penetration and ejaculation of the victim was by the 1st Juvenile herein. Further to that, the Medical Officer concluded the Medical Report by stating as follows; ‘…no bruising or reddening seen, hymen not seen…’ This statement made by the Medical Officer makes it extremely difficult for the court to conclude and/or link the 1st Juvenile to the alleged crime of defilement. Consequently, the totality of evidence provided by the Prosecution has failed to establish that the 1st Juvenile indeed defiled the victim as the evidence adduced is not sufficient enough to require the 1st Juvenile to make a defence. Count Two: The 2nd Juvenile was charged with the offence Abetment: Contrary to Section 20(1) of the Criminal Offences Act, 1960 (Act 29) and the Particulars of Offence states that ‘… for that you on the 01/02/2022 about 8pm at Nsakina in the Greater Accra Region and within the jurisdiction of this court, you did abet and aid Clifford Amolga to commit the offence of Defilement…’ Section 20 (1) Act 29 provides that ‚… A person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilities, encourages, or promotes, whether by personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by any other person, whether known or unknown, certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence...‛ It is Prosecution’s case that ‘whilst the 1st Juvenile was in the act of the sexual intercourse with victim, the 2nd Juvenile together with Two (2) others asked him to repeat the act in their presence and show them styles and he did whilst they looked on’. To prove that the 2nd Juvenile committed the offence, the court relies on the case of Commissioner of Police vs Sarpey and Nyamekye [1961] GLR 756 where the Judge held that ‘to convict a person of aiding and abetting it is The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. incumbent on the Prosecution to prove that the accused did any one of the acts mentioned...’. The Prosecution in this instant case has failed to establish a prima facie case against the 1st Juvenile and as such Count Two is unable to stand on its own and therefore crumbles naturally. SECTION 173 of Criminal and Other Offences Procedure Act, 1960(Act 30) provides that ‘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 the accused to make a defence, the Court shall, as to that particular charge, acquit the accused’. DECISION At the close of Prosecution’s case, the court finds that all the essential elements/ingredients of the offence have not been established and evidence so adduced by the Prosecution is not sufficient to secure a conviction of the Juveniles. The court therefore finds that no prima facie case has been made against the Juveniles herein to necessitate a defence from them. The Prosecution has failed to discharge the standard burden of proof at the close of its case and as a result of that the evidence adduced is susceptible to Two (2) likely interpretations, one consistent with the guilt of the Juveniles and the other is consistent with the innocence of the Juveniles. The Submission of no Case to Answer filed on behalf of the 1st and 2nd Juvenile is accordingly upheld. The Juveniles are hereby discharged unconditionally. …………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY MR. RICHARD TEGBEY PANEL MEMBER PANEL MEMBER The Republic vs Clifford Amolga, Esther Adongo and 2 Others at large. 10