Republic Vrs Krampah and Another [2022] GHACC 144 (7 November 2022)

BEFORE HER HONOUR GLORIA N. B. LARYEA SITTING AS CIRCUIT COURT JUDGE AT THE CIRCUIT COURT, MANKESSIM ON THE 7TH DAY OF NOVEMBER, 2022. Suit No.: B6/25/2021 THE REPUBLIC Vrs. 1. JUSTICE KOFI KRAMPAH ... 1ST ACCUSED PERSON 2. GRACE APPIAH Alias EKUA PENTOP ... 2nd ACCUSED PERSON J. E Tekyi for the 1st Accused Person JUDGMENT On 14TH June, 2021, the two accused persons in this case were arraigned before this honourable Court, on separate counts of offenses under the Cyber Security Act, 2020 (Act 1038). The 1st accused was charged on two counts namely; 1. sexual extortion contrary to section 66 (1) of the Cyber Security Act, 2020 (Act 1038); and 2. non-consensual sharing of intimate image contrary to section 67(1) of the Cyber Security Act, 2020 (Act 1038). The 2nd accused was charged with the non-consensual sharing of intimate image contrary to section 67(1) of the Cyber Security Act, 2020 (Act 1038). The accused persons maintained their innocence on all the aforementioned charges. The relevant circumstances connected with the offenses for which the accused persons were charged can be briefly stated. According to prosecution, the 1st and 2nd accused persons were involved in an amorous relationship. This relationship succeeded that of the relationship between the 1st accused and the survivor. During the course of their relationship, the survivor sent the 1st accused her nude videos and requested that he deleted them immediately after viewing. The 1st accused failed to adhere to the instruction accompanying the nude video. The further facts as presented by prosecution were that the 1st accused and the survivor broke up in 2019 and in March, 2020 she received threats from a texter using MTN number 0559556439. The substance of the threats was that if the survivor refused to send an amount of GHC 200.00 to him in addition to more nude videos and offering him sexual gratification, the texter would release the nude video of the survivor onto social media. The threat was repeated with more intensity on 18th March, 2021. When the survivor ignored the threats, the attention of the texter was re-directed to the father of the survivor, the complainant in the case. The texter sent the nude video of the survivor to the complainant. The complainant and the survivor conducted their own investigations which unearthed the name Ekua Pentop, the alias of the 2nd accused person as the bearer of 0559556439. Investigations further revealed that the accused persons were in a relationship. The 1st accused had used the SIM card of the 2nd accused to circulate the nude videos and also threaten the survivor. He then returned the SIM card to the 2nd accused and warned her not to pick up calls on the number as he had used the SIM card to blackmail some people. He directed the 2nd accused to throw away the SIM card. The 1st accused subsequently sent the 2nd accused the nude videos on her new number. The 2nd accused who was nursing a grudge against the survivor also sent the nude videos to her friend. When the 1st accused got wind of a possible arrest, he threatened the 2nd accused not to identify him as the originator of the nude videos on social media. In order to succeed on the charges, prosecution must prove the aforementioned charges so that a trier of fact will have no reasonable doubt that they were perpetuated by the accused persons; see the Republic v. Francis Ike Uyanwune [2013] 58 GMJ 162 at 181- 182. In order to achieve this prosecution must endeavour to establish all the ingredients of sexual extortion and non-consensual sharing of sharing of intimate image contrary to section 66(1) and 67(1) of the Cyber Security Act, 2020 (Act 1038) respectively. The evidence in support of the two counts was presented by four prosecution witnesses. The complainant (PW1) testified that on 18th March, 2021 at about 6:23pm he received a whatsapp message from MTN No. 0559556439. The person inquired if he knew who he was chatting with. When PW1 responded in the negative, the person informed him of his possession of the nude videos of his daughter, the survivor in this case. The person decided to send him a couple of videos via whatsapp so that PW1 could confirm the truth of his story. The person declared that he would leak the said videos online. The person refused to disclose his identity. PW1 recalled that he attempted severally to call the person who had chatted him but he did not pick. He then informed the survivor of the incident and sent the number to her. The survivor confirmed that the same number had chatted with her while concealing his identity. PW1 further disclosed to the Court that his own investigations at the MTN office revealed that the name used to register the number that chatted them was Ekua Pentop, the alias of the 2nd accused. The survivor also confessed that she sent the nude videos to the 1st accused while they were in a relationship. The daughter endorsed the testimony of the father. PW2, the survivor told the Court that for two years she was in a relationship with the 1st accused. It was during that period (2019) that she sent the 1st accused her nude video. At the time, the 1st accused was in Accra while she was in Brakwa. She called the 1st accused after sending him her nude videos and instructed him to delete same after watching. The 1st accused assured her he had deleted the nude videos. It turned out the 1st accused had not deleted the nude videos when he sent them back to her after a misunderstanding. PW2 continued by stating that the relationship was over early 2020. Then in March 2020, she received a text message from MTN number 0594801765. The message was that he had her nude videos and demanded an amount of GCH 200.00, more nude videos and sex otherwise he will expose her to the world. The demands persisted but she ignored him. She called the 1st accused to inquire whether he knew anything about these threats. He denied any knowledge of the said threats. Later the person who had threatened her created a whatsapp group and added the 1st accused and herself. He then released the videos on that whatsapp group. After this incident PW1, her father informed her of the threats from MTN No. 0559556439. She told her father the number was unknown to her. Three days later the same MTN No. 0559556439 sent her nude videos to her friend, one Ellen. She undertook her own investigations with the number PW1, her father gave her being 0559556439. Her findings were that the SIM borne the name of Ekua Pentop, the alias of the 2nd accused. The said friend of PW2, Ellen who featured in the evidence of PW2 appeared as PW3. She recounted that on 20th March, 2021, a friend by the name Evelyn requested to give her phone number to a sister to send some videos to her. She obliged and she received the nude videos of PW2 who was also her cousin. She notified PW1 and PW2 of the videos. PW3 said she also called the sender of the nude videos and asked her who sent her the said videos. The person identified the 2nd accused as the one who sent the videos. The investigator concluded prosecution’s case by tendering into evidence the caution and charge statements of the accused persons. According to PW4, after investigations it came to light that the 1st accused used the MTN number of the 2nd accused being 0559556439 to circulate the nude videos of PW2 on social media and among some of his friends. After the deed was done, the 1st accused instructed the 2nd accused to destroy the sim card. The 2nd accused obliged and obtained a Vodafone sim onto which she transferred the nude videos. The 2nd accused then sent the nude videos to some of her friends including a witness in this case. When the defense opened, they were clearly divided. The 1st accused in his defense gave a version of facts that was substantially varied from that of the 2nd accused. According to the 1st accused version of the facts, PW1 was always opposed to the relationship he had with PW2. The 1st accused’s mother therefore advised him to travel to Accra until the tension with the father of PW2 diffused. It was against this background that he sought refuge in Tema. While in Tema, he received information that PW2 then his girlfriend had spent the night with one of his friend. She confronted PW2 and she admitted same. He switched off his phone for a while. When he switched it back on, he was greeted by the nude videos of PW2 on whatsapp. He returned to Brakwa in December and deleted the videos. The 1st accused rejected the allegation that he had called PW1 in March 2021. He never had his number not even when he was in a relationship with his daughter. He denied the charge of sexual extortion or anything to do with the circulation of the nude videos of PW2 including using the number of the 2nd accused in broadcasting the videos. The account of the 2nd accused was damming to the stance of innocence assumed by the 1st accused. The material aspects of the testimony of the 2nd accused were that when she began the relationship with the 1st accused he sent her the nude videos of PW2. After watching the videos, the 2nd accused said she visited her friend one Ellen Nkrumah. This friend requested to use her phone for snap chat. In the course of using her mobile phone, this friend took the videos from her phone. When she got home Ellen asked her who sent her the videos. Her response was that it was the 1st accused who sent same to her. After this, the 2nd accused told the Court she travelled to Kasoa. While she was there, the 1st accused cautioned her not to pick up calls with her number because he had used the said number to release the nude videos. The calls came as predicted. They were so incessant that the 1st accused directed her to dispose of the SIM card and she obliged. When the 1st accused sensed his impending arrest he warned her not to disclose that he sent her the nude videos. In conclusion she was totally innocent of the 2nd count. After the trial the Court was saddled with the determination of the guilt or otherwise of the accused persons as portrayed by the evidence and as proscribed by the law. Count one Whether or not the 1st accused sexually extorted the survivor, PW2 in the instant case? On the first count, the first accused was singularly charged with the sexual extortion of the survivor. The law of sexual extortion under the Cyber Security Act, 2020 is explained in section 66(1) as follows: “66(1). A person shall not threaten to distribute by post, email, text or transmit, by electronic means or otherwise, a private image or moving images of the other person engaged in sexually explicit conduct, with the specific intent to (a) harass, threaten, coerce, intimidate or exert any undue influence on the person, especially to extort money or other consideration or to compel the victim to engage in unwanted sexual activity; or (b) actually extort money or other consideration or compel the victim to engage in unwanted sexual activity. In order to succeed on this count per the facts presented by the prosecution, they must establish the following ingredients of sexual extortion against the 1st accused person; 1. that the 1st accused threaten to distribute by electronic means in this case Whatsapp, a social media platform, the nude videos or photographs of PW2; and 2. That the 1st accused’s intent in threatening her was to extort money or compel PW2 to engage in unwanted sexual activity. With regards to satisfying the above ingredients the evidence of prosecution was principally elicited from PW1 and PW2. Both father and daughter gave evidence of having received threats from a texter using MTN No. 0559556439 and 0594801765 respectively. Though prosecution was able to demonstrate that the first MTN No. 0559556439 was registered under the alias of the 2nd accused, a fact that the 2nd accused has conceded, the second MTN No. 0594802765 was left hanging. This second MTN No. 0594802765 which PW2 claims she received her threatening text messages from was never tied to any of the accused persons particularly the 1st accused. The prosecution was emphatic and had built their whole case around the fact the MTN No. 0559556439 was employed to threaten the survivor and then her father and yet those text messages were never submitted to the scrutiny of the Court. This is a case where the 1st accused has denied ever sending any threats or videos. The prosecution in the face of this strong denial of the charge is required not to leave any stone unturned in its quest to prove the guilt of the 1st accused on count one. The foundation stone upon which count one is mounted was not even presented to the Court in the first place. The alleged threats that issued from MTN Nos. O559556439 and 0594802765 were never laid before the Court. The entirety of the exhibits presented by the prosecution consisted of the caution and charge statements of the accused persons in which they denied the charges and a pendrive containing the nude videos at the center of this trial. Again the Court inquires where is the text messages directed towards PW1 from the MTN number that is registered in the name of Ekua Pentop and to which the 1st accused purportedly had access to? Had the threats been given by way of a voice call, the Court would have appreciated the difficulty is procuring the conversation but in the case of text message, the Prosecution could have printed an extract from the phone of PW1. As noted earlier PW2, the survivor who is actually the one portrayed in the videos mentioned that she received threatening text messages from MTN No. 0594801765. The prosecution had failed to produce a shred of evidence upon which the Court can infer that there is a nexus between the 1st accused and this number. The evidence of the investigator is that after the 2nd accused disposed of her MTN No. 0559556439 sim card at the behest of the 1st accused, she acquired a Vodafone sim card. I take judicial notice of the fact that a number beginning with the digits 059 is an MTN number and not a Vodafone number. It could therefore not be the case that the number 0594801765 which threaten the survivor is the Vodafone number the 2nd accused later acquired and to which the 1st accused had access. Furthermore, there were glaring inconsistences in the case of the prosecution. While in the facts, prosecution stated that it was MTN No. 0559556439 that was used to threaten PW2, the survivor, PW2 in her own evidence in chief stated that the number used to make demands on her was MTN No. 0594802765. The inconsistencies persisted between the testimonies of PW1 (the complainant) and PW2 (the survivor). According to PW1, he informed his daughter of the threats he had received from MTN No. 0559556439 and PW2 had confirmed that she had also being threatened by the same number. However in the evidence of PW2 she stated that when her father mentioned the MTN number that had threatened him, the number was unknown to her. This is so because through- out her evidence in chief PW2 had maintained that the number that contacted her was MTN No. 0594802765 and not 05595564399( the number that contacted her father). Multitude of questions remained unanswered. Where are the offending text messages, whose number is MTN No. 0594801765 which was used to threaten the survivor allegedly? The effect of all these crucial unanswered questions is a lacuna in the case of the prosecution which the Court cannot fill with assumptions and speculations. The prosecution will not be pardoned. They have the state machinery at their disposal and could have found out the identity of the bearer of MTN No. 0594801765 whom the survivor claims threatened her with sexual extortion. It is important to note that under section 66 (1) the harassment or threats or coercion or intimidation must be directed to the person whose image is in the intimate video. This means that the prosecution must show that the threats were made directly to the survivor and not to her father or any other relative or close friends. The provision specifically mentions victim and no other. It follows that showing that threats were sent from the 2nd accused number 0559556439 to PW1 the father of the accused is of no importance to the case of the prosecution. The objective of prosecution should have been to establish that name behind MTN No. 0594801765. This being the number PW2 claims threatened her. The next step towards a successful conviction would have been to present an official document from MTN indicating the indeed the 1st accused or his agent was the face behind MTN No. 0594801765. The final step would have been to present a copy of the threatening text exchanged between MTN No. 0594801765 and the survivor. All these necessary steps eluded the prosecution. It must be remembered that the penalty for sexual extortion is a minimum ten years and a maximum twenty five years imprisonment. The Court would not just throw a man behind bars for at least ten years based on such an anemic prosecution case. It would not suffice to rely only on the testimonies of the complainant and his daughter, the survivor. This is a Court of law and of evidence. Cogent and impeachable evidence must be led to support the testimonies of the PW1 and PW2. As held in the famous case of Majolagbe v. Larbi [1959] GLR 190 at 192 (per Ollenu J as he then was); “proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way example by producing documents, description of things reference to other facts, instances or circumstances and his averment denied, he does not prove it by merely going into the witness box and repeating that on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of the facts and circumstances from which the Court can be satisfied that what he avers is true.” Apparently, prosecution failed to adhere to the above admonition. In the teeth of a direct denial of the offense by the 1st accused, the prosecution was expected to put forward the most compelling evidence and they did not. For the foregoing reasons, the Court cannot but find the 1st accused not guilty on Count 1. He is acquitted and discharged on Count 1. Count two Whether or not the 1st and 2nd accused persons engaged in the non-consensual sharing of the intimate image of PW2? In considering Count 2, it is imperative to turn to section 67(1) of the Cyber Security Act. The relevant provision stipulates as follows: 67 (1) a person shall not with intent to cause serious emotional distress, intentionally distribute or intentionally cause another person to distribute the intimate image or prohibited visual recording of another identifiable person without the consent of the person depicted in the intimate image and in respect of which, there was a reasonable expectation of privacy both at the time of the creation of the image or visual recording and at the time the offence was committed. Section 67(3) further explains the “serious emotional distress” intended by the accused persons under section 67(1). Section 67(3) states as follows; “for the purpose of this section, “serious emotional distress” includes any intentional conduct that results in mental reactions such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity as well as physical pain.” There is evidence from the 2nd accused that the 1st accused used her MTN No. 0559556439 for a period of time. He then returned the sim card to her with a warning that she did not pick any calls. When the calls became overwhelming, the 1st accused suggested that she throw away the SIM card and she did. This is the same number from which PW1 received the nude videos of his daughter. Clearly, the Court can conclude that the 1st accused did share the intimate image of the survivor without her consent. Admittedly, the survivor conceded to having sent the videos to the 1st accused voluntarily but it was under circumstances where there was a reasonable expectation of privacy. She instructed that he deleted them immediately. He ignored this instruction and rather sent it to the 2nd accused and others without the consent of the survivor. I find there is truth in the testimony of the 2nd accused and rely on same to find the 1st accused guilty of the non- consensual sharing of the intimate videos of the survivor. On the whole the 2nd accused came across as more credible than the 1st accused. I am emboldened by the case of SEY v THE REPUBLIC [1995-96] 1 GLR 60-80 in relying on the testimony of the 2nd accused against the 1st accused. It was held in SEY v THE REPUBLIC [Supra] that; “Furthermore, where a tribunal had to choose between two conflicting versions of two or more accomplices, the correct approach was to point out all of the pieces of evidence which favour or were against the credibility of all of the parties.” The 1st accused lost a great deal of credibility when in his caution statement he stated that he begged the one who threatened the survivor not to release the nude videos and yet the 1st accused himself did forward the video to the 2nd accused while they were in a relationship. It cannot be forgotten that the 1st accused instead of immediately deleting the nude videos per the request of the survivor kept it on his phone until he returned to Brakwa and claimed to have deleted them. These were the own words of the 1st accused. It is also necessary to refer to the Supreme Court case of Yirenkyi v. Republic [2016] 99 G. M. J 1 at page 57 in which the Supreme Court stated that the evidence on oath of a co- accused in a joint trial is evidence for all purposes including the purpose of being evidence against the accused. The Supreme Court further stated that the co-accused against whom the incriminating statement is made has the opportunity to discount the incriminating statement in cross–examination. In the instant case, Counsel for the 1st accused extensively cross examined the 2nd accused on her evidence implicating his client. At the end of the day, the testimony of the 2nd accused remained unshaken. The 1st accused took her sim card and later warned her to ignore calls to the number and finally instructed her to destroy the sim card. The most damaging piece of evidence against the 1st accused was the fact that he sent the 2nd accused the videos. That was the non-consensual sharing of the intimate images of the survivor. For the above reasons I find the 1st accused guilty on count 2. The same cannot be said for the 2nd accused. She has denied ever sending the videos to anyone. She admitted keeping the videos on her phone when the 1st accused sent them to her. She however claimed that a friend sent the videos from her phone without her knowledge. The Court need not believe an accused person but the Court is to consider whether the explanation of the accused is reasonable or not. Short of believing the defence of the accused, the Court has a duty to consider whether the defense is reasonably true or reasonably probable; see Mahamadu Lagos v. Commissioner of Police [1961] GLR 181, SC. It is prosecution’s case that the 2nd accused did send the nude videos to her friends and other persons because of an underlying grudge she held against the survivor. Yet not one of these persons was put in the witness box to testify to this fact. The best prosecution could do in this regard was to put PW3 in the witness box. The evidence of PW3 was that someone sent her the nude videos and when she asked that someone who sent her the videos, that someone mentioned the 2nd accused. Clearly the statement of that someone that the 2nd accused sent the videos to her is a hearsay statement and cannot be relied upon by a Court of law. That someone who claimed to have received the videos directly from the 2nd accused is a material witness against the 2nd accused. Her absence meant the case against the 2nd accused had collapsed. As a rule, prosecution is required to call all material or relevant witnesses whose evidence might resolve doubts in the case one way or the other and failure to call such a witness has been held to be fatal to the case of the prosecution; see the ancient case of R v Kuree (1941) 7 WACA 175. The insufficiency of the evidence against the 2nd accused calls that the Court finds her not guilty on count 2. She is hereby acquitted and discharged on count 2. Having found the 1st accused guilty on Count two, he convicted and sentenced as follows. In sentencing the 1st accused, he will be serving a deterrent custodial sentence. Acts of this nature that seek to degrade and rob a person of his dignity by exposing their nakedness to the world would not be tolerated by the Courts. On count two the 1st accused is sentenced to 18 months imprisonment. ……………………………………………… HH GLORIA N. B. LARYEA CIRCUIT COURT JUDGE 15