Republic Vrs Ebenezer Afanu [2022] GHACC 164 (15 September 2022)

IN THE CIRCUIT COURT 1, BEFORE HER HONOUR JUDGE DORA G. A. INKUMSAH ESHUN SITTING ON THURSDAY THE 15TH DAY OF SEPTEMBER SUIT NO: D6/18/2022 THE REPUBLIC V. EBENEZER AFANU RULING ON VOIR DIRE The accused, who is charged with defilement of a female child under 16 years contrary to section 101(2) of the Criminal and Other Offences Act, 1960 (Act 29), objected to the tendering of the investigation caution statement and charged caution statement because he denied stating that he fondled the victim’s breast, inserted his penis into her vagina etc. Under section 120 of the Evidence Act, 1975 (NRCD 323), a confession statement is inadmissible unless it was made by the accused in the presence of an independent witness who can understand the language spoken by the accused and can read and understand the language in which the statement was made. The independent witness must certify that the statement was voluntarily made in their presence and the contents were fully understood by the accused. An involuntary statement is a statement made, a) while the accused was mentally, physically or physiologically incapacitated, b) where the accused was induced to make the statement by being subjected to cruel or inhuman conditions or the infliction of physical suffering by a public officer with a direct interest in the outcome of the action or on their direction or request, or c) where the accused was induced to make the statement falsely by a threat or promise of a public officer with a direct interest in the outcome of the action or on their direction or request. In the course of the voir dire the investigator and independent witness insisted the accused made the confession, which was vehemently denied by the accused. The investigator admitted that she knew the accused is Ewe and that there are interpreters at the police station – however she did not deem it necessary to use an Ewe interpreter and decided to take his statement in Twi because “he expressed himself well in Twi” so she assumed the accused understood what she explained to him in Twi. At the end of the Investigation Caution Statement, the following paragraphs are written; (1) “I hereby certify that I have read over and explained the content of this document to the one whose name is annexed and he appeared to understand and approved of it”. (2) Then, “I, Christiana Manu of House Number Adenta hereby certify that the above statement was voluntarily (were read over to him) made by suspect Ebenezer Afanu in my presence and that the contents were read over to him, and he appeared to understand its contents and approved of them”. These statements were repeated in the charged caution statement. The accused testified that no one asked him if he wished to speak Ewe and vociferously insisted that the Investigation Caution Statement and Charged Caution Statement were not read back to him because, if they were, he would have challenged the inclusion of the words stating that he admitted to having sex with the victim. The court also notes that initially, the prosecution informed the court the accused spoke Twi and it was noted on the docket. During cross-examination, it became very apparent that the accused could not adequately express himself in Twi and his language was changed to Ewe on 24th May 2022. The witness statement of PW1 was read back to him, line by line in Ewe, as he indicated he could not understand it, to assist him cross- examine the witness. The standard for the understanding of a declarant of a document written on their behalf is lower in a civil jurat – where the declarant may “appear to understand” the document’s contents, than in a criminal jurat – where the accused must “fully understand” the contents of the statement, as required by section 120(4) of NRCD 323. The accused person also put it to the investigator and independent witness that he told them he took the victim to his room, but he did not have sex with her, after the investigator asked him whether he had had sex with the victim. In his own evidence in the voir dire, the accused testified that after making this denial to the investigator and independent witness, he asked the investigator to find out from the victim, if it was alleged he had sex with her, whether she might have passed by another man’s house. However, the investigator said he should keep quiet because he was the one the complaint was lodged against. He also put it to the independent witness that after denying he had sex with the victim during the investigator’s questioning, the investigator said if he had not had sex with the victim, she would not have pointed him out. The court makes the following findings from the evidence in the voir dire; (a) The Investigation Caution Statement and Charged Caution Statement were not taken or read back to the accused in Ewe, his mother tongue. (b) The investigator made no effort to determine whether the accused fully understood the language in which the statements were taken. (c) The investigator made no attempt to provide the accused with an interpreter for his mother tongue – Ewe, knowing he was Ewe and that interpreters were available. (d) The accused did not make the statement that he had sex with the victim and his statement was induced by a threat from the Investigator who has an interest in the outcome of the action, simply because he was the one reported by the complainant as having committed the offence, and (e) The Investigation Caution Statement and Charged Caution Statement were not read back to the accused in any language as the accused stated that he would have objected to the confession statement if it was read back to him. For these reasons the Investigation Caution Statement and Charged Caution Statement are inadmissible and rejected. The case is adjourned to September 22, 2022, to conclude the trial. ORDER (SGD) DORA G. A. INKUMSAH ESHUN CIRCUIT JUDGE Ruling – Voir Dire The Rep v Ebenezer Afanu 5