Republic Vrs Daniel Sabah Kpobi [2022] GHACC 230 (3 October 2022)

1 IN THE CIRCUIT COURT HELD AT SOGAKOPE ON MONDAY, 10TH OCTOBER, 2022 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO.: CC 27/2022 THE REPUBLIC VRS EMMANUEL KUSORGBOR ACCUSED PERSON PRESENT CHIEF INSPECTOR JACOB AWIAGAH FOR THE REPUBLIC PRESENT JUDGEMENT The Accused person herein stands charged before this Honourable Court with the offence of Carnal Knowledge contrary to section 102 of the Criminal Offences Act, 1960 (Act 29). THE BRIEF FACTS OF THE CASE The brief facts of the case as presented by the prosecution were that the victim was a 40-year old mentally incapacitated female living at Akatsi with Grace Kaledzi and Esi Antwi, her niece who took care of her. The Accused person was a pupil teacher living in the same locality with the victim. The victim and her niece sleep in the same room on different beds. On the 23rd October, 2021 at about 8:00pm, the victim and her niece retired to bed and kept the light on. On the 24th October, 2021 at about 1:30am, the Accused person sneaked into the room of the victim and her niece and put off the light. The victim’s niece suddenly woke up and realized that the light had been switched off. She turned the light on and to her dismay, she saw the Accused person having sexual intercourse with the The Republic vrs Emmanuel Kusorgbor 2 victim on her bed which was on the floor. The witness out of fear quickly turned off the light without raising an alarm. The Accused person after satisfying himself left the room and the witness followed him. On the same day, the witness informed Grace and her uncle, Pascal about the ordeal the victim went through in the hands of the Accused person. On the 24th October, 2021, Pascal lodged a complaint at the Akatsi Police Station and a Police Medical Form was issued to him to send the victim to the hospital for examination and treatment which he did and submitted the report duly signed by a medical officer. The witness, Esi Antwi led the police to arrest the Accused person. At the trial, the prosecution called three (3) witnesses to testify in support of its case. PW1 (Pascal Sani) told the court that on the 24th October, 2021 at about 1:30am, he received a telephone call from his sister, Sefakor Sani who is Esi Antwi’s mother and was told that the Accused person had sexual intercourse with the victim. So he went to Akatsi to enquire from Esi Antwi as to what happened and she confirmed the incident to him. He then lodged a complaint at the Police Station and was issued with a Police Medical Form to send the victim to the hospital for examination and treatment. The testimony of PW2 (Esi Antwi) confirmed the facts as presented by the prosecution. PW3 (Detective Sergeant Patience Dzihlornu) investigated the case. PW3 relied on her Witness Statement together with the exhibits attached. The Republic vrs Emmanuel Kusorgbor 3 After the close of the case of the prosecution, the court ruled that a prima facie case had been made out against the Accused person, and so he was accordingly ordered to enter into his defence. THE CASE OF THE DEFENCE The Accused person in opening his defence testified himself and did not call any witness. The Accused person told the court that he did not have anything to do with the mentally unstable woman. That PW2 was his friend and has been giving her money. It is the case of the Accused person that one day he was sitting by the roadside with his touch phone when PW2 and two other young men approached him. That PW2 called him but he did not hear because he had earpiece in his ears. According to the Accused person, PW2 walked to him and snatched the phone from his hand and run away with it. The Accused person told the court that one of the boys threatened him with a knife and that PW2 refused to give phone to him anytime she asked her. So he told PW2 that he will report her to her family or the headmaster of her school. That PW2 pleaded with him that she will give him something. PW2 later brought a flat screen TV set to him. After PW2 brought the TV set, she told him that her uncle (PW1) was asking for the TV so he told her to come for it but she refused. The Accused person’s case was that one day he was going to school when PW1 came with the police to arrest him. That it was at the police station that he got to know that he had been accused of having sexual intercourse with a mentally unstable woman. At the end of the trial, this Court was enjoined to determine the following issues: i. Whether or not of whether or not the Accused person herein had natural or unnatural carnal knowledge of the victim (PW1). The Republic vrs Emmanuel Kusorgbor 4 ii. Whether or not the Accused person knew that the victim was mentally incapacitated at the time of the commission of the offence. The common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2)(c) of the 1992 Constitution which reads: ‚A person charged with a criminal offence shall ------- (c) be presumed to be innocent until he is proved or has pleaded guilty.‛ The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in sections 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on her to prove her innocence. At best she can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. In Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: ‚A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt‛. Section 102 of Act 29 reads: The Republic vrs Emmanuel Kusorgbor 5 ‚Whoever has carnal knowledge or has unnatural carnal knowledge of any idiot, imbecile or a mental patient in or under the care of a mental hospital whether with or without his or her consent, in circumstances which prove that the accused knew at the time of the commission of the offence that the person had a mental incapacity commits an offence and shall be liable on summary conviction to imprisonment for a term of not less than five or more than twenty-five years.‛ From the above section, the elements of the offence of Carnal Knowledge are: 1. A person has carnal knowledge or unnatural carnal knowledge of an idiot, imbecile or a mental patient in or under the care of a mental hospital; or 2. The circumstances of the case prove that person knew at the time the person had natural or unnatural carnal knowledge with the other person that the other person has a mental incapacity. Did the Accused person have carnal knowledge or unnatural carnal knowledge of the victim? On the evidence before this court, it was PW2 who alleged to have witnessed the Accused person having sexual intercourse with the victim in their room. The Accused person on the other hand, flatly denied having sexual intercourse with the victim. The Medical Report which was signed by Dr. K. A. Bonsu of the Akatsi District Hospital and tendered in evidence and marked as Exhibit ‘A’ indicated that the victim was mentally deranged. On examination of the victim, the doctor indicated as follows: “- …… a young woman with a psychological disorder but looks well. The Republic vrs Emmanuel Kusorgbor 6 - not well oriented. Perineal examination - normal - no tear - spermatozoa seen‛ Exhibit ‘A’ confirmed that there was penetration of the vagina of the victim by the penis of the person, although the medical report did not confirm the identity of the culprit. At least at that level of the medical examination, unless DNA comes in to match the spermatozoa found in the vagina of the victim to any man in whole wide world, the simple conclusion from the medical report showed that someone had carnal knowledge of the victim. However, in the further Cautioned Statement of the Accused person given to the police on the 3rd November, 2021, the Accused person admitted having sexual intercourse with the victim. The following is what he told the police: ‚I must say Mame Esi is my girlfriend since 31st December, 2018. During our relationship, I have been spending much money on her. She has even been moving with different boys that made me to be jealous. So one day, I told her she has to pay for all that I have been giving her. There, she promised of giving me something. On Sunday, 24/10/2021 about 3:30am, I went to attend to natures call at my grandmother, Amevuvor Felicia’s house. That on my return, I saw my said girlfriend standing with a different boy at the entrance of their gate chatting. I drew closer to them and the boy took to his heels. I questioned her of who the boy was to her. She told me the boy was her friend. I told her she has deceived me for long. That if she was having something she should give it to me that very day. Because, I realized that the money I have spent on her The Republic vrs Emmanuel Kusorgbor 7 was almost GH₵2,500.00. She told me she has a T. V. in her room and that it will be the only thing she can give to me. I asked whether the said TV belongs to her and she said yes. There, she led me to the house and we entered her room. When we entered the room, I saw a certain woman sleeping on her student mattress in the room. I again saw the promised TV fixed against the wall in the room. We then sat on Mame Esi’s bed and started our love conversations. My penis jaculated and I demanded for sex from her. She rejected my offer meanwhile I was highly jaculated. She begun to laugh at me and as I saw her aunty who was lying side way facing the wall as her back was facing us. I realized that she was not wearing pant, while she was wearing some straight dress to her hips area. As I continued looking at her buttocks and part of her vagina, I was highly and totally jaculated and I thought it wise to rather have sex with the said woman who she claimed as he aunty. So, as I was having sexual intercourse with her aunty, she was sitting on her bed looking at me. She then got up and off the light in the room. After satisfying myself, I called on my said girlfriend. She was only laughing at me and there she told me I should take the TV and leave the room for them. The moment she handed over the TV to me, she escorted me to the entrance and I left with the TV. So in short, I had sexual intercourse with the woman but I never knew she was not mentally well. I am pleading with the police to forgive me.‛ A careful scrutiny of this statement shows that it was taken in compliance with section 120 of the Evidence Act, 1975 (NRCD 323). Akamba JSC in the case of Ekow Russel v. The Republic [2016] 102 GMJ 124 SC, stated and I quote: ‚……….. A confession is an acknowledgement in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By The Republic vrs Emmanuel Kusorgbor 8 its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without fear, intimidation, coercion, promises or favours ……‛ (Emphasis mine) The Accused person therefore had sexual intercourse with the victim. At this point, the question to ask; Did the Accused person know that the victim was a mentally unstable person? The Accused person by his Further Cautioned Statement to the police as reproduced above knew that the victim was the aunty of PW2. Would a reasonable man have had sexual intercourse with a sane aunty of his girlfriend in the same room in her presence? The court can only infer from the conduct of the Accused person that he knew that the victim was mentally deranged and so he jumped on her to satisfy his sexual desire knowing very well that the insanity on the part of the victim will not make it possible for him to be identified. The court will not be far from right to say that PW2 encouraged the Accused person to have sexual intercourse with the mentally deranged victim. It is therefore surprising that the police did not charge her together with the Accused person to face prosecution. The court finds the defence of the Accused person as an afterthought, infantile and misconceived. The Republic vrs Emmanuel Kusorgbor 9 Upon a careful evaluation of the entirety of the evidence adduced at the trial, I am fully satisfied of the guilt of the Accused person as I find that the prosecution has been able to prove its case beyond reasonable doubt. In the circumstances, I find the Accused person herein guilty of the offence of Carnal Knowledge and he is accordingly convicted. On the question of sentence, the Accused person is a first time offender and also a young man. The Court will therefore impose the minimum sentence on the Accused person. In the circumstances, I hereby sentence the Accused person herein, Emmanuel Kusorgbor to a prison term of Five (5) years. ……………….………. ISAAC ADDO CIRCUIT JUDGE 10TH OCTOBER, 2022 The Republic vrs Emmanuel Kusorgbor 9