The Republic Vrs Atuguba [2022] GHACC 184 (21 December 2022)

IN THE CIRCUIT COURT HELD AT TARKWA IN THE WESTERN REGION ON WEDNESDAY THE 21ST DAY DECEMBER, 2022 BEFORE HER HONOUR HATHIA AMA MANU, ESQ., CIRCUIT COURT JUDGE COURT CASE NO. B6/21/22 THE REPUBLIC VRS. MATTHEW ATUGUBA JUDGMENT Accused Person – Present. C/Inspector Veronica Tibson for Prosecution. The accused stands charged with the defilement of a 3 year old child Contrary to section 101 of the Criminal Offences Act 29. The charge is premised on a complainant by one Faustina Kombat who claims the accused defiled her 3 year old in his wooden structure at Wassa Japa. Burden of proof on prosecution is dearly outlined in section 11(2) of the Evidence Act 1975 which states that, “In a criminal action the burden of producing evidence when it is on one prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt”. The Prosecution called the complainant to the stand. In her evidence she claimed she had left her child in her sister’s care to go to work on 26/04/2022 when she received a call that her daughter was at the hospital. She alleges that she proceeded to the hospital and saw her daughter with blood oozing out of her private part and been attended to by health workers. Prosecution also called the complainant’s sister who was caring for the child on the said day to give evidence. According to this witness at around 12:30pm on 26/4/2022 she was doing her house held chores when she released that baby was nowhere to be seen. This witness alleged that she heard a faint cry coming from the accused person’s wooden shed and peed through the window only to see the accused defiling the child amidst her cries. She alleged that there was blood oozing from the victim’s vagina and faeces all over her anus when she was rescued. The witness asserts that she raised an alarm and the accused got arrested by people around. Prosecutions’ next witness did not witness the act but claims she was in her room on 26/4/2022 around 12.30pm when she heard shouts, “Look at what you have done to this little child, is it right to have sex with the child”. According to the witness she saw blood and faeces on her body”. Then she took the baby to go and wash it before sending her to the hospital. The witness stays in the same compound with the complainant and the accused person. Finally, prosecutions ended their case by calling the medical officer who attended to the victim and the investigative officer. The medical officer gave a detailed report of the condition that the victim was in when he was brought to the hospital. The medical officer informed the Court that the child was kept for four (4) days in the hospital while being treated and he can tell the Court without a doubt that the child was defiled. The investigative officer tendered into Court evidence of where the incident occurred, caution statements from the accused person as well as the investigative caution statement which was given the opportunity to cross-examination each witness as they presented them. The accused refused to cross-examine the complainant because he wanted to question only those who saw him in the act. When the complainant’s sister who supposedly raised the alarm ended her evidence he questioned her as follows: Q. When you raised the alarm was I inside. A. You were lying down in the house and holding the child. He also asked her. Q. Was I naked or dressed when you came inside. A. You were partially dress, your penis was showing as your shorts were pulled down. When people came your penis was out. The evidence of this witness was unwitted because her evidence was premised on the fact she claims to have seen the accused in the act and also was the one who shouted for help. During the cross-examination by the accused, none of the questions sought to affect the credibility of this evidence. In actual fact the accused’s line of question does not dispute that an alarm was raised. Why would someone who stays in the same compound with you raise an alarm only for people to come and without finding you anywhere near the act attack and arrest you for same. This witness went ahead to describe what accused was wearing on the day that this heinous crime was committed a fact which he could have questioned if it was not true but failed to do so. When the investigator was called the accused only sought clarification on the age of the victim and also when the case was report. In actual fact the accused did not question the investigations done which has led to the claims against him. The accused after the medical officer and the witness who took the child to the hospital gave their evidence asked questions but all were not crucial questions or even related to their evidence such that the Court would have doubled or found any loop holes within their evidence. Satisfied that prosecution had adequately satisfied the ingredients of the offence I directed the accused to open his defence in order to create doubt in the mind of the Court as stipulated by section 11(2) of the evidence Act. See the case of Commissioner of Police Vrs. Antwi [1961] GLR 408. The burden on Prosecution is to prove the ingredients of the offence beyond a reasonable doubt as required by Section 11(2) of the Evidence Act, 1975 (NRCD 323). It is important to note the failure on the part of prosecution to prove all the ingredients by the requisite degree would lead to the accused being acquitted. On the other part the accused needs to raise doubt as to his guilt. When directed to open his defence the accused only they told the Court that he knows nothing about the case and that he was sitting under a tree when he was approached by a crowd and arrested amidst claims of him having defiled a child. The accused also informed the Court that he was indeed surprised and tried questioning them to but to no avail. The accused also pleaded alibi but was unable to give the name of his alibi. The accused person did next to nothing in opposing the charge against him. He failed woefully to create doubt in the court’s mind. One will ask if the accused’s action or any prevarication in the defence justify an inference of guilt. See the case of Republic Vrs. Djomoh (196) GLR 193 where it was held that, “a finding that the accused person told lies in his own defence, does not absolve the prosecution from the duty of affirmatively proving the accused person’s guilt beyond reasonable doubt”. The ingredients of this offence is one which necessitates prosecution establishing natural or unnatural canal knowledge of the victim. Carnal knowledge is where a woman/female child’s vagina is penetrated by a man penis whereas unnatural carnal knowledge is where the penetration is done through the unknown channels for instance acts of sodomisation. However, whether natural or unnatural penetration must be made for the offence to be established. Dotse JSC in the unreported case of Banousin (Richard Vrs. The Republic (18th March 2014; Criminal Appeal No. J3/2/2014) stated that, the size of the male organ, degree of penetration if any, all ought to have been stated in evidence. In the instant case the victim was 2 years at the time of the offence been committed and the accused was caught while still defiling the victim. The medical expert did not mince words in telling the Court about the extensive damage the defilement had occasioned to the victim in her both vagina and anus. Thus in this case although the size of the penis was undetermined there was direct evidence of the accused caught in the act. Being satisfied of the burden executed by the prosecution and considering the accused person’s inability to raise any doubt in the mind of the Court as to his innocence I hereby find the accused guilty of the offence of defilement of a 3 year old. BY COURT: Accused person, before I proceed to sentence you is there something you would like to tell the Court by way of mitigation. MITIGATION: ACCUSED: I want to pardon on behalf of the Court that I am sorry. BY COURT: Any aggravating factors. PROSECUTION: No my Lord. BY COURT: I have considered the age of the victim which is 3 years as opposed to the age of the accused being 24 years. I have also considered the fact that the accused lived within the same vicinity as the victim and her family hence breached the bound of trust that may have existed between them as neighbours. I am of the view that the accused must be given a deterrent sentence to serve as a warning to like-minded individuals. Accused is hereby sentenced to 22 years imprisonment with hard lobour. H/H. HATHIA AMA MANU, ESQ. (CIRCUIT COURT JUDGE) 5