Republic Vrs Wiafe. [2022] GHACC 140 (7 October 2022)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST, CENTRAL REGION ON FRIDAY 7TH DAY OF OCTOBER, 2022 BEFORE H/H DORINDA SMITH ARTHUR (MRS.), CIRCUIT COURT JUDGE. _____________________________________________________________________ SUIT NO. 286/2021 THE REPUBLIC VRS GEORGE WIAFE JUDGMENT The Accused person was arraigned before this Court on 02/08/2021 for the offence of Incest Contrary to Section 105(1) of The Criminal and Other Offences Act, 1960 Act 29. The accused person pleaded not guilty to the charge preferred against him for which reason the prosecution assumed the burden of proof and must prove the charge against the accused person beyond reasonable doubt in accordance with; Section 11(2) of the Evidence Act 1975 NRCD 323 states; “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 will find the existence of the facts beyond reasonable doubt.” Page 1 of 11 Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng Vrs Republic [1977] 2 GLR 171 CA The prosecution in order to discharge the burden placed upon them called one witness and tendered nine exhibits in evidence. THE PROSECUTION CASE The summary of prosecution case is that a case of an alleged rape and incest involving accused was referred to the investigator the only witness for prosecution (PW1). According to PW1, the survivor with her mother, the complainant, made a report to the police. The survivor is the biological daughter of the accused. He stated that during the month of July 2020, the survivor visited accused at Kasoa and in the night the father had sexual intercourse with her. He continued that accused had sexual intercourse with the survivor at different times in the porch, hall and kitchen of the house. PW1 took the statement of the survivor, the complainant, and issued a police medical report form to the survivor to attend hospital for examination. The survivor was examined by Dr. George Aidoo at Winneba Municipal Hospital and was issued with a medical report. PW1 took the investigation caution statement from accused when he reported himself at the police station. He visited the crime scene at Kasoa where accused resides and took photographs of the scene. He added that the survivor brought a pen drive containing audio recordings of two phone call conversations between her and accused. In the first recording, accused admitted to having sexual intercourse with the survivor and asked her not to tell anyone because he will be in trouble. The second recording, accused denied having sexual intercourse with the survivor. He tendered in exhibits caution and charge statements of accused, the photographs, the medical report, and the audio Page 2 of 11 recordings. Prosecution had filed witness statements for the survivor, complainant, and the Medical Doctor but they did not appear in court to testify so PW1 tendered in their witness statements in evidence. EVALUATION OF EVIDENCE AND APPLICATION OF LAW At the close of case of prosecution, Learned Counsel for the accused person raised submission of no case per Section 173 of Act 30/60. Counsel contents that prosecution’s case has failed to prove the salient ingredients of the offence of incest that accused had carnal knowledge of the survivor ....and that accused must be acquitted and discharged in compliance with section 173 of Act 30 of 1960 as a case has not been made out sufficiently against him to require him to make a defence. The submission of no case is upheld as the court is of the view that prosecution’s case is circumstantially so weak and based on hearsay that it cannot be relied on to ground a prima facie case against accused sufficiently to require him to make a defence and that the accused person be acquitted and discharged with respect to the charge. These are my reasons: The offence of incest is defined under Section 105(1) of Act 29, (1960) which states: “A male of not less than sixteen years of age who has carnal knowledge of a female whom he knows is his granddaughter, daughter, sister, mother or grandmother commits a criminal offence and is liable on conviction to a term of imprisonment of not less than three years and not more than twenty-five years.” Consequently, the essential ingredients of the offense of incest are; 1. That accused, a male, is not less than 16 years 2. That accused has had carnal knowledge of the survivor, a female. Page 3 of 11 3. That the accused knows the survivor is his grand-daughter, daughter, sister, mother or grandmother. To satisfy the court with a conviction the prosecution must prove the aforementioned ingredients beyond reasonable doubt. See REPUBLIC V YEBOAH [1968] GLR 248-256 at Page 251. Here, a burden is cast upon the prosecution to prove each and every one of the above three ingredients beyond a reasonable doubt that accused person had a carnal knowledge of the survivor and that accused knows the survivor is his biological daughter and that accused is not less than sixteen years of age. The first ingredient is that accused is a male and not less than sixteen years of age. From the evidence of prosecution accused is a father and by his name George, the court can safely infer that he is a male. Prosecution did not lead any evidence to prove the age of the accused person to show that he is less than sixteen years of age as per the ingredient of the offence but from the charge sheet, his age is stated as forty-three years. The court has taken judicial notice of the fact that accused cannot be less than sixteen years of age as from the charge sheet he is an Assistant Court Registrar and the Judicial Service do not employ persons below the age of sixteen years to be Court registrars. Hence, the first element cannot be in dispute. I move to the second ingredient which is that accused has had carnal knowledge with the survivor who is a female. From the prosecution evidence, during the month of July 2020, the survivor visited accused at Kasoa and in the night the accused had sexual intercourse with her. From PW1, accused had sexual intercourse with the survivor at Page 4 of 11 different times in the porch, hall and kitchen of the house. This evidence was denied by accused person and so it was left with prosecution to prove same with either a direct or circumstantial evidence to corroborate those assertions. However, both the survivor and complainant did not appear in court to testify. Their witness statements are treated as hearsay evidence which carries less weight as their absence have denied accused person from cross examining them on their assertions. The only statement out of the thirteen paragraphed witness statement of the investigator that is borne out of his direct evidence is contained in paragraph five of his witness statement which reads that: “During investigations, I established that the accused George Wiafe is the biological father of the victim and the victim after a misunderstanding with her mother went to live with the accused and her step mother and half siblings.” From the above paragraph, PW1 could only establish the relationship between accused and the survivor as father and daughter and nothing more. Also, the photographs of the house tendered in evidence had nothing incriminating against accused person as they only show his residential abode. Thus the investigator could not lead any cogent evidence to prove all the assertions as contained in the witness statements of the survivor and complainant. Moreover, the sole witness could not corroborate the ingredient of “having natural carnal knowledge of the survivor.” PW1 did not witness or could not provide any circumstantial evidence for the court to make reasonable inference from as he is the investigator and started the investigation after the alleged incident occurred. The survivor was not brought to court to testify and neither the complainant. The crust of Page 5 of 11 the charge of incest rest much on the survivor but prosecution failed to bring her to be cross- examined on her evidence. Failing to call the survivor who is the alleged victim and a material witness is fatal to the case of the prosecution. See REX VRS GEORGE KUREE [1941] 7 WACA 175 and REGINA VRS ANSERE [1958] 3 WALR 385 distinguished in GLIGAH AND ATISO VRS THE REPUBLIC [2010] SCGLR 870. Also, prosecution failed to call the school chaplain who according to the brief facts of the case reported the matter to the assistant Head teacher after the survivor had confided in him. These educational officials are duty bound to protect the best interest of the survivor and yet they were not called to testify. Even where the sexual victims testify, the court is advised to seek for corroborative evidence. See R V HENRY AND MANNING [1969] 53 CRIM APP REP 150 per Salmon J. The court held inter alia that “... it is really dangerous to convict on the evidence of a woman or girl alone. This is dangerous because human experience has shown that in these courts, girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not enumerate and sometimes for no reason at all.” Even though this is an English case and is of persuasive influence only, it is of such great importance that the court cannot ignore that precedent for the weight it carries. Besides, prosecution did not establish through the evidence of the sole witness why the survivor or any key witnesses were unavailable to the court. This is crucial as prosecution has to prove the unavailability of witnesses in accordance with Section 116(e) of the Evidence Act supra. See THE REPUBLIC V HIGH COURT Page 6 of 11 COMMERCIAL DIVISION) EX PARTE STEPEHNE KWABENA OPUNI CIVIL MOTION NO. JS/58/2021 28TH JULY, 2021. Furthermore, the police general medical report revealed that the vagina of the survivor showed no abrasions or bleeding. The medical officer concluded that her hymen is broken and healed suggestive of sexual intercourse at least one month prior to examination. But the medical report alone cannot be relied on as there is nothing in it to link accused person to the offence of incest. Under cross examination, PW1 answered among others these questions: Q. You know you have not been an eye witness to the alleged sexual intercourse between accused and the survivor? A. Yes. Q. So you agree with me that what you have penned down is basically hearsay evidence from third party? A. Yes. Q. The accused person has denied ever indulging in any sexual intercourse with the survivor. Is that not on record? A. Yes, it is on record that he denied but he is only putting up a defence. Flowing from the answers of PW1, it can safely be inferred that there is no direct evidence from the only prosecution witness to give account of what happened and prosecution could not also provide circumstantial evidence that links the accused person to the crime of incest. Moreover, the medical report shows that if there was any carnal knowledge of the survivor at all then it was not recent as the medical Page 7 of 11 examination could not reveal any recent penetration of the vagina of the survivor by anybody. I have considered the two audio recordings tendered in evidence by prosecution. First of all, the Ghanaian court is clothed with the power of discretion in matters relating to the inclusion or exclusion of evidence and as such the audio recordings can be admitted in evidence. see RAPHAEL CUBAGEE V MICHAEL YEBOAH ASARE & 2 ORS [2018], CIVIL APPEAL NO. J6/04/2017. However, the test of admissibility is relevance and they can only be relevant where the persons behind the voices are proven as the court cannot identify the voices or see the persons behind same. Therefore, it can safely be inferred that prosecution could not lead sufficient evidence to prove carnal knowledge of the survivor by the accused person. The issue of whether the accused knows the survivor as his grand-daughter, daughter, sister, mother or grandmother is relevant where the second element of carnal knowledge is proven by prosecution which is not the case here. It is not in dispute that the survivor is the daughter of the accused even though same was not scientifically proven. As indicated earlier, the last element can only be considered after carnal knowledge of the survivor by accused is proven beyond reasonable doubt. Therefore, prosecution could not lead cogent evidence to prove all the elements of the offence of incest against accused person as required of them because the adduced evidence is circumstantially so weak and based on hearsay that it cannot be relied on to ground a prima facie case against accused person. Prosecution evidence is insufficient. In the Supreme Court case of THE STATE VS. ALI KASSENA [1962]1 GLR 144 at 149 pronounced on Section 173 of the Criminal Procedure Code, 1960 (Act 30) thus: Page 8 of 11 "Section 173 is concerned with Summary trials where the judge decides both questions of law and fact. It Is for the judge in a summary trial to weigh the evidence and then decide whether from the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient when it is of such probative force as to convince and which if un-contradicted will justify a conviction. In addition, the court could not make any safe inference from the facts as the evidence adduced were not objective and without much practical certainty. Hence, prosecution failed to take the case out of the realm of conjecture, speculation and suspicion because the evidence could not convince the court and as such incapable of sustaining a conviction. See CASEWELL V POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. [1940] AC 152 P 169 particularly the opinion of Lord Wright. Consequently, prosecution could not establish any prima facie case against the accused person for the court to call him to open his defence. The evidence adduced by prosecution failed to proof all of the three ingredients of the offence of incest. It is a principle of law that in order to justify a conviction, the evidence adduced against the accused should attain a degree of certainty. See MOSHIE V. THE REPUBLIC [1976] 2 GLR 310. Under Section 173 of Act 30, 1960 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 him to make a defence, the court shall, as to that particular charge acquit him.” Page 9 of 11 Here, the court is to do a balancing act at the close of the case for the prosecution to ensure that prosecution has led evidence to support the essential ingredients of the offences charged. See TAGOR V THE REPUBLIC [2009] 23 MLRG 78 at 132 where the Court of Appeal held that: “the paramount consideration in deciding whether prima facie case has been made or not is; whether the prosecution has proved all the essential ingredients or pre-requisites of the offence charged. No prima facie case is made where the prosecution was unable to prove all the essential ingredients. Even if one of the ingredients is not proved, the prosecution fails and no prima facie case is made.” Therefore, after the balancing act of the evidence adduced by prosecution, if the court cannot convict the accused person on the evidence so led without any reasonable explanation then submission of no case should be upheld. This is because the accused person cannot add up to the prosecution’s case where at the close of its case, the prosecution is unable to establish a prima facie case against the accused person. See MALI VRS. THE STATE (1965) GLR 710 – 715 ; STATE V. ANNAN (1965) GLR 600-612 and ASARE V. THE REPUBLIC (1978) GLR 193 – 199 Therefore, the burden of proof remains throughout the trial on the prosecution and the accused person is not required to prove anything. In PUBLIC PROSECUTOR V. YUVAVAG (1935) 25 CR. APP R 72 AT PAGE 95 the court held that Page 10 of 11 - “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact, it is sufficient for his acquittal if any of the acts which if they existed would constitute the offence with which he is charged are not proved.” Consequently, the court is not permitted to call the accused person for further evidence before ruling on a submission of no case where prosecution has not proved the essential ingredients of the offence. In sum, the case for the prosecution is considered as having collapsed. The court hereby enters submission of no case in accordance with Section 173 of Act 30 and accordingly, acquits and discharges the accused person on the offence of incest. H/H DORINDA SMITH ARTHUR (MRS.) CIRCUIT COURT JUDGE ACCUSED PERSON PRESENT. PROSECUTOR: MIRIAM GYESIWAH SARPONG ESQ. ASSISTANT STATE ATTORNEY PRESENT. EUGENE LARBI APPIAH ESQ. FOR ACCUSED PERSON PRESENT. Page 11 of 11