Nukporfe Vrs The Republic [2022] GHAHC 73 (16 November 2022)

IN THE HIGH COURT OF JUSTICE HELD AT DENU ON WEDNESDAY THE 16TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP JUSTICE NAANA BEDU-ADDO HIGH COURT JUDGE SUIT NO. 01/2022 KWASHIVI GAZE NUKPORFE - APPLICANT VRS. THE REPUBLIC - RESPONDENT JUDGMENT Before this Court is an appeal against the ruling of the Circuit Court, Denu dated 11/1/2022 presided over by His Honour Joseph Ofosu Behome. APPELLANT’S CASE The Appellant herein was charged with the offence of defilement of a child under 16 years of age contrary to Section 10(1) of the Criminal and other offences Act, 1960 (Act 29) as amended by Section 11 of Act 554 of 1998. Section 101 (1) of Act 29 provides as follows: ’’ (1) For the purpose of this Act, defilement is the natural or unnatural carnal knowledge of a child under sixteen years of age.’’ The Appellant contends that sufficient and reliable evidence was not adduced by the prosecution to call on the accused person to answer the charge of defilement. Appellant further contends that the prosecution had failed to lead any evidence to prove an essential element of the alleged offence, which is the age of the child. Based on that, counsel for the Appellant made a submission of ’’ no case to answer’’ before the Court below. The Court however ruled that the prosecution had led sufficient evidence to prove the age of the alleged victim. The Appellant is appealing against the said ruling. The Appellant contends that the ruling is not supported by the evidence and the law on defilement. He contends that there was no mention of the age of the victim in the evidence adduced by the four prosecution witnesses. He cited Section 173 of the Criminal Procedure Act (Act 30) where the law provides that; ’’if 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.’’ They also relied on the case of the State Vrs. Ali Kassena 1962 1GLR 144 at page 149 where the Supreme Court held that ’’………. Submission that there is no case to answer may properly be made and upheld: a) Where there has been no evidence to prove an essential element of the alleged offence; b) Where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safely convict upon it. In the instant case, the Accused/Appellant is alleged, sometime between January, and February, 2021 to have defiled the victim on five different occasions. The Appellant submits that the fact that no evidence was led to determine the age of the alleged victim is fatal to the case of the prosecution and they urge this Court to hold that there is not sufficient evidence before this Court to call on the accused person to answer as it was held in the case of the State Vrs. Ali Kassena supra. In the opinion of the Appellant, to prove the age of the victim, the prosecution should have provided the victim birth certificate or the weighing card of the victim or some evidence from the school that the victim attends. None of these were provided by the prosecution to support their case. The Appellant further contends that the fact that the Court ruled that the age of the victim was proved by the prosecution when it tendered in evidence a medical report form issued by HDN Mission Hospital in which the victim’s date of birth was given as 01/10/2008 is not proper since the said medical report was not tendered in evidence to prove the age of the victim but rather that she was carnally known. Appellant finally contends that the charge sheet does not from part of the evidence before the Court. The prosecution did not disclose when it served the documents they intended to rely on, on the Appellant in readiness for the trial. The charge sheet cannot be proof of the age of the victim. They argue that the age of the victim must be proved by authentic and verifiable documents which was not done in this case. Appellant’s final prayer is for the ruling of the Circuit Court to be overturned and the accused person acquitted and discharged on the charge of defilement of a child under sixteen (16) years. RESPONDENT’S CASE In response to the Appellant’s written submission, the Respondent filed a Written Submission on 18/5/2022. The Respondent argued that the ’’ Not guilty’’ plea put in by the accused person invoked a presumption of innocence in his favour, and by this, accused is presumed innocent until prosecution proves the contrary or until accused person himself changes his plea to guilty. They referred to Article 19(2)(C) of the 1992 Constitution of Ghana and the case of The Republic Vrs. Francis Ike Uyanwurne [2013] GMJ 162 @ 177. They further argued that though the statutory duty to prove the guilt of an accused person beyond reasonable doubt, Section 11(2) of the Evidence Act, 1975, (NRCD 323) provides that: ’’ 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 could find the existence of the fact beyond a reasonable doubt.’’ This principle was also applied in the case of Asare Vrs. The Republic [1978] GLR 193 – 199. The law requires the prosecution to adduce credible evidence that will clearly link an accused person to the offence, such that any reasonable person after hearing and understanding the evidence will have no reasonable doubt that the accused committed the crime. The Prosecution’s response to the Appellant’s allegation that the prosecution has not proved its case beyond reasonable doubt, hence the defence cannot open its case is that a lot of water tight evidence has been adduced against the Appellant herein. They further ague that there is enough evidence in the record of proceedings pointing to nothing but the guilt of the Appellant. They cited the case of The Republic Vrs. Yeboah [1968] GLR 248 which stated the ingredients of the offence of defilement. One of the ingredients is that the victim is under the age of 16 years (as provided for in Act 554). Appellant’s main argument is that the above ingredient has not been established. The Prosecution’s response is that the Appellant has not provided a contrary evidence that suggests that the victim in this case was not twelve (12) years of age at the time she was defiled. Appellant only stated the prosecution has not proved the age of the victim without giving further details. The prosecution says the said assertion by the appellant is not sufficient evidence to convince a reasonable mind to doubt his guilt of defilement of the victim. Prosecution submits that the National Health Insurance Card of the victim was filed by the prosecution. The charge sheet indicated the age of the victim as being twelve (12) years. The medical form tendered in evidence also disclosed the age of the victim to be twelve (12) years. They further argue the victim gave her evidence on oath and her age was never challenged under cross-examination. From the foregoing, in the considered view of the prosecution, there is no contradiction regarding the age of the victim and therefore it is their prayer that the appeal be dismissed. LEGAL ANALYSIS The facts of the case as presented by the prosecution were that the complainant Isaac Elloh aged 30 is a professional teacher, teaching at Klikor Unity Basic School and a cousin to the alleged victim. The victim Elorm Adeve who is said to be 12 years old is a primary three pupil of Agbozume E. P. Basic School staying with complainant’s mother. The accused person, Kwashivi Gaze Nukporfe is 76 years old and a mason by profession. Both parties are neighbours residing at Ablotsivia, a suburb of Klikor. On 11/2.2021, around 6.30 a.m., whilst the victim was taking her bath in the bath room in order to go to school, a witness who is the complainant’s sister saw blood stains in the soap lather. She then became alarmed and questioned the victim about it, but the victim told her that it was not blood stains but it was rather dirt on her body. On 12/2/2021, around 4.30 p.m., the witness, her mother and the complainant subjected the victim to questioning and she told them that in the afternoon of the same day whilst she was selling pure water, the accused person lured her to the side of their toilet and carnally knew her. The victim added that the 12/2/2021 encounter was the fifth time that the accused person had carnally known her. The victim further stated that the accused person gave her GH1.00 during the second to fifth times. On 16/2/2021 the complainant brought the victim to the Agbozume Police Station and made a police report, a medical report form was given to the victim who went to the I. H. D. N. Mission Hospital at Weta-Adzakopo. Dir. Henry X. Kpeli examined the victim and his findings are: that she had a urinary tract infection; HIV and Hepatitis were Negative, she is not pregnant, however there were tears in the vaginal hymen. The accused person was arrested on 19/02/2021, processed and put before Court. The prosecution called four witnesses including the investigator. PW1 confirmed the facts as presented by the prosecution. PW2 and PW3 corroborated the testimony of PW1 with respect to the alleged defilement PW4 filed and tendered in evidence the Medical Report of PW1, Elorm Adeve and the Investigation Caution Statement as well as the Charge Statement of the accused person. The prosecution closed its case thereafter. When the Defense was asked to open their case, Counsel for the accused filed a written submission of no case to answer on behalf of the accused person on the following grounds: 1. That sufficient and reliable evidence has not been adduced by the prosecution to call on the accused person to answer the charge of defilement. 2. That the evidence adduced by the prosecution witnesses was so unreliable that no Court will rely on it to convict the accused person. 3. That the prosecution has failed to lead any evidence to prove an essential element of the alleged offence. That is, the age of the child. The essential elements of the offence of defilement as stated in the case of Republic Vrs. Yeboah, [1968] GLR 248 – 256 are: 1. The alleged victim is less than sixteen years. 2. That a person has had natural or unnatural carnal knowledge of the victim. 3. That, that person is the accused person. On the charge of defilement, the prosecution is required to prove that the child who is the victim of the criminal offence is less than sixteen years of age. A case of defilement will fail where the prosecution fails to prove beyond reasonable doubt that the child who is the victim of the offence was under sixteen years at the time the offence was committed. Section 173 of the Criminal Procedure Code (Act 30) provides that: ’’ if 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. In the case of C. O. P Vrs. Akoto [1964] GLR @ 231 the Court held that person charged before a Court has a duty to make it appear to the Court that no charge has sufficiently been made against him to require an answer from him. The grounds for submission of No Case as stated in the case of Tsatsu Tsikata Vrs. The Republic [2003 – 2004] SCGLR 1068 are as follows: (a) The prosecution failed to provide evidence to prove an essential element of the offence. (b) The witnesses called by the prosecution were discredited by the accused through cross-examination. (c) The evidence adduced by the prosecution is evenly balanced, that is, the evidence on record is susceptible to two likely explanations and while one is consistent with guilt the other is consistent with innocence. In the instant case, the main bone of contention is proof of the age of the alleged victim. Apart from the age of the victim being stated on the medical form as 14 years, no other evidence was led as to the age of the victim. The victim never stated her age even in her own witness statement. None of the other witness statements also mentioned the age of the victim. The trial Judge stated that on page 3; paragraph 2 of the medical report, the date of birth of the victim was stated as 01/10/2008, which makes her 14 years of age. He further stated that the charge sheet indicated the victim’s age as 12 years. That is an inconsistency which ought to have been questioned. The Defence however failed to question it under cross-examination of the victim or any of the other witnesses. Regarding the failure of the victim (PW1) to recollect the specific dates and times she claims the accused defiled her goes to the root of her credibility as a witness. In the case of Ntim Vrs. Essien [2001 – 2002] SCGLR 451, it was held that it is the trial Court which determines credibility. Section 80(2) (d) of NRCD 323 states that ’’the capacity and opportunity of the witness to perceive recollect or relate any matter about which he/she testifies.’’ It is said that unless the witness is a child or mentally incapacitated in some way, the capacity of the witness to perceive, recollect or relate any matter about which he testifies normally affects the veracity of the content or substance of his testimony. In the instant case, PW1, under cross-examination when she was asked: Q. How many times did accused have sex with you? Her answer was! A. It is uncountable but I could only remember 5. When the victim (PW1) was asked: Q. You told the Court that you can remember only 5 times, when was the last time? Her answer was: A. One Friday afternoon in the year 2020. In her witness statement she however gave the date of the 5th and last occasion as 12/02/2021. This is an obvious contradiction in the testimony of the alleged victim. Where the evidence in Court conflicts with a previously written statement (PW1’s witness statement in this case) the Courts have given different descriptions of how to treat the oral evidence in Court in relation to the credibility of the witness. In the State Vrs. Otchere [1963] 2 GLR 463, the oral evidence in Court was said to be unworthy of credit. In Egbetorwokpor Vrs. The Republic [1975] 1GLR 585, the Court of Appeal held that the witness was unreliable and his evidence in Court should be regarded as negligible or nugatory. A witness whose statement to the police differs materially from his evidence in Court must ’’ at least be suspect.’’ The underlying factor in a fair trial is that the accused is presumed innocent until he/she is proved or has pleaded guilty. Where the prosecution fails to prove an essential element of the offence charged and the Court calls upon the accused person to open its defence, the Court breaches a constitutional provision by in substance saying that the accused shall open his/her defence to prove innocence. Therefore, the Courts are duty bound to ensure that whenever prosecution fails of establish a prima facie case against a accused at the close of the case of the prosecution, it stands to reason that the prosecution has failed to meet the constitutional requirement imposed on it by paragraph (c) of clause (2) of article of the constitution which provides that: (2) A person charged with a criminal offence shall: (c) Be presumed to be innocent until he is proved or has pleaded guilty. From the foregoing, the Court concludes that the Prosecution failed to adduce any evidence as to the age of the alleged victim. In fact it was as if the age was not an essential ingredient of the charge of defilement. The victim’s evidence was indeed inconsistent and that alone creates reasonable doubt in the prosecution’s case. This Court hereby sets aside the ruling of the trial court and hereby upholds the accused person’s submission of no case. (SGD) …………………………. JUSTICE NAANA BEDU-ADDO HIGH COURT JUDGE DENU 16/11/2022 aca./ 12