Afetorgbor Vrs The Republic [2022] GHAHC 65 (1 December 2022)

IN THE HIGH COURT OF JUSTICE, HELD IN SOGAKOPE ON THURSDAY THE 1ST DAY OF DECEMBER, 2022 BEFORE HER LADYSHIP JUSTICE DOREEN G. BOAKYE-AGYEI (MRS.) JUSTICE OF THE HIGH COURT ====================================================== SUIT NO: F22/112022 WONDER AFETORGBOR = APPELLANT -VRS- THE REPUBLIC = RESPONDENT ==================================================== PARTIES: APPELLANT PRESENT RESPONDENT ABSENT COUNSEL: MR. SENANU AFAGBE, ESQ., COUNSEL FOR APPELLANT PRESENT MS. DIANA D. AMESEWU, ESQ., COUNSEL FOR REPUBLIC PRESENT ==================================================== - - JUDGMENT INTRODUCTION This is an appeal by the Appellant against the judgment of the Circuit Court, Sogakope presided over by His Honour Isaac Addo, Esq. convicting and sentencing the Appellant to Twenty-Four (24) months prison term in hard labour on the charge of Indecent ~ 1 ~ Assault contrary to Section 103 (1) of Act 29/60. The Notice of Appeal by virtue of which the present appeal has been brought can be found at page 85 of the Record of Appeal hereinafter referred to as the ROA". The Notice of Appeal sets out the following grounds of appeal; a. That the Petitioner/Appellant's conviction and subsequent sentence cannot be supported by the evidence on record. b. That the prosecution failed to prove its case beyond reasonable doubt. c. That the sentence is harsh and excessive under the circumstance. d. Additional grounds of appeal may be filed upon receipt of the Record of proceedings. THE FACTS The victim (PW 1) in this case is a 17-year-old motor rider resident at Adutor, The facts have it that on 4th February, 2020 at about 11:30 pm, whilst PW 1 and his three friends were at the road side chatting, the Appellant called PW 1 on phone and asked him to go to Dabala and bring his girlfriend to him. That PW 1 whose motorbike had developed fault informed the Appellant and asked him if he could use one Mawusi’s motorbike, The Appellant refused and stated that Mawusi will charge him more because they are not in good talking terms and that the Appellant invited PW 1 to his house, The Appellant advised PW 1 about his unkempt hair and being out in the night with friends and that in the process of advising PW 1, the Appellant removed his dress and complainant’s dress and started making romantic moves. That the Appellant kissed PW I's mouth, armpit, forehead and sucked his breast and that the Appellant asked PW I to turn his back to have anus sexual intercourse with him. That PW 1 started crying and when the Appellant realized that P WI's scream will attract the neighbourhood, the Appellant asked him to wear his dress and leave. The Appellant then gave GHC 20.00 ~ 2 ~ to PW 1 but he refused to accept the money and left. That on his way the Appellant called PW 1 on his phone and asked him not to tell anybody because he loves him, When PW 1 got home at about 3:00 am, he narrated his ordeal to his sister who took him to their father and narrated the story to him. Appellant was subsequently charged for the offence and arraigned before the trial Circuit Court, Sogakope. The Appellant pleaded Not Guilty to the charges levelled against him. The charge sheet and accompanying facts are found at pages 1 to 3 of the ROA. THE APPLICABLE LAWS The Criminal Offences Act, 1960 (Act 29) in section 103 provides as follows; 1. A person who indecently assaults another person commits a misdemenour and is liable on conviction to a term of imprisonment of not less than six months. 2. A person commits the offence of indecent assault if, without the consent of the other person, that person (a) forcibly makes any bodily contact with the other person, or (b) sexually violates the body of the other person in any manner not amounting to carnal knowledge or unnatural carnal knowledge. THE BURDEN OF PROOF The trial Court having entered a Not Guilty plea for the Appellant, the burden of proving the charge is squarely fixed on the prosecution to prove same against the Appellant. It is provided in section 15 (1) of the Evidence Act, 1975, NRCD 323, that "unless it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue", ~ 3 ~ This burden of proof on the Prosecution can only be satisfactorily discharged if the Prosecution is able to adduce cogent and sufficient evidence to prove the guilt of the Appellant beyond reasonable doubt. This is the standard of proof required for the Prosecution in all criminal charges such as this one. It is also provided by section 11 (2) of the Evidence Act, 1975, NRCD 323 that "in a criminal action the burden of producing evidence, when it is on 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” Section 13 (1) of the Evidence Act, 1975 also has it that in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. In the case of ALI YUSIF (NO, 2) VRS. THE REPUBLIC (2003-2004) 1 SCGLR AT 183- 184, it was held per Akuffo JSC (as she then was) that: “……..the burden of persuasion and the burden of producing evidence in terms of sections 10 and 11 of the Evidence Decree, 1975 (NRCD 323), respectively, are the components of the burden of proof, Thus although, an accused person is not required to prove his innocence during the course of his trial, he may run the risk of non- production of evidence and/or non-persuasion to the required degree of belief, particularly when he is called upon to mount a defence See also the case of THE REPUBLIC VRS. FRANCIS IKE UYANWUNE L 2013 J 58 162 AT 177-181, The plea of Not Guilty having been entered for the Appellant also automatically invoked a presumption of innocence in the Appellant's favour. By this it means that the ~ 4 ~ Appellant is presumed innocent of the charge levelled against him unless the prosecution proved to the contrary or the Appellant himself changes his plea to Guilty simpliciter. This principle of presumption of innocence is affirmed by Article 19 (2) (c) of the 1992 Constitution which states that “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty”. To find a conviction on the offence of Indecent Assault, the Prosecution must prove the following which were stated by the Learned Trial Judge at page 73 of the ROA. i. There was no consent of PW 1, ii. The Appellant forcibly made a sexual bodily contact with PW 1, or iii. Sexually violated the body of PW 1 in amounting to carnal knowledge or unnatural carnal knowledge, E. THE GROUNDS OF APPEAL 1) The grounds of appeal in the Notice of Appeal are as follows; a. That the Petitioner/Appellant's conviction and subsequent sentence cannot be supported by the evidence on record. b. That the prosecution failed to prove its case beyond reasonable doubt. c. That the sentence is harsh and excessive under the circumstance, d. Additional grounds of appeal may be filed upon receipt of the Record of proceedings. The Notice of Appeal can be found at page 85 of the ROA. Although the Notice of Appeal indicates that the Appellant intended to file additional ground(s) of appeal upon receipt of the record, the Appellant has not filed any such additional ground. On grounds 1 and 2 of the appeal both relate to the evidence adduced at the trial on ~ 5 ~ record. a. That the Petitioner/Appellant's conviction and subsequent sentence cannot be supported by the evidence on record, b. That the prosecution failed to prove its case beyond reasonable doubt. It is Appellant’s case that the Learned Trial Judge's finding of the Appellant guilty of the offence of indecent assault and sentencing him to 24 months prison term is not supported by the evidence on record. That there is a strong basis for this Honourable Court to interfere and overturn the conviction of the Appellant and acquit and discharge him of the offence, It is trite law that an Appeal is by way of re-hearing and this Honourable Court ought to look at and evaluate the evidence adduced at the Trial Court, so as to satisfy itself that the conclusions reached by the Learned Judge are well founded or otherwise. In the case of KINGSLEY AMANKWAH (A. K. A SPIDER) VRS THE REPUBLIC L 2021) DLSC 10793, the Supreme Court per Dotse JSC has laid down some guidelines or criteria that an Appellate Court will embark upon when it is re-hearing a criminal appeal as follows; i. In considering an appeal as one of re-hearing, the appellate court must undertake a holistic evaluation of the entire record of appeal. ii. This evaluation must commence with a consideration of the charge sheet with which the Appellant was charged and prosecuted at the trial court, this must involve an evaluation of the facts of the case relative to the charges preferred against the Appellant. ~ 6 ~ iii. This also involves an assessment of the statutes under which the charges have been laid against the appellant(s) and an evaluation of whether these are appropriate vis-å-vis the facts of the case. iv. An evaluation of the various ingredients of the offences preferred against the Appellant(s) and the evidence led at the trial court. This is to ensure that the evidence led at the trial court has established the key ingredients of the offence or offences preferred against the Appellant. v. There must be an assessment of the entire trial to ensure that all the witnesses called by the prosecution lead evidence according to the tenets of the Evidence Act, 1975, NRCD 323, vi. Ensure that the entire trial conforms to the rules of natural justice. vii. An evaluation of all exhibits tendered during the trial, documentary or otherwise to ensure their relevance to the trial and in support of the substance of the offence charged and applicable evidence. viii. A duty to evaluate the application of the facts of the case, the law and the evidence led at the trial vis-å-vis the decision that the court has given, ix. Ensure that the basic principles inherent in criminal prosecution, that is to ensure that the prosecution had proved or established the ingredients of the offences charged beyond reasonable doubt, against the Appellant. x. In other words, the Appellate court, and a final one like this Supreme Court, must ensure that even if the Appellant's defence was not believed, it must go further to consider whether his story did not create a reasonable doubt either. See cases of AMARTEY V THE STATE 1964 1 GLR 256 SC which was applied in DARKO V THE REPUBLIC 1968 1 GLR 203, per Amissah JA sitting as an additional High Court judge xi. Finally, the burden on an appellate court such as this court, is generally to go through the entire record of appeal and ensure that in terms of substantive law ~ 7 ~ and procedural rules, the judgment appealed against can stand the test of time, In other words, that the judgment appealed against can be supported having regard to the record of appeal and that there is no substantial miscarriage of justice that results from the trial court What is the evidence led at the trial on record? The Prosecution, to prove its case called three (3) witnesses in all being the victim, and his twin sister. The 3rd prosecution witness was the Police Investigator. The Appellant submits that the mass of evidence given by all the three prosecution witnesses attests to the fact that prosecution failed to prove its case beyond reasonable doubt. That PW 2 and PW 3 were not eye witnesses of the alleged offence. He also through Counsel submits that the appeal be allowed and the Appellant ought to be acquitted and discharged since the Prosecution has failed to provide even a shred of evidence to substantiate the charge levelled against him or adduced any credible evidence in support of its case. That Prosecution evidence is therefore manifestly unreliable. From the record however, the Court will have to disagree with this position of Appellant through his Counsel’s submission to the Court. PW 1 being the victim testified as per his witness statement found at page 4 of the ROA that the Appellant is his friend and that on 04/02/2020 at about 11:30 pm while at the road side chatting with his two friends, the Appellant called him on phone to go to Dabala and bring his girlfriend to him at Adutor. PW 1 testified that he told the Appellant that his motorbike had developed fault so if he could use one Mawusi’s motorbike but the Appellant refused and said that that person will charge him more because he is not in good talking terms with him. ~ 8 ~ PW 1 testified further that the Appellant asked him to come to his house which he did and that when he entered the room the Appellant advised him about his hair which was unkempt and being out in the night with friends, PW 1 said that after the advice, the Appellant removed his dress and his and started romancing him. He said that the Appellant kissed his mouth, armpit, forehead, ear and also sucked his breast and that he asked him to turn his back to have anus sexual intercourse with him but he refused. PW I then testified that he started crying and when the Appellant realized that his scream will attract the neighbourhood, the Appellant asked him to wear his dress and leave and that on his way home the Appellant called him on phone and asked him not to tell anybody and that he loves him. PW 2 (Priscilla Atsupi Adade) the twin sister of PW 1 in her testimony as contained in her witness statement found at page 7 of the ROA testified that on 5/2/2020 at about 7:00 am PW 1 told her that the Appellant invited him on 4/2/2020. She testified as told her by PW 1 that when PW 1 went the Appellant advised him on his hair which was unkempt and after the advice he removed his dress and started kissing his mouth, armpit, forehead and sucked his breast and that he later asked him to turn his back for anus sex and he refused and left. PW 3 (the Investigator) testified as per his Witness Statement found at page 8 of the ROA that on 17/02/2020, he was on duty when PW 1 came and reported that on 04/2/2020 at about 11:30 pm, the Appellant invited him to his house and started kissing his body and he made an attempt to have anus sex with him. PW 3 said he arrested the Appellant and in his Caution Statement he denied the offence and stated that he only called PW 1 to advise him on his hair which was unkempt and being out in the night with friends but ~ 9 ~ did not make any attempt to have anus sexual intercourse with him. The case of the Defence Appellant's evidence is found at pages 48 to 51 of the ROA. The Appellant in his evidence stated that he called PW 1 to go to Dabala and bring his girlfriend around 10:30 pm to 11: 00 pm. Appellant said that PW 1 told him that his motorbike was faulty and so he would use the motorbike of his friend Mawusi to go and bring the Appellant's girlfriend. The Appellant testified that he told PW 1 that he was not in good talking terms with Mawusi and that he would charge him a higher fare if he used his motorbike. The Appellant testified further that he called PW 1 to come to the house and that when PW 1 came, he the Appellant cautioned him that when he called him he thought that PW 1 would have been in the house but from what he told him, it showed that PW 1 was at the roadside with Mawusi and others. According to the Appellant, he also cautioned PW 1 about the Rasta hair he had on and gave him a scenario that should anything happen that night and the Police are arresting people, because of his hairstyle, he could easily be arrested as part of the criminals and he should remember that his friends had pushed him into trouble. That till this time he has been going to court because of that issue. Appellant also testified that he told PW 1 that when he get home he should call him to know that he was in the house. Appellant stated that he told PW 1 that it is because he liked him that was why he was giving him the advice. The Appellant told the Court that he later started hearing from his friends that PW 1 alleged that he wanted to have anal sex with PW 1. Appellant said that he called the father of PW 1 and told him what he had heard people talking about and that PW I's father told him that he had not personally heard it from PW 1 and that he will call him and ask him and revert to the Appellant. According to the Appellant, PW I's father called him to come to him at home but he told him that it would be difficult for him to come because his ~ 10 ~ father was not around but he would come if his father returns and that he was arrested thereafter. The Appellant denied that he kissed PW I's breast, mouth and sucked his penis. DW 1 (Mr. Afetorgbor), Appellant’s father testified that he had known PW 1 for about 4 years and that PW 1 is one of the friends of the Appellant and he is a commercial motorbike rider and a carpenter. DW 1 said that anytime they needed the services of a carpenter, they called PWI and that Appellant usually sends PWI on errands to buy food for him. That anytime he needed a commercial motorbike rider, he normally called PW I for his services. DW 1 denied that the Appellant sexually violated the body of PW 1 and said that because the Appellant is a driver, many people wanted to learn how to drive and they normally approached him to train them. That anytime the Appellant washed his car by the roadside, his friends approached him to learn the job and that he does and they also help him to wash his car. DW 1 also said that on the day of the alleged incident he was in the house and it was about 9 pm and PW 1 saw him. Appellant’s Lawyer submits that PW 1 is not a witness of truth as his evidence during cross-examination is inconsistent with his evidence in chief as contained in his witness statement and thus the Honourable Court cannot safely rely on his evidence. That PW 1 in paragraph 4 of his Witness Statement testified that the Appellant is his friend, however under cross-examination PW 1 vehemently denied that the Appellant is his friend. This is what transpired under cross-examination found at page 20 of the ROA, Q. Paragraph 4 of your witness statement you described the accused as your friend. A. I did not say so but he sends me on errands, Also at page 21 of the ROA PW 1 testified under cross-examination as follows Q. I put it to you that you told the Police that Paro (Accused Person) is your friend. ~ 11 ~ A. I did not tell the Police accused is my friend, I told the Police he calls and sends me on errands. Q. I put it to that what you just told the court is an afterthought, A. It is not an afterthought. Q. If you say Paro is not your friend, how did you know his girlfriend's place? A. I don't know any of his girlfriends' house. Honestly in the opinion of this Court, this fact of friendship or errand provider between Appellant and PW 1 and what Police wrote vis a vis the testimony is not substantial to this Court because regardless of how street smart PW 1 may seem being able to earn money from being a motor cycle commercial driver, he was still under the age of majority in Ghana. Counsel again harped on what was in PW 1’s witness statement (evidence in chief) and what transpired under cross-examination. This is in connection with what happened in the room when he attended to the call. He submits that PW 1 gave evidence which is clearly inconsistent with his evidence in chief, at pages 24 and 25 of the ROA where PW 1 testified as follows; Q: It is your case that as you got to the house, the accused person asked you about the late hour you were roaming about and the accused person started romancing you. What do you mean by romancing you? A: He robbed his hands on me severally. He said I should take off my clothes, I refused but he inserted his hand into my shorts and took out my penis, robbed it severally till it became erect, He put it into his mouth and started sucking it, so I pleaded with him to stop what he was doing, but he refused and I started crying. So due to my cry and scream, he told me to wear my clothes and leave. As I was leaving, he told me to take his trouser ~ 12 ~ for him. He gave me GHC 20.00 but I did not take it. When I was on my way going, he called me on phone and told me that he loves me that is why he was doing that. Q: From your narration, you refused to take off your dress, not so? A. Yes My Lord but I refused. Q: If he asked you and you refused, so at what point did he ask you to dress up and go? A: When he put his hands into my shorts. He brought my trousers down. Q: I put it to you that accused person never undressed you in his room. A: He put his hands into my shorts and pulled it down and brought out my penis. Q: When all these things were happening, were you sleeping or standing and was he sleeping down on the bed or standing? A: We were all on his bed. Q: Did the accused person drag you to his bed? A: No The Court cannot fathom what is inconsistent about this testimony when the question asked for further details to what he meant by romancing, if an open ended question is asked. How does this go to show that the Petitioner/Appellant's conviction and subsequent sentence cannot be supported by the evidence on record or that the Prosecution failed to prove its case beyond reasonable doubt? These were the first and second grounds of appeal built around supposed inconsistencies which were not substantial in any case. The nit picking tale of inconsistency as submitted by Appellant’s Counsel was also per their account in the testimony of PW 1 at page 31 of the ROA when PW 1 gave an account of the same event. This is what transpired. Q: You said when you went to the room, the accused person told you certain things, what did he tell you? ~ 13 ~ A: The accused person advised me about staying out late in the night because the world is not a safe place. Also, he advised me on other issues such as my unkempt hair and my dress, He told me about people he has been going to court with. He started rubbing his tongue all over me. He started kissing my ears, navel and armpit. He asked me that I remove my underwear and I refused and I told him I want to go home. He forcibly inserted his hand into my under pant and brought out my penis and started sucking it. He turned his back and asked me to insert my penis into his anus. He then wanted to insert his penis into my anus and I started crying. He asked me to wear my clothes and asked me to pick his trousers for him. Q: You said the accused person turned himself to you so you sodomize him. A. Yes I refused. That was when he turned me and I started crying. Q: I put it to you that you are not being truthful to the court. A: I have told the court what happened that night. Q: In your statement to the police and witness statement before the court, you did not say that the accused person offered himself to you. A: I told the police but maybe they did not write it down. Appellant’s Counsel submits that the testimonies of the PW I in respect of the same event is inconsistent and same is a clear departure from his evidence in chief. That PW 1’s different accounts of events as narrated above created doubt in the prosecution's case which this Court ought not to rely on and the doubt must inure to the benefit of the Appellant. He continues that PW 1 did not state anywhere in his evidence in chief that the Appellant turned himself to him to be sodomized or that the Appellant forcibly took out his penis from his pants, robbed same till it got erect and sucked it. That PW 1 also did not state in his evidence in chief that the Appellant started rubbing his tongue all over him thus these pieces of evidence were nothing more than an afterthought to incriminate the Appellant to achieve a desired result. That the inconsistencies, ~ 14 ~ variations and contradictions in PW 1’s testimony both in evidence in chief and under cross-examination are of such a grave nature and completely discredit the credibility of PW 1. Thus this Court cannot rely on the said inconsistent testimonies of PW 1. The Court however, contrary to what appellant and Counsel perceive as inconsistencies, rather sees same as details in answer to questions asked. If Appellant did not want details given they ought to have just denied the offense and left Prosecution to prove its case. Their style of cross examination which elicited details was them opening the door for such evidence to be led. Inconsistencies in the evidence of a party where they are insignificant can be overlooked but if they are substantial then a Court cannot close its eyes to them. In the case of OBENG VRS BEMPOMAA L 1992-931 GBR 1027, it was stated that: “Inconsistencies though individually colourless may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the Plaintiff and his witnesses weakened the merit of his case and proved fatal to his case” In the case of BREMPONG II V. THE REPUBLIC [1995-96] 1GLR 350 per holding 5, the Court of Appeal stated that; “in law, for conflicts and inconsistencies in evidence to influence a decision they had to be material and also destroy proof of an element of the offence or totally discredit the witnesses so as to make their testimony unreliable………..” The Learned Trial Judge at page 79 of the ROA stated as follows "In the humble view of this court, the said inconsistencies referred to by the defence counsel are not material to destroy proof of any of the elements in the offence of Indecent assault supra" ~ 15 ~ What this Court in its candid and considered opinion finds is that there were further details given by PW 1 in answer to questions and even if all were not written down in his testimony, it is trite that testimony is made up of both evidence in chief and answers to cross-examination. The Court does not find the first two grounds of appeal properly articulated before the Court to find favour. According to Appellant per his Counsel’s submission, at the end of the Prosecution's case certain lingering questions remained unanswered. For instance PW 1 stated that the event took place on 04/02/2020. The Investigator stated that PW 1 lodged his complaint on 17/02/2020, thirteen (13) clear days for him to lodge his complaint of the incident to the Police if the alleged incident is true. He submits that PW 1 made a report to the Police after the Appellant’s complaint to PW I's father about the rumours he had heard from friends. That according to PW 1 the Appellant removed his dress and PW I's dress so did the Appellant force the PW 1 and remov his dress? Also, was PW 1 in a sitting or standing position when the Appellant allegedly removed his dress? Did PW 1 resist Appellant's attempt to remove his dress? He speculates and wonders that PW 1 under cross- examination also stated that the incident happened on Appellant's bed so did the Appellant drag PW 1 to his bed? Did the Appellant lift or raise PW I's hand before the Appellant allegedly kissed his armpit? Did PW 1 resist Appellant's attempt to kiss his armpit and other parts of his body? The above questions if they were unanswered, the blame would have to fall at the doorstep of Appellant if he did not seek answers to same. The Appellant in his defence to the court, admitted all that the complainant said in terms of calling and inviting him to his house at the unholy hour of 11:00pm. This can be found at pages 10, 48 and 49 of the Record of Appeal. The duty therefore shifted unto the Appellant to only raise a doubt in the story of the complainant that he was indecently assaulted, as stated in ~ 16 ~ section 11 (3) of the Evidence Act, 1975 (NRCD 323). This, the Appellant woefully failed to achieve resulting in his conviction. The Trial Judge was right in disbelieving the testimony of the Appellant that, he called the complainant to his house at the unholy hour of about 11:00pm to advise him against staying out late. This is because, the Appellant having called the complainant to send him on an errand at that time of the night, can not purport to have called the Appellant solely to advise him against what he himself had wanted the complainant to do for him; be out late carrying his girlfriend from Dabala to Adutor. The Court is of the opinion having looked at the whole record that at the close of the prosecution's case Prosecution had adduced credible evidence to prove its case of indecent assault beyond reasonable doubt. There were no eye witnesses to the incident so it was a case of the P WI's oath against that of the Appellant. It is trite that any doubt in the Prosecution case must be resolved in favour of the Appellant, In AMARTEY V THE STATE (1964) 1 GLR 256 AT 259, SC, it was held that “Where a question boils down to oath against oath, its solution does not depend upon the whims and caprices of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under duty to consider firstly, the version of the prosecution, applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that is should move on to the second stage, i.e the credibility of the defendant's story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i,e whether short of believing it, the defence story is reasonably probable" See also LUTTERODT V COMMISSIONER OF POLICE (1963) 2 GLR 429, SC Corroboration is no longer a requirement of law in the absence of which the decision of the trial court will be reserved. The case of REPUBLIC VRS MUNKAILA [1996-97] SCGLR 445 and section 7(3) of the Evidence Act spells out this fact. Where no rule of law ~ 17 ~ or practice required corroboration, the test is whether the evidence, though given by a single witness was entitled to credibility. The Court could not act on uncorroborated evidence of a single witness since judicial decisions depend upon intelligence and credibility and not on the multiplicity of witnesses produced at the trial. See ERIC ASANTE VRS THE REPUBLIC [2017] 109 GMJ 1 SC; REPUBLIC VRS ASAFU- ADJAYE (NO.2) [1968] 567 CA. In sexual offences, it is very rare to get a third party eye witness though it is possible. This is normal since the act is usually done in secret. Unfortunately Appellant’s prayer that these grounds of appeal be allowed and the Appellant be acquitted and discharged cannot be answered in his favour since the Appellant's conviction can and is supported by the evidence on record. The first two grounds of Appeal fail, they are therefore refused and accordingly dismissed. The third ground of appeal says that the sentence is harsh and excessive under the circumstance. The conviction of the Appellant on the charge is supported by the evidence on record and the first and second grounds of appeal have been dismissed supra. The essence of this ground of appeal is no doubt to demonstrate to the Court that the sentence of 24 months imprisonment I. H. L imposed on the Appellant is harsh and excessive. The question of sentence is a matter of discretion with the Court as well as its statutory jurisdiction. Similarly, the determination of the length of sentence is also a matter of discretion for the Trial Court. However, the Courts always act upon the principle that the sentence imposed must be commensurate with the gravity of the offence. IN KAMIL VRS THE REPUBLIC 2011 30 G. M. J 1 SC, it was held that:“ Sentencing is a matter entirely within the discretion of the trial judge or the Appellate Court and two factors to ~ 18 ~ be considered in determining the length of sentence include mitigating and aggravating circumstances such as the extreme youth and good character” In APALOO VRS THE REPUBLIC 1975) 1 GLR 156 at 190, it was stated that: “The principles upon which this court acts on an appeal against sentence are well settled. It does not interfere with sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence, The court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case or that the sentence is wrong in principle”. In the case of ASAAH ALIAS ASI VRS THE REPUBLIC 1978 1 GLR 1-4, the Court held allowing the appeal as follows: “In dealing with an appeal against sentence, an appellate court had to find out whether there were any mitigating factors which the trial judge took or failed to take into consideration. If the record revealed that he took all the mitigating factors into consideration before imposing the sentence, then his discretion could be said to have been properly exercised, and in the absence of any special circumstances, an appellate court would be slow to interfere with such sentence. On the other hand if the record did not reveal that the trial judge took any such mitigating circumstances into consideration, then an appellate court would find out whether the mitigating factors were such that if the trial judge had adverted his mind to them, he would probably not have imposed such a severe sentence. 2. Since the appellant in this case was not represented by counsel at the trial, it was up to the trial judge to examine the facts himself and anything connected thereto and decide for himself whether the case warranted any lenient consideration. The record however did not reveal that any such examination was carried out in respect of the sentence. Consequently the appeal ~ 19 ~ against sentence would be allowed” Generally, no obligation is cast on the Trial Court to give reasons for sentences it imposes, there are however three main exceptions namely: i. Where a statute requires that the reasons should be given for the sentence. ii. Where the sentence is extremely high or quite close to the maximum limit and iii. Where the sentence is at the minimum or comes very close to the minimum limit and this discloses exception of leniency. In APALOO AND OTHERS VRS THE REPUBLIC 1975 supra it was held per holding 12 of the headnote that: “grave offences usually called for deterrent sentences. But the general principle was that a sentence of imprisonment, even though intended specifically as general deterrence, must not be excessive in relation to the facts of the offence. Having regard to all the circumstances, the sentences of the first appellant to fifteen years imprisonment was inordinately excessive and ought to be reduced to ten years imprisonment” In this instant Appeal the Trial Court imposed a sentence of 24 months imprisonment I. H. L on the Appellant. Section 103 (1) of Act 29/60 stated that: “A person who indecently assaults another person commits a misdemenour and is liable on conviction to a term of imprisonment of not less than six months” Counsel for Appellant urges on the Court that whilst the above mentioned section fixed the minimum sentence to be imposed on a convict at 6 months imprisonment, same is silent on the maximum sentence to be imposed. That having regards to the offence being ~ 20 ~ a misdemenour, the sentence of 24 months imprisonment I. H. L imposed on the Appellant is very harsh and excessive. They concede that the Trial Judge took into account the fact that the Appellant is a first time offender and a young man, and make a prayer that the sentence imposed on the Appellant be altered and or interfered with and the Appellant be given the minimum sentence of six (6) months imprisonment having regards to he being a young man of good character as narrated by DW 1, his plea for leniency and the fact that his intention was to advise his friend and brother (PW 1). They pray that the Court temper justice with mercy and deal leniently with the Appellant by reducing the sentence and impose the minimum sentence of six (6) months imprisonment in respect of the charge as the Appellant after his conviction and sentence on 21st April 2022 was in custody until he was granted bail on 6th June, 2022 meaning that the Appellant has spent one and half months in custody. The Court has considered the plea of Appellant and realizes that he does not appreciate how violating a person, a pre-adult at that can have lasting effects. He can deny that such an act never took place but the Court found him guilty after a full trial. Also in the case of KAMIL V THE REPUBLIC (2011) 1 SCGLR 302, the court held that:- "where an appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country.” This Court will however temper justice with mercy having considered the matter in its entirety and will reduce the sentence to 12 months IHL which Appellant is to serve immediately, less the time he already spent in custody until he was granted bail. [SGD] H/L JUSTICE DOREEN G. BOAKYE-AGYEI MRS. ESQ. JUSTICE OF THE HIGH COURT ~ 21 ~ CASES CITED ALI YUSIF (NO, 2) VRS. THE REPUBLIC (2003-20041 1 SCGLR AT 183-184 THE REPUBLIC VRS. FRANCIS IKE UYANWUNE L 2013 J 58 162 AT 177-181 KINGSLEY AMANKWAH (A. K. A SPIDER) VRS THE REPUBLIC L 2021) DLSC 10793, AMARTEY V THE STATE 1964 1 GLR 256 SC DARKO V THE REPUBLIC 1968 1 GLR 203, OBENG VRS BEMPOMAA L 1992-931 GBR 1027 BREMPONG II V. THE REPUBLIC [1995-96] 1GLR 350 AMARTEY V THE STATE (19641 GLR 256 AT 259, SC LUTTERODT V COMMISSIONER OF POLICE L 19631 2 CLR 429, SC REPUBLIC VRS MUNKAILA [1996-97] SCGLR 445 ERIC ASANTE VRS THE REPUBLIC [2017] 109 GMJ 1 SC; REPUBLIC VRS ASAFU-ADJAYE (NO.2) [1968] 567 CA. KAMIL VRS THE REPUBLIC 120111 30 G. M. J 1 SC APALOO VRS THE REPUBLIC 1975) 1 GLR 156 at 90, ASAAH ALIAS ASI VRS THE REPUBLIC L19781 GLR 1-4, ~ 22 ~