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Criminal - Defilement - contrary
to Section 101 (2) of the
Criminal Offences Act, 1960 (Act
29) as Amended by the Criminal
Offences (Amendment) Act, 1998,
Act 554 -
Whether
Appellant can testified on oath
without calling any witness.-
Whether DNA testing could
acertian the father a child
HEADNOTES
The case against appellant was
that on or about 12th November,
2003, while teaching
Agricultural Science at Nyohini
Presbyterian Junior Secondary
School (JSS) at Tamale, he
carnally knew a pupil of the
school aged 14 years According
the husband of the victim’s
auntie, who is the complainant
in the case, on 12th November,
2003 the victim complained to
him of pains in her body and
head so he asked her to attend
hospital the next day. Then the
next day, that is 13th November
2003, he the complainant
returned from school and met the
victim alone in the house
writing a love letter addressed
to one Mr. Eric so he seized it
and read. In the letter the
victim stated that she met the
Mr. Eric the previous day and
gave him what he wanted. She
thanked him for the money he
gave her. She expressed her love
for him and explained that she
could not visit him that day as
planned because she was unwell.
They met with the appellant in
his room and accused him of
having sexual relations with
their daughter but he denied it
completely wherefore they
exchanged words with him and
left. On 14th November,
2003 complainant made a report
of defilement against the
appellant to the Women and
Juvenile Unit (WAJU) of Tamale
Police -
HELD :-
In his statement of case
appellant prayed the court
pursuant to Article 14(7) of the
1992 Constitution to order
compensation to be paid to him
on account of his acquittal
after he has finished serving
his sentence. We are of the view
that the Appellant should apply
formally so that the court will
have evidence to form the basis
of any decision on the
compensation prayed for.
STATUTES REFERRED TO IN JUDGMENT
Criminal Offences Act, 1960 (Act
29) Section 101 (2)
Act 5541998, ( Amendment) Act,
Supreme Court Rule, 1996
(C.I.16),
R . 33 and 76
1992 Constitution Article
19(2)(c)
Evidence Act, 1975 (NRCD 323)
Sections 11(2) 13(1), 15(1)
Criminal Procedure Code 1960
(Act 30) Section 121
Ordinance (Cap 265)
English Criminal Appeal Act,
1907
Innocence Protection Act 2004,(
U.S.A.)
CASES REFERRED TO IN JUDGMENT
Nyame v Republic [1971] 140.
Republic V Yeboah [1968] GLR
248.
Oteng v The State [1966] GLR
352.
Nyameneba & Ors v The State
[1965] GLR 723.
Lemour v The State of Florida
802 So. 2d 402 (2001).
Republic v Asafu-Adjei (No2)
1968 GLR 567 CA
Reekie v The Queen (1952) 14
WACA 501
R. v Henry and Manning (1969) 53
Crim App Rep 150
Rex v Cohen and Bateman, 2 Cr.
App. R., 197 by Channel J at
page 207;
Kyiafi v Wono [1967] GLR 463 at
467 C.A
Ackom v Republic [1975] GLR 419.
BOOKS REFERRED TO IN JUDGMENT
Modern Scientific Evidence; The
Law and Science of Expert
Testimony, by David I. Faigman
et, 2012-2013 Edition Vol 4 page
117
COUNSEL.
KWAME BONI WITH HIM
FRANCIS-XAVIER KOJO SOSU ESQ FOR
THE APPELLANT.
K. ASIAMAH SAMPPONG ESQ (CHIEF
STATE ATTORNEY) FOR THE
REPUBLIC.
JUDGMENT
PWAMANG, JSC.
On 5th September, 2005 the
Appellant was convicted by the
High Court, Tamale of
Defilement contrary to Section
101 (2) of the Criminal Offences
Act, 1960 (Act 29) as Amended by
the Criminal Offences
(Amendment) Act, 1998, Act 554
and sentenced to 15 years with
Hard Labour. He was aggrieved by
the judgment so he appealed
against his conviction and
sentence but the Court of Appeal
by a unanimous decision dated 6th
April, 2006 dismissed the
appeal. On 17th July,
2012 this court granted leave to
appellant to appeal against the
judgment of the Court of Appeal
and he filed the pursuant Notice
of Appeal on 25th
July, 2012.
The case against appellant
was that on or about 12th
November, 2003, while teaching
Agricultural Science at Nyohini
Presbyterian Junior Secondary
School (JSS) at Tamale, he
carnally knew a pupil of the
school aged 14 years. At that
time the victim was living with
her auntie and her auntie’s
husband at Nyohini, a suburb of
Tamale. The victim’s biological
mother lived in the same area.
The auntie and her husband were
also elementary school teachers
at Nyohini but not in the same
school as the appellant and the
victim. According the husband of
the victim’s auntie, who is the
complainant in the case, on 12th
November, 2003 the victim
complained to him of pains in
her body and head so he asked
her to attend hospital the next
day. Then the next day, that is
13th November 2003,
he the complainant returned from
school and met the victim alone
in the house writing a love
letter addressed to one Mr. Eric
so he seized it and read. In the
letter the victim stated that
she met the Mr. Eric the
previous day and gave him what
he wanted. She thanked him for
the money he gave her. She
expressed her love for him and
explained that she could not
visit him that day as planned
because she was unwell.
The complainant brought
the contents of the letter to
the attention of his wife and
the victim’s mother and together
they questioned the victim as to
who the Mr. Eric was and what
she had doing with him. She told
them Mr. Eric was a teacher in
her school and her boyfriend so
they demanded that she took them
to him. She led them to the
house where the Appellant was
staying which is also at
Nyohini. They met with the
appellant in his room and
accused him of having sexual
relations with their daughter
but he denied it completely
wherefore they exchanged words
with him and left. On 14th
November, 2003 complainant made
a report of defilement against
the appellant to the Women and
Juvenile Unit (WAJU) of Tamale
Police and they issued a medical
form to the victim to attend
Tamale Teaching Hospital for
examination. At the hospital the
medical officer who attended to
the victim interviewed her and
she stated that the appellant
was her boyfriend with whom she
had sexual intercourse on
several occasions, the last
being on 12th
November, 2003. It would appear
that the doctor suspected
pregnancy so he made her to do a
scan and it came out that she
was 23 weeks pregnant at the
time. She attributed the
pregnancy to the Appellant.
Appellant was therefore
arrested by the police, charged
with defilement and prosecuted
by the Attorney General’s Office
at Tamale. It was a summary
trial in which the prosecution
called five witnesses including
the investigator and the
Appellant testified on oath
without calling any witness. He
maintained his innocence through
out but finally he was
convicted. In this final appeal
the appellant has stated six
Grounds of Appeal and they are
as follows;
i.
The Court of Appeal erred
by confirming the Judgment of
the Trial Court in spite of the
fact that the Judgment is
against the overwhelming
evidence on the record.
ii.
The Court of Appeal erred
in law by accepting and
confirming the finding of the
Trial Court that the pregnancy
of the Complaint was caused by
the Appellant without any DNA
Test or any other scientific
proof.
iii.
The Court of Appeal erred
when it accepted the evidence of
the Trial Judge on his (sic)
visit to the locus contrary to
the Rules of Court.
iv.
The Court of Appeal again
erred when it confirmed learned
trial judge’s error in law when
he stated that the age of the
alleged victim had been proved
beyond reasonable doubt when no
documentary evidence was led to
prove the age of the victim who
was a mother at the time of the
trial.
v.
The Court of Appeal again
erred when it confirmed the
learned trial judge error when
he admitted into evidence
alleged letter written by the
victim as that letter was not
sent to the forensic laboratory
to determine its partner since
there was evidence that there
were two teachers having Eric as
their first names.
vi.
That learned trial judge
erred in law when he sustained
an objection on the
Cross-Examination of PW2 on his
credibility.
After filing the appeal in
this court the Appellant applied
for an order directed at the
victim to present the child
delivered of the disputed
pregnancy for DNA testing
together with the appellant.
This was to ascertain if the
Appellant could be the father of
the child. The application was
not opposed by the
Attorney-General and was granted
by the court on 22nd
July 2014. The appellant faced
challenges in enforcing the
order against the victim so
further orders had to be made by
the court on 12th
November, 2014 and 11th
February 2015. Even then it was
not until learned counsel for
the appellant, Kwame Boni Esq,
proceeded against the victim and
her parents for contempt of the
Supreme Court that the child was
made available for the DNA test.
The test was finally conducted
on 7th July, 2015 at
the Forensic Science Laboratory
of the Criminal Investigation
Department of the Ghana Police
Service in Accra and a report
dated 29th July, 2015
was issued. On 28th
July, 2016 the court, pursuant
to R 76 of Supreme Court
Rule, 1996 (C.I.16), granted
leave for the DNA Report to be
tendered as new evidence.
DSP/Mr. Edward Kofi Abban, a
forensic analyst with the Ghana
Police Forensic Science
Laboratory, testified as a court
witness. The evidence thus
adduced forms part of the record
for the determination of this
appeal.
Before delving into the
merits of the appeal, we wish to
draw the attention of counsel to
the requirements of the rules of
the court pertaining to the
drafting of grounds of appeal in
criminal appeals, particularly
the general ground which is
commonly referred to as the
omnibus ground. They are
contained in R. 33 of (C.I. 16)
which states as follows:
“33. (1) The notice of
criminal appeal or notice of an
application for leave to appeal
shall set out concisely and
under distinct heads numbered
seriatim the grounds upon which
the appellant intends to rely at
t the hearing of the appeal
without any argument or
narrative.
(2) No ground of appeal
which is vague or general in
terms or discloses no reasonable
ground of appeal shall be
permitted except the general
ground that the judgment is
unreasonable or cannot be
supported, having regard to the
evidence.
It is Regulation 33(2) of
C.I.16 that should guide the
drafting of the general ground
of appeal in criminal matters
and not Regulation 6 (5) of C.I.
16 which relates to civil
appeals and talks of “the
judgment is against the weight
of the evidence”. In criminal
appeals that ground is drafted
as “the judgment is unreasonable
or cannot be supported having
regard to the evidence”. The
distinction is legally
significant in that it
determines how the appellate
court proceeds in assessing the
evidence. See Nyame v
Republic [1971] 140.
Nevertheless, in order to
do substantial justice in the
case we shall amend ground (i)
to read; the judgment cannot be
supported having regard to the
evidence. In this wise it is
relevant to state the
ingredients of the offence of
defilement which are as follows:
(i)
That the victim is under
the age of 16 years (as provided
for in Act 554).
(ii)
Someone had sexual
intercourse with her; and
(iii)
That person is the
accused.
See the case of
Republic V Yeboah [1968] GLR
248.
It is also useful to
remind ourselves of some
fundamental legal principles
pertaining to criminal trials in
Ghana. Article 19(2)(c) of
the 1992 Constitution
provides that;
“A person charged with a
criminal offence shall be
presumed innocent until he is
proved or has pleaded guilty.”
Our law is that when a
person is charged with a
criminal offence it shall be the
duty of the prosecution to prove
his guilt beyond reasonable
doubt, meaning the prosecution
has the burden to lead
sufficient admissible evidence
such that on an assessment of
the totality of the evidence
adduced in court, including that
led by the accused person, the
court would belief beyond a
reasonable doubt that the
offence has been committed and
that it is the accused who
committed it. Apart from
specific cases of strict
liability offences, the general
rule is that through out a
criminal trial the burden of
proving the guilt of the accused
person remains with the
prosecution. Therefore, though
the accused person may testify
and call witnesses to explain
his side of the case where at
the close of the case of the
prosecution a prima facie case
is made against him, he is
generally not required by the
law to prove anything. He is
only to raise a reasonable
doubt in the mind of the court
as to the commission of the
offence and his complicity in it
except where he relies on a
statutory or special defence.
See Sections 11(2) 13(1),
15(1) of the Evidence Act, 1975
(NRCD 323) and COP v
Antwi [1961] GLR 408.
However, beyond reasonable
doubt does not mean beyond a
shadow of doubt. The guilt of an
accused person is sufficiently
proved if the tribunal of fact
is convinced that he committed
the offence though there remains
a lingering possibility that he
is not guilty. See Oteng v
The State [1966] GLR 352.
We wish to also say a few
words about the DNA evidence
that has been adduced in this
case which appears to be a new
area of scientific evidence as
far as our country’s criminal
justice system is concerned.
Section 121 of the Criminal
Procedure Code 1960 (Act 30)
provides that in any criminal
proceedings a scientific report
may be used as evidence of the
facts contained in it. A
scientific report is prima facie
evidence of the matters
contained in it and not
conclusive evidence so the law
requires that where the accuracy
of a scientific report is
disputed in proceedings then the
person who undertook the
investigation or examination and
produced the report should
testify and subject himself to
cross examination. See
Nyameneba & Ors v The State
[1965] GLR 723.
DNA is derived from the
chemical substance
Deoxyribonucleic Acid that is
used to encode the genetic
information in living organisms.
The usual objective of forensic
DNA analysis is to detect
variations in the genetic
material that differentiate one
individual from another. Its
accuracy is rated very high and
it is considered reliable. See
Modern Scientific Evidence;
The Law and Science of Expert
Testimony, by David I. Faigman
et, 2012-2013 Edition Vol 4 page
117 and the case of
Lemour v The State of Florida
802 So. 2d 402 (2001).
Though in our country DNA
paternity testing is mostly used
in family suits, it may play an
important role in criminal cases
such as rape and defilement
where the victim also claims
that the accused is the father
of a child born out of the
unlawful sexual intercourse as
we have in this case. Where the
DNA test confirms the accused as
the father of the child, that
would constitute strong evidence
of sexual intercourse between
the accused and the victim. If
the DNA test excludes the
accused as father of the child,
that would mean that the accused
did not engage in the sexual
intercourse resulting in the
pregnancy. However, in a case of
multiple unlawful sexual
intercourse at different times,
if there is compelling evidence
linking the accused to some
other intercourse not connected
with the pregnancy, then he
would have to answer to
that.
It is with these
principles in mind that we
consider this appeal and
examine the evidence to
determine whether the conviction
of the appellant is supported
thereby. We intend to proceed in
the order in which we have set
out the ingredients of the
offence of defilement. In Ground
IV in the Notice of Appeal the
Appellant had attacked the
finding of the court below that
the prosecution had sufficiently
proved that the victim was aged
below 16 years. However he
abandoned that ground in arguing
the appeal in his statement of
case so we accordingly strike it
off. The effect is that the
finding of the court below
stands meaning the first
ingredient of the offence of
defilement was sufficiently
proved by the evidence led.
The remaining two
ingredients of the offence of
defilement namely; the act of
sexual intercourse and the
involvement of the appellant are
covered by Ground I of the
appeal and we shall consider
them in that order. It is
helpful to reproduce the
particulars of the charge that
was preferred against the
appellant.
“PARTICULARS OF CHARGE
Eric Asante, 26 years,
Teacher, on or about 12 day of
November, 2003 at Tamale in the
Northern Region of the Republic
of Ghana and within the
jurisdiction of this court did
have carnal knowledge of one…..,
a girl of fourteen years of
age.”
Of all the witnesses
called by the prosecution none
of them saw the act of sexual
intercourse, and this is normal
since the act is usually done in
secret. That notwithstanding,
this is what the trial court
stated in its judgment as proof
of the occurrence of sexual
intercourse:
“With regard to proof of the
second element that the victim
has been carnally known, the
evidence on this point is so
overwhelming. Apart from the
victim’s own testimony, the
medical report on her showing
that she was twenty-three weeks
pregnant and that the pregnancy
was intra uterine leaves this
fact beyond any doubt. The
medical doctor, PW4 in an answer
to a question as to whether he
examined the vagina of the
victim to find out if there was
any penetration answered that it
was unnecessary since the intra
uterine pregnancy meant that
there was penetration.”
The Court of Appeal also held as
follows:
“The particulars of offence
satisfied the requirement under
the new law by merely stating
that sex had taken place “on or
about the 12th of
November 2003”. The girl’s
testimony and letter confirmed
that sex with the said Eric had
taken place, a couple of days
before she was confronted by her
guardians. The fact of the
girl’s pregnancy confirms that
sexual acts had taken place and
that fact by itself beyond
reasonable doubt discharged the
burden of proof required from
the prosecution.”
It is therefore not
disputed that apart from the
victim saying that she had
sexual intercourse on the
specific day of 12 November,
2003, that is two days before
she was seen by the doctor, the
Medical Officer did not examine
her to ascertain whether it was
true. The fact of the pregnancy
confirmed that there was sexual
intercourse with the victim
about twenty three weeks prior
to the case being reported but
whether there was sexual
intercourse on 12th November,
2003 is a different matter. The
distinction is very significant
in the peculiar circumstances of
this case as will be seen later
in this judgment. It seems to us
that the presence of the
pregnancy misled the prosecution
to assume too many things. The
appellant had vehemently denied
having any sexual intercourse
with the victim on the 12th
November, 2003 or 23 weeks back.
In the absence of medical
evidence the decision on whether
the prosecution proved beyond
reasonable doubt that sexual
intercourse took place on or
about 12th November,
2003 ought to rest on the
availability of corroborative
evidence and the credibility of
the victim which issues we shall
address.
The third element of
defilement is that it ought to
be proved that it was the
appellant and no other person
who had sexual intercourse with
the victim. Here too, it is only
the testimony of the victim that
the prosecution proffered as
proof that appellant had sexual
intercourse with the victim.
None of the witnesses saw the
victim enter appellant’s room on
12/11/2003 or on any other day
for that matter but the trial
court and the court below
considered the pregnancy as
proof that the Appellant had
sexual intercourse with the
victim. However, the new
evidence given by the forensic
analyst is that the DNA tests he
conducted showed that the
appellant is excluded from being
a father of the child born of
the pregnancy in question. He
tendered the DNA report as
Exhibit ‘SCA’. His evidence was
not challenged and so we accept
it as the truth. That means that
the Appellant was not the person
who had the sexual intercourse
with the victim resulting in the
pregnancy. Nonetheless, K.
Asiama Sampong, learned Chief
State Attorney, in his statement
of case on behalf of the
respondent submitted as follows
in respect of the DNA evidence;
“The DNA results shows that the
appellant is excluded as the
biological father of the
child,…… but that has nothing to
do with the crime of defilement
against the appellant. From the
record of proceedings, evidence
showed clearly that the
appellant had amorous
relationship with the victim who
was at that time fourteen (14)
years. Upon these findings the
trial court convicted him and
sentenced him to 15 years IHL
imprisonment and not on the
issue of pregnancy.”
While we agree with the
learned Chief State Attorney
that in the particular
circumstances of this case
appellant is not entitled to an
acquittal on the sole ground
that the DNA evidence excludes
him as the father of the child,
it cannot be said that the
pregnancy and the child had
nothing to do with the
conviction. As pointed out
above, the trial court and the
Court of Appeal in their
judgments considered the
pregnancy as corroboration of
the victim’s testimony of sexual
intercourse with the Appellant.
The import of the DNA evidence
is that the victim was not
truthful when she testified on
oath that it was appellant who
had sexual intercourse with her
leading to the pregnancy and
that has legal implications
including her credibility as a
witness. Yet respondent may be
right since the actual charge
that was preferred against the
appellant was in respect of
sexual intercourse that
allegedly occurred on or about
12/11/2003. Therefore the
pregnancy aside, the question
remains whether the conviction
can be supported by other
corroborative evidence on the
record or otherwise.
It is pertinent at this
stage to discuss corroboration
in relation to proof in criminal
trials in general and sexual
offences in particular. We shall
thereafter examine the evidence
to see if, in the absence of the
pregnancy, the testimony of the
victim was corroborated in the
legal sense. There has never
been a general rule in this
country that a court in a
criminal trial cannot convict an
accused person on only the
testimony of one witness if that
witness is found to be credible
and the evidence of the accused
does not raise a reasonable
doubt as to his guilt. See
Republic v Asafu-Adjei (No2)
1968 GLR 567 CA. However,
before NRCD 323 came into force
in 1979, the English rules of
evidence which were applicable
in Ghana required that in trials
for sexual offences the judge
must direct himself and the jury
that corroboration of the
victim’s evidence was eminently
desirable in order to convict an
accused person. See the case of
Reekie v The Queen (1952) 14
WACA 501. Rationale for this
rule was given in the English
case of R. v Henry and
Manning (1969) 53 Crim App Rep
150 where Salmon L.J said
as follows at page 153 of
the Report:
“What the judge has to do
is to use clear and simple
language that will without any
doubt convey to the jury that in
cases of alleged sexual offences
it is really dangerous to
convict on the evidence of the
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.”
If the caution on the need
for corroboration was not noted
by the judge or properly given
to the jury in the judges
summing up, a conviction could
be set aside on an appeal on
that ground. However, it must
quickly be added that failure to
direct a jury on the need for
corroboration was not a fatal
error that automatically
resulted in a conviction being
overturned on appeal. In
Reekie v The Queen (supra) ,
a sexual offence case,
Foster-Sutton P, relying on
section 4(1) of the West African
Court of Appeal (Criminal Cases)
Ordinance (Cap 265) and the
English Criminal Appeal Act,
1907, at page 502-503 of the
Report adopted the following
statement of the law in the case
of Rex v Cohen and Bateman, 2
Cr. App. R., 197 by Channel J at
page 207; “ Taking section 4
with its proviso, the effect is
that if there is a wrong
decision on any question of law
the appellant has the right to
have his appeal allowed, unless
the case can be brought within
the proviso. In that case the
Crown has to show that on the
right direction, the jury must
have come to the same
conclusion.”
This clarification is
necessary because at times the
impression is created that NRCD
323 significantly changed the
law in respect of warning about
the need for corroboration in
trials of sexual offences as if
the law before the coming into
force of NRCD 323 made the
warning a rule of thumb breach
of which naturally resulted in a
conviction being overturned on
appeal. Section 7 (3) of NRCD
323 provides as follows:
“Unless otherwise provided by
this or any other enactment,
corroboration of admitted
evidence is not necessary to
sustain any finding of fact or
any verdict.”
Then at Section 7 (5) it
is provided as follows:
“Nothing in this section shall
preclude the court or any party
from commenting on the danger of
acting on uncorroborated
evidence or commenting on the
weight and credibility of
admitted evidence or preclude
the tribunal of fact from
considering the weight and
credibility of admitted
evidence.”
This implies that the good
sense in the policy that it is
dangerous to convict an accused
person on uncorroborated
evidence is given recognition in
NRCD 323.
Corroboration is evidence
which supports the testimony of
a witness by confirming that
the witness is telling the truth
in some material particular in
his testimony thereby giving
credibility to his story.
Corroborative evidence must be
independent of and from a source
other than the witness whose
testimony is sought to be
corroborated.
Upon reading the judgment
of the High Court we noticed
that the judge, apparently in
line with section 7 (5) of NRCD
323, warned himself about the
need for corroborative evidence
to support the testimony of the
victim and he went through the
proceedings in search of such
corroboration. This is what the
trial judge stated in that
regard;
“In this particular case
circumstantial evidence abounds
corroborating the prosecutrix
story that it was the accused
who debauched her. In the first
place, I have found that the
accused person is well known to
the victim and that the
relationship goes beyond the
teacher-pupil relationship …..
the evidence of Pw3, the
victim’s mother shows that the
accused person, on seeing the
victim in their company from a
distance unconsciously stood up
and called out the victim by
her name… Apart from the
conduct of the accused person
tending to show that he had some
intimacy with the victim we have
the letter which the victim
wrote to Mr. Eric.”
We have perused the record
and read carefully the evidence
of Pw3 but we are unable to find
the matter that the trial judge
referred to as indicating
intimacy between the victim and
the Appellant. This is the
relevant part of the evidence of
Pw3:
“A few meters to the house I
saw some men seated. As we got
near one of them on seeing us
got up and I suspected that that
one would be the Eric. I did not
know any of them. When we got
there my sister demanded to know
who was Eric Asante and Ruby
pointed out the accused who was
the one I saw get up. My sister
told him we were there to see
him and he suggested that we
should sit there but we told him
we wanted to meet him in his
room.”
It therefore appears to us
that the finding of intimacy
between the appellant and the
victim signified by the
appellant calling the victim by
name as made by the trial judge
is not borne out by the record.
If the appellant truly had an
unlawful relationship with the
victim it is unlikely that he
would offer to discuss the
mission of her parents in the
presence of others. As for the
letter, Exhibit “A”, written by
and found with the victim and
not the Appellant, its weight is
the same as the testimony of the
victim and since it is not
evidence coming from some other
source and independent of the
victim it does not qualify as
corroborative evidence. It is
self serving and ought not to
have been given much weight.
We like to point out that
the fact that corroboration is
generally not mandatory to
secure conviction does not mean
that where corroborative
evidence could be obtained in a
case, the prosecution can fail
to lead such evidence and turn
round to argue that
corroboration has not been made
a requirement by the statute
creating the offence in
question. A prosecution does so
at its own peril as that failure
may raise a reasonable doubt in
the mind of the court as to the
guilt of an accused person.
Furthermore, if the sole witness
turns out not to be a credible
witness, the prosecution’s case
will collapse. Corroborative
evidence in a case of this
nature where the victim did not
resist sexual intercourse is to
produce medical evidence of
penetration including emission
of semen into the victim’s
vagina. In this case the victim
met the medical doctor within 48
hours of the alleged intercourse
but no effort was made to
examine her vagina for possible
medical evidence of
penetration. The evidence of
the victim is that on the
12/11/2003 the appellant
requested her to take books to
his house after close of
classes. It is inconceivable
that no pupil in the class saw
the victim take the books to the
house of the teacher. The
victim herself mentioned a
friend whom she left her books
with on the day she allegedly
went to appellant’s house for
the first time and they had
sexual intercourse. Why did the
prosecution not produce this
friend of the victim to confirm
her story of visiting him in his
house.
For instance, in the case
of Republic v Yeboah (supra)
that the prosecution
referred to and the trial judge
relied on, the
prosecution called medical
evidence to the effect that the
accused person had chronic
gonorrhea and the victim was
infected by him. Two friends of
the victim who walked with her
to the residence of the accused
person and saw her enter there
testified for the prosecution
and this made the accused person
to admit that the victim entered
his room. So despite the accused
person’s denial of having sexual
intercourse with the victim, the
court convicted him on the
corroborative evidence. Where a
party in a trial refers to
matters that are capable of
independent proof in a positive
manner and those matters are
denied, the party does not
establish the truth of those
matters by stating them in the
witness box and failing to
proffer the other evidence which
in the circumstances of the case
should be available. Where the
circumstances of the case are
such that there can be no
corroborative evidence, that
will be a different matter but
not in this case.
But as we have stated
above, in the absence of
corroboration, if a court is
convinced beyond reasonable
doubt by the testimony of a sole
witness, it may convict. In
this case the trial judge in his
judgment stated that even in the
absence of the corroborative
evidence he would find that it
was the appellant who “ravished
the victim having found that the
prosecutrix is a witness of
truth.” An appellate court would
ordinarily not interfere with a
trial judges finding of
credibility of witnesses based
on demeanour since it would not
have had the benefit of hearing
and seeing them. However, in
Kyiafi v Wono [1967] GLR 463 at
467 C.A the court per
Ollennu J.A. said as follows:
"It must be observed that
the questions of impressiveness
or convincingness are products
of credibility and veracity; a
court becomes convinced or
unconvinced, impressed or
unimpressed with oral evidence
according to the opinion it
forms of the veracity of
witnesses."
A court has to test its
impression as to the veracity or
truthfulness of oral testimony
of a witness against the whole
of the evidence of that witness
and other evidence on record.
See Ackom v Republic [1975]
GLR 419. In the
circumstances of this case where
new evidence was admitted in the
appeal, though we are exercising
an appellate jurisdiction, we
are required to determine the
veracity of the victim’s
testimony against all the
evidence before us. In view of
the evidence before us the
question we ask ourselves is; if
the trial judge knew what we now
know namely; that the testimony
of the victim to the effect that
it was appellant who impregnated
her was deliberate falsehood,
whether he would still describe
her as a witness of truth? If
she chose to lie on oath about
the pregnancy what else did she
lie about in her testimony?
In our judgment the DNA
evidence does tremendous damage
to the credibility of the victim
and her disposition to speak the
truth in this case is put in
serious doubt. It does appear
that the reason Salmon L. J
proffered in R v Henry and
Manning (supra) for the
insistence on corroboration of a
victim’s testimony in sexual
offences is unfortunately
justified by this case. Why did
the victim fabricate a false
story and repeat it on oath that
her pregnancy was caused by the
Appellant? Did she really have
any sexual intercourse at all on
12/11/2003? The totality of the
evidence leaves a reasonable
doubt in the mind of the court
as to whether on or about
12/11/2003 the victim engaged in
sexual intercourse at all and
with the appellant in particular
and we are bound by law to
resolve that doubt in favour of
the appellant. It is our
considered opinion that the
conviction of the appellant
cannot be supported by the
totality of the evidence before
us so the appeal must succeed.
Our advice is that where
the liberty of the individual is
concerned, prosecutors, defence
counsel and judges should keep
an open mind and strictly abide
by the time-tested rule that the
accused person is innocent until
proven guilty beyond reasonable
doubt. In this case the
appellant maintained his
innocence right from the first
day he was accused in his room,
to the police station and
throughout the trial. There was
a hint of doubt as to whether it
was the Appellant who was
responsible for the pregnancy
when during the cross
examination of the victim it was
suggested to her that she had
complained to a friend that her
auntie’s husband was sexually
abusing her which she denied.
When the auntie’s husband was
under cross examination the
court upheld an objection
against him being cross examined
on that matter. Counsel for
appellant at the trial stage
failed to refer the court to the
earlier questions put to the
victim herself and also did not
pursue that matter.
Having concluded that the
conviction cannot be supported
by the evidence we do not
consider it necessary to
determine the other grounds of
appeal. We commend Kwame Boni
Esq, lead counsel for the
appellant in this court, for his
resilience in pursuing justice
for the Appellant. The appeal is
allowed and the appellant is
acquitted. Since he has finished
serving his sentence of 15 years
IHL, an order of discharge will
be otiose. This is an example of
the tragedies of the criminal
justice system whereby persons
who might not have committed
crimes get imprisoned or may
even suffer the death penalty.
Unfortunately this does not
occur in Ghana alone. In 2004,
the United States Congress
passed the Innocence Protection
Act as a part of the Justice for
All Act, 2004, which allows a
convicted person under a
sentence of imprisonment or
death who swears that he is
actually innocent to apply for
Post-Conviction DNA testing
where it is relevant to his
defence. Such testing is paid
for by the Federal government
and if an exculpatory report is
issued the case of the convict
would be reopened. Similar
legislation in our dear nation
will be of assistance in
improving access to justice for
innocent but indigent convicted
persons.
In his statement of case
appellant prayed the court
pursuant to Article 14(7) of the
1992 Constitution to order
compensation to be paid to him
on account of his acquittal
after he has finished serving
his sentence. We are of the view
that the Appellant should apply
formally so that the court will
have evidence to form the basis
of any decision on the
compensation prayed for.
(SGD) G. PWAMANG
JUSTICE OF THE
SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
(SGD) P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) YAW APPAU
JUSTICE
OF THE SUPREME COURT
COUNSEL
KWAME BONI WITH HIM
FRANCIS-XAVIER KOJO SOSU ESQ FOR
THE APPELLANT.
K. ASIAMAH SAMPPONG ESQ
(CHIEF STATE ATTORNEY) FOR THE
REPUBLIC. |
