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Criminal law
– Rape - carnal knowledge of a
female without her consent -
Convicted by a Court with jury -
Oath against oath -
Credibility of the prosecution
witnesses - Circumstantial
evidence - Standard of proof -
Section 97 of the Criminal and
other offences Act, 1960, Act 29
as amended by Act 458. (1993) -
HEADNOTES
P.W.1 is a
trader who hawked second hand
clothes on the Kinbu road near
the Central Police Station,
Accra. She alleged that on the
22nd day of June,
1998, whilst selling her wares
as she normally does around the
Central Police Station, the two
accused persons, called her to
their office, pushed her into a
store room and had sex with her
in turns without her consent.
After the incident, P.W.1
reported the matter to her
friends who accompanied her back
to the Central Police Station,
whereupon prompt investigations
were conducted by the Police
which confirmed the report of
Rape against PW.1. The two
accused persons were
subsequently arrested, charged,
tried convicted and sentenced
after their conviction by the
jury. The case of the two
accused persons which is not
different was a total denial.
P.W.1 had been the girlfriend of
1st accused three
months before the incident, and
that they had previously had
consensual sex twice, once in
his room at the Barracks and
once at the station view Hotel
at Tudu. According to A1, since
he and A2 had been friends for a
long time, A2 also knew about
relationship with the victim
P.W1. The accused
contended that PW1 informed A1
about her pregnancy and demanded
money to abort it but he wanted
medical proof before
intervention. On the 22nd
of June 1998, the date of the
alleged incident, the 1st
accused contended that both he
and 2nd accused were
at the scene of the incident and
that he was off duty, whilst A2
was on duty. It was contended
further that P.W.1 came to
demand an amount of ¢100,000.00
(now Gh¢10.00) as the amount
spent by her on the abortion and
that his failure to pay led to
verbal insults by P.W.1 with a
threat by P.W.1 on their lives.
This incident is alleged to have
happened at about 11.00am.
According to the accused,
PW1 returned later at about
1.30pm with two other friends
and with more venom in her,
continued the verbal assault on
them and that it was this noise
which woke up PW5 Adeline
Dzomeku who was asleep in a
nearby room opposite where the
rape allegedly took place. The
accused therefore denied in its
entirety the rape charge against
them. According to A1, since he
and A2 had been friends for a
long time, A2 also knew about
relationship with the victim
P.W1. The accused contended that
PW1 informed A1 about her
pregnancy and demanded money to
abort it but he wanted medical
proof before intervention. On
the 22nd of June
1998, the date of the alleged
incident, the 1st
accused contended that both he
and 2nd accused were
at the scene of the incident and
that he was off duty, whilst A2
was on duty. It was contended
further that P.W.1 came to
demand an amount of ¢100,000.00
(now Gh¢10.00) as the amount
spent by her on the abortion and
that his failure to pay led to
verbal insults by P.W.1 with a
threat by P.W.1 on their lives.
This incident is alleged to have
happened at about 11.00am.
According to the accused, PW1
returned later at about 1.30pm
with two other friends and with
more venom in her, continued the
verbal assault on them and that
it was this noise which woke up
PW5 Adeline Dzomeku who was
asleep in a nearby room opposite
where the rape allegedly took
place. The accused therefore
denied in its entirety the rape
charge against them. As was
stated much earlier in this
judgment, following their
conviction by the jury in the
trial High Court and sentence by
the trial judge, an appeal
against both conviction and
sentence was similarly dismissed
by the Court of Appeal, hence
the instant appeal.
HELD
We are
therefore unable to accept the
inferences that learned Counsel
for the accused sought to create
on circumstantial evidence
Similarly, in the present case,
the accused persons who are
policemen and mandated to
maintain law and order but have
rather become the perpetrators
of crimes against innocent law
abiding citizens who they are to
protect must receive harsh and
deterrent sentences. It is our
firm hope and belief that the
time has indeed come for the
courts to deal very ruthlessly
with perpetrators of such
heinous crimes such as rape or
defilement especially when the
accused happen to be policeman,
teachers who have charge of the
victim or even parents or
guardians. This is the only way
by which as a country we can
protect the sanctity and
chastity of our women and girls.
As an appellate court
however, we do not feel it is
necessary at this stage to
increase the sentence. Trial
courts should however embark
upon a crusade by imposition of
deterrent sentences in cases of
rape to help manage a reduction
of the high number of cases in
this regard.
The appeal herein
fails in its entirety and is
accordingly dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Criminal and
other offences Act, 1960, Act
29 as amended by Act 458.
(1993)”.
1992
Constitution
Evidence Act,
1975 NRCD 323
CASES
REFERRED TO IN JUDGMENT
Lutterodt vrs
Commissioner of Police [1963] 1
GLR 429
Amartey vrs
Republic 1964 GLR 256 at 295.
Darko vrs
Republic 1968 GLR 203
Diaz vrs The
State (1990) LRC (Crim) 317
Chamberlain
and Anr (1985) LRC (Crim) 285
R. V. Van
Beelan (1973) 4 SASR 353
Regina vrs
Ansere (1958) WALR vol. 3 385
Rex vrs
George Kure (1941) 7 WACA
Sarpong vrs
Republic [1981] GLR 790
Adam vrs The
Republic [1992] 2 GLR 150
Tetteh vrs
The Republic [2001-2002] SCGLR
854
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE, JSC
COUNSEL
AHUMAH
OCANSEY FOR THE APPELLANT.
ANTHONY
REXFORD WIREDU (P.S.A) FOR THE
ATTORNEY GENERAL
.
____________________________________________________________
J U D G M E N T
____________________________________________________________
DOTSE, JSC
INTRODUCTION
The brief facts of this case are
that, the accused/appellants,
hereafter referred to as accused
had been charged with the
offence of Rape, tried and
convicted by a Court with jury
and sentenced to 15 years
imprisonment each, with hard
labour on the 18th
day of July, 2003 by Avril
Anin-Yeboah J (Mrs).
On the 13th day of
November 2008, an appeal against
the conviction and sentence of
the accused persons was
unanimously dismissed by the
Court of Appeal. It is against
this Court of Appeal decision
that the accused persons have
appealed to this Court on the 11th
day of December 2008.
GROUNDS OF APPEAL
1. The Court failed to
consider and analyse the defence
of the appellant which
shows the improbability of the
alleged act of rape, given the
circumstances of the
deed.
2. The Court failed to
appreciate the absence of a
material witness of the
prosecuton as being fatal to the
proof of the alleged rape beyond
reasonable doubts.
FACTS:
As stated supra, the accused persons
were arraigned before the trial
High Court on a charge of rape.
The statement and particulars of the
offence, which are identical and
similar read as follows:
“Rape contrary to
section 97 of the Criminal and
other offences Act,
1960, Act 29 as amended by Act
458. (1993)”.
PARTICULARS
The two accused persons who at all
material times were policemen
were alleged on or about 22nd
day of June, 1998 at Accra in
the Greater Accra Region and
within the jurisdiction of the
Court to have had carnal
knowledge of Cynthia Nyante a
female without her consent.
CASE FOR THE PROSECUTION
The case for the Prosecution was
presented mainly by the victim
of the Rape, Cynthia Nyante, PW1
and supported largely by the
evidence of the following :
1. P.W.2 - Dr. Christian
Boamah Mensah the medical
officer at the Police
Hospital who examined P.W.1
after the alleged rape
2. P.W.3 – Joseph Kwesi Addo
a Police Investigator at the
material time attached
to the Accra Regional Police CID
who investigated the case.
3. P.W.4 – Samuel Nartey who
worked at the material time at
the station view Hotel,
Tudu who testified that the 1st
accused never came to their
Hotel with P.W.1.
4. PW5 – Police Constable
class 1 Adeline Dzomeku
stationed at Railways Police,
but living at the Accra Central
Police Division Sports Annex
near the place where the
incident was alleged to have
happened.
5. PW6 – Chief Inspector
Stephen Amoako who was at the
material time stationed
at the Regional CID in Accra and
who received the initial
complaint in the case and
carried out preliminary and far
reaching investigations
into the case. We will return to
this issue later.
Based upon the testimonies of the
above witnesses, the
prosecutions case can very
briefly be summarised as
follows:
P.W.1 Cynthia Nyante is a trader who
hawked second hand clothes on
the Kinbu road near the Central
Police Station, Accra. She
alleged that on the 22nd
day of June, 1998, whilst
selling her wares as she
normally does around the
Central Police Station, the two
accused persons, called her to
their office, pushed her into a
store room and had sex with her
in turns without her consent.
After the incident, P.W.1
reported the matter to her
friends who accompanied her back
to the Central Police Station,
whereupon prompt investigations
were conducted by the Police
which confirmed the report of
Rape against PW.1. The two
accused persons were
subsequently arrested, charged,
tried convicted and sentenced
after their conviction by the
jury.
CASE FOR THE DEFENCE
The case of the two accused persons
which is not different was a
total denial. P.W.1 had been the
girlfriend of 1st
accused three months before the
incident, and that they had
previously had consensual sex
twice, once in his room at the
Barracks and once at the station
view Hotel at Tudu.
According to A1, since he and A2 had
been friends for a long time, A2
also knew about relationship
with the victim P.W1.
The accused contended that PW1
informed A1 about her pregnancy
and demanded money to abort it
but he wanted medical proof
before intervention. On the 22nd
of June 1998, the date of the
alleged incident, the 1st
accused contended that both he
and 2nd accused were
at the scene of the incident and
that he was off duty, whilst A2
was on duty. It was contended
further that P.W.1 came to
demand an amount of ¢100,000.00
(now Gh¢10.00) as the amount
spent by her on the abortion and
that his failure to pay led to
verbal insults by P.W.1 with a
threat by P.W.1 on their lives.
This incident is alleged to have
happened at about 11.00am.
According to the accused, PW1
returned later at about 1.30pm
with two other friends and with
more venom in her, continued the
verbal assault on them and that
it was this noise which woke up
PW5 Adeline Dzomeku who was
asleep in a nearby room opposite
where the rape allegedly took
place. The accused therefore
denied in its entirety the rape
charge against them.
As was stated much earlier in this
judgment, following their
conviction by the jury in the
trial High Court and sentence by
the trial judge, an appeal
against both conviction and
sentence was similarly dismissed
by the Court of Appeal, hence
the instant appeal.
APPEAL TO THE SUPREME COURT
Ground One
The first ground of appeal brings
into sharp focus the decision in
the following cases:
1. Lutterodt vrs
Commissioner of Police [1963] 1
GLR 429
holding
3
2. Amartey vrs
Republic 1964 GLR 256 at 295.
3. Darko vrs
Republic 1968 GLR 203.
The Supreme Court in Amartey
vrs Republic case,
supra, laid down the following
test for general application in
all criminal cases.
“Where a question
boils down to oath against oath,
especially in a criminal case,
the trial Judge should first
consider the version of the
prosecution, applying to it all
the test and principles
governing credibility
of witnesses, when
satisfied that the prosecution’s
witnesses are worthy of belief,
consideration should then be
given to the credibility of
the accused’s story, and
if the accused’s case is
disbelieved, the Judge should
consider whether, short of
believing it, the accused’s
story is reasonable probable”
This will therefore mean that, in
order to do justice to this
ground of appeal, we would have
to evaluate the ingredients of
the offence with which the
accused had been charged with
and the evidence that had been
led in support.
It is after this that the defence of
the accused persons ought to be
considered in the light of the
decision in the Amartey case
cited supra, since the case
seems to boil down to one of
oath against oath. In all this,
it is important for this Court
to bear in mind that the
Constitution 1992 article 19 (2)
(c) presumes everyone innocent
until the contrary is proved. In
other words, whenever an accused
person is arraigned before any
court in any criminal trial it
is the duty of the prosecution
to prove the essential
ingredients of the offence
charged against the accused
person beyond any reasonable
doubt. The burden of proof is
therefore on the Prosecution and
it is only after a prima facie
case has been established by the
Prosecution that the accused
person is called upon to give
his side of the story.
WHAT THEN IS RAPE
Section 99 of Act, 29 defines Rape
as
“carnal knowledge of
a female without her consent”.
Carnal knowledge is the penetration
of a woman’s vagina by a man’s
penis. It does not really matter
how deep or however little the
penis went into the vagina. So
long as there was some
penetration beyond what is known
as brush work, penetration would
be deemed to have occurred and
carnal knowledge taken to have
been completed.
INGREDIENTS OF RAPE
The following are the ingredients of
Rape:
1. That someone has had
carnal knowledge of the victim,
in this case Cynthia Nyante
(PW1) by the accused persons
2. That, the someone is the
accused person, in the instant
case, the two accused
persons.
3. That the PW1 was carnally
known against her wish i.e. in
this case, that the two
accused had sex with PW1 against
her will.
PW1herself has led evidence about
how she was carnally known by
the two accused persons. The
evidence of PW1 which is very
chilling is captured on pages
4-12 of the appeal record.
In order to set, the records
straight, let us quote relevant
portions of the evidence of PW1.
“That day I
was hawking with my second hand
cloth in front of the Central
Police Station to Kantamanto
whiles going the accused persons
called me…
After I went
to them to have a look at my
things they spoke something in
Ga and since I have not been
in Accra for long, I did not
understand what they were
saying. All of a sudden, they
opened a door and they pushed
me inside the room. The 2nd
accused closed the door so I was
left in with the 1st
accused in the room. In the room
I saw two foams on the floor,
one has been covered with
a red cloth and the other one
with a plain cloth.
The 1st accused then
pushed me down on the foam,
kneel on my thighs, remove
my pant and have sex with me. He
had sex with me, four times
whilst he the 2nd
accused called him and said
charley do it fast, officer will
come.
So he stopped
and went out. He did not even
give me anything to clean
myself whilst the 2nd
accused also came in and have
sex with me once.
After they have finished, they
opened the door for me and
packed my things for me and
asked me to go.
I really
cried but there was nobody to
help because the windows were
all closed. So I went to
Kantamanto to tell my friend
Salome that two policemen have
slept with me and she said no
Cynthia let’s go to them”
We have decided to quote in extenso
the relevant portions of the
evidence of PW1 on the issue of
establishing the ingredients of
the offence of rape and also to
respond adequately to the points
of substance that had been
brilliantly argued in the well
written submissions of learned
Counsel for the accused persons,
Mr. Ahumah Ocansey.
The evidence of PW1 had been
materially corroborated with
that of PW2, Dr. Boamah who
examined PWI after the rape
incident.
In her evidence on pages 14-18 of
the appeal record, PW2 tendered
the medical report Exhibit A,
which is on page 123 of the
record and which reads as
follows:
“V/v – multiple
abrasions (L) Labia majora and
posterior, hypercentre
vaginal mucosa, vaginal
discharge with probable semen.
No active bleeding…………….”
Explaining the above report, PW2,
stated in her evidence on page
15 as follows:-
“ I dwelt on the
vagina examination and I said
the multiple abrasions,
which means small small tears
small lacerations. I said it was
on the left outer lip that’s
what we call labia majora and
then posterior that is you
look at the outer lip
deeper inside, noticed there is
small abrasions
there. Then I said the inner
vagina was red and I stated that
there was a vagina discharged
with a probable semen….. but
what is most important is
the spermatocytes in
the swab that I took”.
Concluding her testimony, PW2 stated
her opinion as follows:
“In this specific
case all that I can say is that
it could have been caused
by very firm male organ, which
later discharged some sperms”.
It is also important to note that,
during the testimony of PW6, who
was at all material times a
Chief Inspector at the Regional
C.I.D in Accra when the report
of rape by PWI was made against
the accused persons, stated on
pages 49 -50 of the record as
part of the investigations he
conducted in the case as
follows:-
“The description that
the complainant gave me tally
with the items I found in the
room. My Lord, during inspection
I found a broken earring
stocked in one of the
foam”.
The above piece of evidence is in
tandem with that of PW1 on page
6 of the record when she stated
as follows:-
“When we got to the
place they asked me if truly
that, the accused persons have
slept with me in there will I be
able to show them the
things I saw in the room. I told
them I saw two foams on the
floor, one covered with
red cloth and the other white
cloth and a bench lying near
one of the foams.
I also saw a big robe
in the room and a lot of things
were in the room.
“Truly, when they
opened the door they saw that
all what I mentioned
were found in there. I saw my
earring stopper on the
foam.
Q. If you see this earring
stopper will you be able to
recognise
A. Yes my Lord
Q. Have a look at this and
see whether this is yours
A. Yes, is for me”
PROOF OF RAPE
From the above pieces of evidence it
is very clear, that PW1 Cynthia
Nyante has been carnally known
by someone.
In this instance, the carnal
knowledge of PW1 has also been
confirmed by PW2, the Medical
Officer who examined her shortly
after the incident.
Has it also been clearly established
that the accused persons were
those who carnally knew P.W.1?
Again from the evidence of P.W.1 and
the circumstantial evidence from
P.W.5 and P.W.6, it is quite
clear that it is the accused
persons who carnally knew PW1.In
the first place, PW5, Adeline
Dzomeku is the Police woman who
confirmed that she saw P.W.1 in
front of the office where she
was raped on the day in question
and around the same time that
P.W.1 stated.
Secondly, P.W.6 found an earring
stopper on the foam in the
office that P.W.I alleged the
rape incident took place. P.W.I
has indentified that earring
stopper as her own and could
this be accidental or what?
There can only be one meaning to
this fact, the earring stopper
fell off during the sex escapade
on the foam mattress that was
used as the operational base.
From these pieces of evidence
put together, it is also
established that PW1 was
carnally known against her wish
by the accused persons.
In this respect therefore, so far as
the Prosecution is concerned,
they have succeeded in proving
the essential ingredients of the
offence of rape against the
accused persons.
What has to be considered is whether
the learned trial Judge proved
equal to the test that has been
laid down in the case of Amartey
vrs. State, referred to supra?
Since the trial of the accused was
on indictment, the summing up of
the Judge to the jury is of
paramount importance. The
summing up is at pages 113-120
of the record.
A perusal of same reveals that the
learned trial Judge properly
directed the Jury to apply the
principles enunciated by the
Supreme Court in the Amartey vrs
State case, already referred to
supra.
It is to be observed that, the
learned trial judge adequately
considered the case of PW1, see
page 115 of the record, just as
she did of the defence case also
on page 115 of the appeal
record.
Then the learned trial Judge
directed the jury as follows:
“With the defence of
the accused person’s in mind let
us consider PW1’s story.”
The learned trial Judge continued on
page 116 of the record as
follows:
“It is PW1’s word
that it was the accused person’s
who had sex with her without
her consent against that of the
accused person nobody else was
present but then so
that evidence becomes crucial.
I warn myself and
also warn you to be cautious
when evaluating the
evidence of PW1.
Since there
was nobody else present to
confirm what she says in other
words there has been no
direct corroboration of PW1’s
allegation that she has been
raped. You can however use the
surrounding
circumstances to determine the
truth or otherwise of P.W.1’s
claims. If these
circumstances implicate, connect
or link the accused with the
offence then they amount to
corroboration.”
The learned trial Judge then
proceeded to ask series of
critical and revealing
questions.
We are indeed satisfied that the
Prosecution have been able to
establish the essential
ingredients of the offence of
rape against the accused persons
not only on the standard of
proof laid down in the Amartey
vrs State Case, but also as
stated in the Evidence Act,
1975 NRCD 323, section 13
(1) thereof.
We have considered in detail the
erudite submissions of learned
Counsel for the accused persons,
as well as the belated
submission of the learned
Principal State Attorney.
CREDIBILITY OF PROSECUTION
WITNESSES
Counsel for the accused person
submitted rather forcefully that
the prosecution witnesses should
not have been believed and that
they lack credibility. Learned
Counsel then relied on the
dictum of Bernard CJ in the case
of DIAZ vrs The State
(1990) LRC (Crim) 317 pg
324 and concluded that the
directions to the jury by the
learned trial Judge in this case
on the distressed condition of
PWI was improper.
We have also taken serious note of
the submissions by learned
Counsel for the accused persons,
that the credibility of the
prosecution witnesses is suspect
and the court should have given
the necessary directions and
caution to the jury.
Unfortunately, we are unable to
agree with such a submission.
This is because, quite apart
from the fact that the case of
the prosecution, especially
P.W.1 is one of oath against
oath, there are pieces of
evidence which if put together
make a very strong case against
the accused persons. It is like
series of small threads and when
put together, make a very strong
rope. The same with
circumstantial evidence. It is
generally accepted that when
direct evidence is unavailable,
but there are bits and pieces of
circumstantial evidence
available, and when these are
put together they make stronger,
corroborative and convincing
evidence than direct evidence.
In the instant case, the following
pieces of evidence helped in
making very strong
circumstantial evidence against
the accused persons:
i. The detailed and correct
description given by P.W.1 of
the operation room.
ii. The presence of the
earring stopper of P.W.1 on the
foam mattress.
iii.
The identification of P.W.1 by
P.W.5 as being present in front
of the room on the date in
question.
iv.
Denial by P.W.4 that 1st
accused ever came to the Station
View Hotel, Tudu, with PWI to
have sex.
v.
Confirmation by P.W.2 that P.W.1
had been carnally known by an
erect male organ.
We are therefore unable to accept
the inferences that learned
Counsel for the accused sought
to create on circumstantial
evidence by referring to the
Australian case of
Chamberlain and Anr (1985) LRC
(Crim) 285 where the
Court cited the case of R.
V. Van Beelan (1973) 4 SASR
353, at page 374 where
the court stated the standard of
proof that must be established
in cases where circumstantial
evidence is used or accepted as
the yardstick in measuring the
guilt of the accused.
In the instant case, since there is
no doubt in the drawing of
inference of quilt from the
combination of established and
proven facts as stated supra
against the accused persons on
record, it must be taken that
the said authority does not
apply.
We also wish to comment in passing
that the attempt by learned
Counsel for the accused persons
to create the impression that
the evidence by P.W.1 that the 1st
accused had sex with her four
times before the 2nd
accused had his turn is
improbable and therefore has
created a credibility issue is
unacceptable. What must be noted
is that, the perception of what
is one round of sex might be
from the victim’s point of view
or from the accused’s point of
view. In this case, considering
the trauma which PW1 as the
victim is likely to go through
in the hands of Police Officers
who are to protect her, that
event is enough to traumatize
her
On the totality of the
direction by the learned trial
Judge, we find as a fact that
she considered every possible
defence that the accused raised
together with the host of
circumstantial evidence that was
available in this case.
In our minds, the critical
question to consider is whether
the Judge directed the jury to
consider the totality of the
Prosecution and defence cases.
In the instant case, we are
satisfied that the Judge and the
tribunal of fact, (the jury)
considered the whole evidence
from the prosecutions point of
view and applied to it all the
relevant tests such as whether
short of believing the accused
person’s story, it was
reasonably probable.
It was only after this evaluation
that the jury retired and came
back with a unanimous guilty
verdict.
Since this court cannot determine
what went on in the minds of the
Jurors when they retired to
consider their verdict, the only
way of assessing the
satisfactory nature of the
directions to the jury is from
the summing up.
Once a court of law such as this
appellate court is satisfied
that the learned trial Judge had
adequately raised all necessary
questions and legal issues that
ought to be considered by the
Jury, then as William
Shakespeare said in Macbeth
“There is no art to
find a mind’s construction in
the face”
The matter must be laid to rest on
this issue. The records show
clearly that the learned trial
Judge adequately directed the
jury on the standard of the
burden of proof in such cases,
and created the necessary nexus
between the instant case and the
offence charged and the evidence
that had been led.
With the resolution of this issue,
ground one of the appeal is
accordingly dismissed.
GROUND TWO
The court failed to appreciate
the absence of a material
witness of the Prosecution as
being fatal to the proof of the
alleged rape beyond reasonable
doubt.
In support of this ground, learned
Counsel for the accused person
stated that the failure of the
Prosecution to call one ASP
Caulley, the Police Officer
mentioned to be in charge of the
store room which was said to the
room where the rape took place
is fatal to the case of the
Prosecution. Learned Counsel
then referred to a number of
otherwise respected legal
authorities to support his
contention. Some of these cases
are:
i. Regina
vrs Ansere (1958) WALR vol. 3
385 at 388
ii. Rex
vrs George Kure (1941) 7 WACA
iii.
Sarpong vrs Republic [1981] GLR
790 holding 3, 792
iv. Adam
vrs The Republic [1992] 2 GLR
150 at 153
v. Tetteh
vrs The Republic [2001-2002]
SCGLR 854 at 857
Admittedly, the principle of law
stated in all the above cases is
good law and in respect of which
we think this court has no
intention of departing from.
However, the said principle of
law does not merit the
application which learned
Counsel for the accused invites
this court to do.
We have always held the view that in
establishing the standard of
proof required in a civil or
criminal trial, it is not the
quantity of witnesses that a
party upon whom the burden of
proof rests calls to testify
that is important, but the
quality of the witnesses called
and whether at the end of the
day the witnesses called by the
party have succeeded in proving
the ingredients required in a
particular case.
In other words, does the evidence
led merit the standard of proof
required in a particular case?
If it does, then it will be a
surplusage to call additional
witnesses to repeat virtually
the same point or seek to
corroborate evidence that has
already been corroborated.
In the instant case, learned Counsel
complains that ASP Caulley had
to be called in order to answer
the fanciful questions he posed
on page 36 of his statement of
case in this appeal.
For example, what will a
determination of where ASP
Caulley was at the material time
that the rape took place mean to
the resolution of the case? The
whereabouts of the officer at
the time of the rape is clearly
irrelevant to the establishment
of a prima facie case against
the accused persons.
Secondly, where ASP Caulley kept the
keys to the store room is also
irrelevant in view of the
evidence that is already on
record. This is because, 1st
accused person in his evidence
in chief on page 56 of the
appeal record stated as follows:
“I know P.W.1 three
months before 22nd
June 1998. She was in a
company of two other girls when
I called her. She introduced
herself as Mercy, I
proposed to her and she accepted
it. After sometime she
visited me at the sport
office…”
Continuing his evidence further on
page 59, 1st accused
stated:
“She got annoyed and
became furious and left. On the
22nd June I was off
duty so I visited my
friend the 2nd
accused person at the sport
office. I was with
him when Cynthia Nyante P.W.1
was passing when she saw us in
the office she
came again shouting at the top
of her voice.”
The 2nd accused confirmed
the testimony of 1st
accused and added on page 78 of
the record that due to the
unruly behaviour of P.W.1, he
the 2nd accused “drove
her out of the office
because I was not in good
terms with her.”
It is interesting to note here that
the office mentioned is the
sports office.
These pieces of evidence show that
irrespective of where ASP
Caulley kept the keys to the
store room, both accused persons
had access to the office and on
occasions met with PW1 in that
room.
Thirdly, the resolution of the third
question as to who else had
access to the keys did not
matter. This is because P.W.5
confirmed that upon hearing
noises in her room, she came out
of her room and saw PW1 with the
accused persons. This was what
identified the accused persons
as the perpetrators of the rape
on PW1.
As regards what items were in the
room, PW1 had given adequate
testimony about that, and the
least said about this the
better.
Again, the resolution of whether the
2nd accused worked
under 1st accused is
not relevant under the
circumstances of this case.
Finally, whether ASP Caulley heard
about the rape incident or not
is also not relevant and
material.
Under the circumstances, the
question one has to ask in order
to satisfy the principle of law
decided in the Regina vrs
Ansere line of cases referred
to supra is of what use will
evidence led by ASP Caulley do
to the case? In other words,
what essential ingredient of the
offence of rape will he help to
unravel or establish by giving
evidence that has already not
been led by the witnesses that
testified?
Since we are of the firm view
that all the necessary essential
ingredients of the offence of
rape have already been
established against the accused
persons beyond all reasonable
doubt, the failure to call ASP
Caulley is of no consequence.
This is also due to the fact
that we have not considered him
a material witness whose
testimony is worthy of
consideration by the Court to
have established a prima facie
case against the accused
persons.
We are surprised that learned
Counsel for the accused persons
despite the clear statement of
the principle of law in
Regina vrs Ansere and
Tetteh vrs Republic,
already referred to supra, would
turn round to make the
submissions he made seeking to
make the impossible possible.
The authorities clearly did not
support the arguments he put
forward in his statement of
case.
Finally, we are of the view that the
comments by the learned Counsel
for the accused persons on the
judgment of the court of Appeal
though valid and legitimate did
not amount to a substantial
miscarriage of justice such as
will entitle the judgment to be
reversed. The comments
complained of are of no
consequence to the summing up to
the jury which led to the guilty
verdict of rape returned against
the accused. The appeal is
accordingly dismissed on this
ground of appeal as well.
SENTENCE
There is however one small matter
that we feed duty bound to
comment upon. This is whether to
disturb the sentence of 15
years imposed on the accused
persons once the appeal has been
dismissed.
It should be noted that, appeal is
by way of re-hearing, even
though the accused persons have
not appealed against sentence,
the determination of the appeal
itself calls for an examination
of the principles governing
imposition of punishment.
There is no doubt that as a nation,
apart from the menace of
narcotics and armed robbery,
rape and defilement cases are on
the ascendancy. This therefore
leaves no one in doubt that
there is the need for a
concerted effort to remove and
destroy this dangerous canker of
rape from our society.
The moral decadence that the country
has sunk into makes it
imperative for all and sundry,
especially the law enforcement
agencies like the courts to be
at the vanguard of this crusade.
We are therefore of the opinion
that, once the quilt of an
accused person has been
established in a criminal trial
using the accepted standard and
or burden of proof, the issue of
punishment must be considered
using different criteria.
This is because, in imposing
sentence on a convicted person,
the courts normally take into
consideration factors such as
whether the sentence is of a
deterrent, reformative, or
retributive nature. Sometimes,
the criminal and previous
antecedents of the accused are
taken into consideration.
We are however of the opinion that
the time has come for courts of
law to take into consideration
the status and type of
profession and or work the
accused person does before
sentence is imposed.
For example, if an Internal Auditor,
whose duty it is to check
Accountants in the performance
of their work either colludes or
abets in the embezzlement of
funds of the organisation, one
will expect the Internal Auditor
to be drastically dealt with
because it was he who abdicated
his watchman role to facilitate
the committing of the crime.
Similarly, in the present case, the
accused persons who are
policemen and mandated to
maintain law and order but have
rather become the perpetrators
of crimes against innocent law
abiding citizens who they are to
protect must receive harsh and
deterrent sentences.
It is our firm hope and belief that
the time has indeed come for the
courts to deal very ruthlessly
with perpetrators of such
heinous crimes such as rape or
defilement especially when the
accused happen to be policeman,
teachers who have charge of the
victim or even parents or
guardians. This is the only way
by which as a country we can
protect the sanctity and
chastity of our women and girls.
It is therefore not surprising that
the Daily Guide, an Accra Daily
in its editorial of Saturday,
May 1, 2010; vol. no. 009/10
page 4 wrote in part on the
issue of defilement as follows:
“We are saddened by
the development and wonder what
has become of our values. Our
morality has degenerated to such
bestial levels that Mohamed
could do what he did”.
Continuing further, the editorial
concluded thus:
“The law must be
allowed to take its full course
in this matter so that others
who harbour such traits would be
deterred from unleashing
their libidos on
innocent girls. We can only
imagine the trauma the girl is
going through in a society where
counseling for victims of such
criminal acts is
almost non-existent.”
When a wide circulating daily
newspaper makes such comments in
its editorial column, then it
means matters have gotten to a
crescendo which calls for a
concerted and swift action to
prevent the menace of rampaging
young and old men from raping
and or defiling girls and women.
The courts must show their
revulsion against such animal
instincts by imposing very harsh
and long sentences to serve as a
deterrent to like minded
persons.
As an appellate court however, we do
not feel it is necessary at this
stage to increase the sentence.
Trial courts should however embark
upon a crusade by imposition of
deterrent sentences in cases of
rape to help manage a reduction
of the high number of cases in
this regard.
The appeal herein fails in its
entirety and is accordingly
dismissed.
J. V. M.
DOTSE
JUSTICE OF
THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
J. ANSAH
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
AHUMAH
OCANSEY FOR THE APPELLANT.
ANTHONY
REXFORD WIREDU (P.S.A) FOR THE
ATTORNEY GENERAL
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