IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
KOBINA TWUM - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 16 TH JANUARY, 2018
CRIMINAL APPEAL NO: H2/3/17
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
ISAAC BAIDOO FOR THE APPELLANT
NANA AISHA SALIFU FOR THE PLAINTIFF/RESPONDENT
A. M. DOMAKYAAREH (MRS), J.A
1. This is an appeal against the judgment of the Cape Coast High Court dated 7th November 2013. In the said judgment, the appellant herein who was charged with the offence of rape contrary to Section 97 of Act 29/60 as amended by Act 554/98 was convicted of same and sentenced to 15 years Imprisonment with Hard Labour.
2. The facts of the case as presented before the trial High Court are that the victim (PW1) is one Phoebe Nartey who is an apprentice seamstress at Breman Asikuma, whilst the accused (appellant herein) is a fridge repairer who lives at Ajumako Onwane. On 23rd August, 2012 at about 9.00 pm, the victim was on her way from Gomoa Maim where she had gone to see her father. She was waiting at Ekumfi Essarkyir for a vehicle to board on her way back when the accused appeared in a Tico Taxi cab and offered her a lift. At Mando the appellant told the victim that he was not proceeding further. The victim had to alight and try catching another vehicle. She could not get another vehicle and the accused who was still around told the victim that it was going to be difficult for her to get a vehicle at that time of the night and so she should go and pass the night with his own children in their room. The victim joined the accused to his house only to realize that there were no children in the room that the accused allocated to her. The accused then asked the victim to allow him to have sex with her but she refused. The accused persisted in trying to have sex with the victim but she still refused and pleaded with him that she was in her menstrual period. The accused still persisted and in the process, tore the victim’s panties and had non-consensual sex with her.
3. After the act, the accused provided the victim with a bowl of water to wash her vagina. The accused then gave the victim’s phone back to her. The victim, on putting her phone on, took advantage and activated the recording on her phone to record what happened between the accused and herself. Early the following day, 24th August 2012 the accused offered to drop the victim at Ajumako as he was on his way somewhere else. The victim immediately proceeded to Breman Asikuma and told her father what the accused had done to her. That very day, the father of the victim (PW4) accompanied her to the Ajumako Police Station to lodge a complaint. The Police took custody of the victims torn panties and retrieved the recording of what took place between the victim and the accused. The Police issued a medical form to the victim to attend hospital for medical observation. After the Police investigations, the accused was charged and brought before court for trial.
4. The appellant herein, pleaded not guilty to the charge and in his defence stated that he picked up the victim who was stranded in the night in an attempt to alight her at a point for her to connect another car to continue with her journey. He eventually gave her a place to lay her head at his residence based on magnanimity. The case went through a full trial on indictment at the end of which the jury returned a unanimous verdict of guilty. The trial judge thereupon convicted and sentenced him as indicated.
5. The appellant was dissatisfied with the whole decision of the trial judge. He therefore launched the instant appeal against both his conviction and sentence on two grounds, namely: -
That the conviction of the appellant was unmerited and constitutes an affront to fair trial and a miscarriage of justice.
That the whole case was a frame-up aimed at destroying the image of the appellant
6. Before we consider the submissions of counsel for the appellant in support of the appeal we must say right away that ground (a) of the grounds of appeal is so vague that we deem it to be an incompetent ground of appeal. Drawing an analogy from Rule 8 (5) and (6) of the Court of Appeal Rules 1997 C I 19 on Civil Appeals, a ground of appeal must indicate the precise ground relied on so that the respondent will know what is complained off and prepare his or her response accordingly. Additionally, with the exception of the omnibus ground of appeal, vague or general grounds of appeal shall not be permitted. What is “unmerited and constitutes an affront to fair trial” cannot be gleaned on the face of this ground of appeal. Again, although Counsel for the appellant argued his two grounds of appeal together, nothing in his submissions pointed to an affront to fair trial for his client. As a matter of fact, the appellant was given a hearing and ample opportunity to present his defence. Counsel did not also point out anything that was done to his client which was unmerited. A fortiori, there could thus be no miscarriage of justice as per the first ground of appeal. This first ground therefore suffers a double dismissal first as being vague and secondly even if it was admitted as a ground of appeal, it has not been made out and consequently fails.
7. The only live ground of appeal remaining is that the whole case was a frame-up aimed at destroying the image of the appellant. This calls for a thorough review and evaluation of the entire evidence on record to determine whether indeed there was such a frame-up. In support of this ground of appeal, Counsel for the appellant submitted that in a criminal trial, the law is well settled that there is no burden on the accused. That if there is any burden at all on the accused, it is not to prove anything but to rise a reasonable doubt.
8. If the accused can raise only such a reasonable doubt, he must be acquitted. See C.O.P. V ISAAC ANTWI 1961 GLR 408 SC Holding 1 where it was stated thus: - “(1) The fundamental principles underlying the rule of law are that the burden of proofs remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted;” Counsel then continued by itemising the doubts raised in the evidence presented by the prosecution as follows: -
· That the victim maintained that there is a cluster of houses close to the appellant’s house and that at that time of the night her shouts and screams would have aroused a good Samaritan to venture to the appellant’s house or to call the police in this age of police night patrols to rescue the victim;
· That the victim maintained that her pants was torn and yet the said pant was loose;
· That blood stained the bed sheet because the victim was in her menses yet her loose pants had no blood stains;
· The victim said after a long one round of sex the appellant slept off in the same room with her without being afraid of any vindictive or reprisal attacks from the complainant (sic)victim;
· That the evidence of the victim with regard to her torn pants was incongruous to that of her father PW4 who maintained that the pants, Exhibit ID 1 was torn to shreds;
· That PW4 knew there was a Police Station at Ajumako where the appellant alighted the victim yet neither the victim nor her father asked her to report the matter to the Police there; and
· That the Medical Doctor, Dr. Benedict O. Boateng (P.W.2) admitted during cross-examination that cleaning oneself can cause bruises to the female genital organ.
9. Counsel submitted that all the above doubts must inure to the benefit of the appellant as far as the conviction of his client is concerned contending that the evidence of the appellant was solid and could withstand the test times. Counsel therefore submitted that it was a travesty of justice for the trial court to ignore these doubts. Counsel referred to paged 35 of the Record of Proceedings in support which has nothing to do with the evidence of the appellant. The said page 35 rather contained the tail end of cross-examination of PW4 by counsel for the accused and the jurors. The answers elicited in the cross-examination on the said page 35 corroborated the evidence of PW1, the victim.
10. The second leg of the appeal was on the sentence of 15 years IHL imposed on the appellant by the trial judge; Counsel submitted that “in the unlikely event” that this court is not swayed by the arguments for acquittal and discharge of the appellant, then his sentence should be reduced to that of the minimum owing to the fact that the appellant is not known to the law and was a first-time offender. Counsel also submitted that the appellant has been remorseful of the act he did. Counsel cited authorities like ABU & OTHERS V THE REPUBLIC (1980) GLR 294 in support of his submission on the reduction of the sentence. This case is however irrelevant to the instant appeal in the sense that it concerned a criminal offence against property by a group in conspiracy to steal and stealing. The court took account of the part each accused played, the value of the property and other similar considerations in sentencing them. Counsel also cited the irrelevant case of HARUNA VRS THE REPUBLIC  GLR 189 which dealt with the sentencing of a young first-time offender as opposed to the appellant in this case who is an elderly person.
11. Counsel also submitted, in this case, rightfully that the days the appellant spent in lawful custody as grounded in Article 14(6) of the 1992 Constitution was not considered in passing the sentence on the appellant. It is to be noted that the appellant was arrested on 24th August 2012 and convicted and sentenced on 7th November 2013. All this while he was in lawful custody, for a total of 1 year two months and two weeks.
12. The essence of the appellant’s appeal is that the prosecution failed to meet the standard of proof required in the case of criminal prosecutions, namely proof beyond reasonable doubt. We shall now analyse the evidence on record to determine whether the prosecution met this onus imposed on it by the law. In this regard, the Written Submission filed on behalf of the respondent comes in handy. The offence of rape is provided for in Section 97 of Act 29/60 as follows:
Whoever commits rape shall be guilty of a first degree felony and shall be liable on conviction to imprisonment for a term of not less than five years and not more than twenty-five years.”
Section 98 of Act 29/60 defines rape as:
“Section 98—Definition of Rape.
Rape is the carnal knowledge of a female of sixteen years or above without her consent”
Thus, the key ingredients to establish rape are: -
i) there must be carnal knowledge;
ii) the carnal knowledge must be of a female;
iii) the female must be sixteen years old or above; and
iv) the carnal knowledge of this female must be without her consent
13. All the above ingredients must be proved beyond reasonable doubt in order to secure a conviction for rape. Proof beyond reasonable doubt has been explained by the Eminent Lord Denning L.J. (as he then was) as far back as 1947 in the celebrated case of MILLER V MINISTER OF PENSIONS (1947) 2 All E.R 372 at 373 as follows:
“ … That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
The Written Submission of the respondent in answer to the submissions of the appellant will assist this court to determine whether the required standard of proof has been met.
14. Counsel for the respondent was of the opinion that the appellant had abandoned his second ground of appeal namely, that the whole case was a frame-up aimed at destroying the image of the appellant, even though he said he would argue both grounds together. This goes to demonstrate the weakness of both grounds of appeal. In pointing out the perceived doubts in the case of the prosecution as noted earlier on, the inference that can be drawn from the submissions of the appellant is that, not that the act did not take place, but that the evidence did not meet the standard required to establish rape. Counsel for the appellant himself pointed out that the appellant was remorseful for the act he did. See the unnumbered page 3 of the Written Submission of Counsel for the appellant. Can one be remorseful for an act that is consensual? Definitely No! Wherein lies the frame-up that rape took place?
At page 65 of the ROA, the Learned Trial Judge also observed as follows “The convict from my observation has regretted is action, and is quite apprehensive of its consequences. He appears quite remorseful.”
15. Counsel for the respondent referred to the lapses enumerated by Counsel for the appellant, recounted the evidence presented against the appellant by the four prosecution witnesses and rightly concluded that considering the totality of the evidence before the court, it is one of oath against oath, as far as the appellant and the victim PW1 were concerned. He however submitted that aside the evidence of PW1 there were other pieces of evidence which when put together, led to the irresistible conclusion that the appellant had non-consensual sex with the victim PW1. Counsel pointed out that under cross-examination, the appellant admitted that PW1 slept over in his house; that he was not staying with any of his wives or children, and that PW1’s torn panty was rather “loosened at the seams”. Counsel also referred to the Medical Report which indicated small bruises at the entrance of the vagina and the recording the victim PW1 made of the interaction she had with the appellant subsequent to his assault on her. In the case of GLIGAH & ATISO v The REPUBLIC (2010) SCGLR AT 884, His Lordship Dotse JSC pronounced on how circumstantial evidence can corroborate evidence in a case of oath against oath as follows: -
“We have already taken serious note of the submissions by the learned Counsel for the accused persons, that the credibility of the prosecution witnesses is suspect and the trial 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 the first prosecution witness, 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 a series of small threads and which 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 these are put together they make stronger, corroborative and more convincing evidence than direct evidence”.
16. The issue of the lack of blood on the panties was resolved upon a question by a juror at page 21 of the ROA when the victim said she was wearing a sanitary pad. Also, the fact that the Medical Doctor did not find any blood when he examined the victim 21 hours after the incident is consistent with the testimony of the victim also at page 21 of the ROA that her normal menstrual period takes five days but after the third day the blood did not flow much.
17. Making capital that if the victim had shouted and screamed a good Samaritan would have come to her aid from the cluster of houses around “or call the police in this age of police night patrols to rescue her” was also resolved during the cross-examination of the victim at page 19 of the ROA when the question was put to her thus:
“Q: You told the court there were a cluster of houses around; if there was such a “brutal sexual encounter” your shouts would have attracted neighbours to the place?
A. I indeed screamed aloud but the accused told me he was not of good character in the place and so nobody would venture to his house to save me”.
An attempt to challenge this led to the revelation of more damning information against the accused/appellant as follows: -
“Q: I put it to you that the accused is a notable fridge mechanic and a good man in the community?
A. That is not true. When the incident came up people who heard about it said the accused was not of a good character and that was what he does at the place.
Q. I am putting it to you that the sample opinion was from people who could not afford fridges and were envious of the accused’s prosperity as middle class man?
A. That is never true because his own divorced wife attested to his bad character
Q. I am telling you that the statement of the ex-wife that the accused was not a good person was not the true fact of his character?
A. That was true”
18. the character of the accused/appellant, this is what PW3 D/L/CPL Adam Kamal Mohammed testified to under cross-examination at page 28 of the ROA
“Q: Before the incident had you known the accused personally
A. Yes my Lord
Q. How personally have you known the accused person?
A. People have been reporting him for similar offences, and I also know him because I marry from his town
Q. I put it to you that by village standard the accused person is a prosperous person for which reason he has a lot of people envying him?
A. Nobody envies the accused. Sometimes he himself comes to tell the police that he has been doing similar things like the present
Q. I am putting it to you that nobody can incriminate himself, including he accused
A. Some people commit suicide in spite of its painful consequences, so can the accused knowing the consequences decide to tell the police about his criminal activities.”
19. The appellant could not have played a good Samaritan by the use of deceit. He told the victim that he had children of her age at his house and told the victim that she would sleep with his children knowing this to be false. Exhibit E is the transcript of the voice recording that was retrieved from the phone of the victim into a compact disk. This was played in court and tendered in evidence without objection. The full transcript of exhibit E is not available in the ROA. However, portions of it was used in the address by the Prosecution at the trial court which we find to be pertinent. We find the following at page 48 of the ROA
“Accused: So if it becomes a police case and I told you I had kids and when you came here and there were no kids here, why did you not go back
Victim: Why did you tell me you had kids here when you knew you kids were not here x x x
Also hear the victim in her evidence-in-chief at page 15 of the ROA.
“I went with the accused to his house and he showed me a room where I could spend the night with some of his children. When I asked about the whereabouts of his children the accused told me they had gone out but would soon come back. Sometime after I entered the room the accused himself came up. He told me he wanted me to be his girlfriend and I told him that was impossible. The accused then seized my mobile phone and threatened me that if I wished to have my life I should allow him to have sex with me”.
20. From the totality of the evidence before the trial court there was no doubt that sexual intercourse took place between the accused and the victim. This is borne out by the testimony of the victim, and corroborated by Exhibit E, the voice transcript of the phone recording as well as exhibit “A” the Medical Report. Excerpts of Exhibit E are as follows at page 49 of the ROA.
“Accused: didn’t you agree and told me to wait till morning
Victim: I didn’t say I had agreed, It was because you were forcing me that is why I said that to you but you forced me and had sex with me xxxxxx
Accused: Did I force you
Victim: didn’t you force me, didn’t I say I wouldn’t agree and you forced me
Accused: what shows I forced you, force means I tore your clothes. What shows I tore your clothes xxxxxxxx
Victim: I told you I was in my menses
Accused: if you say this in court, the court will even find you guilty and jail you for that, why
do you allow someone to have sex with you when you are in your menses, and I
didn’t have sex with you because no one was here when I had sex with you and now
that you have washed your body, when you are taken to hospital, no one will see that
someone has had sex with you so long as you have washed your vagina, no one will
see that someone has had sex with you” (Emphasis added)
This goes to re-enforce the evidence-in-chief of the victim at pages 15-16 of the ROA.
“… I was very frightened. He then threw himself over me. I shouted and pleaded for him to leave me as I was in my menstrual period but he forcefully tore my panties and had sex with me. Because I was actually in my menstrual period, the bed sheet was covered with blood and the accused used a scrubbing brush to wash off the blood. He then fetched water and asked me to wash my vagina with it so that if I went to a police station to report, nobody would see any sign of rape/sex. He forced me to wash my vagina. After that I pleaded with the accused to return my phone to me. When he returned my phone to me I quickly set it on recording and hid it around my breasts. …” (Emphasis added)
21. The above state of affairs also makes it quite clear that the sexual intercourse was non-consensual. The victim, being a female and of 22 years old completes all the essential ingredients required to established the offence of rape. This court accordingly finds that the jury rightly returned a verdict of guilty on the accused and the learned trial judge was thus right in convicting the appellant herein of rape. This court accordingly upholds the said conviction. The appeal against conviction is thus dismissed as lacking any merit whatsoever.
22. On the appeal against sentence, the only legitimate point raised by the appellant is that Article 14(6) of the Constitution was not taken into account when the judge passed the sentence of 15 years IHL on the appellant. The said Article 14(6) provides as follows: -
“(6) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.” This is a mandatory
Constitutional provision and the authorities on same have directed that compliance with same must be explicit in the judgment or if assumed must implicitly be clear on the face of the Record of Appeal. See the case of FRIMPONG-BADU V THE REPUBLIC (2015- 2016) 1 SCGLR 137 where the Supreme Court varied the sentence imposed on the accused on account of the failure by the trial High Court judge and the Court of Appeal to take Article 14(6) of the Constitution into account. Per Holding 1 of the FRIMPONG-BADU case, the Supreme Court stated thus:
“(1) Article 14(6) of the 1992 Constitution requires that where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment. So where in this case, the trial judge was disposed to pass a sentence of twelve years’ imprisonment, he was mandatorily required under Article 14(6) of the Constitution to take into account the period the appellant had spent in lawful custody and accordingly declare that it had considered the period spent in lawful custody in determining the appropriateness of the sentence that had been considered fit and proper for the offence committed by the appellant. … It is apparent on the face of the record that the trial judge did not make any reference to the period the appellant spent in custody before the trial was concluded in passing sentence. The trial judge also made no reference to the constitutional provision in Article 14(6). There are also no words, express or implied to the effect that it weighed on the judges’ mind. This is a clear breach of the appellant’s fundamental human right to have the period spent in lawful custody featured and considered before sentence was passed on him. … That failure amounts to a grave miscarriage of justice”.
23. Other similar cases are BOSSO V REPUBLIC (2009) SCGLR 420 at 429 and FRIMPONG ALIAS IBOMAN V THE REPUBLIC (2012) 1 SCGLR 297. In the instant appeal, the judgment of the trial court which can be found at page 65 of the ROA is in these terms:
“Rape by law commands a sentence between five (5) years and twenty-five (25) years. The convict from my observation has regretted his action, and is quite apprehensive of its consequences. He appears quite remorseful. I however have to strike a balance between the circumstances brought over himself by his own action, and the plight brought upon the victim of the rape through no fault of hers. In the circumstances I sentence the accused to fifteen (15) years imprisonment in hard labour”.
24. But for the fact that there is no explicit reference of having complied with Article 14(6) of the Constitution which as already noted, is mandatory and also for the fact that there is nothing implicitly clear on the record of having complied with same, this Court would not have interfered with the sentence passed on the appellant since it is within the range permitted by the law. Indeed, there are aggravating circumstances for an enhanced sentence since the appellant is an elderly man and could easily have been father of the victim. We noted earlier on that the appellant had been in lawful custody for one (1) year, two (2) months, and two (2) weeks before his trial was concluded. We accordingly set this period off against the fifteen (15) years IHL which brings down the sentence to thirteen (13) years, nine (9) months, and two (2) weeks. The sentence is accordingly varied to thirteen (13) years, nine (9) months, and two (2) weeks.
In conclusion, save for the variation of the sentence as indicated above, the appeal is dismissed.