Division: IN THE SUPREME COURT
Date: 15 DECEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE, JJ.S.C.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. This appeal is against the conviction of the appellant by the High Court, Ho, for rape. The trial was conducted with assessors. Most of the facts in the case are not in dispute and are briefly as follows: The prosecutrix (the third prosecution witness) is a girl of seventeen years. She attended school at Keta, leaving in 1962. For at least four months immediately preceding 17 November 1963 (the date of the incident) she was living with her parents at Ho. The appellant is a relation of the mother of the prosecutrix and is a frequent visitor to the family house. The appellant was an apprentice fitter at Ho. He qualified in November 1962, and thereafter obtained a job at Tema. He was in Ho on 17 November 1963. On the evening of that day, he visited the house of the prosecutrix and stayed for about one hour, leaving at about 7.45 p.m. At his request and with the consent of her mother, the prosecutrix accompanied him. She was to go and show the appellant the house of a certain driver which was situated only about 150 yards away from her house. According to the appellant, she was seeing him off as a friend. We may pause here for a moment and observe that it appears odd that it should be necessary for the prosecutrix, who had been in Ho for only four months prior to that day, to go out at that hour of the evening to point out the house of the alleged driver to the appellant, when directions could have been given by her mother or elder sister, both of whom have lived in Ho all of their lives. This is particularly so when upon the evidence, the appellant knew Ho quite well. The case of the prosecution from that point is that upon the return of the prosecutrix and the appellant from the driver’s house, the appellant requested her to go with him to a house of a friend of his, which was about 70 yards away from her house. In compliance with that request she accompanied the appellant to a large compound house and entered into a room there that had a light in it. The door to this room was open but the occupant was absent. The appellant was dresssed in shirt, vest, pants and trousers. Shortly after she had been seated, the appellant took off his shirt. That done he locked the door and took out the key. Although she did not say so in so many words, it is a fair inference to draw from the context of her evidence-in-chief, that the appellant must have taken off his trousers and his pants as well as his shirt before he locked the door, for according to her, as the appellant locked the door, he started the struggle with her which culminated in an act of sexual intercourse, and that when the intercourse was over, he had, in addition to the shirt, to put on his pants and trousers as well. In her evidence the prosecutrix said:
“I asked accused why he locked the door but he said nothing. Accused after locking the door put his hands between my legs and tried to carry me on to a bed. As accused did that I pushed him aside and told him to leave me alone. Whilst accused and I were struggling we went near to a table on which were some books and the table fell to the floor. At that time I was having on drawers, a frock and a cover cloth. Apart from the shirt accused was wearing he was having on a singlet, drawers and a pair of trousers. The singlet (exhibit A3) is the singlet I saw accused wearing at the time. After struggling for a while accused pushed me on a bed and tried to remove my drawers. I resisted. Accused then shifted my drawers to one side and put his penis into my vagina and was shaking his waist. I tried to stop him by getting hold of his penis but I was unable to do that. Accused remained on top of me for about 25 minutes. I was all the time feeling pains when the accused was on top of me. I cried and shouted for help but no one appeared to rescue me. When accused finished what he was doing and got up from on top of me I saw blood around my vagina. When I got up from the bed I showed the blood to accused and told him what he had done and that I was going to report the incident to my mother. Accused did not say anything. Accused took off his singlet soon after he had sexual intercourse with me. He did not put on the singlet. Rather he wore his shirt and trousers. I told accused to take me home. He hesitated but finally he did take me home.”
Under cross-examination she added:
“When accused locked the door and removed the key I asked him why he did that but he said nothing. I did not shout then. When accused put his hands underneath my legs I tried to free myself from his grip; but I did not shout. I was struggling with accused then to get myself free and that was why I did not shout. We spent 35 minutes roughly in the room.”
She further stated that she and the appellant got back to her home at about 9 p.m., but from the evidence of other prosecution witnesses, it would appear that they got back at about 10 p.m.
As part of their case, the prosecution tendered a cautioned statement made by the appellant to the police. In it he admitted that he had sexual intercourse with the prosecutrix, but maintained that it was with her consent. He said that she went with him to the room in question in pursuance of an understanding between them, that he would have sexual intercourse with her there. He stated quite frankly, that at first she put up some resistance which resulted in some disturbance in the room, but that she thereafter yielded voluntarily to the intercourse. The appellant, at the trial, maintained his point that she had consented to the intercourse. Stupidly, however, he did not repeat the story of the initial resistance.
Upon these facts, the only issue in the case is whether the sexual intercourse took place without the consent of the prosecutrix. In other words, whether the struggle which took place was a genuine objection demonstrating the absence of consent. The learned trial judge realising that it is dangerous to convict in such a case unless there is corroboration of the prosecutrix’s evidence on the material points, directed the assessors and himself on the need for corroboration. In his summing-up to the assessors he directed them as follows: “Corroboration: evidence to be found in the blood stained drawers and frock of the girl also in accused’s joe singlet and the doctor’s report.” This direction presupposes that the matter requiring corroboration is the fact that sexual intercourse has taken place. That of course is not the case; the matter requiring corroboration is the contention of the prosecutrix that the sexual intercourse took place without her consent. That being the case, whether or not her hymen was broken during the act such that it caused bleeding and stains on her clothes or on the appellant’s clothes, is quite irrelevant to the issue at stake.
Again, as learned state attorney conceded, the medical report which the learned judge referred to as corroborative evidence is inadmissible under our law. See Anane v. The State.1 Therefore it cannot operate to corroborate any evidence. Quite clearly therefore, the trial judge misdirected the assessors on the issue requiring corroboration, and consequently upon the corroborative evidence which they should look for.
Now, it must be emphasized that although in a trial with assessors the decision rests ultimately with the judge, yet the assessors are there to assist the trial judge by giving their opinions on the facts. To that extent their position is analogous to that of a jury. Therefore, in a case based entirely upon facts, if the assessors are unanimous in their opinion that a defendant is not guilty, but the trial judge rejects that unanimous opinion and convicts, the Supreme Court would feel itself obliged to quash the conviction unless the trial judge, in his judgment, gave cogent reasons why his individual opinion on the facts was sounder than and therefore preferable to the view unanimously held by all three assessors. The principle is stated in Kotey v. The State, as follows:
“. . . that although in a trial with assessors, the judge is, by section 287 (2) of the Criminal Procedure Code, 1960 (Act 30), not bound to conform to the opinion expressed by the assessors, and is entitled to come to his own conclusions upon the facts against the unanimous opinion of the assessors, yet in the case of a prosecution based entirely upon facts, a court should not ignore the opinion of assessors which is unanimous in favour of an accused unless it can show good reasons for rejecting it. The mandatory direction in section 287 (2) that the judgment of the court ‘shall contain the reasons for the decision’ implies that principle.
Therefore in an appeal from a conviction where the assessors have each expressed opinion that the appellant
is not guilty, this court has to take notice of the opinion so expressed by the assessors, and if this court finds
that no cogent grounds are given by the learned judge in the reasons for his judgment why his single opinion
on the facts is weightier than, and preferable to, the opinion of the assessors the court should quash the
conviction.
The Supreme Court is bound to consider the opinion of the assessors along with the reasons for his decision which the trial judge gives in his judgment, and if no good reason appears to have been given by the trial judge for ignoring the unanimous opinion expressed by the assessors, that court is bound to quash the conviction.”
The same principle is stated in Asamoah v. The State, as follows:
“The trial of this case was with the aid of assessors and under section 264 (1) of the Criminal Procedure Code, 1960 (Act 30), ‘the decision shall be vested exclusively in the Judge.’ A trial judge is not bound by the opinions of the assessors, but since under section 260 (1) of Criminal Procedure Code, 1960, the assessors are selected by the judge as fit persons to assist him in the trial it must be presumed that he must at least consider and take into account their opinions when forming his own independent judgment in the case. In Bharat v. The Queen ([1959] 3 All E.R. 292 at p. 294, P.C.) Lord Denning, L.J. (as he then was) said: ‘‘According to section 246 of the Criminal Procedure Code the trial is by the judge “with the aid of assessors”. The judge is not bound to conform to their opinions, but he must at least take them into account . . . Take this very case. Suppose the assessors had been properly directed, is it not possible that one or more of them might have been of opinion that the appellant was guilty of manslaughter only? If the majority had given such an opinion, the judge might possibly have accepted it in preference to his own. At any rate, he could hardly have rejected it without saying why he did so . . . . ’”
That being the case, a judge, by misdirecting the assessors, disables them from forming a true opinion on the relevant issues of fact in the case. Consequently, he makes it impossible for himself to have from the assessors their opinion on the issues of fact which the law requires him to have before coming to his own final conclusions in the case. In such a case, even if the decision of the trial court shows agreement with the opinion expressed unanimously by the assessors, the Supreme Court will feel constrained to quash the conviction unless it is shown in the judgment that the trial judge brought his mind to bear on all the important issues of fact which the assessors, if properly directed, would have considered before expressing their opinion.
Now, the issue of fact in this case is whether the sexual intercourse which admittedly took place was without the consent of the prosecutrix, i.e. was the struggle which preceded the act a genuine registration of non-consent? Put in another form, the issue is: is it probable, believable, in all the circumstances of the case, that she would voluntarily accompany the appellant to the room in question at that hour of the night, accept a chair, and wait there, would sit down and look at the appellant strip himself naked save as to his vest or joe singlet, and thereafter go up to the door and lock it and take out the key, and she allowed all that to happen when she had not consented to enter into a sexual relationship with the appellant?
We now turn to the judgment of the trial judge. The first point to note is that nowhere in it is the only issue of fact for determination in the case clearly stated. It is only by inference that the said issue seems to have been considered. The full judgment as regards the case for the prosecution is as follows:
“I am entirely in agreement with the opinions given by the assessors. I believe and accept the evidence of the prosecution witnesses. The prosecutrix struck me as a truthful witness. She was not in the least shaken under cross-examination. In her evidence she described how she struggled with the accused until she was over-powered. She stated further in her evidence that soon after the incident she insisted on the accused taking her back home and that she told the accused then that she would report the incident to her parents which she did. Her evidence was corroborated by that of the apprentice friend of the accused who testified that he found his room in a mess when he got back home. That is indicative of the fact that there were signs of struggling having taken place therein. Accused in his statement to police admits this although he denies having said that in his statement. Strong evidence of corroboration may also be found in the blood-stained drawers and frock of the prosecutrix, in the medical report and in the subsequent conduct of the accused.”
In the said judgment the learned judge pins everything upon the struggle. That fact raised the issue as to whether the struggle which admittedly took place was a mere pretence or a serious resistance demonstrating the absence of consent. That of course is a question of fact. But that part of the case received no attention from the trial judge. To decide that important issue of fact, other factors and circumstances, including the conduct of the prosecutrix, require to be considered along with the condition of the room. This, the trial judge failed to do. So that in addition to disabling himself from having the opinion of the assessors on this all important issue, he himself failed to direct his attention to it. As the learned judge himself said, all that the condition of the room indicates is, that some struggle had taken place. But there is no dispute that some struggle did take place. Therefore the evidence of the owner of the room did not provide the corroboration required for the evidence of the prosecutrix that the sexual intercourse was without her consent. On this crucial issue of consent or no consent and corroboration of the prosecutrix’s evidence as to non-consent, one most relevant matter which demanded the attention of both the assessors and the learned judge was the condition of the pair of pants which the prosecutrix had on that night, and the evidence relative to their condition. The pants were blood stained but were not damaged because the prosecutrix herself took them off for the purpose of the intercourse. But they became blood stained because, when she found after the intercourse that she was bleeding, she used the pants to wipe the blood as there was nothing else she could use at the time for the purpose. According to her evidence she had on the pants all the time and never took them off, and that while she struggled with him, the appellant, to use her own words: “shifted my drawers to one side and put his penis into my vagina,” and she alleged it was that that caused the pants to be blood stained but not damaged. Now the question as to which of these two conflicting accounts is the more probable is a question of fact upon which the opinion of the assessors is most desirable, and one upon which consideration by the trial judge himself is absolutely essential. Unfortunately that question did not receive any consideration whatsoever from either the assessors or the judge because, the learned judge did not direct the assessors on it, and he did not direct his own attention to it. We cannot say that if the assessors had been given the opportunity to consider that matter they would have expressed the view that there was absence of consent, and we cannot say either that if the learned judge himself had directed his mind to that matter he would inevitably have reached the verdict he pronounced in this case.
Learned state attorney for the respondent submitted that the evidence given by the fourth prosecution witness that the prosecutrix returned home that night weeping, meant that she was in a miserable condition, and so provided the requisite corroboration. Two points must be made in respect of that submission. One is that even if that evidence is to be taken seriously, it does not in any way corroborate the evidence of the prosecutrix that she did not give her consent to the intercourse. The other point is that the evidence of the witness is not worthy of belief. Apparently the trial judge himself formed the same opinion and so did not refer to that evidence anywhere in the summing-up to the assessors or in his judgment. Our reasons for disregarding the evidence of that witness are: (1) although she is alleged to be the very first person who saw the appellant and the prosecutrix after the incident, the first person to whom the prosecutrix reported the incident, the person who examined the private parts of the prosecutrix and although she is a sister to the prosecutrix and lived with her and their parents in the same house at Ho all the time, she never made any statement to the police in connection with the case, and it was only on 26 April 1964, three days after the prosecutrix had given her evidence, that the police contacted her and took a statement from her, the very next day 27 April she was in the witness-box; and (2) that according to her she had taken her sister into a room, was listening to her complaint and was examining her private parts when their mother returned home from town and entered the room, and that the prosecutrix thereupon reported the incident to the mother in her sister’s presence. But the mother on the other hand, deposed categorically that her daughter had gone to bed when she returned home, and when the prosecutrix was making the complaint to her.
Now, while the learned judge failed to make any critical examination of the case for the prosecution, he took great pains to go into small details in order to discredit the story of the appellant that he and the prosecutrix had been friends for some time, about a year prior to the incident. Thus he said:
“Accused’s defence is that he had sexual intercourse with third prosecution witness but with her consent. In other words third prosecution witness did not resist in the least when he did the act with her. Accused’s explanation is that third prosecution witness had been his girl friend for about one year. This is certainly not Born out by the evidence and could not possibly be true. There is evidence on record which I accept that third prosecution witness had been in Keta all the while and came to Ho only about five months prior to 17 November 1963, and that it was only on two occasions that she saw the accused in her house at Ho. The parents of the third prosecution witness have testified that there was no friendly relationship whatsoever between their daughter and the accused. Thus it is clear that accused told an impudent and blatant lie when he referred to third prosecution witness as his girl friend. This line of defence was an afterthought amounting to a trick cunningly devised by the accused and calculated to deceive the court in thinking that the third prosecution witness is a girl with loose character.”
With due deference to the learned judge, we must point out that he was not being fair to the appellant. Surely, here in Ghana, the mere fact that parents of a girl do not know of a friendly relationship between their daughter and a boy is no proof that the boy and the girl are not friends. Again, should the learned judge have taken the prosecutrix seriously when she said that prior to the day in question, she had seen the appellant only once in her house, when according to her own mother, the appellant had been coming to the house often during the five months that her daughter had been at home? And why should the learned judge discredit the appellant about his friendship when the prosecution witnesses did not care to state what the appellant had been coming to the house to do, and why he stayed for some time on each visit, e.g. on this last visit for as long as an hour? And surely it is stretching the matter too far to say that when a boy alleges that a girl is his friend, it means that the girl in question is a girl of loose character. In short the learned judge concentrated his attention on irrelevant matters to discredit the appellant as if there was an onus upon him to prove his innocence. All it was necessary for the appellant to show was a reasonable probability that the prosecutrix consented to the carnal knowledge he had of her. The evidence taken as a whole, both for the prosecution and the defence, establish a very strong probability that there was such consent. The appellant was therefore wrongly convicted, and a miscarriage of justice has been occasioned thereby.
For the reasons stated above, the appeal is allowed, the conviction of the appellant and the sentence passed upon him consequent thereon are quashed, a judgment and verdict of acquittal are entered: the appellant is acquitted and discharged.
DECISION
Appeal allowed.
T. G. K.
