REPUBLIC vs. YEBOAH [1968] GLR 248

CASES REFERRED TO

(1) R. v. Russen (1777) 9 C. & P. 753n; 1 East P.C. 438, C.C.R.

(2) R. v. Hughes (1841) 9 C. & P. 752; 2 Mood.C.C. 190, C.C.R.

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(3) R. v. Campbell [1956] 2 Q.B. 432; [1956] 3 W.L.R. 219; [1956] 2 All E.R. 272; 120 J.P. 359; 100 S.J. 454; 40 Cr.App. R. 95, C.C.A.

(4) R. v. Jones (1939) 27 Cr.App.R.33, C.C.A.

(5) R. v. Hedges (1909) 3 Cr.App.R. 262, C.C.A.

NATURE OF PROCEEDINGS

TRIAL before assessors of an accused charge with the offence of defilement of a female under ten years of age contrary to the Criminal Code, 1960 (Act 29), s. 101. The facts are fully set out in the judgment

COUNSEL

Kaleo Bioh, State Attorney, for the Republic.

I. L. Ohene-Djan for the accused.

JUDGMENT OF BAIDOO J.

The accused was tried before this court with the aid of assessors of the offence of defilement of a female under ten years of age contrary to section 101 of the Criminal Code, 1960 (Act 29). The particulars of offence are that the accused, Emmanuel Yeboah, on or about 3 August 1967 at Dormaa-Ahenkro in the Brong-Ahafo Region carnally knew one Mary Antwi (the second prosecution witness) a female under ten years of age.

The victim of the offence Mary Antwi gave evidence as the second prosecution witness. I was satisfied after preliminary inquiry conducted in the face of the assessors in open court of her ability to understand an oath and I therefore allowed her to swear on the cross, she being of the Roman Catholic religious denomination. The evidence shows that she lives with her mother and father, a Roman Catholic Church catechist, in the Catholic Mission House at Dormaa, which is about a half a mile away from the house of the accused, a tailor or women’s dress-maker under whom the second prosecution witness’s elder sister, Theresa Antwi (the sixth prosecution witness) was studying as his apprentice. Theresa Antwi is a fully grown up girl of about nineteen to twenty years of age by appearance but the complainant, the second prosecution witness, is just nine years of age and is attending the Dormaa Roman Catholic day school. She gave her standard to be class IV or standard 1 and I was satisfied with her performance in the witness-box that she had reached her age of discretion. The relevant portion of her testimony at the trial was as follows:

“The accused lives at the same place where he works. I know Paulina Ansu my friend attending the same school with me. I know also Ginabu Moshie living in the same house with Paulina Ansu. In August last year I went to my friend Paulina Ansu

[p.250] of [1968] GLR 248 and we then left for the public water stand pipe to fetch water. I left Paulina at the pipe to go and visit my sister Theresa at the house or workshop of the accused. He sent me to go and ask Theresa to give me the bush meat he sent her to go and buy if she had any. He further instructed me to bring the meat to him if I got it from Theresa. Theresa told me that she could not get any of the meat so I should go and tell the accused. I went back therefore and told the accused. The accused was then wearing a cover cloth tied around his waist, but he was not wearing any pants. The accused then raised me up on to his thighs as he was seated on a chair.

The accused was at first standing but he sat down on the chair when I returned and gave him the message.

The chair was the type we use in a kitchen. I can identify the cloth the accused was wearing. It is an assorted cover cloth but not this one shown to me in court. I was wearing cover cloth with pants underneath it. The pair of pants I had on had elastic fitted at the top of them. Before the accused put me on his thighs he took off my cover cloth and also my drawers or pants. He put me on his thighs with my face towards him. My legs were hanging and could not touch the ground. My legs were apart with one on the left side of the accused and the other on the right side of the accused in this fashion I am going to demonstrate to the court as I sit on the thighs of this woman seated in front of the court. [By court: Witness demonstrates the position.] The accused then put his penis inside or into my vagina, and I cried as I was feeling pains. He pushed his penis into my vagina. As he kept on doing that I saw some whitish liquid coloured a bit with red in my vagina. The liquid was both white and red i.e. it was a mixture of the two colours. It came from my vagina. It was when I got up that I saw that the said whitish-reddish liquid coming from my vagina. I had before that incident never seen that whitish-reddish liquid ever before in my vagina. When I got up and saw that liquid in my vagina I did not do anything. I just put on my pants and as I was going home the accused gave me a two and a half new pesewas piece saying I should buy some food with it. I also put on my cover cloth before going away from the accused’s workshop where the accused had sexual intercourse with me.”

The accused flatly denied having ever had any sexual connection with the second prosecution witness. He testified that the day on which he sent her to her sister to inquire about the bush meat was Tuesday, 18 July 1967 at about 11 a.m. and that on that occasion

[p.251] of [1968] GLR 248 he did not touch the second prosecution witness at all. The second prosecution witness had visited his workshop on that day as she had frequently done for the previous three months since the sixth prosecution witness became his apprentice. He testified that the second prosecution witness sat down on his big table in his workshop and started cutting pieces of cloths with a pair of scissors she picked up on entering the room. That after about five minutes she got up to go away as her sister, the sixth prosecution witness, did not attend business at all that day, 18th July 1967. He requested the second prosecution witness to ask her sister to bring to him the bush meat he had instructed her to buy for him. When the second prosecution witness left she never returned to him that day either with the meat or with any message from Theresa who herself also failed to report to him that day either for business or to deliver the meat he was eagerly expecting to receive. On the following day when the sixth prosecution witness attended business she, upon being queried by him, apologised in the presence of Mariama, another female apprentice, for failing to send him the bush meat as instructed. Since 18 July 1967 the next occasion he saw the second prosecution witness was on the following Sunday, 23 July 1967 when she accompanied another girl sent by the sixth prosecution witness to collect her sewing machine from his workshop as the sixth prosecution witness usually did each Sunday. After that day the next occasion he saw her was when she accompanied the sixth prosecution witness to business at 8.30 a.m. the following Wednesday, 26 July 1967 carrying a parcel of clothes that the sixth prosecution witness was going to sew. When the second prosecution witness left he did not see her again till she was brought to the place by her mother (the fifth prosecution witness) and the police inspector, the seventh prosecution witness, with others over one week later. The second prosecution witness then accused him of having known her carnally and, although he denied, he was arrested and taken to the police station. He alleged that it must have been somebody else who had sexual intercourse with the second prosecution witness and not himself because he is impotent and cannot therefore perform the sex act.

To succeed in its case the prosecution must establish beyond reasonable doubt each of the following three essential elements:

(1) That the second prosecution witness is a girl under ten years of age.

(2) That someone has had sexual intercourse with the second prosecution witness; and

(3) That person is the accused.

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The first element was easily established on the evidence and was really not challenged at all by the defence. The fifth prosecution witness, Mary Amponsah, who is the second prosecution witness’s mother gave the birth date of the second prosecution witness to be 1 March 1959. The baptismal certificate of the second prosecution witness was tendered as exhibit A without objection and the date of birth disclosed on it was 1 March 1959.

The second element was also proved to the hilt. The direct testimony of the second prosecution witness that she had been carnally known was amply corroborated by the first prosecution witness, Dr. Bakker, who examined her some days after the sexual intercourse and according to his evidence treated the second prosecution witness for gonorrhea. According to the doctor’s evidence he found, after examination on the second prosecution witness that she had a tear in the hymen and there was a white discharge from her vagina. There were also signs of an inflammation of the internal part of her vagina and she was complaining of lower abdominal pains. That the inflammation would be three to eight or possibly fourteen days old, and in his opinion the white discharge and the inflammation were all the result of sexual intercourse which is the principal cause of gonorrhea in the tropics. There was further corroboration on this point from the evidence of the fifth prosecution witness the mother of the complainant the relevant portion of whose evidence on the point was as follows:

“One Monday morning the second prosecution witness reported to me that she was suffering from her stomach. I thought it was overfeeding so I gave her Atwood Bitters. She did not attend school that Monday.

The following day the second prosecution witness reported to me that some liquid substance was flowing out from her vagina. I therefore placed her down and after examination discovered that someone had had sexual intercourse with her. I discovered that there was a tear, or cut at one side of her vagina while her vagina passage was widely open and showing big hole. I also saw white fluid flowing out from her vagina. On seeing this I shouted: ‘Yea, Akosua [i.e. Antwi Mary] you are dead.’ She then replied, ‘Mummy, I am afraid’ I then queried, ‘Why are you afraid?’ and she replied, ‘It was Papa Yeboah who sent me and when I went to him he caught me, sat down on a chair and placed me on his thighs or lap and then had sexual connection with me.’ I then called Theresa Antwi to come and listen to the second prosecution witness’s complaint.”

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To prove that the second prosecution witness has been carnally known it is sufficient as provided under section 99 of the Criminal Code, 1960 (Act 29), if there is evidence proving the least degree of penetration of the second prosecution witness’s female organ by the male organ of the accused. Thus in R. v. Russen (1777) East P.C. 438, C.C.R. a case of rape under English law where the provisions of the law are the same as the provisions under our Criminal Code, the hymen of the victim was proved not to have been broken yet Ashhurst J. left it to the jury to say whether penetration was proved, emphasising to the jury that if there was any penetration, however slight, the rape was complete in law. The accused was convicted and on appeal the judges upheld the conviction remarking that the least degree of penetration is sufficient, “though it may not be attended with the deprivation of the marks of virginity.” This case was followed in R. v. Hughes (1841) 2 Mood.C.C. 190, C.C.R. where it was held that penetration short of rupturing the hymen is sufficient to constitute rape. The evidence in this instant case before the court is much stronger than the Russen case and the Hughes case cited above because the medical evidence from the first prosecution witness is positive to the effect that there was a tear of the second prosecution witness’s hymen. In the absence of this corroboration I would still, in full awareness of the danger of acting on the uncorroborated evidence of an infant prosecutrix in a sexual offence, have accepted the evidence of the second prosecution witness as sufficiently establishing the requisite degree of penetration as I was satisfied from the demeanour of the second prosecution witness and the way she answered questions from the witness-box that she was a witness of the truth who, far from being a child of tender years living in a world of fancy, was sufficiently mature to appreciate the absolute secrecy of the sex act suddenly imposed on her and has sufficient powers of recollection to be able to recount factual incidents she experienced in the accused’s workshop. She demonstrated to the court how her ravisher sat on a seat, placed her on his thighs or lap with her face towards him, placed his penis into her vagina and kept on pushing it in thereby giving her pains in her vagina. On this evidence which I believe and accept after warning myself of the dangers of acting on the uncorroborated evidence of a young prosecutrix I would have convicted the accused even if there had been no corroboration.

I now go on to consider the third essential element the prosecution must establish, viz. that it was the accused who had sexual intercourse with the second prosecution witness and nobody else. On this point there is the direct eyewitness account of only one person, the second prosecution witness the prosecutrix herself, as is usual in these cases. The second prosecution witness’s evidence on

[p.254] of [1968] GLR 248 oath in law needs no corroboration but it is a prudent rule of practice to look for corroboration from some extraneous evidence which confirms the prosecutrix’s evidence in some material particular implicating the accused. I am fully aware that there is a double danger here and I must warn myself and the assessors that apart from the fact that the evidence of a prosecutrix in a sexual offence case must as a rule of practice be corroborated, there is the added factor that the second prosecution witness is a young person of only nine years of age and the evidence of a young person must as a rule of prudence be well corroborated before being acted upon by the court. The best legal authority on this point is the case of R. v. Campbell [1956] 2 All E.R. 272, C.C.A. where all the relevant cases on the corroboration of a young person’s evidence were reviewed. In this case I am satisfied that there is ample circumstantial evidence corroborating the second prosecution witness’s testimony that the accused is the person who ravished her. There is first of all the evidence of the third prosecution witness, Zinabu Moshie, to the effect that she saw the second prosecution witness entering the premises of the accused after the second prosecution witness had accompanied the fourth prosecution witness, Paulina Ansu and herself to the public water stand pipe and that the second prosecution witness never returned to them. The accused in his predicament admitted this visit by the second prosecution witness but the accused then went further to say that the second prosecution witness left his workshop with a message from him that Theresa should bring the bush meat to him (the accused) as requested. Theresa, the sixth prosecution witness, in her testimony stated that when the second prosecution witness gave her the message from the accused she sent the second prosecution witness to go back and tell the accused that she could not get any of the bush meat. This confirms the story of the second prosecution witness that she went back to the accused to deliver Theresa’s message and that it was then that the accused caught hold of her and ravished her.

The accused denied having any sexual intercourse with the second prosecution witness on that occasion but it is to my mind really significant that the prosecutrix did contract gonorrhea within a week of the sexual intercourse and the medical evidence of the first prosecution witness was that the accused was suffering from chronic gonorrhea. In the case of R. v. Jones (1939) 27 Cr.App.R. 33, the Court of Criminal Appeal held in similar circumstances that the fact that the victim has within a few days after the sexual intercourse contracted a venereal disease similar to what the ravisher is suffering is a matter which the jury were entitled to regard as corroboration of the girl’s evidence. Every case must of course depend on its own [p.255] of [1968] GLR 248 facts and in all the circumstances of this particular case event if there is no corroboration at all of the second prosecution witness’s evidence which implicates the accused in some material particular , I have warned myself of the danger of acting on the uncorroborated evidence of a prosecutrix in a sexual offence case who is also a young person, and I am satisfied that the second prosecution witness is a witness of truth.

I fully appreciate the evidence of the first defence witness, Dr. Agyepong of the Military Hospital in Sunyani and the fact that gonorrhea can be contracted in a great number of innocent ways having nothing to do with sexual intercourse. In this particular case I find as a fact that the second prosecution witness contracted gonorrhea as a result of the accused’s sexual intercourse with her.

I have not lost sight of the fact that the second prosecution witness failed to make any report or complaint to her mother or anyone until about a week later but this in my view merely goes to show perhaps that the second prosecution witness was a willing victim but consent of the girl is no defence in such a charge. Furthermore in the case of R. v. Hedges (1909) 3 Cr. App. R. 262, C.C.A a complaint eight days after was accepted by the jury and the Court of Criminal Appeal. The exact date on which the offence was committed by the accused could not be established in view of the prosecution witnesses failure to make a prompt complaint. On the totality of the evidence I am satisfied that after the offence was committed it was within one week that the accused was arrested. The accused gave the date on which he sent the second prosecution witness in connection with the bush meat to be 18 July 1967 but I am satisfied on the evidence that the accused told a lie to mislead the court. Having sworn that the last time he saw the second prosecution witness was on Thursday, 18 July 1967, the accused went on to admit that after that date he did see the second prosecution witness again on the following Sunday in the company of another girl when the sixth prosecution witness’s sewing machine was collected form his workshop, and thereafter on the following Wednesday when the second prosecution witness accompanied the sixth prosecution witness to his workshop carrying a parcel for her. The second prosecution witness thereafter never went to his workshop again till over a week later when she directed the police inspector and others to his place for his arrest. It is improbable that the second prosecution witness kept away from the accused’s workshop for a whole week because the evidence from the sixth prosecution witness was that the second prosecution witness was in the habit of visiting the work place of the accused at least twice each week and, on the

[p.256] of [1968] GLR 248 accused’s own admission the second prosecution witness’s visits were more frequent than twice a week. Furthermore the fifth prosecution witness, the mother of the second prosecution witness testified that when she went to the accused’s house with the second and seventh prosecution witnesses and others to arrest the accused a question was put to the accused whether in the previous week the complaint, the second prosecution witness, went to him on which occasion he sent her to the sixth prosecution witness for bush meat and the accused replied in the affirmative. In other words the accused on that occasion admitted that it was only during the previous week that the bush meat incident occurred. In his evidence on oath the accused admitted that it was only after his arrest when he had been bailed that he recorded the date of the incident as it occurred to his mind. I find as a fact that the accused’s memory played him false and that the incident occurred in the previous week to the accused’s arrest, i.e. any time between 3 August 1967 and 10 August 1967 when the accused was arrested.

All the three assessors who assisted the court to try the case returned a verdict of guilty. I am in full agreement with them and accept their verdict as being reasonable, correct and well supported on the evidence. I therefore find the accused guilty and convict him of the offence of defilement of female under ten years of age.

On the question, of sentence the accused is a first offender aged about 40 years of age, but as the offence is of a serious nature coupled with the fact that the accused who was suffering from chronic gonorrhea transmitted the disease on to the young victim of barely nine years of age I am of the view that a fairly severe sentence must be passed to act as deterrent for others. I therefore sentence the accused to six years’ imprisonment with hard labour.

DECISION

Accused convicted and sentenced.

S. K. T.