STATE v. GYIMAH [1963] 2 GLR 446

DIVISION: IN THE HIGH COURT, SUNYANI

DATE: 11TH NOVEMBER, 1963

BEFORE: LASSEY J.

CASES REFERRED TO

(1) R. v. Touhey (1960) 45 Cr.App.R. 23, C.C.A.

(2) R. v. Gartland [1962] Crim.L.R. 318, C.C.A.

[p.447] of [1963] 2 GLR 446

NATURE OF PROCEEDINGS

TRIAL with assessors on a charge of rape. The facts are fully set out in the judgment of the court.

COUNSEL

K. Fordjour, State Attorney, for the State.

Owusu-Ansah for the defendant.

JUDGMENT OF LASSEY J.

The accused is charged with the rape of a female named Mary Yeboah aged about nineteen years on the 2nd January, 1963, at a village called Aboabo No. 4. To this charge he has pleaded not guilty. The facts proved by the prosecution are as follows. The accused is a school teacher resident at Aboabo No. 4. The complainant Mary Yeboah is a school girl staying with her parents in the same village as the accused. In the morning of the 2nd January, 1963, Mary was sent by her mother to go and give a pair of sandals to a shoemaker in town for it to be repaired. On her way to the shoemaker’s place near a coconut tree the accused, who was standing in front of his house, called her into his room, there overpowered her, placed her on her back on the bare cement floor and forcibly had sexual connection with her against her will. Mary cried or shouted. Her mother accompanied by her younger sister in response to her shouts came into the room in time to see the accused actually on top of Mary and having connection with her while she cried. They were later joined by one Yaw Krah and one Yaw Barimah the latter of whom succeeded in lifting the accused up from on top of Mary. He took the accused to his house. Mary accompanied by her mother and younger sister also went home. On the following day, a report was made by Mary’s father to the police at Dormaa-Ahenkro.

The defence of the accused is that the connection took place with the full and free consent of Mary, the prosecutrix; that Mary has been his girl friend, and that he had had connection with her several times before, and that the story of rape was concocted by Mary and her parents after he had declined to comply with their demand to pay the sum of £G20 as compensation in order to refrain from reporting the matter to the police. There is no dispute that there was penetration. It is admitted on the evidence by both the complainant and the accused. That being the case, the sole issue left to be decided is consent or no consent. On this crucial point it is very important to weigh the whole of the evidence very carefully and balance the case presented by the prosecution and her witnesses against that of the accused. In assessing the weight of the evidence much depends on the credibility of the witnesses who testified on the issue. To prove the force used by the accused the prosecution relied largely on the girl’s allegation of shouting or crying. Her mother and younger sister both gave evidence and said that they heard the voice of Mary crying at a short distance from the accused’s house. In consequence they both entered the accused’s room together where they saw Mary in distress resulting from sexual assault being committed on her by the accused. They both testified that when they entered the room Mary was crying “Yekumieo” meaning “I am being killed.” It would therefore seem the whole case turns on the truth of this story. [p.448] of [1963] 2 GLR 446

Mary’s mother, Abena Druwaa, said in her evidence that after she had sent her daughter to the shoemaker’s place she waited for a very long time, and as she was not returning she had decided to go after her. She asked her younger daughter, Abena Twumwaa, to accompany her. They both set out for the shoemaker’s place. They took the route which leads to the accused’s house. On their way they suddenly heard cries or shouts coming from a certain house on the route. Abena Twumwaa recognised the voice to be that of her elder sister Mary. The mother said as she went nearer to the house from which the shouts came she could clearly hear the voice of her daughter Mary. She forced open the door of the room and entered. She was followed by Abena Twumwaa.

Inside the room she saw the accused having connection with Mary who was crying “Yekumieo” and was in agony or distress. She tried to lift up the accused from on top of her daughter but without success. The accused continued the act in her presence. As a result, she shouted for help. Soon after Yaw Krah and Yaw Barimah, both prosecution witnesses who also were standing on the way not far from the accused’s room, entered the room. Yaw Barimah successfully raised the accused up from on top of the girl, and took him to his house. This story is materially corroborated by the evidence of Abena Twumwaa who also stated that she entered the accused’s room at the same time as her mother and saw her sister Mary definitely in distress as a result of the sexual attack on her by the accused.

Both witnesses further said that when Mary’s mother questioned her what she was doing in the accused’s room or how she happened to be there she gave no reply. There is no evidence either that Mary ever told the mother on their arrival at home how she came to be in the accused’s room instead of going to the shoemaker’s place. It would appear therefore that the evidence of the complainant that she cried during the forcible connection in the accused’s room and that of her mother and younger sister that they actually heard the cries of Mary would, if believed, negative consent.

In this respect the observations of other independent witnesses, by-standers who stood at a place not far away from where the act was alleged to have been committed, and who might have heard the shouts or cries of the girl, are bound to provide very strong corroboration of the evidence of Mary and her mother and sister. These two witnesses, Yaw Krah and Yaw Barimah whose evidence, I think, is of vital importance in helping the court to resolve this crucial issue, stood at a point not far from where Mary was being assaulted, and were bound to have heard her cries. According to the girl’s mother and her younger sister, they met these two men standing on the way. The mother said when she shouted for help they heard it and came in for the girl’s rescue. It follows therefore that if these two men were able to hear the shouts of Mary’s mother from where they both stood all the way from the accused’s room they ought to have been able to hear the overpowering cries of Mary prior to the time of her mother’s arrival accompanied by her sister. The mother and her younger [p.449] of [1963] 2 GLR 446 daughter said they heard Mary’s shouts on the way and that attracted them to the accused’s room. Whilst the evidence of these two men must certainly clear any doubts as to whether in fact Mary cried or shouted or not, it is surprising to note these two men said nothing in their evidence on this very important and material point. No attempt was made to elicit from them facts relevant to this issue in examination-in-chief. They were merely made available to the defence who chose not to ask them any question on this point in cross-examination.

It is well established that it is the duty of the prosecution to place before the court all available relevant evidence. This does not of course mean that a whole host of witnesses must be summoned upon the same issue, but it does mean that if there is a vital point in issue about which there is some degree of doubt, and there are independent witnesses whose evidence would settle it one way or the other, those witnesses when called should be asked questions to clear that doubt on the evidence of the prosecution. Although it is true the trial judge sometimes has the discretion himself to ask the witnesses questions on any matter in the interest of justice. In this case I conceive it to be my duty to refrain from asking the witnesses questions on that score, as that would clearly have amounted to the court filling the gap in the prosecution’s case. This is bound to operate to the prejudice of the defence.

Evidently, there are some unusual features about the evidence of the first witness for the prosecution and the mother and sister of the prosecutrix which raise very grave doubts in my mind and which make their story that Mary shouted in agony almost unbelievable.

Firstly, there is some inherent improbability in the girl’s story that she was forced and that she shouted in distress. This was a house in which other tenants or inmates live, situate in an open place with people constantly passing, and there were other residents such as the landlord of the house, who was never called. Teacher Moses Boamah and Ekua Tawiah, both residents of the house, testified that they were in the house during that morning and that they never heard any shouts. I find their evidence convincing and I believe them.

Secondly, the conduct of the girl herself indicates her willingness. She asks the court to believe that she walked straight into the accused’s room in all innocence. There is no evidence that the accused induced her by a ruse or deceit to join him in the room. There is no evidence that when she shouted the accused attempted to place his hands on her mouth. The extreme improbability that the accused would be physically capable of having long and complete connection by force prior to and during the arrival of the mother and sister. In my view, any genuine resistance by the girl must have thwarted his attempt. The girl, who according to the evidence, was pressed firmly by the accused on the shoulder had the free and full use of her limbs but never slapped or attempted to kick the accused. Her allegation that the accused had connection against her will

[p.450] of [1963] 2 GLR 446 and in spite of her shouts and struggles is almost incredible. The evidence satisfies me that if the complainant cried or shouted at all such cries must have been raised only after her mother and younger sister had suddenly seen her upon entering the room. When she found that she had been caught in a shameful and disgraceful act red-handed by her mother out of a sense of shame she tried to put up an act by means of false cries in the room to simulate distress.

Thirdly, there is the fact that it was found by the doctor that Mary’s hymen had been previously perforated but without recent injury, and the fact that the doctor found no signs of bruises or violence either to the hymen or elsewhere on the girl. The evidence of the doctor’s findings which I accept makes almost unbelievable Mary’s assertion that she had never prior to the date of this incident had sexual intercourse with other men. Mary who is a young girl well over eighteen years of age does not strike me as a truthful witness. In the circumstances, I find it proved to my satisfaction that Mary and the accused were friends and that the accused had had several connections with her previously with her consent. I find it also established by the evidence that Mary’s mother knew of the friendship between her daughter and the accused, but I believe the evidence that she did not know that it was of a sexual character. I find that she thought it was purely a social or platonic friendship, because the accused is a teacher to her younger son at school. I do not believe Mary when she said that the accused had never made previous advances to her. I find that Mary was not an unwilling victim of any trap as she asks this court to believe. Fourthly, according to the evidence, the first reaction of the girl’s mother upon entering the accused’s room and seeing her daughter being assaulted was anger probably not with the accused alone, but with both the accused and the girl. The mother herself said that she asked her daughter what she came to do in the accused’s room but Mary never replied but continued to cry. Mary could have told the mother if she was lured into the room by the accused. Her silent conduct satisfies me as being consistent with the accused’s story that she consented to the act.

Whilst all these features tell strongly in favour of the truth of the defence and the falsity of the allegation of connection by force, I have also watched the demeanour of the witnesses. Teacher Boamah and the accused impressed me as truthful persons and I believe their evidence. I emphatically disbelieve the story of connection by force alleged by the prosecution. Mary’s mother and younger sister came purposely to advance the false allegation made by her and I find them untruthful witnesses, and reject their evidence for the reasons already stated earlier in this judgment.

I am not in the least impressed with the explanation offered by the prosecution that the report could not have been made to the police on the same day of the incident because Mary’s family were so poor that they could not afford a shilling to pay the lorry fare from Aboabo No. 4 to Dormaa-Ahenkro. Their explanation for the delay rather makes me to believe as probably true the defence’s allegation that Mary’s parents [p.451] of [1963] 2 GLR 446 demanded the sum of £G20 as compensation in order not to report the incident to the police. Consequently, for the reasons given I have come to the conclusion that the case for the prosecution has not been proved beyond all reasonable doubt, and I find the accused not guilty of the charge of rape. In this respect I share the unanimous opinion expressed by all three assessors.

The learned state attorney has suggested in his address that even if the court should find the accused not guilty of the charge of rape as preferred in the present indictment the court should find him guilty for the lesser offence of indecent assault. The learned state attorney has asked that the question of indecent assault should be left to the assessors to consider and give their opinions thereon. With due respect to the learned state attorney, I am unable to agree to that suggestion. On the proved facts of this case the alternative question of indecent assault ought not be left for the consideration of the assessors and the judge. This is a case where it is admitted on the evidence that there was penetration. Indecent assault is an alternative verdict which the court can consider where it is not satisfied that penetration had taken place. It is not an alternative verdict where the sole issue is consent or no consent as in this case because no consent must be shown both in a case of rape and indecent assault. On the facts of this case, if the prosecution desired to show that in the course of the preliminaries leading up to that penetration there was an indecent assault without Mary’s consent, then they must necessarily lay a separate charge to that effect. See R. v. Touhey.1 In that case the court held that it was wrong to have left to the jury the alternative verdict of indecent assault.

In the case of R. v. Gartland2 decided by the English Court of Criminal Appeal in February 1962, in a charge of rape, the complainant alleged that the appellant had raped her twice and had forced her to submit to an indecent act. The trial judge left to the jury the alternative verdicts of attempted rape and indecent assault, and the court upheld the conviction on a charge of indecent assault only. It would therefore appear from the authorities that if the only question in issue is whether there was penetration or not, then clearly the case is one in which the alternative verdict of indecent assault must be left to the jury or the court.

Conversely, if the only question in issue is whether there was consent to the alleged act it would be improper to leave the alternative verdict to the jury or to the court. For consent is as much a defence to a charge of indecent assault as it is to rape. In the latter case, the prosecution’s allegation is that it is rape or nothing and a verdict of indecent assault could only be given as a result of a misunderstanding by the jury or as a compromise verdict. So where both penetration and consent are in issue the alternative verdict should be left to the jury or court, for they may find that there was [p.452] of [1963] 2 GLR 446 no penetration and no consent in which case the proper verdict would be one of guilty of an indecent assault.

This is not the situation in the present case. In the circumstances, it would be improper to leave the alternative question to the court.

The accused is therefore acquitted and discharged.

DECISION

Defendant acquitted and discharged.

K. T.