Court acquits, discharges former NDC comms Dir. Kwesi Dawood over defilement allegation

On 22nd January, 2024 – almost three (3) years of criminal trial before H/H DORINDA SMITH ARTHUR of the Cape Coast Circuit Court 1, involving Hon Atta Mensah as 1st accused and Hon Kwesi Dawood as 2nd accused, this is what the court had to say: ”at the close of prosecution, learned counsels for the accused persons raised submission of no case per section 173 of Act 30/60. They filed their submissions and after considering them with the evidence so far led, the submission of no case is upheld. Consequently, they are acquitted and discharged”*.

During cross examinations, it came to light that the complainant, Mavis Abena Agyeiwaa Ayittey Arhin has never been a wife or girlfriend of Mr Dawood before but rather stayed with Atta Mensah for four (4) years as her boyfriend.

On the allegation of incest, A2 ie Hon Kwesi Dawood in his efforts to assist the court with the truth in the interest of justice, applied through his lead learned counsel, Michael Monnie Esq for paternity test to be conducted in the course of the trial. Subsequently, the Paternity test was conducted at the court appointed facility- The Trust Hospital’s DNA Clinic, Accra dated 28th March 2022 and signed by the Head of the DNA Clinic, Dr Nana Ama Abankwa. The report states that *”based on the DNA analysis, the alleged father Emmanuel Dawood Mensah can be excluded as the biological father of the child Rita Akos Ayittey Arhin because they do not share genetic markers. ..statistical result: Combined Paternity Index: 0.0000, Probability of Paternity = 0.0000%”*

The answers provided by PW2, who is also the complainant and mother of the 21 years old girl in the case, were clear that she knew PW 1- her daughter is not the biological daughter of A2 before the paternity test was even conducted, and it explains why she and the prosecution did not contest or object to the DNA test results and the court accepted it as a prima facie evidence of the genetic indicators contained therein. See Section 121 (1) of the Criminal Procedure Act, 1960 (Act 30) and NYAMEBA & ORS V THE STATE [1965] GLR 723. Also see ASANTE V REPUBLIC supra. Like it was stated in the words of the eminent jurist Pwamang JSC, “If she chose to lie on oath about the pregnancy, what else did she lie about in her testimony?” A2, therefore, cannot be called to open his defence on the charge of incest, so the submission of no case is upheld.

The very disposition, demeanour and responses by the complainant during cross-examination showed that she knew A2 – Hon Dawood was not the biological father of PW1- her daughter.

*Even worse was the gross disrespect and unremorseful posture she showed the court after the DNA result became evident that she had lied to the police and the court.* Under cross-examination on 11th May 2022, the following ensued:

Q. I am suggesting to you that A2 accepted to take care of the survivor because you indicated to him that he was the father at all material times?

A. A2 knew very well that he was the biological father of the survivor but he did not take responsibility of the survivor until she was in JHS 3

Q. you are aware a DNA has been conducted in this court regarding survivor and A2

A. As to whatever the results of the DNA, I have nothing to say because vengeance is of the Lord. He knows what he has done.

Q. take a look at exhibit 1 and read for the court the conclusion

A. I will not read

Q. I suggest to you that your answer shows that you are very disrespectful to the court

A. I am not being disrespectful, but I am not in this court because of DNA. I am here because I want A2 to be jailed forever.

It is important to establish that the 2nd accused denied ever having sexual intercourse with the alleged survivor and again, he demonstrated in words and actions supported by scientific proof that the 21-year-old alleged survivor is not the biological daughter of the 2nd accused.

Interestingly, PW 4, the investigator established on oath before the court that though the police were willing to establish the biological relationship between the 2nd accused person and the alleged survivor, it was the complainant – Mavis Abena Agyeiwaa Ayittey Arhin (the mother of the alleged survivor) who failed to cooperate with the police to prove this important information. Under cross-examination on 6th February 2023, PW4- the investigator admitted to the following:

Q. In the course of your investigations one of the issues at stake was to do with incest.

A. yes

Q. and you obtained reports of the DNA at the police level?

A. no, but efforts were made but the complainant refused to comply even though the office was prepared to foot the bill.

Q. efforts were made by who?

A. by me

Q. and based on the answer you just gave it means that the survivor and complainant failed to cooperate with you in the investigations in this regard.

A. the complainant failed but not the survivor

Q. I suggest to you that the complainant knew very well that her claims against A2 were FALSE that is why she failed to cooperate with you.

A. for that aspect, I can’t tell

Q. you are aware that there is a DNA results in evidence that shows that A2 is not the biological father of the survivor?

A. yes

Q. you took A2, the complainant, the survivor and a court appointed bailiff to Accra for DNA test. Is that not so?

A. yes

Q. and you are privy to the result of the DNA test?

A. yes

Q. how did the result of the DNA test impact your work as an investigator in this case?

A. in the course of my investigation, when I asked the complainant for us to do the DNA and she refused, I WAS NOT SURPRISED AT THE OUTCOME OF THE COURT ORDERED DNA TEST.

What was established in evidence before the court is that the complainant, the NPP’s former UEW – Ajumako’s TESCON executive, Mavis Abena Agyeiwaa Ayittey Arhin, who reported the hearsay incident to the police and narrated stories including allegations of incest which led to the charge preferred against A2, refused to cooperate with the police to establish the very allegation which would have helped to prove her case against A2 and it is evident that she actually knew any step at proving paternity will expose her wickedness and inure to the benefit of A2 and yet she willfully lied to the police and under oath that her daughter is the biological daughter of A2. Imagine what would have happened if A2’s defence team was not meticulous enough to ask the court for a paternity test which the court magnanimously agreed to?

*The very disposition, demeanour and responses by the complainant during cross-examination showed that she knew the 2nd accused was not the biological father of her 21 yrs old daughter; even worse was the gross disrespect and unremorseful posture she showed the court after the DNA result became evident that she lied to the police and the court.

On the charge of defilement, there were several contradictions, inconsistencies, and outright lies in even the very narration of their claims before the court. Indeed, the prosecution was relying on media frenzy and populist attributions against the accused persons as they relied heavily on the overelaborated but false claims against the accused to get a conviction.

The very attitude of Mavis Abena Agyeiwaa Ayittey Arhin, the complainant, and her daughter Rita Akos Ayittey Arhin before court betrayed them and made their lies evident.

Her responses under cross-examination were evidentially based on emotional disaffection towards the accused person, especially given their past. This personal hatred and dislike for the accused persons was the push factor for the malicious fabrications.

See R V HENRY AND MANNING [1969] 53 CRIM APP REP 150 per Salmon J, the court held inter alia that;

“….It is really dangerous to convict on the evidence of a woman or girl alone.

This is dangerous because human experience has shown that in these courts, girls and women do sometimes tell an entirely false story, which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not enumerate and sometimes for no reasons at all.”

On the alleged assault, aside PW1’s testimony of the alleged assault (which was described by A2 as malicious fabrications in his caution statement), prosecution did not present any document, photograph, or witness to corroborate the evidence of PW 1 since none of the prosecution witnesses had ocular view of the alleged assault.

Under cross-examination, the investigator- PW4 in answering a question stated categorically that a police medical form was issued by the Regional DOVVSU to PW2 – Mavis Abena Agyeiwaa Ayittey Arhin in respect of the assault case but she did not return that police medical form to him and it has still not been returned.

Thus the evidence of PW1 with respect to the charge of assault was not corroborated even though she had the opportunity of having other witnesses or documents to prove that she was indeed assaulted by A2.

*"Hence the prosecution failed to take the case out of the realm of conjecture, speculation and suspicion because the evidence were not corroborated and could not convince the court. See CASEWELL V POWELL DUFFRYN ASSOCIATED COLLIERIES LTD. [1940] AC 152 P 169 particularly the opinion of Lord Wright*

*Consequently prosecution could not establish any prima facie case against the accused persons for the court to call them to open their defence. Therefore he is acquitted and discharged. In sum, the case for the prosecution is considered as having collapsed*.

*The court hereby enters submission of no case in accordance with Section 173 of Act 30 and accordingly acquits and discharges the accused persons on the offences of defilement, incest, assault and abortion & abetment of abortion.”*

– H/H DORINDA SMITH ARTHUR, CIRCUIT COURT JUDGE, CAPE COAST