Division: COURT OF APPEAL
Date: 15 JANUARY 1968
Before: AZU CRABBE, APALOO AND LASSEY JJ.A.
NATURE OF PROCEEDINGS
APPEAL against conviction for murder. The facts are set out in the judgment of the court.
COUNSEL
Y. Asare for the appellant.
V. A. Kisseih, Senior State Attorney, for the respondent.
JUDGMENT OF LASSEY J.A.
This appeal presents no difficulty whatsoever, as the abundant evidence including that given by the appellant himself at the trial amply supports the verdict of murder returned by the jury after they had been properly directed both on the law and the facts.
The appellant was convicted of murder at the Criminal Session held at Ho on 20 June 1966. The deceased woman named Dimedo Aborge had once been married to a man called Aziabu who died later. She met the appellant, a stout man in his late sixties, who took her as his wife and they both lived together as man and wife in the same village for about eight years before the incident happened. Prior to her marriage to the appellant, the deceased had been living in her late husband’s house in another village, but she moved from there and joined the appellant in his own house. Sooner or later domestic misunderstandings which emerged seriously strained relations between the appellant and his wife with the result that the deceased at one stage manifested her intention to leave the appellant for another man. The appellant was displeased at this state of affairs.
From the recorded evidence led at the trial it would appear that there were two main reasons which were responsible for the strained relations between the appellant and his deceased wife: first, because the appellant refused to meet the repeated requests the deceased made to him to refund to her the money which the deceased had spent in purifying herself according to custom after the death of her former husband. The appellant agreed to pay this money but had always strongly suspected that the deceased had been secretly associating with some unknown man whom she had been encouraging to visit her in her room in the appellant’s house in the village.
On some two other previous occasions before the incident the appellant said he overheard the deceased engaged in conversation with some unidentified man in her room. The appellant said when he inquired about the identity of the man because he could not see or recognise the man owing to his blindness, the deceased denied that she had any man staying with her in the room. As the appellant was not satisfied with the behaviour of the deceased towards this mysterious man he warned her never to attempt to invite any unknown man secretly into her room again or else if he found out the man he would kill him.
In the evening of the fateful day on which the deceased was stabbed to death, the appellant said he again overheard a certain man engaging in friendly conversation with the deceased in her room.
[p.56] of [1968] GLR 53
The time was 7.00 p.m., and so he armed himself with a knife, entered the deceased’s room, and demanded to know from the deceased the identity of the man with whom she had been conversing in the room. The deceased gave him no reply. Instead the deceased manoeuvred to hold the appellant in such a manner that the unknown man managed to escape without the appellant being able to know the man’s identity or name. This infuriated the appellant so much so that he stabbed the deceased three times with the knife which was hidden in his cover cloth. The deceased died as a result of the knife wounds inflicted on her.
In his embellished evidence which he gave on oath at the trial the appellant explained that he only intended to kill the unknown man and not the deceased and that he missed because of his failing eyesight. But in his caution statement, which he made voluntarily to the police shortly after the incident and which was admitted into evidence without objection, he stated therein that as the unknown man escaped he became annoyed and stabbed the wife in the chest with the knife. The statement continued: “I stabbed her again at three places on her chest and she died. This is all that happened resulting in my killing my wife Dimedo Aborge.”
This damaging piece of evidence coming voluntarily from the appellant’s own lips coupled with the clear intention he showed to kill as revealed in his evidence on oath at the trial was also confirmed by the prosecution’s second witness who after hearing the deceased’s wailing cries for help as she was being attacked by the appellant ran to the spot. The witness stated emphatically that on rushing to the spot she actually saw the appellant stab the deceased with a knife. The learned trial judge adequately summed-up the evidence to the jury and dealt with the essential ingredients which the prosecution must establish in order to sustain a conviction for murder. The judge also directed the jury on the question of provocation which we think ourselves was not sufficiently raised on the evidence.
Three complaints have been made in the submissions of counsel for the appellant against the trial judge’s summing-up: The first is that the judge was wrong in telling the jury that the evidence which the prosecution had produced established each of the essential ingredients alleged in the indictment, and further that the evidence led constituted in law the offence of murder. Counsel for the appellant, Mr. Asare, argued that by so directing the jury the judge thereby usurped the proper function of the jury who were in law the proper persons to decide whether as a matter of fact the evidence led at the close of the case for the prosecution prima facie established the offence of murder.
[p.57] of [1968] GLR 53
Although the court is of the view that there is some force in this argument, however, the court does not think that there was any substantial miscarriage of justice caused by the way the learned judge expressed the force of the evidence led by the prosecution. Under our law the judge is entitled to comment on the evidence given by the prosecution and the defence, and in doing so it is not wrong for him to give a confident opinion upon certain questions of fact. In fact, it is sometimes impossible for the judge to deal with points of fact unless he can state his own view of the facts to the jury.
There is no doubt that in this case at the close of the case for the prosecution there was evidence which was not disputed or challenged and which clearly showed that the deceased was dead, that the deceased was killed by the stab wounds inflicted by the appellant. There was also the evidence contained in the appellant’s own statement to the police, exhibit A, in which he admitted killing the deceased intentionally. These pieces of evidence prima facie constitute the offence of murder with which the appellant had been charged, but in directing the jury it is important that the learned judge ought to have been more cautious so as not to express his own opinion on the facts in such a way as to give the impression that he was usurping the functions of the jury who were to decide whether or not the evidence led proved the charge alleged against the appellant. On the contrary, he appeared to have expressed himself very strongly and rather gave the impression that he was doing what the jury ought to have done. We think that after telling the jury in his summing-up that:
“If no explanation were coming from him the accused would be guilty of murder, for the prosecution has established all the essentials of the offence, namely, Dimedo is dead, she died as a result of stab wounds, no justification or excuse has been given for the infliction of the wound, i.e. the harm was unlawful; that the harm was intentionally caused and finally the accused caused the harm,” he ought to have continued his summing-up further and explained to them that although there was evidence which the prosecution led to establish the essential ingredients in the murder charge, it was still a matter for them alone to decide if those facts actually established the offence charged. He should further have told them also that notwithstanding the fact that in his own opinion, the nature of the evidence led by the prosecution at the close of its case was sufficient to sustain a charge of murder, they as jurymen
[p.58] of [1968] GLR 53
were not bound by what opinion he formed of the case which the prosecution sought to make out against the appellant. This the learned judge failed to do. It is a misdirection to leave the impression on the minds of the jury that because the evidence for the prosecution established a prima facie case, the burden of proof is shifted to the defendant: see R. v. Stoddard(1909) 2 Cr.App.R. 217, C.C.A.
However, from the particular facts of this case we do not think that the jury regarded themselves as having been bound by the expressions of the judge upon the questions of fact in the trial. In considering the effect of this particular direction, one must take into account the effect of the whole of the summing-up in deciding whether a particular misdirection occurring in part of the summing-up could have misled the jury. In this regard, giving credit to the jury for their intelligence, and for the knowledge that they are not bound by the opinion of the judge upon issues of fact, there can be no miscarriage of justice resulting from the manner in which the learned judge directed the jury on this aspect of the case, especially as he reminded them also that “it is therefore vitally necessary to consider the evidence given by the accused.” We are of the opinion that the jury in arriving at their verdict must have reviewed the whole of the evidence given on both sides and found that there was no doubt in their minds as to the guilt of the appellant.
Another point urged before us by Mr. Asare on behalf of the appellant is that the judge was also wrong in directing the jury that “no justification or excuse has been given for the infliction of the wound.” Indeed, as the evidence led showed no legal justification or excuse for the act done by the appellant, the judge was in duty bound to say so to the jury.
In his evidence on oath at the trial the appellant stated that he only intended to kill the unknown man and not the deceased. The fact that he missed because he was blind and could not hit at his intended victim is no justification or excuse in law for killing the deceased instead. The point to consider is that he had showed an intention to kill a human being, which death if caused is murder. Furthermore, in his caution statement he made no secret of the fact that he savagely stabbed his wife three times because he suspected she had entertained some unknown man whose escape from her room she facilitated. There is no doubt that the appellant killed the deceased because he was uncontrollably jealous and strongly suspected that his wife was having a secret affair with another man. The appellant’s explanation which he gave at the trial for his murderous act raised no legal justification or excuse which could provide a
[p.59] of [1968] GLR 53
valid basis for any defence under our law. This court cannot find that there has been any misdirection at all by the learned judge.
Finally, it was submitted that the defence of provocation raised by the appellant at the trial was never adequately dealt with by the learned judge in his summing-up to the jury. Learned counsel argued that having regard to the appellant’s explanation, the killing by him of the deceased could amount to no more than manslaughter because the act of killing was done by him under extreme provocation due to the conduct of the deceased. At the trial the appellant’s defence was that he had intended to kill the man he believed was secretly associating with his wife but he missed him for the deceased. In the caution statement which is part of the prosecution’s evidence he stated that he intentionally attacked the deceased with the knife in the manner described on the evidence because he was annoyed with the deceased for assisting the unknown man with whom she had been having some secret dealing that evening in her room to escape. The appellant could not, and did not, see this mysterious man because he was a blind man, but he had strong reason to suspect that his wife was having adulterous relations with this man in the room that evening. It is this explanation by the appellant which was calculated to create a defence of provocation.
In his summing-up to the jury the judge referred to the appellant’s so-called defence of provocation to the jury in this way:
“The defence in this is provocation. The accused is saying that over a period of some weeks his wife had so provoked him that at the material time he lost his temper, took to his wife’s room and went to stab someone he thought was in the room with the wife, unfortunately he stabbed his wife. I wish to repeat his defence because the law says that you must consider the defence however weak that defence is, and in this case if his explanation appears to be reasonably probable, he has satisfied the requirement of the law and you are bound to accept it.”
It is clear from the above passage in the summing-up that the judge was drawing the jury’s attention to the matter of provocation mentioned in section 53 (c) of the Criminal Code, 1960 (Act 29), which successfully raised on the evidence, may have the effect of reducing the charge of murder to one of manslaughter. It reads as follows: “(c) an act of adultery committed in the view of the accused person with or by his wife or her husband, or the crime of unnatural carnal knowledge committed in his or her view upon his or her wife, husband, or child ….” In the present case there is no allegation of adultery, and in fact there is no evidence from which such provocation as stipulated by the subsection could be inferred. The principle
[p.60] of [1968] GLR 53
of law is that if there is no evidence on which a verdict of manslaughter can properly be founded, it is no duty of the judge to leave the question of manslaughter to the jury for their consideration, if it has not been sufficiently raised by the defence, or it is inconsistent with the defence which is put forward. On the facts of this particular case the evidence which it is suggested raised the defence of provocation was a fraction of the evidence led to show that the appellant, although a blind man who was physically incapable of seeing whether in fact adultery was being committed in his “view” by his wife, nonetheless might have been provoked if he strongly perceived from all the surrounding circumstances that his wife was actually committing adultery with another man in his presence.
The judicial interpretation which is given by the courts in this country to section 53 (c) of Act 29 is that for an accused person to avail himself or herself of the benefit of this defence it must be proved strictly that actual sexual intercourse has been indulged in by the other spouse in his or her presence which may cause in him or her a sudden and temporary loss of self-control: see R. v. Tekyi (1941) 7 W.A.C.A. 122 and R. v. Grunshie [1960] G.L.R. 56, C.A. The authoritative decisions on this matter show the consistency with which the courts have persistently resisted the pressure to extend the meaning and purpose underlying the spirit of the paragraph beyond what is intended by the legislature. The unwillingness of the courts to permit any wider interpretation of the paragraph than what it actually says in plain language is also responsible for their holding in cases which have come before them that even a sudden confession of adultery by a wife to her husband without more can never constitute provocation of a sort which might have the effect of reducing murder to manslaughter. See the cases of State v. Nimoh [1960] G.L.R. 203, S.C. which decided that even if the husband has cause to believe that his wife had been associating with other men, without any attendant circumstances of further aggravation, that alone would not amount to such extreme provocation as to reduce the crime to one of manslaughter, and State v. Ofori [1961] G.L.R. 162, S.C.
On the facts of this case, it is clear that the appellant killed his wife because he strongly suspected, perhaps on reasonable grounds, that she was indulging in sex relations with another man in her room that evening. Counsel for the appellant argued that although the appellant was a blind man and therefore could not claim to have actually seen his wife in the act of adultery with another man, the circumstances in which he believed he found them pointed very
[p.61] of [1968] GLR 53
strongly to the deceased having in fact committed adultery and that if those circumstances were such that they were likely to have provoked him, then he was perfectly entitled to claim the benefit under the subsection and have his offence reduced to one of manslaughter.
Mr. Asare’s arguments seems to imply that for a blind man who has lost his ocular vision, the ear could be a substitute for the eye in the interpretation of the words “in view of.” Although this matter is strictly obiter, we think there is some force in this contention. We think if a blind man caught his wife in the act of adultery and he, on the spur of the moment inflicted the fatal injury, it would be wrong to deny him the defence of provocation, for the only reason that he could not see the act of adultery with his own eyes. In those circumstances, it would seem to us reasonable to say that for a blind man the expression “in the view of’ reasonably means “to the hearing of.”
In the present case although the evidence on the whole suggests that the appellant reasonably suspected his wife of having committed adultery with the unknown man, this alone could not in law have amounted to such extreme provocation as would reduce the offence to one of manslaughter. In fact the issue of provocation under section 53 (c) of Act 29 was not supported by the evidence, and we think the judge should not have even left that issue to the jury. The appellant’s explanation could not in law have raised any such defence. Even assuming that there was some provocation, there was no evidence that when the appellant suspected his wife was committing adultery with the unknown man in her room that caused in him a sudden or temporary loss of self-control. On the contrary, the evidence led showed that he intended to kill her because of his uncontrollable jealousy.
The appellant has not been able to show any valid ground in law why we should interfere with the verdict of the trial court.
The appeal is therefore dismissed.
DECISION
Appeal dismissed.
S.K.T.
