COURT OF APPEAL
DATE: 11TH DECEMBER 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Fenton v. Thorley & Co., Ltd [1903] A.C. 443; 72 L.J.K.B. 787; 89 L.T. 314; 52 W.R. 81; 19
T.L.R. 684; 5 W.C.C. 1, H.L.
(2) R. v. Isaac (No. 2) [1965] Crim.L.R. 174, C.C.A.
(3) R. v. Smith (1915) 84 L.J.K.B. 2153; 114 L.T. 239; 80 J.P. 31; 31 T.L.R. 617; 59 S.J. 704; 25 Cox
C.C. 271; 11 Cr.App.R. 229, C.C.A.
(4) R. v. Want [1962] Crim.L.R. 570, C.C.A.
(5) R. v. Vamplew (1862) 3 F. & F. 520; 176 E.R. 234.
NATURE OF PROCEEDINGS
APPEAL against a conviction for manslaughter at a trial before Lassey J. (as he then was) sitting with a
jury at the High Court, Cape Coast. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Appellant in person.
V. A. Kisseih, Senior State Attorney, for the Republic.
JUDGMENT OF AZU CRABBE J.A.
Crabbe J.A. delivered the judgment of the court. On 20 October 1967, we quashed the conviction of the appellant for manslaughter and set aside the sentence of seven years imposed upon him, and we accordingly acquitted and discharged him. We now proceed to give our reasons therefore. The appellant was not represented by counsel, and this matter came before this court by way of an application for leave to appeal against sentence. We readily granted this application, and also granted the appellant leave to appeal against his conviction, though there was no appeal against conviction in the first place. Lest it should be said that we had no jurisdiction to interfere with a conviction, unless there was an appeal therefrom, we wish to state that this court has an inherent jurisdiction to do justice, and where a subject of the State has been deprived of his liberty in disregard of the safeguards provided by the law, we think that it is the duty of this court to intervene. The court has been created to do justice, but not to perpetuate injustice. The appellant was charged with the murder of one Abena Edufuah on 18 April 1964, at a village called Bremang near Komenda in the Central Region of Ghana. The trial was before Lassey J. (as he then was), sitting with a jury at the criminal session holden
[p.701] of [1967] GLR 699
at Cape Coast, and on 12 November 1964, the jury found the appellant guilty of manslaughter, and he was accordingly convicted and sentenced to imprisonment. It is not disputed in this case that the deceased died as a result of shock following a gun-shot wound. The medical witness who performed the post-mortem examination on the body of the deceased produced in evidence a pellet which he recovered from the body of the deceased. It was also not disputed that the shooting was an act of the appellant. The prosecution, however, alleged that the shooting was intentional; but this was denied by the appellant who contended that his act was unintentional, and that the killing of the deceased was accidental. Thus, the contest between the prosecution and defence was whether the death of the deceased was caused by the deliberate act of the appellant or whether it was accidental.
The appellant and the deceased lived in the same house in the village, and in the evening of this fatal day at about 8.50 p.m. the deceased sat on a verandah in the house; the appellant also sat at the end of the same verandah. During this time two young men who gave evidence for the prosecution came to the house to see the father of the deceased. One of these visitors had fallen in love with the deceased, and they had come to the house with the view to introducing himself formally to his prospective father-in-law and to obtain his consent to the proposed marriage. According to the father of the deceased he was just about to extend greetings of welcome to the two young men when he heard the report of a gun shot. He said this further in his evidence:
“When I heard the gun shot I rushed towards the direction where the gun was fired; when I got there I saw the accused holding a gun; the accused started to run away holding the gun and I chased him and shouted out at him. I shouted, ‘Kojo Abbam has fired a gun and is running away’. I shouted for people to hear. When I chased the accused I lost sight of him and so I returned to my house.” It was said by this witness that the appellant was already aware that one of the two visitors was going to marry the deceased and that he had sent to him on a previous occasion one bottle of akpeteshie and the sum of 10s. 6d. The witness denied that the gun shot came from the appellant’s room. He also denied that the appellant told him that the gun was accidentally fired.
In a statement, exhibit C, which the appellant made to the police whilst in custody, he said that he had made a marriage proposal to the deceased in her lifetime, and that he had given the deceased £G3 10s. plus a pair of native sandals. He said further that when he
[p.702] of [1967] GLR 699 approached the deceased’s father the latter disapproved of the intended marriage as both the appellant and deceased were relatives. This, it would appear from the point of view of the prosecution, provided evidence of the appellant’s motive for the killing. But the appellant repudiated these statements, and the father of the deceased denied that the appellant evinced any desire to marry the deceased. The appellant’s defence was accident, and this he maintained consistently. In a statement, exhibit F, he made to the police on the date of the incident, i.e. 18 April 1964, the appellant stated as follows:
“I was discharging my cap gun when accidentally my hand touched the trigger and it fired and hit the deceased who was at the time coming from the kitchen to her room. The deceased Abena Edufuah shouted that, ‘Oh you have killed me’.”In a subsequent statement, exhibit C, made on 24 April 1964, the appellant stated his defence fully in these terms: “On the night of 18 April 1964 I went to the house of the deceased. I met her new friend Kojo Yamoah and another young man by name Kwaku Basa, sitting down in the compound conversing. I went and collected my cap gun from the room of my friend Kobina Andoh, and left there for Apre village to visit some friends. I later returned to the house and met the deceased and the two young men still sitting in the house. I was returning the gun to its original place when accidentally my hand touched the trigger and it fired killing the deceased. I became frightened and ran into the bush with the gun. Later I was arrested by the townsmen.” And in his sworn evidence before the trial court the appellant said this: “I later got up and went into my room to prepare for hunting in the night. I put on my dress; I then started removing the precaution-cap from my gun; when I was removing the precaution-cap from the gun the hammer on the gun got out of my control; by the hammer I mean the trigger; then fired and I heard shouting; I rushed to the spot only to find that the pellet from the gun had hit the deceased Abena Edufuah.”
It seems clear from the passages we have quoted above that the appellant’s defence was accident, pure and simple; that is to say, that the event — the discharging of the gun in the hands of the appellant causing the death of the deceased — was a mishap both unintended and unforeseen. In Stephen’s Digest of the Criminal Law (9th ed.) at p. 260, it is stated as follows:
[p.703] of [1967] GLR 699 “It is not a crime to cause death or bodily harm accidentally by an act which is not unlawful, unless such act is accompanied by an omission, amounting to culpable negligence . . . An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it.”
Speaking generally of the word “accident” with reference to legal liabilities in Fenton v. Thorley & Co., Ltd. [1903] A.C. 443 at p. 453, H.L. Lord Lindley said: “The word ‘accident’ is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause . . .”
The learned trial judge’s analysis of the facts in this case is, in our view, beyond cavil, for he stated them fully and fairly for the jury. But it is his failure to direct the jury properly on the verdicts which they were entitled to return on the facts that opens his summing-up to attack. We think that it would be well-nigh impossible for the jury to discharge their duty faithfully under section 279 (a) of the Criminal Procedure Code, 1960 (Act 30), if the trial judge omits in his summing-up to tell them the types of verdict which would be consistent with the evidence they have heard, especially in a case where there are two or more alternative verdicts open to them.
Section 279 (a) reads as follows:
“It is the duty of the jury —
(a) to decide which view of the facts is true and then to return the verdict, which, under such view, ought, according to the direction of the Judge, to be returned.” In our opinion one of the most important directions of the learned trial judge on the prosecution’s case is contained in the following passage of the summing-up: “If you accept the evidence that the accused realised that he could never get married to the deceased and that Kojo Yamoah had succeeded in winning the love of the deceased in marriage — You may think that might have been his reason for
[p.704] of [1967] GLR 699 wanting to get rid of Abena out of the way so that nobody could get at her. If you believe that evidence that the accused saw Yamoah and Basah chatting with the deceased on the verandah and also coupled with that the evidence of the sixth prosecution witness Kwame Nkrumah that he told Yamoah that if he was interested in the deceased he could talk to her himself; that this was said to the hearing of the accused — If you think the accused did not intend to kill Abena in particular but without aiming at any one just fired into the verandah either hoping to scare away the suitor to the deceased, then if you come to the conclusion that he ought to have foreseen the possibility of killing Abena or any of the people on the verandah and that death in fact resulted to one of the people from his act, he is still guilty of murder.” The manner in which the learned trial judge also dealt with the defence in the summing-up is illustrated by his directions in the following passages:
“If even the accused kept the loaded gun in the room for a lawful purpose, to wit, hunting at night, the test you have to apply here is that taking the accused as an ordinary person in his community — normal person of his type when he realised for the first time inside the room that the gun was loaded and was therefore trying to clean the cap to avoid it going off in a room without windows, could he not have foreseen the likelihood of an inmate of the house passing by the entrance or attempting to come to the room that night and that in that respect there was the possibility or likelihood that the gun might go off and cause that person grievous bodily harm? If you do not think so, then the accused could not have intended death to result and you must acquit him of the offence of murder — If however, you are satisfied that the accused, that is, if you do not accept the accused’s story that the firing was accidental and that accused ought to have contemplated that grievous bodily harm was likely to result to someone in the house in which other inmates lived, and that in fact harm
did happen resulting in the death, then accused is guilty of murder.
On the other hand, if you are not satisfied that the accused intended to inflict grievous bodily harm on whoever was on the verandah that Saturday night when the incident occurred and that the killing was purely accidental then you must return a verdict of not guilty of murder . . .
Jury reminded that accused is presumed innocent — accused [p.705] of [1967] GLR 699 only to give explanation — accused’s defence is a complete denial of the charge of murder preferred against him; he admitted he fired the gun but said he did so accidentally. No eye-witness in fact saw how he fired except the accused himself. If you entertain any reasonable doubt on the whole of the evidence, you must return a verdict of not guilty of murder; if in doubt whether the gun went off accidentally or not you must also return a verdict of not guilty of murder; you must find the accused guilty only after being fully satisfied that he intended to kill someone on the verandah when he fired the gun.”It is quite apparent on a reading of the above passages from the summing-up notes that whereas the learned trial judge directed the jury that if they accepted the case for the prosecution they should return a verdict of guilty of murder, he failed to tell them that if they accepted the defence case they should completely acquit the appellant. There were only two possible verdicts in this case: guilty of murder or complete acquittal.
Apart from his failure to give the jury a clear and unambiguous direction on the verdict, the learned trial judge concluded his summing-up as follows:
“If you are satisfied the prisoner did not know the gun was loaded then he cannot be convicted of murder and the question would be one of manslaughter. If a man takes a gun, not knowing whether it be loaded or unloaded and using no means to so ascertain and fires it in the direction of another person and who died eventually he is guilty of manslaughter.” With the greatest respect to the learned trial judge, we think that his final direction in this passage is wrong in two respects. The first limb of the direction is an erroneous statement of the law, because if the appellant did not know that the gun was loaded then on the facts of this case he would be entitled to outright acquittal. In our law a person is guilty of manslaughter if he causes the death of another by unlawful harm; and by definition an unlawful harm is harm caused intentionally or negligently without justification. To be guilty of manslaughter by negligence, the negligence proved must amount to reckless disregard for human life. There is no such evidence in this case. In any case, we think that if the appellant had had reason to believe that the gun was not loaded and he pulled the trigger and killed someone, the death would be accidental. With regard to the second limb of the passage we again think, with respect, that the learned trial judge did not accurately state the law to the jury. In the illustration given the person firing the gun would in the circumstances be guilty of manslaughter by negligence.
[p.706] of [1967] GLR 699 With respect to the learned trial judge we think that the directions in the final passage of the summing-up contained a new theory of his own, for that was the case neither for the prosecution nor for the defence. “It is dangerous and inadvisable for a judge for the first time in his summing-up to advance a theory of his own”: see R. v. Isaac (No. 2) [1965] Crim.L.R. 174 at p. 175, C.C.A.; R. v. Smith (1915) 11 Cr.App.R. 229, C.C.A. and R. v. Want [1962] Crim.L.R. 570, C.C.A. The learned judge did not tell the jury how far the theory could be applied to the facts in this case. Besides, though the passage contains the only reference to manslaughter in the whole summing-up, yet the learned trial judge omitted to explain to the jury the distinction between murder and manslaughter as enacted in sections 47 and 51 of the Criminal Code, 1960 (Act 29). As Pollock C. B. said in R. v. Vamplew (1862) 3 F. & F. 520: “the crimes of Q murder and of manslaughter were in some instances very difficult of distinction.” A jury should not be left to make guesses, and it is the duty of the trial judge to explain to them all matters to which they have to apply their minds. Therefore, having for the first time in his final charge told the jury that it was open to them to return a verdict of manslaughter, it became the imperative duty of the trial judge to direct them that their verdict would be either guilty of murder or guilty of manslaughter or complete acquittal. But he failed to tell them about the three possible verdicts, which on his direction they could return.
In our view the misdirections in the final passage of the summing-up must have confused and misled the jury, for having rejected the prosecution’s view of the case, they were left only with the case of the appellant which stood uncontradicted. In those circumstances the only verdict which the jury could have legitimately returned was one of complete acquittal. We are satisfied that the misdirections in the final passage of the summing-up have occasioned a substantial miscarriage of justice in this case, for they deprived the appellant of a fair chance of acquittal.
It was for the above reasons that we allowed the appeal, set aside the conviction and sentence and acquitted and discharged the appellant.
DECISION Appeal allowed
S. O.
