SUPREME COURT, ACCRA
DATE: 16TH MARCH, 1962
BEFORE: VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.
CASE REFERRED TO
(1) R. v. Attfield (1961) 45 Cr.App. R. 309
(2) R. v. Dinnick (1909) 3 Cr. A p. R. 77
(3) R. v. Bio (1945) 11 W.A.C.A. 46
(4) R. v. Barimah (1945) 11 W.A.C.A. 49
NATURE OF PROCEEDINGS
APPEALS against convictions for murder by Acolatse, J. sitting with a jury in the High Court, Accra, on the 14th July, 1961.
COUNSEL
Koi Larbi for the first appellant.
K. Narayan for the second appellant.
K. Dua Sakyi, D.P.P. with him Gyeke-Darko for the respondent (the State).
JUDGMENT OF VAN LARE J.S.C.
Van Lare J.S.C. delivered the judgment of the court. [He outlined the facts and continued:] The learned trial judge in his summing-up summarised the case for the prosecution, then proceeded to refer to the defence of the appellants as if the respective defences of both were one and the same or identical; he further made no effort to point out to the jury the considerations to bear in mind in deciding whether or not to believe one side or the other, and apparently gave them but little assistance towards having a critical approach in respect of the material or relevant issues in the case. It is true the facts are simple and in no way complicated, but trial judges usually endeavour in most cases to direct the jury’s attention to the salient features of the evidence for and against the accused. After a summary of the bare facts in this case the judge went on: “This is the short history of the case put before you for your consideration. It is a question of fact for you to decide as to the case made by the defence and that for the prosecution from which you are asked by the defence to say what ‘they’ did was in self-defence and therefore they ask you for a verdict of an acquittal.
[p.175] of [1962] 1 GLR 174
I have to remind you and point out to you that if you accept the defence of self-defence your verdict must be an acquittal. If you think that the accused persons were so provoked that they have lost self control and did fire the gun under an extreme provocation then the crime should be reduced to manslaughter. Again if you have doubt in the case for the prosecution, it is your duty to set them free upon the verdict of not guilty.”
We cannot pretend that the summing-up in this case is a model one, but we have been referred to the recent case of R. v. Joseph Albert Attfield,1(1) where the following appears: “No case has laid down, so far as we are aware, that it is essential for the validity of a summing-up that there should be a reference to the evidence, but equally there is no case that, so to speak, absolves a court from what is normally its function of assisting the jury by dealing with the evidence. Some assistance is to be gained from a passage cited in Stoddart (1909) 2 Cr. App. R. 217. In that case a trial had taken place over a period of twenty days, and there was an omission to direct the jury upon many of the no doubt complex issues which had been considered in the course of it, but this court at p. 246 cited Lord Esher’s words in Abrath v. North Eastern Ry. (1883) 11 Q.B.D. 440, at p. 452, as follows: ‘It is no misdirection not to tell the jury everything which might have been told them. Again, there is no misdirection unless the judge has told them something wrong or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood.”
Adopting this principle of law we think that in this case as far as the first appellant is concerned, by their verdict the jury accepted the evidence for the prosecution that the deceased was killed by the first appellant by firing a gun at him without any just cause or any form of provocation in law and rejected the defence of self-defence that the first appellant fired his gun while running away and being chased by the men including the deceased. We further think that even if the facts as represented by the first appellant were true, the defence of self-defence would not be open to him in law because the facts do not constitute a case of extreme necessity to justify killing in self-defence. He said that while running away he became “fed up” and, as he thought, that his life was in danger but not that there was no longer any means of escaping his supposed assailants, he fired at a range of about 15 yards killing the deceased. Although the learned judge does not appear in his summing-up to have directed the jury when in law the defence of self-defence can be justified in our view no miscarriage of justice appears to have been occasioned thereby. With regard to the second appellant the position in the view of this court is different. As already indicated self-defence was not the defence of the second appellant. His was a denial of the charge and that defence had to be put specifically to the jury. He denied firing at all, either before or after running away. But in his summing-up the learned judge presented his defence as the same as that of the first appellant who admitted the act of killing but raised a question of justification. Though apparently misled by one and the same counsel defending both prisoners at the trial, it was nevertheless the duty of the judge to put before the jury what the real nature of the defence of the second appellant was.
This he failed to do. It has been held over and over since the case of R. v. Dinnick,2(2) and followed by the West African Court of Appeal in R. v. Bio3(3) and also in
[p.176] of [1962] 1 GLR 174
R. v. Barimah,4(4) that however weak or stupid a defence might be and we add even where it consists almost entirely of denials, it is the duty of the judge, in his summing-up to put before the jury the nature of the defence. Although it may not necessitate a summing-up of the minutest details, the jury must be reminded shortly about the evidence. Failure to do so has always been fatal, and we would therefore allow the appeal of the second appellant on the ground of misdirection by non-direction of his defence.
We therefore dismiss the appeal of the first appellant and allow that of the second appellant who is hereby acquitted and discharged.
DECISION
Appeal of first appellant dismissed.
Appeal of second appellant allowed.
