KWASI KUMA v. THE REPUBLIC [1972] GLR 179
COURT OF APPEAL
Date: 22 JANUARY, 1971
BEFORE: AZU CRABBE, APALOO AND JIAGGE JJ.A.
CASES REFERRED TO
(1) R. v. Rivett (1950) 34 Cr.App.R. 87, C.C.A.
(2) Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386; [1961] 3 W.L.R. 965; [1961] 3
All E.R. 523; 46 Cr.App.R. 1,.H.L.
(3) R. v. Abisa Grunshie (1956) 1 W.A.L.R. 36, W.A.C.A.
(4) State v. Nyavie and Ofori [1962] 1 G.L.R. 174, S.C.
(5) R. v. Attfield [1961] 1 W.L.R. 1135; [1961] 3 All E.R. 243; 125 J.P. 581; 45 Cr.App.R. 309,
C.C.A.
(6) R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197.
(7) Stirland v. Director of Public Prosecutions [1944] A.C. 315; 60 T.L.R. 461; [1944] 2 All E.R. 13,
H.L.
(8) Yirenkyi v. The State [1963] 1 G.L.R. 66, S.C.
(9) R. v. Dyson [1908] 2 K.B. 454; 77 L.J.K.B. 813; 99 L.T. 201; 72 J.P. 303, C.C.A.
(10) Commissioner of Police v. Antwi [1961] G.L.R. 408, S.C.
NATURE OF PROCEEDINGS
APPEAL against a conviction for murder at the Sunyani High Court presided over by Sampson Baidoo J. The facts are fully set out in the judgment of Apaloo J.A.
COUNSEL
Tay for the appellant.
Mrs. Amankwa, Senior State Attorney, for the Republic.
JUDGMENT OF APALOO J.A
Apaloo J.A. read the majority judgment. On 25 July 1968 the appellant was convicted in the High Court, Sunyani, by Sampson Baidoo J. sitting with a jury of the murder of one Kwadjo Francis and was sentenced to death.
The appellant was related to the deceased by marriage. The latter was a fetish priest who earned a living by his fetish. He lived in a village called Oppongkrom which is about four miles from Goaso. At about 7 p.m. on 3 January 1967, the deceased was performing certain fetish rites in the yard of his house. With him were some members of his family. All of a sudden, the deceased was hit by pellets from two gunshots which were fired in rapid succession. He sustained injuries in his forehead and left side of the chest and died moments afterwards. Dr. Horvath who performed an autopsy on the body of the deceased was of opinion that death was caused by “haemothorax” of the left side of the chest. None of the members of the deceased’s family who were with him saw who fired the shots.
Just about dawn the next morning, the appellant called at the police station at Goaso. He was then
carrying a double-barrelled gun. The appellant attracted the attention of constable Yeboah who was then sweeping the corridor of the charge office. When the police noticed him, he handed the double-barrelled gun to the police. Curious, the constable asked the appellant what the matter was. The appellant requested the constable to wait a minute. He then put his hand into his pocket and produced eight live cartridges which he handed to the police. He then [p.182] of [1972] GLR 179
explained that he shot one Kwadjo Francis (the deceased) at about 8 p.m. the previous evening at
Oppongkrom. He was not sure whether his victim was alive or dead but he had come to the station to
surrender himself. He was then taken into custody.
He was charged with the murder of the deceased that very day. He then made to the police a long
statement about his personal life. In particular, he said he had an illness which defied treatment and he consulted the deceased who assured him that he could be cured by the fetish provided he brought a sheep, goat, dog and such other things. The appellant said he made it clear to the deceased that if he brought these things but the fetish failed to cure him, he would take the life of the deceased. He said the deceased agreed to this. The appellant said he brought the things which the fetish demanded but the fetish failed to cure him. The appellant then said he made up his mind to dispose of his personal effects and then kill the deceased but before he could do this the deceased complained to the police that he (the appellant) was mad. He attended the Nsawam Hospital many times without result. When the deceased reported to the police that he was mad, the latter came to his village. He said he decided to kill the police also but on reflection, thought he should not as the police had done him no wrong. The statement which the appellant made to the police only hours after the shooting is extremely odd and is such as would put any reasonable man on inquiry as to his sanity. While in custody, he must have exhibited a similar trait, because he was then sent to the mental hospital for observation. After some period in hospital, Dr. Diji the specialist psychiatrist diagnosed his illness as catatonic schizophrenia. The doctor said as the appellant was unable to provide them with a medical history, he could not say how long the appellant suffered this mental illness before his admission.
When put on his trial, the appellant disclaimed any knowledge of the shooting and repudiated his
statement to the police. He denied ever killing the deceased and disavowed the long story he gave to the police about the shooting.
In a fairly comprehensive summing-up, the learned judge directed the jury on all the ingredients of the offence of murder and drew their attention to various species of evidence which show that this or that ingredient of the offence was established. It is plain from the verdict of the jury that they disbelieved the appellant’s denial of the shooting and must have considered that his confession to the police on this score represented the truth. It seems equally plain that the only serious issue raised on behalf of the appellant was whether at the time of the commission of the offence, he was sane or not. The learned trial judge did not omit to direct the jury on the issue of insanity. He directed them accurately on the burden which the appellant assumed in this case. He read to the jury the evidence of the psychiatrist and asked the jury to consider: “Whether at the material time of the offence the accused was suffering from a mental disease or labouring under an insane delusion, in which case, the special verdict of guilty but insane must be brought.” [p.183] of [1972] GLR 179 The jury’s verdict shows that they did not consider that the appellant was insane at the material time. The
appellant appeals against this verdict and the only serious complaint submitted to us is that the learned judge’s direction on the question of insanity was inadequate and did not sufficiently bring to the attention of the jury the species of evidence which makes the defence of insanity probable.
Although we see no substance in the many other grounds on which the summing -up was attacked, we see much force in this particular submission. As we said, there was at least something odd about the appellant’s conduct. He fired these shots in the night and as the evidence goes, nobody saw him do it. If he had been in his right mind and the murder was deliberate, one would have expected him to dispose of the gun and the cartridges and thus destroy any evidence against him. But by calling at the police station at dawn and providing the police with the information he did, he provided cogent evidence against himself. It is possible he did this out of remorse but the facts which he gave in his statement that very day at least suggest that he could not have been all right “up there.” He said in effect that he offered to kill the deceased if his fetish failed to cure him and this unusual offer the deceased accepted. He also said he was minded of killing all the police but changed his mind because the police had done him no harm. Would he say this to the police if he were in his right mind? He also said the deceased himself had previously accused him of being mad and for this ailment he received treatment at Nsawam Hospital to no avail.
Whatever nagging doubts one might entertain about his sanity were considerably strengthened by the independent professional evidence of the doctor. The latter was certain that the appellant was suffering from a mental disease called schizophrenia. Although the doctor could not say whether the appellant had the attack before the commission of the offence, yet he was admitted there barely six months after the offence, that is, on 9 June 1967.
The learned judge himself directed the jury, we think correctly, that the onus on the accused in
establishing insanity is not as high as the onus on the prosecution and that all the accused need do “is to satisfy you on a preponderance of evidence that he was probably insane or suffering from insane delusion at the time he committed the offence.”
That being so, we think the learned judge should have drawn the jury’s attention to the oddities in the appellant’s conduct and statements from the time of the commission of the offence till the date the doctor was able to testify as to the appellant’s want of sanity and to invite the jury to consider whether on the totality of the evidence, the appellant was probably suffering from this mental illness at the time he committed the act. We think the judge should then have told the jury to ask themselves if the contemporaneous and subsequent acts of the appellant made it probable that this mental illness afflicted him by 3 January 1967 or if the evidence as a whole leaves them in reasonable doubt of it. An affirmative answer to either question entitled them to return a verdict of guilty but insane.
[p.184] of [1972] GLR 179 We think such a direction would have made it clear to the jury that the appellant had to establish the defence of insanity only on a balance of probability. It would be rare for a person who relies on a defence of insanity to establish with precision the date the malady first afflicted him and we think it unhelpful to tell the jury, as the learned judge did, to consider the bare question “whether at the material time of the offence the accused was suffering from mental illness.”
Accordingly, we are constrained to accede to the contention that the learned judge’s direction to the jury on the question of insanity was inadequate. Had it been adequate, we think it likely that the jury would have found the appellant guilty of murder but insane. We think therefore that the verdict of guilty of murder ought not to stand. We hereby set it aside and substitute for it a verdict of guilty but insane. We order that the appellant be detained in the Mental Hospital as a criminal lunatic until the President’s pleasure be made known.
JUDGMENT OF AZU CRABBE J.A.
The appellant in this case was convicted for murder by a jury before Sampson Baidoo J. at the Criminal Session held at Sunyani, and was sentenced to death. He has now appealed to this court on a number of grounds, but the only ground which we think is worthy of consideration is that stated in these terms: “The learned trial judge failed to direct the jury adequately on the mental state of the accused in his summing-up.”
The case for the prosecution was that the deceased, who lived at oppongkrom cottage near Mim in the Brong-Ahafo Region, was married to a relative of the appellant, and the appellant was also married to a niece of the deceased. The appellant, who was a cocoa farmer and a distiller of akpeteshi, lived with his wife, Yawa alias Yaa, at a cottage near Prempeh village, which is about one mile from Oppongkrom. According to the evidence he shot the deceased at 7 p.m. on 3 January 1967, whilst the deceased was performing certain rites in connection with his fetish in the yard of his house. No one actually saw the appellant fire the shot, but in my view the evidence of his wife, Yawa alias Yaa, has a very important bearing on the criminality of the appellant. Madam Yawa alias Yaa testified as follows:
“The accused is my husband. I am married to him under native custom. Accused has two other wives. I knew the late Kwadjo Francis. He was my relative, as he was the sister [sic] of my mother’s mother. I was living with the accused at a cottage near Prempeh village. From our cottage to Oppongkrom would be about one mile. My husband, the accused, was a cocoa farmer and also a distiller of akpeteshi. The deceased was marrying a sister of the accused. There was some dispute between the accused and the deceased. The accused bought a kind of poison for killing trees and asked the deceased to share the medicine and the cost of it with him, but the deceased could not afford to pay. Later on the accused told me and all the other two wives of his that the medicine or poison he bought for use on trees had, when being used, got into a wound on his fore-finger and had [p.185] of [1972] GLR 179 made him ill or affected his health. Before using the medicine the accused told us that he had already consulted the fetish of my late uncle, Kwadjo Francis, for advice as to whether he should use the medicine and according to what the accused told us the fetish warned him not to use the medicine. All the same the accused ignored the warning and used the medicine. I did not myself observe that the accused was ill. My late uncle could, by the use of his fetish, cure diseases. The accused therefore asked my late uncle to cure him. I saw my husband buy for use by my uncle on his fetish one sheep, one goat, seven fowls all being small ones except one that was big, some yards of calico, and one hundred cola nuts. He was also asked to pay £G5 by the deceased, and he paid. After providing all that the accused still complained that there was no improvement in his health. The accused then left for Nsawam with all of us his three wives and after one month’s stay we returned to our cottage. After less than a month the police came to our cottage looking for the accused to arrest him. I don’t know why, my husband ran away to Nsawam. We the three wives followed
him there. After six months’ stay at Nsawam the accused returned to our cottage bringing with him only myself as he stated he wanted me to accompany him to the cottage to demand from Kwaku, his brother then taking care of his cocoa farms, the moneys due to him. The other two wives were instructed by the accused to go to our home-town in Togo. When I was leaving Nsawam with my husband he took with him his double-barrel gun which he dismantled and kept inside an empty sugar sack. I had seen the gun before as the accused had it with him while we were living at the cottage previously. Even on one occasion the gun was sent for repair and one of the barrels was removed and replaced with a new barrel. I can identify the gun.
This gun in court is the very gun—[tendered for identification and marked Id. 1.] The accused used to hunt with the gun and I know he can shoot the gun himself. Apart from the gun I did not see the other articles in the sack. The accused never told me what he wanted to do with the gun. As we were about to reach Prempehkrom while walking along the foot path through a cocoa farm the accused at that stage stated I alone should go to his brother Kwaku at Kramo village to get the money for him. He explained he would not himself go to the village as he feared his brother would tell the police of his return and the police would rush to arrest him and make him loose his money thereby. It was dark and night time at about 8 p.m., so I proceeded to Prempehkrom where I took a piece of burning firewood to use on the way to the village as light. I reached Kramokrom and after telling Kwaku of my mission his wife gave me food which I ate. Soon after eating we heard the report of a gun in the direction of the village of my late uncle Kwadjo Francis. I heard two gun shots. Later my brother, Kwasi, came to our place at Kramokrom and reported that my uncle Kwadjo Francis had been shot dead. When I parted company with the accused I did not see him again that night.” [p.186] of [1972] GLR 179 On the early morning of 4 January 1967, the appellant surrendered himself to the police at Goaso, and he told Corporal Emmanuel Owusu Yeboah, the sixth prosecution witness at the charge office, that he had shot one Kwadjo Francis, the deceased, at Oppongkrom, and was not sure whether or not he had died; he also surrendered to the sixth prosecution witness a double-barrelled gun. He was promptly cautioned by Corporal Peter Meiza Ekenlebie, the seventh prosecution witness, whereupon he made a confession statement, exhibit C, which was admitted into evidence. In my opinion, the contents of exhibit C, relating to incidents before the appellant left for Nsawam, are in substance the same as the evidence given by the son of the deceased, Adjrackor Patrick the third prosecution witness, and by his wife (the fifth prosecution witness).
The statement of the appellant was witnessed by an independent witness, one Kobina Ahadzi (the eighth prosecution witness). This witness who said that he had known the appellant earlier than the date on which the appellant made his statement, exhibit C, testified to the behaviour of the appellant when he saw him make that statement. The witness said:
“That morning the general demeanour of the accused was normal—he was sound in health, and his speech was delivered in just the way I am talking to the court as I give evidence. He was normal. Before seeing the accused that morning I knew the accused previously as I used to go to his cottage to buy coal from the women residents there. On all these occasions I saw the accused, including that morning he gave his statement his behaviour has always been normal and nothing unusual. I have never had any quarrel with the accused. I gave a statement to the police which I thumb-printed.
Cross-examined by Akoto: I cannot read nor write. I first heard of the death of Kwadjo Francis from the accused himself when he gave a statement that morning that be had fired a gun at Kwadjo Francis at Oppongkrom.” Corporal Peter Meiza Ekenlebie the seventh prosecution witness also said that the appellant was normal and “spoke well just like any normal person.” The wife of the appellant was never asked a single question about the mental state of the appellant prior to the date on which he was alleged to have killed the deceased.
Murder in our criminal law is defined in section 47 of the Criminal Code, 1960 (Act 29), as follows:
“Whoever intentionally causes the death of another person by any unlawful harm is guilty…” For the
prosecution it was proved that:
(1) the deceased, Kwadjo Francis, was dead;
(2) he died as a result of unlawful harm;
(3) the harm was caused voluntarily by the appellant, and without any provocation.
Upon proof of these facts the presumption would arise, by virtue of section 11 of Act 29, that the
appellant intended to kill the deceased. It was then open to the appellant to displace that presumption by leading some evidence from which the contrary might be inferred. [p.187] of [1972] GLR 179 The prosecution further proved that the appellant did the killing from an evil motive.
The appellant relied on the defence of insanity. Section 27 of Act 29 states that:
“When a person is accused of crime, the special verdict provided for by the Criminal Procedure Code in the case of insanity shall only be applicable—
(a) if he was prevented, by reason of idiocy, imbecility, or any mental derangement or disease affecting the mind, from knowing the nature or consequences of the act in respect of which he is accused; or
(b) if he did the act in respect of which he is accused under the influence of an insane delusion of such a nature as to render him, in the opinion of the Court, an unfit subject for punishment of any kind in respect of such act.” There is no doubt that the appellant relied on section 27 (a), and in order to avail himself of the special verdict of “guilty but insane,” as provided by section 137 of the Criminal Procedure Code, 1960 (Act 30), he would have to prove that he was, by reason of mental derangement or some disease affecting his mind, prevented from knowing the nature or consequences of the act in respect of which he was charged. I have underlined the foregoing words for the purpose of emphasis. It seems clear, therefore, that it would not be enough for him to show merely that he was suffering from madness or some form of mental disease; he must go further and prove, to the satisfaction of the jury, that that disease of the mind or madness from which he suffered rendered him mentally incapable of appreciating the nature and consequences of his conduct. In R. v. Rivett (1950) 34 Cr.App.R. 87, C.C.A., which is a leading case on insanity, it was said in the headnote that: “in considering whether a person is to be excused from the consequence of a crime on the ground of insanity, the question is not merely whether he was suffering from a defect of reason due to disease of the mind but whether the defect was such as to render him not responsible for his action.
The issue is one to be determined by a jury, and not by medical men of whatever eminence; and where a jury has found a prisoner guilty despite strong evidence by medical men of the highest standing that he was insane at the material time, the Court of Criminal Appeal will not interfere with the verdict, unless it is satisfied that no reasonable jury could have found a verdict of guilty in the particular case.” The appellant was admitted to the mental hospital in Accra on 9 June 1967, i.e. six months and five days after his arrest. According to the evidence of Dr. Augustine Diji, the specialist psychiatrist attached to the Mental Hospital, the appellant was on his admission “mute, manneristic, catatonic and appeared to be confused.” There is, however, no evidence [p.188] of [1972] GLR 179
as to how long he had been in that condition before his admission. He was under observation until he was discharged on 24 April 1968.
On 11 June 1968, when the appellant was arraigned before the court at Sunyani he pleaded “not guilty,” and on 18 June 1968, he began to give his sworn testimony. He remembered that he once lived with the deceased, and recalled the rituals that were performed at the shrine of the fetish owned by the deceased.
He said that he once paid an amount of four shillings to join those who worshipped the fetish, but the
fetish did not like him. He denied that he had ever brought a gun, and that he shot the deceased. As
regards the evidence of the police witnesses he said that he never took him to show them where he hid the gun, neither had he visited the Goaso Police Station, much less to make a statement (exhibit C). He said that nobody had told him of the death of the deceased, and that before he was brought to court he did not know the offence for which he was being charged. In short, the appellant could not remember having killed any one. But loss of memory after committing an offence is never in itself a defence, so long as the accused was conscious of his act at the time of the offence: Bratty v. Attorney-General for Northern Ireland (1962) 46 Cr.App.R. 1 at p. 16, H.L. per Lord Denning.
The most important witness called for the defence was the specialist psychiatrist Dr. Augustine Diji. This is the relevant portion of his evidence:
“I know the accused. He was admitted to the Mental Hospital in Accra on 9 June 1967. On admission he was mute, manneristic, catatonic and appeared to be confused. These were the main features. He was under observation until he was discharged on 24 April 1968. From his movements and actions I arrived at the conclusion that he was suffering from catatonic schizophrenia. Schizophrenia is a disease which leads to a disturbance of thought, mood, volition and at times motor activity. It can have all sorts of effects on the mind of the patient. For example the patient may be disorientated to time, place, and persons. The patient may also get thought blocking, i.e. the mind may become completely blind for a moment during which there will be no mental activity at all going on in the mind.
Cross-examined by state attorney: I started practising in Ghana only in May 1967. Before then I was
practising in Belfast, Northern Ireland. On admission the accused was at first under the care of Dr. Adomako, another psychiatrist until in early July 1967 when I took over the criminal section of the hospital, i.e. the criminal ward. Accused was hereafter continually under my observation till his discharge. As we could not get any history we could not tell for how long the accused has had the attack of that mental disease before his admission . . . A schizophrenia patient may forget some past events but not every past event. Events which occurred at the time the disease was beginning may be completely forgotten although usually they show patchy memory. In a patient with ganser they usually completely forget the events no matter what efforts are made to help him to
[p.189] of [1972] GLR 179 remember the event. A person genuinely suffering from mental disease may on recovery pretend not to remember anything.
Cross-examined by foreman: A schizophrenia patient may commit a crime while suffering from the disease. The patient sometimes hears voices either threatening him or asking him to do something criminal. I cannot say whether he was mentally ill before the commission of the offence or whether the illness is the reaction to the imprisonment the accused is facing after the offence.
Re-examined by Akoto: Catatonic schizophrenia is of a recurrent nature. It may come on and off at a period.” The main features of the medical evidence are: (1) The appellant was suffering from catatonic schizophrenia which is a disease of the mind; (2) Catatonic schizophrenia is recurrent by nature, and it comes off and on; (3) A schizophrenia patient is apt to forget some past events. But it should be noted that the medical witness was unable to say whether the appellant was suffering from his mental disease before the commission of the crime, or whether the illness was the reaction to his incarceration after the killing.
In other words, the medical witness could not say that at the time of the commission of the offence the appellant was suffering from schizophrenia. And there was no other evidence that he was. For the
prosecution, on the other hand, two witnesses gave positive evidence that the appellant was normal at the material time.
In his direction to the jury the learned judge said:
“The accused is setting up a defence of insanity. The onus is on the accused to establish that he was insane at the material time he committed the offence. The onus on the accused is not as high as the onus on the prosecution to establish its case beyond reasonable doubt. All the accused has to do is to satisfy you upon a preponderance of evidence that he was probably insane or suffering from insane delusion at the time he committed the offence. If you believe he was at the material time insane, (or if his defence has raised in your mind a reasonable doubt as to his sanity at the material time) then you must consider section 27 of Act 29.
Read the section out to the jury. Refer also to section 137 (1) of Act 30.”
Then after reading to the jury the sworn evidence of the appellant and also the evidence of the medical witness (the first defence witness), the learned trial judge continued his directions in these words:
“It is a question for the jury to ascertain on the evidence whether at the material time of the offence the accused was suffering from a mental disease or labouring under an insane delusion, in which case the special verdict of guilty but insane must be brought by the jury.”
In conclusion the learned trial judge instructed the jury on the principles propounded in the oft-quotedN case of R. v. Abisa Grunshie (1956) 1 W.A.L.R. 36, W.A.C.A. as follows:
[p.190] of [1972] GLR 179
“(1) If they accept the explanation of the accused that he did not know what he was doing because of his mental disease then they must return the special verdict of guilty but insane. (2) If short of accepting that defence it nevertheless creates a doubt in their minds, they must still return the special verdict of guilty but insane. (3) Quite apart from the explanation of the accused they must on a consideration of the whole evidence, be satisfied of the guilt of the accused before they may convict. (4) A verdict of guilty of murder must be brought only if they are satisfied beyond any reasonable doubt that the accused in full control of his mental powers fired the gun at the deceased that night when there was no just cause for the shooting.”
The jury convicted the appellant of murder as charged.
In this appeal the only criticism which has been made against the learned trial judge’s summing-up is that he did not sufficiently deal with the defence of insanity. For example, he failed to deal with certain aspects of the appellant’s statement which, it is said, shows that the appellant must have been mentally ill. Further, it is said that the learned trial judge failed to emphasize to the jury the recurrent nature of schizophrenia, and how the disease would have affected the appellant.
In the first place, I am unable, with all due respect to the views of the majority, to discover from the
appellant’s statement, exhibit C, any evidence of insanity. The fact that the appellant said some people thought, before the date of the offence, that he was mad does not mean that he was mad at the material time. The appellant did not call any witness to prove this, and his wife who gave evidence for the prosecution was not asked any question about his alleged abnormal behaviour. In my opinion, no judge in this land, who has had experience of murder trials, will find anything strange or abnormal in the conduct of a person, who, after committing murder, walks by himself to the nearest police station and surrenders himself and the weapon with which he killed his victim. This is not conduct from which insanity can reasonably be inferred.
In the second place, the evidence of the medical witness was short and clear, and here it is not suggested that the learned trial judge said anything which he should not have said. I would at this juncture refer to the case of State v. Nyavie and Ofori [1962] 1 G.L.R. 174, S.C. in which the principle laid down in R. v. Attfield (1961) 45 Cr.App.R. 309, C.C.A. was adopted. Delivering the judgment of the court in the Attfield case, Ashworth J. said at pp. 311-312:
“No doubt, it is right to say that probably in nine cases out of ten that come before the courts, the trial judge, whether he be a judge or recorder or Chairman of Quarter Sessions, in summing-up goes through the evidence. It would be quite wrong to suggest that it is the trial judge’s duty to read out the whole of the evidence, and that is [p.191] of [1972] GLR 179 not suggested. Indeed, many would take the view that a mere recitation of evidence which the jury themselves have heard does not assist them at all. In most cases what the trial judge endeavours to do is by reference to the evidence to direct the jury’s attention to what may be called the salient features for and against the accused man. 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’.”
Further in his judgment Ashworth J. said at p. 313:
“Clearly, in a complicated and lengthy case it is incumbent on the court to deal with the evidence.
Conversely, in a case which has not occupied a great deal of time and in which the issue, guilt or innocence, can be simply and clearly stated, this court is not prepared to hold that it is a fatal defect to the summing-up that the evidence has not been discussed.”
It ought necessarily to be conceded that the learned trial judge in this case failed to point out to the jury specific passages in the appellant’s statement (exhibit C) and in the medical evidence so as to assist them in their consideration of the material or relevant issues in the case. It is the function of the trial judge in most cases, especially in complicated cases to direct the jury’s attention to the salient features of the evidence for or against the accused. The question that arises, therefore, in this case is: Ought the appellant’s appeal be allowed only on the ground that the learned trial judge failed to assist the jury to evaluate the evidence? This question raises an important principle in the criminal law, and it is for this reason that I have ventured, albeit with the greatest reluctance, to record my dissent from the majority decision in this case.
The provisions of section 406 of the Criminal Procedure Code, 1960, so far relevant in this case, are
stated in these terms:
“(1) Subject to the provisions hereinafter contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account—. . [p.192] of [1972] GLR 179 (c) of any misdirection in any charge to a jury; unless such . . . misdirection has in fact occasioned a substantial miscarriage of justice.” Paragraph 13 (1) of the Courts Decree, 1966 (N.L.C.D. 84), reads: “The Court of Appeal on any appeal under section 335 or section 337 of the Criminal Procedure Code, 1960 (Act 30), shall allow the appeal if it considers that the verdict ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of a wrong decision of any question of law or fact or mixed law and fact (as the case may be) or that on any ground there was miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court shall, notwithstanding anything to the contrary in the foregoing provisions, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred…”
The point that this court has to consider is whether there had been “a miscarriage of justice” by reason of the trial judge’s failure to direct the jury in the manner suggested: and if so, whether it could nevertheless be said “that no substantial miscarriage of justice had actually occurred.” In R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, Channell J. when considering section 4 (1) of the English Criminal Appeal Act, 1907, which is similar to paragraph 13 (1) of N.L.C.D. 84, said at pp. 207-208:
“Taking sect. 4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case the Crown have to shew that, on a right direction, the jury must have come to the same conclusion. A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision on a point of law, but merely comes within the very wide words ‘any other ground,’ so that the appeal should be allowed according as there is or is not a ‘miscarriage of justice.’ There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted…. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso, notwithstanding that the verdict actually [p.193] of [1972] GLR 179 given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision
on a point of law.” With regard to misdirection as to the evidence, it is stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), at p. 339, para. 932 as follows: “Misdirection as to the evidence to be of any avail to an appellant must be of such a nature and the circumstances of the case must be such that it is reasonably probable that the jury would not have returned their verdict had there been no misdirection. The burden of establishing this lies upon the appellant, not upon
the prosecution.” In Stirland v. Director of Public Prosecutions [1944] A.C. 315, the House of Lords applied the proviso to section 4, and there Viscount Simon L.C. laid down at p. 321, that the test is whether “a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.” See also Yirenkyi v. The State [1963] I G.L.R. 66, S.C. But as Lord Alverstone C.J. said In R. v. Dyson [1908] 2 K.B. 454 at p. 457, C.C.A., “It is one thing to say that the jury on a proper direction would probably have so convicted; it is another to say positively that there has been no substantial miscarriage of justice.” And in Commissioner of Police v. Antwi [1961] G.L.R. 408, S.C. where a misdirection was alleged the court said at p. 411: “where the evidence leaves it in doubt as to whether or not the same verdict would have been arrived at, the conviction must be quashed since the Court of Appeal cannot substitute themselves for the jury . . .” I now have to apply this test to the facts of this case. There is clear evidence that on 3 January 1967, the appellant having armed himself with a double-barrelled gun, travelled from Nsawam to Oppongkrom, a distance of over two hundred miles, and shot the deceased who died. The appellant ran into the bush, but
on the next day he gave himself up to the police and surrendered the gun he had used to kill. He made a detailed statement to the police in which he narrated the circumstances leading to the killing. One witness for the prosecution, who had known the appellant some time previous to 3 January 1967, testified that the appellant had been a normal person, and that on 4 January 1967, when he again saw the appellant making his statement at the police station he appeared perfectly normal. Another prosecution witness also confirmed that when the appellant arrived at the police station on the morning of 4 January 1967, his behaviour was that of a normal person. The appellant himself led no evidence to show that he was suffering from any mental disease at the time the crime was committed, or at any time previous to the commission of the offence. But he called a specialist psychiatrist who said that he suffered from schizophrenia and that this was a mental disease which was recurrent. The specialist psychiatrist, however, saw the appellant six months after the event of killing.
The jury had the benefit of the opinion of the medical witness; they also heard all the other facts relating to the appellant and the crime. [p.194] of [1972] GLR 179 The learned trial judge’s directions to the jury on the burden of proof is unexceptionable. And if I may say in the words of Lord Goddard C.J. in R. v. Rivett (supra) at p. 95: “Let it be assumed he suffered from schizophrenia, or whatever doctors may call it; let it be assumed that he killed [Kwadjo Francis] on a sudden impulse; a jury of his country are satisfied that he was responsible, and it is not for this court to say that he was not.”
On a full consideration of the facts, I am satisfied that the verdict in this case is one which a reasonable jury could arrive at, after a proper direction, and that the misdirection alleged has not occasioned any miscarriage of justice to warrant an interference by this court with their verdict. Accordingly, I would, for my part, dismiss the appeal.
DECISION
Verdict of guilty but insane substituted.
S. A. B.
