COURT OF APPEAL, ACCRA
Date: 20 DECEMBER 1974
AMISSAH JA
CASES REFERRED TO
(1) Wintle v. Nye [1959] 1 W.L.R. 284; 103 S.J. 220; [1959] 1 All E.R. 552, H.L.
(2) R. v. Kwadwo Mensah [1959] G.L.R. 309, C.A.
(3) R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A.
NATURE OF PROCEEDINGS
APPEAL from a conviction for murder. The facts are sufficiently set out in the judgment of the court.
COUNSEL
Sam Tay for the appellant.
Asamoah, Senior State Attorney, for the respondent.
JUDGMENT OF AMISSAH JA
He delivered the judgment of the court. The appellant, Abugiri Frafra alias Pini Frafra, was convicted of the murder of one Kwaku Oppong and sentenced to death. The act had no apparent reason. The appellant had been living at Pokukrom in the Brong-Ahafo Region where he was the caretaker of a cocoa farm owned by Kwadwo Nantwiri, an elder brother of the deceased. He attacked the deceased with a cutlass one afternoon while the deceased sat talking to his wife. There was one fatal wound on the neck which almost completely severed the head from the body. Death was instantaneous. That was on 29 June 1971. In a statement made by the appellant to the police the day after the incident he said he had killed the deceased because the deceased threatened to kill him for having had an affair with the deceased’s sister, Yaa Adoma. In evidence at his trial the appellant told a somewhat different story. That story was of insults heaped on him by the deceased and of a cigarette and food which he suspected to have been poisoned offered him by the deceased on another occasion. By some apparent supernatural intervention he had been saved from smoking the cigarette or eating the food. On the day in question he had been in peaceful pursuit of his affairs when
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the deceased once more started insulting him on account of his relations with Yaa Adoma. Upon the appellant asking him to desist, the deceased slapped him twice. The deceased was about to pick up a cutlass which the appellant had thrown away after being first slapped. Fearing an attack with the cutlass if the deceased got it, the appellant rushed on him. The deceased first slashed the back of the appellant’s neck with the cutlass. There was then a scuffle during which the cutlass first fell down, followed by the deceased who fell on it. In taking the cutlass from under the head of the deceased the fatal slash occurred.
This evidence as stated earlier differed from the statement to the police. In that, for example, the cut on the back of the appellant’s own neck had been explained by him as the result of his desire and attempt to commit suicide which failed because he was seized before he had had time to achieve his objective. It will also be recalled that he said then that he had killed the deceased because he heard the deceased threaten to kill him. These inconsistencies were left to the jury.
So also were the defences of accident, self-defence and insanity. Surprisingly the defence of provocation was not referred to by the learned trial judge in his summing-up. On the strength of the appellant’s evidence as to insults and slaps one would have thought that that defence was fairly open in case the other defences mentioned proved unsuccessful. Having regard to the view we have taken of the case, however, we do not think that the omission is of great consequence. Indeed the appellant does not complain of it. What he does complain of in this appeal is the judge’s treatment of the question of insanity.
In connection with that issue, the prosecution called Dr. W. K. Ahlijah, a psychiatrist, as a witness. His evidence was that the appellant was admitted into the mental hospital as a patient on 18 November 1971, that is, some four to five months after the incident. Dr. Ahlijah found that the appellant was suffering from paranoid schizophrenia. This mental illness took the form of persecutory delusions. From the account that the doctor gathered, he formed the opinion that the behaviour of the appellant at the time of the incident was unpredictable, senseless, repulsive and aggressive; behaviour which underlined the paranoid schizophrenia. The appellant was a patient at the mental hospital for nearly a year. On 11 October 1972, Dr. Ahlijah reported to the registrar of the district court that he was then sufficiently improved to be able to plead in court and he asked for arrangements to be made for the appellant’s collection from the hospital.
No evidence was called by any one to contradict the psychiatrist’s. In his summing-up notes on insanity and insane delusions which were quite detailed the learned judge made the following statement:
“How insanity established.
Inform jury that the question whether a person is insane (as under section 27 (b) of Act 29 and therefore not a fit subject for punishment) is one of facts to be determined by the jury; and this is dependent upon the accused’s previous and contemporaneous acts. The word
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‘contemporaneous’ must, however, not be construed to mean simultaneous but as covering acts committed immediately after the act charged. Remind jury that it is not the function of a medical witness to decide the issue of insanity—such an issue is an issue of fact and it is for the jury to decide it after consideration of all the circumstances disclosed to them, including the nature of evidence of an expert in mental diseases — R. v. Kwadwo Mensah [1959] G.L.R. 309 at p. 311, C.A.”
We are in agreement with the learned judge that it is not the function of a medical witness to decide the issue of insanity, that function being reserved for the jury. But the jury has to execute that function after due consideration of the relevant material before them duly analysed for their benefit by the judge. As was said by the British House of Lords of the duty of the judge in a trial by jury in the case of Wintle v. Nye [1959] 1 All E.R. 552 at p. 558, “It was imperative that he should at least point out the considerations . . . for them to bear in mind in deciding whether they should, or should not, believe him [the accused].” While correctly informing the jury that it was not the province of the psychiatrist but theirs to find insanity or otherwise at the time of the commission of the act, the learned judge, failed to point out the significance of the psychiatrist’s evidence which no doubt would have assisted the jury in the determination of this issue. From the notes of the summing-up it seems as if the uncontradicted evidence of this expert was given the same consideration as any of the other lay witnesses’s evidence on the question. And the tone of the summing-up might well have given the impression that on the question of insanity, a question which may call for expertise of the highest order, everyone was as well qualified to form a judgment.
Certain factors bearing on this issue have to be given careful attention. We begin by recalling that the homicide had no apparent reason. That by itself has little significance. But joined with other circumstances it assumes greater importance. In the absence of evidence to the contrary one fact has to be accepted without cavil: within four to five months of the act of homicide the appellant displayed such symptoms of mental ill-health as to cause, his detention in the mental hospital for nearly a year.
Significantly, the psychiatrist’s diagnosis of paranoid schizophrenia taking the form of delusions of persecution, had little assistance from any detailed knowledge of the circumstances of this case of homicide, for as he complained in his report, at the time of the appellant’s admission “no helpful documents bearing on the case were forwarded by the courts.” Nevertheless the psychiatrist’s diagnosis is amply backed by the statement of the appellant made to the police the day after the incident. It was there that he spoke of threats by the deceased to kill him and of a mysterious statement by the wife of his landlord about his demise. Far from pointing out the relationship which these two otherwise disconnected items of evidence might bear on the appellant’s sanity at the material time, the learned judge rather concentrated attention on inconsistencies
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between the appellant’s statement, when at best his sanity was in doubt, and his evidence in court at a time when medical treatment had restored his sanity.
It is interesting that the learned judge had before him the Court of Appeal decision in R. v. Kwadwo Mensah [1959] G.L.R. 309, C.A. which he referred to at the end of the extract of the note of the summing-up quoted above. That was a case of homicide in which the psychiatrist who had given a 45 minute examination of the accused though that he, the accused, was feigning madness in order to escape from responsibility for the crime charged. Under cross-examination the psychiatrist said that having examined the accused and heard his evidence it was possible that he might have been mentally disturbed at the material time. The case does illustrate the point that medical evidence and the judicial decision on the issue of insanity may not coincide. But though providing a note of caution on this, it is proper to observe that a 45 minute examination which results in a finding that madness is being feigned cannot be considered on the same footing as an assessment based on observation lasting a year. A valuable lesson that the case cited teaches the judge, lies in the remarks of the Court of Appeal at pp. 311-312, where they give it as their view that, “it is of extreme importance that the jury should be fully, clearly and carefully directed upon such an issue [i.e. insanity], so that they may be able to bring to its consideration analytical, clear and impartial minds.” In failing to direct the jury on what weight to attach to the uncontradicted evidence of the psychiatrist and of the proper relation it bore to other items of evidence in determining the issue of insanity we think the learned judge was wrong.
We think he also went wrong in his direction on the law of insane delusions. In the notes of the summing-up appear the following passages:
“It is for the jury to decide whether the accused had the false belief that the deceased had planned to kill him. If jury accept that the accused had such belief then the jury have to consider, more importantly, whether the delusion proceeded out of a disordered mind which made him incapable of controlling his conduct.”
And later:
“The question for the jury to ask themselves therefore is whether there is evidence from which they can infer that at the time of the offence the mind of the accused was in such a high degree of disorder that he was incapable of controlling his conduct.”
Our law of insanity does not require that the mental delusion should lead to an incapacity to control conduct. The direction given by the judge is in effect that the defence of insane delusion should succeed only if it led to an uncontrollable impulse. That is not right. In our law it is sufficient if the accused acted while in a state of mind, induced by mental disease, in which a false belief is held that cannot be shaken by facts: see R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A.
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We are of the opinion that the evidence strongly supports a case of insane delusion which the jury would no doubt have returned if they had been properly directed. In the circumstances we allowed the appeal, set aside the verdict of guilty of murder and substituted a verdict of guilty but insane.
DECISION
Appeal allowed.
Special verdict of guilty but insane substituted.
