DIVISION: SUPREME COURT
DATE: 23 NOVEMBER 1965
BEFORE: OLLENNU, AKAINYAH AND SIRIBOE JJ.S.C.
CASES REFERRED TO
(1) R. v. Thomas [1959] 1 W.L.R. 1086; 123 J.P. 533; 103 S.J. 813; [1959] 3 All E.R. 522n; 43 Cr.App.R. 210, C.C.A. (2) R. v. Clynes (1960) 44 Cr.App.R. 158, C.C.A. (3) Dagarti v. The State, Supreme Court, 21 October 1960, unreported. (4) State v. Moshie [1961] G.L.R. (Pt. II) 655, S.C. (5) Sheega v. The State, Supreme Court, 21 October 1960, unreported. (6) State v. Lobi [1961] G.L.R. (Pt. II) 696, S.C. (7) R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A. (8) R. v. Ayaaba (1958) 3 W.A.L.R. 376, C.A. (9) R. v. Moshie [1959] G.L.R. 343, C.A. (10) Bodje v. The State [1964] G.L.R. 122, S.C. (11) Armstrong v. Strain [1952] 1 K.B. 232; [1952] 1 T.L.R. 82; [1952] 1 All E.R. 139, C.A.
NATURE OF PROCEEDINGS
APPEAL against conviction for murder by the High Court, Accra. The facts are set out in the judgment of Ollennu J.S.C.
COUNSEL
Quist for the appellant. J. N. K. Taylor, Senior State Attorney, for the respondent.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. The appellant was convicted of the offence of murder by the High Court, Accra, on the verdict of a jury. He appealed to this court on four main grounds; these are: “(1) That the learned trial judge failed to direct himself and the jury adequately and fairly on the defence of insane delusion. (2) That the learned trial judge misdirected the jury on the question of corroboration. (3) That the learned trial judge failed to put the case for the defence adequately and fairly before the jury. (4) That the judgment cannot be supported having regard to the evidence.” Learned counsel for the appellant argued ground (2) by itself and took grounds (1), (3) and (4) together. There were only two eye-witnesses to the commission of the act, the subject-matter of the charge; these are two little girls, each of tender years, who gave unsworn statements at the trial. Section 10 of the Oaths Act, 1960,1 provides that, “No person shall be convicted [p.663] of [1965] GLR 661 or judgment given upon the uncorroborated evidence of a person who shall have given his evidence without oath or affirmation.” By virtue of that section, there can be no conviction upon the unsworn statements, made by these two witnesses unless there is on the record some admissible independent evidence direct or circumstantial which corroborates the unsworn statements of these two children, i.e. some evidence which tends to show not only that the crime has been committed, but that it was committed by the appellant. The trial judge properly directed the jury on section 10 of the Oaths Act, 1960, and the necessity for corroboration. But he further directed them that the requisite corroboration was provided by the evidence of a witness who said that shortly after he had heard of the incident, he saw the appellant lying and struggling on the ground under a tree at a distance of about 250 feet away from the house where the offence was alleged to have been committed. In support of ground (2), counsel submitted that the matters which the learned judge treated as supplying the corroboration do not provide the corroboration required by law and, therefore, the conviction was bad in law and should be quashed. For this submission, counsel relied upon R. v. Thomas,2 and R. v. Clynes.3 Learned senior state attorney for the respondent conceded the submission that the matter referred to by the learned judge in the summing-up as supplying the corroboration, does not provide corroboration. He submitted, however, that the statement made by the appellant to the police on caution provided the requisite corroboration, therefore, he said, there has been no miscarriage of justice. The law on the point is well settled, and it is that where a judge fails to direct a jury as to what amounts to corroboration, and invites the jury to regard as corroboration matters which could not properly be so regarded, the appeal court will quash the conviction, unless such corroboration in fact exists such that it would be unjust to acquit. It is, therefore, a question in each such case whether or not the case is one in which the court should apply the proviso to section 15 of the Courts Act, 1960,4 as amended by section 1 of the Courts (Amendment) Act, 1965.5 We are of opinion that no substantial miscarriage of justice has occurred in consequence of the misdirections and, therefore, this is a proper case in which the proviso to section 15 of the Courts Act, 1960, aforesaid, should be applied. On grounds (1), (3) and (4), it was submitted for the appellant that the trial judge failed properly to direct the jury on the defence
[p.664] of [1965] GLR 661
of insane delusion which the appellant put up as an alternative defence to that of denial. There is conclusive evidence that the victim, a little girl, met her death at the hands of the appellant. She and two other little school girls, the second prosecution witness and the third prosecution witness, who lived in the same house as the appellant, returned home from school shortly after noon; the appellant was in his father’s room in the house when the children arrived, but there was no other person present. The appellant called the deceased to bring him some water; the deceased then carried the water to the room; soon after she had entered, the deceased came out of the room running and bleeding from her stomach with her intestines protruding. Frightened at this horrible sight, the second prosecution witness started to run too; the appellant chased and overtook her and cut her stomach open too with a penknife and her intestines came out; on seeing this, the third prosecution witness ran away into the streets raising alarm. The appellant was found later that day struggling on the ground under a tree in an unconscious state, an open penknife lay by him; he was taken to hospital and treated. When he revived, he was cautioned by the police; he made a very confused statement in which he said he had killed five children; the statement concluded as follows: “About a year ago my body started becoming cold. I used to see dead bodies in my dreams. I used to see so many things so that sometimes I could not sleep. Sometimes I used to see cows. One day I found that someone has put a dead dove in my room. At the same time I saw Mr. Arhin going around my house. I asked him what that dove was put there for but he told me it was nothing and that I should urinate on it. I refused and threw the dead dove away. The herbalist once told me that one day I would paralyse and the business I was doing would fail. The herbalist used to give some juju to the girls’ father and he used to give same to them to put in my room. Today also he gave some juju to Mariama and Adama and they went and put it in my room. I was in a small room where I used to manufacture soap and saw the two girls standing in front of my door. I saw them putting some black powder there. And there I said ‘Oh! these people are ready to kill me in fact.’ I consider my sickness and I saw that by all means I would die. And I said I should start against them also before they kill me. I looked round but did not see their father. I took a penknife from my pocket and chased the children. And I stabbed all of them and killed them. I killed Karima, Tanko, Mariama, Karimu and Adama. And then I ran to the top of the tree and I was about to fall down.
[p.665] of [1965] GLR 661
They caught me and I did not fall down. That is all. The knife I used fell under the tree which I climbed.” Six days later when he was charged with the murder of the girl, he made another statement, in it he said inter alia: “What you are telling me is very wonderful. I myself I cannot kill a fowl. How can I kill a human being? I said rather they wanted to kill but I did not kill anybody. This Mariama Chamba who is Zakari’s daughter is still alive. She did not die. I did not stab anybody. 1 could see that Fanti man Mr. Arhin with so many people including policemen around me during the night. Some of them holding knives and guns and pointing them at me, but I did not do anything to them. I reported this case to Mr. Arhin about five times but always he told me they were witches but I should not do anything.” And, at his trial, he gave evidence as follows: “I live at Anlo Town, Koforidua. I know one Mariama Chamba. She is my sister. She is still alive. I have not killed Mariama Chamba and I have killed nobody. I say she is still alive. This pair of sandals exhibit B is not mine. This knife exhibit C is not mine. I do not know who owns exhibits D and E — shirt and trousers. I do not remember making any statement to the police.” In the face of these facts, the only real issue in the case is whether the plea of insane delusion was established. Counsel for the appellant contended that the onus of proving the existence of insane delusion was discharged by the appellant, but that the trial judge misdirected the jury hence the jury failed to return the special verdict of guilty but insane. In fairness to the trial judge, it must be said that he did give proper direction to the jury on the issue of insane delusion. Unfortunately, he erred in some significant respects, e.g. (a) when the two caution statements made by the appellant to the police were read to a psychiatry specialist called for the defence, and he was asked what he thought of the mental condition of the person who made those statements, the psychiatrist replied that the person must be suffering from insane delusion, or might be telling lies, and the learned judge in effect directed the jury not to attach much importance to that opinion because, he said, the doctor had not said that the appellant was in the state of delusion at the moment when he committed the act and, because furthermore, no evidence had been given by any of the witnesses that the appellant had suffered from mental illness prior to the fateful day; and (b) he confused the defence of insane delusion with self-defence and, therefore, directed the jury that if the delusion proved were true, to fact, it would not afford a defence for the particular crime. Thus he said:
[p.666] of [1965] GLR 661
“If you are satisfied that the accused was suffering from an insane delusion when he did the act then the law says a special verdict must be brought by the jury. It was suggested by the defence that the accused person saw people chasing him and he had to use the knife because it was likely that the children he saw were elephants and cows. It is my duty to bring to your notice all available evidence in favour of the accused’s defence. But what have we got? Have we evidence that the accused was attacked by anybody at all? It seems that so far as the defence of self-defence is concerned, you have no evidence before you on which you can rely. The delusion or hallucination referred to is that the accused finds himself in a river at times. If a person stands in his house and because of a delusion or hallucination he finds an elephant advancing towards him and he runs and later finds himself in a river, then that person is suffering from a delusion. But here is a case in which you have found no evidence of the accused having been found on a tree or in a river. None of the witnesses told you that the accused person had any previous mental illness.” The senior state attorney agreed with his learned friend that there was sufficient evidence to establish insane delusion, but contended that the learned judge was within his rights in directing the jury as he did, as regards the nature of the delusion because there are conflicting decisions by this court and its predecessors on the point and, in that case, the judge of the High Court has a discretion to prefer one of the conflicting decisions to the other if, in his opinion, the one he elects to follow is the right decision. Counsel referred us to the following two sets of cases: 1. (i) Dagarti v. The State,6 (ii) State v. Moshie,7 (iii) Sheega v. The State,8 and (iv) State v. Lobi.9 2. (i) R. v. Grumah,10 (ii) R. v. Ayaaba,11 (iii) R. v. Moshie,12 and (iv) Bodje v. The State.13 The basis of the decision in the first set of cases is that to warrant the special verdict, the delusion must be of such a nature that if the imagined facts were true they would provide justification in law for
[p.667] of [1965] GLR 661
the action taken as a result of the delusion. Upon that principle, the court, in Dagarti v. The State,14 said: “It has been decided in recent cases by this court that the delusion referred to in the section must be of such a nature that if the imagined facts were true they would provide justification for the action taken as a result of the delusion. Examples can be multiplied. Two however will suffice, e.g. if a person is under a delusion that he is under an immediate necessity to defend his life in the face of a threat to attack it; such would be an insane delusion within the section, but if under a delusion that a person is his brother A kills B, the delusion cannot be within the section because the fact that B is the brother of A, if it were true, could not by any stretch of imagination provide A with an excuse for killing him. We desire to state in this connection that a suggestion that the last mentioned example is within the meaning of the section, contained in an Editor’s note to the case of R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A. does not in our view correctly state the law and must be taken not to be approved by this Court.” In the second set of cases, the court and its predecessor, the Court of Appeal (Ghana), held that the nature of the delusion must be such as to render the person an unfit subject for punishment. Applying that principle in Bodje v. The State,15 the court said: “In the Grumah case (supra) their lordships held that for the purpose of section 52 (2) of the Criminal Code, Cap. 9, (now section 27 (b) of the Criminal Code, 1960), ‘an insane delusion is a state of mind, induced by mental disease, in which a false belief is held that cannot be shaken by facts.’ That decision was followed by the Court of Appeal in the following cases: R. v. Ayaaba ((1958) 3 W.A.L.R. 376, C.A.); R. v. Moshie ([1959] G.L.R.343, C.A.) In the judgment delivered in the Moshie case (supra) their lordships not only cited the Ayaaba case (supra) but they also accepted as correct the ratio decidendi drawn therefrom by the learned editor of that judgment, namely, ‘that [section 52 (2) of the Criminal Code,] is concerned principally with whether or not insanity is of such a nature as to make punishment pointless: it is not concerned with the form the
[p.668] of [1965] GLR 661
delusion takes.’ With this interpretation we are also in agreement .Since section 27 (b) of the Criminal Code, 1960, is concerned principally with the nature of the insanity and not the form which the delusion takes, it is immaterial that the person killed was not the person who the appellant, labouring under the insane delusion, thought was plotting to kill him.” Undoubtedly, these two sets of decisions create a conflict which must be resolved. For its resolution, we must look at the language of the section in the Criminal Code, 1960,16 which provides for the special verdict. It is a sound proposition of law that in the case of inconsistent decisions by the highest court in the land, a lower court may, in its discretion, elect to follow the one or the other of the conflicting decisions or may take quite a different line: see Armstrong v. Strain.17 The question then, as far as this subject of defence is concerned is, has not the law been authoritatively laid down? Now, the section of the Criminal Code, 1960, which deals with delusion as a defence, is section 27. It says: “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 jury or of the Court, an unfit subject for punishment of any kind in respect of such act.” The most important words therein are: “delusion of such a nature as to render him . . . an unfit subject for punishment.” The proper interpretation of the words “of such a nature” appearing in the section is: delusion of such a degree as to make punishment pointless; in other words, a condition of the mind in which the sense of right and wrong is completely non est. In our opinion, the words “of such a nature” have no reference to the type or subject-matter of the delusion; they refer to a delusion which is the product of a mind
[p.669] of [1965] GLR 661
that is in such a state as to be incapable of appreciating the difference between right and wrong. In other words it is the degree or quality of the incapability of the mind which caused the delusion and not the nature of the subject or substance of the particular delusion which decides the issue. The purposes to be served by punishment as set out in books on jurisprudence are: deterrent, preventive, reformative and retributive: see example given in Salmond’s Jurisprudence (11th ed.), pp. 11 5-124. If the state of mind which hatched the delusion is such that imposition of the normal punishment provided for the offence committed will not serve any of these purposes, the punishment will be pointless. To punish a person in that state of mind will ridicule the law. In our view, the second set of cases cited to us by the learned senior state attorney, give the correct interpretation of the section and constitute the authoritative pronouncement of the law on the subject. We are not satisfied that the jury would have returned the simple verdict of guilty of murder in preference to the special verdict of guilty but insane if they had been properly directed on the law. But apart altogether from our uncertainty as to what the jury might have done, it appears to us that this is a proper case in which the special verdict of guilty but insane should have been returned. Therefore, by virtue of the powers in us vested by section 16 (4) of the Courts Act, 1960, we quash the general verdict of guilty of murder and the conviction thereon, and substitute therefor, the special verdict of guilty but insane, quash the sentence of death passed upon the appellant, and order that he should be kept in the mental hospital as a criminal lunatic until the President’s pleasure shall be known.
DECISION
Special verdict substituted.
A. K. F.
