DIVISION: IN THE SUPREME COURT
DATE: 1ST NOVEMBER, 1963
BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.
CASES REFERRED TO
(1) D.P.P. v. Smith [1961] A.C. 290; [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161, H.L.
(2) R. v. Ward [1956] 1 Q.B. 351; [1956] 2 W.L.R. 423; [1956] 1 All E.R. 565, C.C.A.
(3) R. v. Vamplew (1862) 3 F. & F. 520; 176 E. R. 234.
[p.373] of [1963] 2 GLR 371
(4) R. v. Gyamfi, [1960] G.L.R. 45, C.A.
(5) D.P.P. v. Beard [1920] A.C. 479; 36 T.L.R. 379; 14 Cr.App.R. 159 H.L.
(6) R. v. Lenchitsky [1954] Crim.L.R. 216, C.C.A.
(7) R. v. Amponsah (1938) 4 W.A.C.A. 120
(8) R. v. Foley [1959] Crim.L.R. 286, C.C.A.
(9) 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.
(10) R. v. Barimah (1945) 11 W.A.C.A. 49
(11) R. v. Kotoro (1942) 8 W.A.C.A. 88
(12) Mensah v. R. (1952) 14 W.A.C.A. 174
(13) R. v. Colletti and Oliva [1959] Crim.L.R. 297, C.C.A.
(14) R. v. Henry [1963] Crim.L.R. 61, C.C.A.
(15) R. v. Blackley [1963] Crim.L.R. 443, C.C.A.
(16) R. v. Thatcher [1963] Crim.L.R. 522, C.C.A.
(17) R. v. O’Donnell (1917) 12 Cr.App.R. 219, C.C.A.
(18) R. v. West (1910) 4 Cr.App.R.179, C.C.A.
(19) R. v. Ojojo [1959] G.L.R. 207, C.A.
(20) R. v. Rymell [1954] Crim.L.R. 60, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against a conviction for murder entered by Sowah J., sitting with a jury in the High Court, Cape
Coast. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
Puplampu for the appellant.
D.F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF CRABBE J.S.C.
Crabbe J.S.C. delivered the judgment of the court. The appellant was convicted before Sowah J., sitting
with a jury in the Criminal Sessions at Cape Coast on the 30th November, 1962. The offence charged
against him was that he, on the 29th September, 1962, at Essiam in the Central Region, murdered one
Kofi Buabeng.
It was not disputed that the death of the deceased was caused by the act of the appellant, and the sole
issue at the trial was whether the killing was intentional.
The appellant was the only eye-witness and after he had surrendered himself to the police on the same day
he made the following statement:
“Today at about 1.00 a.m. I heard my dog barking. I woke up and heard someone trying to force open my
window. I got up, took my gun and went out; but I did not see anybody, I went to the street and stood near
Kojo Abiri’s store. I was there when I saw someone coming from the direction of the latrine. I challenged the
party as to whom he was, but the party did not answer. I challenged him again, but the party did not answer
again. I, therefore, shot at the party. The man started screaming. I questioned him and he said it was he Kofi
Buabeng. I asked him where he was going at this hour but he did not answer me. I was there when someone
whom I could
[p.374] of [1963] 2 GLR 371
not identify came and I left for my house. I later went to Local Authority Police Station at Nkwantanum
and reported the matter to the police.”
The appellant’s evidence in examination-in-chief was, as appears to this court, an elaboration of his
earlier statement to the police. He said,
“When I came out of my house I saw something very dark and I shouted ‘Agoo’- Agoo’ or ‘Who are
you-Who are you.’ I thought the object was a thief. It was dark and so I shot my gun to scare the person
away. I did not know whom I was shooting. When the gun fired, I heard somebody screaming. I rushed there
and it was my brother-in-law.”
In a summing-up to the jury which, with respect to the learned trail judge, appears to us to be not only
perfunctory but seriously defective in several respects, the jury were directed on the cardinal issue of
intention in a manner as contained in the learned judge’s notes as follows:
“Explains intention, informing them that the test is objective. The jury will have to consider the explanations
given by the accused along with other facts brought before them. Intention as far as the courts are concerned
is inferred from one’s conduct or action. Explains, if A. takes a gun which is loaded and shoots towards B.
the reasonable man standing will infer that A. intends to shoot at B. and it does not matter what B. says or
thinks if the ordinary reasonable thinking man will infer from A.’s conduct intention to shoot. Thus again in
a football match, if in a scramble for a football one player falls on the ground and while the ball is not there,
or has been moved away, a player from the other side kicks him while he is on the ground, the ordinary
football spectator will infer that he intended to kick the player lying on the ground, in spite of what the
person kicking would say and if injury follows, the law will say he intends to harm the man he kicked.”
This direction on the reasonable man test is obviously based on the much-criticised and, if we may say so
with respect, the unsatisfactory decision in D.P.P. v. Smith1 which approved the earlier ruling in R. v.
Ward.2 The effect of the decision in the Smith’s case (supra) is that once a jury in a murder trial are
satisfied that the accused was unlawfully and voluntarily doing something to someone, it matters not what
he, in fact, contemplated as the probable result of his act.
In our view D.P.P. v. Smith (supra) is not an authority on the law of murder in this country, and by
directing the jury to apply an objective test the learned trial judge seriously misdirected the jury on the
only issue before them. What the learned trial judge in effect told the jury was that once they were
satisfied that a reasonable man in the circumstances of the appellant would appreciate the consequences of
his act they should pay no attention to what the appellant said about the state of his own mind. That of
course is not our law. It would indeed be monstrous that the idiot or the stupid man should hang simply
because he had not the intelligence or the foresight of the reasonable man.
[p.375] of [1963] 2 GLR 371
“. . . we must adopt an external standard in adjudicating upon the weight of the evidence adduced to prove or
disprove mens rea. That, of course, does not mean that the law bases criminal liability upon non-compliance
with an external standard.” See W. S. Holdsworth, A History of English Law (5th ed.), Vol. 3, pp. 374-375. The proper criterion is
what the prisoner himself had in his mind and what he intended.
Before a prisoner can be convicted of murder he must be found to have had a real or wicked intention to
kill or it must be found that the circumstances were such that he was aware that the result of his act would
be death. Chief Baron Pollock in R. v. Vamplew3 said,
“the crimes of murder and of manslaughter were in some instances very difficult of distinction. The
distinction which seemed most reasonable consisted in the consciousness that the act done was one which
would be likely to cause death. No one, however, could commit murder without that consciousness. The jury
must be satisfied, before they could find the prisoner guilty, that she was conscious, and that her act was
deliberate.”
See also R. v. Gyamfi.4
In D.P.P. v. Beard,5 Lord Birkenhead L.C. said that, “a person cannot be convicted of a crime unless the
mens was rea.” And in the later case of R. v. Lenchitsky,6 the accused who was an adult of the mental age
of eight or nine was convicted of murdering a little girl by suffocating her. The English Court of Criminal
Appeal approved the summing-up by Havers J. which contained the following passage7:
“Are you satisfied that at the time when the accused man put the bandage over her nose and the underclothes
over her mouth he was capable then of forming an intent, and that he must have realised when he was doing
those acts that they might cause death or grievous bodily harm?”
The jury were directed to convict of manslaughter if they were not so satisfied.
The relevant provision in our law on intent is contained in section 11(3) of the Criminal Code, 1960.8 It
reads: “If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and
observation, it would appear to him that the act would probably cause or contribute to cause an event, or that
there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have
intended to cause that event, until it is shown that he believed that the act would probably not cause or
contribute to cause the event, or that he did not intend to cause or contribute to it.”
By reason of this subsection the jury were entitled to presume that the appellant intended to cause the
death of Kofi Buabeng if in the absence
[p.376] of [1963] 2 GLR 371
of any explanation they were satisfied on the facts adduced by the prosecution that it would have
appeared to the appellant if he had used reasonable caution and observation that there would be great risk
of the shooting causing or contributing to cause death. But the jury should be told that the presumption of
intention was rebuttable and not absolute and that if they believed the appellant’s evidence relating to his
intention, or thought it was probable, or if his evidence raised a reasonable doubt in their minds about his
intention, he was entitled to be acquitted: see R. v. Amponsah.9 In R. v. Foley10 it was held that,
“it was not enough for the prosecution to rely upon the presumption that a man intended the natural
consequences of his act. Where a specific intent was alleged and was a necessary constituent of the offence,
as here, it was for the prosecution to prove that intent. The proper direction as to proof of that intent was, as
had been laid down in R. v. Steane [1947] K.B. 997, that the jury were entitled to seek aid from the
presumption (that a man intends the natural consequences of his act), yet they must consider the totality of
the evidence and on that decide whether they were satisfied that the alleged intent existed.”
That the presumption of intent is only provisional or evidential is further illustrated by a passage in the
speech of Lord Morris of Borth-y-Gest in the recent case of Bratty v. Attorney-General for Northern Ireland.11 After referring to the “golden rule” of the English criminal law his lordship said,12 “The evidence of the commission of certain acts may suffice to prove that they were intentional. In a charge of murder malice may by implication be proved where death occurs as the result of a voluntary act of theaccused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given an
accused person may, however, either by adducing evidence or by examining the circumstances adduced by
the Crown, show that his actions were either unintentional or provoked. In such a situation the continuing
and constant obligation of the prosecution to satisfy the jury beyond any reasonable doubt is in no way
abated (see Woolmington v. Director of Public Prosecutions [1935] All E.R. Rep. 1; [1935] A.C. 462).”
He continued13:
“If, however, during the trial the suggested explanation of the act was advanced and if such explanation was
so supported that it had sufficient substance to merit consideration by the jury, then the onus which is on the
prosecution would not be discharged unless the jury, having considered the explanation, were sure that guilt
in regard to the particular crime charged was established so that they were left in no reasonable doubt.”
In this appeal the only ground of appeal which was argued by Mr. Puplampu with great force and
reiteration was the additional ground 2
[p.377] of [1963] 2 GLR 371
which he filed on behalf of the appellant. It reads:
“2. MISDIRECTION BY NON-DIRECTION:
(a) The learned trial judge failed adequately or sufficiently to direct the jury on the case for the
defence.
(b) The learned trial judge failed to put to the jury that the conduct of the appellant negatived any
preconceived intent to kill, and his failure to give to the jury the definition of manslaughter
according to our Code constituted a serious misdirection.”
The essence of the defence was that in the early hours of that fateful morning thieves made an attempt to
break into the room of the appellant; that the appellant took his gun and went outside; that he saw
someone standing in the dark and believing him to be one of the thieves the appellant fired the gun in his
direction in order to scare off the thieves.
Nowhere in his summing-up did the learned trial judge refer to the evidence of the appellant’s intention to
scare the thieves, which was the very core of the defence. On the contrary he directed them on the
inadmissible evidence of the police officer who conducted the investigation and the effect of his evidence
was that no thieves visited the village that night. It is now trite learning that it is the duty of a trial judge
to put specifically to the jury the essential aspect of the defence, however weak or stupid that defence may
be: see R. v. Barimah.14 In the opinion of this court, there was sufficient evidence bearing on the
appellant’s state of mind so that the question should have been left to the jury and failure to direct them
correctly and specifically on this point and to leave this question of fact to them amounted to grave
misdirection: see R. v. Kotoro,15 Mensah v. The Queen,16 R. v. Colletti and Oliva17 and R. v. Henry.18
The summing-up on intention is immediately followed by a passage which quite apart from an obvious
misdirection on the explanation of unlawful harm contains this direction:
“In this case therefore there are the constituent elements which amount to murder, but the law says even
though all the ingredients forming offence are there, there are some circumstances in which the offence is
reduced to manslaughter. Counsel for the defence says he relies on section 52 (b) of the Criminal Code, 1960
(Act 29) for his defence.”
We think that by the foregoing passage the learned trial judge must have left the jury with the impression
that the prosecution had satisfactorily proved all the essential ingredients of the offence of murder and the only question they had to consider was whether there were any extenuating circumstances which would
reduce the offence charged to that of manslaughter. The question whether the prosecution had proved the
elements of the offence charged was one of fact for the jury to determine,
[p.378] of [1963] 2 GLR 371
and in our view the learned trial judge was therefore not justified in usurping that function. While a judge
is entitled to express his own views and express them strongly, particularly if he has warned the jury that
they are free to reject his views, if, however, he decides to express a view in such a manner he should, if
there is evidence to the contrary effect, place the evidence before the jury so that they make up their own
minds: see R. v. Blackley19 and R. v. Thatcher, Connelly and Hilton.20 This principle is lucidly stated in
R. v. O’Donnell21 as follows:
“a judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided
that he leaves the issues of fact to the jury to determine. A judge obviously is not justified in directing a jury,
or using in the course of his summing up such language as leads them to think that he is directing them, that
they must find the facts in the way which he indicates. But he may express a view that the facts ought to be
dealt with in a particular way, or ought not to be accepted by the jury at all. He is entitled to tell the jury that
the prisoner’s story is a remarkable one, or that it differs from accounts which he has given of the same
matter on other occasions.”
In R. v. West22 Lawrence J. said, “A judge must not put himself in the position of the jury as regards the
decision of facts. The proviso to s. 4 (1) does not apply where the judge decides facts instead of the jury.”
See also R. v. Ojojo.23
The proviso to section 4 (1) of the Court of Criminal Appeal Act, 190724 is identical in terms with the
proviso to section 15 (1) of our Courts Act, 1960,25 which reads as follows:
“Provided that the Court may, notwithstanding that the Court is of opinion that the point raised in the appeal
might be decided in favour of the applicant, dismiss the appeal if it considers that no substantial miscarriage
of justice has actually occurred.”
In the opinion of this court the failure of the learned trial judge to direct the jury on the evidence of the
appellant’s state of mind taken together with his direction that the elements of the charge of murder had
been proved amounted to a substantial miscarriage of justice, for he clearly prevented the jury from
considering the real issues affecting the guilt or innocence of the appellant and thereby deprived him of a
fair chance of acquittal.
Even though the learned trial judge directed the jury to return a verdict of manslaughter if they thought
there were circumstances which reduced the offence of murder to manslaughter and explained section 52
(b) of the Criminal Code, 1960 to them, yet he did not at any stage of his summing-up direct them as to
the difference between murder and manslaughter. Earlier in his summing-up, however, the learned trial
judge
[p.379] of [1963] 2 GLR 371
had read and explained the definition of murder in section 46 of our Criminal code, 1960, but not
manslaughter. The jury are not trained lawyers and they must be made to understand the verdicts that they
are entitled to return. In our judgment the need to explain to the jury in this case the fundamental
distinction between murder and manslaughter can hardly be over-emphasised. In R. v. Rymell,26 the
Court of Appeal in England (Lord Goddard C.J., Sellers and Barry JJ.) held that although a verdict of
murder could have been found, the law relating to manslaughter had not been sufficiently explained to the
jury and in order to prevent any possible miscarriage of justice the court altered the conviction to one of
manslaughter. See also R. v. Amponsah.27
There is in this case definite evidence which negatived an actual intention to kill, and therefore we are
unable to say that the jury, if the question had been left to them with a proper direction, would necessarily
have returned a verdict of murder; but we think, however, that they must have inevitably found the
accused guilty either of murder or of manslaughter.
For the above reasons and acting under the powers vested in this court by section 16 (2) of the Courts
Act, 1960, we substitute for the verdict found by the jury in the Cape Coast Criminal Sessions a verdict of
manslaughter and, in substitution for the sentence passed at the trial, we sentence the appellant to seven
years imprisonment with hard labour.
DECISION
Verdict of manslaughter substituted.
K. T.
