DIVISION: IN THE SUPREME COURT
DATE: 21ST JUNE, 1963
BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.
CASES REFERRED TO
(1) R. v. Robertson (1913) 9 Cr.App.R. 189, C.C.A.
(2) R. v. Nwokocha (1949) 12 W.A.C.A. 453
(3) R. v. Rufai Alli (1949) 12 W.A.C.A. 432
(4) R. v. Sims [1946] K.B. 531; [1946] 1 All E.R. 697, C.C.A.
(5) R. v. Hopkins-Husson (1949) 34 Cr.App.R. 47, C.C.A.
(6) R. v. Clynes (1960) 44 Cr.App.R. 158, C.C.A.
(7) R. v. Zielinski (1950) 34 Cr.App.R.193; [1950] 2 All E.R. 1114n; [1950] W.N. 494; 66 T.L.R. (Pt.
2) 956
(8) R. v. Jones (No. 1) [1961] Crim. L.R. 778, C.C.A.
(9) R. v. Anslow [1962] Crim. L.R. 101, C.C.A.
(10) R. v. Busanga [1959] G.L.R. 303, C.A.
(11) Kwaku Mensah v. R. [1946] A.C. 83; (1945) 11 W.A.C.A. 2, P.C.
(12) R. v. Porritt [1961] 1 W.L.R. 1372; 45 Cr.App.R. 348; 125 J.P. 605; [1961] 3 All E.R. 463.C.C.A.
(13) State v. Kwame Tsiba [1962] 2 G.L.R. 109, S.C.
(14) R. v. Bateman (1925) 19 Cr.App.R. 8, C.C.A.
(15) Andrews v. D.P.P. [1937] A.C. 576; [1937] 2 All E.R. 552, H.L.
(16) Akerele v. R. [1943] A.C. 255, P.C.
(17) R. v. Roberts (1942) 58 T.L.R. 138; [1942] 1 All E.R. 187; 28 Cr.App.R.02, C.C.A.
(18) R. v. Larkin [1943] K.B. 174; [1943] 1 All E.R. 217, C.C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Apaloo J. sitting with a jury in the High Court, Kumasi convicting the
appellant of murder.
COUNSEL
S. Gyandoh for the appellant.
R. J. Hayfron-Benjamin, Principal 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 at the Kumasi Criminal
Session on the 16th November, 1962, of murder and was sentenced by Apaloo J. to death.
The facts are simple. On the 25th June, 1962, the deceased who lived with his daughter alone in a cottage
built in their farm slept in front of his room on this fateful day, whilst his daughter slept in the room.
When his daughter woke up early the next morning she found blood on her father’s arms and he was
dead.
In the early hours of that same morning at about 4 a.m. the appellant went to the house of one Yaw Krah
and requested Yaw Krah to keep for him a gun, a live cartridge, and a wireless set. The appellant told
Yaw Krah that he was going to Nderebehi, another village, to visit his uncle, one Yaw Anane.
The appellant had helped his uncle to make a farm which had a common boundary with that of the
deceased. At Nderebehi the appellant told his uncle that he had come to get more money to buy food for
the labourers in the uncle’s farm. His uncle asked him to sleep until the next
[p.68] of [1963] 2 GLR 65
day, but by day-break the appellant had disappeared. He did not tell anyone of the incident at the
deceased’s cottage. When he was later arrested in Accra on the 13th July, 1962, and after he had been
cautioned he made a statement in which he said:
“I could remember on one Tuesday about 1.30 a.m., the 26th June, 1962, I took my stepfather’s shot gun and
went to his farm as some animals had taken opportunity of chewing the crops. I wore a hunting light. I took
together with me three live cartridges which had remained out from the nineteen cartridges which were left. I
am not good at shooting. I am now learning. When I was going to the farm, I saw an object and thinking that
it was an animal I shot at it. I did not know that I had arrived at the village of the said Yaw Frempong. At
once I heard a voice saying. You have killed me!’ I became much afraid and rushed to the spot, but by the
time I arrived there I saw Yaw Frempong lying down dead. I shot the gun from a distance of about 30 yards.
I therefore ran and gave the gun to one Yaw Krah also at Asuoenwin where I stay and bolted away. I did not
know where I placed the empty cartridge shell. However I entered my room before leaving the village. I
never entered his [the deceased’s] room. On my way coming to my village from the scene I fell down more
than ten times before reaching my village. I had no intent of killing Yaw Frempong. I shot him by an
accident. But if I had gone there with bad intent I would have killed the daughter whom I met there also.
After four days that I had committed this offence, I wanted to go to Obuasi Police Station to report the
matter, but some people told me that I would be beaten to death if I went; and so I ran away from Kumasi district to Accra until today that I was arrested. The bush where the incident happened is a very thick bush.”
Before dealing with the merit of this appeal we would like to advert to two irregularities in procedure that
took place at the hearing. The primary duty of the prosecution in a murder trial is to establish not only
that death had taken place but that it was the result of an unlawful harm caused by the accused. The
normal method of proof of death is by medical evidence and the evidence of a witness who knew the
deceased in his lifetime. In this case, cause of death was proved merely by tendering in evidence a
medical report headed Report of Post Mortem Examination on Yaw Frempong and addressed to “The
Coroner, Dunkwa. The Assistant Superintendent of Police, Obuasi.” We are unable to find in the Criminal
Procedure Code, 1960,1 any provision which permits the substitution of a post mortem report for an oral
testimony of a medical witness in a trial on indictment. The circumstances in which the oral evidence of a
medical practitioner is dispensed with are indicated in section 121 (2) of the Criminal Procedure Code,
19602 which reads as follows:
“Any document purporting to be an original report under the hand of a qualified medical practitioner relating
to the nature or extent of the injuries of any person certified to have been examined by the practitioner, may,
if it is directed to the Court or is produced by any police officer to whom it is addressed or by someone
acting on his behalf, be admitted as evidence of the facts therein stated in any trial before a District Court.”
[p.69] of [1963] 2 GLR 65
It is clear that this section applies only in summary trials before the district court.
But we think that lack of medical evidence as to the cause of death is not necessarily fatal, provided that
the possibility that death may have been caused by other causes is excluded; and provided also that the
cumulative effect of the evidence on record leaves no room for doubt that the deceased upon whom the
prisoner inflicted the injuries by unlawful harm died therefrom shortly after the injuries were inflicted: see
R. v. Robertson.3 Thus in R. v. Nwokocha4 it was said:
“As regards the proof of the cause of death we agree that medical evidence, though desirable, is not essential.
But to make the accused criminally liable in cases of this kind, there must be clear evidence that the death of
the deceased was the direct result of the negligence of the accused to the exclusion of all other reasonably
possible causes.”
In this case it is beyond dispute that the deceased died shortly after he had been shot by the appellant. The
appellant himself gave an account of the circumstances of death in his cautioned statement as follows:
“At once I heard a voice saying ‘You have killed me!’ I became afraid and rushed to the spot, but by the time
I arrived there I saw Yaw Frempong lying down dead.”
The incident described by the appellant took place immediately after he had fired towards the direction
where the deceased was lying. It follows therefore that there was ample evidence from which the jury
could infer that the deceased died as a result of the injuries caused by the appellant.
The other matter to which we wish to refer is the procedure adopted by the learned trial judge when the
appellant entered the witness-box to give evidence on oath. After the appellant had answered a few formal
questions put to him by his counsel the appellant said as follows:
“When the police contacted me in Accra, I gave them a statement. I was then brought to Obuasi. My
investigation caution statement was read back to me at Obuasi. When I was formally charged the statement
which I made in Accra was again read over to me. I rely on that statement for my defence.”
The foregoing was all that the appellant said under examination-in-chief, and this was followed
immediately by his cross-examination by counsel for the prosecution.
This practice of permitting an accused person when giving evidence under examination-in-chief merely to say “I rely on my previous statement to the police” has very often been deprecated by the courts in this
country, and we fully endorse these observations by the West African Court of Appeal in R. v. Rufal
Alli5:
“Although we are not unaware that this procedure is at times followed, for the purpose, we presume, of
saving time, we do not think that it can
[p.70] of [1963] 2 GLR 65
be too strongly deprecated. It not only deprives the trial Judge of hearing the witness tell his story, either by
way of narration or in answer to questions put by counsel, and of observing his demeanour and the manner in
which he gives his evidence, but it also puts the witness at a considerable disadvantage in that the only time
at which the Court has the opportunity of observing him is that at which he is under-cross-examination. It is,
in our view, impossible for the trial Judge to form a just opinion of the merits of a witness in circumstances
in which the examination-in-chief amounts to no more than the reading of a statement . . .”
We will now deal with the merits of this appeal. The appellant when charged with the murder of the
deceased pleaded not guilty, and as Lord Goddard pointed out in R. v. Sims6: “whenever there is a plea of
not guilty, everything is in issue and the prosecution have to prove the whole of their case, including the
identity of the accused, the nature of the act and the existence of any necessary knowledge or intent.”
In this case the identity of the appellant and the nature of his act were never in dispute at the trial. The
only issue was whether the killing amounted to an intentional or deliberate homicide.
In his summing-up the learned trial judge directed the jury on the basis that the appellant was either guilty
of murder or nothing. This summing-up has been criticized by counsel for the appellant on grounds set
out in the notice of additional grounds of appeal as follows:
“(a) Because the evidence adduced by the prosecution was equally consistent with accidental killing the
learned judge erred in leaving to the jury the issue of murder.
(b) That the learned judge erred in failing to direct the jury on the legal consequences of harm which is
negligently caused; he thereby prevented the jury from considering the question whether the harm
could have been caused by negligence if it was neither intentional nor accidental.
(c) That the learned judge was wrong in putting to the jury the possibility of robbery as a motive as there
was no evidence to support this although it was highly prejudicial to the accused.”
The original ground alleging that the verdict is unreasonable and cannot be supported having regard to the
evidence was not seriously urged. We shall therefore deal mainly with the substantial points raised by
these additional grounds of appeal.
In arguing ground (a) of the additional grounds of appeal counsel submitted that since the learned trial
judge was in grave doubt as to whether death was caused accidentally or intentionally, this meant that the
prosecution had failed to establish one of the essential ingredients of the offence. In our opinion any
views or feelings expressed by the learned trial judge would not affect the issues in this case since those
issues could be determined by the jury alone and not by the trial judge: see R. v. Hopkins-Husson.7
[p.71] of [1963] 2 GLR 65
We would for convenience deal next with ground (c) of the additional grounds. It was part of the case for
the prosecution that the motive of the person who killed the deceased was to get the opportunity to steal
money from his room. The importance of motive in this case is that its presence helps to determine the
existence of an intention to kill. It was an inducement for bringing about the consequence of death.
It would appear that the deceased was a wealthy man and kept lots of money in his room. He was a
record-seller and he kept the proceeds of his sale in a bucket in his room. On the night preceding the death
of the deceased his daughter had seen a bucket full of currency notes in the room but this had disappeared
the next morning when the deceased was found dead in front of his room.
The daughter of the deceased was a young girl of eight years of age, and she gave an unsworn testimony.
She was the only witness who gave evidence of the alleged theft that took place in the room of the
deceased. It was on her evidence alone that the prosecution sought to prove the motive of the appellant in
firing at the deceased, and thereby establish the criminality of the appellant. It was therefore the duty of
the learned trial judge to give a very careful direction on her evidence in his summing-up. It was from her
evidence that the prosecution invited the jury to infer that whoever killed the deceased did it intentionally.
The following passages from the summing-up show the directions that the learned trial judge gave on the
unsworn evidence of the deceased’s daughter:
“(a) It was also suggested that a person who killed the deceased had an eye on his money and that the
accused must have done so intentionally and robbed the deceased of his money thereafter. The first
witness for the prosecution said her father had a bucketful of money and that this disappeared the next
day. Remind jury the first witness for the prosecution was a girl of tender age who was unsworn and
her evidence requires corroboration.
(b) Do you feel satisfied in all the circumstances and certainly beyond reasonable doubt that the accused
shot at the deceased intentionally? If you entertain reasonable doubt, you must find the accused not
guilty, although you think that he entered the room and stole the money. If the killing was in fact
accidental, the fact that accused stole money after all does not affect the position.
(c) With regard to the inference of theft, the suggestion that the deceased had a large amount of money
depends upon the unsworn testimony of Adjoa Serwah alone. No money of value was found with the
accused. No evidence has been given of his spending lavishly of late. He said he went to his home
town purposely to take his own money – £G10 to go and spend in Accra. You may think it unlikely
that if he stole a large amount of money, he would need £G10 to spend in Accra. That is of course if
you believe he went home for that.”
In these passages it would appear that the learned trial judge appreciated the danger of convicting on the
uncorroborated evidence of the deceased’s
[p.72] of [1963] 2 GLR 65
daughter, but nowhere in his summing-up did he explain to the jury what was meant in law by
corroboration. In our view this was a serious misdirection on a vital portion of the evidence: see R. v.
Clynes.8
The evidence of this young girl that there was money in the room of the deceased which alone provided
the motive for the killing was never corroborated The law is that where there is evidence capable of
amounting to corroboration, it is not necessary, for the judge to point out to the jury particular pieces of
evidence showing corroboration: see R. v. Zielinski,9 and R, v. Jones (No.1).10 But where, as in this
case, corroboration was called for, it was not enough for the trial judge merely to tell the jury that the
evidence of the deceased’s daughter required corroboration. He should have gone further, in the particular
circumstances of this case, and told them that there was no corroboration in the evidence before them: see
R. v. Anslow.11 By so misdirecting himself the learned trial judge would have made the jury to suppose
that there was material upon which they could rely as corroboration. Surely, a misdirection of this nature
might easily have led the jury to convict, because the only test as to whether the appellant’s conduct was
criminal was the uncorroborated evidence of motive given by the deceased’s daughter.
In the opinion of this court the evidence of the deceased’s daughter should have been excluded since it
was not corroborated. Section 10 of the Oaths Act, 1960,12 provides as follows:
“No person shall be convicted or judgment given upon the uncorroborated evidence of a person who shall
have given his evidence without oath or affirmation.”
See R. v. Busanga.13
With respect to the learned trial judge we think that he erred in putting to the jury the possibility of
robbery as a motive from which the intention to kill might be inferred. In our view this aspect of the case
should have been withdrawn from the jury, and once this was excluded evidence of an intentional killing,
if any, would be very tenuous.
We again find it convenient to deal with grounds (a) and (b) of the additional grounds of appeal together.
Counsel for the appellant urged that the evidence disclosed facts which, if accepted by the jury, would
amount to manslaughter. He submitted therefore that it was the duty of the trial judge to direct the jury
not only on the law as to death negligently caused but as to harm caused negligently, even though that
defence was
[p.73] of [1963] 2 GLR 65
not raised by defence counsel. He placed great reliance on Kwaku Mensah v. R.14 In delivering the
judgment of the English Court of Criminal Appeal in R. v. Porritt15 Asworth J. said,
“As has already been said, the issue of manslaughter was not raised at the trial, but there is ample authority
for the view that notwithstanding the fact that a particular issue is not raised by the defence, it is incumbent
upon the judge trying the case, if the evidence justifies it, to leave such issue to the jury. The leading case, so
far as chronology is concerned, is the case in this court of Hopper (1915) 11 Cr.App.R. 136; [1915] 2 K.B.
439, but the same principle has been emphasised in a number of other cases and, for convenience, one can
read what I think is the last of them, Bullard v. R. (1957) 42 Cr.App.R. 1; [1957] A.C. 635.”
The appellant in his defence did not depart to any appreciable degree from the statement which he had
made to the police on the date of his arrest. He was the only person who could give evidence of the
circumstances leading to the death of the deceased, and as such it was the duty of the learned trial judge to
instruct the jury in such a way that they could consider the evidence with analytical minds.
In his summing-up of the evidence for the defence the learned trial judge began with these words:
“His defence is contained in the statement which he made to the police as soon as the police apprehended
him. He has confirmed it on oath. If you believe him, it is a complete answer to the charge.”
He then read to the jury the whole of the appellant’s cautioned statement.
We think that in a case of this nature it was not enough for the learned trial judge merely to read to the
jury the accused’s statement which they had already heard. He should have gone further to point out for
the consideration of the jury the defences raised by the statement. Nowhere in the summing-up did the
learned judge explain the defence to the jury.
But in the penultimate paragraph of the summing-up the learned judge said:
“His explanation for not informing anyone of the accident is not entirely satisfactory, but if you think he was
foolish but that in all probability the gun went off accidentally, you ought to acquit him.”
Finally the learned judge ended his summing-up with this passage:
“I have myself felt great difficulty about the issue in this case whether firing was intentional or accidental but
you are to decide it not me . . .”
With great respect to the learned trial judge we think that he not only failed to put the defence adequately
to the jury but must also have confused them by his failure to explain the words “accidentally” and
“accidental” which were used so often in the summing-up.
[p.74] of [1963] 2 GLR 65
It seems to this court that the learned trial judge had throughout his summing-up used the word “accident”
in the sense that death was due to an involuntary act of the accused or to some external cause over which
he had no control. In this sense the appellant would not be guilty of any criminal offence because there
was no voluntary act or omission on his part.
But with all due deference to the learned trial judge “accident” in this sense can hardly be applied to the
facts of this case. The defence was that the firing was the voluntary act of the appellant but that the fatal
consequence was unintended. When the word “accident” is used in this sense the appellant would not be
criminally responsible for the unintended consequences, provided his conduct was neither unlawful nor
negligent.
Hunting is not an unlawful act per se, and it has been submitted by counsel for the appellant that the fact
that the appellant said he could not call himself a good hunter even though he knew how to fire a gun
would appear to suggest in view of his inexperience in hunting that he might appear to have been
criminally negligent in mistaking the deceased for a game.
If death is caused by the performance of a lawful act, the offence may be one of manslaughter by
negligence and in view of the nature of the defence we think it was necessary for the learned trial judge to
direct the jury on section 12 of the Criminal Code, 1960,16 which provides as follows:
“A person causes an event negligently if, without intending to cause the event, he causes it by voluntary act,
done without such skill and care as are reasonably necessary under the circumstances.”
This of course would lead further to a consideration of section 51 of the Criminal Code which lays down
the degree of negligence necessary to constitute the felony of manslaughter. Section 51 reads:
“Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter.
Provided that if the harm causing the death is caused by negligence he shall not be guilty of manslaughter
unless the negligence amounts to a reckless disregard for human life.”
In State v. Kwame Tsiba17 this court made the following observations:
“The present law of manslaughter by negligence in Ghana appears to be the same as the common law of
England on the subject, and, indeed, the term ‘reckless’ appears to have been borrowed from the various
descriptions, employed by the English courts, of that degree of criminal culpability necessary to found the
felony of manslaughter, and some assistance may therefore be derived from reference to some of the
important dicta on the subject pronounced by the English courts.”
The leading authority on the subject is R. v. Bateman,18 where Lord Hewart C.J. delivering the judgment
of the court pointed out that whereas in the civil law there are no degrees of negligence, in the criminal
law
[p.75] of [1963] 2 GLR 65
culpability is determined by the amount and degree of negligence. The Lord Chief Justice said19:
“In explaining to juries the test which they should apply to determine whether the negligence, in the
particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable,’
‘criminal,’ ‘gross,’ ‘wicked,’ ‘clear,’ ‘complete.’ But, whatever epithet be used and whether an epithet be
used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere matter of compensation between subjects and showed such
disregard for the life and safety of others as to amount to a crime against the State and conduct deserving
punishment.”
In Andrews v. D.P.P., Lord Atkin thought that “recklessness” covers every case of negligence in
manslaughter, except that he considered that “it is probably not all-embracing, for ‘reckless’ suggests an
indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet
shown such a high degree of negligence in the means adopted to avoid the risk as would justify a
conviction.”
In Akerele v. R. the Judicial Committee of the Privy Council approved the dicta of Lord Hewart C.J. in R.
v. Bateman (supra) and said20: “. . . but it must be remembered that the degree of negligence required is
that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into
gross negligence merely by giving it that appellation.”
It would appear in some of the cases that “gross negligence” is synonymous with “recklessness” which is
the foundation of liability for manslaughter by negligence in our criminal law.
In order to affect an accused person with recklessness, the prosecution must show (a) that even though the
accused foresaw the consequence of his conduct as “possible,” “probable” or “likely” he pursued his
conduct with the knowledge of the risks involved though without the desire that that consequence should
ensue; and (b) that a reasonable man having such foresight would not have taken the risks of such
consequence. The question whether a reasonable man would take such risks depends upon the likelihood
of the consequence ensuing and on the utility of the object to be achieved. This is a question for the jury.
The evidence must establish beyond doubt that the accused contemplated an event of which death was a
possible consequence and that in spite of this he deliberately took the risk of causing that event which
resulted in death. It is not enough that he should have foreseen the consequence of this act.
The question which we have to consider is whether the learned trial judge was right in not directing the
jury that it was open to them to return a verdict of manslaughter. The appellant was entitled, as a matter of
law, to have the jury properly directed as to what verdicts were open to them to
[p.76] of [1963] 2 GLR 65
return. Upon an indictment for murder, it is open to the jury to return a verdict of not guilty of murder, but
guilty of manslaughter, if there is evidence to justify such a verdict.
At the trial counsel for the defence demanded acquittal and he made no reference to a possible defence
which was that the killing was unintentional, but the result of criminal negligence. But the facts of the
case made such a defence possible and it was imperative that it must be dealt with in the summing-up and
its effect properly explained to the jury, though the defence did not rely upon it. Thus, in R. v. Roberts,21
the evidence was that the accused shot a girl whom he had asked to come out of a house to speak to him.
His defence was that the rifle went off accidentally. The English Court of Criminal Appeal substituted a
verdict of manslaughter for one of murder because the jury should have been told that, even if they did
not believe the whole evidence of the accused, they might regard the case as one of criminal negligence in
the reckless use of firearms for the purpose of frightening the deceased. In R. v. Larkin22 the English
Court of Criminal Appeal summed up the law on manslaughter by negligence in a passage to which we
refer with approval:
“If a person is engaged in doing a lawful act, and in the course of doing that lawful act behaves so
negligently as to cause the death of some other person, then it is for the jury to say, upon a consideration of
the whole of the facts of the case, whether the negligence proved against the accused person amounts to
manslaughter, and it is the duty of the presiding judge to tell them that it will not amount to manslaughter
unless the negligence is of a very high degree; the expression most commonly used is unless it shows the
accused to have been reckless as to the consequences of the act. That is where the act is lawful. Where the
act which a person is engaged in performing is unlawful, then, if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other
person by that act, then he is guilty of manslaughter.”
In the judgment of this court the jury were misdirected by the learned trial judge because as a matter of
law manslaughter was a verdict open to them, but they were by the nature of the summing-up prevented
from considering that verdict or returning it. It is impossible to say what they would have done if it had
been left open to them.
For the above reasons, the appeal will be allowed and the conviction will be quashed and the appellant
discharged.
DECISION
Appeal allowed.
K. T.
