DIVISION: IN THE SUPREME COURT
DATE: 7TH JUNE, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.
CASES REFERRED TO
(1) R. v. Carr-Briant [1943] 1 K.B. 607; (1943] 2 All E.R. 156; 29 Cr.App.R. 76, C.C.A.
(2) R. v. Oliver Smith (1910) 6 Cr.App.R. 19, C.C.A.
(3) R. v. Dixon (1869) 11 Cox C.C. 341
NATURE OF PROCEEDINGS
APPEAL against the conviction of the appellant of murder entered by Akainyah J. sitting with a jury at
the High Court, Accra.
COUNSEL
S. Gyandoh, Jnr. for the appellant.
D.F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF BLAY J.S.C.
Blay J.S.C. delivered the judgment of the court. The appellant, who was charged with the murder of his
wife one Akuia Agbozo, was tried in the High Court, Accra, presided over by Akainyah J. sitting with a
jury. He was convicted of the charge by the unanimous verdict of the jury after what appears to be a
careful summing-up by the learned trial judge.
Against this conviction he has appealed to this court on the ground. “That the learned trial judge was
wrong in that he directed the jury that a vivid recollection by the accused of the incidents at the time of
the killing
[p.16] of [1963] 2 GLR 14
negatived or tended to negative insanity.” To this ground of appeal three more were added and argued
with the leave of the court as follows:
“(a) That the learned trial judge misdirected by non-direction as to the standard of proof in a defence of
insanity, (b) that the verdict was unreasonable having regard to the evidence adduced at the trial, and
(c) that the learned trial judge misdirected himself and the jury on the defence of self-defence.”
The facts of the case which were not seriously contested at the trial may shortly be put as follows: The
appellant and his three wives, including the deceased, lived at a village called Akronya. It appears that he
and his three wives slept in one room and had done so for many years without untoward incidents.
However, a week before Christmas in 1961, the appellant started to behave in a queer manner towards his
wives, generally. The evidence of one of his wives Nyonuvi Nutsugah at the trial is as follows:
“One week before Christmas last year the accused started to do something which he had not done before. At
night when we went to sleep, the accused tied ropes round the waist of each one of us [the three wives] and tied the ends of the ropes round his own waist. The accused did not give us reason for tying us up, but I asked him why he was now tying us up tonight. Accused’s reply was that, if he did not do that, we would run away. One of us slept with the accused on a bed and the other two slept on mats on the floor of the room. About ten months ago at about 4 o’clock in the early morning, the accused took all three wives of his into his
farm near the village. In the farm, the accused asked us to mention the names of the men who were having
sexual intercourse with us. Each of us denied that other men were having sexual intercourse with her. After
our denials, the accused raised up a cutlass which he carried from the village to the farm and attempted to cut
Ayeawusode Avu on the head. I quickly pushed accused’s hand away and the cutlass fell to the ground. The
accused then rushed on Ayeawusode Avu and started giving her blows. The deceased and I did nothing.
After the beating of Ayeawusode Avu we came back to the village. It was still dark. The accused took
another cutlass and requested us [the three wives] to accompany him to the latrine just outside our village.
We agreed to accompany the accused. As we were walking along the path to the latrine, the accused
branched into the bush and lay down. The accused carried a small lamp. The accused closed his eyes. We sat
round him.”
The latter part of the evidence given by the witness describes how the deceased Akuia Agbozo came by
her death. Under cross-examination the witness denied seeing any blood on the appellant at the time she
saw him slashing the deceased. She also denied hearing any quarrel between the appellant and the
deceased prior to seeing him slashing the deceased with a cutlass.
When the accused was arrested by the police and charged with the murder of the deceased he made the
following voluntary statement: “I killed her, but she cut me first on the head with a cutlass. I took the
cutlass from her and slashed her. I cut her arm off. She was responsible for her own death.”
[p.17] of [1963] 2 GLR 14
The prosecution perhaps in anticipation of a possible plea of insanity on behalf of the appellant and also
on account of his queer behaviour prior to the commission of the offence, called a psychiatrist attached to
the Mental Hospital, Accra, who had examined the appellant on the 16th October, 1962. This witness
gave it as his opinion that the appellant was mentally sound.
In view of the appellant’s statement to the police as quoted above, the prosecution called Dr. Ludving, a
medical officer attached to the Korle-Bu Hospital who had examined the appellant on the 10th January,
1962. This witness deposed that he found two wounds on the scalp of the appellant. That the wounds
were fresh and in his opinion were six or eight hours old.
The prosecution further called the second living wife of the appellant who deposed to the queer behaviour
of the appellant during the weeks prior to the commission of the crime and substantially corroborated the
evidence given by the other wife.
As already stated the facts of the case against the appellant were not seriously contested except as to the
alleged wounding of the appellant on the head by the deceased.
When the appellant came to give evidence on oath, he repeated the story he had told the police in his
cautioned statement. He added that he had quarrelled with the deceased on the day of the incident because
she had not cooked any meal for him. That in the course of the quarrel he slapped the deceased for being
insolent and thereupon she took a cutlass and cut him on the head. That he snatched the cutlass from the
hand of the deceased and cut her with it. He said he cut her twice or more. He said he had for some time
suspected all his three wives of infidelity but when he questioned them about it they all denied having had
affairs with other men. That he thereupon consulted his fetish Kune which confirmed that the wives had
been unfaithful. He also confirmed that he used to tie the waistbeads of his wives at night because of the
strong suspicion he had about their infidelity confirmed by his fetish Kune. He said he did not remember
making a statement to the police, but admitted his early morning excursion to the village latrine with his wives and his behaviour when they got there. He finally said, “I realize now that it is not right to cut my wife with a cutlass. At the time I cut her, I did not know what I was doing.” Under cross-examination, the only material evidence elicited from the appellant was that he did not
believe his wives’ denial of infidelity. That the incident which led to the death of Akuia occurred two
weeks after his fetish had confirmed his suspicions about his wives’ infidelity. He repeated his story that
it was the deceased who first cut him on the head with the cutlass. He said, “I remember quite well that
she struck me with the cutlass (exhibit A). It is true that I was jealous of the deceased but I would not
have used the cutlass on her if she had not first struck me with it.”
[p.18] of [1963] 2 GLR 14
The appellant called no witness and closed his case after his own evidence as epitomized above. After
addresses by counsel the learned trial judge summed up to the jury and the unanimous verdict of murder
was returned.
The appellant’s first ground of appeal is that the learned trial judge was wrong in that he directed the jury
that a vivid recollection by the accused of the incidents at the time of killing negatived or tender to
negative insanity. An examination or perusal of the learned judge’s notes of the summing-up does not
bear out the statement attributed to him. The notes of the summing-up on the question of insanity is as
follows:
“The law presumes all persons to be sane. Anyone saying that he is not sane has got to prove it. I will now
read the provisions of section 27 of the Criminal Code, 1960 (Act 29) to you again. If you are satisfied that
accused was suffering from any mental derangement or disease affecting the mind from knowing the nature
or consequences of the act then you should find him guilty of murder but insane. You have to consider the
whole of the evidence in the case and if you are satisfied that the accused was not suffering from any disease
affecting the mind then you should find him guilty of murder.”
We see nothing wrong with the learned judge’s summing-up as quoted above. But even if the learned
judge had directed as is attributed to him, we do not find any misdirection therein having regard to the
evidence on record as a whole. Section 27 of the Criminal Code, 19601 provides the circumstances under
which a person accused of a crime can rely on a plea of insanity. In our view a person capable of giving
“a vivid recollection of incidents at the time of killing” can hardly claim that he was insane at the time,
without very strong evidence of other acts tending to show that his mind was unbalanced when he
committed the crime or did the act. We find no such evidence in this case.
The second ground of appeal argued before us was that the learned trial judge misdirected by
non-direction as to the standard of proof in a defence of insanity.
We concede that the standard of proof required in a criminal case where the burden of proof is thrown on
the defence or the accused either by statute or common law, is less than that required at the hands of the
prosecution in proving the case beyond reasonable doubt and analogous to that laid on a plaintiff or
defendant in a civil action. Also that in an appropriate case the jury should be so directed by the trial
judge: see R. v. Carr-Briant.2 A defence however must be raised and proved for the rule to apply. Insanity
being a matter of defence the onus of establishing it lies on the prisoner: see R. v. Oliver Smith.3 In the
present case the substantial plea raised by the appellant at the trial was one of self-defence. Nowhere in
[p.19] of [1963] 2 GLR 14
his evidence did he say that he did not know the nature of the act he committed, and no evidence was led
to establish the fact that he must have been mentally deranged at the time he committed the offence. Mere
absence of a motive for a crime is not a sufficient ground upon which to infer mania: see R. v. Dixon.4
The prosecution on the other hand as already stated called the psychiatrist who said that in his opinion the
appellant was mentally sound.
To infer insanity therefore the jury would have had the queer behaviour of the appellant only to consider.
We are satisfied that the learned trial judge’s directions on the point were adequate. The case for the
prosecution was that the appellant committed the crime out of jealousy inflamed by the alleged
promptings of his fetish Kune.
The appellant’s last ground of appeal argued before us is that the learned trial judge misdirected himself
and the jury on the defence of self-defence.
The appellant’s case is that he first struck the deceased on the cheek, whereupon the deceased took a
cutlass and struck him in turn on the head thereby inflicting a wound on him. That the deceased struck the
appellant at all was denied by the prosecution. But even accepting the appellant’s version of the story our
view is that he cannot in law avail himself of the plea of self-defence, since he was on his own showing
the aggressor. The law relating to self-defence is covered by the provisions of sections 53 and 54 of the
Criminal Code, 1960.5 In our opinion the learned trial judge correctly directed himself and the jury on the
law. The medical evidence in respect of the wounds found on the head of the accused was that one was
about two inches in length and the other about one inch long, and that they were skin deep. That being the
case the appellant cannot avail himself of the plea of self-defence having regard to the provisions of
sections 53 and 54 of the Criminal Code, 1960.6
In the result we dismiss the appeal.
DECISION
Appeal dismissed.
K.T.
