COURT OF APPEAL, ACCRA
Date: 5 FEBRUARY 1975
LASSEY KINGSLEY-NYINAH AND FRANCOIS JJA
CASES REFERRED TO
(1) R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A.
(2) R. v. Frafra [1959] G.L.R. 442, C.A.
(3) Bodje v. The State [1964] G.L.R. 122, S.C.
(4) Boamah v. The State [1964] G.L.R. 112, S.C.
(5) Kwabena v The State [1963] 2 G.L.R. 545, S.C.
(6) Dim v. R. (1952) 14 W.A.C.A. 154.
(7) Njoku v. The State [1965] G.L.R. 394, S.C.
(8) Abugari Kusasi v. The Republic, Court of Appeal, Accra, 1 March 1974, unreported.
(9) State v. Addae [1961] G.L.R. (Pt. II) 786, S.C.
(10) R. v. Kwadwo Mensah [1959] G.L.R. 309, C.A.
(11) R. v. Dart (1878) 14 Cox C.C. 143.
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(12) R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, C.C.A.
(13) Manu v. The State [1965] G.L.R. 149, S.C.
NATURE OF PROCEEDINGS
APPEAL by the appellant against his conviction for murder on the ground that the trial judge failed to consider his defence of insanity and to direct the jury on same. The facts are fully set out in the judgment of the court.
COUNSEL
Asiamah for the appellant.
S. E. Asamoah, Principal State Attorney, for the respondent.
JUDGMENT OF KINGSLEY-NYINAH J.A.
Kingsley-Nyinah J.A. delivered the judgment of the court. In the afternoon of 27 December 1970, Joseph Emil Awanwore who was then aged about 36 years (hereinafter referred to as the deceased) was found in his room, dead and in a pool of blood. His wife, Alice Emil Sakeboba, who gave evidence as the third prosecution witness, testified that while she sat feeding their baby outside their house, her attention was attracted by the sound of a fall in their room where she had, shortly before, left the deceased and the appellant together. Going in to find out what had caused that sound, she saw her husband, the deceased, lying face downward, and the appellant “holding a pressing iron” in the room.
The mortal remains of the deceased were later removed by the Navrongo Police to the hospital mortuary where the routine post-mortem examination of the corpse drew from Dr. John Benjamin Brew (medical officer in charge, and the prosecution’s first witness) the opinion that, “death was due to a head injury, which could have been caused by hitting the head with a blunt instrument.” That blunt instrument, the medical officer observed, had left the deceased with “multiple wounds on the head, also multiple compound fractures of the skull, behind and above the right ear and at the occipital region . . . There was bleeding from the nose . . .” Dissection of the head revealed massive bleeding into the brain cavity.
Afforded his first opportunity (after his arrest for the murder of the deceased) to make known the facts and circumstances which led to that fatal and unfortunate incident, the appellant, through his extra judicial statement (exhibit B) explained that the deceased, whom he had lodged (as a friend and visitor from Accra) had persistently insulted and angered him (from the moment of his arrival in Navrongo from Accra on 24 December 1970, right up till that fateful day, three days later) with unrelenting taunts and vile aspersions, not only that the (the deceased) had had carnal knowledge of the appellant’s divorced and former wife, but also that he (the appellant) had made the visit to Navrongo merely to show off money he (the appellant) had stolen from Accra. He said he protested against these utterances of the deceased; but that his remonstrations went unheeded, his friend and host persisting in his malicious mockery of him. The appellant put the matter thus:
“Now coming to the house between 3 p.m. and 4 p.m. the deceased started again with the money and the woman affair, so I told the
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deceased that I had seen that he was after me, because my warning had failed. I therefore told the deceased that I knew that he actually wanted me so today we shall all die. The deceased made an attempt to remove the charcoal pressing iron from under the table and I collected it from him and hit him at the back of his head and he fell on the ground. I hit him twice with the charcoal pressing iron whilst the deceased was on the ground . . . The deceased Joseph Emil Awanwore was lying face downward bleeding profusely from the head.”
Pausing here, it is significant to note that the appellant never complained that the deceased had either attacked and struck him first, or at all; or that he had offered to him any such threats or show of intended force, or violence, as not only instantly put the appellant in immediate terror of danger to his health, or to his limb, but which also and, consequently, compelled him to avert that danger by resorting to that force or violence, which had resulted in these injuries from which the deceased eventually died. From the appellant’s own account of the events it is clear beyond question, that all that the deceased is supposed to have offered by way of any threat—if it could even be so-called—was that the deceased made an attempt to remove the charcoal iron from under the table. For self-defence to avail as an excuse or justification for murder, it is pre-eminently necessary to establish that the situation which called for that act of self-preservation was not merely imaginary, but that it was truly in existence, pressing and an actual fact.
Now relating the facts and incidents of the appellant’s statement [exhibit B] to the present state of our criminal law, we are unable to deduce any such provocation, extreme, moderate, or at all, as should have entitled the appellant to have reacted with the violence which ended life for the deceased. We are satisfied from the evidence, therefore, that no rational jury, properly instructed on the laws of self-defence and provocation would, on the facts of this present case, conclude that the appellant had endured far too much vexation; and that his patience having been severely stretched beyond the natural endurance of a man of the appellant’s station of life, he had been presented with sufficient excuse for losing his normal power of self-control.
But assuming even that the appellant had reacted normally by smarting under a genuine sense or indignation when the deceased is alleged to have ridiculed and insulted him, we consider that the passage of three whole days was time enough for the appellant to have cooled down, regained whatever composure he had lost, and then allowed calm sense and temperate reason to take over and control his affronted pride. In any case we are satisfied from the evidence that the appellant had no business “seeing red” over a woman (his former wife) who had long remarried and definitely ceased to be his wife.
Without going into any exhaustive examination of the appellant’s statement to the police, exhibit B, it is enough to say that while we are greatly impressed by its logic and coherence—two significant elements
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which do not point to any mental illness or disturbance on the appellant’s part—we do not see that any other jury properly directed on the peculiar circumstances of this present case (with pertinent regard to the law of self-defence and of provocation) could properly come to the rational and legally sustainable conclusion that the appellant’s act of killing could be either reasonably justified, or else legally excused. It is our view, therefore, that from the stand point of both self-defence and provocation, the appellant cannot, in the peculiar circumstances of this case, be protected and exonerated from criminal responsibility for the consequences of that wanton and unlawful killing of the deceased.
But exhibit B was just one aspect of the defence mounted by the appellant. While relying substantially upon that statement, the appellant also leaned heavily upon medical evidence which (together with his counsel’s address to the jury) was meant seriously to sway both court and jury together to conclude that because of some mental malaise in the appellant, he was not to be held criminally responsible for the act of murder. It was an important feature of the defence (seriously maintained and persisted in, here, on appeal) therefore, that when the appellant struck the deceased three times or more with that heavy box iron, and felled him breeding fatally, he either was, or he might, possibly, have been labouring under some mental disturbance brought on by hallucination, a mental disease. It was contended still further that, by reason of that mental derangement, the appellant was prevented from having any knowledge or appreciation of the natural and probable consequences of that unrestrained assault which killed the deceased. But what the appellant was hallucinated or was even mentally deluded about, his counsel never really disclosed to us: see, e.g. R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A.; R. v. Frafra [1959] G.L.R. 442, C.A. and Bodje v. The State [1964] G.L.R. 122, S.C.
It is a trite and fundamental presumption of law that every person is sane and, therefore, accountable for his actions until the contrary be sufficiently proved. And the burden of demonstrating that he is not sane is always upon the person setting up the defence of insanity. That burden is light, however, and all that the accused is required to do is to show, on the balance of probabilities, that he was prevented, by some disorder of the mind, from knowing either the nature, or else the consequences, of his act of killing.
Insanity, when raised in answer to the prosecution’s case of intentional killing, at once affords the accused the protections provided by section 27 (a) and (b) of the Criminal Code, 1960 (Act 29), and section 137 (1) of the Criminal Procedure Code, 1960 (Act 30). And in order that these provisions avail an accused, it is requisite and necessary that satisfactory evidence be adduced showing that the mind of the accused was so debilitated and affected by a mental disorder, or derangement of one sort or another (e.g., idiocy, mental delusion, imbecility, hallucination, schizophrenia, etc.) that he can safely be taken to have lacked criminal consciousness and responsibility when he committed the act of murder complained
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of. The acceptance of this state of affairs with the accused at once acknowledges the further important fact that lack of awareness in the accused could, or might, have precluded him from being able not only to form any criminal intention, but also to distinguish between right and wrong when he committed his act of murder. In the result, such an accused is classified as being an unfit subject for any punishment, all because he has been shown to have lacked mens rea, that vital ingredient so essential to a charge of unlawful and intentional killing of a human being.
Returning to the peculiar facts of this present case, then, can it be said, in this appeal, that there was established at the trial such sufficiently clear and probable facts as could reasonably and validly ground the conclusion that, because the appellant either was, or else could, or might possibly, have been the unwitting victim of some disease of the mind; that that ailment had so eaten up and swept away his intellect as to have made him unaware that the result of hitting the back of the deceased’s head (a very mortal section of the human frame) violently with that heavy box-iron would either be death, or grievous physical injury or harm—could it be said that by reason of all this, therefore, the appellant must be given the benefit of the special verdict under section 137 (1) of the Criminal Procedure Code, 1960 (Act 30), and dealt with as a criminal lunatic because, on the facts of the present case, either section 27 (a) or section 27 (b) of Act 29, or both is or are, applicable?
In discharging that statutory obligation mentioned above, the appellant relied upon the evidence of a medical officer, the first witness for the defence, and upon an inference suggested from the testimony of the widow of the deceased (the third prosecution witness). The evidence of Alice Emil Sakeboba the deceased’s widow, was that while she did not know why the appellant had behaved the way he did to kill her husband and thereafter chase her all over the place, she had known as a fact, throughout her long association with the appellant and her husband, that those two friends had never before quarrelled with each other. The inference is quite clear: if after such a long period of harmonious coexistence such a quiet and untroublesome person as the appellant could suddenly erupt into the uncontrolled violence which killed the deceased, his own childhood friend, then there probably must have been something really seriously wrong with his mental health. And that because the appellant acted just that way, it is fair to presume that he might well have been under the incapacitating influence of some mental disorder, some disease of the mind, when he struck down and killed the deceased. This, we agree, is a perfectly legitimate deduction; but is it valid and supportable on the totality of the evidence before us, and at the trial? The important question for us, in this appeal then, is whether there is enough evidence, or at all, on the record, establishing some such causal connection between the act of murder, the appellant and the inference which the appellant’s counsel has so passionately pressed upon us as to bring the case of the appellant within the statutory requirements of section 27 (a) or 27 (b) or both ?
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We now consider the evidence of the medical officer who testified for and on behalf of the appellant. After stating that psychiatry was one of the subjects he studied, Dr. William Tunira Ganda talked in general terms of the mental affliction known as schizophrenia which, he said,
“makes the sufferer imagine he is hearing voices. This kind of lissom can come at any time and any place depending on the environment. Such sufferer may hear voices threatening him or causing him to do things. These are known as hallucinations. Such patient has disturbances in the brain, and he may remember some events but not all. It is incurable and can come as from time to time.”
This was all well and good. But was there any nexus forged by the evidence in general, or by the doctor’s testimony, notably, to connect the appellant with any one, or some, of these characteristic symptoms? Was the appellant either specifically, or nearly enough, identified with any of these peculiarities to make his solicitations for the special verdict not a mere try on, but a meaningful and legally acceptable plea?
When he was cross-examined on his evidence, Dr. Ganda confessed that all he had said concerning “schizophrenia” were general observations and that, without having first observed and examined a particular patient, he could not decide that that invalid was schizophrenic. Such evidence, to our mind, is not the stuff of which the quasi-acquittal envisaged by section 137 (1) and (2) of Act 30 is made.
It is our careful appreciation of the facts and incidents surrounding this case, that the nature and quality of the evidence directed as demonstrating the reasonable likelihood of the appellant labouring under some mental distemper (such as mental delusion, or hallucination) when he committed the offence, was certainly not such that the trial jury could, properly, have been invited to use as a basis sound enough, or at all, for the special verdict of guilty, but insane. In our opinion it is never enough, in the particular circumstances of such matters, for the appellant to rely, for the success of the defence of insanity, upon the vacuous fact, without more, either that he had lived peaceably and in happy fraternal amity with the deceased, for many years, before the killing; or that he did not know what came over him when committing the offence (see e.g., Boamah v. The State [1964] G.L.R. 112, S.C.); or that he could not remember what happened after he had killed the deceased (see e.g., Kwabena v. The State [1963] 2 G.L.R. 545, S,C.). Nor can the absence of motive be of any help to establish for him the plea of guilty, but insane (see Dim v. R. (1952) 14 W.A.C.A. 154 at p. 155).
From our own investigation of the record we are fully satisfied that both Dr. William Ganda, the first witness for the defence, and the appellant himself failed, by the elements of their separate and conjoint evidence, to present the trial court with any medical record, or other appropriate history, of any facts in any way symptomatic of unsoundness of mind in the appellant himself, or in his family. In the remarkable absence of that vital data which would have justified an inference of insanity, we are of the opinion that neither the learned judge nor the trial jury can, with any
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propriety, be censured for the conviction and sentence of the appellant. The jury was bound, by its oath, to act only upon such relevant evidence as it saw and heard, and to which its mind was fittingly directed in the summing-up. When, therefore, no facts have been presented to them from or by which we here can reasonably and appropriately find some causal connection between the murder charged and any psychiatric disease in the appellant, this court will be loath to contradict the unanimous verdict returned by a jury adequately instructed on the facts and the relevant law.
We are not at all surprised, therefore, that when the learned trial judge came to deal with this aspect of the defence he thus addressed the jury, inter alia: “the doctor called by the defence merely explained the symptoms of hallucination … but he did not prove that the accused had any hallucination at the time of the incident.” That Dr. William Ganda’s evidence was valueless, because it bore no direct or connexional relation to the appellant’s alleged situation, cannot be controverted. Not having ever before personally examined, or treated, or even merely observed the appellant, the medical officer was in no useful position to arrive at any profitable conclusion on the sanity, or otherwise, of the appellant, and so be of assistance to the trial court.
To our mind, an entirely different complexion would have been put on the defence and the plea of insanity greatly strengthened if there had been adduced, at the trial, such expert medical or other evidence as showed, for instance, that this appellant had been under care and observation over a period of time; that during that period he had been examined or treated or both, for some mental affliction (whether hallucination, idiocy, mental delusion, schizophrenia, etc.) by a medical officer, or traditional healer, who had taken into serious consideration such necessary elements as the mental history of the appellant’s ancestors, or the appellant’s own physical condition and his mental state—all in the relevant context of the material facts and circumstances of the act of killing which forms the subject-matter of the trial.
We would, therefore, hold that it is not evidence such as was offered by the medical officer in this present case that will procure for an accused pleading insanity the benefit of the special verdict under section 137 of Act 30, and section 27 of Act 29. It is testimony such as was marshalled for the appellant in Njoku v. The State [1965] G.L.R. 394, S.C. that will advance and firmly establish that claim.
In the Njoku case, the appellant had been convicted for murder and sentenced to death. He appealed to the Supreme Court grounding his petition on the premise that the verdict ought, rather, to have been one of guilty, but insane because the evidence adduced at the trial did not support the general verdict of guilty of murder pronounced by the trial jury. The appeal succeeded not only because there was medical evidence which, properly considered, left no doubt in the legal conviction of the Supreme Court that the proper verdict to fit the justice of the case was the special one of guilty, but insane; but it was also quite plain that the facts proffered in defence by the prison medical officer, were cogent and sufficient enough
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to negative the existence of mens rea in the appellant. Dealing with this important aspect of the matter, the court said at p. 397:
“In support of his defence he called as a witness the medical officer in charge of the Central Prisons at Sekondi who, in the course of his duties, had the opportunity of observing the appellant on two occasions. His observations revealed that the appellant, ‘was not mentally sound. He did not answer questions and behaved abnormally and sometimes violently. The accused (appellant) was insane all the time he was under my observation’.”
Here, then, was a medical witness who, though not a specialist in mental health (in fact he need not, necessarily, have been such an expert), yet, from his close and personal contact with, and his careful observation and examination of, the appellant was able to say with that commanding degree of assurance, that his subject was non compos mentis.
In Abugari Kusasi v. The Republic, Court of Appeal, Accra, 1 March 1974, unreported, Dr. Christian Adomako, psychiatrist specialist of the Mental Hospital, Accra, giving evidence at the trial court, had said of the appellant’s mental condition:
“When admitted the accused remained mute, muttered words to himself and he was restless, wandered about in the ward aimlessly. He complained that he was hearing voices which kept him awake at night. These voices instructed him what to do. We found that his mood or emotional expression was abnormal. He generally looked sad but he would smile or laugh for no reason. He was started on treatment as an impression was formed that he was mentally sick. He was treated from July 1968 until March 1969 when he was discharged.”
The specialist having had the patient under close professional surveillance, examination and treatment, his evidence carried weight; and since it commanded respectful attention and bore within itself such an authoritative impression of high probability (which rather unfortunately, was ignored by the trial judge) the Court of Appeal was constrained to quash the appellant’s erroneous conviction for murder, and substituting therefor the special verdict of guilty, but insane, it enabled the appellant to be partially pardoned under section 137 (1) of Act 30.
Such then, is the nature and quality of the medical (or other relevant) evidence which accused persons setting up the plea of unsoundness of mind under either section 27 (a) or section 27 (b) of Act 29 must call in purposeful aid, as a shield, to counter and quench the prosecution’s fiery darts of allegations of intentional and unlawful killing of a human being. And see also State v. Addae [1961] G.L.R. (Pt. II) 786, S C.
We are not to be misunderstood, by the foregoing, as saying that this important issue of insanity must always be decided only upon the expert, technical evidence of medical officers, mental health specialists, and even traditional healers, who have had the accused under their care, observation and treatment. On the contrary, the duty of such experts is merely to
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venture an opinion as to the state of the mental health and condition of the accused so that a valid inference may, in the final analysis be drawn by the trial jury as to the real likelihood, or otherwise, of the accused having been the victim of some mental disease which, when he committed the offence complained of either had, or reasonably could have, impaired his sense of right and wrong.
Insanity is strictly and essentially a question of fact, and it falls within the particular bailiwick of the trial jurors who must come to a unanimous decision on the matter, one way or another, basing their conclusion and verdict upon a careful consideration of all the essential aspects of the facts before them together, also, with the relevant and essential points raised by the evidence of any witness to mental health, or other state and condition, of the accused. As Granville Sharp J.A. put it in R. v. Kwadwo Mensah [1959] G.L.R. 309 at pp. 311—312, C.A.:
“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 therefore for the jury to decide it after consideration of all the circumstances disclosed to them, including the nature of the evidence of experts (or an expert) in mental diseases. In our view, however, it is of extreme importance that the jury should be fully, clearly and carefully directed upon such an issue, so that they may be able to bring to its consideration analytical, clear and impartial minds.”
Forerunning Kwadwo Mensah’s case (supra) on this very aspect of the matter, was R. v. Dart (1878) 14 Cox’s C.C. 143 where at p. 144 occurs the following apposite report:
“The counsel for the prosecution having suggested that scientific evidence as to the prisoner’s state of mind should be forthcoming, his Lordship [Brett L.J.] said that it was a mistake to suppose that, in order to satisfy a jury of insanity, scientific evidence must be adduced. If the evidence of facts were such as to indicate an unsound state of mind, that was quite sufficient.”
We wholly affirm the correctness of both these statements.
It is our opinion, therefore, that if the evidence of Dr. William Ganda, the first witness for the defence in this present case, had shown his personal, professional involvement with the appellant, and had been anything like the expert one in the Njoku and Kusasi cases (supra) there would have been data present from which the jury would have been obliged to infer the likelihood of the appellant being the victim of some high fantasy (brought on by some mental illness which, at the time of the commission of the offence of murder, had driven him to live imprisoned in an imaginary world all his very own)—by reason of which whimsical notion, therefore, he was not to be regarded as a fit subject for any punishment: see section 27 (b) of Act 29.
Since there was conspicuously lacking from the evidence at the trial any such necessary, or even probable, premises, we cannot sustain the
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disputation here urgently presented—that argument being utterly inconsistent with the facts as proven and, therefore, baseless—that the appellant before us may be taken conceivably to have been so far removed from the actual realities of his community in Navrongo and that he was as a direct result, as insensible to the nature of his actions as he was unintelligent of the ultimate consequences of these actions when he struck and killed the deceased. As we understand the facts and the relevant law, this appellant was not, and he certainly could not have been, the victim of any delusion or hallucination, nor yet of any proven mental illness. We cannot, therefore, lawfully permit him to enjoy the exonerating benefit of either section 27 (a) or section 27 (b) of the Criminal Code, 1960 (Act 29), nor yet of section 137 (1) and (2) of Act 30.
We have very anxiously examined the facts and incidents of this case as disclosed by the appeal record, and we are quite satisfied, first, that nothing that the learned trial judge said, either during the trial itself, or else in his summing-up, could have distracted the unanimous attention of the jury from coming to the correct decision on the evidence before them; secondly, that there was nothing in the appellant’s evidence in particular, or in the defence, in general, which can, in our opinion, validly lead any rational jury (as adequately directed as this jury was) to say that either immediately prior to, or else at the material moment of, the killing the appellant either was, or that he could, probably, or that he might, possibly, have been, suffering from such mental illness as ought to absolve him from the legal consequences of his unlawful, inexcusable act of deliberate killing.
Counsel for the appellant has here contended that the learned trial judge was guilty of misdirection, and of an inadequate presentation or consideration of the case for the defence. He blames the concordant judgment of the trial jury upon the learned judge’s failure to direct them “on the law governing insane delusion or other diseases affecting the mind.” We think it sufficient to say, in answer to this petition, that counsel’s spirited strictures against the trial judge’s direction cannot be sustained. A summing-up can be classed as defective only when there are present in it such errors and inexactitudes as touch and affect relevant issues; and when these mistakes strike at the very root of the whole case to deny the appellant substantial justice. It has been held that it is only in such circumstances that the fault complained of may be made a ground for quashing a conviction: see R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, C.C.A.
Now if there had been presented to the trial court any material facts of unquestionable, or of probable insanity in the appellant, there definitely would then have been a pressing, necessary call upon the trial judge to have informed and instructed the jurors of their duty and power to return the special verdict under section 137 of Act 30, after having first directed their attention, of course, to sections 11, 27 (a) and (b) of Act 29: Manu v. The State [1965] G.L.R. 149, S.C. No such vital facts having been adduced by the defence, we are satisfied to reject these attacks and to uphold the sufficiency of the trial judge’s summing-up on the defence,
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generally, and then upon the issue of the appellant’s alleged insanity, in particular.
We would dismiss this appeal, therefore, in the result, satisfied that the weight of the evidence advanced at the trial was such as plainly justified the unanimous verdict of guilty returned by the trial jury. Further, while we entertain no doubts at all that the appellant had a fair trial, we are also convinced that he has suffered no injustice by the united decision of the jury. We see no reasonable ground, therefore, for interfering with the legitimate and amply supportable verdict that the appellant intentionally killed the deceased by unlawful harm.
DECISION
Appeal dismissed.
S. E. K.
