AGYEMANG vs. THE REPUBLIC [1995-96] 1 GLR 118

CASES REFERRED TO:

(1) Atta v The Republic (1953) 14 WACA 323.

(2) Kekey v The Republic [1968] GLR 53, CA.

(3) R v Stoddart (1909) 2 Cr App R 217, CCA; 25 TLR 612.

(4) Yirenkyi v The State [1963] 1 GLR 66, SC.

NATURE OF PROCEEDINGS

APPEAL by the appellant against his conviction for murder by the High Court, Sunyani. The facts are sufficiently set out in the judgment of Lutterodt JA.

COUNSEL

Amoah for the appellant.

Mrs Anson, Chief State Attorney (with her Miss Valerie Amate, State Attorney, and Nerquaye Tetteh, Assistant State Attorney) for the Republic.

JUDGMENT OF LUTTERODT JA.

Akosua Tawiah is one of the three wives of the accused, a 58 year-old farmer and akpeteshie distiller who lived at Wenchi Nkenah. They have nine children. The deceased, Yaw Yeboah, was an ex-policeman who came to reside in this village when he was dismissed from the service.

In 1984 the accused suspected that his wife was flirting with the deceased. This brought about a strain in their relationship and the wife threatened to divorce him. The couple however continued to live together as man and wife while the families and the chief made various

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attempts to salvage the marriage.

On 26 October 1985 the accused attended a funeral at Droboso and so did the wife and the deceased. According to the accused, he watched in anger as his wife danced with the deceased to the tune of adowa, and the former used her handkerchief to wipe the latter’s face.

At 6.30 pm when the two disappeared from the funeral grounds his suspicions were aroused. From his own account, he took in some drink, grabbed a cutlass and headed straight for the deceased’s house. According to him, as he stood behind the deceased’s door, he heard the voice of his wife. But when silence broke out thereafter he suspected they must be engaged in sex. When the deceased therefore subsequently came out to relax, he dealt him one deadly blow with the cutlass. The latter fell in agony and died later.

Naturally, he was arrested and tried. He was found guilty and convicted for the offence of murder contrary to section 46 of the Criminal Code, 1960 (Act 29). It is against this conviction that he has brought this appeal and seeks for a reversal of the verdict on the grounds stated in the additional grounds of appeal filed on 6 November 1992 and 9 November 1992.

It was argued in respect of ground (1) of the additional grounds of appeal filed on 9 November 1992 that the judge was wrong in law when he directed the jury that it was the duty of the appellant to prove provocation. The proper direction he contended is that it was the duty of the prosecution at all times to prove the absence of provocation.

It seems to me that this criticism is unjustified. Provocation being a matter of defence, the duty of proving same, in my view, lies on the accused. As far back as 1953 the West African Court of Appeal has laid down this principle. I refer to Atta v R (1953) 14 WACA 323 at 324 where the court stated as follows: “An act of adultery committed in the view of an accused person with or by his wife is one of the matters which section 234 of the Criminal Code expressly provides may amount to extreme provocation, but the onus of proving that such provocation deprived him of the power of self-control so as to reduce the offence to manslaughter is upon an accused person: section 233 (1) of the same Ordinance.”

Note: the Ordinance referred to is the Criminal Code, Cap 9 (1951

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Rev). Section 233 (1) of Cap 9 is now section 52 (a) of Act 29 whilst section 234(3) of Cap 9 is now section 53 of Act 29.

It was further submitted in respect of this ground that it was yet another error on the part of the judge to have directed the jury to use the objective test, the standard of a reasonable man, rather than the subjective test when they came to deal with the issue of whether or not the appellant was in fact provoked. The contention is that this direction led the jury into considering the standard of a reasonable man thereby resulting in a miscarriage of justice.

It seems to me that the matter of extreme provocation which the accused seeks to rely on is section 53 (c) of Act 29 which reads: “(c) an act of adultery committed in the view of the accused person with or by his wife or her husband . . .” The courts have over the years construed the section to mean the accused must see the spouse and another engaged in the actual act itself. If any authority were required for this well-known principle of law, I would refer to Kekey v The Republic [1968] GLR 53, CA.

This I think from the facts of this case was the plea open to the accused and in the respect of which the learned trial judge was to direct the jury. The judge so properly directed the jury, referring in the course of his summing-up to the Kekey case (supra). Since there was no other evidence from which other matters of partial excuse or extreme provocation may be left to the jury, the judge was not in duty bound to refer to these and direct the jury for their consideration. The judge’s duty is merely to sum up the law and facts as is applicable to a particular case. It is thus unfortunate he posed the question: “Was the provocation enough to make a reasonable man in the community in which the accused lives act as the accused?” For, under section 53(1)(c) of Act 29 no test, whether subjective or objective, applies. The only matter for consideration is whether the accused saw the person in the act complained of. I see nothing prejudicial about the summing-up and which more so has occasioned a miscarriage of justice, let alone a substantial one. I think the appeal must again fail on this ground.

The argument put up with respect to ground (2) is that; by saying that the prosecution has established its case, the learned trial judge prejudiced the mind of the jury. Counsel’s lament is that this was what led them to convict the accused. In other words, had the judge not made these comments the accused would have been acquitted.

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Under our law, ie section 287 (2) of the Criminal Procedure Code, 1960 (Act 30), the judge is entitled, if he thinks so, to express his opinion on the evidence led at the trial. I would think that in non-controversial factual matters in particular, it would not entirely be wrong for him to express his opinion on what was or has not been proved. In this particular case, although the judge did make these positive and confident opinions on the following: (1) the fact that Yeboah was dead; (2) the fact that it was the accused who killed him; and (3) the fact that he did so intentionally, the opening paragraph of his summing-up shows that he urged the jury to be patient and carefully sift through the evidence. He urged them to be free from bias or prejudice of any sort before concluding whether the accused was guilty or innocent. He spelt out all the essential elements of the offence with which the accused is charged. I have no doubt that had he refrained from the comments complained of, the verdict would nevertheless have been the same. I think there is no merit in this ground as well.

Perhaps the strongest round urged is ground (3) wherein the complaint was that the judge misdirected the jury by not directing them on the fundamental requirement of unanimity. It was urged upon us that because the record does not illustrate that they were directed on this important point of law and nothing again does show that the verdict they reached was unanimous, there has been a mistrial and the conviction ought to be set aside.

The position of the law is that when the jury have considered their verdict, it is the duty of the foreman to inform the court what their verdict is or whether they are not unanimous: see section 282(1) of Act 30. I think by this law, if they do not declare that they are not unanimous the assumption is that they are unanimous, ie the verdict they have announced is a unanimous one. In this case, after the learned trial judge had summed up the law and the facts, he asked them to retire, deliberate on the matter and “bring out” their verdict. On their return from their deliberation, they were asked what their verdict was and they showed it as follows: “Guilty of murder.” There is no evidence on the record that any member of the jury indicated his opposition to the verdict as stated by the foreman. I think the clear inference is that they were unanimous.

No rule of law requires that they must use the word “unanimous” when the foreman comes to declare their verdict. Obviously the use of

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that word by them or any such phrase as, eg “all of us are agreed” would put the matter beyond every shadow of doubt but certainly the absence of it does not also mean such was not the verdict. I think where such an issue arises, namely whether or not a verdict reached was unanimous, we should have recourse to that part of the record as a whole which deals with what they told the court when they returned from their deliberations. We may not find any reference to the word unanimous. But we will certainly have a clear indication whether or not all of them were agreed to the verdict or whether some or any of them objected to it or raised any doubts about it. If there is no record of any of them having questioned the foreman’s information to the court, I think we can fairly well assume the verdict is unanimous.

But, would the fact that the trial judge failed to direct them on the question of unanimity affect the verdict? I think not. Certainly, it is the duty of the trial judge to point out to them that the verdict of the jury in murder trials must be unanimous. But in view of the reasons I have already given, I would not think the non-direction would affect the verdict. Then also, as was pointed out by the Chief Justice of England in the case of R v Stoddart (1909) 2 Cr App R 217 at 246, CCA which case was cited with approval some 30 years ago by our own Supreme Court in Yirenkyi v The State [1963] 1 GLR 66 at 77, SC: “This Court sits here to administer justice and to deal with valid objections to matters which may have led to a [substantial] miscarriage of justice.” Thus, ultimately the question is whether the non-direction has in a particular case brought about a substantial miscarriage of justice. In this particular case, going by the record, I do not find the jury disagreed over the verdict. Put another way the record shows they were unanimous.

I have no doubt that having regard to the overwhelming evidence on the record had they been directed on this question of unanimity, the verdict would have been the same. In the result, I would think this appeal must fail and it is accordingly dismissed.

JUDGMENT OF LAMPTEY JA.

I agree.

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JUDGMENT OF ADJABENG JA.

I also agree.

DECISION

Appeal dismissed.

JNNO