DIVISION: IN THE SUPREME COURT
DATE: 21ST JUNE, 1963
BEFORE: ADUMUA-BOSSMAN, MILLS-ODOI AND OLLENNU
CASE REFERRED TO
R. v. Mills [1939] 2 K.B. 90; [1939] 2 All E.R. 299; 27 Cr.App.R. 80, C.C.A.
NATURE OF PROCEEDINGS
APPEAL from a decision of Djabanor J. sitting with a jury delivered in the High Court, Kumasi,
convicting the appellant of the murder of his wife.
COUNSEL
Cofie for the appellant.
D. F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF OLLENNU J.S.C
Ollennu J. delivered the judgment of the court. The appellant who was convicted of the offence of
murder by Djabanor J. in the High Court, Kumasi, upon the verdict of a jury, appealed against his
conviction on the following grounds:
“1. The judge erred in law in failing to direct the jury as to the admission by Ampoful the independent
witness that the accused told the police when the accused’s statement was being taken that there had
been a struggle in the farm.
2. The judge misdirected the jury in failing to direct them that unanimity did not mean that a juror should abandon his firm belief in the truth of the defence.
3. The judge failed adequately to put the case of the defence.
4. The judge erred in law when he failed to direct the jury that the accused’s account of what transpired at the farm was unique and uncontradicted.
5. The non-direction of the judge as to the medical evidence of Dr. Selby as to provocation, indicated by
the severity and number of wounds inflicted by the accused is fatal, and has thereby occasioned a
miscarriage of justice.
6. Other grounds of appeal particulars of which will be given when the record of proceedings is
available.”
The crime was committed on the 15th February, 1962. There was no eye-witness and the case for the
prosecution depended upon (1) a report made shortly after the incident by the appellant himself to the first
prosecution witness, a sister-in-law of the deceased, and also to the police when he was charged and
cautioned, and (2) circumstantial evidence.
[p.86] of [1963] 2 GLR 84
The facts established by the evidence are as follows: the victim of the crime, one Akosua Krah, was a
wife to the appellant by customary law and had been married to him for about three years before her
death. About three months before the murder, the appellant complained to the second prosecution witness,
a brother to the deceased, that his wife, the said deceased, had persistently refused him sexual intercourse.
When called and questioned about this, the deceased, Akosua Krah, explained that she was in an
advanced state of pregnancy, and therefore had no strength for the regular daily sexual exercise demanded
by her husband, the appellant. Accepting the explanation of the deceased as reasonable, for he could
himself see the woman’s physical condition, the witness then advised the appellant to sympathise with the
deceased and not insist upon having sexual connection with her daily, which advice, the appellant
accepted. The deceased gave birth to her child on or about the 27th December, 1961.
On the day of the incident, the 15th February, 1962, the appellant went to his farm in the morning; at
about noon the deceased took food to him in the farm as she usually did; she carried her six weeks old
child on her back. What happened in the farm and thereafter was related by the appellant in his cautioned
statement to the police as follows:
“I was in the farm at about 1 p.m. when the deceased Akosua Krah brought food for me. I questioned her
why she never brought the food in time. She replied that I should not worry her. I did not say anything and
took my food quietly. After I have finished eating, the deceased told me that, if I continued to worry her, she
will seek for dissolution of the marriage as her child is now grown. I became worried when she said so. This
brought a quarrel between us and I struck her with a cutlass which I was then holding in my hand. She fell
down dead. I became afraid and left the farm. I came back to Besease village. I brought the cutlass and kept
same in my room. I found that I could not stand the strains of going to court for murdering my wife. I
decided to take my own life. I was having two tins full of D.D.T. I took one tin of the D.D.T. and went
towards a pit latrine. I opened it and drank some of the stuff from the tin. After I have drunk from the tin, I
fell to the ground, when I was on the ground, I heard the voice of one Abena Asantewaa, the wife of my
brother-in-law Kwadjo Weremfuoh and shouted and called her. She came to the spot. I informed her that I
have murdered my wife Akosua Krah in my farm at Dentinho bush and I wanted to commit suicide by
drinking D.D.T. At the time of informing Abena Asantewaa no one knew that I had killed my wife Akosua
Krah. Abena Asantewaa left away. I do not know what happened afterwards until I found myself at Bekwai
Hospital, it was only yesterday, the 23rd February, 1962, when I became conscious.”
In the evidence he gave in his defence at his trial, the appellant relied upon the statement he had made to
the police, and elaborated upon that part of it which described the incidents leading to his killing his wife.
He said:
“I went to the farm in the morning and at about 1 p.m. my wife brought me food. When she came I asked her
why she was late in bringing the food. Her reply was that I should not trouble her – for if I continued to
worry her she would not marry me again. I said nothing but I took my food quietly.
[p.87] of [1963] 2 GLR 84
When I was taking my food she left me to go and collect some firewood. I had already gathered some
firewood and I told her to go and collect them. When she returned I had finished eating the food, and I told
her that my water was finished and that she should go and fetch me some. When I so instructed her I took my
cutlass to go and continue my work. When I went a few yards she called me back. When I went to her she told me to help her carry the firewood to go home. I then asked her about the water I had told her to fetch for me. When I said this she told me not to worry her for she had told me that she would divorce me and that she was still bent on divorcing me, so she would not go to fetch the water. I then asked her what I had done to her before she said she would not marry me anymore. When I said this she slapped me in my face and I
turned to go away. When I so turned she took one of the fire woods and hit the back of my neck-so I turned
round again – then when I went to her she held my penis and started pulling it. At this juncture I struck her
with the cutlass I was holding at the time. Then she fell down – then I called her twice-Akosua, Akosua but
she could not answer. At this juncture I became afraid so I left her and went to the village – Besease. Because
she worried me I was provoked to hit her.”
The learned judge, as appears on the record, gave a careful, exhaustive and well-balanced summing-up to
the jury, in parts most favourable to the appellant.
Arguing the first ground of appeal, counsel attacked the summing-up and submitted that it was fatally
deficient, in that the learned judge failed specially to direct the attention of the jury to an admission made
by a civilian independent witness to the making of the cautioned statement, the eleventh prosecution
witness, when he said in cross-examination that in the course of making his cautioned statement the
appellant had said that “there was struggle in the farm.” We cannot see the force of this argument; the
appellant is literate, he heard the statement read both in the committing district court and at the trial in the
High Court, and never alleged on any of those occasions that the word quarrel appearing in his statement
should have read struggle. If the accuracy of the cautioned statement had been questioned by the
appellant, then the admission made by the eleventh prosecution witness would have been material.
Moreover, the relevancy of struggle is as to the defence of provocation and self-defence; on each of those
defences the learned judge’s summing-up was most fair to the appellant; he directed the jury to give the
version of the incident as given by the appellant in his evidence a favourable consideration, and that if
they were in doubt they should resolve that doubt in favour of the appellant. He said:
“If you are in doubt as to the truth or otherwise of the plea of self-defence, then resolve the doubt in favour
of the accused and acquit him. If you have any doubt as to whether there was extreme provocation or not,
you must find in favour of the accused that he is guilty of manslaughter only.”
In our view, the direction on this point was quite adequate. The learned judge ended his summing-up in
the following words: “You will please retire to consider your verdict. I hope it will be unanimous. If you
need further directions let me know.”
[p.88] of [1963] 2 GLR 84
The sentence, “I hope it will be unanimous,” is the basis of the appellant’s second ground. On that ground
it was submitted that by those words the learned judge meant that a juror or jurors “who might hold firm
belief in the truth of the defence” should abandon his said opinion if that should turn out to be a minority
view. Counsel submitted therefore that the summing-up was bad, and had influenced possible minorities
among the jurors to yield, against their conscience, in favour of a majority in order to save time and
expense; counsel supported his submission with the English case, R. v. Mills.1 There is no similarity
between the case cited and the case before us.
The facts in R. v. Mills.2 set out in the report are as follows:
“The appellant, Harold Sydney Mills, was charged at the Central Criminal Court, before the Recorder, with
obtaining a cheque by false pretences. Some time after the jury had retired to consider their verdict, they
returned into court and stated that they were unable to agree. The Recorder then addressed them and said: `I
will say this to you because it has been said by a very eminent judge in this building that it is of the utmost
importance that a jury should come to a conclusion one way or the other at the end of a trial, because it is
burdensome upon all concerned, including the accused, because it only means this, that, unless you do, the
matter has got to be tried all over again; therefore you see the importance and necessity of coming to a conclusion one way or another. Where you have got one or two, a small minority in the jury, who are thinking, perhaps, differently from the others, it is quite consistent with their oaths as jurymen that they should, after hearing what the others have got to say, come to the conclusion that they themselves may be wrong, and it would be consistent with the discharge of their duty and with their oaths, under these
circumstances, if they thought they were wrong, to accept the view of the majority.’ Later the learned
Recorder added: ‘I cannot release you until you have come to a conclusion.”
Upon those facts Lord Hewart C.J. delivering the judgment of the Court of Criminal Appeal said:3
“I need hardly say that nothing could be more deplorable than that a jury should be given the impression that
it might be right for them to appear to have arrived at an agreement when in fact they had not done so, or to
appear to express a view which they did not honestly and individually entertain. It is quite certain that it was
far from the intention of the Recorder to create such an impression. The only question is whether the words
which he used might unfortunately have had that effect. The difficulty is, what may have been the effect on
the minds of the jury of the words:-. The words he added `I cannot release you until you have come to a
conclusion’ are said to put pressure on the jury to appear to come to a conclusion when in fact they had not
done so, or to lead them or some of their members, to coquette with the idea that for the sake of conformity
or convenience it would be consistent with their oaths to make it appear that they accepted a view which, in
fact, they did not accept. Such a conclusion as that would be quite subversive…. There can be no doubt what
the learned Recorder intended
[p.89] of [1963] 2 GLR 84
to convey to the jury in this case, but he used one or two perilous phrases which may conceivably have
caused some members of the jury to incline their minds to a wrong view.
In our opinion it would be reading too much into this simple expression of hope by the learned judge in
this case, that the jury would be unanimous, to say that it would have the effect of coercing a minority
among the jurors to yield to the view of the majority for the purpose of convenience and in order not to
appear to be fools. The concluding words of the learned judge, “If you need further directions let me
know,” show that the more probable impression the statement could give is that every relevant point had
been explained in the summing-up to enable them to come to their decision, but that if that was not so,
they had a right to request further directions. The suggested inference of coercion and inducement is too
remote. There may be circumstances in which an observation of that nature may be objectionable and
fatal, but the circumstances of the present case do not come within those. In any event there has been no
miscarriage of justice.
The third ground of appeal: that the defence was not adequately put to the jury, was cautiously not
argued; that is quite understandable, because quite contrary to the allegation the summing-up shows that
the case for the defence was put to the jury fairly and strongly.
On ground 4 counsel submitted that the learned judge should have directed the jury to accept the account
of the incident as given by the appellant in his evidence because it was unique and uncontradicted there
being no other eye-witness besides the appellant to the commission of the crime. It is true that the
appellant was the sole eye-witness to the commission of the offence; but it is true also that he, the sole
eye-witness, gave two versions of the incident; one in his cautioned statement, the other in his evidence
before the court. It was not in dispute that the appellant made the cautioned statement, and as earlier
observed, his evidence is a mere elaboration of the account he gave in the cautioned statement of the
incident and the circumstances in which he inflicted the injury which caused the death. Had the account in
the cautioned statement been exactly the same as that in the evidence given by the appellant, there would
have been substance in the submissions made on this ground. Since there were two versions of the same
incident, though given by one and the same person, the issue whether one version and not the other, is the
true account, is a question of fact, the determination of which rested entirely with the jury.
Therefore direction by the judge to the jury to accept one of those two versions given by the same person,
in preference to the other, would be usurpation by the judge of the functions of the jury, i.e. the judge
deciding the issues of fact and forcing his decision upon the jury. The duty of the judge in such a case is
to put each of the two accounts fairly to the jury and ask them to decide for themselves which of the
accounts they would accept. The summing-up in this case shows that the learned judge discharged that
duty fully. The criticism of the summing-up on that ground is unfounded.
[p.90] of [1963] 2 GLR 84
In his fifth ground of appeal the appellant complained that miscarriage of justice had been occasioned in
“the non-direction of the judge as to the medical evidence of Dr. Selby as to provocation, indicated by the
severity and number of wounds inflicted by the accused is fatal.” It is most surprising that this ground of
appeal was filed and argued. The medical officer who held a post mortem examination of the body of the
deceased, described the wounds inflicted upon her as follows:
“. . . on the right shoulder was a superficial cut wound paralleled with the skin. On the posterior region of the
neck, between the second and third vertebrae was a deep and large cut wound which involves the muscles of
the neck and the bones of the neck and the spinal chord. There is an incised wound on the last one at the back
of the head nearest to the neck. In my opinion the wounds could have been caused by a cutlass or a sharp
cutting instrument which is fairly heavy but not a knife. In my opinion cause of death was the dissection of
the spinal chord.”
The trial of the case was fixed for August 1962; the said medical officer was due to leave the country at
the end of June, therefore the court, upon motion of the Attorney-General made under section 200 of the
Criminal Procedure Code, 1960,4 made an order on the 25th June, 1962, for the evidence of the said
medical officer to be taken. Pursuant to that order, Apaloo J., on the 28th June, 1962, heard the evidence
of the said medical officer in the presence of the appellant and his counsel; the evidence so recorded was
read to the court at the trial before Djabanor J., and formed part of the proceedings. The appellant called
another medical officer, the first defence witness, Dr. Selby, to interprete and to give expert opinion on
the recorded evidence given by the doctor who held the post mortem examination and read to the jury. It
is a non-direction upon the opinion expressed by the doctor called for the defence which it is alleged
amounts to grave misdirection resulting in grave miscarriage of justice.
Now the evidence given by this defence witness is, that there were three injuries on the body of the
deceased, one of them, a wound across the shoulder; that first wound, the witness said, must have been
inflicted before the deceased fell to the ground; the second he said, was more serious, passing through the
skull, and must have been inflicted while the woman was lying on the ground, and must have been
inflicted before the third wound; the third he said, was the most serious of all, it almost completely
decapitated the head of the deceased. That wound also, the witness said, must have been inflicted while
the woman was lying on the ground.
It follows from that evidence, that the appellant slashed the deceased across her back while she was
standing carrying her six-week-old child on her back, and thereby caused the woman to fall on the ground
face downwards, that the appellant then cut the woman on her head through the skull while she laid on the
ground, and finally cut her, this time through the neck, and thereby almost completely severed her head
from her body.
[p.91] of [1963] 2 GLR 84
The only proper direction the judge would have been justified to give the jury upon that damaging
evidence is to explain sections 32 and 54 (1) (d) of the Criminal Code, 19605 to the jury, and direct them to consider that evidence in the light of the provisions in those two sections of the Code. The said sections
are as follows:
“32. Notwithstanding the existence of any matter of justification for force, force cannot be justified as having been used in pursuance of that matter—
(a) which is in excess of the limits hereinafter prescribed in the section of this Chapter relating to
that matter; or
(b) which in any case extends beyond the amount and kind of force reasonably necessary for the
purpose for which force is permitted to be used.
“54. (1) Notwithstanding proof on behalf of the accused person of any matter of extreme provocation,
the crime shall not be thereby reduced to manslaughter if it appears —
(d) that he acted in a manner, in respect either of the instrument or means used or of the cruel or
other manner in which it was used, in which no ordinary person would, under the
circumstances, have been likely to act.”
If the appellant in self-defence against a woman carrying a six-week-old child on her back and pulling
him by the penis, had inflicted a wound with a sharp cutlass on her across her shoulder which laid her flat
on the ground face downwards, or if he dealt her that terrible injury in the heat of passion, and thereafter
dealt her further very serious and again yet more serious injuries, it is evidence that those further wounds
he inflicted far exceeded any force reasonably necessary for the defence of his person in the
circumstances related by himself, and far exceeded what would be reasonably necessary consequence of
provocation. And since according to the appellant the deceased must be facing him to be able to pull his
penis, a wound inflicted either to get his freedom or in provocation would have been somewhere on the
front or side of the deceased and not right across her back as the medical evidence positively showed.
We are, therefore, of opinion that a direction to the jury on the evidence given by the first defence
witness, the doctor called for the defence, would not be at all favourable to the appellant, and that far
from prejudicing the case for the appellant, the non-direction on it was most favourable to the appellant;
thus the error of the learned judge in this regard, if error it could be called, was one in favour of the
appellant.
We are satisfied that the summing-up in this case was unimpeachable, and that upon the facts before
them, the jury could not possibly have reached any conclusion other than the verdict they returned.
It is for these reasons that we dismiss the appeal.
DECISION
Appeal dismissed.
K. T.
