AKOM v. THE STATE [1966] GLR 454

Division: SUPREME COURT

Date: 3 JUNE 1966

Before: OLLENNU, AKAINYAH AND LASSEY JJ.S.C.

CASE REFERRED TO

R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A.

NATURE OF PROCEEDINGS

APPEAL against conviction for murder entered by Attoh J. sitting with a jury at the High Court, Kumasi. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Aboagye for the appellant.

S. M. Boison, Principal State Attorney (with him Aikins, State Attorney), for the respondent.

JUDGMENT OF LASSEY J.S.C.

Lassey J.S.C. delivered the judgment of the court. On 12 November 1964 the appellant, Kwasi Akom, was found guilty of the offence of the murder of one Akua Akyia on 12 May 1964 at Danso village in Ashanti after a trial before Attoh J. and a jury in the High Court, Kumasi. From this conviction the appellant has appealed to this court.

After hearing the whole of the evidence and listening carefully to the judge’s summing-up the jury had no difficulty in coming to the unanimous verdict that the appellant was guilty of the murder complained of and charged. However, in this court the summing-up of the trial judge has been impeached on the ground that it contained several misdirections or non-directions the cumulative effect of which was that it caused considerable confusion in the minds of the jury, and consequently led to or resulted in a substantial miscarriage of justice. [p.456] of [1966] GLR 454

The recorded evidence led at the trial showed clearly that it was the appellant who inflicted the bodily injury which eventually caused the death of the deceased; the appellant himself admitted that fact both in his statement made to the police, exhibit C, and in his evidence given on oath at the trial. The prosecution established by evidence that on Wednesday 13 May 1964 the appellant, the deceased Akua Akyia and other people, including some of the prosecution witnesses who gave evidence at the trial, attended the performance of the funeral ceremony for one Afua Atta who had died earlier; after the funeral celebration, the deceased, together with some of the prosecution witnesses herein, retired to the house of one Kwame Krah, the prosecution’s third witness, to listen to the music of an accordion instrument played by the said third witness for the prosecution in his house at the village; the evidence was that the appellant also went to the third witness for the prosecution’s house to listen to and enjoy the accordion music, and sat nearest to where the deceased Akua Akyia had sat on a verandah in the said third witness for the prosecution’s house. Altogether it was stated on the evidence that there were about ten people who had assembled in the third witness for the prosecution’s house for the purpose of enjoying the music from his accordion instrument. While the guests, among whom were the appellant and the deceased, were all seated and enjoying the tunes flowing from the third witness for the prosecution’s instrument, suddenly and without any provocation from any quarter, the appellant, who sat nearest to the deceased on the verandah of the third witness for the prosecution’s house, was seen sitting on top of the deceased woman, his aunt, and cutting her throat or neck with a razor blade which he had carried in the inside pocket of a pair of knickers he wore on that day. The prosecution also led evidence to show that prior to the occurrence of the incident, relations between the appellant and his late aunt the deceased had not been cordial; the reason for this, the evidence revealed, was because the deceased was at one time opposed to the appellant being installed as the odikro of the village, a customary position in the village which the appellant himself admitted on the evidence he once held but later had to abdicate. Against this version of the events which the prosecution alleged occurred in Kwame Krah’s house on the date mentioned in the charge, the appellant, while confessing that he killed his aunt the deceased, denied that he did so intentionally as the prosecution tried to establish. Both in his evidence on oath which he gave at the trial and in his caution statement which he made voluntarily to the police when he was arrested and charged with the present offence, the appellant endeavoured to put forward a case that the killing was

[p.457] of [1966] GLR 454 unintentional, and that he used the blade mistakenly or accidentally. He developed his case by explaining that the fourth prosecution witness, Kofi Dwumfuoh, and some others assaulted him, set upon him, the appellant, and beat him up mercilessly; he stated that a misunderstanding had previously arisen between him, the appellant, and the fourth prosecution witness over his, the appellant’s, desire to exercise the right to pour palm wine on the ground as custom demanded; the exercise of this right was resented by the fourth prosecution witness on the ground that he, the appellant, had been deposed as the odikro and as such he no longer possessed such right which he could exercise; the appellant said the fourth prosecution witness therefore obstructed him while he tried to reach at the calabash containing a quantity of palmwine; the evidence was that as the appellant himself had voluntarily abdicated his post as odikro it was against custom that he should be allowed to pour the palm wine on the ground in the manner indicated. The appellant stated that when he was about to drink the palm wine from the calabash, the fourth prosecution witness, Dwumfuoh, held his, the appellant’s cloth from behind and pushed him with the result that he, the appellant, fell on a drum which lay in the third witness for the prosecution’s compound; after that, said the appellant, the fourth prosecution witness set up on him and beat him up mercilessly and he was assisted by some other persons. In order, therefore, to free himself from the grip of his assailants who included the fourth prosecution witness, the appellant deposed that he managed to dip his hand into the inside pocket of his pair of shorts which he wore under his cover-cloth, and succeeded in producing therefrom a razor which he mistakenly thought was a cigarette lighter, and brandished it in the air in order to scare away his attackers; in doing so the instrument which turned out in fact to be a razor blade accidentally cut the deceased, who stood nearby, on the neck and resulted in her instant death; the appellant also stated that he did not know that the particular razor blade was inside the pocket of his pair of shorts; he said he remembered he had used the blade previously in shaving but had forgotten that he kept it in his pocket; he also said he knew he carried in his pocket a lighter which looked like a razor on the day of the incident, and that it was his intention to reach at what he thought was a lighter and use it for the purpose of frightening away his assailants and regaining his freedom; he said he did not deliberately intend to cause the death of the deceased.

The criticisms which have been levelled against the summing-up are covered by the following four additional grounds of appeal which were filed and raised on behalf of the appellant:

[p.458] of [1966] GLR 454

(1) That the learned judge erred in directing the jury that to constitute the crime of murder all that is required is death by unlawful harm;

(2) That the learned judge erred in directing the jury that in provocation the alleged provocative act must be such as deprived the accused of his self-control;

(3) That the learned judge erred by not adequately directing the jury that death could have been caused by the accused’s negligence; and

(4) That the learned judge erred by not adequately directing the jury on the burden of proof which rests on the defence in criminal cases.

The first complaint directed against the summing-up of the trial judge as could be gathered from counsel’s argument in support of ground (1) referred to above is that the general direction given to the jury as to the constituent of murder as opposed to ordinary homicide was so irregular and confusing that it misled the jury in coming to a wrong conclusion on the evidence. There can be no question, to start with, that in his summing-up to the jury, the learned trial judge did not properly lay down the law applicable to a case of murder as distinct from other forms of homicide in the way it is stated in our Criminal Code, 1960.1 A close and careful study of the notes of the learned trial judge’s summing-up to the jury shows that he failed to direct the jury properly as to the legal distinction between homicidal murder and the ordinary killing of a human being. In his summing-up the judge dealt first generally with the question of what constitutes murder, and also with the law as regards unlawful harm. After reading section 46 of Act 29 and the definition of murder as contained in section 47 the judge told the jury that, “This means that if you cause the death of another person by unlawful harm, you are guilty of murder. Unlawful harm means an injury or hurt caused to a person against the law of the land.” He continued the summing-up as follows:

“It is against the law of the land for a person with a knife to cut another person with the knife. He can be charged with causing grievous bodily harm or at least assault; so it is against the law to injure a person with a knife. If a person causes unlawful harm against another person and that person dies by the unlawful harm, he is in the first instance guilty of murder, unless there is some excuse recognised in law under section 52 of Act 29 to reduce murder to manslaughter. As I have said, if one cuts another person with a knife or hits a person with a [p.459] of [1966] GLR 454 stone, it is against the law. If you hit a person with a stick and you cause harm to that person, it is unlawful harm. If he dies and it is proved that you hit him with the stick and caused the harm, the harm caused to that person is unlawful. If it ultimately leads to his death that is murder in the first instance.” Here it is obvious from the passages just quoted from the judge’s summing-up notes that he was wrong in directing the jury that if unlawful harm caused ultimately results in death it constitutes the offence of murder; that is certainly a wrong charge to the jury on the law of murder as defined in section 47 of Act

29. In our view, not every unlawful act of an accused which results in death is murder, unless there is clear evidence which shows that the accused also intended death to result from the unlawful harm or the circumstances are such that a reasonable man would realise that his act might cause serious and fatal bodily hurt, and the degree of the probability or possibility of that type of harm resulting in death was apparent to him but he is indifferent or reckless as to the result. Where the harm, though unlawful, was not done negligently or intentionally but resulted in death at least it can be manslaughter only. In so far as the summing-up appears to have ignored this vital distinction between what is in law murder and what is ordinary homicide we feel that the judge was wrong, and throughout the summing-up the judge used similar expressions which ignored this vital distinction between murder and manslaughter. For example, where in the summing-up he stated, “If you are in a crowd and you fire a gun at A. and hit and kill B., a human being, in the first instance it is murder, unless there is some excusable ground.” Surely, this is a wrong statement of the law. Notwithstanding this wrong charge on the law to the jury, we are of the opinion that his explanations of what is manslaughter as defined in section 51 of Act 29 and what is unlawful harm under section 31 of Act 29, and the examples he gave are quite sufficient to remove any doubt or confusion which the inaccurate directions contained in his charge to the jury might have caused in the jury’s minds at the time. The jury before arriving at that unanimous verdict must have been fully satisfied by the evidence as a whole that the appellant had an actual intent to cause death judging by the manner in which the eyewitnesses who saw him testified he used the blade on the deceased. In such circumstances, we find that no miscarriage of justice could have occurred in the judge failing clearly to direct the jury as to the distinction between what in law is murder and what is ordinary homicide. If the jury accepted the prosecution’s case that the appellant sat upon the deceased and cut her on the throat and thereby inflicted upon her the serious

[p.460] of [1966] GLR 454 injuries found by the doctor after an examination, the obvious inference which was open to them on the abundant evidence was that the appellant intended death to result. The case the appellant tried to build up was that he only brandished the razor in order to frighten his assailants away from him; the case which the prosecution established before the jury was that he deliberately sat upon the deceased and inflicted the injuries upon her. The fact that it was the appellant who killed the deceased was not in dispute. Although the learned trial judge appears to have allowed his thoughts about the requirements of ordinary homicide to be mixed up with his thoughts about the essential elements of murder, however, we are of the clear view that the summing-up on the whole fairly put before the jury the issue as revealed by the evidence and that the jury were in no doubt as to the nature of the offence with which the appellant had been charged.

It has also been submitted before us by counsel for the appellant, that at the trial several defences including self-defence, provocation and accident were raised on behalf of the appellant and that the learned trial judge misdirected the jury on the law relating to these defences. Dealing first with the defence of provocation in this summing-up, the learned trial judge told the jury as follows: “If you are satisfied that he [meaning the appellant] was being beaten so mercilessly that he lost his self-control through extreme provocation by the assault, that he took his knife to frighten the people away and in doing so the knife wounded one of the people, then that is enough provocation and you can find the accused guilty of manslaughter . . . If you believe the story that he was defending himself and he flashed this knife and he mistook the deceased to be one of those people beating him and therefore flashed his knife and accidentally cut the deceased, then you find him guilty of manslaughter only.”

After reading the provisions of section 52 of Act 29 to the jury the judge further directed them that: “a crime of murder can be reduced to manslaughter if there is extreme provocation. All this means that when you cause death to somebody in circumstances which show that you have been extremely provoked—here the provocation does not amount to mere annoyance. Provocation here means that this person—the other person whom you killed—did something against you as to make you blind with fury, that you are so hurt by what the other person did that you struck the other person there and then without thinking. If the other person placed you on the ground and started strangling you, it is extreme provocation.

[p.461] of [1966] GLR 454

If you hit him with a stone or cudgel or knife near at hand when you have been provoked by a severe assault on you by the other person to such an extent that you lost your self-control, and therefore you hit that person with a knife, cudgel or stone or any instrument, the murder can be reduced to manslaughter. There is also another section which can help in this case, section 56 of Act 29. This reads as follows: (section 56 read)—Provocation of one person is no provocation to kill another person. That means that if somebody assaults you in the first instance you do not just fall on somebody also to kill that other person because you have been provoked by another. Another example I can think of is this: If there are so many people around and somebody quarrelling with you had a knife and slashes you with it, and you became so provoked, and you took something and then thought of hitting the person by mistaking him to be the person who provoked you, and he died the crime could be reduced to manslaughter. This is how section 56 of Act 29 operates.” Learned counsel for the appellant has impeached these passages just referred to on the ground and that judging by the manner in which the directions contained therein were put, the jury were bound to have confused and that the effect of it all was that it shifted the burden of proof on to the appellant. The manner or style in which the directions on the law of provocation were put to the jury in this case appears to be imperfect and unsatisfactory; furthermore, the directions did not point to the jury the character or standard which stated the true legal position, and it is perfectly clear from the various examples given in the summing-up by way of explanation of the legal position that the summing-up on the whole was not quite adequate and fair to the appellant.

It is the general rule of law that the questions whether the appellant was so provoked to such an extent so as to reduce the offence of murder to one of manslaughter, or alternatively whether the circumstances are such that the appellant found himself in such extreme danger of his life as to defend himself even to killing, are always matters to be left for the jury to decide, and this court has often said that it is the duty of the trial judge to leave for the jury all possible defences raised on the evidence, even though not specifically put by the accused or his counsel. However, on the facts of the instant case it would seem that the appellant’s principal defence was that of accident, the evidence being that he brandished the razor blade in an effort to free himself from being assaulted, and as we understood his case, he did not say that right from the very beginning when

[p.462] of [1966] GLR 454 the fourth prosecution witness and the others set upon him and continued beating him he lost his power of self-control as a result of any provocation offered by his assailants. Whether there was provocation or that provocation was likely to have deprived the appellant of his power of self-control, there appeared to be no direct evidence led at the trial. The learned trial judge, however, erred when he told the jury that “provocation by one person is no provocation to kill a different person.” In our opinion this is not a proper direction to the jury on the law as defined by section 56 of Act 29. The section reads as follows: “Where a sufficient provocation has been given to the accused person by one person, and he kills another person under the belief, on reasonable grounds, that the provocation was given by him, the provocation shall be admissible for reducing the crime to manslaughter in the same manner as if it had been given by the person killed; but, except, as in this section mentioned, provocation given by one person is not a provocation to kill a different person.”

If the purpose of the provisions of section 56 of Act 29 had been properly explained to them the jury might have formed a different opinion on the evidence given by the appellant that there might have been a case of provocation here because the appellant stated that he was beaten up by the fourth prosecution witness and some others mercilessly and that it was at the same time that he tried to free himself by brandishing in front of them what he thought was a lighter which injured the deceased. Very often it is common to discover on the facts of cases similar to the present one that where some evidence is led by an accused person that he has been assaulted or hit, it is often thought this automatically places upon the judge the obligation of directing the jury on the question of provocation. We are of the view that in this case the judge felt himself obliged to direct the jury on the law dealing with provocation because the appellant stated that he had been assaulted, though not by the deceased. After a close study of the recorded evidence and the submissions of counsel we are able to find that the defence of provocation under section 56 was legally raised at the trial. When the learned trial judge was minded to direct the jury on the defence of provocation and its incidence according to section 56 of Act 29, he appeared to have treated the so-called provocation in its ordinary sense as opposed to the legal connotation in which it has been defined in the Code; the learned trial judge assumed that as it was likely or probable that the appellant might have retaliated by producing and brandishing the razor blade [p.463] of [1966] GLR 454 because of the assault he alleged he received; he might have been provoked by someone other than the deceased. If that was so, then he was entitled to the benefit of the provisions of section 56 of Act 29. In ordinary parlance a person who has been assaulted by another person may strike back at his assailant, but that is certainly not provocation in the strict legal sense, and on the facts of this case the appellant appeared to have suffered no legal provocation at the hands of the deceased. We agree that the learned judge was perfectly entitled to leave every issue open to the jury to decide, if it was raised on the evidence, but we are strongly of the opinion that the evidence led by the prosecution coupled with the explanation offered by the appellant portraying the circumstance in which the deceased met her death and implicating the appellant did warrant a direction of the jury on the defence of provocation under section 56 of Act 29. The direction in the judge’s summing-up on provocation did not accurately and sufficiently appear to have stated the legal position, although the total effect of the directions on provocation given was more to the advantage of the appellant than to his detriment; however, we are fully satisfied that the directions were not clear enough so as to have removed any possible confusion in the minds of the jury as to whether or not it was probable that he might have been provoked as a result of the assault he alleged was given him by the fourth prosecution witness and some others. The appellant, in his evidence, said that the fourth prosecution witness and some others struck him. The learned trial judge summed-up the evidence to the jury as though the appellant’s allegation was that the provocation alleged to have been suffered was from the deceased. The result of this summing-up was that the appellant’s evidence on this score was discredited without proper consideration of its effect in the light of section 56 of Act 29. The appellant’s evidence tended to show that he might probably have been assaulted by some people in circumstances in which it was likely that he might have been provoked. There was no direction to the jury that even if the appellant’s story that he had been assaulted was discredited, it was reasonably probable having regard to the circumstances surrounding the killing. We think that the jury must have been misled, and having regard to the exclusion of the direction on the evidence as to the probability that the appellant might have been provoked by persons other than the deceased, the alternative verdict of manslaughter might not have been considered by the jury. In that regard the verdict of murder cannot be regarded as proper. In our view some injustice has resulted to the appellant from the irregular style of manner in which the trial judge directed the jury on the defence of provocation and its effect with reference to section 56 of Act 29.

[p.464] of [1966] GLR 454

The trial judge’s summing-up has also been attacked because it failed to direct the jury properly on the law of self-defence and its effect with the result that owing to the improper directions the jury were confused and as such came to a wrong conclusion. On this issue of self-defence the learned trial judge in his summing-up began by telling the jury that:

“If you see a man committing a crime, you have to stop him and if you stop him or arrest him, you are justified by the force you used in so doing even if he is killed. If a man comes to your house to steal and you chase him and he falls down and dies, you are preventing a crime and your action is justified. You are completely acquitted or found guilty of manslaughter and not of murder because you are defending your house, your property, and you have not formed the intention to kill . . . If you believe the story that he was defending himself and he flashed this knife and mistook the deceased to be one of those people beating him and therefore flashed his knife and accidentally cut the deceased, then you can find him guilty of manslaughter—only if you believe his story. If you believe his story that he was defending himself from those people who had been brutally assaulting him, and that the woman was accidentally hit by the knife when it was meant for those assaulting him, then you can find him guilty of manslaughter.” These passages in the learned trial judge’s summing-up though ostensibly dealing with the defence of self-defence would seem to be mixed up with or included also the defence of accident, and we would observe that according to the whole of the evidence the defence of accidental killing was the main defence set up by the appellant. It sometimes happens that in some of the cases which often come before this court the same type of evidence which has been adduced in support of a defence of provocation may be relied upon in whole or part as a basis for raising the alternative defence of self-defence in a murder trial. Where an accused person has testified that he has been assaulted and he in turn hit back at his assailant by way of necessary retaliation it is assumed that the defence of provocation if raised on the evidence becomes inextricably linked up with the defence of self-defence which must be left for the consideration by the jury, hence the obligation on the judge to direct them on the law relating to the said defence. We think that it was for that reason that the learned trial judge considered it his duty to direct the jury, though the evidence did not necessarily raise or sustain such a defence on the particular facts of the present case.

[p.465] of [1966] GLR 454

The use of force in defence of oneself is permitted under section 37 of Act 29 which reads as follows: “For the prevention of, or for the defence of himself or any other person against any crime, or for the suppression or dispersion of a riotous or unlawful assembly, a person may justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing.”

If this defence is raised by the evidence it must be established that the killing in the particular circumstances was in necessary self-defence. Accepting these principles, the question arises whether in this appeal the evidence led at the trial could successfully sustain a defence of self-defence, and also whether the learned trial judge gave a proper direction in regard thereto. An examination of the recorded evidence shows that nowhere does it appear that the act complained of against the appellant was in his self-defence and was directed to protect himself from death or some bodily injury intended towards him by the deceased. The evidence led by the prosecution clearly established that the accused had not acted out of an honest or mistaken belief that his life was in danger.

However, the learned trial judge continued his summing-up by telling the jury that:

“If you see a man committing a crime, you have to stop him and if you stop him or arrest him, you are justified by the force you used in so doing even if he is killed. If a man comes to your house to steal and you chase him and he falls down and dies, you are preventing a crime and your action is justified. You are completely acquitted or found guilty of manslaughter and not of murder, because you are defending your house, your property and you have not formed the intention to kill.”

There is no doubt in our view that the directions given by the judge to the jury on the law relating to self-defence in this case were confusing, wrong and difficult to understand, but we must at the same time point out that on the evidence as a whole the defence of self-defence was not open to the appellant so as to call for any necessary directions to the jury as to its incidence or effect. The appellant did not say that he intended his act to be self-defence because he was in reasonable apprehension of fear of danger to his life as a result of the alleged assault given him by persons not including the deceased. The learned trial judge was apparently in error when he proceeded to direct the jury that:

“If you believe the story that he was defending himself and he flashed this knife and he mistook the deceased to be one of

[p.466] of [1966] GLR 454 those people beating him and therefore flashed his knife and accidentally cut the deceased, then you can find him guilty of manslaughter—only if you believe his story.”

In the first place the legal effect of the defence of self-defence if it was successfully sustained by the evidence is complete acquittal of the charge of murder. The judge clearly misdirected the jury when he told them that if they believed the appellant’s story that he was defending himself, then he was guilty of manslaughter only. If the jury accepted the evidence that the killing by the appellant was in his self-defence that amounted to a plea that the killing was justified in law and the appellant was entitled to be acquitted of the charge of murder. It was therefore wrong for the judge to direct the jury that if they believed the evidence about the plea of self-defence the appellant was guilty of manslaughter only. The directions to the jury on the issue of self-defence, undoubtedly, were lacking in clarity and created some difficulty both in the language and the style, but as the nature of the evidence led did not actually suit such a defence in favour of the appellant we do not feel that any injustice had been caused to the appellant. The learned trial judge directed the jury that it was possible for them to return a verdict of complete acquittal on the charge of murder or find him guilty of manslaughter only, depending upon whether they thought that the appellant, though he might not have had the intention to kill did so because his life might have been in danger. In our opinion the case made out by the appellant was that he never intended to kill the deceased in particular or do her any grievous bodily harm. From the beginning to the end the entire case was conducted on the lines that the only question raised on the evidence was whether the killing of the deceased by the appellant was deliberate or accidental or provoked. On the facts as a whole, and having regard to the irregular manner in which the jury had been charged on the issue of self-defence which was not raised and which was not a necessary issue to be left open to the jury, we feel the misstatement to the jury of the legal position and its effect was not detrimental to the appellant, as in fact the consideration of this defence was not open to the appellant on the evidence. A further objection which was taken by counsel for the appellant to the trial judge’s summing-up was that the learned trial judge misdirected the jury with regard to the onus of proof particularly in connection with the defence of self-defence. After dealing with the issue of self-defence, which we have already pointed out was not clearly raised by the evidence, later in his summing-up the judge concluded his charge to the jury in this manner, “This is his case so [p.467] of [1966] GLR 454 it is for you to believe or disbelieve his story.” It has been submitted on behalf of the appellant that the effect of this direction was that it ruled out from the consideration by the jury the important issue that if upon a review of the whole of the evidence led in the case the circumstances were such that the story told by the appellant apart from being true, was reasonably probable or likely to be true, the appellant was on that account entitled to be acquitted because a reasonable doubt has thereby been cast upon the prosecution’s case.

The principle of the law is that whether the jury believe the accused’s story or not, they must be fully satisfied that the prosecution have affirmatively proved the case without leaving any reasonable doubt in their minds about the case which is supposed to be established against the accused, for in law there is no burden on the accused to establish his innocence. Generally, it is improper to approach a defence on the basis of requiring it to be shown to be true, thus placing the burden of proof on the accused. Regardless of whether a defence be proved to be true, an accused person is entitled to acquittal if his defence, in the view of the jury as revealed by the evidence, might reasonably be true. Various expressions or different styles have been used by several judges in directing juries on onus of proof in criminal cases, but no matter what form of expression is used in directing a jury on the issue of onus of proof, the important thing is that the judge should tell the jury clearly that the onus is always on the prosecution, and that before they convict they must be satisfied of the prisoner’s guilt: see R. v. Abisa Grunshie.2 In the summing-up which we have read, it is clear that the learned trial judge failed to tell the jury specifically that if upon a review of the whole evidence they did not feel convinced about the truth of the accused’s story, but if the circumstances were such that it was reasonably probable they should acquit; they were simply directed to convict if they did not believe the accused’s defence and to acquit if they believed him. In spite of this lack of any specific direction to the jury to the effect that even if they did not believe the appellant’s defence they should acquit, there, however, are several passages in the summing-up as a whole which pointed out clearly that the jury had been properly and sufficiently directed on whom the onus of proof lay.

At the commencement of the summing-up the judge dealt with the legal requirement relating to onus of proof in cases of murder, and after directing that a verdict of guilty could be returned only if the jury were satisfied of the guilt of the accused he told them further “If you are left in any position of doubt, reasonable doubt, as to the

[p.468] of [1966] GLR 454 truth of what happened, you will not convict.” He next dealt with the evidence led by the appellant at the trial and continued:

“He [meaning the accused] has called no witnesses and he is neither bound according to law to call witnesses nor to prove his innocence. The burden is always on the prosecution to prove the case against the accused beyond reasonable doubt; so if he has not called any witnesses you cannot say that he was not beaten by others . . . If you find a reasonable doubt—a reasonable doubt according to the evidence,—not what you yourself think is reasonable doubt, you can give the benefit of the doubt to the accused and find him not guilty altogether.” From this we find that the judge explained to the jury what had to be proved before murder was established against the appellant; he also made it clear to them where the burden of proof lay; the burden of proof merely means establishing a case beyond reasonable doubt, and the duty of the judge is merely to tell the jury that the burden of proving the defendant’s guilt rests throughout on the prosecution, the form or words used being held on several occasions to be immaterial.

Looking at the pattern of the summing-up, we are satisfied that on the whole the thread ran through it that the jury were told that they were not to convict unless they were satisfied that guilt was proved. In this case the learned trial judge dealt with the evidence called for the defence giving explanations which might reduce the crime of murder charged to a lesser offence of manslaughter or absolute acquittal; he also gave the directions on the explanation offered by the appellant, but the complaint made against his direction of the appellant’s explanation is that he failed to tell the jury specifically that if they were not sure whether the appellant’s explanation was true or false, they should acquit; we are of the view that the trial judge having told the jury about doubt alone, the jury could not have known that they had also to consider the alternatives in the case before coming to their conclusion, and we are satisfied they did not consider the probabilities of the alternative defence of provocation before returning the unanimous verdict against the appellant. In considering whether the failure to direct specifically can be said to amount to a misdirection, one must have regard to the nature of the evidence and the summing-up as a whole. As has already been pointed out, one of the defences which was raised on behalf of the appellant was self-defence, but the evidence on record did not sustain this defence, and the jury did not find they could accept the appellant’s alternative defence or feel any doubt about the happenings on the day of incident and the involvement of the appellant.

[p.469] of [1966] GLR 454

In our opinion, the direction of the trial judge on the onus of proof, fairly considered, was accurate and adequate. The manner in which the appellant was stated on the evidence to have slashed the deceased on the neck with the razor blade was fully described in the evidence of the prosecution witnesses who said they were present and saw what happened. Their account as to how they saw the appellant suddenly set upon the deceased and cut her throat coupled with the findings of the doctor who examined the injuries on the body of the deceased certainly must have convinced the jury that it was the appellant who caused the unlawful harm which eventually resulted in the death of the deceased. The appellant’s defence that he mistook the razor blade for a lighter which he carried on his person on the date of the incident, and that he used what in fact was razor blade merely with the intention of driving away his assailants would seem not to have convinced the jury as regards either its truth or probability when they unanimously rejected this defence of self-defence. There was clear evidence from which the fact of killing was established against the appellant. There was evidence that relations between the appellant and the deceased who was his aunt, were not cordial, owing to the latter’s insistence that the appellant be destooled as the odikro of the village because the appellant had violated custom. Obviously the appellant did not like it and bore some grudge against the deceased. There was evidence from which it could be inferred that the appellant ought to have known that the instrument he used could not have been a lighter, but a deadly weapon like a razor. Furthermore, there was the evidence that shortly after the deceased had been cut by the appellant the same razor which had been used in inflicting the fatal injuries was thrown away, and was discovered subsequently after a search. The necessary inference from the medical evidence is that the appellant must have pressed the instrument, namely, the razor, very hard on the throat of the deceased. This evidence of intention to kill is unequivocal and as a result the appellant’s explanation left no reasonable doubt in the minds of the jury that this was a clear case of murder. But we feel that notwithstanding the jury’s rejection of the defence of self-defence raised on behalf of the appellant, had they been properly instructed as to what they should consider with regard to the consequence of the defence of provocation under section 56 of Act 29 succeeding, or its probability, they might have returned a verdict of manslaughter instead. It is plain to all that some doubt which might probably have existed in their minds as to whether or not the killing was intentional or provoked had not been displaced by the prosecution, and as such, after drawing the proper inference from the proved facts, we must allow the appeal and set aside the verdict of murder.

[p.470] of [1966] GLR 454

The last point against the summing-up is contained in the following remarks by the judge when addressing the jury:

“If you believe the story that he was defending himself and he flashed this knife and he mistook the deceased to be one of those people beating him and therefore flashed his knife and accidentally cut the deceased, then you can find him guilty of manslaughter—only if you believe his story.”

A similar direction is also found in the concluding part of the summing-up. It is said that an injustice has been done because the summing-up failed to direct the jury on the meaning of accident. Throughout the whole of the case there was nothing to suggest from the evidence led or the nature of the wound inflicted on the deceased by the appellant that the cut on the neck of the deceased was inflicted negligently. The case which we understood the appellant tried to make at the trial was that by mistake he accidentally struck the deceased by reason of her juxtaposition to his assailants whom he intended to frighten away by brandishing at them what he believed was a lighter and not a razor blade. The evidence of the doctor who examined the wound inflicted by the appellant upon the deceased showed clearly that the injury on the neck of the deceased was not only received accidentally, but could not have been caused by a person who originally did not intend to cause death; or the necessary inference deducible from the evidence about the nature of the wound as revealed by the doctor’s examination left no doubt in the minds of the jury that the instrument used, namely, a razor blade, was pressed hard against the throat of the deceased. Surely, whoever inflicted a wound of such severity and with such considerable pressure on the throat of a human being must have intended death to result. In our opinion the provisions of section 12 of Act 29 do not apply to the circumstances of this case. We feel that if the injury on the neck had been caused solely by brandishing the knife or razor, the zigzag nature of any abrasions on the body would have been quite consistent with accident, and the contact would obviously have been excused.

The difficulty in the way of the defence at the trial was to find a plausible explanation for the use of what was believed to be a harmless instrument in causing such a deep cut on the throat of the deceased; no evidence was introduced to indicate the position in which the appellant was before he brandished what he mistakenly thought was a lighter, or how he was able to realise at the time that the deceased was so near the edge of the razor that it cut her so fatally on her neck with the result that she died later. At the close of the case for the prosecution it had been established that the appellant [p.471] of [1966] GLR 454 had an actual intent to kill the deceased, and after the various explanations given by the appellant as to the happenings that day, the final question which the jury had to decide was whether on the facts as a whole an actual intent to kill was established, and this depended on which version of the facts they felt obliged to accept. If on the whole the jury took the view that the appellant deliberately tried to injure the deceased with what he in fact knew, or ought to have known, was a razor blade, and not a lighter, the obvious inference for them to draw from the established facts was that he must have intended death to result; if, however, on the other hand, the jury took the view of the evidence that the appellant merely brandished or zigzagged what he believed was a lighter to drive off his attackers, or if they concluded that for any reason he did not realise that the deceased was near enough to be cut on the throat, the defence of accident could avail the appellant so as to warrant his acquittal of the charge of murder against him. There is no doubt in our minds that there was no evidence of accident; in our opinion there was ample evidence to go to the jury that the appellant inflicted the wound not accidentally. It is true that whatever may be the line of defence adopted by counsel for the appellant at the trial, the judge was bound to put to the jury such defences as appear to him properly on the evidence. At the trial the learned trial judge did not fail to direct the minds of the jury as to the possible defence of accident, though he did not appear to have dealt with it fully as he ought to have done. At the conclusion of his summing-up he remarked to the jury as follows:

“If you believe his story that he was defending himself from those people who had been brutally assaulting him, and that the woman was accidentally hit by the knife when it was meant for those assaulting him, then you can find him guilty of manslaughter.”

From this remark the trial judge appeared to have directed the jury to return a verdict of guilty of manslaughter if they were of the view on the facts that the killing was accidental or not intentional. Such a direction would be improper. In our opinion if there was any evidence of accidental killing, and whether the defence relied on it or not at the trial, the learned trial judge brought it sufficiently to the notice of the jury and left it open to them to accept or reject it depending upon whether they believed the evidence or not. All the matters which had been given in evidence, and which were worthy of consideration by the jury in respect of the possible defence of accidental killing were not withdrawn from the jury. If the learned trial judge had directed them that they should find that the killing was intentional, and not [p.472] of [1966] GLR 454 accidental or by a mistake, such a wrong direction would have been fatal.

The mere fact that the abundant evidence adduced at the close of the case for the prosecution tends to show the commission of a deliberate cut resulting in death does not absolve the trial judge from calling the jury’s attention if the evidence also had some bearing upon the question whether the act alleged to constitute the crime charged in the indictment was designed or accidental.

We consider that although the direction on the question of accident was not quite sufficient on the whole of the summing-up the jury could not have been misled if by mistake the razor cut the deceased accidentally. If the razor slashed the deceased on her throat accidentally while it was being brandished by the appellant it would be acquittal of murder. We are satisfied that after the judge’s direction if the jury had been satisfied that what happened was an accident or a possible mistake, and that there was no intention to injure the deceased, they would have returned a verdict of not guilty of murder. But on the facts the most that could be said was that the account of the prisoner contrasted with the version of the prosecution witnesses was difficult and unnatural to understand, and the jury after hearing all the facts were quite certain in their minds that it was quite clear that an accident could not have happened in the way suggested by the appellant. There was no misdirection as to the meaning of the defence of accident. We find there is no merit in this objection to the summing-up.

In conclusion it only remains to say that we have gone through all the objections raised against the various aspects of the learned trial judge’s summing-up to the jury and it is with some regret that this court is compelled to observe that the summing-up in this case contains a number of points which are open to the criticisms levied against it. The summing-up was inadequate and wrong on many points, and we find that the manifest errors not only went to the manner and style in which the charge was explained to the jury, but also to the root or foundation of the whole case. It is plain to us that the summing-up taken as a whole was unfortunately confusing, and the examples given to illustrate or explain away the possible effects of the wrong directions on certain points of law were not fair or clear so as to have removed any confusion in the minds of the jury. The irregularities or defects complained of in the summing-up on some aspects of the case were of such a serious nature that having regard to their cumulative effect they could not be said not to have caused a substantial miscarriage of justice.

[p.473] of [1966] GLR 454

In our opinion although this was a simple case which might have been clear to the jury, however, it is impossible to resist the conclusion that the jury’s minds were not entirely free from confusion or that they could have been misled by the irregularities pointed out against the summing-up. We are satisfied that had the jury considered the surrounding circumstances of the case, including the probability that the killing could have been done as a result of a sufficient provocation received by the appellant from persons other than the deceased, they might possibly have reached a different conclusion on the evidence. Having regard to the provisions of section 56 of Act 29 which we feel are applicable to the facts and circumstances of this case, the justice of the case in our opinion supports a verdict of manslaughter and not that of murder. Even if the appellant’s story that he was severely assaulted could not be believed, short of believing it the question whether the circumstances surrounding the killing were such that it was likely or reasonably probable that he might have received a sufficient provocation at the hands of his assailants was not considered by the jury as they were not sufficiently directed on that point. In our view there was just enough evidence led at the trial upon which the appellant could be convicted of manslaughter. In the result, this appeal is allowed, and we quash the conviction for murder. The sentence of death passed is set aside. We therefore substitute for the verdict of murder a verdict and conviction of manslaughter, and accordingly sentence the appellant to seven years’ imprisonment with hard labour with effect from date of conviction.

DECISION

Appeal allowed.

Sentence of murder reduced to manslaughter.

S. K. T.