Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN, MILLS-ODOI AND BLAY JJSC
JUDGMENT OF MILLS-ODOI JSC
Mills-Odoi JSC delivered the judgment of the court. The appellant was charged with murdering his wife and was convicted of this crime at the criminal session of the High Court held at Ho at a trial before Siriboe J. and a jury on 3 March 1963.
The case for the prosecution, so far as it is relevant to this appeal, is that the deceased who was a dealer in locally manufactured gin, lived with her parents at Blekusu, a village in the Volta Region. The appellant also lived in the same village, but in a different house not far from the deceased’s. On 1 January 1963, at about 7 p.m. the appellant went to the house of his wife whom he saw in her kitchen carrying one of her twin babies who was about six months old. At the entrance of the kitchen sat the deceased’s cousin, the second prosecution witness, who was enjoying himself over a glass of gin which the deceased had given him. In a manner characteristic of the custom of villagers, both the deceased and the second prosecution
witness heartily welcomed the appellant and offered him a chair at the entrance of the kitchen. Shortly afterwards, the second prosecution witness emptied his glass and took leave of the deceased and the appellant.
As soon as the second prosecution witness walked to a distance about eight yards from the entrance of the deceased’s house, he heard the voice of the appellant saying that he would show the deceased something. “Immediately after this,” said the second prosecution witness in his evidence at the trial, “I heard the fall of a person followed by an alarm saying ‘Moses has killed me! Moses has killed me!’ It came from the deceased’s house and the noise was that of the deceased, which I could plainly recognise because I am conversant with it. I ran back to the house and saw the accused and the deceased in the bathroom. The accused was sitting on the deceased and was stabbing her with a knife. The moon was on at the time and there was also a light in the house by the fence of the bathroom. On seeing that, I rushed and held the accused in order to remove him away from the deceased, but the accused was too heavy for me. I therefore shouted or raised an alarm that Moses has killed Lisarshie. I raised this alarm several times.”
The deceased’s aunt, Nyorgborshie Binortsor the third prosecution witness, who lived in the same compound as the deceased, heard the alarm and rushed to the scene. She saw the deceased, the appellant, the second prosecution witness and the baby in the deceased’s bathroom. The appellant was sitting on the deceased and was stabbing her with a knife. The second prosecution witness had grabbed the appellant and was trying to lift him from the deceased who lay on the ground motionless; but he found appellant too heavy for him. Nyorgborshie took the baby from the ground and raised an alarm calling for people to
come to the aid of the second prosecution witness and the deceased. At that juncture the appellant got up and started running towards the kitchen and the second prosecution witness then ran after him, got hold of him in the kitchen and started to struggle with him over the knife.
Following the alarm raised by Nyorgborshie, Henry Binortsor the fifth prosecution witness arrived at the scene and with his assistance the second prosecution witness overpowered the appellant and succeeded in taking the knife away from him. Other persons who also rushed to the deceased’s house included Bosu Ayidoho the sixth prosecution witness, the deceased’s half-brother. He saw the deceased lying in a pool of blood in the bathroom, and the appellant was well in the grip of the second prosecution witness and the third prosecution witness. As a result of a report he received from the second prosecution witness he quickly ran back to his house and returned shortly afterwards with a rope which he, the second prosecution witness and the fifth prosecution witness, used in tying up the appellant who was later taken to Keta and handed over to the police. The deceased was rushed to Keta hospital the same evening in a state of unconsciousness; she died about an hour later.
The evidence of the second prosecution witness and the third prosecution witness clearly showed that the appellant inflicted several wounds on the deceased. The medical evidence about the wounds was unchallenged and it can be summarised as follows: There were several cut wounds; seven of these were superficial, namely, one on the left hand, one on the right hand, one on the external side of the right arm and four on the anterior side of the chest. There was another wound about three inches long and one inch deep from the left anterior side of the neck to the right. There was yet another wound two inches long but not too deep on the right side of the forehead through the right of the orbicular region and the cheek. In all there were nine cut wounds on the body of the deceased, indicating the savage manner in which the deceased was cut. In the opinion of the medical officer who performed the post-mortem examination “the cause of death was due to acute anaemia, due to the haemorrhage and the consequent shock resulting from these wounds described.”
The story told by the appellant at the trial does not throw any light on how the deceased came by her grave injuries. His evidence contained the following passage: “. . . the second prosecution witness said today is a new year’s day, nobody is going to stay in another’s
house for too long. He then held the chair on which I was sitting, pulled it and I fell. Immediately I fell and while on the ground, the deceased took a piece of firewood nearby and hit my left leg just below the knee. Then came the fifth and sixth prosecution witnesses and altogether with the second prosecution witness and the deceased started to beat me up with their hands⎯slapping me on the ear, in the course of which I rolled on to firewood in hearth. I was bleeding from my nose and my lips which were cut. As they were beating me so mercilessly I remembered I had a small black pen knife in my shorts’ pocket, so I took it. Because I was
so tired and wanted a way out from them, I thrust the pen knife which eventually hit the deceased who left the spot and went to the bathroom and lay down. All this time I was on the ground and was being beaten by them⎯the second prosecution witness, the fifth prosecution witness and the sixth prosecution witness—who continued to beat me.”
It is not suggested that the appellant did not inflict any injury at all on the deceased. He admitted throwing a knife at the deceased which injured her and resulted in her death. Self-defence and provocation were therefore the matters chiefly stressed by the defence, the appellant’s story being obviously more consistent with the former. Both issues were left to the jury and they found the appellant guilty of murder.
Against the conviction he has appealed to this court.
The only point raised in support of this appeal is that the learned judge failed to direct the jury adequately on the defence of self-defence or provocation put forward by the appellant at the trial; the argument of learned counsel for the appellant being that the learned judge did not relate the evidence in the case to the law. A careful examination of the summing-up of the learned judge on the issues of self-defence and provocation which is criticised in this court shows that the learned judge proceeded with considerable care. He drew the attention of the jury to the law and read and explained to them every section of the Criminal Code, 1960,1 that could assist them in their deliberation, particularly section 37 which deals with the defence of self-defence and sections 52 and 53 which relate to matters which amount to provocation and which may cause intentional homicide to be reduced to manslaughter. He then proceeded to deal with, and to comment upon, the evidence on both sides and he left the matter to them in the following concluding direction: “If you accept the defence story then your duty will be to return a verdict of not guilty because accused would have done so in self-defence. On the other hand, if you have any reasonable doubt as to whether the accused intentionally caused the death of the deceased, or did so in self-defence, your verdict will still be that of not guilty.”
Pausing here for a moment, we think that the learned judge misdirected the jury in his charge to them to return a verdict of not guilty, that is to say, not guilty of any offence, if they entertained any doubt as to whether the appellant intentionally caused the death of the deceased. It is erroneous to say that absence of any sort of intent to kill exonerates the appellant from all criminal responsibilities. That the appellant killed the deceased was not in issue. But if, at the time of the commission of the act, he had no intention to kill, or if the jury were in doubt as to whether the necessary intention to kill existed at the material time, then the appellant could be adjudged guilty not of murder but of a lesser offence, for example, manslaughter. It is worthy of note that the misdirection in this case has inured to the benefit of the appellant.
The learned judge then continued:
“You may return a verdict of guilty of manslaughter if upon consideration of the whole evidence you are satisfied that there are matters of partial excuse or extreme provocation which reduce the offence from murder to manslaughter. It is only where upon consideration of the whole evidence you are fully convinced that all the elements establishing the offence of murder as explained to you have been proved beyond all reasonable doubt, that your verdict should be that of guilty of murder.”
Except for the portion of the summing-up referred to supra which, as already stated above inures to the benefit of the appellant, the rest of the summing-up is unimpeachable.
This case was decided to a large extent on the credibility of witnesses and there was clear evidence on the part of the prosecution to support the verdict. The learned judge dealt with the matter in a way highly favourable to the defence and the verdict of the jury could only mean that they accepted the prosecution’s story. The evidence for the prosecution was capable of acceptance or rejection by the jury and they having accepted it, it is not within our province to interfere with it. There is nothing to bring this case within the words of section 15 of the Courts Act, 1960,2 which provides: “that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a decision of any question of law or that on any ground there was a miscarriage of justice.” “It must be understood.” said Lord Alvestone C.J. in R. v. Williamson,3 “that we are not here to re-try the case where there was evidence proper to be left to the jury upon which they could come to the conclusion at which they have arrived . . . Here there was evidence on both sides, and it is impossible to say that the verdict is one at which the jury might not properly have arrived.”
See also R. v. Gray,4 and Azumah v. The King.5
In the light of these matters, the conclusion at which we have arrived is that there is sufficient evidence to support the verdict of the jury. The appeal is therefore dismissed.
DECISION
Appeal dismissed
S.A.B.
