COURT OF APPEAL, ACCRA
Date: 7 JUNE 1974
JIAGGE JA
NATURE OF PROCEEDINGS
APPEAL against the judgment of the High Court, Accra, convicting the appellant on a charge of murder. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Dr. S. Ephson for the appellant.
Asamoah, Senior State Attorney, for the respondent.
JUDGMENT OF JIAGGE JA
Jiagge J.A. delivered the judgment of the court. The appellant was tried before Charles Crabbe J. and a jury at the Assize Court, Accra. He was convicted of murder and he appealed to this court against his conviction. Having heard counsel on his behalf, this court allowed his appeal, reduced the conviction for murder to a conviction for manslaughter, and postponed giving reasons to a later date. The reasons will now be given.
In the course of a dispute between the appellant’s sister and her husband, the deceased, the appellant asked the deceased to pack his things and leave the house. The deceased and his wife, who was the appellant’s sister, had lived in the appellant’s mother’s house for a period of two years before the events that formed the substance of the crime in question.
The deceased insisted that before he left the house his wife and his two children by a previous marriage, should pack their belongings and that his children should leave the house with him.
The appellant went and brought his sister, the wife of the deceased, and she and the children started to pack their belongings. The deceased suddenly slashed his wife two or three times with a cutlass and she fell on his daughter. One Kofi Asirifi who was present threw a stick at the deceased and he fell down. Asirifi pushed a barrel towards the deceased, the barrel hit him and the cutlass fell from his hand. The appellant picked up the cutlass and slashed the deceased three or four times. Asirifi asked the appellant to stop attacking the deceased and in reply the appellant said that the deceased had killed his sister. The appellant, however, stopped and went away weeping. The deceased died later as a result of the injuries inflicted on him by the appellant.
Some of the facts were not in dispute at the trial. The appellant however claimed that he threw the cutlass under pressure when the deceased made him breathless by pressing tight on his throat, and that he slashed the deceased once in self-defence to save his own life. The medical officer, however, found on the body of the deceased, three very severe cuts which produced haemorrhage and the shock that killed the victim.
The only ground of appeal worth consideration was that the learned trial judge failed to direct the jury adequately on the plea of provocation, and that if the jury had been properly directed they would have found the appellant guilty of manslaughter and not of murder.
[p.105] of [1974] 2 GLR 103
In summing up to the jury, the learned trial judge reviewed the main body of the evidence in some detail. He read to the jury the whole of section 52 of the Criminal Code, 1960 (Act 29), on manslaughter and made comments on each section. He then proceeded to illustrate what he called “matters which amount to extreme provocation” by giving examples which, in view of the facts before the court, were not only irrelevant but most confusing.
In the present case, the violent attacks of the deceased on the appellant’s sister, inflicting severe wounds on her in his presence, was evidence of provocation fit for the consideration of the jury. The burden of proof on the prosecution was to satisfy the jury that the killing was unprovoked. If the evidence raised in the minds of the jury a reasonable doubt whether it was provoked or not, the proper verdict would be for manslaughter.
However, the judge failed to direct the jury on any of these issues. Instead he said, “the mere fact that a person is killing your sister and you belong to a matrilineal society does not mean that you are justified to kill because he is killing your sister.” This direction, in our view, was erroneous in relation to the facts of the case. The violence of the deceased did go to extreme lengths when he savagely slashed his wife with a cutlass in the presence of her brother, the appellant. There was evidence which, if accepted by the jury, would amount to provocation. The learned judge failed in his duty to direct the jury adequately on such evidence. The question whether such provocation was sufficient or not to reduce murder to manslaughter was a matter for the jury to decide. The fact that the appellant was from “a matrilineal society” and his successors would be the children of his sister, who was being slashed with a cutlass in his presence, was certainly a relevant element in deciding the degree of provocation and in our view the learned trial judge erred in withdrawing from the jury this material element.
No one can delve into the minds of the jury and it is a matter of speculation what exactly the mental processes of the jury in fact were, and what they would have been if they had been properly directed on the issue of provocation. They might, however, have found the plea of provocation plausible, when the appellant, a man from the matrilineal family system, saw the deceased slash down with a cutlass, the sister in whom his hope of securing his successor lay. If the jury had been adequately directed they might have found the evidence on provocation sufficient to reduce the offence from murder to man- slaughter.
However, this was not the only misdirection in the learned judge’s summing-up. The learned judge directed the jury as follows:
“It is your duty to consider first and foremost the evidence given by the prosecution and weigh that evidence; and when you come to the conclusion in your minds that the accused has done something, then, and only then, you would be permitted to consider the evidence which he gave in this court; having considered the evidence of the prosecution if you are satisfied in your minds that an offence has been
[p.106] of [1974] 2 GLR 103
committed and has been committed by the accused then you will have to consider the evidence which has been adduced on behalf of the accused.”
If the jury were directed to satisfy themselves on the evidence of the prosecution alone that the accused had committed the offence charged then, one may ask with due respect, what is the point of hearing or considering the defence at all? The jury acting on these directions might convict the appellant without hearing his defence.
It is obvious that the learned judge was greatly confused himself. After hearing the prosecution, a decision is normally taken by the court whether or not a case has been made for the defence to answer. If no case is made out then, of course, the accused is acquitted. If a case is made then he must be heard in his defence. The issue here is merely whether or not there is sufficient evidence to support the charge.
This, however, is quite different from the function of the jury in deciding whether or not the appellant, on the evidence as a whole, committed the offence charged. In arriving at their decision, the jury must have heard, considered and weighed the facts of the defence with those of the prosecution. The learned judge misdirected himself on the functions of the judge and the jury in these matters. That was a misdirection which could have resulted in great injustice to the appellant.
For these reasons we allowed the appeal, set aside the conviction for murder, and substituted a conviction for manslaughter. The appellant at the time of the hearing of his appeal had already been in custody for six years. In view of the facts of the case we ordered his immediate release.
DECISION
Conviction for manslaughter substituted.
Order accordingly.
S.Y.B.B.
