AKURUGU FRAFRA v. THE STATE [1966] GLR 12

Division: SUPREME COURT

Date: 17 JANUARY 1966

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

CASES REFERRED TO

(1) R. v. Davidson (1934) 78 S.J. 821; 25 Cr.App.R. 21, C.C.A.

(2) R. v. Higgins (1829) 3 C. & P. 603; 172 E.R. 565.

(3) R. v. Steptoe (1830) 4 C. & P. 397; 172 E.R. 756.

(4) R. v. Southgate (Practice Note) [1963] 1 W.L.R. 809; 127 J.P. 538; 107 S.J. 516; [1963] 2 All E.R. 833; 47 Cr. App. R. 252, C.C.A.

[p.14] of [1966] GLR 12

(5) R. v. Kritz [1950] 1 K.B. 82; [1949] L.J.R. 1535; 65 T.L.R 505; 113 J.P. 449; 93 S.J. 648; [1949] 2 All E.R. 406; 33 Cr. App. R. 169, C.C.A.

NATURE OF PROCEEDINGS

APPEAL from the judgment of the Criminal Session of the High Court held at Tamale convicting the appellant of murder. The facts of the case are fully stated in the judgment of the court.

COUNSEL

Addo for the appellant.

J. N. K. Taylor, Senior State Attorney, for the respondent.

JUDGMENT OF AKAINYAH J.S.C.

Akainyah J.S.C. delivered the judgment of the court. The appellant was convicted at the Criminal Session of the High Court held at Tamale for the murder of his wife, Akani Frafra. Against his conviction he appealed on the following grounds:

“(1) Misdirection

(a) The learned judge failed in law to direct the jury that short of believing the story of the appellant if the story put forward would probably be true he was entitled to acquittal.

(b) The learned judge misdirected the jury by omitting to direct the jury that it is manslaughter and not murder if the accused would have been entitled to acquittal on the ground of self-defence except for the fact that in honestly defending himself, he used greater force than was reasonably necessary for his self-protection and in doing so killed his assailant, i.e. the deceased Akani Frafra. (R. v. Howe (1958) 32 A.L.R. 212; (1958) A.L.R. 753; 100 C.L.R. 448.)

(c) The learned judge also misdirected the jury by failing to put the defence adequately to the jury.

(2) The verdict is unreasonable and cannot be supported having regard to the evidence.” The case for the prosecution is that on 25 January 1964, at about 2 p.m. while his two younger brothers, Alevugia Frafra (the first prosecution witness) and Apibilla Frafra, the second prosecution witness, were sitting under a tree about 80 yards away from their house, the appellant went to them holding a blood-stained cutlass and told them that he had killed his wife, Akani Frafra, and that he was going to report to the police. As a result of the appellant’s report, the first prosecution witness ran into the house and there saw the body of the deceased lying on the ground in a pool of blood with several cutlass wounds. The first prosecution witness therefore

[p.15] of [1966] GLR 12 raised an alarm and another brother of theirs Ayambilla Frafra, the third prosecution witness, came to the house. The first prosecution witness then chased the appellant and found him at the gate of the Residency, the official residence of the Regional Commissioner for the Upper Region. At the Residency the appellant who was still holding the blood-stained cutlass told one escort police constable, Ali Busanga, the fourth prosecution witness, on duty there that he had killed his wife. Constable Ali Busanga asked someone to telephone to the police at Bolgatanga. Consequently Police Constable Clement Akyea Ansah, the sixth prosecution witness, arrived at the Residency and took the appellant and the cutlass away. The sixth prosecution witness then visited the house of the appellant accompanied by the first prosecution witness and saw the body of the deceased lying in a pool of blood with several cutlass wounds described by him. On 27 January 1964 Dr. V. Milevanovic performed a post-mortem examination on the deceased and submitted the following report (exhibit N.):

“Head and Neck: A deep incised wound approximately three inches in length is present on the left cheek. A wound commences at the angle of the mouth and proceeds upwards to about half an inch from the right ear. It has completely cut open the mouth on that side. A cutting wound about six inches of length is present below the thyroid cartilage. The wound appears to have been made by two strong blows from a long sharp edged weapon. The first blow appeared to have severed the trachea, both carotid arteries and both jugular veins. A second blow has further opened the wound severing the oesophagus and penetrating to the spinal column, but not cutting the latter. This wound proceeds upwards at the angle of about twenty degrees and starts from just behind the carotid arteries.

Another cut wound about three inches in length is on the left side of the chest, just below the left clavicle which does not penetrate into the thorax. Cause of death is excessive bleeding through large neck vessels.” On 28 January 1964 the appellant made a voluntary statement on caution (exhibit B) as follows: “It is correct that I killed my wife Akani Frafra on 25 January 1964 at about 2 p.m. at Katanga village in my house. I inflicted cutlass wounds on her until she died. The reasons why I killed my wife Akani Frafra are as follows: I married Akani Frafra at Tarkwa about five years ago from her father by name Agume Frafra who died about two years ago. I was at the time working

[p.16] of [1966] GLR 12 at Tarkwa mines as a blast boy. I stopped the work in a year’s time after I had married the deceased and went with her to my home town Katanga near Bolgatanga. After having spent one month at my home town with the deceased I went with her to the Obuasi mines where I was employed as blast boy. About two years ago the deceased gave birth to a male child at Katanga village. The latter joined me at Obuasi. I have been coming home on leave with her yearly and I used to go back with her. About two months ago I noticed that the deceased was flirting with one Atia Frafra a shovel boy at the Obuasi mines. I therefore started watching their movements if I could catch them but I was not successful. The deceased and Atia Frafra sent me to a jujuman so that I may go mad for them to marry; I overheard them because I live in the same house with Atia Frafra. As a result of their juju I went mad. A brother of mine by name Atanga Frafra a spanner boy of the Obuasi mines sent me home and when we got to Yeji with the deceased and my brother Atia Frafra and one Adongo Frafra came there and had wanted to take the deceased back to Obuasi but I refused and I was able to send her to my home town, Katanga. About three weeks ago one Atanna Frafra came to Katanga from Obuasi and she came and greeted me. I also went to her house and welcomed her. Whilst there she informed me that Atia Frafra and the deceased conspired to kill me last Christmas. I went and asked my wife the deceased but she denied the allegation, I asked her the next day and still she denied but later admitted and asked me what could I do to her. I became offended and the same day in the afternoon after all the inhabitants in my house had gone and remained the deceased and myself, I took my cutlass I slashed her several times until she died so that I also would be killed. Because it was on behalf of the deceased I was working hard and that I knew if they kill me she will go to marry another man which I do not want to happen. After I had killed her I reported to my brother by name Alevugia Frafra that I had killed my wife and showed the cutlass with which I killed her to him and further told him that I was going to report the incident to the police. I went to the Regional Commissioner’s Residency and at the gate I met a policeman and I gave the cutlass to him and reported to him that I had killed my wife and I was arrested. Later I was sent to Bolgatanga charge office. I got to the Residency at about 2.30 p.m.”

Seven months later when the appellant was cautioned by the committing circuit judge, he made the following statement:

[p.17] of [1966] GLR 12

“I was a blast-boy at the Obuasi (A.G.C.) mines. I was the senior blast-boy in my gang. I was hated by my fellow workers because of the position I held. Medicine was given to my wife by a co-worker in order that I should be killed. I had a particular dish in the house in which I ate; a hole was drilled under the dish. This was done in order to subdue me and kill me.

I fell ill and Atanga took me home. Those who conspired with my wife to take my life followed me; I saw them at Yeji. I had a calabash in which I kept my talisman (juju). I kept it in my wife’s bag. At Yeji this woman gave the juju to the conspirators. They carried the juju away with them. I complained to the police at Yeji. The police could not succeed in arresting them. When I reached home, I became better. I returned to Obuasi. As soon as I entered my room my sickness came back. I roamed about for two days and could not sleep in my room.

My brother heard of this and came to Obuasi to take me home. At home I lived peacefully with my wife but on the material date my wife put medicine into my food. When I saw this I went straightaway for a cutlass and I cut her to death.

I know very well that if I killed my wife I would also be killed. I cannot deny what I have done today. I killed my wife.”

Although counsel for the appellant did not object to the statement (exhibit B) going in, he cross-examined Constable Ansah on its contents. Among other things Constable Ansah said:

“It is not true that the accused told me he had had a mental break-down on a number of occasions. I cannot remember that accused told me he saw his wife putting poison in his food. He told me that his wife had been trying to kill him by poison. The accused told me he saw his wife flirting with Atia Frafra. The accused told me he killed his wife in order that she might not go and marry another person. It is not correct that the accused told me at the Residency that the wife attempted to put poison in his food. He did not tell me at any time that the wife attempted to put poison in his food. The accused did not tell me that his wife attacked him with a cutlass that when he held it from her she held his private parts. It is not true that when I read the statement to the accused, he objected to the portion that the deceased was flirting with Atia Frafra. I put down what the interpreter told me.”

Ayaka Frafra, the seventh prosecution witness, the interpreter of the appellant’s statement, testified that he interpreted the statement from Frafra into the Twi language and after the sixth prosecution [p.18] of [1966] GLR 12 witness had written it down it was read back to him in Twi and he, in turn, interpreted it to the appellant and he approved of it and thumbprinted it. In answer to a question by the foreman of the jury the witness said, “The accused did not reject any part of the statement which was read to him. He said that was all he had to say.” In cross-examination, the seventh prosecution witness said also:

“When I was a little boy I was staying at Kumasi. I returned home about two years ago. The accused told me that he became mad and was taken home. He said he became mad a second time. He said he was being cured at the time of this incident. I don’t know what he was suffering from. The accused said his wife had attempted to poison him. He said he had seen the wife putting poison in his food.”

In the two statements made by the appellant he made no allegation that at the material time the deceased held his private parts nor did his counsel put it to Constable Ali Busanga, the fourth prosecution witness, that he removed poison from his (the appellant’s) pocket at the Residency as alleged by the appellant in court. His brothers Alevugia Frafra and Apibilla Frafra who gave evidence for the prosecution denied that the appellant ever suffered from any mental disease.

The case for the defence consists of the sole evidence of the appellant and it is as follows: “When I was at Obuasi I was not feeling well. I was getting mad. I was brought home by one Atanga Frafra. We were seven people staying in one compound, with two women. My wife was among. I came back home with my wife and Atanga and his wife. When he brought me home I was cured and I returned again to Obuasi. When I got to Obuasi, the sickness came on again the next day. A brother of mine from my town came to see what was happening. His name is Ania. He is at our village. When he came to Obuasi he found me going about. He then took me back. When I came I went to a village with Abudulai for medicine to cure myself. When we came back home my wife prepared food for me and she put some medicine in it. I caught her. He stayed in our house for eight days before this incident happened. I was given some medicine which I smeared over my head. I felt the same. I became a bit normal for three weeks. When I caught my wife I asked her what she had put in my food.

She told me it was only salt. I did not agree that it was only salt because in my country we do not put salt in the particular food. I saw a paper folded under her foot. I held her hand and questioned her whether that was salt she had in the paper. I asked her to taste the food. She refused. I asked her what she intended [p.19] of [1966] GLR 12 me to do with the food. I stooped down to take the food. She said I should leave it. When I put it down she told me it was true there was medicine in it. I asked her who had given her the medicine. She said nobody had given it to her. I asked her whether it was her father or her mother who had given her the medicine. She said nobody gave her the medicine. I then stooped to take the food. She took the cutlass and tried to cut me. I took it from her. She held my private parts and I used the cutlass on her. I ran away from the house to the police. I met only one policeman and reported to him that I had used the cutlass in killing my wife. The policeman was at the gate of the Regional Commissioner’s Residency. He searched me. He removed the medicine in my pocket. The fourth prosecution witness is the policeman. He telephoned to the police station. Police came and they went and took the dead body. They left me with two policemen about a mile from our house. They returned with the deceased and took me with them to Bolgatanga Police Station. I was put in cells for three days before I was called to make my statement. I was asked to sit down and I was asked to say how I killed my wife. I was questioned by the C.I.D. man. I was alone with him. When I was trying to explain, he said I should wait, he was going to call somebody to witness. He came back with a boy. He asked the boy if he knew me. He said yes. He asked the boy why I killed my wife. He asked me and I told him what happened in Frafra. The seventh prosecution witness was the one who interpreted. Since I married my wife for five years we have never quarrelled.

Cross-examined by state attorney

By madness I mean when a person has got some work to do and he doesn’t go and do it and he roams about, that is what I mean. I cut my wife with the cutlass. I was sorry. That was why I went to the police and reported, because I won’t kill my wife and run away. I have never seen a doctor about my sickness. We have a doctor at the mines. Since I joined the mines I have never been sick. I have been sick only once. My wife held my private parts when I took the cutlass from her.

No re-examination

To foreman of the jury: I was with seven blast-boys. They did not agree with me. One of them did not agree with me. He is a Frafra man. When Abudulai took me to the medicine man my brother arrived the next day. I did not quarrel with my wife when we were at Obuasi. I understood the statement when [p.20] of [1966] GLR 12 it was read to me but there were certain things I did not agree with.

To court: I killed my wife because she wanted to kill me. I knew at the time what I was doing.” It was submitted in this court by counsel for the appellant that the learned trial judge failed to give proper directions to the jury on material issues involved in the case and in particular, he failed to direct them on the evidence given by the appellant in his defence and the matters raised therein—the said matters, he submitted, are reasonably probable and that if the jury had been properly directed that short of believing the appellant they should consider whether the explanation is reasonably probable and that if they do then manslaughter would be the proper verdict, they might have returned the alternative verdict of guilty only of manslaughter. Learned counsel argued that since the seventh prosecution witness was not only a witness to the making of the statement by the appellant to police Constable Ansah, the sixth prosecution witness, but was also the interpreter of the said statement, the trial judge should have given careful direction to the jury on the difference between the evidence given by this witness and the contents of the cautioned statement with particular reference to the absence therefrom of the most important allegation made by the appellant in court that the deceased caught hold of and pulled him by his testicles or private parts and that it was during the course of this that he dealt the deceased the fatal blows. Counsel submitted that if the jury had been so directed they most probably would have returned a verdict of manslaughter. Learned senior state attorney for the prosecution was of the view that while the summing-up was not all that it could have been, the cautioned statement made voluntarily by the appellant while the facts were fresh in his memory shows quite clearly that the allegation of assault made by the appellant in court for the first time was an afterthought and that the verdict of guilty of murder was properly found by the jury and that there has been no miscarriage of justice.

It is quite clear from the record of proceedings that at the close of the case, the appellant had given three reasons for killing the deceased. First, he said that one Atana Frafra came from Obuasi and told him that one Atia Frafra and the deceased had conspired to kill him last Christmas. He questioned the deceased but she denied the allegation. In his own words, the appellant said he became offended and in the afternoon of the same day when all the inmates of the house had gone out leaving only the deceased and himself, he took his cutlass and cut the deceased several times until she died. Secondly, he said that on the material date he saw the deceased put [p.21] of [1966] GLR 12 poison into his food and he went straightaway for a cutlass and cut the deceased to death. Thirdly and lastly, he said that the deceased put some medicine into his food and when he questioned her, she took a cutlass and tried to cut him. He took the cutlass away from her but she held his private parts so he used the cutlass on her.

In his summing-up the learned trial judge after explaining the definitions of “intent” and “harm” directed the jury as follows:

“Reasonable doubt

Must use common sense—bring to the problem the same attitude of mind as you would bring to your business affairs. Must be satisfied from the evidence that you feel sure the accused is guilty of the offence. Must leave the court satisfied that you have done the right thing—not merely hoping so. On the other hand must not shirk responsibilities. You don’t acquit because of a wild improbable doubt. The prosecution must prove its case.

Facts

No direct eye witness by prosecution as to how deceased came by death. The first prosecution witness and the second were sitting under a tree behind their house when accused came with a cutlass. The accused told them he was going to the police station because he had killed his wife. They ran to the house and saw the deceased lying in a pool of blood, dead. The accused went to the Residency of the Regional Commissioner and reported to Ali Busanga, the policeman there, that he had killed his wife. He handed the blood-stained cutlass to the policeman. Ali Busanga contacted the police station and Police Constable Ansah came to the Residency where Ali Busanga handed the accused and the cutlass over to him. Medical evidence read. Statement of accused read.

Defence

The accused was not feeling well while at Obuasi. He was getting mad. Brought home and cured. Went back to Obuasi and sickness came on again next day. Accused taken to his village for medicine to cure himself. His wife prepared food for accused and put medicine in it. The accused caught her and asked what she had put in food. She said it was salt. The accused disagreed. He saw paper folded under her foot, held her hand and questioned her. He asked her to taste the food. She refused. The accused stooped down to take the food. She said he should leave it. She admitted there was medicine in it. She said nobody gave it to her. The accused stooped down to take the food. She took cutlass and tried to cut the accused. The accused took the [p.22] of [1966] GLR 12 cutlass from her. She held his private parts and the accused used the cutlass on her and ran away to the police. Defence of insanity raised. Burden on accused to establish defence. Section 27 of Act 29 read and explained. Burden not as heavy as in crime, same as in civil cases. Where is the defence? Only the statement of the accused. The medical evidence of the first defence witness did not support the accused. The accused said he knew at the time what he was doing. He killed deceased because she wanted to kill him. Defence of self-defence raised. Section 37 of Act 29 dealt with. Consider—it was deceased who attacked accused. Must be satisfied that deceased attacked accused with what accused had every reason to believe was a definite intention to kill. Consider whether accused was justified in killing deceased with cutlass when deceased was disarmed. Consider whether the accused may well have thought, and indeed not without reason, that he was engaged in a life and death fight with deceased, to the extent that if he could not kill the deceased he would certainly be killed by the deceased.

Even though there was an intention to kill, the killing might be justifiable if it was the only way to avoid being killed. Consider whether or not he could run as far as the fierceness of the attack would permit him. If the assailant was so fierce as not to allow him to yield a step without manifest danger to his life or enormous bodily harm, and then in his defence if there is no other way of saving his life, he may kill the assailant instantly.

Defence of provocation raised. Sections 52, 53, 54 of Act 29 dealt with. Provocation is some act or series of acts done by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind. Provocation may reduce the offence to manslaughter. The test to be applied is whether the provocation was sufficient to deprive a reasonable, man of his self-control, not whether it was sufficient to deprive of his self-control, the particular person charged. The instrument with which the homicide was effected must be taken into consideration. If with a deadly weapon, the provocation must be great indeed to reduce the offence to one of manslaughter. If with a weapon or other instrument not likely or intended to produce death, a lesser degree of provocation will be sufficient. [p.23] of [1966] GLR 12

Alternatives

(1) If satisfied that the accused inflicted wounds which caused death, but that from the weapon used there was no intention to cause death—guilty of manslaughter.

(2) If satisfied that accused inflicted wounds which caused death but that he acted under provocation—guilty of manslaughter.

(3) If satisfied that accused inflicted wounds which caused death but that he acted in self-defence—not guilty.

(4) If satisfied that accused inflicted wounds which caused death and that from the weapon used he intended to cause death—guilty of murder.

(5) If not satisfied that prosecution has proved its case—not guilty.”

We are of the opinion that learned counsel for the appellant’s adverse criticisms of the summing-up are misconceived. The appellant’s contention that he had said that the deceased held his private parts was put to Constable Ansah and denied by him but it was never put to Ayaka Frafra—the interpreter. Nor did the appellant make that allegation before the committing circuit judge. On that occasion he said, “On the material date my wife put medicine into my food. When I saw this I went straight away for a cutlass. I cut her to death. I know very well that if I killed my wife I would also be killed. I cannot deny what I have done today. I killed my wife.”

Although the appellant’s statement was proved to have been made voluntarily and its contents were duly confirmed by the interpreter and admitted in evidence without any objection by counsel for the appellant the learned trial judge completely ignored the said statement and did not comment on it throughout his summing-up. The statement contained the following confession:

(a) that the appellant had seen his wife, the deceased, flirting with Atia Frafra, and

(b) that he had watched unsuccessfully hoping to catch them,

(c) that on the fateful day one Atana Frafra came from Obuasi and told him that Atia Frafra and the deceased had conspired to kill him last Christmas,

(d) that he became offended and in the afternoon of the same day when all but he and the deceased had left the house he took his cutlass and inflicted the fatal blows on the deceased.

Since the appellant did not retract the confession in the two statements, exhibits B and M, the learned judge should have told the jury that the statement made by the appellant a few days after his arrest and the statutory statement were in conflict with his testimony [p.24] of [1966] GLR 12 in court, and that they were entitled to accept one and reject the others. He should have commented on the failure of the appellant’s counsel to put it to Constable Ali Busanga that he had removed poison from the appellant’s pocket. We do not think that the learned judge’s omission so to do prejudiced the case for the appellant in any way. The omission rather strengthened the case for the appellant. Upon a review of the evidence as a whole, we find nothing more which ought to have been said in favour of the appellant which the learned judge failed to say. The appellant does not deny that he made the two cautioned statements to the police and the committing circuit judge respectively. He did not retract the confession either. His complaint is that at some time which is not clear on the record he said also that he had seen his wife put poison in his food. The seventh prosecution witness, the interpreter, admitted that the appellant said so, but as we have pointed out, the record is not clear as to whether or not the appellant said so in the course of making his statement to the police. In any case that issue is relatively unimportant because the appellant says that he was provoked by the assault and battery alleged to have been committed on him by the deceased and that was the only reason why he killed her. It seems to us therefore that even if the story in respect of poison is true, the circumstances are such that the killing can never be reduced to manslaughter.

It was contended by counsel for the appellant that the admission by the seventh prosecution witness that the appellant told him that he had seen his wife putting poison in his food and it having been found that that piece of information was not recorded in exhibit B, the whole of the appellant’s statement was thereby rendered unreliable and could not properly be considered by the jury. We are unable to accept that submission. It would be asking too much to expect an interpreter to remember word for word what he interpreted some eight months earlier. Counsel for the appellant should have asked the seventh prosecution witness to state clearly where and when the additional statement was made by the appellant. It is settled law that statements made by the accused persons through interpreters are inadmissible as evidence unless the alleged statements are established or confirmed by the persons acting as interpreters. But in our view, it would be stretching the law too far so as to ridicule or make nonsense of the administration of the criminal law to hold that if an interpreter confirms that a statement was made by the accused person voluntarily and admits also that the accused said something else but did not retract what he had said before and that the new matter is not in the statement, then the [p.25] of [1966] GLR 12 statement necessarily becomes unreliable and ought not to be considered by the jury. We shall be laying down a dangerous proposition, were we to hold that in spite of the proof that the statement (exhibit B) was made by the appellant voluntarily coupled with the fact that he did not retract the confession nor did counsel for the appellant put a single question to the interpreter suggesting that the appellant did say that the deceased caught hold of and pulled his private parts, the answer given by the interpreter that the appellant told him that he saw his wife put poison in his food simpliciter necessarily rendered the statement unreliable and its weight negligible and therefore it ought not to be considered by the jury. Human nature being what it is, it is unlikely that people, not necessarily illiterate people but educated people as well, who act as interpreters can memorise word for word what they interpreted to the police some months earlier. We think that it is enough if the interpreter confirms the statement made by the accused. To ignore a statement duly confirmed upon the flimsy ground that the interpreter remembered after the lapse of eight months that the accused also said something else which is not in the statement would have the effect of throwing out almost every statement made by an accused person through an interpreter in any other case. In this case the learned judge put the poison story to the jury but as jurors are entitled to believe a portion of an accused person’s statement against him and disbelieve the portion in his favour they disbelieved the appellant. We hold therefore that the appellant’s statement was properly considered by the jury: see R. v. Davidson,1 R. v. Higgins2 and R. v. Steptoe.3 In R. v. Southgate (Practice Note),4 the Court of Criminal Appeal in England approved as commendable and desirable a course taken by counsel for the accused at the trial by drawing the attention of the learned judge to a misdirection in the summing-up. In this case we think that counsel for the appellant should have drawn the attention of the judge to that part of the summing-up which, in his view, was erroneous or inadequate. There is neither a formula for summing-up nor can any hard and fast rule be laid down. If the effect of a summing-up is to convey to the jury what is their duty, it is enough. In R. v. Kritz,5 Lord Goddard C.J. said:

“In our opinion, there was a perfectly fair and a perfectly proper summing-up by the learned Common Sergeant in this case. We do not think that any jury could have been left in any [p.26] of [1966] GLR 12 doubt as to what was their duty.

Juries, in my humble opinion, are not such fools as they are very often thought to be. They know when they have been a short time in the jury box that it is the duty of the prosecution to prove the case and that they have to be fully and thoroughly satisfied, and they very seldom want guidance on that point. It is right that they should be reminded that the onus is on the prosecution all the way through the case. It is right that they should be reminded in a criminal case that they must be fully satisfied of the guilt of the accused person and should not find a verdict against him unless they feel sure. That is the direction which I myself constantly give to juries when I am at assizes or at the Old Bailey. When once a judge begins to use the words ‘reasonable doubt’ and tries to explain what is reasonable doubt and what is not, he is much more likely to confuse them than if he tells them in plain language: ‘It is the duty of the prosecution to satisfy you of the man’s guilt’. I am not saying that the learned Common Sergeant used that formula of words, nor am I saying that it is to be preferred before all others, but what I do say is, and I am sure I can say it with the full assent of my brethren, that is not the actual formula used that matters, but the effect of the summing-up, and if the effect of the summing-up is to convey to the jury what is their duty, that is enough.

On the other part of the case, the complaints with regard to the lack of this point in the summing-up, there is nothing we need say. We do not find that there is anything substantial missed from the summing-up which could have affected the minds of the jury.”

As the learned Lord Chief Justice said in the Kritz6 case cited above:

“It would be a great misfortune, in criminal cases especially, if the accuracy or inaccuracy of a summing-up were to depend upon whether or not the judge or the chairman had used a particular formula of words… It is not the particular formula of words that matters; it is the effect of summing-up. If the jury are charged whether in one set of words or in another and are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, then whether the learned judge uses one form of language or whether he uses another is neither here nor there.”

There is ample evidence on record which justifies the inference that the appellant’s allegation of assault made against the deceased

[p.27] of [1966] GLR 12 is an afterthought and was therefore properly rejected by the jury.

For these reasons, we are of the opinion that there is no merit in the appeal and it is dismissed accordingly. DECISION

Appeal dismissed.