Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: MILLS-ODOI, ACOLATSE AND BRUCE-LYLE JJSC
JUDGMENT OF MILLS-ODOI JSC
Mills-Odoi JSC delivered the judgment of the court. The appellant was charged with the murder of one Salifu Dagarti and was convicted of this crime on 7 April 1964, at the Criminal Session of the High Court, Accra, at a trial before Siriboe J. (as he then was) upon the verdict of a jury. He appealed to this court and it is not without significance that his notice of appeal raised the questions with which this court has been concerned, but which were merely a repetition, with some elaboration, of the defence which he raised at the trial.
The case for the prosecution was put forward primarily by four eye-witnesses, namely, Andrews Kwaku Botwey (fifth prosecution witness), Abdulai Sissala (hereinafter referred to as Abdulai), Emmanuel Narter Dosoo (eighth prosecution witness) and Dickson Yaw Fofie (eleventh prosecution witness) and was as follows: On 2 January 1964, Abdulai was in charge of four police constables, including the appellant, who were scheduled for duty at Flagstaff House from 6 a.m. to 2 p.m. The eleventh prosecution witness was one of the other three police constables. Abdulai and his gang of four constables were supplied with .303 rifle ammunition and each carried on him, while on duty, a .303 rifle. The appellant had five rounds, and his rifle bore registration number 2310 on the butt. Abdulai and the eleventh prosecution witness had ten each, while the other two constables had five each, making a total of 35 rounds.
On the early morning of the fateful day, Abdulai and his companions reported for duty at Flagstaff House. The appellant was one of them. Shortly afterwards, the President of the Republic of Ghana (hereinafter shortly referred to as the “President”) also arrived at Flagstaff House and went to his office. About 1 p.m. the same day the President came out of the office with the deceased, who was at the time the head of the security officers, and both started walking towards the former’s car which was parked in front of the residency. Suddenly, there was the report of a gun. No one then knew who fired it. The President and the deceased turned round to find out what had happened and as they did not see the one who had fired the gun they turned again and continued walking to the car.
Abdulai who also heard the report of the gun rushed to the direction of the President’s office and saw the President and the deceased walking together towards the residency. He also saw the appellant carrying his rifle in a “port arm” position and aiming it at the President and the deceased. He fired it; but no one was injured. The deceased then turned round and saw the appellant pointing his rifle at their direction. He then raised both hands slightly above his shoulder, walked slowly towards the appellant and took cover behind a tree. A few seconds later, the deceased moved and hid behind another tree and, as he bent down and was almost ready to advance forward towards the appellant, presumably to arrest him, the latter fired his rifle at him on the left side of the head and he fell to the ground and died almost immediately. Aroused by the first and second shots, the fifth prosecution witness peeped through the bars of a gate which opens into the yard of the residency and saw the appellant fire the fatal shot at the deceased. The eighth and eleventh prosecution witnesses were also eye-witnesses to the shooting by the appellant which killed the deceased. The appellant was arrested shortly afterwards.
The injury caused to the deceased was the deadly and mortal wound which the pathologist (the sixth prosecution witness) who performed a post-mortem examination described in the course of his evidence at the trial as follows:
“. . . there was an extreme injury to the left side of the head. All the bones of this side of the skull were broken into fragments about 1” or 2” across; and some pieces were missing. The scalp was torn from just above the left eye-brow to the back of the head. The resulting laceration or tear was ragged. The brain on the left side was protruding through the injury.
In front of this parietal prominence, there was a small hole in the scalp measuring 6 mm. in diameter which appear to be an entry point of the bullet. There was no definite exit point and there were small pieces of lead between the scalp and the back of the skull . .
The examination of the rest of the body showed that death had been instantaneous. There were no scorched marks or powder marks around the bullet’s entry hole, which means that the shot was fired from more than ten yards.”
According to the pathologist, death was due to severe laceration of the brain and severe fragmentation of the skull due to a missile consistent with being a bullet.
When the appellant was arrested and taken into custody he made two statements, the first on 4 January 1964 (admitted without any objection as exhibit J) and the other on 10 January 1964 (also admitted in evidence at the trial and marked exhibit K). In both statements he stated that his sole desire was to take away the life of the President and he did not at any time form any intention to kill the deceased.
In his earlier statement, exhibit J, the appellant said he was a party to a plot designed to kill the President and that it was in furtherance of that design, unlawful as it was, that he was posted on duty at Flagstaff House under the guise of a constable charged with the responsibility of protecting the life of the President. The appellant in that statement said:
“On 1 January, the President came to the office. I was on duty but I did not see him when he came to the office. It was on the second that I saw him. He entered the office, and when he was about to go I tried to do the job. The distance between me and the President was not far; and if I meant to aim at him properly I would not miss, but I just held the gun any how and fired. I fired thrice. I remember running towards the President and his Aide-de-Camp, Mr. Salifu Dagarti was then holding the President by the hand. He was trying to drag him into the car. I fired the third time again but I missed the President. I was all the time aiming at the President, so my mind was on nobody else. But in fact it was not my mind to kill him; if I meant to kill him only one shot of mine would have killed him.”
The second statement exhibit K, is substantially a repetition of the first statement, exhibit J, in so far as matters relevant to the instant case are concerned. It contains the following crucial passage:
“Then I was there really too the President was out from the office before I think between 12 and 1 p.m. When he was coming he took the lead followed by Salifu. I had then loaded my gun so his back was facing me, so I raised my gun; I aimed at him but I think Mr. Salifu Dagarti saw me, and I think he shouted and he held him and they were all running towards the car. I aimed at him. I fired but I missed him. The second shot again I fired but I missed him. I remember chasing after the President. I fired again and missed them.
So that in fact in reality what happened again after the third shot, anyway, I remember one of the bullets got out from the magazine, but what happened the next time I can’t tell, whether it was the President who first arrested me or somebody else I can’t tell.”
It is clear that the case for the prosecution, if believed, established a strong case of deliberate unprovoked murder.
As against that, the appellant in his defence gave evidence that on the morning of the 2 January 1964, he loaded his rifle with the five rounds of .303 ammunition which was supplied to him and got himself ready to shoot and kill the President. About 1 p.m. he saw the President and the deceased come out of the former’s office and while they were walking abreast towards the residency and were within firing range he fired his rifle at the President; but the bullet missed him. A few seconds later, he fired again at him; but it also missed him. The appellant deposed at the trial that:
“At this stage Salifu Dagarti ran back to the President, and stood in front of him, with his hands and legs opened astride, and was telling me to fire at him instead of the President. All the time Salifu Dagarti spoke to me in English. Salifu then began to recite some incantations in a very strange language. I do not know whether it was meant to invoke the spirits of his powers, against this attack, or it was meant for something else. I did not want to fire at him Salifu Dagarti, so I paused for some few seconds. At this stage he thought I had taken his words to stop, so he pushed the President forward, who was running towards the residency and he Salifu
Dagarti was coming towards me. He was walking upright but slowly towards me. Having seen that my target which was the President was left alone for me, I raised my rifle again to aim at him. At this stage Salifu Dagarti turned to the left and fled. I fired the third shot but it also missed the President who was still running towards the residency. I was too busy to think of Salifu Dagarti because he was not in my focus. I was cocking the fourth round into the rifle chamber when it sprang out and dropped to the ground.”
The appellant’s contention was that the .303 ammunition which dropped to the ground at Flagstaff Housewhile he was firing at the President could have been picked by someone who was in possession of a rifle and used in killing the deceased. He centred his suspicion on Abdulai, because the latter in his evidence at the trial deposed that he stood at some distance behind the appellant and saw him fire the second and third shots. Indeed, the appellant was emphatic that he fired three shots from his rifle; he was also certain, beyond doubt, that he heard only three shots fired at Flagstaff House that day.
This defence of the appellant unsupported by any other evidence, considered against the evidence of the four eye-witnesses which was corroborated by the undisputed fact of the injury to the deceased resulting in his death, was rejected by the jury.
The appellant has appealed to this court against his conviction under fourteen grounds of appeal which could conveniently be summarised, and which learned counsel for the appellant argued under the following four headings:
(1) That the appellant did not dispute the fact that he fired at the President but that it would be illogical and unrational to presume that because the deceased followed the President at the time he must be held responsible for his death.
(2) That there were conflicts in the evidence of the prosecution witnesses, fifth prosecution witness (Andrews Kwaku Botwey) and eleventh prosecution witness (Dickson Yaw Fofie), which created doubt in the case for the prosecution, the benefit of which should have been given to appellant.
(3) That one of the five rounds of the .303 ammunition issued to the appellant on the 2 January 1964, which dropped to the ground at Flagstaff House when appellant was firing at the President had not been accounted for. It could have been used by someone in killing the deceased.
(4) That the evidence of eleventh prosecution witness was at variance with the statement he made on 2 January 1964, and on 3 January 1964 (exhibits C and D). He was not a witness of truth and no weight should have been attached to his evidence.”
The record of proceedings makes it abundantly clear that the ground of appeal above referred to are repetitions of the questions raised by the appellant at the trial for the consideration of the court and the jury. However, leave was given to learned counsel for the appellant, Mr. Afreh, to argue them.
In developing the first ground Mr. Afreh stated that at the time the third shot was fired by the appellant the deceased was nowhere near the President and it was therefore impossible to conjecture that that shot killed the deceased. Learned counsel for the appellant urged vehemently that it was someone else and not the appellant who had killed the deceased.
It is apparent from an examination of the evidence of the prosecution witnesses, who were present at Flagstaff House on the day of the incident, that there were only three shots fired. Indeed the appellant himself admitted in his two statements, exhibits J and K, that he fired three shots while he was on duty at Flagstaff House on 2 January 1964. At the trial the appellant confessed to the court and to the jury that he fired three shots from his rifle; furthermore that he heard only three shots fired at that crucial moment, thereby corroborating the testimony of the prosecution witnesses. It was not disputed that the deceased was at Flagstaff House on the eventful day, nor was it denied that he and the President were together
when the first and second shots were fired. The evidence of the pathologist established conclusively that the deceased died as a result of an injury he received from a bullet. Shortly after the incident, Abdulai and his gang of police constables, except the appellant, accounted satisfactorily for all the ammunition supplied to them. The appellant did not account for the ammunition which he received. In our opinion, the chain of circumstances above stated does not only lead to the one and only one irresistible conclusion that the appellant was the person who killed the deceased, but it is also inconsistent with any other rational conclusion. And this, supported by the direct evidence of the four eye-witnesses to the shooting, made the case for the prosecution unshakeable.
From a question put by the appellant to Andrews Kwaku Botwey (fifth prosecution witness), that, “I put to you that the President was ahead of the deceased and I was aiming at the President and not the deceased,” followed by the following passage in his address to the jury: “My Lord, I am not disputing the fact that I fired shots at the President on that day. But it would be irrational to presume that because Salifu Dargarti (deceased) followed him that day, I must be held responsible for his death,” it would seem that the appellant was labouring under a misapprehension that because his aim was to kill the President, if his bullet hit and killed the deceased by mistake “it would be illogical to hold him responsible for the murder of the deceased.” such a contention is wrong and untenable and cannot be countenanced by our courts. As Darling J. said in R. v. Gross1:
“If a person feloniously fires at another in such circumstances as would make the killing of that other person murder, but by accident hits and kills a third person whom he never intended to hit at all, that is murder. That has been laid down over and over again; there is plenty of authority for it.”
This view of the law is also clearly set out in section 11 (5) of the Criminal Code, 1960,2 which reads as follows:
“If a person does an act with intent to kill, . . . and his act happens to take effect, whether completely or incompletely, against a different person, he shall be liable to be tried and punished as if his intent has been directed against that different person . . .”
Thus the learned judge directed the minds of the jury in his charge to them when he summed up the law, on this vital issue, in the following words:
“Gentlemen, I must direct you here on what is the law. If a man deliberately shoots at A and misses him, but kills B, this is murder. But if he fires at A in such circumstances as would make the killing of A manslaughter, and by accident kills B whom he never intended to kill at all, he is guilty of manslaughter.”
The summing-up above referred to is commendably unimpeachable; learned counsel for the appellant was unable to point to any portion of it as faulty. This ground of appeal therefore falls.
In arguing grounds two, three, four, five, eight and ten together, which we have summarised under one head, namely, that there were conflicts in the evidence of the prosecution witnesses which raised doubt, the benefit of which should have been given to the appellant, Mr. Afreh referred us to a portion of the evidence of Andrews Kwaku Botwey (fifth prosecution witness) which seemed to be in conflict with a passage in the evidence of Dickson Yaw Fofie (eleventh prosecution witness). However when asked by the court, “Whether the learned judge did not direct the minds of the jury to the conflicts in the evidence of the prosecution witnesses?” Mr. Afreh’s reply was, “He did direct them as such; but I wish to refer to these conflicts.”
The conflicts complained of by counsel for the appellant were in respect of a narrow dispute which arose over a non-controversial matter and did not affect the crucial issue for the determination of the jury, namely whether or not the appellant was the person who killed the deceased.
Be that as it may, the jury were amply directed by the learned judge on the conflicts in the evidence of the prosecution witnesses, and they, having had the advantage of seeing and hearing those witnesses, chose to believe them; and there was evidence upon which the jury could act. In the case of R. v. McGrath,3 Lord Goddard C.J. (as he then was) in delivering the judgment of the Court of Criminal Appeal, stated, inter alia, the following:
“Where there is evidence on which a jury can act and there has been a proper direction to the jury this court cannot substitute itself for the jury and re-try the case. That is not our function. If we took any other attitude, it would strike at the very root of trial by jury.”
Turning now to the third ground, namely, that the bullet which dropped from the appellant’s rifle at Flagstaff House, “could have been used in killing the deceased,” which ground in our opinion is devoid of any substance, it is sufficient to say, from the following question put to the appellant at the trial, “You remember that a live bullet was produced in court as having been found on the ground at Flagstaff House. Is that not yours which dropped?” and his reply thereto, “Yes, your Lordship, that was mine” that the bullet in question was satisfactorily accounted for.
The last ground of appeal, like the previous grounds already referred to, was based solely on questions of fact and contained matters which were put before the jury, we have no doubt, with force by the appellant who conducted his own defence, and equally favourably to the appellant by the learned judge in his summing-up. Upon that, the jury, having heard the evidence on both sides on the narrow issue of fact came to the conclusion that they believed the case put forward by the prosecution and convicted the appellant of the murder of the deceased. Learned counsel for the appellant has not raised in this appeal any question of law for our consideration and it is impossible for this court to say, in the words of the statute, that the verdict to which the jury came was unreasonable or could not be supported having regard to the evidence.
On the merits there is no substance in the appeal. Indeed, the evidence as a whole is such that there can be no doubt that the appellant killed the deceased in circumstances in which no reasonable jury could have arrived at any other conclusion but the verdict in this case.
In fine, the appeal is dismissed.
DECISION
Appeal dismissed.
N. A. Y.
