ATSU v. THE REPUBLIC [1968] GLR 716

DIVISION: COURT OF APPEAL

DATE: 29 JULY 1968

BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.

NATURE OF PROCEEDINGS

APPEAL against conviction for murder. The facts are fully set out in the judgment of the court.

COUNSEL

M. R. Atadika for the appellant.

S. S. Okunor, Principal State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.A.

Ollennu J.A. delivered the judgment of the court. The appellant was convicted of murder by the High Court, Kumasi, upon the verdict of a jury.

The facts of the case are very simple; briefly, they are as follows: The appellant, a mason by trade, lived in Atonsu village near Asukwa, Kumasi. On 7 December 1965, a complaint was made to the police at Asukwa against the appellant by a man, not called as a witness by the prosecution, and who, from the cross-examination of the appellant, appears to be a co-tenant with the appellant, that the appellant had threatened to kill him. Pursuant to that report the deceased, a police constable, went to the house where the appellant lived and invited him to go with him to the police station; he met the appellant sitting on a mat on the floor

[p.718] of [1968] GLR 716 in his room and asked him to get up and go with him; the appellant refused. The first prosecution witness who also entered the room told the appellant to comply with the request of the police. The appellant then told the two of them to get out of his room. The policeman thereupon told the appellant that he had seen a hammer in his room and would take it to the police station as the complainant had alleged that he the appellant had threatened to kill him. The constable and the first prosecution witness then started to go out of the room. The first prosecution witness was the first to step out of the room when suddenly he heard behind him a sound as if something had been struck; he turned round and saw the door closed. He pushed it open, and saw the constable lying on the floor, and the appellant standing with a hammer in his hand ready to strike. The first prosecution witness then jumped onto the verandah of the house and ran to the police station where he reported the incident; but before he arrived there, the man who had made the complaint and who apparently was also present at the scene, had already got there and reported that the appellant had killed the constable. A carpenter, the second prosecution witness, who was going towards the house of the appellant just about that time, rushed to the house in consequence of a noise he heard. On arrival he found the constable lying on the verandah in front of the appellant’s room, and the appellant striking the constable with a hammer.

He turned round to go, but the appellant struck him on the back of his head with the hammer and he immediately lost consciousness; he regained consciousness in hospital after a week.

The incident drew a crowd to the scene; policemen ran to the spot, they asked who the man was that had hit the constable, the appellant who stood facing the crowd still holding the hammer and showing no concern answered that he was the man. One of the policemen, the third prosecution witness, grabbed him and threw him down and struggled with him, the appellant beating him with the hammer during the struggle. Three other constables came to the assistance of the third prosecution witness, and they overpowered the appellant, put him in a vehicle and took him to the police station; when being put in the vehicle, the appellant was hitting his head against it. The injured constable died the following day, 8 December 1965. The appellant was charged with murder on the same day, i.e. 8 December 1965, and cautioned, and he was alleged to have made a statement, the full text of which is as follows: “It is correct that I have done bad. I have nothing to say again.”

For some unexplained reason, the case was not committed until 24 August 1966. On that occasion the appellant, in answer to the

[p.719] of [1968] GLR 716 statutory question stated:

“I know nothing about this case. This is all I want to say. It was at the prison yard I learnt about the charge. I did not know how it happened. I am unable to say whether or not I was present at the time of the offence.”

The appellant appeared before the High Court for the first time on 5 September 1966. On that day the learned judge who presided made the following record:

“Accused appears to be queer. He sings in the dock and appears to be dancing the Ewe dance.

Plea not taken.

Order: Let accused be sent to the psychiatrist at Mental Hospital Accra, for investigation as to his mental condition and treatment. Remanded in custody. Adjourned to next session.”

It came up again on 2 November 1966 and the following record was made:

“Mr. C. K. Amoah appears for the Republic. Accused absent — is still at the Mental Hospital for observation. Mr. C. K. Amoah for the Republic says that no medical report has been sent from the Mental Hospital.

Court: Let this case stand adjourned to the next criminal session.”

The trial began on 7 March 1967, the only evidence taken on that day was that of a psychiatrist called for the defence, and this was at 1.15 p.m. This had to be done because the case could not come on that day, and the witness had had to travel all the way from Accra specially to give his evidence.

As a general rule, evidence from the defence is not taken until the court has held that the prosecution has established a prima facie case. This is based upon the well-known principle that it is the prosecution which has an onus to prove the guilt of the person they accuse of an offence, and not the accused who should establish his innocence, the accused should therefore not show his hands until the need arises. But the practice here adopted, though unusual, is not unknown, it is useful practice resorted to in very exceptional circumstances to avoid inconvenience and embarrassment in the case of a formal witness and a witness about whom there is no controversy. Again, when a defendant gives evidence the correct practice is that he should do so before any other witness who is called on his behalf: see R. v. [p.720] of [1968] GLR 716

Smith (No. 2) [1968] Crim.L.R. 264, C.A.; R. v. Morrison (1911) 6 Cr.App.R. 159, C.C.A.; R. v. Olsen (1898) 62 J.P. 777 and Briscoe v. Briscoe [1966] 1 All E.R. 465, D.C.

In the present case the practice was expedient; the defence is insanity, the onus of establishing it, though slight, is upon the defence, thus by the evidence of insanity given by the psychiatrist, the prosecution were given a chance, if they could, to rebut the same.

The relevant parts of the evidence of the psychiatrist are as follows:

“On the findings during observation we concluded that at the time we admitted him in hospital he was mentally disturbed.

I would agree that such mental patient would have lucid periods he could remember things about himself and his family. Some may not know what has happened during illness; it depends on the degree of disturbance; some may have amnesia—things are blotted out from memory. The information at my disposal was not sufficient. The accused was in hospital for twelve weeks and the observation proves he was mentally ill. This mental illness is likely to occur. Under this illness he may act and would believe he was doing the right thing when in fact he is doing wrong. Cross-examination: The attack of such nature may last one year, two weeks or three weeks and it may even last for years; that is one episode.”

Each of the two witnesses called for the prosecution who had known the appellant before the incident, i.e. the first and second prosecution witnesses, had known him only for two months and not more; the second prosecution witness deposed that he had no opportunity within those two months to observe him carefully.

There were two persons who could have given evidence of the behaviour of the appellant immediately preceding the incident, these are the co-tenant of the appellant who lodged the complaint that the appellant had threatened to kill him, and his wife who also, according to the sixth prosecution witness, the detective sergeant in charge of the police station, rushed to the police station to report what had happened to the constable. The evidence which the appellant gave in his defence is exactly the same as is contained in the statutory statement to the committing magistrate. A portion of his evidence is as follows:

“I do not remember how long I lived at Atonsu, I do not know where I was living on 7 December 1965, I know a policeman — I do not remember that a policeman was killed in my house; I do not remember seeing the sixth prosecution witness in my [p.721] of [1968] GLR 716 house; I do not remember seeing the third and fourth prosecution witnesses in my house. I was brought from the prisons to this court. I do not remember quarrelling with anybody in my house. I was working at A. Lang Ltd. I cannot remember the last time I went to work. I know the first prosecution witness he lives at Atonsu; he is a goldsmith and worked in my house; I do not remember that anything happened between me and the first prosecution witness. Cross-examination: There were many other tenants living in my house. There was another tenant called Kodwo Nsowah. I do not remember any quarrel between him and myself. I do not remember talking to this Kodwo Nsowah during the first week of December or on 7 December 1965. I know the second prosecution witness. I have been seeing him at Atonsu. I do not remember going to the police station.” In his summing-up to the jury the learned trial judge stated in unambiguous terms that the defence is one of insanity, and gave them directions on the law relating to that defence with such clarity that is unexceptionable. In spite of those directions the jury returned a verdict of guilty of murder instead of the special verdict prescribed under section 137 of the Criminal Procedure Code, 1960 (Act 30). The main ground of appeal argued is that the verdict is unreasonable and cannot be supported having regard to the evidence. It was submitted that upon the evidence as a whole, particularly the uncontradicted medical evidence, the only verdict which it is reasonable to return in all the circumstances is the special verdict provided in section 137 of the Criminal Procedure Code, 1960 (Act 30). This submission raises the question of the powers of the Court of Appeal to set aside a verdict on the ground that it is unreasonable having regard to the evidence. There appears to have been some misconception as to the powers of the Court of Appeal in a case of a verdict based purely upon facts. A passage usually relied upon in some cases is the dicta of Viscount Simon L.C. in Watt (or Thomas) v. Thomas [1947] 1 All E.R. 582 at pp. 583-584, H.L. where he said:

“an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached on that evidence should stand, but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide, but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony [p.722] of [1968] GLR 716 by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight.”

As to Ghanaian cases, reference may also be made to Okine v. Commissioner of Police, Court of Appeal, 27 October 1959, unreported where the court said: “We desire to state at the outset that it is not for this court to re-try a criminal case in which a conviction has been based upon evidence which the trial court was entitled to accept.” There again the important words are “evidence which the trial court was entitled to accept.” But what happens if the evidence is not conflicting and points to the direction opposite to the verdict, or where the evidence being conflicting, one side is supported or corroborated by independent evidence while the other stands uncorroborated, and the trial court accepts the uncorroborated evidence in preference to the corroborated without giving good reason for his preference, or where the evidence is such that a court or jury is not entitled to accept, that is, it is such evidence that no reasonable judge or jury would be expected to accept? We find guidance in this matter in R. v. Dent (1943) 29 Cr.App. R. 120 at pp. 124-125, C.C.A.; we quote the relevant portion in extenso: “Ordinarily speaking, there can be no doubt that, where the jury have been given proper warning, and notwithstanding that warning have convicted, this Court will not interfere; but it is sometimes advisable to go back beyond the decided cases to the Act of Parliament which constitutes this Court, and which is, after all, the final authority upon the principle which should guide this Court. By section 4 (1) of the Criminal Appeal Act, 1907, it is provided: ‘The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence’. That is the direction to this Court in the statute by which it is constituted, that it shall allow the appeal if it thinks that the verdict of the jury should be set aside on either of those two grounds. If further exposition of the principle be needed, it can be found in BASKERVILLE, 12 Cr.App.R. 81; [1916] 2 K.B. 658. That was a judgment of a Court consisting of the then Lord Chief Justice (Lord Reading), Scrutton, Avory, Rowlatt and Atkin, JJ. In that case the necessity for corroboration arose from the fact [p.723] of [1968] GLR 716 that the witnesses primarily relied upon by the Crown were accomplices; but, whatever be the ground upon which corroboration is required, we think that the principle is the same. In that case the Lord Chief Justice said as follows (12 Cr.App.R., at p. 88; [1916] 2 K.B., at p. 663): ‘If after the proper caution by the Judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accomplice’s testimony was uncorroborated. It can but rarely happen that the jury would convict in such circumstances. In considering whether or not the conviction should stand, this Court will review all the facts of the case, and bear in mind that the jury had the opportunity of hearing and seeing the witnesses when giving their testimony. But this Court, in the exercise of its powers, will quash a conviction even when the Judge has given to the jury the warning or advice above mentioned if this Court, after considering all the circumstances of the case, thinks the verdict unreasonable, or that it cannot be supported having regard to the evidence’. Then the learned Lord Chief Justice cited the statutory provision which I read a few moments ago. It is upon that principle that the Court proposes to act in the present case. The Court which heard the application for leave to appeal said that this matter required very careful consideration. Having given that consideration to this case, this Court does think that, notwithstanding that proper warning or advice given to the jury, the verdict of the jury on the exceptional circumstances of this case was unreasonable, and was a verdict which cannot be supported having regard to the evidence.” We find the mandatory provisions of section 4 (1) of Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), to be almost identical in our law; for the Courts Decree, 1966 (N.L.C.D. 84), para. 13 (1) says specifically:

“The Court of Appeal … shall allow the appeal if it considers that the verdict ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. . . “ and we are bound to give effect to it.

Now, apart altogether from the general powers given to the court in paragraph 13 (1) of the Decree to quash conviction on the ground that the verdict is unreasonable and cannot be supported having regard to the evidence, there is the special power given to the court in paragraph 14 (4) which says:

[p.724] of [1968] GLR 716

“If on any appeal it appears to the Court of Appeal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or omission made so as not to be responsible according to law for his actions, the Court may quash the sentence passed at the trial… .”

That paragraph gives the court power to form its own opinion on the evidence as to the insanity of a convicted person, and if its opinion should differ from that found by the trial court, to substitute its own opinion for that formed by the trial court. These are the principles which should be applied to this case.

As earlier pointed out, there was no motive at all for the commission of this offence; the deceased constable and the first prosecution witness who had entered the room of the appellant were leaving the room quietly when they were told by the appellant to do so, and the appellant was also sitting down on the floor on a mat, when as it would appear the appellant suddenly jumped up, picked up a hammer struck the constable, then pounced upon and struck the second prosecution witness who came on the scene and spoke peacefully to him. When the report was made, and the fourth prosecution witness a police constable rushed to the scene, he met a crowd gathered, while the appellant stood looking at the crowd as if nothing had happened, and the third and the fourth prosecution witnesses, two constables, rushed on and overpowered him and were putting him in a vehicle to take him to the police station, the appellant was hitting his head against the vehicle. It was obvious to the High Court judge upon the appellant’s first appearance before him, that the appellant was queer, and he was obliged to order him to be sent to the Mental Hospital for “investigation as to his mental condition and treatment.”

The evidence of the psychiatrist proved that the appellant had been mentally ill, that it was after treatment for six weeks that he began to come to himself, and that he had had to remain under continuous treatment for twelve weeks before he became fit to plead. That medical evidence stood uncontradicted.

As to the behaviour of the appellant prior to the incident, there was hardly any evidence, the two witnesses who knew him prior to the date of the offence had each known him for barely two months, but had not had the opportunity “to observe him carefully during the two months.” There was one person, at least, who could have given positive evidence of the behaviour of the appellant leading to the invitation of the police to the house; this is the man who was the co-tenant with the appellant and who reported to the police that the [p.725] of [1968] GLR 716 appellant had threatened to kill him. The evidence of that man could have been of a great assistance to the court in determining the state of mind of the appellant at the time of the commission of the offence. But he was not called, and there is no evidence that he was not available. There was also the wife of that man, she too, according, to the sixth prosecution witness, the detective sergeant, rushed to the police station to report what had happened to the constable. But she too was not called; and no reason was given why neither of those two persons was called. Thus there was nothing to challenge the medical evidence and it is unreasonable that such evidence should be disregarded by the jury for them to arrive at a verdict which is contradictory to the unchallenged medical evidence. In a similar case of R. v. Matheson (1958) 42 Cr.App.R. 145 at p. 151, C.C.A. Lord Goddard C.J. said:

“While it has often been emphasised, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors’ evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be true verdict in accordance with the evidence’.” Applying that principle, in State v. Zabrama [1960] G.L.R. 205 at p. 211, S.C. this court said:

“In the present case there was no evidence other than that given by the doctor as to the state of the appellant’s mind when he committed the act with which he was charged. We are of opinion therefore that the rejection of Dr. Forster’s testimony is not in accordance with the evidence.”

What the court is saying there in short is, that the verdict is unreasonable and cannot be supported having regard to the medical evidence. There is also the statutory statement made by the appellant at his committal that:

“I know nothing about this case. This is all I want to say. It was at the prison yard I learnt about the charge. I did not know how it happened. I am unable to say whether or not I was present at the time.”

And that exactly is the substance of his evidence before the court.

[p.726] of [1968] GLR 716

Although the learned judge did not tell the jury specifically not to ignore the medical evidence, his summing-up to them on the evidence as to insanity was quite fair. He said:

“I will refresh your memory by reading what Dr. Adomako said.

You must relate the doctor’s finding to what the accused says and to his general behaviour. The doctor says that at the time he saw the accused he was mentally ill.

Gentlemen, you have heard the other witnesses on the behaviour of the accused that day and before. Kwabena Owusu and Apenuvor had only known the accused for two months during which time he appeared to be normal. You may consider that a period of two months is not long enough to form an opinion about a man of whom they knew practically nothing.” And he concluded the summing-up in the following words:

“The doctor’s evidence shows that the accused was mentally disturbed at the time he was taken to the hospital; he responded to treatment. The doctor further says that the type of illness is characterised by a behaviour which makes the accused not to appreciate that he is doing the wrong thing and would think he is doing the right thing.

Gentlemen, this is a strong piece of evidence and you must consider it carefully, the accused himself says he did not remember the events; we have very little information of his background. It may very well be that at the time of the incident the disease has started manifesting itself without the knowledge of the accused. If the accused considered he was justified in killing the policeman though in fact he was not so justified then he does not (a) know if he was doing wrong, (b) appreciate the consequences of his act. He himself cannot remember and the doctor says that when the accused is disturbed to a great degree he may not remember. If you consider it probable that at the time of the offence the accused was suffering from this disease then he has discharged the onus and you are entitled to bring the special verdict of guilty but insane.” Nevertheless the jury returned a verdict of guilty of murder. Surely that verdict of the jury which is contrary to the unchallenged evidence cannot but be described in the language of paragraph 13 (1) of N.L.C.D. 84, as “unreasonable and cannot be supported having regard to the evidence.” That is the opinion we have formed. Therefore by virtue of the said paragraph 13 (1) of N.L.C.D. 84, we should have allowed the appeal generally. But since the opinion we have formed is that the appellant was guilty of the offence but was insane [p.727] of [1968] GLR 716 at the time he committed it, and was therefore not responsible according to law for his action, we must apply the provisions of paragraph 14 of N.L.C.D. 84. We, therefore, by virtue of that paragraph, quash the sentence of death passed at the trial, and order that the appellant be kept in custody as a criminal lunatic at the Mental Hospital, Accra, until the pleasure of the National Liberation Council is known.

DECISION

Appeal allowed. Sentence quashed.

Special verdict substituted.

S. K. T.