Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant was convicted of murder by the High Court, Kumasi, upon the verdict of a jury. The victim of the offence was one Akua Nyarko a wife of the appellant. There are three issues of the marriage, the last of whom was three months old at the date of the offence, which was 22 January 1963.
There is no dispute that the deceased died from multiple wounds inflicted upon her by the appellant. The appellant was a teacher at the Catholic School, Nintin, Mampong, Ashanti.
The version of the prosecution as to the circumstances in which the said fatal wounds were inflicted is briefly as follows: differences had arisen between the appellant and the deceased, caused by the failure of the appellant to maintain the wife and the children; the matter appeared to have come to a head when the deceased gave birth to the last child and the appellant failed to provide her with the gifts and necessaries, which by custom, a husband should give to his wife when he gets a new baby. Complaints by the deceased in this regard, against the appellant, were arbitrated upon by the catechist in charge of the Roman Catholic Church of Nintin, Mampong, Ashanti, the church to which the appellant and his wife belonged. The award of the arbitration was against the appellant; it directed, inter alia, that the appellant should pacify the wife with an amount of six pounds (£G6).
In the evening of the fateful day, at about 9 p.m., the appellant went to the house of his parents-in-law, where the deceased had gone to live in consequence of the differences, and invited the deceased to spend the night with him in his house; the deceased refused to go saying that until the appellant paid the pacification fee of six pounds (£G6) she would not sleep with him. Thereupon the appellant picked up the three months’ old child who was then lying on a mat in a room and carried it away to his house. He returned a short time afterwards and took away the second also. The deceased, her mother the first prosecution witness and two gentlemen they had invited, one of them also a teacher teaching in the same school as the appellant, went to the house of the appellant to collect the three months’ old child; the first prosecution witness went into the house while the rest of the party waited outside; she came out with the child, and as the party was moving away the appellant appeared from a lane, got hold of the hand of the child and began to pull it; he stopped when the two gentlemen pleaded with him; he then left the child and disappeared into the lane. The two men thereafter separated from the two women to go to their respective houses. As the first prosecution witness and the deceased were going along, the deceased leading with a hurricane lantern, and the first prosecution witness following with the child, the appellant suddenly appeared on the scene with a cutlass, and with it inflicted extensively serious injuries on her head, her hands and other parts of her body, almost completely amputating the right hand at a point four inches above the wrist. The appellant then ran away, throwing away the cutlass; his sister’s husband the fifth prosecution witness who saw the cutlass thrown away, picked it up, and later handed it over to the police.
The defendant gave two accounts of the incident; the first version is contained in the caution statement he made to the police when charged with the offence; the second is contained in the statement he made to the committing magistrate at the preliminary hearing, and in the evidence he gave at his trial. The first version amounts to a defence of insanity; it is, in the appellant’s own words, as follows: “I admit that the incident was caused by me but that I did not know what I was doing actually, it was after I had finished before I realised that I had sinned against God and human that is to say that I had split the blood of a human, a person with whom I am one in body and in spirit, named Agnes Akua Nyarko. I cannot say what actually happened before this incident occurred but the only thing I saw was that I had wounded her with a cutlass.”
In the statement to the committing magistrate and in his evidence at the trial he referred to the arbitration and the award thereof, and said that he had been arranging a loan to enable him to pay the pacification fee he was ordered to pay. He added that earlier in the evening of the day of the incident, when on his way to his wife’s house, he had passed by the house of one Kwadjo Baawuah, and had heard the voice of his wife and that of Kwadjo Baawuah in the room of the said Kwadjo Baawuah, but when he called out they stopped talking, but they did not come out; he added that he took the three months’ old child away because when he got to the wife’s house there was no one in the house, save his father-in-law. He said that on his way to his house, he saw his wife and the said Kwadjo Baawuah under a mango tree, that when Kwadjo Baawuah saw him, he left the deceased and went to his house. The statement at the committal continued:
“I asked her where she had been and she gave me no answer. I did not give the baby back to her but told her to go and get ready to sleep with me. When I got home, I put down the baby to sleep, and returned to the house of the deceased just to tell her mother what had happened. Both the deceased and her mother were then present and I told the mother what I had seen. She did not say anything so I came back to my house. The child was asleep so I went out and stood behind the window of my room. I heard angry voices coming in my direction. My wife arrived following her mother. The deceased, my wife, stopped where I was but her mother went in. I asked her whether she was coming to sleep and told me she was not, but was waiting for
her mother. The mother came carrying the baby and abusing me all the time. I started walking towards the street. They followed me still talking loudly and abusing me. Just as I was passing at a point between the second and the third house from mine, I saw something lying on the ground. I did not determine whether it was a stick or a knife. I lifted it up found it was a cutlass. I was at this stage very angry and I turned round and cut the deceased with it. I seemed possessed by an evil spirit and I cut her many times.”
The account the appellant gave at the trial is similar to what he said before the district court; the only
difference is that he said he did not realise until afterwards that the implement he used to assault his wife a number of times was a cutlass, and not a stick. This is how he put it:
“As I went along they still followed me with the abuses. It was very dark. When I got to a mango tree nearby I saw some women there. I also saw something lying down rather like a piece of firewood. I decided to use one of those sticks on them to stop them from molesting me. I picked it up and used it on my wife. It was afterwards that I got to know it was a cutlass. At the district magistrate’s court I said that I picked what appeared to be a stick, and that it was after I had used it on the girl that I found it was in fact a cutlass. From the taunting and incessant abuses I was confused and provoked.”
Two grounds of appeal were argued. The first is that the trial judge misdirected the jury by failing to direct them on the issue of insanity.
Although a trial judge is under a duty to direct a jury on the law as to insanity even when a plea of insanity is not specifically raised, the obligation so to direct on insanity only arises where there is some evidence either led by the prosecution or the defence, or both, which in law may amount to insanity; in such a case, even if the trial court failed to direct or misdirected the jury upon it, this court will exercise the powers given it by section 16 (4) of the Courts Act, 1960,1 to quash the sentence passed, and to substitute the special verdict of guilty but insane, and make the consequential order. The said subsection (4) of section 16 of the Courts Act, 1960, reads as follows:
“If on any appeal it appears to the Supreme Court 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 and order the appellant to be kept in custody as a criminal lunatic in such place and in such manner as the Court shall direct until the President’s pleasure shall be known, and the President may thereupon and from time to time give such order for the safe custody of the appellant in such place and in such manner as to the President may seem fit.”
In the present case the only evidence which may in a sense appear to imply some allegation of insanity is the passage quoted above, and which form the first few sentences of exhibit B the caution statement which the appellant made to the police, and which we now repeat:
“I admit that incident was caused by me but that I did not know what I was doing actually, it was after I had finished before I realised that I had sinned against God and human that is to say that I had spilt the blood of a human, a person with whom I am one in body and in spirit, named Agnes Akua Nyarko. I cannot say what actually happened before this incident occurred but the only thing I saw was that I had wounded her with a cutlass.”
Absence of motive for a crime, or the bare statement by a person, by itself without anything else, that he cannot say what caused him to do an act, is not evidence of the existence of insanity. Moreover, the statement he made at the preliminary hearing before the district court, and the evidence the appellant gave at his trial, each negatived the allegation of the appellant that: “I did not know what I was doing actually.”
There was therefore no evidence upon which the trial judge could have addressed the jury as to insanity, and consequently there is no evidence upon which the court could judiciously have exercised the discretion given to it by section 16, subsection (4), of the Courts Act, 1960.2
The second ground of appeal argued is that the trial judge misdirected the jury on the law as to intent. The relevant passage in the summing-up is as follows:
“Every man of age and sanity is presumed to intend the natural and probable consequence of his action. Review the evidence of the accused relevant to the infliction of the harm⎯that it was dark and in his anger he picked up what was available and used it. You may feel that accused knew that whatever he was using to hit at his wife he intended it to hit her. You must decide with what intention he struck the blows⎯was it to cause harm or not? If you have any doubt that accused intended to cause harm to the wife when he struck the blows⎯then you must resolve it in favour of the accused.”
It was submitted on behalf of the appellant that the learned judge of the High Court erred in directing the jury that intent to cause harm is all that is required to be proved in a case of murder; and that in law the intent which can sustain a charge of murder is intent to kill, not merely intent to harm. Senior state attorney conceded that the trial judge misdirected the jury on the law as to intent in a murder case. He submitted, however, that having regard to the nature and extent of the wounds, no miscarriage of justice has been occasioned by the said misdirection.
Homicide which is caused by an act done only with intent to cause harm, amounts to manslaughter only and not murder, see section 51 of the Criminal Code, 1960,3 and Serechi v. The State.4 But homicide which is caused by harm inflicted with intent that it should cause death is murder, see section 52 of the Criminal Code, 1960, and the Serechi case (supra). Therefore the learned judge in this case misdirected the jury by directing them as he did, that if they were satisfied that the blows were struck with intent to cause harm, they should convict of murder. In Akorful v. The State5 dealing with the issues as to intent in a murder case, the court said:
“Before a prisoner can be convicted of murder he must be found to have had a real or wicked intention to kill or it must be found that the circumstances were such that he was aware that the result of his act would be death. Chief Baron Pollock in R. v. Vamplew (1862) 3 F. & F. 520 at p. 522; 176 E.R. pp. 234-235 said, ‘the crimes of murder and manslaughter were in some instances very difficult of distinction. The distinction which seemed most reasonable consisted in the consciousness that the act done was one which would be likely to cause death. No one, however, could commit murder without that consciousness. The jury must be satisfied, before they could find the prisoner guilty, that she was conscious, and that her act was deliberate.’ See also R. v. Gyamfi [1960] G.L.R. 45, C.A.”
See also Serechi v. The State (supra), where the court expressed the law as follows6
“When a man is charged with murder the prosecution, to succeed, must prove each of the essential elements thereof without reasonable doubt, and must go further to prove that there are no circumstances which could reduce the murder to manslaughter. If the prosecution only succeeds in proving that the death was caused by an unlawful harm, but is unable to prove that there was intent that the unlawful harm should cause death, the case of murder must fail, but then the case of manslaughter will have to be considered by virtue of section 154 (1) of the Criminal Procedure Code, 1960; and where evidence leaves reasonable doubt as to whether or
not the unlawful harm was inflicted with intent that it should cause death, the court will be bound to consider section 154 (1) of the Criminal Procedure Code, 1960, namely, whether a lesser offence has been proved. Therefore where the intent to cause death is not proved, it is the duty of the court to direct the jury that they should act under the said section 154 (1) and return verdict of guilty of manslaughter only if they find unlawful harm proved. And where the evidence is such that intent to kill might or might not be inferred, it is the duty of the judge to direct the jury that it was open to them to consider the alternative verdict of guilty of manslaughter. The duty of the judge in this regard is as obligatory as his duty to direct the jury to return a verdict of manslaughter where there is positive evidence of provocation which can bring the case within section 52 and 53 of the Criminal Code, 1960, and to direct them to consider the alternative verdict of guilty of manslaughter only where there is some evidence which may amount to provocation as under section 52 and 53 of the Criminal Code. Therefore a person charged with murder may be convicted not of murder, but of manslaughter which is homicide caused intentionally through extreme provocation or other extenuating circumstances, or of manslaughter simpliciter, i.e., homicide caused by unlawful harm not intended to cause death.”
The misdirection in this case is as to law, not as to fact. Now the law on the point is that where a misdirection as to the law is established, a court of appeal will quash a conviction unless the prosecution can show upon the evidence that if they had been properly directed a reasonable jury would inevitably have come to the same conclusion; see Archbold (35th ed.), p. 387, para. 931 and the cases there cited. But where the misdirection is as to evidence, a court of appeal will only quash the conviction where the misdirection is of such a nature, and the circumstances of the case are such that it is reasonably probably that the jury would have returned the verdict had there been no misdirection: see Archbold (35th ed.), p. 388, para. 932 and the cases there cited.
By convicting the appellant upon the direction erroneously given to them, the jury impliedly found that the intent with which the appellant inflicted the blows was to cause harm. The homicide in such a case is manslaughter and not murder. The crucial question then is, would the jury, upon the evidence have inevitably returned the verdict of murder rather than a verdict of manslaughter, if they had been properly directed ? It is difficult to say that they would having regard to all the circumstances of the case, the condition of the night of which the first
prosecution witness, the mother of the deceased, said: “It was very dark—you could not know what you take from the ground,” the evidence that the place where the appellant bent down and picked up the implement with which he struck the deceased is a place where women usually split firewood, and other circumstances which are such that the appellant might well have picked up the cutlass at random thinking quite erroneously that he was picking up a stick.
There is of course the nature and extent of the injuries inflicted which might well raise a presumption that the appellant intended the harm he inflicted to cause death, but to say that in all the circumstances the jury would inevitably have returned a verdict of guilty of murder rather than guilty of manslaughter is to indulge in speculation.
In all the circumstances we think the misdirection is such that the conviction of murder should not stand.
In the result the appeal is allowed, the conviction of murder and the sentence of death passed in consequence thereof are quashed; for the verdict and conviction of murder we substitute a verdict of guilty and conviction of manslaughter. The appellant is sentenced to ten years imprisonment with hard labour.
DECISION
Appeal allowed.
Verdict of manslaughter substituted.
N.A.Y.
