Division: IN THE SUPREME COURT
Date: 4 DECEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant was found guilty by a jury of the murder of his wife one Amma Dagarti; he was accordingly convicted, and the only sentence allowed by law was passed upon him. He appealed against his conviction on two main grounds, namely: (1) the defence case of an absence of intention to kill (by reason of epilepsy) was not adequately put to the jury; and (2) there was a misdirection to the jury as to the unlawful nature of the harm done to the deceased.
The incidents which led to the proceedings occurred in the morning of 31 July 1963, between 8.00 and 8.30 o’clock, at a village called Bonsa, near Tarkwa. The appellant and his said wife had lodged with some countrymen of his in the said village. The appellant was in a room given to them by their host, and the wife was in the kitchen doing some cooking in the company of two other women. At a certain stage of the cooking the deceased left the other women to the room to fetch something she needed to put into her soup. Very soon thereafter she was heard shouting, “I am being killed! I am being killed!” The two women in the kitchen rushed to the door of the room but found it locked; they thereupon raised an alarm and many people came to the house; when the door was opened the appellant was found standing in the room and holding a knife, and the deceased was found lying dead on a mat on the floor with a number of
fresh wounds on her, bleeding; the appellant then dropped the knife, and fell to the ground; he was caught and tied up, and later handed over to police.
In a statement he made to the police when he was charged with the offence, the appellant said inter alia, “I do not know that my wife Amaba Dagarti was dead. I do not know the one who killed her. I believe that it was God who killed her.” The appellant, in his defence at his trial, repeated what he had told the police, namely, that he did not know that the wife was dead, and did not know the cause of her death; and added that he used to have certain epileptic fits, and upon recovery he would have no recollection of anything that he did during the period of the attack.
Arguing the first ground of appeal, learned counsel for the appellant submitted that the defence set up by the appellant was automatism rendering him incapable of forming intent as defined in section 11 of the Criminal Code, 196011; and therefore the trial judge erred in directing the jury that, “neither automaton nor hysterical amnesia was a defence in this country to a charge of murder.”
It is true that the learned trial judge’s statement of the law that the defence of automatism is not applicable to this country is too wide, for although automatism is not stated in our law to be a defence to crime, yet there are cases where an act may be done by a person under automatism in such a situation that in law the act cannot be said to be the act of the person who did it; an example of this is given in the headnote of Bratty v. Attorney-General for Northern Ireland22: as “a blow on the head received by the prisoner after which he acted without being conscious of what he was doing or a condition of sleepwalking.” See also Hill v. Baxter,33 and Archbold
Pleading, Evidence and Practice in Criminal Cases (35th ed.), p. 19, para. 41. In such a case it would be correct to say, as counsel submitted, that although the physical act causing the event is that of the person charged with it, yet in law, it will be an act done without intent; a more correct statement is that in law such an act is not the voluntary act of the person who did it.
Where a defendant pleads that the act complained of was done in a state of automatism he should be able to show some evidence either coming from the prosecution or from the defence which could be put to the jury and from which the jury could reasonably infer that the act was done in a state of automatism. But the question whether there is or is not such evidence is one for the judge. Where the judge decides that there is no such evidence, no need arises for him to direct the jury on that defence.
In this case there is not a tittle of evidence from which a jury can reasonably infer that the appellant inflicted the harm upon his wife in a state of automatism. Consequently there was no need for the trial judge to have directed the jury on that defence. The mere allegation by the appellant unsupported by any other evidence, direct or circumstantial, that he sometimes had an epileptic fit, is not enough evidence of automatism. Therefore the defect in the summing-up on this point is immaterial.
Now the allegation of the appellant that he is subject to epileptic fits, and the inference he wished the trial court to draw, namely, that he killed his wife while he was a subject of such a fit is a plea that the crime was committed by reason of unconsciousness due to a disease of the mind. It therefore is a plea of insanity. The trial judge appreciated that the effect of the statement which the appellant made to the police and of the evidence he gave in court is a plea of insanity and gave careful direction on that defence to the jury; counsel has no complaint about that direction. The jury rejected that defence, which is not at all surprising. The verdict they returned is the only one open to them upon the evidence.
For the reasons stated above, the appeal is dismissed.
DECISION
Appeal dismissed.
N. A. Y.
