DUA v. THE STATE [1963] 2 GLR 385

DIVISION: IN THE SUPREME COURT

DATE: 1ST NOVEMBER, 1963

BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.

CASES REFERRED TO

(1) R. v. Singh [1962] A.C. 188; [1962] 2 W.L.R. 238. P.C.

(2) R. v. Whybrow (1951) 35 Cr.App.R. 141, C.C.A.

(3) R. v. Thompson (1913) 9 Cr.App.R. 252, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction for attempted murder entered by Djabanor J., sitting with assessors, in the High Court, Sunyani. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

Asare for the appellant.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. The appellant was convicted on the 11th September, 1962, by Djabanor J., sitting with assessors, at the Brong-Ahafo Region Criminal Session held at Sunyani of the attempted murder of his wife, Abena Bio.

The brief facts of the case are that the appellant and his wife lived in the same house at Berekum. On New Year’s eve, that is, the 31st December, 1962, and just before midnight they had a quarrel about a sum of £G20 which the appellant had given to his wife to buy certain clothing materials in Kumasi for her customers. The appellant appeared drunk and insisted on a repayment of this amount to him by the wife. During the altercation that followed the appellant was alleged to have said to the wife: “Whether I get the money or not, today I will kill you.” Just as the clock struck midnight and the New Year was being ushered in the appellant attacked his wife with a knife and inflicted on her several injuries. She was rushed to the Holy Family Hospital where she was treated by the medical officer in charge of the hospital, and after fifteen days hospitalisation was discharged. The medical officer who gave evidence at the trial described the condition of the appellant’s wife and the extent of her injuries when she was first brought to the hospital. She (the medical officer ) said:

“On the 1st January, 1962, at about 1.15 a.m. a woman called Abena Bio was brought to the hospital. When I saw her she was having very laboured respiration and she was moaning continuously. She was semi-conscious. When I examined her I found a vertical laceration (cut) over the lower end of the right scapula. Examination by finger revealed an anterior sciving fracture of the right 9th rib, pointing in a direction towards the right, with entrance to the right pleural cavity (where the lungs are contained). With [p.387] of [1963] 2 GLR 385 respiration the sucking in and out of air was audible. There was an oblique laceration along the right coastal border at the right anterior axillary line. Examination by finger again revealed an anterior sciving fracture of the 11th rib with entrance into the right pleural cavity. There was a small laceration over the upper border of the right scapula, over the left upper arm anteriorly at the axillary border and over the left wrist at the anterior service. There was a deep laceration of the right forearm just beneath the elbow and the radial aspect of the arm with division of one large of muscle. In my opinion the injury must have been caused by a sharp instrument . . . I saw six different injuries on the woman.”

When the appellant was arrested he made a brief statement in which he said:

“I had a quarrel with my wife, Abena Bio, on the 1st January, 1962, and wounded her with a knife but I did not use any knife on my daughter Agnes Dua; neither did I use any stick or touch the baby at all. The child was at the mother’s back and she fell down during the fight. If I have anything else to say, I shall notify my solicitor.” At the trial the appellant said repeatedly that it was not his intention to kill his wife, and the only reason he gave for this murderous attack on her was that she was the first to stab him on the wrist (be it noted, only once). In this appeal only two grounds of appeal were argued. These were:

“(1) The learned trial judge failed to direct himself and the assessors of the principal ingredient of the crime and the standard of proof required, and therefore failed to arrive at the correct verdict.

(2) The essential ingredient of the offence ‘Intent to kill’ was not proved.”

The first ground raises the very important question of the correct direction to be given to juries in trials of attempted murder. In his judgment the learned trial judge stated as follows:

“For the prosecution to prove that the accused is guilty of attempted murder, it is incumbent on the state attorney to prove all the elements of the crime of murder, except that in this case instead of proving that the victim is dead, it will only have to be proved that she nearly died. I am satisfied that the prosecution had proved that Abena Bio suffered harm that should have caused her death. I am satisfied that that harm was caused by the accused. I am also satisfied that the accused intentionally caused the harm; he said it was necessary for him to cause that harm in defence of himself. What is in dispute is whether the harm he caused was unlawful.”

Then he continued: “Before I consider the defence I must first of all be satisfied that a prima facie case has been made to the effect that the harm was unlawful, or in other words, there was no justification therefor.”

With all due respect to the learned trial judge this court is satisfied that he wrongly directed himself on the law with regard to attempted murder. It is not necessary that in a charge of attempted murder the prosecution should prove all the elements of the principal crime of murder, except that the victim did not die. Thus harm is not always a necessary ingredient in the offence of attempted murder. A person who fires a loaded pistol

[p.388] of [1963] 2 GLR 385 at his intended victim but misses him is no less guilty of attempted murder than the one whose victim is seriously wounded in the head and is only saved on the operation table by the skill of the doctor. Consequently it is palpably wrong to hold that the unlawfulness of the harm inflicted ipso facto raises a presumption of guilty intent on a charge of attempted murder. It is only evidence of an intention to kill, for where there is evidence of what the accused actually did and the degree of force used by him the jury are entitled to presume, unless there is evidence to the contrary, that the accused intended the consequences that would naturally follow from the exercise of the degree of force proved by the prosecution: see R. v. Singh.1

The principal ingredient of the offence of attempted murder is the intent to kill. Thus in R. v. Whybrow2 Lord Goddard C.J. in delivering the judgment of the court said that “the jury should have been told that the essence of the offence was the intent to murder as it was presented by the prosecution and as it had been dealt with throughout the case.”

And turning now to the second ground in this case. As a result of the view which the learned trial judge took as to the essential element of the charge he completely failed to direct himself on the vital issue of intent to kill. But whether this misdirection prevented him from arriving at a correct decision depends upon the sufficiency of the evidence on record to support an averment of an intention to kill. Intention is a question of fact to be determined by the jury on the whole of the evidence adduced at the trial. In this case the only witness to the crime was the victim herself and her evidence which apparently impressed the learned trial judge is as follows:

“In January this year I was living at Berekum. I know the accused. He is my husband. I have been married to him for about two years. It was the Sunday the day before the New Year’s day when in the morning I was going to market, and I asked accused for money; he said he had none. I used my own money to go to the market. I bought food and came home and prepared it and we all ate it. Nothing happened again until 10 o’clock in the night. At that time the brother of the accused came to visit him. He is Yaw Donkor, the fifth witness for the prosecution. My landlord’s wife asked me to accompany her to lavatory. But my husband told me to wait until he had returned from seeing his brother off. We waited for sometime but accused did not return. The landlord’s wife said we should go to the lavatory. We therefore went to the lavatory and returned. Then later at about 11.00 p.m. accused came to the house. When he was coming he was talking, he was saying that now that I have got some money I do not respect him again. I replied to him that whatever he saw in my shed in the market place did not belong to me, for they were all obtained on credit from Kumasi. This conversation took place in the yard. Then accused said he was demanding the £G20 from me there and then. I told him that I had none. Just at that time one Owusu Kwaku, the fourth witness for the prosecution, a driver, arrived there, and said, ‘What do you want money [p.389] of [1963] 2 GLR 385 for at this time of night?’ After saying that he went into his room to sleep. When Owusu Kwaku was speaking to us we were sitting in front of our room on the verandah. Then the accused said if I did not give him the money he would kill me. I told him that I had no money. Then I observed that the accused was very determined so I told him that he knew where my money was kept so he should go and take it. Then the accused went into the room and after a time came out and said: ‘Whether I get the money or not, today I will kill you.’ I replied that if it was the will of God then he should kill me. He had been wearing a cover cloth. He went and put it down and put on a dress. He wore a wrist-watch, and he looked at the watch and said that it was not yet time for him to kill me, and that he would kill me immediately we entered the New Year. In due course a gun was fired in the town and I heard noise of jubilation. Then he told me that the time was up and that he was going to kill me. Then he got up and began to slap my face. I also got up to run and knocked at the door of one of the fitters, but the accused followed me and slashed me with a knife at the back of my head (shows the scar) I was then carrying my child in my arms pressed to my breast. After stabbing the back of my head I turned and the next stab got me on my shoulder near my armpit. Then my child fell down, and I made for Owusu Kwaku’s door and knocked at it. Whilst thus running towards the door the accused again stabbed my right side (near the rib) and the back of shoulder blade and the top of my right shoulder, and on my right arm, and left shoulder. Some of these stabs were inflicted while I was leaning on Owusu Kwaku’s door. At last I fell down, and I didn’t know what happened. When I recovered I was in the hospital.” This evidence reveals at once both the declarations by the appellant of his intention to kill and the degree of force used by him. The only explanatory evidence given by the appellant to dispute the facts as deposed to by his wife was that he only intended to wound her and not to kill her. If the evidence of the appellant’s wife was accepted then in the judgment of this court there was positive and ample evidence of an intention to kill.

The injuries inflicted by the appellant on his wife were many and serious, and if we may use the words of Lord Devlin in R. v. Singh3

“There is nothing to suggest that the accused intended merely to maim or cripple his wife; if he was deliberately inflicting any serious injury on her, he must have meant her to die.” In this case there can be no doubt that the attack by the appellant was deliberate and the seriousness of the injuries he inflicted on the complainant was itself eloquent of an intention to kill .We do not, therefore, find any substance in the second ground of appeal.

The misdirection by the learned trial judge was indeed grave, and therefore we have to consider how far the case was affected by this wrong direction. In R. v. Thompson,4 Lord Isaacs C.J. said, “The Court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the judge presiding at the

[p.390] of [1963] 2 GLR 385 trial, but when it is apparent, and, indeed, undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, this Court must act upon the proviso in this section of the Act.”

The proviso referred to is that in section 4 (1) of the English Criminal Appeal Act, 1907,5 and is similar to the proviso in section 15 (1) of our Courts Act, 1960,6 which reads as follows:

“Provided that the Court may, notwithstanding that the Court is of opinion that the point raised in the appeal might be decided in favour of the applicant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

Having considered the whole evidence this court is satisfied that in the circumstances of this case there was clear and ample evidence upon which the learned trial judge could, and indeed must, have concluded if he had properly directed himself that the necessary intent was proved and for that reason no substantial miscarriage of justice has occurred.

Accordingly the proviso to section 15 (1) of the Courts Act, 1960 would be applied and the appeal would be dismissed.

DECISION

Appeal dismissed

K. T.