Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. This appeal is against conviction of the appellant for murder upon a verdict of a jury. It raised some very important points of law. These have been forcefully argued on both sides. Although some of the points made are interesting, they are nevertheless irrelevant for the determination of the appeal; it would therefore be enough just to mention the most important of them in passing, and then proceed to the main points upon which the decision turned.
The appellant, the victim of the crime, one Mama Vagala, and the principal witness in the case lived in Sawla, a town in the Northern Region of Ghana. The case for the prosecution is that on the night of 7 March 1962, at about 11 p.m. the first prosecution witness, a woman who traded in pito and akpeteshie drinks, was sleeping on a mat outside her room when she was awakened by a noise coming from the direction of her room indicating that some one had entered the room. She thereupon shouted three times asking who it was that had gone into her room, but received no reply. Her husband had travelled to a village that day, so she called out to the deceased who was in his room about five yards away from hers; the deceased came out from his room and went towards the room of the first prosecution witness; at the entrance he met the appellant coming out; the deceased then shouted, “Who are you?” Hardly had the deceased completed the sentence when he began to groan “Ooh! Ooh”; he dropped to the ground, and the appellant ran passed him. The first prosecution witness raised the alarm and people came to the spot. By then Mama Vagala had bled profusely from the mouth and died. The post mortem examination disclosed that “there was a small cut on the right side of the mouth. The teeth were all intact; the tongue has been cut from the tip to the basis—into the left side; half of the tongue was cut; the tonsil was cut on the interior third. A section of the left carotic artery has been cut completely; the jugular vein near the carotic artery was also partly cut.”
In the opinion of the doctor the wound could have been caused by a double edged dagger which was found lying by the deceased.
The appellant is a butcher by trade. Upon his arrest he made a statement to the police on caution; in it he claimed ownership of the dagger and a torchlight found lying near the deceased, and said among other things that he had given the dagger to the deceased two days before the fateful day to make a sheath for it for him, and that in the afternoon of the day in question he collected it, even though the sheath had not been made, as he needed it to slaughter a goat the following day. He said that on his way home with the dagger he stopped under a mango tree to rest awhile, and kept the dagger in the fork of the tree. When he eventually arrived at his house at about 4.30 p.m. he realised that he had forgotten the dagger in the fork of the tree, so in the night at about 9.30 p.m. he went to the mango tree and recovered it; he then passed by the house of the first prosecution witness; the gate of the house, made of flat 44 gallon drums, was closed; he called out to the first prosecution witness but there was no response, he then opened the gate, entered the yard of the house and there saw the first prosecution witness sleeping on a mat in front of her room; he passed the first prosecution witness and went into her room to take some of her akpeteshie; whilst in the room he heard the first prosecution witness shout out asking who was in the room, and later called upon the deceased Mama Vagala; he said that as he came out of the room he met the deceased in the compound of the house; the deceased then asked who he was, and at the same time gripped him, thereupon the dagger cut him on the side of his face; he the appellant then dropped the dagger and the torchlight he carried at the time, and made his escape.
At the trial the appellant made complete denial of everything, and put up a defence of alibi. His said defence is most unconvincing. We would point out here, that the failure of the defence did not relieve the prosecution of the onus which lay upon them in view of the appellant’s plea of not guilty, to prove his guilt beyond reasonable doubt. We would add that while a strong defence of alibi weakens a strong prosecution case, the failure of an alibi, however hopelessly, cannot strengthen a weak prosecution case. The case of the prosecution therefore has to stand upon its own strength, or fall by its own weight.
The summing-up of the learned judge was strongly attacked by counsel for the appellant; the attacks were directed particularly to that part of it relative to intent. It is necessary for the purpose of this judgment to quote the summing-up at length. Winding up the summing-up on the case for the prosecution the learned judge said: “Consider question of motive! Did accused intend to cause death intentionally? This is an essential element which the prosecution must necessarily prove in order to constitute the offence of murder.” He continued:
“Prosecution say that from the particular circumstances the accused ought to have known as a reasonable man, that the knife carried in the manner he did was bound to cause bodily harm. If even the accused went to the house that night for an innocent purpose the test you have to apply here is that taking the accused as ordinary person, a normal minded person, when he carried the knife on his person in the manner he did, could he as a reasonable person have foreseen that if anyone should come across him in the house that night there was the likelihood that the knife or dagger would cause that man grievous bodily harm? If you do not think so, then the accused could not have intended death to result—if, however, you are satisfied that the
accused ought to have contemplated that grievous bodily harm was likely to result to that other person no matter how, and that harm did happen and that person died in consequence, then the accused is guilty of murder. On the other hand, if you are not satisfied that he intended to inflict grievous bodily harm on whatever person met him in the dark and that the killing was purely accidental then you must return a verdict of not guilty of murder. You must be satisfied beyond reasonable doubt that the accused when he carried the knife on his person to the house had the actual intention to do the particular kind of harm that was in fact done. Remember also that apart from being seen in the house of the first prosecution witness, there is no evidence led to show or from which can reasonably be inferred any motive to kill. No evidence of any previous dispute or quarrel. No evidence that accused had cause to be displeased with the deceased on any matter whatsoever prior to the date of the incident. The deceased and the accused are cousins — But if you think accused came to the house to commit an offence, and was prepared to resist possible arrest with violence, even to the extent of killing, then you may safely conclude that he had the necessary intent to kill, or that he was reckless as to whether that harm should occur or not, that is, the accused had foreseen that the particular kind of harm might be done and yet had gone on to take the risk of it.”
And at the end of the trial he said,
“It is only when you are satisfied beyond reasonable doubt that the blow was intended to cause bodily harm and death resulted, that you can return a verdict of guilty of murder —It is still murder even if you think that the accused did not intend to cause grievous bodily harm, but it was so likely to do so that a reasonable man in his position would have foreseen that death was likely to result.”
The most important of the grounds of appeal relied upon are:
“(1) That the learned judge failed to direct the jury satisfactorily on the law relating to intent,
(2) That that part of the summing-up beginning ‘If even the accused went to the house that night for an innocent purpose’ and ending with the sentence ‘if however, you are satisfied that the accused ought to have contemplated that grievous bodily harm was likely to result to that other person no matter how, and that harm did happen and that person died in consequence, then the accused is guilty of murder,’ is misdirection,
(3) That the learned judge misdirected the jury when he said, ‘It is still murder even if you think that the accused did not intend to cause grievous bodily harm, but was so likely to do so that a reasonable man in his position would have foreseen that death was likely to result,’ and
(4) The whole summing-up is not clear, is confusing and full of inconsistencies.”
It was argued for the appellant that the test enunciated by the learned judge to be applied in ascertaining intent, is the test applicable to English law; that intent under English law is substantially different from intent under Ghanaian law as defined in section 11 of the Criminal Code, 1960.1 In support of that submission counsel cited State v. Konkomba.2 He submitted therefore that based as it is upon the English law as to intent, the summing-up contravened section 4 (b) of the Criminal Code, 1960, which provides that:
“In the construction of this Code, a Court shall not be bound by any judicial decision or opinion on the construction of any other enactment, or of the common law, as to the definition of any offence or of any element of any offence.”
Learned counsel next cited Quaye v. R.3 and R. v. Gyamfi,4 which, he contended, were rightly decided, and lay down the principle that the test to be applied in determining intent is subjective, i.e. did the defendant believe that his act would cause or contribute to cause the event? He invited the court not to follow its decision in State v. Dagarti,5 because in his view the principles stated therein as to intent are not principles applicable to our law.
On the facts it was submitted for the appellant that the evidence as to how the harm was caused is purely circumstantial, and that a possible conclusion which might be drawn from all the facts and circumstances is that the wound could have been accidentally caused, therefore the verdict of guilty is unreasonable. For the respondent it was submitted that the summing-up was in order; that it was not based upon principles of English law; and that when properly analysed, it would be found to accord with the provisions of subsections (1), (2) and (3) of section 11 of the Criminal Code, 1960. On the facts, it was contended for the respondent that in all the circumstances of the case, the only reasonable inference which fits all the facts is that the wound was intentionally inflicted.
No useful purpose will be served by our dealing in detail with the submission regarding the similarity or otherwise between intent under our law and intent under English law, because as earlier observed the decision in this case does not turn upon that point; and again because the point has been dealt with in the cases cited by counsel for the appellant.
We now turn to the real deciding factor in this appeal. Great care is required in a summing-up on the question of intent in a murder case. The guiding principle is based upon the difference between murder and manslaughter as defined in sections 47 and 51 respectively of the Criminal Code, 1960. That difference has been emphasized by the court in Serechi v. The State.6 But as directions in such cases still appear to present some difficulties, we will repeat it.
Murder is defined in section 47 of the Criminal Code, 1960, as, “Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder . . .” and manslaughter is defined in section 51 as “Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter.” These definitions show that (i) manslaughter is homicide caused by unlawful harm with nothing else, and (ii) murder is homicide intentionally caused by unlawful harm.
Unlawful harm itself is defined in section 76 of the Criminal Code, 1960, which reads, “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter 1 of this Part.”
When the definition of unlawful harm is applied for an analysis of manslaughter and murder respectively we have the following results: (1) Manslaughter is death caused by unlawful harm, that is to say by harm intentionally inflicted. (2) Murder is death caused intentionally by harm, intentionally inflicted. Therefore all the important elements of manslaughter form part of the essential ingredients of murder, in other words, murder is first and foremost manslaughter plus something more.
Thus when the intent with which an act is done is simply to cause harm, death which may result from that harm is manslaughter only, and not murder. But if harm is inflicted intentionally, i.e. unlawful harm is inflicted with a further intent that unlawful harm should cause death, the death which may result, will be murder. The following examples will illustrate the difference. If A. dealt his friend B. a blow with his fist, and in retaliation B. too dealt A. a blow, also with the fist, whereupon A. fell and died, it is quite clear that all that B. intended to do to A., is to cause him harm, nothing more. In that case the death which resulted is only manslaughter in B. not murder. If on the other hand A. and B. were travelling together on
railway trucks drawn by a locomotive engine, and while the train was running fast, B. forcefully pushed A. off the truck down on to the rails between two trucks, it is obvious that in the first place B. intended to cause harm to A. and in addition intended that the unlawful harm should cause his death; that must be so because in the circumstances of the case, B. should have realised that the trucks will run over A. and kill him, therefore it must be presumed that he intended that the unlawful harm which should result should also cause A.’s death; the death in that case will be murder in B.
That being the state of the law, it is most important in a murder case that in order that confusion should not be caused in the minds of the jury, the judge should direct the jury clearly on two intents, namely, (i) intent to cause harm which if it is found to exist will make the harm unlawful, and (ii) intent that the unlawful harm so caused should also cause death.
These principles to be applied in a summing-up were emphasized in R. v. Gyamfi (supra) and also in Akorful v. The State,7 where the court said inter alia:
“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 said, ‘the crimes of murder and of 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.”
Upon those principles it was held in Boamah v. The State,8 that it was a misdirection to sum up to the jury that if they were satisfied that the blows were struck with intent to cause harm, they should convict of murder.
The summing-up in the case sinned very seriously against that principle in several places; the final direction it left with the jury is, “It is only when you are satisfied beyond reasonable doubt that the blow was intended to cause bodily harm and death resulted, that you can return a verdict of guilty of murder.” This is misdirection because if the jury are so satisfied that the appellant intended only to cause bodily harm their duty is to convict of manslaughter not of murder.
The conviction of the appellant means that the jury were satisfied upon the facts that the appellant used the dagger with intent to cause harm. In other words they were satisfied that the appellant caused the death by unlawful harm. The only verdict open to the jury upon such a finding of fact is guilty of manslaughter, not guilty of murder. Therefore the law makes it incumbent upon us to substitute for the verdict of murder, the lawful verdict which the jury should have returned upon the facts they must be presumed to have found.
For the reasons stated above the appeal is allowed, the conviction of murder, and the sentence of death passed upon the appellant are quashed, a verdict of guilty of manslaughter and a conviction for that offence are substituted. The appellant is sentenced to ten years’ imprisonment with hard labour.
DECISION
Appeal allowed, in part.
N. A. Y.
