KETSIAWAH v. THE STATE [1965] GLR 483

DIVISION: SUPREME COURT

DATE: 21 JUNE 1965

BEFORE: OLLENNU, ACOLATSE AND APALOO JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a conviction of murder by the High Court, Sekondi, upon the verdict of a jury. The facts of the case are fully set out in the judgment of the Supreme Court delivered by Ollennu J.S.C.

COUNSEL

Heward-Mills for the appellant.

Gyeke-Dako, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was convicted of murder by the High

Court, Sekondi, upon the verdict of a jury. The victim of the crime, one Ekua Ampomah, was the wife of the appellant but had been divorced by him about eighteen months prior to the day of the offence. The main ground of appeal argued by counsel is that the learned trial judge misdirected the jury by failing to direct them to return the special verdict provided in section 28 (3) of the Criminal Code, 1960.1

On the fateful day, the appellant who said he was leaving the village where he had lived with the deceased to return to his own village, invited the deceased to go with him to a farm; he said he was going to uproot some yams he had planted, and wanted the woman to know the quantity he would leave on the farm. The two of them were seen together leaving the village, and that was the last time that any of the witnesses for the prosecution saw the deceased alive. When evening came and the two persons had not returned home, a search party was organised by the villagers to look for them, but

[p.485] of [1965] GLR 483 without success. The search was resumed the next morning, and in the bush the dead body of the woman was discovered covered with palm leaves. About six days later, the appellant was found in the night near another village in the neighbourhood, and was then arrested and handed to the police.

The case for the prosecution depended entirely upon a statement which the appellant made to the police who charged him with the offence, he being the only eye-witness to the incident. The evidence given by the appellant at his trial is in many respects a repetition of his statement to the police. The relevant portion of that statement is that when going to the farm, he, unknown to the woman, took with him a bottle of akpeteshie, and kept on drinking it at intervals when the woman could not notice him; he drank the last bit just before they were due to leave the farm. That done, he said, he appealed to the woman for reconciliation and re-marriage, but the woman replied with abuses, saying, among other things: “Fool, you have no sense when you came to this place you did not bring any land with you, because of the land you now cannot return to your home-town. Get away with your foolishness.” The appellant said that by then he had become totally drunk; he continued: “When the abuses continued I felt it and I had to cut her with the cutlass I was holding. Because I was drunk I had to sleep in the bush, I did not know where I slept.”

The injuries which the appellant inflicted on his victim to cause her death were ghastly and barbarous; they were described by the medical officer who held the post-mortem on the body as follows:

“numerous deep sharp lacerations covering the face and the skull, and varying from 8” to 3” in length. There was another deep laceration at the back of the left elbow. This might have resulted from a sharp long instrument, and were not self-inflicted.”

The first ground argued in the appeal was that the trial judge erred in admitting in evidence the statement which the appellant made to the police when he was charged with the offence and cautioned. Counsel submitted that the statement in question is not voluntary, because the appellant is shown to have made it upon compulsion. He submitted that in those circumstances it was the duty of the trial judge to have rejected the statement, even, though at the trial counsel for the defence did not raise any objection to its admission. This submission of counsel is based upon one sentence in the evidence-in-chief of the thirteenth prosecution witness, an independent person who was invited by the police to be present to hear the statement the appellant made and to witness it. The evidence so relied upon is the

[p.486] of [1965] GLR 483 penultimate sentence in the witness’s evidence-in-chief; it is as follows: “The accused was coaxed to make the statement.” Counsel submitted that the court is bound by the record, and the only interpretation of the words “was coaxed,” used by the witness is that the appellant did not make the statement voluntarily, and that he made it upon strong threats and inducement. There would have been great force in this submission if the evidence of the witness had closed on the note of that sentence. If however that sentence is read with the whole of the evidence given by the witness, that sentence would be found to be completely out of place unless it can be shown that there is a typographical error, and that the word “not” has been omitted between the word “was” and the next word “coaxed,” for in the very next sentence which is the last piece of evidence given by him, the witness said: “This witness was not cross-examined and so his evidence stood as it was.” The last sentence of the witness’s evidence corroborates the evidence of the fourteenth prosecution witness, the constable who took down the statement, that he held out no threat or promise to the appellant to induce him to make the statement, and that the appellant made the statement voluntarily. When those two sentences in which the thirteenth prosecution witness closed his evidence are read together it becomes apparent that there must be a typographical error in the first sentence; in any event, by the sentence which followed, the witness explained what he meant in the penultimate sentence, namely, that the statement was made voluntarily. There is therefore no substance in the ground. Next, it was submitted on behalf of the appellant that upon the facts of the case as related by him, and referred to above, he was either extremely provoked, and therefore the verdict should have been guilty of manslaughter only, and not of murder, or that he was insane from intoxication. The evidence of provocation relied upon is that given by the appellant that the woman abused him. Mere abuse does not amount to provocation under our law. The matters which amount to provocation which may reduce murder to manslaughter are set out in section 53 of the Criminal Code, 1960, the relevant paragraph thereof with respect to abuses is (a) and reads as follows:

“The following matters may amount to extreme provocation to one person to cause the death of another person namely—

(a) an unlawful assault and battery committed upon the accused person by the other person, either in an unlawful fight or otherwise, which is of such a kind, either in respect of its violence or by reason of accompanying [p.487] of [1965] GLR 483 words, gestures, or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control.”

There is no evidence that the words of abuse accompanied assault and battery inflicted by the woman upon the appellant. But even though there is no evidence upon which the trial judge could have left the case of manslaughter to the jury, the learned trial judge did direct upon that defence and urged the jury that if they were disposed to think that the appellant was highly provoked, or that he might probably have been provoked, to give him the benefit of the doubt, and to say that he was guilty of manslaughter only.

Counsel finally submitted that, upon the facts earlier set out, the appellant must have been insane at the time he committed the offence by reason of his intoxication and therefore the trial judge should have read section 28 of the Criminal Code, 1960, dealing with the defence of intoxication to the jury and have carefully directed them on the various provisions thereof, particularly the provisions of subsections (2),

(3) and (4) thereof. He submitted that if the learned trial judge had so directed the jury, they might most probably have returned a special verdict of guilty but insane.

Subsection (2) of section 28 of the Code lays down the conditions and circumstances in which intoxication can be a defence, the extent of the defence, and the consequences where the defence is established. It provides as follows:

“Intoxication is a defence to a criminal charge if by reason thereof the person charged at the time of the act complained of did not know that the act was wrong or did not know what he was doing and—

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act.”

For the defence of intoxication to succeed, it must in the first place be proved that the person pleading it was so intoxicated at the time he did the act complained of that either (1) he did not know that the act he was doing was wrong, or (2) he did not know what he was doing. When the defence is so established, one or other of two consequences will flow, depending upon whether:

(a) the intoxication was caused without the consent of the person charged by the malicious or negligent act of another person, or

[p.488] of [1965] GLR 483

(b) if the intoxication was the consequence of his own voluntary act, then the intoxication had made him insane temporarily or otherwise at the time of the act, such as not to be responsible for his act, and therefore not a fit subject for punishment.

From the facts of this case, the subsection of section 28 which applies is subsection (2) (b).

The plea of intoxication, i.e. of insanity, being a defence, the onus of establishing it rests upon the defendant. That onus however is not a high one, evidence which shows reasonable probability is enough to discharge it. But bare evidence, without anything more, that intoxicating liquor was consumed, falls short of the standard of proof required, for consumption of intoxicating drink by itself need not result in the intoxication approximating to madness which the law requires to be established to sustain the defence.

And those are the principles which must be applied in deciding this appeal. There is evidence from the appellant that he took akpeteshie, but apart from his bare assertion that he became drunk, there is nothing to show that he became so drunk as not to know the nature of the act he was doing, or that what he was doing was wrong. In fact his own evidence proves that he knew exactly what he was doing; and that evidence of his is confirmed by the fact that after murdering the woman he cut a quantity of palm branches to cover her up completely to conceal the body, to prevent its early discovery. On this defence the summing-up notes of the trial judge contain the following:

“Accused’s defence was that he was drunk and did not know what he was doing. Explain section 28 of Act

29. Relate this to the facts in this case. Accused bought the akpeteshie and took it to the farm. Says driven to drinking heavily because of domestic setbacks-about to loose his farms and wife. How much did he drink?

Was he so drunk that he did not know that he was killing his wife?”

And in the closing sentences of the summing-up notes the learned judge said:

“If you believe that accused was so drunk that he did not know what he was doing or that he was highly provoked then say he is guilty of manslaughter. If you are not sure, or if you think his explanation might reasonably be true, then return a verdict of guilty of manslaughter.”

There can be no quarrel with the first part of the summing-up. The direction that the jury should decide whether the appellant was so

[p.489] of [1965] GLR 483 drunk that he did not know that he was killing the woman, in our view, correctly states the law. The concluding part of the summing-up, however, is defective, in that it only dealt with the case where although a person might know the nature of the act he was doing, i.e. causing harm, yet his mind has been affected by intoxication to an extent as not to be capable of forming an intent to kill. He should have gone further to direct them that if they formed the opinion that he did not know what he was doing, i.e. he was not responsible for his act, then in law, he was insane, in which case they should return the special verdict of guilty but insane as provided in subsection (3) of section 28 of the Criminal Code, 1960. The misdirection on this issue arose from the fact that the learned judge lumped the defence of intoxication together with the defence of provocation; he should have treated them separately.

But this misdirection has not occasioned a miscarriage of justice, for by returning the verdict of guilty of murder, the jury showed that they did not believe that the appellant was intoxicated to the extent that he did not know the nature of his act. If the jury had believed that he was so intoxicated, they would, in pursuance of the direction, have returned a verdict of guilty of manslaughter. Now if it had appeared to us that the appellant was intoxicated to the degree of insanity at the time the killing was done so as not to be responsible, we would, in the exercise of the powers vested in us by section 16 of the Courts Act, 19602 have quashed the sentence of death passed upon him in consequence of the verdict of the jury, and made the order directed by that section. But it does not so appear to us. As earlier indicated the oral evidence given by the appellant himself and the circumstantial evidence do not make it appear to us that the appellant was so intoxicated as not to be responsible.

For the reasons stated above, the appeal is dismissed.

DECISION

Appeal dismissed.

S.K.D.-B.