COURT OF APPEAL
DATE: 11 DECEMBER 1967
BEFORE: AZU CRABBE, APALOO AND LASSEY JJ.A.
CASE REFERRED TO
Dagarti v. R., Court of Appeal, Cyclostyled Judgments (Criminal), January-June, 1958, p. 66, unreported.
NATURE OF PROCEEDINGS
APPEAL against a conviction for murder entered by Sowah J. sitting with a jury at the High Court, Ho.
The facts are sufficiently stated in the judgment of the court.
COUNSEL
Amoah for the appellant.
Kisseih, Senior State Attorney, for the respondent.
JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the judgment of the court. On 24 May 1966 the appellant was convicted of the murder of his brother, Maketi Konkomba, by Sowah J. sitting with a jury at the High Court, Ho, and was sentenced to death.
The appellant and the deceased were brothers of the full-blood and lived together at Kakraka village in the Volta Region. The evidence does not disclose any previous history of ill-will between these two brothers and the events of 28 October 1965, which culminated in the deceased’s death, can only be explained on the footing that the appellant had more drink than be could reasonably manage.
The only eyewitness of the incident was the eight year old son of the deceased by name Ntise. According to him, the deceased was sitting on a stool close to his house when the appellant joined him. The deceased remained seated on the stool when the appellant, who stood by, engaged in conversation with him. Therewas nothing in
[p.719] of [1967] GLR 717
the conversation to suggest that the brothers were quarrelling. The appellant however drew a knife from his pocket and stabbed the deceased in the stomach. The deceased then staggered to his house a few paces away. He there collapsed and died. His intestines protruded from the stab wound and he bled profusely. Ntise was emphatic that the deceased did not touch the appellant or did any violence of any sort to him. A few days after this, the appellant made a statement to the police in which he admitted stabbing the deceased with a knife but claimed that he used it only to frighten the deceased when it accidentally struck his chest.
According to the appellant, the reasons why he wanted to frighten the deceased off, was that while they were both exchanging words, the deceased picked a piece of firewood and struck his neck. This made him fall and the latter repeated this assault. The appellant said, while he lay on the ground, the deceased bit the right part of his belly. When put upon his trial, the appellant in the main, told the same story with some slight improvements. The appellant said, in addition to striking him in the neck, the deceased also hit his stomach with the firewood and thereafter held his throat and began to strangle him. This time, the appellant said, he took out a knife to stab the deceased by the arm and thereby release himself from his hold, but the knife accidentally stabbed him in the abdomen. According to the appellant, before this encounter, both he and the deceased had been drinking pito, a potent local gin, and the altercation arose because the deceased warned him away from his house.
The appellant’s version of the incident raised very squarely, the defences of provocation and self-defence. The learned trial judge was very much alive to these defences and gave to the jury direction on them. The judge advised the jury to acquit the appellant altogether if they felt satisfied hat he inflicted the injury on the deceased at a time he considered himself in mortal danger and that was the only means of m saving his life but to convict him of the lesser offence of manslaughter if, though not in danger of his life, he stabbed the deceased at a time he was provoked by the injuries inflicted on him by the deceased. The jury rejected both defences and returned a verdict of murder. This implies that the jury considered Ntise’s evidence to be the truth. Having duly recorded the verdict of the jury, the learned trial judge proceeded to convict the appellant and having done so, passed on him the only sentence prescribed by law. It is against this that this appeal has been brought.
The summing-up was attacked on a variety of grounds and in particular, it was urged that intent to murder was neither directly nor inferentially proved and that the learned judge was wrong in not directing the jury on the question of intent to murder. We cannot
[p.720] of [1967] GLR 717
accept this argument. Intent is normally a matter of inference deducible from proved facts. Where, as is admitted, the appellant used a sharp knife in stabbing a particularly vulnerable part of a man’s body, namely, the stomach, from which death ensues, we cannot see what other intention he can have had save to end life. It was next contended that the question of provocation was so inadequately considered in the summing-up, that the jury could not have directed their minds to that issue. We think the direction on provocation might have been fuller and more satisfactory had the learned trial judge drawn the attention of the jury to our statute law on that subject, but we cannot agree that this amounted to a misdirection.
There were other complaints about the summing-up which seem to us to be of no moment. While we are prepared to concede that the summing-up contains expressions which can be improved upon, we cannot agree that it so inadequately put the defence case to the jury as to justify our interference with the verdict.The only serious argument addressed to us by counsel for the appellant and the only one in which we requested to hear counsel for the Republic, was the ground which complained that, “The admission into evidence of the medical report without calling the pathologist to be cross-examined was wrong.” On this ground, it was pointed out for the appellant, that that report could only have been admitted by virtue of section 121 (1) of the Criminal Procedure Code, 1960 (Act 30). It was said that unless a dead body can accurately be described as a “thing” this section cannot be invoked to admit in evidence a post-mortem report on a dead human being since the section used the words “substance or thing.” It was urged that a dead body was not a “thing” and that the legislature did not have in mind a dead body when it used the word “thing.” Counsel said that the ordinary meaning of substance is matter and that as substance or thing” were used as synonyms, “thing” should be construed ejusdem generis with matter which excludes a human being dead or alive.
For the Republic, it was replied that no proper legal definition can be placed on the word “thing.” For this, counsel founded himself on Dias and Hughes on Jurisprudence. It was said, the meaning to be attached to it in any particular case must be sought in the context in which it is used. The Concise Oxford Dictionary (5th ed.) was then referred to and it was said one of the meanings of a “thing” is an inanimate material object. It was said, a dead body is, in any case, an inanimate material object and it is properly a “thing.” To buttress his argument, counsel referred to section 7 of the Coroners Act, 1960 (Act 18), and submitted that that section which authorises coroners to order postmortem examination of a dead body, uses the words
[p.721] of [1967] GLR 717
“substances” and “things” interchangeably with the word “body.” Counsel therefore contends that the legislature contemplates that a dead body can properly be described as a “thing.” We think infinite disputation is possible as to what, in different contexts, may be the proper meaning of the word “thing.” Although, in its ordinary connotation, it refers to inanimate objects, it is sometimes used figuratively to refer even to living persons. The Concise Oxford Dictionary (5th ed.) instances such use in relation to human beings as “poor thing.” In our opinion therefore, the problem posed in this case is not answered by determining in the abstract the normal meaning of the word “thing.” It seems we have to consider what that term means in the context of section 121. It is one of the well-established principles of the common law that a person accused of a crime and put on his trial is entitled not only to be present at his trial, but shall also be afforded full opportunity of cross-examining all witnesses put in the witness box to testify against him. The plain object of section 121 (1) is to relax this rule in respect of certain scientific reports. This subsection is general and relaxes the rule in respect of all courts. Section 121 (2) however, makes special provisions for injuries to persons but limits its applicability to the district court. It would seem therefore that medical reports specifying injuries to persons were not intended to be covered by section 121 (1). Were it so, there would have been no point in providing for it specifically in section 121 (2). It is said however, that while subsection (1) relates to inanimate objects which include dead bodies, subsection (2) is intended only to cover injuries to living persons. Can this argument be right? Suppose A. is put on his trial for causing injuries to B. who is alive. If the injuries are not serious and the case is cognisable by a district court, subsection (2) can be invoked by the prosecution to dispense with the attendance of the doctor and to admit his report as to B.’s injuries. Suppose the injuries are serious and A. is accused of an offence triable only in the High Court. Quite plainly the doctor’s report cannot be admitted under subsection (2) and A. can successfully exclude the doctor’s report and insist on his personal attendance. Suppose that while a prosecution is pending in the High Court, B. dies from these injuries and it became necessary to charge A. with murder; on the argument which the prosecutionpresent, they can then dispense with the doctor’s presence and tender the report under subsection (1) because B. became a “thing” and A. cannot insist on the doctor being called so that he could exercise his right of cross- examination, although he faces a graver consequence by reason of the altered charge. In our opinion, that argument cannot be right.
[p.722] of [1967] GLR 717
In Dagarti v. R., Court of Appeal, Cyclostyled Judgments (Criminal), January-June, 1958, p. 66, it was held by the Court of Appeal that a post-mortem report prepared by a doctor (who was not called at the trial) was admissible under section 120 (2) of the Criminal Procedure Code, Cap. 10 (1951 Rev.). It is said that that section is the statutory predecessor of section 121 (1) of Act 30 and that we should follow that decision. In the first place, section 120 (2) of Cap. 10 limits the admissibility of medical reports only to “a trial before a Magistrate’s Court” and inasmuch as the Court of Appeal purports to decide that a medical report was admissible on a trial on indictment in the High Court, that decision would appear to have been given per incuriam. It was however argued that the reference to section 120 (2) was a mere. clerical error and that the section which the Court of Appeal had in mind was section 120 (1) of Cap. 10.We cannot feel satisfied that where the court expressly mentioned subsection (2), it really intended subsection (1). To so hold, would be a speculation unwarranted by anything in the judgment. In any event, it does not appear that the meaning of the word “thing” as used section 120 (1) of Cap. 10 fell to be determined in the Dagarti case (supra) nor does it appear that that word was a contentious issue in that case.
It seems to us that the admission of the medical report in the Dagarti case can be justified by reference to a section of Cap. 10 other than section 120 (2). That section is section 282 which by subsection. (1) provides: “The deposition of a medical officer or other medical witness, taken and attested ‘by a magistrate in the presence of the accused person, may be read as evidence, although the deponent is not called as a witness.” In the Dagarti case, the deposition was taken in the presence of the accused who had full opportunity of cross-examination. As the medical officer was not called, this section authorises his deposition to be read in his absence as evidence. If the deposition can be read, it follows a fortiori, that it can also be tendered in evidence. a
It seems to us that this section is destructive of the prosecution’s contention because if a post-mortem report prepared in the accused’s absence can be tendered in evidence under section 120 (1) of Cap. 10 on the ground that it is a medical report on a “thing” then the provision of section 282 (1) which enables it to be tendered or read only if it was taken in the presence of the accused, is otiose and wholly pointless. There is now no section in the Criminal Procedure Code 1960 (Act 30), analogous to section 282 (1). of Cap. 10, because trials on indictment are now held without depositions. We think, therefore, that evidence which relates to the nature or extent of injuries suffered by any person whether living or dead which is
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sought to be tendered in a criminal trial in a court other than the district court must be viva voce, thus affording the person against whom it is tendered, full right of cross-examination.
We do not think that the argument founded on section 7 (1) of the Coroners Act, 1960, advances the prosecution’s contention in any way. On the contrary, we think it detracts from it. While section 7 (1) (a) authorises the coroner to order post-mortem examination of the body, section 7 (1) (b) entitles him to order a doctor to make “special examination by way of analysis, test or otherwise of such parts or contents of the body or such other substances or things” which the coroner considers fit for analysis, test or examination. The use of the word “body” in contradistinction to “substances or things,” makes it obvious that the legislature did not regard “dead body” and “things” as one and the same thing. Weconclude, therefore, that the contention of Mr. Amoah was right and that the post-mortem report was wrongly admitted in evidence.
It now behoves us to consider whether the verdict of the jury would have been different if the post-mortem report had not, wrongly as we think, been admitted in evidence. It is not in dispute that the appellant stabbed the deceased. The immediate sequel of the stabbing was the extensive bleeding and protrusion of the intestines. This was followed moments afterwards by death. It is plain therefore that the death of the deceased was caused by the appellant and as the jury, by their verdict negatived the defences of provocation and self-defence, we conclude that the verdict of the jury would have been the same even if the post-mortem report had been excluded in the first instance.
Accordingly, although we decide the point of law in favour of the appellant, we think no good grounds exist for disturbing the verdict of the jury. It follows that this appeal fails and ought to be and is dismissed.
DECISION
Appeal dismissed.
S.Y.B.B.
