MANU v. THE STATE [1965] GLR 149

DIVISION: SUPREME COURT

DATE: 12 MARCH 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered by the High Court, Kumasi, on 10 August 1964. The facts are set out in the judgment of the Supreme Court.

COUNSEL

Akiwumi for the appellant.

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

JUDGMENT OF BRUCE-LYLE J.S.C.

Bruce-Lyle, J.S.C. delivered the judgment of the court. The appellant was convicted of murder at the Criminal Session of the High Court held at Kumasi on 10 August 1964. The case for the prosecution is that the appellant lived with one James Djomoh, the sixth prosecution witness, and Akua Nkyeraa,

Djomoh’s wife the fifth prosecution witness, in the same house in a small village called Asakyerowa near

Brofoyedru in Ashanti. In the morning of Sunday, 26 January 1964, the appellant entered the room of the sixth prosecution witness

[p.150] of [1965] GLR 149 while the said witness was away at his farm, and took the said witness’s gun which was loaded. When he was questioned by the fifth prosecution witness as to what he was going to do with the gun the appellant said he was going to hunt with it and left the house with it. About the same time the deceased, a farm labourer of one Kwabena Darbo, the first prosecution witness, was threshing corn with the first prosecution witness’s wife and daughter by name Adjoa Kwakyewaa, the third prosecution witness, a child aged seven years outside the house of the first prosecution witness in a nearby cottage; the first prosecution witness was not in the house; he had travelled to Brofoyedru. While threshing the corn the third prosecution witness went seven yards away to urinate and then heard the report of a gun from behind the house; the third prosecution witness and her mother then started running and noticed that the appellant was also running after them. The appellant who was armed with gun and a cutlass, overtook and stopped them and requested the third prosecution witness’s mother to go with him to the bush for an immoral purpose; but the woman refused and started to beg when the appellant hit her on the head with the cutlass. At that moment the third prosecution witness became frightened and ran away to a nearby cottage and reported the matter to one Kwabena Biribi who took her to the Wiesohene and thence to the

Agogo Police Station where the third prosecution witness made a report. The Wiesohene ordered a search party to go to the bush for the arrest of the appellant and in the course of the search the deceased was found lying dead in the first prosecution witness’s yard; about 120 yards from the first prosecution witness’s cottage the third prosecution witness’s mother was also found dead from cutlass wounds on the body.

The appellant returned to his cottage with the gun at about 10 a.m. and replaced same in the room of the sixth prosecution witness and left the village for his home town Asokore. When the sixth prosecution witness returned to the cottage from his farm, and heard what his wife, the fifth prosecution witness, told him, he examined his gun and found that it had been reloaded. The appellant returned to the cottage the next day and a fortnight later he was arrested. At an identification parade held at the Agogo Police Station the third prosecution witness without difficulty identified the appellant as the one who chased after her and her mother and as the one she saw strike her mother with the cutlass.

The medical report which was tendered at the trial as exhibit A contains the following passage:

“There is a gunshot wound of the chest with a wound of entry in the back 1 1/2 lateral to the spine on the (R) at the level of the

[p.151] of [1965] GLR 149

3rd rib. The charge has passed through the (R) upper lobe, the great vessels and the sterum and several pellets have left exit wounds in the skin of the chest. The wounding is found in the substance of the (R) lung.

Seven pellets are recovered. Summary: Although death is due to asphyxia it would have been inevitable with this chest wound.

Cause of Death:

(1) Asphyxia due to

(2) Aspiration due to (3) Unconsciousness due to

(4) Gunshot wound of chest.”

The appellant when charged and cautioned volunteered a statement in which he said inter alia:

“I took the cap gun that day during the absence of James Djomoh. During the hunting I came to one

Kwabena Darbo’s cottage in the same area. I saw a man threshing corn and was sitting with the back towards me. I also saw a woman and a girl of about six years old at the cottage. I did not know what happened to me and I fired my cap gun at the back of the man sitting threshing the corn. I found that he fell down. The woman and the girl came to where I was, crying and calling for help. At the time I had turned my back to them. When I turned to see them I found that they were running. I chased after them and when I came up to them, the woman sat down and said that I should have sexual connection with her. I did not agree and slashed her with my cutlass several times. In fact I cannot tell where on her body I used the cutlass. I found that she was about to die. I would have killed the girl but I regretted committing such crime so I asked the girl to go. She passed a path towards another village and I also left away to my village. I went and placed the cap gun in the room of James Djomoh where I took it. I did not meet Djomoh. I learnt he had gone to tap palm wine. After I had fired the gun at the man and butchered the woman, on my way to my village I reloaded the gun before I went and placed it where I took it. Because it was loaded before I took it. At about

5 p.m. same day I left my village to Asokore my town. I returned to my village the next day Monday 27

January 1964 at about 2 p.m. At the village I heard people were saying that someone had killed the wife and labourer of Kwabena Darbo at his cottage and police had come to convey the dead bodies away. Since then I heard nothing till on 5 February 1964 at about 5 p.m. one driver by name Opuni came to my village and invited me to a village called Menam. I did not know what for but he asked me to sit down without telling me anything. I was sitting

[p.152] of [1965] GLR 149 at the village till the next day 6 February 1964 at about 1.30 a.m., policemen came to the village and arrested me. They took me to my village where I produced the gun and the cutlass I used in killing the man and the woman to them. Also the knickers I was wearing before the offence was committed. The police brought me to Konongo Police Station where I was detained. At first I made statement to the police and I denied the whole fact. On 8 February 1964 I was among some men in a line at Konongo Police Station when the girl I saw with the woman I killed came and pointed me out to the police. In fact I had done bad. I killed the man and the woman. I did not know what made me to do so. I therefore beg for help. I don’t know the woman and the man.”

At the trial and in his defence the appellant at first denied having visited the village of the first prosecution witness on the fateful Sunday morning although he admitted having taken the gun of the sixth prosecution witness to the bush to hunt with it. He said further in his evidence that at the police station on

26 January 1964 he could not “remember the incident at the bush” but at a latter stage in his evidence-in-chief he gave another version of what happened in the bush and he had this to say:

“I now remember what happened. On the Sunday in question on examining my cutlass I found there was blood stains on it. I next heard that the police had gone to the area where the incident took place.

On the date in question I went far away into the bush where I had never been before. When I got to a spot I thought I had seen an animal and I fired at it. I next saw the supposed animal running away. I chased the said animal with a view to kill it with my cutlass. I then butchered the animal with my cutlass. Not long after, I realised that it was not an animal I had butchered but a human being. I cannot say how many times I butchered the supposed animal. After realising that I had butchered a human being, I noticed the third prosecution witness around. I did not know from where she had come. Immediately I saw the third prosecution witness, she started running away. I returned to the village afterwards. I did not mention the incident to anybody in the village.”

It is apparent from the foregoing that the appellant at the trial relied upon the defence of insane delusion, which defence was rejected by the jury and the appellant was found guilty of murder. Against this verdict the appellant has appealed to this court on the following grounds:

[p.153] of [1965] GLR 149

“(1) Because the learned trial judge misdirected himself on the law when he said that a plea of insanity is of no avail unless it is permanent.

(2) Because the learned trial judge failed to direct the jury on the possibility of returning a verdict of not guilty of murder but of manslaughter as the accused put up the defence of insanity.

(3) The learned trial judge misdirected the jury by not directing them on the law as regards the defence of insanity and on the corroboration required for the third prosecution witness’s evidence.

(4) The learned trial judge misdirected the jury by failing to explain to the jury the burden of proof on the prosecution.

(5) The learned trial judge erred in confusing the evidence adduced in support of the deaths of Adama

Grumah and the first prosecution witness’s wife respectively.

(6) The learned trial judge erred in not directing the jury as to the defence of manslaughter opened to the accused.

(7) The learned trial judge misdirected the jury by merely reading out the definitions of ‘intent’ and

‘unlawful harm’ as contained in section 11 (1), (2), (3), and (4) of Act 29 and section 76 of Act 29 respectively to the jury.”

ARGUMENT OF COUNSEL

Counsel for the appellant however confined his arguments to grounds (1) and (3) and contended that the trial judge erred in law when he directed the jury that insanity “had to be proved to be total, fixed and permanent” and submitted that section 27 (b) of the Criminal Code, 1960,1 destroyed the erroneous principle which the trial judge purported to lay down and that the insane delusion envisaged by the subsection could be temporary.

Section 27 (b) of Act 29 provides that the special verdict in the case of insanity is applicable if the person accused of crime “did the act in respect of which he is accused under the influence of an insane delusion of such a nature as to render him, in the opinion of the jury or of the court, an unfit subject for punishment of any kind in respect of such act.” In R. v. Grumah,2 insane delusion is defined as a state of mind induced by mental disease in which a false belief is held that cannot be shaken by facts and we hold that such a state of mind can either be permanent or temporary.

Counsel further submitted that the trial judge erred in directing the jury that there was no evidence in support of the defence of

[p.154] of [1965] GLR 149 delusionary insanity and referred this court to the following portion of the summing-up:

“On the other hand, if you are satisfied that there is sufficient evidence indicative of insanity rather than the opposite, then the absence of any evidence of motive may be relevant and material in deciding whether the accused was sane or insane in the legal sense at the time the act was committed by him, but gentlemen, I have already told you that I find no such evidence.”

A summing-up as above would be unimpeachable in a case in which there is no evidence in support of a defence of delusionary insanity but in this case there is evidence by the appellant in his evidence-in-chief that he though he saw an animal and fired at it. There is also the evidence of the third prosecution witness that when the appellant chased her and her mother and got to them she, the witness, noticed that the appellant “was excited throughout the period” and “looked like a mad man at the time.” In an answer to a question by the foreman of the jury she further said that she had seen madmen before in the street but that the appellant “did not look like the popular madmen” she used to see in the streets. In R. v. Moshie,3 it is stated that guilty but insane “is not a plea open to an accused person. It is a ‘special verdict’ based upon facts which a jury or judge can find upon the whole of the evidence, whether that evidence was led by the prosecution or by the defence, or by both.” In the present case we find that there is evidence which the trial judge should have left to the jury for them to decide as to whether or not the special verdict was applicable and that the trial judge misdirected the jury that there was no such evidence.

The following direction in the summing-up on the issue of insanity is significant:

“The accused’s recital of the events prior to the murder of Adama Grumah contained in his cautioned statement (exhibit C) to the police and substantially confirmed by the third prosecution witness, the daughter of the deceased woman, negatives any suggestion of a deprivation of understanding and memory in relation to the acts of the accused committed on that fateful Sunday morning in respect of which he has been charged.”

In R. v. Ayaaba,4 where the defence was one of delusionary insanity and where there was no evidence of motive as in this case the Court of Appeal declined to agree that mere remembrance of the incident of the killing is sufficient to discount the strong evidence

[p.155] of [1965] GLR 149 in the case of delusionary insanity. We are of the opinion that it was imperative that the question of insane delusion should have been left to the jury to decide and failure to do so amounts to grave misdirection. It was therefore not right for the trial judge to direct the jury to hold that the appellant’s remembrance of the events prior to the murder negatived the defence of insane delusion. We find ourselves unable to say that the jury, if the question had been left to them with a proper direction, would necessarily have returned a verdict of guilty of murder; but in our view they might have found the appellant guilty of murder simpliciter or guilty of murder but insane.

We do not think in the circumstances that it would be safe to allow the conviction to stand, and we therefore allow the appeal, set aside the verdict and sentence of death and substitute the special verdict that the appellant was guilty of the act charged but was insane at the time he did the act and it is ordered that the appellant be detained in custody until the President’s pleasure be known.

DECISION

Appeal allowed.

Special verdict substituted.

A.K.F.