OPUNI v. THE STATE [1965] GLR 82

DIVISION: SUPREME COURT

DATE: 26 FEBRUARY 1965

BEFORE: MILLS-ODOI, ACOLATSE AND SIRIBOE JJ.S.C.

Criminal law and procedure—Jury trial—Misdirection—Evidence of expert witness on record—Failure by trial judge to direct jury’s attention to certain aspects of expert evidence—Whether fatal to conviction for murder.

Criminal law and procedure—Murder—Circumstantial evidence—Whether jury entitled to infer that there was a violent death from purely circumstantial evidence.

HEADNOTES

Held, dismissing the appeal:

(1) it is no misdirection not to tell the jury everything which might have been told them, if that material is already on

[p.83] of [1965] GLR 82 record. Thus failure by the trial judge to direct the jury’s attention to certain aspects of the evidence of an expert witness which was on record was not fatal to conviction. R. v. Stoddart (1909) 2

Cr.App.R. 217, C.C.A. and R. v. Bradshaw (1910) 4 Cr.App.R. 280, C.C.A. applied.

(2) A jury is entitled to infer that there was a violent death from purely circumstantial evidence. R.v.

Mary Ann Nash (1911) 6 Cr.App.R. 225, C.C.A. applied.

CASES REFERRED TO

(1) R. v. Stoddart (1909) 2 Cr.App.R. 217, C.C.A.

(2) R. v. Bradshaw (1910) 4 Cr.App.R. 280, C.C.A.

(3) R. v. Mary Ann Nash (1911) 6 Cr.App.R. 225, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered by Apaloo J. (as he then was) sitting with a jury in the

Criminal Session of the High Court held at Kumasi on 7 January 1964. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

C. F. Hayfron-Benjamin, Jnr. for the appellant. K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF ACOLATSE J.S.C.

Acolatse J.S.C. delivered the judgment of the court. This is an appeal against the conviction of the appellant for murder before Apaloo J. (as he then was) on 7 January 1964, sitting with a jury in the

Criminal Session of the High Court held at Kumasi. The charge alleged against the appellant was that on

27 November 1961 at Seniagya in the Ashanti Region he murdered one Kwaku Boaitey.

Before dealing with the points of law raised by learned counsel for the appellant it is necessary to relate the facts surrounding the death of the deceased. There was no eye-witness to the murder. The case for the prosecution therefore depended entirely on circumstantial evidence.

The facts are as follows: The appellant herein is a nephew of the deceased, the ex-Adumasahene of

Seniagya. He succeeded the deceased who was destooled as Adumasahene. He is a storekeeper by occupation at Seniagya. The prosecution led evidence to establish motive in that there had been litigation over cocoa farms since the appellant succeeded the deceased. The litigation, which was pending in the

High Court at the time of the incident, was instituted by the deceased’s maternal uncle, Kwasi Anyewuo, who claimed the farms in dispute. The deceased sided with Anyewuo. As a result of the differences over the cocoa farms the matter went on arbitration before the Effiduasehene on the complaint of the appellant who was adjudged right. Anyewuo and the deceased however clung to the

[p.84] of [1965] GLR 82 farm. The deceased reported the appellant to the police when he plucked the cocoa. The appellant considered the deceased a party to the litigation and he himself said so in his statement (exhibit J) made on 28 November 1961. The prosecution, therefore, regarded the dispute over the farms as a possible reason for the killing.

There is also the evidence given by the second prosecution witness to show that the appellant had the opportunity to commit the murder. The second prosecution witness saw the appellant in clear moonlight at the first cockcrow in the early morning of the day in question walking towards Apaaso and alleged that he was carrying a gun, identified by him as a garden gun, exhibit K. The appellant, he said, was wearing a pair of shorts with a bush shirt worn loosely over them. They exchanged greetings and passed each other.

Not long after the witness passed the appellant at a distance of about 307 yards, he met the deceased carrying a pot in a pan and he was, like the appellant, walking in the direction of Apaaso. They spoke to each other and the deceased asked him to inform Oppong, the fourth prosecution witness, to come up quickly. The deceased was a palm wine tapper. After parting from the deceased, and not long after, he heard the report of a gun from the direction of Apaaso which at that time he thought was fired by a hunter at game. In due course, on his way to Seniagya, he met the fourth prosecution witness and delivered the deceased’s message to him. The witness knew both the appellant and the deceased before the day of the incident. He is not related to them. The witness was not challenged upon his evidence of meeting the appellant carrying a garden gun and of their greeting each other on the road to Apaaso.

The prosecution referred to the following subsequent conduct of the appellant as indicative of his guilt.

When the appellant was charged by the police with the offence he made a statement, exhibit H, in which he denied all knowledge of ever owning or possessing a garden gun. The ninth prosecution witness, an uncle of the appellant, testified for the prosecution that a garden gun and a single-barrel gun which he inherited from his brother Kofi Darkwa were taken from him by the family and handed over to the appellant who was given the stool on the destoolment of Boaitey. This evidence, we observed, was not challenged by the defence. Again we find in exhibit J, a caution statement of the appellant, that he confessed to having a garden double-barrel gun with him at Seniagya until 27 November 1961, when he went and hid the said gun in a cocoa farm, his reason being that because of his litigation with the deceased over the farms, he became frightened when he heard that the deceased was found dead on the

Apaaso road. His other reason for doing so was that people might suspect him of being the one who killed the deceased.

[p.85] of [1965] GLR 82

At this stage it will be appropriate to state portions of the two statements material to this case. In exhibit

H, the appellant said inter alia, as follows:

“I am Adumasahene of Seniagya. I know the deceased Kwaku Boaitey as ex-Adumasahene of Seniagya who was destooled before I was installed as Adumasahene of seniagya. Since my instalment, I have been litigating with one Kwasi Anyewuo a brother to the deceased. Kwasi Anyewuo has even sued me at Kumasi

High Court and the case will be coming on 24 January 1962 at Kumasi. I have no case between the deceased and myself since my instalment. Though I know what is called garden gun, I have never seen one before.

Today the 27th instant, at about 5.30 a.m. I was going to pluck my cocoa with my brother Kwabena Baah when a girl I did not know came to tell us that her father Kwaku Boaitey who was sick for a long time, was going to tap palmwine and fell down and died instantly on the road. I therefore returned home with my brother. I went to see the odikro of Seniagya about what I heard. The odikro told me that he had heard the matter and had sent a bearer to inform the police about same. After leaving the house of the odikro, I came to the police station at Effiduase with some of the relatives. I met my brother Kwaku Asare who had already made the report to the police so I did not make my report to the police. I have no garden gun since I was born.”

On the following day, 28 November 1961, he made another statement, exhibit J, which contained the following passage:

“I am the Adumasahene of Seniagya. I succeeded the deceased Kwaku Boaitey. Since his destoolment he refused to hand over the three cocoa farms attached to the stool claiming that the farms are for his uncle

Kwasi Anyewuo. I put this matter before the State Council at Effiduase, Ashanti, for him to show me why he should not hand over the farms to me. The case was pending at the state council when he the deceased went and sued me at the High Court, Kumasi, claiming that the farms are not stool property. I am served with civil summons to appear before Kumasi High Court on 24 January 1962 in respect of the case. . . . It is correct that

I am having a garden double-barrel gun with me at Seniagya. The gun belongs to my late uncle Kofi Darkwa, who died in 1954. The gun was with me until yesterday 27 November 1961 when I heard that the deceased

Kwaku Boaitey was found dead on Apaaso road. As I was litigating him over the farms, I become frightened and went to hide the gun in a cocoa farm called Mempehia. The cocoa farm belonged

[p.86] of [1965] GLR 82 to the odikro of Seniagya. My reason of doing so is that people may suspect me to be the one who killed the deceased. I went to the bush to hide the gun at 7 a.m. on 27 November 1961. I was then dressed in joe singlet and shorts before I went to hide the gun. It is never correct that I was the one who killed the deceased Kwaku

Boaitey. I can easily give the gun to police if I am taken to the farm where I hid it.”

The prosecution led further evidence through the person of one Kwabena Baah, the tenth prosecution witness, a cousin to the appellant. This witness was to accompany the appellant to pluck cocoa on the farm at the request of the appellant on the morning of the day in question. The witness did not find the appellant at his store, where he slept, when he went to call for him at about 6.30 a.m. The store in which the appellant lived was closed. The witness proceeded to the farm alone and on his way he was informed of the death of the deceased. He was not cross-examined upon his evidence by defence counsel.

We feel compelled to reiterate at this stage that the cardinal and primary principle which must be borne in mind in a case of murder is that the prosecution take upon themselves the onus of proving the ingredients which constitute murder and among the ingredients are the following: that the death of the deceased was caused by the person charged with the offence; that the harm which caused the death was unlawful; and that the nature and circumstances of the killing were such that the homicide cannot be anything else but murder. The cause of the death of the deceased was given in evidence by the medical officer, Dr. Bose, who in his opinion stated that, “death was caused by haemorrhage and shock from gun shot wounds.” On his internal examination he found and removed eight pellets from the body of the deceased which were embedded in the mesentery and in the muscles of the back. These pellets were tendered as exhibit A.

A gun expert was called who examined the garden gun, exhibit E, at the request of the police. He is the sixteenth prosecution witness, a warrant officer of the Ghana Army in Accra. He also examined the pellets, exhibit A. On examination on 6 January 1962, he found that the garden gun had been recently fired from the carbon deposit in the front face of the breach. The rust from the barrels, according to the witness, also indicated that the gun must have been fired within 60 days. He gave his opinion that the pellets could have been fired from the garden gun which he examined. This, he said, was because the size of the pellets were similar to those that can be fired from the

[p.87] of [1965] GLR 82 garden gun. Under cross-examination, the witness admitted that, “It is possible that exhibit A could also have come from a cap gun.” Its trigger mechanism is quite different from a cap gun.

At the close of the case for the prosecution, counsel for the appellant criticised the prosecution’s case in some particulars and submitted that no prima facie case was made out to enable the court to call upon the appellant to make his defence; he also said that the evidence was purely circumstantial. The learned trial judge overruled the submissions. He conceded that the evidence was wholly circumstantial, but contended that whether an inference could be drawn from the chain of circumstances to lead irresistibly to the fact that the appellant was the one and only person who fired the gun that killed the deceased was for the jury to decide and he therefore called upon the appellant to open his defence.

Whereupon the appellant gave evidence and deposed that he was a storekeeper and went to school up to

Form 1. On the night of 26 November 1961 he was at Seniagya. He said he did not go anywhere. He said he slept in his store on the night previous to the death of the deceased. He swore on oath that he had never seen the garden gun, exhibit K, and never owned it or any other garden gun. He denied going out on the early morning of 27 November 1961, except that he got up about 6.05 a.m. to go to a public lavatory to attend nature’s call. After this he stood in front of his store with his landlord. While he was in the latter’s company, after 7 a.m. that day one Akrosi came and informed them about the deceased’s death in the bush where he went to tap palmwine. That, he said, was the first news he had of the deceased’s death. He did not then know what he died of. Later he accompanied others to the police station at Effiduase where a report was made of the death of the deceased. He then accompanied the police and others to the scene of the crime. He admitted that at the time the deceased died there was litigation pending between him and the deceased. He admitted there was a case arbitrated between him and the deceased, but alleged that it had nothing to do with the cocoa farm. He also denied the evidence of the ninth prosecution witness, his cousin, who surrendered exhibit K and a single-barrel gun to him. He said the ninth prosecution witness at no time gave him any two such guns. He denied at the trial that he at any time took the police to a cocoa farm and there dug out a gun for them. Continuing his evidence, he said he never heard of the deceased dying of gun shot wounds. He denied the story of Baah, the tenth prosecution witness, who went for the appellant, but did not meet him, to go to the farm together. His evidence was to the effect that the tenth prosecution witness never came for him as he, the appellant, was in bed on that Monday [p.88] of [1965] GLR 82 morning in the store and he did not go anywhere on the day of the incident. He also denied meeting the second prosecution witness on the road to Apaaso. He denied making two statements. His defence, however, was in the nature of an alibi in that he was nowhere in the vicinity where the deceased was shot-a complete denial of the charge.

All these matters, material to the case, were pointed to the jury by the trial judge, matters on which the jury had the advantage of hearing both sides of the case and observing the demeanour of the prosecution’s witnesses and the appellant; and they returned a verdict of guilty of murder. Against this verdict the appellant has appealed to this court.

Out of the grounds of appeal filed on behalf of the appellant the only ground argued by the learned counsel which deserves some consideration is the ground that the evidence of the expert witness that, “It is possible that exhibit A could also have come from a cap gun,” was not put by the learned trial judge to the jury in his charge to them. Learned counsel contended therefore that the learned trial judge misdirected the jury by not directing them on this portion of the evidence of the expert witness and that this was fatal to the conviction.

The evidence of the expert witness, as stated earlier in the judgment is that the pellets, exhibit A, could have been fired from the garden gun, which the witness examined. The jury who were the sole judges of fact heard this evidence which was given in plain language, and which was not fraught with any technicalities. They heard the whole evidence of this expert witness and the failure on the part of the learned trial judge to tell them something which is already on record is, in our view, not fatal to conviction. It is no misdirection not to tell the jury everything which might have been told them, if the material is already on record. Again, there is no misdirection unless the judge has told them something wrong; or that something was said which would make wrong that which was left to be understood: see R. v. Stoddart1 and R. v. Bradshaw.2 This ground of appeal therefore fails.

At the hearing of the appeal, leave was granted to learned counsel for the appellant to argue the following ground, namely, “That the learned trial judge misdirected the jury when he failed to put adequately the defence to the jury.” In developing the arguments on this ground of appeal, learned counsel for the appellant stated that what he really meant by this ground is that no prima facie case was made

[p.89] of [1965] GLR 82 out by the prosecution to enable the appellant to be called upon to make his defence. He contended that there was no sufficient evidence to go to the jury that (1) the appellant was the person who fired the gun; or that (2) it was the garden gun which was fired in killing the deceased and that the appellant fired it; he further contended that there were glaring conflicts in the evidence as to the person towards whom the appellant’s motive was directed. This is a matter which depended upon the credibility of witnesses. The jury who were the judges of fact to adjudicate on this issue, saw the demeanour of the witnesses and believed them. And there is ample evidence on the record of proceedings to support their action. In a murder case, “a jury are entitled to infer that there was a violent death from circumstantial evidence.” See

R. v. Mary Ann Nash.3 And this was exactly what the jury did in the instant case; it is not for us, therefore, to interfere. This ground of appeal, which is without any substance, also fails.

For these reasons we find it impossible to interfere with the verdict and the appeal is dismissed.

DECISION Appeal dismissed.

S.K.D.-B.