PRACTICE NOTE: STATE v. AMOH [1961] GLR 637
6 November 1961 · CRABBE JSC · ≈ 5 min read
[1961] SLR (SC) 65Other citation styles and permanent link
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DIVISION: SUPREME COURT
DATE: 6TH NOVEMBER, 1961
BEFORE: CRABBE J.S.C.
JUDGMENT OF CRABBE J.S.C.
The function of the trial judge after the conclusion of the whole evidence in criminal trials with a jury is set out in section 277 of the Criminal Procedure Code (Act 30) and it reads:
“When, in a trial before a jury, the case on both sides is closed, the judge shall, if necessary, sum up the law and evidence in the case.” The section appears to use language which confers a discretion, but we are of the opinion that the expression “shall, if necessary,” has compelling effect. The duty of the trial judge to sum up the law and the evidence is not less imperative by reference to the exercise of a discretion, and we think that the duty to sum up, especially in a trial for a capital crime, is as obligatory as it would have been if the words “if necessary” had been omitted from the section. The summing-up was begun by the learned trial judge by telling the jury that the accused was before them on a charge of murder and the place where the offence was committed. The learned trial judge then continued: “I reminded the jury and warned them accordingly on the cardinal principles of the law under our Code and the Common law.” [p.638] of [1961] GLR 637
The crime of murder is defined in section 249 of Criminal Code, Cap. 9. now section 47 of Act 29, as follows:
“Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as mentioned in section 52”.
The essential elements of the crime are: (1) that the person mentioned in the charge is dead; (2) death was due to harm; (3) the harm was unlawful; (4) the unlawful harm was caused intentionally; and (5) the accused was the one who caused that unlawful harm. The cardinal principles of law on these essential elements of the crime are stated clearly in various sections of the Criminal Code. Throughout the whole of this peculiar summing-up there was no direction whatsoever on any one of these elements, neither is there reference to any section of the Criminal Code on this topic. The jury were only instructed on the incidence of the burden of proof without being told the matters about which proof was required.
It is clearly the duty of the trial judge to explain to the jury what the ingredients of the offence are and what evidence is required to prove each one of them and also the principles of law applicable to each.
In this case we regret that this was not done, as the Senior State Attorney conceded.
“The act of stating for the jury the questions which they have to answer and of stating the evidence bearing on those questions and showing in what respects it is important generally goes a considerable way towards suggesting an answer to them, and if a judge does not do as much at least as this he does almost nothing.” See Stephen, J., History of the Criminal Law, p. 455. It is in our view fatal to leave the case to the jury without explaining the definition of the crime and without a direction on the law. This was a case in which it was eminently desirable for the jury to have their minds directed to the elements of the offence with which the appellant was charged. We are not satisfied that the summing-up did direct the minds of the jury to the precise matters in issue. Under section 277 of the Criminal Code, 1960 (Act 29) the trial judge is also under a duty to sum up the evidence in the case, that is to say, the evidence adduced both by the prosecution and the defence.
After directing the jury fully on the evidence for the prosecution the learned trial judge dealt cursorily with the case for the defence in this way in one paragraph of the summing-up:
“You must not lose sight however of the case for defence. He denied the charge. He swore he knew nothing about the cause of death of his woman, the deceased. His case was an absolute denial of the charge”.
But the case for the defence was not only a denial. He said he left the deceased very early on the day of her death to go to his farm and he was nowhere near the scene of the crime. He said further that he was beaten by both P.W.6, P.W.7 and P.W.8 and therefore his statement, exhibit H, [p.639] of [1961] GLR 637 was not voluntary. It was the duty of the learned trial judge to expand or expound to the jury the defence put forward by the prisoner. Whatever the defence of a prisoner may be, however weak or improbable, he is entitled to have it put adequately to the jury. “The first and most important thing for the administration of the criminal law is that it should appear that the prisoner is having a fair trial, and that he should not be left with any sense of injustice on the ground that his case has not been fairly put before the jury”: per Lord Goddard, C.J., in R. v. Clewer (1953) 37 Cr. App. R. 37; R. v.
Dinnick 3 Cr. App. R. 77.
(The State v. Kwame Amoh Joint judgment of Sarkodee-Adoo, Adumua Bossman and Crabbe, JJ.S.C. delivered by Crabbe, J.S.C.)
