Division: IN THE COURT OF APPEAL
Date: 28TH SEPTEMBER, 1959.
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
JUDGMENT OF GRANVILLE SHARP J.A.
This appellant was convicted by a jury before Simpson J., sitting at Accra on the 23rd April, 1959, for the murder of one Kwabena Ahunu at Okrakwadjo on the 14th December, 1958.
[p.311] of [1959] GLR 309
The appellant raised as a defence the issue of the state of his mind at the material time, and he accompanied this with a complete denial that he was even in the village at the time when Ahunu was killed. As to this latter contention, it is so contrary to the evidence that learned Counsel for the appellant made no point of it at the hearing of the appeal before us. There can be no doubt whatever that it was the appellant who killed Ahunu. The real contest between the Crown and the appellant was upon the issue of his alleged insanity, and upon this the facts placed before the jury were, apart from medical evidence, as follows (his lordship stated the facts, and proceeded:—)
The killing in this case appears to have been entirely motiveless. No witness knew of any previous association or quarrel between the appellant and his victim. The appellant in evidence denied ever knowing such a person. He was not a very satisfactory witness, and though persisting in his denials as to his presence in the village or as to his having killed anyone, he appeared to wish that his questioning under cross-examination should be brought to an early end.
The picture is of a man who had apparently run amok. At the preliminary hearing before the Magistrate the appellant was, as the learned Judge said later at the trial, “suspected of being not entirely normal,” and it was this that persuaded the learned Judge to adjourn the trial, so that the appellant might be examined by a Psychiatrist. He was examined accordingly. The Psychiatrist, Dr. E. F. Forster, who later gave evidence, said in examination-in-chief that after a 45-minute examination of the appellant he thought that he was then trying to feign madness, in order to escape from responsibility for the crime with which he was being charged. The witness then, after describing what are known to be the general symptoms of various forms of insanity (including epilepsy) gave it as his opinion that the appellant might have been temporarily insane at the time of the attack upon the deceased. He said again when cross-examined, “Having examined the accused, and heard his evidence, I would say it is possible that he may have been mentally disturbed.” He added that a delusion directed against a particular person does not change and become directed against another person, and he concluded by ruling out the possibility of the appellant’s being an epileptic.
It is not the function of a medical witness to decide the issue of insanity. Such an issue is an issue of fact, and it is therefore for the jury to decide it after consideration of all the circumstances disclosed to them, including the nature of the evidence of experts (or an expert) in mental diseases. In our view, however, it is of extreme importance
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that the jury should be fully, clearly and carefully directed upon such an issue, so that they may be able to bring to its consideration analytical, clear and impartial minds.
With this in view, the learned Judge read to the jury practically the whole of the appellant’s evidence, and he instructed them to consider such evidence carefully in the light of Dr. Forster’s evidence, which he then reviewed to the jury. He added that they should bear in mind the psychiatrist’s admission that the appellant might have been of unsound mind at the time of the offence.
All this is unexceptionable, save that it should be pointed out that it is not enough to read the evidence (which the jury has already heard) without, as appears to have been the case here, directing attention to the possible weight and importance of any particular part of it. The learned Judge reviewed the evidence, but he does not appear to have sifted it when reading it to the jury. However this may be, there followed in the summing-up a misdirection that we find of considerable importance.
The learned Judge said to the jury that if they believed the evidence of the accused, or if in their minds that evidence raised a reasonable doubt, then he must be found Not Guilty. With great respect to the learned Judge (who is well experienced in matters such as this) we feel that, put in this way, the case may well have been misunderstood by the jury.
The evidence of the appellant bore two distinct complexions. It consisted first of a denial. The appellant put forward an alibi. He was not in the village. He was on his farm some distance away. He did not know any person called Ayim, or the others called Akua Kubeh and Kwabena Ahunu. He had not run away to the bush. He was on his way to the water, when he was surprised by the police and arrested. He had never been to the house of Akua Kubeh, either that morning or at any other time.
Then he said that he could not say whether he had ever been to the house, and he could not tell what he was doing on the morning in question. He was told by someone that he had murdered someone. He did not know who brought him to Accra. He remembered being arrested.
Of course, if the jury believed his alibi and his denial of the killing they must have brought in a verdict of Not Guilty; but there was another course open to them upon which they ought to have been directed. They might disbelieve his alibi and the consequent denial, but still come to the conclusion that the real gravamen of his evidence
[p.313] of [1959] GLR 309
as a whole was its suggestion of loss of memory. In that case it would be open to them to bring in the special verdict of guilty but insane, because the loss of memory, taken with the other evidence, established that he was insane.
When dealing with this issue of insanity the learned Judge said, as recorded in his summing-up notes: “Evidence of accused reviewed-jury should consider whether he was being deliberately evasive, should compare what he remembers with what he does not appear to remember, his denials and his attempts to avoid further questioning. Must consider evidence and demeanour carefully in the light of the
psychiatrist’s evidence to assist them to come to a decision on the question insanity. Most of accused’s evidence read to jury with this object in view.” We feel that this direction may well have led the jury, when considering the issue of insanity, to isolate in their minds the evidence of the accused, and that of psychiatrist, from the evidence as a whole.
DECISION
We ourselves, upon a full and careful examination and consideration of the evidence as a whole, including that of the prosecution witnesses, have reached the conclusion that, while the appellant was guilty of that act charged against him, he was insane at the time the act was done so as not to be responsible in law for his actions. Accordingly, under the provisions of section 11 (4) of the Court of Appeal Ordinance No. 35 of 1957 we quash the sentence passed at the trial, substituting a verdict of “Guilty but insane” for the verdict of “Guilty. We order that the appellant be kept in custody as a Criminal Lunatic at the Mental Hospital, Accra, where he may receive necessary and adequate treatment, until the Governor-General’s pleasure shall be known.
