COURT OF APPEAL
DATE: 11TH DECEMBER, 1959.
BEFORE: KORSAH C.J., VAN LARE J.A., AND GRANVILLE SHARP J.A.
CASES REFERRED TO
(1) Mary Griggs’ Case ((1660) T. Raym., 83 E.R. 1);
(2) R. v. Brittleton ((1884) 12 Q.B.D. 266);
[p.438] of [1959] GLR 436
(3) The Lord Audley’s Case (123 E. R. 1140);
(4) R.v. Dogbe (12 W.A.C.A. 184);
ARGUMENTS OF COUNSEL
Adamafio for appellant (Oboddae). There is nothing on record to show that appellant’s marriage to his wife was not a Christian marriage. The natural presumption must be in favour of the accused that his wife was not a competent witness without the consent of the accused (R. v. Dogbe (12 W.A.C.A. 184)). In fact she was called as a witness against him without his consent. Further, the trial-Judge failed to direct the jury that this was a fight in the accused’s own room, and the accused’s evidence was that the assault continued in the room.
Glasgow for respondent (Crown). It is conceded that it does not appear that the marriage was other than a Christian marriage. It is further conceded that murder is not an offence in which a wife can give evidence for the prosecution under the Common Law. But the wife’s evidence in this case was clearly in favour of the accused husband, and the Court is asked to apply the proviso to sec. 10(1) of the Court of Appeal Ordinance. It is conceded that in relation to the question of provocation the use of the word “retaliate” is unfortunate. But the learned Judge cannot have intended to use that word in its usual meaning, and it is submitted that in spite of the use of this word the direction given to the jury was clear and proper.
JUDGMENT OF KORSAH C.J.
Korsah C.J. delivered the judgment of the court.
(After stating the facts his lordship proceeded:-)
It will be observed that apart from the statement of the appellant to the effect that deceased followed him to his (appellant’s) room, no other witness has testified that the parties left the yard at any time prior to the deceased’s crying out that he had been stabbed. Furthermore, the allegation of the appellant that deceased followed him to the room alleges merely that deceased grasped him (the appellant) with both hands. There is no evidence of any fight in the room, even if the appellant’s version were accepted.
On appeal to this Court, however, Counsel for appellant has raised an important question of law, which had obviously been overlooked at the trial. Neither Counsel for the defence, nor Counsel for prosecution, mentioned it during the proceedings, and. it is obvious that the learned Judge did not give consideration to it in the course of the proceedings or in the summing-up. It is raised in the 1st ground of the additional grounds of appeal, and is as follows: “That the wife of appellant was not a compellable witness and the learned Judge should not have allowed
her to be called by the prosecution.”
This ground is based on the common law rule, which in Mary Grigg’s Case ((1660) T. Raym, 83 E. R.1) was stated thus. A wife cannot be admitted at common law to give evidence against her husband, or vice versa, in any indictable crime other than treason. And in
[p.439] of [1959] GLR 436
R.v. Brittleton ((1884 12 Q.B. 266), upon a trial of a married woman jointly with another person for larceny of the property of her husband, the husband was called as a witness against his wife. It was held that the evidence of the husband was improperly received, and the conviction which had taken place, founded upon it, was bad against both prisoners.
To this rule, however, there have been important exceptions, e.g. (a) Treason (Griggs’ Case) and (b) where the crime is one of violence, and affects the person of wife or husband (The Lord Audley’s Case (123 E. R. 1140)).
It will be observed that the common law rule was restricted to persons legally married, and has been modified by various English statutes, e.g. Criminal Evidence Act, 1898. The law in this regard, applicable to this country, is contained in section 122 (1) of the Criminal Procedure Code which reads:
“In any enquiry or trial the wife or husband of the person charged shall be a competent witness for the prosecution or defence without the consent of such person-
(a) in any case where the wife or husband or a person charged with an offence may at common law be called as a witness without the consent of that person;
(b) in any case where such person is charged with an offence under sections 182, 183, 184, 185, 190, 191, 192, 200 and 201 of the Criminal Code;
(c) in any case where such person is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.”
And by section 2 of the same code “Husband and Wife” means a husband and wife of a Christian marriage,’ “ while “Christian Marriage” ‘means a marriage which is recognised by the law of the place where it is contracted as the voluntary union for life of one man and one woman to the exclusion of all others.’“
In view of the fact that in this country there are other legal marriages not necessarily monogamous, it is of great importance to observe that, before a woman or man who is described as husband or wife gives evidence, the Court should be satisfied with respect to the type of marriage which the couple had contracted.
In R. v. Dogbe (12 W.A.C.A. 184) it was held: “That the natural presumption must be in favour of the accused that she (his wife) was not a competent witness without the consent of the accused (which was not sought for or given) and was not in any event compellable.”
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In the instant case, the evidence of Adokai, the prisoner’s wife (called by the prosecution) reads: “Well-on that Friday night I was sleeping and heard quarrelling in the yard so I got out and saw my husband and last witness Marku quarrelling. I asked what the quarrel was about but neither gave me any answer; so I separated them. Thereafter as my baby behind my back was crying I took the child outside the house to walk about with it a little. I was walking about when I saw deceased together with Kpabi and Mensah pass into the house -I then went into the house-I then heard P.W. 1 report to the husband that my husband had quarrelled with her in his absence – Then I saw deceased kick my husband. Again my baby started crying so I was perambulating with it in the yard and did not notice what happened-Later on I heard deceased’s wife crying outside the house and learnt her husband had died.
Q. When he got up did you not see deceased follow him up with blows?
A. I did not notice that.
Q. But did you notice a fight ensuing between them after the kicking?
A. I only saw the one kick which resulted in my husband falling down-After which my baby commenced to cry and so I focused my attention on my baby.”
In our view, the evidence of the prisoner’s wife did not in fact incriminate him; on the contrary, as regards the assault, she appears to have observed only what deceased did to her husband. In these circumstances the question arises whether the mere fact that she gave evidence, though not competent or compellable, can be deemed sufficient to vitiate the whole proceedings and to entitle the appellant to be acquitted, or can the Court after expunging the evidence of the prisoner’s wife (which is inadmissible) uphold the conviction if there is ample evidence aliunde on record proving the prisoner guilty of murder, or of any other crime?
It must be pointed out that in delivering the judgment in the case of R. v. Dogbe, to which we have referred, the learned Judge thought it right to stress that the Court was not in a position to say that the evidence of the wife had not been a decisive factor with the jury in reaching their verdict. By the proviso to section 10 (1) of the Court of Appeal Ordinance “the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no
[p.441] of [1959] GLR 436
substantial miscarriage of justice has actually occurred.” We are of opinion that no miscarriage of justice resulted from the calling of the accused’s wife, whose evidence was in fact colourless, or (if anything) in his favour.
Counsel also contends that the learned Judge misdirected the jury when, in his summing-up, he said “Next, having regard to the evidence of the accused’s wife that the accused was kicked down, on the assumption that you accept that, do you think the mode of retaliation commensurate or proportionate to the injury, if any, inflicted by the deceased?” It is unfortunate that the learned Judge described what accused did as retaliation, and repeated the word “retaliate” three times in the summing-up when describing what acts by an accused might reduce murder to manslaughter.
A charge of murder would be reduced to manslaughter if by reason of such extreme provocation, or other matter of partial excuse, the accused was deprived of the power of self-control; or, if he was justified in causing some harm, but being deprived of the self-control by terror of immediate death or grievous harm, he caused excessive harm. The behaviour of a person deprived of the power of self-control can hardly be described as retaliatory, and we are unable to say what the verdict would have been if the jury had been properly directed in this regard. If the appellant, as he alleges, was followed into his room by deceased, there might not have been sufficient time for appellant to reflect upon what action he should take to ward off the attack, and the injury to the deceased (inflicted while appellant was being attacked) might have been inflicted when appellant was deprived of the power of
self-control.
In the circumstances, we consider that the evidence adduced would more correctly have supported a verdict of manslaughter, if the jury had been properly directed on this question. We accordingly quash the conviction of murder, substitute a conviction of manslaughter and quash the sentence of death.
DECISION
The appellant is sentenced to imprisonment for 15 years with hard labour.
