REGINA v. GRUNSHIE [1960] GLR 56

DIVISION: IN THE COURT OF APPEAL

DATE: 25TH MARCH, 1960

Beyfore: VAN LARE J.A., GRANVILLE SHARP J.A. AND SARKODEE-ADOO J.

 

CASES REFERRED TO

(1) Holmes v. D.P.P. [1946] A.C. 588.

(2) R.v. Tekyi 7 W.A.C.A. 122.

(3) R.v. Rothwell (1871) 12 Cox C.C. 145.

NATURE OF PROCEEDINGS APPEAL against a conviction for murder before Smith, J., at Sekondi Assizes. The facts are set out in the head note.

COUNSEL

Swaniker for appellant.

Amissah for respondent.

JUDGMENT OF VAN LARE, J.A.

Van Lare, J.A. delivered the judgment of the court:

On the 26th February, 1960, we dismissed this appeal; we now proceed to give reasons for our judgment. [His Lordship referred to the facts, and continued]: There can be no doubt whatsoever that the appellant intentionally caused the death of his deceased wife Kamuri by lawfully harm, in circumstances amounting to nothing short of brutal murder. He was therefore rightly convicted of that offence. In dismissing the appeal, however, we wish to draw attention to a question of law arising out of the summing-up which appears to us to have been at fault—not as against the appellant, but rather as going too far in his favour. This is important, because the jury could have been misled by the summing-up to return a verdict of manslaughter, which was not in law open to them. The opinion we have formed of the facts in this case is that no matter of extenuation whatsoever was proved, or could be inferred in law, on behalf of the prisoner. There was no evidence that the deceased (or the other wife of the prisoner) was seen in the act of adultery with Kofi Grunshie on the fatal night. It was not even suggested that Kofi Grunshie was found in any compromising situation with regard to the wives, from which adultery could be inferred. We find ourselves utterly unable to discover any fact from which provocation could legally be drawn, so as to reduce such intentional homicide to manslaughter. That the deceased’s oral abuse of the prisoner could not amount to provocation so as to reduce the killing to manslaughter was a matter of law, upon which it was the duty of the judge to direct the jury.

Unfortunately the summing-up was silent in this regard. On the other hand, although there was provocation in connection with adultery, the learned trial judge in his summing-up gave a most elaborate statement of law which, we regret to observe, is not the law on the point either in this country or in England.

“In dealing with provocation as justifying the view that the crime may be manslaughter and not murder, a distinction must be made between what the judge lays down as matter of law, and what the jury decides as a matter of fact. If there is no sufficient material, even on a view of the evidence most favourable to the accused, [p.58] of [1960] GLR 56 for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict. It is hardly necessary to lay emphasis on the importance of considering, where the homicide does not follow immediately upon the provocation, whether the accused, if acting as a reasonable man, had ‘time to cool’” (per Viscount Simon in Holmes v. Director of Public Prosecutions [1946] A.C. at p. 597). In the instant case there is no allegation of adultery, and there is no evidence from which such provocation could be inferred. None the less, the learned trial judge had this to say in his otherwise able summing-up:

“I referred in particular to section 251 of the Criminal Code.

There were three questions:

(1) was there any act of adultery?

(2) if so, under such provocation did the accused lose his self-control?

(3) did he kill his wife when he had so lost his control?

“If on the evidence the jury are satisfied the answer to these three questions is ‘yes’, or if they are in any reasonable doubt about it, taking all the evidence into their consideration, then the accused is entitled to a verdict of manslaughter. There was, however, I said, no actual act of adultery committed in the view of the accused according to the evidence. That is, the accused does not say that he saw Kofi Grunshie and either of his wives actively engaged in sexual intercourse when he came back to the room. I said, however, that section 251 (3), in my view, should be given a wider interpretation. I then quoted to the jury (and said I approved) the passage from Russell on Crime (11th Ed.) volume 1, page 589, which counsel for the defence had already quoted.

“It was held not to be necessary that the wife and the adulterer should be caught during the actual period of intercourse; but that if they are found together in circumstances from which immediately recent intercourse is and can safely and correctly be inferred, they may be found in the act of adultery under the meaning of the rule’” Section 251 of the Criminal Code is as follows:

“251. The following matters may amount to extreme provocation

[p.59] of [1960] GLR 56 to one person to cause the death of another person, namely, ………

“(3) An act of adultery committed in the view of the accused person with or by his wife or her husband, or the crime of unnatural carnal knowledge committed in his or her view upon his or her wife, husband, or child,”

We must point out that the law in this country does not permit as wide an interpretation as the learned trial judge enunciated in his summing-up. The Ghana interpretation of this section, in the case of R. v. Tekyi (7 W.A.C.A. 122) is that the section means no more than it says. In considering it, the West African Court of Appeal, Kingdon, C.J. (Nigeria), Petrides, C.J. (Gold Coast) and Graham Paul, C.J. (Sierra Leone), said as follows:

“In the present case the appellant killed his wife upon finding her in circumstances which according to his case pointed very strongly to her having just committed adultery. His counsel asks us to hold that such circumstances come within the words ‘in the view of ‘ in the subsection quoted and so reduced the crime from murder to manslaughter. We see no reason to give the words ‘in the view of’ any other meaning than their natural and ordinary meaning. If the Legislature had intended something different, it would have been quite easy to say so; and we do not subscribe to counsel’s submission.” The present state of the law in England also appears to be somewhat different from the quotation from

Russell and can be found in Holme’s Case, to which we have already referred. The judgment in Holme’s includes the following passage ([1946] A. C. at p. 598):

“The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognised, viz., the actual finding of a spouse in the act of adultery. This has always been treated as an exception to the general rule: R. v. Manning, Blackstone (Commentaries, Bk. IV, p. 190), justifies the exception on the ground that ‘there could not be a greater provocation.’ But it has been rightly laid down that the exception cannot be extended, e.g., by Parke B., in Pearson’s case, where he insisted on the condition of ocular observation. Even if Iago’s insinuations against Desdemona’s virtue had been true, Othello’s crime was murder and nothing else.” It appears to us therefore that the passage from Russell on Crime quoted with approval by the learned trial judge in his summing-up is no authority. The present position of the law in England on the authority of Holme’s Case is that even a sudden confession of adultery by either spouse, without more, can never constitute provocation of a sort which might [p.60] of [1960] GLR 56 reduce murder to manslaughter, and the dictum of Blackburn J., in R. v. Rothwell ((1871) 12 Cox C.C.145) implying the contrary, is no longer good law.

In conclusion, we are of opinion that it was the duty of the learned trial judge, as a matter of law in this case to direct the jury that—

(a) in the absence of ocular observation of adultery, and

(b) there being no unlawful assault and battery, and

(c) as in no case could words of abuse alone suffice, there was no evidence before them to warrant their consideration of provocation, so as to reduce the crime from murder to manslaughter. This he failed to do, but instead he directed them otherwise, in favour of the prisoner. By their verdict, however, the jury (rightly in our view) rejected the favourable direction of the trial judge, and found the prisoner guilty of murder.

For these reasons we dismiss the appeal.

DECISION

Appeal dismissed.