REPUBLIC vs. MATE ALIAS DONKOR [1973] 2 GLR 254

NATURE OF PROCEEDINGS

APPEAL from a ruling of Anterkyi J. sitting with a jury in the High Court, Sunyani, acquitting the accused of murder. The facts are fully stated in the judgment of the court.

COUNSEL

Asamoah, Senior State Attorney, for the Republic.

No appearance by or for the respondent.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of the court. The Republic appeals against the ruling of Anterkyi J. in a murder case decided on 21 January 1972. By that ruling, the learned judge held “that no sufficient case has been made out to warrant the accused being called upon for his defence.” He accordingly advised the jury to return a formal verdict of not guilty. This they did resulting in the acquittal of the respondent.

The Republic says that ruling was erroneous and that it resulted in a substantial miscarriage of justice. We were accordingly invited to reverse it and make such order as the justice of the case warrants. The learned judge’s finding of “no case” was arrived at after he had excluded as inadmissible, a statement made by the deceased which the prosecution sought to adduce as a dying declaration. The learned judge held, for the reasons which we shall presently examine, that the statement did not satisfy the legal requirements of a dying declaration. This conclusion is seriously questioned by this appeal.

Now to the facts. At about 4 p.m. on 18 July 1970, the respondent called at the house of one Kwame Nantie at Siwuso near Sankore in Brong-Ahafo. The latter was the odikro of the village. The respondent carried with him a blood-stained cutlass. He reported to the odikro that he had just wounded one Avidi with the cutlass as the latter came to his farm and disturbed him. What the disturbance consisted of was that the deceased had held his throat in an attempt to strangle him. The respondent invited the odikro to come with him to the scene where the victim lay. But before this, the respondent surrendered the cutlass to the odikro. The latter accepted the respondent’s invitation and together with some of the villagers, went to the locus in quo. One school teacher by the name of Ohemeng Barwuah was with him. When the party reached the scene, the respondent pointed out the deceased who was lying down. On seeing the odikro and his party, the deceased said: “Nana it is this man who had wanted to kill me” or who “had killed me.” The deceased was rather seriously wounded and it must have appeared to the odikro that his end was near. So when he began narrating his version of what took place, the odikro requested Ohemeng Barwuah, the only literate member of the group, to take it down. The latter faithfully did so. According to the evidence, the deceased was then rather weak and his account was hardly audible. After the deceased’s version of the incident was taken down, he was carried en route to the hospital. He died before reaching there.

[p.256] of [1973] 2 GLR 254

Two days after this, that is, on 20 July 1970, the respondent gave a detailed statement to the police in which he elaborated his version of the incident. It is not necessary to reproduce that statement in full but it shows a motive why either the deceased would like to strangle the respondent, or why the latter would wish to “finish off” the deceased with a cutlass. On what actually happened on that fateful day, the respondent said in his statement:

“I remember on Saturday 18 July 1970, I went to the farm and dug yam. On my way home, I met Avidi heading towards Siwuso village holding a portmanteau, dressed in a pair of trousers and shirt. When he met me, I was on the footpath lying where I was coming from. I replied that I went to dig some yams. He asked me that if it was correct that I have been warned by Madam Docca that I should not step into the farm. I told him I was hungry that I went to dig yams that I myself have planted. He again told me he has been authorised to do whatever he liked with anybody met on the farm. After saying this, he placed the portmanteau down, rushed and held my neck tightly as a result of which a cement paper cap I was wearing went off. I was then holding a cutlass and as I could not do anything and there was nobody around to separate us, I thought my life was in danger, as a result I cut him with my cutlass on the left hand and he left grip of me. I started running towards Siwuso to inform the chief and still he gave me chase and held me. I realised that he actually wanted to kill me so I turned and again I cut him on the side of the head and on the neck as a result he fell down. I left him and proceeded to Siwuso where I reported the incident to Kwaponghene and odikro of Siwuso by name Kwame Nantie.”

It was not possible to confirm the respondent’s story because no third person was present at the encounter. The only other person was of course the deceased and save for his account which was perpetuated through the admirable foresight of the odikro, the only factual account of the incident was what the respondent related.

It is on this score that the prosecution sought to produce in evidence the deceased’s version of the incident on the ground that at the time of narrating it, the deceased believed himself to be in danger of imminent death. The deceased’s statement appeared to have been taken down in the respondent’s absence, but the prosecution claimed that they have an express legislative fiat to produce such evidence and pointed to section 270 of the Criminal Procedure Code, 1960 (Act 30). Its admission was opposed by the respondent’s counsel on a number of grounds which do not seem to us particularly weighty. The learned judge delivered a written ruling and after stating that the statement was sought to be admitted as a dying declaration, continued:

[p.257] of [1973] 2 GLR 254

“From the evidence so far led, evidence has, in my view, been established as tending to show that the declarant’s death was imminent for the first prosecution witness said in evidence that the deceased said ‘It is the accused who is killing me’ or ‘has killed me.’ This also in my view tends to establish that the deceased at that time was abandoning all hope of living at the time. Moreover the ninth prosecution witness who said he wrote the statement at the time identified it and his signature and writing thereon. These circumstances surrounding the existence of the document and the evidence so far led, would appear to support the admissibility of the document in evidence.”

Having found all the facts which justified the admission of the statement as a dying declaration, the learned judge proceeded to reject it on the wholly untenable ground that it was neither made on oath nor attested before a judge or magistrate. As a basis for excluding a dying declaration, the learned judge’s ruling was legally indefensible. It is to his great credit that just over two weeks after this ruling, the judge, suo motu, confessed to the error and said, after refreshing his mind with legal authorities, that he thought that the basis of his ruling had been wrong.

In our opinion, this was clearly the time to correct that error by ordering the admission of the statement in evidence. But having set aside his earlier ruling, he then invited further pointless legal argument. Counsel on both sides obliged. The judge again rejected the statement, this time, on the ground that the deceased himself did not say anything from which the court could infer that he “believed that he was likely to die and that the time of his death was approaching or was near.” The learned judge ended his ruling as follows:

“I cannot infer a belief by the declarant that he was at that time in imminent danger of approaching death, simply from the fact of his allegedly having said ‘It is this man who is killing me’ or ‘It is this man who has killed me.’ For I hold the view that there must have been further utterance to establish the propinquity of time of his death and not merely an utterance that he will die or is being killed merely.”

In view of the judge’s earlier assessment of the evidence and his view that the deceased made the statement when his “death was imminent” this second holding was a complete factual somersault. There is nothing in the section which the judge was construing which requires that the deceased must state when his impending death was to take place. If a declaration was made when the deceased believed himself in danger of approaching death, it would not matter that he lingered long afterwards. The relevant part of section 270 merely enjoined the court to be satisfied that, “the deceased at the time of making the declaration believed himself to be in danger of approaching death.” Although the requirement that the deceased must have believed himself to be in danger of

[p.258] of [1973] 2 GLR 254

approaching death necessitates a determination of his state of mind, this subjective element can be determined objectively. A useful test is to ask oneself the question, “In view of what the deceased said or did at the time and having regard to the nature of his injuries and the surrounding circumstances, would a reasonable person conclude that the deceased believed his death to be imminent?” If that is a fair question, how can it be answered on the evidence?

That the deceased was gravely ill at the time the odikro and his party reached the scene, can hardly be in doubt. He then lay down, according to the witnesses, in a pool of blood. His left wrist was almost completely severed from his forearm. He had rather serious injuries to such vulnerable parts of his body as the head and neck. According to the medical evidence, there were three deep wounds to the neck alone. There was an equally deep wound on the left scalp extending to the back of the head. There were also stab wounds on the left elbow and left forearm. It was while the deceased was in this condition, that he said to the odikro “It is this man who has killed me” or words to that effect. He was then said to be extremely weak and could hardly speak. His death followed shortly afterwards. We think the only conclusion which the evidence and the circumstances warrant, is that at the time when the deceased made the declaration which Ohemeng Barwuah reduced into writing, he had abandoned all hope of life. He clearly believed that death was just around the corner, as indeed it was. We think the statement which he made and which the prosecution sought to tender in evidence, was admissible as a dying declaration within the meaning of section 270 of the Criminal Procedure Code. In our opinion, the judge’s contrary holding was wrong.

This conclusion is not however per se determinative of this case because section 406 (1) of the Criminal Procedure Code, 1960 (Act 30), enjoins us not to upset the judge’s ruling unless such error as he made has in fact occasioned a substantial miscarriage of justice. The Republic says that the wrongful exclusion of the dying declaration has in fact resulted in a grave miscarriage of justice because the jury were thus disabled from hearing and considering evidence which was material to the just determination of the case. We think this contention is well-founded. What was contained in the dying declaration was the deceased’s account of the incident. As there was no other witness, it seems to us crucial that this account, if legally receivable in evidence, should be considered along with the respondent’s version of the incident. What the deceased said and what the judge’s ruling disabled the jury from considering was as follows:

“I prepared to travel to Guaso and I decided to pass through Siwuso to say good-bye to my brothers. I passed through Asante’s village and on my way to Siwuso, I met the Krobo man. He simply told me that my meeting of him at that spot means my life is ended.

[p.259] of [1973] 2 GLR 254

He first cut my left hand, then my neck and I started to run away.

He chased me with the cutlass cutting me here and there until I fell down unconscious.”

If this version of the incident represents the truth and this is a matter whose determination our law, has, in its wisdom, committed to the good sense of the jury (section 279 of Act 30) there can be no doubt that the respondent merely set upon an unarmed man and literally hacked him to death. The evidence shows that the respondent had a motive for doing this. The deceased was put in charge of a farm one half of which the respondent claimed unsuccessfully. The judge’s erroneous ruling disabled the jury from deciding whether the deceased’s version was true or false. Having wrongly shut out the Republic’s evidence which plainly shows that the harm caused to the deceased was unlawful within the meaning of section 37 of the Criminal Code, the judge felt able to hold that the prosecution failed to prove “that the harm caused by the accused was unlawful.” He then proceeded to withdraw the case from the jury and directed them to acquit which they did. We think the erroneous exclusion of the dying declaration and the course which the trial took consequent upon it, resulted in a failure of justice and in our opinion, a substantial one at that. In our judgment, the Republic was right in its contention.

It was also seriously contended for the Republic that the learned judge was wrong in holding that the harm which the respondent caused to the deceased was not unlawful. It was said that on the respondent’s own showing, he first struck the deceased on the wrist and in view of the debilitating injuries he sustained, the further infliction of harm on him was unnecessary for his defence and was in any case in excess of the harm that was reasonably necessary in the respondent’s own self-defence. Counsel relied strongly on section 32 (b) of the Criminal Code, 1960 (Act 29). This contention is not without merit but is essentially a matter for the determination of the jury. As this matter will, in the view that we take, be again debated before the jury, we refrain from pronouncing on this contention.

In view of our holding that the error committed by the judge and the consequent withdrawal of the case from the jury resulted in a substantial. miscarriage of justice, we think this is a proper case to exercise our powers under section 12 (7) of the Courts Act, 1971 (Act 372), to order a retrial.

We accordingly allow the appeal and set aside the ruling of the court and the verdict of the jury. We order that the respondent be retried by the High Court, Sunyani, by a judge (other than Anterkyi J.) sitting with a fresh jury.

DECISION

Appeal allowed.

New trial ordered.

S. O.