SERECHI AND ANOTHER v. THE STATE [1963] 2 GLR 531

DIVISION: IN THE SUPREME COURT

DATE: 20TH DECEMBER, 1963

BEFORE: SARKODEE-ADDO, OLLENNU AND BLAY JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered upon a verdict of the jury at the High Court, Kumasi. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

Koi Larbi for the appellants.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellants were convicted of the offence of murder by the High Court, Kumasi, upon the verdict of a jury. The incident happened on the 15th December, 1962, in Obuasi town between the hours of 12.15 and 12.30 p.m., and involved some trucks being carried by a mines locomotive engine. The trucks in question are firewood trucks and were described as flat having iron poles. The train started from the Ashanti Goldfields Corporation mines office, Obuasi, travelling to a village called “Mile 14” to load firewood; the locomotive was driven by the first witness for the prosecution, the appellants who were employees of the mines and other persons travelled on it. The case for the prosecution is that the appellants were on duty at the time and that their said duty was to put the trucks back on the rail if there happened to be derailment. Employees of the mines were permitted to travel on the trucks, but it was prohibited to non-employees that they should; that some persons jumped on the trucks as the train started to move on; the appellants who were on the last truck moved from truck to truck towards the engine driving down some of the people who had come on the trucks; the deceased also jumped on one of the trucks at a certain point when the engine was moving slowly, with one hand he held one of the iron poles as he sat and with the other hand he held a piece of sugarcane which he ate as the truck moved on; the appellants came to the truck on which the deceased sat; the second witness for the prosecution described what happened thereafter as follows:

“The accused were beating and pushing the people away from the trucks. When they reached the truck where the deceased sat, the second accused began to beat him with his stick. The first accused did the same with his hand. They were both engaged in beating him in this way until the truck reached the public mortuary. Both accused then pushed him. The deceased then fell unto the rail and three trucks got derailed. All this time the train

[p.533] of [1963] 2 GLR 531 was in motion. When the man fell onto the rail, the truck ran over him. The train then stopped and police came on the scene. The man was badly injured and died on the spot. At the time the accused pushed the deceased onto the rail, the train was going very fast.”

Five other eye-witnesses who watched the incident, four of them passengers on other trucks and one a police constable who was in the street close to the trucks, gave very similar accounts. The defence of the first appellant was that although he was on one of the trucks together with the second appellant when the train started its journey, the train stopped at his request at a spot near the urban council, that he there alighted and went off to the market, and did not know what happened after the train had left the urban council stop. The defence of the second appellant is that he was on one of the trucks together with the first appellant and other people; that after the first appellant had alighted at the urban council he, the second appellant, continued the journey up to the mortuary when he noticed that two trucks had been derailed, so he signaled to the driver who accordingly stopped the train, but he did not see what happened to cause the derailment; that when the train stopped two police constables came to the spot, ordered the train not to move again and then took him and some of the prosecution witnesses to the police station. Each of the appellants denied doing anything to cause the death.The learned trial judge gave a very full and careful direction to the jury on the case both for the prosecution and on the defence of each of the appellants; his summing-up is almost unimpeachable. That summing-up has been attacked in this court on one main ground, namely, that the learned judge misdirected the jury by withdrawing “from the jury consideration of a verdict of manslaughter.” It is quite true that the learned judge did not direct the jury on the issue of manslaughter in any part of his summing-up.

Learned counsel for the appellants submitted that although there was no evidence which could reduce the murder to manslaughter, there was evidence which if believed can make the offence one of manslaughter simpliciter, as distinct from manslaughter which might have been murder but for the existence of certain circumstances. He referred the court to the definition of manslaughter as given in section 51 of the Criminal Code, 1960,11 and submitted that the learned judge misdirected the jury by not directing them that an alternative verdict of guilty of manslaughter under section 50 of the Criminal Code, 1960, was open to them.

Learned senior state attorney on the other hand submitted that there was no evidence which raised an issue of manslaughter simpliciter, and therefore it was not open to the trial judge to have directed the jury on a possible alternative verdict of manslaughter simpliciter. He submitted that this was a simple case of whether or not the appellants did what they were alleged to have done with intent to cause death, bearing in mind intent as defined in section 11 (3) of the Criminal Code, 1960; he submitted [p.534] of [1963] 2 GLR 531 that in the circumstances the learned judge fully directed the jury on the question of “intent that their act should cause death” as distinct from “intent that their act should cause harm”; he submitted that the appellants led no evidence to negative the presumption of intent as laid down in the said section 11 (3), they must therefore be presumed to have intended to cause death. He further submitted that even if there had been misdirection by non-direction as alleged, the evidence was such that if properly directed no jury could have come to any other conclusion than that the offence was murder and not manslaughter. Consequently the senior state attorney submitted that no substantial miscarriage of justice has actually occurred. He therefore submitted that the case is covered by the proviso to section 15 (1) of the Criminal Code, 1960.

Homicide in our law is of four kinds; namely, (1) murder, which is homicide caused intentionally, as defined in section 47 of the Criminal Code, 1960, (2) manslaughter which would have been murder but for the existence of certain circumstances, as defined in section 52 of the Criminal Code, (3) manslaughter which is homicide caused simply by unlawful harm not intended to cause death, as defined in section 51 of the Criminal Code, and (4) manslaughter which is homicide by negligence which is of a nature of reckless disregard for human life, as defined in section 51 of the Criminal Code.

The essential elements of the offence of murder are intent to cause death, and infliction of unlawful harm. The one essential element of the offence of manslaughter simpliciter, is causing it by unlawful harm. Causing unlawful harm is part of the essential elements of the offence of murder.

Now section 154 of the Criminal Procedure Code, 1960,22 provides as follows:

“154. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.” When a man is charged with murder the prosecution, to succeed, must prove each of the essential elements thereof without reasonable doubt, and must go further to prove that there are no circumstances which could reduce the murder to manslaughter. If the prosecution only succeeds in proving that the death was caused by an unlawful harm, but is unable to prove that there was intent that the unlawful harm should cause death, the case of murder must fail, but then the case of manslaughter will have to be considered by virtue of section 154 (1) of the Criminal Procedure Code, 1960; and where evidence leaves reasonable doubt as to whether or not the unlawful harm was inflicted with intent that it should cause death, the

[p.535] of [1963] 2 GLR 531 court will be bound to consider section 154 (1) of the Criminal Procedure Code, 1960, namely, whether a lesser offence has been proved. Therefore where the intent to cause death is not proved, it is the duty of the court to direct the jury that they should act under the said section 154 (1) and return a verdict of guilty of manslaughter only if they find unlawful harm proved. And where the evidence is such that intent to kill might or might not be inferred, it is the duty of the judge to direct the jury that it was open to them to consider the alternative verdict of guilty of manslaughter. The duty of the judge in this regard is as obligatory as his duty to direct the jury to return a verdict of manslaughter where there is positive evidence of provocation which can bring the case within sections 52 and 53 of the Criminal Code, 1960, and to direct them to consider the alternative verdict of guilty of manslaughter only where there is some evidence which may amount to provocation as under sections 52 and 53 of the Criminal Code. Therefore a person charged with murder may be convicted not of murder, but of manslaughter which is homicide caused intentionally through extreme provocation or other extenuating circumstances, or of manslaughter simpliciter, i.e., homicide caused by unlawful harm not intended to cause death. But the obligation upon the judge to direct the jury in any such case can only arise if there is evidence upon which such direction could properly be given.

Now the evidence in this case is that the appellants were beating and pushing people away from the truck and in the course of it beat up and pushed the deceased off the truck. If this is evidence which necessitates the judge drawing the attention of the jury to section 154 of the Criminal Procedure Code, and necessitates a direction as to an alternative verdict of guilty of manslaughter under section 50 as defined in section 51 of the Criminal Code, then the criticism of counsel for the appellant would be therefore well founded.

But as the senior state attorney rightly pointed out, the relevant unlawful harm relied upon by the prosecution to support the charge was not just the beating up, it was the pushing of the deceased onto the rails between two trucks at a time when the train was travelling fast. On this issue the learned judge gave the following directions to the jury:

“Do you think in ordinary experience if a human being is pushed into 3[sic] the rail of a moving train, he would be run over and die instanter? You may think it is not very different from pushing a man on a boat into the middle of the sea so that he gets drowned or perhaps pushing a man into a blazing fire. In either case do you think in the ordinary course of nature the man would die? If you think death is the natural and probable consequence of a human being being pushed onto the rail of a moving train, then you are entitled to conclude that the accused, if you believe the prosecution witnesses, intended the death of the deceased.” This direction to the jury meant that if the jury did not believe or if they had reasonable doubt that the appellants intended by the act of pushing in such circumstances to kill, they should acquit. This misdirection by non-direction is in favour of the appellants, for they would have been acquitted if the jury had had reasonable doubt as to their intent to kill. In the [p.536] of [1963] 2 GLR 531 particular circumstances of this case the learned judge should have directed the jury that under section 11

(3) of the Criminal Code they should presume, from the nature of the harm, that the appellants intended that it should cause the death of the deceased, unless there was evidence from the appellants which showed that they believed that the said harm would not cause or contribute to cause his death. Since no such evidence was led by or for the appellants which could rebut that presumption, the proper direction the judge should have given is that the jury should presume intent to kill as a matter of law from the nature, manner and circumstances of the harm.

Therefore although we agree with the submission that there was misdirection, we are also of opinion that the error was in favour of the appellants, and has not occasioned any miscarriage of justice to warrant the conviction of murder being quashed and one for manslaughter substituted therefor.

For these reasons the appeal is dismissed.

DECISION

Appeal dismissed.

K. T.