High Court · 29 Mar 1962 · Ghana
CORAM
APALOO J.
In this case, there is a comfortable area of agreement between the case of the prosecution and defence. The accused was at the material time a student nurse at the Central Hospital, Kumasi. He was described by Mr. Doku (P.W.6) as a good student and well behaved. Working in the same hospital, was Adongo Frafra who was employed there as a labourer. It seems from the evidence that he knew the accused well and they both appear to get on well together. Adongo Frafra also had in town a cousin by name Akwaba Frafra.
It is established by the evidence that about one week before the 12th December, 1960, Akwaba’s two-year old son by name Asamprana was taken ill. It is said he had a cough and temperature. Accordingly, Akwaba asked Adongo whether he could get some one in the hospital to come round and have a look at the boy. Adongo got in touch with the accused. I am satisfied that the accused agreed to go to Akwaba’s house and treat the child. Both the accused and Adongo went to Akwaba’s house reaching there about 3 p.m. on the 12th December, 1960. I find the accused took with him a syringe and a drug which turned out to be arsenic. After being told the nature and the history of the illness, accused injected each side of the child’s buttocks with the said drug. I accept the evidence that the accused was asked what fee he would charge for his services. He said one pound. This was promised to be sent to him the next day. Both the accused and Adongo then left Akwaba’s house.
As soon as they left, the child’s sickness took a turn for the worse. He screamed seriously, began to tremble and there was foam in his mouth. Akwaba quickly handed the child to his mother Alufuah and went out to fetch back the accused. Before he returned, the child died in his mother’s arms. The dead body was rushed to hospital in a taxi. At 1 p.m. the following day, Dr. Joshin, the pathologist, performed a post mortem examination on the dead child. As he was unable to arrive at a conclusion as to the cause of death he incised the two sides of the child’s buttocks which were injected and forwarded these to the government chemist together with the stomach, liver, kidneys and a piece of brain. On the basis of the chemist’s report, Dr. Joshin expressed as his opinion that Asamprana’s death was due to acute arsenic poisoning.
The prosecution’s case if I understand it aright is that Asamprana’s death was caused by harm, which harm resulted from the accused’s negligence. The negligence consisted in the fact that the accused who is not a qualified medical man took it upon himself to treat a sick child. In doing so, he used a dangerous drug without skill with the result that the patient died. Although I feel no doubt that the accused mistook arsenic for mepacrine due to their similarity in colour, had he been more skilful than he in fact is, he could have distinguished between the two. In my opinion, his voluntary assumption of the treatment of Asamprana without necessary skill, as he well knew, is itself evidence of negligence.
In the cases of R. v. Awonu (1946) 12 W.A.C.A. 95 and R. v. Mensah (1948) 12 W.A.C.A. 346 it was decided that the law of negligence in this country was more widely defined than in the case of England and Nigeria and that section 14 (1) of the Criminal Code appeared to have codified the law relating to civil negligence then in England. It was accordingly held that cases like Andrews v. D.P.P. [1937] A.C. 576, R. v. Bateman (1925) 19 Cr. App. R. 8 and Akerele v. The King (1942) 8 W.A.C.A. 5, P.C. which laid down the degree of negligence which would suffice to establish manslaughter by negligence, were inapplicable in this country. These cases establish that in order to found criminal liability based on negligence, the negligence must be gross and must pass beyond a mere matter of carelessness and show such disregard for life and safety as to amount to a crime against the State. The position therefore was that from the point of view of an accused person the law of criminal negligence in England was more liberal than the law then in this country. These cases of Awonu and Mensah to which I have referred were decided in 1946 and 1948 respectively. In 1950, the law of manslaughter by negligence in this country was made more conformable to the law of England by a proviso that the negligence to found a charge of manslaughter must amount to a reckless disregard for human life. The result of this amendment is to equate the law relating to criminal negligence in this country to the law of England.
As I have said, the fact that the accused was negligent is plain enough but I cannot find on the evidence that such negligence was gross or amounts to a reckless disregard for human life. At least in one sense at any rate, the accused in responding to Adongo’s invitation and proceeding to Akwaba’s house with a view to attending to his sick child, showed anxious regard for human life. In my judgment, it would not be right to hold that the accused’s negligence amounts to a reckless disregard for human life simply because possibly out of inadvertence or want of care, he mistook the drug that he intended to administer to the sick child. In my opinion, this case is distinguishable from R. v. Ezeocha (1946) 12 W.A.C.A. 56 in which the West African Court of Appeal held that a native doctor who administered bismuth to a patient causing her toxaemia from which she died was guilty of criminal negligence on the ground that while in that case the accused intended to administer a dangerous drug, the accused in this case mistook a dangerous drug for a perfectly harmless one. There is also the fact that in Ezeocha’s case, the native doctor appears to be a wholly untrained person, whereas the accused in this case was a student nurse and was no novice at administering injections. Accordingly, I hold that the prosecution has failed to show that the proved negligence of the accused amounts to a reckless disregard for human life. I therefore share the unanimous opinion of the assessors and find the accused not guilty of manslaughter and acquit him on count one.
With regard to the second count, it seems to me that the accused brought himself precisely within the mischief which section 23 (1) of the Medical and Dental Act, 1959 seeks to prevent. As the accused himself admits, he proceeded to Akwaba’s house on the day in question with the object of treating his sick child and for this purpose, carried with him a syringe and a drug which turned out to be arsenic. In administering this drug to the sick child, the accused clearly practised medicine within the meaning of the section. The accused as he himself admits, is a student nurse and is not a registered medical practitioner and accordingly committed an offence against section 23 (1) of the Medical and Dental Act, 1959. I find him guilty of that offence and convict him on count two of the indictment.
Appearances
A.K. GIKUNOO FOR THE PROSECUTION; ACCUSED IN PERSON.
