SUPREME COURT, ACCRA
DATE: 26TH OCTOBER, 1962
BEFORE: VAN LARE, OLLENNU AND AKUFO-ADDO, JJ.S.C.
CASES REFERRED TO
(1) R. v. Mensah (1948) 12 W.A.C.A. 346
(2) R. v. Doherty (1887) 16 Cox. C.C. 306
(3) R. v. Bateman (1925) 19 Cr.App.R. 8, C.C.A.
(4) Andrews v. Director of Public Prosecutions [1937] A.C. 576; 26 Cr.App.R. 34; [1937] 2 All E.R. 552, H.L.
(5) R. v. Nwokocha (1947) 12 W.A.C.A. 453
NATURE OF PROCEEDINGS
APPEAL against a conviction for manslaughter entered by Scott, J. sitting with a jury in the High Court, Cape Coast, on the 15th December, 1961. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
Abban for the appellant.
Hewlett for the respondent (the State).
JUDGMENT OF AKUFO-ADDO J.S.C.
Akufo-Addo J.S.C delivered the judgment of the court. The appellant was charged on a bill of indictment before Scott, J., sitting in the High Court at Cape Coast with the manslaughter of one Kofi Sowah on the 15th December, 1961, contrary to section 51 of the Criminal Code, 1960.1(1)
Although the particulars of the offence appearing on the indictment, following the form provided in section 201 of the Criminal Procedure Code, 1960,2(2) contained no allegation of negligence (and it is doubtful whether such an allegation is not essential), it is quite clear from the proceedings that the prosecution’s case was that the said Kofi Sowah died as a direct result of the personal negligence of the appellant. Evidence of the circumstances in which the killing occurred was provided by the appellant’s own statement made to the police and his evidence in court, and also by the testimony of two witnesses for the prosecution who were in the company of the deceased when the latter was killed.
Briefly stated the appellant’s story was that on the night of the 14th December, 1961, he went, armed with a double-barrelled gun, from his village Twirdua to the Broniso Forest (which appears to be another name for Afofosu Forest referred to in the indictment) to hunt for game. He was in the forest until about one or two o’clock in the morning of the 15th December, 1961, when not being successful in killing any game, he decided to return home. On the journey homeward and whilst still in the forest, he saw a reddish light on the ground, which according to him looked like the reflecting eyes of an animal. He dimmed the light of his hunting-lamp twice, flashed the lamp once in an effort to satisfy himself as to the nature of the object from which or emanated the light, and in the same effort he whistled four times to attract the attention of any human beings who might happen to be about, but heard nothing. Apparently if there was any human being about he should have whistled back. The object was still there and he shot at it. To his dismay be heard the agonising cry of a human being who had obviously been hit by the pellets from his gun. He was frightened and ran away. He later reported the incident to some relatives and the police. The appellant’s statement was tendered by the prosecution.
The evidence of the two prosecution witnesses Amoatey and Ba, who had also gone in the company of the deceased to the same forest for hunting on that same night of the 14th December, 1961, was that
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after their several parambulations in the forest they met at an agreed spot, lit a fire by which they cooked themselves a meal, and then lay themselves on the ground to rest their limbs. According to Ba, they put out the fire, and according to Amoatey they stood their hunting-lamp by their side. The evidence shows that the light which the appellant saw must have been that of the hunting-lamp and not the light from the fire on which Amoatey, Ba and the deceased had prepared their meal. The colour of the light of the hunting-lamp was reddish as is the colour of the reflecting eyes of some animals, according to one of the witnesses for the prosecution. This was the case for the prosecution which the appellant was called upon to answer.
It is not clear from the evidence what acts of omission on the part of the appellant the prosecution relied on to establish negligence, but in this court learned counsel for the State on being asked by the court what the appellant should have done which he did not do in the circumstances, submitted that the appellant should have shouted before he fired his gun, because he should have known that this forest was a resort which hunters from the neighbouring villages frequented at night. Learned counsel went on to submit that since hunters travelled about ten miles from the neighbouring village to hunt in this forest, the appellant should have known that it was the common practice for night hunters to rest themselves on the ground, and went on further to invite us to hold that such a practice was one that could reasonably be expected of hunters who resorted to the forest at night.
Negligence, whether it be a ground for a claim in a civil court for compensation or an essential ingredient in the constitution of a crime, is the omission to take care where there is a duty to take care, with this difference that whereas in a civil claim there are no degrees of negligence, such degrees exist in a criminal court. Section 51 of the Criminal Code, 1960, lays down the degree of negligence necessary to constitute the felony of manslaughter in the following terms: “Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter. Provided that if the harm causing the death is caused by negligence he shall not be guilty of manslaughter unless the negligence amounts to a reckless disregard for human life.”
It is significant to note that the degree of negligence required in the other crimes provided in our Criminal Code falls very short of conduct amounting to recklessness. Section 12 of the Code provides that: “A person causes an event negligently if, without intending to cause the event, he causes it by voluntary act, done without such skill and care as are reasonably necessary under the circumstances.”
The degree of negligence contemplated by this section amounts to little more than what is required to ground a civil claim for compensation; see R. v. Kwasi Mensah,3(3) a case decided at a time when the law in this country drew no distinction between the degree of negligence required to found the felony of manslaughter and that required for other crimes.
The present law of manslaughter by negligence in Ghana appears to be the same as the common law of England on the subject, and, indeed, the term “reckless” appears to have been borrowed from the various descriptions, employed by the English courts, of that degree of criminal
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culpability necessary to found the felony of manslaughter, and some assistance may therefore be derived from reference to some of the important dicta on the subject pronounced by the English courts.
We refer to Mr. Justice Stephen’s charge to the jury in the case of R. v. Doherty,4(4) in which he defined manslaughter by negligence in words that are summarised in the headnote to the report as follows: “Manslaughter by negligence occurs when a person is doing anything dangerous in itself, or has charge of anything dangerous in itself, and conducts himself in regard to it in such a careless manner as to be guilty of culpable negligence.”
In R. v. Bateman,5(5) a case in which a medical practitioner had been found guilty of manslaughter through a negligent surgical operation, Lord Hewart, C.J. delivering the judgment of the English Court of Appeal said: “In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’. ‘complete.’ But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”
This dictum was substantially approved by the House of Lords in the case of Andrews v. Director of Public Prosecutions6(6) in the judgment of Lord Atkin who, after citing the above dictum of Lord Hewart, went on to say: “for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony [i.e. of manslaughter] is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case . . . but it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”
We would also refer to the case of R. v. Nwokocha7(7) a Nigerian case determined by the West African Court of Appeal in which the dictum of Lord Atkin just quoted was relied upon, the Nigerian law of manslaughter by negligence being the same as the English law.
It is interesting from our point of view to note that in the dictum of Lord Hewart quoted above, the learned Lord Chief Justice seems to suggest that in determining the degree of negligence required to found manslaughter it makes no difference whether an epithet is or is not applied to the test required.
In Ghana, however, we are chained to the epithet “reckless,” but in our view this state of affairs does not derogate from the applicability to this country of the very high degree of negligence required for manslaughter which is enunciated by the English cases to which we have made reference.
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The Shorter Oxford English Dictionary defines reckless action or conduct as one characterised by heedless rashness or by carelessness of the consequences of such action or conduct. We have been unable to discover from the evidence in this case any act, either of commission or of omission, on the part of the appellant that can be said to be reckless as that word is understood in the connotation of ordinary language.
Negligence in a hunter who kills a person in the course of hunting is only one instance of negligence in all persons, be they surgeons or lorry-drivers, whose activities or pursuits are likely to endanger human life if the requisite care is not exercised by them, with perhaps this difference that in the case of a surgeon or a lorry-driver it may not be necessary to prove by evidence that in the pursuit of their activities they must have in contemplation the probability of their actions endangering human life, because the very nature of their pursuits is intelligible only within the context of their close contacts with human beings.
The appellant cannot be presumed, in the absence of any evidence establishing that probability, to have in his contemplation the probability that at two o’clock in the morning human beings could be found lying on the ground in a forest reserve such as the forest in question is. It was perhaps a full appreciation of this factor that led learned counsel for the State to invite us in his submission to hold that it must be the practice of hunters in this forest to rest themselves by lying on the ground. If the existence of such a practice was essential for the prosecution in order to affect the appellant with reckless conduct, then we can only say that the prosecution failed in their duty in not establishing that practice by evidence, and we are not prepared to raise a presumption of fact in favour of such a practice. Nor are we prepared to accept learned counsel’s submission that the appellant should have shouted to attract human attention before shooting. We are not even sure, in the absence of evidence supporting this submission, that it is in the interest of hunters in a forest to shout at the sight of animals. Common experience of humanity would seem to suggest that such an act can only result in frightening away the animals. The appellant stated in his statement to the police, which was tendered in evidence by the prosecution, that before he fired his gun, he whistled four times to attract human attention, and this statement was neither challenged by the evidence of Amoatey and Ba, witnesses for the prosecution, who were in the forest on that fateful morning, nor in cross-examination of the appellant.
In our view the learned trial judge should, after the close of the case for the prosecution, have acted under section 271 of the Criminal Procedure Code by directing the jury to enter a verdict of not guilty and acquitting the appellant. Not having done so, however, would not render the conviction bad in law, if the appellant’s evidence taken together with the evidence for the prosecution supplied the quality of evidence required to sustain a conviction. Unfortunately for the prosecution, the appellant’s evidence did not advance their case any further, for the appellant’s evidence was substantially a mere recapitulation of the contents of the statement he had made to the police. There is one more point to which we would like to advert. While it cannot be said that the charge to the jury was wrong, we think that in a case like this it should not be enough to refer to the verbatim terms of section 51 of the Criminal Code by merely telling the jury that to convict
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they must find negligence amounting to “reckless disregard for human life.” We think it essential that this expression should be adequately explained to the jury in the light of the particular circumstances of the case before the court. In our opinion if such an explanation had been forthcoming in this case a verdict of guilty would not have been inevitable. In this regard we quote with respectful approval another dictum of Lord Hewart, C.J., in R. v. Bateman8(8): “it is . . . most desirable that in trials for manslaughter by negligence it should be impressed on the jury that the issue they have to try is not negligence or no negligence, but felony or no felony.”
We conclude from the premises that the verdict of guilty is unreasonable in that it is not supported by evidence on which “reckless disregard for human life” could be properly found.
We therefore allow the appeal, quash the conviction and sentence, and direct that a verdict and judgment of acquittal be entered.
DECISION
Appeal allowed.
Appellant acquitted.
J.D.
