COURT OF APPEAL
DATE: 11 DECEMBER 1967
BEFORE: AZU CRABBE, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) R. v. Perfect (1917) 117 L.T. 416; 25 Cox C.C. 780; 12 Cr.App.R. 273, C.C.A.
(2) R. v. Hopkins-Husson (1949) 34 Cr.App.R. 47, C.C.A.
(3) R. v. Chalk [1961] Crim.L.R. 326, C.C.A.
(4) Konkomba v. The Republic [1967] G.L.R. 717, C.A.
(5) Oledima v. R. (1940) 6 W.A.C.A. 202.
(6) Gyan v. R. (1954) 14 W.A.C.A. 412.
(7) Nwokocha v. R. (1949) 12 W.A.C.A. 453.
NATURE OF PROCEEDINGS
APPEAL against conviction for manslaughter entered by Wiredu J. sitting with a jury at the High Court, Accra. The facts are sufficiently stated in the judgment of the court
COUNSEL
Appellant in person.
S. M. Boison, Chief State Attorney, for the respondent.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. The appellant was on 3 February 1966, convicted before Wiredu J., sitting with a jury, of the offence of manslaughter and was sentenced to five years’ imprisonment with hard labour. In the indictment the particulars of the offence were stated as follows:
“Particulars of Offence Isaac Biri Twum on 3 November 1964, struck one Edward Kofi Badu, now deceased, blows with his fist at the Crommer Road-Rippon Avenue junction at Korle Wokon, Accra, as a result of which the deceased sustained injuries out of which he died the next day at the Military Hospital. Accra.” The jury returned a unanimous verdict of guilty of manslaughter, and after sentencing the appellant, the learned trial judge recorded his disagreement with the jury’s verdict in these words, “To me the verdict of guilty cannot be supported, but I am bound by it.”
[p.726] of [1967] GLR 724The case for the prosecution was briefly as follows: On or about 3 November 1964, at about 5 p.m. the deceased, a police constable, who was off duty, was seen drinking with friends at a palm-wine bar at Korle Wokon in Accra. The appellant was also seen standing outside the bar at about the same time, but he later went inside and joined the deceased and his friends in the drinking. One of the deceased’s friends called Kofi Minta invited the deceased to another bar called Lumumba Cafe to continue with their drinking. Just at this time the appellant also stopped drinking and followed them. He demanded from Minta a debt of 7s. which he later said was 14s. But Minta asked the appellant to exercise patience, for he intended on his return with the deceased to the palm-wine bar to settle the debt. When the deceased and Minta had almost finished their drink at the Lumumba Cafe, the appellant entered. Minta offered him a drink, but he declined to accept it. When the three of them got out into the street the appellant renewed the demand for his money from Minta. Minta refused to pay the appellant the alleged debt of 14s., and at this juncture the appellant held Minta’s shirt by the shoulder. The subsequent course of events was narrated by Minta in his evidence as follows:
“Badu told the accused that what he was doing was not good. He still held my shirt; Badu passed his hand behind me and held the accused’s hands to remove his hand from me. The accused drew his hand away. We took one step then the accused crossed me in front and hit Badu on the chest with his left hand and hit him in the face [according to demonstration between the face and the chest]. He fell down and would not get up.
Many people came there. He fell flat.” The witness said that the deceased bled from the nose. Another eyewitness, one Kojo Yirenkyi, (the first prosecution witness), also described the incident as follows:
“There seemed to be friction between the accused and the third man. It resulted in a fight and the accused knocked the third man with his fist on the cheek (nasum in Twi, toi in Ga). There was exchange of blows and the accused knocked the other man down. Mintah was just standing. When the accused gave the other man a blow he fell down and could not get up. I went and asked the accused whether he had seen what he had done. He did not reply. Blood was oozing from the nose and mouth. I asked the two of them to help me take him to a stand-pipe to wash away the blood. They did so and I asked them to carry him to where we could get a taxi. We did so.”
[p.727] of [1967] GLR 724
The deceased was carried in an unconscious state to the James Town Police Station, but he was transferred by the constable on duty, A. B. Abu to the Military Hospital, where he died the next day. On 5 November 1964, Constable Abu identified the dead body to Dr. Kay who performed the post-mortem examination and issued a report as to the cause of death. This report was tendered in evidence and marked exhibit A. On 8 November 1964, the appellant was charged with murder, but this was reduced to manslaughter. He was cautioned and he made a statement in which he said that he was relying on a previous statement, exhibit B, which he had made in the presence of an independent witness.
At the trial Dr. Kay was not available to give evidence, but the prosecution called Dr. William Neizer Laing, senior government pathologist at the Korle Bu Hospital, to interpret and explain a copy of Dr. Kay’s post-mortem examination report which he had received in December 1965. After Dr. Laing had done this he was further asked by prosecuting counsel to give his opinion “as to the probable cause of these explanations he has given as an expert.” Counsel for the defence promptly objected to this question on the ground that Dr. Laing could not give an opinion in the matter. The learned trial judge made the following ruling: “I am of the opinion that the doctor can give an opinion in the same way as the one who performed the post-mortem examination could have done.” We do not consider it necessary to examine the medical evidence as to the cause of death or to comment on the learned trial judge’s ruling in view ofthe opinion which we shall express presently as to the admissibility of the post-mortem examination report.
The defence did not dispute the evidence for the prosecution as to the demand for the debt at the Lumumba Café, but as to the events which ultimately resulted in the death of the deceased the appellant gave a slightly different version as follows:
“I asked him for the amount of 14s. plus 7s. He did not give me the money. He asked me to take a car to let us go to ask the woman how much was due. I stopped a taxi and he refused to board it. I came and held his shoulder to ask him why he did not want to go. Badu then held my hand, and twisted it behind me. I drew my hand from him. He then slapped me, I turned to ask him why and he rushed at me. I tried to ward him off and my hand struck him by the cheek. He was drunk. From how I saw him, he was dead drunk else he would not have fallen down. He fell down.”
Answering a question by the jury, the appellant said, “I slapped him. I was not annoyed. It did not hit him hard. It could not hurt
[p.728] of [1967] GLR 724
him. I drank at the palm-wine bar. I was not drunk. As I hit him he fell down because he was drunk. He fell flat at the back —at a tarmented place [sic].” In his statement to the police, exhibit B, the appellant spoke about his fight with the deceased, and then said, “When the deceased fell down, he was bleeding from an injury on the left cheek. I took him to the stand pipe to wash the blood … I knocked him with a blow but nothing [else].” The first witness for the prosecution, Kojo Yirenkyi, said that he saw the appellant “raining blows” on the deceased, though he was not prepared to guess the number of blows that the appellant struck at the deceased. It seems to have
been common ground that when the appellant struck down the deceased, the deceased began to bleed, and the preponderance of the oral evidence was that he bled from the nose and mouth. The appellant has now appealed to this court against his conviction on the following grounds:
“(1) That the jury failed to appreciate the evidence and the law involved in the case.
(2) That the conviction cannot be supported having regard to the evidence and the law involved and is therefore unreasonable.”
The appellant, who was not represented at the hearing, was unable to satisfy us how the jury failed to appreciate the evidence and the law. The facts in this case are relatively simple, and the law to be applied does not appear difficult to comprehend, and we do not see the basis for the allegation that the jury did not appreciate the evidence and the law. This ground of appeal must therefore fail.
In considering ground (2) of the grounds of appeal we wish first of all to advert to the observations of the learned trial judge that the verdict of the jury could not be supported. We would say that the fact that a trial judge has expressed doubt about the verdict of the jury, or disagreed with it, is not decisive in the Court of Appeal. In R. v. Perfect (1917) 12 Cr.App.R. 273, C.C.A. the appellant appealed against her conviction on the certificate of the trial judge in which the judge stated, “I think the verdict was quite wrong . . .” It was urged on behalf of the appellant that the verdict was so unreasonable that it should not be allowed to stand. Dismissing the appellant’s appeal in that case the court observed at p. 274:
“It is obvious that the judge wished the jury to acquit her. The questions in issue at the trial were purely questions of fact, and were, therefore, for the determination of the jury, and not for that of the judge. Unless we, sitting in this Court, are prepared to
[p.729] of [1967] GLR 724say that, when a judge differs from a jury on a finding of fact, we ought to conclude that the verdict is unreasonable, or that there has been a miscarriage of justice, we cannot quash this conviction.”
The fact that the judge at the trial had expressed his disagreement with the verdict of the jury, though this is a matter to be taken into account in the Court of Appeal, is not a sufficient ground by itself for interfering with a conviction: see R. v. Hopkins-Husson (1949) 34 Cr.App.R. 47 at p. 49, C.C.A. where it was laid down that:
“If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this Court will not set aside the verdict of Guilty which has been found by the jury.”
See also R. v. Chalk [1961] Crim.L.R. 326, C.C.A. We agree with this proposition which we adopt and intend to apply it to the present case. We intimated to counsel for the Republic right from the beginning of the hearing of the appeal that the only point of substance worthy of serious consideration in this appeal was whether the learned trial judge was right in admitting in evidence the post-mortem examination report, exhibit A, for the purpose of proving cause of death. In view of the importance of this point, which has never before been seriously raised, we acceded to a request by counsel representing the Republic for an adjournment to enable him to address us fully on the point. Fortunately, the same point was neatly raised again and thrashed out before us in the case of Konkomba v. The Republic [1967] G.L.R. 717, C.A. in which we have this morning delivered our judgment. The relevant provisions of the Criminal Procedure Code, 1960 (Act 30), which govern the admissibility of scientific reports in evidence are contained in section 121 (1) and (2). These provisions are:
“(1) Any document purporting to be an original report under the hand of any Government medical practitioner, analyst, chemical examiner or geologist, or of any assayer or mineralogist recognised by a Minister for the purposes of this section by notification published in the Gazette, upon any substance or thing submitted to him for examination or analysis and report, may, if it is directed to the Court or is produced by any police officer to whom it is directed or someone acting on his behalf, be used as evidence of the facts therein stated in any enquiry, trial or other proceeding under this Code.
[p.730] of [1967] GLR 724
(2) Any document purporting to be an original report under the hand of a qualified medical practitioner relating to the nature or extent of the injuries of any person certified to have been examined by the practitioner, may, if it is directed to the Court or is produced by any police officer to whom it is addressed or by someone acting on his behalf, be admitted as evidence of the facts therein stated in any trial before a District Court.”
In construing these two subsections in the Konkomba case we said at p. 721: “The plain object of section 121 (1) is to relax this rule in respect of certain scientific reports. This subsection is general and relaxes the rule in respect of all courts. Section 121 (2) however, makes special provisions for injuries to persons but limits its applicability to the district court. It would seem therefore that medical reports specifying injuries to persons were not intended to be covered by section 121 (1).” We then held at pp. 722-723 that: “evidence which relates to the nature or extent of injuries suffered by any person whether living or dead which is sought to be tendered in a criminal trial in a court other than the district court must be viva voce, thus affording the person against whom it is tendered, full right of cross-examination.” Following our decision in the Konkomba case, therefore, we hold that in this case Dr. Kay’s post-mortem examination report, exhibit A, was wrongly admitted in evidence. Consequently, in our view, the entire evidence of Dr. W. N. Laing, who purported to interpret and explain exhibit A, is completely valueless.Therefore, when the evidence about exhibit A as well as that of Dr. Laing is excluded there is no other medical evidence of the cause of death. But the question is: Is that necessarily fatal to conviction? We think not. It is not sufficient to prove that the act of the accused person could have caused death; the evidence must show that the act of the accused did cause the death of the deceased or accelerated his death, and it must also exclude the possibility ot’ death having been due to some other cause: see Oledima v. R. (1940) 6 W.A.C.A. 202; Gyan v. R. (1954) 14 W.A.C.A. 412 at p. 413 and Nwokocha v. R. (1949) 12 W.A.C.A. 453, where it was said at p. 455 that: “As regards the proof of the cause of death we agree that medical evidence, though desirable, is not essential. But to make the accused criminally liable in cases of this kind, there must be
[p.731] of [1967] GLR 724
clear evidence that the death of the deceased was the direct result of the negligence of the accused to the exclusion of all other reasonably possible causes.”
The evidence in this case is that the deceased who was a healthy and able-bodied police constable was hit in the face by the appellant. The deceased fell down and bled from the nose and mouth. He was carried in an unconscious state to the police station and was admitted to the Military Hospital, where he died the next day. In these circumstances we cannot see what other reasonable possible causes of death there could be other than that the proximate cause of death was the act of the appellant.
The summing-up was, with all due deference to the learned trial judge, rather confused and lacking in clarity, but in one passage he said: “In this state of affairs what actually killed him? Was it the result of the fracture of the skull or the aedema found in the lungs due to excessive drinking which alone could cause aedema. If you are in doubt that doubt should go to the accused and you have to acquit him. If on the other hand you consider that it was the fracture of the skull then you have to go further to ask yourself, was it accused who caused that harm to him, and if so was he justified or not.” By convicting the appellant, the jury, as the judges of the facts, must have come to the conclusion that the damage which the appellant caused to the deceased’s skull was the direct cause of death. There can be no justification in law for this savage attack on the deceased. We do not think that the verdict in this case is one which a reasonable jury could not arrive at, and in these circumstances we will not interfere with it.
Therefore, this appeal is dismissed.
DECISION
Appeal dismissed.
S. Y. B. B.
