ZUTA KWABENA ALIAS KWADJO DONKOR v. THE STATE [1963] 2 GLR 545

DIVISION: IN THE SUPREME COURT

DATE: 20TH DECEMBER, 1963

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

 

CASES REFERRED TO

(1) R. v. McKenna [1960] 1 Q.B.411; [1960] 2 W.L.R. 306; [1960] 1 All E.R. 326; 44 Cr.App.R. 63, C.C.A.

(2) R. v. Mills [1939] 2 K.B. 90; [1939] 2 All E.R. 299; 27 Cr.App.R: 80, C.C.A.

(3) Aidoo v. The State [1963] 2 G.L.R. 84, S.C.

(4) R. v. Kwadwo Mensah [1959] G.L.R. 309, C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction of murder entered upon a verdict of a jury at the High Court, Accra.

COUNSEL

J. Arthur for the appellant.

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 appellant was convicted at the High Court, Accra, for the murder of one Tettey Kwabena, his father aged 70 years. He caused the death by shooting the father with a double-barrelled gun. The appellant is the last of ten children of his parents. Up to about ten years before the incident which led to this case, seven of those ten children had died. Another child, the eighth, one Kofi Baah, died a few weeks before the fateful day. The family were from Dodowa, and are Shai, one of the Adangbe tribes, but live at Akorabo in Akim Abuakwa. The said Kofi Baah was taken to Dodowa his hometown dangerously ill; he died the next day and was there buried; the main funeral custom for him was performed at Dodowa; a smaller funeral was arranged to be celebrated at his village at Kyibu, to begin with a wake-keeping; a small shed was erected for the purpose, and it was in the evening when the wake-keeping was to be held, and a short time before it could start that the tragedy occurred.

While at the funeral in Dodowa, the appellant had accused his father, the deceased, of practising witchcraft, of having killed all his children by his said craft, and having bewitched him, the appellant, and thereby made him sick and impotent; he challenged the father to go with him to a fetish at Ningo called Lakpleku to prove that he was not a wizard; but when the family contributed money and arranged a vehicle for the journey to the oracle, the appellant left Dodowa to go to the village without notice to the family. In a cautioned statement he made to the police upon his arrest, the appellant related the incident as follows:

I fell seriously ill of rheumatic pains and since then my penis became weak and it could not again erect. During my sickness my father Tettey Kwabena told me that he had consulted a fetish priest who told him that my sickness was caused by a certain fetish in his hometown. I have since requested him to take me to the said fetish to perform the rites so that I could recover fully but my father did not heed my entreaties. About four years ago when I became a bit healthy, I went to Ahafo and worked as a farm labourer. While there I visited Wenchi and consulted a certain Mallam who told me that it was my father Tettey Kwabena who was causing my sickness, and

[p.548] of [1963] 2 GLR 545 my impotency. One other trouble which started with those illness was that anytime I take a little alcohol I do not have steady mind. About eight months ago, I returned to Akorabo from Ahafo. Two months later I went to my brother Kofi Baah’s village at Kyibu near Anum Apapam. When I reached there Kofi Baah was seriously ill. I was of the opinion that it was my father who was responsible for Kofi Baah’s sickness by use of his witchcraft. About almost four months Kofi Baah’s sickness was growing serious. I therefore sent for my father who was living at Akorabo. He came to the village and I told him that I had sent for him to see his son Kofi Baah and to decide what to do to get him cured. He later decided to take Kofi Baah to Dodowa. I told my father also that I knew he caused the sickness of my brother Kofi Baah and so I would not go with him to Dodowa, but that if Kofi Baah died he should bury him before he sent for me. He took Kofi Baah to Dodowa on a Wednesday and he died at Dodowa on the next day. My nephew Kwasi Baah sent word to me about the death. A week after, I went to Dodowa. The next day I gave two bottles akpeteshie to the family at the funeral. The elders questioned me why I delayed in coming to the funeral. I made it clear to them that I knew that it was our father Tettey Kwabena who killed my brother Kofi Baah with witchcraft and I feared that if I went to the funeral immediately he might practise the witchcraft on me also. I told the family there about how my father had been responsible for my own sickness and impotency. I told him that he should desist from his evil practice on me so that I also could marry and have children. It became a quarrel between me and my father. During the quarrel my sister Adjoa Dede backed my father and said if even our father was a wizard, I should not have said it and that I should no more call her sister nor visit her. I became annoyed and told her that I believed she and our father were one and had been practising the witchcraft on me together. I warned her that I would teach her some lesson. Later my father reported the matter to Chief Djagbatey of Dodowa and he called the whole family to a meeting. When I returned to Kyibu I did not hear anything about the matter. Last Monday, my nephew Kwasi Baah returned to the village and informed me that my father would come yesterday Saturday, the 23rd February, 1963, for my late brother’s funeral in the village, I told Kwasi Baah and Nartey Nyarkunor that I did not want to see my father’s face and so would leave the village before he came. They both told me that if I did so it would mean that I was afraid of my father. I told them that they knew I had trouble with my father and I did not know what sort of witchcraft he had been practising on me. He did not say anything but said, Huh! I went to the kitchen and drank water. My late brother’s wife Abena Nyemi said she would give me food but I declined. I returned to my room. But that time my sister Adjoa Dede came to the shed and sat down. One Logosu Mensah also was then sitting near Adjao Dede and my father. I then decided to shoot my father Tettey Kwabena and my sister Adjoa Dede and to kill them. I therefore drank some of the akpeteshie. When I wanted to shoot first I feared that Logosu Mensah might be hit by the pellets. I therefore called him into my room in the darkness. I offered him some akpeteshie but he declined to drink. He was then sitting on my bed. I had already loaded both chambers of the shot gun. At that time only Tettey Kwabena and Adjoa Dede were together under the shed. I stood, took the gun, went to the door of my room and shot my father Tettey Kwabena with the large cartridge. My sister Adjoa Dede tried to stand and I shot her also. I then put down the gun. They had a light hanging over their head and I saw them clearly before

[p.549] of [1963] 2 GLR 545

I fired the gun. Kwasi Baah rushed and caught me and he was assisted by other persons and I was tied up.”

The statement fully confirmed the evidence given by eye-witnesses called for the prosecution. When he was formally charged with the offence he made a further statement, in it he said. “I have nothing to add to what I said yesterday. I became annoyed with my sister Adjoa Dede also because she backed our father, who had made me impotent, when I pointed his evil practices to him last at Dodowa. I made my mind to kill both my father Tettey Kwabena and my sister Adjoa Dede and that was why I shot them.” At his trial the appellant made a statement from the dock alleging that he was drunk at the time of the incident and did not know what really happened, and that usually whenever he took a drink he did things which he could not remember when he became sober. The relevant parts of his statement are as follows: “I believe the charge is correct. When I was arrested I made a statement to the police. When my brother died I went to the town and drank to forget my sorrow. I mean the day of the funeral at Kyibu village. When I became drunk I went and slept in my room. When I woke up I found that my hands were tied up and I was told that I fired a gun and killed my father. I was lying on the ground. I told Kwasi Baah and Logosu Mensah to lift me up but they refused to do so. The scout boys came and lifted me up. I recognise the gun in court. It belongs to Papa Yaw Botwe. On the day in question I went to Yaw Botwe’s house. His door was open. I saw some children there, I asked of their mother. They were very young so they could not answer. I went inside the room and found the gun leaning against the wall near the pillows on the bed. I said to myself that the house was by the wayside and somebody might slip in and steal the gun so I took it away and put it in my room. I then went to the town. I drank and came back and back and slept. When I am sorrowing I drink. When I drink, it is not good for me. It makes me unsteady in the mind. I walk about, lie down anywhere and sleep anywhere. On many occasions I got drunk and slept anywhere. On one occasion I was drunk and lay on the road and Kojo Ayebida and Logosu Mensah and Kwasi Baah came and conveyed me to my house. On another occasion when I became sober after being drunk, I was told that I took a cutlass and broke a pot containing water, killed the two puppies of my bitch and cut off the heads of fowls with it. One day an aunt of mine visited me and I went to the town and got drunk. When I became sober I was told that I threw my aunt’s juju away and cut off the head of the fowls in the house. My aunt said she was not satisfied with what she had seen about me so took me to Dodowa to find someone to cure me. At Dodowa my aunt failed to find any jujuman to cure me so I returned to my village. In my statement to the police I said that my father was a wizard. I maintain that he was a wizard. It is not true that because of that I intentionally got drunk and killed him. I got to know that my father was the cause of, or was responsible for my illness five or six years ago. If I had intended to kill him, I would have done so long ago.”

[p.550] of [1963] 2 GLR 545

Three grounds of appeal were argued; these are:

“(1) The learned trial judge misdirected himself and the jury on the verdict to be returned in the case.

(2) The learned trial judge misdirected himself and the jury by non-direction.

(3) The learned trial judge misdirected himself and the jury by giving directions on matters which did not form part of the evidence.”

Rounding up his summing-up the learned trial judge said, “If it is a case of manslaughter, I would have addressed you on manslaughter. I do not think that manslaughter arises in this. There has not been that suggestion at all and counsel himself ruled that out, so what you are going to consider is whether or not the accused was insane at the time. If he was insane, then he is guilty but insane, but if he was not insane, then he is guilty of murder. This is a capital offence and your verdict must be unanimous. But if you do not agree you must come back and tell me and the accused will have another trial. So your verdict must be a unanimous one.”

This passage in the summing-up was vehemently attacked by counsel for the appellant. It was contended firstly that the learned trial judge erred in withdrawing from the jury consideration of an alternative verdict of manslaughter, and that it is the duty of a judge in a murder case to direct the jury to consider all possible defences open to a defendant even if the defence did not raise them or only raised some of them. As a general proposition of law the submission of learned counsel is quite sound. The proposition however applies only to defences which upon the evidence, however slight, are open to a defendant. But where there is no evidence whatsoever upon which any particular defence may be based, there will be nothing upon which the court should direct the jury as to that particular defence. The duty of the jury is to decide upon the facts as disclosed by evidence; the judge would just confuse them if he sums up to them upon hypothetical evidence; nothing can lead to greater injustice than that. Matters and circumstances which can make homicide manslaughter rather than murder are clearly set out in our law; see sections 51 to 56 of the Criminal Code, 1960. ACT 29.1 It is a question of law for the judge to determine whether any particular facts given in evidence satisfies the requirement of the law as matter which may reduce murder to manslaughter. In this case there is not a tittle of evidence on the record which in law may reduce a case of murder to manslaughter. The learned judge was therefore right, in our opinion, in withdrawing manslaughter from the jury.

Secondly, it was submitted on behalf of the appellant that the judge erred when in the last part of the passage from the summing-up quoted above, he directed the jury that whatever verdict they reached, it must be unanimous, and not majority opinion. For this submission counsel relied upon R. v. McKenna.2 In that case the trial judge after the jury had been

[p.551] of [1963] 2 GLR 545 considering their verdict for some two hours ordered them to be brought back into court and then addressed them as follows3 “In ten minutes I shall leave this building, and if, by that time, you have not arrived at a conclusion in this case you will have to be kept all night and we will resume this matter at quarter to twelve tomorrow.” It was held that it is a cardinal principle of the criminal law that, in considering their verdict, “a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimated by any threat. They still stand between the Crown and the subject, and they are still one of the main defences of personal liberty.”4 We adopt those words substituting the word “citizen” for the word “subject,” and the word “state” for the word “Crown” where they occur. It was held further that although the evidence in the case was such that any jury would have been amply justified in returning a verdict of guilty it was not right to apply the proviso to section 4 (1) of the Criminal Appeal Act, 1907,5 which is equivalent to the proviso to section 15 (1) of the Courts Act, 1960.6 It was further decided that an order venire de novo should not be made in such a case. But the facts of this case bear no similarity to those in R. v. McKenna,7 therefore the principle laid down in McKenna’s case is not applicable to the present case.

The court directed its attention to R. v. Mills.8 There the trial recorder in an attempt to impress upon the jury the necessity of their verdict being unanimous, said inter alia, “it is of the utmost importance that a jury should come to a conclusion one way or the other at the end of a trial, because it is burdensome upon all concerned, including the accused, because it only means this, that, unless you do, the matter has got to be tried all over again; therefore you see the importance and necessity of coming to a conclusion one way or another. Where you have got one or two, a small minority in the jury, who are thinking, perhaps, differently from the others, it is quite consistent with their oaths as jurymen that they should, after hearing what the others have got to say, come to the conclusion that they themselves may be wrong, and it would be consistent with the discharge of their duty and with their oaths, under these circumstances, if they thought they were wrong, to accept the view of the majority.” Later the learned recorder added:9 “I cannot release you until you have come to a conclusion.” It was held that although there was no doubt that the learned judge intended only to convey to the jury the desirability of their returning a unanimous verdict, yet he used one or two perilous phrases which may conceivably have caused some members of the jury to incline their minds to a wrong view, and which might cause minorities to yield their genuine convictions in favour of majority. But again we will point out that that is not the case here, there is nothing in the words [p.552] of [1963] 2 GLR 545 complained of in the summing-up in this case which can give an impression of coercion, or threat or promise in any shape or form.

In our view, this case is rather like Aidoo v. The State.10 The trial judge in that case ended his summing-up to the jury in terms very similar to those in the present case, except that he used fewer words in that case than he did in this case. he said11 “You will please retire to consider your verdict. I hope it will be unanimous. If you need further directions let me know.” It was held that it would be reading too much into that simple expression of hope to say that it would have the effect of coercing a minority among the jurors to yield to the view of the majority for the purpose of convenience or in order not to appear to be fools. We are of opinion that there is no material difference between the case of Aidoo and the present case.

Counsel next submitted, still on the first ground, that the provisions of section 285 of the Criminal Procedure Code, 1960,12 namely, the directions as to what action a trial court should take on a verdict of the jury the ratio of majority verdict which the court should accept, and even then only in offences which do not carry capital punishment, are questions of law for the judge, not questions of fact for the jury. He submitted therefore that the trial judge in the case erred in directing the jury that the case being a murder case punishable by the only verdict the court can accept, one way or another, is a unanimous verdict. It was therefore submitted that the judge erred seriously when he called attention to the aforesaid provisions, and reminded the jury that this being a murder case, their verdict could only be accepted if it was unanimous, one way or another.

While we agree with counsel that the provision, of section 285 of the Criminal Procedure Code, 1960, prescribed the action which a trial judge should take upon a verdict returned by a jury, we do not agree with the view that a judge should not tell the jury, trying an offence carrying capital punishment, that under our law, it is only a unamimous verdict which can determine the trial of the case in that court of first instance. We think that the law that a non-unanimous verdict cannot determine the trial is a fact which the judge should bring to the notice of the jury so long as in directing the attention of the jury to that fact he does not put it in a way so as to coerce them, and does not use words which may have a tendency to convey the idea of threat or promise.

The non-direction which counsel complained of in the second ground of appeal is non-direction on temporary loss of memory. Council conceded that the trial judge gave full and adequate directions to the jury on insanity as defined in section 27 of the Criminal Code, 1960 and as explained in many judgments of this court. He submitted, however, that there was some evidence, namely, parts of the unsworn statement made by the appellant, which tended to show that the appellant might have suffered loss of memory at the moment he committed the crime as to warrant a verdict [p.553] of [1963] 2 GLR 545 of guilty but insane, and that the learned judge failed miserably to direct the jury on that aspect of the case. In R. v. Kwadwo Mensah,13 cited by counsel for the appellant in support of this submission, it was held that evidence given by the defendant therein of loss of memory, if believed, taken together with the evidence as a whole including that of the prosecution witnesses, was such as to warrant a finding that at the time of the commission of the offence the defendant was not responsible for his actions, and was therefore guilty but insane. In the present case there is no evidence to support the allegation the appellant made in his unsworn statement that he suffered from loss of memory; he himself made no suggestion of that in any of the two cautioned statements he made to the police. Moreover the allegation he made in court of loss of memory is so fantastic that it is not worth being put to the jury. The substance of what he said is that he had known for some time that whenever he got drunk he committed wrongful acts such as destroying property and cutting off the heads of poultry; but when he became sober he did not recollect any of those acts; that on the day in question he had gone into somebody’s room while he was sober and carried away the person’s double-barrelled gun with such cartridges as he could find; and when he got home with the gun he took some akpeteshie (an alcoholic beverage) and did not know what happened after that, but when he became sober he found that he was lying on the floor with his hands tied up; when he enquired he was told that he had shot his father dead, and also shot his sister. Even if that statement were to be believed, all that it shows is that the appellant voluntarily took some drink to bring himself into the condition in which he committed the crime. That in our view cannot make his case one of temporary insanity caused by intoxication as provided by section 28 of the Criminal Code, 1960. Nothing can be more dangerous for life and property in this country than to exempt a person from liability for a crime he commits by reason of voluntary deliberate act of intoxication. The criticism of non-direction on temporary loss of memory is without foundation.

The third ground alleged that the trial judge directed the jury on matters which did not form part of the evidence. The only such matter which counsel was able to point out is a statement in the summing-up that the appellant had said that at the time he called Logosu Mensah into his room, from the shed to get him away from the deceased and his, the appellant’s sister, it was dark in the room, and that “he had a torch light and he flashed it towards the yard so that Logosu Mensah could not see the gun.” It is correct the statement about the torch light does not appear in the cautioned statement of the appellant as the summing-up alleged. But that is such an insignificant matter, that misdirection on it cannot affect the case one way or another. The misdirection has therefore not occasioned any miscarriage of justice. For these reasons we dismiss the appeal.

DECISION

Appeal dismissed.

K.T.