The judicial interpretation which is given by the courts in this country to section 53 (c) of Act 29 is that for an accused person to avail himself or herself of the benefit of this defence it must be proved strictly that actual sexual intercourse has been indulged in by the other spouse in his or her presence which may cause in him or her a sudden and temporary loss of self-control: see R. v. Tekyi (1941) 7 W.A.C.A. 122 and R. v. Grunshie [1960] G.L.R. 56, C.A.
The authoritative decisions on this matter show the consistency with which the courts have persistently resisted the pressure to extend the meaning and purpose underlying the spirit of the paragraph beyond what is intended by the legislature. The unwillingness of the courts to permit any wider interpretation of the paragraph than what it actually says in plain language is also responsible for their holding in cases which have come before them that even a sudden confession of adultery by a wife to her husband without more can never constitute provocation of a sort which might have the effect of reducing murder to manslaughter. See the cases of State v. Nimoh [1960] G.L.R. 203, S.C. which decided that even if the husband has cause to believe that his wife had been associating with other men, without any attendant circumstances of further aggravation, that alone would not amount to such extreme provocation as to reduce the crime to one of manslaughter, and State v. Ofori [1961] G.L.R. 162, S.C.
Mr. Asare’s arguments seems to imply that for a blind man who has lost his ocular vision, the ear could be a substitute for the eye in the interpretation of the words “in view of.” Although this matter is strictly obiter, we think there is some force in this contention. We think if a blind man caught his wife in the act of adultery and he, on the spur of the moment inflicted the fatal injury, it would be wrong to deny him the defence of provocation, for the only reason that he could not see the act of adultery with his own eyes. In those circumstances, it would seem to us reasonable to say that for a blind man the expression “in the view of’ reasonably means “to the hearing of.”
In the present case although the evidence on the whole suggests that the appellant reasonably suspected his wife of having committed adultery with the unknown man, this alone could not in law have amounted to such extreme provocation as would reduce the offence to one of manslaughter. In fact the issue of provocation under section 53 (c) of Act 29 was not supported by the evidence, and we think the judge should not have even left that issue to the jury. The appellant’s explanation could not in law have raised any such defence.
section 53 (c) of the Criminal Code, 1960 (Act 29), which successfully raised on the evidence, may have the effect of reducing the charge of murder to one of manslaughter. It reads as follows: “(c) an act of adultery committed in the view of the accused person with or by his wife or her husband, or the crime of unnatural carnal knowledge committed in his or her view upon his or her wife, husband, or child ....” In the present case there is no allegation of adultery, and in fact there is no evidence from which such provocation as stipulated by the subsection could be inferred.
Consideration of the circumstances and character of the accused
It is in our view of the highest importance that the law in relation to provocation in this country should be regarded as dictating that a defence of provocation should be carefully considered in relation to the facts and circumstances of the particular case, and (this even more important perhaps) in relation to the particular person who is setting up that he or she was provoked.
It is quite clear that the situation and character of the accused person must be taken fully into account in seeking to do justice in such cases, and in any summing-up or judgment it should manifestly appear that such an important factor as that to which we refer has in fact been given the weighty consideration which it deserves.
Direction to the assessors on the ordinary person test
We think that he should have put it more clearly that what they had to consider was whether the words of abuse and an accompanying slap on the face would, in their view, be likely to deprive the accused (as a person of ordinary character, and being in the circumstance in which he was) of the power of self-control. Such a direction necessarily involves the question whether the accused was a person of ordinary character. It involves also an examination of the circumstances in which he was (which words include a consideration of his general circumstances) and of the community to which he belonged.
Duty of the judge to direct the jury on provocation
The cardinal principle which must be borne in mind in a case of murder is, that in bringing a charge of murder, the prosecution take upon themselves the onus of proving inter alia: (1) that the harm which caused the death is unlawful, and (2) that the nature and circumstances of the killing are such that the homicide cannot be manslaughter. Therefore if there is evidence, either from the prosecution or the defence or both, of matters, whether or not the defence relies upon them, which in our law can amount to justification for the harm, then the trial judge should direct the jury on the law on the point and relate it to the evidence, to enable the jury to make up their minds whether they accept those facts. Similarly, if there is evidence coming either from the prosecution or the defence or both, which if believed would amount to provocation in law so as to reduce the homicide from murder to manslaughter, the trial judge is under a duty to address the jury on provocation.
We think it necessary to state what we consider to be the true meaning of section 251(1) of the Criminal Code. In our view the section first of all defines those matters which in law amount to provocation. It then makes it clear that these matters do not necessarily excuse a killing so as to reduce it from murder to manslaughter. In the case, for example, of words of insult accompanied by a slap (assault and battery) this does not become extreme provocation unless the words and assault and other circumstances of insult “are to be likely to deprive a person, being of ordinary character, and such as being in the circumstances in which the accused person was, of the power of self control.”
