Directing the jury on a statement of one accused implicating another
Although he warned them that such a statement was not evidence against the rest of the prisoners, he did not specifically direct them to ignore that part which alleges that it was the second appellant who fired at the deceased at the instance of the first appellant. This he should have done because the jury might well accept the contents of exhibit M as true against the appellants if they believed that one of the prisoners in fact made the statement attributed to him, and which the judge referred to as a “clean breast” confession.
Thus in one breath the learned trial judge told the jury “this statement (exhibit M) is not, repeat, not evidence against the rest of the accused,” yet he, in the same breath, particularised the material parts of the very same statement and emphasised them as evidence which the jury were entitled to act upon. The only effect such a direction could have is to cause confusion in the mind of the jury and we are convinced that the summing-up did produce such effect.
That being the state of the law, it is most important in a murder case that in order that confusion should not be caused in the minds of the jury, the judge should direct the jury clearly on two intents, namely, (i) intent to cause harm which if it is found to exist will make the harm unlawful, and (ii) intent that the unlawful harm so caused should also cause death.
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.
Indeed, as the evidence led showed no legal justification or excuse for the act done by the appellant, the judge was in duty bound to say so to the jury.
Counsel submitted that apart from referring to section 37 of the Criminal Code, 1960 (Act 29), the trial judge did not address the jury on self-defence. We think that it was the duty of the learned trial judge to explain the provisions of section 37 to the jury, and that having failed to do this, he erred.
Direction that intent to cause harm suffices for murder
Upon those principles it was held in Boamah v. The State,8 that it was a misdirection to sum up to the jury that if they were satisfied that the blows were struck with intent to cause harm, they should convict of murder. The summing-up in the case sinned very seriously against that principle in several places; the final direction it left with the jury is, “It is only when you are satisfied beyond reasonable doubt that the blow was intended to cause bodily harm and death resulted, that you can return a verdict of guilty of murder.” This is misdirection because if the jury are so satisfied that the appellant intended only to cause bodily harm their duty is to convict of manslaughter not of murder.
A trial judge's duty is to explain the applicable law, fairly review the evidence, identify the issues for determination, and remind the jury that they are the sole judges of fact. The law does not require a perfect or verbatim review of the evidence.
Duty to warn an unrepresented accused about attacking prosecution witnesses
We should add further, that it is necessary in practice for the trial judge to warn an accused, especially where he is unrepresented, that he is going too far in his cross-examination of the prosecution witnesses and thereby exposing himself to cross-examination as to his own credit and antecedents: see R. v. Cook (1959) 43 Cr.App.R. 138 at p. 147, C.C.A.; and Selvey v. Director of Public Prosecutions (1968) 52 Cr.App.R. 443 at p. 468, H.L.
Emphatic denial of the charge as an attack on prosecution witnesses
It is a question of fact and degree whether or not the nature or conduct of the defence in a particular case is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct of the defence. The answer will depend very much on the charge, the plea, the nature and line of defence adopted, the questions put to the prosecution witnesses, whether the questions asked or the evidence adduced by the defence are reasonably necessary for the conduct of the defence, or whether they merely attack the character of the prosecution witnesses and are not reasonably required for the conduct of the defence. Applying these tests to the answer given by the third accused under cross-examination, it is quite clear that the learned judge erred in law by holding that the third accused had lost his statutory protection on account of the answers given by him. In the first place, we are satisfied that his answers constituted an emphatic denial of the charges preferred against him and were consistent with the plea of not guilty.
Hearing argument on admissibility in the absence of the jury
In the fourth place, the court adopted the wrong procedure in hearing learned counsel’s application and argument in support of his plea to cross-examine the third accused on his previous convictions in the presence of the jury. The correct procedure is for the court to hear argument on such an application in the absence of the jury or assessors: see R. v. Offei alias Kwame (1948) 12 W.A.C.A. 329 where at p. 330 Smith Ag.C.J. (as he then was) stated: “[T]he proper course for prosecuting Counsel to follow is for him to indicate to the trial Judge that he wishes to take a certain course and ask for his ruling, and if there is to be an argument on the point it is desirable that the Jury or Assessors should retire while the argument is carried on and the ruling made.”
Under our law the judge is entitled to comment on the evidence given by the prosecution and the defence, and in doing so it is not wrong for him to give a confident opinion upon certain questions of fact. In fact, it is sometimes impossible for the judge to deal with points of fact unless he can state his own view of the facts to the jury.
in directing the jury it is important that the learned judge ought to have been more cautious so as not to express his own opinion on the facts in such a way as to give the impression that he was usurping the functions of the jury who were to decide whether or not the evidence led proved the charge alleged against the appellant. On the contrary, he appeared to have expressed himself very strongly and rather gave the impression that he was doing what the jury ought to have done.
if there is no evidence on which a verdict of manslaughter can properly be founded, it is no duty of the judge to leave the question of manslaughter to the jury for their consideration, if it has not been sufficiently raised by the defence, or it is inconsistent with the defence which is put forward.
The well-established principle is simply this: that the prisoner’s defence must be adequately placed before the jury, that is to say, the jury must have been reminded of the general nature of the defence and so long as the real nature of the defence has been explained, a Court of Appeal will not interfere merely because particular points have not received the emphasis or attention that the defence would like.
The trial judge must deal with the question of burden of proof and make it quite clear to the jury that it is for the prosecution to establish the guilt of the prisoner, and if such guilt is not established the prisoner must, as of right, be found not guilty.
It is a misdirection to leave the impression on the minds of the jury that because the evidence for the prosecution established a prima facie case, the burden of proof is shifted to the defendant
The directions in the last paragraph of the above passage were the judge’s last charge to the jury, and it is clear that the learned trial judge’s direction in the opening sentence of the paragraph is incomplete, for he should have gone further to tell the jury that if after considering the whole evidence they were left in reasonable doubt whether or not the defence of self-defence had been made out they should acquit the appellant. We think that this is a serious flaw in the summing-up, but that it occasioned no substantial miscarriage of justice.
