REGINA vs. GRUNSHIE [1959] GLR 125

COUNSEL

Appellant in person.

per cur. In view of the facts in this case we call upon Crown Counsel to support the conviction.

Crabbe for respondent (Crown). The learned Judge took the view that the accused’s actions against deceased exceeded what was necessary in self-defence. At the same time, as was said by the West African Court of Appeal in Rex v. Adamu (10 W.A.C.A. 161), “Although the severity and number of wounds on the deceased’s body point to great ferocity on the part of the killer, experience shows that once two primitive Africans start a fight to the death with matchets the conqueror is apt to make a thorough job of it, and this does not necessarily show that he was not bound to kill in order to save his own life.”

(It would seem that the possible effect of sec. 57 of the Criminal Code, as read with the expression “necessary force or harm” in sec. 63(4), was not argued.

Sec. 57 provides as follows:- “Notwithstanding the “existence of any matter of justification for force, force cannot be justified as having been used in pursuance of that matter- (1) which is in excess of the limits hereinafter prescribed in the section of this Title relating to that matter; or (2) which in any case extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used”-Ed.)

JUDGMENT OF VAN LARE J.A.

At the close of the arguments on the 27th February last, we allowed this appeal. We now give our reasons.

The appellant was convicted by Murphy J., sitting with assessors at Assizes holden at Kumasi, of the offence of manslaughter, and was sentenced to eighteen months imprisonment with hard labour. At the trial, the sole defence set up by the appellant was that, in inflicting the wounds that caused the death of the deceased, he acted in self-defence.

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Each of the three assessors accepted the defence and expressed the opinion that the prisoner was not guilty. The learned trial-Judge, however, did not conform with the opinion of the assessors, as he was of the opinion that the appellant’s “actions were a form of revenge, and went a great deal farther than was necessary in self-defence, having regard to the fact that the deceased was on the ground, and to the number of wounds inflicted.”

As opposed to provocation (which is a plea in mitigation) self-defence is a plea of justification, implying that the prisoner is presumed to intend the consequences, even to the extent of causing death in order to save himself from being murdered by the deceased. It is our opinion that the question of revenge, or a consideration of the degree or quantum of force used, cannot arise where the facts (as in this case) come within the provisions, of section 63(4) of the Criminal Code as to self-defence. Under those provisions there is no limit to the force or harm that may be used in necessary self-defence against murder, though under sub-sections (1), (2) and (3) of that section there is a limit in each case to the force that may be used, or harm inflicted, in self-defence in the instances enumerated. The learned trial-Judge appears to have misdirected himself in applying to this case the provisions of sub-sections (1), (2) and (3), instead of those of sub-section 4.

(His lordship read the subsection, and proceeded):- In any case, the question that had to be decided was whether the act done was in necessary self-defence, and not whether it went farther than was necessary in self-defence. Homicide is justifiable as soon as the act done is found to be in necessary self-defence. In the present case, it does appear to us that the learned Judge had no doubt that the act was in fact done in a case of extreme necessity, and in necessary self-defence.

As the whole appeal is concerned with a question of law, it is unnecessary to state the facts in any details. It is sufficient to say that the deceased went armed to the appellant’s house to commit murder. The learned trial-Judge found as follows: “It was clear from the evidence of the preliminary events that the accused had ample reason to fear being killed or seriously wounded by the deceased, both because of the deceased’s previous actions against others, and because of the manner in which the deceased was armed, and his actions when he went to the accused’s house,” where the alleged offence took place.

As to the events immediately leading to the killing, according to the trial-Judge, he had only the evidence of the appellant himself on

[p.128] of [1959] GLR 125

which to rely. (His lordship read the relevant part of the appellant’s evidence, as in the Headnote, and proceeded):

This is essentially an appeal where there is no question of the credibility or reliability of the witness, but one where the point is whether the trial-Judge had drawn the proper inference from the proved facts. It is the duty of an appellate court to draw its own inference from the established evidence. We think that in this case we are generally in as good a position to evaluate the evidence as the trial-Judge, and we prefer the unanimous opinion of the assessors to that of the trial-Judge.

With respect we differ, therefore, from the opinion of the trial- Judge that the appellant’s act was in revenge, and not in self-defence. In our opinion the trial-Judge took a wrong view of the facts, which certainly provided sufficient material on which to find self-defence.

DECISION

In the result we were compelled to reverse his decision. We accordingly quashed the conviction, and ordered the appellant to be acquitted and discharged.