SEIDU GRUMAH v. THE STATE [1963] 2 GLR 423

DIVISION: IN THE SUPREME COURT

DATE: 8TH NOVEMBER, 1963

BEFORE: CRABBE, MILLS-ODOI AND OLLENNU JJ.S.C.

CASES REFERRED TO

(1) R. v. Hopper [1915] 2 K.B. 431; 31 T.L.R. 360; 11 Cr.App.R. 136, C.C.A.

(2) Bullard v. R. [1957] A.C. 635; [1957] 3 W.L.R. 656; 42 Cr.App.R. 1, P.C.

(3) R. v. Porritt [1961] 1 W.L.R. 1372; [1961] 3 All E.R. 463; 45 Cr.App.R. 348, C.C.A.

(4) Holmes v. D.P.P. [1946] A.C. 588; 62 T.L.R. 466; [1946] 2 All E.R. 124; 31 Cr.App.R. 123, H.L.

(5) Mancini v. D.P.P. [1942] A.C. 1; 58 T.L.R. 25; [1941] 3 All E.R. 272; 28 Cr.App.R. 65, H.L.

(6) Lee Chun-Chuen v. R. [1963] A.C. 220; [1962] 3 W.L.R. 1461; [1963] 1 All E.R. 73, P.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered by Bannerman J., sitting with a jury, at the High Court, Kumasi. The facts are set out in the judgment of the Supreme Court.

COUNSEL

Addo for the appellant.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. The appellant was convicted before Bannerman J., sitting with a jury, in the Criminal Sessions at Kumasi, Ashanti, on the 15th February, 1963. The offence charged against him was that he on the 1st November, 1962, murdered one Ama Serwah.

In his final charge to the jury the learned trial judge said as follows:

“If satisfied that death was caused by manual strangulation and not satisfied that it was in self-defence, guilty of murder. If satisfied that accused stepped on neck negligently, consider manslaughter. If satisfied accused stepped on neck purely accidentally, not guilty. Benefit of doubt to go to accused.”

The only ground of appeal argued by Mr. Addo on behalf of the appellant is in these terms: “That the learned trial judge erred in not directing the jury on the alternative defence of provocation.” [p.425] of [1963] 2 GLR 423

The learned judge’s notes were very sketchy, but it is clear that counsel for the defence went in for complete acquittal since the defence was that the death of the deceased was caused accidentally. Neither counsel in his address, nor the learned trial judge in his summing-up, referred to provocation as a ground on which the offence could be reduced to manslaughter.

But the fact that that issue was not raised by the defence did not justify the learned trial judge’s failure to leave it to the jury, if in fact there was material before the jury which would justify a direction that they should give it consideration. Thus in R. v. Hopper,1 Lord Reading C.J. in delivering the judgment of the

English Court of Criminal Appeal said,

“We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion as we do, that there was some evidence – we say no more than that – upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand.” This principle has been applied in a number of cases, and in the recent case of Bullard v. R.,2 Lord Tucker stated it in a definite language as follows:

“It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and, whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked. See such cases as Hopper, 11 Cr.App.R. 136; [1915] 2 K.B. 431, at p. 435, and Kwaku Mensah v. The King [1946] A.C. 83 at p. 93.”

See also R. v. Porritt.3

The duty of the court in this appeal is to consider whether or not the learned trial judge was right in withdrawing the issue of provocation from the jury. In our view the proper test to apply is that stated by Viscount Simon in Holmes v. D.P.P.4 as follows:

“If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and [p.426] of [1963] 2 GLR 423 method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.” The main question then is: “was there sufficient material before the jury which would justify a direction on provocation?” There is no onus on the appellant to establish a case of provocation; all that the appellant need do is to point to evidence on record which could induce a reasonable doubt. The facts of this case, so far as they are relevant are that the appellant and the deceased were both admitted as patients to the Kokofu Leprosarium, where they subsequently became lovers. The appellant was the first, to be discharged, but he often went to the leprosarium to visit the deceased. On the 31st October, 1962, the appellant spent the night with the deceased at the women’s quarters of the leprosarium, and early, next morning the appellant invited the deceased to accompany him to the farm to collect beans. The first witness for the prosecution (Yakubu Grumah) saw the appellant carrying a bag and a cutlass when he and the deceased were on their way to the farm. The deceased never returned, and this caused some anxiety at the leprosarium. A search-party was then organised and on the next day the deceased was found lying dead in the bush about half a mile from the leprosarium. The police officer who was with the search-party described the scene as follows:

“We found the body in a bush about half a mile from the leprosarium. I found the body near a stand tree. It was lying on the right side, on my examination I saw some scratches on the neck. The surrounding area was disturbed. It was all brushed off.” The appellant was subsequently arrested and on the 29th November, 1962, after he had been charged with murder and cautioned he made a statement which contained the following passage:

“On the way to the farm, I questioned Serwah about the D.D.S. tablets and she became annoyed. A quarrel ensued between us and she slapped me on the left upper arm, and I also retaliated by slapping her on the face; and she fell down. Serwah held my knickers while lying down and began to pull them. I tried to free myself from her grip by jumping over her but I accidentally stepped on her neck and she died at the spot. I was frightened so I could not report the incident to anybody at the leprosarium, and I travelled to Kumasi. I did not intentionally kill Ama Serwah, otherwise I would have used the cutlass I was then holding on her.” This statement was tendered in evidence (exhibit B) and it formed part of the case for the prosecution. The medical officer who performed the post mortem examination testified at the trial that death was caused by

[p.427] of [1963] 2 GLR 423 asphyxia due to strangulation, and he expressed the firm opinion that the strangulation was caused by application of the hand.

In his evidence the appellant admitted that he took the deceased to his farm as alleged by the prosecution witnesses and the portion of his evidence material to the question we are considering is as follows: “I put on my sandals, got my cutlass and we started going to the bush. Ama Serwah was leading. We went to a place where there was a cassava plantation. I told Ama Serwah we couldn’t get firewood there so we should go back home. She said no. I then told her that I had been asking her about the D.D.S. and I was feeling pains so we should go home for it. She said she told me yesterday that she had used it. I got up and started walking towards home when she got hold of my dress. I asked her to leave the dress, she would not. I was holding a cutlass. To avoid the cutlass injuring her I threw it away. She slapped me in the face. I retaliated. We started wrestling when the two of us fell on the ground. I got up and she got hold of my dress and started pulling it. I asked her to release her hold on the dress, she would not do it. She fell down and while I was trying to let go her hand on my dress I stepped on her neck accidentally. She got hold of my shorts around the waist. I was wearing rubber sandals and cannot say which part of my foot stamped on her neck. It was my left foot. When I stepped on her neck she died. I called her, she did not reply so I knew that she was dead.”

There can be no doubt on the whole of the evidence that, assuming the appellant’s evidence of the events leading to death was true, there was an assault on the appellant followed by a struggle with the deceased. Counsel for the State conceded that there was some evidence of provocation, but he contended that it was not sufficient to justify the issue of provocation being left to the jury. He submitted that for the defence of provocation to be available there must appear from the evidence:

“(1) Unlawful assault and battery committed on the accused by the other person;

(a) the unlawful assault and battery must be of a certain degree of violence,

(b) if there is not that degree of violence it must be accompanied by insults or other circumstances of aggravation.

(2) The unlawful assault and battery must be such as to deprive a person being of ordinary character and being of the circumstances in which the accused was of his power of self-control.

(3) The accused was in fact deprived of the power of self-control by extreme provocation.” With this submission we are in agreement, except that we do not think that it is necessary for the prisoner to show that he was in fact deprived of his power of self-control. In our view for provocation to avail the prisoner he must be able to point to material on which the jury might reasonably have acted showing a possible loss of self-control connecting the provocation and the retaliation. Evidence merely of a provocative incident is not

[p.428] of [1963] 2 GLR 423 enough, for as Viscount Simon L.C. pointed out in Mancini v. D.P.P.5 “It is not all provocation that will reduce the crime of murder to manslaughter.” In Lee Chun-Chuen v. R.,6 Lord Devlin in delivering the judgment of the Judicial Committee of the Privy Council rejected the contention of the defence that a provocative incident amounted to provocation and said, “The appellant’s submission that if there is evidence of an act of provocation, that of itself raises a jury question, is not correct.” The evidence of the provocation which is relied on, and which the jury had to consider must satisfy the requirements of the law, as stated in sections 52 and 53 of the Criminal Code, 1960.7 We disagree with the submission of counsel for the state that the evidence adduced in this case, including the statement by the appellant, merely showed that there was only an unprovoked attack on the deceased. There is clear evidence that the appellant was assaulted by the deceased and this was followed by a struggle which resulted in the death of the deceased. “Any assault made with violence or circumstances of indignity upon a man’s person…. if it be resented immediately by the death of the aggressor, and it appears that the party acted in the heat of blood upon that provocation, will reduce the crime to manslaughter”: see East, P.C. i, 233.

Our law does not state the degree of violence required, but East defines a serious battery as “such a provocation as the law presumes might in human frailty heat the blood to a proportionate degree of resentment and keep it boiling to the moment of the fact”: see East, P.C. i, 238. The judge must decide as a matter of law whether there is any evidence of provocation to go to the jury who must then determine such a question of fact whether the provocative act was of such force or violence as likely to deprive the prisoner of the power of self-control in the circumstances in which he then was, especially having regard to his character and the community to which he belonged.

After a very careful and anxious consideration of the whole evidence we are satisfied that there was sufficient material on which the view might fairly be taken that the provocation was one likely to deprive the appellant of the power of self-control in the circumstances in which he then was. Consequently we hold that the learned trial judge erred in withdrawing the issue of provocation from the jury. It is impossible for the court to say what the jury would have done if the issue had been left open to them. We therefore quash the sentence of death, set aside the finding that the appellant is guilty of murder and substitute a finding of manslaughter; the appellant to serve a sentence of ten years imprisonment with hard labour.

DECISION

Verdict of manslaughter substituted.

K. T.