MENSAH v. THE STATE [1963] 2 GLR 25

DIVISION: IN THE SUPREME COURT

DATE: 14TH JUNE, 1963

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

CASES REFERRED TO

(1) Regina v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A.

(2) Ibrahim v. King [1914] A.C. 599; 83 L.J.P.C. 185; 111 L.T. 20; 30 T.L.R. 383; 24 Cox C.C. 174, P.C.

(3) Regina v. Thompson [1893] 2 Q.B. 12; 69 L.T. 22; 9 T.L.R. 435; 17 Cox C.C. 641, C.C.R.

(4) Regina v. Bass [1953] 1 Q.B. 680; [1953] 2 W.L.R. 825; 117 J.P. 246; 97 S.J. 282; [1953] 1 All E.R. 1064; 37 Cr.App.R. 51, C.C.A.

(5) Rex v. Murray [1951] 1 K.B. 391; [1950] 2 All E.R. 925; 66 T.L.R. (Pt. 2) 1007; 114 J.P. 609; 94 S.J. 726; 34 Cr.App.R. 203, C.C.A.

(6) Mancini v. Director of Public Prosecutions [1942] A.C. 1; 58 T.L.R. 25; [1941] 3 All E.R. 272, H.L.

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(7) Regina v. Sharmpal Singh [1962] A.C. 188; [1962] 2 W.L.R. 238; 106 S.J. 56, P.C.

(8) Bullard v. The Queen [1957] A.C. 635; [1957] 3 W.L.R. 656; 121 J.P. 576; 101 S.J. 797; 42 Cr.App.R. 1, P.C.

(9) Rex v. Lumley (1911) 22 Cox C.C. 635; 76 J.P. 208

(10) Regina v. Ward [1956] 1 Q.B. 351; [1956] 2 W.L.R. 423; 100 S.J. 112; [1956] 1 All E.R. 565; 40 Cr.App.R. 1, C.C.A.

(11) R. v. James Hopkins-Husson (1949) 34 Cr.App.R. 47, C.C.A.

NATURE OF PROCEEDINGS

APPEAL from a conviction of murder entered by Djabanor J. sitting with a jury in the High Court, Sunyani, on the 19th September, 1962.

COUNSEL

Ampaw for the appellant.

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

JUDGMENT OF MILLS-ODOI J.S.C.

The court has already intimated that this appeal is dismissed and we now give our reasons. The appellant was convicted before Djabanor J. sitting with a jury in the High Court, Sunyani, on the 19th September, 1962, of the murder of a man named Kwabena Owusu. The case for the prosecution was that the deceased and the appellant lived together at Caesar Cottage in Brong-Ahafo Region until the former died on the 21st May, 1962, as a result of harm inflicted on him by the latter. On the 19th May, 1962, the deceased and one Kwasi Aweso who also lived at the cottage the same day, told the appellant that the sixth prosecution witness, Grace Dede, his former girl-friend, had expressed a desire to see the appellant at Goaso the next day.

In pursuance of this message the appellant and one Tekper (the first prosecution witness) travelled in vain to Goaso on the 20th May, 1962. They returned to the cottage in the evening between 7 p.m. and 8 p.m. and the appellant complained vehemently to Amuzu (the seventh prosecution witness) that Kwasi Aweso had fooled him: viz., that the message they delivered to him purporting to have come from Grace Dede was false. He (the appellant) then requested Tekper to find out from Kwasi Aweso whether Grace Dede did in fact send any message for him. In the complaint the appellant made reference to the deceased and said, “That foolish man Owusu also was among them.”

Before Tekper could take any steps, the deceased who was sitting nearby and who heard the unpleasant remarks which the appellant had made about him, went to the appellant and asked, “What did I do before you abused me?” Whereupon the appellant pushed the deceased and rushed and took a pestle with a view to hitting the deceased with it but Joseph Tettey (the third prosecution witness), Amuzu and Tekper who were in the compound held him and took the pestle away from him. The deceased then went into his room, and the appellant sat on a verandah by his door. Amuzu, Tekper and Joseph Tettey left the compound, leaving one

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Kofi Mensah (the ninth prosecution witness) alone in the yard sitting in a chair some few yards away from the appellant.

After a lapse of about ten minutes, the deceased came out of his room to the compound and was passing towards the kitchen nearby. The appellant then took a club which was lying by him and walked towards the deceased. As he got closer the latter asked him, “Are you coming to hit me with this club?” The appellant made no reply but hit the deceased on the side of the head with the club and he fell to the ground.

At this juncture Kofi Mensah who was still sitting in the yard and who had the opportunity of seeing all that had happened raised an alarm: “He has killed him!” Tekper, on hearing the alarm, rushed to the yard and saw the deceased lying on the ground unconscious. He also saw the appellant standing by the deceased and holding the club. Shortly afterwards Joseph Tettey followed by Amuzu, also rushed to the scene; the appellant was in his room when both witnesses arrived at the compound.

A report was made to the police at Goaso and the deceased was taken to the Hwidiem Hospital, still unconscious, where he died the next day.

The appellant did not deny that he struck the fatal blow with the club which caused the harm resulting in the death of the deceased; but he contended that he did it by way of self-defence. He explained that while he was reporting the conduct of Kwasi Aweso and the deceased to Amuzu the deceased came to them and asked him (the appellant), “What nonsense are you talking?” In reply the appellant said, “I was just reporting to Amuzu about the foolish message they [you] delivered to me the previous day.” At this juncture, continued the appellant in his narrative, the deceased gave him a slap on the ear. He also pushed the deceased, held his cover cloth and struggled with him for some time; but Tekper, Aweso and Amuzu separated them and took the deceased away to another part of the compound. During the course of the struggle, the appellant maintained, neither he nor the deceased picked up a pestle. “Later,” said the appellant in his evidence at the trial, “I saw Owusu dressed up holding a club in his hand and he came to me and said, ‘As for today what you are looking for I will show you’.” The deceased then threw the club at the appellant and it hit him at the hip. The appellant picked up the club and when the deceased got nearer and slapped him again, he threw it at the deceased, hitting him on the left side of the head, above the left ear. He then fell on the ground.

One significant difference between the appellant’s evidence at the trial and his statement to the police which he made a day after the incident is that in the latter he stated that the club (exhibit A) which he threw at the deceased was lying by him before the deceased slapped him on the second occasion. The issues of fact that fell for the consideration of the jury at the trial were: (a) Whether the appellant considered his life to be in imminent danger of death at the time the deceased slapped him the second time,

[p.29] of [1963] 2 GLR 25 in which case he would be justified in hitting the deceased with the club which caused harm resulting in his death; or (b) Whether he was extremely provoked by the acts of the deceased at the time when he threw the club at him (deceased) in which case the crime of murder would be reduced to manslaughter. It is of great importance to note that all the prosecution witnesses who were present at the compound at the material time maintained throughout the proceedings that the appellant was, at all times, the aggressor and that on no occasion did the deceased use his hands on, or throw any object at, the appellant. Such were the salient features of a trial in which the evidence was simple, straightforward and overwhelmingly against the appellant, and in which no complicated or difficult issues of law or of fact were involved.

In this court learned counsel for the appellant was given leave to argue two additional grounds of appeal which, in fact, were the only grounds he argued before us. They are as follows:

“(a) That the learned judge failed to give adequate direction on the law of provocation as contained in the evidence of the appellant.

(b) That the statement of appellant was wrongly admitted in evidence.”

In regard to the second of these submissions, learned counsel for the appellant, Mr. Ampaw, relied on the case of Regina v. Abisa Grunshie1 and submitted that the learned trial judge erred in admitting the appellant’s statement (exhibit B) in evidence at the trial because the police officer who took down the statement failed to call an independent civilian to witness it. This practice, Mr. Ampaw contended, is essential and must always be followed especially when an accused person is writing a confession statement; a departure from it, Mr. Ampaw further contended, rendered the statement inadmissible. It is sufficient to say that Regina v. Abisa Grunshie (supra) did not intend to lay down a proposition that the absence of an independent civilian witness to a confession statement, particularly in a murder charge, will render that statement inadmissible. It is (inter alia) a procedure which police authorities should enforce upon their subordinates, when taking down confession statement from accused persons, in order to ensure fair administration of justice; and this is made abundantly clear from the headnote which reads thus:

“Where police take a voluntary statement from a prisoner it is desirable for them, particularly for a confession statement in a murder case, to require the presence of an independent civilian witness who understands what is being said and who is present throughout the time the statement is being taken. The civilian witness should sign the statement, as a witness, on its completion.”

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The real test of the admissibility of a statement, particularly a confession statement, is whether it is made voluntarily. This principle was laid down in Regina v. Thompson2 as approved in Ibrahim v. The King3 and followed by Byrne J. in Regina v. Brass.4

This general principle was admirably stated by Lord Sumner in his judgment in Ibrahim v. The King (supra) as follows:

“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.”

The point of that passage is that the statement must be a voluntary statement; any statement which has been extorted by fear of prejudice or induced by hope of advantage held out by a person in authority is not admissible.

According to the decision of the Court for Crown Cases Reserved in Regina v. Thompson (supra), a confession of guilt in order to be admissible in criminal proceedings must have been made voluntarily, and not in response to any threat or to any suggestion of advantage to be inferred either directly or indirectly from language used by a person in a position of authority in connection with the prosecution of the person by whom the confession was made. Cave J. in delivering the judgment of the court, said:5 “If these principles and the reasons for them are, as it seems impossible to doubt, well founded, they afford to magistrates a simple test by which the admissibility of a confession may be decided. They have to ask, Is it proved affirmatively that the confession was free and voluntary—that is, Was it preceded by any inducement to make a statement held out by a person in authority? If so, and the inducement has not clearly been removed before the statement was made, evidence of the statement is inadmissible.”

It is to be observed, as pointed out by Lord Goddard C.J. in Rex v. Murray6 that while it is for the presiding judge to rule whether a statement is admissible, it is for the jury to determine the weight to be given to it if he admits it, and thus, when a statement has been admitted by a judge he should direct the jury that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.

In Regina v. Abisa Grunshie (supra) van Lare J. (as he then was) in stating the proper procedure to be followed when taking voluntary statements from prisoners, especially confession statements in murder cases, made it clear that non-compliance with the procedure should put a trial court on its guard to treat such a statement “with grave suspicion and to

[p.31] of [1963] 2 GLR 25 be most cautious in relying on it.” He did not intend to say, or did he even suggest, that a departure from the proper procedure will render a confession statement inadmissible.

In regard to the other ground of appeal, viz., that the learned trial judge failed to give adequate direction to the jury on the law of provocation, learned counsel for the appellant submitted that the evidence of the appellant was sufficient to raise the defence of provocation. The fact that provocation was not raised at the trial is immaterial.

The only defence put forward by the appellant at the trial was that of self-defence and although his counsel did not stress an alternative, e.g., provocation, nevertheless the learned trial judge directed the jury “to consider whether the offence could be reduced to manslaughter by reason of extreme provocation.” He reminded the jury in his charge to them that if they were in doubt whether the facts showed sufficient provocation to reduce the offence to one of manslaughter they should determine that issue in favour of the appellant.

It is now well established by a series of authorities, in which Mancini v. Director of Public Prosecutions7 is the first and still the best known, that it is the duty of the judge to deal with such alternatives if they emerge from the evidence as fit for consideration, notwithstanding that they were not put forward by the defence: per Lord Devlin in Regina v. Sharmpal Singh.8 See also Bullard v. The Queen.9 This principle was followed by the learned trial judge who having properly directed the jury on the issue of provocation went further to read and explain to them the relevant sections of our law relating to provocation, viz., sections 52, 53 (a) and (b) and 54 (a), (b) and (c) of the Criminal Code, 1960.10 The learned senior state attorney was called upon to address us as to whether there was adequate direction to the jury on the issue of intention, though this question was not raised by the appellant’s counsel. He referred us to the judge’s charge to the jury on section 11 of the Criminal Code, 1960, which in relation to the evidence adduced by the prosecution showed that the appellant had the intention to kill or to cause grievous harm to the deceased.

There was evidence as to what caused the death of the deceased. Indeed the appellant did not deny that he caused the grievous harm from which death has resulted. The matter that called for consideration is whether the appellant intended to kill the deceased or cause him grievous harm when he struck him with the club (exhibit A). Evidence of intention within subsection (3) of section 11 of the Criminal Code, 1960, is proved by applying the test of the standard of the ordinary and reasonable man. It [p.32] of [1963] 2 GLR 25 really denotes an ordinary man capable of reasoning who is responsible and accountable for his actions. Section 11 (3) reads as follows:

“If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event, or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event, until it is shown that he believed that the act would probably not cause or contribute to cause the event, or that he did not intend to cause or contribute to it.” Applying that test here, there was established the clearest possible intention on the part of the appellant either to kill or to cause grievous harm to the deceased. Before the appellant struck the fatal blow with exhibit A the deceased asked him, “Are you coming to hit me with the club?” It is impossible on the facts to say that the appellant who struck the deceased with exhibit A which has been produced in this court and which might aptly be described as a bludgeon would not know that his act could cause death or at least grievous harm. The evidence of the doctor (the second prosecution witness) showed, inter alia, “that there were blood clots underneath the skull—due to heavy blow there with a heavy blunt instrument.” This shows with precision the degree of force used by the appellant which is consistent only with an intent to kill or do grievous harm. His act was voluntary and unlawful; he must therefore be presumed to have contemplated the natural and probable consequences.

In Rex v. Lumley11 Avory J. directed the jury in these terms:

“. . . When he did the act, did he contemplate, or must he as a reasonable man have contemplated, that death was likely to result, or must he as a reasonable man have contemplated that grievous bodily harm was likely to result? If, in your opinion, he must as a reasonable man have contemplated either of those consequences, then your duty is to find him guilty of murder.” In the judgment of the Court of Criminal Appeal in Regina v. Ward12 Lord Goddard C.J. said, “Of course, the test must be applied to all alike, and the only measure that can be brought to bear in these matters is what a reasonable man would or would not contemplate. If the act is one as to which the jury can find that a reasonable man would say: ‘It would never occur to me that death would result or grievous bodily harm would result,’ then the jury can find him guilty of manslaughter; but if the jury come to the conclusion that any reasonable person, that is to say, a person who cannot set up a plea of insanity, must have known that what he was doing would cause at least grievous bodily harm, and the death is the result of that grievous bodily harm, then that amounts to murder in law and a verdict of murder is justified.” On this appeal no submission has been made that there could have been in the circumstances an acquittal on the basis of self-defence. The

[p.33] of [1963] 2 GLR 25 sole question raised by the appeal was whether a verdict of manslaughter should be substituted for that of murder. It is a well-established principle of law that where there is evidence on which a jury can act and there has been no misdirection or irregularity such as deprives an accused person of the substance of fair trial and protection of the law and it cannot be said that the verdict is one which a reasonable jury could arrive at, the court of appeal will not set aside verdicts of juries: R. v. James Hopkins-Husson.13 In the present case we are satisfied that there was evidence upon which the jury could act and we do not therefore wish to interfere with their verdict.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

I agree.

JUDGMENT OF OLLENNU J.S.C.

I also agree.

DECISION

Appeal dismissed.

K. T.