KABRE v. THE STATE [1966] GLR 770

Division: COURT OF APPEAL

Date: 2 DECEMBER 1966

Before: OLLENNU, AZU CRABBE AND LASSEY JJ.A.

CASES REFERRED TO

(1) Afrifa v. R., Court of Appeal, Cyclostyled Judgments, 19 June 1959, unreported.

(2) R. v. Nasamu (1940) 6 W.A.C.A. 74.

(3) R. v. Kwadwo Mensah [1959] G.L.R. 309, C.A.

(4) R. v. Matheson [1958] 1 W.L.R. 474; 102 S.J. 309; [1958] 2 All E.R. 87; 42 Cr.App.R. 145, C.C.A.

(5) R. v. Inyang (1946) 12 W.A.C.A. 5.

NATURE OF PROCEEDINGS APPEAL from a conviction of murder entered by Sowah J. sitting with a jury at the High Court, Ho. The facts are sufficiently set out in the judgment of the court.

COUNSEL

S. H. Annancy for the appellant.

S. M. Boison, Principal State Attorney, for the respondent.

JUDGMENT OF AZU CRABBE J.A.

Azu Crabbe J.A. delivered the judgment of the court. The appellant was convicted by a jury before Sowah J. sitting at Ho on 17 November 1965, for the murder of one Kwasi Kabre at Lekorkor in the Volta Region on 12 October 1964.

The deceased, a boy of between nine and ten years old, lived with his mother and the appellant, together with two other sisters, in the said Lekorkor cottage at a village called Baika. The deceased was the step-son of the appellant, but the appellant regarded him as his real son. Almost all those who lived in the same village with the appellant thought, in view of the appellant’s affection and care for the deceased, that the deceased was the real son of the appellant. The deceased invariably accompanied the appellant to the farm to help. No one knew of any quarrel between the appellant and his wife, and the evidence was that the appellant and his family lived happily together.

On the morning of that fateful day when the killing took place, the appellant had invited nearly twenty persons to help him in splitting his cocoa. Among the helpers was one Kariwa Kabre (the first prosecution witness) and his wife Akosua Kabre, who remained with the appellant after all the others had left at about 3 p.m. for their own villages. No one heard of any quarrel during the splitting of the cocoa. At a certain moment the second prosecution witness who was in a kitchen said that when she came out she saw the deceased lying down with a wound at the back of his neck. The appellant was standing near the deceased holding a cutlass which was dripping with blood. The second prosecution witness said that she raised an alarm, and this attracted the attention of the first prosecution witness who was still working on the cocoa. The first prosecution witness said that

[p.772] of [1966] GLR 770 he tried to get near the appellant, but the appellant said to him that if he (the first prosecution witness) advanced further towards him (the appellant) he would cut him (the first prosecution witness) with the cutlass. The first prosecution witness said that he ran away, and that when he later returned to the scene of the killing with other people the appellant had disappeared. This is how the first prosecution witness summed up the appellant’s reaction to the killing, “When I saw the accused standing above the child he stood very quiet. He stood gazing at the child.” There was no motive for this killing, and no one could suggest any. Indeed, it is impossible on the evidence for the prosecution to infer any motive. In the course of his evidence the appellant said, “Kwasi Kabre was a small child; how can I quarrel with him, there was no quarrel between us. My child has never insulted me. I was responsible for his food and everything.” There is no doubt in this case that the death of the deceased was caused by unlawful harm inflicted by the appellant, and the sole question in this appeal is the state of the appellant’s mind at the time of the commission of the crime. The law presumes everyone of the age of discretion to be sane and responsible for his acts and the question whether a person was insane in the legal sense at the time the act was committed and therefore not accountable for his acts is one of fact to be determined by the jury, and is dependent upon his previous and contemporaneous acts: Afrifa v. R.1 In R. v. Nasamu2 it was held that the word “contemporaneous” must not be construed as “simultaneous,” but as covering acts committed immediately after the act charged.

In this appeal several grounds of appeal have been filed, but we think that the only ground worthy of serious consideration is the one which alleges that the trial judge failed to consider adequately the defence of insanity. In his summing-up the learned judge read the whole of the defence evidence to the jury, and drew their attention to what he thought were the important points which they ought to consider. He told them:

“He says that he remembers inviting persons that day to help him split his cocoa, he gathered the cocoa into two heaps, he says he could not tell whether he finished gathering the cocoa. From that point he did not remember what happened to him until the next morning when he found himself in the bush. He heard the sound of voices, he tried to follow them but soon lost his way; again he heard the sound of voices, he tried to follow them but got lost. Finally, he heard the fowls, making a noise, [p.773] of [1966] GLR 770 he followed them and found himself in his cottage; he denies he was arrested. He does not know if in fact he killed the child. Shortly put, he must have lost his memory.”

The learned judge then reminded the jury that the appellant had called a doctor to give evidence on his behalf and told them of the importance of this piece of evidence. He then directed the jury as follows: “If you accept the evidence of the accused and you must not lightly reject it, that evidence fits it into that specie of disease called by the doctor, schizophrenia. The doctor told you that a mental disease can cause such loss of memory and also such disease can come out of the blue.”

The learned judge then read the provisions of section 27 of our Criminal Code, 1960,3 which deal with insanity and again directed the jury in these terms:

“If you accept the evidence of the accused, it seems to me then you must accept that at the time of the incident he was suffering from a disease of the mind which made him not to know that he was killing his child or in fact had killed his child.”

All these directions, we think, are unexceptionable, but unfortunately the learned judge proceeded to destroy the effect of what he had said earlier in the summing-up by asking the jury to test the probability of the defence evidence by what the appellant had said to the third and fifth prosecution witnesses immediately after the killing, and the statutory statement he made at his committal. The appellant was alleged to have told these two witnesses, who saw him after he came out of the bush, in answer to a question, that he had killed his son but did not know why he had done that. In his statutory statement at the committal proceedings the appellant said that on the day in question he asked his wife and the deceased to go and gather beans. He returned to his village and found his wife absent and so he asked about her. “Suddenly there was an alarm,” he said, “and when I turned round I saw the deceased lying down bleeding.”

In directing the jury on these matters the learned judge said:

“The accused has told you of course that he did not tell the third and fifth prosecution witnesses what he is alleged to have said. He repudiated his story in his statement—and to magistrate. One thing which stands out if you accept the evidence of the third and fifth prosecution witnesses and his own statement—then remember that he killed his child, indeed he knows he killed Kwasi Kabre.”

[p.774] of [1966] GLR 770

We are of the opinion that in telling the jury that the appellant knew that he had killed Kwasi Kabre the learned judge, with the greatest respect, might well have given them the impression that the appellant also appreciated that what he did was wrong. In his evidence the psychiatrist who gave evidence on behalf of the appellant said that a person suffering from the mental form of disease called schizophrenia does not necessarily appreciate the things he does. He said that some sufferers of this disease do things which they cannot remember afterwards, but others do remember. The psychiatrist further gave this important evidence:

“He can injure himself without knowing, he can injure someone without knowing it—by that without I mean without appreciating the nature of the thing he was doing. If the person is attacked by the disease he can recover after a short time. An attack may come out of the blue.”

The question whether the accused person is insane and not responsible for his acts is no doubt an issue of fact for the jury and not for medical experts. But it is most essential that the jury should be fully and carefully instructed on all the circumstances surrounding the killing and the expert evidence adduced at the trial. In this regard we wish to refer with approval to the observations of the Court of Appeal in R. v. Kwadwo Mensah4:

“It is not the function of a medical witness to decide the issue of insanity. Such an issue is an issue of fact, and it is therefore for the jury to decide it after consideration of all the circumstances disclosed to them, including the nature of the evidence of experts (or an expert) in mental diseases. In our view, however, it is of extreme importance that the jury should be fully, clearly and carefully directed upon such an issue, so that they may be able to bring to its consideration analytical, clear and impartial minds.” With all due respect to the trial judge we are unable to say that his direction on the issue of insanity was as full and clear as one would expect in a case such as this. For example, the psychiatrist in his evidence said that one of the things which the person who suffers from schizophrenia does is to go astray; that is to say, he walks about without knowing. The first thing he does is to strip himself naked and bolt into the bush. If the psychiatrist’s evidence is to be believed, and there is no evidence to the contrary, then in our view the behaviour of the appellant soon after the killing was clearly symptomatic of schizophrenia. We would therefore quote with respect

[p.775] of [1966] GLR 770 and approval the dictum of Lord Goddard C.J. in the case of R. v. Matheson5:

“While it has often been emphasized, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors’ evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be ‘a true verdict in accordance with the evidence’.”

In this case the only evidence capable of assisting in determining the state of the appellant’s mind is that given by the psychiatrist. In our view nothing much turns on the evidence of the witnesses who said that the appellant told them that he had killed the deceased. What is important is whether the appellant appreciated that he was doing a wrongful act when he killed the deceased. By their verdict the jury appeared to have rejected the only expert evidence on the issue. If the facts proved by the defence were such as to make it probable that the appellant by reason of mental disease or illness was deprived of his capacity to understand what he was doing or to control his actions, then the defence had discharged the burden of proof required to establish the defence of insanity under our law. In our opinion the rejection of the psychiatrist’s testimony is contrary to the evidence. We think that had the jury been properly and adequately directed their verdict would have been different.

Another relevant matter of some importance on which the learned judge directed the jury is the absence of motive on the part of the appellant. He warned the jury that though evidence of motive was desirable in finding one’s reasons for one’s act, it was not essential in our law; for the motive might be known to the accused alone and unknown to anyone else. With respect to the learned judge, we think that his direction that motive is not essential in our law is not quite correct. In our opinion the motive of an accused may be relevant and material to an issue of insanity in our law, especially in a case where the acts of the accused person are so inexplicable and the circumstances are such that on any rational appraisal of the situation it can only be done by a maniac. Mere absence of motive by itself is not sufficient ground upon which to infer mania. But as the West African Court of Appeal observed, and rightly in our view, in R. v. Inyang,6 “When there is as much evidence indicative of insanity [p.776] of [1966] GLR 770 rather than the opposite as there was in this case, the absence of any evidence of motive may become relevant to the point at issue, and material to it.”

In our view it is misdirection to tell the jury that motive is not essential in a case such as this one, where the absence of motive considered together with all the surrounding circumstances is more indicative of an infirmity of mind than the contrary. As we have said earlier in this judgment, the burden of proof on the accused person to establish the defence of insanity may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish. Therefore if there is proved absence of motive which, having regard to all the circumstances of the case, makes it probable that the accused, by reason of some mental illness, was incapable of knowing the nature or consequences of the act in respect of which he is charged then the burden is discharged.

We ourselves, upon a full and careful examination and consideration of the whole evidence on record, have come to the conclusion that, while the appellant was guilty of the act with which he was charged, he was insane at the time the act was done so as not to be accountable in law for his actions. Accordingly, under paragraph 14 (4) of the Courts Decree, 1966,7 we quash the sentence passed at the trial, substituting a verdict of “guilty but insane” for the verdict of “guilty.” We therefore order that the appellant be kept in custody as a criminal lunatic at the Mental Hospital, Accra, until the pleasure of the National Liberation Council shall be known.

DECISION

Appeal allowed.

Special verdict substituted.

S. K. T.