MOSHIE v. THE REPUBLIC [1968] GLR 1016

DIVISION: COURT OF APPEAL

DATE: 15 NOVEMBER 1968

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

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder on the ground, inter alia, that there was a material irregularity in the course of the trial in that the judge failed to consider the preliminary issue of the insanity of the appellant. The facts are sufficiently stated in the judgment of the court.

COUNSEL

Lamptey for the appellant.

F. P. Sarkodee, Senior State Attorney, for the respondent.

[p.1018] of [1968] GLR 1016

JUDGMENT OF AZU CRABBE J.A

Azu Crabbe J.A. delivered the judgment of the court. The appellant in this case was convicted on 14 March 1967, before Sowah J. sitting with a jury, of the murder of one Wihemani Moshie alias Osumanu Moshie, and was sentenced to death.

The facts of the case are as follows: Both the appellant and the deceased lived together in an uncompleted building at Nhiaso, a suburb of Kumasi. The deceased was an old man of about 70 years of age, and was a watchman by occupation. The deceased and the accused had their meals together. A witness, one Joseph Kwaku Amponsah, who usually prepared their food, said that on the night of 9 December 1965, he took food to the place where the deceased and the appellant lived, and he met the two of them there. Another witness, Beatrice Ankobea, who also lived in the same vicinity, gave evidence which we think is crucial in this appeal. She said: “It was about 1 a.m. I heard an unusual noise, some one shouting in Twi that ‘I have killed him, I have killed.’ I was in my bedroom; I opened my window and peeped and saw a man walking up and down, he was walking in the street; there were bungalows near my house; it was a moonlight night; I told my husband who said he would not like to be bothered. At day break I saw a man brandishing a knife still shouting; I know there was an uncompleted house near us which had a watchman. I have seen the accused in that house before that day. I was scared, my husband had gone to work and I took my car and went to the police station. Cross-examination: I was not sound asleep. I was awakened by the shouts; he was saying that he has killed the watchman; he spoke in Twi; he further said the watchman owed him money. When I saw him the following day he looked normal, he did not look mad; I saw him smoking. I brought about five policemen in my car.”

The witness Joseph Kwaku Amponsah said that on the next morning when the plates on which he carried the food to the deceased had not been returned to him, he went to collect them himself. When he got near the house he saw the appellant standing under a pear tree. The appellant had a long knife in his right hand, and a pen-knife in his left hand, and he had a cudgel hanging on his left shoulder. On entering the house the witness saw the deceased lying down in the house in a pool of blood by the side of his mat. The witness said that he became so frightened that he ran to the nearest police station and made a report. On the arrival of the police the appellant was still standing under the pear tree, and he was arrested. [p.1019] of [1968] GLR 1016

The extent of the injuries that caused the death of the deceased was vividly described, with its lurid details, by the medical witness as follows:

“Findings:—body to be that of an elderly man about 70 years; following fresh wounds on body—a three-inch long deep cut on the right shoulder, a similar cut on the right fore-arm, a three-inch long cut on the left hypochondrium, a four-inch long cut on the left jaw exposing the jaw bone; in the neck on the left side there was a six-inch long cut one-and-half inches deep exposing the vessels in the neck, there was another wound seven inches long and two-inches deep on the right side running from the chin to the back of the head and splitting the lower lobe of the ear. The second, third, fourth, fifth and sixth ribs were fractured on both sides in their mid clavicular lines. The sterum (the breast bone) was fractured between the third and fourth ribs. On opening up the body I found a one-inch long punctured wound in part of the small intestines.” On being called upon to answer the charge in the indictment, after the close of the case for the prosecution, the appellant, as the learned trial judge recorded, refused to talk and stood unconcerned. And after a summing-up by the learned trial judge the jury returned a verdict of guilty of murder, and the appellant was accordingly sentenced to death.

The appellant has now appealed to this court, and the two main grounds that were argued on his behalf were: (1) That there was a material irregularity in course of the trial which rendered it a nullity; and (2) that the judgment is unreasonable and unsupportable having regard to the evidence on record.

With regard to the first ground counsel for the appellant referred to section 238 of the Criminal Procedure Code 1960 (Act 30), and to the following notes of the learned trial judge: “Accused refuses to talk—and stands unconcerned,” and submitted that the failure of the learned trial judge to try the preliminary issue whether or not the appellant was fit to plead vitiated the entire proceedings at the trial. Section 238 of the Criminal Procedure Code, 1960, reads: “238. If any accused being arraigned upon, or charged with, any indictment, stands mute of malice, or neither will, nor by reason of infirmity can answer directly to the indictment, the Court, if it thinks fit, may cause a plea of ‘not guilty’ to be entered on behalf of the accused, and the plea so entered shall have the same force and effect as if the accused had so pleaded; or else the Court shall there upon proceed to try or, if the case is triable [p.1020] of [1968] GLR 1016 by jury under section 242 or 245 cause a jury to be empanelled to try whether the accused be of sound or unsound mind, and if he is found of sound mind shall proceed with the trial, and if he is found of unsound mind, and consequently incapable of making his defence, shall proceed in the manner provided by section 133 which shall apply accordingly.”

Section 133 also reads:

“133. (1) When in the course of a trial or preliminary proceedings the Court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall enquire into the fact of such unsoundness by causing him to be medically examined and shall thereafter take medical and any other available evidence regarding the state of the accused’s mind.

(2) If the Court is satisfied from evidence on oath that there is a prima facie case against the accused, but is of opinion that the accused is of unsound mind and consequently incapable of making his defence it shall record a finding to that effect and postpone further proceedings in the case.

(3) If the case is one in which bail may be taken the Court may then release the accused on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance at a stated time, or when required, before the Court or such officer as the Court appoints in that behalf.

(4) If the case is one in which bail may not be taken, or if sufficient security is not given, the Court shall order the accused to be detained in safe custody in such place and manner as it may think fit and shall transmit the Court record or a certified copy thereof to the Minister through the Judicial Secretary.

(5) Upon consideration of the record the Minister may by warrant under his hand directed to the Court order that the accused may be confined as a criminal lunatic in a lunatic asylum or other suitable place of custody and the Court shall give any directions necessary to carry out such order. Any such warrant of the Minister shall be sufficient authority for the detention of the accused until the Minister shall make further order in the matter or until the Court finding him incapable of making his defence shall order him to be brought before it again in the manner provided by sections 134 and 135.” [p.1021] of [1968] GLR 1016

It is plain that section 133 cannot be applied, unless it has been decided by the trial judge or the jury that the accused is of unsound mind and incapable of making his defence.

In the opinion of this court an appeal will lie against the conviction of an accused person on the ground of unfitness to plead where a question of law is involved: see R. v. Podola (1959) 43 Cr.App.R. 220, C.C.A. As Lord Sumner pointed out in Crane v. D.P.P. (1921) 15 Cr.App.R. 183 at pp. 216-217, H.L., a convicted person is entitled to say that he “should not have been given in charge to the jury as he was, or have been made the subject of any verdict at all, but should have had the proceedings stopped at the outset.” We think that the matters mentioned in section 238 of the Criminal Procedure Code are preliminary issues to be raised when an accused person is arraigned upon or charged on an indictment. These issues can be raised not only by the prosecution or by the defence, but by the judge himself. In R. v. Beynon [1957] 2 Q.B. 111 at p. 114 Byrne J. said:

“As I have always understood the law and seen it administered, if the court is aware of the fact that there is a preliminary issue whether the person who is charged before the court on an indictment is insane so that he is unfit to be tried, it is the duty of the court to see that that issue is tried, even though no application is made by the prosecution or by the defence.”

See also R. v. Dashwood [1943] K.B. 1, C.C.A.

Section 238 of the Criminal Procedure Code deals with a situation where an accused person fails to plead to an indictment. In this circumstance the court must first decide whether: (a) he stands mute of malice (just being obstinate), or (b) he is prevented from pleading by reason of an infirmity of the mind. If the court is satisfied that he can plead and understand the proceedings, the judge may enter a plea of “not guilty” on his behalf and the trial proceeds. If, however, the court entertains any doubt about the prisoner’s fitness to plead it will itself then proceed to try it as a preliminary issue, or if the case be one triable by jury then a jury is empanelled and sworn to try this issue. If the court or jury finds him mute of malice, a plea of not guilty” is entered for him and the trial proceeds; but if he is found to be of unsound mind then the court will proceed in the manner provided for in section 133 of the Criminal Procedure Code. Before ordering a jury to be sworn to try the issue as to the prisoner’s fitness to plead, a court must be satisfied that there is some material for the supposition that the accused is unfit to plead. [p.1022] of [1968] GLR 1016

The test to be applied where fitness to plead is raised was that laid down in R v. Pritchard (1836) 7 C. & P. 303 at p. 304, where Alderson B. in directing the jury said:

“There are three points to be inquired into:—First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence—to know that he might challenge any of you to whom he may object—and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.” In the opinion of this court, the material time, that is to say, the only time which need be considered, is whether at the moment of plea and of trial the accused sufficiently understands the offence charged against him, and the details of the evidence in support of it.

The appellant in this case was, on 8 March 1966, arraigned upon an indictment charging him with the murder of the deceased. It is recorded by the presiding judge (Boison J.) on the appellant’s first appearance that the charge was read and explained to him and that he pleaded not guilty. He was unrepresented by counsel and was remanded in custody. The appellant appeared again, unrepresented, before the court (presided over by Sampson-Baidoo J.) on 4 May 1966, and a plea of “not guilty” was entered on his behalf, and the case adjourned to 9 May 1966 definitely for hearing. On 10 May 1966 when the case was called before Sampson-Baidoo J. the appellant was represented by counsel. The appellant’s plea was no more taken, but his counsel informed the court that the appellant had been telling him different stories as to what happened. Counsel intimated that he intended to raise a defence of insanity and applied for an adjournment at that stage for the appellant to be medically examined as to the state of his mind. The court acceded to this application and made the following order: “Let the accused be taken to the Mental Hospital in Accra for medical observation by the psychiatrist as to the state of his mind.

Case is adjourned sine die pending the necessary medical observation and report. Accused to remain in custody.”

After three further adjournments, necessitated by delay in transmitting the medical report to the court, the appellant eventually appeared before Sowah J. on 1 February 1967 when counsel for the appellant stated that the appellant was fit to plead. The learned

[p.1023] of [1968] GLR 1016 judge’s notes read: “Counsel—accused fit to plead now.” We ourselves have not had the benefit of reading the medical report because it is not in the record of the proceedings at the trial. The case was on that day adjourned. When ultimately the case came before Sowah J. for hearing on 13 March 1967, he recorded the following notes:

“Accused present.

Amonoo-Money for the State.

Amoah for the defence.

Charge read and explained.

Accused pleads not guilty.

Jurors empanelled.”

Counsel for the appellant has contended before this court that there were sufficient facts before the learned trial judge to make him aware that there was a preliminary issue whether the appellant was insane so that he was unfit to plead. Counsel referred first of all to the order made by the court itself for the mental examination of the appellant; then to the appellant’s refusal to swear and give evidence when the trial judge was taking evidence on the admissibility of a statement alleged to have been made by the appellant, and finally to the appellant’s refusal to talk when called upon to make his defence. It was stressed by counsel for the appellant that the conduct of the appellant at the close of the prosecution’s case was indicative of a person who had not sufficiently comprehended the proceedings at the trial so as to make a proper defence. It is clear that the question of the appellant’s fitness to plead was not raised by anyone at the commencement of the proceedings. Nevertheless, if there was sufficient evidence to show that the appellant was unfit to plead, the learned trial judge should have seen to have that issue tried as a preliminary point. We do not, however, think, in the circumstances of this case, that any one would expect a trial judge, after he had himself seen the medical report on the accused and had been satisfied of his mental condition, and had also been told by counsel for the defence that the accused was fit to plead, to proceed under section 238 of the Criminal Procedure Code. The following record which the learned trial judge made after the appellant had refused to talk at the close of the prosecution’s case contains valid reasons which dispose of the appellant’s counsel’s contention about fitness to plead: “Accused refuses to talk—and stands unconcerned. Amoah—counsel for the accused: I interviewed him yesterday and he appeared to talk coherently; I do not quite understand his present behaviour. Per curiam: In view of the doctor’s report on the accused and what his lawyer tells me I am under the [p.1024] of [1968] GLR 1016 impression that the accused is only refusing to talk. He understands Twi perfectly. The trial will proceed.”

The learned trial judge was satisfied that by refusing to talk the appellant was shamming, and we do not think that any valid criticism can be levelled at the procedure he adopted upon the arraignment. In our view the first ground of appeal must fail.

With regard to the second ground of appeal, this court has read the evidence of Beatrice Ankobea, the second witness for the prosecution, and the doctor, and it has come to the conclusion that the verdict of the jury was unsatisfactory and ought not to stand. This unsatisfactory result, we think, with respect, was brought about by the failure of the trial judge, firstly, to direct the jury adequately on the evidence of the second witness for the prosecution, and, secondly his complete failure to direct the jury as to the standard of proof on the issue of insanity. The second witness for the prosecution appears to be the first person who saw the appellant in the early morning of 9 December 1965. She gave evidence of the appellant’s behaviour and his utterances. The evidence of the other witnesses also shows that the appellant, who had every chance to escape, stood near the house in which the deceased was lying and carried on him all the instruments he might have used in killing the deceased. In directing the jury on the evidence of second prosecution witness, the trial judge said: “Gentlemen it is for you to examine this evidence meticulously; counsel for the accused has told you that Mrs. Ankobea might be exaggerating since Amponsah told you that when he saw the accused he was quiet.

You have seen Mrs. Ankobea; it is for you to say whether she is exaggerating; if you accept her evidence then it amounts to confession on the part of the accused as to the killing of the deceased.”

This passage was followed by a direction on other parts of the evidence, and the jury were asked to consider whether the appellant had been sufficiently identified as the killer of the deceased. The learned trial judge then concluded this aspect of his summing-up with these words:

“Gentlemen, it is for you to say whether the evidence leads to the irresistible inference that the accused is the person who killed the old man; if not then the accused is not guilty and entitled to acquittal.”

There was ample evidence of the identity of the appellant, and the matter rather on which the jury should have been adequately instructed is the crucial issue whether the appellant was insane.

[p.1025] of [1968] GLR 1016

The learned judge then proceeded, after the direction in the passage quoted above, to deal with the issue of insanity, and he called the jury’s attention to the absence of motive, and the evidence of the medical witness that the appellant practically carved up the body of the deceased as if he was carving a sheep. The learned judge continued his summing-up as follows: “Might he not be under some delusion? The difficulty is that the accused had refused to give evidence, so that his state of mind could be tested.” With all due respect to the learned trial judge, we do not think that the issue of insane delusion can be determined by looking only into the mind of the accused person, so that the failure of an accused to give evidence does not preclude a consideration of that issue. In State v. Kabuanya, Court of Appeal, 27 November 1967, unreported; digested in (1968) C.C. 23 this court held that the validity of the defence of insane delusion is an issue of fact for the jury. It was therefore incumbent upon the learned trial judge to tell the jury to consider all the facts adduced before them, and he must further tell them, in the words of this court in the Kabuanya case (supra), that, “If the state of the accused’s mind was in such a high degree of disorder that he was incapable of controlling his actions, then it is pointless to punish him.” The second witness for the prosecution gave evidence, which, in the opinion of this court, is relevant on the issue of insanity. This appears from the following passage in her evidence:

“It was about 1 a.m. I heard an unusual noise, some one shouting in Twi that’ I have killed him, I have killed.’ I was in my bedroom; I opened my window and peeped and saw a man walking up and down, he was walking in the street; there were bungalows near my house; it was a moonlight night . . . At day break I saw a man brandishing a knife still shouting; I know there was an uncompleted house near us which had a watchman . . . I was awakened by the shouts; he was saying that he has killed the watchman; he spoke in Twi; he further said the watchman owed him money. When I saw him the following day he looked normal, he did not look mad; I saw him smoking.” We regret that the learned trial judge did not sufficiently direct the jury to apply their minds to the evidence of Beatrice Ankobea in relation to the extraordinary behaviour of the appellant soon after the event. With all due respect, we think that this is a serious misdirection, for the question whether the appellant was sane or insane at the time he committed the act was a question of fact for the jury, and was “dependent upon the previous and contemporaneous acts” of the appellant: Archbold’s Criminal Pleadings, Evidence and [p.1026] of [1968] GLR 1016

Practice (36th ed.), p. 17 at para. 39. In R. v. Nasamu (1940) 6 W.A.C.A. 74, it was held that the word “contemporaneous” covers acts committed immediately after the act charged, and we are of the opinion, that upon a proper direction the jury would have found that the appellant was insane immediately after the killing, and this might have led him to a definite conclusion that the appellant was insane at the time.

One question which arose before us was the learned judge’s misdirection on the onus of proof. The learned judge’s direction on this matter is to be found in the following passage:

“The law says that the burden of proving insanity is on the accused, nevertheless in view of the strange behaviour of the accused I would request you to give earnest consideration to this aspect of the case.”

The court pointed out during the argument that the trial judge’s summing-up in the above passage failed to direct the jury that the burden of proof which rested upon the accused to establish the defence of insanity was not as heavy as that which rested upon the prosecution to prove their case: and that the burden might be discharged by evidence satisfying the jury of the probability of that which the accused was called upon to establish. Counsel for the State, Mr. Sarkodee, conceded that the misdirection was serious, and that that alone vitiated the conviction. We are in entire agreement with Mr. Sarkodee. Upon a very careful consideration of the whole evidence, and the circumstances of the case, this court is of the opinion that the verdict of the jury is unreasonable, and should not be allowed to stand, for the court feels that had the jury received fuller directions upon the evidence of the second witness for the prosecution and on the burden of proof, they would almost inevitably have returned a special verdict of “guilty but insane.” We therefore allow this appeal, set aside the verdict of the jury, and quash the sentence of death. We substitute for the verdict of guilty of murder, a verdict of “guilty but insane,” and we order that the appellant be detained in custody as a criminal lunatic in a mental hospital until the pleasure of the National Liberation Council be known.

DECISION

Appeal allowed.

Special verdict of guilty but insane substituted.

D. R. K. S.