QUARTEY ALIAS KUUKUAA vs. THE REPUBLIC [1999-2000] 2 GLR 201

CASES REFERRED TO

(1) R v Kuree (1941) 7 WACA 175.

(2) R v Edem (1943) 9 WACA 25.

(3) Ejukolem v Inspector-General of Police (1952) 14 WACA 16.

(4) Attuahene v Commissioner of Police [1963] 1 GLR 448.

(5) Idrisu Gonja v The State [1964] GLR 573, SC.

(6) Quaye alias Jack Toller v R (1954) 14 WACA 488.

(7) R v Gyamfi [1960] GLR 45, CA.

(8) R v Amponsah (1938) 4 WACA 120.

(9) Adekura v The Republic [1984-86] 2 GLR 345, CA.

[p.206] of [1999-2000] 2 GLR 201 (10) Director of Public Prosecutions v Smith [1961] AC 290; [1960] 3 WLR 546; [1960] 3 All ER 161, HL.

(11) R v Steane [1947] KB 997; [1947] 1 All ER 813; 63 TLR 403, CCA.

APPEAL against judgment of High Court, Sunyani convicting the appellant of murder. The facts are sufficiently stated in the judgment of Afreh JA.

William Oduro for the appellant.

Ann Mamattah, Senior State Attorney, for the Republic.

Afreh JA. The appellant is appealing against her conviction by the High Court, Sunyani on 6 November 1999 for the murder of one Nathaniel Quartey. The deceased, aged five-and a -half years at the time of his death, was the stepson of the appellant. The appellant and her husband (a police constable) lived with the deceased and two other small children in one room at the police barracks in Sunyani, Brong-Ahafo. One of these two children was one Dorcas Ocran, who gave evidence as the fifth prosecution witness. The room next to the one occupied by the appellant and her husband was occupied by one Corporal David Kwasi Kumedzro, who gave evidence as the second plaintiff witness and his wife Mrs Adwoa Dora Kumedzro, who gave evidence as the first plaintiff witness.

The second plaintiff witness testified that on 6 November 1997 he was sitting on the veranda in front of his room when the appellant went to tell him that her son, that is the deceased, was seriously sick. He followed her into the appellant’s room. He saw the child lying flat with the eyes open and blood oozing from his nose. He did not talk to the child. He did not touch his body. He returned to his room and asked his wife, the first prosecution witness, to assist the appellant to send the boy to the hospital. He said he did not hear anything while he was sitting in front of his door.

The first prosecution witness testified that on 6 November 1997 she was in their room at the police barracks when she heard the deceased crying in the room of the appellant. She did not know why he was crying. She heard a bang in the room of the appellant but could not tell what it was. In his cries, the deceased said: “Mama, I beg you; I will not do it again.” She did not go to the

[p.207] of [1999-2000] 2 GLR 201 room of the appellant. But while still in her room her husband came to tell her that something had happened to the appellant’s child so she should go and see. She went into the appellant’s room and saw the deceased in a chair with blood oozing from his nose. She lifted the child while the appellant held his hand and sucked the blood from his nostril and the mouth. They put the child on the floor and poured some iced water on him. He breathed and vomitted blood and phlegm. He responded when the appellant called him and also identified first prosecution witness by name. The appellant suggested the deceased had recovered but the first plaintiff witness did not think so. The appellant also said the deceased had had convulsion but the first prosecution witness said she could not see any evidence of that. Although the appellant was unwilling to take deceased to the hospital, she eventually agreed to do so. The child died later in hospital.

Dorcas Ocran, the first prosecution witness, testified that on 6 November 1997 the appellant asked her to sit one Afua Fripomaa, the little child staying with the appellant, on the chamber pot. She did so and left for the kitchen. Its door was locked. She went back to the bedroom. She heard bangs but did not count how many. The appellant called her and told her that after Frimpomaa had eased herself the deceased did not wipe the anus before putting her pants on her. She went out to sweep and then heard the cries of the deceased. The first plaintiff witness called her to come and clean the corner and the phlegms in the bedroom. She took a rag and the first prosecution witness said they were going to the hospital. The first plaintiff witness later told her the deceased had died. She also said the appellant sometimes corrected them (that is, the children staying with the appellant) by beating them if they made mistakes.

The medical report gave the cause of death as a right subdural haemorrhage, that is bleeding under the covering of the brain. A blow, anything that could actually hit the head or, for that matter, any blunt instrument could have caused the injury. The two doctors who testified at the trial rejected the suggestion of counsel for the appellant that death could have been caused by something falling from a height on a sleeping person. But the pathologist said death could have been caused by a fall if a person fell from a height and the head hit the floor.

In her statement to the police on the day of the incident, the appellant said when she woke up she saw the deceased lying

[p.208] of [1999-2000] 2 GLR 201 down, as if he was bringing something out from under a chair. Later she observed that he was in the same position and said that there was phlegm on the nose, she called Corporal Kumedzro to come to her aid. He also invited the wife, the first plaintiff witness. Later she and the first prosecution witness took the child to the hospital where he died.

But at the committal proceedings and at the trial she gave a long history of her marriage. She said it was generally cordial but whenever she told her husband that she wanted to go and do further studies the husband got angry and they quarrelled. During one such quarrel in the early hours of 6 November 1997 the husband beat her. She jumped on the bed in an attempt to escape the beating. In the course of the fight, which took place at about 2 am on the fateful day, some suitcases on the wardrobe fell down on the deceased. After they stopped fighting the husband repacked the things. He later left at about 4 am on some mission. When she woke up she saw that the deceased was still on the floor. She asked him to go and have his bath but he did not respond. She saw phlegm in his nostrils. She called Corporal Kumedzro for help, because the husband was not at home. Later the child was taken to the hospital where he died.

At the trial the prosecution did not call the appellant’s husband as a witness. But after the evidence of the appellant and the defence had closed its case, the judge suo motu called the husband as a court witness because in his view it was necessary for him to appear and testify. He did not give any reason why it was necessary for the husband to appear and testify but in his summing up he told the jury that the husband was invited to testify in the interest of justice.

In his evidence, the husband denied that he fought with the appellant, as she alleged, or that any bags fell on the deceased. He also told the court that the deceased was normal and asleep when he left for work that day. It was on his return that the first prosecution witness told him of the sickness of the child. He also told the court that the bags on the wardrobe remained where they were and that there was no change on their position.

The notice of appeal contained two grounds of appeal, viz: (1) The conviction was against the weight of the evidence and (2) the honourable trial judge erred when he called the court witness after the close of the case for the defence when nothing had arisen ex improviso. Later the following additional grounds were filed:

[p.209] of [1999-2000] 2 GLR 201

“(1) The summing up of the learned trial judge was not even-handed. It leaned in favour of the prosecution.

(2) The summing up of the learned trial judge was one of misdirection by non-direction.

(3) The learned trial judge misdirected the jury.

(4) The prosecution case was full of doubts.

(5) The prosecution failed to call a material witness.

(6) The learned trial judge did not direct the jury as regards the doubts in the case of the prosecution.

(7) The appellant did not have a fair trial having regard to the pre trial press coverage, which had a prejudicial effect on the jury.

(8) The learned judge’s summing up with regard to the report of Dr Anaglate and the pathologist, Dr Kofi Adomako Boateng was inadequate and prejudicial.

(9) The learned trial judge erred when he said the first doctor to see the deceased was Dr Anaglate.

(10) The learned trial judge in his summing up made comments which were prejudicial to the defence in that he misdirected the jury by conveying to them to think that the hammer was used by the appellant on the head of the deceased.”

Before I consider these grounds of appeal, I want to comment on the form in which the additional grounds were formulated. Most of them, especially additional grounds (2), (3), (4), and (5) were not concise but rather vague or general in terms. It was with reluctance that we allowed counsel to argue them because of the seriousness of the crime of which the appellant was convicted. Grounds of appeal must contain particulars of any alleged error of law or of fact on which the appellant relies. Counsel for appellant failed to do this and that in my opinion contributed to the length of time he took to argue the appeal.

The additional grounds as argued by counsel, can be divided into three main groups: (a) That the judge’s summing up was not even-handed and leaned in favour of the prosecution; (b) misdirections on questions of fact; and (c) misdirections on questions of law.

The ground that the summing up was not fair and leaned in favour of the prosecution has no merit and requires no further comment. Apart from the direction on the hammer, there is

[p.210] of [1999-2000] 2 GLR 201 nothing in the-summing up of the facts which was prejudicial to the appellant. There are therefore only two matters, which need occupy the consideration of the court, namely:

(a) The original ground (2), that the trial judge erred when he called a court witness after the close of the case for the defence, when nothing had arisen ex improviso; and

(b) The misdirections of the judge on the law relating to manslaughter and murder.”

Power of judge to call a witness not called by parties

Under both the Courts Act, 1993 (Act 459) and the Evidence Decree, 1975 (NRCD 323), a court or judge has wide powers to call witnesses. Section 58 of Act 459 provides that in any proceedings, and at any stage, a court either on its own or on the application of any party, may summon any person to attend to give evidence, or to produce a document in his possession or excerpts from it subject to any enactment or rule of law. Section 68 of NRCD 323 contains a similar provision. Under it all parties may cross-examine witnesses called by the court. The court may ask questions of witnesses, whether they were called by a party or the court. A party may object to questions asked by the court and to evidence obtained by the court’s questions at any time prior to the submission of the case to the tribunal of fact (eg a jury) for determination. The section also provides that a juror may, through the court, ask questions of witnesses which the court itself might ask and which the court considers proper.

This extensive power of a judge in criminal cases is justified by Amissah in his Criminal Procedure in Ghana at p 201:

“The judge in the criminal trial is supposed to protect the public interest and therefore he is in the discharge of his duties permitted to call a witness who is not called by either the prosecution or the defence if he thinks the witness can throw light on the case. When the prosecution is reluctant to call a witness because it thinks the witness will lie to the court or because his statement given to the police is untrue, the exercise of this power may be best way of ensuring that justice is done.”

A judge in a criminal case therefore has a discretion to call witnesses in the interests of justice: see R v Kuree (1941) 7 WACA 175. His power to do so under both section 58 of Act 459 and [p.211] of [1999-2000] 2 GLR 201 section 68 of NRCD 323 appears to be unlimited. But like any other discretion it must not be exercised in a manner oppressive or prejudicial to the interest of a party. It must be exercised judicially, for instance to clarify an obscure or ambiguous matter.

One limitation placed by the courts on this power is that a judge may not call a witness after the close of the defence unless on a point which has arisen ex improviseo: R v Edem (1943) 9 WACA 25; Ejukolem v Inspector-General of Police (1952) 14 WACA 161 and Atuahene v Commission of Police [1963] 1 GLR 448. I think in the case before us the trial judge went beyond the limit set by these cases. The learned senior state attorney herself conceded that it was improper for the judge to call a witness after the close of the defence. Nothing had arisen ex improviso to warrant it. However, I agree with the senior state attorney that that error alone cannot justify quashing the conviction of the appellant.

Misdirections on the law relating to murder and manslaughter

There is no doubt that the deceased died of injuries to his head. They were not self-inflicted or caused by an accident. From the evidence of the first and the fifth prosecution witnesses they could only have been inflicted when the appellant, alone with the deceased her room, was beating him. The blows or force used, which the first and fifth prosecution witnesses heard as bangs, must have been strong. It is not the sort of blow or force a person should use to correct a child five-and-a-half years old. It was therefore unreasonable, having regard to the age of the deceased. The appellant’s denial that she beat the deceased on that fateful day was unconvincing. I think her story of a fight with her husband at 2 am during which some bags or suitcases on a wardrobe fell on the deceased was concocted to exculpate herself. So was the suggestion that the deceased might have had convulsions. The blows or other force used by the appellant, to correct the deceased cannot be justified. The harm caused by it was unlawful. The appellant therefore caused the death of the deceased by unlawful harm.

The question, however, is whether the appellant was guilty of murder. In a case like this where a jury can return a verdict of not guilty on grounds of justification or accident, a verdict of guilty of manslaughter or verdict of guilty of murder, the judge should carefully and clearly direct the jury on all these possible verdicts. If there is evidence that the death could have been caused by

[p.212] of [1999-2000] 2 GLR 201 unlawful harm and on the facts the jury could bring a verdict of guilty of manslaughter or a verdict of guilty of murder, the judge should direct the jury on the difference between manslaughter and murder. In the instant case although the judge directed the jury on a parent’s right to correct his or her child and even quoted section 41 of Act 29 in full, he did not correctly direct them on the effect of the use of unreasonable force in the exercise of this right. In this case he created the impression that if the force used was unreasonable and death occurred, then the appellant was guilty of murder.

Learned counsel for the appellant strongly attacked the summing up of the judge on several grounds of misdirection. Most of the attacks do not have any merit and we do not deem it necessary to comment on them. But there were statements in the summing up that could have misled or even confused the jury.

After quoting section 41 of Act 29 on the use of justifiable force in the correction of children and servants, the learned judge tried to explain the effect of the section by saying: “Although the law allows correction, if the force applied is such that it led to death, then the force cannot be said to be reasonable and, in our law cannot be justified.” This could have led the jury to think that no force used in the correction of a child or servant can be justified if it results in death. That is not correct. Such force cannot be justified only if it is unreasonable in kind or degree, regard being had to the age and physical and mental condition of the person on whom it is inflicted. So in this case if the force used by the appellant in lawfully correcting the deceased had been reasonable, her act would have been justified, his death notwithstanding.

In the course of his summing up the learned trial judge also said:

“As jurors you have to find out if the incident took place and if indeed a bag fell on the deceased resulting into his death. Remember the evidence of the two doctors who said a falling object cannot cause the injuries they saw and that only a blow or force applied could be the cause. Marry this with the evidence of the first plaintiff witness and the young girl who said they heard the young boy cry: ‘Mama I beg you, I will not do that again.’ Find out the cause of the cry and if indeed you find that it was a beating resulting in injury which occasioned the death, then find the accused guilty of murder. I

[p.213] of [1999-2000] 2 GLR 201 have already told you that a mother has the right to correct a child but in this case the force used was excessive and criminal and does not provide justification for the accused and thus the accused cannot rely on the provisions which provides justification for a parent to correct a child . . . If jurors believe the story of the husband that no fight took place and that no bags fell on the deceased then the defence crumbles. Jurors should find out if this new story about falling bags is the truth or an afterthought. A person is deemed to intend the natural and probable consequences of his act. If you find the accused inflicted heavy blows on the deceased so as to be heard outside and having regard to the age of the child then she is not availed of the defence .”

Towards the end of the summing up the judge said:

“Even if you find that the bags fell on the deceased as alleged by accused, and that it took place in an unlawful fight so that if jurors find what the accused told you that the bags fell in the course of quarrel, then you have to find her guilty of manslaughter. If you find that accused used any blunt object or a blow or even the hammer then find her guilty of murder.”

With respect, I think that there are serious misdirections in these statements. The harm caused to the deceased by the appellant was unlawful. But it does not follow that because the death was caused by that unlawful harm the appellant was guilty of murder. To be guilty of that offence there must be evidence that the appellant also intended to kill the deceased. In the absence of such intention the appellant can only be guilty of manslaughter.

The learned judge’s direction on intention in murder was woefully inadequate. Indeed, it seems he never referred to section 11 of Act 29 which defines intention, or the principles that have emerged from decisions of the courts of this country on that section or its predecessors. All that he told the jurors was that: “a person is deemed to intend the natural and probable consequences of his act.” Section 11 of Act 29 contains elaborate definitions of “intention” which a court is expected to apply to cases before it. There is therefore no need for a judge trying a murder case or other crime of intent to resort to the presumption that a person is deemed to intend the natural and probable consequences of his act. As he stated it, the learned judge gave the impression that this

[p.214] of [1999-2000] 2 GLR 201 maxim is a rule of law in Ghana; and that it is irrebutable. This has never been the law in Ghana.

Section 11 defines intention in five different ways but it is not necessary to consider the fourth and fifth definitions in this case. Section 11(1) gives intention its ordinary or basic meaning that he did the act for the purpose of thereby causing or contributing to cause the event proscribed or prohibited by the law: that is, that the accused desired the consequence caused by his act. In the case of murder the proscribed or prohibited event is the death of the victim of his act; and the death of the victim is the aim or design, the goal of the endeavours of the accused. A case where this meaning of intention was applied was Idrisu Gonja v The State [1964] GLR 573 at 578, SC where Ollennu JSC, giving the judgment of the Supreme Court of the First Republic, said:

“Great care is required in a summing-up on the question of intent in a murder case. The guiding principle is based upon the difference between murder and manslaughter as defined in sections 47 and 51 respectively of the Criminal Code, 1960. That difference has been emphasised by the court in Serechi v The State [1963] 2 GLR 531. But as directions in such cases still appear to present some difficulties, we will repeat it. . . (i) manslaughter is homicide caused by unlawful harm with nothing else, and (ii) murder is homicide intentionally caused by unlawful harm . . . Thus when the intent with which an act is done is simply to cause harm, death which may result from that harm is manslaughter only, and not murder. But if harm is inflicted intentionally, i.e. unlawful harm is inflicted with a further intent that unlawful harm should cause death, the death which may result, will be murder.”

In the case before us the appellant intended to cause harm, as defined by section 11 of Act 29, to the deceased but there was no evidence that she desired his death.

Section 11(2) Act 29 defines intention as a foresight of consequence:

“If, a person does an act voluntarily, believing that it will probably cause or contribute to cause an event, he intends to cause that event, within the meaning of this Code, although he does not do the act for the purpose of causing or of contributing to cause the event.”

[p.215] of [1999-2000] 2 GLR 201

In other words, although he did not desire the consequence, he will be deemed to have intended to cause it if he believed or foresaw that his act would probably cause or contribute to cause the event. Under this subsection a person cannot be held to have intended to cause death unless he was conscious that his act was likely to cause death. The courts of this country have often stressed this important, subjective element in the definition of intention in murder. In Quaye alias Jack Toller v R (1954) 14 WACA 488 at 491 the appellants went into a house to steal and administered chloroform to an old man who died. Foster-Sutton P, delivering the judgement of the West African Court of Appeal stressed, “In this country, in a case like the present one, the degree of criminality depends on the knowledge and consciousness on the part of the accused that death is likely to result from what he does, that is on whether or not he wilfully incurred the risk of causing the death of another person; in other words, the degree of criminal responsibility depends upon the existence or otherwise of bona fide ignorance of the connection existing between the mere mechanical act and its consequences . . .”

In Akorful v The State [1963] 2 GLR 371, SC, the Supreme Court of the First Republic again emphasised the subjective element in the definition of intention in murder. Azu Crabbe JSC said at 375: “Before a prisoner can be convicted of murder he must be found to have had a real or wicked intention to kill or it must be found that the circumstances were such that he was aware that the result of his act would be death. Chief Baron Pollock in R v Vamplew said, ‘the crimes of murder and of manslaughter were in some instances very difficult of distinction. The distinction which seemed most reasonable consisted in the consciousness, that the act done was one which would be likely to cause death. No one, however, could commit murder without that consciousness. The jury must be satisfied, before they could find the prisoner guilty, that she was conscious, and that her act was deliberate ’”

See also R v Gyamfi [1960] GLR 45, CA and Sene v The Republic [1977] 1 GLR 434, CA.

Even where the courts of this country have applied the so-called presumption of intent under section 11(3) of Act 29, they have

[p.216] of [1999-2000] 2 GLR 201 been careful to stress that it was rebuttable, Thus in R v Amponsah (1938) 4 WACA 120 the five appellants, two government police constables and three “native” prison officers, had tortured a prisoner in their custody to death. The West African Court of Appeal quashed the appellant’s convictions for murder and substituted convictions for manslaughter because the trial judge had not clearly dealt with the question whether the offence of murder or manslaughter had been committed. After referring to the presumption of intent in English law, the court per Petrides CJ said at 122:

“There is a somewhat similar presumption created by section 13(3) [now section 11(3) of Act 29] of the Criminal Code. The effect of that sub-section, on the facts in this case, is that if using reasonable caution and observation it would appear to the appellants that there would be great risk of the assaults causing or contributing to cause the death of the deceased they shall be presumed to have intended to cause his death unless they believed that the act would probably not cause or contribute to cause his death. . . By reason of section 13(3) [section 11(3) of Act 29] the assessors were entitled, if they were satisfied that it would have appeared to the appellants if they had used reasonable caution and observation that there would be great risk of the assaults causing or contributing to cause death, to presume that the appellants intended to cause the death of the deceased. It was the duty of the trial Judge to point this out to the assessors and to tell them that if they were satisfied that such was the case the presumption of intention was rebuttable if the appellants believed that the assaults would probably not cause or contribute to cause the death of the deceased. It does not appear that this was done.”

This case was cited with approval by the Supreme Court of the First Republic in Akorful v The State (supra). And in Adekura v The Republic [1984-86] 2 GLR 345 at 357, CA, this court per Osei-Hwere JA (as he then was) reiterated:

“Our section 11(3) of Act 29, also ensures that the presumption of intention prescribed by the circumstances in that section is rebuttable and not absolute. In other words if the jury believed the explanation of the accused person 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

[p.217] of [1999-2000] 2 GLR 201 to it then the criminal intent shall not be presumed against him. The same result would follow if the jury found the evidence of the accused relating to his intention probable or that it raised a reasonable doubt.”

The cases that I have cited show that the trial judge’s almost casual direction to the jury that a person is deemed to intend the natural and probable consequences of his act was a gross misdirection. It was also per incuriam, for section 38(2) of NRCD 323 expressly provides that the maxim that a person is presumed to intend the ordinary consequences of his voluntary act . . . “is not applicable in a criminal action to establish specific intent where specific intent is an element of the crime charged.” Murder is one of such crimes. It is therefore clearly wrong for a judge to direct a jury in a murder case, as the learned trial judge did in this case, that a person is presumed to intend the natural and probable consequences of his act.

Section 38(2) was inspired by section 8 of the English Criminal Justice Act, 1967 which was passed to remove the irrebutable presumption of intention that the House of Lords, per Lord Kilmuir LC, had applied in the case of Director of Public Prosecutions v Smith [1961] AC 290, HL. As Archbold Criminal Pleading, Evidence and Practice (2000), paras 17-36 explains:

“All that this section did was to enact what many had thought to be the law before the decision of the house of Lords in D.P.P. v Smith [1961] A.C 290, namely that there was no presumption of law that a man intended or foresaw the natural consequences of his acts. It has nothing to do with substantive law . . .”

In my opinion, in view of section 38(2) of NRCD 323, a jury in a murder case or a court in any other case of specific intent should not be directed to infer as a matter of law that an accused person intended or foresaw a result of his actions by reason only of its being a natural and probable result of those actions; but should decide whether he intended or foresaw the result by reference to all the evidence drawing such inferences from the evidence as appears proper in the circumstances. Undoubtedly where a certain result or event is known to be a natural and probable consequence of a particular act, a jury or court may be entitled to presume that a person who voluntarily commits that act intends to cause that

[p.218] of [1999-2000] 2 GLR 201 event. But it is not bound in law to make such an inference. It may only do so if the evidence warrants it. It is not a question of substantive law but of evidence. And any such presumption is rebuttable.

The proper direction on intention in crimes of specific intention was stated by Lord Goddard CJ in R v Steane [1947] KB 997 at 1004, CCA:

“. . . where an intent is charged in the indictment, the burden of proving that intent remains throughout on the prosecution. No doubt, if the prosecution prove an act the natural consequence of which would be a certain result and no evidence or explanation is given, then the jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.”

See Akorful v The State (supra).

In the instant case, I think the evidence shows that it was the act of the appellant which caused the death of the deceased. But did she intend to kill him? As I have already indicated, there is no evidence that the appellant desired the death of the deceased; in other words, there was no evidence that she beat or used some other force on the deceased for the purpose of causing or contributing to his death. The other question the judge should have put for the jury’s consideration was: “Was the act done in the consciousness that it was likely to cause death?”: see R v Gyamfi [1960] GLR 45 at 51,CA. If he had, the answer might have been in the negative and the jury might have brought in a verdict of manslaughter.

The learned senior state attorney rightly conceded that the trial judge also misdirected the jury when he told them that if they found that the accused used a blow or any blunt instrument or even the hammer then they should find her guilty of murder. In my view the reference to the use of the hammer was unfortunate and prejudicial. There was no evidence that the hammer was used or might have been used to hit the deceased. The investigating officer

[p.219] of [1999-2000] 2 GLR 201 told the court that he took the hammer from the room occupied by the appellant and her husband because it was suspected to have been used by the appellant to hit the deceased. Apparently, after he had taken the hammer, he or the police administration made no further effort to ascertain whether it was used or might have been used to hit a human being, Simple forensic tests might have determined that or otherwise. For if it had been used to hit a human being there might have been at least a speck of the blood of the deceased, or some piece of his flesh, however small, or the fingerprint of the appellant, on it. In the absence of any evidence of a link between the hammer and the injuries to the head of the deceased, I think the hammer was of little probative value, if at all, and should have been excluded from evidence at least under section 52 of NRCD 323.

I must add that at the present stage of forensic science it is not enough, and it is certainly not impressive, for the police to tender in evidence anything found at the scene of a crime or on a victim or an accused person without evidence linking the thing to the crime. Without such evidence the admission of an exhibit can create substantial danger of unfair prejudice or substantial danger of confusing the issues: see section 52(b) of NRCD 323. I think such prejudice or confusion was caused in this case by the admission of the hammer in evidence and the comments of the judge on it.

I think the misdirections of the judge, which I have referred to, caused the appellant substantial miscarriage of justice. If he had correctly directed the jury on the distinction between murder and manslaughter and on intention in murder, the jury might have returned a verdict of guilty of manslaughter instead of murder.

The appeal against conviction for murder should be allowed and in its place a conviction for manslaughter should be substituted.

Akoto-Bamfo JA. I agree.

Amonoo- Monney JA. I also agree.

Appeal against conviction for murder allowed.

Conviction for manslaughter substituted.

SA