|
Criminal law and procedure –
Murder – Self-defence – Deceased
attempting to inflict cutlass
wound on accused – Accused
disarming and immobilising
deceased in ensuing struggle –
Accused repeatedly slashing
deceased with cutlass to death –
Whether defence of self-defence
available - Criminal Code 1960
(Act 29) s 32(b).
The deceased went to his farm
and discovered that it had been
set on fire. On the farm he saw
some hunting equipment that he
suspected belonged to the
culprit. Later in the day the
appellant enquired from the
deceased about the hunting
equipment but the deceased
denied knowledge of it. The
following morning the deceased
set out to see if the fire had
extinguished but never returned.
He was later found dead on the
farm with several wounds on his
body. In a statement to the
police the accused claimed that
the deceased attempted to slash
him with a cutlass but missed
and the cutlass fell. The
accused in turn gave the
deceased a blow and he fell down
whereupon the accused picked the
cutlass, slashed the deceased
and left him on point of death.
In his testimony however the
accused stated that when the
cutlass fell on the ground he
picked it. The deceased grabbed
him and they struggled and fell
on the ground. He got up and
retreated but the deceased got
up and tried to grab him. He
realised that the deceased would
kill him if the deceased got
hold of the cutlass. He then
slashed the deceased with the
cutlass. The deceased fell on
the ground and attempted to get
up but could not. He then left
the deceased.
The medical officer who
performed the autopsy testified
to extensive lacerations on the
skull, right wrist, palm, right
shoulder, left arm and a
fractured skull of the deceased.
The jury returned a verdict of
guilty of murder and the accused
appealed on the ground that the
trial judge failed to put the
defence of self-defence to the
jury.
Held,
on the facts the appellant had
struck down the deceased and had
taken away the cutlass that had
fallen on the ground. It was in
that disabled position of the
deceased that he was slashed to
death by the accused with the
cutlass. At the material time
the threat of imminent danger to
the life of the accused had been
spent; the deceased, the
aggressor, had been immobilised
and disarmed. The wounds on the
wrist and in the palm were
obviously inflicted on a hand
raised helplessly against
impending cuts. Those fatal
wounds, as the jury found, were
not inflicted in self-defence.
Self-defence was not therefore
open to the appellant under
section 32(b) of the Criminal
Code 1960 (Act 29) and the
appeal would be dismissed.
Cases referred to:
Abrath v North Eastern Railway
Co
(1883) 11 QBD 440, 52 LJQB 620,
49 LT 618, 47 JP 692, 32 WR 50,
15 Cox CC 354 CA.
Lamptey alias Morocco
v The Republic [1974] 1
GLR 165, CA.
Republic v Abisa Grunshie
(1955) 1 WALR 36.
State v Ampoma
[1960] GLR 262, SC.
APPEAL against a conviction for
murder.
K A
Ocansey for the
appellant.
Mrs
Anson, Chief State
Attorney, for the respondent.
FORSTER JA.
On 8 July 1991 the appellant was
convicted of the offence of
murder by the High Court
Sunyani. The facts relied upon
by the prosecution are that on
20 February 1988 the deceased,
Yaw Ofori, then resident at
Amona cottage near Kintampo went
to the farm in the company of
his son, PW2. They discovered
that somebody had set fire to
the farm. They saw a hunting gun
and a hunting lamp that the
deceased suspected belonged to
the person who might have set
fire to the farm. Later in the
afternoon the appellant asked
the deceased about the hunting
equipment and the deceased
denied knowledge of it. The
deceased then left the farm in a
displeased mood.
On the following morning, the
deceased left for the farm to
see if the fire had
extinguished. He took along a
cutlass and an Akasanoma radio.
When, after some time the
deceased did not return, his
mother and his brother, PW1,
went out to look for him. They
found him dead in a path in the
farm. He had several wounds on
his body. None of the equipment
he had with him was found at the
scene.
The appellant had in the
meantime disappeared from his
cottage; in fact he went to
Burkina Fasso. He was later
arrested by the police at Dapori
and brought to Kintampo. He made
a statement on 2/7/88 and led
the police to the spot where the
deceased lay and where he had
concealed the cutlass and the
radio belonging to the deceased.
The statement was admitted in
evidence as exhibit D after a
mini trial. In that statement he
said:
“As I strongly suspected the
deceased and his children to
have stolen my hunting bag and
the contents and as I had not
seen anything on them, I thought
it wise to comb the area on the
following morning. After combing
for the bag and its contents in
the deceased’s farm in vain, I
decided to return home. Whilst
returning to my cottage I met
the deceased going to his farm.
He was holding a wireless set
and a cutlass. The deceased
asked me what I was after in his
farm. I replied... As I was
about to by-pass him, he
attempted to slash me with the
cutlass and missed his target.
The cutlass fell on the ground.
I gave him a blow and he fell
down. I quickly picked the
deceased’s own cutlass from the
ground and lynched (slashed) him
to death. He was on the verge of
death. I left him and took the
cutlass and the wireless set and
hid them on the top of some
rocks at the area.”
In his evidence at the trial,
the appellant gave essentially a
different version of the
confrontation. He said after
some verbal exchange between him
and the deceased:
“Yaw Ofori tried to strike me
with his cutlass. I had nothing
on hand. I dodged when he tried
to wound me with the cutlass;
the cutlass fell on the ground.
I realised that he wanted to
kill me. I ran to where the
cutlass was and picked it. Yaw
Ofori ran and grabbed me and we
started struggling. We both
landed on the ground. We
struggled on the ground and I
was able to pick the cutlass. I
got up and retreated but he got
up and tried to grab me again. I
realised that if he had the
cutlass he would kill me. I
slashed him with the cutlass and
he fell on the ground. He wanted
to get up but he could not get
up. I then left Yaw Ofori’s
farm.”
It is quite clear that on the
essential issue with respect to
the circumstances in which the
appellant inflicted the mortal
wounds on the deceased, his
statement to the police on
3/3/88, some 14 days after the
incident, was in conflict with
his evidence given on 3/7/91,
some three years later. This
conflict was not lost on the
trial judge. In his summing-up,
he asked the jury to consider
his testimony to be a lie.
However, and quite commendably,
he warned them that even so the
lie “[did] not absolve the
prosecution from the duty of
affirmatively proving the
prisoner’s guilt beyond
reasonable doubt.”
The jury who heard and saw the
appellant must have rejected the
evidence of the appellant as a
fabrication and a lie.
Counsel for the appellant
contended that the summing-up
failed to put the defence of
self-defence to the jury and
thereby occasioned a substantial
miscarriage of justice. Counsel
relied on Republic v Abisa
Grunshie (1955) 1 WALR 36,
State v Ampoma [1960] GLR
262, SC and Lamptey alias
Morocco v Republic
[1974] 1 GLR 165, CA. These
authorities hold that where the
summing-up omits to put the
defence of the accused to the
jury, that is misdirection by
non-direction the conviction may
be quashed on appeal.
But what is misdirection? As was
explained by Brett MR in
Abrath v North Eastern Railway
Co (1883) 11 QBD 440 at p
453:
“… there is no misdirection,
unless the judge told them
something wrong, or unless what
he has told them would make
wrong that which he has left
them to understand.
Non-direction merely is not
misdirection, and those who
allege misdirection must show
that something wrong was said or
that something was said which
would make wrong that which was
left to be understood.”
In his summing-up the judge drew
the attention of the jury to the
defence of the appellant; “that
he killed Yaw Ofori because he
found that his life was in
immediate danger and all that he
could do to was to defend
himself; that was how he acted.”
Further on, he said:
“If you, the jury, feel sure
that the harm caused to Yaw
Ofori was unlawful then you have
to go further to examine whether
or not the accused was justified
in causing that harm. If you
feel that the accused acted in
self-defence then your verdict
should be ‘not guilty of
murder’.”
The issue of self-defence
therefore was clearly left to
the jury.
Counsel contended further that
on the evidence before the
court, the defence of
self-defence was clearly
established and urged us to
allow the appeal.
The case of Morocco is
only relevant here as re-stating
the import of self-defence in
terms of section 37 of the
Criminal Code 1960. In its
judgment the Court of Appeal
said at page 172:
“What the law requires is
evidence of circumstances of
extreme necessity. So where
there is a safe opportunity for
retreat, killing cannot be
justified. So also where a
murderous assailant has been
disarmed or disabled in
circumstances which show that he
is then in no position
immediately to resume his
criminal purpose or act then the
killing cannot be justified.”
In the instant case the
appellant had struck down the
deceased and had taken away the
cutlass which had fallen. As he,
the appellant himself stated, it
is in that disabled position
that he slashed the deceased to
death with the cutlass. The
medical officer PW1 who
performed the autopsy testified
to “extensive lacerations on the
skull, right wrist, palm, right
shoulder and left arm.
Dissection revealed fractured
skull.”
These were the wounds that were
inflicted on the deceased who
had fallen. The threat of
imminent danger to his life had
been spent, his aggressor had
been immobilised and disarmed.
The wounds directed at the wrist
and palm were obviously
sustained to a hand raised in a
helpless effort to shield
himself from the impending cuts.
With these wounds on the hand
the deceased had ceased to be a
source of immediate danger to
the life of the appellant. I do
not think (and as the jury had,
by their verdict demonstrated)
that these fatal wounds were
inflicted in necessary
self-defence.
Even assuming that danger to
life was still threatened, was
the nature of the wounds
inflicted (particularly to the
head) reasonably necessary for
the purpose for which force is
permitted to be used under
section 32(b) of the Criminal
Code 1960 (Act 29)? Self-defence
was not therefore open to the
appellant.
I find no valid reason for
interfering with the verdict
because the evidence wholly
supports the conclusion of the
jury.
For these reasons I would
dismiss the appeal.
AMUAH JA.
I agree.
BROBBEY JA.
I also agree.
Appeal dismissed.
Kizito Beyuo, Legal Practitioner |
