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Criminal law and procedure –
Murder – Alternative verdict –
Accused stamping on deceased’s
chest, resulting in broken ribs
– Deceased not given prompt and
adequate medical attention –
Whether alternative verdict of
manslaughter available.
The appellant, a convict
prisoner, was the supervisor of
the prison cell that he shared
with the deceased and other
convicts. As punishment for
stealing the appellant’s corn
flour, the deceased was ordered
by the appellant to fetch
drinking water for the inmates
of the cell for three days. The
deceased carried out the
punishment for two days but
refused on the third day. This
resulted in a scuffle in which
the appellant pushed the
deceased onto the bare cement
floor, stamped on the deceased’s
chest about four times, and
broke his ribs. The deceased
bled from the mouth but was not
given immediate medical
attention as the cell was locked
for the night. In the morning,
he was given phensic tablets at
the infirmary. Five days later,
his condition got worse and he
was admitted at the prison
infirmary. His condition
steadily deteriorated and he was
transferred to the hospital
where he died. The appellant was
convicted of murder and he
appealed to the Court of Appeal.
Held:
The jury were not properly
directed on an essential
ingredient of murder, namely the
intention of the appellant to
cause death. It was the duty of
the trial judge to direct the
jury on the delay in giving the
deceased medical treatment and
the nature of the medical
treatment eventually given,
whether the doctors were made
aware of the injury to the ribs
and the failure of the
prosecution to call the doctors
at all. If the trial judge had
directed the jury adequately, on
those issues it might have
arrived at a different
conclusion. The evidence on
record undoubtedly supported
manslaughter and a conviction
thereof would be substituted
accordingly.
APPEAL against the conviction of
the appellant for murder in the
High Court.
Ofosu Quartey
for the appellant.
Mrs Anson,
Chief State Attorney (with her
Miss Amate and
Neequaye Tetteh) for the
respondent.
LAMPTEY JA.
On 14 December 1984 the
appellant, Kwame Dagarti alias
Bukari was found guilty of the
murder of Thomas Asika and
convicted accordingly. The
statutory sentence of death was
passed on him. He appealed to
this court against his
conviction and sentence on
several grounds. The facts which
gave rise to the prosecution of
the appellant may be briefly
stated as follows: Both the
appellant and deceased were
convicts and inmates of Sunyani
Central Prisons. They shared
Cell No 4 Down. The appellant
enjoyed the status of
“supervisor” in Cell No 4 Down,
a status that empowered him to
give orders to the other
prisoners and occupants in Cell
No 4 Down. These other prisoners
were obliged to obey his
commands and orders. The
deceased had been found “guilty”
of stealing roasted corn flour,
the property of the appellant.
The punishment meted out to the
deceased was that he should, for
three consecutive days, go to a
river to fetch drinking water
for the use of the inmates of
the cell. The deceased, in
obedience to that order, fetched
water for two days. On the third
day he refused or was unwilling
to go out to fetch water. On
learning about this, the
appellant ordered the deceased
to go out and fetch water on
pain of more serious punishment.
The deceased persisted in his
refusal. This resulted first, in
exchange of insults between the
appellant and the deceased.
Next, the two of them resorted
to exchange of slaps. The
deceased was pushed down onto
the bare cement floor and while
he lay on the floor the
appellant stamped on his chest
with his feet about four times.
At this stage, the appellant was
restrained by the other inmates
of the cell. The deceased was
helped to his feet. He bled from
the mouth. The cell had been
locked for the night and the
deceased was therefore not given
immediate medical attention. In
the morning, he was escorted to
the prison infirmary where the
nurse on duty gave him phensic
tablets. Five days later, the
condition of the deceased
changed for the worse. He was
rushed to the prison infirmary.
He was examined by the prison
doctor and admitted as an
in-patient. The condition of the
deceased steadily changed for
the worse. After a further
period of five days, he was
transferred to the Sunyani
Central Hospital. On the same
day, the deceased, Thomas Asika,
died. These were the
circumstances which led to the
trial and conviction of the
appellant on a charge of murder.
Before us, one ground of appeal
that was argued with
considerable force and
persuasion was that the trial
judge misdirected the jury on
the difference between murder
and manslaughter; that the
misdirection resulted in the
wrong verdict being returned
against the appellant. It was
submitted that if the jury had
been properly directed on the
essential ingredients of murder,
the jury would, on the facts
before the court, have returned
a verdict of guilty of
manslaughter. For the Republic,
learned counsel submitted that
the jury were properly directed
on the law and on the facts and
that they reached the right
verdict.
Were the jury properly directed?
I agree with the submission that
the jury were not properly and
correctly directed on one of the
essential ingredients of murder,
namely on the issue of intent on
the part of the appellant to
cause the death of the deceased.
It is necessary to consider
whether there was sufficient
evidence to show and establish
that the appellant intended to
the cause death of the deceased.
There was evidence that the
appellant stamped on the chest
of the deceased about four
times. The appellant denied that
he did stamp on the chest of the
deceased. The post-mortem report
showed that the deceased
sustained four broken ribs. The
jury had no difficulty in
rejecting the mere denial by the
appellant that he did not stamp
on the chest of the deceased.
The issue that arises for
serious examination and
consideration is whether the
appellant stamping on the chest
of the deceased as he lay on the
floor intended to cause the
death of the deceased. In my
opinion, it was the duty of the
trial judge to direct the jury
on the evidence, beginning with
the vomiting of blood by the
deceased to the day he died, a
period of ten days. The first
matter on which the jury was not
directed was that though there
was undisputed evidence that the
deceased started to vomit blood
after the attack on him, he was
denied any immediate medical
attention on the evening of the
assault. This was the case
because the prisoners had been
locked up for the night. The
summing up was noticeably silent
on this aspect of the case.
The evidence before the trial
court was that it was the
following morning, around 8.00
am that the deceased was sent to
the prison infirmary for medical
treatment. He was attended to by
the prison nurse. The treatment
consisted of phensic tablets. In
my opinion, since the
post-mortem report showed that
the deceased had sustained four
broken ribs, the trial judge was
under a duty to direct the jury
on the following matters: (1)
the effect (if any) of the delay
in giving the deceased medical
treatment (2) the nature and
type of treatment given him by
the prison nurse (3) whether or
not there was evidence of the
type of injury as disclosed to
the two doctors namely, the
prison doctor and the doctor at
the Sunyani Central Hospital (4)
the failure to call the prison
doctor and the doctor at the
Sunyani Central Hospital to
assist the court. I find that
the trial judge failed and or
omitted to direct the jury on
the matters to which I have
drawn attention. I have no doubt
that if the trial judge had
directed the jury on the
evidence or the lack of evidence
on these issues they may have
reached a different verdict.
In my opinion, it will be
helpful to refer to some of the
evidence to illustrate the view
I have expressed. There was
undisputed evidence that for a
period of five days after the
attack on the deceased by the
appellant, the deceased was not
shown to have received any
treatment apart from an
unspecified dosage of phensic
tablets. This was what PW4, the
prison nurse, told the court;
“On February 10, 1984 the
deceased came to the clinic
again with another prisoner. At
that time, the prison doctor by
name S P R Darku was on duty. He
examined Thomas Asika and asked
that he be admitted to the
prison infirmary. We admitted
the prisoner at the prison
infirmary.”
PW4 was not asked to assist the
court with evidence to show the
treatment which Dr Darku
prescribed for the deceased.
More importantly, PW4 never
testified that the deceased
complained of having suffered
four broken ribs or any injury.
He did not tell the court that
the deceased was treated for
four broken ribs or for any
particular injury while he was
an in-patient at the prison
infirmary. The failure of the
trial judge to direct the jury
on the above matters in my
opinion resulted in
misdirection.
Again, the evidence of PW4 was
that doctor Darku examined the
deceased and instructed that the
deceased be admitted as an
in-patient in the prison
infirmary. It is my opinion that
the prosecution should have
called Dr Darku as a witness to
assist the court with his
opinion on the condition of the
deceased when he saw and
examined him. The doctor would
also have told the court the
treatment he prescribed for the
deceased. The doctor would, no
doubt, have told the court if
the deceased had complained of
pains in the ribcage. The
prosecution gave no reason for
its failure to call Dr Darku
whose evidence would have
assisted the court. It is my
candid and well-considered
opinion that the evidence of Dr
Darku would show and prove the
nature of the injury caused to
the deceased and the possible
consequences of the harm caused.
His evidence would have assisted
the trial judge in his summing
up to the jury on the issue of
intent to cause death. I must
draw attention to the fact that
the trial judge failed or
omitted to direct the jury that
the deceased was kept in the
prison infirmary for a further
period of five days without
evidence to show what treatment
(if any) he received; that the
deceased had suffered four
broken ribs was discovered as a
result of the post mortem
examination carried out on the
dead body. The evidence, as it
was presented to the court,
showed quite clearly that during
this period of ten days the
treatment given to the deceased
was phensic tablets. The prison
nurse did not testify that the
deceased complained of four
broken ribs. There was no
evidence that the prison doctor
knew that the deceased has
suffered four broken ribs. If
the attention of the jury had
been drawn to these matters they
might have reached a different
verdict.
The point I have sought to make
may be put this way; namely,
would the jury feel satisfied
beyond doubt that the appellant
intended to cause the death of
the deceased by stamping on his
chest the way he did, if the
jury did not have the benefit of
the post-mortem report? It was
the post-mortem report which
showed that the deceased had
four of his ribs broken as a
result of the stamping on his
chest by the appellant. Again,
if the only treatment given the
deceased was phensic tablets, as
the evidence on record showed,
would death have been
inevitable? There is evidence to
show that the jury were in some
doubt as to the sufficiency of
the evidence on intent to cause
death. This is brought out
clearly by the following
question put to the doctor, PW1
by the jury: “How long would the
person have died from the time
the incident took place?”
My impression is that the jury
were in doubt about the nexus
between the nature of the harm
caused and the death that
followed some ten days after the
injury was caused. When it is
pointed out that for the period
of ten days that the deceased
was alive, there was no evidence
on record to show that the
prison nurse and the prison
doctor knew that the deceased
had suffered four broken ribs,
the worst fears of the jury
which provoked the question
repeated above became real. In
my opinion the answer given the
jury by the doctor should have
led them, if properly directed,
to reach the inescapable
conclusion that the appellant
did not and could not have
intended to cause the death of
the deceased. This was the
answer the doctor gave to the
jury in reply to their question:
“The incident would not have
taken place more than a week
because the blood in the cavity
of the chest was not clotted.”
The doctor made a guess. I say
so, because the undisputed
evidence was that the deceased
died on the tenth day after the
unfortunate attack on him.
Perhaps, in fairness to the
doctor, it must be stated that
he was not the doctor who
attended to the deceased when he
was brought to the Sunyani
Central Hospital. He was the
doctor who performed the
post-mortem examination on the
dead body, as the following
passage clearly showed. He was
asked the question:
“Q When the deceased was
brought to the hospital on or
around February 5 1984 were you
the one who attended to him.
A No.”
I must hasten to point out that
Asika was sent to the Sunyani
Hospital on 15 February 1984 and
not on 5 February 1984. The
post-mortem examination was
performed by PW1 on the 17
February 1984. The attack took
place on 4 February 1984. The
post-mortem examination
therefore took place 13 days
after the attack and certainly
not seven days as PW1 the doctor
stated. If the jury had been
properly directed on this
erroneous piece of evidence from
the doctor they would have
returned a different verdict,
because they were in some doubt
on the nexus between the harm
inflicted and the resultant
death. I have, elsewhere in this
judgment, observed that the
trial judge failed and or
omitted to properly direct the
jury on the burden on the
prosecution to lead evidence to
prove intent to cause death
beyond reasonable doubt. I have
sought to show that the totality
of the evidence placed before
the court was wholly
unsatisfactory to establish that
the appellant intended to cause
the death of the deceased. The
only evidence before the trial
court was that the appellant
stamped on the chest of the
deceased four times as he lay
helpless on the prison floor of
Cell No 4 Down. What was not
known to the prison nurse, to
the prison doctor and the doctor
at the Sunyani Central Hospital
was that “Asika had suffered
four broken ribs, perforation of
right liver and lungs.” For
these injuries, the only
treatment Asika received was
phensic tablets. He survived for
ten days. The doctor who
performed the post-mortem
examination was not asked and
therefore he did not tell the
trial court whether death was
inevitable from the nature and
type of harm caused to the
deceased. The trial court was
not told the effect of the
treatment which should or could
have been given to the deceased.
The above was evidence which
could and should assist a jury
to decide firmly and fairly that
the appellant did intend to
cause the death of the deceased.
The trial judge, with great
respect, misdirected the jury by
non-direction. In my opinion,
this has occasioned a
miscarriage of justice. The
verdict of guilty of murder is
not supported by the evidence on
record. The evidence, without
doubt, supported a verdict of
guilty of manslaughter. I would
therefore allow the appeal. I
would quash the conviction for
murder. I find the appellant
guilty of manslaughter and
convict him accordingly.
ADJABENG JA.
I agree.
FORSTER JA.
I also agree.
Appeal allowed, conviction for
manslaughter substituted.
Justin Amenuvor, Legal
Practitioner |
