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Criminal law and procedure –
Evidence - Inconsistent
statement – Effect of, –
Previous statement by appellant
to police inconsistent with his
testimony – Circumstances in
which jury may rely upon
testimony.
Criminal law and procedure -
Murder – Circumstantial evidence
– Quality and consistency of
evidence required to ground
conviction.
Criminal law and procedure –
Murder - Intention to kill –
Appellant firing at deceased –
Jurors justified in inferring
intention to kill.
The appellant was alleged to
have shot twice and killed his
wife. No one was present. The
prosecution relied on
circumstantial evidence to
implicate the appellant. In his
caution statement to the police,
the appellant claimed that the
gun went off accidentally in a
struggle and killed the
deceased. In his statement to
the committal magistrate
however, the appellant denied
ever touching the gun at all. In
his evidence-in-chief, he
testified that he did not know
how the gun went off. Witnesses
testified that they overhead the
deceased shouting that the
appellant was shooting her. He
was convicted of murder and he
appealed to the Court of Appeal,
contending that the trial court
failed to give adequate
consideration to his case.
Held:
(1) The law was well
settled that a person whose
evidence on oath was
contradictory of a previous
statement made by him, whether
sworn or unsworn, was not worthy
of credit and his evidence would
be of no probative value unless
he gave a reasonable explanation
for the contradiction. The
appellant offered no explanation
for the conflicts apparent in
his defence and the jurors were
perfectly justified in rejecting
the defence of accident put
forward. Gyabaah v Republic
[1984-86] 2 GLR 416,
Kuo-den alias Sobti v
Republic [1989-90] 2 GLR 203
SC.referred to.
(2) When a charge was
grounded on circumstantial
evidence, that evidence must not
only be consistent with guilt,
but must also be inconsistent or
incompatible with any other
rational conclusion. On the
facts the irresistible
conclusion was that the
appellant fired the gun.
Hodge’s case (1838) 168 ER
1136, Collins alias Derby v
Republic [1987-88] 2 GLR
521, R v Onufrejczk
[1955] 1 All ER 247, State v
Fiadzo [1961] 1 GLR 416,
Duah v Republic [1987-88] 1
GLR 343 referred to.
(3) Intent was always deducible
from facts and circumstances
surrounding every given case. On
the facts, the jurors were
justified in concluding that the
appellant intended to kill the
deceased when he fired the gun.
Lee v Taylor (1912) 77 JP
65, Gariba v State [1963]
2 GLR 54, Gershom Setram
v R (1953) 13
WACA 132 referred to.
Cases referred to:
Atiemo v COP
[1963] 1 GLR 117, SC.
Collins alias Derby v Republic,
[1987-88] 2 GLR 521, CA.
Duah v Republic
[1987-88] 1 GLR 343, CA.
Gariba v State
[1963] 2 GLR 54, SC.
Gershom Setram v R
(1953) 13 WACA 132.
Gyabaah
v Republic [1984-86] 2
GLR 416, CA.
Hodge’s case
(1838) 168 ER 1136.
Kuo-den alias Sobti v Republic
[1989-90] 2 GLR 203, SC.
Lee v Taylor
and Gill (1912) 77 JP 66,
23 Cox CC 220.
R v Onufrejczk
[1955] 1 All ER 274, [1955] 1
QB 388, [1955] 2 WLR 273, 99 SJ
97, 39 Cr App R 1, CCA.
State v Fiadzo
[1961] 1 GLR 416, SC.
APPEAL against conviction for
murder by the High Court.
G W Mensah
for the appellant.
Jemima Acquaye
for the respondent.
BROBBEY JA.
The appellant was charged with
murder, contrary to section 46
of the Criminal Code 1960 (Act
29). According to the
prosecution, the facts which
gave rise to the charge are that
on 2 July 1988, the appellant
twice shot and killed his wife,
Mary Akosua Asantewaah, in his
room at Berekum. The appellant
pleaded not guilty to the
charge. His defence was that the
gun fired accidentally and
killed the deceased. After a
trial by jury, he was convicted
of the offence of murder. It was
against that conviction and
sentence that he appealed to
this court. In arguing the
appeal, Mr Mensah who appeared
for the appellant contended that
the trial judge failed to give
adequate consideration to the
case of the appellant. That
submission is not borne out by
the evidence on record and the
summing up. Throughout the
period spanning the time of the
death of the deceased up to the
end of the trial, the appellant
put up only one defence which
was that of accidental killing.
In the summing up, the trial
judge gave much prominence to
that solitary defence. In spite
of the evidence from the
appellant and the directions
from the trial judge, the jury
found the appellant guilty of
murder. This meant that the
deceased did not die of
accidental gunfire.
The question to be resolved now
is whether the jurors were
justified in their conclusions
that the deceased did not die of
accidental gunfire but through
deliberate shooting. To resolve
this issue it is necessary to
examine the facts as laid before
the jurors. The appellant’s
story was that on the fateful
day, he had retired to bed with
his wife, the deceased. Quite
late in the night at about 11.30
pm he went to the bush to ease
himself. While he was in the
process, he sighted grasscutters
in the bush. He rushed to his
room, picked a gun and loaded it
with two cartridges, with the
view to returning to the bush to
hunt down the grasscutters. Just
before he could leave the room,
his wife woke up and tried to
prevent him from leaving to hunt
the animals. It was then that
the shooting occurred.
In the first place, how
reasonable is it for the
appellant to expect the jurors
to believe the story as narrated
by him? He said he was in the
processes of easing himself when
he suddenly stopped, on seeing
the grasscutters. Is it
reasonable to expect the jurors
to accept his story that at the
sight of grasscutters the urge
of a man easing himself will
dissipate so much so as to
enable him to abandon the
process in preference to
pursuing grasscutters? If his
story had been that he had
completed the process when he
saw the animals, that would have
been different. To assert that
on seeing the grass cutters in
the middle of the act, he
suddenly lost the desire to
continue the act and engaged in
the pursuit of the animals was
too strange a phenomenon for the
jurors to swallow. In any case,
what made the appellant believe
that the grasscutters would be
waiting for him? I think it
would be underrating, rather too
lowly the intelligence of the
jurors to expect them to believe
that throughout the length of
time that the appellant took to
stop easing himself, go to his
room, dress up, take a gun, load
it with two cartridges return to
the locus, the grasscutters
would obediently be there in
wait for him to be shot by him.
If they rejected the defence on
that score, the jurors were
certainly justifiable in so
doing.
The most important aspect of the
defence relates to the motions
or actions which resulted in the
death of the deceased. The
appellant had three occasions to
narrate what actually happened.
These were firstly when he gave
his caution statement after his
first arrest, secondly, during
the committal proceedings before
the district court, and thirdly
during his trial before the
jurors. On each of the three
occasions, he narrated an
entirely different story. When
he was charged by the police, he
gave a caution statement. That
statement was tendered without
objection as exhibit F. In that
statement, he described how the
deceased died:
“The deceased woke up and held
the gun and told me that she
would not allow me to go for the
hunting. I told her to leave the
gun, but she refused and a
struggle ensued over it. In the
process, the butt of the gun hit
the floor, fired suddenly; the
pellets hit her face and she
fell on the bed while still
holding the muzzle of the gun.
I, at this stage, attempted to
pull out the gun from her hand
and by so doing, I unfortunately
pressed the trigger and it fired
the second time. I did not know
whether the pellets hit the
deceased again.”
During the committal
proceedings, the accused
narrated to the committal
magistrate how the deceased died
thus:
“She held the muzzle and the
butt of the gun in an attempt to
prevent me from going. She
suddenly left the butt while
holding the muzzle. The butt hit
the ground and fired while she
was still holding the muzzle.
The pellets hit her face. She
fell on the bed while still
holding the muzzle. All this
time I was not holding the gun.
I cannot tell whether the second
shot hit her.”
In his viva voce evidence during
the trial, this is the account
he gave:
“The deceased did not like my
going out with the gun at that
hour so she held me by the
collar of my shirt. She then
left my shirt and held the gun
from behind by the butt and the
muzzle. She succeeded in getting
the gun, exhibit E, from me and
whilst she was holding it
intending to place same on the
bed it fired. I cannot tell how
it fired. I am aware that the
gun fired twice. When the first
gunshot occurred the deceased
screamed ‘brother hold for I am
dead.’ She was still holding the
muzzle of the gun and she fell
onto the bed. Then came another
fire from the gun a second
gunshot. After the first
gunshot, I observed that part of
the face had been severely
damaged.”
From the appellant’s own account
the gun was fired when the butt
hit the ground. If that were the
case the muzzle should have
pointed upwards towards the
ceiling in the room and the
pellets should have spread on
the ceiling or the upper part of
the walls in the room. Soon
after her death, a photographer
was invited to the scene and one
of the pictures he took was
tendered as exhibit B. Exhibit B
showed that pellets from the gun
hit the wall of the room at a
point close to the headboard of
the bed in that room. That
showed that the muzzle was
pointed quite low in the lower
part of the wall. The pellets in
the walls do not support the
theory that the gun went off
when the butt hit the ground
with the muzzle pointing towards
the ceiling, as counsel for the
appellant contended in this
court. The marks of the pellets
in exhibit B so close to the
head board and the lower part of
the wall are consistent with the
shot having been fired while the
muzzle was pointed towards the
head board and at the lower
portion of the wall. It is
impossible for the muzzle to
point upwards and yet the
pellets coming out of that
muzzle to congregate down the
wall as low as near the bed as
appearing in exhibit B. Short of
believing the story of the
appellant, the story put up by
him that the gun went off as the
butt hit the ground was not
reasonably probable. In his
testimony in court, the
appellant did not explain how
the second shot was fired.
However in his statement to the
police, exhibit F, he said it
was while he tried to pull the
gun from the dying Asantewaah
that he unfortunately pressed
the trigger and fired the second
shot. It is a strange
coincidence that of all parts of
the gun the trigger was the only
place he could touch. But one
thing which certainly comes out
of that statement is that he did
not touch the gun. In his
statement to the committal
magistrate, the appellant stated
that all the time that the shots
were fired he did not touch the
gun at all. This is a serious
material conflict in the defence
put forward by the appellant.
The law is now well settled that
a person whose evidence on oath
is contradictory of a previous
statement made by him whether
sworn or unsworn, is not worthy
of credit and his evidence
cannot be regarded as being of
any probative value in the light
of his previous contradictory
statement unless he is able to
give a reasonable explanation
for the contradiction. This was
the view taken by this court in
Gyabaah v Republic
[1984-86] 2 GLR 461 in
which a witness admitted that
his prior statement to the
police was inconsistent with his
evidence in court without
offering any explanation for the
contradiction. It was held that
the trial judge in that case
should have directed the jury to
reject the evidence of that
witness because of the
contradictions. The conflicts
apparent in the defence of the
appellant raise issues similar
to conflicts found in the case
of Kuo-den alias Sobti v
Republic [1989-90] 2 GLR
203, SC. .In that case, A
and B were accused of the murder
of N. When they were arrested
and appeared before their
village chief, they denied the
charge but alleged that they
chased N and he escaped with his
cattle. On appearing before the
police, they denied the charge
and added that it was a third
suspect, C, who killed N with a
knife. When C was arrested eight
months after the killing, he
alleged that it was rather A who
killed N by throwing a stone at
N’s forehead. At the committal
proceedings before the trial
magistrate, they all denied any
knowledge of N’s death, adding
that they were forced to sign a
statement written by the police.
During the trial, all the three
appellants, for the first time,
alleged that it was rather S who
killed N. They were convicted of
the murder of N. On appeal to
the Supreme Court, it was held
that:
“The appellate court must assume
that a reasonable jury hearing
the evidence could if properly
directed have failed to convict.
In the instant case, the
wavering behaviour of the
appellants, the inconsistent
accounts they gave of what
happened on the fateful day to
the police, their village chief,
the committing Magistrate and at
the trial completely justified
the jury to return the verdict
of guilty.”
In the instant case, the
appellant offered no explanation
for the conflicts apparent in
his defence. Applying the
principles enunciated in these
two cases to the facts and the
unexplained conflicts in the
defence, I am of the opinion
that the jurors were perfectly
justified in rejecting the
defence of accident put forward
by the appellant. At the end of
the trial, the prosecution
succeeded in establishing that
Asantewaah had died and further
that she died of gunshot wounds.
These were not disputed by the
appellant. What was not so
certain was whether or not the
gun was fired by the appellant
or that it went off twice
accidentally, killing the woman,
secondly whether the killing was
intentional, if indeed it was
the accused who fired the shots.
Again, the conclusion of the
jurors meant that they preferred
the version of the prosecution
to that of the appellant as to
what really happened on that
fateful day. Although the
appellant who was in the room at
the material time said the gun
went of accidentally, PW2 and
PW6 testified on oath that they
overhead the deceased shouting
“James is killing me” and “James
is shooting me.” If the evidence
of PW2 may be discounted on
grounds of self-interest, as she
is the wife of PW3 who was
convicted for giving the
appellant the unlicensed gun
used in the killing, the
evidence of PW6 cannot be so
faulted. He was, by all
indications, an independent and
disinterested witness who had
nothing to lose or gain by the
testimony he gave. The jury must
have found his evidence
credible. As it turned out, his
evidence was so devastating to
the defence that one did not
expect the defence to have taken
without question at least the
statements he claimed to have
heard from the late Asantewaah.
Surprisingly, however, that was
precisely what happened. The
witness was not cross-examined
or challenged at all on his
testimony except one question
relating to the time between the
first and second shots, which he
gave as about twenty seconds.
The statement that “James is
shooting me” which was heard
from the late Asantewaah
indicates the mood or state of
mind of a person who was in
apprehension of imminent death
possibly from gun shot. Shouts
that a person is about to be
killed or shouts which the
witnesses said they heard from
Asantewaah would only be made by
a person who either had a gun
pointed at her from a distance
or had a gun touching her body
by the muzzle with positive
indication that whoever was
holding or was in control of the
gun had placed himself in
readiness to press the trigger
or to fire the gun. This is what
I make of the unchallenged
statements from Asantewaah to
the effect that “James is
killing me” and “James is
shooting me.” All the witnesses
said they understood “James” as
referring to the appellant.
Counsel for the appellant
criticised the two witnesses on
the ground that they both did
not give the same rendition of
what they allegedly heard from
the late Asantewaah. That
criticism is without merit. They
heard the shouts in the Twi
language and from different
positions. PW2 testified in Twi,
which was translated into
English by the trial judge. PW6
testified in English and that
meant he too translated what he
heard into his own brand of
English, which the trial judge
recorded. Since the two
witnesses were not reproducing
tape records, their translations
could not be expected to be the
same in terms of wording and
sentence construction. In fact,
since the translations were from
different sources, it would have
been odd if they had been the
same verbatim et literatim. The
most significant point is that
the two witnesses heard shouts
of ‘shooting’ and ‘killing’ and
those ideas were amply conveyed
in their testimonies in court.
That the two did not use the
same grammar, construction or
syntax is irrelevant. If
Asantewaah was put in a state of
imminent death with a gun
pointed at or pressed to her,
and that caused her to shout or
scream in those words, the same
Asantewaah cannot be holding the
gun pointed to her face, the
ceiling or near the head board
to the bed in the room, let
alone dropping the butt of the
gun to the floor to cause it to
fire. In other words, the theory
of accidental shooting brought
about by the butt hitting the
ground is totally negatived by
the state in which Asantewaah
was, as depicted by her
statements ‘James is killing me’
and ‘James is shooting me’.
As stated already, the
prosecution and the defence put
forward diametrically opposed
versions as to how Asantewaah
died. While the prosecution
maintained that it was the
appellant who aimed and fired at
her, the defence insisted that
she was killed when the gun
accidentally fired into her.
Besides the appellant and the
deceased, no one else was
present when the incident
occurred. There was no other
eyewitness to the incident. The
prosecution relied on
circumstantial evidence to
establish that it was the
appellant who killed the
deceased.
In this country, the law on
circumstantial evidence is well
settled in several decided
cases. Basically, when a charge
is grounded on circumstantial
evidence, that evidence must not
only be consistent with guilt,
but must also be inconsistent or
incompatible with any other
rather rational conclusion: See
Hodge’s case (1838) 168 ER
1136. This principle has been
re-stated variously in different
cases. But in general all the
renditions connote the same
concept as stated Hodge’s
case. In Collins alias Derby
v Republic [1987-88] 2 GLR
521 this court held, relying on
the popular English case of R
v Onufrejczk [1955] 1 All ER
247 that when
circumstantial evidence is
relied upon to convict a
prisoner, the degree of proof
required is that the prisoner’s
guilt should be established by
circumstances that consistently
and overwhelmingly imputed guilt
and excluded any other rational
conclusion. Indeed in the
earlier case of State v
Fiadzo [1961] GLR 416, the
Supreme Court held that:
“a presumption from
circumstantial evidence should
be drawn against an accused
person only when the presumption
follows irresistibly from the
circumstances proved in
evidence; and in order to
justify the inference of guilt,
the inculpatory facts must be
incompatible with the innocence
of the accused and incapable of
explanation upon any reasonable
hypothesis than that of guilt.”
From the above analysis of the
shouts heard from Asantewaah
which were narrated by PW2 and
PW6, the only possible
explanation one can give to the
condition in which the deceased
was must be that the gun was
either pointed at her or pressed
to her body. Unless that was the
case, I could see no other
reason why Asantewaah had to
shout several times “James is
shooting me.” The fact that she
attributed whatever was
happening to her to the
appellant by the repeated
mention of his name in the
shouts demonstrates that it was
the appellant and no one else
who had held the gun in the
position which put her in fear
of imminent death from gun fire.
The facts of this case are quite
similar to those in the case of
Duah v Republic [1987-88]
1 GLR 343. In that case a
medical officer was stabbed to
death at the doctor’s flats in
Korle-Bu Hospital. Medical
evidence established at the
trial that the stab wound was
caused by a long sharp
instrument with a high violent
external force. The only person
with her in the room where she
was stabbed was the appellant.
He denied stabbing her. His
defence was that the deceased
stabbed herself consequent upon
a suicide pact he had made with
her. After a trial by jury, he
was convicted of murder. He
appealed to this court on
grounds mainly complaining of
circumstantial evidence. In the
judgment of the appellate court:
“Circumstantial evidence had to
be closely examined and acted
upon only when the circumstances
were such that the guilt of the
accused had of necessity to be
inferred and that the fact led
to no other conclusion. In the
instant case, since the wound
was consistent or compatible
with homicidal interference and
the appellant was the only
person with the deceased at the
crucial moment, then the only
reasonable irresistible
inference or conclusion which
could be drawn from the
surrounding circumstances was
that high violent external force
on the knife was administered by
the appellant and no other
person.”
This case is cited to illustrate
the proposition that a prisoner
can be held to have committed
acts constituting an offence,
notwithstanding the absence of
an eye witness to those acts,
beside the prisoner who denied
them, provided circumstantial
evidence is established which
leads to no other rational
conclusion than that he was the
only person who could have
committed those acts. In the
instant case, the circumstances
surrounding the death of
Asantewaah as described by PW2,
PW6 and the appellant himself
led to the irresistible
conclusion that it was the
appellant who fired the gun.
The charge proferred against the
appellant being that of murder,
the prosecution had to establish
that even if it was the
appellant who fired the gun, he
fired it with the intention to
kill the late Asantewaah. The
trial judge more than adequately
directed the jurors on the issue
of intent and related the law to
the facts of the case. The most
significant point in this case
is that the prosecution
established beyond dispute the
fact that Asantewaah screamed
out those expressions recounted
by PW2 and PW6. I have already
explained that the screams
symbolised a woman in distress
of being about to be killed or
shot with a gun pointed at her.
I have also explained that it
was the accused and no one else
who pointed the gun at her.
The law is well established now
that intent is always deducible
from facts and circumstances
surrounding every given case.
See the well known decision of
Channel J in Lee v Taylor
(1912) 77 JP 66 at p 69 which
was applied in Gariba v State
[1963] 2 GLR 54 at
p 56 and also Gershom
Setram v R (1953) 13
WACA 132.
For two reasons which are
deducible from the facts of the
case, the jurors were justified
in concluding that the appellant
intended to kill the deceased
when he fired the gun. Firstly,
a gun is a lethal instrument
which if fired at a person when
loaded will most probably bring
about the death of the person.
The appellant knew it was loaded
because it was he who loaded it.
When he aimed and fired it, he
must be deemed to have known for
certain that the inevitable
consequence of firing the gun at
Asantewaah was to bring about
her death. Secondly, the
appellant must have been
reminded by those shouts that if
he fired he would either shoot
or kill the late Asantewaah. PW6
who was in the next house said
he heard the shouts and the
defence did not challenge him on
this. The appellant who was in
the same room with Asantewaah
could not have failed to hear
it, as there was no evidence
that his hearing was in anyway
impaired. When in spite of
these, he fired the gun, the
jurors were justified in
concluding that he fired it with
the intention to bring about the
death of Asantewaah. There is
more than ample evidence on
record which justifies the
conclusions which the jurors
arrived at on all the issues
raised and ingredients of the
offence charged. Nothing has
been said to warrant interfering
with the conviction and sentence
of murder imposed in the High
Court and this court cannot
properly interfere with them.
See Atiemo v COP [1963]
1GLR 117 SC. I find no merit in
the appeal and I dismiss it.
AMUAH JA.
I agree.
FORSTER JA.
I also agree.
Appeal dismissed.
Justin Amenuvor, Legal
Practitioner |
