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Criminal law –
Murder - Self-defence -
Verdict of jury – Misdirection -
Bias - Death by hanging
– Burden of proof - Mens rea -
Whether or not the court of
appeal erred when it affirmed
the conviction and sentence of
the trial high court - Whether
or not the trial Judge
misdirected himself in his
summing up to the Jury - Whether
or not there was a fight before
the deceased died Section 47,
52, 70 and 277 of the Criminal
Procedure Act, 1960 (Act 30) -
section 11(2) of the Evidence
Act, 1975 (NRCD 323) -
section 31 of the Courts Act,
1993 (Act 459),
HEADNOTES
An eighteen-year-old JSS school
girl, was the victim of the
crime. The
appellant lived with the
deceased in the same vicinity
The parents of the deceased had
warned him about his amorous
association with the deceased.
On 4th March 1995,
after the deceased and her
father had returned from buying
food and her father had gone
into his room, the appellant and
the deceased engaged in a
quarrel which resulted in him
stabbing her. When the
deceased’s father, who was just
next door rushed to the aid of
his daughter following shouts
from her, the appellant also
stabbed him in the neck. The
struggle and accompanying shouts
attracted a crowd in the area.
Some men grabbed the appellant
and took him to the police
station. The girl could not make
it as she died almost instantly.
In the case of the father, he
ended up in hospital with his
wounds. From the perspective of
the appellant, the death and
attack came out of
self-defense,
The jury was not swayed by the
explanation of the appellant It
returned a verdict of guilty of
murder. Dissatisfied with the
verdict, the appellant appealed
to the Court of appeal seeking
to quash the conviction, the
Court of Appeal dismissed the
appeal,
HELD
We
conclude that the Court of
Appeal properly reviewed the
summing-up of the trial judge
and came to the right decision
that the appeal has no merit.
Applying
the provisions of section 31 of
the Courts Act, 1993 (Act 459),
that misdirection by trial judge
by itself will not necessarily
lead to the quashing of the
conviction unless the
misdirection occasioned a grave
miscarriage of justice.
We
cannot fault the Court of Appeal
for coming to that conclusion.
The appeal is dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Criminal
Procedure Act, 1960 (Act 30).
Evidence Act,
1975 (NRCD 323)
Courts Act, 1993 (Act 459),
CASES
REFERRED TO IN JUDGMENT
R v Afenuvor
[1961] 2 GLR 655,
R v Spencer
(1995) Crim LR 23
State v Amuah
(1961) GLR 195, SC
Awedam v The
Republic [1982-83] GLR 902
Yirenkyi v The State [1963]1 GLR
66
Ketsiawah v The State [1965] GLR
493,
Barkah v The State [1966] GLR
590
Beniako and Another v The
Republic [1995-96] 1 GLR 32
Opuni v The State [1965] GLR 82
Sabbah v The Republic, [2009]
SCGLR 728
Nogode v The Republic, 975
[2011] SCGLR
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
N. A.
AMEGATCHER
COUNSEL
KWAME OBOUR
FOR THE APPELLANT.
FRANCES
MULLEN-ANSAH, CHIEF STATE
ATTORNEY FOR THE RESPONDENT.
THE UNANIMOUS
JUDGMENT OF THE COURT IS READ BY
AMEGATCHER JSC, AS FOLLOWS-:
N. A.
AMEGATCHER JSC
The appellant was convicted of
murder
by the High Court, Koforidua,
after a murder
verdict
of the jury. Following the
conviction, he was
sentenced to
death by
hanging.
An
eighteen-year-old JSS school
girl, Christiana Apafo was the
victim of the crime. The
appellant lived with the
deceased in the same vicinity in
Volivo, in the Eastern Region.
The parents of the deceased had
warned him about his amorous
association with the deceased.
On 4th March 1995,
after the deceased and her
father had returned from buying
food and her father had gone
into his room, the appellant and
the deceased engaged in a
quarrel which resulted in him
stabbing her. When the
deceased’s father, who was just
next door rushed to the aid of
his daughter following shouts
from her, the appellant also
stabbed him in the neck. The
struggle and accompanying shouts
attracted a crowd in the area.
Some men grabbed the appellant
and took him to the police
station. Christiana Apafo could
not make it as she died almost
instantly. In the case of the
father, he ended up in hospital
with his wounds.
From the
perspective of the appellant,
the death and attack came out of
self-defense.
The appellant claimed that the
deceased had been pledged to be
married to him but that because
she was still in school, her
father had told him to stay away
from her until she was older.
According to his testimony, at
the time of the murder, the
deceased had been pulling and
biting on his penis while the
father held him at his neck;
he claims
that he grabbed the bottle and
stabbed them both out of self-defense.
The jury was
not swayed by the explanation of
the appellant
after
receiving the summing up
direction from the trial judge.
It
returned a verdict of guilty of
murder.
Dissatisfied with the verdict,
the appellant appealed to the
Court of appeal on 3rd
February 2014 seeking to quash
the conviction on four main
grounds of appeal: that the
trial judge misdirected himself
in his summing up to the jury;
that the trial judge misdirected
the jury in his summing up; that
the verdict of the jury is
unreasonable in light of the
evidence before it; and that the
trial judge erred when he failed
to consider the defence of the
appellant adequately.
On 28th
October 2015,
the Court
of Appeal dismissed the appeal,
stating emphatically that not
every misdirection or
non-direction will persuade an
appellate court to allow an
appeal, unless it was such as to
render the judgment unreasonable
or unsupported by evidence on
record or based on a wrong
decision or occasioning a
miscarriage of justice. The
Court of Appeal held that the
trial judge properly directed
the jury on all material
aspects, including the defences
of self-defence and provocation;
and stated further that if it
were, as an appellate court, to
assume the position of a
reasonable jury hearing the
evidence, it would convict the
appellant of murder.
The appellant
has lodged the instant appeal to
this court on the following
grounds:
1.
The court of appeal erred when
it affirmed the conviction and
sentence of the trial high court.
2.
The court of appeal erred when
it held that the irregularities
at the trial court was not
fatal.
3.
Additional grounds may be filed
upon receipt of a certified true
copy of the judgment.
The jury
instruction was the main point
of contention by the appellant.
Even though the appellant in his
statement of case has stated
that he was arguing grounds one
and two together, appellant
abandoned ground two and limited
himself to ground one which he
argued under four sub-headings.
The first is
that “The
Trial Judge misdirected himself
in his summing up to the Jury.”
The submission on behalf of the
appellant argues that the trial
judge failed to properly sum up
to the jury according to
Section
277 of the Criminal Procedure
Act, 1960 (Act 30). Its
failure amounted to failing to
break down the law as regards
the
burden of proof. The
appellant states that according
to R v
Afenuvor [1961] 2 GLR 655,
the jury should not be
merely satisfied but must either
be satisfied beyond a reasonable
doubt or be so completely and
entirely satisfied as to be
quite sure of the guilt of the
accused. The appellant argues
that the judge failed to
instruct as so.
Additionally,
the appellant argues that the
judge went against
R v
Spencer (1995) Crim LR 23
by suggesting in his opinion
that the accused was guilty of
murder when he stated “the
evidence is so overwhelming that
no reasonable person can
entertain any doubt about it.”
The Appellant points out that it
is the duty of the trial judge
to direct the jury on points of
law and to evaluate the evidence
of the prosecution in a fair
manner to the jury.
We have
reviewed the summing-up of the
learned trial judge. At pages
70-71 the judge quoting
section
11(2) of the Evidence Act, 1975
(NRCD 323) directed the jury
as follows:
“…requires
the prosecution to produce
sufficient evidence so that on
all the evidence a reasonable
mind could find the existence of
the fact beyond all reasonable
doubt. This is what is referred
to in popular parlance as proof
beyond all reasonable doubt.
There are therefore five
ingredients the prosecution must
prove to you beyond all
reasonable [doubt] before you
can return a verdict of murder
against the accused.”
And at page
76 the judge went further in his
direction as follows:
“…you must
bear in mind that the accused
person has no duty to prove his
innocence or to prove his case
beyond all reasonable doubt. He
only has a duty to lead evidence
that is reasonably probable. So
the question to ask yourself is
whether what the accused told
you is reasonably probable…..If
you are in any doubt about those
scars, then I direct you to
resolve your doubts in favour of
the accused.”
The trial
judge went ahead to direct the
jury on the defences available
to the appellant i.e.,
self-defence and provocation.
The judge also at page 68 of the
record made it clear to the jury
that the law allows him to
express his own views on pieces
of evidence, but the jury is not
bound to accept or agree with
any such view or opinion. In
effect the jury may ignore the
judge’s opinion and form their
own since they are the judges of
fact while he is the judge of
law.
In our view,
the requirements of section 277
of the Criminal Procedure Act,
1960 (Act 30) is for the judge
to carefully direct the jury in
simple language on the law and
evidence relevant to the matters
place before him at the trial.
One clear example is the law on
the burden of proof which rests
on the prosecution to prove its
case against the accused beyond
all reasonable doubt. This
burden never shifts unto the
accused person who may even
choose to remain silent or raise
reasonable doubts in the
prosecution’s case. It must be
noted that there are no
templates showing the form in
which the direction should be
made to the jury. What is
important is the substance of
the summing-up based on the
peculiarity of the evidence led
in the particular case. In sum,
the summing-up must be looked at
as a whole and not in piecemeal.
From the detailed analysis of
the summing-up as more
particularly reproduced above,
it is our opinion that the
learned trial judge complied
with the requirements of section
277 of Act 30. The jury was
instructed with the following
laws: sections
47, 52,
and 70 of the Criminal Code,
1960 (Act 29), section 11(2) of
the Evidence Decree, 1975 (NRCD
323), and section 37 of Act 29
(the law on self-defense).
The judge
also instructed the following:
“There are five ingredients
the prosecution must prove to
you beyond all reasonable before
you can return a verdict of
murder against the accused
person. These five ingredients
are; i) that Christina Akpafo is
dead, ii) that she died as a
result of an unlawful hard, iii)
that the harm was caused
intentionally, iv) that the harm
was caused by the accused person
herein, Richard Kwabla
Dzangmatey, and no other person
and v) that the deceased died
from the injuries she sustained.”
(sic)
With this
plethora of evidence available
on the record, we have no
hesitation in agreeing with the
analysis made and conclusion
reached by the Court of Appeal.
The trial judge applied
correctly the law on the burden
of proof to the jury.
The next
submission canvassed against the
learned trial judge is that “The
Trial Judge misdirected the Jury
in his summing up.” The
appellant cites the
State
v Amuah (1961) GLR 195, SC
stating, “it is of the
greatest importance that the
jury should be directed in an
impartial way on the facts, and
not in such a way as to indicate
what they should find.” The
appellant points out that the
trial judge, in his summing-up
notes, stated, “Ladies and
gentlemen (of the jury), at the
end of the evidence in this case
almost all the ingredients in
the charge of murder have been
proved…. The evidence is so
overwhelming that no reasonable
person can entertain any doubt
about it.” The appellant argues
that this direction went
directly against the call to be
neutral and impartial on the
facts.
Allegation of bias or partiality
on the part of a trial judge
must be supported by evidence.
Mere vituperation or suspicion
was not enough. In this case
there is no foundation
whatsoever in the allegation of
partiality on the part of the
trial judge.
Looking at
the summing-up as a whole, the
learned trial judge directed the
jury to those matters in the
evidence which were not in
dispute, i.e., that Christiana
Apafo is dead; that she died
through harm and that the harm
was caused by the appellant. It
is to these matters that the
trial judge drew the jury’s
attention stating that the
evidence was “overwhelming
that no reasonable person can
entertain any doubt about it”.
However, when it came to
establishing the
mens rea
of the accused, the parties
were divergent regarding
whether
there was a fight before the
deceased died, who started
the fight, and the circumstances
leading to the stabbing of the
deceased. It is the evidence
establishing the mens rea which
the trial judge directed the
jury on, to form their own
opinion who to believe. This is
how the trial judge put it at
page 75:
“But there
are two conflicting accounts
about who started the fight. PW
2, David Apafo, the victim’s
father stated that it was the
accused who first attacked his
daughter and stabbed her, so he
went to her aid and got stabbed
himself by the accused. It is
for you to decide whether you
believe him. It is the case of
the accused that he inflicted
the wounds on the deceased inn
self-defence when PW 2 attacked
him with a knife…. Self defence
is a total defence in the sense
that the accused admits killing
the deceased but says that he
did so in order to save his own
life…… It is your duty to decide
whether the accused is telling
the truth…
(sic)
This
direction asking the jury to
form its own opinion who to
believe before coming to a
conclusion that that ingredient
in the crime of murder had been
established did not in any way
prejudice the case of the
appellant. It did not by any
stretch of imagination portray
bias
on the part of the trial judge
in favour of the prosecution and
against the accused. It is
important in cases of this
nature for the appellant to read
the summing-up as a whole and
demonstrate to the appellate
court where the trial judge
misdirected the jury by
non-direction. Where, as
observed by Mensa Boison J.A in
the case of
Awedam
v The Republic [1982-83] GLR 902
at 912 the appellant “pick
up solitary phrases or clauses
or sentences” in a summing-up as
the basis for his attack, the
true meaning put up or intended
to be put to the jury by the
trial judge will be distorted.
In
our view the learned judge did
not shift the burden of proof on
to the defence.
Our duty as
an appellate court in such
appeals is not to put ourselves
in the position of the jury or
have the case re-tried. Our duty
is to review the record and
satisfy ourselves whether
firstly the jury was directed
properly on the law and secondly
whether the evidence supported
the conviction. In the Supreme
Court’s case of
Yirenkyi v The State [1963]1 GLR
66
at
77,
Akufo-Addo JSC (as he then was)
in addressing a similar attack
on the trial judge in a
summing-up expounded the legal
position as follows
“To
borrow the words of Lord Goddard
C.J. in R. v. Whybrow, we do not
for a moment seek to put
ourselves into the position of a
jury. We take the verdict of the
jury, which is one of guilty,
and which means that the jury
were satisfied that the
appellant did do a criminal
act. We then have to see how
far the case is affected by the
wrong direction given by the
trial judge, and in doing so we
take the whole of the facts into
account and regard the whole of
the circumstances.”
In
Ketsiawah v The State [1965] GLR
493, the
appellant was convicted of the
murder of his former wife. On
the day of the crime, the two of
them had left their village
together to go to a farm. A
search party later discovered
the dead body of the deceased in
the bush covered with palm
leaves. Later the accused was
arrested and he made a statement
to the police that on the day of
the crime he had drunk a bottle
of akpeteshie, unknown to his
former wife. He further stated
that he appealed to his former
wife for reconciliation, but
that his former wife replied
with abuses. Stung by these
abuses and being totally drunk,
he cut her with a cutlass he was
holding. At the trial the
closing sentence of the judge's
summing-up notes said: "If you
believe that accused was so
drunk that he did not know what
he was doing or that he was
highly provoked then say he is
guilty of manslaughter. If you
are not sure, or if you think
his explanation might reasonably
be true, then return a verdict
of guilty of manslaughter." On
appeal against that direction to
the jury, Ollennu JSC held at
page 488 that the trial judge's
direction to the jury that if
they believed the accused was so
drunk that he did not know what
he was doing then they should
return a verdict of guilty of
manslaughter was a misdirection
since it did not explain to the
jury that if they formed the
opinion that the accused did not
know what he was doing, then, in
law, he was insane and they
should return the special
verdict of guilty but insane, as
provided in section 28(3) of the
Criminal Code, 1960. But
according to Ollennu JSC, this
misdirection had not occasioned
a miscarriage of justice since,
by returning the verdict of
guilty of murder, the jury
showed that they did not believe
that the accused was intoxicated
to the extent that he did not
know the nature of his act.”
Another case on this issue is
Barkah
v The State [1966] GLR 590.
The appellant was charged
with murder. The evidence of the
prosecution was that there was a
quarrel between the appellant
and his half-brother Amadu
Wangara, over a loan for which
one Laba stood surety. The
lender demanded repayment of the
loan from Laba but the appellant
advised him not to pay it as he
was not directly liable for
repayment. Thereupon Amadu
Wangara accused the appellant of
insolvency. This insult
infuriated the appellant who
felt that he had been disgraced
before his friends. He attacked
Amadu Wangara and the deceased
with a cutlass and the deceased
died later as a result of the
injuries sustained. The trial
judge directed the jury, inter
alia, as follows: "If, however,
you are not so satisfied, but
feel that because of some sure
and reasonable doubts, the guilt
of the defendant cannot be said
to have been proved with
certainty, then you must find
the defendant not guilty." He
was convicted and, on appeal,
his counsel submitted that the
summing-up by the trial judge
shifted the burden of proof on
to the defence and that the use
of the phrase "some sure and
reasonable doubts" by the trial
judge confused the minds of the
jury. Mills-Odoi JSC held at
page 596 that:
“there is no set formula for
explaining to the jury that the
burden of proof lies on the
prosecution.
In
our view, the phrase "some sure
and reasonable doubts" used by
the trial judge was an
unfortunate expression, but in
this particular context, it did
not give a wrong impression to
the jury;
At
page 597 Mills-Odoi JSC
concluded:
“This
court does not sit to consider
whether this or that phrase was
the best that might have been
chosen, or whether a direction
which has been attacked might
have been fuller or more
conveniently expressed. This
court sits here to administer
justice and to deal with valid
objections to matters which may
have led to a miscarriage of
justice and a substantial one.
Learned counsel failed to show
that the summing-up or any
portion thereof had occasioned a
miscarriage of justice;
therefore, this ground also
fails.”
In
our opinion, the Court of Appeal
was right in its conclusion.
For a conviction to be quashed
on appeal on grounds of
misdirection, it must occasion a
substantial miscarriage of
justice. Since no miscarriage of
justice has been established in
the summing-up of the trial
judge the verdict of the jury
and conviction of the appellant
for murder is supported by the
evidence adduced in this case.
We, therefore reject the
invitation by the appellant to
quash the conviction on the
basis that the trial judge
misdirected the jury in the
summing-up.
Another issue
raised under this ground by the
appellant is that “The verdict
of the jury is unreasonable in
light of the evidence before
it.” According to the appellant,
one of the most crucial issues
in the case was whether or not
the accused/appellant acted in
self-defense or under
provocation when he stabbed the
deceased. The Appellant argues
that the accused/appellant did
not have the intention to cause
death but to free himself. At
worst, the appellant argues, the
accused should have been
convicted of manslaughter had it
not been for the misdirection
from the trial judge.
We have
already concluded that in this
case, the jury who were in court
and heard the evidence were not
convinced that the appellant
acted out of self defense after
being properly directed by the
judge to discharge the appellant
if they believed him. It is not
the duty of the appellate court
to disturb the verdict of the
jury and substitute it with a
lesser offence if the evidence
was conclusive that the crime
was committed. In the Court of
Appeal case of
Beniako and Another v The
Republic [1995-96] 1 GLR 32
at 44
Forster JA delivering the
unanimous judgment of the court
on a similar invitation
dismissed the request and stated
that the jury as triers of fact,
determine the credibility of
witnesses, evaluate all evidence
adduced in the court and
ultimately decide the guilt or
innocence of the accused. Unless
there had been some serious
misdirection by the trial
judge or the evidence was
incapable of sustaining the
verdict of the jury, an
appellate tribunal was bound to
recognise and defer to the
verdict. Forster concluded that
since, in the instant case,
there was overwhelming evidence
in support of the verdict of the
jury, no misdirection by the
judge had been found on the
record, and it was impossible to
say that on the evidence before
them the verdict was one at
which the jury might not
properly have arrived, the court
would affirm the conviction and
sentence of both appellants by
the High Court.
We adopt the reasoning and the
conclusion of Forster JA in this
appeal and decline the
invitation to substitute a
lesser punishment for the
verdict of the jury.
The final argument urged on us
under this ground is that “the
Trial Judge erred when he failed
to consider the defense of the
Appellant adequately.
The Appellant
argues that the learned trial
judge neither assessed the
defense of the accused/appellant
adequately nor explained same to
the jury adequately. The
appellant believes that had the
trial judge adequately
considered the defense of the
accused/appellant and explained
the same to the jury, then the
accused/appellant would have
been, at worst, convicted of
manslaughter and not murder.
We have
demonstrated in this opinion
that the trial judge put forth
the case of the appellant
especially on self-defense and
invited the jury to discharge
the accused if they believed he
spoke the truth. In our opinion,
the defense of the appellant was
adequately explained to the jury
by the trial judge and in doing
so he was not obliged to
reproduce every part of the
defense which was already on
record and available to the
jury.
In
Opuni
v The State [1965] GLR 82,
Acolatse JSC held that it is no
misdirection not to tell the
jury what is already available
to them on record. “The jury
who were the sole judges of fact
heard this evidence which was
given in plain language, and
which was not fraught with any
technicalities. They heard the
whole evidence of this expert
witness and the failure on the
part of the learned trial judge
to tell them something which is
already on record is, in our
view, not fatal to conviction.
It is no misdirection not to
tell the jury everything which
might have been told them, if
the material is already on
record.”
Further in
Barkah v The State (supra)
Mills-Odoi JSC at page 598
stated that,
“In
our opinion omission in a
summing-up to tell the jury in
terms what the defence is does
not amount to mis-direction if
the issues in the case are in
substance put to them.
Sometimes, no doubt,
non-direction may amount to
mis-direction; but in our
judgment the omission by the
trial judge, in the instant
case, to call the attention of
the jury to particular matters
which are already given in
evidence did not amount to
mis-direction. In all the
circumstances, we were satisfied
that the jury were properly
directed by the learned trial
judge and there was evidence on
which they could act. The court
cannot therefore substitute
itself for a jury to re-try the
case.”
We
conclude that the Court of
Appeal properly reviewed the
summing-up of the trial judge
and came to the right decision
that the appeal has no merit.
Applying
the provisions of section 31 of
the Courts Act, 1993 (Act 459),
we endorse the previous
decisions of this court in
Sabbah v The Republic, [2009]
SCGLR 728 and Nogode v
The Republic, 975 [2011] SCGLR
that misdirection by trial
judge by itself will not
necessarily lead to the quashing
of the conviction unless the
misdirection occasioned a grave
miscarriage of justice.
We
cannot fault the Court of Appeal
for coming to that conclusion.
The appeal is dismissed.
SGD
N. A.
AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
SGD
V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
SGD
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
SGD
S. K. MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
SGD
A.M. A. DORDZIE
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
KWAME OBOUR
FOR THE APPELLANT.
FRANCES
MULLEN-ANSAH, CHIEF STATE
ATTORNEY FOR THE RESPONDENT
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