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KOFI ESSEL v. THE STATE


  • appeal
  • 1962-05-25
  • SUPREME COURT
  • 1 GLR 397-401
  • Print

VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.


Summary

Criminal law?-Manslaughter?-Whether evidence sufficiently established reckless disregard of human life?-Whether jury adequately directed.

Headnotes

At the trial of the appellant for manslaughter, four persons gave evidence to the effect that the appellant whilst driving a five ton Bedford truck at excessive speed, did not slow down at a "T" junction where people were standing but maintained the same speed and attempted to overtake the vehicle in front. A collision occurred which caused the death of one Gakpetor.The appellant's explanation was that the driver in front signalled that he was going to slow down and then swerved to the left and did in fact slow down, "so I speeded on to overtake him, and immediately I came abreast with his front wheel, the driver of the truck then stretched out his hand indicating that he was turning right."On appeal against conviction the issues for determination were (1) whether the record discloses sufficient evidence to support the conviction and (2) whether the jury were adequately and properly directed on the law applicable to the facts of the case.

Judgement

APPEAL against a conviction dated the 5th May, 1961, of the appellant by Acolatse, J. sitting with a jury at the criminal session of the High Court in Accra, on the charge of manslaughter, contrary to section 51 of the Criminal Code, 1960 (Act 29).

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

Adumua-Bossman J.S.C delivered the judgment of the court. The appellant was convicted on a charge of manslaughter, the particulars of the offence being that he, on the 22nd February, 1960, at Weija on junction the Accra-Winneba road, unlawfully caused the death of one Doku Gakpetor.

The prosecution's case against the appellant was that sometime between 7.45 and 8.30 a.m. on the material date, while he was driving a five ton Bedford truck No. AG. 2223 along the Accra-Winneba Road in the direction of Winneba between the village of Odorkor and Weija junction, he drove the vehicle in such a manner as to cause it to collide, just about the point where the branch road from Weija village crosses the main Accra-Winneba road, with another vehicle, a five ton Commer truck No. AG. 1612 which was proceeding ahead of him in the same direction, and in the course of the collision unlawfully caused the death of the person mentioned in the charge.

The question raised for determination at the trial was whether or not the evidence adduced on behalf of the prosecution sufficiently established that the manner in which the appellant drove his vehicle and thereby caused the collision showed a reckless disregard of human life, a question which was answered by the jury in the affirmative; and the questions for determination in this appeal are firstly, whether the record discloses sufficient evidence before the jury, and secondly, whether they were adequately and properly directed on the law applicable or relevant to the particular facts of the case.

Learned counsel for the appellant contends that the answers to both questions are in the negative, whilst counsel for respondent contends that the answers are in the affirmative, and it falls to examine the contentions.

With regard to the first question as to the sufficiency of the evidence before the jury, reference might be made to the following material evidences: Firstly, the second prosecution witness Aba, Akyere, a seamstress of Kaneshie, Accra, who was in the appellant's lorry at the material time deposed as follows:

"On 22nd February, 1960, about 8 a.m., I was travelling on a truck from Accra to Swedru on the Winneba Road. The accused was in charge of the vehicle. From a village called Odorkor on the Winneba road the accused was travelling at a very high speed. I sat beside the accused driver in the vehicle. The speed was so high I had to bend my head to avoid seeing the fast moving scenery. I was afraid to check the driver because at times if you do the drivers abuse you ?... Our driver did not blow his horn to my hearing on approaching the (Weija) junction. I raised up my head when I heard the driver make a sound ?'ugh?'. The vehicle in front of us was turning into the junction on the right. Our vehicle was then on the off-side of the road and hit the vehicle in front which was turning to the right into the junction off the main road. Our vehicle fell. I was trapped underneath the vehicle. I was dizzy. I was released from the trap, sustained injury to my left hand. Police removed me to Korle Bu hospital.?"

Under cross-examination by counsel for appellant she explained further:

"It was about the area of Odorkor that I bent my head down because the speed was so high. It would be about three miles from Odorkor to the scene of the accident . . The driver, as I told the court, was travelling at full speed. I bent down my head because of the excessive speed at which the driver was going."

Secondly, George Donkor, P.W.3 of Swedru also in the appellant's lorry at the material time deposed as follows:

"I travelled on the accused's vehicle from Kaneshie going to Swedru on 22nd February, 1960, about 8.30 a.m. Accused was in charge of the vehicle. He was driving at a very fast speed. I saw a lorry in front of us after passing Mallam [p.399] Junction. The wind by the speed of accused's vehicle was so great I could not see properly. We were five on the vehicle together with the driver. I was sitting behind the driver. My wife (P.W.2) was also in the vehicle sitting with the driver ... On reaching Weija junction I saw a vehicle in front of us turning to the right to take the junction. Our vehicle hit the vehicle when accused was attempting to overtake the other vehicle. The accused did not blow his horn. I did not hear it. Our vehicle fell upside down after it hit the other vehicle."

He also, under cross-examination by counsel for appellant, amplified his evidence as follows:

"It was at Mallam junction before I saw the vehicle in front of us. It would be about half a mile to the scene of the accident. Our vehicle was about 30 yards from the vehicle in front when I first saw it at Mallam junction. It is true that the accused was driving fast because I was in the lorry. As soon as I saw the front vehicle turning into Weija junction our vehicle hit it."

[His lordship then rehearsed the evidence given by P. W.5 and P. W.8 and continued:] If the foregoing recited evidence of the four witnesses be accepted, as it appears to have been accepted by the jury, the sum total thereof clearly established not only that the appellant was driving at an excessive speed, but that at a junction where persons were standing and some degree of care was called for, he maintained the excessive speed and attempted to overtake the vehicle in front, with the inevitable result that a collision occurred resulting in the fatality in respect of which he was charged.

The appellant's own explanation was this:

"The driver of the tipper truck was driving in the middle of the road whilst I was following it. I blew my horn as we were approaching the Weija junction. The tipper truck driver made a signal with his hand indicating that he was slowing down. I said signal was with his hand, up and down, which meant he was stopping. He swerved to the left side and slowed down, and so I speeded on to overtake him, and immediately I came abreast with his front wheel, the driver of the truck then stretched out his hand indicating that he was turning right into Weija junction road."

Assuming that this explanation were an acceptable one, the question still arises whether it is not gross negligence amounting to reckless disregard of human life, for the appellant at a "T" junction with a number of persons standing on both sides of the main road, and with the possibility not only of the vehicle ahead suddenly deciding to swerve into the branch ?- road but of another unexpectedly emerging from the branch-road on to the main road, to shoot forward to pass ?-"speed on to overtake" as he himself described it ?- a vehicle ahead of him, merely because it appeared to be halting. Surely at such a junction even without any bystanders in sight, special care was called for until the appellant had safely passed the junction; and if so, how much more when, as the evidence irrefutably established, there were several persons standing on both sides of the road at the junction. We are therefore unimpressed by learned counsel's arguments to the effect that the evidence discloses that the proximate cause of the accident was the manner in which the driver of the vehicle in front signalled to the appellant behind him and that the sum total of the evidence, although amounting, as counsel admitted, to some negligence, was not sufficient to establish gross negligence amounting to reckless disregard of human life. In our view the evidence to which we have already made reference, including the appellant's own version of the circumstances of the accident, amply supports the prosecution's case of negligence amounting to reckless disregard of human life charged against the appellant.

Turning now to the question whether the jury were adequately directed, learned counsel for appellant submitted firstly that the learned judge failed to put the case of the appellant fully, because he failed to direct them as to what the correct signal should be when a driver ahead or in front intends to turn to the right. Counsel in this connection referred to regulation 45 (f) of the Motor Traffic Regulations LN. 135/571 made under the Road Traffic Ordinance, 1952, No. 55/52.2 which provides that when about to turn right a driver should hold or stretch out his right hand. Developing his argument, counsel maintained that that is the only signal open to the driver ahead of him and when he (the driver ahead) did not give that sign but gave rather the slow-down or halting sign the appellant behind him was entitled to take it that he was not going to turn to the right but was rather going to halt, and was therefore justified in overtaking or attempting to pass him. The learned judge, continued counsel in argument, should have explained the regulations to the jury and pointed out what the driver in front should have done having regard to the regulations, and the fact that the defence was substantially that the driver in front confused the appellant by the signals which he gave. But as we pointed out to counsel at the conclusion of his submissions on this point, by referring him to passages in the learned judge's summing-up, the complaint that the learned judge did not deal with this matter or question of what is and what is not the proper signal, is factually inaccurate and groundless. The appellant's first witness, one Mr. Pracy, testified primarily about the question of what should be the proper signal, and the learned judge dealt at considerable length with his evidence and concluded by leaving the matter of its acceptance or non-acceptance to the jury. In face however of the significant assertion by this witness for the appellant that: "It is permissible to overtake, but not in a 'T' junction. You cannot, although you may overtake at a junction, if there are pedestrians on the road", we cannot see how the appellant's defence that the driver ahead gave him the slow down sign but not one indicating an intention to turn right, could have availed him. As already indicated, also we are satisfied that the learned judge dealt fully with this question of what signal should have been given by the driver in front which the appellant relied on as his main defence, and that the complaint that the summing-up was deficient in that respect is absolutely groundless and without substance.

Learned counsel submitted secondly that the learned judge completely failed to define what the charge of manslaughter is to the jury. Counsel conceded, however, that the learned judge read the relevant section of the Criminal Code defining and explaining manslaughter to the jury. In addition, however, to referring the jury to how the Act defines and explains manslaughter, we find passages in the summing-up which apply or relate the law to the facts of the case and, in particular, this pertinent passage:

"In assessing the evidence as a whole, if you are satisfied that the harm causing the death is caused by the negligence of the accused, and that such negligence amounts to a reckless disregard of human life then you will be justified in returning a verdict of guilty."

In our opinion therefore this complaint also against the summing-up, that it failed completely to define the charge of manslaughter, is groundless and without substance.

The summing?-up as a whole which contained the important direction in the?-concluding stages thereof that:

"You must weigh the facts of the case for the accused, who denied driving at an excessive speed, and said the accident was due to the driver in front. If you accept his explanation as to cast doubt upon the case for the prosecution you must give him the benefit of the doubt and acquit him," appears to us to be eminently fair, and, quite undeserving of the complaints directed against it.

In the result we agree with counsel for the respondent that the answers to the questions arising for determination in the appeal are in the affirmative, and the appeal therefore fails and is hereby dismissed.

Decision


Plaintiff / Appellant

E. N. P. Sowah

Defendant / Respondent

P. Adjetey

Referals

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