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R v. KWADWO MENSAH


  • appeal
  • 1959-09-28
  • COURT OF APPEAL
  • GLR 309-313
  • Print

VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.


Summary

Homicide?-Defence of insanity?-Expert evidence?-Insanity a fact to be determined by jury?-Misdirection?-Evidence to be viewed as a whole.

Headnotes

Early on the 14th December, 1958, Kwadwo Mensah visited the store of a petty trader, one Ashigbe Kokotako, at Okra Kwadjo. Mensah brandished his cutlass in the air, and said. "If I meet Kofi Ayim I will kill him." He continued to say this as he left the store. No quarrel was known by anyone to have taken place between the appellant and Ayim. Indeed, Ayim's wife did not even know that they had ever associated together. The trader left to bring the police, because he thought that although the appellant was naming only one person whom he was going to kill, he might do harm to anyone in the village.Meanwhile, Mensah called at the house of Akua Kubeh, the wife of Kofi Ayim, with the cutlass carried in his cover-cloth. Mensah sought to see Ayim, but was told that he was not at home. Mensah enquired further as to Ayim's whereabouts, and was told by Akua Kubeh that he was at another house, to which she pointed. Leaving Akua Kubeh's house, Mensah was met at the gate by Kwabena Ahunu (a brother of Kofi Ayim). Ahunu went to speak to the woman. Mensah now took the cutlass out, and carried it openly. After a few moments Mensah and Ahunu left the premises, and were seen to walk towards the lorry road, where they proceeded in the direction of a palm-wine bar. Mensah was leading, and Ahunu followed at a distance of some five to seven paces.The trader now arrived on the scene with the constable whom he had been to fetch. He had told the constable that there was a man there (Mensah) who was threatening to kill. Mensah was seen to be still carrying the cutlass. Suddenly, [p.310] without warning or apparent reason, he was seen to turn and approach Ahunu, whom he struck heavily over the head with the cutlass, after Ahunu had failed to ward him off with a stick. Ahunu fell, and Mensah continued his onslaught.Confusion followed. Villagers witnessing what was taking place fled. The police constable sought to arrest Mensah, but was attacked by him, and retreated. The petty trader sought to take hold of Mensah, and was similarly threatened. He too retreated, but when Mensah ran to the bush the petty trader chased him. Failing to catch him, the trader returned to the village, to await the arrival of the Ghana Police who had been called to the scene.On their arrival, some constables of the Ghana Force entered the bush, and at about 2.00 p.m. came across Mensah, over a mile away from the village in the bush. Again he threatened those who approached him, and it was only the dexterity of one of them, who seized his cover-cloth and threw him to the ground, that led to his being disarmed and arrested.After his arrest Mensah was muttering continuously to himself. He was saying, as if to himself, "I have not killed any one. I come from M.T.T.C. Kumasi." One witness described him as speaking to himself "in a queer manner."Mensah was charged with murder, and tried before Simpson J., when the Government Psychiatrist gave evidence of his opinion on Mensah's mental condition. The accused's defence was an alibi. He was convicted, and he appealed to the Court of Appeal (Crim. App. No. 55/59).

Judgement

This appellant was convicted by a jury before Simpson J., sitting at Accra on the 23rd April, 1959, for the murder of one Kwabena Ahunu at Okrakwadjo on the 14th December, 1958.

[p.311]

The appellant raised as a defence the issue of the state of his mind at the material time, and he accompanied this with a complete denial that he was even in the village at the time when Ahunu was killed. As to this latter contention, it is so contrary to the evidence that learned Counsel for the appellant made no point of it at the hearing of the appeal before us. There can be no doubt whatever that it was the appellant who killed Ahunu. The real contest between the Crown and the appellant was upon the issue of his alleged insanity, and upon this the facts placed before the jury were, apart from medical evidence, as follows (his lordship stated the facts, and proceeded:?-)

The killing in this case appears to have been entirely motiveless. No witness knew of any previous association or quarrel between the appellant and his victim. The appellant in evidence denied ever knowing such a person. He was not a very satisfactory witness, and though persisting in his denials as to his presence in the village or as to his having killed anyone, he appeared to wish that his questioning under cross-examination should be brought to an early end.

The picture is of a man who had apparently run amok. At the preliminary hearing before the Magistrate the appellant was, as the learned Judge said later at the trial, "suspected of being not entirely normal," and it was this that persuaded the learned Judge to adjourn the trial, so that the appellant might be examined by a Psychiatrist. He was examined accordingly. The Psychiatrist, Dr. E. F. Forster, who later gave evidence, said in examination-in-chief that after a 45-minute examination of the appellant he thought that he was then trying to feign madness, in order to escape from responsibility for the crime with which he was being charged. The witness then, after describing what are known to be the general symptoms of various forms of insanity (including epilepsy) gave it as his opinion that the appellant might have been temporarily insane at the time of the attack upon the deceased. He said again when cross-examined, "Having examined the accused, and heard his evidence, I would say it is possible that he may have been mentally disturbed." He added that a delusion directed against a particular person does not change and become directed against another person, and he concluded by ruling out the possibility of the appellant's being an epileptic.

It is not the function of a medical witness to decide the issue of insanity. Such an issue is an issue of fact, and it is therefore for the jury to decide it after consideration of all the circumstances disclosed to them, including the nature of the evidence of experts (or an expert) in mental diseases. In our view, however, it is of extreme importance [p.312] that the jury should be fully, clearly and carefully directed upon such an issue, so that they may be able to bring to its consideration analytical, clear and impartial minds.

With this in view, the learned Judge read to the jury practically the whole of the appellant's evidence, and he instructed them to consider such evidence carefully in the light of Dr. Forster's evidence, which he then reviewed to the jury. He added that they should bear in mind the psychiatrist?'s admission that the appellant might have been of unsound mind at the time of the offence.

All this is unexceptionable, save that it should be pointed out that it is not enough to read the evidence (which the jury has already heard) without, as appears to have been the case here, directing attention to the possible weight and importance of any particular part of it. The learned Judge reviewed the evidence, but he does not appear to have sifted it when reading it to the jury. However this may be, there followed in the summing-up a misdirection that we find of considerable importance.

The learned Judge said to the jury that if they believed the evidence of the accused, or if in their minds that evidence raised a reasonable doubt, then he must be found Not Guilty. With great respect to the learned Judge (who is well experienced in matters such as this) we feel that, put in this way, the case may well have been misunderstood by the jury.

The evidence of the appellant bore two distinct complexions. It consisted first of a denial. The appellant put forward an alibi. He was not in the village. He was on his farm some distance away. He did not know any person called Ayim, or the others called Akua Kubeh and Kwabena Ahunu. He had not run away to the bush. He was on his way to the water, when he was surprised by the police and arrested. He had never been to the house of Akua Kubeh, either that morning or at any other time.

Then he said that he could not say whether he had ever been to the house, and he could not tell what he was doing on the morning in question. He was told by someone that he had murdered someone. He did not know who brought him to Accra. He remembered being arrested.

Of course, if the jury believed his alibi and his denial of the killing they must have brought in a verdict of Not Guilty; but there was another course open to them upon which they ought to have been directed. They might disbelieve his alibi and the consequent denial, but still come to the conclusion that the real gravamen of his evidence [p.313] as a whole was its suggestion of loss of memory. In that case it would be open to them to bring in the special verdict of guilty but insane, because the loss of memory, taken with the other evidence, established that he was insane.

When dealing with this issue of insanity the learned Judge said, as recorded in his summing-up notes:

"Evidence of accused reviewed-jury should consider whether he was being deliberately evasive, should compare what he remembers with what he does not appear to remember, his denials and his attempts to avoid further questioning. Must consider evidence and demeanour carefully in the light of the psychiatrist's evidence to assist them to come to a decision on the question insanity. Most of accused's evidence read to jury with this object in view." We feel that this direction may well have led the jury, when considering the issue of insanity, to isolate in their minds the evidence of the accused, and that of psychiatrist, from the evidence as a whole.

Decision

<P>We ourselves, upon a full and careful examination and consideration of the evidence as a whole, including that of the prosecution witnesses, have reached the conclusion that,

Plaintiff / Appellant

Tandoh

Defendant / Respondent

Glasgow

Referals

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