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REGINA v. AHENKORA AND BADU


  • appeal
  • 1960-06-10
  • COURT OF APPEAL
  • GLR 160-166
  • Print

KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.


Summary

Criminal law?-Murder?-Possibility of accident a matter for jury?-Destruction of alibi does not absolve prosecution from duty to prove intention?-Encroachment by judge on rights of counsel and jury?-Issue of accomplice vel non is for the jury?-Rule of practice as to corroboration of accomplice where prisoners tried jointly.

Headnotes

James Ahenkora, a storekeeper, was accustomed to avail himself of the services of one Badu, a "jujuman", as a means to increase his business prosperity. Kwadwo Ahenkora, who managed one of his brother's stores and one Mensah also became interested in Badu's powers. On the occasion with which this report is concerned, they all went to a cemetery at night where Badu by firing a gun was to summon spirits to which the others could address supplications for business prosperity. A gun was borrowed for this purpose by Kwadwo Ahenkroa. At the cemetery, Badu had the gun and stationed Mensah on Kwadwo Ahenkora's left, and James Ahenkora some yards in front of Mensah. It was dark and the only light was a torch-light flashed by Badu. After making his dispositions, Badu instructed the other not to look round when the gun was fired. As to what happened subsequently evidence was given by Mensah (as the only eye witness for the prosecution) who said that Badu walked round them twice invoking the spirits and "as he walked round the third occasion and as he was behind James (Ahenkora) I heard the gun fired. James shouted 'Agyei, [p.161] Agyei' ...He then feel to the ground on his face." According to Mensah, Kwadwo Ahenkora raised his brother up and asked what had happened. Badu kept repeating some words in Krobo. Soon afterwards James Ahenkroa died. Badu swore the others to secrecy and warned that if either of them said anything he too would die. They then left the cemetery and Kwadwo Ahenkora returned the gun the same night to the person from whom he had borrowed it. At day break, the dead body of James Ahenkora was discovered in the cemetery, and following investigations Kwadwo Ahenkora and Badu were charged with murder. No charge was preferred against Mensah. The trial took place before Charles, J. with a jury. Mensah was the only material prosecution witness Badu's defence was an alibi. In his closing speech, counsel for the first accused sought to raise the defence of accident.He was stopped by the trial judge, who after argument ruled as follows:"Court rules that none of the evidence adduced by the prosecution suggests that the deceased was shot accidentally, and that neither of the two accused has introduced any evidence whatsoever of accident, and therefore, court will not allow counsel to suggest to the jury that the evidence of P.W.13 (Mensah) could be understood to mean that the deceased met his death accidentally." In his summing-up to the jury, the learned trial judge directed the jury as a matter of law that no question of accident arose from the evidence in the case. Both accused persons were convicted of murder. They appealed to Court of Appeal and the convictions were quashed.

Judgement

APPEAL against a conviction for murder before Charles J. Sitting with a jury at Accra Assizes on February 4, 1960.

JUDGMENT OF VAN LARE J.

(His Lordship referred to the facts and continued).

As we have already pointed out, it was dark, and there was no evidence how exactly the gun went off. In other words, the evidence is not clear as to the actual circumstances when the gun was fired and caused the harm from which the deceased died. The medical evidence shows the cause of death to be the destruction of the greater part of the heart by gun shot. No doubt the circumstances were such that it can reasonably be inferred that the wound from which the deceased died was the result of a discharge of the gun which the second appellant was carrying at the time. In the absence of direct evidence, however, it can only be a matter of conjecture whether the truth be that the gun was aimed at the dead man (or that deceased was otherwise shot at in circumstances from which it might be inferred that the act was intentional)'or that the gun went off accidentally and without negligence by the carrier, or that it was due to a careless act of its carrier.

To substantiate the charge against the appellants, it was incumbent on the prosecution to establish beyond reasonable doubt that both appellants by their acts intentionally caused the death of the deceased by an unlawful harm, in this case by intentionally firing a gun at him. The word "intentionally" cannot be over-emphasised in the circumstances of this case. The case for the prosecution must be such as to negative any suggestion or likelihood of negligent or non-negligent accident. The version of the facts, according to the case for the first appellant, is substantially the same as that given by Mensah, the only material witness for prosecution, and the case was bound to stand or fall on the evidence of Mensah. None of them could tell exactly what had happened, except that immediately after the gun went off the deceased was heard to shout: "Agyei, Agyei"; but they both agreed that it was the second appellant who had the gun.

Although the defence of the second appellant was one of alibi, in which he denied going with the deceased and the others to the cemetery, and therefore denied also his presence at the cemetery that night and his handling the gun, nevertheless the onus of proving the charge against him remained throughout with the prosecution, and the possibility of the gun's discharging accidentally (whether negligently or not) could not be ruled out in considering the case against him. [p.163]

Notwithstanding this, when learned counsel for the defence was about to address the jury on the possibility of the gun's discharging accidentally (whether or not through carelessness on the part of the second appellant), the learned trial judge stopped counsel from suggesting negligent or non-negligent accident as a defence. The notes are quite clear that although learned counsel persisted in addressing the jury in such matters-which were worthy of consideration by the jury on deciding the question of intent-he was prevented by the trial judge. We find it difficult to appreciate the right of a judge to prevent counsel from raising any question essential for the consideration of the jury, who are the judges of fact. It is the duty of counsel to bring to the consideration of the jury (especially in a capital charge) every possible matter, and even the most remote inferences from the facts, which may be of assistance to an accused person. It is even the duty of the judge, if counsel fails in this duty, himself to direct the jury on such matters. It is imperative that the judge should point out all matters for consideration by the jury, who must be told to bear in mind such matters of fact, or matters incidental to the facts, when deciding whether or not to find the accused guilty.

Yet the contrary is what we have in this case, for certain matters which had been given in evidence, and which were worthy of consideration by the jury, were withdrawn by the judge from such consideration. In our opinion, the withdrawal of such matters from their consideration was fatal, especially in view of the fact that the jury had to be satisfied beyond all reasonable doubt, upon the evidence before the court, that it was by intention that the deceased was killed.

Although this is enough to dispose of the appeal, nevertheless we wish to draw attention to other matters which make the summing-up vulnerable. In his summing-up the learned judge directed as follows:-

"As a general rule every man is presumed to intend the natural and probable consequences of his act, though this may be rebutted. Of course, this presumption does not extend to accidental acts. However, gentlemen, I direct you as a matter of law that the question whether the deceased met his death as a result of an accident does not arise in this case, because neither from the evidence adduced by the prosecution, nor from the evidence adduced by either of the accused in their defence, could you reasonably find or infer that the deceased met his death as the result of an accident. Furthermore, No. 2 accused in answer to a question put by the court said, 'It is not true that I went to the cemetery to perform any juju, my gun going off accidentally and killing the deceased.'"

With respect, it was not for the judge to find that the deceased did not meet his death as the result of an accident. This was a serious encroachment into the province of the jury. In effect, the learned judge thereby directed that the jury should find that the killing was intentional. Such must be the case, because there was no direction that, if the jury did not think that the killing was intentional, it would be manslaughter only against the second appellant, who could be presumed under the circumstances to have fired the gun. It would then have been necessary to direct that in that event no guilt could in law be attached to the first appellant. In effect [p.164] the direction was as follows: "You cannot return a verdict of manslaughter. Your verdict will be either guilty or not guilty of murder."

We are of opinion that this was a fatal misdirection, for it was at no time admitted that the appellants had actually intended to kill the deceased, and thus the issue raised for the jury upon the charge was whether the prosecution had established that the appellants intended to kill the deceased. In our view, the case for the prosecution was not as the learned trial judge put it to the jury, but rather that such intention was to be inferred; while the case for the first appellant was that there was no such intention in fact, and that such intention was not an inference from the facts. The intention with which a man does something can usually be determined by a jury only by inference from the surrounding circumstances, including, of course the presumption of law that a man intends the natural and probable consequences of his act. In a case where harm must obviously result from the act, and there being no evidence to rebut the presumption, a direction to the jury that "every man is presumed to intend the natural and probable consequences of his act "would be proper. In other cases it would not be proper, because the strength of any presumption clearly varies according to the particular facts of every case, and it might entail considerable adjustments in the practical terms of the direction to the jury.

The essential question in the present case is this: Can the appellants, because they went to the cemetery armed with a gun for the purpose of summoning spirits, be presumed to have intended the consequences that followed when the gun was discharged, resulting in the death of the deceased? In other words, did the appellants actually intend killing the deceased, or any person? The jury should have been told that intent and desire were different things, but that once it was proved that an accused person knew that a result was certain, the fact that he did not desire that result was irrelevant. In this case, however, the evidence is not such as to show that the appellants knew (or ought to have anticipated) the result which followed the discharge of the gun.

That part of the summing-up dealing with the second appellant's defence of alibi also exposes itself to attack. It was as follows:-

"..... if you reject the alibi of No.2 accused, and you are convinced, and you feel sure, and there is no reasonable doubt in your minds, that the prosecution has proved that No. 2 accused fired that gun, and the cartridge from the gun wounded the deceased and caused his death, and that the material consequences of the act of No. 2 accused would be death, and as no explanation has been given by No. 2 accused as to how he came to fire the gun, then I direct you that the accused would be guilty of firing the gun with the intention of causing the death of J.E. Ahenkora, and it would be your solemn duty to return a verdict of guilty of murder against No. 2 accused."

In this instance also the learned judge appears to have been of the opinion that a judge is competent to direct a jury to find intention to kill as a fact from the evidence adduced. We repeat that this is not so. Whether or [p.165] not a jury can so find is purely a matter for them to decide. A judge cannot impose his own opinion on a jury.

There appears also to have been some misdirection as to the defence of alibi. It is sufficient to point out that the proper direction in this regard was to tell the jury that even if they considered that the alibi had been destroyed, the burden still lay with the prosecution to prove the case beyond reasonable doubt, and that the guilt of the second appellant could not be inferred simply because his defence of alibi had broken down.

We are obliged to point out that in our view the summing-up of the learned trial judge was bound to create a confusion in the minds of the jury when he represented, in a single proposition, that the case for the prosecution was that the second appellant intentionally caused the death of the deceased by unlawful harm, and that the first appellant aided and abetted the second appellant in intentionally causing such death. The judge failed to refer to any act of the first appellant capable of constituting evidence of aiding and abetting intentional murder. We ourselves can not discover any such evidence; on the contrary, the evidence is clear that the first appellant, at the request of the deceased, borrowed and supplied the gun to the second appellant for the purpose of summoning spirits. It is difficult to imargine that the deceased also aided and abetted his own murder. Further, the learned judge appears to have told the jury that the prosecution case was that the act was a conspiracy between the appellants to commit murder. What evidence there is of conspiracy to murder we are equally unable to discover from the proceedings.

It is also observed that, although the prosecution witness Mensah was not regarded as particeps criminis, the learned trial judge warned the jury not to regard any of the witnesses as an accomplice in any sense, and he then stated that to find a witness an accomplice is a matter of law. With respect, this is a mis-statement of the law which cannot be passed over in silence, even though it may be immaterial to the result of the appeal. The law is this: whether a witness is an accomplice or not is a question of fact for the jury, and not a matter of law for the judge to determine, for it is an inference to be drawn from the facts established by the evidence. In drawing the inference, the jury (or a trial court without a jury) will undoubtedly-and quite properly-be guided by the impression which it receives from the demeanour of the witnesses; indeed, where there may be room for either one conclusion or the other, this may well be the deciding factor: C.O.P. v. Sampson and others (unreported).

We also refer to the following portion of the learned trial judge's summing-up:

"If on the evidence you find that No. 2 accused did murder the deceased, then No. 2 accused is an accomplice, and if his evidence implicates No. 1 accused it should be corroborated. If you find that No. 2 accused did not commit the alleged murder, he is not an accomplice. I must however warn you that the defence of No. 2 accused is an alibi, that is, that he was not present when the alleged crime was committed, and it is not necessary that his alibi should be corroborated as it does not implicate the No. 1 accused. Similarly if on the evidence you find that No. 1 accused did aid and abet No. 2 [p.166] accused in the commission of the alleged murder, then No. 1 accused would be an accomplice, and if his evidence implicates No. 2 accused it should be corroborated."

The learned trial judge appears to have misconceived the law as to the effect of incriminating evidence given by a co-prisoner. The law on the point can be found in the case of R.v. Barnes and Richards (27 Cr. App. R. 154) which has been followed in this country in the case of R.v. Adebowale and Others (7 W.A.C.A. at p. 144). It is as follows:-

"Where prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given the incriminating evidence is not placed in the position of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case. The rule applies only to witnesses called for the prosecution."

Finally, it is observed that the learned trial judge purported to have convicted the accused persons himself after the jury had returned a verdict of guilty against each of them. His doing so suggests that he thinks that in a jury - trial the verdict of the jury does not amount to a conviction. In this again the learned trial judge has erred. This, however, is a minor point of procedure, and of no importance. The verdict of the jury is that of the court; this is plainly laid down in section 298 (1) (b) of the Criminal Procedure Code, which is as follows:-

"If the accused person is found not guilty, the Judge shall record a judgment of acquittal. If the accused person is found guilty, the Judge shall pass sentence on him according to law."

The law is that conviction is complete as soon as the person charged has been found or has pleaded guilty-see R.v. Manchester Justices [1937] 2.K.B. 96.

This is the clearest possible case in which an appeal should be allowed by reason of the learned judge's manifest misdirections-both actual, and by non-direction. We cannot say what conclusion the jury would have reached if they had been properly directed, whether pure accident, or negligence resulting in manslaughter, or murder. We are of opinion that the jury were not so adequately directed on the whole of the case as to lead them to a critical approach on the relevant issue e.g. intent to murder, in order to decide whether the facts proved such intent. We may, however, be permitted to say that in the circumstances of the present case any jury of reasonable men, properly directed, would probably have returned a verdict of not guilty, on his basis that the prosecution had failed to discharge the onus of proof that rested on them. Finally, considering the whole of the evidence we are of opinion that the case against the appellants was not established with that degree of certainty required by law to support conviction.

In the result, we allow the appeal. The conviction of each appellant is quashed and set aside. Each appellant is accordingly acquitted and discharged.

Decision

<P>Appeal allowed. Convictions quashed.</P>

Plaintiff / Appellant

Narayan for 1st appellant . Andoh for 2nd appellant

Defendant / Respondent

Boison

Referals

(1)  Commissioner of Police v. Sampsom and Others W.A.C.A. June 4, 1947, unreported.

(2)   R. v. Barnes and Richards 27 Cr. App. R. 154.

(3)   R. v. Adebowale and Others 7 W.A.C.A. 142.

(4)   R. v. Manchester Justices [1937] 2 K.B. 96.

ALSO REFERRED TO IN ARGUMENT

R. v. Roberts 28 Cr. App. R. 102.

Mancini v. D.P.P. 28 Cr. App. R. 65.

Kwake Mensah v. The King 11 W.A.C.A 2

R.v. Clinton 12 Cr. App. R. 215

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