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REGINA v. GRUNSHIE


  • New
  • 1959-03-13
  • COURT OF APPEAL
  • GLR 125-128
  • Print

KORSAH C.J., VAN LARE J.A. AND ACOLATSE J.


Summary

Killing?-Self-defence?-Degree of force permissible.

Headnotes

It was ground common to the Crown and to the Defence that Tamale Grunshie had killed his son Seidu Moshie by inflicting on him a number of wounds with a cutlass. Grunshie was charged with manslaughter. The only evidence as to the events immediately leading to the killing was that of Grunshie, which was as follows:-"The deceased threw one of the spears at me while I was taking my meal, but it missed me. I picked it up. I said 'Are you coming to kill me in my house?' I raised the spear to hit him. He threw the second spear and it hit my elbow. All this happened in my house. The spear which I raised hit the ceiling and got broken. I was still holding it and the deceased approached me. I tried to hit him with the spear and he raised up the cutlass and cut me on the left fore-arm. It was a deep cut and injured the bone. I approached deceased to try and take the cutlass from him and he was walking backwards. He still had the bow and arrows. He was calling me 'Come! Come!.' As he was doing this, he suddenly fell in a gutter. He was then about 8 yards (demonstrating) from the house. Not true that he ran away and I chased him for 50 yards.When he fell in the gutter the cutlass fell on the ground and I picked it up. I then inflicted wounds on him. I did this so that I would be able to run away."He was trying to get up. It was dark and I was unable to see how many times I hit him. I slashed several times with the cutlass."I could have run away when he fell but he wanted to get up and chase me. He might have killed me if I had tried to run away."The three assessors gave their opinions unanimously that the accused was not guilty.In the course of his judgment, the learned Judge (Murphy J.) said:"It is clear from the evidence of the preliminary events that the accused had ample reason to fear being killed or seriously wounded by the deceased, both because of the deceased's previous actions against others, and because of the manner in which he was armed, and his actions when he came to the accused's house."In his evidence the accused has admitted that the deceased fell, that the cutlass fell to the ground and that the accused picked up the cutlass and wounded the deceased several times. The accused had then been wounded himself and, even allowing for the fact that the deceased was still armed with the bow and arrows, it seems to me to be abundantly clear that the accused's actions were a form of revenge, and went a great deal farther than was necessary in self-defence, having regard to the fact that the deceased was on the ground and to the number of wounds inflicted."I therefore (notwithstanding the opinions of the assessors, which I have noted) find the accused guilty of manslaughter as charged, and convict him accordingly." [p.126]The accused filed on the 21st August, 1958 application for leave to appeal to the Court of Appeal. Leave was granted on the 27th February, 1959, (Criminal Appeal No. 123/58).At the hearing of the appeal the provisions of sec. 63(4) of the Criminal Code fell for consideration:"For the prevention of, or for the defence of himself or any other person against, any of the following crimes, a person may justify any necessary force or harm, extending in case of extreme necessity, even to killing, namely . . . (c) Murder."

Judgement

JUDGMENT OF VAN LARE J.A.

At the close of the arguments on the 27th February last, we allowed this appeal. We now give our reasons.

The appellant was convicted by Murphy J., sitting with assessors at Assizes holden at Kumasi, of the offence of manslaughter, and was sentenced to eighteen months imprisonment with hard labour. At the trial, the sole defence set up by the appellant was that, in inflicting the wounds that caused the death of the deceased, he acted in self-defence. [p.127]

Each of the three assessors accepted the defence and expressed the opinion that the prisoner was not guilty. The learned trial-Judge, however, did not conform with the opinion of the assessors, as he was of the opinion that the appellant's "actions were a form of revenge, and went a great deal farther than was necessary in self-defence, having regard to the fact that the deceased was on the ground, and to the number of wounds inflicted."

As opposed to provocation (which is a plea in mitigation) self-defence is a plea of justification, implying that the prisoner is presumed to intend the consequences, even to the extent of causing death in order to save himself from being murdered by the deceased. It is our opinion that the question of revenge, or a consideration of the degree or quantum of force used, cannot arise where the facts (as in this case) come within the provisions, of section 63(4) of the Criminal Code as to self-defence. Under those provisions there is no limit to the force or harm that may be used in necessary self-defence against murder, though under sub-sections (1), (2) and (3) of that section there is a limit in each case to the force that may be used, or harm inflicted, in self-defence in the instances enumerated. The learned trial-Judge appears to have misdirected himself in applying to this case the provisions of sub-sections (1), (2) and (3), instead of those of sub-section 4.

(His lordship read the subsection, and proceeded):- In any case, the question that had to be decided was whether the act done was in necessary self-defence, and not whether it went farther than was necessary in self-defence. Homicide is justifiable as soon as the act done is found to be in necessary self-defence. In the present case, it does appear to us that the learned Judge had no doubt that the act was in fact done in a case of extreme necessity, and in necessary self-defence.

As the whole appeal is concerned with a question of law, it is unnecessary to state the facts in any details. It is sufficient to say that the deceased went armed to the appellant's house to commit murder. The learned trial-Judge found as follows: "It was clear from the evidence of the preliminary events that the accused had ample reason to fear being killed or seriously wounded by the deceased, both because of the deceased's previous actions against others, and because of the manner in which the deceased was armed, and his actions when he went to the accused's house," where the alleged offence took place.

As to the events immediately leading to the killing, according to the trial-Judge, he had only the evidence of the appellant himself on [p.128] which to rely. (His lordship read the relevant part of the appellant?'s evidence, as in the Headnote, and proceeded):

This is essentially an appeal where there is no question of the credibility or reliability of the witness, but one where the point is whether the trial-Judge had drawn the proper inference from the proved facts. It is the duty of an appellate court to draw its own inference from the established evidence. We think that in this case we are generally in as good a position to evaluate the evidence as the trial-Judge, and we prefer the unanimous opinion of the assessors to that of the trial-Judge.

With respect we differ, therefore, from the opinion of the trial- Judge that the appellant's act was in revenge, and not in self-defence. In our opinion the trial-Judge took a wrong view of the facts, which certainly provided sufficient material on which to find self-defence.

Decision

<P>In the result we were compelled to reverse his decision. We accordingly quashed the conviction, and ordered the appellant to be acquitted and discharged.</P>&nbsp;

Plaintiff / Appellant

Appellant in person.

Defendant / Respondent

Crabbe for respondent (Crown).

Referals

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