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  • appeal
  • 1960-03-25
  • GLR 45-53
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Criminal Law?-Murder?-Distinction between murder and manslaughter?-Use of depositions to discredit witness at trial?-Inadmissibility of depositions at hearing of appeal?-Summing-up must lead jury to critical approach on relevant issues.


The appellant, Organising Secretary of the United Party in the area, was leading a number of supporters of that Party towards a crowd of supporters of the Convention People's Party at Badu, Brong-Ahafo on October 5, 1959. Those in the United Party crowd were throwing stones, and appellant threw stone which struck Kwabena Oppong on his right side; the stone was not produced in court, but one prosecution witness described it as " slightly larger than a fist." Oppong fell down and was taken by his nephew to a house. On the following day he was taken by the police to a doctor at Wenchi, where he died. The post mortem examination of the body disclosed external bruising just below the nipple line on the right breast. Internally a large quantity of blood was found in the abdominal cavity, and the liver was ruptured. In the opinion of the doctor, death was due to internal haemorrhage from a ruptured liver.The appellant was charged with murder; his defence was an alibi, but he called no witnesses in support of it. He was convicted before Scott J. He appealed to the Court of Appeal. At the hearing of the appeal, counsel sought leave to refer in extenso to the depositions before the committing magistrate.


APPEAL against a conviction for murder by Scott J. sitting with assessors. The facts and arguments of counsel are fully referred to in the judgment of the Court of Appeal.


Granville Sharp, J.A. read the judgment of the court. (After referring the facts he continued).

The appellant in evidence began by denying that he was ever at Badu on the day of the incident, or that he was in any way responsible for the death of Oppong. The relevant passage in the record is as follows:-

"ACCUSED: KWABENA ADU GYAMFI: S.O.B. in Twi through E.K. Obeng (Interpreter)

?"I am a farmer and live at Badu. I did not murder Kwabena Oppong. I did not throw any stone at Kwabena Oppong. I was not there at all. I never led U.P. group on that day. On the eve of Wenchi bye-election I was in the village of Bepoyase. I went there to give a Polling Agent's Card to our representative. I am a member of U.P.

?"Court calls on counsel for accused to furnish notice to the prosecution of particulars of alibi within 2 days as required, by section 131 (1) of Cap. 10.?"

?"Counsel for defence states accused does not intend to furnish particulars, as the defence no longer wishes to pursue that line of defence.?"

?"Court rules that case must proceed.?"

The appellant then proceeded to assert that he knew nothing about the case, and that he did not know what had caused his arrest. He said that the evidence against him was false, and had been concocted by the [p.47] witnesses, who were all relatives of the Krontihene, with whom he was in dispute as to the right of the Chief to occupy the Stool. He said that all these witnesses lived in the same house with the Krontihene. In answer to the third assessor he said, "This charge has been framed against me because of a letter which I took to Accra against the Chief. I was kept in prison because the Chief does not wish to be destooled. The Elders are illiterate?-I am the only one who is literate and that is why this charge has been preferred against me." Some of the prosecution witnesses having said that at material times he was wearing a red shirt and khaki shorts, he said: "I have witnesses who will come to Court to say that on the 5th October, 1959, 1 was wearing a pair of trousers and a white shirt", that on that day he had gone to Bepoyase, and that it was later that he had heard that United Party supporters on the date in question had been throwing stones at Badu. Thus, having abandoned his defence of alibi in the formal sense, he persisted in it. He did not, however, call any of the witnesses to whom he had referred (or indeed any other witness), but rested his case upon his own evidence.

There was evidence on the part of the prosecution that the deceased had complained to the police that the appellant had beaten him with a stick, and the appellant himself said in evidence that it was with this charge that the police at Wenchi first confronted him.

Learned counsel for the appellant before us argued eight grounds of appeal, and it will assist in understanding the case if we set these out in extenso. They are as follows:

1. That it was the accused who caused the death was never properly proved, there being no evidence how old was the external injury corresponding to the fatal internal injury. The medical evidence established no nexus in point of time between the stone which accused was alleged to have thrown at deceased, and the external and internal injuries found on deceased.

2. This being a trial by assessors, and the verdict being vested solely in the trial judge, the judgment was bad because no adequate reasons were given for the finding of guilty of murder against the accused, beyond saying merely that the judge believed the prosecution witnesses. The evidence given by the prosecution witnesses could support a host of other charges, or indeed mere mishap.

3. The evidence given by the accused was not commented upon in the judgment. In so far as that evidence could be said to have been impliedly rejected as not believed, the judgment was bad, and cannot be sustained, for it is not sufficient merely to say, "I do not believe the defence", without giving reasons for disbelieving it, especially in a trial on a capital charge.

4. The trial judge erred seriously in misdirecting himself and the assessors that the evidence could not support a charge of manslaughter, and that it was either murder or nothing.

5. Since intent was supposed to have been gleaned from the facts and circumstances, the trial judge erred in not directing himself [p.48] and the assessors as to the difference between the "natural and probable" consequences of an act and its "possible" consequence. The former would support intent, but not the latter.

6. The finding that death is the natural and probable consequence of throwing at a person an unidentified and unexhibited stone (described as slightly bigger than a man's fist) was perverse.

7. The prosecution witnesses in their evidence at the trial contradicted each other. Further, the evidence of each at the trial contradicted what he had said on his depositions before the committing magistrate. Counsel would seek leave from us to refer to those depositions in extenso.

8. Intent was never proved, directly or inferentially.

We deal first with Ground 7, because Mr. Owusu (for the appellant) invited us at the outset to accept in evidence the depositions in extenso, to which he sought to refer. This we declined to do. If the request to receive in evidence the whole of the depositions had been made to the trial judge he would undoubtedly (and we think rightly) have refused it, on the well established ground that depositions are not evidence at a trial. They can, however, be used for the purpose of discrediting a witness, by showing that he had told one story to the examining magistrate and an entirely different story in the course of the trial. In the instant case, all the witnesses were alive, and present in court to be cross-examined upon their depositions if necessary. The fact that the depositions were not so used cannot entitle us, in order to correct a failure on the part of defence counsel in the trial-court, to do what the learned trial judge could not himself have done. To do any such thing would involve this court in a retrial of the case, upon an examination of fresh material which could not possibly have been evidence at any stage of the trial.

In this connection, we refer to the unreported case of Barnhill v. The King in the West African Court of Appeal sitting in Freetown on September 20, 1948. The court was constituted by Blackall, P., Lucie-Smith, C.J. (Sierra Leone), and Lewey, J.A. It was a case in which an application had been filed for leave to call fresh evidence. The application was refused for reasons stated by Blackall, P. as follows:?-

?"We shall give our reasons for refusing the application to call further evidence. The application, which was filed only four days before the hearing of this appeal, was to allow the appellant to give evidence as to what he now alleges were the true facts of the case, and to call his wife to corroborate this in certain respects. In support of the application, the appellant attached a copy of a statement made by him to the Superintendent of Police in the Gambia on June 13, 1948. Briefly, it was to the effect that the appellant came under the malign and hypnotic influence of a charlatan who induced him (inter alia) to believe that an empty suitcase transported from Africa to England would develop the attributes of Fortunatus' purse and be found to contain money when opened at the other end. The appellant, [p.49] according to his statement, believed this claptrap, and handed over not only the whole of the 3,700 he took from Government, but 120 of his own money to boot. In support of the application to call further evidence, counsel submitted that the circumstances were exceptional, that the appellant's belief in this fantastic story showed a complete lack of balance. But even if this were so, other conditions have to be satisfied before a Court of Appeal will admit fresh evidence.

?"It was stated by this Court in the case of R. v. Oton (12 W.A.C. A. 212): 'That this Court may call fresh evidence in exceptional cases is beyond dispute, but in so doing it must be guided by the same principles as those acted upon by the Court of Criminal Appeal in England'. Section 10, Cap. 149 (Laws of Gambia), follows closely section 9 of the Criminal Appeal Act, 1907. A number of cases were cited in the course of the argument before us, but that which most closely resembles the present is, we think, that of Dashwood (28 Cr. App. R. 167), which was not referred to by Counsel. In that case leave was asked to call fresh evidence, on the issue of insanity. In refusing the application, Humphreys J. observed:?-

'The Court is now asked to allow witnesses to be called upon a new issue, and an issue different from any issue which was before the jury. It is the view of the appellant's counsel that he would have been well advised to raise the question of the appellant's sanity at the trial, but it was the express desire, and indeed the avowed determination, of the appellant that no such issue should be raised. This is, therefore, not a case in which some new evidence has come to light which was never dreamt of in the course of the trial. This is, in fact, an application that the Court should substitute itself for the jury as a tribunal of fact, and try the case anew, on a new issue and on new pleas which were never before the jury.'

?"and later on in the same judgment he said :?-

'One of the matters which this Court has to consider is the probable result of creating a precedent, if this application were granted. In our opinion, the result would be to open the door to every person charged with a serious crime to instruct his counsel to put forward such defence as he thought right before the jury, and if that failed, to come to this Court and ask that there should be an inquiry into his state of mind, so that the Court might be induced to say that the proper verdict should have been Guilty but insane. We decline to accede to this course. Indeed, in our view, we have no power to enter on any such inquiry.'

?"See also the passage in R. v. Donovan (2 Cr. App. R. at p.18) referred to in R. v. Krudi and Others (W.A.C.A. 20 March, 1946):

'application has been made to call further evidence, but in this case it is impossible to allow an entirely different story to that presented at the trial to be set up in this Court'.

?"It appeared to this Court that the principles enunciated in those cases applied to the application with which we have dealt, and that the only course we could adopt was to refuse the application to call further evidence.?" [p.50]

Perhaps we should add here that the accused in Barnhill was in fact granted a free pardon on the basis of the facts alleged in his application to the West African Court of Appeal.

In the present case, learned Counsel for the appellant invites us to consider material which, as we have said, is not evidence. We reiterate the words of Humphreys J., "One of the matters which this Court has to consider is the probable result of creating precedent if this application were granted?", and with this we pass to a consideration of the remaining objections raised against the conviction of the appellant, leaving Grounds 2 and 3 to be considered last in the interests of clarity.

Ground 1 raised the issue whether or not the cause of death had been properly proved, i.e., whether the evidence, if believed by reasonable men, was such as to lead to the conclusion that the deceased died from (or that his death was accelerated by) injuries received by him when he was struck by a stone on October 5, 1959. Learned counsel's argument upon this may be stated thus:

?"The injuries could have been produced by a stick, or a stone, or any other blunt instrument, according to the medical witness. But there was no evidence as to the age of the injuries, so as to exclude the possibility that they were sustained as a result of some hurt at a date prior to the 5th October, 1959, or that they resulted from natural causes. The stone was not shewn to the doctor. He did not consider the size of the stone, which was described as being slightly bigger than a fist. The force with which the stone was thrown was not described to him or to the Court. It was merely said that a stone was thrown, and it was not put to the doctor whether a stone of the size described, thrown from a distance of 15 feet or 27 feet, could have caused the external injuries."

We find this argument to approach the fanciful, when the other evidence in the case is considered. What the doctor in fact said was, "A blow with the knob-end of a stick, or with a stone, would have caused the injuries I saw". P.W.2 said, "I was then some 15 feet away from Kwabena Oppong, and at his side. I saw accused holding a stone. Accused threw the stone, and struck the deceased on his right side below rib. My uncle fell on the ground. I went and lifted up my uncle". This witness went on to say that he took the deceased to the Krontihene's house, and stayed with him all night, and that the deceased was taken away by the police on the following day. P.W.3, who had not seen the appellant hit anyone with a stone, helped the last-mentioned witness to lift the deceased from the ground. He too, stayed with him all night, and stated that "Oppong appeared ill, he had difficulty with his breathing". This witness said that previously the deceased had been in good health, and in this he received some support from the doctor, who said, "Deceased appeared to have been in good health", and added, after describing the injured liver and congested spleen, "all other organs showed normal post-mortem changes". In our view, the learned trial judge was entitled, as he did, to conclude from this evidence that Oppong died as the result of being hit by a stone, and that it was the appellant who threw the stone that caused the injuries from which death resulted. [p.51]

Grounds of Appeal 4, 5, 6 and 8 were argued together by learned counsel for the appellant. When so considered, their general effect is a complaint that the learned judge misdirected himself and the assessors as to murderous intent, and as to proof by the prosecution that the appellant intended, when he threw a stone, (a) to cause harm the probable consequence of which would be the death of the person struck, or (b) to cause (in the legal sense) the event which followed the throwing of the stone into the crowd.

We are of opinion that there is force in the argument of applicant's counsel. We think that the learned judge failed to give adequate consideration to the distinction between manslaughter and murder when he found that intent to murder must be inferred from the facts and circumstances, and then proceeded to stress the absence of exonerative evidence within the meaning of section 250 of the Criminal Code (Cap. 9).

As long ago as 1862, Chief Baron Pollock, in the case of R. v. Vamplew ((1862) 3 F F. 520) stated the matter in a form which remains to this day good law. He said, "The crimes of murder and manslaughter are in some instances very difficult of distinction. The distinction which seems most reasonable consists in the consciousness that the act done was one which was likely to cause death. No one, however, could commit murder without that consciousness."

The distinction to which the learned Chief Baron drew attention has in fact been clearly enacted in sections 248, 249 of our own Criminal Code, (Cap. 9) which are as follows: ?-

Section 248. ?"Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter:

?"Provided that, if the harm causing the death is caused by negligence, he shall not be guilty of manslaughter unless the negligence amounts to a reckless disregard for human life."

Section 249. ?"Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as in the next succeeding section is mentioned.?"

There can be no doubt that the appellant caused the death of Oppong by unlawful harm; but the question arising for further consideration was, " Was the act done in the consciousness that it was likely to cause death?" It was for the learned judge to give this question more careful consideration than he in fact did.

The appellant was one of the many persons in his following who threw stones. We are apprised of the fact that at least forty of these were prosecuted for engaging in a riot, of whom twenty-one were convicted, and (as we held on appeal) rightly convicted. It was held in that case that all these persons?-and the appellant was arrested with them on a charge of rioting?- were acting with a common purpose, but in no instance was it suggested that the common purpose was murder. We think that the learned judge oversimplified the matter when he inferred intent to murder from the facts and circumstances, and we think that he was led [p.52] into this error by the somewhat perfunctory manner in which he considered the evidence as a whole,

As was said by the House of Lords, in the case of Wintle v. Nye. ([1959] 1 All E.R. at p.558):

It was not enough for the judge to say to the jury that, if they believed the respondent, whom they had seen and heard, then they could decide in his favour. It was imperative that he should at least point out the considerations, which were not lacking, for them to bear in mind in deciding whether they should, or should not, believe him."

We are of opinion that a jury should be directed on the whole of a case, so as to lead them to have a critical approach on the relevant issues?-for instance (in the present case) the question of intent to murder, in order to decide whether the facts prove intent to murder or otherwise.

In the present case it is objected in Grounds 2 and 3 that the learned judge failed in this regard. What appears from the record is that the learned judge, after what can properly be described as an uncritical summing-up to the assessors in the sense described in Wintle v. Nye ([1959]1 All E.R.552) repeated this in his judgment, and concluded in a form with which this court is becoming unhappily familiar:" After I had summed up, the assessors unanimously stated that in their opinion the accused was guilty of murder. With this opinion I am in entire agreement, as I believe and accept the evidence of the witnesses for the prosecution that the accused struck Oppong with a stone in the circumstances they described and that Oppong died as a result of the injuries sustained."

The learned judge gave no reasons for his all?-embracing acceptance in a capital case of the evidence for the prosecution, or for his equally all?-embracing rejection, albeit sub silentio, of the case for the defence. Nor did he at any stage analyse the evidence in a critical sense, either to the assessors or to himself. We wish here to repeat what we have already stated as our opinion in such circumstances in R. v. Sarpong ([1959] G.L.R at p.384) in which we dealt with the meaning and intendment of section 300 of the Criminal Procedure Code (Cap. 10) as follows:

"In a jury case, when a Judge sums up, it is his duty, according to the decided cases, to marshal and sift the whole of the evidence, so that it is presented to the jury in such a form as will enable them to bring to its consideration in the course of their deliberations clear, well-informed and analytical minds. It is not less essential, in a case where a Judge sits with the aid of assessors (and he is so required by the Statute, whether he sums up to the assessors or not) that he should give a judgment in writing, from which it will appear to all who read it that he has, in arriving at his own verdict, instructed himself as fully as his duty would require him to instruct a jury, if he had in fact been sitting with a jury.?"

As was said by the late Lord Hewart, Chief Justice of England, in enunciating a fundamental principle for the guidance of all who administer the law, "It is of the utmost importance not only that justice be done, but that it manifestly must be seen to be done." [p.53]

Judged by these requirements the summing-up and judgment of the learned trial judge in the present case were in our opinion bad for misdirection by non-direction. One result of this was that the learned judge, when he in effect found that intent was proved by (in the sense that it must be inferred from) circumstantial evidence, did not pause to consider the effect of the long established rule in Hodge's Case ((1838) 2 Lew.C.C. 227), that "where a charge depends on circumstantial evidence it ought not only to be consistent with a person's guilt, but inconsistent with any other rational conclusion." Nor did the trial judge consider the elaboration of this rule as provided by Lord Goddard in R. v. Onufrejczyk ([1955] 1 All E.R. at p.248): "Death can be proved, like any other fact can be proved, by circumstantial evidence, that is to say, by evidence of facts which lead to one conclusion provided that the jury are satisfied and are warned that the evidence must lead to one conclusion only." The learned trial judge further failed in this connection to consider the balance of probability. Had he done so, and borne in mind the rules to which we have referred, we think that he could not have given it as his opinion that intent must be inferred from the facts and circumstances. We think further that, with a proper understanding of the law of Ghana, he would have found himself impelled, upon the preponderance of probability in connection with circumstantial evidence, to direct both the assessors and himself that, if the evidence satisfactorily proved that death had resulted from wounds caused by the stone thrown by the appellant, a proper finding would be "guilty of manslaughter.?"

To the extent that the learned judge's approach to the case resulted in the appellant's being adjudged guilty of murder we think it involved a miscarriage of justice. We are, however, of opinion that it went no farther, and we think that justice will be served by our setting aside the conviction for murder, quashing the sentence of death, and substituting a verdict of guilty of manslaughter and a sentence of five years I.H.L.


<P>Conviction for manslaughter substituted for conviction for murder</P>

Plaintiff / Appellant


Defendant / Respondent



(1)  Barnhill v. R. September 20, 1947 W.A.C.A. unreported.

(2)  R. v. Vamplew (1862) 3 F. & F. 520.

(3)  Wintle v. Nye [1959] 1 All.  E.R. 552.

(4)  R. v. Sarpong [1959] G.L.R. 383.

(5)  R. v. Hodge (1838) 2 Lew.  C.C. 227.

(6)  R. v. Onufrejczyk [1955] 1 All.  E.R. 247.


R. v. Oledima 6 W.A.C.A. 202.

Gyan v. The Queen 14 W.A.C.A. 412.

Boateng v. The King 12 W.A.C.A. 242.

Joseph v.  The King [1948] A.C. 215,

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