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  • appeal
  • 1961-12-22
  • GLR 786-789
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Criminal law and procedure?-Mental condition of accused in issue?-Whether medical evidence should be unanimous for jury to act upon it.


At the trial of the accused for murder, counsel for the defence applied for the accused, who pleaded not guilty, to be sent to a psychiatrist for examination. Counsel for the prosecution objected stating that on the medical report available there was no reason why the accused should not stand trial forthwith. The report referred to was by the medical officer who performed the post mortem operation on the deceased and who admitted he had no specialised knowledge of psychiatry. The prosecution's objection was upheld and the trial proceeded.The defence called Dr. Forster, a psychiatrist specialist who gave evidence that the accused was suffering from schizophrenia. No medical evidence was given by the prosecution in rebuttal, nor was Dr. Forster's conclusion challenged.The accused was convicted after the learned trial judge had directed the jury that "it is essential that the medical testimony should be unanimous for you to act upon it, and there should be no evidence the other way."On appeal to the Supreme Court,


APPEAL against sentence of death passed on the appellant after being convicted of murder before Crabbe, J. sitting with jury at the Criminal Sessions, Sunyani, on the 1st March, 1961.


Sarkodee-Adoo, J.S.C. delivered the judgment of the court. The facts which are not seriously in dispute, briefly put, are that the deceased was [p.787] the wife of the appellant and they had been married for over seven years before the day of the incident. The appellant was engaged as caretaker of a cocoa farm owned by one Kwasi Addae with whom the appellant and the deceased lived at the employer's village at Awonsuano. According to the appellant he had strange dreams about his son's behaviour with the deceased and also had cause to suspect the landlord of having affairs with the deceased due to their association of which he did not approve. He therefore killed the deceased.

At the trial after the plea of the appellant had been taken and he pleaded not guilty, counsel for the defence applied that the prisoner be sent to a psychiatrist for examination. In his objection to this application counsel for the prosecution stated:

"On the medical report available there is no reason why the accused should not be tried forthwith. The fact of insanity would be proved in due course when defence opens, what is necessary is whether the accused is fit to plead".

Counsel for the defence in reply stated: "In this case a psychiatrist is the only person to give evidence of the mental condition of the accused". Thereupon the learned trial judge upheld the objection and the trial proceeded but it became apparent that the mental condition of the prisoner was in issue.

According to Dr. Alexander Lamptey Tawiah, the medical officer who performed a post mortem examination on the body of the deceased, death was due to multiple external injuries, laceration of the liver, and shock; and a short instrument like a knife could have been used in inflicting the wounds described in his evidence.

Under cross-examination by counsel for the defence, he stated:

"I saw the accused at the Sunyani Prisons. He was under my observation for about three weeks. I made a report on the accused at the end of my observation. The report was on mental state of the accused. I am not a psychiatrist and therefore I have not a specialised knowledge of psychiatry. By virtue of the training of certain people in the medical profession they are better qualified to observe accused and make a report on his mental condition. There are such people in this country in Accra. I did not send the accused to him because I thought on the psychiatry I know I could observe the accused and give an opinion on his mental state. I agree that the opinion of a psychiatrist would have been preferable. I was not told by the prison officials that the accused was a talkative."

Dr. Edward Francis Bani Forster, the psychiatrist specialist in charge of the Mental Hospital, Accra, was called for the defence, and the substance of his evidence was that the prisoner was suffering from a disease of the mind. Upon examination of the prisoner, he found that he could not give a sensible account of himself; he talked nonsense in response to simple questions put to him, he was irrelevant and distractable.

Dr. Forster formed the opinion that he was suffering from schizophrenia and explained that:

"Schizophrenia is what is usually described in the press as split personality: it is a type of mental disorder that affects the thinking, the feeling, the knowing and calling attitudes of the mind. It is a disease of the mind. A person suffering from schizophrenia is not responsible for his acts. It is possible that a person [p.788] suffering from schizophrenia can do an act without appreciating the nature and quality of what he has done, but he can remember what he has actually done. To him the act is so trivial that he can go and tell people about it immediately the act is committed. If a man was suffering from schizophrenia at the time or made a statement to the police then much importance ought not to be attached to that statement because he may make the statement and later not remember what had happened. It is difficult to identify this type of disorder at the early stages".

Cross-examination and questions by the court were directed only to the elucidation of some points in his evidence, and the prosecution did not challenge the opinion he had formed. No medical evidence was given by the prosecution in rebuttal. Dr. Forster is a man of great experience and an expert in matters relating to mental health.

The main ground of appeal argued by learned counsel for the appellant was that, "The learned trial judge misdirected the jury by holding that 'it is essential that the medical testimony should be unanimous for you to act upon it, and there should be no evidence the other way' ?".

In the course of the learned trial judge's summing up to the jury he said:

"Gentlemen, it is essential that the medical testimony should be unanimous for you to act upon it, and there should be no evidence the other way. But while medical evidence is important on the question of insanity you are entitled to take into account all the evidence, including the acts and statements of the accused and his demeanour. You are not bound to accept the medical evidence, if there is other material before you which, in your good judgment, conflicts with it and outweighs it.?"

In our opinion the learned trial judge fell in error in directing that the medical testimony should be unanimous. Dr. Alexander Lamptey Tawiah in his evidence had stated in unequivocal terms that he was not a psychiatrist, and therefore had no specialised knowledge of psychiatry, and the unchallenged evidence of the specialist psychiatrist remained the only evidence upon which the jury could act, and standing by itself as it did, it is difficult to discern upon what rule of law the learned trial judge so directed the jury as he did.

In R. v. Albert Edward Matheson,1 the Lord Chief Justice in the course of delivery of the judgment of the court said:

"While it has often been emphasised, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctor's evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence?' " .

Had the jury been properly directed as to the effect of the specialist psychiatrist's evidence, we have no doubt that the jury would inevitably have come to conclusion that the appellant was guilty but insane.

As we are satisfied that this is a case within the provision of section 52(2) of Criminal Code2 and on the evidence as a whole, this is a proper [p.789] case to which section 16(4) of the Courts Act, 1960,3 applies, we think that although the appellant was guilty of the offence charged against him, he was insane at the time the act was done so as not to be responsible according to law for his actions.

We therefore quash the sentence of death passed at the trial and order that the appellant be kept in custody as a criminal lunatic at the Mental Hospital, Accra, until the President's pleasure shall be known.


<P>Appeal allowed. </P> <P>Sentence substituted.</P>

Plaintiff / Appellant

P. D. Anin

Defendant / Respondent

K. Dua Sakyi with him Sarkodee


R. v. Matheson [1958] 1 W.L.R. 474; [1958] 2 All E.R. 87; 42 Cr.  App. R. 145, C.C.A.

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