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THE STATE v. AFENUVOR


  • 1961-11-13
  • SUPREME COURT
  • GLR 655-662
  • Print

SARKODEE-ADOO, ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.


Summary

Criminal law and procedureBurden of proof resting on prosecutionBurden of proof resting on defenceAdequacy of summing-upUse of such phrases as "reasonably sure" and "you must be satisfied"Dual meaning of "burden of proof?"

Headnotes

The appellant was convicted of murder. On appeal to the Supreme Court against conviction it was argued that the trial judge "gave conflicting directions on the burden of proof resting upon the prosecution and that this amounts to misdirection". Exception was taken to the use of the phrase "to prove and substantiate the charge to your satisfaction", on the ground that it did not sufficiently instruct the jury as to the high standard of proof the prosecution must satisfy in criminal matters. It was also submitted that "the learned judge omitted all reference to the burden of proof resting upon the defence and that this amounts to misdirection?".

Judgement

APPEAL from conviction for murder by Prempeh, J. sitting with a jury in the High Court, Ho, on the 19th October, 1960.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

Adumua Bossman J.S.C. delivered the judgment of the court. [His lordship narrated the facts and continued:] In this appeal against conviction [p.657] for murder complaint is made as to the manner in which the learned trial judge directed the jury, and it is contended firstly, that he: "gave conflicting directions on the burden of proof resting upon the prosecution and this amounts to misdirection"; and secondly, that he "omitted all reference to the burden of proof resting upon the defence, and this amounts to misdirection."

Developing the first contention, learned counsel referred to the portion of the learned trial judge's summing-up where he said:

"In giving you explanations as to the law involved, I am required to instruct you about the most important guiding rules. The first is this and it is most important, that the prisoner before us is deemed completely innocent until the contrary is proved; and therefore it has been the duty and obligation of the prosecution, from the outset of the trial, to prove and substantiate the charge against the prisoner to your satisfaction."

Counsel quarrels with and takes exception to the phrase "to prove and substantiate the charge to your satisfaction", because he contends that the direction in those terms does not adequately or sufficiently enough instruct the jury as to the high standard of proof which is now established to be required of the prosecution in its effort to discharge the burden of proof in a criminal prosecution. Counsel went on to express reliance on R. v. Hepworth and Fearnley1 and Hornal v. Neuberger Products Ltd.2 and three recent decisions of the Court of Criminal Appeal in England namely, R. v. Head and Warrener,3 R. v. Manning4 and R. v. Hadjimitsis.5

It is necessary to make a speedy examination of these authorities relied on in order to ascertain not only the ratio decidendi in each case, but also whether or not they support learned counsel's contentions.

In R. v. Hepworth and Fearnley (coram Lord Goddard, C.J. and Finnemore and Devlin, JJ.) the complaint upheld by the court was that: "The summing-up was unsatisfactory in the manner in which it dealt with the burden of proof . . . He [the recorder] merely told the jury not to convict unless they were 'satisfied' of certain facts."

Lord Goddard, C.J. in the course of his judgment said as follows:

"Another complaint that is made in this case is that the Recorder used only the word 'satisfied'. It may be, especially in view of the number of cases recently in which this question has arisen, that I misled courts when I said in Summers (1952) 36 Cr. App. R. 14 at 15, . . . that I think it is very unfortunate to talk to juries about reasonable doubt, because the explanations given of what is and what is not reasonable doubt are so very often extraordinarily difficult to follow and it is very difficult to tell a jury what is a reasonable doubt I therefore, suggested in that case that it would be better to use some other expression, by which I meant that it should be conveyed to the jury that they should convict only if they felt sure of the guilt of the accused. In some cases the word ?'satisfied?' has been used. It is said that the jury in a civil case has to be satisfied and therefore, one is laying down only the same standard of proof in a civil case . . . therefore, one would be [p.658] on safe ground if one said in a criminal case to a jury: 'You must be satisfied beyond reasonable doubt'; and one could also say: 'You must be completely satisfied' or better still: 'You must feel sure of the prisoner's guilt'. But I desire to repeat what I said in the case of Kritz (33 Cr. App. R. 169 at p. 177): 'It is not the particular formula of words that matters; it is the effect of the summing-up. If the jury are charged whether in one set of words or in another and are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence' that is enough. I should be very sorry if it were thought that cases should depend on the use of a particular formula or particular word or words. The point is that the jury should be directed first, that the onus is always on the prosecution; secondly, that before they convict they must feel sure of the prisoner's guilt. If that is done, that is enough.

Comment has been made on the use by the learned Recorder of the word 'satisfied' only in this case, and we have come to the conclusion that the summing-up was not satisfactory; but again I emphasize that this is a receiving case and in a receiving case it is always more important that the onus of proof should be stressed because there are different views which may be taken of the explanation the prisoner may give.

I hope it will not be thought that we are laying down any particular form of words which must be used but we are saying it is desirable that something more should be said than merely telling the jury they must be 'satisfied'6

In R. v. Head and Warrener, the appellants, convicted at quarter sessions for receiving a radio set knowing it to have been stolen, appealed to the Court of Criminal Appeal (Ashworth, Salmon and Elwes, JJ.) on the grounds of unsatisfactory direction as to the burden of proof in the following terms:

?"it is always the duty of the prosecution to prove their case so that you are reasonably sure of the accused's guilt before you convict him . . . I put it to you clearer, that you must be so reasonably surethat means you must not be absolutely positive so that there can be no doubt. You must apply your common sense to this matter.?"7

It was held, allowing the appeals, that it was not right to direct a jury that they must be "reasonably sure". That imported a standard of certainty below that which was conveyed by the now established direction that the jury must be satisfied so that they felt sure.

In respect of an addendum at the end of the summing-up when the recorder said, "If you have any reasonable doubt about it, if you believe their story, if you think they did not know it was stolen, then of course, you will find them not guilty," the appeal court observed that that final direction undoubtedly did something to repair the earlier misdirection, but the court went on to hold that it was of crucial importance that the direction as to the burden of proof and as to the standard of proof, should be given in clear terms. Accordingly the appeals were allowed.

In R. v. Manning,8 a conviction at borough sessions for driving under the influence of drink against which the appellant appealed to the Court of Criminal Appeal (Lord Parker, C.J., Finnemore and Howard, L.JJ.) one ground was that the recorder failed to direct the jury as to the degree of proof required. It appeared the recorder told the jury that it was never [p.659] for the prisoner to prove his innocence. Nevertheless, in dealing with what amounted to proof, throughout he used the words, "You must be satisfied" without indicating what degree of satisfaction was required in a criminal case. The complaint that there was misdirection was sustained. Then in R. v. Hadjimitsis,9 a conviction for robbery while armed, the principal witness for the prosecution was a woman whose evidence was to the effect that she had been tied up and robbed by a masked man with a pistol; that during the course of the struggle she had pulled away the mask and was able to recognise the appellant as her assailant. The defence was an alibi and an allegation that her story was false.

On appeal to the Court of Criminal Appeal (Lord Parker, C.J. Ashworth and Salmon, JJ.) it was held that the case was one which called for a very careful summing-up; that although the trial judge had properly directed the jury that it was for the prosecution to prove the appellant guilty and not for the appellant to prove his innocence, nevertheless there was no statement in the summing-up as to the degree of proof required except:

"Have the Crown proved to your satisfaction that it is so?" That it would have been much better for the judge to have said what degree of satisfaction was required, for example, that the jury must be satisfied beyond reasonable doubt, or so that they felt sure the prisoner was guilty, The appellant's conviction was accordingly quashed.

In Hornal v. Neuberger Products Ltd.10 a civil action for damages for fraud which came on appeal before the Court of Appeal (Denning, Hodson and Morris, L. JJ.) there was a valuable discussion of the difference in the standards of proof in civil as opposed to criminal cases, and references to some of the important authorities relating to the two different standards; and, for our purposes, the point was stressed that the law is now settled that in a criminal prosecution it is the higher standard of proof that is required. Denning, L.J. speaks of the trial judge having:

?"reviewed all the cases and held rightly that the standard of proof depends on the nature of the issue. The more serious the allegation the higher the degree of probability that is required; but it need not, in a civil case, reach the very high standard required by the criminal law.?"11

Hodson, L.J. speaks of there being: "in truth no great gulf fixed between balance of probability and proof beyond reasonable doubt . . . when there is a criminal prosecution the latter standard is securely fixed in our law". Finally, Morris, L.J. states that:

?"In a criminal case a jury must be directed that the onus is all the time on the prosecution and that before they convict they must feel sure of the accused's guilt. Authoritative guidance in regard to directing juries in criminal cases is to be found in the judgment of Lord Goddard, C.J. in R. v. Hepworth, R. v. Fearnley (1955) 2 All E.R. 918, and in other cases. It has, however, been emphasized that what is vital is not the mere using of some particular formula of words, but the effect of a summing-up in giving true guidance as to the right approach.?"12

[p.660]

From the authorities therefore it appears sufficiently clear that it is in respect of a standard of proof whereby they are not merely "satisfied" but either "satisfied beyond reasonable doubt" or "completely and entirely satisfied" or "satisfied as to be quite sure", of the prisoner's guilt, he that the jury have to be directed or instructed in or by the summing-up. Learned counsel's arguments to that effect therefore are obviously well-founded. Is his further argument that by the terms of the learned trial judge's summing-up he failed to direct or instruct as to that prescribed standard of proof, also correct or well-founded? We think not, for here, we think his argument breaks down. In a commendably detailed, and seemingly instructive summing-up by the learned judge, counsel is compelled to pick only on the phrase to which we have already made reference, namely, "To prove and substantiate the charge against the prisoner to your satisfaction". But it does not seem to us, in the first place, that the phrase can be divorced or dissociated from the final phrase in that paragraph, "by means of the clearest possible and convincing evidence". The two phrases taken together are quite obviously capable of the interpretation and meaning that there is a duty and obligation on the prosecution to prove and substantiate the charge to the jury's satisfaction so that they are convinced of the prisoner's guiltif effect must be given to the words "by means of convincing evidence". Moreover the scope of the rule as to the standard of proof is further explained and illustrated by reference to the authoritative Woolmington formula.13 Learned counsel conceded this, but argued that the first direction being in wrong terms, the subsequent correct direction would not cure the defect, as was held in R. v. Head and Warrener (supra). But it appears clear to us that there is a radical difference between such an obvious misdirection to a jury to be "reasonably sure you must not be absolutely, positively so" as was given in R. v. Head and Warrener, and a plainly good direction that they should expect the prosecution to prove the charge to their satisfaction with evidence which must convince them, as in the case before us. Indeed, it seems to us that the second and concluding portion of the learned trial judge's direction as to the standard of proof has been so strongly and forcefully worded, that it is impossible for anybody reading the two parts together to have any misapprehensions whatsoever about the instruction intended to be given to the jury.

Finally it seems to us only necessary in respect of learned counsel's first contention to refer to Lord Goddard, C.J.'s dictum in R. v. Kritz14 cited in R. v. Hepworth and Fearnley to which we have already referred; and the dictum of Morris, L.J. in Hornal v. Neuberger Products Ltd. referred to supra that: "It has, however, been emphasized that what is vital is not the mere using of some particular formula of words but the effect of a summing-up [as a whole] in giving guidance as to the right approach?"15.

Turning now to the second contention of counsel on behalf of the appellant, it was that "the learned judge omitted all reference to the [p.661] burden of proof resting upon the defence and this amounts to misdirection". Learned counsel's use of the phrase "burden of proof resting upon the defence" reminds us of the two senses in which the expression "burden of proof" can be and is used, as pointed out by Blackall P. in Akosa v. C.O.P.16 and Korsah, C.J. in Isaac Cobbina Antwi v. C.O.P.17 In the latter case the learned Chief Justice explained that: ?-

?"Burden of proof . . . is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests upon the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.?"

The learned Chief Justice to clarify still further his explanation of this second sense in which the expression "burden of proof " is used and explain the circumstance under which it arises, referred to Archbold (34th ed.) p. 371, para. 1001 where the circumstance is explained in the following terms: ?-

?"Where the prosecution gives some prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which rests upon them.?"

It seems obvious that it is in this second sense of the introduction of evidence or the discharge of an evidentiary burden that counsel used the expression "burden of proof resting upon the defence" in his second ground of arguments. His complaint in this connection was also that the learned judge did not direct as to the standard, and that he did not direct the jury that in respect of the appellant's evidence or case as a whole they need not be convinced of it beyond reasonable doubt as they had to be in respect of the prosecution's case, but that it would be sufficient, if they considered it (i.e. the appellant's case as sought to be proved by the evidence adduced on his behalf) to be probable.

It seems to us, however, that the contention, in point of fact, is inaccurate, and that the learned judge gave the necessary direction as to the standard of proof in respect of the appellant's case. As already indicated earlier in this judgment the appellant's case, (which was that as the chair on which he sat was pulled down and he fell on the ground face upwards, the deceased came and held him down and held and pulled his male organ thereby causing him severe pain) was substantially a defence of provocation. In respect of this defence we find the learned judge directing, after reviewing the evidence of the appellant in great detail, as follows: "You are not to convict because you think the accused has told lies.

[p.662]

The evidence of the accused which tends to show that he was provoked, should be viewed in all aspects favourable to him?". Still later in the summing-up, we find him directing a second time that:

?"If upon a review of all the evidence in the case you are left in reasonable doubt, whether (even if the explanation of the accused is not accepted) the act which resulted in the killing was provoked the accused is entitled to be acquitted of murder, and the offence reduced to manslaughter.?"

We have felt bound to underline the words "even if the explanation of the accused is not accepted" by way of drawing attention of their importance and significance in the consideration of counsel's suggestion that the jury were not directed in respect of a lower standard of proof in respect of the appellant's evidence as a whole. Those words obviously refute the charge against the learned judge.

Finally we find the learned judge repeating and stressing his direction about the appellant's case a third and last time just coming to the end of his summing-up as follows: "If you are in doubt whether such circumstances show sufficient provocation, then you are entitled to return a verdict of guilty of manslaughter and not murder". We are satisfied therefore that far from being in anyway unfavourable to the appellant, the summing-up if anything erred rather in the direction of being too favourable to him, and the complaints against the summing-up are not justified. For the foregoing reasons we hereby dismiss the appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Appellant in person.

Defendant / Respondent

K. Dua Sakyi with him Sarkodee

Referals

(1)  R. v. Hepworth and Fearnley [1955] 2 Q.B.60; [1955] 2 All E.R.918; 39 Cr.  App.  R. 152, C.C.A.

(2)  Hornal v. Neuberger Products Ltd. [1957]1 Q.B. 247; [1956] 3 All E.R. 970. C.A.

(3)  R. v. Head and Warrener (1961) 45 Cr.  App.  R. 225; 105 S.J. 552 C.C.A.

(4)  R v. Manning [1961] Crim.  L.R. 561

(5)  R. v. Hadjimitsis [1961] Crim.  L.R. 563

(6)  Woolmington v. D.P.P. [1935] A.C. 462, H.L.

(7)  R. v. Kritz [1950] 1 K.B. 82; [1949] 2 All E.R. 406; 33 Cr.  App. R.169, C.C.A.

(8)  Akoso v. C.O.P. (1950) 13 W.A.C.A. 43

(9)  Antwi v. C.O.P. [1961] G.L.R. 408

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