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THE STATE v. AYI GRUNSHIE


  • appeal
  • 1961-11-06
  • SUPREME COURT
  • GLR 633-637
  • Print

VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN JJ.S.C.


Summary

Criminal law and procedure?-Homicide?-Manslaughter?-Requirements necessary for plea of provocation by assault?-Criminal Code, Cap. 9 (1951 Rev.) s. 251 (1).

Headnotes

At the trial of the accused for murder, the learned judge in an otherwise faultless summing-up which dealt in detail with the defences of self-defence and provocation, gave the following final direction on the subject of provocation:?"Gentlemen, if you believe the accused that he was struck by a pellet from a gun of the deceased, that would be an assault upon him. It is entirely for you to say whether this assault made the accused act from such terror of immediate death or grievous harm, as to deprive an ordinary person of the community to which the accused belongs of his power of self-control. If you think so, you should return a verdict of manslaughter.?"The accused was convicted of murder, and appealed to the Supreme Court on the ground that the jury had been misdirected since under section 251 (1) of the Criminal Code, Cap. 9 (1951 Rev.) which dealt with provocation by assault, it was not necessary for the assault to put the accused in terror of death or grievous harm before his retaliatory act in killing his assailant could be reduced to manslaughter.Section 251 (1) provided:?"An unlawful assault . . . committed upon the accused person by the [p.634] other person . . . is of such a kind, either in respect of its violence or by reason of accompanying words, gestures, or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which accused was, of the power of self-control?".

Judgement

APPEAL against a conviction of murder by Crabbe, J. sitting with a jury on the 17th November, 1960, at the High Court, Sunyani. The facts are fully set out in the judgment.

JUDGMENT OF ADUMUA?-BOSSMAN J.S.C.

Adumua-Bossman, J.S.C. delivered the judgment of the court. This appeal is against a conviction of the appellant on the charge of the murder of one Salifu Moshie on 17th November, 1960, by Crabbe, J. sitting with a jury. The prosecution's case, depending almost entirely on the evidence of the first prosecution witness, Kwabena Nimoh (who will hereafter be referred to shortly as Nimoh), was to the effect following:

That at about 8 p.m. on the fateful Wednesday, he and the deceased went hunting at night in the bush near a village called Amankenan in the Tanoso area, he, Nimoh, carrying only a cutlass, whilst the deceased carried a gun and had the usual local hunter's head-light strapped on to his forehead. In the bush, at the deceased's request he (Nimoh) stood at a certain spot and the deceased moved about 20 yards away. Suddenly Nimoh heard the report of a gun, followed by a voice which asked: "Who is that, who fired the gun?"; he then heard the deceased reply "It's I", and the other voice called out "Grunshie", as if enquiring if it was Grunshie who was speaking from the other side. The deceased received an affirmative reply, whereupon he called out "I'm coming to look at you". Up to that stage the conversation between the deceased and the person who answered to the name Grunshie, was carried on in Twi to the comprehension of Nimoh, but as the deceased appeared to advance to go and carry out his declared intention of looking at the man Grunshie, the conversation changed into a language which he (Nimoh) could not understand. Nimoh then heard the report of another gun, followed by the shout of the deceased now in Twi comprehensible to him, "I've been killed"; he then saw a light approaching in his direction and took [p.635] cover, and as he did so, he saw a man with a hunting light strapped to his forehead pass by, whom he recognised as the appellant. After the appellant had passed and gone away, he (Nimoh) heard the deceased calling for him and he went and found him mortally wounded; he also found the deceased's gun, broken into two pieces lying near him. He could not carry the deceased and had to leave him where he was and travel to the village to report, but by the time he and other villagers returned to where he left the deceased they found him lifeless. Meanwhile from the scene of the incident the appellant appeared to have returned to his cottage, and thither Nimoh led the elders and others of the villagers, after they had seen the corpse of the deceased, to find him. On the appellant being asked if it was true as reported by Nimoh that he shot the deceased, he replied "Yes, it's correct". He was then apprehended by the villagers, and in due course turned over to the police at Techiman. He made a cautioned statement to the police in which he said:

?"On Wednesday 16th November, 1960, during the night I took my gun and went out hunting. In the bush I saw a hunting light facing me. I was then shot by an unknown man. I shouted 'Who are you?' The deceased also said 'Who are you?' The deceased then drew near me with a cutlass. The deceased tried to kill me with the cutlass, so I became afraid and shot him with my gun. He fell down and died at the spot. I then went to my cottage. I did not tell anybody about the incident."

In his evidence at the trial, however, he varied his explanation slightly The crucial part of his evidence at the trial was:

"I was hit by some of the pellets when the man fired at me (Accused shows the jury the part of his body that was hit). I saw that man draw a cutlass and was advancing towards me. I was at the time sitting on the ground. I overheard another voice telling deceased to stab me if he got near me. I feared that if that man came near me he would kill me with the cutlass, and so I fired at him. I then got up and ran home."

It is clear that whilst the main defence relied on by the appellant was that of self-defence, the evidence as a whole, particularly the part as to his having been hit by some of the pellets from the first gun-shot followed by the exchange of words in a language unintelligible to the witness Nimoh, gave grounds for the consideration of an alternative defence of killing under provocation, and placed upon the learned trial judge the obligation of directing the jury on the question of provocation such as will in law be sufficient to reduce the offence of murder to manslaughter. So in Mancini v. Director of Public Prosecutions1 Simon, L.C. explained that:

?"Although the appellant's case at the trial was in substance . . . self-defence . . . it was undoubtedly the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given?".

Lord Goddard, C.J. in Kwaku Mensah v. The King2 also gave similar explanation when he said:

?"It does not appear that any attempt was made in either of the Courts below to argue that there was sufficient provocation to reduce the crime to manslaughter, [p.636] and indeed as the defence relied on was one of accidental killing it is not surprising that counsel for the prisoner did not attempt to set up what would appear to be inconsistent with that defence. But if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the Judge must put that question to the jury."

The learned trial judge was fully aware of this, and therefore after a commendably detailed and faultless summing-up on the question of self-defence, passed on to deal with the question of provocation, commencing with that part of the summing-up as follows:

?"if you do not think that the plea of self-defence is reasonably probable and therefore reject it, you still have to consider whether the killing was the result of sudden passion involving loss of self-control (Section 250 of Cap. 9 read and explained)?".

The learned judge continued:

?"Matters which in law amount to extreme provocation are contained in section 251 of Cap. 9. (Section 251 of Cap. 9 read and explained). There are, however, certain cases in which though there is evidence of such matters of extreme provocation, the law excludes the benefit of such provocation. Such cases are mentioned in section 252 (1) and (2) of Cap. 9 (read and explained)?".

Had the learned judge at this stage concluded his direction on the subject of provocation, no exception could legitimately be taken to his summing-up. He, however, proceeded to give the following final direction on the subject of provocation: "Gentlemen, if you believe the accused that he was struck by a pellet from the gun of deceased , that would be an assault on him". Pausing here?-counsel for the appellant had no fault to find with this latter direction also. He, however, complained against the following further direction:

?"It is entirely for you to say whether this assault made the accused act from such terror of immediate death or grievous harm, as to deprive an ordinary person of the community to which the accused belongs of his power of self-control. If you think so, you should return a verdict of manslaughter;?"

and we are of the opinion that his complaint is well-founded because, as pointed out, and it seems obvious enough, it is not correct that an assault must put the prisoner in such terror of immediate death or of grievous harm, before the prisoner's retaliatory act in killing the person who committed the assault on him, can be reduced to manslaughter. The learned judge who had been giving a good deal of his thought and attention to directing on the requirements necessary to exonerate completely a prisoner who sets up a plea of self-defence, appears to have allowed his thoughts about the requirements of self-defence to intrude into and become mixed-up with his thoughts about the requirements of provocation. He himself had earlier called attention to the provisions of section 251 (1) of the Criminal Code3 by which all that is necessary, in respect of provocation by assault committed by the deceased on the prisoner, is that:

?"An unlawful assault committed upon the accused person by the other person is of such a kind, either in respect of its violence or by reason of [p.637] accompanying words, gestures, or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which accused was, of the power of self-control".

In the terms in which the learned judge directed the jury he directed them to look for a much more serious result of an assault (i.e. a result whereby the prisoner is in terror of immediate death or grievous harm) than is in fact prescribed by the law as the only circumstance which would entitle then to return a verdict of manslaughter, and it is clear he thereby gravely erred, however inadvertently. The result of this type of misdirection as Lord Goddard, C.J. observed in the Kwaku Mensah v. The King4 is that it becomes:

?"impossible to say what verdict would have been returned had the case been left to the jury with the proper direction. In these circumstances it is proper to take the course followed by the Court of Criminal Appeal in Hopper's Case [(1915) 2 K.B. 431] and substitute for the jury's verdict one for the lesser offence.?"

We therefore set aside the conviction and sentence for murder, and in place thereof substitute a conviction for manslaughter and sentence the appellant to 10 years I.H.L.

Decision

<P>Appeal allowed.</P> <P>Conviction for manslaughter substi

Plaintiff / Appellant

C. E. Coussey

Defendant / Respondent

K. Dua Sakyi with him Sarkodee

Referals

(1)  Mancini v. Director of Public Prosecutions [1942] A.C. 1

(2)  Kwaku Mensah v. The King (1945) 11 W.A.C.A. 2

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