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THE STATE v. MOSHIE


  • appeal
  • 1960-11-25
  • SUPREME COURT
  • GLR 222-223
  • Print

VAN LARE, SARKODEE-ADDO AND AKIWUMI, JJ.S.C.


Summary

Criminal Law?-Murder?-Summing-up?-Issues should not be left to jury if unsupported by any evidence.

Headnotes

The appellant was convicted of murder. In his summing-up to the jury, the trial judge dealt at length with such matters as self-defence, provocation and death during an unlawful fight, matters which, on the evidence in the case, were neither in issue nor in any way relevant.

Judgement

APPEAL from a conviction of murder before Charles, J. sitting with a jury at Sekondi Assizes on February 24, 1960. The appeal was dismissed.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo J.S.C. delivered the judgment of the court: We dismissed this appeal against conviction for murder and now give our reasons. [p.223]

The offence charged against the appellant was that he on the 29th August, 1959, at Koradaso Village near Begoro murdered one Kwame Affum alias Kwame Affunti, and in the opinion of this court there was no substance in any of the grounds argued in support of the contention that the conviction should be quashed. The appellant was seen viciously slashing the deceased with a cutlass and according to the medical evidence at the trial there were found 21 incised wounds; indeed the evidence is such that there can be no doubt that the appellant clearly intended to kill the deceased in circumstances in which no matters of provocation or self-defence could possibly arise and no reasonable jury could have arrived at any other conclusion but the verdict in this case.

We have however been much concerned with, and perturbed by, the scope and trend of the learned trial judge's summing-up which unduly and unnecessarily went to the extent of dealing at length with such matters as self-defence, provocation and death in an unlawful fight, which were not in issue nor in any way relevant.

Irrelevant and unjustified as these matters are, having regard to the evidence, even though the jury came to a proper decision in the case, we nevertheless think it necessary to refer to the possibility of a miscarriage of justice in setting a guilty person free. We cannot over-emphasise the danger arising from such undue and needless resort to irrelevancies in so important a trial of a capital charge.

In the administration of justice, properly so called, the law must be applicable to the facts in issue and not to hypothetical imaginations or illusions. The principles of summing-up are well-established and indeed settled on the authorities. A review or resume of the principles and the decided cases thereon are unnecessary for the purpose of these observations but suffice it to state in that connection that a judge may go through and comment on the evidence given and should direct on the law relating to the case and not otherwise. In the absence of evidence it is the duty of a judge in a jury trial to direct that certain defences as a matter of law do not or cannot arise in the particular case.

In conclusion we refer to the judgment in the case of Regina v. Zimbore Grunshie [1960] G.L.R. 56 where this court referred to a summing-up which appeared to have been at fault not against the appellant but rather went too far in his favour. In that case we pointed out the importance of such a situation and referred to the possibility that in view of the summing-up the jury could have been misled to return a verdict which was not in law open to them. This exactly is the position in this case.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Tamakloe

Defendant / Respondent

Amissah

Referals

Regina v. Grunshie. [1960] G.L.R. 56

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