THE STATE vs. NYAVIE AND OFORI [1962]DLSC1728

Date	1962-03-16
Suit No.
Citation No.	[1962]DLSC1728

VAN LARE JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN J.S.C.

KOI LARBI FOR THE FIRST APPELLANT.

K. NARAYAN FOR THE SECOND APPELLANT.

K. DUA SAKYI D.P.P. WITH HIM GYEKE-DARKO FOR THE RESPONDENT (THE STATE).

[1962]DLSC1728
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">THE STATE <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NYAVIE AND OFORI <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 174<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 16TH MARCH, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KOI
LARBI FOR THE FIRST APPELLANT.<o:p></o:p>

K.
NARAYAN FOR THE SECOND APPELLANT.<o:p></o:p>

K.
DUA SAKYI, D.P.P. WITH HIM GYEKE-DARKO FOR THE RESPONDENT (THE STATE).<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

VAN LARE, SARKODEE-ADOO AND
ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN
LARE J.S.C.<o:p></o:p>Van Lare J.S.C. delivered the judgment of the court. [He outlined
the facts and continued:] The learned trial judge in his summing-up summarised
the case for the prosecution, then proceeded to refer to the defence of the
appellants as if the respective defences of both were one and the same or
identical; he further made no effort to point out to the jury the
considerations to bear in mind in deciding whether or not to believe one side
or the other, and apparently gave them but little assistance towards having a
critical approach in respect of the material or relevant issues in the case. It
is true the facts are simple and in no way complicated, but trial judges
usually endeavour in most cases to direct the jury’s attention to the salient
features of the evidence for and against the accused. After a summary of the
bare facts in this case the judge went on:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“This is the short history of the case put before you for your
consideration. It is a question of fact for you to decide as to the case made
by the defence and that for the prosecution from which you are asked by the
defence to say what ‘they’ did was in self-defence and therefore they ask you
for a verdict of an acquittal.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">I have to remind you and point out to you that if you accept the
defence of self-defence your verdict must be an acquittal. If you think that
the accused persons were so provoked that they have lost self control and did
fire the gun under an extreme provocation then the crime should be reduced to
manslaughter. Again if you have doubt in the case for the prosecution, it is
your duty to set them free upon the verdict of not guilty.”<o:p></o:p>We cannot pretend that the summing-up in this case is a model one,
but we have been referred to the recent case of R. v. Joseph Albert
Attfield,1(1) where the following appears:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“No case has laid down, so far as we are aware, that it is
essential for the validity of a summing-up that there should be a reference to
the evidence, but equally there is no case that, so to speak, absolves a court
from what is normally its function of assisting the jury by dealing with the
evidence. Some assistance is to be gained from a passage cited in Stoddart
(1909) 2 Cr. App. R. 217. In that case a trial had taken place over a period of
twenty days, and there was an omission to direct the jury upon many of the no
doubt complex issues which had been considered in the course of it, but this
court at p. 246 cited Lord Esher’s words in Abrath v. North Eastern Ry. (1883)
11 Q.B.D. 440, at p. 452, as follows: ‘It is no misdirection not to tell the
jury everything which might have been told them. Again, there is no
misdirection unless the judge has told them something wrong or unless what he
has told them would make wrong that which he has left them to understand.
Non-direction merely is not misdirection, and those who allege misdirection
must show that something wrong was said or that something was said which would
make wrong that which was left to be understood.”<o:p></o:p><o:p>&nbsp;</o:p>Adopting this principle of law we think that in this case as far
as the first appellant is concerned, by their verdict the jury accepted the
evidence for the prosecution that the deceased was killed by the first
appellant by firing a gun at him without any just cause or any form of
provocation in law and rejected the defence of self-defence that the first
appellant fired his gun while running away and being chased by the men
including the deceased. We further think that even if the facts as represented by
the first appellant were true, the defence of self-defence would not be open to
him in law because the facts do not constitute a case of extreme necessity to
justify killing in self-defence. He said that while running away he became “fed
up” and, as he thought, that his life was in danger but not that there was no
longer any means of escaping his supposed assailants, he fired at a range of
about 15 yards killing the deceased.<o:p></o:p>