AKORFUL vs. THE STATE [1963]DLSC1913

Date	1963-11-01
Suit No.
Citation No.	[1963]DLSC1913

CRABBE JSC

MILLS-ODOI JSC

BLAY JSC

PUPLAMPU FOR THE APPELLANT

D.F. ANNAN

SENIOR STATE ATTORNEY

FOR THE RESPONDENT

[1963]DLSC1913
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AKORFUL

[SUPREME COURT]

[1963] 2 GLR 371

DATE: 1ST NOVEMBER, 1963.

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COUNSEL:&nbsp;&nbsp;

PUPLAMPU
FOR THE APPELLANT.

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CRABBE, MILLS-ODOI AND BLAY
JJ.S.C.

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&nbsp;

Crabbe J.S.C. delivered the judgment of the court. The appellant
was convicted before Sowah J., sitting with a jury in the Criminal Sessions at
Cape Coast on the 30th November, 1962. The offence charged against him was that
he, on the 29th September, 1962, at Essiam in the Central Region, murdered one
Kofi Buabeng.

It was not disputed that the death of the deceased was caused by
the act of the appellant, and the sole issue at the trial was whether the
killing was intentional.

The appellant was the only eye-witness and after he had
surrendered himself to the police on the same day he made the following
statement:

“Today at about 1.00 a.m. I heard my dog barking. I woke up and
heard someone trying to force open my window. I got up, took my gun and went
out; but I did not see anybody, I went to the street and stood near Kojo
Abiri’s store. I was there when I saw someone coming from the direction of the
latrine. I challenged the party as to whom he was, but the party did not
answer. I challenged him again, but the party did not answer again. I,
therefore, shot at the party. The man started screaming. I questioned him and
he said it was he Kofi Buabeng. I asked him where he was going at this hour but
he did not answer me. I was there when someone whom I could not identify came
and I left for my house. I later went to Local Authority Police Station at
Nkwantanum and reported the matter to the police.”

The appellant’s evidence in examination-in-chief was, as appears
to this court, an elaboration of his earlier statement to the police. He said,

In a summing-up to the jury which, with respect to the learned
trail judge, appears to us to be not only perfunctory but seriously defective in
several respects, the jury were directed on the cardinal issue of intention in
a manner as contained in the learned judge’s notes as follows:

“Explains intention, informing them that the test is objective.
The jury will have to consider the explanations given by the accused along with
other facts brought before them. Intention as far as the courts are concerned
is inferred from one’s conduct or action. Explains, if A. takes a gun which is
loaded and shoots towards B. the reasonable man standing will infer that A.
intends to shoot at B. and it does not matter what B. says or thinks if the
ordinary reasonable thinking man will infer from A.’s conduct intention to
shoot. Thus again in a football match, if in a scramble for a football one
player falls on the ground and while the ball is not there, or has been moved
away, a player from the other side kicks him while he is on the ground, the
ordinary football spectator will infer that he intended to kick the player
lying on the ground, in spite of what the person kicking would say and if
injury follows, the law will say he intends to harm the man he kicked.”

This direction on the reasonable man test is obviously based on
the much-criticised and, if we may say so with respect, the unsatisfactory
decision in D.P.P. v. Smith1 which approved the earlier ruling in R. v. Ward.2
The effect of the decision in the Smith’s case (supra) is that once a jury in a
murder trial are satisfied that the accused was unlawfully and voluntarily
doing something to someone, it matters not what he, in fact, contemplated as
the probable result of his act.

In our view D.P.P. v. Smith (supra) is not an authority on the law
of murder in this country, and by directing the jury to apply an objective test
the learned trial judge seriously misdirected the jury on the only issue before
them. What the learned trial judge in effect told the jury was that once they
were satisfied that a reasonable man in the circumstances of the appellant
would appreciate the consequences of his act</main>