ANGUYAN vs. REPUBLIC [1993]DLCA4903

Date	1993-12-02
Suit No.	[1992 – 1993] 3 G B R 997 – 1000
Citation No.	[1993]DLCA4903

AMUAH JA

BROBBEY JA

FORSTER JA

K A OCANSEY FOR THE APPELLANT.

MRS ANSON CHIEF STATE ATTORNEY FOR THE RESPONDENT.

[1993]DLCA4903
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													<main id="main" class="content" style="min-height: 60rem" >ANGUYAN<o:p></o:p>vs.<o:p></o:p>REPUBLIC<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 3 G B R 997 – 1000&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 2ND DECEMBER 1993<o:p></o:p>

MRS
ANSON, CHIEF STATE ATTORNEY, FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AMUAH
JA, BROBBEY JA, FORSTER JA<o:p></o:p>

</div>FORSTER JA. <o:p></o:p>On
8 July 1991 the appellant was convicted of the offence of murder by the High
Court Sunyani. The facts relied upon by the prosecution are that on 20 February
1988 the deceased, Yaw Ofori, then resident at Amona cottage near Kintampo went
to the farm in the company of his son, PW2. They discovered that somebody had
set fire to the farm. They saw a hunting gun and a hunting lamp that the
deceased suspected belonged to the person who might have set fire to the farm.
Later in the afternoon the appellant asked the deceased about the hunting
equipment and the deceased denied knowledge of it. The deceased then left the
farm in a displeased mood.<o:p></o:p>On
the following morning, the deceased left for the farm to see if the fire had
extinguished. He took along a cutlass and an Akasanoma radio. When, after some
time the deceased did not return, his mother and his brother, PW1, went out to
look for him. They found him dead in a path in the farm. He had several wounds
on his body. None of the equipment he had with him was found at the scene.<o:p></o:p>The
appellant had in the meantime disappeared from his cottage; in fact he went to
Burkina Fasso. He was later arrested by the police at Dapori and brought to
Kintampo. He made a statement on 2/7/88 and led the police to the spot where
the deceased lay and where he had concealed the cutlass and the radio belonging
to the deceased.<o:p></o:p>The
statement was admitted in evidence as exhibit D after a mini trial. In that
statement he said:<o:p></o:p>“As I strongly suspected the deceased
and his children to have stolen my hunting bag and the contents and as I had
not seen anything on them, I thought it wise to comb the area on the following
morning. After combing for the bag and its contents in the deceased’s farm in
vain, I decided to return home. Whilst returning to my cottage I met the
deceased going to his farm. He was holding a wireless set and a cutlass. The
deceased asked me what I was after in his farm. I replied... As I was about to
by-pass him, he attempted to slash me with the cutlass and missed his target.
The cutlass fell on the ground. I gave him a blow and he fell down. I quickly
picked the deceased’s own cutlass from the ground and lynched (slashed) him to
death. He was on the verge of death. I left him and took the cutlass and the
wireless set and hid them on the top of some rocks at the area.”<o:p></o:p>In
his evidence at the trial, the appellant gave essentially a different version
of the confrontation. He said after some verbal exchange between him and the
deceased:<o:p></o:p>“Yaw Ofori tried to strike me with his
cutlass. I had nothing on hand. I dodged when he tried to wound me with the
cutlass; the cutlass fell on the ground. I realised that he wanted to kill me.
I ran to where the cutlass was and picked it. Yaw Ofori ran and grabbed me and
we started struggling. We both landed on the ground. We struggled on the ground
and I was able to pick the cutlass. I got up and retreated but he got up and
tried to grab me again. I realised that if he had the cutlass he would kill me.
I slashed him with the cutlass and he fell on the ground. He wanted to get up
but he could not get up. I then left Yaw Ofori’s farm.”<o:p></o:p>It
is quite clear that on the essential issue with respect to the circumstances in
which the appellant inflicted the mortal wounds on the deceased, his statement
to the police on 3/3/88, some 14 days after the incident, was in conflict with
his evidence given on 3/7/91, some three years later. This conflict was not
lost on the trial judge. In his summing-up, he asked the jury to consider his
testimony to be a lie. However, and quite commendably, he warned them that even
so the lie “[did] not absolve the prosecution from the duty of affirmatively
proving the prisoner’s guilt beyond reasonable doubt.”<o:p></o:p>The
jury who heard and saw the appellant must have rejected the evidence of the
appellant as a fabrication and a lie.<o:p></o:p>Counsel
for the appellant contended that the summing-up failed to put the defence of
self-defence to the jury and thereby occasioned a substantial miscarriage of
justice. Counsel relied on Republic v Abisa Grunshie (1955) 1 WALR 36, State v
Ampoma [1960] GLR 262, SC and Lamptey alias Morocco v Republic [1974] 1 GLR
165, CA. These authorities hold that where the summing-up omits to put the
defence of the accused to the jury, that is misdirection by non-direction the
conviction may be quashed on appeal.<o:p></o:p>But
what is misdirection? As was explained by Brett MR in Abrath v North Eastern
Railway Co (1883) 11 QBD 440 at p 453:<o:p></o:p>“… there is no misdirection, unless
the judge 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>In
his summing-up the judge drew the attention of the jury to the defence of the
appellant; “that he killed Yaw Ofori because he found that his life was in
immediate danger and all that he could do to was to defend himself; that was
how he acted.” Further on, he said:<o:p></o:p>“If you, the jury, feel sure that the
harm caused to Yaw Ofori was unlawful then you have to go further to examine
whether or not the accused was justified in causing that harm. If you feel that
the accused acted in self-defence then your verdict should be ‘not guilty of
murder’.”<o:p></o:p>