ODUPONG vs. REPUBLIC [1993]DLCA4971

Date	1993-06-24
Suit No.	[1992 – 1993] 3 G B R 1028 – 1048 C.A
Citation No.	[1993]DLCA4971

AMUAH JA

BROBBEY JA

FORSTER JA

G W MENSAH FOR THE APPELLANT.

JEMIMA ACQUAYE FOR THE RESPONDENT.

[1993]DLCA4971
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													<main id="main" class="content" style="min-height: 60rem" >ODUPONG<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 1028 – 1048
C.A&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24 JUNE 1993<o:p></o:p>

JEMIMA
ACQUAYE 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>BROBBEY JA. <o:p></o:p>The
appellant was charged with murder, contrary to section 46 of the Criminal Code
1960 (Act 29). According to the prosecution, the facts which gave rise to the
charge are that on 2 July 1988, the appellant twice shot and killed his wife,
Mary Akosua Asantewaah, in his room at Berekum. The appellant pleaded not
guilty to the charge. His defence was that the gun fired accidentally and
killed the deceased. After a trial by jury, he was convicted of the offence of
murder. It was against that conviction and sentence that he appealed to this
court. In arguing the appeal, Mr Mensah who appeared for the appellant
contended that the trial judge failed to give adequate consideration to the
case of the appellant. That submission is not borne out by the evidence on
record and the summing up. Throughout the period spanning the time of the death
of the deceased up to the end of the trial, the appellant put up only one
defence which was that of accidental killing. In the summing up, the trial
judge gave much prominence to that solitary defence. In spite of the evidence
from the appellant and the directions from the trial judge, the jury found the
appellant guilty of murder. This meant that the deceased did not die of
accidental gunfire.<o:p></o:p>The
question to be resolved now is whether the jurors were justified in their
conclusions that the deceased did not die of accidental gunfire but through
deliberate shooting. To resolve this issue it is necessary to examine the facts
as laid before the jurors. The appellant’s story was that on the fateful day,
he had retired to bed with his wife, the deceased. Quite late in the night at
about 11.30 pm he went to the bush to ease himself. While he was in the
process, he sighted grasscutters in the bush. He rushed to his room, picked a
gun and loaded it with two cartridges, with the view to returning to the bush
to hunt down the grasscutters. Just before he could leave the room, his wife
woke up and tried to prevent him from leaving to hunt the animals. It was then
that the shooting occurred.<o:p></o:p>In
the first place, how reasonable is it for the appellant to expect the jurors to
believe the story as narrated by him? He said he was in the processes of easing
himself when he suddenly stopped, on seeing the grasscutters. Is it reasonable
to expect the jurors to accept his story that at the sight of grasscutters the
urge of a man easing himself will dissipate so much so as to enable him to
abandon the process in preference to pursuing grasscutters? If his story had
been that he had completed the process when he saw the animals, that would have
been different. To assert that on seeing the grass cutters in the middle of the
act, he suddenly lost the desire to continue the act and engaged in the pursuit
of the animals was too strange a phenomenon for the jurors to swallow. In any
case, what made the appellant believe that the grasscutters would be waiting
for him? I think it would be underrating, rather too lowly the intelligence of
the jurors to expect them to believe that throughout the length of time that
the appellant took to stop easing himself, go to his room, dress up, take a
gun, load it with two cartridges return to the locus, the grasscutters would
obediently be there in wait for him to be shot by him. If they rejected the
defence on that score, the jurors were certainly justifiable in so doing.<o:p></o:p>The
most important aspect of the defence relates to the motions or actions which
resulted in the death of the deceased. The appellant had three occasions to
narrate what actually happened. These were firstly when he gave his caution
statement after his first arrest, secondly, during the committal proceedings
before the district court, and thirdly during his trial before the jurors. On
each of the three occasions, he narrated an entirely different story. When he
was charged by the police, he gave a caution statement. That statement was
tendered without objection as exhibit F. In that statement, he described how
the deceased died:<o:p></o:p>“The deceased woke up and held the gun
and told me that she would not allow me to go for the hunting. I told her to
leave the gun, but she refused and a struggle ensued over it. In the process,
the butt of the gun hit the floor, fired suddenly; the pellets hit her face and
she fell on the bed while still holding the muzzle of the gun. I, at this
stage, attempted to pull out the gun from her hand and by so doing, I
unfortunately pressed the trigger and it fired the second time. I did not know
whether the pellets hit the deceased again.”<o:p></o:p>During
the committal proceedings, the accused narrated to the committal magistrate how
the deceased died thus:<o:p></o:p>“She held the muzzle and the butt of
the gun in an attempt to prevent me from going. She suddenly left the butt
while holding the muzzle. The butt hit the ground and fired while she was still
holding the muzzle. The pellets hit her face. She fell on the bed while still
holding the muzzle. All this time I was not holding the gun. I cannot tell
whether the second shot hit her.”<o:p></o:p>In
his viva voce evidence during the trial, this is the account he gave:<o:p></o:p>“The deceased did not like my going
out with the gun at that hour so she held me by the collar of my shirt. She
then left my shirt and held the gun from behind by the butt and the muzzle. She
succeeded in getting the gun, exhibit E, from me and whilst she was holding it
intending to place same on the bed it fired. I cannot tell how it fired. I am
aware that the gun fired twice. When the first gunshot occurred the deceased
screamed ‘brother hold for I am dead.’ She was still holding the muzzle of the
gun and she fell onto the bed. Then came another fire from the gun a second
gunshot. After the first gunshot, I observed that part of the face had been
severely damaged.”<o:p></o:p>From
the appellant’s own account the gun was fired when the butt hit the ground. If
that were the case the muzzle should have pointed upwards towards the ceiling
in the room and the pellets should have spread on the ceiling or the upper part
of the walls in the room. Soon after her death, a photographer was invited to
the scene and one of the pictures he took was tendered as exhibit B. Exhibit B
showed that pellets from the gun hit the wall of the room at a point close to
the headboard of the </main>