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1945 Supreme(SC) 41
Privy Council At West Africa
Sir John Beaumont, Lord Goddard , Justice Lord Porter, JJ.
Kwaku Mensah -Appellant
Versus
The King. -Resopndent
Privy Council Appeal No. 7 of 1945
Decided On : 11-10-1945
Burchells, King, A.L. Bryden and Co., King, Frank Gahan, Dingle Foot, Sir Alfred Wort
A trial judge must direct the jury on the possibility of provocation reducing murder to manslaughter if the evidence supports it, even if the defense relies on a different theory, as the prosecution must prove the offence is murder beyond reasonable doubt.
Headnote:(A) Criminal Code - Sections 283, 234 and 235 - Intentional homicide - Provocation - Reduction of murder to manslaughter - If on the whole of the evidence there arises a question whether or not the offence might be manslaughter on the ground of provocation, the Judge must put that question to the jury, regardless of whether the defence has relied on it or not - The onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought.
(B) Law of Assault - Pointing a gun at a person without legal excuse is an unlawful act and constitutes an assault, regardless of whether the person pointing the gun knew the weapon was loaded.
(C) Court Constitution - Appointment of acting judges - A person appointed to perform the duties of a judge is qualified to sit in the Court of Appeal, and it is not necessary that they should have acted as a judge in another cause before being qualified to sit in the appellate court.
Facts of the case:
The appellant was convicted of murder for shooting the deceased during a fracas. The deceased and others had entered a village to smuggle goods. During a fight, the appellant was stabbed in the hip. The appellant chased the deceased and shot him as he was fleeing. The appellant's defence was that the shooting was accidental and intended only to frighten the deceased. The trial judge directed the jury that a verdict of manslaughter could only be returned if the appellant's account of an accidental shooting was accepted.
Findings of Court:
The trial judge's direction was erroneous. The evidence of the appellant being stabbed during the struggle constituted potential provocation. The jury should have been directed to consider whether this provocation deprived the appellant of self-control and whether sufficient time had elapsed to regain it, as these are questions of fact for the jury.
Issues: Whether the Court of Appeal was properly constituted; whether pointing a gun is an unlawful act; and whether the failure to direct the jury on the possibility of provocation, despite the defence relying on an accidental killing, constituted a failure of justice.
Ratio Decidendi: The court held that if there is any evidence that could entitle a jury to return a lesser verdict of manslaughter, the judge must bring it to the attention of the jury, even if the defence has not relied on it. Being struck or stabbed while defending property or self amounts to provocation of a serious character. The determination of whether such provocation deprived an ordinary person of self-control is a matter for the jury's common sense and knowledge.
Result: Appeal allowed; verdict of murder substituted with manslaughter.
Legal Category Hierarchy
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crime and sentencing
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offences against the person
- murder
- manslaughter
- assault
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offences against the person
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practice and procedure
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appellate jurisdiction
- constitution of court
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trial procedure
- jury directions
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appellate jurisdiction
Lord Goddard. -
Their Lordships now give their reasons for the humble advice which they have tendered to His Majesty that this appeal should be allowed and a verdict of manslaughter substituted for that of murder. The appeal was brought by special leave against a judgment of the West African Court of appeal dismissing the appellant's appeal against his conviction for the murder of one Abudv Zabrama before Lane J. and a special jury on 15th May 1943. It appears that in the early morning of 27th November 1942, the deceased man with some of others of his tribe, the Zabrama, arrived at the village of Kajakron, where the appellant lived, carrying bundles of cloth which they were intending to smuggle into French territory. According to the witnesses for the prosecution they reached the village when it was light, either just before or just after daybreak, while according to the defence they arrived in the dark when the villagers were asleep. An alarm was given by someone, and there were cries of "thief" and a fight ensued. The theory of the prosecution was that the villagers attacked the Zabrama with the object of stealing the goods they were carrying. On the other hand, the case for the defence was that the incident started because the tribesmen, or some of them including the deceased, entered the compound of the appellant and tried to break into his home. However the fracas started there seems to be no doubt that in the course of the fight the appellant was stabbed, receiving a wound some four inches long on his hip, and according to his evidence it was inflicted by the deceased. The Zabrama, being outnumbered, made off to the Mohammedan part of the village, the Zongo. The deceased, who was being chased by the appellant among others, entered a house and was followed by some of the villagers, still calling out "thief." The deceased ran out of the house and as he was running away the appellant fired a gun and killed him.
The appellant and nine others of the villagers were charged with murder, the appellant as a principal in the first degree and the others as abettors. The sole defence set up at the trial on the part of the appellant was that he presented the gun with the object of frightening the decased and inducing him to surrender. The learned Judge in the course of his summing up directed the jury that there were three possible verdicts that they could return, murder, manslaughter and acquittal, and that in his opinion no verdict of manslaughter could be entered unless the jury accepted the appellant's own account as to how he shot the deceased. He further directed them that if they did accept that account the appellant would be guilty at least of manslaughter as pointing a gun at the deceased as he was running away was an unlawful act. The jury found the appellant guilty of murder, but the other nine accused were found by them guilty only of manslaughter. On appeal, the West African Court of appeal dismissed the appeal of the present appellant, holding that though in their opinion there was a misdirection in saying that on the, appellant's own evidence he was at least guilty of manslaughter, a matter with which their Lordships deal hereafter, the jury must have rejected his evidence as was shown by their returning a verdict of murder. With regard to the remaining accused they quashed the conviction on the ground that the jury should have been directed that in their case the only possible verdicts were murder or acquittal. The case of these other nine accused is of course not before their Lordships.
The first submission on behalf of the appellant was that the Court which heard the appeal was not properly constituted in that Mr. Quashie-Idun, who sat as an acting Judge, had not been properly appointed in accordance with law. The West African Court of appeal is constituted and has its powers conferred by various Orders in Council now consolidated in the West African Court of Appeal Orders, 1928-1935, being No. 11 [XI] of 1935. By S. 2
