IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
JOSEPH KWASI QUARSHIE - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 26 TH July, 2018
CRIMINAL APPEAL SUIT NO: H2/20/17
JUDGES: GYAESAYOR JA (PRESIDING), AMADU JA, SUURBAAREH JA
MUNIRU M. KASSIM FOR APPELLANT SEFAKOR
BATSE (MRS.) (SSA) FOR RESPONDENT
The Appellant herein, Joseph Kwasi Quarshie, was tried and convicted of the offence of murder contrary to section 46 of the Criminal Offences Act, 1960 (Act 29). The facts are well rehearsed in the record of appeal. For the avoidance of doubt however, I repeat them.
The complainant is a professional driver and the father of Naomi Wapeah Ayagah, the deceased in this case. Both of them lived together at Maamobi whereas the accused a welder lived at Alajo. On 22/10/2012 at about 10:30pm the deceased’s father, the complainant in the case overheard his daughter exchanging words with somebody on her cell phone and so he demanded to know who that person was and she told him that it was her boyfriend, the accused person in the case. A few minutes after the call she told her father that she was proceeding to Alajo that night because the accused had asked her to come and pack her dirty dresses from his room. The complainant and his son persuaded her not to go and that it was late but she insisted that she wanted to go and pack her things so she left. Sometime later after she left, a taxi cab pulled up in front of the complainant’s house and the accused who was also an occupant of the taxi came out and informed the deceased’s father that he had been stabbed with a knife by the deceased and needed medical attention. The complainant then saw his daughter in a pool of blood with stab wounds lying down at the back of the taxicab. The complainant escorted the two of them to the Ridge Hospital at Accra. The complainant’s daughter, the deceased was pronounced dead on arrival. That night the medical officer invited the police, after examining the wound of the accused and he was treated, discharged and handed over to them that same night. Investigations revealed that, when the deceased arrived in the house of the accused, there was a misunderstanding between the two of them and in the course of it the accused stabbed the left breast of the deceased with a kitchen knife after which he cut himself twice with the knife. He denied stabbing the deceased and stated in his statement that he did not know how the deceased sustained the stab wounds and that it must have been in the course of the struggle that the knife cut the deceased.
The grounds of appeal as stated in the notice of appeal and the additional grounds filed are set forth:
GROUNDS OF APPEAL
(a) The verdict of the Jury was unreasonable in the light of the evidence before the court.
(b1) That the Trial Judge misdirected the Jury in his summing up, and this led to a substantial miscarriage of justice.
(b2) That the Trial Judge erred when he failed to consider the defence of the Appellant adequately, leading to a substantial miscarriage of justice.
Even though the additional grounds of appeal were filed without leave of the court, I find that the Respondent was adequately served with the submissions of the Appellant and indeed had the opportunity to comment on it in its own submission. They were not taken by surprise. Rule 63 of the Court of Appeal Rules, 1997 (CI 19) on the Waiver of non-compliance Rules reads: “When a party to any proceedings before the Court fails to comply with these rules or with the terms of any order or directions given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to the further prosecution of proceedings unless the Court considers that the non-compliance should be waived.” Also, I derive comfort from Rule 8(8) of the Court of Appeal Rules, 1997 (CI 19) because though it is provided for under Civil Appeals, Rule 20(10) of CI 19 as amended by CI 21 on written submission provides that “This rule shall apply to criminal appeals with such modifications as may be necessary.” The said Rule 8(8) states, “Notwithstanding subrules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.” I am satisfied that the prosecution, having had notice cannot say that there is no appeal when a notice of appeal and grounds of appeal have been filed before court. The Respondent itself says its argument is based on a technicality when it said in its written submission: “My Lords technically speaking, there is no additional ground of appeal before this court as these grounds are only being sneaked in through the back door by counsel for the appellant.”
As stated by Sowah JSC in the civil case of Darke IX v Darke IV [1984-86] 1 GLR 481, which is applicable to this instant case even though it is criminal in nature, “To decide a substantial and important litigation on technicalities is in my view, the very negation of the justification of this court’s existence. It has been said that the very first charge of a judge should be the discovery of truth and justice not legalism, formalism, and technical perfectionism, what Lord Denning has described as costly nonsense. I would add monumental to that noun.” I am therefore satisfied that the appeal is properly before us, especially as the life of an individual is at stake.
The High Court was duly constituted for trial by a judge and a jury as mandated by law. Section 46 of the Criminal Offences Act, 1960 (Act 29) states, “A person who commits murder is liable to suffer death” and Article 19(2) (a) (i) of the 1992 Constitution of Ghana states that “a person charged with a criminal offence shall in the case of an offence other than high treason or treason, the punishment for which is death or imprisonment for life, be tried by a judge and jury and where the punishment is death, the verdict of the jury shall be unanimous”. In the instant appeal, the Appellant was tried by a judge and jury. See also, Article 125(2) of the 1992 Constitution of Ghana, which provides that “Citizens may exercise popular participation in the administration of justice through the institutions of public and customary tribunals and the jury and assessor systems.”
It is clear from the law as provided by the 1992 Constitution of Ghana and the Criminal Procedure Act, 1960 (Act 30) that the duty of the trial judge is to direct the jury on the law. It is also clear that the verdict arrived at is that of the jury solely and it does not assign reasons.
Flowing from the facts given, it is obvious that the Appellant and the deceased, Naomi Wapeah Ayagah, were in a relationship known to both the mother of the Appellant and the father of the deceased. As a result of the flooding of their room, the deceased went to live with her father whilst the Appellant went to live with a friend. They agreed however to clean the room in expectation of the arrival of the mother of the Appellant. At about 10:30pm on the day of her death, the deceased engaged in a hot exchange of words with the Appellant on her phone to the hearing of her father, Clement Ayagah, who testified as the 1st prosecution witness. The deceased failed however to heed her father’s caution of not going to her boyfriend’s home that night. Contrary to her father’s advice, she left for her boyfriend’s room at Alajo and sadly, met her death that night.
The evidence shows that the Appellant who had suffered some injuries, arrived in a taxi at the residence of the Complainant along with the deceased in a pool of blood in the back of the vehicle; and the latter was later pronounced dead at the Ridge Hospital in Accra. The post-mortem report shows that the deceased was stabbed with a sharp object that was tendered as a kitchen knife at the trial.
The prosecution in its effort to prove the guilt of the Appellant called four (4) witnesses whilst the Appellant called only one (1) witness. For the prosecution to succeed, they had to prove certain ingredients of the offence to the satisfaction of the jury or in legal terms, beyond reasonable doubt. Section 13(1) of the Evidence Act, 1975 (NRCD 323) on proof of crime states, “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” Equally, section 47 of the Criminal Offences Act, 1960 (Act 29) defines murder as “Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder unless his crime is reduced to manslaughter by reason of such extreme provocation or other matter of partial excuse as mentioned in section 52.” The prosecution therefore had to prove that someone was dead; and that the person had died as result of unlawful harm inflicted on them; and that it was intentionally done. See Serechi & Anor v The State  2 GLR 531, SC where it was held that there was sufficient evidence of an intention to cause death and the infliction of unlawful harm. The essential elements of the offence of murder are intent to cause death, and infliction of unlawful harm. Their appeal against a conviction of murder was dismissed.
In the instant case, there is no doubt that Naomi Wapeah Ayagah is dead as evidenced by the post-mortem report and photographs of the deceased in the morgue, as well as her father’s testimony that she was dead. Both the Appellant and the deceased’s father agreed that she died as a result of harm. She was brought in a taxi in a pool of blood and the deceased herself had complained of stab wounds before she died. I find no difficulty in arriving at the conclusion that there was a dead person who died as a result of unlawful harm. Both the deceased and the Appellant engaged in an unlawful fight that night and any harm inflicted in the course of the fight is unlawful.
The most crucial and pertinent issue to prove in this case is whether the harm inflicted was intentionally done so as to cause death and thereby capable of supporting the charge of murder. The determination of the issue depends solely on the evidence led at the trial and the nature in which the offence was committed and the weapon that was used in inflicting the harm. In our case, the Appellant denies committing the offence and does not plead self-defence. The case of the prosecution is hinged on the evidence of the 2nd Prosecution Witness, Lydia Braimah alias Afua, who happened to be selling her wares in front of the house where the incident took place. Her testimony was that the deceased had shouted “Sister Afua, Brother Kwasi has stabbed me with a knife”. She saw the deceased, Naomi Wapeah Ayagah, at the gate with blood oozing out of her and the man who had been with the witness, embraced the deceased. She also saw the accused, now Appellant, with a knife. When she enquired from the Appellant what the matter was, he answered, “we shall all end it like this” and then stabbed himself twice and left the knife on the ground. I find this testimony of the 2nd Prosecution Witness to be the most crucial piece of evidence.
Although the Appellant denies stabbing the deceased, the evidence from the 2nd Prosecution Witness, Lydia Braimah alias Afua, clearly shows that the deceased prior to her death shouted that she had been stabbed by the Appellant. Afua, the only eyewitness to this incident also confirmed that the Appellant stabbed himself twice apparently to cover up his act. The learned trial judge adequately commented on this and directed the jury that they could convict on the evidence of one witness when he stated at paragraph 56 of his summing up, “In law, a court can act upon and convict an accused upon the evidence of a single witness provided the court finds the evidence of that single witness credible or worthy of credit.”
I am satisfied therefore that the injury to the deceased was inflicted by nobody but the Appellant who was the only person in the room with her that night as rightly directed by the trial judge – which harm is found to be unlawful and which harm eventually caused the death of the deceased.
Stabbing a woman in her left breast with a kitchen knife could undoubtedly have fatal consequences as happened in this case. The post-mortem report tendered as Exhibit G during the trial shows that there was a “deep wound of the left breast measuring 6.0x2.0 cm and 9.0cm deep”, a “fracture of the 5th and 6th of the left ribs”, a “laceration of the aorta vessel” and “internal haemorrhage”. Even though the post-mortem report like any other expert evidence is not conclusive, it helps us to arrive at a decision as to the nature of the injuries inflicted on the deceased and the cause of her death. See Nyameneba & Ors v The State  GLR 723, SC and Fenuku v John Teye [2001-2002] SCGLR 985 where in holding 6 it was stated that, “The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions.”
The trial judge adequately directed the jury when he stated at paragraph 65 of his summing up, “It is true all experts give opinion evidence but the opinion they give is based on learning, training and experience. That is why opinions of experts are treated with respect. I urge you to situate the opinion of PW4 in the context of other pieces of evidence on the record. Accept it only if you find it true or reasonably true. Otherwise you are at liberty to reject it and form your own opinion on whether the stab wound was intentionally or accidentally inflicted”; and I find no fault with it.
After determining this issue of whether the harm inflicted was intentionally done, we must examine if there are any extenuating circumstances which will reduce the offence charged to manslaughter. Manslaughter is defined in section 51 of the Criminal Offences Act, 1960 (Act 29) in the following words: “Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter. Provided that if the harm causing death is caused by negligence he shall not be guilty of manslaughter unless the negligence amounts to a reckless disregard for human life.” Section 52 of the same Act 29 provides on ‘Intentional murder reduced to manslaughter’, “A person who intentionally causes the death of another person by unlawful harm shall be guilty only of manslaughter, and not of murder or attempt to murder, if –
(a) he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in succeeding sections; or
(b) he was justified in causing some harm to the other person, and, in causing harm in excess of the harm which he was justified in causing, he acted from such terror of immediate death or grievous harm as in fact deprived him for the time being of the power of self-control; or
(c) in causing the death, he acted in the belief, in good faith and on reasonable grounds, that he was under a legal duty to cause the death or to do the act which he did; or
(d) being a woman she caused the death of her child, being a child under the age of twelve months, at a time when the balance of her mind was disturbed by reason of her not fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”
Having looked through the evidence on record including the Appellant’s total denial of causing harm to the deceased as well as considering the way the offence was committed and the weapon used, I find no such extenuating circumstances to justify our reduction of the offence from murder to manslaughter.
A jury delivers its verdict without assigning reasons – as was done in this case. The Appeal therefore is essentially against the conduct of the trial, especially the summing up of the trial judge and the directions that he gave the jury. I have read both submissions by counsel for the Appellant and the Respondent and taken a critical look at the alleged misdirection in the summing up. This court will only overturn the decision of the Jury if I find that there has been a substantial miscarriage of justice on the face of the record, and I find none here.
The learned trial judge took great pain in carefully detailing for the jury, their duty. He also summarised the evidence presented by both Counsel for the Appellant and the Respondent. I can say with all boldness that having looked at the summing up I find it impeccable and devoid of any misdirection.
The questions of fact as properly directed by the judge are for the jury to decide. Once they were properly directed by the trial judge, this appellate court cannot interfere with the findings of fact made by the jury because that would amount to a usurpation of the role of the Jury as granted by law.
I find no justification in disturbing the verdict arrived at by the jury arising out of the fair summing up delivered by the learned trial judge. The summing up, in my view, was fair and there had been no misdirection that could have resulted in a substantial miscarriage of justice.
Consequently, I hold that in light of the overwhelming evidence put before the court and the impeccable summing up done by the learned trial judge, the jury arrived at the only irresistible conclusion admissible by law and fact.
In the result, the appeal in my view should be dismissed. The judgment of the high court delivered on the 27th day of March, 2017 is hereby affirmed. The sentence of death imposed should be carried out.
P. K. GYAESAYOR
(JUSTICE OF APPEAL)
TANKO AMADU J.A
(1) I have had the privilege of reading in advance the lead and concurring judgment of the majority in this appeal. Regrettably, I am unable to subscribe to the reasoning and conclusion of my brothers particularly on the issue of the discharge by the Respondent, the burden of proving the essential element of mens rea in proof of the charge of murder against the Appellant who now stands condemned as a prisoner awaiting execution. It is by reason of the grievous penalty resulting from the alleged offence relative to the peculiar facts of this case that which compels a departure from the position of the majority in this appeal.
(2) In the High Court Accra, the Appellant was on the 29th May 2017 convicted for the offence of murder and sentenced to death. Aggrieved by the decision, the Appellant filed an appeal on the sole ground that the verdict of the jury was unreasonable in the light of the evidence before the court.
(3) It is significant to place on record that the Appellant purported to file and argue two additional grounds of appeal formulated as follows:-
(b1) That the Trial Judge misdirected the jury in his summing up, and this led to a substantial miscarriage of justice.
(b2) That the Trial Judge erred when he failed to consider the defence of the Appellant adequately, leading to a substantial miscarriage of justice.
(4) As correctly submitted by the Respondent’s counsel the purported additional grounds were filed outside the time allowed by the rules, without the leave of court first obtained. They are therefore inadmissible and unarguable and consequently struck out. As this court has the general power to determine this appeal without limiting itself to the grounds of appeal argued by the parties only, the order striking out the said grounds will not necessarily be fatal to the Appellant’s case in this appeal. Once it emerges from the evidence on record and the summing up to the Trial Judge that an error which has occasioned a substantial miscarriage of justice to the Appellant has occurred, it is incumbent on this court in the exercise of its general power of rehearing, to review same and where it ensures to the benefit of the Appellant, state so with judicial courage.
(5) BACKGROUND FACTS: -
A summary of the facts giving rise to this appeal are as follows: It is undisputed that the Appellant and the deceased, Naomi Wapeah Ayagah were in a relationship. On the 22nd day of October 2012, at about 10.30p.m, the deceased left her father’s house at Mamobi to the Appellant’s at Alajo both suburbs of Accra. While the deceased was with the Appellant, a quarrel ensued between them, which turned into a fight during which the Appellant was alleged to have stabbed the deceased. The Appellant then took the deceased in a taxi to the house of her father (PW1), who conveyed the Appellant who was also injured and the deceased to the Ridge Hospital, where the deceased was pronounced dead. The Appellant was treated and discharged after which he was arrested and charged with the murder of the deceased.
(6) In our criminal jurisprudence, proof of intention to commit an offence known as mensrea and the actual act of commission the actus reus are both required before an allegation of crime is successfully proved by the prosecution. Counsel for the Appellant submitted that it was the deceased who first attacked the Appellant and that there was no evidence that the Appellant intended to kill the deceased nor did the prosecution lead evidence to show that the Appellant intended to kill the deceased. The principal arguments advanced by counsel for the Appellant in support of this contention is that the lack of evidence to prove the ingredient of intention to kill was fatal to the conviction and sentence of the Appellant for murder. And that the prosecution having failed to discharge their burden of proving intent beyond a reasonable doubt as provided under 13(1) of the Evidence Act 1975 (NRCD 323) the sentence on a charge for murder is flawed.
(7) Counsel for the Respondent on the other hand has argued that the Appellant intentionally killed the deceased by stabbing her, and in the result fractured her ribs. The gravamen of the Respondent’s contention is that the nature of the injury to the deceased is suggestive of an intention to commit the offence of murder. On that basis, the Respondent has urged this court to dismiss the appeal and sustain the verdict of the jury in the Court below.
(8) It is trite that an appeal is by way of rehearing the same being a function of the rules of this court and supported by a number of judicial authorities. By virtue of this power conferred by the rules, this court is in a peculiar situation to deal with this appeal both as judges and jury. In so doing, this court ought to be guided by the presumption of innocence enshrined in Article 19(1)(c) of the 1992 Constitution. In the peculiar circumstances of this case however, while re-hearing the Appellant’s case, I am mindful of the fact that, given that the Appellant has been duly tried and found guilty as charged by a court of competent jurisdiction, there is also a presumption of the correctness of the judgment appealed from which the Appellant carries a burden in this appeal to impeach.
(9) In reviewing the evidence adduced at the Trial Court, it is crucial to re-examine the evidence of (PW2) where she said:
"I was in my shop selling when Naomi came with a taxi and parked in front of the house. She greeted me and entered the house. Not quite long when she entered the house she shouted and mentioned my name Sister Afia Brother Kwasi has stabbed me, with a knife. During this time Naomi called me, a certain man was buying from my shop, so I pleaded with him and asked him to go into the house to see what has happened. So he went through the gate and I also passed behind the container. So we met Naomi at the gate with blood oozing. When we saw her with blood oozing the man with me embraced her and I also saw the accused person following up with a knife. My Lord I asked the accused person what was the matter and he said that sister Afia we shall end it like this and the accused started stabbing himself. He stabbed himself twice. My Lord the accused person after stabbing himself two times, left the knife on the ground and the man carried Naomi, to the frontage of my shop and stopped a taxi and we put two of them into the Taxi to Hospital.” Nothing in this testimony will beyond all reasonable doubt, establish the ingredient of intent to kill the deceased since PW2 did not witness the circumstances under which the deceased was fatally wounded.
(10) It is provided under Section 47 of the Criminal Offences Act, 1960 (Act 29) as follows:-“Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as mentioned in section 52.”
Section 46 provides that “Whoever commits murder shall be liable to suffer death.”
(11) Let me digress and devote sometime to comment on the nature of the death sentence, which currently hangs around the neck of the Appellant. Due to the paucity of local judicial authority on the subject, I will refer to foreign judicial thinking on the death penalty as a guide. An individual's right to life has been described as the most fundamental of all human rights. Thus, the value of life is immeasurable for any human being, and it is by no means fortuitous that the right to life is enshrined in Chapter 5 of the 1992 Constitution. Consequently, the wilful taking of an innocent life calls for the ultimate penalty which is death. However, before a Court imposes or affirms the capital punishment, it must do so without any doubt about the guilt of the accused. As was held in the United States case of PEOPLE VS. ANDERSON  63 CAL. 2D 351 [46 CAL. RPTR. 763, 406 P.2D 43], the death sentence “...........degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.”
“Death is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person’s humanity. In comparison to all other punishments, the deliberate extinguishment of human life by the state is uniquely degrading to human dignity”. A similar position was adopted by Gubbay C.J in the CATHOLIC COMMISSION FOR JUSTICE AND PEACE IN ZIMBABWE VS. ATTORNEY-GENERAL AND OTHERS  AHRLR 248 [ZWSC 1993], where he said (at 268): “From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is “the living dead’............ He is kept only with other death sentence prisoners. Throughout all this time, the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful death is never far from mind.”
(13) Far from being passionate about an Appellant who is contesting a death sentence, our criminal justice system has not in any way reduced the prosecution’s burden in establishing that for an accused to be pronounced guilty of murder and ought rightly to pay the ultimate price the statutory burden has been discharged without a doubt. Therefore, every court including this court must be convinced beyond a reasonable doubt, that before the death sentence is affirmed, the mens rea is clearly established and that there is evidence to prove that an intention to cause the death of the deceased which is beyond reasonable doubt and which is unmitigated by other possible circumstances existed.
(14) Where therefore as in the instant case, the court only finds that the Appellant has been reckless after having ruled out the possibility that it is the deceased who was either the aggressor or induced the harm which resulted in her death, that recklessness per se will not result in a verdict of murder. A person who conducts himself in a manner which constitutes disregard for human life and caused the death of another in the absence of the crucial element of intention to cause death cannot be guilty of murder but of a diminished or lesser offence of manslaughter.
(15) In the instant case, that the deceased was in an amorous relationship with the Appellant as was established by the evidence of the Appellant, PW1 and PW2 is not in dispute. From the evidence on record, on the day of the incident the deceased had engaged in a quarrel with the Appellant on phone before leaving her father’s house (PW1) at Mamobi to Alajo to meet the Appellant. This supports the contention that there was a disagreement between the Appellant and the deceased in the Appellant’s room which turned physical on the night of the incidents, leading to the death of the deceased.
(16) Our criminal jurisprudence is settled on the issue that any conviction on circumstantial evidence must be strong, compelling, cogent unequivocal and must irresistibly point to the guilt of the accused. Once it is credible and uncontroversible, a conviction cannot be faulted. From the conglomerate of the circumstantial evidence adduced in the instant case as revealed by the record, I do not think it supports the charge of murder because other possibilities leading to recklessness and not intent could not in my view be eliminated by the prosecution’s case. Circumstantial evidence, if it must be applied to ground a conviction, must be examined narrowly and with care. To be sufficient for a conviction, it has to point to one and only one conclusion namely the offence was committed by the Appellant and that he intended to commit the said offence before the statutory condition of the element of mens rea could be said to have been successfully discharged.
(17) In the case of DEXTER JOHNSON VS. THE REPUBLIC  SC GLR 601, the Supreme Court quoting in extenso the statement of SARKODEE ADOO JSC in the case of THE STATE VS. ANANI FIADZO  GLR 416 at 418 held (as stated in Holding (2) at page 605 of the report) as follows:-
“(2) Circumstantial evidence was quite usual as it was rare to prove an offence by evidence of eye-witnesses; thus inferences from the facts proved might prove the guilt of the accused. A presumption from circumstantial evidence should be drawn against the accused only when that presumption would follow irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt, the exculpatory facts, meaning facts implying guilt, must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty”. In THE STATE VS. ANANI FIADZO case, the court stated emphatically inter alia that “a conviction must not be based on probabilities or mere suspicion”. I can say without any equivocation that in the instant case, I do not find that that ingredient of intention to cause death had been successfully discharged either directly or circumstantially. The Appellant in my view was convicted for murder by the Jury upon mere suspicion without any evidential support to ground the crucial element of intent.
(18) From my thorough examination of the evidence on record and after drawing all necessary circumstantial inferences to the evidence, I am not able to arrive at the conclusion that the prosecution discharged its burden of proving the crucial element of intent to cause death which statutorily is an essential ingredient in proving a charge of murder. In my view, if the jury properly appreciated the nature of the Appellant’s burden as correctly directed by the Trial Judge, they would not on the facts have returned the verdict of guilty on the charge of murder.
(19) As can be deduced from the record, the Appellant’s evidence and that of PW1 showed that just before the deceased left her father’s house at Maamobi to Alajo the Appellants place, the Appellant and the deceased had spoken on phone. At page 77 of the record, the Appellant testified as follows:-
“At around 11:00pm I got worried and called the deceased person and told her I had been waiting all this while and if she knew she would not come, she should have told me so that I wouldn’t have come home at all.” At page 78, he testified that, “Not long after, the deceased person came. She entered the room and called out which I answered. She continued with the argument we had on the phone and she insulted my mother. I did not like it at all. I got up from the bed and hit her mouth and told her that it was late. From there she did not utter a word. I then went back to sleep. After a few minutes of silence, I opened my eyes to see what exactly she was doing. All of a sudden I saw the deceased person with a knife standing on me. I struggled to disarm her and all I heard was a loud scream from her she bolted out from the room.”
It this difficult from this account to establish an intention to cause death from the totality of evidence before the Trial Court even if the Appellant’s account is not believed since he carried no burden to prove his innocence on the particular charge. I am therefore in agreement with Counsel for Appellant that the intent to cause death on the part of the Appellant was completely absent as the prosecution failed to prove same. It is for this reason that the verdict of guilty for murder is unsustainable.
(20) In the case of SENE & ANOR VS. THE REPUBLIC  1 GLR 434 AT 436-437 C.A., Amissah, J. A held as follows: “The one important factor which distinguished a case of murder from manslaughter is the intention. The element of intent in a homicide resulting from a fight was determined by considering whether from the circumstances it could be said that the person who killed had the intention to cause death as distinct from a mere intention to fight. Such an intention might be inferred from the instrument or weapon used in the killing or the manner in which the harm which resulted was inflicted………..” In the instant case, the case of the prosecution was further undermined by the fact that it was not the same doctor who conducted the pathological examination of the deceased who tendered the post-mortem report on the deceased. The report was tendered through a different doctor who was not a pathologist and who never examined the body of the deceased. And it is clear from the record that the report was not subjected to necessary cross-examination or at all. I concede that the absence of exhaustive cross-examination on the medical report is no fault of the prosecution (the Respondent) and they are entitled to enjoy every advantage on the default of the Appellant’s counsel at the trial. But this is not a civil case. This is a matter which concerns the Appellants life and it is not the Appellant who carries the burden of proving his innocence’s. The Appellant’s duty was establish doubts and where doubts clearly exist, they ought to have been resolved in the Appellant’s favour. Consequently the absence of the medical doctor who conducted the post-mortem ought at the very least to have been a subject of comment by the Trial Judge to enable the jury make up its mind on the reliability or credibility of the said witness who tendered a medical report he did not author and gave evidence on a deceased he did not personally examine. This in my view amounts to a misdirection by sum direction on the part of the Trial Judge.
(21) In our criminal justice system, questions of guilt and innocence are decided by the jury, while the death sentence, if the accused is found guilty, is pronounced by the presiding judge. Since the death sentence is mandatory, once if the accused is found guilty, mitigating and aggravating factors do not come into play. This is the more reason why this court must be vigilant in ensuring that the guilt of the appellant is indeed proved beyond a reasonable doubt as required by statute. In COP VS. ANTWI  GLR 408 KORSAH C.J made a statement of the law with respect to the legal burden on the prosecution in criminal cases which is relevant and applicable in the instant case. He stated inter alia that “the fundamental principles underling the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted”. I am unable to see how on the evidence on record, the prosecution succeeded in proving the intention on the part of the Appellant to cause the death of the deceased?
(22) For this reason, this Court ought not permit a dilution of the statutory standards and as a matter of judicial duty uphold the fact that proof beyond reasonable is not only a principle of law in our criminal jurisprudence but also a moral imperative which are altogether embedded in the judicial oath. In my view, the evidence on record shows that the Appellant has not been proven to have intended to kill by direct or circumstantial evidence. This Appellate court is therefore enjoined to substitute the verdict of guilty for murder with manslaughter in accordance with Section 13(1) of the Courts Act, 1993 (Act 459). This statutory position was applied in the case of MELFA VS. THE REPUBLIC  1 GLR 174-176. See also LAMPTEY alias MOROCCO VS. THE REPUBLIC  1 G.L.R. 165, C.A., TORTO VS. THE REPUBLIC  1 G.L.R. 342, C.A.
(23) In all the peculiar circumstances of this case, I will allow the appeal and set aside the conviction of murder and substitute same with manslaughter. From the record, the Appellant has been in custody since the date of his arrest, on or about 22nd October 2012. By computation of time, he has been in lawful custody for nearly six calendar years. I will therefore sentence him to a term of fifteen (15) years Imprisonment in Hard Labour with effect from 22nd October 2012.
I.O. TANKO AMADU
(JUSTICE OF APPEAL)
Following the trial of the appellant by a jury on a charge of murder, the jury, upon the summing up, returned a unanimous verdict of guilty and upon which the judge proceeded to give a judgment in accordance with their opinion and then passed sentence as required by law under sections 285 (1) and (3) of the Criminal Procedure Act 1960, Act 30.
The appellant, who is dissatisfied with the conviction and sentence, has mounted the present appeal on three grounds of appeal. The appellant’s ground of appeal was initially that, the verdict of the jury is unreasonable in the light of the evidence led before the court. He subsequently filed two additional grounds, and without leave, which this court will however consider for the reasons given by my brother in his lead judgment dismissing the appeal, which this judgment is out to support. These additional grounds of appeal are: (a) that the trial judge misdirected the jury in his summing up, leading to a substantial miscarriage of justice; and (b)that the trial judge erred in failing to consider the defence of the appellant.
The facts giving rise to this appeal have been sufficiently summarised by my brother in his lead judgment and no useful purpose would be served by repeating them. Suffice it to say however that, the appellant and the deceased were in a relationship known to their parents and that the incident, into which the court enquired, occurred in the night, and in a room, where the appellant and the deceased were the only persons present. This incident, sad as the results were, came about when the appellant called the deceased that night to come and pick her cloths from his room.
The three grounds of appeal are all complaints regarding how the trial judge performed his duty in summing up the law and evidence to the jury before their verdict. The duty imposed on a judge in a trial by jury is clear and these are quite distinct from the duty placed on the jury. For the respective duties or functions of the judge and jury, see sections 278 and 279 respectively of the Criminal and Other Offences Act, 1960, Act 30. “278 Duty of Justice
(1) For the purpose of this Act, the Justice:
(a) Shall decide the questions of law arising with the cause of trial, and especially the questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties, and may prevent the production of inadmissible evidence whether or not objected to by the parties;
(b) Shall decide on the meaning and the construction of documents given in evidence at the trial;
(c) Shall decide on the matters of fact which it may be necessary to prove in order to enable evidence of particular matter to be given;
(d) Shall decide whether a question which arises is for the Justice personally or for the jury, and on this point the Justice’s decision bind the jurors.
(2) The Justice may, in the course of summing up, express to the jury a personal opinion on a question of fact or on a question of mixed law and fact relevant to the proceedings.
279. Duty of Jury
It is the duty of the jury:
(a) to decide which view of the facts is true and then to return the verdict which, under that view ought, according to the directions of the Justice, to be returned;
(b) to determine the meaning of the technical terms other than terms of law and words used in an unusual sense, which it may be necessary to determine, whether the words occur in documents or not;
(c) to decide the questions which according to law, are to be deemed questions of fact;
(d) to decide whether general indefinite expressions do or do not apply to particular cases, unless the expressions refer to legal procedure, or unless their meaning is ascertained by law, in either of which cases it is the duty of the Justice to decide the meaning.”
The complaints as per the grounds of appeal being in relation to the duties of the judge under section 278 of Act 30, the appellant has the duty of demonstrating to the court what these misdirection exactly were.
Under the ground about misdirection by the trial judge, it was submitted on behalf of the appellant that failure on the part of the trial judge to point out to the jury that the room was lighted only by a candle, disabled them from believing the appellant’s story that he was unaware the deceased got injured in the struggle to disarm her. It was also submitted that failure by the trial judge to comment about the fact that the appellant held a cloth over his wound, when coming out of the room, prevented the jury from believing his story that he sustained the injury in the room. Learned counsel for the appellant also took issue with the trial judge’s failure to elaborate on the general character and disposition of the deceased.
Assuming without admitting that all the above allegations against the trial judge are true, will that constitute misdirection in the summing up? I do not think so. By the provisions of section 278(2) of Act 30, even though the trial judge, in the summing to the jury may express an opinion on questions of facts or mixed facts and law, his opinion on the facts do not bind the jury, who, under section 279 (a) and (c) of Act 30, decide on which view of the facts is true and also decide on all questions deemed to be questions of fact.
The jury, in this case, heard the evidence as to the condition of the room, what the appellant said about the injuries he sustained as well as what Pw2 said regarding how the appellant got injured. They equally heard the evidence about the mood of the deceased before she left her house and what took place on her arrival. The jury, as deciders of all questions of fact and which view of the facts to be believed or is true, and also as persons who access the credibility of witnesses, upon the available evidence, and guided by the summing up, came to the conclusion that the appellant was guilty of the offence of murder. By their verdict, the jury demonstrated that they preferred the inculpatory evidence against the appellant.
The trial judge, in his summing up, painstakingly referred to the evidence of the prosecution as well as the accounts given by the appellant in his caution statement to police as well as on oath, on what happened that fateful night and went on to point out that the incident happened in a room where only the appellant and deceased were. The trial judge, who also pointed out that what Pw2 said was not an eye-witness account, but what she heard immediately after the event, further pointed out that such evidence, to be able to convict, must lead to only one conclusion. He went out to quickly add that, Pw2’s evidence, though circumstantial, was acceptable in law.
The other additional ground of appeal is about the failure on the part of the trial judge to consider the defence of the appellant. This ground of appeal will be taken alongside the original ground of appeal about the verdict being unreasonable in the light of the evidence led at the trial.
In the submission on behalf of the appellant, in addition to alleging that not all ingredients of the offence have been proved, it was submitted that there was no eye-witness account as far as the appellant having intentionally caused the event was concerned. Viscomt Sankey LC in Woolmington v. Director of Public Prosecutions  AC 462 HL, laid down the following as the necessary things to prove in a murder case: (a) death as a result of the voluntary act of the accused and, (b) malice of the accused. Section 47 of the Criminal and Other Offences Act 1960 Act 29, provides as follows:
“47. Whoever intentionally causes the death of another by any unlawful harm is guilty of murder, unless his crime is reduced to manslaughter by reason of such extreme provocation, or other matter of partial excuse, as mentioned in section 52.”
In Williams v. The Republic [1984-86] 1 G.L.R. 565 at 581, where the deceased was one Lari, the Court of Appeal held that the prosecution must prove that: (1) Lari is dead, (2) that the death was due to harm, (3) that the harm was unlawful, (4) that the unlawful harm was caused intentionally, and (5) that the accused was the one who caused the unlawful harm to the deceased. Not only did the appellant, in the submissions on his behalf fail to point out which of the ingredients of the offence of murder was not proved, but also that the trial judge failed to adequately explain the appellant’s defence to the jury. At page 161 of the ROA, the trial judge, who had earlier referred to section 52 of Act 29/60 about intentional murder being reduced to manslaughter stated:
“Ladies and gentlemen of the jury, this definition of intentional murder reduced to manslaughter perfectly fits the accused’s evidence of attack on him.”
Knowing however his role and that of the jury are distinct, he left it to the jury to satisfy themselves whether the deceased indeed attacked the appellant, and in reaction, the appellant caused harm to the deceased. In the performance of their role as sole deciders on matters of fact, and what facts to believe, the jury came out, once again, with a verdict based on their preference of the evidence.
On the contention about there being no eye-witness to the incident that took place in the room, this, as the trial judge pointed out, is correct. This does not however mean that what took place is incapable of proof. He referred to the evidence of what Pw2 said she heard before the deceased run out and collapsed before her and the eventual evidence that she died from the injuries she sustained. Pw2’s evidence, though circumstantial, such evidence, as pointed out by the trial judge, is acceptable in law for as the authorities show, it is not a derogation to say that the evidence is circumstantial.
In The Republic v. Anani Fiadjo  G.L.R. 416, SC the court said that presumptive or circumstantial evidence was quite usual as it was rare to prove an offence by evidence of eye witnesses. Whilst holding that inferences from facts may prove the guilt of an accused, the court cautioned that presumption from circumstantial evidence should only be drawn when the presumption follows from the circumstances proved in evidence, and that, in order to justify the inference of guilt, the inculpatory facts must be incapable with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis.
The Court of Appeal, in Duah v. The Republic [1989-88] 1 G.L.R. 343 at holding (3) in the headnote at 345, held:
“Circumstantial evidence was evidence of surrounding circumstances which by undersigned coincidence was capable of proving a proposition with the accuracy of mathematics. In criminal cases, it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eye-witnesses was not available, the jury was entitled and indeed permitted to infer from those facts which the prosecution had proved other facts necessary either to complete the elements of guilt or establish innocence…”
The Supreme Court, in Gligah & Atiso v. The Republic  S.C.G.L.R. 870 likened circumstantial evidence to series of small threads put together to make a very strong rope.
In the instant case, the jury, as the triers of facts, after evaluation of the credibility of the witnesses and the evidence led, chose to believe the prosecution’s case that it was the appellant who caused injury to the deceased resulting in her death and further that the harm was unlawfully and intentionally caused. They refused to accept the opinion of the trial judge that the explanation of the appellant about the attack on him fitted the situation where intentional harm causing death could be reduced to manslaughter.
As the authorities show, upon an appeal from a jury trial, unless the appellant is able to demonstrate that there has been a misdirection or non-direction of the jury on any matter, and that the misdirection or non-direction resulted in a substantial miscarriage of justice, or that the evidence adduced as a whole is incapable of sustaining the verdict of the jury, the appellate court cannot interfere. See Beniako v. The Republic [1995-96] 1 G.L.R. 232 and Gyamfi v. The Republic  71 G.M.J. 124.
The other complaint about the judgment is the undue weight attached to the evidence of Pw4 who was only to tender a document because of the absence of the author, but who ended up expressing his opinion as an expert. The trial judge, in his summing up made it clear to the jury that experts give opinion evidence which was not binding on the jury, but deserving of respect. There is even nothing in the submissions on behalf of the appellant that the verdict of the jury was influenced or based on the opinion of Pw4.
In sum therefore, without demonstrating to the satisfaction of this court what exactly the trial judge did wrong in his summing up to the jury, or which element of the offence was not proved, or that on the whole, the verdict cannot be sustained upon the evidence led, I agree with my brother that there is no merit in the appeal and that same be dismissed and the conviction and sentence of the High Court affirmed.
It must be pointed out that the justice to be dispensed is justice within the law and that judicial sympathy, however plausible, cannot be elevated to become a principle of law as said by Wiredu JSC (as he then was) in Frimpong v. Nyarko [1998-99] S.C.G.L.R. 734 at 742. I will humbly add that a court of law should never allow sympathy for a criminal or the severity of the punishment imposed, to weaken the legal interpretation of the law otherwise the laws will remain mere decorations on our statute books.
G. S. SUURBAAREH
(JUSTICE OF APPEAL)