–
KWASI ANANI
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
30TH DAY OF APRIL, 1951
2PLR/1951/14 (WACA)
OTHER CITATION(S)
2PLR/1951/14 (WACA)
(1951) XIII WACA P. 170
LEX (1951) – XIII WACA P. 170
–
BEFORE THEIR LORDSHIPS:
BLACKALL, P.
WILSON, C.J., GOLD COAST
LINGLEY, AG. J.
–
BETWEEN:
KWASI ANANI – Appellant
AND
THE KING – Respondent
–
ORIGINATING COURT
Application for leave to appeal from the Supreme Court, W.A.C.A. (CR.APP 15/51)
–
REPRESENTATION
E. P. Cawston — for the Appellant
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder of estranged wife – Provocation of adultery – How treated
RELIGION AND LAW:- Threat to terminate marriage on part of wife and to go to a fetish priest in order to have certain restrictions upon sexual relations with other men removed – Murder and removal of the woman’s vagina when she sets out to accomplish her threat – How treated
–
PRACTICE AND PROCEDURE ISSUE(S)
ETHICS – LEGAL PRACTITIONER:- Duties of defending Counsel – Charges against Police and witnesses unsupported by evidence –Counsel withholding adverse authority from the Court – Attitude of court thereto
–
CASE SUMMARY
The appellant was convicted of murder. The grounds of appeal filed by Counsel for the appellant alleged improper conduct by the police officer investigating the crime for the purpose of inducing the appellant to incriminate himself. The appellant himself in his evidence had made no allegations against the police officer.
On the issue of provocation, Counsel for the appellant argued in the trial Court that section 234(3) of the Criminal Code was merely an illustration of one of the kinds of provocation that would suffice to reduce the crime to manslaughter. Appellant’s Counsel had made this submission before and this Court decided against it. It was clear from his summing-up that the trial Judge had not been made aware of the previous decision, and per incuriam gave the direction that a sudden confession of adultery by a spouse would be sufficient provocation to reduce to manslaughter.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (refusing the Application for leave to appeal) that:
1. It was improper for Counsel to attack the character of a police officer, or any other witness, if he does not intend to call evidence in support of the charge.
2. Where a Counsel intends to argue a point of law which he knows is adverse to him, he must not withhold from the Court that there is an adverse decision on the same point.
Cases referred to:
(1) O’Neill v. Ackers, 34 C.A.R 108
(2) Rex v. Grunshie, W.A.C.A. (G.C.) Judgments, March-July, 1946, 8.
(3) Rex v. Kwaku Boateng, W.A.C.A. (G.C.) Judgments, January-April, 1951, 97.
–
–
MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
The appellant in this case was convicted before Windsor-Aubrey, J. sitting with assessors of the murder of a woman named Akusoa. There was a question whether she was married to him by native custom or not. But in the events that happened is immaterial. The appellant confessed the murder to four witnesses and made a full statement to the police.
The evidence briefly was this: The deceased decided to terminate the marriage and the appellant demanded some payment which she refused. She informed him that she intended going to a fetish priest in order to have certain restrictions upon sexual relations with other men removed. A week later the appellant saw her going to the place where this juju is situated and he followed her with a cutlass. He overtook her and made a murderous assault on the woman and cut her to pieces. After that he removed the woman’s vagina and put it into her mouth.
It is obvious that there are no circumstances in this case which could operate to reduce the crime to manslaughter and there is no ground for interfering with the verdict.
There are, however, one or two comments we feel called upon to make about the conduct of the defence and the grounds of appeal filed by Mr Cawston. The first is this: The police, as is usual in cases of murder, took a photograph of the body, and it is stated in the grounds of appeal that the body was propped up for this purpose. In our view it was perfectly proper to do this, but Mr. Cawston thought fit to impute sadistic tendencies to the Inspector of Police and implied that his object in having the photograph taken in that position was to induce the appellant to incriminate himself by admitting that he had mutilated the body.
Now, it is improper for Counsel to make a charge against the police or against any other witness by way of defence, except by cross-examination as to credit, if he does not intend to call evidence in support of the charge. In the present case the accused did give evidence, but it entirely negatived the accusation of improper conduct or pressure by the police for the accused said that the police did not ask him any question whilst he was making his statement. Lord Goddard, L.C.J., in the recent case of O’Neill v. Ackers (1), in dealing with somewhat similar conduct, expressed the hope that Counsel would refrain from making charges which, if true, form a defence but which, if there is nothing to support them, ought not to be pursued. A fortiori grounds of appeal should not contain charges which are unsupported by the evidence.
The other matter which we have to comment on is this: Counsel for the defence put forward an argument about the effect of sections 233 (1) and 234 (3) of the Criminal Code. Those provisions deal with provocation arising from a husband finding his wife actually committing adultery. Mr Cawston’s argument was that section 234 (3) was merely an illustration of one of the kinds of provocation that would suffice. That was a legitimate argument, but the point is that this was not the first time that this Counsel made this submission. He made it in the case of Yaya Grunshie (2), and this Court decided against it. He also raised it in the case of Kwaku Boateng (3), which this court decided at the present sitting.
Now, if Counsel intends to argue a point of law which is covered by adverse authority he may do either of two things. If the previous decision is by a lower Court then he may invite the higher Court to overrule it. If, on the other hand the previous decision was by a Court of co-ordinate authority, it is open to him to endeavour to distinguish the previous case from that which he is arguing. But what he must not do is to withhold from the Court the fact that there is an adverse decision on the same point.
In the present case, it is clear from the summing-up and judgment of the learned trial Judge that he was not made aware of the previous decisions: otherwise he would not have given the direction he gave, viz. that a sudden confession of adultery is a sufficient provocation. To put the matter quite shortly, Counsel are expected to assist the Court and not to lead the Judge to give a wrong decision per incuriam.
In the present case the misdirection was in favour of the prisoner, so it is not a ground for interfering with the verdict.
Application for leave to appeal refused.
–