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ISAAC BOYE QUAYE AND OTHERS
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF APRIL, 1954
W.A.C.A. NO. 98/53
2PLR/1954/95 (WACA)
OTHER CITATION(S)
2PLR/1954/95 (WACA)
(1954) XIV WACA PP. 488-491
LEX (1954) – XIV WACA 488-491
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
ABBOTT, J.
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BETWEEN:
1. ISAAC BOYE QUAYE ALIAS JACK TOLLER
2. LAMPTEY LARTEY
3. WINFRED TETTEY ANSAH – Appellants
AND
THE QUEEN – Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Homicide — Felony involving violence — Whether murder or manslaughter – Criminal Code of the Gold Coast — Sections 13(2) and (3)
CRIMINAL LAW AND PROCEDURE:- Appeals in Criminal Cases — Verdict of guilty — Circumstances for intervening on appeal or otherwise
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ORIGINATING COURT(S)
Appeal against decision of the Supreme Court (Mark Wilson, C.J., Presiding) by three convicted persons
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REPRESENTATION
J. N. L. Heward-Mills — for the first Appellant
A.G. Heward-Mills — for the second Appellant
Bannerman — for the third Appellant
Sheridan — for the Crown
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CASE SUMMARY
The case against the appellants was that they went into a house to steal and administered chloroform to an old man, who died.
The evidence was summed up to the jury, who were also directed on the law: it was explained to them that whilst in England “a person who uses violent measures in the commission of a felony involving personal violence … is guilty of murder if those violent measures result, even inadvertently, in the death of the victim”, in the Gold Coast “his offence will only be murder if, as sub-section (2) of section 13 of the Criminal Code says, he does that act ‘believing that it will probably cause or contribute to cause’ the death of the victim”; and the jury were told to bring in a verdict of manslaughter if of opinion that the accused in administering chloroform to the deceased “did not do it for the purpose of causing his death and did not believe or realise at all that the act would cause his death or that there was any great risk of its doing so”; (a direction based on section 13(3) of the Code).
The jury found No. 1 and No. 3 guilty of murder but No. 2 guilty of manslaughter only. They all appealed.
As regards appellant No. 1 it was conceded by the Crown that the case was weak; it also appeared that the verdict against him was affected by his being implicated in the statements made to the police by the other two.
For No. 2 it was submitted that death from unnatural causes had not been satisfactorily proved and that his statement to the police had been obtained by duress.
No. 3 took a leading part; he, moreover, admitted in his statement to the police that he was present and was at least aiding in the crime, though not actually taking part in the assault; and the question in his case was whether he ought not to have been convicted of murder but of manslaughter only.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal of No. 1; and dismissing those of No. 2 and No. 3) that:
(1) The case against the first appellant, though fraught with grave suspicion, was not proved with that certainty which is necessary in order to justify a verdict of guilty.
(2) It could not be said that the statement of the second appellant had been wrongly admitted; and the question of the cause of death was one of fact for the jury, who were properly directed both on that and on the case as it affected the second appellant; there was evidence on which they could convict and no ground for interfering with their verdict.
(3) There was evidence that the third appellant took a leading part, consequently it could not be said that the conviction was unreasonable; and there being evidence on which the jury could act, as they, after being properly directed, rejected the more merciful view in his case, there was no ground for refusing to accept their verdict of murder.
Case cited:-
(1) R. v. Beard, 14 Cr. App. R. 110.
(Editor’s Note: The difference between the doctrine in R. v. Beard and the Law of the Gold Coast as explained in paragraph 36 of the summing-up at the trial is endorsed in the judgment infra, where it is also explained.
For the difference between the Law of England and the Law of Nigeria see R. v. Motesho Okonni and Others, 4 W.A.C.A. 19, and R. v. Namm, 20 N.L.R. 6, which cites Rex v. Udofa at p. 27 of the W.A.C.A. cyclostyled judgments for January to May, 1950.)
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTEN, P.
The three appellants, Isaac Quaye alias Jack Toller, Lamptey Lartey and Winfred Tettey Ansah, were charged with having, on or about the 21st day of July, 1953, at Nsawam, murdered Kwaku Amaka, an old man of approximately seventy years of age.
The case came before Mark Wilson, C.J., and a jury, and after a trial which lasted nearly four weeks the latter brought in a unanimous verdict of guilty of murder against the first and third appellants and one of manslaughter against the second appellant.
The whole of the material evidence was closely and critically examined before us during the hearing of this appeal by learned counsel on both sides, and it does not appear to us to be necessary to discuss it again.
Mr. J. N. L. Heward-Mills, who appeared for the first appellant, Isaac Boye Quaye alias Jack Toller, submitted, inter alia, that the conviction could not be supported having regard to the evidence.
Mr. Sheridan for the Crown very fairly conceded that the case against the first appellant was “weak”, but he urged that the jury were carefully warned by the learned trial Judge and that there was evidence upon which they could properly convict.
There can be no doubt that there was a case of grave suspicion against him, but after a close examination of the evidence, we are left with the conviction that although the learned trial Judge carefully warned the jury that the statements given to the police by the second and third appellants were not evidence against the first appellant, they, no doubt not consciously, were unable to erase from their minds, in considering the case against the first appellant, passages contained in the statements which implicated him.
We are not concerned here with suspicion, however grave, and after careful and anxious consideration we have come to the conclusion that the case against the first appellant was not proved with that certainty which is necessary in order to justify a verdict of guilty. The result is that the appeal of the first appellant is allowed, and we, therefore, quash the conviction and direct a judgment and verdict of acquittal to be entered.
Mr. A. G. Heward-Mills, on behalf of the second appellant, Lamptey Lartey, strongly urged that the evidence did not justify the verdict of manslaughter recorded against him; he submitted that it had not been satisfactorily proved that the deceased died from unnatural causes and severely criticised the admission in evidence of exhibit “M”, a statement which the prosecution alleged had been voluntarily made by the second appellant to the police, but which he said was obtained by duress.
The question whether the deceased died by unnatural means or not was one of fact for the jury to determine. In our view there was evidence upon which the jury could properly find that the deceased man died as a result of violence, and we are satisfied that they could not have been more clearly and carefully directed on the point.
The admissibility of the statement, exhibit “M”, was carefully considered by the learned trial Judge, and we are unable to agree that it was wrongly admitted in evidence.
The jury were properly directed, and there was evidence upon which they could properly convict the second appellant. In these circumstances there is nothing which would justify this Court in interfering with their verdict, and his appeal is accordingly dismissed.
Mr. Bannerman on behalf of the third appellant, Winfred Tettey Ansah, also submitted that the verdict of the jury was unreasonable and could not be supported having regard to the evidence. Since, however, there was evidence, if believed, which it obviously was, that this appellant took a leading part in the proceedings which resulted in the death of the deceased, and admitted in a statement he gave to the police that he was present in the room of the deceased and was at least aiding in the commission of the crime, although not actually taking part in the assault, it cannot be said that the jury acted unreasonably in convicting him.
In our view the only question for consideration in his case is whether he was rightly convicted of murder or whether the proper verdict should have been one of manslaughter, and we think that the learned Chief Justice fairly and accurately put the matter to the jury in paragraphs 35 and 36 of his summing-up when he said:-
“35. If on full consideration of the question as to whether it is satisfactorily proved by the evidence that the accused persons or any of them caused the death of Kwaku Amaka by indicting unlawful harm and, after giving them the benefit of any reasonable doubt in your minds as to the facts, you come to an affirmative conclusion, it will then be necessary to consider and decide whether the killing was intentional in the sense already explained to you. I have already told you that in cases where death has been voluntarily caused by unlawful harm and guilty intention is not proved it is possible in certain circumstances for the jury to bring in a verdict of not guilty of murder but guilty of manslaughter. There is a long series of English reported cases in which it has been held that a person who uses violent measures in the commission of a felony involving personal violence does so at his own risk and is guilty of murder if those violent measures result, even inadvertently, in the death of the victim. But in the construction of the Criminal Code of the Gold Coast this Court is not bound by any judicial decision or opinion on the construction of the common Jaw of England as to the definition of any offence or of any element of any offence (see section 7 (3) Criminal Code) and it would appear that under our law if a person administers chloroform to another person not for the purpose of causing his death but in an attempt to render him unconscious or insensible or physically incapable of resistance, with intent to facilitate the commission of a felony such as burglary or stealing from a dwelling house (as is alleged in the present case) his offence will only be murder if, as subsection (2) of section 13 Criminal Code says, he does that act ‘believing that it will probably cause or contribute to cause’ the death of the victim.
“36. On consideration you may well find that in this case the accused (or any of them), if you find they did in fact administer chloroform to the deceased, did not do it for the purpose of causing his death and did not believe or realise at all that the act would cause his death or that there was any great risk of its doing so. It is possible and indeed probable that an ordinary man in this country may not know that the’ administration of chloroform is a process which in inexpert hands is dangerous to life. If you take that view of the matter it would be open to you to bring in a verdict of manslaughter. If not, and you take the view that the accused knew the dangerous nature of the act they were doing and did it believing it would probably cause or contribute to the death of the old man, they will be guilty of murder. This is a very important point which you must consider very carefully before reaching your decision as to whether in this case the causing of the death of the deceased by unlawful harm was ‘intentional’.”
The direction contained in paragraph 36 of the summing-up is based on the provisions of section 13(3) of the Gold Coast Criminal Code, and the effect of it is to make the law here different from that in England in this respect:-
In this country, in a case like the present one, the degree of criminality depends on the knowledge and consciousness on the part of the accused that death is likely to result from what he does, that is on whether or not he wilfully incurred the risk of causing the death of another person; in other words, the degree of criminal responsibility depends upon the existence or otherwise of bona fide ignorance of the connection existing between the mere mechanical act and its consequences; whereas in England, anyway since the decision of the House of Lords in the case of Rex v. Beard (1) under the fiction of implied or constructive malice, if a person uses violent measures in the commission of a felony involving personal violence he does so at his own risk and is guilty of murder if those violent measures result, even inadvertently, in the death of the victim.
The jury rejected the more merciful view In the case of this appellant, probably because they felt he took a more active part in the proceedings than the second appellant, and we are not prepared to say that they erred in so doing.
The principles upon which this Court acts have been repeatedly re-stated, and may be summarised by saying, that where there is evidence on which a jury can act, and there has been a proper direction, this Court will not substitute its view for that of the jury. The fact that some members or all the members of the Court might think that they themselves would have returned a verdict of manslaughter is no ground for refusing to accept the verdict of the jury, since it is our duty to administer the law as we find it, not the prerogative of mercy.
In these circumstances the appeal of the third appellant must also be dismissed.
Appeal of No. 1 allowed; those of No. 2 and No. 3 dismissed.