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JOE WREH
V.
THE KING
WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
5TH AND 14TH DECEMBER, 1951
2PLR/1951/50 (WACA)
OTHER CITATION(S)
2PLR/1951/50 (WACA)
(1951) XIII WACA PP. 327-330
LEX (1951) – XIII WACA 327 – 330
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BEFORE THEIR LORDSHIPS
SMITH, C.J., SIERRA LEONE
LEWEY, J.A.,
ROBINSON, J.
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BEFORE THEIR LORDSHIPS
JOE WREH alias DIXON DEE – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court
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REPRESENTATION
M. C. Marke, Crown Counsel — for Respondent
C. S. T. Edmondson with A. E. Dobbs — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction of murder – Defence of Drunkenness-Distinction between drunkenness occasioning insanity and drunkenness rendering a person incapable of forming specific intent – Misdirection – Application of proviso to section 4(1) of the West African Court of Appeal (Criminal) Ordinance, Cap. 265 – Practice in England under proviso of section 4(1) of the Criminal Act, 1907, to be followed.
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CASE SUMMARY
The appellant was convicted of murder of one Bia Kamara and appealed on the ground that the presiding Judge misdirected the Jury by failing to direct them that they were entitled to find the appellant guilty of manslaughter if they were of the opinion that he was so intoxicated as not to be able to form the intent to inflict grievous bodily harm.
The appellant alleged at his trial that he was so drunk that he did not remember causing the death of Bia Kamara. No witness on either side confirmed that appellant had reached anything like this degree of intoxication. It was also proved that immediately after the murder the appellant ran into his own house and changed his trousers, and spoke rationally to the police when arrested a few hours later.
In his summing-up the trial Judge referred to the issue of drunkenness on a number of occasions, but did not clearly distinguish between the defences of drunkenness and insanity as laid down by the House of Lords in Beard’s Case (1), where the Lord Chancellor distinguished between drunkenness occasioning insanity justifying a special verdict of guilty but insane, and drunkenness rendering an accused person incapable of forming a specific intent, thereby reducing the crime from murder to manslaughter. Furthermore, if the jury followed the Judge’s directions they could only return the verdict of guilty of murder or not guilty, as they were not directed concerning the special verdict of guilty but insane, or that they might acquit him of murder and find him guilty of manslaughter.
This Court also considered whether it could dismiss the appeal by applying the proviso to section 4(1) of the West African Court of Appeal Ordinance (Cap. 265), which 15 in the same terms as the proviso to section 4(1) of the Criminal Appeal Act, 1907.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. There had been misdirection. Although the evidence that the appellant was too drunk to form a malicious intent was weak, the Court could not be sure that the jury with a proper direction might not reasonably have returned a verdict of manslaughter. Consequently, the proviso to section 4 (1) of the West African Court of Appeal (Criminal) Ordinance could not be applied.
2. There could, however, be no doubt that if the jury had acquitted the appellant of murder they would have been bound to find him guilty of manslaughter. A verdict of manslaughter was substituted.
Cases referred to:
(1) R. v. Beard, 14 C.A.R. 159.
(2) R. v. Meakins, 7 C. &P. 297.
(3) R. v. Woolmington, (1935), A.C. 462.
(4) R. v. Stirland, (1944), A.C. 321.
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MAIN JUDGMENT
The following Judgment was delivered:
SMITH, C.J.
In this case appellant was convicted of murdering one Bai Kamara and now appeals to this Court on the ground that the presiding Judge misdirected the jury by failing to direct them that they were entitled to find the appellant guilty of manslaughter, and not of murder, if they were of the opinion that the accused was so intoxicated as not to be able to form an intent to inflict grievous bodily harm.
As it is axiomatic that a Judge’s directions to the jury must be considered in the light of the evidence which they had before them and the issues raised by that evidence, it would be convenient if we should first summarise the evidence in the case.
This showed that on the afternoon of Saturday, 3rd of February, the appellant had a quarrel over a trivial matter with one Davies, and after the quarrel appellant made what seemed to be determined attempts to attack Davies two or three times.
Bai Kamara, the victim, intervened and took Davies into his house, and then came and stood outside his house when appellant rushed at him and stabbed him with a knife, which one witness said was seven to eight inches long.
After stabbing the victim, appellant ran away and went into his own house and changed his trousers.
The appellant did not seriously contest this evidence, but said that he had been drinking that afternoon-a fact which was confirmed by a witness for the prosecution and two defence witnesses, and that at the time of the incident he was so drunk that he did not remember anything that happened between leaving the last bar he visited in a car, until he found himself in the Central Police Station next morning.
No witness on either side confirmed that appellant had reached anything like this degree of intoxication. Davies said that he staggered a little and smelt of liquor when they were quarrelling, but no other witness said he appeared to be intoxicated. He ran away after stabbing the victim, changed his trousers, spoke apparently rationally to the police when they arrested him a few hours after the incident, and showed no signs of intoxication to the doctor who examined him five to six hours later.
In his address to the jury, defending Counsel is recorded as submitting:-
“Defence is drunkenness. To be a defence drunkenness must render accused practically insane. If accused incapable of forming intent, murder may be reduced to manslaughter.”
While Crown Counsel is recorded as saying:-
“If accused so drunk incapable for forming intent acquit of murder.”
In his summing-up the learned Judge referred to this point on a number of occasions, which we will quote. In referring to the defence, he said:-
“What they say is that the accused was so drunk that the did not know what he was doing, so drunk that he was incapable of forming the intention of doing serious injury to Bai Kamara.
“Now, in the first place, I must tell you that the law presumes that every sane man intends the natural consequences of his acts. If a sane man stabs another in the way Bai Kamara was stabbed, then the law will presume an intention to kill that man if that man dies. There can be no doubt about that. Drunkenness in itself alone is no defence to a charge of this nature, but it would be a defence if it so affects the accused as to render him, for the time being, temporarily insane, so that he did not know the nature and quality of his acts. If the drunkenness was so severe as to render the accused altogether incapable of forming an intention to inflict that serious injury upon Bai Kamara, then he is entitled to be acquitted of the charge of murder.
“Now, you will have to consider whether the degree of drunkenness of the accused on that evening was so severe that it can be said to have rendered him incapable of forming such an intention, the drunkenness was so serious as to prevent him knowing the nature and quality of his acts.”
Again, a little later, he said:-
“If you accept the evidence for the prosecution that he did inflict that stab, was the accused at the time so drunk that he did not know the nature and quality of his acts? And in coming to a decision upon that point you have to bear in mind that the only evidence that he (the accused) was so seriously drunk is the evidence of himself.”
And towards the end of his summing-up, he said:-
“Now, you are not entitled to bring in the accused guilty of murder unless you are satisfied beyond reasonable doubt that he (the accused) inflicted that wound on the deceased and at the time he inflicted it he had the intention of doing so.”
With the greatest respect to the Presiding Judge and the Counsel engaged at the trial, the passages which we have quoted indicate that they did not clearly distinguish between the defences of drunkenness and insanity as laid down by the House of Lords in Beard’s Case (1). In that case, apart from drunkenness arising from the malicious or negligent act of a third party, which is irrelevant here, the Lord Chancellor stated his conclusions under three heads.
“1. That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no note of the cause of insanity. If actual insanity in fact supervenes, as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.”
In cases under this head the McNaughten rules should be applied and the jury directed that if they found that the accused was in such a state that he did not know the nature and quality of the act or that his act was wrongful, his act would be excusable on the ground of insanity and they should return the special verdict of “Guilty but insane”.
“2. That evidence of drunkenness which renders the accused incapable of forming a specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.”
One very important “other fact” is whether a dangerous or deadly weapon is used (R. v. Meakins) (2), which may show the malicious intent so clearly that the drunkenness of the accused could not alter it.
“3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink, so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.”
In our view there was no evidence upon which the jury could find that the accused was insane at the material time, and the learned Judge ought not to have directed them to consider whether he knew the nature and quality of his acts.
If there had been such evidence the jury should have been directed to return the special verdict if they found in favour of the accused. He would not have been entitled to a plain verdict of not guilty.
If there was evidence upon which the jury might reasonably find that the accused was so drunk as to be incapable of forming a malicious intent, then the Presiding Judge should have directed them that if they so found, the accused should be acquitted of murder but found guilty of manslaughter.
In the light of these observations we have to consider what effect the directions of the Presiding’ Judge that the jury should apply both tests under heads 1 and 2, as stated in Beard’s Case could have had upon this verdict, and whether they might reasonably have returned a different verdict if he had directed them correctly.
Furthermore, it is to be noted that if the jury followed the directions of the learned Judge they could only return the verdicts of “Guilty of Murder” or “Not guilty”. They were not directed that, in the unlikely event of their finding the appellant to be temporarily insane, they should return the special verdict of “Guilty but insane”, nor that if they found that the appellant was so drunk as to be incapable of forming a malicious intent, they should acquit him of murder but find him guilty of manslaughter.
The objection taken by appellant to the summing-up is, therefore, well founded, and it now remains for us to consider the proviso to section 4(1) of the West African Court of Appeal (Criminal) Ordinance (Cap. 265), should be applied. This section is in the same terms as the proviso to section 4(1) of the Criminal Appeal Act, 1907, and in applying it we are bound to follow the dictum of Viscount Sankey in Woolmington’s Case, (3), as explained and clarified by Viscount Simon in Stirland’s Case (4). In the latter case Viscount Simon said:-
“The provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.”
In this case, although the evidence that the accused was too drunk to form a malicious intent was weak and was in conflict with other evidence in the case, we cannot be sure that the jury, with a proper direction might not reasonably have returned a verdict of manslaughter instead of murder.
This being our conclusion, we are unable to apply the proviso to the conviction for murder.
We are, however, in no doubt but that if the jury had acquitted the appellant of murder they would have been bound to find him guilty of manslaughter.
The conviction and sentence for murder are therefore set aside and a conviction for manslaughter substituted.
The appellant is sentenced to twelve years’ imprisonment with hard labour.
Appeal allowed. Conviction of murder set aside and verdict of man slaughter substituted.
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