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Rex V. Kwesi Mensah (1948) LJR-WACA

Rex V. Kwesi Mensah (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Homicide—Murder or Manslaughter—Negligence—Mis-direction.

The Gold Coast law as to criminal negligence is very different from the law as to that in England and many other places. In the Gold Coast, criminal negligence amounts to little more than what is known as civil negligence in England and elsewhere.

On the facts of the present case, the trial Judge should not have withdrawn from the jury consideration of a verdict of manslaughter by negligence.

Cases referred to:

  1. R. v. Roberts, 28 Cr. App. R. 102; (1942), 1 A.E.R. 187; 58 T.L.R. 138; 86 Sol. Jo. 98.
  2. Mancini v. D.P.P., 28 Cr. App. R. 65; (1942), A.G. 1; (1941), 3 A.E.R. 272; 111 L.J.K.B. 84; 165 L.T. 353; 58 T.L.R. 25.
  3. R. v. Prince, 28 Cr. App. R. 60; (1941), 3 A.E.R. 37; 58 T.L.R. 21.
  4. Woolmington v. D.P.P. (1935), A.G. 462; 104 L.J.K.B. 433; 153 L.T. 232; 51 T.L.R. 446; 79 Sol. Jo. 401; 25 Cr. App. R. 72; 30 Cox C.C. 234. Appeal from the Supreme Court of the Gold Coast.

011ennu for Appellant.

Young, Crown Counsel, for Crown.

The following judgment was delivered:

Lucie-Smith, C.J. The appellant herein was tried for, and convicted of, the offence of murder before the Divisional Court, Cape Coast, sitting with a Jury. From the conviction and sentence he has appealed to this Court.

In this judgment, this Court proposes to deal only with Ground of Appeal 2 (a):—

2 (a). Misdirection to the Jury in directing that the question of manslaughter by negligence should not be considered.”

The learned trial Judge, in an exhaustive summing up, told the Jury, in effect, that the case as put forward in Court resolved itself into a question of guilty of murder or an acquittal.

As regards the question of manslaughter by negligence which was raised in the course of the trial, he directed the Jury as follows (page 32) :—

” This is what the accused says. He himself challenges the statement read out by the Police, but his Counsel, you will remember, did not challenge that statement.”

Here we would remark that in a criminal prosecution the sins of commission or omission by Counsel cannot be visited on the accused. The burden of proof always rests on the Crown. To continue from the summing up :-

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“That, I think, Gentlemen, is the case for the defence. As regards the law, I do not think I need address you at length about that. Murder is the unlawful and intentional killing of a person as distinguished from manslaughter which is the unlawful but unintentional killing of a person.”

So far, we would remark that the learned Judge’s slimming up was definitely in favour of the accused. Our opinion as to this is strengthened by the learned Judge’s words at page 34 :—

” If you think the facts proved to your satisfaction show conclusively that the accused killed the deceased and that he did it intentionally, then you can return your verdict that the accused is guilty as charged. If, on the other hand, you are in any genuine doubt as to what happened on that day and you really feel that you are not quite sure that the accused intentionally shot the deceased, then it is your duty to give the accused the benefit of the doubt and return your verdict of not guilty.”

From the above extracts, it will be seen that the learned Judge left to the Jury only two questions (1) Murder, (2) Not guilty of any offence. In other words—Black or White ?

To our mind this was narrowing the issue too much and, though it may appear paradoxical so to say, to the prejudice of the accused.

We again quote from the summing up (page 34) :—

” Learned Counsel for the defence has put before you two alternatives. In the first place he says that the accused is guilty of manslaughter by negligence. That is an issue I should leave to you if there was any evidence of negligence. But before you can return that verdict, you must have evidence before you that the accused acted without that skill and precaution that are necessary when anyone uses a gun. The only evidence is that of the accused and there is not the slightest suggestion anywhere in that evidence that he acted negligently.”

From the above it would appear that, to return to our previous simile, while the learned Judge put only black or white to the Jury, the defence suggested grey or white.

Now as regards the law as to criminal negligence in this Colony one must realise that criminal negligence in this country is a very different matter from criminal negligence in England and many other parts of the Empire. This has been laid down by this Court on more than one occasion. Under English law, negligence to be criminal must be so gross and outrageous as to offend against the State as guardian of lives and liberties—so culpable as to be for the purpose of vindication outside the solace of mere civil damages—so wicked as to ‘call for vindication and punishment under the criminal law. Section 14 of the Criminal Code reads as follows :—

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” 14. (1) A person causes an event negligently if, without intending to cause the event, he causes it by. voluntary act, done without such skill and precaution as are reasonably necessary under the circumstances, or as he is in the particular case bound by law to have and use, for preventing the event from being caused.

” (2) Moreover if an act is such that, notwithstanding the use of skill and precaution, it is likely to cause an event which there is no justification for causing, the act, if not done with intent to cause that event, is negligently done with reference to causing that event, even though it be done with skill and precaution.”

From this it will be seen that criminal negligence here amounts to little more thap what is known as civil negligence in England and in other places. It appears to us that from the accused’s statement to the Police (page 36) and the accused’s sworn testimony in the trial Court (page 16), that the Jury, had it been left to them as judges of fact, might possibly have found that there was negligence on the part of the accused in firing the gun (in the circumstances related by him) -into a bush that was shaking without first taking steps to satisfy himself that what was shaking the bush was a monkey and not a man.

It is true that the spot is not adjacent to a road or path, or to a spring, nor is it otherwise a place which people habitually visit or by which they would ordinarily pass. But on the other hand it is, according to the evidence of Kobina Dadzie, page 8, not more than one hundred yards from the nearest farm. Thus though the possibility of a man being behind the shaking bush was unlikely, it was perhaps not remote. It appears to us a pity that it is not a matter of routine to put in evidence any statement of the accused at a preliminary investigation whether it be negative or not.

What finding the Jury would have made as to this question of negligence, had it been put to them, it is impossible for us to say; but to our mind it is quite possible that they might have been in such a state of reasonable doubt as to have brought in a verdict of manslaughter by negligence. In other words, they might have selected grey as their answer in preference to black or white.

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By their evidence the jury rejected accidental killing (white) and having been, by the Judge’s summing up, debarred from considering the question of manslaughter by negligence (grey) brought in a verdict of guilty of murder (black). The withdrawal from them of the question of manslaughter was an error in law —Rex v. Roberts (1), at page 109 et seq., Mancini v. Director of Public Prosecutions (2)—to paraphrase the words of the Lord Chief Justice in Rex v. Prince (3),

at poisc 64.

After deliberation we have come to the conclusion that the Judge did not give to the Jury a direction of the character which Lord Sankey, L.C. (in Rex v. Wooimington (4), at page 482) states as the law. We think that the summing up was insufficient having regard to the absence of any direction that, if upon a review of all the evidence, the Jury were left in reasonable doubt whether, even if the appellant’s explanation were not accepted, the act was negligent, the appellant was entitled to be acquitted of the charge of murder. The direction being, in our view, insufficient we think it impossible that the verdict of murder should stand, and in its place we substitute a verdict of manslaughter, and a sentence of two years imprisonment with hard labour.

Appeal allowed and conviction for manslaughter substituted.

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