Rex V. Kwabena Bio (1945)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder—Misdirection by Non-direction in. summing-up to assessors—Assessors should be correctly and fully instructed in Judge’s summing-up—Judge bound to put defence however weak to the Jury—Rex v. Dinnick, 3 Cr. App. Rep. 77.

Held: Conviction quashed. Appeal allowed.

J. Sarkodee Adoo for Appellant. N. A. 011ennu for Crown.

The following judgment of the Court was delivered by KINGDON, C.J., Nunrau :—

The Appellant was charged at the Kumasi Assizes before Smith, J., sitting with assessors, with the murder of a woman named Ama Tachiya,o. He was convicted and sentenced to death.

On appeal to this Court we quashed the conviction on the ground of misdirection, by non-direction, in the Judge’s summing-up to the assessors. In some cases omission to direct the assessors on some point does not necessitate the quashing of a conviction, more especially when the decision rests with the Judge alone and he has clearly arrived at his finding independently of the assessors’ views. But in this case the Judge has stated unequivocally that if the assessors had “thought otherwise” he would have deferred to them, in other words in coming to his decision he accepted the guidance of the assessors’ views. It was therefore essential—just as essential as in a trial with a jury—that the assessors should be correctly and fully instructed in the Judge’s summing up. In our view they were not so instructed, in particular the learned trial Judge altogether failed to put the case for the defence adequately and fairly before the assessors, though he put the Prosecution case fully and strongly—as strongly indeed as it could have been put by counsel for the Prosecution pressing for a conviction. It is well established law that a Judge in summing up is bound to put the defence, however weak, to the jury (in this case the assessors), and that failure to do so will lead to a conviction being quashed (R. v. Dinnick, 3 Cr. App. Rep. 77).

Shortly the facts relied upon by the Prosecution were that the Appellant and the deceased had had a quarrel leaving bad blood between them and that he had threatened her ; that the deceased was a hawker of cloth and she went regularly on market day to Jachie to sell her cloth ; that on the day of the murder the Appellant also went to Jachie, according to him to do business with one Mr. Alirifa ; that he went out of his way to get in touch with a woman named Nyaraikye (with whom deceased had her mid-day meal) and enquired from her about the deceased’s movements ; that later in the afternoon, on his way back from Jachie, the Appellant met a woman named Akua Fokuo with her children and enquired of her if they had seen the deceased ; that another witness, Abudulai Wangara, saw the Appellant carrying’ a cutlass or knife in a sheath slung under his left arm; that the Appellant made a false statement to the police as to the time at which he left Jachie ; that after meeting the Appellant on the path the woman Akua Fokuo further on met the deceased going in the same direction as the Appellant, and met no one else on the path ; that next morning the deceased’s body was found upon the path terribly cut about ; it was obvious that she had been foully murdered by someone ; that subsequently the Appellant busied himself unduly in connection with the disposal of the deceased’s body. Upon that purely circumstantial evidence the Prosecution asked the Court to say that the only possible inference to be drawn was that it was the Appellant who murdered the deceased and that it was not reasonably possible that the °rime could have been committed by anybody else. The Prosecution got its verdict of guilty, but we are by no means sure that it would have done so if the case for the defence had been adequately laid before the assessors. The learned trial Judge repeatedly asked • rhetorical questions :-

“Why was he carrying that knife? Was he coming from his farm? If he wasn’t coming from his farm, why was he carrying it? Why was the knife hidden under his cloth, slung under his left arm? Why was he carrying a cutlass at all?

Now, why, on the road between Jachie and Akwaduo, did he ask Akus. Fokuo ‘Have you seen Ama Tachiyao?’ Why?

Again, why did he so busy himself about bargaining with the lorry

driver? Did he do that to cover his guilt one way or the other?

Well now, he told the Police that he left at 3 p.m. or 2.30 p.m. Why did he tell the Police that? Was he trying to deceive the Police? Why did he put it two hours ahead of the actual time he left Jachie? Why did he do- that? He said he didn’t know the time. Well, he managed to give prompt and ready answers; he is not an ignorant bush man. Why did he try to deceive the Police Did he by that want to suggest to the Police that when he left Jachie Ama Tachiyao had already left Jachie?

The next day the dead body of Ama Tachiyao was found on the road. Who killed her? Is it the accused who killed her? Did he kill her because of the quarrel or because of the fetish oaths between the deceased and the accused’s niece? Why did he enquire of her on the road? Why was he carrying the cutlass, though no cutlass has been found by the Police? Why did he mislead the Police as to the time he was travelling from Julie to Selma?”

All these questions are strongly suggesting the guilt of the Appellant.
The other side of the picture was not put to the assessors at all.

It was not pointed out to them that no blood-stained clothing of the Appellant was found and no blood-stained cutlass, nor was there any suggestion that any such might have been destroyed or concealed, whereas it would be difficult if not impossible for any man to inflict the multiple wounds upon the deceased without getting his clothing bespattered with blood ; it was not suggested to the assessors that regarded from one point of view the conduct of the Appellant was consistent with innocence rather than with guilt, for a man who is planning to attack a woman on a public path does not usually advertise the fact by enquiring for her from passers-by, on the contrary the more natural thing for him to do would be to hide in the bush ; and do the facts of this case preclude the possibility that the murder was committed by some other man hiding in the bush? and does the fact that no one else was seen on the path by Akua Fokuo really carry the matter very far? If the murder was committed by some one else he would have been unlikely to show himself.

All these points, and others which need not be more fully specified, should have been put to the assessors for the consideration in fairness to the Appellant. If they had been it is quite possible that the opinions of the assessors would have been different, and if they had, the Judge’s finding would have been different too. Hence we quashed the conviction.