Gbenyeh v S (CR APP 5 of 1975) [1976] SLCA 5 (14 October 1976)

| (1978-90) 1 SLBALR (Gbenyeh v The State 10 | CGBENYENy THE STATE cA ] COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 5 of 1975, Hon Justice ‘Awunor-Renner PJ, Hon Justice $ Beccles Davies JA, Hon Justice SCE Wame JA, 14 | ‘October 1976

{1} Criminal Law and Procedure — Appeal against conviction ~ Judge’s summing up ~ Misdirection to jury on the defence of provocation - No substantial miscarriage of Justice when evidence considered in all ts entirety ~ Jury would have reached same ‘verdict if misdirection had not occurred — Courts Act No 31 of 1965's 582)

[2] Criminal Law and Procedure - Murder ~ Defence — Provocation ~ Proper direction Manslaughter not murder

“The appellant was tried for murder and did not call any witnesses or give any evidence apart

from relying onthe statements he made to the police for his defence. In the frst statement he

admitted hitting the deceased with a matchet but claimed the deceased atacked him firs. Inthe second statement he admited stabbing the deceased and claimed he did not think that would kill him. He was convicted and appealed on a number of grounds.

Held, per Awunor-Renner PJ, dismissing the appeal:

1. The judge misdirected the jury in his summing up on the effects of malice on provocation. However, the court could only quash the conviction if, having regard tothe circumstances, a substantial miscariage of justice occurred as a result ofthe misdirection. [No such miscarriage had occurred inthis case. Based on all the evidence the jury would hhave reached the same verdict had they been properly directed.

2. The defence of provocation may arise where a person does intend to kill or inflict ¢rievous bodily harm but hs intention to do so arises from sudden passion involving loss fof self control by reason of provocation. Applying this principle, it was clearly a misdirection for the tial judge to have directed that if the appellant didnot intend to kill, the deceased then he was not guilty of murder or manslaughter. If he had intended to kill ‘or cause grievous bodily harm but his intention to do so arose after he had been provoked $0 a8 to lose all self control then it would be manslaughter. However the misdirection ‘complained of was not such that a reasonable jury if property directed would have come to different conclusion and this was another instance when s 58(2) ofthe Courts Act No 31 of 1965 could properly be applied. AG for Ceylon v Kumarasinhedge Don John Perera [1953] AC 200 and Lee Chur-Chuen v The Queen {1963] AC 220 applied.

Cases referred to

[AG for Ceylon v Kumarasinhedge Don John Perera {1953] AC 200

Brima v R (1968-69] ALR (SL) 220

‘Lee Chun-Chwen v The Queen {1963] AC 220

Rv Bah {1968-69} ALR (SL) 30

‘Legislation referred to

‘Courts Act No 31 1965 5 $8(2)

Other sources referred to

Archbold 36th Eton paras 931,939, 2487, 2508,

Bs SeratzoeBarAsocinon Low Ros ‘(1974421 SLBALR ; a Ge WEP SRB eS a

Appeal

‘Toe was an appeal agaist the Judgement of the High Court at Moyamba, convicting the

appellant of miner and sentencing him to death, Te ats appeain the following judgement

Mr JB Jenkins-Sohnston forte appellant

‘Mr Bankole Thompson for the respondent.

[AWUNOR-RENNER PJ: The apelin inthis case wasted inthe High Cou at Moyambe

‘inthe 10" day of Tanuary 1975 forthe offence of miner. He was accordingly convicted and

Sentenced o death and it agains this conviction that he has now appealed to this out.

“The facts in tis case are very simple. According to the prosecution, one Laseni Shek said he ad gone toa village called Kanga wit is bag of ice and his matchet. He place his Thutchet and bag of ce onthe round and the appellant picked up the mache. When be asked fim why he had picked up his machet and asked him to retum it to im the appellant titempecd to wound him withthe macht. One Kaloko who was aroun then aised Shek to 0 an report the matte othe Chief. He let o go and do so but as he was going be heard Tose, He then enced his eps to where the noise was coming from and found that one Brima ‘Shen the deceased in his ease, had ben wounded the appellant was also atthe seene and tho mache which ha been taken from him, was Ing on the ground. The deceased then told Sok dat he appellant had wounded him andthe appellant admited this. The deceased was then taken away. Another wiess forthe prosecution, one Kpanahum Kaloko, who was dead tthe time of tho tial in High Cour but whose depeson ad been tendered in evidence, had tated tht he was il atthe time and was in his veranda when he saw the appellant coming ‘lowiy wih @ machet and stabbod the deceased but since he was ill and was unable to do lnything he shouted and people came tothe scee.

“The appellant didnot pve any evidence a the wal and nether did he cal any witnesses but nsead teed on two statements which he had made tthe police and which were tendered imevidence bythe proeeution atte tala exhibits B & C. Inthe former statement Exhibit “D'the appellant said quote

“itis noe that Iwas the one who wounded the deceased. On the date ofthe incident

30.173 Heft my adress at Nayahun village ent to Bondahun village to pay a visit 0

iy younger braber. On my way going, on reaching Kanga village it was then the

‘Exeusod banged himself agains the matches tat Iwas caryng thereby be reeived the

round on his fread. Lnow say thatthe deceased man saw me passing through thet

Vilage Kanga he then mushod on me and gripped me it was during the suze he

Taawod the wound on his fread. Before the deceased rushed on me I heard. he

“lagers saying get old of him. lam not the omer ofthe matchet hat Twas arying on

the date ofthe incident 301,73, Lam now saying that collected the matchet from the

round when I saw the villages coming towards me. It was then I tabbed him onthe forehead. The deceased was the ft person who confronted me. The villagers then arrested me.”

Ini second statement Exhibit appellant ites I quote:

siti ue that I stabbed the deceased on the dat ofthe incident 304.73. I was not

npeting thatthe stab wound would il the deceased. Ido not know what acually

tempted met do so. am ony asking former.” ‘As stad eae the appellant was convicted on the charge of murder and has now appealed on the following rounds.

(1974-82) 1 SLBALR (Goenyeh v The State 1s

1. "That the leamed trial judge seriously misdirected the jury on the effect of malice on

the defence of provocation.

2. That the learned trial judge misdirected asthe jury in treating the offences of murder

‘and manslaughter asthe same,

3. That there was no evidence of malice to have justified a verdict of guilty of murder.

4. That the leamed tial judge erred in failing to put to the jury the possibility of a

reduction to manslaughter inthe ight ofthe evidence.

‘5. That the verdict is unreasonable and cannot be supported having regard to the

evidence before the cout ‘Ground 1

(On the first round of appeal, counsel forthe appellant argued thatthe learned tral judge seriously misdirected the jury on the effect of malice on the defence of provocation. The ‘relevant passage complained of in the summing-up i as follows.

Tquote:

“Ics also my duty to tell you that even if you find provocation, itis still murder, iis stil

murder if there is malice either express or implied however grave the provocation may

be, that isto say although there is no evidence of provocation but if you find there is provocation but in considering the evidence in its totality you also find malice express or implied then that provocation has no leg to stand on because it is shrouded with malice,

‘malice negatives provocation — once there is malice provocation ends because malice is

mention”.

‘He further argued briefly that the misdirection was a serious one as there was evidence of provocation and the jury may well have come to a different conclusion had they been properly <irected and referred the court to the case of Lee Chuun-Chuen v The Queen (1963] AC

220. He also referred tothe case of Brima v R [1968-69] ALR (SL) 220 at p 23.

“The question I must now ask myself is whether the passage complained of alone is in fact ‘a misdirection. The answer is yes in my opinion. However in Archbold, 36" Ea at paragraph ‘931 itis tated as follows:

“Where a misdirection as to the law is established by the appellant, the conviction will be

{quashed unless the prosecution can show that on aright direction a reasonable jury would

inevitably have come to the same conclusion ...",

and there are a host of authorities to support this provision. Again in Archbold, 36" Ed at

343 para 939i is stated as follows:

“By the proviso to section 4(1) ofthe Criminal Appeal Act 1907 (which is equivalent to s

'58(2) of our Cours Act Number 31 of 1965), notwithstanding thatthe court is ofthe

‘pinion that the point raised in the appeal might be decided in favour of the appellant,

they may also dismiss the appeal if they consider that no substantial miscariage of

Justice has actually occurred.”

Applying the principles as stated above to this case, can it be said thatthe jury properly ‘directed could have come to the same conclusion or that ths is a fit and proper case in which to apply the proviso to section 58(2) of the Courts Act No 31 of 1965? The answer is in the affirmative to both questions. There is ample evidence against the appellant. The appellant himself relied on two of his statements, which were tendered in evidence by the prosecution. In those two statements the appellant gave three different versions as to what happened onthe day in question.

cy ‘Sie Leone Ba Asoiaton Law Reports (197482) 1SLBALR ares ge SI ee ee

In his first statement, Exhibit "B’ he denied that he was the one who wounded the deceased. Again in the same statement he said that he was going toa village called Kanga and it was then that the deceased banged himself against the matchet that he was camrying and thereby he received the wound on his forehead. He also said that when he was passing through the village the deceased rushed on him and gripped him and that it was during the strugs that hae received the wound on his forehead and that before the deceased rushed on im he heard the villagers saying that they should get hold of him. He finally said in Exhibit ‘B” that he collected the matchet from the ground when he saw the villagers rushing towards him and as the deceased was the first person who confronted him he stabbed him on his forehead.

In Exhibit ‘C’, his second statement, the appellant said I quote:

“tis true I stabbed the deceased on the date of incident 301.73. was not expecting that

the sab wound would kill him. I do not know what acually tempted me to do so. am

‘only asking for mercy’.

‘A prosecution witness also deposed how he saw the appellant walking slowly behind the deceased and then stb him. On the whole, the appellants version of what happened is most ‘conflicting and coupling this with the evidence adduced by the prosecution one fail to see how any reasonable jury properly directed would have come to a different conclusion and, furthermore this court is ofthe opinion thatthe misdirection complained of could not have caused any miscarriage of justice.

Ground 2

“The second ground of appeal raised by the appellant was that the leamed tial judge misdirected the jury in treating the offence of murder and manslaughter as the same, The passage complained of states as follows:

“Bat it is upto you to decide that you are not sure and satisfied that he intended to kill or

‘cause grievous bodily harm. If $0, say that the accused is not guilty of murder or

‘manslaughter. If you say that the accused took that matchet, somebody else's matchet as

hie himself said and he stabbed Brima Sheriff but he the accused did not intend to kill

then say repeat he is not guilty of murder or manslaughter.”

‘The case of Lee Chun Chien mentioned above was a murder case from Ceylon, which came before the Privy Council. It was held thatthe defence of provocation may arise where & ‘person does intend to kill or inflict grievous bodily harm but his intention to do so arses from ‘udden passion involving loss of self contol by reason of provocation and. therefore. there had been a misdirection on the part of the trial judge at the trial of the appellant on a charge of ‘murder when he directed the jury that ifthe provocation relied on by the defence caused inthe ‘mind of accused an actual intention to kill or cause grievous bodily harm then the killing would tbe murder. In giving the opinion of the board in the case of Lee Chun Chen, Lord Devlin thought it fit to reaffirm the law as stated by Lord Goddard in the case of Atorney General for Ceylon v Kumarasinhedge Don John Perera {1953] AC 200 at p 206 when he said, I quote:

“The defence of provocation may arse where a person does intend to kill or inflict

srievous bodily harm but his intention to do so arises from sudden passion involving loss

(of self control by reason of provocation.”

Applying the above principle inthe two cases mentioned above ie, the ease of Lee Chun ‘Cluen and the case of Attomey General for Ceylon v Kumarasinhedge Don Jol Perera then it was clearly a misdirection forthe leamed tral judge in this case to have used the words ‘complained of for it would be manslaughter if he had intended to kil or cause grievous bodily hharm but his intention to do so arose after be had been provoked so as to lose all self contol

The pages read for this report end here. The judgment continues in the PDF.