Gbla v S (CR APP 2 of 1976) [1976] SLCA 6 (1 December 1976)

tues) SLALR Gna The Sse 6 | GLA y THESTATE ca COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 2of 1976, Hon Mr Juste ‘SB Davies JA. Hon Mr sce S CE Wame JA, Hon Mr JuseeC S Daves IA 1 December

{1} Criminal Law and Procedure ~ Murder ~ Directions to jury ~ Mere reproduction of teat book definion of malice afoethought ~ No explanation of the definition or pplication tothe facts ~ Duty of judge to explain applicable principles of law and how to apply law tothe facts

(2) Criminal Law and Procedure - Murder ~ Direction to jury ~ Whether tral judge Soul have directed Jury on matter of insanity where no sugestion appellant insane Fudge should not det jury oa hypothetical questions of law

[3] Criminal Law and Procedure ~ Murder ~ Directions to jury — Relationship between provocation and retaliation a factor to be considered by jury when deciding whether Provocation enough to cause a reasonable man to doas the accused did {4) Criminal Law and Procedure ~ Murder ~ Fallure by tral judge to invite jury to Consider verdict of manslaughter ~ Circumstances of case necesitated invitation to jury to consider verdict of manslaughter . “The deceased wrote to the appellant on behalf of a third party secking payment of debts owing. “The appellant ook exception to the wording of the leer and confonted the deceased, which relied ina etal exchange between the (wo men athe appellant's house. The apelant Sruck he deceased under he chin in the presence of a number of witnesses and then 0k im {o another room in his house. Witnesses then repo hearing the sound offal and the deceased was found on te floor whee te appellant was ying tit him. When he appelant ‘eas prevented by witnesses from doings. the deceased made unsuccesfl attempts o stand Upard was observed tobe bleeding around the nose, face and part of his ar He was ated by the local dispenser but his condition worsened and e ded two day ater. Te apelnt Alleged that the deceased. had slapped him. resuling in the appellant ealiaing and the ceased fling tthe ground. The appellant was convicted of murder.

‘On ageal. the appellant argued that a proper direction by the ial judge onthe act and iment ofthe appllane wouldnt have produced a vert of murder. He contended tha the thal judge's diecion relating to mace aereough was defective in that he merely reproduced the textbook dfiition of malice aforahought and never assisted the jury by Crplainng the dfnton o applying it he facts. The appelant furer alleged that the al Jude ened by dieting the jury on the mate of insanity, when there was no suggestion hat the appellant was insane. Iwas also contended that the tal judge eed because indretng the jy onthe issue of provocation he invited them to ake into account the amount of force sed by the appellant Held, per CS Davies JA, allowing the appeal and substituting a verdict of manslaughter:

1. Theta judge's direction tothe jury relating to malice afrethought was defective in that

he merely repradaced the textbook definition of malic forethought and never assisted

the jury either by explaining the definition o by applying it to the facts isthe day of the judge to explain in imple language the principles of law applicable to the case and

Sir Lee Bir Asean Law Repors——_(197882]1SLBALR how wo apply the law to the facts. Kargho v R {1968-69} ALR (SL) 354 applied Samara ¥R{L970-71} ALR (SL) 316 refered to.

2. As it had never been suggested that the appellant was insane a the ime of the events leading tothe death ofthe deceased, the rial judge ought not to have directed the jury on this mater. A judge should not direct the jury on hypothetical question of law as doing s0 may have the effect of confusing the jury. Bangura v R [1968-69] ALR (SL) 214 ppliod.Feika w R [1968-69] ALR (SL) 342, Rv Ba [1968-69] ALR (SL) 30 and Amara VR [1968-69] ALR (SL) 220 referred to.

3. The comect manner to refer 1o the relationship between provocation and retaliation in summing-up is as factor to be considered by the jury when deciding wheter the provocation was encugh to cause reasonable man to do asthe accused did. Te trial judge ered by puting the relationship between the provocation andthe retaliation as a Separate and distinct third requirement forthe jury to consider and by leading the jury to believe that what they had to consider was the force with which the deceased fll as a ‘cansequence ofthe retaliation rater than the form the retaliation took. Brown v R (2972) 56 CAR 564 followed

44. The tral judge should have assisted the jury by directing them to apply the principles he was enuscaing tall the circumstances ofthe case. The jury should have been given the opportunity of deciding wheter the words and actions ofthe deceased were enough 10 rouse sudden passion leading ols of self ontol by reason of provocation. Amara v R 1196869] ALR (SL) 220 followed.

‘5. Having regal tothe creurstanoes leading tothe death ofthe deceased, the tal judge cought to have invited the jury to considera verdict of manslaughter.

‘Cases referred to

‘Amara [1968-69] ALR (SL) 220

BaangurayR (1968-69) ALR (SL) 214

Brown v (1972) 6CAR S64 |

Feikav R (1968-69) ALR (SL) 342

Karghov R (1968-69) ALR (SL) 354

Ry Bak {1968-69} ALR (SL) 30

‘Sumara vR (1970-71) ALR (SL) 316

Appeal

“This was an appeal to the Cour of Appeal for Sierra Leone by the defendant, David Parcke

Gola, against a conviction for murder in the High Court on 16 December 1975. The fac

appear in the following judgment.

Dr A Conteh and Mr H Ahmed forthe appellant

Solicitor. General forthe State.

CONSTANT § DAVIES JA: Ata session of the High Cour siting in Bo the appellant was

‘on the 16® day of December 1975 convicted of the murder of one Joseph Bindi and sentenced

to.death by hanging. tis agains this conviction tat he has appealed to this Court ‘The prosecution's case was that the Second prosecution witness, oe Sam Smart a trader,

asked the deceased Joseph Bindi to write to the apellat, who was one of his debuxs, requesting him to pay what he owed. The letter which was ultimately wniten by the deceased fd sent to the appellant reads:

tues scone Cihay Te Se la a

Dear Mr bl

‘Wil your nr pct am kindy sing 1 ste Your areas ome The

tar ny cotoner hom T wed cle ps fo as emus te tha

Souicolet alls rear oro wt

Ire

Yous Fait,

MS”

fer zing teeter the appl tok it Sma eat corp hate sok capone Oeepesionmmbl rp He wane tow wo ad wien he (ese Se Sed rt wash wo had kd Bin he dace 0 we or etiam ved Sma ocne 0 hs base wi he dees. Tarts esrb Be tame ay Sar, he decent the dese’ wife Ages Bind even

| Srettienwitcn) wet ote aps whom ey fend a is oom wih hs ie He Ma tem ae wc ey scp tc sd Bid was he vo ad wit te (Ser pet next produced the ler ea loan ped on the deceased ‘Shag ta ok exon oe expeion“hronble eaps whch he Bough was wage dacou! replat fwas trese he apt dt undosand re aa as wy he tht expen os ing and wet on asf 0 ae certo be Pinca toca cho who wal aaa hi at expesion was ‘ae mang, The ape ten tl Sart et fe he sl not sk Sch a Sud pronase dod owe him

"There then appeared have been some veal xchange between he dead and te sepa fag chapel vas leg to ave gene deceased bow under be SEE tthe gu ld ete deceased ado fot ft oom a appa oro ttat exyonc The wud ofall as nes Her nd pepe rated oe ere. ‘Re tn ave wes Aur Seay he sth psn ines) wo sid hat wen he sta he cued on he or anf he applamaig an aeng him e ape apelin He eda fe deel who hal Hod aren mse fe and Sar; ns nee was raking unusentlatengs o Pe. Sse the deal ws matte Sipe wo teat hand sat hmtome He pew wae nd was ken wa atk Reap in Bo whee be warned rd wha he dd wo dys ae ‘Repl’ sume he ple whic was tendae pat of te poco see Ter cB esd on bye pelt fr cece pie at eo he cly SNe har append afer hand he des trom and f bow te deed SS any wh luted ne death Afr harang sown verson of Shuthaynen romano ty seg ot etn cot:

stn the van e he ced sped me on my, ictal and eel ne

Jets spt wenden hs ip My wie Ass Oia rd some ends whose

sr ao omenbe ak ae Bo he desert Naa or eae. Pa

Gaak ofNhlabedmenabad ope ging Bod ater bow”

‘Ther was no del erin th Curt low or in hs Court ha he eae ad dd sarmutol eae ppl, But Cua eh pela gel hat he ih of be eae eetacte tet and mention of tesla woud nt hae rial SRRESAESIS Harel te ofthe pts dn ht aldo pounds of ape

Fit ecole! dat be armel u's ono he aw ing 1 mae stoi son dtacine to epee apl o he ption of haw 1 ich SOSSRRU wine pound lappa reaper Sted at he eae

16 Siar Lene Bar Assovinton Law Reports (u974s2] 1SLBALR tral judge merely reproduced the text book definition of malice aforethought and never assisied the jury either by explaining the definition or by applying it to the facts. Our ‘examination of the summing-up has proved counsel's complaint to be well grounded. In Kargbo v R{1968-69] ALR (SL) 354 at 358 Tambia JA sai:

“He the wal Judge adopted a procedure which has been condemned both by this court

and by the Court of Appeal in England. He read passages from Archbold, without

analysing the abstruse proposition of law stated therein. Members of the jury ae lay men

‘who have no training inthe law and are liable to be confused when passages ofa textbook

are ead to them. They will not be in a position to comprehend the dificult questions of

law applicable to the facts ofthe case. Iti the duty of the Judge to explain in simple language the principles of law applicable to the case and how to apply the law to the facts.”

See also Donald Macauley Jin Sumara v R {1970-71} ALR (SL) 316.

‘Secondly, counsel for the appellant contended that leamed tril judge confused the jury when he said:

“Have the prosecution adduced such evidence as to make you feel sure thatthe accused

‘person was sane a the time he unlawfully killed Bindi?”

‘At no time in the course ofthe case did anyone suggest thatthe appellant was insane ‘when this incident occurred. The leamed juége therefore ought not to have directed the jury on this mater. This court has on several occasions pointed out thatthe judge should not direct the {jury on hypothetical questions of law as doing so may have the effect of confusing the jury: Rv Bah (1968-69] ALR (SL) 30 at 34, Amara v R {1968-69} ALR (SL) 220 at p 225, Feika v R [1968-69] ALR (SL) 342 at 347 and Bangura v R [1968-69] ALR (SL) 214 where Tambia JA. sid:

“It is dangerous for judges wo embark on a voyage of discovery in order to find possible

‘defenses which are not supported by any evidence. This Court held in Walker v R that if

judges adopt such a course they will only mislead the jury and confuse ther minds.” Another complaint of counsel was that:

“The learned tral judge erred in law when directing the jury on the issue of provocation

hae invited them to take into account the amount of force used by the apellan.” “The passage of the summming-up refered to reads:

“tis for you to decide whether such series of acts would amount to provocation as Ihave

explained it to you. Would they be such as to make an ordinary literate man lose his sel

‘control and become so subject to anger and passion as to make him unable to contol his

‘actions? If you think they are capable of doing that then the next thing you are to decide is

‘did these acts in fat affect the accused so that he lost his temper to such an extent? Then

you have to decide — you have to judge the amount of force used. If you accept his

‘evidence tat he hit him and he fell and if you accept the evidence that he fell down with

such force thatthe sound of te fll was heard some thity yards away and atracted some

people tothe scene.”

In this passage it does seem to us that apart from. quite wrongly we think, puting the relationship between the provocation and the retaliation as a separate and distinct third requirement for consideration by the jury the learned tril judge further confused the jury by leading them to believe that what they had to consider was the force with which the deceased fellas a consequence of the retaliation rather than the form the retaliation took, inthis case a blow withthe bare hand. We think thatthe comeet manner to refer to the relationship between

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