Kamara v State, 1972-73 ALR S.L. 410

SECTION 44

with, and I am certain Mr. Fewry is well familiar with them. The application is therefore dismissed. There will be no order as to

Costs

Application dismissed. KAMARAv.THESTATE Court of Appeal (Tejan, Agnes Macaulay and Beccles Davies, JJ. A.): November 8th, 1973 (Cr. App. No. 5/73) [ 1] Criminal Procedure-appeals-appeals against conviction-miscarriage of justice-for purposes of Courts Act, 1965, s.58(2) judge's wrong direction on law or fact justifies quashing conviction unless on correct direction only reasonable verdict is guilty: When a trial judge has directed the jury wrongly on a point of law or has made a mistake of fact or omitted to mention a point in favour of the accused, the conviction should be quashed on appeal unless the case can be brought within the Courts Act, 1965, s.58(2) on the ground that no substantial miscarriage of justice has occurred since, on a correct direction the only reasonable and proper verdict would be one of guilty (page 420, lines 7-35).

[2] Criminal Law-wounding with intent-elements of offence-grievous bodily harm means really serious bodily harm: The meaning of the expression "grievous bodily harm" in the Offences against the Person Act, 1861, s.18 is the ordinary and natural meaning of really serious bodily harm (page 418, line 22- page 419, line 11).

[3] Criminal Law-wounding with intent-elements of offence-intent responsible man committing unlawful voluntary act aimed at com· plainant taken to intend natural and probable result of grievous bodily harm-proof of actual foresight immaterial: The test for the intent necessary to convict of wounding with intent is what an ordinary respon sible man would have contemplated as the natural and probable result of his acts, so when an accused commits an unlawful voluntary act, clearly aimed at the complainant, of such a kind that grievous bodily harm is the natural and probable result, proof of his actual foresight of the consequences is unnecessary (page 416, line 36 -page 417, line 6; page 417, lines 13-16). [ 4] Criminal Law-wounding with intent-elements of offence-wound break in continuity of tissues of body caused by application of violence: For the purpose of the offence of "wounding with intent" a wound means an injury inflicted by violence on the part of the accused causing a break in continuity of the tissues of the body either internal or external (page 415, lines 13-36).

KAMARA v. STATE, 1972-73 ALR S.L. 410 C.A. The appellant was charged in the High Court with wounding with intent to do grievous bodily harm contrary to s.18 of the Offences against the Person Act, 1861. The appellant attacked and injured the complainant after an argument. The injuries were consistent with having been inflicted 5 by a sharp instrument although no witness at the trial gave evidence of having seen a weapon and none was produced. The trial judge directed the jury that- (a) "wound" included any incised wound on the body, any puncture or laceration, any contused wound and the continuity of the normal skin structure must be proved to 10 have been broken; (b) if the jury found that in fact the accused did inflict injuries in the circumstances alleged by the prosecution then they might infer that he had the intention to cause the injury; and (c) "grievous bodily harm" meant such harm as would seriously injure the body of the complainant. The jury found the appellant 15 guilty of wounding with intent and he was sentenced to 12 years' imprisonment. The appellant appealed against his conviction on the grounds that (i) he was not guilty of the offence; (ii) the implement alleged to have caused the wound was not produced in court; (iii) the 20 evidence of prosecution witnesses was contradictory and should not have been accepted; (iv) the complainant and appellant had not previously been antagonists; and (v) a retrial would be justified. The Court of Appeal held that there was no substance or merit in· any of the grounds of appeal, but considered the trial 25 judge's summing-up in relation to the elements of the offence of wounding with intent to do grievous bodily harm, the operation of the Courts Act, 1965, s.58, and the appropriate sentencing policy to be applied. The appeal was dismissed, but the appellant's sentence was 30 reduced to seven years' imprisonment. Cases refened to:

(1) D.P.P. v. Smith, [1961] A.C. 290; [1960] 3 All E.R. 161, applied.

(2) R. v. Cohen (1909), 2 Cr. App. R. 197, applied.

(3) R. v. Haddy, [1944] K.B. 442; [1944] 1 All E.R. 319.

(4) R. v. Smith (1837), 8 C. & P. 173; 173 E.R. 448, applied. Legislation construed: Offences against the Person Act, 1861 (24 & 25 Viet., c.100), s.18:

"Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence and being convicted thereof shall be liable to imprisonment for life." Courts Act, 1965 (No.31 of 1965), s.58:

(1) The relevant terms of this sub-section are set out at page 419, lines

(2) The relevant terms of this sub-section are set out at page 419, lines

The appellant appeared in person. C.S. Davies, Sol.-Gen., and Turay, Senior State Counsel, for the State. TEJAN, J.A., delivering the judgment of the court: The appellant in this case was convicted at the Kenema High 15 Court of the offence of wounding with intent, contrary to s.18 of the Offences against the Person Act, 1861, on January 24th, 1973. The facts of the case are in brief as follows: On April 26th, 1972, the complainant who was the headman in charge of Manowa ferry steered his pontoon to the other end of the ferry where the appel- 20 lant was waiting in his vehicle. This was about 7 a.m. Without waiting for the complainant to call him to enter the pontoon, the appellant drove his vehicle towards it. The complainant told the appellant to reverse his vehicle but he refused to do so. The appel lant who was wearing a jacket, came out of his vehicle, put his 25 hand into his pockets and threatened to beat up the complainant if he would not take him across the ferry. The appellant, who had his left hand in his pocket approached the complainant. He took his hand out of his pocket and hit the complainant on his face after he had taken off his jacket. The complainant screamed and 30 fell on a flat concrete surface without any kind of protection. The appellant went on top of him and continued to beat him until Sam Margai was able to remove the appellant from the complainant. The complainant's left eye bled and fluid oozed from it. He was taken to Kailahun Hospital on the same day and was 35 examined and treated by Dr. Garber. The examination of Dr. Garber revealed that the complainant had (a) lacerated wound on the left eye ball; (b) deep lacerated wound on the left cheek below the eye; and (c) wounds on both knees. In the opinion of Dr. Garber, the injuries were serious and resulted in permanent 40 disability and they were consistent with the penetration of a sharp instrument. The complainant was admitted to the Kailahun Hospital

KAMARA v. STATE, 1972-73 ALR S.L. 410 C.A. where he was for five days before he was discharged and referred to the surgeon specialist in Kenema Hospital. At Kenema Hospital, Dr. Ulric Jones, the surgeon specialist, examined the complainant. The examination revealed that the complainant had a penetrating injury of the left eyeball which 5 was already complicated by infection of the inner layers of the eyeball. As there was a threat to the vision of the right eyeball, Dr. Jones had to remove the left eyeball so as to preserve the sight of the right. The complainant made a slow recovery and was discharged on May 16th, 1972 but was asked to continue 10 treatment as an out-patient. The injury Dr. Jones found on the complainant was consistent with its having been inflicted by a sharp instrument. During the entire case for the prosecution, no witness gave evidence that he saw any instrument in the hand of the appellant, 15 but the complainant said that when the appellant hit him on the left eye, he thought that an implement must have been used to cause such an impact. He further said that when the appellant removed his hand from his pocket and hit him he merely saw a sudden flash. 20 In his defence, the appellant relied on his statements which he had made to the police. His first statement was as follows: "On Wednesday April 26th, 1972, I left Kailahun early with my vehicle registration No. E.L.320. I was the driver of the vehicle. I arrived at Manowa ferry by 7 a.m. The ferry was 25 over the river towards the Manowa side. There was no other vehicle ahead of me. I sounded my vehicle hom to the ferry men in order to cross. I was going to Segbwema with one V andy Gobio and Musa. A little after the ferry landed from the other side with three workers. On their arrival, one of 30 them, the complainant said that on that day they would not cross with single light vehicles because the gasoline was in sufficient. I went up to them and started to beg them to take me as I was a passenger driver and if I stayed out long I would not get passengers. He told me that he was the headman and 35 what he said was final. I then told him that when he was trying for the work he was humble but when he has got the work, he does not want to do it. He rushed up to me and said that if I repeated it he would beat me. I said that I will not repeat it but I have said it. He told me that I was a fit-yai man, 40 and said that I was a dirty driver. I reiterated it to him, he

held my shirt on my neck and started to push me backwards, when I went into a cement gutter and fell in. He jumped over me and fell also into the gutter. In the struggle one of the ferry men came and separated us. After the separation, he 5 told me that I had wounded him on the eye. His hand was on his face. I did not see the wound at the time. I was also wounded on my two feet. I did not hit him with anything on his face. The wound he sustained was when he fell over into the gutter. I left them at the scene and came to Pendembu 10 police post and reported my assault. I have had no previous palava with this man before. I did not use any knife to wound him. This is true." In his second statement the appellant said: "It is true. I rely on my previous statement to the police." 15 After the learned trial judge had summed up to the jury, the jury returned a verdict of guilty of the offence of wounding with intent, and the appellant was sentenced to 12 years' imprisonment. The appellant has now appealed to this court against his con~ viction on four grounds: 20 "(1) That I was not guilty of the offence; that the medical report said that the complainant's eye was wounded by an implement which was never produced in court.

(2) The evi dence of both the second and third witnesses for the prosecu tion was contradictory and as such should not be accepted. 2 5 ( 3) That even before the alleged incident there had never existed any form of contention between the complainant and myself.

(4) That I am asking for retrial of this case." We have discussed the evidence with regard to the appellant's grounds of appeal and we have come to the conclusion that there 30 is no substance or merit in any of the grounds. Nevertheless, since the appellant is not represented by counsel, this court called upon the Solicitor-General to address it on certain aspects of the case with regard to the summing-up of the learned trial judge in rela tion to the charge of "wounding with intent to do grievous bodily 35 harm." In his summing-up, the learned trial judge said: "To wound as alleged in the first count, is to injure any part of a man's body which may render him in fighting less able to defend him himself or annoy his enemy." This explanation of the word "wound" is 40 obviously incorrect. The explanation of the learned trial judge can only apply to the word "maim''. But later in the summing-up, the

KAMARA v. STATE, 1972-73 ALR S.L. 410 C.A. trial judge did say that "'wound' includes any incised wound on the body, any puncture or laceration, any contused wound .... The continuity of the normal skin structure must be proved to have been broken." The medical witnesses described the wounds found on the comw 5 plainant. According to Dr. Garber, the complainant had lacerated wound of the left eye-ball, a deep lacerated wound on the cheek below the eye, and bruises on both knees. Dr. Jones, the surgeon specialist to whom the complainant was referred, had to remove the left eyewball so as to preserve the sight of the right eye-ball. Both 10 medical officers agreed that the injuries were consistent with having been inflicted with a sharp instrument. What preyed on our minds was whether an eye-ball is part of the skin, since wounding involves the breaking of the skin, and to constitute a wound within the Act, the continuity of the skin 15 must be broken. But the evidence of the medical witness proved that there was lacerated wound of the left eye-ball and also a deep lacerated wound on the left of the cheek below the eye. Glaister in Medical Jurisprudence & Toxicology, 8th ed., at 213 (1945) states that- 20 "all lesions of the body, external or internal, caused by the application of violence may be designated as wounds. A wound is therefore a solution of continuity of any of the tissues of the body caused by injury." There cannot be any doubt that an eye-ball is an organ of the 25 body - a part of the body serving some vital function. Even if the eye-ball is considered to be an internal organ of the body, once it is injured, it becomes a wound within the statute on the authority of R. v. Smith (4). In that case, a blow was given with a hammer on the face which broke the lower jaw in two places; the 30 skin was broken internally, but not externally, and there was not much blood. It was held a wounding within the statute. However, in this case, there was evidence of deep lacerated wound on the left cheek below the eye of the complainant, and we have come to the conclusion that the jury properly found that the complainant's 35 wound was within the statute. The next aspect of the case which gave us some concern was the "intent." With regard to "intent" the learned trial judge said: "When you consider the evidence as a whole, if you find that in fact it was the accused who inflicted the injury in the 40 circumstances as alleged by the prosecution, then you may

infer from those circumstances that he had the intent to commit the injury which the prosecution is saying he did." The evidence was that when the complainant requested the appel. lant to reverse his lorry, he refused to do so. Instead, with his 5 hand in his pocket, he approached the complainant, removed his jacket and then hit the complainant on his face. The complainant fell on a concrete surface and the appellant went on top of him and beat him up. As a result of this act of the appellant, the com. plainant sustained certain injuries. On the other hand, the appel· 10 lant's explanation was that during his struggle with the complainant, the complainant fell into a gutter and sustained the injuries. The appellant also said that while he was engaged in an argument with the complainant, the complainant pushed him backwards until he fell into a gutter. 15 In this state of evidence, it can be said that the defence set up by the appellant was two· fold. The first was a tentative defence of self~efence in that the complainant was said to be the attacker. The second defence could be placed in the category of accident - that while the complainant and the appellant were struggling in 20 the gutter and without any further act on the part of the appellant, the complainant came to sustain his injuries. Referring to the defence of. the appellant, the trial judge said in his summing· up: "The statement of the accused was tendered by the police. 25 The accused elected to rely on his statement. He is entitled to do so in his defence. He is saying that what happened to the complainant was not his (the accused's) act; he is saying that he did not intend to inflict the injuries described and it was merely accidentally that the complainant sustained the 30 injuries." The trial judge did not, rightly in my view, deal with the tentative and feeble defence of self-defence but in the circumstances of the case the judge's direction to the jury was proper and the jury properly ruled out accident. Once accident had been ruled out, the 35 court thinks that the judge ought to have gone into more detail with regard to intent to do serious bodily harm. It is the law that a man must be taken to intend the natural consequences of his act. The intention with which a man does an act can usually be determined by a jury only by inference from the surrounding 40 circumstances including the presumption that a man intends the natural and probable consequences of his act. The jury then must