Sannoh v S (CR APP 11 of 1977) [1979] SLCA 11 (18 December 1979)

[1974-82] 1 SLBALR Sannoh v The State 20 | SANNOH v THE STATE cA | COURT OF APPEAL FOR SIERRA LEONE, Criminal Appeal 11 of 1977, Hon Mr

Justice Ken EO During JA, Hon Mr Justice $C E Wame JA, Hon Mr Justice S MF Kutubu

JA, 18 December 1979

[1] Criminal Law and Procedure - Murder ~ Mens rea — Failure by judge to direct jury on ingredients of murder ~ Directions given on defences of provocation and selfdefence — Jury not directed to consider whether defendant had acted with malice

‘The appellant was convicted of murder by a judge and jury and sentenced to death. The main

issue in his appeal against conviction was whether the trial judge had adequately directed the

jury on the ingredients of manslaughter, specifically mens rea, where the jury had rejected the defences of provocation and self defence. The appellant's defences to the murder charge were provocation and self-defence, neither of which the jury accepted.

Held, per Warne JA, allowing the appeal:

1. The judge’s summing-up was inadequate in that it dealt with manslaughter as a result of provocation. The jury accepted neither self-defence nor provocation and were therefore left with only one verdict, that of murder. Manslaughter is unlawful homicide without malice afore-thought. The judge ought to have directed the jury on the issue of malice and the jury ought to have been asked if the appellant intended to kill the deceased or to cause him grievous bodily harm. If there had been no such intention the verdict ought to have been manslaughter. The judge deprived the jury of this opportunity of considering the altemative verdict which was fatal. In the instant case the judge directed the jury on all

| the defences open to the appellant but failed to highlight the significant facts which may have helped the jury consider the verdict of manslaughter. Therefore, the verdict of murder was quashed and substituted with a verdict of manslaughter. R v Hopper (1915) 2 KB 341 and R v Ball (1924) 18 Cr App Rep 149 applied. Cases referred to Palmer v R (1971) 55 Cr App Rep 223 Rv Ball (1924) 18 Cr App Rep 149 Rv Hopper (1915) 2 KB 341 Rv Melnnes (1971) 55 Cr App Rep 551 Legislation referred to Courts Act No 31 of 1965 s 58(2) Criminal Appeal Act 1907 s 5(2) [UK] Other sources referred to Archbold, 39" Edition para 2476 Appeal ‘This was an appeal by Kekura Sannoh who was convicted of murder on 29 July 1977 and sentenced to death by hanging. The facts appear sufficiently in the following judgment. Mr Garvas J Betts and Mrs Hannah Ahmed for the appellant. Miss MA C Jones, Senior State counsel, for the State.

a Sierra Leone Bar Assocation Law Reports [1974-82] | SLBALR

Sore ee ee

WARNE JA: On the 29” July 1977, the appellant was convicted at the High Court, held in | Kailahun by a judge and jury and sentenced to death by hanging. The court was presided over

by Navo J. as he then was. Against this conviction he has appealed on eight grounds. Among

the grounds of appeal are grounds 6 and 7.

Ground 6 states that the leamed trial judge did not adequately or correctly direct the jury F on the law relating to self-defence and thereby prevented the jury from properly considering an important aspect of the accused's defence (p 54 lines 5-24).

Ground 7 states that the leamed trial judge erred in law in that he did not direct or adequately direct the jury on the ingredients of the crime of manslaughter and its operation where the defence of self-defence and provocation are rejected by the jury.

‘Mr Garvas Betts, counsel for the appellant, submitted that the defence of self-defence was | not adequately put to the jury. He referred to p 53 line 19 of the record and to p 54 line

22. He complained that the judge did not put the true defence of the appellant as contained in the evidence of PW9 on p 46 lines 10-13 and line

33. Counsel submitted that the judge dealt only with Exhibit “C” on pp 62 and

63. Counsel urged that the issues of self- defence were not ‘adequately put in view of the behavior of PWS. PW7 and PW8. He argued that their behavior was consistent wid those who attacked. This. counsel added. is a fatal misdirection. He

____ submitted that throughout the summing up the judge read out what the witnesses said but did not analyse it in a way in which the jury would appreciate the defence.

Counsel submitted that the judge conceived the scuffle as a one to one man situation ‘when, in fact, there is evidence that there was a scuffle between the appellant and more than cone person. This defence having been raised, the judge ought to have put it tothe jury, counsel ‘added. Counsel concluded that there was not any evidence on ths in the summing up.

‘On Ground 7, counsel has submitted that there was a clear misdirection on mens rea on

the offence of murder. Counsel submitted that where a judge directs on self-defence he need rot tell the jury that if it fails they must bring him in for manslaughter either because provocation may succeed on the facts or the accused did not have mens rea for murder. Counsel urged that where on the evidence. manslaughter is clear. the judge must so direct. Counsel complained that the direction on mens rea was wrong and refers to p 52 line 33-p 53 Tine

9. Counsel submitted that this direction was inadequate. and if the direction given on malice was wrong, the jury was not given any direction on manslaughter. Counsel asserts that self-defence and provocation had been rejected by the jury and there was no direction on ‘manslaughter in self defence. He argued that the jury was precluded from considering manslaughter. Counsel referred to the following authorities: Archbold, 39° Edition para 2476; Palmer v R (1971) 55 Cr App Rep 223; Rv Mclnnes (1971) 55 Cr App Rep 551.

Miss MA C Jones, State Counsel for the respondent was invited by the court to address the court on manslaughter. Counsel conceded that there was no proper direction by the judge : on manslaughter and in the circumstances urged the court to consider the verdict of ‘manslaughter and also to invoke the provisions of section 58(2) of the Courts Act No 31 of

Mrs Hannah Ahmed. who appeared with Mr Garvas Betts, was allowed to argue one point on self-defence and she had this to say: that on the face of the record, p 17 lines 21-23, p 20 lines 13-15, the jury could not have come to a reasonable verdict and as such the appellant should be acquitted and discharged.

“The facts of the case are that on the 2" of May 1977, at Koindu Town in the Kailahun District. the deceased was being escorted to Congo Section of Koindu Town. The deceased had a bag containing money and a torchlight in his hand. They traveled on the road leading to Liberia. On the way going, the deceased switched on the torchlight to show them the way. The

[1974-82] | SLBALR_ ‘Sannoh v The State m™

light shone on the face of one Kekura Sannoh, the appellant. The appellant asked who had pointed the light on him; the deceased said it was him and apologies, explaining that he only

wanted to see his way. The appellant came up to the deceased and collared him; the deceased

‘again repeated his explanation with an apology again. The appellant, who had an iron rod, hit the deceased on his forehead and the deceased immediately fell. The two others who were

accompanying deceased ran for help. The deceased was later conveyed to Kailahun Hospital

where he later died. The appellant denied the facts and said on that day he was sitting at his | veranda with one Philip when one ian, among a group, threw a bottle at them. He asked who.

did that, and another bottle was thrown at them. He and Philip went to investigate but he was

given a slap. He therefore collared the man who slapped him but he was released by his

friends. He ran after the deceased who hit himself against a stationary lorry and wounded himself and fell down bleeding.

‘At the Kailahun Hospital where the deceased died, the doctor who examined him, made these findings and gave his findings in evidence. He testified that extemal examination revealed the following:

“a “V" shape lacerated wound on the left side of the forehead; the intemal examination

revealed a triangular depressed fracture of the forehead on the skull, there was

compression of the cerebrum caused by the fragment from the bones of the depressed

‘matter and there was massive haematoma around this area. He said the heart, lungs, and

kidneys, liver, spleen and intestines were normal. He said the cause of death was (a)

imeversible shock due to head injury, that is fracture of the skull; (b) cerebral hemorthage

with resultant cerebral haematoma. The doctor concluded that the triangular depressed fracture could have been caused by a moving very hard substance like a blunt iron.

Thave considered the judge’s direction on the defence of self-defence and I am satisfied that the direction was adequate. I therefore find no merit in Ground 6 and it must needs fail and it fails accordingly.

I shall review the judge's direction on the alternative verdict of manslaughter. The leamed trial Judge in the summing up had this to say:

“Provocation is a defence which reduces murder to manslaughter. To put it in simple terms members of the jury for you as laymen, provocation may be defined as an act done or words said, enough to make a reasonable person lose his self-control. I say a reasonable person lose his self-control. I say a reasonable man, one who acts in a normal way and not one who is easily prone to anger and violent reaction. In this case you have to consider the evidence as a whole and make up your minds whether the accused, if you are satisfied that it was he who struck that fatal blow on the deceased, was provoked to such an extent as to cause him to lose his self control before he did so.”

“The judge related the events which the appellant alleged in his statement led to the blow being struck. He continued thus: q

“if for any of the above or other reasons or any other as a whole from the evidence you

‘come to the conclusion that the accused was provoked to the extent of losing his self

control, and if it was he who inflicted the fatal injury on the deceased, then you are

entitled to say that he is guilty of manslaughter and not murder. In other words if all the ingredients, short of that of malice, are proved in the offence”.

‘The judge then directed the jury on the cooling off time between the act of provocation and the act of the accused. He concluded by saying:

“in other words if there is enough cooling period between the act of provocation and the

act of the accused he cannot avail himself ofthis defence.”

2 Sea Leone Ba Assocation Law Repos (1974-89) 1 SLBALR

In order to determine whether the leamed tral judge adequately directed the jury on the alternative verdict of manslaughter, I will consider the offence itself. Manslaughter is unlawful homicide without malice afore-thought.

It seems to me that the summing-up dealt with manslaughter as a result of provocation. This to my mind is an inadequate direction by the judge. The defence of the appellant was one of self-defence. This, the jury did not accept; and they did not accept the defence of provocation either. In such a case the jury was left with only one verdict, that of murder. The judge ought to have directed the jury on the issue of malice as regards reducing the offence to ‘one of manslaughter. They were not given this opportunity and I believe this may have affected their minds and as such they retumed a verdict of murder. The jury ought to have been asked if the appellant intended to kill the deceased or to cause him grievous bodily harm. If there had been no such intention the verdict ought to have been manslaughter. I believe the judge deprived the jury of this opportunity of considering the altemative verdict. This is in my view is fata. In R v Hopper (1915) 2 KB 341 the Court of Criminal Appeal decided that:

“whatever may be the line of defence adopted by counsel for a prisoner at the trial, the

judge is bound to put to the jury such questions as appear to him properly to arise upon

the evidence even although counsel may not himself have raised some point.”

‘The court held that there was evidence of such provocation as would. ifthe jury accepted it, justify them in finding a verdict of manslaughter, that the judge ought to have left tothe jury ‘Whether the crime was manslaughter only, and that as he had omitted to do so, the court acting under s 5(2) of the Criminal Appeal Act 1907, would enter a verdict of manslaughter which the ‘jury might have found if they had been directed upon the point.

Inthe instant case the judge directed the jury on all the defences open to the appellant but failed to highlight the significant facts which may have helped the jury consider the verdict of manslaughter. In support of my finding I will refer to the case of R v Ball (1924) 18 Cr App Rep 149 where the court took a similar view. In that case a verdict of manslaughter was substituted for the verdict of murder.

In my opinion the verdict of murder ought to be quashed. I quash it accordingly and substitute a verdict of manslaughter. I therefore sentence the appellant to (5) five years imprisonment.

Reported by Anthony P Kinnear and Glenna Thompson