The appellant was convicted on the 11th December, 1958 before Bossman J., sitting with a jury at the Assizes holden at Cape Coast, upon a charge of murder. He has appealed to this Court against his conviction.
(His lordship stated the facts, and proceeded:-)
The notes of the Judge's summing-up attracted our attention, and we granted leave to appeal. When the appeal came on for hearing we asked learned Crown Counsel for the respondent whether he could be of any assistance to the Court even before hearing counsel for the appellant. He readily agreed, and conceded (properly, in our view) that the Judge's summing-up fell so far short of what the law required that he could not support the conviction. We are of the opinion that although the learned Judge took meticulous care in his summing-up in explaining the law of murder to the jury, and also in recapitulating the evidence for the prosecution, he unfortunately misdirected himself, both by actual misdirection and by non-direction, as to the requirements of the law in regard to the defence. We considered that the passages in the summing-up to which reference will be made in this judgment were so gravely at fault as to amount to a substantial misdirection on a point of law, which made allowing the appeal inevitable.
Crown Counsel raised the following points:
"That the learned trial-Judge did not appear to have considered the defences of provocation and self-defence: He completely omitted to direct the jury on the defence which was raised or on that which ought to have been considered. From his summing-up the trial-Judge appeared to have usurped the functions of the jury, and directed them to return a verdict of guilty without leaving it to them . In my view of the evidence as a whole it would be a matter of conjecture what verdict the jury might have returned even on a proper summing-up. It is clearly a case in which the proviso to section 10(1) of the Court of Appeal Ordinance, 1957 could not apply."
[p.211]
With all these submissions we agreed.
The learned Judge in his summing-up treated the statement of the appellant as amounting to a confession.
(His lordship read the second of the three paragraphs appearing in the headnote as from the Judge's summing-up, and proceeded.--)
We do not think that the appellant's statement amounts to a confession of murder pure and simple. It is a statement admitting killing; but killing may not be murder by reason of provocation; it may be justifiable if in necessary
