JUDGMENT OF CRABBE J.S.C.
Crabbe J.S.C. delivered the judgment of the court. The appellant was convicted before Bannerman J., sitting with a jury, in the Criminal Sessions at Kumasi, Ashanti, on the 15th February, 1963. The offence charged against him was that he on the 1st November, 1962, murdered one Ama Serwah.
In his final charge to the jury the learned trial judge said as follows:
"If satisfied that death was caused by manual strangulation and not satisfied that it was in self-defence, guilty of murder.
If satisfied that accused stepped on neck negligently, consider manslaughter. If satisfied accused stepped on neck purely accidentally, not guilty. Benefit of doubt to go to accused."
The only ground of appeal argued by Mr. Addo on behalf of the appellant is in these terms: "That the learned trial judge erred in not directing the jury on the alternative defence of provocation."
[p.425]
The learned judge's notes were very sketchy, but it is clear that counsel for the defence went in for complete acquittal since the defence was that the death of the deceased was caused accidentally. Neither counsel in his address, nor the learned trial judge in his summing-up, referred to provocation as a ground on which the offence could be reduced to manslaughter.
But the fact that that issue was not raised by the defence did not justify the learned trial judge's failure to leave it to the jury, if in fact there was material before the jury which would justify a direction that they should give it consideration. Thus in R. v. Hopper,1 Lord Reading C.J. in delivering the judgment of the English Court of Criminal Appeal said,
"We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion as we do, that there was some evidence we say no more than that upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."
