SENE AND ANOTHER v. THE REPUBLIC

JUDGMENT OF AMISSAH J.A.

The appellants are brothers. They were convicted of the murder of one William Kwame Kwadam. The story which the jury must have accepted was that the first appellant engaged in an unlawful fight with the deceased and that in the course of the fight, the second appellant threw a heavy stone at the deceased from the back. That after he had been felled by the stone, the first appellant continued raining blows on him. The deceased subsequently died from injuries ascribed to the appellants into attack on him.

Various criticisms have been levelled in this court at the summing-up of the judge. None of them is of substance to detain us except the criticisms as to the learned trial judge's treatment of the question of intent and his lack of treatment of the issue of provocation. If it is accepted that the deceased died as a result of an unlawful fight with the appellants, then the [p.436] question is whether the appellants had an intention to cause his death. The question at issue was nicely put in R. v. Gyamfi [1960] G.L.R. 45 at p.51, C.A., when Granville Sharp J.A. speaking for the Court of Appeal, said: "There can be no doubt that the appellant caused the death of Oppong by unlawful harm; but the question arising for further consideration was, was the act done in the consciousness that it was likely to cause death?' "

It is not always easy where death has resulted from a fight to give a clear direction to a jury of the considerations that the jury should take into account in order to determine the fate of persons accused of murder on account of their participation in the fight. For the fact-situation may lend itself to a range of interpretations supporting a verdict which may be not guilty, guilty of manslaughter or guilty of murder. The accused would not be guilty of any offence if they engaged in what turned out to be a fight in necessary self-defence of lives or property. That aspect of the matter was adequately dealt with by the judge in this case. Then come the situations when the accused may be held criminally responsible for the death, the possible verdicts being murder or manslaughter.

The one important factor which distinguishes the case of murder from manslaughter is the intention. The two offences are often difficult to distinguish. As was said long ago by Pollock C.B. in R. v. Vamplew (1862) 3 F. & F. 520 at p. 522:

"The crimes of murder and of manslaughter are in some instances very difficult of distinction. The dis