Collins Alias Derby v. The Republic [1987-88] 2 GLR 521-532

Material Facts:

On 28th June 1984, a man was found dead under a bridge with his teeth knocked out, blood oozing from his mouth and the side of his neck. The autopsy report showed lacerations on both the front and back of his head, all of which ruled out the possibility that the death was by an accident.

On that same day, the third prosecution witness reported she saw blood on the chest of the appellant. Upon visiting the site of the killing, she also identified a pair of sandals she claimed belonged to the appellant. Another witness saw the appellant emerging from the direction of the bush and proceeded to knock on his mother’s door. Upon further investigations by the police, a pair of trousers stained with blood was found in the appellant’s room, and a piece of material that was used to tie a sack of corn in the deceased's farm matched the pillowcase of the accused.

The accused disappeared for about a year, and when he returned, he had a scar on his left arm, which he claimed he sustained when he fell down from the bridge beneath which the deceased was found. He was arrested and charged with murder.

At the start of the trial, counsel for the appellant requested that his client be observed at a psychiatric hospital because he, as counsel, could not take instructions from a client who conceived of himself as Jesus being persecuted by the Jews.

Procedural History:

At the trial court, the appellant’s mother gave evidence of the appellant’s mental state, stating that his mental state led to an interruption of his studies in England and Spain and his subsequent repatriation to Ghana, where he was resident at the Ankaful Psychiatric Hospital. At the end of the trial, the trial judge ordered that the appellant be examined at the Ankaful Psychiatric Hospital. The medical officer in charge of the hospital stated that the appellant had schizophrenic tendencies and that his madness had abated in 1983. He added that the treatment of the appellant’s madness was interrupted in 1984, and there was a possibility he would relapse if he did not continue with his drugs.

The trial judge directed the jury as follows:

Now what is the state of mind of the accused? Was he mentally sound when he made these statements? That is exhibits N and P (police and court statements). From the performance of the accused in court, the contents of the two statements, and what Dr Koranteng of the Ankaful Psychiatric Hospital, the first court witness, said about the accused, there can be no doubt that the accused was sound at the time he made exhibit N on 21 March 1985 and exhibit P on 3 December 1986 and is still sound. There is no evidence that after the accused had been discharged from the Ankaful Hospital on trial leave in November 1983, he suffered a relapse.

The jury returned and, speaking through its foreman, said, “verdict not unanimous on murder.” In response, the trial judge said, “I order the jury to retire for further consideration of their verdict. This order is made under section 282(1) of the Criminal Procedure Code, 1960 (Act 30) .” When the jury returned, they informed the court that their verdict is unanimous and that the accused is guilty of murder.

Issues:

1. Whether or not circumstantial evidence could be used to convict the appellant of murder.

2. Whether or not the trial judge could direct the jury to retire for further consideration after they reveal that their verdict on murder is not unanimous.

3. Whether or not the trial judge’s summing up on the appellant’s state of mind amounted to a misdirection.

Arguments of the Appellant:

1. That the matters raised in proof of the charge of murder on which the appellant was convicted were merely circumstantial and, in their totality, could not sustain the conviction.

2. That per the case of State v. Kassena (Ali) [1962] 1 G.L.R. 144, S.C , if circumstantial evidence is being used to prove murder, it should point to only the appellant as the perpetrator of the crime and that no other rational hypothesis should exist to support any other conclusion.

Holding:

1. Circumstantial evidence could be used to convict the appellant of murder.

2. The trial judge could direct the jury to retire for further consideration.

3. The summing up on the appellant’s state of mind amounts to a misdirection.

Ratio Decidendi:

On issue one, Ghanaian courts have insisted that for circumstantial evidence to be used to establish the requisite degree of proof, the guilt of the accused must be “established by circumstances that consistently and overwhelmingly impute guilt and exclude any other rational conclusion.” The court will often ask:

Does the presumption of guilt irresistibly flow from the circumstances proved in evidence? Are they cogent and compelling and leading to no other rational hypothesis than the commission of the crime of murder? Do the circumstances irresistibly point to the appellant as the perpetrator of the crime or do they merely recount suspicious circumstances, multiplying them into proof?

In the present case, their lordships are satisfied that per the facts, “an inexorable chain linked the appellant with the crime”, and the appellant’s argument on circumstantial evidence falls.

On the second issue, their lordships are also satisfied that at the time the jury was sent back to further consideration of their verdict, they had not yet pronounced their verdict but merely disclosed a lack of unanimity. Under such a circumstance, the judge can order them to retire for further consideration. If it was the case that they had pronounced their verdict, they would have become functus officio, and in such a case, all the court could do was to dismiss the jury and order a new trial “because the verdict so returned by the jury is contrary to law and a reconsideration of that verdict would be irregular and illegal.” In light of this, their lordships hold that it is essential for a judge to stress unanimity in a jury's verdict in capital offences.

On the final issue, that of summing up on the mental state of the appellant, their lordships agree that the comments of the trial judge were prejudicial. The trial judge, by stating that the appellant “is still sound” and could not be said to have relapsed, “overstepped his bounds by prejudging issues and usurping the function of the jury, whose duty was the factual one of assessing the state of mind of the appellant at the appropriate periods above described.” What he was required to do “was to explain the provisions relating to these mental conditions to the jury to let them decide whether the appellant was sane or not.” If this had been done, the jury may have concluded that the accused was guilty but insane.

The appeal is hereby allowed, and the verdict of guilty is substituted for the special verdict of guilty but insane.

Principles in Case:

1. Circumstantial evidence can be used to convict a person for murder. Such evidence must, however, consistently and overwhelmingly impute guilt and exclude any other rational conclusion.

2. In capital offences, the judge must stress unanimity in the jury’s verdict.

3. Once the jury announces their verdict, they become functus officio.

4. The judge must not prejudge issues and usurp the duty of the jury.

5. In insanity case, the judge is only required to explain the provisions relating to mental conditions and allow the jury decide whether the accused was sane or not.