THE STATE v.

ZAMBRAMA
[1960] GLR 205

Division: IN THE SUPREME COURT

Date: 21ST OCTOBER, 1960
Before: VAN LARE, GRANVILLE SHARP AND
SARKODEE-ADOO, JJ.S.C.

Criminal law—Murder—Plea of insanity—Insane delusion—Onus of Proof—Medical

evidence—Mis-direction by trial judge.

HEADNOTES
Appellant was a farm labourer and lived in the house of his employer, Tetteh. His behaviour was
normal until the events leading to his arrest and trial, when he ran amuck in his employer’s house, and
with a cutlass slashed one Odonkor Alimo, and attacked and wounded four other persons. The said
Alimo and a child later died from their wounds. The appellant was apprehended in the bush a short
time after by three policemen, one of whom he wounded with his cutlass.
The appellant was tried, and convicted of the murder of Alimo. At his trial the question of his sanity
was raised. Evidence was given that the appellant was labouring under a delusion that his employer
intended to kill him. Expert medical evidence was given that if the appellant had this delusion, he may
realise what he was doing, but he would not necessarily know it was wrong.
In his summing-up, the trial judge, Charles, J. directed the jury:
“. ... if the accused was suffering from an insane delusion that P.W.2 intended to kill him and he killed
the deceased then he would be fully responsible for his acts because it is no defence in law for an
accused to kill in self-defence a person who never intended nor attempted to kill him or inflict grievous
harm. I therefore direct you as a matter of law to find on the evidence that the accused has failed to
establish the plea of insane delusion.”

[p.206] of [1960] GLR 205

The jury returned a verdict of guilty of murder, and the appellant was sentenced to death.
Held:
(1) the defence of insanity requires careful examination and treatment, and from the evidence as a
whole, it appeared that the appellant was suffering from some form of maniac delusion. This
delusion made him incapable of realising that what he was doing was wrong, and he was,
therefore, not responsible for his actions. Dicta in Afrifa v. Regina, Court of Appeal Written
Judgments 19th June, 1959, applied;
(2) the question of insanity is a question of fact to be left to the jury. Afrifa v. Regina (supra)
followed;
(3) while the onus of proving insanity was on the appellant, the trial judge erred in failing to bring
to the attention of the jury the significance of unchallenged medical evidence. Dicta in R. v.
Matheson 42 Cr. App, R. 145 per Goddard L.C.J at p. 151 approved:
(4) the trial judge erred further in treating this as a case of self-defence, and on the whole, the
summing-up to the jury was so lacking in clarity as to amount to a mis-direction or a
 non-direction.

CASES REFERRED TO
(1) Afrifa v. Regina. Court of Appeal Written Judgments, 19th June, 1959, unreported.
(2) R. v. Matheson 42 Cr. App. R. 145.

NATURE OF PROCEEDINGS
APPEAL from death sentence imposed after conviction for murder before Charles, J., sitting with a
jury at Accra Assizes on the 8th January, 1960. The facts are fully set out in the judgment.

COUNSEL
Anin for the appellant.
Amissah for the respondent (the State).

JUDGMENT OF VAN LARE J.S.C.

Van Lare, J.S.C. delivered the judgment of the court. This is an appeal from a conviction before
Charles, J., sitting with a jury at the Assizes holden at Accra on the 8th January, 1960. The appellant
was charged with the murder of one Odonkor Alimo at Asagya-Akwadum village near Begoro, where
he had been engaged by one Tetteh Ozinor as a farm labourer only three weeks previous to the
incident complained of. The appellant lived together with others in his employer’s house. Until the
events leading to his arrest and trial he had been found to be a good worker and was on friendly terms
with his said employer, his relations and others in the house. He had behaved as a normal person until
the day he committed the offence in respect of which he was tried, when to the surprise of every one
in the house, without any cause or reason whatsoever, he was seen to come out of his room after the
evening meal and literally ran amuck in the house with a cutlass in hand. He slashed, not only the
deceased who was his employer’s son-in-law on a visit to the house on that eventful evening but also
the employer’s daughter Arku Borki, the deceased’s wife, and attacked three others including one
Awusi, a child of eight years and wounded them and others whom he could reach in chasing people
about the house. Other inmates had to lock themselves in their rooms to avoid onslaught on them by
the appellant. Alimo and the eight years old Awusi died as a result of several wounds inflicted on
them by the appellant.

[p.207] of [1960] GLR 205

Three policemen had some difficulty in arresting the appellant from the bush where he was
apprehended some little time after the killing still brandishing the cutlass and wounding one of the
policemen in their attempt to arrest him.
It is apparently clear on the evidence that the behaviour of the appellant at all times material to the
charge is most inexplicable; it is sufficient to say he had behaved in an exceptionally abnormal
manner. When arrested the appellant said to the policemen; “Those fools are lucky that the police
have called in, if not so I would butcher more to death.”
Undoubtedly this is a case where it is imperative to consider the state of the appellant’s mind at the
time of the commission of the offence. At the trial this question was raised and put in issue. It was a
defence which required a careful examination and treatment, especially in the judge’s summing-up to
the jury whose verdict was to determine the matter one way or the other. Before his trial, that is to
say, three days after the incident the appellant made a statement to the police in terms as follows:—
“On one day in the morning I went to farm and returned in the evening. My employer one Tetteh, a
 Krobo man, in whose house I live told me in Krobo language that I should finish his farm for him in time
and he would behead me in payment. I partially understand the Krobo language and did understand what
he had said. I did not say anything in reply to him but kept quiet. About three days after he repeated the
same words to me immediately I returned from his farm in the evening. This was the day this case
happened—three days ago. When I heard this I went into my room and took my cutlass. When I came
out I did not see my landlord Tetteh in the house again. I looked for him but did not see him anywhere in
the house. In fact something came on me and pushed me to use the cutlass on the other people in the
house. I became aware of what I was doing. I found that I have killed the father-in-law of my landlord
and his daughter. There are three others whom I have wounded. This is all I have to say about this case.”

It does appear on the evidence as a whole that what the appellant said concerning his employer Tetteh
was his own imagination and he must be taken to have been suffering from some form of maniac
delusion. We wish also to refer to the sentence appearing in the above quoted passage, viz: “I became
aware of what I was doing” and point out that this cannot be taken at its face value with reference to
the context. What he meant was that “I became aware of what I had done”; the words being capable of
such a meaning must be so construed in favour of the appellant.
At this trial the appellant, who was legally represented, made a statement before the court in which he
repeated what he had imagined against his landlord. While nothing was farther from the truth the
appellant said, among other things, that on his return from the farm one day his employer told him
that he did not obey him and that if he, the appellant, went out and somebody killed him, it would not
be his, the employer’s fault. He also narrated certain incoherent and nonsensical matters such as that
his

[p.208] of [1960] GLR 205

employer, Tetteh, called him a fowl and that he became so afraid and ran to his room and picked up a
cutlass. He concluded as follows: —
“Tetteh came out with a cutlass in his hand and I came out with my cutlass. Tetteh and I met together
and he raised up his cutlass to strike me and I knocked it away from his hand with my cutlass. I wanted
to butcher him but he ran away. I became very perplexed and I could not see anything again. At that time
I wanted to run but all that happened afterwards I did not know. I ran away and hid myself because of
Tetteh, and his people said they would kill me and they would also kill my brother Amadu Zabrama who
was living in the room with me. When I was running away Tetteh’s daughter raised an alarm telling the
people ‘Here is he, here is he’ pointing to me. I did not make up my mind to butcher her but she rushed
on me and wanted to get hold of me. People came near me and she gripped me and I cut her with the
cutlass. I ran into the bush and lay there. The next morning I saw a man pointing to me and shouting
‘Yes he, yes he’. At this time if I saw a man it would appear as if I saw four or ten men. When these
people came and they were shouting, as I could not see I could not differentiate between a civilian and a
policeman. I held my cutlass firmly and waving it and something knocked my leg and I fell down. Then
the police caught me.”

At the close of the case for the prosecution the court adjourned further hearing for the appellant to be
medically observed by Dr. Foster, psychiatrist specialist, Accra. For this purpose the appellant was
admitted in the Mental Hospital, Accra. Dr. Foster, who gave evidence, deposed that although from
his observation he could not say what was the exact state of mind of the appellant when he committed
the offence, nor could he express opinion whether the appellant at times suffered from mental failure,
he was nevertheless of the opinion that the act as alleged against the appellant did not strike him as
being such as could be committed by a sane person. In cross-examination by counsel for the
prosecution Dr. Foster deposed as follows: —
“I do not expect that a normal sane man would commit the acts alleged to have been committed by the
accused. When I first saw the accused I did not know the facts of the case. When I first saw the accused I
thought he was mentally disturbed but since then I have had the accused under observation from the
20-1-60 up to now and in my opinion he shows no signs of mental disorder. The accused told me that
one Mr. Tetteh regarded him as a chicken and Mr. Tetteh told him that if he destroyed that chicken he
would not have to answer to the police. If Mr. Tetteh never threatened the accused then I would regard it
 as a delusion and I would be of the opinion that there was something wrong with the mind of the
accused. If the accused had this delusion he may realise what he was doing but he would not necessarily
know it was wrong. The story of the threat as told by the accused could also be invented for his defence.
From my observation of the accused he did repeat this story of the threat but I cannot express a definite
opinion whether the accused was suffering from an insane delusion or whether he invented this story.”

[p.209] of [1960] GLR 205

In answer to a question put by the learned trial judge, Dr. Foster stated thus:
“In my opinion if the accused committed the acts alleged by the prosecution and thereby killed the
son-in-law and a grandchild and wounded other persons without any motive, then accused at the time he
committed these acts was insane.”

We must point out that on the evidence as a whole there is nothing whatsoever from which motive can
be inferred; it may be safe to remark that the offence was in fact committed without any motive. It
essentially became a case requiring as most careful summing-up to the jury on the question of the
special verdict. The appeal principally, therefore, involves a consideration of the judge’s summing-up
which in our view has been correctly described by counsel for the appellant as confusing, and by
counsel for the respondent as difficult of understanding. The learned trial judge in his summing-up
having directed the jury that the appellant did not deny or admit killing the deceased, which
incidentally is not the case as appears in his statement to the police to which reference has already
been made, continued as follows:—
“If the evidence of P.W.2, P.W.3, and P.W.4 as to how the deceased met his death is believed and
accepted then you could find that the accused unlawfully inflicted wounds with a cutlass on the deceased
and that the deceased died as a result of those wounds.
In other words as no lawful or partial excuse is available to the accused, the accused would have
committed murder but you have to decide whether the accused at the time he committed the crime was
insane or suffering from an insane delusion. Insane delusion means that a person is labouring under a
partial delusion only and is not in other respects insane. If a person is suffering from an insane delusion
the law makes it quite clear that the person must be considered in the same situation as to responsibility
as if the facts to which the delusion exists were real. In other words if the accused was suffering from an
insane delusion that P.W.2 intended to kill him and he killed the deceased then he would be fully
responsible for his acts because it is no defence in law for an accused to kill in self-defence a person who
never intended nor attempted to kill him or inflict grievous harm. I therefore direct you as a matter of law
to find on the evidence that the accused has failed to establish the plea of insane delusion.”

We must in this connection refer to the psychiatrist specialist’s evidence which is that “ if the accused
had this delusion he may realise what he was doing but he would not necessarily know it was wrong
“, and we find it hard to reconcile this with the learned judge’s assumed knowledge of forensic
medicine when he expressed opinion on what insane delusion means. Furthermore we ourselves are of
opinion that if a person suffers from such an insane delusion as to make him ignorant that what he was
doing was wrong, then we fail to appreciate how he can be responsible for any act at all, whether it
meant killing any person or not.

[p.210] of [1960] GLR 205

“The law is that where a deprivation of understanding and memory is total, fixed and permanent, it
excuses all acts; so likewise a man labouring under adventitious insanity is during the frenzy, entitled to
the same indulgence in the same degree with one whose disorder is fixed and permanent”—Afrifa v.
Regina, Court of Appeal, Written Judgments, 19th June, 1959.

Further the learned trial judge was apparently in error when he referred to self-defence as though it
was a case where the appellant intended his act to be in self-defence.
“Whether the prisoner was sane or insane in the legal sense at the time the act was committed is a
question of fact to be decided by the jury and is dependent upon his previous and contemporaneous acts”
 — Afrifa v. Regina, supra.

The learned trial judge therefore, wholly misdirected the jury when he wrongly assumed that he was
competent to decide this issue by telling them that on the evidence the appellant had failed to establish
a plea of insane delusion.
In another instance, whereas the learned trial judge properly directed the jury as to the onus which lay
on the prisoner to establish a plea of insanity, in saying: “All that the accused has to do is to adduce
such evidence which would tend to show that he was probably insane”, he nevertheless omitted to
point out to the jury the significance of the medical evidence which was clearly that having regard to
the facts, the prisoner must have been insane when he committed the act complained of. If the onus
required was not discharged by Dr. Foster’s evidence we cannot tell when such onus may be
discharged. Instead the learned trial judge ruined the significance of such evidence as to the mental
state of the appellant when he committed the offence, when he directed as follows:—
“However, the issues of insanity and insane delusion are questions which you have to decide and you are
not bound in law to accept the opinion of the psychiatrist though you should give it what respect you
think it deserves.”

It is noted that the learned trial judge had already directed that the prisoner had failed to establish a
plea of insane delusion. How, in the next breath, such a question was left for the jury to decide is
difficult to understand. While a judge is competent to tell a jury that they may disregard the opinion of
medical evidence, it is his duty to point out the kind of respect such opinion deserves. To omit this
latter direction is unfair to the prisoner, the proof of whose plea in defence in this case was
particularly dependent on medical evidence which stood uncontradicted. In this connection we draw
attention to what Lord Goddard, Lord Chief Justice of England said in the case of R. v. Matheson, (42
Cr. App. R. 145 at p. 151), which we quote with respect and approval, as follows:—
“While it has often been emphasised, and we would repeat, that the decision in these cases, as in those in
which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If
there are facts which would entitle a jury to reject or

[p.211] of [1960] GLR 205

differ from the opinions of the medical men, this court would not, and indeed could not, disturb their
verdict, but if the doctors’ evidence is unchallenged and there is no other on this issue, a verdict contrary
to their opinion would not be ‘a true verdict in accordance with the evidence’.”

In the present case there was no evidence other than that given by the doctor as to the state of the
appellant’s mind when he committed the act with which he was charged. We are of opinion therefore
that the rejection of Dr. Forster’s testimony is not in accordance with the evidence. We think that had
the jury been properly directed their verdict would have been otherwise.
Confusion finally became worse confounded when the learned trial judge immediately before sending
the jury into retirement to consider their verdict directed them as follows:—
“On the evidence there is no reason why you should not find that the accused committed murder. But
you will also have to decide on the evidence whether the accused was probably insane when he
committed the act.”

If the learned judge meant by this, as in fairness he must be taken by us to have meant, that on the
evidence there was no reason why the jury should not find that the accused caused the death of the
deceased by killing him, such would be a proper direction. However no jury of ordinary persons can
be expected to read the mind of a judge, and they can be properly directed only by the use of plain
and unequivocal words.
What the learned judge in fact said was the equivalent of saying:—
“There is no reason on the evidence why you should not find the accused guilty of intentional killing of
the deceased, but you must consider also whether his mind was so deranged as to render him incapable
 of forming any intention whatever.”

We ourselves can make nothing of this. What the jury made of it we cannot tell, but they must have
thought, if by that time they were capable of any consecutive or unconfused thought at all, that they
were being invited to perform a remarkable mental somersault. They may also have taken the very
strong language “there is no reason” to suggest that their verdict should be, as it was, guilty of
murder.
Quite clearly if the accused was insane this circumstance would on the evidence be a reason why the
jury should not find him guilty of murder, but the learned judge who had earlier in his summing-up
directed the jury on the ingredients of the offence of murder, finally told them in effect that there was
no reason why on the evidence they should not find him guilty of that offence: murder—intentionally
causing the death of the deceased by unlawful harm.
Any jury must naturally be confused, considering the fact that in one breath they were told that there
was no case of insanity or insane delusion, and in another breath directed that they should find that the
prisoner was

[p.212] of [1960] GLR 205

guilty of murder, but finally directed that there were only two possible verdicts still opened to them,
namely (1) guilty of murder but insane or (2) guilty of murder. On the whole we find that the learned
judge’s summing-up was so lacking in clarity as to amount to a misdirection or a non-direction
resulting in a failure to put the appellant’s case properly to the jury.
There is no question that at the present the appellant is insane or a fit person to be detained in a mental
hospital; it however appears to us that although the appellant was guilty of the act charged against
him, he was insane at the time the act was done so as not to be responsible according to law for his
actions. We therefore quash the sentence of death passed at the trial and order that the appellant be
kept in custody as a criminal lunatic at the Government Prison, Accra, until the President’s pleasure
shall be known.

DECISION
Sentence quashed.
Order that appellant be kept in custody as criminal lunatic.