Judicial Committee of the Privy Council
| Published date | 01 October 1946 |
| DOI | 10.1177/002201834601000406 |
| Date | 01 October 1946 |
| Subject Matter | Article |
Judicial Committee of
the
Privy
Council
MISDIRECTION
ON
MURDER
CHARGE:
DEFENCE
OF
PROVOCATION NOT
RAISED
Kwaku Mensah v. R.
THIS
appeal from
the
West
African Court of Appeal
(1946 A .C. 83) approves of a rule which is
to
be found
in only one clear previous decision, R. v. Hopper (1915 2
K.B.
431) in
the
Court of Criminal Appeal.
The
rule is
that
when aperson is
tried
on a charge of
murder
and
there
arises on
the
whole of
the
evidence aquestion whether or
not
the
offence
might
be manslaughter only, on
the
ground
of provocation or
any
other
ground,
the
judge
must
put
that
question to
the
jury.Twhether
the
defence has relied
on
it
or not.
In
the
African appeal
the
appeal against a
conviction of
murder
was allowed
and
averdict of
man-
slaughter substituted. Aperson who was alleged to be a
thief
and
who
had
taken
part
in a disturbance in a village
at
night-time was
shot
by
the
appellant while running
away.
At
the
trial
the
defence was
that
the
appellant
fired
to
frighten him
and
to induce him to
surrender;
it
was also alleged
that
the
appellant did
not
know
that
his
gun
was loaded
and
that
it
went off accidentally.
There
was evidence
that
the
appellant
had
received awound
by
stabbing in
the
course of
the
disturbance,
but
the
defence
of provocation was
not
raised
at
the
trial.
The
judge
told
the
jury
that
no verdict of manslaughter could be entered
unless
the
jury
accepted
the
appellant's own account of
how he
shot
the
deceased. A verdict
at
murder
was
brought
in.
The
Judicial
Committee (Lord Porter,
Lord
Goddard
and
Sir
John
Beaumont) round
that
there was ample
evidenceof deliberatefiring by
the
accused. As
the
defence
relied on was one of accidental killing,
it
is
not
surprising
that
counsel for
the
prisoner did
not
attempt
to
set
up
2711
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