UNIVERSITY OF PROFESSIONAL STUDIES (UPSA)

FACULTY OF LAW

DR. KWAKU AGYEMAN-BUDU

BA, LL.B, BL (GHANA); LL.M, SJD (FORDHAM)
 MURDER

• What constitutes murder in Ghana?

• Section 47 defines murder as“whoever intentionally

causes the death of another person by any unlawful harm
is guilty of murder, unless his crime is reduced to
manslaughter by reason of extreme provocation, or other
partial excuse, as mentioned in section 52.”
 ELEMENTS OF MURDER

For the offence of murder to be established, it must be

proved that:
a death has occurred
the death was by harm inflicted by the accused
the harm was unlawful
the accused had the intention to kill the victim
 MURDER

• Serechi v. The State [1963] 2 GLR 531

• They were convicted for murder.

• On appeal, the Supreme Court held that there was
sufficient evidence of an intention to cause death and the
infliction of the unlawful harm. The essential elements of
the offence of murder being intent to cause death and
the infliction of unlawful harm.
 CIRCUMSTANTIAL EVIDENCE

The element that death of a person must be proved is

usually problematic

But sometimes, it may happen that an accused may be

charged for murder though the victim’s body has not
been recovered to ascertain the exact cause of death
 CIRCUMSTANTIAL EVIDENCE

Lord Chief Justice Goddard in R v. Onufrejcyzk [1935] QB

338 ‘’the fact of death, like any other fact, can be proved
by circumstantial evidence, that is to say, evidence of
facts which lead to one conclusion, provided that the jury
are satisfied and are warned that it must lead to one
conclusion only.’’
 CIRCUMSTANTIAL EVIDENCE

This was applied in Bosso v. Rep (2009) SCGLR 420 where

the court held that ‘’in a trial for murder, the facts of
death could be proved by circumstantial evidence
provided that the jury were warned that the evidence
must lead to one conviction only; and the cause of death
might be proved by such circumstances as would render
the commission of the crime
 CIRCUMSTANTIAL EVIDENCE

certain and leave no degree of doubt, even though there

was no body or trace of the body or any direct evidence
as to the manner of death. The same principle was
applicable to a charge of manslaughter’’.
 Unlawful harm

• it must be established that the accused caused an

unlawful harm to the deceased, and that the deceased
died as a result of the unlawful harm
• Section 1 defines “harm” whilst Section 76 defines
unlawful harm
• So if the harm was caused with some justification, the
accused will be exculpated from liability for murder
 Intention

It must be established that the accused intended to cause

the death of the deceased

It is instructive to note that what is required under our

law is intention and not motive
Section 11(3) - a man intends the natural and probable
consequences of his actions
 Intention

Serechi
This means that intention may also be inferred from the
ferocity or brutality of the act
In Sene v. The Republic it was explained that an intention
to kill may be inferred from the instrument or weapon
used in killing or the manner in which the harm from
which death results is inflicted.
R. v. Gyamfi [1960] G.L.R. 45
 Intention

• Section 67(1)
• Still on the question of intent, where a person does an act
in good faith, for the purposes of medical or surgical
treatment, an intent to cause death shall not be
presumed from the fact the act was or appeared likely to
cause death
• section 67(1)
 SPECIAL PROVISIONS AS TO MURDER

Section 64 (e)
To amount to murder, death must have occurred within a
year and a day of the infliction of the unlawful harm

A judge has a duty to direct on manslaughter in a murder

case
- see Serechi v. The State
- Akom v. The State
 Death by supernatural means

• R v. Gadam 14 WACA 442, the appellant killed the

deceased for having bewitched his wife. The judge held
that:
• I have no doubt that a belief in witchcraft such as the
accused obviously has is shared by the ordinary members
of his community. It would, however, in my opinion be a
dangerous precedent to recognize that because of a
superstition, which may lead to such a terrible result as is
disclosed by the facts of this case, is generally prevalent
among a community, it is therefore reasonable.
•
 Death by Supernatural Means

Section 81 (b) ‘’disease or disorder which a person

suffers as the inward effect of his grief, terror, or other
emotion shall not be deemed to be harm caused by
another person, although such grief, terror, or emotion
has been caused by him, whether with intent to cause
harm or otherwise;
 CAUSING DEATH TO A CHILD

Section 60 -63
Section 66—Explanation as to a Child as the Object of
Homicide.
(1) In order that a child may be such a person that it may
be murder or manslaughter to cause its death, it is
necessary that, before its death, the child should have
been completely brought forth alive from the body of the
mother.
 Causing Death to a Child

AG’ s reference (No.3 of 1994)

Accused stabbed his pregnant girlfriend in the face, abdomen
and back when she was 22-24 weeks pregnant.
17 days after the incident she went into premature labour
and gave birth.
The baby died 121 days later due to the premature birth.
 The accused was charged with wounding and causing
grievous bodily harm to the mother and convicted with a of 4
year sentence.
 He was also charged with murder and manslaughter for the
death of the baby.
 Causing Death to a Child

The trial judge held that he could not be convicted of

murder or manslaughter since at the time of the attack
the foetus was not in law classed as a human being and
thus the mens rea aimed at the mother could not be
transferred to the foetus as it would constitute a different
offence. The Attorney General referred the issue
 Causing Death to a Child

The Court of Appeal reversed the decision in relation to

murder. The defendant appealed to the House of Lords
which held:

The appellant's actions could not amount to murder for

the reasons given by the trial judge. However, his actions
could amount to constructive manslaughter.
 Causing Death to a Child

There was no requirement that the foetus be classed as a

human being provided causation was proved. The attack
on the mother was an unlawful act which caused the
death of the baby. There is no requirement under
constructive manslaughter that the unlawful act is aimed
at the actual victim or that the unlawful act was directed
at a human being.
 MANSLAUGHTER

The essential difference between murder and

manslaughter is INTENTION
Whereas in murder, the accused must have had an
intention to kill,
 in MANSLAUGHTER, the accused has simply killed
another person without the intention
 MANSLAUGHTER

By the provisions of section 296(1) of Act 30, a person

convicted of manslaughter commits a first degree felony
(section 50) and is liable for a lifetime imprisonment or
less
Section 51
 MANSLAUGHTER

Manslaughter is an unlawful killing which falls short of

murder
 Manslaughter may occur in 3 forms
murder reduced to manslaughter by reason of
extenuating circumstances or excuse
death caused by unlawful harm without an intention to
kill, and
death caused by negligence amounting to a reckless
disregard for human life
MANSLAUGHTER BY REASON OF EXTENUATING CIRCUMSTANCES

 Provocation
Section 47, 52 (a) (b)
Lamptey alias Morocco v. The Rep [1974] 1 GLR 165
By reason of extreme provocation, the accused lost his
power of self control
 UNLAWFUL HARM

Section 52 (c) and

Usually in respect of policemen and soldiers
acting in the belief, in good faith and on reasonable
grounds, that he was under a legal duty to cause the
death or to do the act
The illustration in section 52
52 (d)
Birth related illness (post natal depression)
R v. Chima
 NEGLIGENCE AMOUNTING TO RECKLESS DISREGARD

Section 51
S 12 and 51 deals with negligence (TYPES)
The combined effect of section 12 and 51 is that for
manslaughter, the negligence must amount to a reckless
disregard for human life
State v. Tsiba
Hunting
Saw something with reddish eyes believed to be an
animal
 NEGLIGENCE

Pointed at it with his hunting light, dimmed hunting light

 Whistled 4 times and shot at it
Turned out to be a human being.
Upon appealing his conviction for manslaughter, the CA
said
 NEGLIGENCE

“Negligence, whether it be a ground for a claim in a civil

court for compensation or an essential ingredient in the
constitution of a crime, is the omission to take care where
there is a duty to take care, with this difference that
whereas in a civil claim there are no degrees of
negligence, such degrees exist in a criminal court.”
 NEGLIGENCE

in R v. Bateman, it was explained that:

“…for purposes of the criminal law there are degrees of
negligence: and a very high degree of negligence is
required to be proved before the felony of manslaughter
is established. Probably of all the epithets that can be
applied ‘reckless’ most nearly covers the case…but it is
probably not all-embracing, for ‘reckless’ suggests an
indifference to risk
 NEGLIGENCE

whereas the accused may have appreciated the risk and

intended to avoid it and yet shown a high degree of
negligence in the means adopted to avoid the risk as
would justify a conviction.”
Mahama v. The State
‘’For an accused person to be guilty of manslaughter in
connection with the driving of a motor vehicle there must
be evidence of acts of omissions which in law can amount
to the high degree of recklessness which shows gross
disregard for human life.
 The driving must not only be reckless, it must be of a
nature or manner so gross and outrageous as to
demonstrate reckless and complete disregard for human
life. If the evidence does not satisfy the test in holding (1)
supra, the court must proceed to find out, in a
descending order of gravity, whether the evidence on
record can support a conviction for reckless driving,
careless driving or driving under the influence of drink,
popularly called "drunken driving" . The court can convict
the accused of any of these offences even though he is
not specifically charged with them, as provided by section
161 of the Criminal Procedure Code, 1960 (Act 30).
 CRIMINAL RECKLESSNESS

Criminal recklessness may occur in two forms:

*mistake/ inadvertence that causes injury; and
acts done by professionals without the necessary skill
required under those particular circumstances

For a negligent conduct to amount to a reckless disregard

for human life, it must connote a lack of due care,
heedlessness and even rashness
 TEST OF RECKLESSNESS

The test of what constitutes recklessness is an objective

one. The question is:
“Would a reasonable person in the position of the
accused have been conscious of the risk?”
The concept of recklessness has two denotations:
either doing an act which amounts to the taking of
unjustified risk, i.e. you foresee there is risk of the
consequence following but you unreasonably decide to
take the risk, (Jack Toller- chloroform) or
 RECKLESSNESS

engaging in conduct which involves the taking of

unjustified risk even though the actor does not know of
the risk (Kwaku Nkyi case) i.e. you decide to become a
pharmacist over night and prescribe medicines to people
 RECKLESSNESS

R v. Gyamfi [1960] GLR 45

R v. Quaye (Jack toller) (1954) 14 WACA 488
R v. Ahenkora & Badu [1960] GLR 160
R v. Awonu (1946) 12 W.A.C.A 95
Kwaku Nkyi
Student nurse at the Kumasi central hospital- called to
give medical attention to a child
Generally known to be of good behaviour
Child of Akwaba Frafra who was cousin to Adongo Frafra-
who worked in the hospital with the accused
 CASES

Injected the child with a drug he thought was mepacrine,

but which was in fact, arsenic.
The child’s condition worsened and he died
Charged with murder and practising medicine without a
license
Apaloo J. (as he then was) said:
“The prosecution’s case if I understand it alright is that
the [child’s] death was caused by harm, which harm
resulted from the accused’s negligence.
 CASES

The negligence consisted in the fact that the accused

who is not a qualified medical man took it upon himself
to treat a sick child. In doing so, he used a dangerous
drug without skill with the result that the patient died.”
Although I feel no doubt that the accused mistook
arsenic for mepacrine due to their similarity in color,
had he been more skilful than he in fact is, he could
have distinguished between the two.
 CASES

In my opinion, his voluntary assumption of the

treatment of [the child] without necessary skill,
as he well knew, is itself evidence of negligence.
As I have said, the fact that the accused was
negligent is plain enough but I cannot find on
the evidence that such negligence was gross or
amounts to a reckless disregard for human life
 CASES

. At least in one sense at any rate, the accused in

responding to the invitation and proceeding [to the house
where the child was] with a view to attending to [him]
showed anxious regard for human life.”
In my judgment, it would not be right to hold that the
accused’s negligence amounts to a reckless disregard for
human life simply because possibly out of inadvertence
or want of care, he mistook the drug that he intended to
administer to the sick child.”