Bonaya Tutu Ipu & 1 other v Republic

Malice aforethought, the mens rea for murder, is rarely proved directly and is normally inferred from surrounding circumstances: the weapon used, the part of the body injured, the injuries inflicted and the accused's subsequent conduct. Here the slapping and kicking occurred spontaneously on a drunken intruder at midnight; no weapon was used; the fatal ruptured spleen was consistent with a kick; and the appellants did not flee. The trial judge merely recited section 206 without considering these circumstances, so knowledge under section 206(b) could not be inferred and the benefit of the doubt accrued to the appellants.

Although the respondent conceded that the conviction should be for manslaughter rather than murder, the court held that a concession cannot lead to automatic success, and conversely opposition cannot invariably lead to dismissal. The decision turns on whether the first appellate court's conclusions are proper on the evidence on record and the law. The court therefore independently reviewed the evidence before determining whether the conviction for murder could stand.

The maximum sentence for manslaughter under section 205 of the Penal Code is life imprisonment. Taking into account the manner and circumstances in which the offence was committed, and the fact that the appellants had been in custody since their arrest in September 2011, the court found ten years imprisonment commensurate, and set aside the death sentence accordingly.