COURT OF APPEAL
DATE: 26 MAY 1967
BEFORE: AZU CRABBE, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) R. v. Antor (1958) 3 W.A.L.R. 430, C.A.
(2) R. v. Creasey (1953) 37 Cr.App.R. 179, C.C.A.
(3) R. v. Walhein (1952) 36 Cr.App.R. 167, C.C.A.
(4) R. v. Okai [1960] G.L.R. 191, C.A.
NATURE OF PROCEEDINGS
APPEAL against conviction for murder on 22 November 1965 in the High Court, Sekondi, before Djabanor J. sitting with a jury. The facts are sufficiently set out in the judgment.
COUNSEL
Agbesi for the appellant.
K. Gyeke-Dako, Principal State Attorney, for the respondent.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. The appellant in this case was convicted in the High Court, Sekondi on 22 November 1965, before Djabanor J., sitting with a jury, for the murder of one Ama Kessewah on 25 May 1965, at Tarkwa-Banso in the Western Region. Against this conviction the appellant has appealed to this court on three grounds. In the original notice of appeal filed by the appellant the only ground of appeal alleges that the trial court failed to consider accurately the defence of alibi. At the hearing of this appeal counsel for the appellant, Mr. Agbesi, was granted leave to argue the following additional grounds of appeal:
“(a) the taking of the jury’s verdict was irregular and amounts to a substantial miscarriage of justice.
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(b) that the verdict cannot be supported having regard to the evidence.”
Having listened to the arguments of counsel in support of the original ground of appeal and the second of the additional grounds of appeal, we are of the opinion that there is no substance whatsoever in these two grounds, which must accordingly fail.
However, the first ground of the additional grounds, though not directed to the merits of the case, raises a fundamental question of great significance. After the conclusion of the summing-up, it is recorded by the learned trial judge that the jury retired at 11.15 a.m. and returned at 11.45 a.m., and the notes of the judge show the following recording:
“Court: Foreman says that they are not unanimous. They are divided five to two in favour of prosecution. I ask jurors to retire again at 11.48 a.m. Jurors called back at 12.15 p.m. Foreman: Says that they are now unanimous and that they have found accused guilty of murder. Court: Accused is informed that verdict is guilty of murder.”In arguing the first ground of the additional grounds which was directed against the procedure followed by the learned trial judge Mr. Agbesi, counsel for the appellant, placed great reliance on the decision in R. v. Antor (1958) 3 W.A.L.R. 430, C.A. and submitted that as far as the procedure adopted by the trial judge after the summing-up is concerned the present case is on all fours with the Antor case, and he invited this court to follow that case and allow the appeal. For the State, Mr. Gyeke-Dako submitted that in a trial for a capital offence, a majority, verdict is unacceptable to the court, because it is not a verdict which in law the court can accept and act upon. Therefore the statement by the foreman of the jury that they were “divided five to two in favour of prosecution” was not legally a verdict, and the learned trial judge committed no irregularity by asking the jury to retire again.
Before considering the submissions by counsel, we would like to say that this case emphasises the desirability of exhorting the jury in a murder trial that they can only return a unanimous verdict, and that where they are unable to achieve unanimity they should return for further direction, if need be.
In R. v. Antor (supra) one of the questions which the court was called upon to consider was as to the procedure under the provisions of sections 294 to 298 of the repealed Criminal Procedure Code, Cap. 10 (1951 Rev.). These same provisions have been re-enacted in
[p.369] of [1967] GLR 366
sections 281 to 285 of the Criminal Procedure Code, 1960 (Act 30). In construing the sections in the repealed enactment the court in the Antor case (supra) said in its judgment as follows at p. 432: “Section 294 reads: ‘When the jury have considered their verdict, the foreman shall inform the judge what is their verdict, or that they are not unanimous.’ It is important to note that under this section the jury shall either inform a judge of a verdict, which means in the context a unanimous verdict, or a general statement of want of unanimity.
Section 295 reads: ‘If the jury are not unanimous, the judge may require them to retire for further consideration. After such period as the judge considers reasonable, the jury may deliver their verdict, or state that they are not unanimous.’ This section empowers the judge upon the statement of lack of unanimity to require the jury to retire for farther consideration, and, in this connection, it would not be improper for a judge to indicate to the jury the importance from the point of view of general convenience of their reaching a definite conclusion upon the matter.” Then after referring to the English cases of R. v. Creasey (1953) 37 Cr.App.R. 179, C.C.A. and R. v. Walhein (1952) 36 Cr.App.R. 167, C.C.A. the judgment continued at pp. 432-433: “It is important to note, however, that these cases apply to English juries whose verdict is by long practice required in law to be unanimous, whereas the Criminal Procedure Code in this country makes express provision for a majority verdict. This provision is contained in section 298 of the Criminal Procedure Code which reads: ‘(1) (a) When the jury are unanimous in their opinion, the judge shall give judgment in accordance with that opinion.
(b) If the accused person is found not guilty, the judge shall record a judgment of acquittal. If the accused person is found guilty, the judge shall pass sentence on him according to law.
(2) If the jury are not unanimous in their opinion, the judge shall, after the lapse of such time as he thinks reasonable, discharge the jury: Provided that a verdict of a majority of not less than five to two shall, in any case where the accused is not charged with an offence which is punishable by death, be held, taken to be, and received by the court as the verdict of the whole jury’.”
Having considered these relevant provisions the court came to the following conclusion at p.433:[p.370] of [1967] GLR 366
“Upon a comparison of sections 294, 295 and 298 it is in our opinion clear that a distinction is drawn between a bare statement of lack of unanimity under the former sections and a verdict showing a lack of unanimity after a decision to differ either to the extent of a majority of 6-1, 5-2 or 4-3. In these instances the decision so announced is a verdict which is entirely different from a mere statement that the jury are not unanimous, and section 298 expressly provides that if the jury have reached such a conclusion, the judge shall in the case of a verdict of majority less than 5-2 discharge the jury and in the case of a majority of not less than 5-2 shall hold, take to be, and receive such verdict as the verdict of the whole jury.” We think that the interpretation which the court in the Antor case put on sections 294, 295 and 298 of the old Criminal Procedure Code is right, and that sections 281, 282 and 285 of the Criminal Procedure Code, 1960 (Act 30), ought to be construed in pari materia.
In our opinion where the jury returns to the court after retirement, and the foreman announces that theybare unable to agree, all that the judge need do is to require them to retire for further deliberation and to give them further directions, upon their request, to elucidate a point which may be making it impossible for them to arrive at a unanimous verdict. Our law, unlike the English law, recognises two types of verdicts, a unanimous verdict and a majority verdict of at least five to two. In our opinion where the jury returns to the court after retirement there are two things they can do: the foreman may inform the judge either (a) what their verdict is, that is, the unanimous verdict, or (b) simply that they are not unanimous. If the verdict is unanimous, the judge is bound to accept it and give judgment in accordance with that opinion of the jury, unless the verdict is meaningless, ambiguous or contrary to law. If the jury are not unanimous it is open to the judge to require them under section 282 (1) of Act 30 to retire for further consideration, and this is invariably the case where the trial is for a capital offence.
There was however obiter in R. v. Okai [1960] G.L.R. 191 at p.192, C.A. that where the jury cannot agree on their verdict in a trial for murder, the judge has no alternative but to discharge the jury and to order a retrial to take place before a fresh jury. We think nevertheless that it is a proper course to take in such circumstances. In a trial for a non-capital offence the judge can only act under section 282 (1) and send the jury back for further deliberation where the verdict is that of a bare majority of four to three. Where, however, in a trial for a non-capital offence the verdict is a majority of five to
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two the judge is bound to receive it as the verdict of the whole jury and give judgment in accordance with the finding of the jury. In a trial for a non-capital offence the judge shall, when he has been informed of disagreement by the jury, merely ascertain from the foreman the proportion in which they are divided and no more. It is fatal if he demands to be told the nature of the actual finding. In the opinion of this court there is no power in the trial judge to ask the jury to retire for further consideration after the actual delivery of their verdict, and as it was said in R. v. Antor (1958) 3 W.A.L.R. 430 at p. 434, C.A.: “It is highly irregular and is illegal after a jury has announced a verdict of a majority, even if the jury ask for further directions, for a judge to direct the jury in respect of such a verdict and return them to the jury room for reconsideration of the matter.” We also think that the following passage from Sohoni’s Code of Criminal Procedure (13th ed.) at pp. 720-721, makes the point clearer: “What may be the individual opinion of the judge in the matter, if he goes so far as to ask the jury what wasthe exact majority and what was the opinion of the majority, he ought to receive that verdict without hesitation. The judge may act under s. 302 when he has merely ascertained from the jury in what proportion they are divided and it is only when the nature of the actual finding has been disclosed that the, Court is debarred from sending the jury back.”
The wording of section 302 of the Indian Code of Criminal Procedure is the same as section 282 of our Criminal Procedure Code, 1960 (Act 30). We are therefore of the opinion that in this case where the jury delivered a verdict, the learned trial judge of the court below adopted an irregular and illegal procedure by sending the jury back for further consideration. It is for this reason that we reluctantly allow the appeal and set aside the conviction and sentence of death passed upon the appellant. We, however, think that in all the circumstances of this case the interests of justice can best be served by ordering a retrial, and we do hereby order that the appellant be retried by a fresh jury empanelled for that purpose. The appellant is to remain in custody until the conclusion of the retrial.
DECISION
Appeal allowed.
Retrial ordered.
T. G. K.
