COURT OF APPEAL, ACCRA
Date: 20 DECEMBER 1974
ANIN JA
COUNSEL
Frempong Boadu for the appellant.
S. E. Asamoah, Senior State Attorney, for the Republic.
JUDGMENT OF ANIN JA
Anin J.A. delivered the judgment of the court. [His lordship stated the facts and continued:] The jury then retired at 12.15 p.m. to consider their verdict, returning to the court later at 12.40 p.m. The following notes appear in the record about the ensuing proceedings:
“Jury return at 12.40 p.m.
Court: All jurors present.
Court: Are you agreed on your verdict?
Foreman: No.
Court: Is it unanimous?
Foreman: No.
Court: How say you, is accused guilty or not guilty of the offence charged?
Foreman: We could not agree on our verdict.
Court: Jury are returned to frame any questions for further direction or explanation on evidence [and] on the law.
Time: 1.05 p.m.
Jury return: 1.09 p.m.
[p.446] of [1974] 2 GLR 445
Foreman: We want you to enlighten us on the difference between provocation and self-defence.
Court gives for [sic] direction.
Jury retire again to consider verdict at 1.52 p.m.
Jury return at 2.05 p.m.
Court: Are you agreed on your verdict?
Foreman: Yes.
Court: Is it unanimous?
Foreman: Yes.
Court: How say you, is the accused guilty or not guilty of the offence charged?
Foreman: Guilty.”
We pause now to comment on a few knotty points. In the first place, it is unfortunate that there is no record of the substance of the further directions given by the learned trial judge on the specific question put by the jury, namely, the difference between provocation and self-defence. In our opinion, it is not only desirable but also obligatory for the trial judge to make a record of any further directions he may give to the jury upon their express request. A further direction is but a continuation and expatiation of a judge’s original summing-up, save that it concentrates on specific aspects of the law and the case chosen by the jury themselves for their guidance. Since it is mandatory for summing-up notes to be recorded, it automatically follows that notes of any further direction given should also be made and incorporated in the record book. The further directions, being the last judicial pronouncement on vital aspects of the law and the case generally before the jury return their verdict (if they can agree on one in respect of a capital offence), it is of crucial importance, not only to this appellate court but also to the accused and his legal advisers handling his appeal, who may incidentally have taken no part in the original trial, that a record of the substance of the further direction is made and preserved. Unless this is done, neither the appellant nor this appellate court can determine whether there was any misdirection in the further direction. In the instant case we have no record of the further directions made from about 1.09 p.m. to 1.52 p.m., that is, in 43 minutes, which probably helped or even swayed the jury in returning a unanimous verdict of guilty of murder against the appellant. We cannot too strongly recommend the making of a record of further directions.
The second observation we would make is that it is apparent from the question formulated by the jury that, at that juncture in the proceedings, they had ruled out a verdict of guilty of murder. They would therefore appear to have narrowed down their verdict to either “guilty of manslaughter” on account of extreme provocation or “not guilty” because of the plea of self-defence.
On another view of the matter, it may be reasonably inferred from the question posed by the jury prior to the judge’s further direction, that they entertained a real doubt about the accused’s guilt on the murder charge. For they had declared themselves to be unable to reach a unanimous
[p.447] of [1974] 2 GLR 445
verdict; and were apparently debating the rival defence of self-defence and provocation. That being so, we ourselves are at a loss to discover why the judge’s further direction apparently confined to the difference between provocation (manslaughter) and self-defence (acquittal) should have led them to return a verdict of guilty of murder, after retiring briefly for thirteen minutes. On the jury’s own showing in posing the said question for further direction after previously failing to reach a unanimous verdict, their subsequent verdict which was unrelated to their limited inquiry appears, with respect, baffling and even unreasonable; and we do so hold.
DECISION
Appeal allowed.
Conviction for manslaughter substituted.
S. Y. B. -B.
