REGINA vs. OJOJO [1959] GLR 207

CASES REFERRED TO

(1) The King v.-Hopper ([1915] 2 K.B. 431);

(2) Mensah v. The King ([1946] A.C. 83);

(3) R. v. Deana (2 Cr. App. R. 75);

(4) Reg. v. Knock ((1887) 14 Cox 1);

(5) John West (4 Cr. App. R. 179);

(6) R. v. Larkin ((1943) 1 All E.R. 217);

(7) B. v. Woolmington (25 Cr.App.R. 72)

COUNSEL

Moore for appellant was not called on to argue.

[p.210] of [1959] GLR 207

Cross for respondent (Crown).The learned Judge does not appear to have considered the defences of provocation and self-defence. He failed to direct the jury on the defence which was raised, and which appeared on the case for the prosecution. The summing-up appears to have usurped the functions of the jury, in directing that a verdict of guilty should be returned. It is a matter of conjecture what verdict the jury would have returned had there been a proper summing-up. This is not a case in which the Crown can ask the Court to apply the proviso to sec.10(1) of the Court of Appeal Act, 1957. The Crown does not support the conviction.

JUDGMENT OF VAN LARE AG. C.J.

The appellant was convicted on the 11th December, 1958 before Bossman J., sitting with a jury at the Assizes holden at Cape Coast, upon a charge of murder. He has appealed to this Court against his conviction.

(His lordship stated the facts, and proceeded:-)

The notes of the Judge’s summing-up attracted our attention, and we granted leave to appeal. When the appeal came on for hearing we asked learned Crown Counsel for the respondent whether he could be of any assistance to the Court even before hearing counsel for the appellant. He readily agreed, and conceded (properly, in our view) that the Judge’s summing-up fell so far short of what the law required that he could not support the conviction. We are of the opinion that although the learned Judge took meticulous care in his summing-up in explaining the law of murder to the jury, and also in recapitulating the evidence for the prosecution, he unfortunately misdirected himself, both by actual misdirection and by non-direction, as to the requirements of the law in regard to the defence. We considered that the passages in the summing-up to which reference will be made in this judgment were so gravely at fault as to amount to a substantial misdirection on a point of law, which made allowing the appeal inevitable.

Crown Counsel raised the following points:

“That the learned trial-Judge did not appear to have considered the defences of provocation and self-defence: He completely omitted to direct the jury on the defence which was raised or on that which ought to have been considered. From his summing-up the trial-Judge appeared to have usurped the functions of the jury, and directed them to return a verdict of guilty without leaving it to them . In my view of the evidence as a whole it would be a matter of conjecture what verdict the jury might have returned even on a proper summing-up. It is clearly a case in which the proviso to section 10(1) of the Court of Appeal Ordinance, 1957 could not apply.”

[p.211] of [1959] GLR 207

With all these submissions we agreed.

The learned Judge in his summing-up treated the statement of the appellant as amounting to a confession.

(His lordship read the second of the three paragraphs appearing in the headnote as from the Judge’s summing-up, and proceeded.–)

We do not think that the appellant’s statement amounts to a confession of murder pure and simple. It is a statement admitting killing; but killing may not be murder by reason of provocation; it may be justifiable if in necessary self-defence. The appellant’s statement quoted above clearly raised the alternative defences of provocation and self-defence; provocation, because the appellant alleged that he was provoked by words of mouth and was about to be struck with a cutlass, constituting therefore assault; self-defence, because the deceased tried to use a cutlass on him. These were questions of fact which should have been left to the jury.

On the authority of R. v. Hopper ([1915] 2 K.B. 431), “Whatever may be the line of defence adopted by counsel for the prisoner at the trial, the judge is bound to put to the jury such questions as appear to him properly to arise upon the evidence, even although counsel may not himself have raised some point.” And in the case of Mensah v. The King ([1946] A.C. 83 at p.92) we find that “if on the whole of the evidence there is nothing which could entitle a jury to return a lesser verdict, the judge is not bound to leave it to them to find murder or manslaughter. But if there is any such evidence, then, whether the defence have relied on it or not, the judge must bring it to the attention of the jury, because if they accept it or are left in doubt about it the prosecution have not proved affirmatively a case of murder.”

We are of the opinion that, in this case, direction ought to have been given to the jury that if the jury believed that appellant was assailed by the deceased, then they should consider the question of provocation or self-defence; but if they did not so believe, then the question of provocation or self-defence would fall to the ground. It was, of course, open to the trial-Judge to express his opinion, but if he did so he must warn the jury that they were entitled to form their own opinion, and not rely on his deciding a question of fact.

Whether a statement (or the evidence) of a prisoner is a confession or not is a question of fact for the jury to decide. Its admissibility is, of course, a question for the Judge to decide as a matter of law, but the jury decides the weight to be attached to it. In this case, however, the judge appears to have usurped the function of the jury, decided that the statement of the prisoner was a confession, and directed that the verdict must be one of guilty.

[p.212] of [1959] GLR 207

The questions in this case whether the appellant was so provoked, and to such a degree as to reduce the offence to one of manslaughter, or alternatively whether he so found himself in such extreme danger of his life as to defend himself even to killing, were matters for the jury to decide. It was the duty of the trial-Judge to put the defence to the jury, but he did not put the defence at all. It has been held that in self-defence, a person assaulted may do more than ward off blows; he is entitled to strike back (R. v. Deana (2 Cr.App.R. 75)). In the case of Reg. v. Knock ((1887) 14 Cox. 1) it was held that assault is justifiable, even to death, if in self-defence. And that is our law, as provided by section 64(4) of the Criminal Code.

The summing-up should have left these questions to the jury; but instead, unfortunately, after the learned Judge had directed that the prisoner’s statement amounted to a confession of murder, he concluded his summing-up as follows:-

(His lordship read the concluding paragraph from the Judge’s summing-up, as in the headnote, and proceeded:)

The authorities are clear that a Judge must leave the facts for the jury to decide, and should not impose, nor request a jury to return, a verdict unfavourable to the prisoner. A Judge is, however, entitled to indicate his own views to the jury, provided he leaves it to them to make up their own mind. We may put it this way: that unless in favour of the accused, it would be exceptional for a Judge to direct a jury as to the verdict which they should return. He is permitted, of course, to express his opinion freely and strongly, provided he is fair, and provided he makes it clear that the jury is free to give his opinion what weight it chooses. But that was not the kind of direction which the Judge gave in this case. “A Judge must not put himself in the position of the jury as regards the decision of facts. The proviso to section 4(1) does not apply where the Judge decides facts instead of the jury”-per Lawrence J. in the case of John West (4 Cr.App.R. at p. 180).The proviso referred to is the same proviso as that to section 10(1) of our Court of Appeal Act, 1957, which is as follows:

“Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.”

We are firmly of the opinion that failure to direct a jury as to the consideration which the defence deserves in a criminal matter, coupled with a direction to return a verdict of guilty as in this case, can amount to nothing less than a substantial miscarriage of justice.

[p.213] of [1959] GLR 207

We also notice that in his summing-up, the Judge after reviewing the case for the prosecution, said that “at that stage there was still room for doubt.” We wonder, if at the close of the case for the prosecution there was room for doubt, why the prisoner was called upon to make his defence. This brings us to the burden of proof, which rests on the prosecution. If at the close of the case for the prosecution there was a doubt whether or not the appellant had committed any offence of which he could lawfully be convicted on the information upon which he was being tried, why was he called upon to enter on his defence?

It is a well established principle that before a jury can consider the case for the defence, whether they believe it or not, they must be satisfied that the prosecution has affirmatively proved its case. In our view it is only when the jury is satisfied that the prosecution has proved its case that it can turn to the defence, and consider whether the defence answers the case proved by the prosecution.

The proper direction is that if the defence answers the case for the prosecution, then the jury should find the prisoner not guilty; or if the defence raises a reasonable doubt in the mind of the jury on the case for the prosecution, the prisoner is entitled to acquittal, because there is a doubt. The jury must be told that they can return a verdict of guilty only when they are so satisfied on the consideration of the case as a whole. (It was, however, held in R. v. Larkin ((1943) 1 All E.R. 217) that since the facts were not in dispute, it was perfectly right for the Judge to tell the jury that it was not open for them to return a verdict of not guilty.) “No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England, and no attempt to whittle it down can be entertained” (per Lord Sankey in R. v. Woolmington (25 Cr.App.R. 72 at p.95)).It is well settled law that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything, but to raise a reasonable doubt in the minds of the jury. If the accused can raise only such a reasonable doubt he must be acquitted.

We wonder, therefore, whether in this case the doubt which the trial-Judge found to have existed at the close of the case for the prosecution has in any way been displaced by the statement of the appellant. With respect, we do not think so. In our opinion it had, if anything, rather created more fuel for the fire of the existing doubt.

DECISION We accordingly allowed the appeal and quashed the conviction.