COURT OF APPEAL
DATE: 18 DECEMBER 1967
Before: AZU CRABBE, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Joseph v. R. [1948] A.C. 215; [1948] L.J.R. 1246; 92 S.J. 53, P.C.
(2) Mensah and Ankrah v. The State [1961] G.L.R. 64, S.C.
(3) R. v. Adade [1959] G.L.R. 365, C.A.
(4) R. v. Sarpong [1959] G.L.R. 383, C.A.
(5) R. v. Adamu [1960] G.L.R. 91, C.A.
(6) R. v. Baker (1912) 76 J.P. 184; 28 T.L.R. 363; 7 Cr.App.R. 217, C.C.A.
(7) R. v. Ingleson [1915] 1 K.B. 512; 84 L.J.K.B. 280; 112 L.T. 313; 78 J.P. 521; 24 Cox C.C. 527; 11
Cr.App.R. 21, C.C.A.
(8) R. v. Golathan (1915) 84 L.J.K.B. 758; 112 L.T. 1048; 79 J.P. 270; 31 T.L.R. 177; 24 Cox C.C.
704; 11 Cr.App.R. 79, C.C.A.
(9) Crane v. Director of Public Prosecutions [1921] 2 A.C. 299; 90 L.J.K.B. 1160; 125 L.T. 642; 85
J.P. 245; 65 S.J. 642; 27 Cox C.C. 43; sub nom. R. v. Crane 37 T.L.R. 788; 15 Cr.App.R. 183, H.L.
(10) R. v. Neal [1949] 2 K.B. 590: [1949] 2 All E.R. 438; 113 J.P. 468; 65 T.L.R. 557; 93 S.J. 589; 48
L.G.R. 93; 33 Cr.App.R. 189, C.C.A.
(11) R. v. McDonnell (1928) 20 Cr.App.R. 163, C.C.A.
(12) R. v. Wilde (1933) 24 Cr.App.R. 98, C.C.A.
(13) R. v. King (1920) 149 L.T.J. 303; 15 Cr.App.R. 13, C.C.A.
(14) R. v. Gee, Bibby & Dunscombe [1936] 2 K.B. 442; [1936] 2 All E.R. 89; 105 L.J.K.B. 739; 155
L.T. 31; 100 J.P. 227; 52 T.L.R. 473; 80 S.J. 536; 34 L.G.R. 265; 30 Cox C.C. 432; 25 Cr.App R.
198, C.C.A.
[p.787] of [1967] GLR 785
(15) R. v. Olivo [1942] 2 All E.R. 494; 168 L.T. 112; 106 J.P. 284; 41 L.G.R. 70; 28 Cr.App.R. 173,
C.C.A.
(16) R. v. Heyes [1951] 1 K.B. 29; [1950] 2 All E.R. 587; 100 L.J. 427; 210 L.T.J. 79; 144 J.P. 451; 94
S.J. 582; 48 L.G.R. 565; 34 Cr.App.R. 161, C.C.A.
NATURE OF PROCEEDINGS
APPEAL against a conviction for robbery in a trial with assessors. The facts are set out in the judgment of
the court.
COUNSEL
Appellant in person
V.E.A. Kisseih Senior State Attorney, for the respondent.JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. The appellant was tried at the High Court, Ho, before Jiagge J. sitting with assessors, upon a count in an indictment charging him with the offence of robbing of cash, the sum of £G18 14s. 2d. (or N¢37.41½) from one Anthony Agbeve by use of force, contrary to section 149 of the Criminal Code, 1960 (Act 29), as amended by section 3 of the Criminal Code (Amendment) (No. 3) Act, 1963 (Act 157), and on 11 February 1966, he was sentenced to six years’ imprisonment with hard labour. The appellant has now appealed to this court on a number of grounds, none of which seems to this court to have any real merit. But we have noticed that after the learned trial judge had summed-up to the assessors she recorded the following notes:“First assessor—guilty.
Second assessor—guilty.
Third assessor—guilty. The accused admits:
One previous conviction for housebreaking and stealing.
Four previous convictions for stealing. Six years, imprisonment with hard labour.” It seems quite clear that the procedure which the learned trial judge adopted after the assessors had expressed their opinions was gravely irregular. She omitted (1) to write a reasoned judgment in compliance with section 287 (2) of the Criminal Procedure Code, 1960 (Act 30); (2) to ask the appellant whether he has anything to say before passing sentence, as provided in section 288 of Act 30, and (3) to convict him before sentence, as required by section 287 (3) of the Criminal Procedure Code.
The present case seems to be on all fours with the Fiji case of Joseph v. R. [1948] A.C. 215, P.C. where the trial of the appellant was before a judge with the aid of assessors. The judge, having summed-up to the assessors, accepted their unanimous opinions of
[p.788] of [1967] GLR 785
“guilty of manslaughter” as if it were the verdict of a jury and passed sentence on the accused. On appeal to the Judicial Division of the Privy Council, Sir John Beaumont, who delivered the opinion of their Lordships, said at p. 221: “The learned Chief Justice does not appear to have brought his own mind to bear on the question of the guilt or innocence of the accused. He left the appreciation of evidence to the assessors, and accepted their conclusion as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion. The appellant was entitled to be tried by the judge and he has not been so tried and, in the circumstances, the only course open to the Board was to advise His Majesty to allow the appeal and quash the conviction and sentence.” The provisions of section 157 (1) of the Criminal Procedure Code of Fiji, regulating the trial in that case, are similar to section 287 (2) of our Criminal Procedure Code, 1960 (Act 30), and we think that the observations of Sir John Beaumont apply with equal force to the present case. These observations have been approved and applied in this country in the case of Mensah and Ankrah v. The State [1961] G.L.R.64, S.C.
In R. v. Adade [1959] G.L.R. 365, C.A. it was held that a judge’s omission, in a trial with assessors, to write a judgment stating his reasons for whatever conclusion he reaches upon the evidence adducedbefore him as required by section 300 (2) of the Criminal Procedure Code, Cap. 10 (1951 Rev.), vitiates a conviction. See also R. v. Sarpong [1959] G.L.R. 383, C.A. and R. v. Adamu [1960] G.L.R. 91, C.A. In all these cases the appellate courts deplored the failure of the trial judge to comply with the mandatory provisions of section 300 of Cap. 10 (now section 287 of Act 30). In Mensah and Ankrah v. The State (supra) in particular the Supreme Court used language which seems to express its abhorrence at the persistent disregard by judges of the provisions of section 300 of Cap. 10. Commenting on this irregularity the court said at p. 67:
“However this may be, the glaring defect in the proceedings consists of the total, and it seems to us deliberate, disregard on the part of the trial judge of the provisions of section 300 of Cap. 10. No less than four times this court has called the attention of judges and magistrates to these provisions, and it is, to say the least, unfortunate that we should have to do so again. We earnestly hope that this may be the last time for us to repeat the section.”
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We regret that in spite of all the admonitions and expressions of pious hope by the appellate courts some judges are still unaware of their responsibility under section 287 of the Criminal Procedure Code. In all the cases where the trial judge had failed to write a reasoned judgment, the appellate court had, though with very great reluctance, allowed the appeal, quashed the conviction and had acquitted and discharged the appellant. In R. v. Sarpong (supra) the Court of Appeal observed as follows at the conclusion of its judgment at p. 386: “we had no alternative but to allow the appeal. This we did, and ordered the appellant to be acquitted and discharged.” The present case is indistinguishable from those cases where the appellate courts had acquitted and discharged the appellant on the ground that the trial judge had failed to write a reasoned judgment. We are therefore constrained to hold that the trial of the appellant was a nullity and we set aside the sentence of six years passed by the learned trial judge.
But the question which we now have to decide in this case is, whether we should follow the previous decisions and discharge the appellant. We would like to point out that in principle where the first trial has been declared a nullity and the conviction and sentence have been set aside the proceedings are not est, for any purpose. This means in effect that the appellant has not been really acquitted, but merely has never been tried at all. It would appear that the main reason for the appellate courts not making an order for a fresh trial in R. v. Adade (supra), R. v. Sarpong (supra), R. v. Adamu (supra) and in Mensah and Ankrah v. The State (supra) after declaring the first trial abortive was merely that at that time the Court of Appeal had no power to order a retrial. The impression one gets from reading the cases is that before 1960 the appellate courts did not feel that they had the power to make any further order after acquittal. With respect, we do not share that feeling, since we think that, independently of any statutory power, and from the point of view of common sense, the appellate court can order a new trial where there had been a mis-trial, in the sense that the trial had been a nullity from the beginning to the end. This order would be in the nature of venire facias de novo juratores (an order to summon and swear a fresh jury to retry the case) which is frequently made by the English Court of Criminal Appeal, if it is established that there has been a mis-trial: see R. v. Baker (1912) 7 Cr.App.R. 217, C.C.A.; R. v. Ingleson (1914) 11 Cr.App.R 21, C.C.A.; R. v. Golathan (1915) 11 Cr.App.R. 79; C.C.A.; Crane v. Director of Public Prosecutions [1921] 2 A.C. 299, H.L and R. v. Neal (1949) 33 Cr.App.R. 189, C.C.A. But since 1960, however, it has been provided both in section 16(5) of the Courts Act, 1960(C.A.9), and now in paragraph 14(5) of the Courts Decree,
1966 (N.L.C.D.
[p.790] of [1967] GLR 78584), that the appellate court may order the appellant to be tried afresh if in its opinion the proceedings in the trial court were a nullity either through want of jurisdiction or otherwise. But if the Appeal Court merely declares the trial a nullity, the prosecution will be entitled to commence fresh proceedings against
the appellant. In Crane v. Director of Public Prosecutions [1921] 2 A C. 299, H. L. Lord Parmoor held at p. 337 that: “The annulling of the conviction, and judgment, would in itself leave the appellant liable to be tried on the separate indictment, but there is no informality in giving a definite direction.” In R. v. Golathan (supra) Lord Reading C.J. delivering the judgment of the court observed at p. 80: “We think that in this case we have power to order that the appellant be kept in custody until the trial takes place, but the court does not propose to take that course. We make no such order, and he will therefore be discharged. It is, of course, open to the prosecution to proceed with the trial of the indictment if it thinks fit…”
In R. v. McDonnell (1928) 20 Cr.App.R. 163, C.C.A. and R. v. Wilde (1933) 24 Cr.App.R. 98, C.C.A. the court merely quashed the convictions where the trial had been a nullity. This course is usually adopted where it appears to the court that the appellant had been for a considerable period in custody: see R. v. King (1920) 15 Cr.App.R. 13, C.C.A.; R. v. Gee, Bibby & Dunscombe (1936) 25 Cr. App.R. 198, C.C.A.; R. v. Olivo (1942) 28 Cr.App.R. 173, C.C.A. and R. v. Heyes (1950) 34 Cr.App.R. 161, C.C.A.
It seems to us that the reasons which appear to have decided the appeal court not to order fresh trials in the local cases referred to above are, with the greatest respect, purely obiter, and we are therefore not bound to follow those cases for the same reasons.
We have already declared the trial a nullity, and that being so, the indictment upon which the appellant took his trial still stands. The case before us is a very serious one and the appellant, who was on bail during the trial, has not quite served two years of the six years’ sentence of imprisonment imposed. We think the period he has served is a very small proportion of the entire sentence, and consequently we do order that the appellant be arraigned again before the High Court, Ho, and there to take his trial according to law upon the said indictment. We think that the course we are adopting is also justified under
paragraph 14 (5) of the Courts Decree, 1966(N.L.C.D. 84). Court below to carry out.
DECISION
Conviction quashed.
New trial ordered.
K.S.N.D.
