In our view it would be begging the question, and indeed dangerous to the administration of justice to assume or for that matter to hold that the omission to state that essential element of proof in his judgment made no difference to his decision and was immaterial or that it is a mere omission which has not occasioned a miscarriage of justice. It is true that the decision vested exclusively in the trial judge who is presumed to know the law but this court cannot and would not proceed on that assumption particularly where in a trial with assessors there has been a failure to observe the statutory directions given to all judges in such cases by the provisions of section 287 of the Criminal Procedure Code, 1960, which substantially re-enacts section 300 of the old Criminal Procedure Code.
The meaning and intendment of this provision, in a language which could not possibly be in plainer or more mandatory terms, was dealt with by this court in the case of R. v. Kwabena Sarpong,10(10) where the court said, inter alia: “ . . . where a Judge sits with the aid of assessors it is essential (and he is so required by the Statute whether he sums up to the assessors or not) that he should give a judgment in writing, from which it will appear to all who read it that he has, in arriving at his own verdict, instructed himself as fully as his duty would require him to instruct a jury, if he had in fact been sitting with a jury.”
It is clear, however, that in a trial by a court with the aid of assessors, where the Judge is required to pronounce his verdict irrespective of what the opinions of the assessors may be, the Judge must write a judgment stating his reasons for whatever conclusion he reaches upon the evidence adduced before him.
That being the case, a judge, by misdirecting the assessors, disables them from forming a true opinion on the relevant issues of fact in the case. Consequently, he makes it impossible for himself to have from the assessors their opinion on the issues of fact which the law requires him to have before coming to his own final conclusions in the case. In such a case, even if the decision of the trial court shows agreement with the opinion expressed unanimously by the assessors, the Supreme Court will feel constrained to quash the conviction unless it is shown in the judgment that the trial judge brought his mind to bear on all the important issues of fact which the assessors, if properly directed, would have considered before expressing their opinion.
Effect of the judge adopting the assessors' opinions as a verdict
In the instant case, it will be observed, from the portion of the record quoted, that the learned Commissioner of Assize and Civil Pleas who presided at the trial failed to give a verdict as is required by law, nor did he write a judgment stating his reasons for rejecting the defence. He in fact accepted the opinions of the assessors as if they had been the verdict of a jury, and he did not in any way comply with Sec.300 of the Criminal Procedure Code. DECISION For these reasons we allowed this appeal, quashed the conviction, acquitted and discharged the appellant.
In some of the earlier cases the point taken was that there was an omission to direct the assessors on a point of law; but the courts had held that such an omission would not be fatal to a conviction unless it was shown that there was something in the judge’s decision which indicated that he did not direct himself aright. Thus in Dankwa v. The King5(5) it was said: “But a judge is presumed to know the law (ex parte Markham (34 J.P. 150)) unless there is something in his judgment which gives a contrary indication.” It seems to us therefore that where a case tried with the aid of assessors goes on appeal the real test is whether there is anything in the judgment of the court which displaces the presumption that the judge knows the law.
Trial with assessors distinguished from trial by jury
This was a trial with assessors, and there is an essential difference between trial by a court with the aid of assessors, and trial by a court with a jury. Assessors are merely required to give their opinions to the Judge, who must thereafter pronounce his own verdict whether the accused is guilty or not guilty, irrespective of what opinions the assessors may have expressed. Thus Section 277 of the Criminal Procedure Code provides: “The opinion of each assessor shall be given orally, and shall be recorded in writing by the Court, but the decision shall be vested exclusively in the Judge. Any assessor dissenting from any decision of the Court may have his dissent and the grounds thereof recorded in the minutes.” In a trial by a court with a jury, on the other hand, it is the jury who pronounce the verdict of guilty or not guilty, and the Judge is thereafter required by law merely to record the verdict of the jury, and proceed either to convict or acquit as the case may be in accordance with that verdict. It follows that in a trial by a court with a jury, the Judge is not required to write any judgment stating the reasons for the decision.
Now, it must be emphasized that although in a trial with assessors the decision rests ultimately with the judge, yet the assessors are there to assist the trial judge by giving their opinions on the facts. To that extent their position is analogous to that of a jury. Therefore, in a case based entirely upon facts, if the assessors are unanimous in their opinion that a defendant is not guilty, but the trial judge rejects that unanimous opinion and convicts, the Supreme Court would feel itself obliged to quash the conviction unless the trial judge, in his judgment, gave cogent reasons why his individual opinion on the facts was sounder than and therefore preferable to the view unanimously held by all three assessors.
In the view of this court the learned trial judge by his own misdirection disabled himself from taking the opinions of the assessors into account as he should have done, and his reasons for rejecting their opinions cannot in law be justified. The court is satisfied that had the learned trial judge directed himself properly in his judgment on the law he would probably have arrived at the same conclusion as the assessors. For the above reasons we come to the conclusion after anxious consideration that it would not be safe to let the convictions stand.
