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REX
V.
ANTHONY UCHE
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
13TH DAY OF MAY, 1935
2PLR/1935/43 (WACA)
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OTHER CITATION(S)
2PLR/1935/43 (WACA)
(1935) II WACA PP. 287 – 288
LEX (1935) – II WACA PP. 287 – 288
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BEFORE THEIR LORDSHIPS:
AITKEN, J.
GRAHAM PAUL, J.
AND BARTON, J.
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BETWEEN:
REX — Respondent
AND
ANTHONY UCHE — Appellant
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REPRESENTATION
Wells Palmer — for Appellant
A. R. W. Sayle — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME — SEXUAL OFFENCES:- Convictions on two counts for defilement of Girl under age — Appeal against same on ground that Trial Judge did not warn Jury as to nature of evidence of Child of tender age — Misdirection of Judge as to Medical evidence — When would be deemed to have occasioned miscarriage of justice
HEALTHCARE AND LAW:- Medical diagnosis — A doctor’s failure to make definitive diagnosis as to discharge observed from a sexually defiled child on one hand and a similar discharge from the accused person — Implication for justice administration
CHILDREN AND WOMEN LAW:- Children/Women and justice administration — Alleged sexual defilement of a minor girl — Evidence of child — Medical evidence — Proper treatment of by Court — Effect of failure thereto
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. There was a misdirection of a nature that might easily have led the jury to convict, instead of a correct statement of the medical evidence against the accused, which coupled with a proper warning as to the nature of the evidence of children of tender years, might have raised a reasonable doubt in the jury’s minds to the benefit of which the accused would have been entitled.
2. Doctor’s omission to make a microscopical examination of the discharges he found issuing from the girl and the accused is to be deprecated, when one considers how vitally important the results of such an examination might have been.
Appeal allowed.
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MAIN JUDGMENT
The following joint judgment was delivered:
AITKEN, GRAHAM PAUL, AND BARTON, JJ.
In this case the accused was convicted on two counts of having defiled a girl of under eleven years of age, and sentenced to five years imprisonment with hard labour on each count, such sentences to run concurrently.
The trial was held at Lagos before a Judge and jury on the 7th, 8th and 9th days of March last, sentence being passed on the 12th day of that month. Three days later the accused, having obtained the trial Judge’s certificate that the case was a fit one for appeal, gave notice of appeal. On the 10th of May, 1935, that appeal came before the West African Court of Appeal sitting at Lagos and was allowed on the following grounds:
Firstly, because the learned trial Judge, in his summing up, omitted to warn the jury as to the nature of the evidence of children of tender years, and
Secondly, because he misdirected the jury as to the evidence when he told them that “there was medical evidence that both the accused and the girl were a few days after the alleged occurrence suffering from a similar discharge of a gonorrheal nature.”
In point of fact the evidence of Dr. B. W. Smart went no further than the statements –
(a) That there was some discharge from the girl, but he could not tell the nature of it – possibly gonorrhea, and
(b) That the accused appeared to have gonorrhea, but that he had made no microscopical examination to ascertain the fact.
Quite obviously a misdirection of this nature might easily have led the jury to convict, whereas a correct statement of the medical evidence against the accused, coupled with a proper warning as to the nature of the evidence of children of tender years, might have raised a reasonable doubt in their minds to the benefit of which the accused would have been entitled. We therefore had no option but to allow this appeal, though there was evidence before the Court on which given a satisfactory summing-up the jury might properly have found the accused guilty of the offences charged against him.
Moreover, the Doctor’s omission to make a microscopical examination of the discharges he found issuing from the girl and the accused is indeed strange, when one considers how vitally important the results of such an examination might have been.
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