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REX
V.
NANWIAH DAGARTI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
9TH DAY NOVEMBER, 1944
2PLR/1944/47 (WACA)
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OTHER CITATION(S)
2PLR/1944/47 (WACA)
(1944) X WACA PP. 272 – 273
LEX (1944) – X WACA PP. 272 – 273
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
COUSSEY, J.
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BETWEEN:
REX – Respondent
AND
NANWIAH DAGARTI – Appellant
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REPRESENTATION
S. A. Attoh — for Appellant
N. A. Ollennu — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Trial with Assessors – Murder – Judge’s omission to tell Assessors of benefit of reasonable doubt – Criminal Procedure Code, ss. 261 and 264
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CASE SUMMARY
Defendant was tried by a Judge sitting with Assessors, to whom, in his summing-up, he omitted to say that defendant was entitled to the benefit of any reasonable doubt. This omission was the only ground of substance in the appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. where a case is tried with a jury or assessors, the Judge should explain to them that Defendant should be given the benefit of any reasonable doubt and record the fact that he did so explain.
2. as the assessors merely gave opinions (and not a verdict like a jury) and the decision rested with the Judge, it must be presumed that he did not overlook the principle of reasonable doubt in coming to his decision.
3. as appellant had admitted facts in law amounting to murder properly directed the assessors would have expressed the same opinions.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
There is only one ground of substance upon this appeal, namely Ground 7(a):-
“that the learned trial Judge omitted to direct the Assessors as to the accused being entitled to the benefit of any reasonable doubt. ”
It is true that in the learned trial Judge’s notes of his summing up there is no reference to his having told the assessors that the accused was entitled to the benefit of any reasonable doubt. We regard this as a most serious omission, and cannot emphasise too strongly that in all cases, whether tried with a jury or assessors, the jury or the assessors, as the case may be, should be told by the Judge that the benefit of any reasonable doubt should be given to the accused and the meaning of this should be carefully explained to them and it should be recorded in the notes of summing-up that this has been done. Omission to do this may result in the quashing of a conviction on appeal as in the cases of B. R. Lawrence v. The King 1933 A.C., 699 and Rex v. Sawyerr 3 W.A.C.A. p. 155. But we are of opinion that this case differs from those cases in two material particulars, namely:
(a) It was tried with assessors and not a jury, and by virtue, of the provisions of sections 261 and 264 of the Criminal Procedure Code the decision was vested exclusively in the Judge, and the opinions of the assessors were opinions only and did not amount to the verdict. Although the Judge did not mention it to the assessors, it must be presumed that in coming to his own conclusion he did not overlook the well-known principle of law that the accused is entitled to the benefit of a reasonable doubt; and
(b) In the present case it can be predicated that properly directed the assessors must have expressed the same opinions, because the Appellant admitted facts which must, in law, amount to murder and clearly not to manslaughter only.
For these reasons no substantial miscarriage of justice appears to be established and Ground 7(a) fails.
There is no substance in any of the other grounds of appeal and the appeal is dismissed.
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