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REGINA v. OKAI


  • appeal
  • 1960-06-22
  • COURT OF APPEAL
  • GLR 191-193
  • Print

KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.


Summary

Criminal Law?-Procedure?-Judge functus officio once verdict given and sentence passed?- Judicial procedure on jury's disagreement?-Criminal Procedure Code Cap. 10 ss. 295 and 298 (2).

Headnotes

The appellant was tried before Charles, J. for murder. The facts of the case are of no importance for the purposes of this report, which is concerned only with judicial procedure.The jury, having retired, returned to court with the statement that they were " unanimous that the accused is guilty of murder." Sentence of death was passed. After it had been passed, the court was informed by the foreman of the jury that the verdict of the jurors had not been unanimous. The learned judge thereupon purported to "withdraw" the death sentence. The foreman then stated that a majority of jurors favoured a verdict of guilty of murder. The judge then read to them section 298 (2) of the Criminal Procedure Code, as follows: ?-"(2) If the jury are not unanimous in their opinion, the Judge shall, after the lapse of such time as he thinks reasonable, discharge the jury: "Provided that a verdict of a majority of not less than five to two shall, in any case where the accused is not charged with an offence which is punishable by death, be held, taken to be, and received by the Court the verdict of the whole jury."After explaining the provisions, the judge directed the jury to retire again, and to consider their verdict. On their return, the foreman reported, "Not unanimous. Five jurors agree that the Accused is not guilty of murder but guilty of manslaughter, and two jurors disagreed". Upon this, the judge directed them to return a verdict of not guilty of murder, but guilty of manslaughter. The jury did so, and the accused was sentenced to 10 years I.H.L.He appealed to the Court of Appeal.

Judgement

APPEAL against a conviction for manslaughter before Charles, J. at Accra Assizes, on January 26, 1960.

JUDGMENT OF KORSAH C.J.

Korsah, C.J. delivered the judgment of the court. (After stating the facts his lordship continued): It is necessary to say, firstly, that when jury presented a unanimous verdict that the accused was guilty of murder they had discharged their function in the trial, and could not be permitted to take any further part in the proceedings. When, therefore the foreman of the jury informed the court that their verdict was not in a unanimous verdict, they should have been informed by the learned trial judge that a note would be taken of the statement in question for the information and consideration of the Court of Appeal. This was of special importance in view of the fact that it was after the sentence of death had been solemnly passed that the foreman of the jury intervened.

What, however, in fact followed (and for which no precedent can be found in the annals of the law) was that the learned judge respited death sentence, and appears to have ordered what may justly be termed a retrial of the prisoner before himself and the same jury, whose oath had been exhausted by their first verdict, and when the learned judge himself having passed sentence, was functus officio. In doing this, the learned judge assumed to himself powers which neither he nor this court possessed. He unfortunately, does not seem to have realised that when the verdict was returned, and sentence thereon pronounced, the prisoner passed out of the charge of the jury, and beyond his own jurisdiction, and was by the very words of the sentence placed in charge of the Prison Authority, to be dealt with in accordance with the law and with the Governor-General's directions.

A further error followed when the prisoner, having been arraigned on a charge punishable with death, the learned trial judge (ignoring the proviso to section 298 (2) of the Criminal Procedure Code) proceeded to accept a majority verdict of five jurors who "agree that the accused is not guilty of murder but guilty of manslaughter, and two jurors disagree." It must be assumed from this that two jurors found the accused guilty of murder, otherwise they would have expressed themselves in the words "Not Guilty." Where, upon a charge of murder, the jury cannot agree on their verdict, the judge has no alternative but to discharge the jury and leave the matter to be dealt with by a fresh jury. It is only where the offence charged is not punishable by death that a majority verdict may be accepted.

Even if the announcement by the foreman of the jury of its want of unanimity had preceded the conviction of murder and the sentence of death, it would have been necessary at once to discharge the jury and empanel a new one. Yet, without any legal justification whatsoever, the learned judge (after accepting a revised verdict) directed the jury to return a verdict of not guilty of murder but guilty of manslaughter, which they appeared to have done in unanimous form, as directed. Even in a case to which a majority verdict is appropriate, it is the duty of the trial judge to accept such majority verdict. Though he is to treat it as a verdict of the whole jury, no power resides in him, either by statute or otherwise, to direct the jury to enter a verdict in unanimous form. The jury are in law functi officio on a delivery of their majority verdict, which would (in a proper case) be the only verdict to be entered. When, as in this case, the learned trial judge directed the jury that in the circumstances they must return a verdict of not guilty of murder, but guilty of manslaughter, he fell further into error. [p.193]

Learned senior crown counsel confessed himself unable to support the conviction before us. The accumulated errors, indicated by what hereinbefore appears, wholly vitiate the conviction for manslaughter, and this court had no power to do anything save to allow the appeal, and quash the conviction and sentence accordingly. This we did, and we ordered that the appellant be discharged.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

In person.

Defendant / Respondent

Glasgow for respondent (Crown).

Referals

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