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THE STATE v. MANU ALIAS SOBOA AND 6 OTHERS


  • appeal
  • 1961-10-30
  • SUPREME COURT
  • GLR 624-626
  • Print

VAN LARE, SARKODEE-ADOO AND CRABBE, JJ.S.C.


Summary

Criminal law?-Practice and procedure?-Jury discharged through lack of unanimity?-Appellants not charged with any offence punishable by death?-Whether trial judge bound to ascertain ratio of non-unanimity and majority opinion?-Criminal Procedure Code, Cap. 10 (1951 Rev.) s. 298(2).

Headnotes

The appellants were tried before Prempeh, J. sitting with a jury. The jury were unable to reach a unanimous verdict, and, without ascertaining the ratio of [p.625] their non-unanimity, the trial judge discharged them. At the date of this appeal the case was still pending in the High Court.It was contended that it was mandatory for the judge to ascertain the majority opinion and that if it were ascertained to be not less than five to two, that should have been held to be the verdict of the whole within the proviso to section 298 (2) of the Criminal Procedure Code, Cap. 10 (1951 Rev.) since the appellants were not charged with any offence punishable by death.

Judgement

APPEAL from an order made by Prempeh J. on the 16th December, 1960, at the Assizes held in the High Court, Ho, whereby he discharged the jury in the trial of this case in the exercise of his powers under section 298, subsection (2) of the Criminal Procedure Code, Cap. 10 (1951 Rev.) as the jury were not unanimous in their opinion.

JUDGMENT OF VAN LARE J.S.C.

Van Lare J.S.C. delivered the judgment of the court. This appeal is brought in order to challenge the right of the learned trial judge to discharge the jury without ascertaining from them, as the appellants were not charged with any offence punishable by death, what was the ratio of their non-unanimity. It has been contended that had the majority opinion of the jury been ascertained to be not less than five to two, that would have been held, taken to be, and received by the court as the verdict of the whole jury within the proviso to subsection (2) of section 298 of the Criminal Procedure Code.1 This subsection reads as follows:

?"298(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 as the verdict of the whole jury.?"

There is no indication as to the majority opinion of the jury because the learned trial judge did not ascertain the same. The question we are asked to decide in this appeal is whether the trial judge was bound to ascertain what the majority opinion was. We are of opinion that the judge was not [p.626] so bound especially in view of the fact that the jury clearly indicated that they required no further direction from the judge. If there had been such an opportunity, the judge might have drawn the jury's attention to the proviso to section 298(2) in which case the jury might well have indicated the ratio of their non-unanimity.

Although a judge may ask the jury such questions as are necessary to ascertain what their verdict is, he is not bound to do so. If the jury are not unanimous in their opinion the lapse of such time after which the judge shall discharge them is entirely within his discretion. We think that it is only when the judge is told by the jury of the ratio of their non-unanimity that he would be bound to record the same and to act upon it. If the jury do not so indicate, it is not mandatory upon the judge to enquire the same.

As we are satisfied in the light of the decision in the case of Charlotte Winsor v. The Queen,2 that the learned trial judge properly exercised his discretion in discharging the jury before verdict, we cannot interfere; and we even go further to say that we are unable to appreciate what effect any interference by us at this stage of the case which is still pending before the High Court at Ho can have on the proceedings. In the result we dismiss the appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

J. Quashie-Idun

Defendant / Respondent

K. Dua-Sakyi with him Sarkodee

Referals

Winsor v. The Queen (1865) 1 Q.B.D. 390

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