^{page 19 note 1} In the Western Area of Sierra Leone, where the assessors are unanimous, their opinions constitute the decision of the court—section 45 (1) of the Jurors & Assessors Act (cap. 38, 1960 ed. of Revised Laws).

In Southern Rhodesia both the assessors and judge are members of the court, and all matters of fact are decided by a majority of the members—s. 223B of the Criminal Procedure and Evidence Act.

^{page 19 note 2} See the Ghanaian cases:

R. v. Annan (1927), G.C.L.R. (F.Ct.) 269, 276.

R. v. Dagarti (1944), 10 W.A.C.A. 272.

R. v. Adade (Nov. 1959), Ghana C.A. (Grim.) 79, 80, [1959] G.L.R. 365.

^{page 19 note 3} This had been established in 1853 by Ordinance No. 1 of that year.

^{page 19 note 4} Criminal Procedure Amendment Ordinance, No. 12 of 1916; this provided that the Attorney-General may apply for an order for trial by assessors in the excepted cases if he considered that a more fair and impartial trial would be achieved by this form of trial. S. 242 (I) of the Criminal Procedure Code 1960 enables the Attorney-General to make the same application, but an order will only be made if the Court “thinks that the ends of justice would be served by doing so”.

^{page 19 note 5} Act 30 of 1960; s. 413 and the Fifth Schedule repealed the Criminal Procedure Code, cap. 10 of the 1951 edition of the Revised Laws of the Gold Coast.

^{page 20 note 1} The writer has not been able to discover in the Criminal Code, Act 29 of 1960, any reference to an offence as an indictable offence.

^{page 20 note 2} Part VI of the Courts Act, No. 9 of 1960.

^{page 20 note 3} Part II of the Courts Act.

^{page 20 note 4} 4 See ss. 163 and 164 and the definition of “summarily” in s. 414 of the Code.

^{page 20 note 5} Section 53 of the Courts Act.

^{page 21 note 1} Section 184 (4) and s. 44 of the Code.

^{page 21 note 2} Section 39 of the Courts Act, and s. 2 (4) of the Code.

^{page 21 note 3} Section 29 of the Courts Act.

^{page 21 note 4} Section 37 of the Courts Act, and s. 2 (4) of the Code.

^{page 21 note 5} Section 39 (1) (a) of the Courts Act.

^{page 21 note 6} Section 39 (1) (b) of the Courts Act—although there is a s. 39 (I), there is no s. 39 (2) in the Act.

^{page 21 note 7} A similar conclusion with reference to Sierra Leone was reached by BENKACOKER, C.J., in Reg. v. Bash Taqui (Sessions in Freetown, Sierra Leone, March 1961), where he also observed that at common law all offences were indictable and that the limited jurisdiction of inferior courts was subsequent to the jurisdiction which had at all times existed in the superior courts for the trial of criminal offences, cf. s. 2 (1)-(3) of the Code.

^{page 21 note 8} Section 58 of the Code provides that proceedings shall not be instituted for the trial of an accused person upon indictment save by or on behalf of the Attorney-General.

Section 60 of the former Criminal Procedure Code, (cap. 10 of the 1951 Revised Laws) enabled the Attorney-General to file an information in the Supreme Court although there had not been a preliminary inquiry in the then Magistrate Court, but only after obtaining the consent of the Governor-in-Council, and even then only in respect of informations similar to those which could have been filed by Her Majesty’s Attorney-General in England in the High Court of Justice in England. This provision was repealed by s. 413 and the Fifth Schedule of the 1960 Code, and replaced by s. 44, which makes it mandatory to commence proceedings in the District Court unless otherwise enacted, in all cases where the court of trial is the High Court or a Circuit Court.

^{page 22 note 1} Section 157 of the Courts Act, 1960.

^{page 23 note 1} Author’s italics.

^{page 23 note 2} Rahimtoola v. Nizam of Hyderabad, [1958] A.C. 379; [1957] 3 W.L.R. 884; [1957] 3 All E.R. 441.

^{page 23 note 3} Civil Appeal No. 41/59. The judgment will be found in the bound cyclostyled copies of the Court of Appeal Judgments (Civil) delivered during the period July-December 1959 at page 61; it is reported in [1960] J.A.L. 160; [1959] G.L.R. 390; the decision was upheld by the Privy Council on a second appeal—Coleman v. Shang, [1961] A.C. 481; [1961] 2 W.L.R. 562; [1961] 2 All E.R.406.

^{page 23 note 4} 1st July, 1960.

^{page 23 note 5} [1929] G.C.L.R. (F. Ct.) 513, at p. 519.

^{page 24 note 1} Now substantially re-enacted in s. 4 (b) of the Criminal Code, 1960.

^{page 24 note 2} R. v. James is reported in 12 Cox. C.C. 127.

^{page 24 note 3} Section 243 (1).

^{page 24 note 4} See p. 18, ante.

^{page 24 note 5} Section 255 of cap. 10, 1951 ed. of Laws of the Gold Coast.

^{page 24 note 6} (i) Trial of capital offences; (ii) cases ordered by the court to be tried with a jury instead of with assessors.

^{page 24 note 7} Sections 255 and 257 of cap. 10, 1951 ed. Laws of the Gold Coast.

^{page 24 note 8} Section 245 of the 1960 Code.

^{page 24 note 9} Ibid., s. 243 (2).

^{page 24 note 10} Section 242 (1).

^{page 25 note 1} If there is a strong feeling against an accused person in the region, area or place of trial, from which the jurors are summoned, it may well be in the interests of justice to the accused that he be tried by assessors instead of a jury, since in such a case the decision rests exclusively in the judge. On the other hand, if there is a strong feeling in favour of an accused person (who, for example, from evidence adduced by the Attorney-General at the preliminary hearing in the district court, is obviously guilty) in the region, area or place of trial, from which the jurors are summoned, it may well be in the interests of justice to the public that he should be tried by assessors. The decision rests with the judge and it is his duty to watch the public interest. “It is too often nowadays thought, or seems to be thought, that the interests of justice mean only the interests of the prisoners”—per Lord GODDARD in R. v. Grandkowski, [1946] K.B. 369. It is submitted that the phrase “ends of justice” in the section does not mean the “interests of either the accused or the Attorney-General”. Rather it means, it is further submitted, the interests of justice to the accused and to the public. “The Attorney-General … [is] … the guardian of the public interest”—per Lord DENNING, in delivering the opinion of the Judicial Committee of the Privy Council in Attorney-General for Gambia v. N’Jie, [1961] J.A.L. 105; [1961] A.C. 617; [1961] 2 W.L.R. 845; [1961] 2 All E.R. 504. Hence, it seems eminently proper that he should be empowered to make such an application.

^{page 25 note 2} Section 209 of the 1960 Code.

^{page 25 note 3} Ibid., s. 228 (2).

^{page 25 note 4} Section 228 (1).

^{page 25 note 5} Section 209.

^{page 25 note 6} Section 212.

^{page 25 note 7} Section 214.

^{page 26 note 1} Cf. s. 205 with s. 227.

^{page 26 note 2} Author’s italics.

^{page 26 note 3} The word “ordinary” is italicised by the writer of this paper. This section purports to be a re-enactment of s. 273 (without its proviso) of the now repealed Criminal Procedure Code, cap. 10 (1951 edition of Laws of Gold Coast). The word in that section was “ordinarily”; the word “ordinary” in the present enactment may be due to the printer’s or draftsman’s error.

^{page 26 note 4} Contrast s. 8 (2) of the Protectorate Courts Ordinance (cap. 7 of the Laws of the Gambia, 1955 ed.), which deals with trials in the High Court of the Protectorate of the Gambia. This reads: “The judge may appoint one or more fit and proper persons to sit as assessors with him on the trial of any case.” By s. 8 (1) this provision applies both to civil and criminal cases.

^{page 26 note 5} (1939), 6 E.A.C.A. 126.

^{page 26 note 6} (1921), 3 Ug. L.R. 51.

^{page 27 note 1} (1931), 3Ny. L.R. 43.

^{page 27 note 2} [1957] E.A. 298; [1958] J.A.L. 124. Cf. a similar English decision in R. v. Wardle (1842), Car. & M. 647.

^{page 27 note 3} Author’s italics.

^{page 28 note 1} (1938), 5 E.A.C.A. 143, followed in R. v. Abdullari Ali & anor., [1958] E.A. 725, at p. 728.

^{page 28 note 2} Criminal Appeal 42/58; judgment of the West African Court of Appeal delivered 1st June, 1959, in Sierra Leone.

^{page 28 note 3} [1949] 2 K.B. 590; [1949] 2 All E.R. 438; 33 Cr. App. R. 189.

^{page 29 note 1} Section 229.

^{page 29 note 2} Section 227 (1).

^{page 30 note 1} Section 247 of the Criminal Procedure Code (cap. 24, 1957 ed. of Laws of Nyasaland).

^{page 30 note 2} (1952) 6 Ny. L.R. 234. The present writer’s attention was first directed to the Uganda Law Report (cited in note 46, supra) and the two Nyasaland Law Reports (cited in note 47, supra, and this note) on reading part III of Mr. J. H. Jearey’s article, “Trial by jury and with the aid of assessors”, published in [1961] J.A.L., at p. 82; the present writer acknowledges his indebtedness in this regard.

^{page 30 note 3} [1922] A.C. 128. The distinction drawn in this case has been followed in many courts of the Commonwealth.

^{page 30 note 4} [1933] T.L.R. 1; [1933] All E.R. Reprint 723; 150 L.T. 3; 30 Cox C.C. 17.

^{page 31 note 1} In the Chana Code, s. 244 similarly provides that: “In cases tried with a jury the trial shall be with a jury of seven persons.”

^{page 31 note 2} Reekie v. R. (1954), 14 W.A.C.A. 501, at p. 503.

^{page 31 note 3} Section 251 (b).

^{page 31 note 4} Note that s. 251 (c) allows for a juror to be challenged successfully on the ground of any such disqualification.

^{page 32 note 1} Section 207 (o) as applied by s. 227 (2).

^{page 32 note 2} Section 226 as applied by s. 230.

^{page 32 note 3} Section 222 as applied by s. 230.

^{page 32 note 4} [1959] E.A. 875, at p. 876; [1960] J.A.L. 173.

^{page 33 note 1} [1959] E.A. 875, at p. 876.

^{page 33 note 2} [1949] A.C. 253.

^{page 33 note 3} [1947] 12 W.A.G.A. 156, at p. 158.

^{page 33 note 4} At p. 274.

^{page 33 note 5} [1956] A.C. 158; 1 W.A.L.R. 49.

^{page 34 note 1} Section 241 (1).

^{page 34 note 2} [1957] E.A. 298, see p. 27, n. 2, supra.

^{page 35 note 1} Archbold, 34th edition, paragraph 671; (see also Anandagoda v. R., [1962] Crim. L.R. 468.

^{page 35 note 2} Ibid., paragraph 387.

^{page 35 note 3} (Unreported) 1959, Sefadu Sessions.

^{page 35 note 4} (1956). 23 E.A.C.A. 480, at p. 482.

^{page 36 note 1} [1958] E.A. 706.

^{page 36 note 2} Ibid., p. 710. In R. v. Siaka Stevens & anor. June, 1961, Freetown Session, Sierra Leone, Benka-Coker, C.J., gave a similar ruling.

^{page 37 note 1} [1958] E.A. 661.

^{page 37 note 2} (1959), 16 W.A.C.A. 74.

^{page 37 note 3} [1951] 1 K.B. 29; [1950] 2 All E.R. 587; 34 Cr. App. R. 161.

^{page 38 note 1} The correctness of the English decision in Heyes has been questioned by the present writer in an article—“Is a verdict necessary after a change of plea ?”, in [1962] Crim. L.R. 12.

^{page 38 note 2} According to s. 199 (5) of the Code, a court shall not accept a plea of guilty on trials for capital offences.

^{page 39 note 1} In Uganda and Nyasaland it is provided that in assessor trials the judge shall call upon the accused only if he considers the evidence adduced by the prosecution sufficient to answer: see s. 278 (2) of the Criminal Procedure Code (cap. 24, 1951 Revised Laws of Uganda) as amended by Ordinance No. 28/1959; see also s. 277 of the Criminal Procedure Code (cap. 24, 1957 Revised Laws of Nyasaland).

^{page 39 note 2} In fact, this is a decision on a point of law: R. v. Abbott, [1955] 2 Q..B. 497; [1955] 3 W.L.R. 369; [1955] 2 All E.R. 899; 39 Cr. App. R. 141.

^{page 39 note 3} Section 285 of the Code.

^{page 39 note 4} Ibid., s. 287 (2).

^{page 39 note 5} (Sept. 1959) Ghana C.A. (Crim.) 10,12; [1959] G.L.R. 303. The decision was under the old Code, but the corresponding provisions are the same—ss. 274, 277 and 285 of cap. 10 (1951 edition).

^{page 40 note 1} If judicial authority is required,—see R. v. Kwabena Sarpong (Nov. Ghana C.A. (Crim.) 87, 88; reported also in [1959] G.L.R. 383.

^{page 40 note 2} (1949), 12 W.A.C.A. 10.

^{page 40 note 3} R. v. Washington (1954), 21 E.A.C.A. 392.

^{page 40 note 4} [1958] E.A. 684. Cf. R. v. Ekadolio, [1959] E.A. 168. In both cases the learned judge did not sum up to the assessors.

^{page 40 note 5} R. v. Dagarti (1951), 13 W.A.C.A. 134.

^{page 40 note 6} R. v. Kweku Kyene (March 1958) Ghana C.A. (Crim.) 46; R. v. Grunshie (1955), 1 W.A.L.R. 36; R. v. Kwame Adamu (April 1960) Ghana C.A. (Crim.) 40; Bharat v. R., [1956] A.C. 158; [1956] 1 W.L.R. 49, an appeal to the Privy Council from Fiji, where there is a similar provision. Also 4 W.A.C.A. 120.

^{page 40 note 7} (1949). 12 W.A.C.A. 416, at p. 417.

^{page 41 note 1} [1956] A.C. 158; [1956] 1 W.A.L.R. 49.

^{page 41 note 2} (May 1958) Ghana C.A. (Crim.) 81, at p. 82.

^{page 41 note 3} Despite this, the court had to draw attention to it in later sittings; see, for example, R. v. Adamu, referred to at p. 40, n. 6, supra.

^{page 41 note 4} Section 318 (4) of the Criminal Procedure Code of Kenya (1948 Revised Laws); s. 283 (4) of each of the Codes of Nyasaland and Uganda (1957 Revised Laws and 1951 Revised Laws respectively).

^{page 41 note 5} Referred to at p. 28, n. 1, supra.

^{page 41 note 6} Referred to at p. 28, n. 2, supra.

^{page 41 note 7} (1956), 1 W.A.L.R. 10.

^{page 42 note 1} [1942] A.C. 583; [1943] 1 All E.R. 583. In this case the Privy Council referred to s. 286 of the Gold Coast Criminal Procedure Ordinance (1936 Revision) and stated that the section directed that the opinion of the assessor should be given in open court. This is, however, incorrect. The word “court” does not even appear in any of the three subsections of the section in the 1936 Ordinance. The section was reproduced in s. 300 of the Criminal Procedure Code of the 1951 Revision, as unamended by s. 3 of Ordinance No. 8 of 1947, and in that form it now appears as s. 287 of the present Code.

^{page 42 note 2} [1959] E.A. 813. A petition to appeal, on the grounds that only specific questions were asked of the assessors, and that no general opinion was obtained, was presented to the Privy Council, who refused it, without assigning any reason for their refusal; see Bansel v. R., The Times, London, 15th March, 1960. The view of the Court of Appeal for Eastern Africa is now supported by the opinion of the Privy Council in Ram Bali v. R. Privy Council Appeal No. 18 of 1961) delivered on 6th June, 1962.

^{page 43 note 1} R. v. Francis Juma, [1958] E.A. 192.

^{page 43 note 2} (1922), G.C.L.R. (F. Ct.) 22.

^{page 43 note 3} R. v. Tamele Grunshie (March, 1959) Ghana C.A. (Crim.) 12.

^{page 43 note 4} Judgment of the Wist African Court of Appeal (unreported) delivered at Accra on 21st November, 1947. The judgment of the Privy Council on appeal is reported in (1949), 12 W.A.C.A. 242.

^{page 43 note 5} Section 3 of Ordinance No. 8 of 1947.

^{page 43 note 6} Author’s italics.

^{page 44 note 1} Note the distinction made in Boateng’s case by the Privy Council (12 W.A.G.A. at p. 243) with the Fiji case of Joseph v. R., [1948] A.C. 215, where the amended version of the Ordinance was applicable at the date of the latter case.

^{page 44 note 2} [1960] E.A. 567.

^{page 44 note 3} Ibid., at p. 572.

^{page 44 note 4} [1940] A.C. 231; [1940] 1 All E.R. 241.

^{page 44 note 5} (1959) Ghana C.A. (Crim.) 91; reported also in [1959] G.L.R. 383.

^{page 45 note 1} R. v. Gyamfi and R. v. Adamu (March & April 1960) Ghana C.A. (Crim.), pp. 16 and 40 respectively.

^{page 45 note 2} R. v. Brima Caulker (1959), 16 W.A.C.A. 63.

^{page 45 note 3} [1948] A.C. 215.

^{page 45 note 4} Referred to at p. 19, n. 2, ante; see also R. v. Mensah (June 1960) Ghana C.A. (Crim.) 36.

^{page 45 note 5} See R. v. Abenkorah (June 1960) Ghana C.A. (Crim.) 62, at p. 72, for the meaning of “conviction”.

^{page 45 note 6} Section 25.