Trial by jury needs review

Case for abolition of jury trial in Ghana (2)

Ahumah Ocansey Opinion Feb - 17 - 2022 , 10:57

What could have gone wrong with jury trial that the author is asking for its abolition?

In the first place, jury trial consumes too much time and delays the trial of an accused.

When a juror is absent, no trial takes place. If the juror is sick then a new panel must be put in place, and the process outlined earlier gone through again.

When the Attorney-General (A-G) delays for one reason or another, the jury must be discharged till the A-G is ready.

Second, members of the jury sometimes find the trial boring and fall asleep! While you are busily leading evidence or cross-examining, you look at them only to see some asleep, with only one or two listening attentively.

Where they are not attentive, how will they appreciate the facts to do justice?

The greatest problem about jury trial comes from the judges. How to direct the jury. Almost all the appeals from murder cases have to do with how the judge handled the jury.

Lastly, since murder appeals invariably reverse the judgments of the trial court, it implies waste of time of the jury.

Cases

Asare vs The Republic [1978] GLR 193-199 CA: During the night of April 16, 1973, the appellant shot his wife dead after he had retired to bed with his wife and two children. The appellant opened the door and rushed into the bush where he hid for four days.

On his return to the village, the appellant was arrested and charged with the murder of his wife.

At the trial, the defence relied on the defence of insanity, since evidence had been given of the accused's previous history of mental derangement. The jury returned a verdict of guilty of murder.

On appeal, it was held: (3) Where the onus of proof was on the accused, the burden on him was lighter than that on the prosecutor.

In the circumstances of the present case, the trial judge should have invited the jury to consider whether on the totality of the evidence, and on the balance of probabilities, the appellant was, at the time of the killing of his wife, probably suffering from mental illness and was, therefore, totally disabled from knowing the nature or consequences of his act.

The Court of Appeal quashed the verdict of guilty of murder and sentence of death passed at the trial, and substituted a verdict of "guilty but insane".

Appianing vs The Republic [1972] 1 GLR 123-133 CA: The appellant was charged with and convicted for the murder of a police corporal who had tried to arrest him for assaulting a woman.

The prosecution alleged that while the deceased was trying to arrest the appellant, he fatally wounded the deceased on the head with a hammer.

The appellant's defence was that after a quarrel with the said woman, he took an alcoholic drink and retired to rest in his room when the deceased and another man entered the room and ordered him to accompany them to the police station.

When he refused to go with them on their failure to produce their warrant of arrest or identity cards, a struggle ensued, during which one of the two men, in an attempt to hit the appellant with an iron instrument, accidentally hit the deceased's head, which resulted in his death. Verdict of murder.

On appeal, the Court held: (5) The trial judge's failure to consider the issue of intoxication and its effect on the appellant’s intention to kill amounted to a serious misdirection.

Verdict or murder quashed. Substituted with 10 years in prison with hard labour.

Yirenkyi vs The State [1963] 1 GLR 66-77 SC: In this case, the appellant had a quarrel with his wife and the marriage was dissolved customarily.

While going to the market with her sister, the ex-wife met the deceased on the way, who threatened a “settlement between them” on returning from a visit elsewhere.

The deceased told him there was nothing between them to settle, whereupon the appellant removed a cutlass hidden in his cloth and slashed the deceased on the neck. She later died from her wounds.

At the trial, he pleaded alibi; that is, he was not present at the time of the assault on the deceased; he was elsewhere. However, he failed to bring up the witnesses to justify his alibi.

In the course of his summing up, the trial judge made the following statements: (a) "It is unfortunate that accused abandoned his defence of alibi by not calling his sister or his landlord"; (b) ". . . you have only the case set up for the prosecution before you," and (c) "failure of a defence of alibi is not to be taken as evidence of guilt."
Verdict: murder.

Held, on appeal at the Supreme Court: (2) The….two statements (a) and (b) above) taken together amount to misdirection. Moreover, the ordinary man would not understand "abandon" to mean anything other than its dictionary meaning of withdraw or give up.

(3) Whatever the nature of the misdirection complained of (whether it be an omission by the judge to put the defence adequately to the jury, or a misdirection on a point of law), if it can be predicted that properly directed, the jury must have returned the same verdict, then, there being no substantial miscarriage of justice, the appeal fails.

I shall end here. All the cases that could be cited have one element or the other of “misdirection” or “non-direction” by the judge.

Point

The point is that when a judge is sitting alone, he applies knowledge of the law to arrive at a decision. However, it is not altogether simple explaining the law and evidence to lay people, and that’s where the harm is done. Incidentally, my opinion has been excellently stated in the case of Atiemo vs Commissioner of Police (1963) 1 GLR 117-129 SC: Holding (3) says:

“Where a judge is sitting quite alone as a tribunal of fact, the principles applicable to a summing up to a jury or to directions to assessors do not apply, for there is no necessity to give assistance to laymen on the legal points involved in the case and on each side's version of facts in relation to those legal points.

“If there is evidence before the trial judge which he accepts to found a conviction, an appeal court will not interfere with that conviction.”

On account of the case made out here, I submit that the Attorney-General should consider submitting to Parliament an amendment of the Criminal Procedure Code, 1960 (Act 30) for trial by jury to be abolished in Ghana.

The writer is a lawyer. E-mail: akwesihu@yahoo.com