Regina v. Ojojo [1959] GLR 207-213

Material Facts:

The appellant admitted to killing the one Kwame Brehun. In his defence given from the dock, Kwame Brehun has, on previous occasions, consistently alleged that he impregnated the wife of the appellant and that the appellant was impotent. On the day of the killing, he alleged that the deceased met him on his farm, repeated these allegations, and tried to fight him while holding a cutlass. He alleges that he was quicker than the deceased and succeeded in disarming him and subsequently killed him.

Procedural History:

At the trial court, the judge, in directing the jury, said the following (among others):

Well now, Gentlemen, I regret to say the above [referring to the unsworn statement of the accused from dock] is nothing short of a clear confession of Murder pure and simple. Accepting his narration, even if it is true that the deceased tried or actually used his (the deceased's) cutlass on him, he himself says – “I was quicker and knocked away his cutlass from his hands” – that is to say disarmed him. Having disarmed him, the law does not allow him to cut him up in the manner described by the doctor

…

“It is therefore my very painful but bounden duty to direct you that on the Accused's own statement from the dock which amounts to a clear confession, he intentionally caused the death of the deceased Kwame Brehun by unlawful harm, the awful cutlass injuries inflicted on him which the doctor described in his evidence, and that your verdict must be guilty of Murder. Will you now retire to consider your verdict.

The accused was convicted of murder.

Issues:

1. Whether or not the statement of the accused amount to a confession of murder.

2. Whether or not the judge erred when he directed the jury that their verdict must be guilty of murder.

3. Whether or not the judge erred when he did not direct the jury on the defences available to the accused.

Holding:

1. The statement of the accused did not amounts to a confession of murder.

2. The judge erred when he directed the jury that their verdict must be guilty of murder.

3. The judge erred when he did not direct the jury on the defences available to the accused.

Ratio Decidendi:

The court invited prosecution to comment on the summing up of the accused before they could hear counsel for the appellant. The prosecution said:

That the learned trial-Judge did not appear to have considered the defences of provocation and self-defence: He completely omitted to direct the jury on the defence which was raised or on that which ought to have been considered. From his summing-up the trial-Judge appeared to have usurped the functions of the jury, and directed them to return a verdict of guilty without leaving it to them . In my view of the evidence as a whole it would be a matter of conjecture what verdict the jury might have returned even on a proper summing-up. It is clearly a case in which the proviso to section 10(1) of the Court of Appeal Ordinance, 1957 could not apply

Their lordships agree with these submissions.

On issue one, their lordships are of the view that the appellant’s statements from the dock cannot be said to be a confession simpliciter. In that statement, he admitted to killing the deceased but also raised the defences of provocation and self-defence. He intimates he was provoked by the words of the deceased. He also alleges self-defence because the deceased was about to attack him. In the opinion of their lordships, “these were questions of fact which should have been left to the jury.” Also, in light of these defences,

Direction ought to have been given to the jury that if the jury believed that appellant was assailed by the deceased, then they should consider the question of provocation or self-defence; but if they did not so believe, then the question of provocation or self-defence would fall to the ground. It was, of course, open to the trial-Judge to express his opinion, but if he did so he must warn the jury that they were entitled to form their own opinion, and not rely on his deciding a question of fact.

Whether a statement (or the evidence) of a prisoner is a confession or not is a question of fact for the jury to decide. Its admissibility is, of course, a question for the Judge to decide as a matter of law, but the jury decides the weight to be attached to it. In this case, however, the judge appears to have usurped the function of the jury, decided that the statement of the prisoner was a confession, and directed that the verdict must be one of guilty.

The questions in this case whether the appellant was so provoked, and to such a degree as to reduce the offence to one of manslaughter, or alternatively whether he so found himself in such extreme danger of his life as to defend himself even to killing, were matters for the jury to decide. It was the duty of the trial-Judge to put the defence to the jury, but he did not put the defence at all.

…

The summing-up should have left these questions to the jury; but instead, unfortunately, after the learned Judge had directed that the prisoner's statement amounted to a confession of murder

…

On issues two and three, their lordships also advanced that:

The authorities are clear that a Judge must leave the facts for the jury to decide, and should not impose, nor request a jury to return, a verdict unfavourable to the prisoner. A Judge is, however, entitled to indicate his own views to the jury, provided he leaves it to them to make up their own mind. We may put it this way: that unless in favour of the accused, it would be exceptional for a Judge to direct a jury as to the verdict which they should return. He is permitted, of course, to express his opinion freely and strongly, provided he is fair, and provided he makes it clear that the jury is free to give his opinion what weight it chooses. But that was not the kind of direction which the Judge gave in this case. "A Judge must not put himself in the position of the jury as regards the decision of facts. The proviso to section 4(1) does not apply where the Judge decides facts instead of the jury"-per Lawrence J. in the case of John West (4 Cr.App.R. at p. 180).

…

We are firmly of the opinion that failure to direct a jury as to the consideration which the defence deserves in a criminal matter, coupled with a direction to return a verdict of guilty as in this case, can amount to nothing less than a substantial miscarriage of justice.

In light of these, the appeal is allowed and the conviction is quashed.

Principles in Case:

1. In summing up, the judge should leave issues of fact for the jury to decide.

2. In summing up, the trial judge can express his opinion on the facts, but must warn the jury that they are entitled to their own opinion.

3. The judge should not impose or request a verdict from the jury which is unfavourable to the accused.

4. A failure to direct the jury to consider the defence which the accused deserves can amount to a substantial miscarriage of justice.